Tyler Fish, a senior policy advisor and tribal liaison to President Donald Trump, addresses the winter session of the National Congress of American Indians in Washington, D.C., on February 11, 2020. Photo by Indianz.Com (CC BY-NC-SA 4.0)

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'Broken promises': Tribes decry leak of private data from $8 billion coronavirus relief fund

Monday, April 20, 2020

By Acee Agoyo and Todd York

With additional reporting by Kevin Abourezk.

One tribal leader is "out for blood." Another calls it a "MAJOR breach" of the federal government's trust and treaty responsibilities.

A third compares it to a long history of "broken promises" by the United States. One believes it will lead to "lasting impact and damage" to Indian Country.

As tribal leaders and their citizens work day and night to protect their vulnerable communities from the coronavirus, they are enduring yet another shock to their system. After spending an entire week battling the Trump administration over an $8 billion COVID-19 relief fund, they discovered that their own government, the one that has charged itself with moral obligations of the highest responsibility and trust, engaged in such shoddy document handling practices that their sensitive data, containing information about their people and their finances, landed in the hands of outsiders on Friday.

"The unlawful release of information is evidence that those broken promises by the federal government continue to this day": The Southern Ute Tribe is demanding an investigation into the leak of sensitive #CARESAct data by Trump administration. #COVID19 https://t.co/K5ykUGzvOg
— indianz.com (@indianz) April 19, 2020

The serious breach, fresh off the bruising policy fight that has landed in the pages of national news outlets and has attracted the interest of powerful members of Congress -- some of them with strong connections to the White House -- has been such a jolt that many tribal leaders are still struggling to understand how it might have happened in the first place.

And, perhaps just as importantly, why.

"I don't know if that's a way of somebody trying to get back at the tribes or what," said Chairman Roger Trudell of the Santee Sioux Nation. The tribe's private information, which had to be submitted under threat of federal prosecution, was among those exposed by the Trump administration.

"It's hard to tell right now," Trudell told Indianz.Com on Saturday.

"I worry about the lasting impact and damage to our Tribal Nations by this leak. I echo the call for an immediate investigation into the matter”: Chairman Coly Brown of Winnebago Tribe condemns leak of sensitive #CARESAct data by Trump administration. https://t.co/lqhgHovend
— indianz.com (@indianz) April 19, 2020

With tribes demanding investigations and weighing legal action, including a potential class action, the leak comes after nearly every Indian nation in the lower 48 expressed a lack of confidence in the government official who is supposed to prevent these kinds of intrusions. Assistant Secretary for Indian Affairs Tara Sweeney has taken a prominent role in decisions affecting the $8 billion coronavirus relief fund, so much so that the Department of the Interior admitted that her agency had its eyes all over the information that got out.

“In our consultation efforts with the Department of the Treasury regarding CARES Act funding, we have been asked to verify for accuracy some of the non-financial information submitted by tribes to Treasury, and we have not been provided any confidential banking information," a spokesperson said in a statement. When asked by Indianz.Com on Saturday whether an investigation was underway into the breach, the spokesperson declined to answer.

But Sweeney and her staff aren't the only ones with direct ties to the leak. The White House also had its hands on the data, according to information obtained by Indianz.Com during an investigation of the mishap.

In fact, a key official at the White House was among the first people who received the tribal CARES Act data that got out.

Tyler Fish, a senior policy advisor and tribal liaison at the White House, and Doug Hoelscher, a deputy assistant to President Donald Trump and director of the White House Office of Intergovernmental Affairs, are seen on the steps of the U.S. Capitol following an event for missing and murdered Indigenous women on September 24, 2019. Photo by Indianz.Com (CC BY-NC-SA 4.0)

On Friday morning, a mere three minutes after the Department of the Treasury generated a document containing sensitive information of nearly 700 tribes and Native entities, it was emailed to Tyler Fish, the senior policy advisor and tribal liaison to President Donald Trump.

Fish, who is of Muscogee (Creek) and Cherokee ancestry, has positioned himself as a key player and eager promoter of the Trump administration's coronavirus response efforts. During a conference call last Thursday with tribal leaders, he praised the "positive results" being seen as a result of those measures, according to participants, even though the number of COVID-19 cases continues to rise across Indian Country, with some communities experiencing a disproportionate impact from the deadly disease.

But while Interior and Treasury can claim a direct role in the handling of the $8 billion, the reasons for the White House's need to receive private tribal information are less clear. The two agencies are required by the bipartisan Coronavirus Aid, Relief, and Economic Security Act, also known as the CARES Act, to work together on the fund.

The law doesn't say anything about the White House. Fish, who is technically employed by Interior and is only on a government detail to the Executive Office of the President, did not respond to a request for comment over the weekend.

A spokesperson for the White House, however, said Fish received the sensitive data as part of the Trump administration's "all-of-government approach" to the health pandemic.

“The Coronavirus response is an all-of-government approach, which includes the White House tribal liaison’s efforts to ensure timely guidance for tribal leaders to best support their needs in this unprecedented times, including ensuring followup with tribal leaders to submit information before key deadlines," the spokesperson told Indianz.Com on Sunday.

Daniel Kowalski, who serves as the counselor to Secretary of the Treasury Steve Mnuchin and who co-hosted two COVID-19 tribal consultation calls along with Sweeney, did not provide comment either. Though he attempted to connect Indianz.Com with his department's media team, none of them have explained what the agency was doing to address, investigate or respond to the data dump.

Daniel Kowalski, Counselor to the Secretary @USTreasury: "Opportunity Zones can restore prosperity to people and communities that have been left behind." According to Kowalski, about 366 designated Opportunity Zones nationwide overlap tribal lands. #ECWS19 pic.twitter.com/3guEB852nM
— NCAI (@NCAI1944) February 12, 2019

Tribal leaders are incensed. Some struggled with the CARES Act portal set up by Treasury but persevered with the hope of securing a share of an $8 billion fund promised to help their governments recover from the social, cultural, economic and other impacts of the global health pandemic.

“Tribes do not like to share their data but in order to access these critical funds to protect the health and safety of our members under the CARES Act, we did," Chairman Coly Brown of the Winnebago Tribe said in a statement to Indianz.Com on Saturday. "Now, our worst fears are confirmed and there has been a leak of that data. I worry about the lasting impact and damage to our Tribal Nations by this leak."

"I echo the call for an immediate investigation into the matter," Brown added.

For Chairman Christine Sage of the Southern Ute Tribe, the leak was so egregious that she had to inform her people about it. She noted that critical information, including bank account numbers, was submitted to the "secure" portal set up by Treasury.

"The history of relations between the United States and tribal nations is replete with broken promises," Sage said on Saturday. "The unlawful release of information is evidence that those broken promises by the federal government continue to this day."

Posted by Winnebago Tribe of Nebraska on Thursday, April 16, 2020

Winnebago Tribe: COVID-19 Update April 16, 2020

Chief Chuck Hoskin Jr. of the Cherokee Nation highlighted the double blow the breach represents to Indian County. After leading the charge against the inclusion of Alaska Native corporations in the $8 billion, which he likened to a "robbery happening in broad daylight", his tribe's data was among those exposed, only a day after it had been submitted to the CARES Act portal.

"Last week it was the Alaska corporate raid on the funds," Hoskin said on social media on Saturday. "Now it appears the feds breached the trust of tribes with a disclosure of tribal data."

"Outrageous," said Hoskin, who is the leader of one of the two largest in the United States

More troubling revelations about the feds handling of the #CARESAct fund for tribal governments. Last week it was the Alaska corporate raid on the funds. Now it appears the feds breached the trust of tribes with a disclosure of tribal data. Outrageous. https://t.co/QFfKSsGNK4
— Chuck Hoskin, Jr. (@ChuckHoskin_Jr) April 19, 2020

Indian law experts contacted by Indianz.Com said the breach raises significant liability issues for the Trump administration, especially Secretary Mnuchin, who is already being sued by six tribes for his handling of the $8 billion fund. They believe it gives the plaintiffs in the case, which seeks a judgment barring Alaska Native for-profit entities from receiving a share of the money, some ammunition that hadn't been available when the complaint was filed Thursday evening, just hours before the leak took place.

The mere existence of the leaked data, which contains information on population, land base, employees and expenditures for nearly 700 tribes and Native entities, has generated intense interest and heated discussion in Indian law and policy circles. With more lawsuits in development, including one that is expected to be filed as soon as Monday, it's only a matter of time before the leaked document shows up in court, these practitioners said.

Tribal leaders and advocates alike also noted the deep inequities of the incident. In order to seek a share of the $8 billion fund, Indian nations were warned they could face criminal prosecution for uploading "false" information to the CARES Act portal. A similar threat was not made of states and local governments, who are in line for far more coronavirus relief money than tribes.

NCAI is extremely disappointed and disturbed by the release of sensitive information that tribal governments and other entities submitted to the @USTreasury related to #CARESAct #Coronavirus Relief Funds. Read full statement here: https://t.co/AIh7weAeuR
— NCAI (@NCAI1944) April 18, 2020

Now it turns out that someone, or perhaps multiple people within the government, and maybe even those outside of it, are the ones who might face legal problems in connection with the leak.

"This release of sensitive information comes at a time when tribal governments are in dire need of resources to respond to and recover from the coronavirus (COVID-19) pandemic," the National Congress of American Indians said in a statement on Saturday.

"NCAI demands a full and swift investigation into the source of the data breach," the largest inter-tribal organization in the U.S. said.