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Native American Attorneys at Law | Barnhouse Keegan Solimon & West LLP

Disputes over Distribution of $8 Billion of CARES Act Relief to Tribal Governments Continue

Posted by Michelle Miano.

As a firm that provides legal services to numerous Tribal governments impacted from COVID-19, we have kept a close eye on the $8 billion in emergency aid directed by Congress to be distributed to Tribal governments under the CARES Act.

Prior to the April 26, 2020 deadline, several Tribal governments initiated proceedings in D.C. federal court concerning the definition of “Tribal governments” as used in Title V of the CARES Act.  The U.S. Secretary of the Treasury interpreted the CARES Act definition of “Tribal government” to include Alaska Native regional and village corporations formed pursuant to the Alaska Native Claims Settlement Act (ANCs), while Plaintiff Tribal governments and others challenged the inclusion of ANCs in Title V’s “Tribal government” definition.

On Monday, April 27, 2020, the D.C. court preliminarily enjoined the Secretary from immediately disbursing Title V funds to any ANC at this time, but did not direct the Secretary of the Treasury to disburse the entire $8 billion in emergency relief to Plaintiffs and other federally recognized tribes.  The Court stated:

To be sure, the more limited remedy could mean that Plaintiffs will receive a lesser share of Title V funds in the short term, if the Secretary decides to award some money to ANCs and withholds those payments to comply with the court’s order.  But at least such funds will remain available for later disbursement to federally recognized tribes for coronavirus-related public services, if the court ultimately enters a final judgment in Plaintiffs’ favor.

Since then, ANCs, such as Ahtna, Inc., and affiliated associations have sought to intervene arguing that the case has a direct interest in the resolution of legal issues raised by Plaintiffs.

Meanwhile, a coalition of Tribal governments filed a second lawsuit on April 30, 2020, seeking a declaration that the Secretary’s failure to disburse Title V funds violates the CARES Act and amounts to agency action unlawfully withheld or unreasonably delayed, and seeking to enjoin the Secretary of the Treasury to disburse the CARES Act funds in a manner consistent with the CARES Act and the D.C. court’s April 27, 2020 order.

On May 5, 2020, the Secretary of the Treasury announced that he would begin to distribute $4.8 billion of the total $8 billion in CARES Act emergency aid.

We will continue to monitor developments as they unfold. In the meantime, if you have any questions about this or other provisions of the CARES Act and how it may affect you, please contact our office.

Commitment to Our Clients During Challenging Times

Posted by Tierra Marks and Josett D. Monette.

We hope that you and your loved ones remain healthy and unaffected to the greatest extent possible during the COVID-19 outbreak.  Our firm remains dedicated to providing the best level of legal services to our clients as well as representing clients in all aspects of the law.  Over the past weeks, our firm has been closely monitoring federal and state legislative and legal developments related to the COVID-19 outbreak.  Consistent with our firm’s dedications, we will begin sharing information we have compiled and developed regarding the COVID-19 outbreak and other matters important to our firm and clients.

Our firm remains fully operational as we continue to assist our clients with various matters.  We have assisted our clients, which include small businesses and tribal employers, by providing quick and effective answers to urgent questions, including what should I do if an employee wants to stay home out of fear from contacting COVID-19? What should I do if an employee self-reported that they had contact with someone who has a presumptive case of COVID-19? How quickly can employees return to work? If you are a small business or tribal employer and would like to access our Frequently Asked Questions (FAQs) Regarding the COVID-19 Pandemic, please contact our office.

We have also assisted our clients with their concerns on paying and retaining their employees.  Our firm has been monitoring the Paycheck Protection Program (“PPP”) which is intended to incentivize small businesses to continue to pay and retain their employees.  The PPP allows the Small Business Administration (“SBA”) to forgive the loans if all employees remain on the payroll for eight weeks and the money is used for payroll, rent, mortgage interest, or utilities.  The PPP loans may be completely forgiven provided that the loans are used for payroll, mortgage, and utilities and that employee and compensation loans are maintained.

The PPP applications opened on April 3, 2020 and less than two weeks later, by April 16, 2020, the $349 billion package was depleted.  However, on Friday, April 24, 2020, an additional $310 billion was approved to replenish the PPP and the second wave of PPP funding opened on April 27, 2020.  In the first round of PPP funding, small tribal gaming operations were excluded, 74% of loans issued were in the amounts of $150,000 or less, and out of the roughly 1.6 million loans approved, the majority of the loans went to construction and professional, scientific, and technical service industries.  The second wave of PPP funds is expected to serve all tribal businesses, including small tribal gaming operations (with 500 or less employees) and quickly deplete as the first round did.  The SBA is issuing continuing guidance on the PPP and while funds are being implemented, there are critical questions that remain unanswered, including whether tribal governments can apply.  Further, due to the pacing of the guidance, the guidance is coming too late or not at all before funding is implemented.

We are continuing to monitor the PPP and the continuing guidance issued.  If you would like to apply for relief under the PPP, have already applied, or have specific questions regarding PPP or contract terms, please contact our office and we may be able to assist you.  At a minimum, it is important to contact your lender if you have already applied or are interested in applying.

If you have any questions on the above or would like us to independently evaluate your situation, please contact our office.

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