CARES Act Hearing: Prairie Band Potawatomi Nation v. Mnuchin

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Posted: June 11, 2020

A hearing in Prairie Band Potawatomi Nation v. Mnuchin takes place via teleconference at 3pm Eastern on June 11, 2020.

At issue in the case is the $8 billion coronavirus relief fund for Indian Country, of which $4.8 billion has already been allocated by the Trump administration. The lawsuit accuses Secretary of the Treasury Steve Mnuchin of “underfunding” certain tribes, including the Prairie Band Potawatomi Nation, by failing to take into account the citizenship data they submitted to the Department of the Treasury two months ago.

“While Treasury ultimately decided to award sixty percent of Title V Funds on the basis of ‘Tribal population’, Treasury elected to ignore the actual Tribal enrollment, the only justifiable basis for measuring the scope of Tribal government responsibility for its citizens impacted by COVID-19,” the complaint, which was filed in federal court on June 8, reads.

“Instead, Treasury used a flawed, preexisting population metric from the Indian Housing Block Grant program, which does not even intend to capture Tribal population,” it continues. “Indeed, the IGBH Metric assigns a population value of zero to twenty-five (25) federally recognized Tribal governments, which is absurd on its face.”

PDF: Prairie Band Potawatomi Nation v. Mnuchin

The tribe is asking Judge Amit P. Mehta to prevent the Trump administration from distributing the $3.2 billion left in the coronavirus relief fund until it takes tribal enrollment into account. A motion for a temporary restraining order and preliminary injunction says the Kansas-based Prairie Band will suffer “irreparable harm” unless Treasury corrects the payments.

“The injury faced by Plaintiff is certain, great, actual and not theoretical,” the motion reads.
“If this court fails to restrain Secretary Mnuchin, Treasury could disburse the funds and permanently ratify its flawed allocation approach. Treasury’s approach undercounts 3,678 Prairie Band Potawatomi citizens, resulting in a Population Award shortfall of approximately $7.65m for the Prairie Band Potawatomi.19 Prairie Band Potawatomi’s claim to these funds will be forever foreclosed by their delivery unto other Tribal governments.”

PDF: Motion for Temporary Restraining Order and Preliminary Injunction

Treasury filed a response to the tribe’s motion on June 10. In it, government attorneys say the department’s allocation method — which was announced on May 5 without notice or consultation — is not subject to review in court. They also say the formula is not ‘arbitrary” or “capricious,” a standard typically used when determining whether a federal agency action runs contrary to law.

“Plaintiff knew of Treasury’s methodology for Tribal population counts since May 5, 2020, and yet waited over a month to bring suit,” the response filed by the Department of Justice reads. “In the meantime, Treasury has committed significant resources to disburse the remaining Tribal funds by this Friday, June 12.”

PDF: Memorandum in Response to Plaintiff’s Motion for a Preliminary Injunction

The response was accompanied by an affidavit from Daniel Kowalski, who serves as Counselor to Secretary Mnuchin. He also points out that payments from the remaining $3.2 billion are imminent.

“During the period from May 5, 2020 (the date on which Treasury staff began making payments to Tribal governments) to date, Treasury staff has worked long hours, including nights and weekends, to respond to questions from Indian Tribes, create and post a second request for information, conduct follow up and outreach to collect missing or incomplete information from Indian Tribes, correct and verify data received, and develop an allocation formula for the remaining 40 percent to be distributed, all in a concerted effort to make payments to Tribal governments starting this Friday, June 12th,” Kowalski states in the sworn declaration.

PDF: Declaration of Daniel Kowalski

The $8 billion coronavirus relief fund was authorized by Congress under the Coronavirus Aid, Relief and Economic Security Act, also known as the CARES Act. The law directed Treasury to distribute the money “not later than 30 days” after its enactment on March 27.

Treasury missed the deadline despite promising tribes that it would make payments on time. Then, on May 5, the department announced that only $4.8 billion would be allocated.

The public can listen to the hearing by calling the following number and entering the following code: