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Copyright © 2020 Albuquerque Journal
When COVID-19 came to Indian Country, it spread quickly. The Navajo Nation now has the third-highest rate of cases in the United States, behind New York and New Jersey, and health care professionals anticipate the peak is yet to come. In New Mexico, more than 50% of people infected are Native American.
But the Navajo Nation, along with 573 other federally recognized tribal governments – 22 of which are in New Mexico – still hasn’t received substantial support from the Coronavirus Aid, Relief, and Economic Security Act, which Congress passed in late March. The act allocated $8 billion directly to the tribes to be split among them.
The original deadline for getting funds out the door was eight days ago .
“For Indian Country, the struggle to get their fair share of federal resources has always been a problem. That’s a big reason why tribes are so at risk right now, because they have consistently been left behind,” Sen. Tom Udall told the Journal in a phone interview last week. “The CARES Act was a good start … but again we’re seeing Native communities face roadblocks and hurdles.”
Udall, the vice chairman of the Senate Committee on Indian Affairs, said he thinks the Treasury Department did not understand how to help the tribes get this money directly. He said the department did not consult with the committee on the process. As of Friday, the department had not determined how much will be delivered to each tribal government, according to court documents.
“They didn’t quite know how to deal with what the formula should be,” Udall said. “I don’t think they know how to do tribal consultation and how to do it effectively and quickly. I don’t think they knew how to rely on and utilize the resources in government that know about tribes and could give them information where they wouldn’t be making mistakes along the way.”
Rep. Deb Haaland, who represents the 1st Congressional District and is a member of the Laguna Pueblo, said the New Mexico delegation and the Congressional Native American Caucus fought hard to get tribes included in the CARES Act.
“When we found out the White House was proposing zero (for tribes in the Coronavirus Relief Fund) all of us got on the phone and called our colleagues,” Haaland told the Journal last week. “It was my understanding that the White House came back with $3 billion, and we pushed harder. We ended up with 8. … It’s not enough but we need it now.”
But questions about how to distribute the money among the tribal governments quickly arose, and who qualifies for the money proved to be a sticking point.
The Treasury Department included hundreds of Alaska Native corporations – regional and village entities owned and operated by Alaska Natives on a for-profit basis – as eligible for a cut of the $8 billion.
This led the Navajo Nation and at least 10 other tribes to sue Treasury Secretary Steven Mnuchin, arguing that the corporations should not qualify as tribal governments.
According to a complaint for declaratory and injunctive relief filed in U.S. District Court for the District of Columbia last month, if the money is split equally among tribes and ANCs, each tribal government will receive 30% less than they would if the ANCs are not included. And if the funds are divided based on population, land base, employees and expenditures, the ANCs will receive the largest share of the money.
“Under this approach, the ANCs will have an outsized impact,” the tribes’ lawyers wrote in the complaint. “Together, the ANCs own approximately 44 million acres of land. These landholdings are equivalent to the total trust land base of all federally recognized Tribal governments in the lower-48 states combined.”
Although ANCs contend they should be considered tribal governments because they represent the interests of Native shareholders and are helping them through this crisis, a U.S. district judge sided with the tribes last week . A memorandum opinion by Judge Amit Mehta says the tribes have proved they would “suffer irreparable harm in the absence of preliminary relief” and that ANCs do not satisfy the CARES Act definition of a “tribal government.”
Judge Mehta issued a preliminary injunction on April 27 temporarily prohibiting the Treasury Department from disbursing the funds to ANCs. But his ruling did not order an immediate release of the money to tribal governments.
The parties filed a joint status report Friday in which the Treasury Department said it had “not yet arrived at a determination as to the amounts to be paid to Tribal governments from the Coronavirus Relief Fund. … Defendant plans to post details of the allocation on its website.”
Haaland and Udall said they are still negotiating on additional relief for tribal communities in a coming economic package.
The Indian Health Service, which provides medical care to Native populations, has received and distributed about $1 billion in CARES Act funding at its hospitals, clinics and testing sites. And agencies such as the Bureau of Indian Affairs and Housing and Urban Development have also been allocated money to help tribal communities through existing programs.
But this falls far short of what the tribal governments need.
“Tribes are sovereign nations. They know their communities best,” Haaland said. “So they would have to allocate the money in different ways to achieve the same end, which is to protect their community members from contracting virus, to stop the spread, to make sure they are sending their resources where they’re needed most. It could be for PPE; it could be for testing, or to make sure they have clean water to drink and wash their hands with. It could be for any number of things … that’s what is stopping them from having a full-on response to this pandemic.”
Santa Clara Pueblo Gov. J. Michael Chavarria said tribes would use the money for such things as helping to offset costs of protective equipment, and to pay for law enforcement at roadblocks and deep cleaning of facilities.
“Our tribal businesses are closed, and we’re not generating any revenue. We don’t have a tax base,” said Chavarria, who is also the chairman of the All Pueblo Council of Governors. “We are not asking for a handout. This is a trust responsibility of the federal government.”
Although federal programs for tribal education, health, housing and food assistance have received a bump in funding, it takes time for the money to reach pueblos.
Some pueblos are classified as self-governed, while others are direct-service tribes. This determines whether money goes directly to pueblo governments or is diverted through a regional office.
“It’s not a straight flow-through,” Chavarria said. “The different mechanisms are complex. Life goes on, so we are taking steps to fill in the gaps and make ends meet.”
Other local governments have received help from the Coronavirus Relief Fund already: Bernalillo County has received $31.8 million, and Albuquerque has received over $150 million, according to officials.
Donations, state aid
Rep. Derrick Lente, D-Sandia Pueblo, has seven pueblos in his district, and he’s been hearing a lot from their leaders about frustrations with the federal response.
“Each tribe is essentially holding their breath, waiting for those dollars to come in so they can go and buy those essentials they have to have for their community members that have come down with these illnesses,” he said.
In the meantime, Lente has been reaching out directly to state government officials, who have been able to deliver resources in a matter of days.
Donations and volunteers have also become a valuable asset. The Navajo Nation, which crosses into New Mexico, Arizona and Utah, has been purchasing masks and food with help from donations. The Pueblo Relief Fund, started by the Indian Pueblo Cultural Center and the All Pueblo Council of Governors, has been providing supplies for pueblos in New Mexico and Texas.
The New Mexico Indian Affairs Department, the New Mexico Community Foundation and the New Mexico National Guard have also been delivering food to tribes using money from the Native American Relief Fund.
But Lente said it shouldn’t have to be this way. He said it’s unforgivable that the federal government hasn’t done more to help already.
“The federal government has a trust responsibility to ensure that as caretakers for the tribes that they must be able to meet certain obligations,” Lente said. “To this point, those obligations, in my assessment, have been very fragmented or have been very absent. If not for the ways that tribes have come together, if not for the way the state of New Mexico has partnered with the tribes, the circumstances might have been much more dire than they are today.”
This story has been supported by the Solutions Journalism Network, a nonprofit organization dedicated to rigorous and compelling reporting about responses to social problems.
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