By Andrew Westney

Law360 (March 18, 2020, 10:38 PM EDT) -- The federal government must act decisively to uphold its trust duty to tribes during the novel coronavirus pandemic, tribal leaders say, and can start by factoring shuttered tribal casinos into any business stimulus plan and providing health services and money to struggling tribal employees and members.

While the administration puts together a plan to pump $1 trillion into the economy as the COVID-19 outbreak worsens in the U.S., tribal governments nationwide are trying to figure out how they can cope with a public health crisis while facing steep losses in revenue after closing most of their casinos in the past week.

Eastern Band of Cherokee Indians Principal Chief Richard Sneed, whose tribe suspended operations at its two western North Carolina casinos Wednesday, told Law360 that the impact of such closures for tribes is even greater than for commercial casinos like those in Las Vegas, which also went dark this week.

"When you talk about tribes, you're talking about all the programs and services to their people," Sneed said. "It's a negative impact to an entire community. All of our funding to operate our tribal government comes from gaming."

So in any federal stimulus that furnishes funding to the gambling industry, "there needs to be a separate provision for tribally owned casinos," he said.

But any proposal to tackle the coronavirus economically must first emphasize direct aid to casino employees and tribal members, said attorney and Bay Mills Indian Community Chairman Bryan Newland, whose tribe has closed one of its two northern Michigan casinos and is set to close the other on Friday through at least April 10.

"The biggest thing we've been trying to communicate to people is that there's a direct link between economic security and public health," said Newland, whose tribe, like the Eastern Band of Cherokee Indians, is continuing to pay its casino employees into the shutdown. "Because if people feel like they don't have what they need to take care of themselves, they're going to take risks to do that, and those risks will involve putting other people's health and safety at risk."

Casinos, like cruise lines, sports leagues and other industries dependent on large crowds, have been especially hard hit by the pandemic. 

Oklahoma Indian Gaming Association Chairman Matthew Morgan, who also serves as an officer in the Chickasaw Nation's commerce department, said public health "is of the utmost concern to all of us," and that trying to address that while also protecting the tribes' business interests "is a difficult equation to balance right now."

The Chickasaw Nation said this week that it would close its casinos through the end of the month to try to slow the spread of COVID-19.

The accelerating economic and health toll of the crisis prompted a call Tuesday from the National Indian Gaming Association for tribes to receive $18 billion from the federal government to offset their casino closures.

Now all eyes are on D.C. as the Trump administration and Congress look for ways to keep the economy going. The Republican party is weighing a $1 trillion stimulus plan that would send cash payments to Americans and provide $50 billion in financial aid for passenger and cargo air carriers and $150 billion in similar aid for other distressed business sectors.

Sneed said that "public health and welfare is priority one" for the Eastern Band of Cherokee Indians, but to the extent the federal government does intervene to support businesses, it's important that financial assistance to casinos "should be on a par with that offered to other industries."

While the public might perceive such a move as "big corporations getting welfare," thousands of employees and related businesses in western North Carolina — the majority of them nontribal — rely on the tribe's casinos, he added.

"People say you're just helping the casinos, but it's no different from any other industry," Sneed said.

Newland said the federal government's focus shouldn't be on bolstering specific industries but "mak[ing] sure that every citizen in this country can meet their basic needs right now."

"There's one philosophy that if we take care of the airlines, take care of the hotels, take care of the casinos, they will then turn around and spread that through their workforce, and I think that's just belied by the evidence over the last three or four decades," he said.

"And then there's another school of thought which is to put the money right in the hands of the people who need it and spend it, and allow them to meet their basic needs, and cut out the middleman, so to speak. I don't think you have to look too far or too hard to see that's the right approach," he said.

And the Trump administration needs to greatly improve its efforts to help tribes and their members deal with the crisis as a health problem, Newland said, having made "an absolute mess both in communication and delivery" of health services and resources like testing kits to tribes, with Indian Health Service officials doing their best but hamstrung by the administration's ad hoc approach.

"There's just nobody who understands what their responsibility is, because there's no plan," he said. "Every mistake that can be made is being made right now."

As Congress and the administration develop different pieces of a solution addressing both economic and health concerns, tribes should look to intertribal organizations like the National Congress of American Indians and the United South & Eastern Tribes to make sure tribal governments are specifically addressed in coronavirus efforts, Sneed said.

"I think that's the mechanism, because otherwise it kind of turns into an exercise in pure democracy," he said. "You have all these voices, and we just don't ever get anything done because there's no cohesive message."

Morgan said that tribal governments should be treated on a par with state and local governments, and that means making sure they're explicitly addressed in any stimulus and relief package "so there's no miscommunication during implementation."

If funding is upped for the Centers for Disease Control and Prevention but there's no specific way to move that money to the Indian Health Service, or from the Commerce Department to the Bureau of Indian Affairs and on to tribes, that may not happen — or not quickly enough, Morgan said.

A White House press representative said in a statement Wednesday that the administration is "going to ensure that we take care of all Americans, including affected industries and small businesses, and that we emerge from this challenge stronger and with a prosperous and growing economy."

"No other administration has been as transparent and as accessible," the White House said, pointing to its coronavirus press conferences and "regular briefings with state and local officials, members of Congress, tribal leaders, and various industry stakeholder groups to ensure they have the most up-to-date information on the virus."

However, the National Congress of American Indians said Wednesday that tribal nations "have been left out of the conversation" around the COVID-19 pandemic and face "inadequate federal funding."

"We cannot ignore the elevated risks faced by Indian Country from this virus," NCAI CEO Kevin Allis said in a statement. "The federal government's chronic underfunding of its treaty and trust responsibilities to American Indians and Alaska Natives must end — lives are at risk."

Representatives for the IHS did not immediately respond to a request for comment Wednesday.

While tribes like Sneed's and Newland's, as well as many Oklahoma tribes, are giving financial support to their employees to help them weather the crisis, that may not be sustainable in the long run, tribal leaders say.

"That can go on, but there's definitely a time period where tribes are able to operate in that manner," Morgan said. "And I think everybody is looking to the federal government for direction and assistance for how to plan for this and continue to meet everyone's needs, not just the health side but the economic side of it."

One possibility to allow tribal gambling businesses to generate revenue without relying on direct federal aid, at least for tribes in Michigan like Bay Mills, is speeding up the public availability of internet gambling, which the state legislature approved in December but isn't set to be rolled out until next year, Newland said.

But for the traditional brick-and-mortar casino business, it may take a long time to return to normal, depending on just how long the pandemic goes on and how severe its effects are, tribal leaders say.

"I just don't think anybody knows at this point, because we don't know how this ends," Sneed said.

--Additional reporting by Andrew Kragie and Alan K. Ota. Editing by Aaron Pelc and Emily Kokoll.

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