Indianz.Com > COVID-19 > ‘The delay must end’: CARES Act Litigation
Posted: June 5, 2020

The E. Barrett Prettyman United States Courthouse houses both the federal court for the District of Columbia and the Circuit Court of Appeals for the District of Columbia Circuit. Photo by Indianz.Com (CC BY-NC-SA 4.0)

The tribal plaintiffs in Agua Caliente Band of Cahuilla Indians v. Mnuchin renewed their motion for a preliminary injunction on June 5, 2020, calling for the distribution of the money remaining in the $8 billion coronavirus relief fund by an “immediate and definitive date.”

Title V of the Coronavirus Aid, Relief and Economic Security Act, also known as the CARES Act, required the Department of the Treasury to distribute the fund “not later than 30 days” after enactment of the law on March 27. Despite the deadline, tribes are still waiting on the full amount promised to their governments.

“In continuing to delay in distributing all of the Title V funds for over two and a half times the amount of time allotted by Congress, the Defendant has egregiously and unreasonably delayed the performance of his duty in violation of Congress’s explicit mandate and to the extreme detriment of Plaintiffs and other Tribal governments,” the motion reads in reference to Secretary of the Treasury Steve Munchin, the defendant in the case.

“Defendant’s irresponsibility has real costs. Because of this delay, certain Plaintiff Tribes now have curtailed essential services and must make additional layoffs,” the motion continues. “Indeed, the threat to the health and welfare of Plaintiffs’ Tribal members in this ongoing health crisis is only compounding. And the longer Defendant delays in distributing all of the Title V funds, the greater the harm incurred by Plaintiffs will be.”

“This is especially true since Plaintiff Tribes must expend any CARES Act funds by the end of the year,” the filing concludes. “The delay must end.”

The motion was accompanied by an affidavit from Tralynna Sherrill Scott, Treasurer of the Cherokee Nation, one of the plaintiffs in the case. She recounted numerous difficulties she experienced in submitting data to Treasury’s CARES Act portal.

“Because of the system Treasury put in place, the task of submitting the Nation’s information was arduous, frustrating and time consuming,” Scott says in the sworn declaration. “At times, I was worried that I would not be able to upload the Nation’s information due to the technical issues associated with the portal.”

“In fact, even after submitting the requested information, I still worried as to whether or not all 38 documents had been successfully uploaded because Treasury had no mechanism in place for Tribes to confirm the number of documents that were uploaded. Using the portal certainly required great deal of patience and persistence,” the affidavit reads.

The plaintiffs also submitted a “Dear Applicant” e-mail in which Treasury told certain tribes that the information they submitted was “incomplete or missing.” If the information wasn’t corrected within 48 hours, department said the tribes might not receive an additional payment from the coronavirus relief fund,

“YOU MUST reply within 48 hours,” the message reads. “If you have not responded, your application may be withdrawn from consideration.”

Treasury has since given tribes until 11:59pm Alaska time on June 6, 2020, to submit the supposedly correct information. The CARES Act portal was updated with the following warning:

Tribal governments failing to respond to these e-mails by completing or correcting their submissions by 11:59 pm Alaska Daylight Time on Saturday, June 6, will no longer be able to provide such information, As a result, such tribal governments will not receive a payment from the allocation of the Coronavirus Relief Fund based on employment and expenditures with respect to information that Treasury has questioned as incomplete or incorrect.”

Treasury initially promised tribes it would distribute the $3.2 billion remaining in the coronavirus relief fund this week. But since the department says nearly 400 tribes — almost 70 percent of the family of federally recognized Indian nations — had submitted faulty data, or hadn’t submitted any at all, payments have been delayed.

Mnuchin’s response to the motion is due June 10.

The plaintiffs in Agua Caliente Band of Cahuilla Indians v. Mnuchin are:

  • Agua Caliente Band of Cahuilla Indians (California)
  • Ak-Chin Indian Community (Arizona)
  • Northern Arapaho Tribe (Wyoming)
  • Cherokee Nation (Oklahoma)
  • Snoqualmie Tribe (Washington)
  • Yurok Tribe (California)
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