Amicus Brief, Confederated Tribes of the Chehalis Reservation et al. v. Mnuchin, No. 1:20-cv-01002 (D.D.C.), Doc. 25 (April 24, 2020)

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Amicus brief marked "[LODGED]" in Confederated Tribes of the Chehalis Reservation, et al. v. Mnuchin, Case No. 1:20-CV-01002-APM, in the U.S. District Court for the District of Columbia, Document 25 filed April 24, 2020. The Native American Finance Officers Association, the Gila River Indian Community, the Penobscot Nation and the Nottawaseppi Huron Band of the Potawatomi support the plaintiffs' complaints and motions for a temporary restraining order and preliminary injunction. The brief says Title V of the CARES Act requires Treasury to pay $8 billion to Tribal governments, and it urges distribution based on tribal certifications of monthly budgetary impacts. The brief is signed /s/ Merrill C. Godfrey of Akin Gump Strauss Hauer & Feld, LLP.

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“Amicus Brief, Confederated Tribes of the Chehalis Reservation et al. v. Mnuchin, No. 1:20-cv-01002 (D.D.C.), Doc. 25 (April 24, 2020).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/amicus-brief-confederated-tribes-of-the-chehalis-reservation-et-al-v-m-cb66e342ce/, SHA-256 905181887f5a293caa6cf07ee04826f7d41cc5de61342f9f01de877a2f855e9d.

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Case 1:20-cv-01002-APM Document 25 Filed 04/24/20 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CONFEDERATED TRIBES OF THE
CHEHALIS RESERVATION, et al.,

Plaintiffs,

v. Case No. 1:20-CV-01002-APM
(consolidated with Case No. 1:20-cv-
Steven MNUCHIN, Secretary, United States 1059-APM)
Department of the Treasury,

Defendant.

[LODGED] AMICUS BRIEF OF THE NATIVE AMERICAN FINANCE OFFICERS
ASSOCIATION, THE GILA RIVER INDIAN COMMUNITY, THE PENOBSCOT
NATION, AND THE NOTTAWASEPPI HURON BAND OF THE POTAWATOMI

Donald R. Pongrace (D.C. Bar No. 445944)
Merrill C. Godfrey (D.C. Bar No. 464758)
Akin Gump Strauss Hauer & Feld, LLP
2001 K Street, N.W.
Washington, D.C. 20006
(202) 887-4000
dpongrace@akingump.com
mgodfrey@akingump.com

Attorneys for the Native American Finance
Officers Association, the Gila River Indian
Community, the Penobscot Nation, and the
Nottawaseppi Huron Band of the Potawatomi
Case 1:20-cv-01002-APM Document 25 Filed 04/24/20 Page 2 of 5

The Native American Finance Officers Association (“NAFOA”), the Gila River Indian

Community, the Penobscot Nation, and the Nottawaseppi Huron Band of the Potawatomi support

the plaintiffs’ complaints and Motions for Temporary Restraining Order and Preliminary

Injunction for the reasons stated herein. 1 Title V of the Coronavirus Aid, Relief, and Economic

Security Act (“CARES Act” or “Act”), Pub. L. 116-136 (2020), amends the Social Security Act to

create the $150 billion Coronavirus Relief Fund (“the Fund”) for “payments to States, Tribal

governments, and units of local government.” 42 U.S.C. § 601(a)(1). Under the Act, Treasury is

required to pay $8 billion to Tribal governments for increased, unanticipated, necessary

governmental expenditures caused by the COVID-19 pandemic. Defendant should be required to

distribute all $8 billion in funds appropriated for “Tribal governments” under the Act using a

method that reasonably reflects this statutory mandate to fund governmental expenses, such as

relying on tribal certifications of monthly budgetary impacts. As the Cheyenne River Plaintiffs

have put the matter in their prayer for relief, Treasury should be required to distribute these funds

“according to a reasonable formula consistent with the CARES Act.” Cheyenne River Complaint

¶ 74.

ARGUMENT

I. RELIEF IN THIS MATTER SHOULD BE TAILORED TO THE STATUTORY
REQUIREMENT TO DISTRIBUTE AND USE FUNDS FOR UNANTICIPATED
GOVERNMENTAL EXPENDITURES CAUSED BY THE COVID-19 PANDEMIC

The CARES Act requires that the $8 billion in Tribal relief funds be paid to “Tribal

governments” for governmental expenditures. 42 U.S.C. § 601(g)(5); id. § 601(a)(2)(B)

1
No party’s counsel authored this brief in whole or in part, and no party or person other
than NAFOA, the Gila River Indian Community, the Penobscot Nation, and the Nottawaseppi
Huron Band of the Potawatomi contributed money intended to fund preparing or submitting the
brief.

1
Case 1:20-cv-01002-APM Document 25 Filed 04/24/20 Page 3 of 5

(“$8,000,000,000 of such amount for making payments to Tribal governments”) (emphasis added);

id. § 601(c)(7) (“the amount paid under this section for fiscal year 2020 to a Tribal government”)

(emphasis added); id. § 601(d) (“A State, Tribal government, and unit of local government shall

use the funds”) (emphasis added). The Act requires that Treasury pay to each “Tribal government”

an amount “that is based on increased expenditures of each such Tribal government (or a tribally-

owned entity of such Tribal government) relative to aggregate expenditures in fiscal year 2019 by

the Tribal government (or tribally-owned entity).” 42 U.S.C. § 601(c)(7).

In turn, Tribal governments are allowed to use the funds only for “necessary expenditures

incurred due to” COVID-19 that “were not accounted for in the budget most recently approved”

by the Tribal government and are “incurred during the period that begins on March 1, 2020, and

ends on December 30, 2020.” Id. § 601(d). This formulation is based strictly on increased,

unanticipated, governmental budgetary “expenditures” due to COVID-19, whether of the

government itself or through its tribally owned entities.

The formulation for Tribal governmental expenditures differs from the formulation for

States and local governments in § 601(c)(1)–(5), wherein States are to receive a minimum payment

of $1,250,000,000, plus a pro rata adjustment based on population. It also differs from the

allocation to the District of Columbia and territories, which each receive a fixed amount based on

population. By contrast, the Act explicitly requires the Secretary to make a determination based

upon budget information—increased, unexpected budget “expenditures”—for a Tribal

government.

Treasury’s failure thus far to focus on and adhere to this statutory language is the source

of most of the present controversy, because the argument has become who gets the funds in the

first instance rather than the proper method for allocating such funds tailored to the ultimate

2
Case 1:20-cv-01002-APM Document 25 Filed 04/24/20 Page 4 of 5

statutory uses. The present controversy would likely not have arisen if Treasury had provided

guidelines to Tribal governments that required submissions based on estimated governmental

deficits caused by decreased revenues and increased governmental expenditures for services to

constituents caused by COVID-19. And it would be resolved if Treasury were to calculate outlays

to Tribal governments using a formulation that focuses solely on decreased governmental revenues

for services due to COVID-19 and increased governmental expenditures due to the COVID-19

pandemic. Whether Alaska Native corporations (“ANCs”) receive funds directly or through

recognized Tribal governments would not be such a source of controversy if the amounts of funds

allocated were based on reasonable estimates of actual budgetary impacts for Tribal governmental

services provided to Tribal members. The relief sought by the Cheyenne River plaintiffs is the

relief most closely tailored to these statutory objectives.

The failures in Treasury’s approach to date can be remedied quickly. As sovereign nations,

most Tribal governments have the capacity to readily provide their respective estimates of their

FY 2020 tribal government budget needs as a result of the COVID-19 pandemic. Each Tribal

government should simply be given 48 hours to submit a certified estimate of the unanticipated

budgetary impact of the COVID-19 pandemic on a monthly basis from March 2020 to December

2020. Treasury’s allocation should be based on these self-certifications, adjusted to include a

minimum per-Tribal government amount.

The Alaska Native Claims Settlement Act created a structure for Alaska Native villages

that is different from tribal governments in the Lower 48 states. That system led to a complicated

hierarchy of entities that may provide varying levels of services and programs to Alaska Natives.

Still, that does not override the explicit language of the CARES Act, which requires that the

3
Case 1:20-cv-01002-APM Document 25 Filed 04/24/20 Page 5 of 5

$8 billion be distributed to Tribal governments to provide support for increased, unanticipated

governmental expenditures caused by the COVID-19 pandemic.

CONCLUSION

Relief in this case should be tailored to require Treasury to allocate all $8 billion in a

manner reasonably calculated to address increased, unanticipated, Tribal governmental

expenditures caused by the COVID-19 pandemic.

Donald R. Pongrace (D.C. Bar No. 445944)

/s/ Merrill C. Godfrey
Merrill C. Godfrey (D.C. Bar No. 464758)
Akin Gump Strauss Hauer & Feld, LLP
2001 K Street, N.W.
Washington, D.C. 20006
(202) 887-4000
dpongrace@akingump.com
mgodfrey@akingump.com

Attorneys for NAFOA, the Gila River Indian
Community, the Penobscot Nation, and the
Nottawaseppi Huron Band of the Potawatomi

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