Vice-Chairman Denver Report and Updates
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Vice-Chairman Denver Report and Updates Since the COVID-19 crisis I have been engaged with several Federal, State and Tribal teleconference meetings. Due to travel restrictions, many of my meetings have been via teleconference calls. These calls vary from 1 – 4 hours with important information being discussed. Indian Country COVID-19 – White House The Indian Country COVID-19 meetings are facilitated by Tyler Fish who is the Executive Director for the White House Council on Native American Affairs. The teleconference calls have been every Friday with tribal leaders throughout the nation. COVID-19 Funding Information– CARES Act On March 27, 2020, the president signed into the law the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The new law contains almost $2 trillion of funding to provide support to individuals, governments, and businesses impacted by COVID-19. The legislation also provides approximately $10 billion of funding for tribal citizens, governments, urban Indian organizations, and tribal businesses impacted by COVID-19 through different programs and funding mechanisms. The biggest source of funding in the legislation for tribal and state governments comes from the Coronavirus Relief Fund at $150 billion, which has $8 billion reserved for tribes. The money under this funding can be used for allowable costs that are necessary to address COVID-19. The CARES Act is the third bill that Congress has passed since early March to address impacts by from the COVID-19 pandemic. Highlights of the legislation include funding for individual payments to taxpayers, expansion of unemployment benefits, student loan forbearance, food for food banks, loans and grants to small and large businesses, funding for hospitals and health providers, and funding to stabilize state, tribal, and local governments. The first bill, H.R. 6074 (Phase I), contained $8.3 billion of emergency funding to address the prevention and treatment of COVID-19 focusing on support for testing, vaccine development, and additional costs for state and local tribal health department. Tribes were allocated $40 million under the Phase I bill through the Centers for Disease Control, but the process of getting these funds out to tribes has been slow and overly complex according to many tribal health advocates. The second bill, H.R. 6201 (Phase II), contained $100 billion of aid for paid sick leave, free coronavirus testing, expanded food assistance, additional unemployment benefits, and requirements that employers provide additional protection for healthcare workers. Tribal funding under the Phase II legislation includ- ed $64 million for the Indian Health Service and a $10 million set-aside for Older Americans Act grants in Indian Country (for nutrition and other direct services). In (Phase III) legislation tribal funding is much more extensive than in the previous bills. There is funding for economic development, employment, tribal governance, human services, housing, health, education, and nutrition programming. Phase IV – “Heroes Act” was pased by the House of Representatives and now at the Senate for enactment, if approved then to the President for final approval. There are potential funding for Indian tribes in this leglislation. Continued on page 2 1 At the last teleconference held on Friday, May 23rd, the IHS Director announced that an additional $500 million dollars was awarded to IHS. IHS will fund tribal health facilities to perform COVID-19 tests and work at tracking of the corona virus on tribal lands. Department of Human & Health Services My last trip to Washington, DC was February 5-6 for the DHHS Secretary’s Tribal Advisory Committee (STAC) meeting. There was very little discussion about the pandemic, but we were discussing several issues regarding the Indian Health Service (IHS), Office of Family Assistance (OFA), and the Administration for Children & Families (ACF) programs. I am fortunate to sit at the table with some very important tribal leaders, such as Jonathan Nez – Navajo President, Chief Chuck Haskin – Cherokee Nation, Governor Bill Anoatubby – Chickasaw Nation of Oklaho- ma, Aaron Payment, Chairman – Sault Ste Marie Tribe of Chippewa Indians, Lee Spoonhunter, Northern Arapahoe Tribe, Gail Hatcher, Klamath Tribes, Julian Bear Runner – Oglala Sioux, Tino Batt, Shoshone Bannock Tribes and STAC Chairperson Tori Kitcheyan, Winnebago Tribe of Nebraska. Since the start of the COVID-19, our planned trip to the Center for Disease Control (CDC) meeting in Atlanta, GA was canceled. The DHHS STAC has been having bi-weekly meetings via teleconference and through WebEx meetings. Administration for Children & Families My last ACF Tribal Advisory Committee (TAC) was March 2-3 in Washington DC. ACF TAC is now having bi-weekly meetings with all programs under their administration. I will give updates on our upcoming ACF Tribal Consultation meeting scheduled for June 9-10. California Tribal Families Coalition I was seated on the California Tribal Families Coalition (CTFC) Board of Directors on May 21st via a teleconference meeting. Comprised of tribes and tribal leaders from across the California, the (CTFC) mission is to promote and protect the health, safety and welfare of tribal children and families, which are inherent tribal governmental functions and are at the core of tribal sovereignty and tribal governance. The Indian Child Welfare Act (ICWA) has been under attack from Fifth Circuit Court of Appeals Rehears Earlier Decision in Brackeen v. Bernhardt In October of 2019, the United States Fifth Circuit Court of Appeals granted a petition by the plaintiffs in Brackeen v. Bernhardt to rehear the earlier three-judge panel decision in the Fifth Circuit supporting the Indian Child Welfare Act’s (ICWA) constitutionality. (In 1978, nearly 40 years ago, the passage of the Indian Child Welfare Act, 25 U.S.C. §§1901 et seq. (ICWA), was considered landmark civil rights legislation). The plaintiff’s petition asked for a rehearing en banc that sought to have the earlier decision reheard by all of the judges that sit on the Fifth Circuit, which in this case was 16 judges. The plaintiffs, who are seeking to have ICWA declared unconstitutional, include three states (Texas, Indiana, and Louisiana) and several private parties. After granting the plaintiff’s petition, the (Fifth Circuit had oral argument on January 22, 2020, in New Orleans, Louisiana.) At the oral argument, two judges asked many of the questions with several others asking only one or two questions each. Four of the 16 judges did not ask questions during the hearing. Most of the questions focused on whether ICWA violates the United States Constitution by unlawfully commandeering state governments to enforce ICWA and whether ICWA is a race-based law. While state courts are required to honor federal law, state officials and state executive branch agencies are not required to enforce federal law unless funding is attached to their enforcement/implementation activity. The arguments in court examined whether state agencies were significantly burdened by ICWA’s requirements and whether states received any federal support Continued on page 3 2 (funding) for their part in ICWA. The other central issue centered on whether ICWA’s application was based upon an Indian child’s race or political status as a citizen of a sovereign tribal nation. The plaintiffs argued that ICWA was based upon a racial classification, while the federal government and tribal interveners argued it was based upon a political status as a citizen of a tribal nation. One additional observation from the hearing was that many of the judges were not familiar with how child welfare typically works. This clouded the debate on how different legal theories in the case applied. Because of the complexity of the case, a decision from the Fifth Circuit is not expected until this summer or possibly into the fall of 2020. 77 members of Congress (bipartisan), Native American women, American Civil Liberties Union, and others, Quapaw Nation, Casey Family Programs and 30 child welfare organizations, Indian law professors, Administrative law and Constitutional law professors, Professor Greg Ablavsky—Stanford School of Law (Constitutional originalist). “ICWA is an important law that helps protect our children from being separated from their tribal communities and their culture.” California is home to the nation's largest Native American population and leads the nation in ICWA-related appeals, with more than 150 cases appealed in 2017 alone. Since a large percentage of California's Native American population originates from out-of-state tribes, the legislation and rule change will help ensure these significant costs no longer prevent tribes from having proper representation for these important cases. Last year, the California ICWA Compliance Task Force submitted a report to the California Attorney General’s Office that included a set of recommendations from California tribal leaders designed to further ICWA implementation in California and reduce the number of ICWA appeals. One recommendation from that report was to reduce the financial barriers faced by tribes wishing to participate in their children’s cases, enactment of AB 3047 is one step toward fulfilling that goal. One big issue the CTFC will be addressing is the Adoption and Foster Care Analysis and Reporting System (AFCARS) Final Rule which was recently adopted by Federal Rule. The Children’s Bureau supports the development of state and tribal child welfare reporting systems to enable the collection and analysis of important information about children and families, as well as improve The Children’s Bureau supports the development of state and tribal child welfare reporting systems to enable the collection and analysis of important information about children and families, as well as improve case practice and management. CTFC will be working on concerns that tribes are being overlooked and at risk of losing their children in the state court system. The AFCARS originally had over 70 data elements the Department of Interior (BIA) used to identify Indian Children and with the new ruling it will only allow states to identify 5.