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Law360 (October 20, 2020, 6:11 PM EDT ) Two Native American tribes are backing up the Shawnee Tribe of Oklahoma before the D.C. Circuit, saying a lower court should not have shied away from reviewing the U.S. Treasury Department's faulty method for allocating $8 billion in coronavirus relief funding this spring.
The Miccosukee Tribe of Indians of Florida and Prairie Band Potawatomi Nation in Kansas filed amicus briefs Monday and Friday, agreeing with the Shawnee that U.S. District Judge Amit P. Mehta should have reviewed the Treasury's logic in distributing virus funds to tribes under Title V of the Coronavirus Aid, Relief and Economic Security Act.
The Shawnee tribe appealed this month, after Judge Mehta's Sept. 10 decision that the government's use of Indian Housing Block Grant population data was not reviewable under the Administrative Procedure Act.
Tribes have criticized the housing metric as arbitrary and inaccurate, leading to undercompensating because it wrongly categorized the Shawnee and other small tribes as having a population of zero.
"Treasury was obliged to determine population through a rational decision-making process, and the court has authority to ensure rationality by reviewing the agency's decision under the APA," the Miccosukee wrote Monday.
The tribe added that, like the Shawnee, it received the $100,000 statutory minimum for tribes with "zero" members, despite having 605 registered members.
While there are "rare" exceptions to the APA's reviewability standard, the Miccosukee wrote, the agency's final decision to distribute just $100,000 to the Shawnee Tribe does not qualify.
"There is a sharp distinction between an agency's decision to rely upon a general category of evidence (which may be discretionary) and an agency's decision to ignore or sidestep obvious discrepancies in that same evidence," the Miccosukee claimed.
In its own amicus brief Friday, the Potawatomi Tribe pointed to language in Title V of the CARES Act as proof that the lower court should have exercised its discretionary powers.
"Congress not only expressed its intent [in Title V] that tribal governments be funded, but that that funding should be based on consultation with tribal governments," the tribe wrote, adding that the court is "more than capable of assessing whether Treasury engaged in meaningful tribal consultations."
Both the Miccosukee and Potawatomi tribes have challenged the housing block grant metric in court. The Miccosukee's case is pending and was recently transferred to D.C. federal court from Florida, court records show. Judge Mehta rejected an injunction request from the Potawatomi in June.
The Shawnee originally filed suit on June 18, saying it had more than 3,000 members and should be compensated as such.
In its appeal to the D.C. circuit this month, the tribe cited a recent panel decision withdrawing CARES Act funds from Alaska Native Corporations as proof that Treasury's distribution decisions are, in fact, reviewable.
The tribe said that $162 million made available to tribes through that Sept. 25 decision could be used right now to provide it with the full funding it's owed.
Counsel for the tribes did not immediately respond to comment requests Tuesday. The U.S. Department of Justice declined to comment.
The Shawnee Tribe is represented by Luke Cass, Scott McIntosh, Pilar Thomas and Nicole L. Simmons of Quarles & Brady LLP and by Gregory J. Bigler.
The Miccosukee Tribe is represented by George G. Abney, Daniel G. Jarcho, Daniel F. Diffley and Jean E. Richmann of Alston & Bird LLP.
The Prairie Band Potawatomi Nation is represented by Carol E. Heckman, James P. Blenk and Michael G. Rossetti of Lippes Mathias Wexler Friedman LLP.
The federal government is represented by Adam C. Jed, Michael S. Raab, Daniel Tenny and Thomas Pulham of the U.S. Department of Justice.
The case is Shawnee Tribe v. Mnuchin et al., case number 20-5286, in the U.S. Court of Appeals for the District of Columbia Circuit.
--Additional reporting by Andrew Westney and Joyce Hanson. Editing by Gemma Horowitz.
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