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Court orders feds to recalculate distribution of coronavirus relief dollars to tribes

WASHINGTON (CN) — Balking at methodology that put the population of the Shawnee Tribe at zero when it has thousands of members, the D.C. Circuit ordered an injunction Tuesday on how the government administers coronavirus-relief funds to Native Americans.

The Shawnee “incurred significant medical and public health expenses in responding to the devastation resulting from the Covid-19 pandemic,” according to the complaint it filed, but the government’s miscalculation of its members meant that it got just $100,000 under the federal Coronavirus Aid, Relief, and Economic Security Act.

This is “the minimum payment for tribes with a population of fewer than thirty-seven,” U.S. Circuit Judge David Tatel wrote for a three-judge panel this morning.

State, local and tribal governments are statutorily entitled to $150 billion from the CARES Act, with $8 billion of that pie reserved for the tribes.

Concerned that the Covid-19 pandemic made it hard to discern the degree to which communities would see increased expenditures, however, Treasury Secretary Steven Mnuchin held back 40% for distribution after employment and expenditure data could be reviewed.

As for the 60% to be distributed immediately, the Treasury Department opted to divvy the money up based on population, with such enrollment determined by using data from the U.S. Department of Housing and Urban Development.

Tatel noted that the agency does have tribal population data from its

Indian Housing Block Grant program, or IHBG, but that data “does not reflect actual tribal enrollment.”

“Instead, it estimates a tribe’s ‘population’ in a geographical ‘formula area’ based on population numbers drawn from census projections of the number of individuals who consider themselves ‘American Indian or Alaska Native’ on census forms,” Tatel wrote.

Like the Shawnee, which has certified a membership of 3,021, the Miccosukee and the Eastern Delaware Band of Indians were both labeled as having populations of zero under the government’s methodology.

The D.C. Circuit breathed new life into the case Tuesday, saying the federal judge who dismissed the case was wrong to consider the matter of funding allocation unreviewable under the Administrative Procedures Act.

“Here, as there, by requiring that the allocations be ‘based on increased expenditures,’ Congress has not left the secretary with ‘unbounded’ discretion,” Tatel wrote. “Indeed, our court has found agency action to be judicially reviewable when taken pursuant to statutes containing far more permissive language.”

Pilar Thomas, an attorney for the Shawnee Tribe, praised the court for issuing a preliminary injunction, as the Confederated Tribes of the Chehalis Reservation have a simultaneous challenge that could affect the amount of funds left to tribes.

“There’s $530 million dollars or so still being held by Treasury, pending the outcome of that case,” said Thomas, who is with the firm Quarles and Brady. “So we have been very concerned, of course, that however that case finally gets resolved, that those funds would be distributed and then our money would be gone.”

Tatel called it likely that the tribe would prevail on the merits, pointing to Mnuchin’s admission the IHBG data was an insufficient substitute.

“Nor did the secretary explain why he failed to seek alternative information for the Shawnee Tribe or the twenty-four other tribes with no IHBG population,” Tatel wrote.