Indianz.Com Video: '8 billion dollars for our tribal governments': #COVID19 and Indian Country

'We got these monies late': Trump administration makes tribes wait more than 80 days for full COVID-19 relief

It's taken over 80 days, numerous lawsuits and public pressure for the Trump administration to pay tribal nations the COVID-19 relief they were promised by the federal government.

On March 27, President Donald Trump signed the Coronavirus Aid, Relief and Economic Security Act, also known as the CARES Act. The law directed the Department of the Treasury to distribute an $8 billion fund to tribal governments "not later than 30 days" after its enactment.

More than two months later, Indian Country has yet to see the full relief promised by the United States, which has taken on moral obligations of the highest responsibility and trust as part of its unique relationship with tribes and their citizens. The roller coaster ride has been characterized by a string of broken promises and has prevented the first Americans from addressing the devastating impacts of the coronavirus in their communities, leaders and advocates say.

Navajo Nation Office of President and Vice President: COVID-19 Town Hall - June 16, 2020

"Everybody knows," Navajo Nation President Jonathan Nez said during a town hall on Tuesday, alluding to the widespread attention to the debacle, "we got these monies late,"

As a result, Nez said the tribe hasn't been able to develop adequate COVID-19 response and protection plans, such as hazard pay for employees and sanitation of buildings and businesses on the largest reservation in the U.S. The delay is a major issue because the CARES Act requires the money to be spent by December 31.

"There's a timeline on this," Nez said. "We need to get those dollars to all the tribes across the country so they can help their citizens."

"We are wanting to use these dollars for the immediate needs," Nez stressed.

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An initial payment of $600 million arrived in early May, and the relief was welcomed by Navajo leaders. But the money only went out because a senior White House aide said Trump wanted a public relations win amid blistering criticism over his handling of a pandemic that has taken more than 119,000 American lives, a number of them in tribal and urban Indian communities.

And as Nez pointed out, the payment was only a partial one. Treasury -- after making tribes sit through two consultations and requiring them to submit data under the threat of federal prosecution, only for the information to leak into the public domain -- committed to sending out just $4.8 billion, or 60 percent of the coronavirus relief fund, and under an allocation methodology that to this day remains in question.

The Navajo Nation finally saw a second payment of $86 million on Monday, Nez confirmed. But again, it's not the full amount as promised.

That's because Treasury unilaterally withheld additional funds -- some $679 million -- from tribes despite promising they would see payments from the remaining $3.2 billion on Friday. The action came even after government attorneys asked a federal judge for "guidance" in getting the rest of the money out.

"To tell you the truth, we were stunned," attorney Keith Harper, a citizen of the Cherokee Nation and a former U.S. ambassador, said at a court hearing that took place by video and teleconference on Monday.

"It just is stunning to us that there seems to be the callous disregard for the situation facing the tribes," Harper said of a group of Indian nations that sued Secretary of the Treasury Steve Mnuchin in order to get the money they were promised over 80 days ago.

"I'm not suggesting ill motives, but the conduct is problematic -- especially coming from a trustee," added Harper, pointing to the legal obligations imposed on the government through the trust and the treaty relationship.

And because Treasury withheld additional funds, tribes did not see payments last Friday as anticipated. Instead, the money started showing up in bank accounts on Monday morning, around the same time as the court hearing.

By Monday evening, the judge handling the case known as Agua Caliente Band of Cahuilla Indians v. Mnuchin decided he had to step in, again. He ordered Mnuchin to distribute the $679 million being withheld from tribal governments.

"The court acknowledges the Secretary’s efforts to date to distribute more than 90% of the $8 billion appropriated by Congress, and to do so in a fair and equitable manner," Judge Amit P. Mehta wrote in an opinion granting a preliminary injunction in the case.

"But the Secretary’s withholding of $679 million 'to resolve any potentially adverse decision in litigation,' simply cannot be justified," he added.

The $679 million figure arose as a result of a different lawsuit, known as Prairie Band Potawatomi Nation v. Mnuchin. In it, the Prairie Band Potawatomi Nation accuses the Trump administration of "underfunding" dozens of tribes by failing to take enrollment data into account when making the first round of payments from the CARES Act.

Government attorneys have made clear that they don't believe the case has any merit. Even the judge, in an order last Thursday, refused to grant Prairie Band's request for an injunction, in which the tribe sought an additional $7.65 million from Treasury.

Still, Treasury withheld the larger amount. When asked why on Monday, Jason Lynch of the Department of Justice demurred, instead choosing to respond to Harper's claims of bad conduct on behalf of the trustee.

"I don't believe I made any misrepresentations to the court," Lynch, a trial attorney for the government, said on Monday. "I don't think we are going back on any representations that were made.”

And as for Mnuchin's thinking about Prairie Band's allegations of an underpayment, Lynch said: "The Secretary continues to have some concern as long as the case is pending."

During the hearing and in his subsequent ruling, Mehta did not make a call on whether he believes the trustee is acting in bad faith. But he agreed that tribes are suffering "irreparable harm" as a result of the Trump administration's repeated delays.

"Congress plainly recognized the immediate need for emergency funds to assist Tribal governments in addressing the COVID-19 pandemic, as evidenced by the remarkably short 30-day deadline to distribute the aid," Mehta wrote.

"Each day that passes in which plaintiffs have not received their full allotment of funds impairs their capacity to respond to the crisis," he added, speaking to an issue raised not only by tribal leaders like President Nez but by key members of Congress.

"Sovereign Nations shouldn’t have to fight for money that Congress approves, ever. It’s shameful that a judge has to force the Treasury to do their job," Rep. Deb Haaland (D-New Mexico), a citizen of the Pueblo of Laguna and one of the first two Native women in Congress, said on social media on Tuesday.

"It’s unconscionable that it has required judicial action to force @USTreasury to stop playing political games with desperately needed Tribal relief dollars," Rep. Ruben Gallego (D-Arizona) added in a post of his own.

Gallego chairs the House Subcommittee for Indigenous Peoples of the United States, which is part of the larger House Committee on Natural Resources, of which Haaland serves as co-chair, the first Native person in the position. The legislative panel handles almost all tribal legislation in the U.S. Congress.

But if Mnuchin is indeed concerned about Prairie Band's case, Mehta gave him some wiggle room in a footnote in his ruling: "As the Order accompanying this Memorandum Opinion reflects, the Secretary in his discretion may withhold $7.65 million, if the Prairie Band Potawatomi Nation seek expedited review before the D.C. Circuit."

In a message to his people on Monday, Chairman Joseph “Zeke” Rupnick said he was surprised by the divide and conquer tactics employed by the trustee, at the direction of the Trump administration. The government played hard ball by refusing to consider another route that would not have harmed all of Indian Country, he asserted.

"After the hearing, we were caught in the middle," Rupnick wrote in the message. He said talks that occurred among tribal and government attorneys faltered because the Trump administration refused to budge on withholding $679 million, which accounts for 24 percent of the portion of the CARES Act funds reserved for tribal governments.

"In other words, the entire 24% of the remaining CARES had to be recalculated or nothing," Rupnick said. "With that impasse, no deal was reached, and the judge issued his ruling to distribute all of the remaining 24%."

A tribal attorney who participated in the talks following the hearing confirmed Rupnick's account of the situation. This person described Treasury's decision to withhold funds from tribes as "BS." "It was not convincing," this person said.

The Prairie Band is not convinced either. The tribe on Monday filed a notice of appeal, which will elevate the case to the D.C. Circuit Court of Appeals, one step below the U.S. Supreme Court, the nation's highest court.

"I want the members to know that I will do all that I can to make sure the Prairie Band Potawatomi Nation gets what is due, including this next distribution," Rupnick said in his message.

As of Monday, Treasury had withdrawn $2.150 billion from the coronavirus relief fund to pay tribal governments, according to the Daily Treasury Statement from June 15 The amount, however, is $679 million short of the amount that should be going to tribes, because of the withholding.

Once tribal governments are made whole, Treasury will have paid $2.829 billion to federally recognized Indian nations from the second round of CARES Act allocations. The forthcoming Daily Treasury Statement for June 16, or possibly the one after that, should confirm the increase, assuming the Trump administration abides by the judge's order in Agua Caliente.

That leaves about $371 million in the coronavirus relief fund, which accounts to the amount being set aside for Alaska Native corporations, whose eligibility to receive shares is the subject of an entirely different round of tribal litigation. Arguments took place on Friday, during a video and teleconference hearing that lasted three hours.

An additional $162.3 million has been set aside for the Alaska Native corporations from the first round of payments. Altogether, the for-profit entities, which provide services and programs for shareholders and their communities, stand to receive more than $533 million from the coronavirus relief fund should the litigation end in their favor.

"We are not encroaching on sovereignty," Daniel Wolff, an attorney representing the Alaska Native Village Corporation Association Inc. and the Association of ANCSA Regional Corporation Presidents/CEOs Inc., said at the hearing on Friday.

"We are not trying to supplant the sovereign tribes," Wolff added. "We’re trying to do the job that Congress created for us" through the Alaska Native Claims Settlement Act, he said.

Tribes see the matter differently. The Navajo Nation, which is part of the litigation, does not want to see one penny of the coronavirus relief fund go to for-profit corporations because the CARES Act intended the money for tribal governments, President Nez said on Tuesday.

"They saved some of this money for the Alaska Native corporations," Nez said of the amount set aside by the Trump administration. "You know we are opposed to that."

Judge Mehta is also assigned to the case, known as Confederated Tribes of the Chehalis Reservation v. Mnuchin, Cheyenne River Sioux Tribe v. Mnuchin and Ute Indian Tribe of the Uintah and Ouray Indian Reservation v. Mnuchin. He's already barred the Trump administration from making payments to the Alaska Native corporations (ANCs) pending the resolution of the dispute.

The Trump administration, however, is siding with the corporations. Treasury, in "consultation" with the Department of the Interior, the agency with the most trust and treaty responsibilities, determined that the Alaska Native for-profit entities qualify for shares of the coronavirus relief fund.

"ANCs are Indian tribes," said Lynch, the trial attorney from DOJ. "They have been treated that way for decades."

After the hearing on Friday, he promised the 18 tribal plaintiffs he would rule as soon as possible. Over the last two months, he's seen delay after delay unfold in Indian Country.

"We will try to do it very quickly," Mehta said.

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