On March 13, 2020, President Trump that the Coronavirus (COVID-19) was a National Disaster, which has resulted in an unprecedented National COVID-19 Public Health Emergency and Economic Crisis. “This pandemic has the potential to cause severe consequences for our country’s national and economic security” President Trump warned. The President called upon the State, Local, and Tribal Governments to coordinate with the Federal Government to fight COVID-19.
As the National COVID-19 Public Health Emergency unfolded, based upon guidance from the Centers for Disease Control (CDC), President Trump issued Coronavirus Guidelines for America: 30 Days to Stop the Spread, on March 29, 2020 advising Americans to: “Avoid Social Gatherings in groups of 10 or More People.
Indian Gaming and Tribal Governments
Indian gaming is Indian hospitality, whereby Indian tribes invite visitors to come to Indian lands for recreation, entertainment, relaxation and social gatherings. Tribal Governments are responsible governments, and Indian nations and tribes answered the call of the President, the CDC, and State Governors to temporarily close public facilities, including Indian gaming casinos and resorts. Tribal Governments have joined the national effort to “shelter-in-place” to allow the Coronavirus to pass over the American people.
Indian gaming is Tribal Government gaming, which generates funding for essential tribal government services including: Education, Health Care, Law Enforcement and Public Safety, Fire Protection, Water and Sanitation, Child and Elder Care, Cultural Centers and Museums. Through Indian gaming, Tribal Governments create jobs, hundreds of thousands of jobs: 315,000 direct jobs and more than 700,000 direct and indirect jobs. In rural areas, much of Indian gaming is small business, with less than 500 employees.
Accordingly, when Congress established the Paycheck Protection Program for Indian tribes, Tribal Governments were pleased that Indian Gaming employees should be protected by the CARES Act. The Paycheck Protection Program is designed to save jobs and business operations. Congress created the new program to give any business, including
“any ... Tribal business concern described in section 31(b)(2)(c),” that meets the 500 employee or industry size standards necessary resources to preserve employee jobs during this time.
Under the heading “Increased Eligibility,” Congress extended coverage of the program to “any business” under the size threshold, and expressly included “any ... Tribal business concern” that meets the HUB Zone program definition of Tribally owned business, codified at 15 U.S.C. §637a(b)(2)(C). The relevant provision of the CARES Act is below:
SEC. 1102. PAYCHECK PROTECTION PROGRAM.
(a) IN GENERAL.—Section 7(a) of the Small Business Act (15 U.S.C. 636(a)) is amended—
(2) by adding at the end the following...
“(36) PAYCHECK PROTECTION PROGRAM.—
‘‘(D) INCREASED ELIGIBILITY FOR CERTAIN SMALL BUSINESSES AND ORGANIZATIONS.—
‘‘(i) IN GENERAL.—During the covered period, in addition to small business concerns, any business concern, nonprofit organization, veterans organization, or Tribal business concern described in section 31(b)(2)(C) shall be eligible to receive a covered loan if the business concern, nonprofit organization, veterans organization, or Tribal business concern employs not more than the greater of—
‘‘(I) 500 employees; or
‘‘(II) if applicable, the size standard in number of employees established by the Administration for the industry in which the business concern, nonprofit organization, veterans organization, or Tribal business concern operates.”
Yet, a few days after Congress and the President enacted the CARES Act, the SBA released its Interim Final Rule on April 2, 2020 (Docket No. SBA-2020-0015) based upon its Standard Operating Procedure (“SOP”). SBA’s rule does not comply with the statute because it included limitations on small business coverage from its Standard Operation Procedure, including 13 C.F.R. 120.110, including those that generate more than one-third of their revenue from legal gambling, directly conflicts with the increased eligibility for all Tribal business concerns provided in the statute. This time of National Emergency is no time for SOPs, as Congress provided in the establishment of Increased Eligibility for the Paycheck Protection Program in the CARES Act.
Numerous Senators and Congressmen wrote to Treasury and SBA requesting an administrative clarification that would remove the restriction on legal gaming from 13 C.F.R. 120.110. On Monday, SBA issued its clarification, which instead of removing the regulatory rule, merely amends it to permit “Mom and Pop” businesses that earn
$1,000,000 or less per year. That does not provide regulatory relief to small tribal gaming and we can no longer wait for further regulatory relief, given the lack of understanding of the SBA at the “tribal consultation” call on April 14, 2020.
Please send the Attached Letter to Your Senators and Congressmen As Soon As Possible because Congress has the next COVID-19/CARES Act+ Legislation Under consideration now. We can no longer wait for the SBA to come to its senses.
Please reach out to Danielle Her Many Horses at firstname.lastname@example.org if you have any questions or need additional information.
Thank you for all that you do to protect and preserve Indian gaming and Indian sovereignty.