This is section 4 of 5 sections. Access the Full PDF Version of the Comment Compilation Here.
Comments in grey box formatting were received after the comment deadline.
1. Contract Support Costs
BIA should find that Contract Support Costs (CSC) are applicable to these funds. Regardless of the source of direct funding or whether the funds are non-recurring, CSC costs are incurred by Tribal governments and must be paid. Tribes negotiate their Indirect Cost Rates in good faith, and those costs should be allowable. . (19-Confederated Tribes of Siletz)
Finally, we strongly recommend that DOI secure additional funding to cover contract support costs for ARP funds. Similar to the $7.5 million DOI reserved to cover Federal administration and oversight, Tribes incur similar expenses in the administration of Federal programs and services that must be paid. (67 - Jamestown S’Klallam)
DOI must have a plan of action for timely payment of ARPA contract support costs. No later than thirty days after ARPA funds distribution, BIA should have a plan in place to capture data regarding estimated CSC needs and a timeline to share with tribes that details the process from end-to-end. (37-Citizen Potawatomi Nation)
The Choctaw Nation strongly recommends that the BIA declare that Contract Support Cost (CSC) funding will be added to these ARP funds. Regardless of the source of direct funding or whether the funds are non-recurring, CSC costs are incurred by tribes and must be paid. Should the BIA or BIE require tribes to fund CSC requirements with direct funds, our ability to address COVID-19 needs will be substantially reduced. Further, CSC calculations and payment should be made as soon as practicable, rather than delaying until the end of the fiscal year. (23-Choctaw Nation)
The [Chippewa Cree] Tribe is also concerned regarding collection of Contract Support Costs, the tribes were required to submit for CSC for the CARES Act funding, however there has been no further communication regarding submittal of these particular reports. The tribe would like to ensure that there is clear direction and communication regarding collection of these costs. (27-Chippewa Cree Tribe)
In addition to the specific questions posed by Indian Affairs, SGAC strongly recommends that Indian Affairs pay Contract Support Costs (CSC) on ARP funds. Regardless of the source of direct funding or whether the funds are non-recurring, CSC costs are incurred by Tribal governments and must be paid. As you know, since 2014, Congress has fully paid CSC in a separate line item to Tribal governments to cover the costs of providing services to their citizens under contracts and compacts with the DOI. Therefore, no portion of the ARP allocation should be used to pay CSC. The SGAC requests that CSC calculations and payments be made as soon as possible, rather than delaying the release of these funds until the end of the fiscal year. (31-Self-Governance Advisory Committee)
It is also vital that contract support costs be accounted for with ARPA funding. The intent behind the relief legislation is to alleviate burdens and costs for tribal governments, not to add to them. As such, the BIA should develop funding allocation methodologies that account for contract support costs as needed. (35-Santa Clara Pueblo)
DOI must have a plan of action for timely payment of ARPA contract support costs. Relief funds for both CARES and ARPA have generated their own significant administrative burden not covered by the existing CSC recovery of tribes. No later than thirty days after ARPA funds distribution, BIA should have a plan in place to capture data regarding estimated CSC needs and a timeline to share with tribes that details the process from end-to-end. Tribes should be paid CSC on both CARES and ARPA funds in lump sums based on a simple application of approved rates against the total amounts received in each distribution. (37-Citizen Potawatomi Nation)
MCN maintains that contract support costs (CSC) should be made available on any funding distributed to tribal governments or organizations as would normally be provided through a contract or compact. Further, MCN requests that the BIA collect CSC data in an orderly and professional manner that respects tribal decisions regarding the utilization and timing of funding deployment. Previously, this information was collected haphazardly and there are still tribes awaiting CSC payments from similar 2020 distributions, including MCN. (80-Muscogee Creek Nation)
2. Deference to Tribal Governments in Use of Funds
Deference should be granted to tribal governments and sovereignty. As sovereigns, Santo Domingo Pueblo and all tribal governments should be afforded the respect to expend funds in a responsive manner that is determined to be in the best interests of the tribal community served. Consistent with this premise, Santo Domingo Pueblo strongly advocates for Tribal governments to be allowed the same deference when it comes to the funds disbursed under the incoming relief legislation. Many federal agencies are active in addressing COVID-19 and its impacts, with efforts moving quickly. We ask that, as trustee, you ensure tribal nations' voices are meaningfully engaged in decision making regarding the ways in which DOI carries out the COVID-19 response effort.
- Treasury and Interior are therefore urged to conduct and complete meaningful consultation as soon as possible in order to allocate the appropriate amounts. In doing so, Treasury and Interior should resist any suggestions from non-Tribal government entities to confuse this duty with a broader mandate, not supported by the law, to distribute funds beyond federally recognized Tribal governments.
- We also ask that you facilitate tribal nation involvement in decision making by other federal agencies regarding their COVID-19 response efforts as they relate to Santo Domingo Pueblo and the rest of Indian Country. Our Tribe is on the ground taking care of our people through this crisis and we know best what our needs are at this critical time. A safe harbor is necessary and equitable because Tribal governments have repeatedly sought direction economic stimulus assistance under CARES Act funds and been met with silence, re-direction, and confusing advice. Congress intended the funds to aid governments in responding to this pandemic and entrusted Treasury with providing guidance to recipients. Further, Treasury and Interior have a trust responsibility to Santo Domingo Pueblo and, accordingly, should assist tribal governments that have been seeking clarification in good faith to stay in compliance and meet the urgent needs of their citizens.
- In closing, Santo Domingo Pueblo appreciates Treasury and Interior's swift action to implement their consultation duties, and looks forward to the completion of a well-reasoned distribution formula. These funds will be critical to assist Tribal governments in withstanding the impacts of COVID-19. We stand ready to work with you to ensure your departments are prepared to uphold the federal trust responsibility to our tribal nations as you work to address the impact of this global crisis. (02-Santo Domingo)
The BIA should disburse available ARPA funds to Indian Tribes as quickly as possible and it should provide Tribes with the greatest possible flexibility in using these funds to meet the needs of their people during this public health emergency. The determinations of Indian Tribes concerning the relationship between public health and safety, economic relief, and tribal general welfare are entitled to deference under prevailing Federal law and policy and should not be disturbed. See, e.g., Pub. L. 113-168, § 2(b) (2014), codified at 26 U.S.C. sec. 139E note (providing that, under the Tribal General Welfare Exclusion Act, “deference shall be given to Indian tribal governments for the programs administered and authorized by the tribe to benefit the general welfare of the tribal community”). (71 - Cheyenne River Sioux) (73 - Sisseton-Wahpeton Oyate)
It is critically important that DOI allows for the broadest possible use of the funding so that Tribes receiving ARP A funding have maximum flexibility to tailor the funding to fit the specific needs of their own communities. […] The reason is simple-Tribal communities know what is most needed and what will work best in their own communities. They are best equipped to identify priorities and apply funding where it is needed most, when it is most needed.
- The same self-governance principles should guide DOI as it determines what parameters to establish for allowable uses of the Tribal ARP A funding in order for this funding to be most efficiently used for the benefit of Tribal Communities. The agencies should adopt an approach in which Tribes may determine for themselves how to put the ARPA funding to use in their own communities, so long as the funding is generally used in furtherance of the intent of the ARP A for expenditures made necessary by the corona virus pandemic. This approach would be grounded in proven self-governance principles that have and are working very well in Indian Country today, and will allow Tribes to establish their own priorities and utilize the ARP A funding in ways that are tailored to each individual Tribal community.
- Consequently, in keeping with self-governance principles, we request the following in your overall approach:
- Do not establish a laundry list of qualified expenses that is exclusive so that if it is not on the list, it is not a qualified expense. And do not include restrictions on expenses that unnecessarily tie up this funding so that such restrictions become barriers or unknowns that raise concerns about audits. That has been a problem with CARES Act funding.
- Ensure that the deadlines to expend the funds are realistic and feasible. Extend them out to give T1ibes adequate time. The effects of the pandemic will be impacting us for years.
- Whatever the process, ensure that all Tribes, large land based or not, large or small population, are receiving an equitable share of the funding, if necessary, by distributing a percentage of the funding as a base amount not tied to other considerations such as population. (48-Kawerak Inc.)
We recommend that the BIA allocate [Tribal Government Services] funds directly to tribal governments under the tribal government services sub-category for internal capacity development. Such funds should be allocated, in part, by taking into consideration population size and should not be overly restrictive but all for broad expenditures to address local government needs. (24-Oglala Sioux Tribe; see comments for more background)
We request that contract and compact amendments be streamlined and not impose any additional restrictions or requirements other than those included in the ARP. [U]nder the prior administration, BIA initially placed inappropriate limitations on allowable uses of the funds authorized by the CARES Act. Although the limitation was ultimately reversed, it caused significant delays and confusion that prevented Tribal governments from using the funds to respond to urgent needs. To avoid a similar situation, the SGAC expects Indian Affairs will ensure that its offices do not place such limitations on use of funds authorized by ARP. (31-Self-Governance Advisory Committee)
Please consider these comments and recommendations:
1. The Self-Governance programs have an established distribution methodology.
2. Existing Self-Governance agreements are the fastest, easiest way to distribute funds to the Osage Nation and other Self-Governance tribes.
3. We have distributed other COVID restricted funds that are one time funding on a regular basis since the beginning of the pandemic. (34-Osage Nation; see comments for more background)
[Tribal Government Service] funds should be allocated, in part, by taking into consideration population size and should not be overly restrictive but allow for broad expenditures to address local government needs. We recommend that the BIA provide [housing improvement] funds with maximum flexibility to tribal governments pursuant to a needs-based methodology. In summary, we recommend that the $900 million BIA allocation and the $850 million BIE allocation be distributed quickly with maximum flexibility and minimum reporting requirements. (35-Santa Clara Pueblo; see comments for more background)
We ask that you respect Tribal sovereignty by recognizing Tribal government authority to allocate funds in accordance with the Act. The Act identifies the intended purpose and allowable uses for the funds. Agency interpretations that limit allowable uses of the funds hinder Tribal governments' efforts to protect the health and welfare of their citizens and communities. (19-Confederated Tribes of Siletz)
There should be a reasonable timeline in which to spend the funding each tribe receives. Our Tribe was relieved when past funds were allocated to the Government Relief Fund under the CARES Act, but we remain concerned about the continued potential for inordinate distribution delays and resulting hardship by Tribes to spend funding by the initial deadline. Amidst these delays, the socio-economic impact of the pandemic grew and our Tribe worked to meet the growing response and recovery needs of our tribal citizens. In addition, it is likely that the nation will have to address the current pandemic for many more months and even years to come. This is especially true for our Pueblo whose economic and health disparities have become exacerbated by the pandemic. In addition to recurring outbreaks of COVID-19, we need to prepare in advance for the pandemics of the future. We urge your consultation with our Pueblo and other Tribes to determine a reasonable timeline in which we have to spend incoming relief funding. (02-Santo Domingo)
The fast track deadline for the expenditure of the funds, requires planning and immediate implementation. We are staffed and prepared to implement the expenditure of these funds. (34-Osage Nation; see comments for more background)
There is no time for developing new funding mechanisms as the public health emergency continues to rage on. Neither is there a need. BIA should send these monies out to tribal nations through existing program structures, where appropriate, and directly to tribal nations where such structures are not in place or are not inclusive of all tribal governments. Furthermore, the BIA should make immediate direct payments from these funds to tribal nations through their existing ISDEAA agreements, as authorized by the ARPA, where appropriate and requested by tribal leaders. (35-Santa Clara Pueblo; see comments for more background)
4. Criticisms of The Consultation
Currently, there are many Tribal consultations taking place within a small window to listen, respond, and write comments. We would recommend for the future, additional time to respond for written comments. Although the comments are due on March 31st, four (4) business days from the Tribal consultation, there needs to be consideration of all the other federal agencies also conducting their Tribal consultations. There are deadlines within days of each other, and it can be cumbersome to provide responses in the time for associated deadlines. (11-Ak-Chin Indian Community)
We appreciate the effort DOI-IA has made to hold consultations and develop distribution plans in such a short time-frame. However, so little detail has been provided on the specifics of possible distribution methods it is difficult to make considered recommendations. (60 - Bristol Bay Native Assn)
It is also untrue that TPA money cannot be reprogrammed for this type of service; Aid to Tribal Government funding can be reprogrammed into tribally designed services that provide the same functions. The lack of clarity in this part of the consultation documents is of great concern. (60 - Bristol Bay Native Assn)
Please consider Alaska Native Corporations (ANCs) to receive funding.
- As an ANC we are required to treat all shareholders equally. My Tribe, Aniak Tribe has not helped me with the CARES ACT funding, along with many tribal members that do not reside in Aniak. There are Villages in The Kuskokwim Corporation region. We have villages that are isolated and have high costs of goods and are having them to live off the land. The only way to travel in and out of the villages is by plane and traveling the river by boat or on the ice road. Some of these villages do not have running water and no flush toilets. Imagine always packing drinking water and going to the community washeteria to wash your clothes and showering. We also need medical attention in our area. There has been a number of people who have died due to medical issues, they have very limited jobs and are required to rely on State funding regarding medical. This process goes to the YKHC health clinic and they send the patients information to the State of Alaska and this process takes weeks to month for our people to get seen, only to make another appointment and to follow this long process again.
- Please think of the Alaskan Village Tribal members and Alaska Nave Corporations to help with the struggles that they are facing. Most of the Tribes in our area have not had helped with the CARES ACT funding and these Tribal Members have been going to the Alaska Nave Corporations to seek help. I hope some of this funding will go to Alaska Nave Corporations because they are the ones helping Tribal Members that do not reside in the villages. (04-Kimberly Gregory)
Qinarmiut Corporation supports the [Native Village of Tuntutuliak] in receiving an equitable share of the BIA ARP funding, as it would meet the greatest needs of the tribal members. This would meet the…high costs of living in rural Alaska that are not on the road system. Basic necessities are supplemented through general assistance from the state, and would be disastrous if there was no assistance in place. Qinarmiut Corporation urges BIA to consider the unmet sanitation needs of the village and consider the high cost of living in rural Alaska. (26-Qinarmiut Corporation; see comments for more background)
The initial distribution of Coronavirus Relief Funds allowed the Walker River Paiute Tribe to implement critical programs that met urgent, but not all needs of members, these critical funds enabled the tribe to implement basic preventative measures and responses to the COVID-19 pandemic. While the initial funds addressed critical and immediate needs, much remains to be done. The highly restrictive uses of funds, unrealistic timeline placed on the use of funds, and overly burdensome reporting requirements placed on tribes under the CARES Act only added to the many challenges the Walker River Paiute Tribe faced in implementing a comprehensive, long term, sustainable response plan to the pandemic. (68 - Walker River Paiute)
ANVCA requests that each tribe receives a minimum base allocation of $10 Million. Alaska faces unique challenges, and COVID has disproportionately affected our people. (61 - ANVCA)
The absence of reliable, accurate, current data is a barrier to Tribes’ ability to reach our full potential and self-reliance goals. Substandard or non-existent data throughout the Federal system has exacerbated the impacts of this deadly virus because it has impeded Tribes’ ability to secure adequate resources. It is incumbent upon the agencies, as trustees, to work collectively with the Tribes to quantify the true unmet need/unfulfilled Federal obligation with credible metrics that will demonstrate an accurate community profile for each Tribe. We need economic statistics and data that establish and drive policy goals, ensure effective implementation of programs and services, measure funding impacts, prove effective and efficient use of funding, and to demonstrate program success. At this point in time, there is not a system in place that captures the data needed. There is an absence of good data agency wide. In fact, DOI imposed a moratorium on the collection of needs-based data for Tribes for the last four years and we view this as a failure of the trust and one of the contributing factors to the devastating effects of the pandemic on our communities. The agencies need to be held accountable and directed to work in partnership with Tribes to collect data that quantifies the true unmet needs/unfulfilled Federal obligations in Indian Country. (67 - Jamestown S’Klallam)
We are fully supportive of providing sufficient funding to DOI for administrative costs and oversight to ensure that trust and treaty obligations to Tribes are efficiently and effectively carried out. We are disappointed, however, that information on how the funding would be applied to Federal administrative costs and oversight was not provided on the call. We trust that DOI will exercise discretion in ensuring that any funding reserved to carry out the Federal functions associated with administrative costs and oversight will be wisely spent. Transparency breeds trust in the process and strengthens the Tribal-Federal relationship. (67 - Jamestown S’Klallam)
This is a brief confirmation that Tuntutuliak Traditional Council supports Calista Corporation’s Comment on American Rescue Plan Investments for Indian Affairs. (56- Tuntutuliak Traditional Council)
We appreciate the broad categories of allowable expenditures that Congress has earmarked for the $772.5 million sub-allocation of the BIA's new relief funds. Those determinations have been left to the BIA's discretion. We urge BIA to account for the recommendations of tribal leaders as it determines how to distribute the $772.5 million among these accounts. We suggest that:
- BIA allocate roads funding as a separate pot of funding from any law enforcement and justice services [and] that the BIA allocate the funds through its general BIA Roads Maintenance program and a new targeted roads improvement program for specific projects funded based on a tribal nation's geographic size, mile inventory, remoteness, and extreme seasonal weather conditions. The funds should cover maintenance, construction, and road equipment procurement.
- BIA allocate and/or broadly allow for workforce development programs to benefit from the new $772.5 million sub-allocation of the ARPA.
- The BIA child welfare and related services sub-category must be expansively defined to include all…aspects of holistic child health.
- [T]argeted tribal allocation for…services that was provided as part of the Indian health system title of the ARPA…we recommend that the BIA and the Indian Health Service coordinate leveraging opportunities between their two pots of funding on this issue. Tribal governments should be authorized to the greatest extent possible to expend these monies jointly for the furthest reach in the community.
- ARPA child welfare funding should be provided broadly for allowable expenses in this area of local need, including for facilities procurement, maintenance, and new construction. (24-Oglala Sioux Tribe; see comments for more background)
[T]he Yurok Tribe must once again insist that Interior follow Congress’ direction and implement an update to its base funding. We are located in a beautiful and precious but isolated and rural part of California, many hours away from any major population centers. Parts of the reservations still lack electricity, cell phone, internet service, and proper roads, making serving our community more difficult. Congress recognized these disparities and directed Interior to address them in Senate Report 100-564 regarding the Hoopa Yurok Settlement Act (“HYSA”). This direction from Congress remains unfulfilled. In addition, we have the largest population of tribal members of tribes in California, with over 6,200 enrolled members. The lack of infrastructure and resources on the Reservation are particularly challenging with so many members to serve during the COVID-19 pandemic. While all tribes share in a general lack of proper federal funding for operations, the Yurok Tribe faces significant injustice even as compared to other California tribes. The Yurok Tribe has been attempting to work with Interior for many years on the issue that our annual base funding was never properly set. Implementing the HYSA to finalize a list of members took years (ending in 2007) and our annual base funding, set in 2003, does not reflect that our membership has tripled. As we have repeatedly advocated with Interior, the Yurok Tribe’s annual base funding considering membership, funding formulas with other tribes, and our unique inequities that Interior was tasked with resolving, should be several times over what we currently receive. Unlike some other tribes, Yurok does not have any significant sources of discretionary income to fill that gap. This inequity should be addressed immediately, building on the workgroup active in 2014-2015, to ensure no further distributions continue to rely on this historic and continuing inequity. (30-Yurok Tribe)
MCN is opposed to any effort to collect data or reporting on aid to tribal government or HIP funding which is not required by statute. Under the Indian Self-Determination and Education Assistance Act, BIA cannot enforce reporting requirements which are not statutorily required or financially supported through federal funding, therefore BIA should avoid any administratively burdensome requirements with regard to deployment of the funding distributed to tribes through existing funding mechanisms. (80-Muscogee Creek Nation)
Washington, DC 20240