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

Coronavirus relief funds finally going out to Indian Country after long wait

The federal government has distributed about $3.4 billion in long-awaited coronavirus relief funds to tribal nations, according to a declaration filed in court as part of ongoing litigation that has placed the Trump administration at the center of yet another COVID-19 controversy.

The figure was disclosed in a sworn statement from Daniel Kowalski, the high-ranking official at the Department of the Treasury who has been placed in charge of the $8 billion fund that was promised to tribes more than a month ago. Despite the directive from Congress, the Trump administration waited until Tuesday to start sending out some -- but not all -- of the money intended to help Indian nations address the health, economic, social and other impacts of the worst public health crisis to hit their communities in decades.

A sworn declaration from Daniel Kowalski, who serves as Counselor to Secretary of the Treasury Steve Mnuchin, was filed in federal court on May 6, 2020.

"On May 5, 2020, Treasury began making payments to tribal governments," Kowalski said in the declaration.

"As of the morning of Wednesday, May 6, 2020, approximately $3.4 billion of the payments have been made," asserted Kowalski, who serves as Counselor to Secretary of the Treasury Steve Mnuchin, the leader of their department.

The disclosure indicates that Treasury is paying tribes, whose leaders were required to submit bank account information to Treasury as part of a process that remains under dispute, as soon as humanly and technologically possible amid criticism in Indian Country. Some nations acknowledged receipt of their shares of the fund in public statements on Wednesday.

“We applied on April 17 to receive funds from the CARES Act and we are happy to receive word today that we were awarded the funds,” said President Marlon WhiteEagle of the Ho-Chunk Nation, drawing attention to the long wait for the money promised under the Coronavirus Aid, Relief and Economic Security Act, also known as the CARES Act. A news release pointed to a "multi-million dollar" payment to the Wisconsin-based tribe.

Other disclosures were more specific. The Sault Ste. Marie Tribe of Chippewa Indians, based in Michigan, announced receipt of $37.2 million from the coronavirus relief fund.

"The $37.2 million COVID-19 funding will substantially help the tribe," a statement read, highlighting some of the public health emergency costs incurred since the start of the pandemic in March.

On social media, Chairperson Aaron Payment was even more forthcoming. In a post on a personal account, he said his tribe, which is the largest Indian nation east of the Mississippi, received $37,217,392.44, an amount that finally brings a sense of relief to his community as officials prepare for an eventual reopening of essential government services, programs, operations and enterprises.

“My executive team is phenomenal. They are here every step of the way,” said Christine McPherson, who serves as executive director for the tribe.

The Navajo Nation also received its share on Wednesday. The $600 million payment comes as the tribe continues to report a rising number of COVID-19 infections and deaths on the largest reservation in the United States.

"The executive branch advocated strongly through lobbying efforts at the congressional level and through the media and we took the federal government to court to get these funds," President Jonathan Nez pointed out. A day prior, he called the Trump administration's decision to distribute only $4.8 billion of the entire fund as "a slap in the face for Indian Country, once again."

The Navajo Nation is part of group of tribes that are suing Secretary Mnuchin over his handling of the $8 billion coronavirus relief fund. Their lawsuits -- three of them have been consolidated -- show that Treasury was having extreme difficulty in determining how to distribute the money, independent of a bitter dispute over the inclusion of for-profit Alaska Native corporations.

In court filings and in hearings, the Trump administration said payments were going to start on April 28. But after that deadline came and went, another group of tribes sued Mnuchin, seeking the "immediate" distribution of the $8 billion, citing irreparable harm to their communities without the money.

"Together, the increased costs of responding to the COVID-19 emergency and the business and government program losses are threatening the Yurok Tribe's ability to function," Chairman Joseph L. James of the largest Indian nation in California a federal judge on Monday.

"If the tribe does not receive CARES Act, Title V funding in the very near future, the tribe will be forced to reduce and curtail essential emergency related government services putting the health and safety of tribal and community members at risk," James stated in a declaration, as his team was busy responding to one threat, from an eatery that was defying closure orders on the reservation in the northern part of the state.

Kowalski's declaration was filed as part of the latter lawsuit. In his sworn statement, he characterized Treasury's efforts to develop a tribal allocation formula and to distribute the fund as herculean.

"Treasury's dedication to preparing the allocation formula and making payments to tribal governments from the fund is reflected in the number of hours Treasury staff have worked since the enactment of the CARES Act on March 27, 2020, including working late into the evening and over the weekend," Kowalski told the court, even as tribal leaders and their staffs and their own citizens have been carrying out similar round-the-clock work in their communities, some of which have been hit much harder by the coronavirus than others.

"Treasury estimates that approximately 2,200 hours have been spent on these efforts," the affidavit reads. It was submitted around 5pm Eastern, not long before Mnuchin got involved in a spat on social media with a musician.

What was left out of Kowalski's declaration, and an accompanying filing made by the Trump administration, was the actual funding formula, which has been the subject of intense discussion among tribal leaders, Indian Country organizations, lawyers, lobbyists and other experts who have been following the issue over the past six weeks. Treasury's only public document on the matter, titled Coronavirus Relief Fund Allocations to Tribal Governments, merely describes the methodology for making payments.

Of the $8 billion, only $4.8 billion, or 60 percent, is being distributed by Treasury at this time, with a portion being held back for Alaska Native corporations pending resolution of the legal dispute. According to the methodology, the initial round of payments are based on population data maintained by an entirely different federal agency.

"This population data is based on Census Bureau data, and Tribal governments are familiar with it and have already been provided the opportunity to scrutinize and challenge its accuracy," the Treasury document reads, without explaining that that time to challenge the data already passed -- it was on March 30, only three days after President Donald Trump signed the CARES Act into law.

Tribes at the time could not have known that future allocations from the CARES Act would be based on the Indian Health Block Grant Program, whose funding window closed months ago. But Treasury's determination to look elsewhere for guidance is being defended as an act of agency "discretion."

"For population, defendant was able, after due consideration, to refer to a largely preexisting source of data from the Department of Housing and Urban Development and for that reason was able to begin making the first round of payments to Tribal governments on May 5, 2020," government attorneys wrote in a memorandum that cites Kowalski's declaration.

The issues are coming to a head as Indian Country winds down another week of emergency work to protect their people from the coronavirus and its deadly implications. As part of the first CARES Act litigation, 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, a federal judge is holding a scheduling conference at 1pm on Thursday afternoon.

The public can listen to the conference dialing the toll-free public access line at (877) 848-7030. The access code for Judge Amit P. Mehta’s courtroom is 321-8747.

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. About 1,000 people are able to get in on a particular call, a spokesperson previously told Indianz.Com

“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.

A motion hearing in the CARES Act lawsuit, in which the Yurok Tribe is a plaintiff, takes place on Friday afternoon, at 1pm Eastern. The case, , known as Agua Caliente Band of Cahuilla Indians v. Mnuchin, is also being handled by Judge Mehta.

Indianz.Com will provide an update on call-in information, if available, for the Agua Caliente Band hearing.

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