Tribes Want More Options For Federal Coronavirus Funding

By Andrew Westney
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Law360 (April 8, 2020, 9:31 PM EDT) -- Native American tribes should have more leeway for how they can use some $10 billion in federal funding made available through the latest coronavirus relief law, as they look to push that figure to as much as $20 billion through congressional legislation now in the works, tribal leaders told an online audience Wednesday.

Speaking to an American Bar Association webinar, tribal and organizational officials and House Natural Resources Committee Chairman Raul M. Grijalva, D-Ariz., talked about the hard work that went into getting tribes funding in the $2 trillion Coronavirus Aid, Relief and Economic Security Act, signed into law on March 27.

But how tribes can use that money is a major question, several speakers said, as the bill focuses on paying back coronavirus-connected expenses rather than addressing revenue losses, which can be especially harsh for tribes because they lack the tax base state and local governments have.

Bay Mills Indian Community Chairman Bryan Newland said tribes "need to have the utmost flexibility" in how they can use money from the CARES Act, particularly an $8 billion "stabilization fund" that makes emergency money available from the Treasury Department to tribal governments that can show they spent funds for costs incurred fighting the COVID-19 virus.

Newland said a Treasury Department representative spoke during a recent phone consultation with tribal leaders "almost as though tribes were some business that needed to be strictly regulated."

"Many of us tried to make the point that if we can't use that relief fund to account for the missing revenues, we won't have anybody working in our government to incur extra expenses for a response," Newland said.

The inclusion of funding specifically for tribes was a landmark achievement for tribes and their allies in Congress, especially after tribes were left out of previous economic relief efforts such as legislation to address the 2008 recession, multiple speakers said.

"We didn't get everything we asked for," but "at one point we weren't even in the bill," said Kevin J. Allis, CEO of the National Congress of American Indians.

"We were looking for $20 billion, we're still looking for $20 billion," but the $8 billion in the stabilization fund is "a good start," Allis said.

Tribal nations, many of which are located in more rural areas, are increasingly feeling the impact of the pandemic. The Navajo Nation, which has the largest tribal reservation in the country, reported Wednesday that the number of cases there was 488, up from 426 on Tuesday, and the number of confirmed COVID-19 related deaths had risen to 20 from 17 the day before.

Stacy Bohlen, executive director of the National Indian Health Board and a member of the Sault Ste. Marie Tribe of Chippewa Indians, told the ABA audience that getting  more than $1 billion for the Indian Health Service in the bill was "a major victory," but also that $20 billion in funding for tribes was the goal for "phase four" of coronavirus relief.

Getting money for tribes put in the recent bill was important after the White House opposed any set-asides for tribes, Grijalva said, but oversight by his committee and its Subcommittee for Indigenous Peoples of the United States will be necessary "to make sure we're holding the administration's feet to the fire" in getting funding and resources to tribes.

Allis, an enrolled member of the Forest County Potawatomi Community, said language in the bill focusing on expenditures rather than revenues is "less than desirable," since tribes that have been forced to shut their businesses may have no money coming in to pay for governmental services to members.

Bohlen said that tribes are also seeing a big hit to third-party billing revenue during the coronavirus shutdown, as Medicare, Medicaid and private insurance normally bring in more than $1 billion a year that provides "foundational funding" for tribal health systems.

Great Plains Tribal Chairmen's Health Board CEO Jerilyn LeBeau Church also said a decline in revenues from health services is hurting tribes, putting strain on law enforcement, child welfare and other areas of government.

Telework usually is not an option for tribal government officials trying to coordinate their response because of a lack of IT infrastructure in rural areas, said Church, who is Mniconjou Lakota.

The bill also makes tribes and tribal businesses eligible to receive $454 billion in loan guarantee funding as well as $349 billion through a U.S. Small Business Administration loan program, but Newland said he was "frustrated" that tribal casinos aren't eligible for the latter program.

"On the ground in Indian Country, SBA is not meeting our needs," he said, adding that Bay Mills expects to put 400 employees on unpaid leave because they could not get the loan they sought.

—Additional reporting by Stephen Cooper and Andrew Kragie. Editing by Peter Rozovsky.

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