Indianz.Com Video: #Coronavirus takes heavy toll on first Americans

Indian Country set for historic showdown in fight for $8 billion in COVID-19 relief

Thursday, April 23, 2020

By Acee Agoyo

Update (PM):
Around 5pm Eastern, the Trump administration announced that Alaska Native regional and village corporations are entitled to shares of the $8 billion coronavirus relief fund. The determination was made by the Department of the Treasury and cited by the Department of Justice in the CARES Act lawsuit filed by tribal governments.
Update (AM):
A federal judge on the morning of April 23, 2020, ordered the Trump administration to submit a brief by 5pm Eastern after being told that the Department of the Treasury still hadn't made a decision on the distribution of the $8 billion coronavirus relief fund.
A new hearing has been scheduled for 3pm on April 24. Further developments might alter the schedule.

With the coronavirus continuing to exact a heavy toll on the first Americans, a historic showdown is taking place in federal court as Indian Country fights over the future of an $8 billion COVID-19 relief fund promised to tribal governments.

The battle lines are clear. More than a dozen tribal plaintiffs, plus every major Indian organization in the United States, are calling on the Trump administration to ensure every penny of the fund goes to their governments, whose exercise of inherent sovereignty predates the U.S. Constitution.

"We, along with other federally-recognized tribes, aggressively advocated for tribal funding to be included in the CARES Act and now we must continue fighting to keep what was allocated for us," President Jonathan Nez of the Navajo Nation said of the money promised by the Coronavirus Aid, Relief, and Economic Security Act.

Tribal #CARESAct Hearing at 9:30am, April 23, 2020.

Members of the public or media may access the hearing through the courts public access line: (877) 848-7030, access code 321-8747.

The court recommends dialing in ahead of time. #CoronavirusReliefFund https://t.co/5IlsUwV4pQ
— indianz.com (@indianz) April 22, 2020

On the other side are equally forceful voices. More than 200 Native corporations in Alaska, where remote and far-flung communities make addressing basic needs even more challenging even without the worst public health crisis in decades upending their lives, assert they are just as entitled to the $8 billion as their brethren in the lower 48.

"Many tribes in Alaska simply do not have the capacity or resources to meet the needs of tribal members on their own," reads a friend of the court brief filed by Ahtna Inc., one of the Alaska Native regional corporations established pursuant to the Alaska Native Claims Settlement Act (ANCSA) of 1971. "ANCSA corporations fill that role."

Lost somewhere in the middle is the United States, which has taken on moral obligations of the highest responsibility and trust as part of its government-to-government relationship with tribes and their citizens. But as the legal drama ratcheted up several notches with the filing of yet another CARES Act lawsuit and the appearance of Alaska Native corporate interests in the litigation, it was all but impossible to find out where the most powerful nation in the world -- also known as Indian Country's trustee -- stands.

Have you checked this out? https://t.co/rV5K2I0cdk pic.twitter.com/VKsL90UT27
— #ANVCA (@INFOANVCA1) April 22, 2020

That's because the Trump administration, despite claims of an "all-of-government approach" to the COVID-19 pandemic, failed to file a brief in the case as previously ordered. Just minutes before the document was due at 5pm Eastern on Wednesday, government attorneys said they were going to miss the deadline.

“Defendant regrets the late nature of this filing,” the Department of Justice told Judge Amit P. Mehta, who was nominated to the federal bench by Democratic former president Barack Obama and had intended to use the brief to resolve the case before tribes were told to expect seeing payments in their bank accounts.

The "defendant" here is Secretary of Steve Mnuchin. Under the CARES Act, which President Donald Trump signed into law on March 27, the leader of the Department of the Treasury is charged with one of those pesky obligations -- distributing the $8 billion COVID-19 relief fund.

"Defendant regrets the late nature of this filing": With just minutes before brief in tribal #CARESAct lawsuit was due in federal court, Trump administration says it won’t be able to file on time as ordered. #CoronavirusReliefFundDelay #8BillionQuestions https://t.co/sBfDXh3Mnt pic.twitter.com/7YUwzPpaxV
— indianz.com (@indianz) April 22, 2020

According to government attorneys, however, Treasury still doesn't know how to do that, even after holding two tribal consultations that amassed nearly 3,000 participants earlier this month. A separate call with Alaska -- during which Assistant Secretary for Indian Affairs Tara Sweeney, a former high-ranking Native corporate executive, promised to advance their interests before her fellow Trump administration officials -- doesn't appear to have helped either.

"To me, it's a very simple proposition," Chief Chuck Hoskin Jr. of the Cherokee Nation, who has been leading efforts to ensure tribal governments benefit from the fund, told Indianz.Com. "Direct these dollars to Indian Country."

Ever since the controversy became widely known on April 10 -- a day after the last tribal consultation call and three days before the close of the comment period on the $8 billion -- tribes in the lower 48, their advocates and their allies have been trying to persuade Treasury to resolve the issue. Countless letters have been submitted to Secretary Mnuchin, with members of Congress from both parties -- including the ones who played a direct role in the development of the CARES Act -- calling on the Trump administration to exclude for-profit corporations from the relief fund.

The policy push, which have distracted tribes from vigilant and often grim efforts to slow the spread of the coronavirus in their communities, have resulted in little progress. A status report on Monday said a decision hadn't been made on how to distribute the funds. According to the last-minute filing on Wednesday, Treasury wasn't any closer to an answer.

"Defendant continues to work with dispatch to arrive at a final decision," government attorneys said of Secretary Mnuchin, who assigned his counselor, Daniel Kowalski, as the lead on the $8 billion tribal fund.

In addition to delaying brief in #CARESAct lawsuit, Trump administration hints it will delay $8 billion #CoronavirusReliefFund until April 28, 2020, which would appear to violate law. Indian Country is being forced to wait for #COVID19 funds. #Coronavirus https://t.co/sBfDXh3Mnt
— indianz.com (@indianz) April 22, 2020

Yet the representations of a "final" decision are being complicated by new hurdles in official Washington. In the filing, Treasury warned of delaying the payments until April 28 even though tribes had been told they would start seeing the money starting on April 24.

A delay of four days, especially ones that encompass a weekend, might not seem consequential. But the CARES Act requires the $8 billion to be distributed "not later than 30 days after the date of enactment" of the law.

In other words, not only does the Trump administration want Indian Country to wait for COVID-19 relief, it wants to violate the law at the same time, a continuation of a long line of broken treaties, failed promises and unmet obligations at the hand of the United States.

"Our people have never fully recovered from the punishment and negligence of the United States government in the years following the Great Sioux Wars and the Treaties of Fort Laramie," Chairman Harold Frazier of the Cheyenne River Sioux Tribe said in a sworn declaration on Wednesday. "We were forced to stay on our now much diminished reservations without the promised and treated-for support of the Federal government."

"The supplies came late, if ever, and were often spoiled and contaminated," said Frazier, explaining how delays in fulfilling moral and legal obligations represent a breach of trust. "The legacy of those limitations and broken treaties lives on in the broken towns and food deserts of the modern-day Cheyenne River Reservation, despite our best efforts to improve the quality of life of our people."

The Cheyenne River Sioux Tribe, along with the Rosebud Sioux Tribe and the Oglala Sioux Tribe, filed the second CARES Act lawsuit on Wednesday, separately from the 11 plaintiffs that are part of the first one. Their complaint raised another breach of trust -- a leak of sensitive data that was submitted to Treasury as part of the CARES Act process.

The Sioux tribes and their legal team -- consisting of a team of Native women attorneys, a significant milestone in Indian law circles -- aren't holding back in the fight over the $8 billion. Along with their complaint, they submitted an unspecified document under seal in federal court, a sign of the high stakes at play in the closely-watched litigation, the likes of which haven't been seen since the days of the Cobell trust fund lawsuit over a decade ago.

“At best, the sealed document is a display of the administration’s gross ineptitude and total abandonment of its trust duty,” attorney Nicole Ducheneaux, who is a Cheyenne River citizen, told Indianz.Com “At worst, it was deliberate and retributive and intended to harm federally recognized tribes who are already reeling under the burden of this COVID crisis.”

"At worst, it was deliberate & retributive & intended to harm federally recognized tribes who are already reeling under the burden of this #Covid crisis": Attorney Nikki Ducheneaux statement about sensitive filing in $8 billion #CoronavirusReliefFund case.https://t.co/j47nMaKHNd
— indianz.com (@indianz) April 22, 2020

Still, Treasury's failure to come up with a distribution method is apparently complicated by yet another factor. The court filing made reference to another issue that government attorneys said was holding up Indian Country's desperately needed funds.

"The delay in payment is occasioned, in part, on issues arising from certain of the funding submissions made to Treasury that are unrelated to this case and that must be resolved before payments can issue," the government said on Wednesday.

The case is Confederated Tribes of the Chehalis Reservation v. Mnuchin. It started off with six tribes -- including three from Alaska -- and grew to 11 this week with the inclusion of the Navajo Nation and other plaintiffs.

"The Navajo Nation has been devastated by the COVID-19 pandemic with over 1,200 positive cases and almost 50 deaths," Attorney General Doreen N. McPaul said. "Our Nation’s government is in dire need of support for the critical medical and community needs of our people. We are literally fighting for dollars to save lives."

The Navajo Nation has joined 10 other tribes in #CARESAct lawsuit against Trump administration. At issue is $8 billion in #COVID19 funding and whether for-profit corporations can tap into #CoronavirusReliefFund. #Coronavirus @NNPrezNez @NNVPLizer2019 https://t.co/mcoG0BuTgn
— indianz.com (@indianz) April 23, 2020

The 11 tribal plaintiffs are:

• Confederated Tribes of the Chehalis Reservation (Washington)
• Tulalip Tribes (Washington)
• Houlton Band of Maliseet Indians (Maine)
• Akiak Native Community (Alaska)
• Asa’carsarmiut Tribe (Alaska)
• Aleut Community of St. Paul Island (Alaska)
• Navajo Nation (Arizona, New Mexico, Utah)
• Quinault Nation (Washington)
• Pueblo of Picuris (New Mexico)
• Elk Valley Rancheria (California)
• San Carlos Apache Tribe (Arizona)

The case has drawn widespread attention from tribal and Native interests in the lower 48 and in Alaska. Led by the National Congress of American Indians (NCAI), the All Pueblo Council of Governors (APCG); the Affiliated Tribes of Northwest Indians (ATNI); the Arizona Indian Gaming Association (AIGA); the California Nations Indian Gaming Association (CNIGA); the California Tribal Chairperson’s Association (CTCA); the Great Plains Tribal Chairmen’s Association, Inc. (GPTCA); the Inter Tribal Association of Arizona, Inc. (ITAA); the Inter-Tribal Council of the Five Civilized Tribes (ITCFCT); the Midwest Alliance of Sovereign Tribes (MAST); the National Indian Gaming Association (NIGA); and the United South and Eastern Tribes Sovereignty Protection Fund (USET SPF) will be submitting a friend of the court brief in support of the 11 plaintiffs.

“Some states are beginning to consider loosening restrictions, but not the Navajo Nation. We are relying on the health care experts and the facts as we continue the fight against COVID-19,” said Navajo Nation President Jonathan Nez. pic.twitter.com/6s6wGuAxmi
— Navajo Nation President Jonathan Nez (@NNPrezNez) April 23, 2020

In addition to Ahtna, the Alaska Native Village Corporation Association, which represents 200-plus Native village corporations, and the ANCSA Regional Association, which represents 13 Native regional corporations, submitted a brief on Wednesday.

“As one Alaskan representative testified at the tribal consultations on April 2, 2020, sometimes one Alaska Native organization does not have the funding to build or maintain a service while another may have the capabilities or infrastructure in place to administer it,” the brief reads. “While some communities, villages or tribes may be impoverished, the community of sharing in Alaska among Alaska Native people is incredible and profound, and ANCs play a major role.”

The hearing takes place at 9:30am Eastern on April 23, 2020. Indian Country will be able to listen to the proceeding via telephone.

“Members of the public or media may access the hearing through the courts public access line: (877) 848-7030, access code 321-8747,” Judge Mehta wrote in an order issue after the Trump administration failed to submit a brief on time in the case.

Native Americans represent just 2.8 percent of the population in #Wyoming. Yet they account for 66 percent of #COVID19 deaths as of April 21, 2020, and 12.6 percent of confirmed #Coronavirus cases as of April 20, 2020. @SenJohnBarrasso @SenatorEnzi https://t.co/RNEQ02K6Iz
— indianz.com (@indianz) April 21, 2020

The United States District Court for the District of Columbia is closed to the public as a result of the coronavirus so telephone lines have been provided for each judge.

The court recommends dialing in ahead of time in order to be able to listen.

“Due to technical limits on the number of dial-in listeners who may be accommodated, you may wish to establish your connection at least 10 minutes early to ensure access,” the court states on its website.

The second case is Cheyenne River Sioux Tribe v. Mnuchin. The plaintiffs are the Cheyenne River Sioux Tribe, the Oglala Sioux Tribe and the Rosebud Sioux Tribe, all based in South Dakota.

In addition to Ducheneaux, the legal team on the second case consists of Natalie Landreth, a citizen of the Chickasaw Nation who is a senior staff attorney at the Native American Rights Fund, and Jennifer Bear Eagle, an Oglala citizen who serves as her tribe's in-house counseil.

Who is representing Sioux tribes in $8 billion #CoronavirusReliefFund case? A team of Native women attorneys: Nicole Ducheneaux (Cheyenne River) @bigfirelaw, Natalie Landreth (Chickasaw) @NDNrights & Jennifer Bear Eagle (Oglala). #COVID19 #Coronavirus https://t.co/lbxvdWo4Ne
— indianz.com (@indianz) April 22, 2020