Declaration of Daniel Kowalski — Agua Caliente Band of Cahuilla Indians v. Mnuchin (D.D.C., Doc. 26-1)

Summary

Declaration of Daniel Kowalski, Counselor to the Secretary at the United States Department of the Treasury, filed May 6, 2020 as Exhibit 1 (Document 26-1) in Agua Caliente Band of Cahuilla Indians, et al. v. Mnuchin, No. 1:20-cv-1136-APM, U.S. District Court for the District of Columbia. It describes Treasury's work on payments to Tribal governments under Title V of the CARES Act. The declaration states that payments to non-Tribal governments totaling $142 billion of the $150 billion appropriated to the Fund were initiated no later than April 24, 2020, and that Treasury determined to distribute 60 percent, or approximately $4.8 billion, of the $8 billion reserved for Tribal governments immediately based on population. It states that approximately $3.4 billion of payments had been made as of the morning of May 6, 2020.

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Case 1:20-cv-01136-APM Document 26-1 Filed 05/06/20 Page 1 of 4

Exhibit 1
Case 1:20-cv-01136-APM Document 26-1 Filed 05/06/20 Page 2 of 4

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

AGUA CALIENTE BAND OF CAHUILLA
INDIANS, et al.,

Plaintiffs,

STEVEN MNUCHIN, in his official capacity as
Secretary of the Treasury,

Defendant.

Case No. 1:20-cv-1136-APM

DECLARATION OF DANIEL KOWALSKI

I, Daniel Kowalski, hereby do state and declare as follows:

I currently 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.

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 Act, and (b) certifying any payment instructions or executing any documents necessary
to carry out the making of payments described above.

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.

Since April 6, 2020, I have hosted approximately three teleconferences every week with Treasury
staff in order to provide updates to staff, receive updates from staff, and discuss various issues
related to making payments to Tribal governments pursuant to Title V of the CARES Act. I also
10.

11

12,

Case 1:20-cv-01136-APM Document 26-1 Filed 05/06/20 Page 3 of 4

have near-daily conversations with individual Treasury staff who require additional guidance for
the work to progress.

On April 2 and April 9, 2020, I participated in telephonic Tribal consultations with tribal leaders
that included approximately 1700 callers on each consultation. In addition, from March 31 to
April 13, 2020, Treasury received approximately 440 written comments from Indian Tribes and
stakeholders, of which I reviewed a substantial portion. I also reviewed summaries of all
comments.

In order to perform the necessary analysis to allocate payments from the Coronavirus Relief Fund
(the Fund) among Tribal governments, Treasury requested that each 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
population figures, number of land acres held, employment data, and expenditure information for
the most recently completed fiscal year. Treasury also requested that each Tribe submit payment
information (i.e., information identifying the Tribal government as an eligible recipient and bank
account information) (Payment Information) to allow Treasury to make payments.

Since the CARES Act became law on March 27, 2020, Treasury has been mindful of the statutory
requirement that all payments from the Fund were to be made within 30 days, i.e., by April 26,
2020. In fact, payments to non-Tribal governments, totaling $142 billion of the $150 billion
appropriated to the Fund, were initiated no later than April 24, 2020. While making those
payments, Treasury has also been mindful of another statutory obligation — that it determine an
appropriate allocation of $8 billion among Tribal governments.

Treasury has encountered numerous issues with the Certifications and Payment Information
received from Indian Tribes, including duplicated or triplicated submissions, missing
submissions, or incomplete submissions, which has required —— and continues to require —
follow-up and outreach to have the records manually corrected.

Treasury has been working diligently to verify payment information and prepare data to run
different models in order to determine the formula Treasury will use to allocate payments from
the Fund among Tribal governments (the Allocation Formula) and, ultimately, to disburse
payments accordingly. This process has also been hampered by the issues with the Certifications
and Payment Information described above.

Treasury’s dedication to preparing the Allocation Formula and making payments to Tribal
governments from the Fund is reflected in the number of hours Treasury staff have worked since
the enactment of the CARES Act on March 27, 2020, including working late into the evening and
over weekends. Treasury estimates that approximately 2,200 hours have been spent on these
efforts.

. Since the initial filing for declaratory and injunctive relief by certain plaintiffs, I have taken part

in numerous meetings with various Treasury officials regarding the litigation. Other Treasury
staff, including economists and operations personnel, have similarly spent time responding to
questions from and providing information to Treasury and Department of Justice attorneys related
to this litigation.

Treasury is doing everything reasonably possible to disburse money to Tribal governments
quickly and accurately.
Case 1:20-cv-01136-APM Document 26-1 Filed 05/06/20 Page 4 of 4

13. Treasury has determined to distribute 60 percent, or approximately $4.8 billion, of the $8 billion
reserved for Tribal governments immediately based on population.

14. On May 5, 2020, Treasury began making payments to Tribal governments based on the
population component of the Allocation Formula. As of the morning of Wednesday, May 6,
2020, approximately $3.4 billion of payments have been made, including payments to each of the
eight plaintiffs in this case.

15. Treasury is working diligently to distribute the balance of the appropriation (40 percent of the $8
billion reserved for Tribal governments) based on employment data and expenditures data. In
order to do so, and cognizant of the Certification issues discussed above, Treasury intends to
request additional data in the coming days from Tribal governments that is reasonably verifiable
and is in a format that allows Treasury to model the data for the Allocation Formula.

16. Treasury staff are working to finalize the employment and expenditure components of the
Allocation Formula, but payments based on employment and expenditure data will not be able to
be made until after data on employment and expenditures are received, reasonably verified, and
accounted for in the allocation formula. Treasury will continue to work diligently to complete the
payments as soon as practicable, consistent with the agency’s efforts to distribute the amounts
fairly and accurately.

17. During the period from March 27 (the date on which Treasury staff began making payments to
Tribal governments) to May 5, 2020, the same staff was also determining processes for disbursing
the Fund’s other $142 billion to States, the District of Columbia, territories, and units of local
government; assembling relevant data from the Census Bureau; calculating the payment amounts
for these recipients; receiving and processing the statutorily-required certifications from local
governments eligible to receive payments; and developing guidance for recipients of payments
from the Fund in response to pressing questions from such recipients as to the eligible uses of
payments. This guidance will apply to the Tribal governments as well.

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.

Dated: May 6, 2020

Washington, D.C. em \ ( { >

Daniel Kowalski

Counselor to the Secretary

United States Department of the Treasury
1500 Pennsylvania Ave NW

Washington, D.C. 20220


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