Indianz.Com Video: '8 billion dollars for our tribal governments': #COVID19 and Indian Country

Judge deals major blow to tribes in dispute over delayed COVID-19 relief

Monday, June 29, 2020

By Acee Agoyo

A federal judge has handed the Trump administration a much-needed victory for its coronavirus response efforts, ruling that Alaska Native corporations are entitled to shares of an $8 billion COVID-19 relief fund despite not functioning as tribal governments.

In a 36-page opinion on Friday, Judge Amit P. Mehta dramatically reversed course on a policy issue that has deeply divided Indian Country since the start of the pandemic. In going against a preliminary injunction he imposed two months ago, he concluded that the for-profit entities in Alaska have long met the definition of "tribes" in federal law.

And since the Coronavirus Aid, Relief and Economic Security Act, also known as the CARES Act, references the same definition, the Native regional and village corporations -- there are more than 200 in Alaska -- qualify COVID-19 relief, Mehta observed.

“The court’s decision simply recognizes that ANCs are eligible for CARES Act funds, as Congress intended—no more, no less,” Mehta wrote in the ruling, responding to tribal concerns about the erosion of their sovereignty should the money end up in the hands of the corporate bodies.

The 36-page ruling is a huge blow to tribes, whose leaders argued that the Alaska Native corporations aren't entitled to the #CoronavirusReliefFund because they aren't governments.

👉https://t.co/XmQ3fjOXF7 #CARESAct #Coronavirus #COVID19 pic.twitter.com/G2I0hG8GHC
— indianz.com (@indianz) June 26, 2020

But with an estimated $533 million headed to the Alaska Native corporations, the tribes that brought the litigation aren't accepting defeat. On Monday, they once again joined forces and asked Mehta to put a hold on his ruling while they pursue an appeal to a higher court.

"A delay in the potential receipt of these funds by ANCs would not result in any irreparable harm," a broad coalition of tribes -- including several in Alaska -- wrote in the filing. "In stark contrast, absent an injunction, the Plaintiff Tribes will forever lose the opportunity to receive and spend these funds on the governmental services that Congress intended."

The reaction from Alaska, however, was far different. It's been more than three months since the CARES Act became law and the corporations too have been eager get their hands on the dollars to help their shareholders and others in their communities in the 49th state.

"This disaster assistance will provide immediate support to Alaska’s rural communities suffering from COVID-19 and help repair the economic damage caused by the pandemic," Kim Reitmeier, the executive director of the ANCSA Regional Association, said in a statement to Indianz.Com.

"We continue to believe that when Indian Country, Alaska Native corporations and Villages, and Native Hawaiian organizations align as one, our ability to serve our people is powerful," Reitmeier added, is speaking on behalf of her organization and the Alaska Native Village Corporation Association.

Quyana! Calista Corporation @CalistaCorp staff worked late into the night to ensure tribes in the region are included in the $8 billion #CoronavirusReliefFund. #Alaska #COVID19 #Coronavirus https://t.co/Tne41K2fk9
— indianz.com (@indianz) April 21, 2020

Julie Kitka, the long-serving president of the Alaska Federation of Natives also welcomed the decision. She said it respects not only tribal sovereignty -- there are 229 recognized Indian nations in the state -- but also the unique role the corporations serve in ensuring the first Americans' needs are met.

“Alaska has a unique history of tribal self-governance and Native self-determination,” Kitka, who hails from the Chugach region of the state, said in a news release. “Our people have never understood these concepts to be mutually exclusive. Alaska Natives are pleased Judge Mehta reached the same conclusion, particularly during the COVID-19 global health pandemic.”

Alaska's all-Republican delegation to Congress celebrated as well. Sen. Lisa Murkowski (R-Alaska), Sen. Dan Sullivan (R-Alaska) and Rep. Don Young (R-Alaska) said the judge simply upheld a long-settled interpretation of the meaning of "Indian tribe" in federal law.

“When we passed the CARES Act and included $8 billion for tribes within the $150 billion Coronavirus Relief Fund, we fought hard to ensure all tribes were included in the final bill. We also made sure that every Alaska Native entity would be able to expend the available resources necessary to meet the unprecedented public health crisis by including the broad, typically-used, 45-year-old definition of “Indian tribe” which includes Alaska Native Corporations,” the delegation said in a news release.

“The statute is unequivocal on this point, and we appreciate that the District Court judge now read the law as we wrote it so that Alaska Native communities across the state have the option to use all vehicles available," Murkowski, Sullivan and Young added.

The Nelson Island School Dancers from Toksook Bay perform at the opening of the annual Alaska Federation of Natives conference in Anchorage on October 18, 2018. Photo by Indianz.Com (CC BY-NC-SA 4.0)

As of late Monday afternoon, Mehta hadn't ruled on the tribal request for a stay in the case. Absent some sort of action from the judge, or by the D.C Circuit Court of Appeals, nothing prevents the Trump administration from sending the payments to the corporations as soon as possible amid a slew of debacles that have characterized its handling of the $8 billion coronavirus relief fund.

Though the CARES Act required the Department of the Treasury to distribute the money "not later than 30 days" after its enactment on March 27, Secretary Steve Mnuchin missed the deadline to do so. He waited until May 5 to make an announcement and it only came because President Donald Trump was on his way to a tribal roundtable in Arizona, a senior White House official later confirmed.

"He absolutely wanted to be there to award money to the Native American community," Kellyanne Conway, who serves as Counselor to Trump and is one of the most prominent and outspoken members of his administration, said during an Operation Lady Justice listening session on May 27 that was marred by technical and logistical problems.

Despite the announcement, Treasury in early May decided to distribute just $4.8 billion to recipients, using criteria that hadn't been discussed during two tribal consultation calls regarding the coronavirus relief fund. No one who participated in the sessions, including Daniel Kowalski, who serves as Counselor to Mnuchin, nor Assistant Secretary for Indian Affairs Tara Sweeney, who is the government official with the most responsibilities to tribes and their citizens, mentioned the use of Indian housing population data.

No one from the administration brought up Native corporations either, much less Sweeney, who is a former high-ranking executive at the wealthiest entity in the state. But there appeared to be no need to do so -- Kowalski engaged in separate talks with Alaska's powerful Congressional delegation, yet tribes were never informed, documents filed in court show.

The result was tribes being kept in the dark until after the second consultation call call concluded. By that time, Murkowski, Sullivan and Young had already followed up their April 2 meeting with Kowalski with an April 6 letter informing him of a policy view that Treasury would later adopt, the documents show. For good measure, they sent another missive on April 14 to make sure the administration was listening.

The outcome was outrage. Tribes felt blindsided by the inclusion of Alaska Native corporations in the $8 billion coronavirus relief fund, which they continue to be believe should be restricted only to sovereign governments.

"The fact is that it feels like a robbery happening in broad daylight," Chief Chuck Hoskin Jr. of the Cherokee Nation told Indianz.Com at the time, "with Alaska Native corporations poised to take funds that are meant for Indian Country tribal government operations, to extend us a lifeline."

"The fact is that it feels like a robbery happening in broad daylight": Chief Chuck Hoskin Jr just told https://t.co/0yYFAWzrcJ that Cherokee Nation will do what it takes to ensure $8 billion #Coronavirus relief fund goes to tribal governments--not corporations. @ChuckHoskin_Jr pic.twitter.com/tzcHQNQOJd
— indianz.com (@indianz) April 15, 2020

But that wasn't the only setback tribes were dealt by the U.S. government, which has taken on moral obligations of the highest responsibility and trust to the first Americans, a unique political and legal relationship that has been repeatedly affirmed in the courts. Mnuchin, who has had little direct experience with Indian issues, repeatedly missed targets to make additional payments from the $3.2 billion that was left in the COVID-19 fund after the initial round, all while threatening to deny them money if they didn't jump through the additional hurdles Treasury was setting up for them.

"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 June 4 -- the day Treasury had promised to send out the second round.

Only that never happened. It took another court order Judge Mehta to get the money out.

"We got our money late as you all know, weeks late," President Jonathan Nez of the Navajo Nation said during one of the tribe's frequent COVID-19 town halls earlier this month. "It was just sitting there at the Department of the Treasury."

"The tribes around the country had to come together and file a lawsuit," Nez added -- the litigation included the Navajo Nation, which is one of the two largest tribal governments in the U.S. The other one, the Cherokee Nation, went to court as well.

"It took 8 weeks," Nez said bluntly as his government continues to work night and day to prevent the coronavirus from spreading on the largest reservation in the U.S.

NAVAJO NATION RECEIVES TOTAL $714,189,631.47 IN FEDERAL CARES ACT FUNDING (6/28/20) WINDOW ROCK, Ariz. — The Navajo...
Posted by Navajo Nation Council on Sunday, June 28, 2020

Even then, Treasury just last week admitted that it was still having trouble meeting its obligations under the CARES Act. As part of the case in which the Cherokee Nation is a part, government attorney said the department still hadn't paid eight tribes from the first round that was announced back in early May.

According to a notice filed in court, a ninth tribe was finally paid on June 24, some 90 days after the CARES Act became law. A tenth Indian nation was set to be paid on June 25, government attorneys said.

As for the eight tribes still waiting, the Department of Justice said "payment issues" have prevented them from receiving COVID-19 relief. "Specifically, Treasury does not yet have, despite considerable outreach efforts, complete payment-information submissions from those tribes," the notice reads.

Besides the numerous delays, Treasury has been hit with two lawsuits that have challenged its use of Indian housing population data to make payments from the first round of the coronavirus relief fund. The Prairie Band Potawatomi Nation, based in Kansas, and the Shawnee Tribe, based in Oklahoma, were underpaid because the department failed to take their citizenship into account, their lawsuits allege.

So not only did some tribes get paid from $8 billion #CoronavirusReliefFund using Indian housing population twice their enrollment, others got less because @HUD_ONAP data is not consistent across Indian Country. See: Prairie Band case. #CARESAct #COVID19 https://t.co/pfZ1WIdqtH
— indianz.com (@indianz) June 28, 2020

The Prairie Band Potawatomi Nation missed out on an additional $7.65 million, the complaint alleges. The Trump administration did not dispute the figure -- Treasury in fact withheld a large sum from Indian nations in the event the case went in favor of the tribe, which didn't happen. An appeal is pending in the D.C. Circuit following Judge Mehta's refusal to grant an injunction to the tribe.

The Shawnee Tribe was placed in a different and more dark situation by the Trump administration. Treasury accepted an Indian housing population of zero for the tribe, essentially terminating the Shawnees for the purposes of a payment from the coronavirus relief fund.

"Zeroing out the population of the Shawnee Tribe, then refusing the fix this obvious false data, resulted in a decision that is an abuse of discretion, amounts to a clear error of judgment, and is unbounded by the facts and reasoned decisionmaking," a motion for a temporary restraining order reads.

As a result of Treasury's action, the Shawnees only received $100,000 from the first round of payments. Had enrollment been taken into account, the tribe alleges it should have received $12 million.

Shawnee Tribe v. US Treasury;
Rep. Markwayne Mullin and 12 congressional leaders author a letter supporting tribal nations against faulty Treasury formulation. pic.twitter.com/djWspi1LIF
— Chief Ben Barnes (@ChiefBarnes) June 22, 2020

"When Congress worked out the CARES Act and made specific provisions for Indian Country, it was never the intent for any tribe to be excluded or omitted," several Republican lawmakers led by Rep. Markwayne Mullin (R-Oklahoma), a citizen of the Cherokee Nation, told Secretary Mnuchin in a May 28 letter.

"In fact, great strides were made to ensure Indian Country was not left behind or excluded," the letter continued. Rep. Tom Cole (R-Oklahoma), a citizen of the Chickasaw Nation, was another signatory.

Despite the bipartisan support tribes have received throughout the course of the drama, there is little agreement in Washington on a path forward. Democrats who control the U.S. House of Representatives earlier this month passed H.R.6800 , a bill known as the Heroes Act, which would not only bring another $20 billion to tribes, it would ensure Alaska Native corporations can't get additional funds.

"The Coronavirus Relief Fund was intended to help Tribes survive this pandemic, not provide relief to corporations, Rep. Ruben Gallego (D-Arizona), the chairman of the House Subcommittee for Indigenous Peoples of the United States, said in a post on social media on Saturday.

The Coronavirus Relief Fund was intended to help Tribes survive this pandemic, not provide relief to corporations.

The Heroes Act would stop this from happening again & provide more needed relief for Tribes - which is why @senatemajldr needs to stop stalling and pass it ASAP. https://t.co/6YUb99s4eq
— Ruben Gallego (@RepRubenGallego) June 28, 2020

But the measure has not been taken up in the U.S. Senate, which is in Republican hands. Gallego blamed the inaction on the rival party.

"The Heroes Act would stop this from happening again & provide more needed relief for Tribes - which is why @senatemajldr needs to stop stalling and pass it ASAP," he said in reference to Sen. Mitch McConnell (R-Kentucky), the Republican Senate Majority Leader.

The Department of the Treasury did not return a request for comment about the ruling or its plans to distribute COVID-19 relief to Alaska Native corporations. During the litigation, government attorneys said $162.3 million had been set aside from the first round of payments.

While the amount only accounts for 3.4 percent of the $4.8 billion, the shares going to the 200-plus Native corporations far outpace those going to the 229 recognized tribes in Alaska. Government attorneys indicated only about $38 million went to these Indian nations from the first round of the coronavirus relief fund.

Based on representations made in court more recently, Indianz.Com calculated $371 million will be going to the for-profit Native entities from the second round. The figure is based on an amount that Treasury temporarily withheld from tribes as a result of the Prairie Band case.

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 amount was $679 million, Treasury later confirmed. A government attorney said it represented 24 percent of the tribal government portion of the remaining $3.2 billion.

Working backward, Indianz.Com arrived at $371 million. The figure was further confirmed by examining the Daily Treasury Statement from June 15, which showed that $2.829 billion was set aside for tribes, out of the $3.2 billion. ($3.2 billion - $2.829 billion = $371 million).

Altogether that leaves more than $533 million for the Alaska Native corporations. That accounts for 6.7 percent of the entire $8 billion coronavirus relief fund.

"Alaska Native Corporations are proud of the cultural and tribal identities that define us, and we work tirelessly to support tens of thousands of Alaska Natives every day," Reitmeier of the ANCSA Regional Association said in her statement to Indianz.Com.

The first CARES Act lawsuit that hit the court docket was Confederated Tribes of the Chehalis Reservation v. Mnuchin which focuses on the Alaska Native corporation issue. The plaintiffs 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)

Chehalis was consolidated with two similar CARES Act complaints. 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)

Another CARES Act case, Ute Indian Tribe of the Uintah and Ouray Indian Reservation v. Mnuchin, also was consolidated. The sole plaintiff is the Ute Indian Tribe, based in Utah.

Separately, a group of tribes went to court to address the delayed payments. The plaintiffs in Agua Caliente Band of Cahuilla Indians are:

Agua Caliente Band of Cahuilla Indians (California)
Ak-Chin Indian Community (Arizona)
Arapaho Tribe of the Wind River Reservation (Wyoming)
Cherokee Nation (Oklahoma)
Chickasaw Nation (Oklahoma)
Choctaw Nation (Oklahoma)
Snoqualmie Tribe (Washington)
Yurok Tribe (California)

All of these cases were assigned to Judge Mehta, who sits on the bench for the United States District Court for the District of Columbia. He also was given Prairie Band Potawatomi Nation v. Mnuchin, the dispute about underfunding.

As for Shawnee Tribe v. Mnuchin, it was filed in the U.S. District Court for the Northern District of Oklahoma.