WASHINGTON, D.C — With one of the debacles of the Donald Trump era still raging in the courts, Indian Country will be paying close attention as the Department of the Treasury gains new leadership.

Economist Janet Yellen is sailing toward confirmation as 78th Secretary of the Treasury following unanimous support from a key U.S. Senate committee on Friday. But while no one on the panel directly asked her about COVID-19 relief for tribal nations, it’s clearly on the radar of Democratic President Joe Biden and his burgeoning Cabinet.

“I recognize that this crisis has hit tribal communities particularly hard and we have to ensure that they are getting the assistance that they need,” Yellen said of the pandemic in response to a questions from the committee.

Just a day before the Senate Committee on Finance advanced Yellen’s nomination, a hearing in federal court showed why the Biden administration is concerned. Three tribal nations that were shortchanged millions of dollars in COVID-19 relief by Trump said they were eager to press forward with their cases, even more so now that since someone new is in charge of the White House.

“Delay in our view is not an option,” said Pilar Thomas, an attorney for the Shawnee Tribe, whose population base in Oklahoma was brazenly zeroed out by the Trump team when doling out COVID-19 funds. “We think it’s important for us to keep moving forward.”

“Time is still of the essence,” added Thomas, who is a citizen of the Pascual Yaqui Tribe. “Our client still continues to incur costs.”

Shawnee Tribe v. US Treasury;
Rep. Markwayne Mullin and 12 congressional leaders author a letter supporting tribal nations against faulty Treasury formulation. pic.twitter.com/djWspi1LIF

— Chief Ben Barnes (@ChiefBarnes) June 22, 2020

Attorneys for the Miccosukee Tribe and the Prairie Band Potawatomi Nation expressed similar sentiments. The Miccosukees in Florida were also treated as having zero population by former Secretary of the Treasury Steven Mnuchin, resulting in a shortfall of estimated $2 million, while the Kansas-based Prairie Band lost out on an additional $7.6 million because of Treasury’s bungling of the coronavirus relief fund for tribal governments.

“We would encourage the court to keep this case going so that we can get it resolved it as soon and possible,” said George Abney, an attorney for the Miccosukee Tribe.

But the federal government had little to offer in terms of resolution during the teleconference, which took place last Thursday, a day after Biden was sworn into office as the 46th president of the United States. That’s because Treasury hasn’t yet decided whether the three tribes should get more COVID-19 relief — or whether the new administration will continue to defend the position of the past.

“Treasury will still need a little bit of time, in light of the transition, to determine what its position is going to be,” said Kuntal Cholera of the Department of Justice.

“It will be a really delicate situation,” Cholera said of COVID-19 matters on incoming Secretary Yellen’s plate. Given the uncertainty, he said “it might make sense to halt what we do here,” especially since there’s an even bigger cloud hanging over the Biden bunch.

Judge Amit P. Mehta, who has been handling a slew of lawsuits connected to the $8 billion tribal relief fund, was well aware of the unknowns. He said the outcome of the underfunding dispute depends on a completely different court — the highest one in the land, in fact.

On January 8, the U.S. Supreme Court stunned Indian Country by agreeing to hear a closely-watched case that will determine whether the Shawnee Tribe, the Miccosukee Tribe, the Prairie Band Potawatomi Nation — or any tribe for the matter — will be able to secure additional money from the relief fund. An estimated $534 million is in limbo until a decision is reached, which could be as late as June.

“In any event, that amount of money won’t be disbursed any time soon,” said Mehta.

Before the Supreme Court is one of the biggest and most bitter Indian policy disputes in recent history. Alaska Native corporations, which are for-profit entities, not tribal governments, argue that they too are entitled to money from the Coronavirus Aid, Relief and Economic Security Act, also known as the CARES Act.

“As the pandemic rages on into Alaska’s harsh winter season, Alaska Native people and Alaska Native communities continue to suffer disproportionately from the devastating effects of the pandemic,” the ANCSA Regional Association (ARA) and the Alaska Native Village Corporation Association (ANVCA) said in a joint statement. “The latest COVID-19 relief bill did not include funds for tribal organizations — making it imperative for Alaska Native corporations (ANCs) to finally gain access to the CARES Act tribal funds Congress intended for us last spring.”

“This long overdue emergency assistance is critical to the thousands of Alaska Native people who rely on ANCs for vital health, education and social service programs,” said the two organizations, which represent more than 200 Alaska Native entities.

The ANCs had a major ally in the Trump administration. The Department of Treasury, relying on advice from the Department of the Interior, where an Alaska Native corporate executive served as the Assistant Secretary for Indian Affairs until January 20, determined that they were eligible for shares of the $8 billion fund.

The D.C. Circuit Court of Appeals did not agree. The decision was unanimous and it was written by a judge who was nominated to the bench by Donald Trump.

“We hold that Alaska Native corporations are not eligible for funding under Title V of the CARES Act,” Judge Gregory Katsas wrote in the decision.

But the matter is now in the hands of the Supreme Court, where tribal interests have not had such a great record in protecting their rights. The case has not yet been scheduled for oral argument so there’s no way of knowing how long the Shawnee Tribe, the Miccosukee Tribe, the Prairie Band Potawatomi Nation will have to wait for resolution of their issues.

It’s also not entirely clear whether the Biden administration can continue to defend the pro-ANC stance of the prior era. Treasury nominee Yellen was not asked about the matter during the confirmation process last week.

But her future colleague at Interior has gone on the record repeatedly as the pandemic exacted a disproportionate toll on American Indians and Alaska Natives. Rep. Deb Haaland (D-New Mexico), who would be making history as the first Native person to lead the department, as well as the first Native in a presidential Cabinet, chastised Trump’s handing of the COVID-19 relief money.

“In the end, the [Trump] administration insisted on taking nearly three months, put tribes through unnecessary litigation, ultimately allocated large amounts of funding to for-profit corporations, insisted on overly burdensome application materials that no other state or local governments had to submit, and failed to protect tribal data in the process,” Haaland, who is a citizen of the Pueblo of Laguna, said in a keynote to the National Transportation in Indian Country Conference last August.

Yet if the Biden team plans on changing course, the Department of Justice — which has been defending Treasury’s and Interior’s actions throughout the CARES Act litigation — has not yet been told.

“At this time we just don’t know, given the change of the guard,” said Cholera, who joined Justice as a trial attorney in August 2019, during the Trump era.

He gave those remarks after Judge Mehta, who was nominated to the bench by former president Barack Obama, asked if the government was “waiting for a political appointee to arrive” in Washington, D.C.

It's the case that never ends. The nation's highest court has agreed to hear a bitter dispute over $534 million in #COVID19 relief going to Alaska Native corporations. This is the second Indian law case on the Supreme Court's docket. #CARESAct #Coronavirus #CoronavirusReliefFund pic.twitter.com/NegdEdyY4V

— indianz.com (@indianz) January 8, 2021

Despite the uncertainty, Mehta is intent on moving forward with the underfunding dispute, as the tribal plaintiffs requested. He ordered government attorneys to submit a status report by February 15, to be followed up by a hearing on February 17. The administrative record, meaning the documents that a federal agency utilized in arriving at its actions, is due February 18.

For now, Mehta has issued a preliminary injunction in favor of the Shawnee Tribe. The order freezes $12 million in CARES Act funds, pending resolution of the case, whenever that may be.

During the teleconference last week, Mehta said he is open to extending the order to include the Miccosukee Tribe and the Prairie Band Potawatomi Nation. He specifically asked them for the dollar amounts they are seeking, which could bring the total amount frozen to more than $21 million.

Mehta acted after the D.C. Circuit, on January 7, ruled that the Shawnees were shortchanged when Treasury treated the tribe’s population as zero. As a result, the tribe only got $100,000 from the first round of COVID-19 payments.

“While other tribes received millions, the U.S. Treasury Department flagrantly shortchanged the Shawnee Tribe from its fair share of the CARES Act coronavirus relief funds, causing hardship in our ability to fully care for our tribal citizens sadly affected by this deadly virus,” Chief Ben Barnes said after the ruling.

The 15-page decision from the D.C. Circuit was unanimous but Judge Merrick Garland did not participate in the outcome. He has since been nominated to serve as Attorney General by President Biden, meaning he will be overseeing the Department of Justice’s litigation in the CARES Act cases. A confirmation hearing has not yet been scheduled.

Janet Yellen served as Chair of the Federal Reserve from 2014 through 2018. Photo: Federal Reserve

The Supreme Court case about COVID-19 funding for Alaska Native corporations is Mnuchin v. Confederated Tribes of the Chehalis Reservation, No. 20-543, and Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation, No. 20-544. Briefs on the merits have not been filed and oral arguments have not been scheduled. The high court’s current term ends in June, so a decision is expected before then.

The U.S. Senate is slated to confirm Janet Yellen, a former chair of the Federal Reserve, as Secretary of the Treasury on Monday. She would be the first woman to lead the Department of the Treasury.

A confirmation hearing has not been announced for Haaland to be Secretary of the Interior. Tribes and their advocates are anticipating action sometime in mid-February.

As part of his push for COVID-19 relief and recovery, Biden is proposing another $20 billion for tribes. The money would have to clear Congress, where Democrats are in support of additional funding while Republicans are balking.

Democrats are in control of the Senate in the 117th Congress — but just barely. The party holds 50 seats, with tie-breaking votes to be cast by Vice President Kamala Harris, in her role as president of the chamber.

Democrats have kept their hold on the U.S. House of Representatives but lost seats in the November 2020 election.

Hearing to Consider the Anticipated Nomination of the Honorable Janet L. Yellen to Secretary of the Treasury (January 19, 2021)
Open Executive Session to Consider Favorably Reporting the Nomination of the Honorable Janet L. Yellen, to be Secretary of the Treasury (January 21, 2021)