Sarah Walters

Cheyenne River Sioux Tribe

Last week, the U.S. Congress passed the largest spending bill of its kind in history: more than $2 trillion to keep the economy afloat as the coronavirus pandemic shuts down businesses, schools, and normal activity across many parts of the globe.

The legislation — which follows two previous bills intended to expand coronavirus testing and expand paid sick leave protections — includes many important provisions that will impact the way tribes can respond to the pandemic.

The law helps enable Indian tribes and tribally-owned businesses to prepare for and respond to the unique human and economic challenges presented by the COVID-19 pandemic. Now that the law has been enacted, it will be up to tribes to work with federal agencies to ensure that implementation of the CARES Act is as efficient as possible under very challenging circumstances.

Here’s what you need to know:

1. The CARES Act gives tribes and tribally-owned businesses access to $8 billion to support COVID-19 response

Tribes rely on large portions of the $50+ billion a year tribal businesses generate in economic activity to fund essential government services, such as health care, education, public safety, housing, and social services. The COVID-19 pandemic has shut down many tribal businesses, leaving tribal governments with a major gap in funding. The $8 billion relief fund is reserved for tribal governments and tribally-owned entities to use for expenditures incurred due to the COVID-19 public health emergency due to revenue declines and shutdowns. The Treasury Secretary will disburse the fund based on identified needs and in consultation with the Secretary of the Interior and Indian tribes. Tribes must be active in the coming days in shaping the funding formula and ensuring a swift distribution of funds. They should engage with the Department of the Interior as well as the Department of the Treasury to make sure the funding method the feds select works for Indian country and provides open access to all $8 billion.

2. It will provide tribes and tribally-owned businesses with resources to support workers

Indian tribes can be reimbursed for half of their incurred unemployment benefit costs through December 31, 2020. Tribes will be eligible for the Small Business Act Section 7(a) Paycheck Protection Program as well. Tribes should work with their employment experts, human resources departments, and the Small Business Administration to take advantage of these programs and ensure that employees and tribal governments are bolstered from the impacts of stay-at-home orders and social distancing measures.

3. The Indian Health Service will receive $1.032 billion 

... for medical services, equipment, supplies and public health education for direct service, tribally operated and urban Indian health care facilities, as well as funding for referred care and other benefits. IHS has been critically underfunded for many years and cannot sustain a surge in emergency room visits, hospitalizations, and other needs without additional resources. Tribes should contact their local or regional IHS facilities to find out what additional resources they have and the measures they are taking to combat COVID-19. Tribes with clinics, as well as urban Indian health clinics, will need to work with the Department of Health and Human Services to ensure an organized and timely distribution of funds.

4. Additional public health funding will help tribes to respond to the pandemic

The bill includes $125 million in grants from the CDC for tribes to respond to the coronavirus. Another $15 million is available to tribes, tribal organizations, urban Indian health organizations, or tribal health or behavioral health service providers, and the Public Health and Social Services Emergency Fund will provide an additional $15 million to tribes for COVID-19 response. $25 million will go to the Distance Learning and Telemedicine Program for grants to tribes for equipment and broadband. Guidelines for grant funding will be forthcoming. Tribes should try to prepare as much as possible now so that they can apply as soon as funding becomes available.

5. It provides $120 million in nutrition assistance

The Food Distribution Program for Indian Reservations will receive $100 million to provide USDA commodity foods to low-income households on Indian reservations, and $20 million is provided for nutrition services to American Indians, Alaska Natives, and Native Hawaiian elders under the Older Americans Act. Indian reservations suffer high rates of food insecurity vis-à-vis the national average. In addition, many reservations are considered food deserts, where access to fresh produce and nutrient-rich food is scarce.

6. The Bureau of Indian Affairs will receive $453 million 

... to provide aid to tribal governments; support welfare assistance and social service programs, including assistance to tribal members affected by the coronavirus crisis; expand public safety and emergency response capabilities; increase BIA capacity for teleworking so the agency is better prepared to assist tribes, and meet increased staffing and overtime costs. Tribes will need to work with the Office of the Assistant Secretary – Indian Affairs, as well as the BIA, to ensure that additional funds are distributed to tribal programs efficiently and equitably.

7. The Bureau of Indian Education will receive $69 million 

... for coronavirus response, and access to $153.75 million in set-aside funds for BIE programs. The Indian Child Care Block Grant will receive $70 - $96 million to help defray coronavirus response costs, including for continued payments to child care providers even when they are unable to work. Those tribes with BIE-operated schools, as well as those running BIE-funded schools, will need to work with the BIE to help them determine equitable funding allocations.

8. Housing programs will receive a needed boost to help reduce overcrowding and improve living conditions

The act includes $300 million across housing-related block grant programs for COVID-19 response and an additional $100 million for the Broadband Loan and Grant Program to improve connectivity. Infrastructure development of housing and utilities in Indian Country lags far behind other American communities. Indian country needs approximately 68,000 additional housing units, while current funding provides only about 1,000 units to be built per year. Further, 9% of housing on Indian reservations and 25% of housing in Alaska Native villages still lack complete plumbing or running water compared to an average of .5% for the country. Overcrowded homes also remain a major issue, which could contribute to the spread of COVID-19 — 14% of Indians living on reservations and 27% of Natives in Alaska villages live in overcrowded conditions, compared to 3% across the country.

The CARES Act is an unprecedented relief package and, while not completely ameliorating the economic and human impacts of the coronavirus, will help many communities survive. Tribal communities, which are often viewed as remote or disconnected, are already experiencing the devastating impacts of the pandemic. 

The CARES Act provides significant benefits to tribal governments, healthcare providers, and citizens. Tribes must continue to work closely with federal agencies to implement the provisions of the Act in a way that makes sense for their communities and provides the maximum amount of flexibility in the distribution of funding. 

Federal agencies will now be tasked with pushing out guidance and setting up funding mechanisms under extremely difficult circumstances—they have been affected by COVID-19, too. Tribes should help their federal partners to provide adequate guidance and push funding out as quickly as possible. As the COVID-19 crisis continues to unfold, everyone will be required to adapt to changing circumstances and work under novel conditions. This crisis provides an opportunity for tribes and federal agencies to work closely together and to take care of each other. We are all up to the task.

Sarah Walters is a shareholder at Brownstein Hyatt Farber Schreck. She is a member of the Cheyenne River Sioux Tribe. Walters has served at the Department of the Interior, the National Indian Gaming Commission, and as an attorney at the Department of Justice.