Declaration, Prairie Band Potawatomi Nation v. Mnuchin, No. 1:20-cv-01491 (D.D.C.), Doc. 16-1 (June 10, 2020)

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Declaration of Daniel Kowalski, Counselor to the Secretary at the United States Department of the Treasury, in Prairie Band Potawatomi Nation v. Mnuchin, Case 1:20-cv-01491-APM, U.S. District Court for the District of Columbia, Document 16-1, filed June 10, 2020. It states that Treasury began making payments to Tribal governments on May 5, 2020 based on the population component of the Allocation Formula, distributing 60 percent, or approximately $4.8 billion, of the $8 billion reserved for Tribal governments based on population. It states that Treasury used "Decennial Census data" on American Indian Alaska Native population from the Indian Housing Block Grant program. It states that the remaining 40 percent is to be distributed based on employment data and expenditures data.

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Case 1:20-cv-01491-APM Document 16-1 Filed 06/10/20 Page 1 of 4

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

PRAIRIE BAND POTAWATOMI NATION

Plaintiff,

Case No. 20-cv-1491
STEVEN MNUCHI, in his official capacity
as Secretary of the Treasury,

Defendant.

DECLARATION OF DANIEL KOWALSKI
I, Daniel Kowalski, hereby do state and declare as follows:

1. Icurrently serve as Counselor to the Secretary at the United States Department of
the Treasury (Treasury). I am authorized to make this declaration and do so on the
basis of both my personal knowledge and information made available to me in my
official capacity.

2. I have been delegated the authority by the Secretary of the Treasury (Secretary) to
perform the following disbursement-related functions as required under Title V of
the Coronavirus Aid, Relief, and Economic Security Act (CARES Act): (a)
making payments under Title V of the CARES Acct, and (b) certifying any
payment instructions or executing any documents necessary to carry out the
making of payments described above.

3. At the Secretary’s direction, I manage the Treasury staff responsible for making
payments under Title V of the CARES Act, and I act on behalf of Treasury to
consult with the Department of the Interior as well as Tribal organizations, in
accordance with Treasury’s obligations under the statute.
10.

11.

Case 1:20-cv-01491-APM Document 16-1 Filed 06/10/20 Page 2 of 4

On April 2 and April 9, 2020, I participated in telephonic Tribal consultations with
tribal leaders that included approximately 1700 callers on each consultation. I do
not recall making any statement expressing a preference for any distribution based on
population.

In order to perform the necessary analysis toallocate payments from the
Coronavirus Relief Fund (the Fund) among Tribal governments, Treasury requested
that each Indian Tribe submit certain data about itself via Treasury’s website in the
form of a certification (OMB Approved No. 1505-0264) (Certification). The types
of information Treasury requested in these Certifications included the number of
citizens, members, or, in the case of native corporations, shareholders; number of
land acres held; employment data; and expenditure information for the most
recently completed fiscal year.

Treasury encountered numerous issues with the Certifications, including duplicated
or triplicated submissions, missing submissions, and incomplete submissions. These
posed an obstacle to making payments in a timely manner based on population
information derived from the Tribal submissions.

Furthermore, Treasury determined that tribal enrollment figures submitted by the Tribes
did not provide a consistent measure across Indian Tribes because Indian Tribes
counted enrollment in various ways.

Treasury considered various alternative sources of population data for Indian Tribes,
including tribal enrollment data provided by the Bureau of Indian Affairs and the
American Community Survey 5-Year Estimates for tribal areas.

Ultimately Treasury determined that tribal enrollment was not the most appropriate
basis for payment because tribal enrollment does not distinguish between members
living within the tribal area from those living outside the tribal area. Treasury viewed
this consideration as particularly significant for determining the formula Treasury
would use to allocate payments from the Fund among Tribal governments (the
Allocation Formula) because it believed Tribal governments would be best positioned
to make necessary expenditures due to the public health emergency for the area of a
Tribal government’s jurisdiction and where it provides services.

Treasury did not use American Community Survey 5-Year Estimates (ACS) data
because the ACS sampling and weighting is based at the county level and, because
tribal areas are sub-county entities, the tribal population can fluctuate substantially from
year-to-year

Treasury ultimately used the Decennial Census data on American Indian Alaska Native
(AIAN) popuiation that is used in the Indian Housing Block Grant (IHBG) program
(THBG data) administered by the U.S. Department of Housing and Urban Development
Case 1:20-cv-01491-APM Document 16-1 Filed 06/10/20 Page 3 of 4

(HUD). Treasury determined that this population data would be expected to correlate
reasonably well with the amount of increased expenditures of Tribal governments
related directly to the public health emergency, such as increased costs to address
medical and public health needs.

12. At the time of Treasury’s determination, Treasury considered the following factors: (1)
the IHBG formula was developed through negotiated rulemaking with Indian Tribes,
and Indian Tribes had provided input into the IHBG data; (2) the IHBG formula
contains an order of preference for allocating the IHBG data for Indian Tribes in
Alaska, and that, therefore, using IHBG data would mitigate the risk of “double-
counting” Alaska Natives; and (3) the IHBG data had been used in other funding
formulas that disburse payments to Indian Tribes (for example, the funding formula
under the Tribal Transportation Program is calculated, in part, using IHBG data).
Additionally, Treasury considered that IHBG data includes the concept of a “formula
area” which corresponds broadly with the area of a Tribal government’s jurisdiction,
where it provides services, and include adjustments to address overlapping
jurisdictions.

13. On May 5, 2020, Treasury began making payments to Tribal governments based on
the population component of the Allocation Formula. Treasury made the
determination to distribute 60 percent, or approximately $4.8 billion, of the $8
billion reserved for Tribal governments based on population.

14. On June 4, 2020, Treasury posted, on its website, a document titled “Frequently Asked
Questions on Tribal Population,” which explained the reasons Treasury chose to rely on
THBG population data.

15. Treasury is working diligently to distribute the balance of the appropriation (40
percent of the $8 billion reserved for Tribal governments) quickly and accurately,
based on employment data and expenditures data gathered from a second request
for information from Tribal governments.

16. During the period from May 5, 2020 (the date on which Treasury staff began
making payments to Tribal governments) to date, Treasury staff has worked long
hours, including nights and weekends, to respond to questions from Indian Tribes,
create and post a second request for information, conduct follow up and outreach to
collect missing or incomplete information from Indian Tribes, correct and verify
data received, and develop an allocation formula for the remaining 40 percent to be
distributed, all in a concerted effort to make payments to Tribal governments starting
this Friday, June 12".

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true
and correct to the best of my knowledge, information, and belief.
Case 1:20-cv-01491-APM Document 16-1 Filed 06/10/20 Page 4 of 4

Dated: June 10, 2020
Washington, D.C.

Daniel Kowalski\

Counselor to the Secretary

United States Department of the Treasury
1500 Pennsylvania Ave. NW
Washington, D.C. 20220


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