Navajo Nation President Jonathan Nez, second from left, and Miss Navajo Nation Shaandiin Parrish, far left, participate in a COVID-19 donation distribution on the New Mexico portion of the reservation on May 29, 2020. Photo: Navajo Nation Office of President and Vice President

'Absolutely maddening': Trump administration falters on coronavirus relief promised to tribes

It was a federal judge's mistake but it forced the Trump administration into disclosing the troubles tribes are facing as they seek the COVID-19 funds they were promised two months ago.

In a court filing on Tuesday, the Department of the Treasury admitted that its efforts to distribute $3.2 billion in coronavirus relief weren't going so well. As of noon that day, the vast majority of tribes hadn't been able to submit the information needed to secure shares of the much-needed funds, just hours before the deadline was set to close.

"We had difficulty submitting our data, as the Treasury Department portal would not accept our documents," President Bryan Newland of the Bay Mills Indian Community said.

"I will add that this required a massive diversion of resources to provide the same information we had previously submitted to Treasury in a different format," Newland wrote on social media.

With the clock ticking, Newland told Indianz.Com that the Michigan-based tribe had to bring in additional staff to ensure their data was submitted on time. Treasury's website indicated their document was too large so they had to take other steps to ensure the information got to Washington on time -- only to find out later on that the Trump administration went ahead and extended the deadline.

"It is maddening. Absolutely maddening," Newland said on Wednesday. "The data calls required people to drop everything they are doing for COVID response."

"The first time, they didn't even use the data we pulled together," Newland added, referring to Treasury's decision to ignore the information tribes submitted last month under the threat of federal prosecution.

"Then we had to do it all over again," the president, a former federal government employee, told Indianz.Com.

"It was a huge diversion of resources -- and our staff was reluctant to share some information because they were worried it was going to be leaked," Newland said of a data breach that's under investigation within the Trump administration.

The Bay Mills Indian Community wasn't alone. According to a senior official at Treasury who was put in charge of the $8 billion coronavirus relief fund, four of the tribal plaintiffs in a lawsuit which sought the "immediate" distribution of the money hadn't submitted their data as of 5pm on Tuesday.

The four plaintiffs, including one of the largest tribal governments in the U.S., were eventually able to submit their data to Treasury, attorney Keith Harper, a former U.S. ambassador and citizen of the Cherokee Nation, told Indianz.Com. One client in particular was among those having trouble with the portal, he said.

And then there was Alaska, home to more than 200 tribes and more than 200 Native corporations, all of whom are eligible for shares of the money. A storm over the weekend "resulted in a widespread power outages throughout the state," hindering their ability to get the data submitted on time, Daniel Kowalski, the Counselor to Secretary of the Treasury Steve Mnuchin, told the court in a sworn declaration.

"Because of the difficulties reported by tribes, and the number of in-process submissions, Treasury is considering a short extension of tonight's deadline of 11:59:59 pm in order to enable tribes to complete their data submissions via the online portal," Kowalski wrote. The deadline was indeed extended through 12pm Eastern on Friday.

But it turns out that Kowalski's update almost wasn't. A day later, the judge assigned to Agua Caliente Band of Cahuilla Indians v. Mnuchin said he "mistakenly" asked Treasury for a status report.

"The court mistakenly asked defendant to file an additional status report yesterday, May 26, 2020, when it intended for such status report to be filed on May 29, 2020," Judge Amit P. Mehta wrote of Secretary Mnuchin, the defendant in the case.

"The court appreciates defendant's producing a status report on such short notice," Mehta said of his inadvertent request.

But without the update, submitted under the watchful eyes of the court, Indian Country wouldn't have known just how bad it was. Even those that were able to get through were concerned.

"Hopeful each Sovereign has had success this evening," Chief Justin Wood of the Sac and Fox Nation wrote on social media on Wednesday night. He said his tribe was able to submit the requested data to Treasury before the original deadline.

As the week went on, the situation was looking a lot brighter. A senior White House official told tribal leaders during a conference call on Thursday afternoon that the extended deadline was helpful, according to several participants.

"Nearly 99 percent of eligible entities have submitted the information for the data call that Treasury is working with tribal leaders on," said Doug Hoelscher, a deputy assistant to President Donald Trump who serves as director of the White House Office of Intergovernmental Affairs, whose remarks were relayed to Indianz.Com by several participants.

"That’s really great progress," said Hoelscher, according to the participants.

But with the door now closed on the coronavirus relief fund, tribal leaders have continued to express frustration with Treasury, whose expertise in Indian Country is limited. The department's methodology for distributing the first round of payments has been come under fire, both among experts in law and policy and among tribes.

National Congress of American Indians: COVID-19 Forum - Tribal Governments in Action - May 27, 2020

"We received a small amount," President Shelley Buck of the Prairie Island Indian Community said during a COVID-19 forum hosted by the National Congress of American Indians on Wednesday.

"We have over 1,000 enrolled members and we employ nearly 2,000, both members and non-members," Buck said of her tribe's operations in Minnesota. "Yet so far we received significantly less relief money than other tribes with similar populations."

The reason is that Treasury -- without prior notice or tribal consultation -- came up with an allocation formula based on U.S. Census Bureau figures that are known to undercount American Indian and Alaska Native populations, a situation even more acute due to the COVID-19 pandemic. Tribes had no way of knowing such figures were going to be used because, as President Newland pointed out, they were told to submit different information last month, only to see it go ignored by the department.

"I think we were shorted some money due to the methodology," Chief Mike Williams of the Akiak Native Community said aid during NCAI's forum. He said his village in Alaska has doubled in size -- but the growth isn't reflected in the Census figures that Treasury used.

"We were not happy with that final award because I think we need more to fight this thing" Williams said of the coronavirus that has caused sicknesses and deaths in a number of tribal communities, all while overtaxing their health systems and forcing shutdowns of crucial governmental operations and services.

Treasury was charged by law to distribute the $8 billion coronavirus relief fund "not later than 30 days" following the enactment of the Coronavirus Aid, Relief and Economic Security Act, also known as the CARES Act, on March 27. The department failed to meet that deadline, saying it was having trouble coming up with an allocation formula amid litigation filed by tribes over the inclusion of for-profit Native entities in Alaska in the fund.

But when Treasury on May 5 finally made an announcement about the long-awaited money, the department said only $4.8 billion was going out, rather than the entire amount as originally promised. The decision was linked to Trump's visit to Arizona that same day, when he met with leaders of two tribes at a factory that has ramped up production of protective masks during the pandemic.

President Donald Trump, center, takes part in a Native American roundtable in Phoenix, Arizona, along with, from left: Secretary of Labor Eugene Scalia, Governor of Arizona Doug Ducey (R), Vice President Myron Lizer of the Navajo Nation, Second Lady Dottie Lizer of the Navajo Nation, Governor Stephen Roe Lewis of the Gila River Indian Community and Senator Martha McSally (R-Arizona) on May 6, 2020. Photo: Shealah Craighead / White House

"It was his first trip in over month," Kellyanne Conway, a prominent aide to the president, said during an Operation Lady Justice listening session on Tuesday that was marred by technical and logistical difficulties.

Trump himself said he hadn't gotten out of the White House "in many months" when in fact he made two trips, one to Virginia and another to a federal agency in Washington, D.C., during the COVID-19 pandemic. He also went to Camp David, a presidential facility in Maryland, and to the Lincoln Memorial on the National Mall, prior to his visit to Arizona.

"He chose to go to Arizona," Conway said on the listening session, explaining Trump's desire to visit the Honeywell facility near the airport in Phoenix. That's where his roundtable with leaders of the Gila River Indian Community and the Navajo Nation took place.

"He absolutely wanted to be there to award money to the Native American community, and also to raise the visibility, yet again, with respect to missing and murdered American Indians and Alaska Natives," added Conway, highlighting Trump's Proclamation on Missing and Murdered American Indians and Alaska Natives Awareness Day on May 5.

Treasury was planning to start distributing the remaining $3.2 billion from the coronavirus relief fund as soon as June 5, according to a declaration previously filed in federal court. It's not clear whether extending the deadline will affect the timeline -- the status report due on Friday might shed additional light.

Tribes had to submit additional employment and expenditure information to Treasury in order to claim the remaining funds. The department hasn't said how the data will be used, though the methodology also might be explained to the court.

But as Indian Country waits for the rest of the money promised two months ago, President Buck offered some advice for officials in Washington, D.C.

"I think for the next round of money that they actually should listen to the tribes," Buck said.

"It's easy to check the box saying that you had the consultation but you actually need to hear what we're saying," Buck said.

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