Senate Committee on Indian Affairs: Senate Committee on Indian Affairs - Oversight Hearing on “Evaluating the Response and Mitigation to the COVID-19 Pandemic in Native Communities” and Legislative Hearing to Receive Testimony on S. 3650 - July 2, 2020

Republican lawmaker finds way to blame tribes for Trump's delay in COVID-19 relief

A bitter dispute over $8 billion in COVID-19 relief for Indian Country continues to simmer on Capitol Hill, with some lawmakers blaming tribes for the Trump administration's mismanagement of the much-needed funds.

The Department of Treasury repeatedly missed deadlines to get the coronavirus relief fund out to the communities that need it the most. The agency's broken promises resulted in tribes waiting more than 80 days to receive complete payments, long after states and local governments were paid.

But Sen. Lisa Murkowski (R-Alaska) said "litigation" was the cause for the delays. Her view of the situation absolved Secretary Steve Mnuchin of his failure to comply with the Coronavirus Aid, Relief and Economic Security Act, also known as the CARES Act.

"It's unfortunate that we saw litigation delay the initial distributions for these funds and are still delaying some portions of the CARES Act funding," Murkowski said at a hearing of the Senate Committee on Indian Affairs on Wednesday afternoon.

Yet Murkowski wasn't the only committee member with a different take on the debacle. Sen. Brian Schatz (D-Hawaii) wondered why American Indians, Alaska Natives and even Native Hawaiians weren't able to "hang together" during a policy crisis that was created entirely by Washington.

Like his late to the union colleague, Schatz glossed over the Trump administration's delays in making payments to Indian Country. He instead decried what he called an "unfortunate situation of the deployment of the funds to Alaska being delayed as a result of litigation and a misinterpretation of the statute."

"We should remember that we all must hang together -- Democrat and Republican, Native Hawaiian, Alaska Native and American Indian," said Schatz.

Indianz.Com Audio: Senate Committee on Indian Affairs - Oversight Hearing on “Evaluating the Response and Mitigation to the COVID-19 Pandemic in Native Communities” and Legislative Hearing to Receive Testimony on S. 3650 - July 2, 2020.

Other committee members, however, were eager to highlight the failures they see in the nation's capital. Sen. Tom Udall (D-New Mexico) said a lack of tribal consultation was at the heart of the Trump administation's mishandling of the coronavirus relief fund.

"Congress and the administration must take a good, hard look in the mirror and see where we are still falling short," said Udall, who serves as vice chair of the legislative panel. "That includes the Treasury Department, which just barely got critical tribal CARES Act funding out the door, 50 days beyond the statutory deadline."

"That's twice as long as Congress intended, causing what a court determined to be 'irreparable harm' to tribal governments in their fight against COVID-19," added Udall. The CARES Act deadline was 30 days, which Treasury missed altogether.

Sen. Tina Smith (D-Minnesota) also said Washington was to blame for the debacle. Though she welcomed Schatz's call for bipartisanship in carrying out the federal government's trust and treaty responsibilities, she wondered why a key player was missing from the hearing.

"We won't have an opportunity to speak with anybody at Treasury today about Treasury's implementation and disbursement of the funds," said Smith, who noted that Native Americans "had to wait so long" to receive the money promised for their communities.

"I hope that we'll have the opportunity to talk to somebody at Treasury to better understand what happened and how can make sure that it doesn't happen in the future," Smith added.

Officials from Treasury have testified before the committee in the past. But a Secretary of the Treasury has never done so, nor have any high-ranking political appointees at the department.

Secretary Mnuchin, however, appeared before the Senate Committee on Small Business and Entrepreneurship last month. He was asked about the delays in payments from the $8 billion coronavirus relief fund and seemed unsure when the final payments were going to be distributed.

"Tomorrow," was Mnuchin's first response on June 10 when asked by Sen. Maria Cantwell (D-Washington), who is also a member of Indian Affairs and was the first woman to serve as its chair.

"Actually, maybe Friday," Mnuchin said. "I apologize. It's either tomorrow or Friday."

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

It turns out Mnuchin was still wrong. Despite securing a court order that paved the way for final payments to be made, tribes didn't start seeing the COVID-19 relief until the following Monday, June 15.

Even then, it wasn't the complete amount. Treasury unilaterally withheld a large sum from tribes, an action that prompted a federal judge to issue yet another court order, this one
requiring distribution of all the money as promised by the CARES Act.

“Congress instructed the Secretary to make payments within 30 days; as of today, the Secretary is at 80 days and counting,” Judge Amit P. Mehta wrote on June 15.

Almost every single tribe has since received their full shares from the coronavirus relief fund. The first round went out on May 5 -- past the deadline -- while the remainder was received during the week of June 15.

President Gabe Aguilar gives Video Update #14 of COVID-19 tribal efforts and other tribal updates. JUNE 17, 2020

Posted by Mescalero Apache Tribe on Wednesday, June 17, 2020
Mescalero Apache Tribe: >President Gabe Aguilar #COVID19 Update

Due to the uncertainty, many tribes weren't able to properly plan for the use of their shares of COVID-19 relief. Some are now only getting around to allocating resources for welfare programs and social services to help their citizens address the health and economic impacts of the pandemic.

"This year's going to be hard times for the Mescalero Apache Tribe," President Gabe Aguilar said in an update to his people on June 17.

Aguilar is among the many in Indian Country who have supported litigation that addresses a key issue in the Trump administration's COVID-19 response: whether Alaska Native corporations are entitled to shares of the $8 billion relief fund. Mehta initially sided with tribes and barred Treasury from making payments to the for-profit entities.

But Mehta dramatically changed course last Friday and ruled that more than 200 Alaska Native regional and village corporations can receive payments because they meet the definition of "tribes" that is referenced by the CARES Act. He rejected concerns that doing so would undermine the sovereignty of federally recognized Indian nations.

"Our sovereignty means everything," Aguilar said. "We have to protect ourselves."

Nearly a week later, however, Alaska Native corporations have yet to see a single penny. It's not clear exactly why, as Treasury currently faces no legal impediment to getting the money out to the regional and village entities.

"This litigation has greatly harmed the Ahtna people by delaying the release of the vital CARES Act funds," Ken Johns, the chairman of the board for Ahtna, Incorporated, one of the 13 Alaska Native regional corporations, said in a declaration filed in court on Wednesday.

Treasury has not explained why it has chosen not to distribute COVID-19 relief to the corporations. In a notice also filed on Wednesday, government attorneys would only say that they will inform the court ahead of time in the event the Trump administration plans to issue payments.

"Consistent with the court’s order, Defendant will provide at least one business day’s notice before disbursing any CARES Act funds designated for Alaska regional or village corporations," the Department of Justice wrote.

The court's order in question was issued by Mehta on June 29 -- five days after his ruling on the Alaska Native corporate issue. The notice does not explain why Treasury has not taken any steps in the interim to pay the entities.

But the tribal governments that brought the case 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."

As of late Thursday afternoon -- a day before the court will be closed due to the July 4 holiday -- Mehta hadn't issued a ruling on the tribal request.

The delay is not being taken well in Alaska. Some corporations have intervened in the lawsuit in order to protect their interests as they protect their shareholders and communities from the spread of the coronavirus.

“Each day the CARES Act funds allocated for ANCs is delayed is another day that the Alaska Native people they serve are not fully equipped with the tools to help their communities respond to COVID-19," the ANCSA Regional Association and the Alaska Native Village Corporation Association said in a statement.

"Many of our Alaska Native communities lack access to road systems and are reliant on air carriers that have been forced to scale back or cease operations," the two organizations said. "These communities are in desperate need of bare essentials. The CARES Act Title V funds will pay for critical services needed to combat the devastating effects of this public health emergency."

"We urge the court to allow the Secretary of Treasury to discharge the remaining Title V obligations and deliver the ANC-allocated funds immediately," they added, citing the section of the CARES Act that authorized the coronavirus relief fund.

More than $533 million has been set aside for the Alaska Native corporations, Indianz.Com has previously reported. The figure is based on representations made in court by government attorneys and is confirmed by the most recent Daily Treasury Statement

According to the July 1 statement, $149.466 billion has been paid out of the coronavirus relief fund. The full amount provided by Congress was $150 billion so that leaves less than $534 million left -- the amount set aside for the Alaska Native corporations.

The CARES Act became law on March 27. It required Treasury to distribute the fund "not later than 30 days" after its enactment.

Treasury missed the late April deadline. Although litigation had indeed been initiated by that time, Treasury admitted that it was having trouble coming up with an allocation method for the fund.

A week later, on May 5, Secretary Mnuchin announced that $4.8 billion, representing 60 percent of the fund, was going out. It took another month for the remaining $3.2 billion to be allocated -- again following repeated delays that had nothing to do with the litigation, Treasury officials and government attorneys have said over the last few weeks.

Senate Committee on Indian Affairs Notice
Oversight Hearing on “Evaluating the Response and Mitigation to the COVID-19 Pandemic in Native Communities” and Legislative Hearing to Receive Testimony on S. 3650 (July 1, 2020)

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