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Photo: National Congress of American Indians
Republican lawmaker slams National Congress of American Indians
Friday, September 18, 2020
Indianz.Com

A powerful Republican lawmaker is accusing the National Congress of American Indians of engaging in “divisiveness” in connection with a bitter dispute over billions of dollars in COVID-19 relief.

In a stunning four-page letter, Sen. Lisa Murkowski (R-Alaska) on Thursday blasted the nation’s largest Indian Country advocacy organization for getting involved in the ongoing legal and policy dispute. She said NCAI shouldn’t have gone public with opposition to Alaska Native corporations (ANCs) receiving shares of a coronavirus relief fund designed to help tribal governments address the impacts of the global public health crisis.

“I fought hard to ensure that all Native people would be served by the historic Coronavirus Relief Fund (CRF) tribal set-aside,” Murkowski said of the $8 billion authorized by the Coronavirus Aid, Relief and Economic Security Act, also known as the CARES Act.

According to Murkowski, NCAI’s leadership spread disinformation about the distribution of the $8 billion fund. Although the allocation method was solely in the hands of the Trump administration, which was unable to come up with a formula on time, resulting in delayed payments to tribes, she said the organization made unfounded claims about how much money might end up in the pockets of the for-profit ANCs.

“In that period of uncertainty and deep anxiety, one overly simplistic analysis claimed ANCs both sought and would receive up to half of the $8 billion set-aside,” Murkowski told NCAI President Fawn Sharp, the organization’s highest-ranking official. “Rather than trying to dispel confusion, actions of NCAI’s leadership gave credence to this unlikely, divisive, and skewed perception.”

“If NCAI had acted with restraint and awaited verified information, it would have been more fitting to its role as a consensus builder,” added Murkowski, a long-time member of the Senate Committee on Indian Affairs.

Murkowski also said she was upset by NCAI’s efforts to engage with the Department of the Treasury in a government-to-government manner. She cited a letter the organization sent to Secretary Steven Mnuchin back in April, as a tribal consultation process was underway in connection with the $8 billion.

“I was disappointed that NCAI made no effort to communicate with the Alaska delegation to understand our perspective or to promote understanding before issuing their April 11, 2020 letter urging Treasury to exclude ANCs,” Murkowski wrote.

But what Murkowski left out were her own lobbying efforts. According to documents released as part of ongoing litigation, the very same Alaska delegation secured their own private meeting with the Treasury official in charge of the $8 billion fund.

The special meeting was separate from the two consultation calls that were set up for tribal leaders, thousands of whom participated as they worked day and night to prevent the coronavirus from spreading in their communities. The all-Republican Alaska delegation followed up a letter of their own to the Trump administration, which they sent five days before NCAI’s.

But after learning of NCAI’s letter, as well as concerns raised by tribes and tribal organizations nationwide, Murkowski and her cohorts refused to sit silent. They came up with an even more detailed letter in which they presented a compromise where ANCs would only receive shares of COVID-19 relief if designated by a sovereign tribal government.

Fawn Sharp, president of the National Congress of American Indians and president of the Quinault Nation, stands outside of the 5th Circuit Court of Appeals in New Orleans, Louisiana, following a hearing on the Indian Child Welfare Act on January 22, 2020. Photo by Indianz.Com (CC BY-NC-SA 4.0)

The compromise was not adopted by the Trump administration. Still, the Alaska delegation failed to mention their special call with Counselor Daniel Kowalski, the Treasury official leading the tribal set-aside discussions on behalf of Secretary Mnuchin. He never brought any ANC concerns up during the two tribal consultations that took place in April either.

And as Murkowski criticized NCAI for questioning the ethics of Assistant Secretary for Indian Affairs Tara Sweeney, who is Inupiat from Alaska and a former high-ranking executive at the wealthiest Native corporation, she left out even more details. One of her former aides happens to be Sweeney’s spouse.

Kevin Sweeney runs his own lobbying and consulting business, one that trades on its access to the Trump administration and whose clients include Alaska Native corporate entities. He worked for Murkowski as part of her Senate staff, as well as for her election campaigns, one of which resulted in ANCs spending $1.6 billion in support of her historic write-in campaign a decade ago.

But if anyone is looking for NCAI to hit back at Murkowski, don’t bet on a rash response. Even though the senior U.S. Senator from Alaska titled her letter “Tribal Unity and Alaska” and released it as several Indian Country organizations wrapped up Tribal Unity Days on Thursday, an event that included Alaska tribal leaders, there’t no rush to react.

“We feel that this is a matter between the Senator and NCAI, and out of a deep respect to the Senator and her concerns, and of those of NCAI and Indian Country, we will communicate directly with the Senator and her staff, and not through the media,” Kevin Allis, a citizen of the Forest County Potawatomi Community who serves as the organization’s chief executive officer, told Indianz.Com on Friday.

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Sen. Lisa Murkowski (R-Alaska), left, and Tara Sweeney see eye-to-eye following Sweeney’s confirmation hearing to be Assistant Secretary for Indian Affairs on May 9, 2018. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Other Indian Country experts weren’t as diplomatic. They believe Murkowski’s letter does not come from a place of true concern about the legal and policy implications of distributing shares of the $8 billion coronavirus relief fund to for-profit corporations.

“She has again shown her cards,” one prominent advocate said. “She’s willing to jeopardize her relationship with all tribal nations, including tribes in Alaska, to do the bidding of ANCs.”

“It’s sad. She used to be so helpful,” another Washington insider observed, referring to Murkowski’s role on the Senate Committee on Indian Affairs, where she once served as vice chair, the first woman in the leadership position.

But now, this person said: “She’s gone off the deep end. Pathetic.”

“Outrageous,” said another advocate, who is Alaska Native.

Besides Murkowski’s connections to Tara Sweeney and Kevin Sweeney, one tribal citizen suggested there was even more personal hostility at play. NCAI recently hired Nathan Bergerbest as its vice president of government relations. He had worked for Murkowski for more than 16 years.

“It’s all out war with NCAI,” said this person, a former Capitol Hill staffer. “Maybe a punch at Nathan too.”

But few in Indian Country are able to attach their names to their concerns, largely because they don’t enjoy the same level of privilege and power afforded to a member of a government institution that currently lacks Native American representation. Not only does Murkowski serve on the Senate Committee on Appropriations, she leads the subcommittee that’s in charge of how much federal funding goes to tribes and their communities.

And while Murkowski portrayed her letter to NCAI as an effort to educate “non-Alaskan tribal leaders” about Alaska’s unique history, the underlying dispute is hardly cut and dried. So much so that earlier this week, the D.C. Circuit Court of Appeals — considered second in stature only to the U.S. Supreme Court — put yet another hold on distributing shares of the $8 billion coronavirus relief fund to the Native corporations in Alaska.

The September 14 order from the appeals court came just one business day after a panel of three judges on the D.C. Circuit took up the COVID-19 dispute. The hearing was only scheduled to last 30 minutes — but it ended up running over 90 minutes, a sign of the complexity of the matter involving the Department of the Treasury, the agency responsible for distributing the COVID-19 relive to tribes.

“There’s a lack of trust that tribal leaders have seen between Treasury and tribes,” Governor Stephen Roe Lewis of the Gila River Indian Community said during a panel hosted by Harvard University on Thursday.

“Treasury is trying to fit, you know, a square peg into a round hole and there’s a lot of frustration out there among tribal leaders,” added Lewis, whose own efforts to sway the Trump administration on how to distribute the $8 billion — including a face-to-face meeting with the president on May 5 — went unrealized.

Harvard Ash Center: Insights from Congressional and Tribal Leaders: Coronavirus Relief for American Indian Tribal Governments – September 17, 2020

Even Republicans in the U.S. Senate don’t see necessarily eye to eye. During the forum, Sen. Steve Daines (R-Montana), who has taken credit for ensuring the $8 billion tribal relief fund was included in the CARES Act, stressed the role Congress plays in protecting the “federal government’s relationship with tribal governments,” one that is based on dealings between sovereign governments.

“The argument that we made — those of us who represent states they have larger Native populations — is that if we’re if we’re granting all these dollars to the states why aren’t we also granting dollars to these sovereign nations,” noted Daines, who serves on the Senate Committee on Indian Affairs.

Alaska Native corporations, as tribes have repeatedly pointed out and as Murkowski admits in her letter, are not sovereign governments.

“We’ve got to be better as lawmakers of clarifying intent, so you don’t leave it up the administrative agency to try to figure out what Congress was trying to do,” said Daines, who unlike Murkowski is up for re-election this year.

The Trump administration believes the Alaska Native corporations are entitled to shares of the coronavirus relief fund. The Department of the Interior, where Assistant Secretary Sweeney is the only Native American in a Senate-confirmed position, let Treasury know of its support on April 21. Two days later, Treasury made the final call in support of the ANCs.

But for reasons that remain unexplained, Treasury never distributed the shares that were set aside for the ANCs even after a federal judge ruled in favor of the U.S. government’s position in the litigation on June 26.

As a result, the ANCs have not seen a penny of the $543 million in CARES Act funding being held for them by Treasury because the same judge put a hold on the funds while the case is being appealed.

“We’re in a situation where only about a third of the money, about 40 percent of the money, that was allocated to Alaska has actually been received,” Nathan Yaa Ndakin Yeil McCowan, the chair of the Alaska Native Village Corporation Association, said during the Harvard event on Thursday.

“So we’re still waiting on the next 60 percent,” said McCowan, who is Tlingit and Aleut.

In total, there are more than 200 Native corporations in Alaska — 13 being regional, with the rest at the village level. The state is also home to more than 220 federally recognized tribes, whose governments received shares of the $8 billion fund, just like their counterparts in the lower 48.

The Trump administration, however, has not confirmed how much has gone to Alaska tribes. But what little information that has trickled out shows that Alaska tribal governments received far less than the $534 million being held for the ANCs, a disparity Murkowski didn’t discuss in her letter to NCAI.

Government attorneys at one point indicated only about $38 million went to Indian nations in Alaska from the first round of payments, which were released behind schedule on May 5. Two additional payments were made in July, also later than promised.

Assuming McCowan’s characterizations are true, tribes in Alaska received less than $326 million in COVID-19 relief, again far less than the money being held for the ANCs.

Murkowski’s letter isn’t the first time she’s publicly complained about the $8 billion coronavirus relief fund but she’s taken great steps not to be seen as overly critical of the Trump administration. When she has expressed concerns about the executive branch, the president himself has lashed out against her, at one point claiming he would campaign against her should she choose to seek re-election in 2022.

Instead, Murkowski found a way to blame tribes for delays in getting the money out even though government attorneys repeatedly admitted in court that Treasury was having trouble coming up with an allocation method. The department failed to make payment within 30 days as required by the CARES Act. Yet states and local governments received their COVID-19 relief without problems.

“Tribes play a central part in providing all those essential services for their citizens and they need to be treated like full governments, the same as states,” Governor Lewis said on Thursday.

Indianz.Com Video: D.C. Circuit Court of Appeals – Confederated Tribes of the Chehalis Reservation v. Steven Mnuchin – September 11, 2020

The D.C. Circuit has not indicated when it will issue a decision in Confederated Tribes of the Chehalis Reservation v. Mnuchin. The case was heard on an “expedited” schedule on September 11.

The case has been consolidated with two similar lawsuits — Cheyenne River Sioux Tribe v. Mnuchin and Ute Indian Tribe of the Uintah and Ouray Indian Reservation v. Mnuchin. A total of 18 tribal government, including six from Alaska, are plaintiffs. They have drawn support from nearly every major inter-tribal organization, including NCAI.

Timing is a major issue, since the CARES Act requires recipients to spend their shares by December 31. So even if the appeals court sides with the Trump administration and the ANCs, Chair McCowan said the for-profit entities have already suffered a significant setback because they won’t be able to use the money for major projects, such as bringing basic water and sanitation facilities to remote Native communities.

“For many of the infrastructure projects that would be needed to be able to respond effectively, we’ve already missed our window of opportunity,” McCowan said during the Harvard event.

“The summer building season is really between you know end of April to about now, maybe into October,” McCowan continued.

“There’s no effective way to be able to begin to address some of the community needs with water shortage and sewer problems,” he said.

Related Stories
Sen. Lisa Murkowski (R-Alaska) letter on ‘Tribal Unity’ (September 18, 2020)
Appeals court hears arguments in COVID-19 funding dispute (September 11, 2020)