Indianz.Com Video: Senate Committee on Small Business and Entrepreneurship - Implementation of Title I of the CARES Act - June 10, 2020

Treasury in spotlight as tribes await COVID-19 relief promised months ago

With tribes still waiting on payments promised by the federal government, Secretary of the Treasury Steve Mnuchin is appearing before Congress for the first time in the COVID-19 era to discuss the Trump administration's response to the crisis.

Mnuchin will testify before the Senate Committee on Small Business and Entrepreneurship at 10am Eastern on Wednesday. The subject of the hearing is Title I of the CARES Act, including the Paycheck Protection Program and the Economic Injury Disaster Loan Program, which have helped thousands of American businesses -- including some in Indian Country -- stay afloat during the pandemic.

"In less than two months, the PPP is supporting the employment of approximately 50 million workers and more than 75 percent of the small business payroll in all 50 states," Mnuchin tells the Republican-led committee. "This is an extraordinary achievement."

Secretary of the Treasury Steve Mnuchin speaks with members of the press , outside of the West Wing of the White House on March 13, 2020. Photo: Keegan Barber / White House

But in his written testimony, Mnuchin makes reference to another program of extreme interest in Indian Country. Tribes have yet to receive all $8 billion promised to them from the $150 billion coronavirus relief fund although the Secretary says "nearly" all of it has gone out.

"We have disbursed nearly all of the $150 billion appropriated for state, local, and tribal governments," Mnuchin observes in his testimony. "In doing so, we have provided recipients with as much flexibility as possible under the statute.”

Under the Coronavirus Aid, Relief and Economic Security Act, also known as the CARES Act, Congress told the Department of the Treasury to distribute $8 billion to Indian Country "not later than 30 days" after the enactment of the law on March 27. The deadline was never met amid repeated broken promises, a leak of sensitive tribal data and even threats from official Washington.

"From the beginning, Treasury has handled this incompetently," attorney Keith Harper, a citizen of the Cherokee Nation and a former U.S. ambassador, told Indianz.Com last week, describing the CARES Act website set up for tribes as an "utter disaster."

"Because of the incompetence, tribes are suffering to a far greater degree than they should be," added Harper, who is representing a group of tribes who have been trying to force the Trump administration to distribute the entire $8 billion.

But instead of paying the entire amount to tribes, Treasury on May 5 announced distribution of $4.8 billion from the coronavirus relief fund. A senior White House official later said the decision was made so that President Donald Trump could look good during a roundtable with tribal leaders in Arizona on that same day.

"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 on May 27 that was marred by technical and logistical difficulties.

The Trump administration subsequently promised payments from the remaining $3.2 billion would go out starting on June 4. The self-imposed deadline was never met either but this time Treasury blamed it on Indian Country, accusing nearly 400 tribes -- almost 70 percent of the federally recognized family of Indian nations -- of submitting information deemed inadequate by the department.

"The Trump Administration is blaming tribes for their own failure to follow the law. Our government is gaslighting every single Tribe," President Bryan Newland of the Bay Mills Indian Community said on social media on the day payments were supposed to have been made.

"Guess who suffers as a result," Newland added. He noted that Treasury contacted his tribal nation "multiple times," claiming the data submitted through a CARES Act website was wrong.

"Why ask us to provide information you already have?" Newland said. "Waste of our most valuable resource: time."

Mnuchin's appearance comes on the day Treasury is submit to file a brief in the case Harper filed on behalf of several tribal governments. A federal judge has already warned the Trump administration that repeated delays in payments will not be "acceptable."

According to government attorneys, however, everything is going fine. After yet another tribe went to court to protest the Trump administration's handling of the $8 billion, Judge Amit P. Mehta was told that Treasury plans to make the final payments on Friday.

Friday happens to be the same day in which Mehta is hearing arguments in a completely different CARES Act debacle. At issue is whether for-profit Alaska Native corporations are entitled to shares of the $8 billion COVID-19 money.

"I've got plenty on my plate to get through for Friday," Mehta said during the hastily scheduled teleconference hearing on Monday afternoon. 'Adding this to the mix is going to be challenging."

"But it is what it is," Mehta said.

Besides the brief already due in Agua Caliente Band of Cahuilla Indians v. Mnuchin on Wednesday, Mehta ordered Treasury to submit one in Prairie Band Potawatomi Nation v. Mnuchin on Wednesday as well. He scheduled a teleconference in the latter case on Thursday.

“We will talk to everybody on Thursday," Mehta said of Prairie Band.

But depending on Treasury's response in Agua Caliente, a hearing might be scheduled in that case as well. The tribal plaintiffs are being represented by Harper, who has asked Mehta to order the distribution of the remaining $3.2 billion by an "immediate and definitive date."

Separately, a hearing in 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 takes place via teleconference at 1pm Eastern on Friday, the same day Treasury has promised to start making payments from the remaining $3.2 billion of the coronavirus relief fund.

From left, Secretary of the Treasury Steve Mnuchin, President Donald Trump and Vice President Mike Pence appear at a White House Coronavirus (COVID-19) Task Force briefing on April13, 2020. Photo: D. Myles Cullen / White House

The hearing in Prairie Band is scheduled for 3pm Eastern on Thursday. The tribe is asking Mehta to order Treasury to take enrollment data into account before making further payments from the fund, accusing the department of shortchanging several Indian nations by using another set of data when it distributed the initial $4.8 billion.

"We do think these pressing issues need to be heard before the funding is actually distributed," Carol E. Heckman, an attorney representing the Prairie Band Potawatomi Nation, said during the teleconference on Monday.

"What essentially happened is that the government announced a methodology for how they are going to proceed and then turned around and changed course without notice to the tribal governments," Heckman added.

"As a result, there was no real, meaningful consultation with the tribal governments, as the statute requires," Heckman said of the CARES Act.

President Donald Trump displays his signature on H.R.266, the Paycheck Protection Program and Health Care Enhancement Act, during a ceremony at the White House which included, from left, Secretary of the Treasury Steve Mnuchin, Sen. Roy Blunt (R-Missouri), Administrator of the U.S. Small Business Administration Jovita Carranza and Rep. Kevin McCarthy (R-California), on April 24, 2020. Photo: Shealah Craighead / White House

The CARES Act put the Paycheck Protection Program, the Economic Injury Disaster Loan Program and the Coronavirus Relief Fund on Treasury's plate. In his written testimony, Secretary Mnuchin acknowledged "some complications" in implementing the PPP, which has been been authorized an additional $310 billion after the initial $349 billion was exhausted in two weeks.

During that time, not every business in Indian Country was able to participate. As the money went dry, small gaming establishments were excluded for weeks -- Treasury eventually changed course after facing pressure from tribes and members of Congress from both parties.

“The PPP is a pro-worker, bipartisan program that has been hugely successful in protecting 50 million employees and helping small business owners endure this crisis," Sen. Marco Rubio (R-Florida), the chairman of the Senate Committee on Small Business and Entrepreneurship, said on Friday after Congress enacted H.R.7010, the Paycheck Protection Program Flexibility Act, to provide Treasury with even more opportunities to help American businesses.

"I will continue to work with the administration, and my colleagues, to ensure the PPP continues to benefit millions of small businesses and workers.” Rubio said.

Besides Secretary Mnuchin, the only other witness at Rubio's hearing is Jovita Carranza, the Administrator of the Small Business Administration. The SBA is charged with implementing the PPP but only got around to consulting Indian Country after loans started going out to the rest of America.

Senate Committee on Small Business and Entrepreneurship Notice
Implementation of Title I of the CARES Act (June 10, 2020)

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