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Law360 (May 25, 2021, 9:15 PM EDT ) The Prairie Band Potawatomi Nation asked a D.C. federal judge on Tuesday to increase COVID-19 relief funds set aside for the tribe by roughly $4 million, arguing that the government didn't rely on accurate population data when determining the payment allocations.
The 13-page motion seeks to amend a preliminary injunction from April that set aside roughly $7.6 million in relief for the Prairie Band. The tribe is asking to notch that number up to around $11.7 million, since the current allotment "will likely not satisfy the entire shortfall" owed to the tribe.
In May 2020, the U.S. Department of the Treasury disclosed an excel spreadsheet that assigned a population metric of 883 to the Prairie Band, but new filings reflected in March that the department relied on a population metric of 747 for the tribe. The Prairie Band's actual certified population is 4,561, which accounts to a shortfall of roughly $12.5 million, according to the motion.
"Had Treasury relied upon actual enrollment data as Prairie Band has long complained, Prairie Band Potawatomi estimates that it would be due $12.5 million, as opposed to the $864,161 it received in the 2021 Distribution," the motion said.
The government has argued that the Coronavirus Aid, Relief and Economic Security Act gave the Treasury secretary a wide berth to decide how to disburse the funds set aside to help tribes offset an increase in expenditures due to the pandemic.
The dispute kicked off in mid-2020, when the Shawnee Tribe told an Oklahoma federal court that it wouldn't get the funds it was due under the coronavirus relief bill because then-Treasury Secretary Steven Mnuchin had decided to use Indian Housing Block Grant population data as a guide to determine allotment, but that the data was not up to par.
The case got kicked to D.C. and landed on U.S. District Judge Amit P. Mehta's docket, who dismissed it a few months later after finding that the CARES Act wasn't reviewable under the Administrative Procedures Act. But after a trip up to the D.C. Circuit., an appellate panel found that the Treasury Department likely underpaid the tribes by basing its funding decisions on data that vastly underestimated their populations.
On Tuesday, the Prairie Band underlined that the 2021 distribution it received is a fraction of what it is owed.
The supplemental awards do not appear to be fairly distributed across different tribes, according to the Prairie Band. The tribe pointed out that, for example, the supplemental award it received allocates $225 for every uncounted citizen, while the Shawnee tribe received an award that allocates $1,721 per uncounted citizen.
"Whether from a census or enrollment approach, there is no rational basis for allocating 40% more funds to Shawnee for an enrolled population that is 33% lower," the motion said. "This is exactly the type of irrational decision-making that courts routinely find arbitrary and capricious."
The Prairie Band further requested that the judge specifically designate its funds to differentiate the relief from funds that are set aside for other tribal governments "so that the preliminary injunction will remain intact regardless of the outcome of litigation with other tribes or distributions to other tribes."
Representatives for the parties did not immediately return a request for comment on Tuesday.
The Shawnee Tribe is represented by Quarles & Brady LLP.
The Prairie Band Potawatomi Nation is represented by Lippes Mathias Wexler Friedman LLP.
The Miccosukee Tribe of Indians of Florida is represented by Alston & Bird LLP.
The federal government is represented by Jason C. Lynch of the U.S. Department of Justice's Civil Division.
The cases are The Shawnee Tribe v. U.S. Department of the Treasury et al., case number 1:21-cv-00012; Prairie Band Potawatomi Nation v. U.S. Department of the Treasury et al., case number 1:20-cv-01999; and The Miccosukee Tribe of Indians of Florida v. U.S. Department of the Treasury et al., case number 1:20-cv-02792, all in the U.S. District Court for the District of Columbia.
--Additional reporting by Nadia Dreid and Andrew Westney. Editing by Regan Estes.
For a reprint of this article, please contact reprints@law360.com.
