Tribal governments sue for overdue pandemic relief money

WASHINGTON – Federal lawsuits filed by more than a dozen tribes succeeded in preventing Alaska Native Corporations from receiving Covid-19 pandemic relief when a judge entered a court order on April 27 that temporarily barred the U.S. Treasury Department’s disbursal of $8 billion that Congress earmarked for tribal governments in the CARES Act.

“Alaska Native Corporations are state-chartered, for-profit corporations. Congress did not intend for corporations to be eligible for relief funds designed to assist government institutions,” Cheyenne River Sioux Tribal Chair Harold Frazier said in announcing the legal action April 22.

In addition to the Cheyenne River Sioux Tribe, South Dakota plaintiffs include the governments of the Oglala Sioux Tribe and Rosebud Sioux Tribe. From Washington state are the governments of the Tulalip Tribes and the Confederated Tribes of the Chehalis Reservation. From Maine is the government of the Houlton Band of Maliseet Indians.

From Utah is the Ute Tribe of the Uintah and Ouray Reservation. From Alaska are the governments of the Akiak Native Community, Asa’carsarmiut Tribe, Aleut Community of St. Paul Island, Nondalton Tribal Council, Arctic Village Council, and Native Village of Venetie. Other plaintiffs in the lawsuits are the governments of the Navajo Nation, Quinault Indian Nation, Pueblo of Picuris, Elk Valley Rancheria, and San Carlos Apache Tribe.

District of Columbia U.S. Judge Ahmit P. Mehta, who ruled on the suits in consolidation, agreed with Chair Frazier’s statement, determined, “For purposes of this preliminary injunction, the court is persuaded that, presently, no Alaska Native Corporation satisfies the definition of ‘tribal government’ under the CARES Act and therefore no ANC is eligible for any share of the $8 billion allocated by Congress for tribal governments.”

The judge did not rule out the potential for new evidence leading to a later finding that the ANCs are eligible for funding set aside for tribes in the case but noted the corporations might also be eligible for aid through other sections of the CARES Act not designated as tribal government funding.

The CARES Act — Coronavirus Aid, Relief and Economic Security Act — became law on March 27, and provides $150 billion in direct payments specifically to states, tribal governments, territories, and local governments for Covid-19 related expenses incurred through Dec. 30, 2020.

The judge noted that the ruling temporarily blocking the ANC disbursement means tribes may see fewer funds in the short term, if Treasury Secretary Steven Mnuchin “decides to award some money to ANCs and withholds those payments to comply with the court’s order.

“But at least such funds will remain available for later disbursement to federally recognized tribes for coronavirus-related public services, if the court ultimately enters a final judgment in plaintiffs’ favor,” Mehta stated.

Chehalis Tribal Chair Harry Pickernell, Sr., said the ruling “will ensure that tribes and tribal members will reap the intended benefits that Congress envisioned in the CARES Act. This ruling will help tribal governments to lead in the aid and recovery of their people. “Teri Gobin, chair of the Tulalip Tribes said it is “extremely unfortunate” and “disappointing that the administration is promoting a position that equates these for-profit corporations with Indian tribal governments.”

The Great Plains Tribal Chairmen’s Association cheered the “phenomenal” teamwork mustered to bring the case. “Thank you to ALL who did their part to get this favorable decision: tribal leaders, warrior lawyers, tribal staff, tribal organizations …. No one person can do it all,” the association said in a social media post.

U.S. Interior Department Assistant Secretary of Indian Affairs Tara Sweeney’s recommendations to the Treasury Department advised allocating $3-4 billion, about half, of the tribal government CARES Act budget to the ANCs.

This raised hackles around the nation, as Sweeney is an Alaska Native, former employee and lobbyist of the largest of the 13 Alaska Native Corporations, and a current stockholder.

According to the most recent U.S. Census, Alaskan Natives have a population of approximately 106,660, which is only 1.5 percent of the more than 6.7 million Native Americans from 574 federally recognized tribes in the United States today, Frazier pointed out.

The U.S. House of Representatives Committee on Natural Resources called on the Office of Inspector General May 1 for a probe of Sweeney’s activities at the Interior Department, as well as an investigation of the department’s alleged release to ANCs of sensitive information.

U.S. Senate Indian Affairs committee Chair Tom Udall of New Mexico requested Inspector Generals’ investigations of both Treasury and Interior on April 29, in a letter stating, “In the past two weeks, numerous tribal governments and organizations have raised concerns regarding a breach of sensitive tribal data and a senior Trump Administration official’s potential conflict of interest in determining the federal distribution process for the CARES Act $8 billion Coronavirus Relief Fund set aside for tribal governments.”

The National Congress of American Indians had called for an investigation of the data breach on April 18.

Sweeney’s office released a media statement on April 16, defending her as “committed to supporting all American Indians and Alaska Natives.” It said, “To suggest she has personal motives or that she is attempting to divert funds away from American Indians is completely false.”

Following the tribal lawsuits over ANC eligibility for relief funds, six more tribes sued Mnuchin and the Treasury on April 30 for failing to disburse the $8 billion. Congress had mandated release of the funding by no later than April 27.

In this case, plaintiffs are the governments of the Agua Caliente Band of Cahuilla Indians (Calif.), Ak-Chin Indian Community (Ariz.), Arapaho Tribe of the Wind River Reservation (Wyo.), Cherokee Nation (Okla.), Snoqualmie Indian Tribe (Wash.) and the Yurok Tribe of the Yurok Reservation (Calif.)

They called on the U.S. District Court for the District of Columbia to order a new deadline of 24 hours to pay out the money.

“Plaintiffs’ injuries are ongoing, worsening, and irreparable such that if the Secretary does not immediately disburse the emergency relief funds, plaintiffs will be forced to curtail essential governmental services and furlough or lay off a substantial number of employees,” the suit claims.

By press time, no official response was forthcoming. Meanwhile, the Indian Health Service sent a letter to tribal governments on April 23, explaining its allocations of CARES Act emergency relief.

According to the IHS, the final $367 million of $1.03 billion provided to the agency in the act was allocated as follows:

$95 million to support the expansion of telehealth activities; $74 million for medical equipment needs; $26 million to support Tribal Epidemiology Centers and national surveillance coordination activities at IHS Headquarters; $10 million to support sanitation and potable water needs; and $5 million to provide additional test kits and materials to IHS, tribal, and urban Indian health programs free of charge.

Separately the act provided an additional $670 million to be distributed directly to federal, tribal and urban Indian health programs.

“As a reminder, these COVID-19 resources, authorized by the CARES Act, are in addition to the $600 million in funding from the CARES Act that the IHS announced by letter dated April 3, for IHS, tribal and urban Indian health programs,” IHS said.

According to the agency, that and the following other funding is available to Native Americans through Sept. 30, 2021: $134 million in funding from the Families First Coronavirus Response Act, P.L. 116-127, and the Coronavirus Preparedness and Response Supplemental Appropriations Act, P.L. 116-123.

Most everyone in Indian country is eligible for a direct check from the government, as part of the health crisis stimulus package, as well.

(Contact Talli Nauman at talli.nauman@mail.com)

 

 

 

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