Tribes in legal limbo over federal virus relief funding

Separate lawsuits were consolidated into one case

By Felicia Fonseca
Associated Press

FLAGSTAFF, Ariz. (AP) — Nearly a year after Congress passed a coronavirus relief bill, some Native American tribes remain in legal limbo over what’s been distributed.

The issue didn’t become any clearer for three tribes that argued during a federal court hearing last week that they were shortchanged under the formula used to dole out a portion of the $8 billion set aside for tribes.

U.S. District Judge Amit Mehta set deadlines to move the case forward after attorneys for both sides said Thursday they couldn’t reach an agreement on interim payments while the U.S. Treasury Department comes up with a new method to distribute the remaining $533 million.

The department sent out $4.8 billion in payments to tribal governments using federal population data that some tribes said was badly skewed.

The Shawnee Tribe in Oklahoma and the Miccosukee Tribe of Indians in Florida were among those given the minimum $100,000 because U.S. Department of Housing and Urban Development data showed they had a population of zero. The Prairie Band Potawatomi Nation in Kansas has argued it should have received $7.65 million more than it got, based on its own enrollment data.

The tribes filed separate lawsuits that have been consolidated into one case, with the Shawnee Tribe as the lead plaintiff. Mehta initially ruled the Treasury Department had discretion in how it distributes the funding and, therefore, the methodology wasn’t subject to court review.

A federal appeals court revived the claims and sent them back to Mehta for a decision on the merits.

U.S. Justice Department attorney Kuntal Cholera, who is representing the Treasury Department, asked Mehta to give the agency until the end of April to come up with a new methodology that would factor in potential outcomes in a pending U.S. Supreme Court case also centered on virus relief funding for tribes.

Lower courts in that case were split over whether Alaska Native corporations, which own most Native land in the state under a 1971 settlement, should be in the mix. More than a dozen Native American tribes sued the Treasury Department last year to try to keep the money out of the hands of the corporations.

In the Shawnee case, the tribe’s attorney, Pilar Thomas, urged Mehta to prevent further delays. “We are still in a pandemic, and we are still without our money,” Thomas said.

What’s unclear is whether the three tribes would see any financial relief in the case. Cholera said a decision in favor of the tribes simply would send Treasury back to the drawing board on how to distribute the remaining funds. A new methodology would make the tribes’ claims moot, and federal laws wouldn’t provide for any financial damages, he said.

Thomas disagreed and asked Mehta for an opportunity to argue otherwise, as did attorneys for the Prairie Band and Miccosukee tribes.

In the meantime, Mehta urged Justice Department attorneys to ask treasury officials again if they would consider an interim payment to the tribes and report back to him by March 5. He said it wouldn’t be a terribly large amount.

“What’s the worst that happens?” he said. “They get a little more than they’re supposed to, and they use it to combat coronavirus.”