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'An utter disaster': Trump administration threatens to deny COVID-19 funds to tribes

The Trump administration is planning to deny critical COVID-19 relief to dozens and perhaps hundreds of tribes who have been forced to jump through bureaucratic hoops in order to secure the funds they were promised more than two months ago.

If tribes do not submit additional data by 11:59pm Alaska time on Saturday, the Department of the Treasury will not provide them shares of the money that remains in the $8 billion coronavirus relief fund. The deadline is being seen as yet another unnecessary hurdle for Indian Country, where broken promises have sadly been the norm during a pandemic that has claimed lives in vulnerable communities.

“It’s almost like it's a threat,” one tribal leader said on Thursday.

The looming deadline is of particular concern in rural areas of Indian Country, where internet service is spotty in some areas and non-existent in others. Nearly a dozen tribes in just one area of Alaska alone have been unable to submit information to Treasury, despite repeated attempts.

"With limited and temperamental internet service in rural Alaska (which is extreme rural America), tribes have encountered numerous connectivity issues in the process of submitting required information to the Treasury Department’s online portal," Chief Executive Officer Vivian Korthuis of the Association of Village Council Presidents told Indianz.Com on Thursday.

"Tribes have provided the initially requested information, and then the alternate or additionally requested information, which slows down the process," Korthuis said in reference to a saga that began in April, when Treasury asked tribes to submit data that the department ended up ignoring altogether.

"AVCP member tribes have also been cautious about responding to emails requesting additional, sometimes sensitive, information," Korthuis said of the 56 Native nations in the Yukon-Kuskokwim region of Alaska. The Trump administration's careless handling of tribal information resulted in a massive data breach that is under internal investigation.

Tribes in other parts of Indian Country are facing difficulties too. Uploading documents to Treasury's website has in some cases taken numerous tries -- only for the department to come back and claim the information is faulty.

“The Treasury portal is an utter disaster," said attorney Keith Harper, a citizen of the Cherokee Nation and a former U.S. ambassador.

Harper is representing a group of tribes who have been trying to force the Trump administration to distribute the coronavirus relief funds to the communities that need it the most. Although Treasury belatedly paid out a portion of the money last month, the rest has been tied up in one snafu after another in Washington.

"From the beginning, Treasury has handled this incompetently," said Harper. "Because of the incompetence, tribes are suffering to a far greater degree than they should be."

The Trump administration disclosed the extent of the problem in a court filing on Tuesday, after already having extended the deadline for tribal submissions. According to Daniel Kowalski, who serves Counselor to Secretary of the Treasury Steve Mnuchin, 336 tribes -- or nearly 60 percent of the 574 recognized Indian nations -- had submitted data deemed inadequate by the department.

What's more, 57 tribes had yet to submit data at all, he said. As a result, Treasury admitted that it won't be able to distribute the $3.2 billion that's left in the coronavirus relief fund this week as promised.

“Because of the surprisingly large number of incomplete and/or incorrect submissions, Treasury expects that the timeline of its allocation determinations and payments will necessarily be moved back by approximately one week,” Kowalski said in a sworn declaration.

But Harper said Treasury has not explained what is wrong with the submissions. All tribes have received are e-mails telling them that their employment and expenditure data doesn't match up.

"Tribes are being told that they have 'incorrect' or 'incomplete' information but they are not being provided what was 'incorrect' or what was 'incomplete,'" Harper said. "So they have no ability to correct."

Further, Harper questioned how Treasury knows that certain submissions are faulty. So even if some tribes don't submit data by the deadline on Saturday, they could still be paid based on information the department must have access to, he asserted.

"It's striking to me that if Treasury knows the information is incorrect, then that means they have information to compare with," he said.

A status hearing in Harper's case, Agua Caliente Band of Cahuilla Indians v. Mnuchin, was held by teleconference on Wednesday afternoon. During the proceeding, a government attorney told Judge Amit P. Mehta that Treasury was going to give tribes another 48 hours or so to submit the data before the submission window closed.

But as the clock kept ticking, Treasury extended the deadline -- all without much public notice. All that was posted on the department's website was an ominous warning about those unhelpful e-mails being sent to tribes.

"Treasury has contacted by e-mail certain eligible tribal governments regarding incomplete or incorrect information in their submission of additional information regarding tribal employment and expenditures," the website now reads.

What followed was the threat, in bold lettering: "Tribal governments failing to respond to these e-mails by completing or correcting their submissions by 11:59 pm Alaska Daylight Time on Saturday, June 6, will no longer be able to provide such information, As a result, such tribal governments will not receive a payment from the allocation of the Coronavirus Relief Fund based on employment and expenditures with respect to information that Treasury has questioned as incomplete or incorrect."

"Ouch," one tribal advocate said after reading the website. "Hard ball."

The U.S. Department of Treasury in Washington, D.C., is seen from barricades installed amid #GeorgeFloyd protests at the White House. Photo by Indianz.Com (CC BY-NC-SA 4.0)

The Coronavirus Aid, Relief and Economic Security Act, also known as the CARES Act, was signed into law by President Donald 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 a slew of tribal nations went to court, Treasury promised Indian Country that it was going to start sending out the money on April 24 -- 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 week that was marred by technical and logistical difficulties.

FOOD DISTRIBUTION AT TOLANI LAKE CHAPTER 06.04.2020 Today, the Office of the President and Vice President visited the...

Posted by Navajo Nation President Jonathan Nez and Vice President Myron Lizer on Thursday, June 4, 2020

The remaining $3.2 billion was supposed to go out this week, a pledge made after Judge Mehta last month warned Treasury that "egregious" delays would not be tolerated. On Tuesday, Kowalski admitted that the promise was going to be broken.

"Congress intended these funds go out all with all deliberate haste and that's why congress set a specific 30-day deadline," said Harper. "Congress understood the emergency nature of the situation."

"Treasury has unfortunately treated this as an afterthought and has utterly failed to competently and effectively establish a process to get these funds out," he added.

The tribal plaintiffs in Agua Caliente Band will be filing a motion on Friday, seeking to force Treasury to distribute the remaining $3.2 billion. The Trump administration's response is due next Wednesday, but Harper said Indian Country can't wait any longer for COVID-19 relief.

"Now we are approaching mid-June and still a substantial share of $8 billion is not out in an emergency situation," Harper said. "We just can't delay any further."

With the new deadline fast approaching, the Association of Village Council Presidents is working hard to ensure tribes don't miss out on the second round of payments from the coronavirus relief fund. CEO Korthuis is making sure of that.

"Despite these challenges, there has been strong participation from the Yukon-Kuskokwim Delta tribes," Korthuis said. "AVCP’s Tribal Services Department has been in close contact with each of our 56 federally recognized member tribes, to provide assistance, host teleconferences, answer questions, and liaise with Department of Treasury officials."

"Upon request, the AVCP Tribal Services Department has submitted information on behalf of tribes," she added. "Our member tribes rely on us to bridge the gap between expectations of federal agencies and the reality of conducting tribal government business in the Yukon-Kuskokwim Delta.”

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