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'We do need additional dollars': Tribes won't let up in fight over COVID-19 relief

Alaska Native corporations will continue to wait for more than a half-billion dollars in COVID-19 relief while a bitter legal dispute heads to a higher court as tribal nations press policy-makers for additional aid.

Despite winning a significant ruling in their favor almost two weeks ago, the for-profit entities have not seen a penny from the $8 billion coronavirus relief fund. For unexplained reasons, the Trump administration never paid them after the victory. A new court order prevents that from happening for the foreseeable future.

"We are disappointed to see the distribution of the CARES Act funds our communities badly need and rightfully deserve delayed yet again," Kim Reitmeier, the executive director of the ANCSA Regional Association, told Indianz.Com on Tuesday after the latest decision was issued by a federal judge in the nation's capital.

On June 26, Judge Amit P. Mehta ruled that the Native corporations -- there are more than 200 in Alaska -- are entitled to benefit from the Coronavirus Aid, Relief and Economic Security Act, also known as the CARES Act. The decision was a major blow to Indian nations, whose governments were repeatedly promised payments, only to see the Trump administration change course more than once, resulting in delays in funding.

"CARES Act funding did not fully reach the Navajo Nation until three months after Congress intended," President Jonathan Nez said of his tribe's lengthy wait during a virtual Congressional hearing on Wednesday.

Alaska Native corporations (ANCs) have been in the same boat, except their wait for COVID-19 relief will last even longer. Although tribes intend to pursue a speedy appeal in the case, the judge's order anticipates maintaining the current situation -- meaning no payments from the Department of the Treasury -- for another two months.

As the litigation proceeded, more than $533 million has been set aside for the ANCs, an amount Indianz.Com calculated based on representations made in court by government attorneys. The figure is further confirmed by the Daily Treasury Statement, whose latest issue, from July 6, shows less than $534 million in the coronavirus relief fund.

"These funds are intended to help ANCs bear the heavy costs of combatting the COVID-19 pandemic for Alaska Native people, and they are no less urgently needed than the funds allocated to tribes across the nation," Reitmeier said. "ANCs in Alaska provide a wide range of critical services to Alaska Native people, and the pandemic has only heightened the need for such services in light of the remoteness and difficult living conditions of many Alaska Native villages."

Some members of Congress are clearly disturbed the lack of payments as well. Sen. Lisa Murkowski (R-Alaska) said the tribal CARES Act lawsuit was to blame for the Trump administration's stonewalling.

"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 last Wednesday.

What Murkowski left out of the record was Washington's mishandling of the $8 billion fund. Although more than a dozen tribes, including the Navajo Nation, had indeed gone to court before payments were made, government attorneys admitted that Treasury was having trouble determining how to allocate the money, despite having been given a month to do so by the CARES Act.

"The delay in payment is occasioned, in part, on issues arising from certain of the funding submissions made to Treasury that are unrelated to this case and that must be resolved before payments can issue," the Department of Justice said in a court filing on April 22 that promised payments "no sooner than Tuesday, April 28, 2020."

The deadline -- like every other promise made to Indian Country throughout the CARES Act process -- was quickly broken. As a result, the 574 federally recognized Indian nations received their shares of the fund in three different payments, all of them arriving behind schedule.

The first payment came after President Donald Trump attended a roundtable with a small group of tribal leaders on May 5, a week past the initial deadline in the CARES Act. Kellyanne Conway, one of the president's most prominent and outspoken aides, later confirmed that the announcement was made in order for her boss to look good during his visit to Arizona that day.

"He absolutely wanted to be there to award money to the Native American community," Conway, who serves as Counselor to Trump, said during a May 27 listening session for Operation Lady Justice, the administration's initiative to address the missing and murdered.

The next payment was late too. Only this time around, Treasury blamed tribes for the delay, threatening to withhold money from dozens and even hundreds of Indian nations, all because the department couldn't figure out how to allocate what was left in the relief fund following the first round.

"While mandated by Congress to be disbursed within 30 days to address the emergency needs of Indian Country due to the coronavirus, the full disbursement of those funds was delayed by up to two months and confidential data provided to Treasury by tribes was leaked to the public," Chairman Christine Sage of the Southern Ute Tribe told members of the House Committee on Energy and Commerce on Wednesday.

The result was two different payments, a week apart, in the middle of June. All because Treasury unilaterally withheld money from tribes, an action that required the judge to issue another rebuke of the Trump administration.

"This is all vindictive," asserted attorney Keith Harper, a citizen of the Cherokee Nation and a former U.S. ambassador whose firm brought a different CARES Act lawsuit on behalf of tribal governments.

According to tribal leaders, advocates and key members of Congress, the Trump administration did not want the $8 billion tribal relief fund included in the CARES Act. Negotiations were led on behalf of the White House by Secretary of the Treasury Steve Mnuchin -- the Cabinet official who was eventually charged with distributing the $8 billion that almost never happened.

Republican leaders in the U.S. Senate did not want the tribal set-aside either, according to key lawmakers from both parties. They said they had to fight tooth and nail to ensure the money wasn't lost before final passage of the bill in late March.

"I won't bore you with all the knife-fighting that had to happen here," Sen. Martha McSally (R-Arizona), a member of the Senate Committee on Indian Affairs, said on a town hall hosted by several Indian organizations before the bill was signed into law, "but I was literally presiding on the floor of the Senate the night that the deal was announced and this fund was still in jeopardy."

With the coronavirus continuing to impact American Indians and Alaska Natives at disproportionate levels, the legal dispute over the CARES Act moves to the D.C. Circuit Court of Appeals. The tribal plaintiffs have until July 15 to initiate an expedited review of the decision that went in favor of the ANCs and the Trump administration.

"A delay in the potential receipt of these funds by ANCs would not result in any irreparable harm," the tribal coalition said in a filing on June 29. "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."

From there, the dispute will be in the hands of the D.C. Circuit, which is considered the second-most important judicial body in the land, behind the U.S. Supreme Court. But the case won't be the only CARES Act matter up for review.

The Prairie Band Potawatomi Nation is also asking the D.C. Circuit for COVID-19 justice. At issue in the tribe's lawsuit against Secretary Mnuchin is whether it was underpaid from the first round of payments of the coronavirus relief fund.

The mere existence of the complaint prompted Mnuchin to withhold $679 million from all tribes as it disbursed the remainder of the fund. The clear implication was that Treasury might have to make adjustments to some of the earlier payments, a glaring acknowledgment that some Indian nations were indeed underpaid.

The $679 million happens to be greater than the $533 million that would go to the Alaska Native corporations, an indication that Indian nations, as they assert in the litigation, don't want to lose the opportunity to claim it on behalf of their citizens. Another pending lawsuit in federal court, filed by the Shawnee Tribe, raises the same issue of underpayments.

On the policy side, tribes continue to press the United States to recognize that their needs -- as usual -- haven't been fully met, despite the existence of the trust and treaty responsibility. Fawn Sharp, the president of the National Congress of American Indians, voiced that message loud and clear at the hearing on Wednesday.

"We've heard there's a belief that tribes don't need additional funding," Sharp, who also serves as president of the Quinault Nation, told lawmakers.

"It's been nearly three months since these dollars were appropriated by Congress and we are just now starting to see the bulk and the remaining balance of the fund," she said of the delay in distributing the $8 billion to Indian Country.

An additional $20 billion is on the table, but it's tied up in partisan disagreements on Capitol Hill. The Democratic-led U.S. House of Representatives easily approved H.R.6800, also known as the HEROES Act, last month. The bill has gone nowhere in the Senate, which is under Republican control.

Of the high rates of COVID-19 infections and deaths in Indian Country, Sharp noted: "We are among the most vulnerable, we are disproportionately impacted and it's an outrage that, at this point, we are still do not have the funding that Congress appropriated three months ago,"

"I want to make it very clear," Sharp concluded, "that there is a need in Indian Country and we do need additional dollars."

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