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Nearly a month after the Coronavirus Aid, Relief, and Economic Security (CARES) Act was signed into law, the administration’s implementation of the $8 billion earmarked for tribes has faced two major stumbling blocks in Indian Country.
The Treasury Department delayed tribal access to the Paycheck Protection Program, while Alaska Native Corporations (ANCs) are fighting for CARES Act eligibility, which many tribes and legislators from the lower 48 contest.
First, the Treasury Department ignored Congress’ directive to allow tribal corporations, including tribally owned casinos, eligibility for the Small Business Administration’s Paycheck Protection Program.
The Paycheck Protection Program (PPP) was one of the largest economic stimuli for small businesses in the CARES Act at $349 billion and provides loans for small businesses to continue paying their employees through the crisis. The bill specifically increased eligibility for tribal corporations under 500 employees, which includes most small and mid-sized tribal casinos.
Secretary Mnuchin and the Treasury Department halted the distribution of funds to tribal corporations for most of April. Yet, in an amended interim final rule released on Monday, the Small Business Administration (SBA), the agency within the Treasury Department that administers PPP, clarified that tribal corporations are indeed eligible for the paycheck loans.
“I don’t understand how we could have been clearer than the language of the law. It’s a disgrace,” said Congressman Ruben Gallego (D-AZ), chairman of the House Subcommittee for Indigenous Peoples at a Congressional Town Hall hosted by the National Congress of American Indians on Tuesday.
Second, a fissure within Indian Country is growing deeper as Alaska Native Corporations are seeking eligibility for all CARES Act programs, to the opposition of tribes and members of Congress in the lower 48.
Tribal governance looks very different in Alaska than it does for tribes on reservations across the lower 48.
Alaska Native Corporations (ANCs) were set up by Congress in 1971, extinguishing aboriginal title of Alaska’s indigenous peoples to lands in the state of Alaska. Through the 12 regional corporations and hundreds of village corporations, services are provided to Alaska Natives similar to the services provided by tribal governments in the lower 48.
However, ANCs operate as for-profit corporations and distribute profits from their business endeavors to their shareholders, the Alaska Natives of that region. Alaska Native Corporations are equivalent to the lower 48’s reservation system, but with many different objectives, operations, and jurisdictional issues.
The CARES Act provided $8 billion in economic recovery funds for Indian Country, and Alaska Native Corporations are attempting to apply for those funds. Treasury Secretary Mnuchin previously stated that ANCs are eligible for the funds.
The secretary faced a lawsuit brought by the Confederated Tribes of the Chehalis Reservation in Washington state, the Cheyenne River Sioux Tribe in South Dakota, and the Ute Tribe of the Uintah and Ouray Reservation in Utah arguing that ANCs are not eligible under the 1975 Indian Self Determination Act definition used in the CARES act. On Monday, a federal judge in Washington, D.C., halted the Treasury Department from distributing funds to ANCs until a final decision is made.
In the halls of Congress, the issue is splitting the Alaska delegation from their colleagues that often join in bipartisan support for tribal issues. Senators Murkowski (R-AK) and Sullivan (R-AK) joined Congressman Don Young (R-AK) in an opinion piece in the Anchorage Daily News calling the exclusion unfair and not in line with the intent of the law.
Senator Tina Smith (D-MN), a member of the Senate Committee on Indian Affairs, said in the NCAI Congressional Town Hall: “I am certainly not opposed to the Alaska Native Corporations, but I do not believe that they are tribal governments as was intended in this legislation.”
The future of Alaska Native Corporations’ access to CARES Act economic recovery funding is up to the courts.
These are not the first bureaucratic stumbling blocks Indian Country has faced in the federal government’s rollout of coronavirus response. In early March, authorization issues at the CDC delayed crucial medical response funding for Indian Country at the beginning of the pandemic, as reported by the Daily Yonder. Today, there are 2,410 Covid-19 cases in the Indian Health system, resulting in 84 deaths as of April 26, according to Indian Country Today.