Tribe Claims 'Unreliable' Data Caused Virus Aid Underfunding

By Emma Whitford
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Law360 (June 18, 2020, 9:03 PM EDT) -- The U.S. Treasury Department and U.S. Department of the Interior undercounted and undercompensated the Shawnee Tribe when allocating coronavirus relief funds through the Coronavirus Aid, Relief and Economic Security Act, the Oklahoma tribe said in a Thursday complaint.

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. This arbitrary choice violated the federal Administrative Procedure Act, it said.

"Despite having three separate reliable sources to The Shawnee Tribes' population data ... the Treasury issued funds based upon the incomplete and unreliable IHBG Metric population data ... which was arbitrary and capricious," the Shawnee Tribe wrote Thursday.

The IHBG metric relies on the number of people who select "American Indian or Alaska Native" on their census form in a given geographic area.

The Prairie Band Potawatomi Nation of Kansas also challenged this metric in a lawsuit this month. 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.

In April, the Shawnee Tribe provided both Treasury and the Bureau of Indian Affairs with a population figure of 3,021 tribal citizens, according to the complaint. In May, DOI and Treasury announced that $4.8 billion of the $8 billion pot for tribes would be allocated according to population.

Tribes with fewer than 37 members would receive a minimum $100,000 award, the complaint said. This is the amount the Shawnee Tribe received, though the tribe claims it is owed at least $6 million.

"Under the IHBG race-based data, twenty-five tribal governments, including the Shawnee Tribe, are listed as having a population of zero, a practical impossibility," the tribe claimed.

The Department of Housing and Urban Development maintains population data for the "sole purpose of ... distributing HUD funds, which The Shawnee Tribe does not receive and is, thus, erroneously undercounted," the complaint added.

Representatives for Treasury, DOI and the U.S. Justice Department did not immediately respond to requests for comment.

In a June 4 post on its website, the Treasury Department justified its choice of metric, saying "tribal enrollment does not provide a consistent measure of tribal population across tribes."

The Shawnee Tribe on Thursday sought a temporary restraining order to stop the federal government from distributing "any further portion" of remaining CARES Act funds until the tribe's "accurate population data is used and funds are distributed ... consistent with the purpose of the CARES Act."

In an amicus brief filed in the Prairie Band Potawatomi Nation's lawsuit, the Gila River Indian Community, the Penobscot Nation, the Nottawaseppi Huron Band of the Potawatomi and the Morongo Band of Mission Indians all concurred that the chosen metric is flawed.

But the tribes discouraged the court from pausing the dispersal of remaining funds, saying such a delay in payments would "harm hundreds of other tribal governments." 

The Shawnee Tribe is represented by Gregory Bigler of Bigler Law and Pilar M. Thomas and Nicole L. Simmons of Quarles & Brady LLP.

Counsel information for the federal government was not immediately available.

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 Andrew Westney. Editing by Daniel King.

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