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Law360 (June 22, 2020, 5:51 PM EDT) -- The Shawnee Tribe urged an Oklahoma federal court Monday to freeze at least $12 million in federal coronavirus relief funds it was denied because of allegedly inaccurate population data, to ensure the money will still be there when the case wraps up.
The Shawnee's reply brief hit back at the U.S. Department of the Treasury, saying the government made a "hyper-technical" argument opposing its request for a temporary restraining order and that the tribe properly notified the government that it intended to sue over distribution of funds made available by the Coronavirus Aid, Relief and Economic Security Act.
"Their feigned lack of notice — which is counter to the facts — does not preclude entry of the TRO here," the tribe said Monday. "Actual notice is evidenced by defendants' opposition filed on June 19, 2020."
The Shawnee filed suit against the Treasury Department and the U.S. Department of the Interior on June 18, saying the federal government undercounted and undercompensated the tribe when allocating CARES Act funds. On Friday, the government claimed the suit came as a surprise, even as the parties were in discussions outside of court.
The federal government disregarded population data provided by the tribe and instead opted for the Indian Housing Block Grant metric, which does not count tribe members who live off-reservation, the tribe claimed. According to the IHBG, the Shawnee Tribe has a population of "zero," the complaint said. In reality, the tribe said, it has 3,021 tribal citizens.
The Treasury Department has since claimed that the Shawnee Tribe is repeating arguments now being litigated through five related cases in the U.S. District Court for the District of Columbia. The judge presiding recently ruled that cases challenging the Treasury Department's methodology "are unreviewable and, in any event, are at this point unduly delayed," the agency claimed.
But the Shawnee Tribe sought Monday to distinguish its case.
"The Shawnee Tribe is based in Oklahoma and its members reside primarily there. It is not a party to the lawsuits by others in D.C. and is not seeking 'a second bite' at anything," the tribe said.
The tribe also rejected the Treasury Department's claim that all Title V funds have been exhausted.
"Defendants provide no evidence that all funds have been distributed and the Title V funds are exhausted," the tribe wrote. "Instead, they simply ask this court to take their word for it, which this court should not do."
The Treasury Department and counsel for the tribe declined to comment.
Earlier this month, the Prairie Band Potawatomi Nation of Kansas challenged the IHBG metric in a lawsuit. But a D.C. federal judge recently denied the nation's bid to stop the allocation of remaining CARES Act funds while their case proceeds.
The Shawnee Tribe is represented by Gregory Bigler of Bigler Law and Pilar M. Thomas and Nicole L. Simmons of Quarles & Brady LLP.
The government is represented by Jason C. Lynch and Kuntal Cholera of the U.S. Department of Justice's Civil Division.
The case is Shawnee Tribe v. Steven T. Mnuchin et al., case number 4:20-cv-00290, in the U.S. District Court for the Northern District of Oklahoma.
--Additional reporting by Joyce Hanson and Andrew Westney. Editing by Bruce Goldman.
For a reprint of this article, please contact reprints@law360.com.
