May 12, 2020; Law360.com and the Navajo Times
In late April, Native American tribal governments won their litigation against the Treasury Department for CARES Act funds designated to them by Congress. A Washington DC judge ruled in their favor but only for 60 percent of the $8 billion to fight the pandemic in Indian Country, while the remaining $3.2 billion continues to be withheld by the Treasury. The legal fight is a painful testament of Native American nations’ uneven historical fight for their survival against the US government. It is also a sign of unprecedented coordinated efforts among tribes at the national level.
After another more recent lawsuit, Judge Amit P. Mehta again ruled on May 11th against further delay in the distribution of the remaining $3.2 billion of CARES Act funds for Native tribes, but he stopped short of forcing the Treasury to deliver what it owes. He simply said a delay of two months “will not be acceptable.” The funds were originally scheduled for disbursement on April 24th. In a health crisis where every day counts against the most vulnerable, any delay is practically a death sentence.
In New Mexico, 50 percent of all COVID deaths come from Native communities, in a state where they make up just 11 percent of its population. The Zuni Pueblo’s offices, for example, remain closed, and essential departments are operating by phone only for its 10,000 residents. Their coronavirus cases doubled after the first death. “At this rate, the entire tribe will be extinct,” one person was reported as saying on social media, according to Indianz.com. They have been self-organizing to provide food to people in isolation and thus help them remain inside their homes.
In Arizona, the Navajo Times has been keeping a careful daily tally of community members infected and those who succumb to COVID-19 in the Navajo Nation. With a higher per-capita rate of confirmed positive coronavirus cases than anywhere else in the US, each day that passes without CARES Act funds becomes a cruel waiting game. On April 24, 2020, when the funds were originally scheduled to arrive, the Navajo counted 1,540 cases of coronavirus and 52 deaths. By May 7, when $600 million finally arrived, the cases had almost doubled to 2,757 cases and 88 deaths.
Living with limited access to health care and potable water, and in a region historically overused by the US government for uranium mining during the Cold War, the Navajo are fighting both the pandemic and centuries of imperial colonization. Health outcomes for Navajo families are poor, with high incidences of lung and kidney cancer. Mistrust in the government goes deep.
“But why not give 100 percent?” asks Navajo Nation President Jonathan Nez. “I think the federal government is gearing up to fight against these 10 tribes (who filed the lawsuit) so they can give this money to Alaskan corporations.”
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Although the tribes that originally filed suit against the Treasury Department won a preliminary injunction to prevent CARES funds from going to Alaska for-profit corporations, the court didn’t determine one crucial item: whether Alaska Native Corporations (ANCs) can be deemed tribal governments. That would be a desolating defeat for American Indians’ right to self-determination and would set a dangerous precedent on the influx of corporations on Native lands.
The Alaska Native Claims Settlement Act in 1971 gave way for the control of 44 million acres of Alaska tribal land in exchange for basic services. Two decades later, 229 Alaskan tribes were finally recognized under the Federally Recognized Indian Tribe List Act in 1994, but even today don’t own the land. Instead, many of the ANCs own lucrative business in oil and gas development in those territories.
Tara Sweeney, Interior Assistant Secretary for Indian Affairs, was one person responsible for overseeing the distribution of the $8 billion fund for Native Americans and had earmarked partial funding for ANCs. The inspector general of the Department of the Interior has launched an investigation into possible ethics violations by Sweeney and her ties with Arctic Slope Regional Corporation, an ANC worth over $2.5 billion. Her husband, Kevin Sweeney, is also a lobbyist for a second ANC, the Bristol Bay Native Corporation, which owns the state’s largest commercial salmon fishery. Yet, the Treasury Department and Department of Justice insist ANCs are entitled to their share, withholding a further $162 million from $4.8 billion that Judge Mehta ordered to be released.
The next stimulus fund proposal being considered in Congress, called the HEROES Act, will hopefully address any further misinterpretation of the law by clearly stating under Section 19130 that “only Federally recognized Tribal Governments are eligible for payments from the Coronavirus Relief Fund” and that eligible entities must be included in the federal list of recognized tribes, according to Indianz.com. Tribes are set to receive $24 billion under the new coronavirus relief fund, if it manages to make its way unscathed through the Senate.
Such language was included mostly thanks to the unwavering commitment of Native American groups working in collaboration across states from Maine to Washington, including large organizations like the United South and Eastern Tribes, Representative Deb Haaland of New Mexico, and the Navajo Nation Council itself.
The recognized Alaska tribes, meanwhile, finally received $38 million of COVID-19 CARES funds delayed for “unexplained reasons” and are expected to be included in the next payment.—Sofia Jarrin-Thomas
