Indianz.Com Video: 8 Billion Questions #CoronavirusReliefFund

'We need to do more for our tribes': $8 billion in coronavirus relief missing in action

With yet another deadline looming, concerns are growing in Indian Country and on Capitol Hill about the fate of an $8 billion coronavirus relief fund promised to tribal governments to help them through the pandemic.

Through the Coronavirus Aid, Relief and Economic Security Act, also known as the CARES Act, the U.S. Congress set aside the money more than a month ago. It's a small portion of $150 billion promised to tribes, states and local governments amid the worse public health crisis in decades.

But while states and local governments have received all of the funds promised to them, Indian Country hasn't seen a penny. The Trump administration has yet to determine how to release the money, violating the 30-day requirement in the CARES Act and missing a self-imposed deadline to do the same earlier this week.

“We, as the First Americans, are once again having to fight for what is rightfully ours," President Jonathan Nez of the Navajo Nation said on Thursday as the money remained locked up somewhere within the Department of the Treasury.

Nez pointed out that a federal judge, as part of a case in which the Navajo Nation is a plaintiff, already ordered Treasury to disburse the funds to 574 recognized Indian nations across the country. The department itself previously told the court that it was going to start depositing the money into tribal banks accounts as soon as Tuesday.

With that pledge already broken, Rep. Nancy Pelosi (D-California), the Speaker of the U.S. House of Representatives, on Thursday called on Secretary of the Treasury Steve Mnuchin to release the money "now." She even said the $8 billion isn't "anywhere near enough" to address the needs of tribal communities.

"I wanted more, and I want more in the next bill," Pelosi said during her weekly news conference at the U.S. Capitol.

Key members of Congress, Democrat and Republican alike, had sought $20 billion in coronavirus relief for tribal governments. They ended up settling for $8 billion in the CARES Act (H.R.748) but even that pot of funding was hard to keep in the final package, lawmakers have said, with one GOPer calling it a "knife-fighting" endeavor.

PBS NewsHour: Speaker Nancy Pelosi holds weekly news conference - April 30, 2020

Following a bruising policy and legal battle in which the Trump administration refused to budge from a controversial decision to allow for-profit Alaska Native corporations to seek shares of the $8 billion, the fate of the fund has become a true Washington whodunit. Though Pelosi expressed confidence in Mnuchin -- the pair have been frequent negotiating partners on a wide range of COVID-19 issues -- she noted that "public sentiment" might help get the the money out.

"We, all of a sudden, are not going to give the money to the tribes," Pelosi said. "Really?"

"Again, a down payment," Pelosi said of the investment the $8 billion represents to Indian Country, where inadequate infrastructure, including lack of running water, as well as overcrowded and outdated housing, are exacerbating the spread of the coronavirus in their vulnerable communities.

"We need to do more for our tribes," Pelosi added.

Republicans are also worried about the status of the fund. In a letter to Mnuchin on Wednesday, Sen. Mike Rounds (R-South Dakota) and Sen. Kevin Cramer (R-North Dakota) called on the Trump administration to ensure a "fair and equitable" distribution of the money.

The tribes in the Great Plains, a region that includes Nebraska in addition to North and South Dakota, account for nearly 25 percent of the Indian land base, the lawmakers said. Their citizens represent 10 percent of the enrolled tribal member population, they told Mnuchin.

"We ask that when you are allocating funding amongst the tribes, you allot a fair and equitable amount to the Great Plains Region based on these statistics and their demonstrated need and difficult public health challenges," Rounds and Cramer wrote.

The drama will once again come to a head on Friday. That's when a status report is due in federal court, following a landmark ruling in which a judge told the Trump administration that it could not -- at this point in time -- disburse any of the $8 billion to Alaska Native corporations, or ANCs.

Judge Amit P. Mehta ordered the parties -- the tribal plaintiffs and the federal government -- to discuss the next steps in the case. In particular, he wants Treasury to explain what is happening with the money.

“The joint status report shall also update the court on any developments in the disbursement of Title V funds to federally recognized Indian tribes, as well as any funds withheld from ANCs pursuant to the court’s preliminary injunction order,” Mehta said in his directive earlier this week.

On Monday, Mehta granted a preliminary injunction requested by the tribal plaintiffs in the case. He temporarily barred the Treasury from distributing any of the $8 billion to ANCs because he found that they do not qualify as “tribal governments” under Title V of the CARES Act.

The decision was based on a reading of the Indian Self-Determination and Education Assistance Act (ISDEAA) that have been heavily debated in the litigation.

“As no known ANC satisfies ISDEAA’s eligibility clause, no ANC can partake in the $8 billion funding set aside for tribal governments,” Mehta wrote in the 34-page ruling.

Though Mehta's order granting the preliminary injunction was appealable, the Trump administration has not taken any steps to do so. Representatives from Treasury have not appeared on any recent Indian Country COVID-19 calls, so questions posed to the department have gone unanswered, according to people who have participated.

Daniel Kowalski, who serves as Counselor to Secretary Mnuchin, was Treasury's lead on the $8 billion fund. He participated in two tribal consultation calls earlier this month that drew a total of nearly 3,000 participants, and he told them that his department would release some sort of formula, methodology or explanation to let them know how the money would be distributed.

But that pledge has come and gone too, even as Kowalski, during a non-Indian Country specific conference call on Wednesday, said that the money promised to states and local governments has already gone out the door.

"So all $142 billion available to those governmental entities has been paid," Kowalski said on the call, according to a person who listened.

Kowalski said the vast majority of the state and local portion was exhausted last Friday -- the same day of oral arguments in the tribal case.

"The tribal funds should start to flow soon," Kowalski added.

He noted that litigation is "ongoing" but said: "We believe we have determined a path forward while staying within the court's order to not pay Alaska Native corporations."

Hundreds of tribes in Alaska, along with hundreds of Native for-profit corporations, have lined up for shares of the $8 billion. With internet service severely lacking in many remote villages, some regional entities stepped up to help the communities in their territories submit information to Treasury's CARES Act portal before before an 11:59pm Eastern deadline on April 17.

"Calista’s sole focus in participating in the Tribal Relief Program is to benefit YK Delta people and communities and not Calista’s corporate finances," President/CEO Andrew Guy said of the Yukon-Kuskokwim region, where 58 rural villages are spread around a territory the size of Oregon.

With controversy over the fund generating headlines in the mainstream media and drawing the attention of top politicians, Guy and some of his fellow Alaska Native executives have been open to the possibility that they might not receive any shares of the $8 billion, or if they do, they won't utilize the payments for their own operations. One regional corporation, Koniag, has promised to "ensure one hundred percent of the funds received" go to the people.

“Koniag’s sole focus in applying for the CARES Act Tribal Relief Funding is to help our Alaska Native people and communities impacted by the pandemic," Chairman and CEO Ron Unger said.

Indianz.Com Video: #CoronavirusReliefFund: Reaction from Alaska

Alaska's all-Republican Congressional delegation has taken a more hard-line approach. They reacted negatively to the court's decision in the CARES Act lawsuit, insisting that the law is "clear" when it comes to Alaska Native for-profit corporations.

"This is not a fight over tribal sovereignty. This is not an issue of governance," Sen. Lisa Murkowski (R-Alaska), whose high-ranking position on the Senate Committee on Appropriations helps her steer crucial resources to Alaska, said during a coronavirus update hosted by the state governor on Monday evening shortly after the court ruling came out.

"I can't imagine that any federal judge would rule that somehow ANCs are not considered tribes when the plain language of the law in the CARES Act says that they are," added Sen. Dan Sullivan (R-Alaska).

Shiprock Alternative Care Site ready to house positive COVID-19 patients SHIPROCK, N.M. — Navajo Nation President...

Posted by Navajo Nation President Jonathan Nez and Vice President Myron Lizer on Wednesday, April 29, 2020

Tribes filed three different CARES Act lawsuits. All have been consolidated by Judge Mehta.

The first case to hit the court docket was Confederated Tribes of the Chehalis Reservation v. Mnuchin. The plaintiffs are the Confederated Tribes of the Chehalis Reservation, Tulalip Tribes, the Houlton Band of Maliseet Indians, the Akiak Native Community, the Asa’carsarmiut Tribe, the Aleut Community of St. Paul Island, the Navajo Nation, the Quinault Nation, the Pueblo of Picuris, the Elk Valley Rancheria and the San Carlos Apache Tribe.

Cheyenne River Sioux Tribe v. Mnuchin was filed next. A team of Native women attorneys is representing the Cheyenne River Sioux Tribe, the Rosebud Sioux Tribe, the Oglala Sioux Tribe, the Nondalton Tribal Council, the Native Village of Venetie and the Arctic Village Council.

The final lawsuit is Ute Indian Tribe of the Uintah and Ouray Indian Reservation v. Mnuchin. The sole plaintiff is is the Ute Tribe.

The joint status report is due in federal court sometime on Friday.

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