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'We Get To Have Our Day In Court': Shawnee Tribe's CARES Act Lawsuit Moves Forward

A district court in Washington D.C. ruled Tuesday that a lawsuit filed by the Shawnee Tribe in northeast Oklahoma against the U.S. Treasury Department can proceed. The Tribe is suing for millions of CARES act dollars.

Title V of the CARES Act appropriated $150 billion for state and tribal governments. Eight billion of those dollars went directly to tribal governments.

The Treasury Department consulted with Tribal Nations and asked for enrollment data, which the Shawnee Tribe provided.

Last June, the Shawnee Tribe filed a federal lawsuit in Oklahoma alleging the U.S. Treasury Department grossly undercounted the number of its tribal citizens when doling out CARES Act money.

The Tribe's official count says it has roughly 3,021 citizens.

The Treasury Department's count: 0.

The Shawnee Tribe filed a motion for a temporary restraining order in June of 2020, as the Treasury was on the verge of distributing the final portion of the $8 billion in CARES Act money. The Tribe wanted to secure an estimated $12 million as it litigated the case. District Court Judge Amit P. Mehta denied the temporary restraining order, instead transferring the case to a D.C. district court.

As a result, the Shawnee Tribe lost out on millions of dollars in relief funds for citizens left reeling from the pandemic. The Tribe, which said it received $100,000 in relief funds from the federal government, is seeking an estimated $12 million for expenses incurred from the pandemic.

The Treasury Department used an Indian Housing Block Grant formula to determine the number of enrolled citizens. The Shawnee Tribe currently does not participate in that program, because it does not have land in trust in Northeast Oklahoma. So, the Treasury found the tribe had zero citizens.

The Shawnee Tribe contend that the Treasury secretary acted arbitrarily and capriciously when using IHBG data instead of the data they submitted when asked to do so.

Pilar Thomas, an attorney with Quarles and Brady based in Tucson, Arizona, currently represents the Tribe. She filed a restraining order and injunction against the Treasury Department last summer.

"We put it in our filing that it's legally and factually impossible for the Shawnee Tribe to have zero population. They would not be a tribe if they had no tribal members. So, that's the key argument," said Thomas.

Thomas said when the Treasury Department asked the Shawnee Tribe to send them a certified count of how many citizens are enrolled, the tribe complied.

"The case law is very clear: that when a federal agency uses patently false data, that is kind of the textbook definition of arbitrary and capricious and unreasonable agency action," said Thomas.

The district court also sided with a similar legal claim from the Prairie Band of Potawatomi Nation. The Kansas-based tribe is also alleging that the Treasury Department undercounted its citizens and is seeking an additional $7,631,673 in CARES Act funds.

The Treasury Department now has a week to decide if they want a rehearing of the decision before it heads back to a D.C. court for a rehearing.

Thomas expressed confidence following Tuesday’s ruling that the Tribe will prevail.

"The case law is very clear that when a federal agency uses patently false data, that is kind of the textbook definition of arbitrary and capricious and unreasonable agency action."

Still, the economic and health damage to the Tribe has already been done. Shawnee Tribe Chief Ben Barnes said citizens are bearing the brunt of a costly calculation error.

"I have people calling me asking for burial assistance, but I can't do it," said Barnes.

He's had citizens who've lost their job after being infected with the virus and had to miss work to quarantine. Without the relief money, he isn't able to help them.

It's initial order for PPE was nearly $55,000 for two months of supplies. During those summer months, Joplin, MO - 17 miles away from Tribal headquarters - was a hot spot for coronavirus infections. So was the location of their newly built casino in the Oklahoma panhandle, which was shut down until mid-summer.

"We set up food distribution programs for elders, so that they don't have to leave the house," said Barnes. "We paid for that ourselves. So, these expenses are coming out of us. Other tribes received help from the federal government, but the Shawnees have not."

Barnes points to the situation as another example of the federal government failing to understand Indian Country. While he feels vindicated by the D.C. court's decision, he thinks what happened to the Tribe is a breach of trust.

"I think tribal nations should take a more disciplined approach to our conversations with federal agencies and to make sure they're formal on the record conversations," he said. "And, to insist that any decision that is being made or considered by that agency is laid out on the table."

Barnes said he assembled a "bakers dozen" of Congressmen, including Markwayne Mullin and Tom Cole, who understood his concerns about the way the Treasury Department handled the way money was distributed.

Barnes is relieved about the decision.

"So now we get to have our day in court," he said.

Barnes said U.S. Attorney Merrick Garland even acknowledged that using the zero number would be harmful to the Tribe.

Barnes is looking forward to the case heading back to the courts so, "we can be treated like every other Tribal Nations elsewhere."

"For the Treasury to think they can arbitrarily abrogate the responsibility that the United States has to Indigenous people via the Constitution-the court wasn't buying that argument."


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Allison Herrera is a radio and print journalist who's worked for PRX's The World, Colorado Public Radio as the climate and environment editor and as a freelance reporter for High Country News’ Indigenous Affairs desk.
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