Written Testimony of Eric Henson, Executive Vice President, Compass Lexecon, and Research Fellow, The Harvard Project on American Indian Economic Development

April 28, 2021

Chair Burrows, Vice Chair Samuels, and Members of the Commission, thank you for the opportunity to participate in today’s hearing to testify about the civil rights impact of the COVID-19 pandemic on tribal communities.  

I have provided several substantive materials to the Commission in support of my testimony, comprising a letter and six policy briefs, that my colleagues and I authored over the past twelve months.  These materials specifically focus on two major pieces of legislation enacted to assist with coronavirus relief efforts.  These legislative actions are often referred to as the CARES Act of 2020 and the American Rescue Plan Act of 2021.  Both of these federal actions included significant allocations of funding targeted toward tribal communities.  This was important because early on in the spread of the pandemic (around March, April, and May of 2020) many of the hardest hit communities inside the United States were tribal. 

This was a blow to not only the health care needs of some of our nation’s poorest communities, but to the employment prospects and general well-being of many non-tribal citizens who depend upon tribal governments for employment and/or the provision of basic public services that make up our civic society.  In many instances, tribes have become the primary sources of law enforcement, public safety, social services, and educational support that we expect any state or local government to provide.  Tribes fill these critical roles while lacking the traditional tax bases enjoyed by state and local governments. Tribal enterprise revenues – both gaming and non-gaming – serve as the base from which tribal taxes are derived.  Prior to the total shutdown of their casinos in the first half of 2020, tribes’ gaming enterprises alone were channeling more than $12.5 billion per year into tribal government programs and services. For a time, no tribal casinos were operating, and the shutdown extended to many non-gaming enterprises and many tribal governmental programs and services.  These shutdowns, stemming directly from the COVID-19 crisis, was devastating tribes’ and their ability to fund provision of basic governmental services.  Tribes were being forced to make painful decisions about laying off employees, dropping workers’ insurance coverage, depleting assets, and/or taking on more debt. 

It was a dire situation, to say the least.  Our estimates are that tribal governmental and enterprise employment amounted to about $50 billion per year in worker income at the time of the shutdowns, with 80% of that income going to non-Indian employees. 

Keep in mind, this economic hit was taking place in many communities that have long suffered from under-investment by the federal government, and had only recently begun to climb out of what for generations had been largely characterized by high unemployment, low educational attainment, horrible health care outcomes, and poverty.  Tribes had begun to turn this story around, but the work was not complete by any means.  In an important study, the US Commission on Civil Rights found that as of 2003 “the federal government’s historic failure to carry out its promises and trust obligations [includes] longstanding and continuing disregard for tribes’ infrastructure, self-governance, housing, education, health, and economic development.”  Overall federal spending per person on tribal people (who are American citizens) was only two-thirds of the spending on the average US citizen.  In health care, the comparable figure was 50%, and in education, tribal funding was only 50%-60% of the federal total spent on mainstream education.  In the criminal justice arena, federal expenditures on law enforcement in Indian Country were only 80% of the level devoted to demographically comparable non-Indian communities.[1]  By the end of 2018, a full fifteen years later, there had not been substantial improvement.  In its 2018 updated report, the Commission concluded:  “Federal funding for Native American programs across the government remains grossly inadequate to meet the most basic needs the federal government is obligated to provide.  Native American program budgets generally remain a barely perceptible and decreasing percentage of agency budgets.  Since 2003, funding for Native American programs has mostly remained flat, and in the few cases where there have been increases, they have barely kept up with inflation or have actually resulted in decreased spending power.”[2] 

The implications of the federal government’s failure to live up to its side of a long-standing bargain, whereby tribes would cede huge swaths of land and vast resources to the rapidly developing United States in exchange for the types of services noted above, were laid bare by the arrival of the novel coronavirus.  Virtually all of the initial health care recommendations put forth to combat the virus were much harder to adhere to in poor communities that had suffered decades of neglect and underinvestment.  For example: 

• One cannot wash hands dozens of times a day with soap and running water if one has no running water. 
• One cannot isolate when sick if more than a dozen people share dilapidated housing with inadequate square footage. 
• One cannot protect elders, by far the most susceptible to drastic health outcomes from COVID-19, if there are no nearby medical facilities. 
• One cannot keep children in school when all education goes remote if there is no broadband availability in the area. 
• One cannot stock up on food and avoid crowded shops if one lives in an underdeveloped food desert. 
• And so on and so forth. 

In my opinion it is clearly a basic civil rights violation to continue to leave the elderly and the young exposed in the ways noted above.  We live in the richest society that has ever existed on this earth, but when the pandemic arrived in our tribal communities it was plain for all to see that our collective neglect of Indian communities led to direct and devastating consequences for individuals, for families, and for whole communities.  To the extent the EEOC’s ongoing efforts to support tribal people can help us avoid or minimize a repeat of a catastrophe such as this in the future I urge you to devote your time and energy to the endeavor.