Congress passed the CARES Act into law two weeks ago: the largest one-time infusion of money into the American economy in history.
The CARES Act provides funding for a number of important purposes: funding to health care providers and public health agencies to respond to the COVID-19 Pandemic; loans to for-profit businesses to continue paying employees; and, relief funds to governments to ensure continued government operations in the face of the Pandemic.
On this last front, Congress appropriated $150 Billion to the “Coronavirus Relief Fund” in Title VI of the CARES Act. These funds were designated “for making payments to States, Tribal governments, and units of local government….”
For Tribal governments, Congress set aside $8 Billion out of the Coronavirus Relief Fund, and gave the Secretary of the Treasury 30 days to distribute the funds. This means that the Treasury Department has precious few days left to determine how it will distribute these funds to tribal governments in order to meet the statutory deadline to distribute this money to Indian Country.
$8 Billion is, indeed, a lot of money; but, it may not be enough to meet the needs of all of Indian Country during this pandemic. Therefore, tribes find ourselves in a position of competing with one another to advocate for the most advantageous way to distribute these funds. It is imperative that the distribution formula meet three important criteria.
First, the formula must be rooted in the United States’ trust responsibility for Indian tribes and Indian people. Second, the formula must be equitable; it cannot advantage one class of tribes over others. Lastly, the formula must ensure that tribal governments have maximum flexibility to use funds to meet their needs in the face of this pandemic.
There is a growing consensus across Indian Country to provide a baseline level of funding to every federally recognized tribe, regardless of size, location, or immediate need. This would satisfy all three criteria. The basic costs of running a tribal government exist without regard to population, and baseline funding will help meet the immediate needs of many tribes.
This could be paired with an additional distribution based on tribal population, satisfying the three criteria above: it would not advantage small tribes like my own, over large tribes like the Navajo Nation or Cherokee Nation, which must serve hundreds of thousands of citizens.
Despite that growing consensus, there are also calls to distribute funds based upon the number of employees each tribe has. This formula would fail two of the three criteria listed above.
First, it would be inconsistent with the United States’ trust obligation to Indian tribes and Indian people. A Harvard Study released last week shows that tribal citizens make up less than 2 out of every 11 tribal employees across Indian Country. The United States’ trust obligation does not flow to every single tribal business employee, without regard to whether they are tribal citizens.
Second, using employees to determine how to distribute these funds would be inequitable. Tribes that have the most employees tend to have more revenue-generating businesses: large casinos, manufacturing plants, and oil & gas companies. Across Indian Country, 57 percent of tribes do not operate casinos. Of the 43% of tribes that do operate casinos, less than 20 percent of them generate more than 75% of Indian gaming revenues. These tribes employ thousands of non-Indian employees, but represent a small portion of Indian people in the United States.
Meanwhile, tribes that have very small gaming facilities – or no gaming at all – have enormous needs, but few employees. Relying on employment data would shift money away from the tribal communities that need it the most, and toward those tribes that generate more revenue.
Every tribal leader strives to take care of tribal employees. None of us wants to lay-off employees because of a pandemic that was beyond their control. My own Tribal Council was faced with this gut-wrenching decision last week (because the Small Business Administration has wrongfully excluded tribal casinos from payroll protection loans under a different part of the CARES Act).
The answer to that problem is not to take money tribal governments need to protect against the threat of COVID-19 and distribute it to tribal employees at some of the wealthiest tribes. Rather, the answer is for the Treasury Department to make sure that tribal casinos are eligible for the business relief portions of the CARES Act (or to leave Tribes with the flexibility to spend their share on taking care of employees, if they choose). The Coronavirus Relief Fund should not be a casino bailout.
Finally, there is a late push by Alaska Native Corporations to get a very large portion of the $8 Billion relief fund intended for “tribal governments.”
ANC’s are seeking to take advantage of the fact that the CARES Act references the definition of the term “Indian tribe” that is used in another statute (the Self-Determination and Education Assistance Act, or “ISDEAA”). The ISDEAA definition of “Indian tribe” includes ANC’s. There are legitimate reasons to include ANC’s in the definition of the term “Indian tribe” in other statutes, but not in the CARES Act.
Reading the language of the CARES Act itself, it is plain as day that the Coronavirus Relief Fund is intended to be used for governmental purposes. The first paragraph of Article VI references “tribal governments,” alongside State and local units of government. In addition, the language in the definition many ANC’s are relying upon doesn’t ensure the outcome they want. The ISDEAA, along with the Department of the Interior’s guidelines, only allows ANC’s to serve as tribal governing bodies in limited circumstances.
Including ANC’s as recipients of the Coronavirus Relief Fund would not be equitable. In fact, it would be galling.
ANC’s are for-profit corporations that generate billions of dollars in revenue each year, and answer to individual shareholders, some of which are not Indian. It is common for many Alaska Natives to hold shares in a number of ANC’s, meaning these shareholders could potentially “double dip” from the Coronavirus Relief Fund. The Coronavirus Relief Fund should not be used to stabilize – or improve – the returns for shareholders in for-profit corporations at the expense of tribal governments that desperately need money to protect their citizens from a deadly virus.
It is always a shame when Indian people must compete with one another for federal funds. It doesn’t need to be this way.
My own tribe – the Bay Mills Indian Community – has only 2,200 tribal citizens and a relatively small land base. If our goal were to simply maximize our share of funds at the expense of others, we would simply advocate for an equal split of the $8 Billion amongst all tribes. But, that is not the goal. The goal is to put the Coronavirus Relief Fund to the best use to protect all of Indian country against the effects of a deadly pandemic. That is the goal Congress certainly had in mind when it set aside these funds for Indian country, in recognition of the United States’ trust responsibility.
These funds must be distributed in a way that is consistent with that trust responsibility, that is equitable for tribes from Michigan to Alaska, and leaves us with the flexibility to spend these funds in a way that protects our people.
Bryan Newland is the chairperson of the Bay Mills Indian Community (Ojibwe) in northern Michigan.
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