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Law360 (June 8, 2020, 6:09 PM EDT ) The U.S. Department of the Treasury drew on a "flawed" population metric to apportion $8 billion in coronavirus relief funds to tribes, the Prairie Band Potawatomi Nation said in a complaint in D.C. federal court Monday.
The federal government used an Indian Housing Block Grant metric, which relies on the number of people who select "American Indian or Alaska Native" on their census form in a given geographic area, the Kansas tribe said. However, that misses members who live off reservation or choose different racial classifications, and catches some nontribe members, the Prairie Band Potawatomi Nation said.
Treasury should have instead based funding on actual tribal enrollment data, the tribe said, adding that it has provided that information.
"Only tribal enrollment numbers accurately reflect the true scope and extent of a tribal government's responsibility to its citizens," the tribe said.
The choice of metric was arbitrary and capricious under the Administrative Procedure Act, the Prairie Band said, after April consultation sessions in which the tribe suggested its preferred methodology.
The tribe is seeking a preliminary injunction to stop the disbursal of the remaining $3.2 billion in tribal Coronavirus Aid, Relief and Economic Security, or CARES, Act funds, until "a reasonable and more accurate allocation formula can be created, and vetted by tribal governments."
Without an injunction, the remainder of the CARES Act funds will soon be "totally depleted," the tribe added.
The Prairie Band received $2.45 million in CARES Act funds based on a population of 833 when its "actual tribal enrollment" is 4,561 on and off the northeast Kansas reservation, according to the complaint.
The complaint also cites the Delaware Tribe of Indians, highlighted in a recent Harvard Project on American Indian Economic Development report on the dispersal of CARES Act funds. That tribe received the minimum funding, $100,000, because its population under the housing block metric is "zero." The tribe's own enrollment figure, by contrast, is north of 11,000, according to the report.
A representative for the U.S. Department of Justice declined to comment Monday. A representative for the Treasury Department did not immediately respond to a request for comment.
In a June 4 post on its website, the Treasury Department said "tribal enrollment does not provide a consistent measure of tribal population across tribes," according to the complaint.
The Prairie Band is also seeking a temporary restraining order ahead of any hearing for a preliminary injunction, the complaint notes.
A federal case considering whether Alaska Native corporations should receive any of the CARES Act funds is ongoing.
The Prairie Band is represented by Michael G. Rossetti, Carol E Heckman, James P. Blenk and Lee M. Redeye of Lippes Mathias Wexler Friedman LLP.
Counsel information for the government was not immediately available Monday.
The case is Prairie Band Potawatomi Nation v. Steven T. Mnuchin et al., case number 1:20-cv-01491, in the U.S. District Court for the District of Columbia.
--Additional reporting by Andrew Westney. Editing by Stephen Berg.
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