Arizona National Guard service members delivered personal protection equipment July 22, 2020, to a local distribution center in San Carlos, Arizona, for members of the San Carlos Apache Tribe. The delivery was part of a coordinated one-day mass delivery of more than 450 boxes of PPE items to Arizona Native American tribes around the state of Arizona. Photo: Tech. Sgt. Michael Matkin / U.S. Air National Guard

Bryan Newland: Congress should make sure pandemic relief legislation works for Indian Country

When Congress enacted the CARES Act in March, it appropriated $8 billion to tribal governments through the Coronavirus Relief Fund to assist with pandemic response and recovery. In addition, Congress made other funds available to tribal governments for public health response, education, housing, and other issues.

These funds were a lifeline for many tribal communities, and have provided tribal governments with tools to keep their communities safe.

Nevertheless, distribution of CARES Act funding to Indian Country has been hampered by complications. Examples include:

• Initial confusion over the parameters of the Paycheck Protection Program, which excluded tribally-owned casinos and led to tribal governments laying off gaming employees.

• Excluding tribal fishers in the Great Lakes Region from receiving any relief funding aimed at commercial fishers, and limiting funds for tribal fishers on the West Coast in a way that forced many tribes to work through states to receive their aid.

• Delaying distribution of Coronavirus Relief Funds to tribal governments, relying upon Census Data – rather than tribal enrollment data – to determine how much funding each tribe received, and diverting a large percentage of funds to for-profit companies.

Congress is now considering additional pandemic relief legislation, including aid to tribal, state, and local units of government. As it finalizes this legislation, Congress should correct some of the problems from the CARES Act in providing relief to Indian Country. Most importantly, any new legislation should use clear and explicit language to express Congress’ intent for funds directed to Indian Country.

New legislation should clarify that the Coronavirus Relief Fund is intended for use by the 574 federally recognized tribal governments, rather than for-profit corporations. Very few (if any) tribal leaders are opposed to relief programs for Alaska Native Corporations; nor are we opposed to allowing Tribes in Alaska to contract with ANCs to administer relief programs. Nevertheless, government aid should be directed to governments to take care of citizens (rather than shareholders), and business relief should be directed toward businesses.

In distributing additional Coronavirus Relief Fund dollars, Congress should also direct the Treasury Department to rely upon tribal enrollment data rather than Census data from 2010. Census data skews funding toward tribes in higher population areas, bears no rational relationship to the actual increased costs to tribal governments as a result of COVID, and is completely untethered from the Federal Government’s trust responsibility to Indian tribes and tribal citizens.

Self-identified “Native Americans” on the Census are often not members of any federally recognized tribe, and are not served by tribal governments. This simple formula is easy to audit, and can be paired with baseline funding to each tribe that accounts for their land-base or geographic scope of service.

Congress should also provide more flexibility to tribal, state, and local units of government to use the Coronavirus Relief Fund to keep their governments in operation. Relief programs do little good if there is no one left to staff tribal governments to carry them out. Tribal, state, and local governments should be able to utilize these funds to replace lost revenues to remain operational and coordinate pandemic response efforts.

With respect to other relief programs, like the Paycheck Protection Program and fishers relief, Congress must clarify its language to ensure that the benefits reach all of Indian Country.

There is no good reason to exclude tribal casinos – which fund essential tribal government services and provide jobs in rural communities – from the Paycheck Protection Program. There is no good reason to exclude “freshwater” tribal fishers from relief aimed at treaty and subsistence fishers; and, there is no good reason to force treaty fishing tribes everywhere to beg State governments for federal relief.

Lastly, new pandemic relief legislation must ensure that tribal governments are given enough time to obligate funds for public health and safety infrastructure, without being under the gun to actually spend those dollars on a short timeframe. The delay in getting Coronavirus Relief Fund money to tribal governments cost us precious time to put this relief money to good use, and only increased the pressure to spend that money over the span of a few months. This pressure will either ensure that Tribes make mistakes, or are unable to put funds to the best use before sending them back to the Federal government.

This virus will be with us for the foreseeable future. Allowing tribes to obligate relief funds in a shorter time period, with a medium-range window to get them spent, will ensure that we are investing in our capacity to prevent or stop COVID-19 outbreaks in Indian Country.

Bryan Newland is the Chairperson of the Bay Mills Indian Community (Ojibwe) in northern Michigan.

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