Tribes rush to respond to new coronavirus emergency created by Trump administration

Monday, April 13, 2020

By Acee Agoyo

Following an inquiry placed on the evening of April 10, 2020, the Department of the Interior on Monday morning provided a statement about the $8 billion fund and the CARES Act.

As tribes work day and night to protect their already vulnerable communities from the deadly coronavirus, a new crisis has emerged, courtesy of the Trump administration.

With $8 billion at stake, tribal leaders in the lower 48 states are rushing to prevent the much-needed money from landing in the hands of corporate entities in Alaska. The fund, which was authorized by the bipartisan Coronavirus Aid, Relief, and Economic Security Act, also known as the CARES Act, is supposed to benefit governments in Indian Country, they point out.

But on Friday -- barely one day after the Bureau of Indian Affairs held the final consultation on the $8 billion, and just three days before the close of the comment period -- tribes and their advocates learned of a troubling development in the nation's capital. They are extremely concerned that the Trump administration -- at the urging of Assistant Secretary for Indian Affairs Tara Sweeney, a former executive of a Native corporation in Alaska -- might redirect a huge portion of the much-needed funds to a region that has seen fewer than 10 confirmed COVID-19 cases, compared to the hundreds spreading throughout the lower 48.

"While the Assistant Secretary for Indian Affairs is an Alaska Native, who has worked for the Arctic Slope Regional Corporation, we do not believe it would be proper for the BIA to advocate for ANC funding," leaders of the Great Plains Tribal Chairmen's Association said in a letter to the Trump administration on Sunday, citing a conflict of interest that arose when Sweeney was being considered for the position in Washington, D.C.

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With social distancing guidelines being observed in some of the poorest communities in Indian Country, the Great Plains leaders were forced to conduct an emergency teleconference meeting to discuss the letter, which was approved by a unanimous vote. But they aren't the only ones rushing to address the emerging threat from Washington -- the National Congress of American Indians, the oldest and largest inter-tribal advocacy organization in the United States -- is also responding strongly.

The Trump administration "must only disburse funds to Tribal governments -- political bodies that serve the interests of citizens," NCAI President Fawn Sharp wrote in a letter on Saturday. Quoting Section 601(d) of the CARES Act, she wrote: "This provision defines eligible uses of the funds, and references only governments" -- Alaska Native corporations are not mentioned.

"These funds will be critical to assist Tribal governments in withstanding the impacts of COVID-19," said Sharp, who also serves as president of the Quinault Nation, whose citizens in Washington state were among the first impacted by the arrival of the coronavirus in mid-January, when the Trump administration was playing down the health, social and economic ramifications associated with a pandemic.

In order to be confirmed as Assistant Secretary for Indian Affairs, the government official with the most responsibilities to tribes and their citizens, Sweeney two years ago promised to recuse herself from playing a role in "any" decisions that impact Arctic Slope Regional Corporation, which is the largest Alaska Native business entity in terms of revenue. When pressed about the matter by members of the Senate Committee on Indian Affairs, she further promised never to seek a waiver from her pledge.

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At the time, the pledge was seen as largely symbolic, as the BIA does not typically make decisions affecting Alaska Native corporations, which are organized under state law. But the $8 billion coronavirus relief fund has put the agency -- and Sweeney -- at the center of one of most consequential decisions in decades.

"Including ANC’s as recipients of the Coronavirus Relief Fund would not be equitable. In fact, it would be galling," President Bryan Newland of the Bay Mills Indian Community, wrote in a post on the influential Turtle Talk law and policy site on Sunday.

When asked over the weekend about Sweeney's role in the distribution of the fund, and whether she supports the inclusion of Alaska Native corporations in the $8 billion, the Department of the Interior, BIA's parent agency, did not comment. Interior also did not comment when asked whether the department, which is led by Secretary David Bernhardt, has taken a position on the matter.

But Sweeney's cohorts at Arctic Slope Regional Corporation, which reports $3.4 billion in revenues, have definitely taken notice of a huge pot of money sitting in Washington. On Saturday, a spokesperson told Indianz.Com that the $8 billion fund, along with other provisions of the CARES Act, are of great interest to the Native residents in one of the most remote areas of the U.S.

"We’re also engaged in learning all we can about the $8 billion tribal set aside to assist our tribal members in the Arctic Slope region," the spokesperson told Indianz.Com. "Alaska holds 229 federally recognized tribes and the Arctic Slope has nine with more than 13,000 members."

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And despite the relatively small numbers of COVID-19 cases being reported in Native communities in Alaska, the coronavirus has definitely had an impact on Arctic Slope's bottom line, the spokesperson said. The corporation portfolio focuses heavily on oil revenues, which have taken a significant dive as a result of the pandemic.

"ASRC has certainly been affected by the COVID-19 situation (as well as low oil prices) and unfortunately, it’s very difficult if not impossible to ascertain just how long this disruption in operations will continue," the spokesperson told Indianz.Com.

"Like other businesses, we’re looking for ways to cut spending at this time while still providing value to our customers, stakeholders and shareholders," the spokesperson said.

Tribes in the lower 48 are in the same dire situation. Over the last month, they have been forced to curtail services to their citizens, shut down revenue-generating business and, in some cases, furlough employees in order to slow the spread of the coronavirus across America.

The $8 billion relief fund -- which is far smaller than the $150 billion being set aside for states -- is designed to help Indian nations recover some of the costs of the extremely disruptive efforts. But tribes and their advocates say the CARES Act is clear on who are the beneficiaries.

"The purpose of the entire section is government," Dante Desiderio (Saponny), the executive director of the Native American Finance Officers Association, told Indianz.Com. "The whole center of the relief fund should focus on the 574 recognized governments."

With the CARES Act, Congress put the Department of the Treasury in charge of distributing the $8 billion fund. But since the agency's relationship with Indian Country has been a rocky one and has only begun to change in recent years, the law directs the Department of the Interior to assist in the consultation effort.

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During two consultation calls over the last two weeks, Assistant Secretary Sweeney has done just that, opening up the sessions by assuring Indian nations that "tribal leaders" are being asked for input about the $8 billion. President Donald Trump himself said the CARES Act would support "tribal leaders" when he signed the bill into law late last month.

"This $8 billion is the single largest infusion of funds into Indian Country in the history of our country," Sweeney said on the first call on April 2, according to participants who relayed the contents to Indianz.Com.

"This amount is more than the Cobell settlement, the Land Buy-Back Program and the Ramah Navajo settlement combined," she added -- ticking off a list of big ticket legal and policy achievements that were secured by the Barack Obama administration.

"This is our opportunity to get it right," Sweeney said of coronavirus relief fund for tribal governments.

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Judging by what has been presented by Sweeney and her chief deputy, Mark Cruz, who is the only other Indian policy leader at the BIA at this time, getting it right hasn't included Alaska Native corporations, participants told Indianz.Com. During the two calls, the Trump administration never brought up the business entities as potential avenues for distributing any of the $8 billion, they said.

"They better include casinos if they’re going to do that bullshit," one tribal leader told Indianz.Com, highlighting the fact that a different federal agency has taken an extremely narrow reading of the CARES Act in a manner that has already hurt Indian Country's financial interests.

But during the last call on April 9, participants noticed a shift in messaging from their relatives up north. More and more Native representatives from Alaska were speaking up about the need for the $8 billion to be distributed in a way that addresses a wide range of economic, social and other impacts in their respective regions. Two regional organizations in Alaska were among those who sought Sweeney's ear, according to participants.

Still, neither Sweeney, whose frequent trips back to her home state have stopped as a result of the coronavirus, nor Cruz said anything about possibly including inter-tribal organizations in Alaska, or Native corporations for that matter, in the distribution formula, participants recalled.

"We need the money right now": With the number of #COVID19 cases in Indian Country continuing to rise, the Trump administration is embarking on the most consequential tribal consultation in recent history. #Coronavirus https://t.co/5vQzvOzW3O
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Should Alaska Native corporations or Alaska regional entities be included, tribes and their advocates in the lower 48 fear that a large chunk -- possibly up to half of the $8 billion -- could flow to the 49th state.

"Please do not allow Alaska Native Corporations to be counted as Tribal governments under the CARES Act Coronavirus Relief Fund," the Great Plains Tribal Chairmen's Association said in their letter to the Trump administration. "That would be contrary to the plain language of the CARES Act, and it would allow for double or triple counting of Alaska Natives since members of federally-recognized Alaska Native villages are also shareholders in Alaska Native Regional Corporations and Alaska Native Village Corporations."

The Department of the Treasury has been represented by on the consultation calls by Daniel Kowalski, who serves as counselor to Secretary Steve Mnuchin. He's held that role since March 2017, during which time the Trump administration irked Indian Country by moving slowly to get the Tribal Advisory Committee up and running. The group's first public meeting didn't take place until June 2019, more than two years in the Donald Trump era.

Treasury has already been the source of significant concern because its guidelines have locked many tribal gaming enterprises out of the $349 billion Paycheck Protection Program. The agency is finally getting around to consulting tribes about the issue on Tuesday -- more than a week after loan applications opened. Over $130 billion has already gone out to other businesses while tribes await clarity from Washington.