More than a month after the CARES Act was passed, the Treasury Department has yet to disburse $8 billion in coronavirus relief funds to Native tribes. And now tribes are suing the department over the delay.
On Thursday, tribes filed a lawsuit saying the Treasury Department missed its April 26 deadline to distribute funds, which was 30 days after the CARES Act passed. It’s one of two lawsuits tribes have filed over the administration’s handling of the stimulus money in recent weeks.
The other was over the Treasury’s plans to distribute the money to for-profit Native corporations that tribes say have no business being earmarked for the relief funds in the first place.
On Monday, a federal judge ruled in favor of the more than a dozen Indian nations that contested the Treasury’s move to give Alaska Native Corporations (ANCs) money set aside for tribes in the $2.2 trillion CARES Act. The injunction ruled that ANCs did not meet the definition of a “tribal government” set out in the act.
But on Friday, even in the face of the tribes’ new lawsuit, the Treasury Department sent a status report to the court, saying it “has not yet arrived at a determination” as to how to distribute the funds, according to the New York Times. The Treasury Department has not responded to Vox’s request for comment about a timeline for disbursement or the court cases.
The funds are critical for many tribes struggling to combat the Covid-19 crisis. According to a new study from Indigenous researchers at UCLA and the University of Arizona, the rate of new Covid-19 cases per 1,000 people is four times higher on Indian reservations than in other parts of the US. Meanwhile, Gallup, New Mexico — situated within the Navajo Nation — has reported one of the largest surges of cases in the past two weeks.
For many Indigenous communities, where access to health care and other infrastructure like clean running water is limited, Covid-19 presents significant challenges. This is compounded by high rates of chronic illness among Native people that could lead to complications from the coronavirus.
Congress has also been putting pressure on the Treasury Department to act. On Wednesday, House Democrats wrote a letter to Treasury Secretary Steven Mnuchin demanding the department distribute the funds, saying “the detrimental impacts of the Covid-19 pandemic have had a disproportionate health care and economic impact on federally recognized tribes due to a chronic lack of essential resources.” Speaker of the House Nancy Pelosi also told Mnuchin in a press conference Thursday to release the money “now.”
Sen. Tom Udall (D-NM), vice chair of the Senate Committee on Indian Affairs, has been demanding accountability for weeks. “It’s now been more than a month since Congress passed the CARES Act, and Tribes still haven’t seen a dime of the relief funding Congress directed Treasury to provide for Tribal governments,” he told Vox in a statement on Friday. “While Tribes have been working around the clock to provide emergency services and economic stability for their communities on the front-lines of the COVID-19 crisis, the Treasury Department is unnecessarily dragging its feet following the Court ruling earlier this week that cleared the Department to get this money out to Indian Country.”
In the meantime, tribes have been left scrambling to keep their governments running and protect their citizens. “We are 100 percent relying on these dollars,” said Aaron Payment, chairperson of the Sault Ste. Marie Tribe of Chippewa Indians, on an Indianz.com broadcast earlier this month.
Why tribes went to court over stimulus money
While the funding crisis is urgent for many tribes in Indian Country, the question being considered in the ANC court case was whether these corporations are considered tribal governments — a question that became a concern after the Trump administration said these corporations could access the $8 billion in stimulus money designated for the 574 federally recognized tribes. And because of Alaska’s complicated history, the answer is not entirely clear-cut.
ANCs were created after the passage of the Alaska Native Claims Settlement Act (ANCSA) in 1971, which solidified control of 44 million acres for Alaska Native communities but also extinguished all other land claims tribes had in the state. While there were several reasons for its passage, one was abundantly clear: ANCSA paved the way for oil and gas exploration, which some ANCs have gone on to profit from in the years since.
“Oil and gas industry really drove ANCSA in the first place. [The federal government and industry officials] are the ones who said, ‘To put the [Trans-Alaska] Pipeline in, we need to go through Indian land; we want an Act of Congress to give us authority to do that,’” Matthew Fletcher, a member of the Grand Traverse Band of Ottawa and Chippewa Indians, a Potawatomi descendant, and director of the Indigenous Law and Policy Center at Michigan State University College of Law, told Vox.
When ANSCA was passed, both ANCs and Alaska Native communities did not have a government-to-government relationship like federally recognized Indian nations do. Only in 1994, 23 years after ANCSA was signed, were Alaska Native communities officially recognized under the Federally Recognized Indian Tribe List Act. Today, there are 229 Indian nations in Alaska, which is over half of all federally recognized Indian tribes in the country. There are more than 200 ANCs.
This history creates a unique, bifurcated system of tribal governance in Alaska. While the 229 Alaska Native tribal governments maintain sovereign status, ANCs still own all the Native land in the state. Many Alaska Native communities have a federally recognized tribal government and either have a Native village corporation or belong to a regional corporation, both of which are ANCs. This means that if stimulus money went to both ANCs and Native tribes in Alaska, some communities would get money twice — which tribes both inside and outside Alaska say is unfair.
According to court documents, in a hypothetical scenario in which all tribes, including ANCs, received equal amounts of funding, each tribe would get $4 million less. For many tribes still grappling with federal neglect and broken promises, that $4 million could make the difference between keeping a town running and not.
ANCs argued in court that they provide services to the tribes, and that because of the bifurcated governance system in Alaska, leaving out ANCs would harm Alaska Native communities and peoples.
“Where a lot of complexity in this case comes from is that some of those corporations are nonprofit corporations that do governmental work,” said Fletcher. In other words, while they were not set up as governments, ANCs sometimes offer services like job training and scholarships and don’t always profit off tribes.
On Monday, the federal court sided with the tribes and ruled that ANCs did not count as tribal governments. While normally, discrepancies between Alaska Native tribal governments and Alaska Native corporations would be settled at the state level, considering ANCs are incorporated under Alaska state law, the Trump administration’s decision to include ANCs as tribal governments has turned what would normally be a state issue into a national one. It cannot be overstated how unique this situation is. “I don’t know of any other cases like this,” said Fletcher.
Regardless of the confusion in this case, one thing is clear: None of this needed to happen. By originally making the decision to consider ANCs part of tribal governing structures, the Trump administration created a crisis on top of a crisis, at the expense of Indigenous peoples both in and outside Alaska who are in desperate need of funds that have not yet arrived.
Unfortunately, that’s an all-too-common story in Indian Country.
The state of Covid-19 in Indian Country
This is not the first time the Trump administration has taken actions that have harmed Indian tribes during the coronavirus pandemic — in March, it revoked the reservation status of the Mashpee Wampanoag tribes in Massachusetts. But what’s clear from looking at the history of Alaska Native communities, and tribes throughout Indian Country, is that the problems being faced today have much longer histories than the current administration.
On one hand, the $8 billion in stimulus is significant for tribal governments. Even after adjusting for inflation, it is one of the biggest funding infusions to Indian Country ever, including ANCSA. Yet that $8 billion is still a drop in the bucket compared to coronavirus relief funding for other state and local governments.
For many tribes, this funding cannot even begin to fix the systemic disinvestment Indigenous communities have had to endure. In a sworn declaration in one of the cases, Cheyenne River Sioux Chair Harold Frazier noted that the only on-reservation health care facility had “8 inpatient beds, 6 ventilators...and zero respiratory therapists” for the tribe’s 10,000 residents. According to court documents, Akiak Native Community Chief Mike Williams noted that without more funding, the tribe would be forced to shut down its food bank and turn off water and sewer services for some tribal members. On the Navajo Nation reservation, many houses lack access to running water and electricity, making public health recommendations around hand-washing hard to abide by.
With such high levels of inequity already across Indian Country, $8 billion is like sending a sprinkler to a wildfire.
This, perhaps, is what makes the current funding fight so egregious. Tribes have had to make the hard choice to compete against other Indigenous peoples to secure desperately needed funds that are still inadequate to protect their communities. And they have yet to receive this money.
“This is an urgent situation, and Native communities cannot afford to wait for the administration to get its act together,” Udall said. “Treasury needs to follow the law and the intent of Congress and get this money out the door and into the right hands as soon as possible.”
As Indian Country looks at the Covid-19 pandemic, memories are triggered of not only historical pandemics — like the 1918 flu epidemic — but of the historical negligence of the government obligated to protect them. In remembering his tribe’s removal to their current reservation, Frazier said, “the supplies came late, if ever, and were often spoiled and contaminated. The legacy of those limitations lives on ... despite our best efforts to improve the quality of life of our people.”