Like any government, a tribal government’s sole purpose is to provide essential services to its members to ensure the preservation of their way of life. Unlike most governments, tribal governments do this through multiple funding sources, which include public funding (grants) and private enterprise (Casino’s, Economic Development Companies, and Natural Resources). Given the broad impact the COVID crisis has had on these sources, DWH has compiled a list of considerations that tribal governments should address during these turbulent times.
While communication with all stakeholders is always important (investors, creditors, customers, vendors, and employees), during this crisis, tribal governments need to first and foremost establish a consistent and reliable communication method with its membership. Communication should include:
- The actions the tribal government is taking to mitigate the spread of the COVID virus and any actions the tribe recommends members take.
- The current state of the tribe and its finances, detailing risks and potential pressure points.
- Outlining the actions that will need to be taken to support key Tribal funding sources (such as a casino operation) and the timing of those actions.
- Details on relief efforts, programs, and stimulus monies individual Tribal members will qualify for (including how to go about accessing those funds).
- Actions the tribe is taking to try and reduce the impact on daily life and key programs.
- Outline any reductions in non-essential government spending and where cuts are likely.
- How and where access to necessary health care can be obtained.
PLAN FOR BUSINESS OPERATIONS
All businesses should have a COVID 19 response leadership team comprised of executive leadership, Finance, Operations, and Human Resources. Tribal governments should do the same. This “cross-functional” team should be meeting daily to discuss:
- Communication with key stakeholders on the current state of the tribal government, its members, and any investment entities.
- Review of cash flow, including all inflows from grants and changes to grant funds usage based on recent updates from the Office of Management and Budget (OMB).
- Review alternate funding sources, including available lines of credit, SBA Payroll Protection Program, and other grants or guaranteed loans.
- Updates on employment needs, including updates on programs for laid-off employees and communication with those employees about the potential for rehire.
- A review of cash flow projections, the status of any Accounts Receivable, and necessary payments to key vendors.
- Communication with and analysis of suppliers & vendors, communication with, and analysis of end customers.
- All tribal investments (especially casino operations) should be assessing potential recovery levels of the operations and developing plans for reopening once the pandemic is under control.
OTHER ACTIONS TRIBES CAN TAKE
Surviving this crisis will require effective management of the tribe’s balance sheet. Tribes will also need to maintain liquidity to ensure that necessary payments are being made and services are maintained. Tribes also need to ensure there is enough capital remaining to restart any suspended operations once things begin to return to “normal.”
Tribal entities can take many actions besides laying off members of the workforce, suspending services, and shuttering operations to preserve liquidity. The recently passed CARES Act outlined several programs for tribal businesses and tribal governments. Additionally, there are ways tribes can work with their bank to modify existing credit facilities, provided the tribe can demonstrate a need and outline a plan on how the requested modifications will help ensure survival.
CARES Act – Apply for the SBA Payroll Protection Program – 500 or fewer employees
As part of the CARES Act, the SBA is authorized to provide $350 billion in forgivable loans to help support small businesses through this cycle.
- These loans are meant to cover payroll, rent, utilities, and interest payments for up to 8 weeks. Up to 100% of the loan could be forgiven if the borrower meets specific guidelines (there are limitations for non-payroll expenses and timing on the use of funds).
- Applications began with most Banks and lenders on Friday, April 3, and it is recommended that borrowers work with their existing bank to apply and submit applications as soon as possible.
- Tribal Entities are eligible for the program; however, issues still remain and clarification is needed from the SBA on:
- Are gaming entities eligible? They are not eligible under the traditional SBA 7(a) program.
- How should tribally owned entities who do not have a separate EIN (operating as a Tribal Authority or d/b/a) apply for multiple entities? If the tribal entity is chartered under a State or Tribal UCC, or a Section 17 entity, then this concern will not apply.
- It is highly recommended that tribes work with their legal counsel and CPA’s to determine how to proceed with each unique situation.
- Program is limited to companies with less than 500 employees; however, tribal entities have been excluded from the Affiliation calculations so each individual tribal business should be able to apply on its own without having to aggregate employee counts with other tribal entities.
CARES Act – Loan Guarantee Program – 500 to 10,000 employees
As part of the CARES Act, the Federal Government approved a $500 billion Federal Loan Guarantee program through the Federal Reserve Board (FRB).
- $46 billion of these funds are set aside for specific industries such as airlines. The remainder will be open to all industries as long as the companies that are applying meet the requirements.
- Tribal Casinos and Businesses should be eligible for these loans; however, the Treasury has not listed the full requirements or rules for this program at this time.
- The processing of these guarantee programs has not been defined either, but clarification is expected in coming days. The FRB was authorized to hire financial intermediaries to operate the newly approved facilities (likely through the existing banking system), which will ultimately define the process for this program.
- Like the Payroll Protection Act, these guarantees are intended to back loans to keep employees and operations functioning as they were before the COVID 19 crisis. UNLIKE PPP, these loans will NOT be eligible for forgiveness.
- Like the TARP and HARP programs before it, this program will also come with restrictions, not all of which apply to Tribally owned businesses:
- Limits a corporate entity’s ability to declare dividends or repurchase stock and permits the government to take warrants or other securities that will eventually be repaid (not likely to apply to tribally owned entities).
- Companies must make a good faith certification that they will maintain 90% of their current workforce and, if applicable, restore 90% of their workforce as it existed on February 1, 2020.
- Recipients that are listed on national exchanges will also be restricted from paying dividends to common shareholders and from abrogating collective bargaining agreements (seek input from legal counsel regarding casino distributions to tribal government).
- To qualify, recipients must certify that they require the loan due to the uncertainty of economic conditions.
Work with Creditors
Casino operations and other tribally owned businesses need to be in constant, proactive communication with their banks and their other creditors (https://dwhcorp.com/covid-19-advice-bank/). Each business owned by the tribe needs a detailed plan that includes:
- A detailed rolling 13-week cash flow model,
- A list of actions being taken to reduce cash disbursements and increase cash receipts,
- Any planned injections of capital,
- Any programs, such as SBA lending that are being pursued,
- Calculations of required capital to start-up operations once the operations are permitted to reopen,
- And an estimated ramp-up period or analysis of the potential reduction in revenues based on coronavirus outbreaks (will business return to normal or will it come back at a lower run rate for an extended time).
The plan should be created before requesting any modifications to loan agreements, changes to payment terms, or increases in availability.
OTHER KEY SUPPORT AREAS FOR TRIBES
The CARES Act authorized many different programs to assist tribal governments. We have included a list of the named programs and our current understanding of the mechanics of each program. We strongly encourage tribal governments to work with their legal teams and government agencies (such as BIA and HIS) to assess these programs and their applicability to each tribe. If needed, DWH can provide references to our network of trusted partners.
- Unemployment and FMLA benefits were increased, and certain tax credits were provided to offset the costs to companies. Some of these tax credits may not apply to tribes since they are not taxable entities.
- Of the $150 billion in relief for local governments and municipalities, $8 billion has been carved out for tribal governments. The funds can be used for any necessary expenses between March 1, 2020, and December 30, 2020, as long as the expenses are related to the COVID 19 emergency and not already planned in the tribes’ approved budget for the current year.
- The dissemination method for these funds has not been determined by the Treasury at this point. The Treasury is still taking comments and input from tribes at this point in determining the methodology that it will ultimately use. It is highly recommended that tribes work with their legal and lobby counsel to relay suggestions or concerns to the Treasury as quickly as possible.
- $1.4 billion to was given to the Indian Health Service (HIS) and Bureau of Indian Affairs (BIA) with $850 million reserved to address the direct needs of tribes.
- The Emergency Appropriations for Coronavirus Health Response and Agency Operations, included in the Stimulus Act, includes an additional $1 billion for the IHS and $450 million for the Bureau of Indian Affairs BIA.
- At least $450 million of the IHS appropriation shall be distributed to IHS direct-service health programs. The funds must be used to prevent, prepare for, and respond to COVID-19, including for public health support, electronic health record modernization, telehealth, and other information technology upgrades, health services provided by Purchased/Referred Care programs, Catastrophic Health Emergency Fund reimbursements, and other activities to protect the safety of patients and health program staff.
- At least $400 million of the BIA appropriation must be made available to meet the direct needs of tribes. The funds must be used to prevent, prepare for, and respond to COVID-19, including public safety and justice programs, deep cleaning of facilities, purchase of personal protective equipment, purchase of information technology to improve teleworking capability, welfare assistance and social services programs (including assistance to individuals), and assistance to tribal governments. Funds distributed from the BIA appropriation shall not be included in the statutory maximum for welfare assistance funds.
- Other tribal specific stimulus actions:
- The stimulus package also provides for an additional $125 million in funding for tribes from the Centers for Disease Control, $300 million in housing grants, $100 million for food distribution programs, $15 million for substance abuse and mental health services, and increased eligibility of tribal businesses for small business loans. Tribal schools are eligible for waivers of statutory and regulatory provisions in the Elementary and Secondary Education Act of 1965 and the General Education Provisions Act.
As tribal groups navigate the COVID-19 crisis, remember that there are programs available. If you or your tribe needs assistance, please feel free to reach out to DWH. As a tribally owned business, we support and understand the needs of various tribal groups.
DWH | For the Life of Your Business