Trump's transparency? Coronavirus relief formula subject of intense discussion in Indian Country

Friday, May 8, 2020

By Acee Agoyo

Ever since the Trump administration began consultation on the $8 billion coronavirus relief fund promised to tribal governments more than a month ago, one of the biggest questions on Indian Country's mind has been the distribution formula. Everyone basically wants to know much each Indian nation will get.

The allocation method has been the subject of intense discussion among tribal leaders, advocacy organizations, lawyers, lobbyists and other policy experts who have been following the issue over the past six weeks. After the Department of the Treasury repeatedly missed pledges to release a formula, some insight finally emerged on Tuesday morning, as President Donald Trump headed to a roundtable where the failure to release the funds would have seriously undermined his public relations and re-election efforts.

But the methodology described in Coronavirus Relief Fund Allocations to Tribal Governments has stumped some of Indian Country's brightest advocates. After Trump himself disclosed a $600 million payment to the Navajo Nation and a $40 million payment to the Gila River Indian Community, they quickly began collaborating on the best way to determine how the money would be distributed, with several of them updating Indianz.Com along the way.

President Donald Trump signs a Proclamation on Missing and Murdered American Indians and Alaska Natives Awareness Day in Phoenix, Arizona, on May 5, 2020. Photo: Shealah Craighead / White House

Still, despite their work over the past few days, it has been difficult to arrive at a formula that best describes the dollars going to tribal governments. While some results have come close to publicly disclosed amounts, most of the results were either far below or far above the known amounts that have circulated among policy wonks in Washington and beyond.

Absent complete disclosure from Treasury, whose actions are the subject of a slew of lawsuits in federal court, it's not completely possible to find out who is right and who is wrong at this point. A government attorney in fact told a federal judge that the Trump administration is under no "obligation" to release the exact formulation.

"I think Treasury is actually being quite transparent," Jason Lynch of the Department of Justice said during a scheduling conference held by telephone on Thursday afternoon.

Not everyone feels the same way about the situation. Riyaz Kanji, the lead attorney for the plaintiffs in the very first lawsuit that was filed over the coronavirus relief fund, said he's seen "a lack of transparency in the government's disclosures thus far."

With a portion of the $8 billion #CoronavirusReliefFund still going out to tribal governments, a federal judge will hear arguments in another #CARESAct case at 1pm Eastern on May 8, 2020. Call in to listen! #Coronavirus #COVID19
https://t.co/ymyGObtygR
— indianz.com (@indianz) May 8, 2020

Lynch also insisted that "anyone" who wants to know how the money is being distributed can do so with publicly available data. Treasury has described a three-step process in the allocation document, which uses information collected by the Department of Housing and Urban Development to arrive at award amounts from the fund.

"The intention on citing the very HUD data on which they are relying is to make sure that anyone in the public who wants to go and see how much a given tribe is being allotted, that they have the data and the formula to do that," Lynch said on the teleconference. p>

So after gaining critical insight from additional experts, Indianz.Com has come up with a rough justice way to see how the $4.8 billion from the coronavirus relief fund is being distributed to tribal governments.

The starting point is the $4.8 billion. It represents 60 percent of the $8 billion coronavirus relief fund.

60 percent of 8 billion = 0.60 x 8,000,000,000 = 4,800,000,000

Since Treasury is relying on population data from the Indian Housing Block Grant Program, the rough justice formula requires the spreadsheet cited in footnote 9 of Treasury's explanatory document.

https://www.hud.gov/sites/dfiles/PIH/documents/FY%202020%20Estimate%20Allocation%20Single-Multi.xlsx

The IHBG spreadsheet contains three sheets. The population data can be found on the "Needs Data" sheet.

In the allocation document, Treasury explains:

Step 1. Calculate the pro-rata payment for each Tribal government based on single-race and then multi-race data for each Tribe’s IHBG formula area, and use the larger result for each Tribal government.

The "Needs Data" sheet from IHBG contains data for AIAN Persons (American Indian/Alaska Native). The single-race population is Column D. The multi-race population is Column K.

Since Treasury is looking at Column D and at Column K in order to determine how much "any given tribe" is receiving from the fund, as the government attorney said in court, the rough justice formula looks like this:

4,800,000,000 * Column D
4,800,000,000 * Column K

The next part of the rough justice formula is tied to the "pro-rata" description in Treasury's document. This means we need the total number of AIAN Persons for which IHBG grants were awarded.

According to HUD's FY 2020 IHBG Final Allocation, the total number of AIAN Persons for the most recent round of grants was 1,667,860. The figure is found at the bottom of page 14 of the 15-page document.

So the rough justice formula, which now looks like this, will give an estimate of the dollar amount going to any particular recipient:

4,800,000,000 * Column D / 1,667,860
4,800,000,000 * Column K / 1,667,860

According to the allocation document, Treasury is using the "larger result for each Tribal government" so the higher dollar amount will be used.

But keep in mind that this formula does not require calculating the "IHBG formula" for each tribe so it is only a rough approximation of the dollar amounts being distributed. In certain cases, however, it comes rather close to amounts circulating in public.

For those interested in the IHBG formula, it can be found in 24 CFR § 1000.324. It requires additional calculations, which tribal housing staff and tribal housing experts are very familiar with, given their decades of work on the issue.

Indian nations and tribes are the original American sovereigns. But they are finding that matters little as the Trump administration takes the $8 billion #CoronavirusReliefFund in a different direction than promised. #CARESAct #COVID19 #Coronavirus https://t.co/yLlymuS8bD
— indianz.com (@indianz) May 7, 2020

Additionally, the rough justice formula does not work for Indian nations that choose not to apply to the IHBG program, or are unable to do so, or weren't able to for fiscal year 2020. As a result, most of these tribes only receive $100,000 from the coronavirus relief fund unless Treasury was able to find adequate Census data for them -- without their input or say in the matter.

"For Indian Tribes not included in the IHBG population data, HUD provided population figures at Treasury’s request," the allocation document reads.

The same goes for tribes whose AIAN Persons data, either single-race or multi-race, would result in them receiving a payment below $100,000. According to Treasury's document, these Indian nations only receive $100,000:

Step 2. Assign a minimum payment of $100,000 to those Tribal government that would otherwise receive less than that amount under step 1.

Tribal leaders have already raised serious concerns about going with IHBG data, since it's tied to the U.S. Census Bureau. Chairman Donovan White of the Sisseton Wahpeton Oyate said Secretary of the Treasury Steve Mnuchin, who was feuding with a musician as the litigation played out in federal court, is trampling on tribal sovereignty, treaty rights and the U.S. government's trust obligations.

"Rather than count our tribal citizens, Treasury used the U.S. Census that counts those who self-identify as Native American by race or mixed-race to allocate funds," White wrote on Indianz.Com. "The Secretary’s action reflects a fundamental disregard for Indian nations as sovereigns."

A statue of Albert Gallatin, the 4th United States Secretary of the Treasury stands on the north side of the Department of the Treasury in Washington, D.C. Gallatin studied tribal nations and was a personal friend of Cherokee leader John Ridge. His work on Native languages has led some to call him "the father of American ethnology." Photo: dog97209

Treasury also asserted in the allocation document that the "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."

What was left out was that the deadline to challenge the data was on March 30, only three days after President Trump signed the Coronavirus Aid, Relief and Economic Security Act, also known as the CARES Act, into law. At the time, there was no way tribes could have known that the IHBG data was going to impact their share of the $8 billion because Treasury only announced the so-called agreement on Tuesday.

Finally, since Treasury has not disclosed how many tribes or Alaska Native corporations are receiving shares of the $4.8 billion, the final part of the process can only be approximated:

Step 3. For Tribal governments that would receive a payment greater than the minimum, a prorata reduction is made for those amounts above the minimum for each Tribe so that the total amount for all Tribes does not exceed $4.8 billion.

The E. Barrett Prettyman United States Courthouse in Washington, D.C. Photo by Indianz.Com (CC BY-NC-SA 4.0)

During the scheduling conference on Thursday, the Department of Justice promised to provide more information about its coronavirus relief fund efforts at hearing in another CARES Act lawsuit. It takes place at 1pm Eastern.

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.