'Incompetence': Trump administration warns of delayed COVID-19 relief for tribes

By Acee Agoyo

With a status report due in federal court by the end of the day, the Trump administration is once again making Indian Country wait for the COVID-19 relief they were promised more than two months ago.

Tribes have repeatedly been forced to jump through bureaucratic hoops for the $8 billion set aside for their governments. From hurried consultations and missed deadlines to a massive data breach and questionable payment amounts, the distribution of the money has been flawed to say the least.

"The Cheyenne River Sioux Tribal government is taking every step we can to protect our tribe, but the strain on our human and financial resources is taking its toll," Chairman Harold Frazier said in a declaration submitted in federal court. "We have very few trained personnel who can remain on duty for our healthcare, human welfare, and legal facilities because of the number of personnel who are high risk. Those that remain are working around the clock."

"Because of our efforts up until now, there is no community spread of coronavirus on the Cheyenne River Reservation," Frazier said of his sovereign nation.

Surprise! Surprise..... pic.twitter.com/7asmGGwmLQ
— CRSTChairman (@CRSTChairman) May 27, 2020

But snafus in Washington are posting a threat to the tribe's efforts, Frazier asserted. Even President Donald Trump has been asked to take down coronavirus checkpoints on the reservation in South Dakota.

"Without additional funding, we will not be able to continue to offer the protections and support currently in place for reservation residents," Frazier said in one lawsuit that seeks to prevent for-profit corporate entities from obtaining shares of the $8 billion. "Termination of those efforts will almost certainly cause greater casualties from COVID-19 on our reservation."

The plaintiffs in another lawsuit have been even more harsh in light of the Trump administration's "incompetence," as the tribes said in a court filing. After being told that the a second round of payments would come this week, a late night status update blamed potential delays on "incomplete" and even "incorrect" information submitted to the Department of the Treasury.

“Now, at the eleventh hour, defendant states that there will be still more delay -- delay that will cause further irreparable harm,” the tribal plaintiffs said in their portion of the status report.

“Throughout this process, defendant has moved the goal post, committing to one schedule, only to change to another,” the tribes wrote. “What is worse, now defendant seems to blame the tribes, though the delays – including re-asking for new information than originally requested – plainly stems from defendant’s incompetence.”

Trump Administration: "It's the Tribes' fault we aren't following the law." https://t.co/N2lgTIQu0l
— Bryan Newland (@RealBNewland) May 30, 2020

Or, as President Bryan Newland of the Bay Mills Indian Community, whose government is not involved in the litigation, put it on social media: "Trump Administration: 'It's the Tribes' fault we aren't following the law.'"

Following the law apparently is not easy for Treasury, whose experience in Indian law and policy is limited. It took the Trump administration, for example, more than two years to get the Tribal Advisory Committee up and running only for its advice to have little impact on the manner in which coronavirus relief has been rolled out in Indian Country.

"We have spent the CARES Act funds we received on personal protective equipment consisting of masks, face shields, gloves, thermometers, protective gowns and foot coverings, COVID-19 test kits which still have not arrived, set up quarantine facilities and isolation facilities for the homeless and others who simply cannot go home and related transportation, hazardous pay for essential employees, checkpoint expenses and planning for community policing," Vice President Scott Herman of the Rosebud Sioux Tribe said of the money received under the Coronavirus Aid, Relief and Economic Security Act, also known as the CARES Act.

"This is not enough," Herman said in a sworn declaration submitted in court. He said his tribe recently suffered its first COVID-19 death amid a rise in positive cases on the reservation, which straddles the border between South Dakota and Nebraska.

"We are concerned because both South Dakota and Nebraska are loosening restrictions when it is not safe to do so," the vice president said.

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

Yet the $8 billion coronavirus relief fund isn't Treasury's only CARES Act debacle. For weeks, the department prevented small tribal casino operations from securing loans under the Paycheck Protection Program (PPP), a hugely successful and popular initiative that was designed to keep American businesses afloat.

It took significant pressure from members of Congress from both parties -- South Dakota's delegation among them -- for the Trump administration to change course and ensure the Indian gaming industry was eligible for PPP loans. A handful of tribes based in the state also filed a lawsuit. They relented only after it became clear that Treasury was finally listening.

"Funding for PPP loans is limited and in high demand," the Flandreau Santee Sioux Tribe said last month before asking for the case to be dismissed. "The first round of funding was $349 billion, and it was exhausted in thirteen days. The second appropriation of $310 billion is less than the first round, and is likely to be exhausted just as quickly, if not more so."

"There is no certainty that the government will make any further appropriations for the program," the tribe said in a motion for an injunction at the time. "Therefore, if the tribe is to participate, time is essential. Immediate relief is needed, or the funds will be gone."

The CARES Act was signed into law by President Trump on March 27. It required Treasury to distribute the $8 billion coronavirus relief fund to tribal governments "not later than 30 days" after enactment.

Before Cheyenne River, Rosebud and other tribes went to court, Treasury promised Indian Country that it was going to start sending out the money on April 25 -- ahead of the deadline. But after the litigation began, the department disclosed that it was having difficulties coming up with an allocation method.

On May 5, as Trump was on his way to Arizona for a "roundtable" with a very small group of tribal leaders, Treasury announced that it had come up with a solution, but one in which only $4.8 billion was going to be sent out. A senior aide later spilled the beans on the behind the scenes dealings -- the decision was made so the president could look good.

"He absolutely wanted to be there to award money to the Native American community," Kellyanne Conway, who serves as counselor to Trump, said during an Operation Lady Justice listening session last Tuesday that was marred by technical and logistical difficulties.

Indianz.Com Video: 'It kinda gets frustrating': Indian Country forced to wait again for #Coronavirus relief

The remaining $3.2 billion is supposed to go out this week, a pledge made after a federal judge warned Treasury that "egregious" delays would not be acceptable. But late on Friday evening, government attorneys hinted that the payments might not go out as promised due to "issues" with the data submitted by tribes -- data that was requested only because the Trump administration chose a different path after being so careless with sensitive tribal information that ended up being leaked into the public domain.

“Many of them are, upon initial review, either incomplete or incorrect,” attorneys for Secretary of the Treasury Steve Mnuchin asserted of the latest tribal submissions in the status report.

“Many of them still have not yet been submitted. For these reasons, it is possible that defendant might not make allocation determinations by June 4, or payments by June 5, 2020,” the report added.

SURPRISE!

The Trump administration told a federal judge last night that @stevenmnuchin1 @USTreasury might not distribute $3.2 billion left in #CoronavirusReliefFund to tribes next week as promised.#COVID19 #CARESAct #Coronavirus #WhoCARESAct https://t.co/Vvxak0gMIP pic.twitter.com/PbkvH4L4eY
— indianz.com (@indianz) May 30, 2020

Treasury plans to disclose more information about the supposed "issues" in a status report due by the end of Tuesday. But if there were any problems with the data submitted by the plaintiffs in Agua Caliente Band of Cahuilla Indians v. Mnuchin, they are in the dark because no one from the government said anything about it, despite discussions that took place all last week, an attorney involved in the case told Indianz.Com.

“Since defendant has now clarified the distribution will be further and unconscionably delayed beyond June 5, plaintiff tribes have no choice but to renew their motion for an injunction to respectfully ask this court to mandate distribution," the tribes said on Friday.

The tribes in Agua Caliente Band filed their case to compel the "immediate" distribution of the $8 billion. The plaintiffs are:

Agua Caliente Band of Cahuilla Indians (California)
Ak-Chin Indian Community (Arizona)
Northern Arapaho Tribe (Wyoming)
Cherokee Nation (Oklahoma)
Snoqualmie Tribe (Washington)
Yurok Tribe (California)

Separately, different groups of tribes filed lawsuits in order to prevent Alaska Native corporations from receiving shares of the $8 billion. All three have been consolidated.

The plaintiffs in Confederated Tribes of the Chehalis Reservation v. Mnuchin 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 plaintiffs in Cheyenne River Sioux Tribe v. Mnuchin are:

Cheyenne River Sioux Tribe (South Dakota)
Rosebud Sioux Tribe (South Dakota)
Oglala Sioux Tribe (South Dakota)
Nondalton Tribal Council (Alaska)
Native Village of Venetie (Alaska)
Arctic Village Council (Alaska)

The final case is Ute Indian Tribe of the Uintah and Ouray Indian Reservation v. Mnuchin. The sole plaintiff is:

Ute Indian Tribe (Utah)

Additionally, Alaska Native corporations have been allowed to intervene in the case. Although the Trump administration has determined they are eligible for shares of the $8 billion, their payments are being held back pending resolution of the dispute.

Thumbnail photo by Joyce N. Boghosian / White House

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