Government Claims Native American Lawsuit Over Covid-19 Funds Too Late

Treasury Secretary Steven Mnuchin speaks last month at a meeting in the State Dining Room of the White House. (AP Photo/Evan Vucci)

WASHINGTON (CN) — The Trump administration blamed a Native American tribe for waiting until the eleventh hour to challenge the distribution metrics for Covid-19 relief funds in federal court on Thursday, as the government gears up to send billions of dollars out the door over the next week.

“This is something that could really open up a can of worms,” Justice Department attorney Jason Lynch said.

The government urged U.S. District Judge Amit Mehta to reject the Prairie Band Potawatomi Nation’s request to block the Treasury Department from sending out the CARES Act relief until it takes a second look at the breakdown per tribe.

Prairie Band claims it was short-changed when the Treasury Department allocated money based on population, rather than enrollment numbers. The government counted up the tribe’s population at around 883, but they argue the tribe’s actual membership is more than 4,500.

“Those numbers are right there and could have been used if they had problems with the data that the tribes were submitting,” Prairie Band attorney Carol Heckman said in a teleconference hearing Thursday.

The Treasury Department claims it followed the guidelines laid out by Congress for distributing the funds and consulted with tribes, but the tribes submitted incomplete and unverified data.

The tribe argues that Congress specifically required state and local governments to use census data, but did not outline the same requirement for tribal governments, foreclosing the metric as an option.

But the Justice Department pushed back on that claim.

“That doesn’t mean that there was any foreclosure in terms of what data metric the secretary of treasury could have used,” Lynch said.

However, Heckman, a Lippes Mathias attorney, argued that population data is inherently misleading, given many members live outside the Prairie Band reservation in neighboring cities.

“They are still enrolled members. They still get the benefits of enrolled membership, but they don’t happen to live right there. They still go back to the health clinics,” Heckman said.

While making clear that he is sensitive to the challenges faced by tribes during Covid-19, the judge questioned the plaintiffs’ timing.

Asking why the tribe waited, when critically needed funds are scheduled to go out, Mehta said: “You ask me to hold out billions of dollars to recover the additional amount to your client.”

But Hartman, assuring the judge that her client does not wish to slow down the entire process, explained that the government never published its distribution calculations. Not until Harvard released two reports last month on the CARES Act funding going to tribes did the Prairie Band realize they had to act.

“Obviously it’s never going to be perfect, it’s not possible,” Hartman said. “But using the proper benchmark, using enrollment, would be good.”

But the Justice Department repeatedly warned the judge that granting the plaintiffs relief would mean undoing months of work to distribute the funds at a time when two other lawsuits filed by tribes challenging the process are already well underway.

Not only would involving tribes in setting a new distribution metric, as the plaintiffs demand, be a laborious process that causes further delay, but the court would likely see future challenges to the Covid-19 relief fund send-out, Lynch further warned.

“This is a zero sum game. Every additional dollar plaintiffs get is another dollar that another tribe is not getting,” the attorney said, adding: “How do you think those tribes are going to feel about that?”

Nine tribes filed a request Wednesday to weigh in on the case, arguing that the judge should block only the distribution of $7.65 million allocated to Prairie Band so as to not slow down billions in emergency relief funds.

“Such a limited, narrow injunction also would preserve the status quo by requiring the secretary to withhold sufficient funds to make Prairie Band whole should it succeed on the merits, without causing undue harm to Plaintiff Tribes who are in immediate need of the remaining Title V Funds due to the crisis caused by the COVID-19 pandemic,” the amicus brief argues.

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