A look back on the CARES Act and what Indian Country can expect from the American Rescue Plan

Overall inability to adequately prepare due to time constraints and spending deadlines was a major challenge. The lack of a process for submitting expenditure plan requests, maintaining a comprehensive expenditure plan and budget, and maximizing the effectiveness of expenditures in alignment with the short-term and long-term needs of the tribe are all examples of observed preparation constraints.

The CRF funding was meant for immediate and direct relief to combat the direct impacts of the COVID-19 pandemic. It became very clear to the previous administration what tribes had been voicing all along: they have different needs and priorities than state and local governments. Infrastructure projects take a great deal of planning and project management to be successful. A stressed supply chain coupled with a labor shortage drove up the cost of these projects. In addition, tribes did not have a comprehensive “wish list” of executable projects in place to be able to quickly deploy these resources to execute. Projects that were embarked upon were often done in haste to ensure the project was completed before the end of the covered period. Overall, infrastructure enhancements were extremely difficult given a variety of factors, principally the condensed timeframe and spending restrictions. Looking forward to the ARP, such factors will be of a lesser concern given the greater duration of time to expend and specific reference to infrastructure allowability within the legislation.

Many tribes lacked the necessary capacity or expertise to oversee these federal funds on top of their existing federal funds and other tribal programs. This not only put a strain on the divisions responsible for overseeing federal programs, but also on other accounting functions such as purchasing, accounts payable and payroll. Additionally, many divisions or departments were now tasked with managing budgets that included federal funds, sometimes for the first time.

As noted, this funding was of great significance to nearly every tribal beneficiary, and inappropriate or unallowable expenditures that would require recapture or repayment back to the U.S. Treasury was of paramount concern. The risk of recapture is increased by the fact that the guidance for this funding was rather high level and was updated frequently by Treasury. It was crucial for tribes to obtain expertise in managing a large volume of federal monies while maintaining compliance with federal laws, regulations and compliance requirements. This remains an even greater concern as we look forward to the distribution of the ARP, which is expected to be much larger.

The most significant need for many tribes was providing direct relief payments to individuals and small businesses in a compliant manner. Treasury has specifically disallowed a direct, per capita payment. Creating, managing and executing a compliant program takes a significant amount of effort. Using customized technology solutions helped many tribes get money to their members while maintaining compliance.

Tribes struggled to interpret and execute agreements with other component units, including the gaming enterprise, tribal housing or utility authorities and other related enterprises. The structure of these agreements can have a significant impact on the required compliance with laws and regulations by the tribe or the recipient.