Data issue left some Oklahoma tribes with little federal aid at height of pandemic

Shawnee Chief Ben Barnes grieved for people who died every week from COVID-19.

When families called the tribe to help pay for funerals, Barnes had to turn them down. 

The U.S. Treasury Department counted the tribe’s population as zero instead of 3,100 when it distributed CARES Act relief funding a year ago. Bad data forced Barnes and other tribal leaders across the U.S. to respond to the pandemic with little federal aid.

During the worst point of the pandemic in northeast Oklahoma, Barnes said he learned about new infections every day and two to four deaths a week.

“We had people dying,” Barnes said. “We didn’t have resources or ways to help.”

The dispute remains at the center of a federal lawsuit filed by the Shawnee Tribe of Oklahoma and joined by two other tribes. The Treasury Department announced in April that it would give more CARES Act money to some tribes in light of an appeals court ruling in the case.

Because of that decision, the Shawnee plan to exit the federal case. Other tribal leaders continue to push for equitable aid and an explanation of what went wrong.

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Another local tribe shortchanged

Eastern Shawnee Chief Glenna Wallace said she has repeatedly asked for a review of the initial funding formula, which counted her nation’s population as 221 instead of 3,650.

She points to parallels from 1830, when the Eastern Shawnee were forcibly removed from the Ohio Valley to the northeast corner of Oklahoma. The tribe received 58 acres of land, a fraction of what the federal government promised. 

“We’ve never been in a position to be able to financially help our tribal citizens, and it was about the same with COVID,” Wallace said. “It was a repetition.” 

Congress passed the $2.2 trillion Coronavirus Aid, Relief and Economic Security Act in March 2020, soon after the magnitude of the pandemic became clear. The CARES Act included $8 billion to help Indigenous communities.

The Treasury Department consulted with tribal leaders about how to distribute the largest chunk of the money. Tribes submitted enrollment data to federal officials.

But instead of using those population numbers, the Treasury Department relied on figures from the federal Indian Housing Block Grant program. In an announcement, the department said officials chose the dataset because it was derived from census numbers. “Tribal governments are familiar with it and have already been provided the opportunity to scrutinize and challenge its accuracy,” the announcement said.

The shift shocked Wallace, whose tribe on the Oklahoma-Missouri border had already submitted enrollment numbers. The federal housing data had no connection to reality, Wallace said. The tribe doesn’t build houses. 

About one-third of tribal citizens live in northeast Oklahoma or in Missouri, Kansas and Arkansas. Many Eastern Shawnee live along the West Coast, particularly near Portland, Oregon. 

“Obviously, we’re not going to be building houses in Oregon,” she said. 

Several tribes, including the Shawnee in nearby Miami, were counted as having no citizens at all.

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The process to distribute aid happened so rapidly that officials likely did not step back to check whether the data was accurate, said Eric Henson, a Chickasaw Nation citizen and research fellow at the Harvard Project on American Indian Economic Development. 

“Tip of the hat for acting quickly and considering tribes,” Henson said. “But also, you acted so quickly, no one thought very hard about the implications of how you roll it out.” 

A study published by Henson’s team concluded the housing data resulted in “arbitrary and capricious allocations of CARES Act funds.” Because the funding wasn't based on actual enrollment figures, some tribes were likely overcompensated based on population and others were underfunded, the researchers found.

'The only recourse … is to sue the federal government'

The Citizen Potawatomi Nation in Shawnee received funding tied to a population of 17,717, half the tribe's actual size, said Kasie Nichols, who directs its self governance office. Nichols said tribal leaders weren't given any options to prove the data was incorrect.

"The only recourse at that point, if you didn’t agree, is to sue the federal government," she said.

The housing data included no information for many tribes without housing programs, so many nations received the minimum amount of $100,000.

The Treasury department has never published a full list of what each of the 574 federally recognized tribes received. But an announcement from U.S. Sen. James Lankford said two tribes in Oklahoma received the minimum: the Shawnee and the Delaware Tribe of Oklahoma, also known as the Eastern Delaware.

The Shawnee immediately spent its $100,000 on disinfectants and personal protective gear such as face masks, Barnes said. At the same time, the tribe’s largest revenue source, its casino, was shut down for months. Tribal leaders used reserves to buy and ship packages of food and face masks to elders. 

Barnes and Wallace said they both lobbied federal officials and lawmakers to increase CARES Act funding.

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No response from Treasury officials

No Treasury official ever responded to Wallace, she said. A Treasury spokesperson said she would check into the department's communication with Wallace, but did not say whether officials had ever received or replied to Wallace's letters.

Barnes said his tribe’s 10 councilors unanimously decided to challenge the funding amount in federal court. The Shawnee filed suit in June 2020. 

“We decided we needed to pursue this, because we were not a zero people,” Barnes said. 

A Northern District of Oklahoma Circuit Court judge dismissed the case, siding with the Treasury Department that the decision was unreviewable. The D.C. Circuit Court of Appeals overturned the decision in January and ruled in favor of the Shawnee. 

The Prairie Band Potawatomi Nation in Kansas and the Miccosukee Tribe of Indians in Florida were also part of the case. 

Feds distribute additional funds

Outside of court, the Treasury Department announced in April that it would award more funding to some tribes. 

According to court filings, the department gave $5.2 million to the Shawnee and $864,000 to the Prairie Band Potawatomi, which has more than 4,500 citizens. Lawyers for the Prairie Band Potawatomi contend in court filings that the funding amounts were again irrational. 

The Treasury Department has said it prioritized tribes that were most disparately affected the first time.

The Shawnee Tribe Business Council decided to accept the larger amount and plans to exit the federal lawsuit, Barnes announced in a letter to tribal citizens in May. The tribe is still pushing for the federal government to pay legal fees, he said. 

Barnes said the council will decide how to spend the money in tandem with American Rescue Plan aid, which also arrived this spring. Priorities include building up the tribe’s emergency response capacity and surveying tribal citizens to learn what they need most.

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Wallace, the Eastern Shawnee chief, said her tribe was left out of the April CARES Act funding. She said the tribe has received some other federal aid, such as CARES Act money based on employment and a grant that paid for a food distribution program.

When Wallace thinks about responding to the pandemic, she recalls the title of the tribe’s first history textbook, “Resilience through Adversity.”

“It’s been adversity, no doubt about it, but it’s been resilience,” she said. “We have survived and we will continue to survive.”

Molly Young covers Indigenous affairs for the USA Today Network's Sunbelt Region of Oklahoma, Texas, Colorado and New Mexico. Reach her at mollyyoung@gannett.com or 405-347-3534.