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The $2.2 trillion CARES Act included $8 billion for tribal governments. The law said funds had to be disbursed within 30 days.
More than a month after the CARES Act, the Trump administration said it would begin giving tribes part of the funds.
A judge presiding over a lawsuit on the delay said the administration should have made more progress, but did not find that the delay was egregious.
Native American tribes have been among the hardest hit by the coronavirus pandemic, and Joe Biden claims that President Donald Trump has not done enough to help.
"Donald Trump has failed to live up to our trust and treaty obligations to Native Americans," Biden told The Arizona Republic May 21. "He took more than a month to allocate Congress’ emergency funding to tribes — and only did so after tribes sued. He has failed to provide tribes with adequate protective personal equipment and medical supplies. It’s unacceptable."
Indian treaty rights recognized and established rights, benefits, and conditions for tribes who agreed to cede millions of acres of land to the United States and to accept the United States’ protection. Under a "trust responsibility" legal principle, the United States federal government is obligated to ensure the survival and welfare of Indian tribes.
Is Biden, the presumptive Democratic presidential nominee, right that it took more than a month for tribes to get funding allocated by Congress, and that it happened only after suing the Trump administration? The chronology lines up, but omits important context.
The Treasury Department has argued that payments were delayed because it is required to consult with tribes and the Interior Department regarding how much money to allocate to tribes. That consultation process started before the lawsuit over the delay in payments. A separate lawsuit filed by tribes to prevent corporations in Alaska from receiving aid has also affected the process.
Congress passed the Coronavirus Aid, Relief, and Economic Security Act, or CARES Act, and Trump signed it into law March 27. The $2.2 trillion measure included a $150 billion Coronavirus Relief Fund for states, local governments, and tribal governments.
The law set aside $8 billion for tribal governments. The law said the Treasury secretary had to make the payments within 30 days; so by April 26, all entities were supposed to have received funds. It wasn’t until May 5 that the Treasury Department said it would begin making funds available to tribal governments. So that part of Biden’s claim adds up.
By May 5, the Trump administration was facing several lawsuits by multiple tribes: for delay of payment. The lawsuits also challenged the administration for intending to direct some of the funds to the Alaska Native Corporations, which are regional and village corporations recognized under Alaska law and created by Congress as part of the Alaska Native Claims Settlement Act of 1971.
In the lawsuit to stop the corporations from getting a share of the $8 billion, tribes argued that corporations do not meet the statutory definition of "tribal government," or "Indian tribe" and therefore did not qualify for the relief. A federal district judge on April 27 issued a preliminary injunction to prevent the Treasury from giving money to the corporations. Pending a final determination, the judge did not direct the Treasury secretary to immediately disburse the entire $8 billion to the tribes.
In its May 5 announcement, the Trump administration said it would begin paying tribes 60% of the $8 billion, or $4.8 billion, based on population data. The remaining 40% would be paid at "a later date" based on employment data and tribe expenses related to COVID-19. Amounts calculated for corporations would be held back "until pending litigation relating to their eligibility is resolved."
The Navajo Nation, which joined tribes in the lawsuit, on May 5 said the judge’s April 27 ruling "led to the (Treasury) Department’s announcement to begin distributing funds to federally-recognized tribes."
In a separate lawsuit over the delay in the disbursement of funds, lawyers for the Trump administration argued that providing funds to tribal governments required a more involved and difficult process than the one for states and local governments.
While the CARES Act imposed a 30-day deadline for funds disbursement, it also called for a consultation process among tribes and the Treasury and Interior departments. According to the Trump administration, Treasury staff spent about 2,200 hours on efforts to get tribes the appropriated money.
The same federal district judge from the corporations case said that those hours of labor "arguably should have produced better results," but a court intervention was not warranted.
"‘Egregious’ delay is the governing standard, and the Secretary is not there quite yet, even in the midst of a public health crisis," U.S. District Court Judge Amit P. Mehta wrote in a May 11 opinion.
Mehta did not find that the Treasury secretary was "lagging unreasonably" behind in delivering the funds. "The Secretary has not been ‘twiddling his thumbs’," he said, citing language from a precedent.
Mehta said he would not give the Treasury department a deadline for disbursing the rest of the funds, but if it took the department double the amount of time Congress directed for the disbursement, "then the question of egregiousness becomes a closer one than it is today."
Biden said Trump "took more than a month to allocate Congress’ emergency funding to tribes — and only did so after tribes sued."
It did take more than a month for tribes to begin receiving funds appropriated by Congress, and they began to flow after lawsuits were filed against the Trump administration. But a consultation process for disbursing the funds began before the administration was sued.
We rate Biden’s statement Mostly True.
The Arizona Republic, Joe Biden pledges increased funding for Indian Health Services, May 21, 2020
Congress.gov, H.R.748 - CARES Act
U.S. Treasury Department, Joint Statement by Treasury Secretary Steven T. Mnuchin and Secretary of the Interior David L. Bernhardt on Distribution of Coronavirus Relief Fund Dollars to Native American Tribes, May 5, 2020
U.S. Bureau of Indian Affairs, FAQ
U.S. Department of Health and Human Services, American Indians and Alaska Natives - The Trust Responsibility, published March 19, 2014
Navajo Nation press release, May 25, 2020
New York Times, Tribal Nations Face Most Severe Crisis in Decades as the Coronavirus Closes Casinos, May 11, 2020, updated May 13, 2020
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