The CARES Act: Implications for Tribes

The CARES Act: Implications for Tribes

April 9, 2020
The CARES Act: Implications for Tribes
Congress’s third legislative response to the COVID-19
FY2019 expenditures. The Bureau of Indian Affairs (BIA)
outbreak—the Coronavirus Aid, Relief, and Economic
has solicited tribal leaders’ input on distribution
Security (CARES) Act—became P.L. 116-136 on March
methodology and guidance on what constitutes necessary
27, 2020. Much of the CARES Act’s aid and relief is
expenditures. Tribes must certify that they will only use
available to, or will otherwise affect, federally recognized
CRF funds to pay extrabudgetary “necessary expenditures”
Indian tribes or tribal business entities. This In Focus
arising due to the COVID-19 outbreak between March 1
discusses the provisions that most directly implicate tribes
and December 30, 2020.
and tribal interests, though the agencies responsible for
enacting these provisions will likely issue additional
Additional Assistance for Tribes and Businesses. Section
guidance and interpretation in the days ahead.
4003 in Title IV of the CARES Act, the Coronavirus
Economic Stabilization Act of 2020 (CESA), authorizes the
Financial Assistance to Tribes and Tribal Business
Secretary of the Treasury to make loans, loan guarantees,
Entities
and other investments and subsidies to provide liquidity for
Direct Assistance to Small Businesses. Section 1102 of the
losses that states, municipalities, and eligible businesses
CARES Act sets up a Paycheck Protection Program within
incur as a result of the COVID-19 pandemic. Under Section
the Small Business Administration’s (SBA’s) existing 7(a)
4002, eligible U.S. businesses are those that “have not
loan program. This authorizes $349 billion in loans to all
otherwise received adequate economic relief in the form of
eligible small businesses, 501(c)(3) nonprofit organizations,
loans or loan guarantees” from the CARES Act; the term
veterans organizations, sole proprietors, and independent
“State” includes “any Indian Tribe.” Thus, both tribal
contractors, including “Tribal business concerns.”
governments and tribal business entities ineligible for other
Generally, tribal business concerns with 500 or fewer
relief may be eligible for assistance under this program. The
employees may be eligible for these loans, which do not
Secretary will determine the forms, terms, and conditions
require collateral, are available until June 30, 2020 (or until
(including a minimum interest rate) of the loans and loan
funding runs out), and can be for up to 2.5 times an
guarantees. CESA’s appropriations total $500 billion.
applicant’s average monthly payroll costs from the previous
year, capped at $10 million. In addition to the usual uses for
Agency Funding with Set-Asides for Tribes or
small business loans, recipients can use these funds to cover
Tribal Services
payroll costs (including benefits) and most mortgage
BIA Funding. The CARES Act allocates $453 million in
interest, rent, and utility costs. Section 1106 authorizes
addition to existing funding for BIA’s “Operation of Indian
forgiveness for loan amounts used for such costs during the
Programs,” of which at least $400 million “shall be made
eight weeks after loan origination, meaning those amounts
available to meet the direct needs of tribes.” These funds
would not need to be repaid. Section 1110 includes tribal
are available until September 30, 2021, for COVID-19-
business concerns as eligible entities for Economic Injury
related responses, including (1) public safety and justice
Disaster Loans to be used for similar purposes, including
programs; (2) deep cleaning of facilities; (3) purchase of
sick leave for COVID-19-affected employees. The SBA
personal protective equipment; (4) improved teleworking
may provide an advance payment of up to $10,000 that
capability; (5) welfare assistance and social services
does not have to be repaid.
programs (including assistance to individuals); and
(6) assistance to tribal governments.
Although the CARES Act itself does not exclude particular
types of businesses from eligibility for these loans, it does
Indian Health Services (IHS) Funding. The CARES Act
not provide explicit relief from existing SBA regulations
designates $1.032 billion in additional IHS funding for the
that prohibit funding certain categories of businesses. For
COVID-19 response, available until September 30, 2021.
example, 13 C.F.R. § 120.110 prohibits SBA loans to
Of that amount, up to $65 million is available for electronic
businesses that receive more than one-third of their gross
health record stabilization and support, including tribal
income from legal gaming or that engage in any illegal
consultation. Nearly half of the allocation—at least $450
activity. Thus, without additional legislation or rulemaking,
million—must be distributed (1) through IHS’s directly
tribally owned casinos and marijuana operations may be
operated programs, (2) to tribes and tribal organizations
unable to access SBA-administered loans and grants.
under the Indian Self-Determination and Education
Assistance Act (ISDEAA), and (3) through contracts or
Direct Assistance for Tribal Governments. Section 5001 of
grants with urban Indian organizations via the Indian Health
the CARES Act creates a Coronavirus Relief Fund (CRF)
Care Improvement Act. Funds transferred under the
of $150 billion for FY2020 and sets aside $8 billion of that
ISDEAA throughout the CARES Act are explicitly one-
amount for tribal governments. The entire $8 billion must
time transfers with no appropriated contract support costs.
be distributed, and distribution is based on the tribes’
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The CARES Act: Implications for Tribes
Department of Health and Human Services Funding. The
reopen as appropriate, as well as to “provide child care
Centers for Disease Control and Prevention received
assistance to health care sector employees, emergency
additional funding through September 30, 2024, of which
responders, sanitation workers,” and other workers essential
not less than $125 million is set aside for “grants or
to the COVID-19 response.
cooperative agreements” with “tribes, tribal organizations,
urban Indian health organizations, or health service
Children and Families Services Funding. The CARES Act
providers to tribes.” The money may be used for
allocates an additional $1.874 billion for various Children
“surveillance, epidemiology, laboratory capacity, infection
and Families Services programs. There are no specific set-
control, mitigation, communications,” and other COVID-19
asides for tribes or tribal entities, but increased funding is
preparedness and response activities.
available through existing programs like the Community
Services Block Grant Act, the Head Start Act, the Family
The Substance Abuse and Mental Health Services
Violence Prevention and Services Act, or the Stephanie
Administration received an additional $425 million in
Tubbs Jones Child Welfare Services program.
COVID-19 response funding, available through September
30, 2021. Of this amount, at least $15 million “
Distance Learning, Telehealth, and Broadband Grants.
shall be
The CARES Act provides $125 million in additional
allocated to tribes, tribal organizations, urban Indian health
funding to two of the Department of Agriculture’s Rural
organizations, or health or behavioral health service
Development grant programs: Distance Learning and
providers to tribes.”
Telemedicine Grants can fund software and equipment for
distance learning or telemedicine, and ReConnect
Of additional funds designated to the Public Health and
Broadband grants can fund construction or improvement of
Social Services Emergency Fund, $180 million will be
broadband service facilities. Grants are awarded on a
available for the Health Resources and Services
competitive basis, and tribes in rural areas (defined as
Administration’s Office of Rural Health Policy “to carry
populations of up to 20,000) are generally eligible to apply.
out telehealth and rural health activities,” with at least $15
million allocated to tribes, tribal organizations, urban Indian
Rural Health Care and Elder Care Training. Section 3401
health organizations, or health service providers to tribes.
amends provisions supporting development of primary care
training programs. The CARES Act provides that priority
The CARES Act also provides $20 million of increased
for grants and contracts may be given to qualified
funding under the Older Americans Act to the existing Title
applicants that train residents in rural areas, including tribes
VI nutrition program for tribal elders.
and tribal organizations in such areas.
Bureau of Indian Education (BIE) Funding. The CARES
Similarly, in the context of grants for training health care
Act allocates $69 million to the BIE for COVID-19
professionals in geriatrics, Section 3403 specifies that
response activities, including at least $20 million for tribal
priority shall be given “to applicants with programs or
colleges and universities. The remainder may fund salaries,
activities that are expected to substantially benefit rural or
transportation, and information technology. Separately,
medically underserved populations of older adults, or serve
nearly $154 million is reserved for BIE-operated and -
older adults in Indian Tribes or Tribal organizations.”
funded programs out of appropriations for the Department
of Education’s (ED’s) Education Stabilization Fund.
Education Waivers. Section 3511 permits tribes, along with
state and local education agencies—including BIE and BIE-
Department of Housing and Urban Development (HUD)
funded schools—to request national emergency education
Funding. The CARES Act appropriates $300 million for
waivers where the COVID-19 outbreak prevents or hinders
HUD’s Native American Programs account, and reserves
compliance with certain requirements, including some
two-thirds of that amount for Native American Housing
related to assessment and reporting.
Block Grants under the Native American Housing
Museum and Library Assistance. The ED’s Institute of
Assistance and Self-Determination Act of 1996
Museum and Library Services will receive $50 million to
(NAHASDA). The remainder is available for grants to
aid responses to the COVID-19 outbreak, including “grants
tribes through the Indian Community Development Block
to States, territories and tribes to expand digital network
Grant (ICDBG) program under the Housing and
access, purchase internet accessible devices, and provide
Community Development Act of 1974. NAHASDA funds
technical support services.” The CARES Act waives
have already been allocated using the funding formula from
matching fund requirements for these grants.
FY2020. The Secretary of HUD must prioritize distribution
of ICDBG funds—“without competition”—to “activities
Fishery Relief. Section 12005 includes tribes among the
and projects designed to prevent, prepare for, and respond
entities and individuals who may be “fishery participants”
to” the COVID-19 outbreak.
eligible for assistance (including direct relief payments) for
either substantial economic losses to fishery-related
Selected Other Provisions with Tribal Implications
businesses or “negative impacts to subsistence, cultural, or
Child Care and Development Block Grant (CCDBG). The
ceremonial fisheries.” Congress appropriated $300 million
CARES Act earmarked an additional $3.5 billion for the
for this assistance.
CCDBG, specifying that the funds be used “to supplement,
not supplant” existing child care assistance by states,
Mainon A. Schwartz, Legislative Attorney
territories, and tribes to low-income families. Recipients
may use funds to help child care facilities stay open or
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The CARES Act: Implications for Tribes

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