1

Coronavirus Relief Fund 

Supplemental Explanation of Reallocations to Tribal Governments

November 3, 2023

The Coronavirus Aid, Relief, and Economic Security Act (the CARES Act) established the 

Coronavirus Relief Fund (CRF), reserved $8 billion from the CRF for payments to Tribal 

governments, and provided that the allocation of payments to Tribal governments is to be 

determined by the Secretary of the Treasury. In response to a ruling from the U.S. Court of 

Appeals for the D.C. Circuit, Treasury has adopted this additional explanation of the reallocation 

of amounts from the CRF to certain Tribal governments that was adopted in 2021. 

Background

The CARES Act provided that the Tribal allocation from the CRF is to be “based on increased 

expenditures of each such Tribal government (or a tribally-owned entity of such Tribal 

government) relative to aggregate expenditures in fiscal year 2019 by the Tribal government (or 

tribally-owned entity)” and “determined in such manner as the Secretary [of the Treasury] 

determines appropriate to ensure that all amounts available. . . are distributed to Tribal 

governments.”

1

 

Treasury was required to adopt an allocation methodology and make payments pursuant to that 

methodology within thirty (30) days of the CARES Act’s passage.2 No methodology would 

enable Treasury to perfectly capture each Tribe’s actual increased expenditures, so Treasury had 

to devise reasonable estimates using data that it could promptly access and utilize. Thus, in 2020, 

1 See 42 U.S.C. § 801(c)(7).

2 See id. § 801(b)(1).
2

Treasury adopted an allocation methodology pursuant to which 60% of the $8 billion reserved 

for Tribal governments was allocated to Tribal governments based on the population of each 

Tribal government’s formula area under the Indian Housing Block Grant (IHBG) program 

administered by the Department of Housing and Urban Development (HUD), with the remainder 

allocated based on data Treasury collected on the number of employees of Tribal governments 

and Tribal enterprises and the 2019 expenditures of Tribal governments.3 

The IHBG program allocation formula uses the American Indian and Alaska Native population 

count, based on Census Bureau data, of each Tribe’s “formula area.” The definition of “formula 

area” was developed by HUD for the specific purpose of administering the IHBG program and

corresponds broadly with the area of a Tribal government’s jurisdiction and other areas to which 

the Tribal government’s provision of services and economic influence extend, subject to 

adjustments to address overlapping jurisdictions and other particular circumstances. A Tribe’s 

IHBG formula area population figure is distinct from the number of the Tribe’s enrolled 

members, and for various reasons a few Tribes have a formula area population of zero despite 

having substantial enrollment. Under Treasury’s initial allocation adopted in 2020, Tribes with 

zero formula area population received only the minimum allocation of $100,000 as their 

population-based allocation, though such Tribes were eligible to receive additional amounts as 

part of the separate employment- and expenditure-based allocations. 

3 See Coronavirus Relief Fund Allocations to Tribal Governments (May 5, 2020), available at 

https://home.treasury.gov/system/files/136/Coronavirus-Relief-Fund-Tribal-Allocation-Methodology.pdf; 

Coronavirus Relief Fund Allocations to Tribal Governments (June 17, 2020), available at 

https://home.treasury.gov/system/files/136/Tribal-Allocation-Methodology-for-Second-Distribution.pdf (setting the 

employment-based allocation at 30% and the expenditure-based allocation at 10% of the total amount reserved for 

Tribal governments).
3

In 2021, the U.S. Court of Appeals for the D.C. Circuit held that, with respect to Tribes with zero 

formula area population, formula area population is likely an unsuitable proxy for increased 

expenditures.4 In response to this ruling, Treasury adopted a revised methodology by which it 

reallocated a portion of the remaining CRF funds largely reserved for Alaska Native 

Corporations (ANCs). Under this methodology—the 2021 Distribution—Treasury offered 

payments to the top 15 percent of Tribes as ranked by what Treasury refers to here as their

“population ratio.”

5 Tribes with zero formula area population were offered the full amount of the 

difference between what they received under the formula area-based allocation and the amount 

the Tribe would have received under an enrollment-based allocation. Payments to the remainder 

of Tribes in the top 15 percent were phased out linearly according to Tribes’ population ratio.6

Supplemental Explanation

In March of this year, in connection with one Tribal government’s challenge to the 2021 

Distribution, the D.C. Circuit Court of Appeals directed that Treasury provide additional 

explanation of the 2021 Distribution.

7 Treasury welcomes the opportunity to provide this 

elaboration of its previous explanation of the 2021 Distribution. 

4 See Shawnee Tribe v. Mnuchin, 984 F.3d 94 at 102-103 (D.C. Cir. 2021).

5

In 2021, Treasury referred to this as the “population-to-enrollment” ratio, but Treasury refers to it as the 

“population ratio” here to avoid confusion as to its meaning. This population ratio was calculated as the ratio of 

formula area population to enrollment subtracted from one, such that Tribes with zero formula area population have 

a population ratio of one and Tribes with positive formula area population have a population ratio of between one

and zero. 

6 This methodology is described in further detail in the statement published by Treasury at the time of the 

reallocation. See Department of the Treasury, Coronavirus Relief Fund Allocations to Tribal Governments (April 

30, 2021), available at https://home.treasury.gov/system/files/136/Allocations-to-Tribal-Governments-April-30-

2021.pdf. As discussed in this statement, Treasury reallocated funds only to federally-recognized Tribes, not to 

ANCs. In this memorandum, Treasury uses “Tribes” to refer to the federally-recognized Tribes. 

7 See Prairie Band Potawatomi Nation v. Yellen, 63 F.4th 42, 47 (D.C. Cir. 2023). 
4

Treasury Use of Formula Area Population

As noted, in 2020, Treasury adopted an allocation methodology based on the population of each 

Tribal government’s formula area under the IHBG, with the remainder allocated based on data 

Treasury collected on the number of employees of Tribal governments and Tribal enterprises and 

the 2019 expenditures of Tribal governments. Formula areas correspond broadly to the area of a 

Tribal government’s service population and other areas to which the Tribal government’s 

provision of services and economic influence extend. The CARES Act provided that CRF 

payments could only be used by recipients for “necessary expenditures incurred due to the public 

health emergency,”

8

so Treasury focused on an allocation that would relate to increased CRFeligible expenditures. At the outset of the pandemic, Tribes faced extensive increased 

expenditures related to the provision of public health and safety and social services on Tribal 

lands.9 Although Tribes and ANCs were permitted to use CRF payments to provide benefits 

such as rental assistance or burial expense assistance to Tribal members wherever they may live, 

Treasury expected that Tribes’ largest increase in expenditures for the provision of services 

would relate to services provided on Tribal lands (or, in the case of those Tribes without Tribal 

lands, services provided in the area where the Tribal government and the principal focus of the 

Tribal community is located) and that, overall, Tribes with smaller populations of Tribal 

members and other American Indians or Alaska Natives living in such areas would face lesser 

8 See 42 U.S.C. 801(d).

9 See, e.g., First Amended Complaint at ¶ 22, Agua Caliente Band of Cahuilla Indians v. Mnuchin, 1:20-cv-1136, 

2020 WL 8023750 (D.C. Cir. 2020) (explaining the urgent need for CRF funds). As stated in the complaint, “Tribal 

Plaintiffs have taken emergency protective measures and incurred substantial unbudgeted expenses to address the 

COVID-19 crises. For example, Plaintiff Tribes have procured additional personal protective equipment (PPE) for 

distribution to Tribal members and Tribal staff; procured and distributed water, toilet paper and food to Tribal 

members; increased spending on cleaning and sanitation supplies, including washing stations and thermometers, 

tents for testing facilities, medical equipment, testing supplies, public communication materials; services to tribal 

elders and food distribution programs; incurred additional IT and professional services related expenses; and 

incurred additional security expenses to secure closed facilities.” Id. 
5

increased expenditures related to the delivery of such services. IHBG formula area population 

provided a way to estimate this varying level of increased expenditures.

10

 

Furthermore, IHBG formula area data provides certain other advantages over enrollment and 

shareholder numbers. Adjustments are made to IHBG formula area populations to address issues 

of overlapping jurisdiction, which is a particular problem in Alaska, given the overlapping 

memberships of Alaska Natives in federally-recognized Tribes, regional corporations, and 

village corporations.11 Formula area population also provides a figure applicable to both 

federally-recognized Tribes and ANCs, whereas Tribal enrollment and ANC shareholder rolls do 

not represent the same concept. 

In adopting the 2021 Distribution, Treasury recognized that, although formula area population 

figures may have generated inadequate expenditure estimates for certain Tribes, the expenditure 

estimates for most Tribes were satisfactory, and indeed, formula area population figures have 

10 The comment letter submitted by the Navajo Nation as part of the 2021 reallocation consultation supports this 

position. In the letter, the Tribe observed that IHBG formula area population is “one of the only ways to objectively 

measure those populations without sufficient access to non-Tribal governmental support.” Letter from Jonathan 

Nez, President Navajo Nation, and Myron Lizer, Vice President, Navajo Nation, to Secretary Janet Yellen (Mar. 24, 

2021) at 2 (emphasis in original). The letter continues as follows: 

A tribe in an urban or peri-urban area with a small land base may only have a small percentage of their 

citizens living in the IHBG formula area, who will also have access to other governmental support in the 

communities in which they reside, whether it be state, county, or municipal. Whereas, for a rural tribe 

where almost all of their citizens live in the IHBG formula area, the Tribal government may be the only 

means of support during a crisis like the one we are experiencing today. 

This is not to say that we feel those living away from the IHBG formula area are less deserving of their 

tribe’s support. Only that those living away from Tribal lands have greater access to essential resources 

than those who reside on Tribal lands. The Navajo Nation itself has only about half of its citizens living on 

the Reservation. While we were disappointed to see that the IHBG formula area population numbers for the 

Navajo Nation only recognized about half of our over 350,000 citizens, we also recognize that those living 

on Navajo Nation lands were more needing of support than our citizens who lived in surrounding urban or 

peri-urban communities. We tried to provide some support to all of our citizens regardless of where they 

lived with the earlier rounds of CARES funding, but most of the money went to support those living on 

Navajo Nation land. Id. at 2-3.

11 See 24 CFR §§ 1000.302 (definition of “formula area”), 1000.327(a).
6

certain advantages over competing metrics.

12

 Thus, Treasury has not repudiated its use of 

formula area population generally but rather sought to address the concerns raised by certain 

Tribes and by the D.C. Circuit that, for Tribes with zero formula area population and perhaps 

other similarly situated Tribes, formula area data may not have provided an adequate estimate of

their increased expenditures.13 The 2021 Distribution was intended to better align Tribal 

allocations with increased expenditures. The 2021 Distribution provided a supplemental 

population-allocation to Tribes for which formula area population figures may have served as an 

inadequate proxy for increased COVID-related expenditures. 

A Tribe’s formula area population figure may have proven inadequate where it appears that the 

Tribe’s enrollment, rather than its formula area population, better represents the population for 

which it provides critical services. Presumably any Tribe with a Tribal government, including 

those with zero formula area population, provides relevant services to at least some individuals.

A Tribe having a zero formula area population strongly suggests that, in that Tribe’s case,

formula area population does not track increased expenditures but rather is a result of the way 

formula area population is calculated for purposes of the IHBG program. Some Tribes have a 

12 For example, the Chairman of the Suquamish Tribe during the Tribal consultation held regarding the reallocation 

noted differences among Tribes in enrollment criteria and observed that some Tribes may have lower enrollment 

numbers but play a “greater” role for “the regional tribal population in their area.” Transcript of Treasury Tribal 

Consultation (Mar. 18, 2021) at 17-18. See also Letter from Sylvia P. Miller, Vice Chairwoman, Puyallup Tribe of 

Indians to Catherine Wolfram, Acting Asst. Secretary for Econ. Policy, Treasury (Mar. 24, 2021) (providing support 

for the initial allocation’s use of IHBG formula area population in comment submitted as part of the 2021 

reallocation consultation and noting that “using enrollment . . . does not provide an accurate picture of those that will 

benefit from relief”). 

13 Treasury did not in 2020 or 2021 use formula area population as an estimate of or as a proxy for Tribes’ 

enrollment. As the D.C. Circuit confirmed in its most recent opinion, there was no statutory requirement for 

Treasury to base any of the Tribal allocation on enrollment or population, however defined. See 63 F.4th at 46. 

Treasury had broad discretion to adopt an allocation methodology and in 2020 decided to base its allocations on 

IHBG formula area population, along with information on Tribes’ expenditures and employment, rather than to use 

the information it had available on enrollment and ANC shareholders. As discussed below, the final allocation, after 

giving effect to the 2021 Distribution, is a function of three figures—formula area population, enrollment, and the 

ratio between the two.
7

zero formula population because they do not have a formula area at all. Some Tribes that have a 

formula area may have no formula area population because the formula area is very small, 

uninhabitable, or entirely non-residential. In addition, because under HUD’s formula, formula 

area population generally is subject to a cap of two times the Tribe’s enrollment, those Tribes 

that do not submit enrollment figures to HUD have their formula area population reduced to 

zero.

14

 In other words, a zero formula area population indicates the limitations of using HUD’s 

formula area population for Treasury’s purposes—that the zero is a function of the particularities 

of the IHBG formula rather than a reflection of the Tribe’s increased COVID-related expenses. 

Given the indication in the case of zero population Tribes that formula area population may 

provide an insufficient proxy for increased expenditures and given that it was the zero population 

Tribes that were the focus of the D.C. Circuit’s 2021 decision, Treasury focused on providing 

additional funds to the zero population Tribes. 

Under the 2021 Distribution, Treasury also issued supplemental payments to certain other Tribes 

that had a positive formula area population but that nonetheless had a high population ratio. To 

be sure, a high population ratio does not necessarily indicate an underestimate of increased 

expenditures. In some cases, Tribal enrollees not included in the formula area population live far 

from the Tribe’s land base or seat of government and for the most part do not receive relevant 

services from the Tribe.15 However, in some cases, Tribes with low formula area population and 

14 See 24 CFR 1000.302 (definition of “formula area”); 24 CFR part 1000 app. A, ¶ 5.a. Although HUD requests 

Tribal enrollment numbers annually, Tribes are not required to submit an updated Tribal enrollment number to 

receive an IHBG award. The majority of IHBG grants are not impacted by Tribal enrollment because they are not 

subject to the population cap, and some Tribes may not report Tribal enrollment because of this. See also Letter 

from Octavio Escobedo III, Chairman of the Tejon Indian Tribe, to Secretary Yellen (Mar. 24, 2021) (attributing its

zero formula area population to its recent federal recognition as a Tribe).

15 In addition, variations in increased expenditure are determined in part by factors unrelated to either formula area 

population or enrollment, including the existing condition of health care and sanitation facilities on Tribal lands, the 

extent to which Tribal lands and Tribal members are located near urban areas where health care and social services 
8

a high population ratio may provide extensive services to enrollees, including those that live 

outside of the formula area. In light of time and resource constraints, Treasury was not able to 

perform a case-by-case analysis of each Tribe’s situation, so Treasury made funds available not 

only to the zero formula area population Tribes but also to other Tribes that may have been 

adversely affected by the reliance on formula area population. In sum, the 2021 Distribution was 

intended to address potential issues with the original methodology to ensure that all CRF funds 

would be allocated based on increased COVID-related expenditures.

Use of Population Ratios and Phase-Out

Treasury utilized population ratios, and instituted a phase-out based on those ratios, in order to 

better focus its limited funds on the Tribes for which formula area population figures were most 

likely to provide inadequate estimates of COVID-related expenditures. As a threshold matter, 

Treasury had only a finite amount of funds available for reallocation. Any reallocation would 

have had to come from the remaining CRF funds, the vast majority of which were slated for 

ANCs who had been allocated funds on the same basis as the Tribal governments, but who, at 

the time, had not received any payment due to ongoing litigation. Furthermore, ANCs had made 

clear to Treasury the extent to which many Alaska Natives are not served by any Alaska Native 

village but rather rely on assistance from ANCs specifically.16 Thus, in reallocating funds, 

Treasury had to ensure that it left sufficient funds for ANCs. 

are available from other sources, and the extent to which the population living on Tribal lands is dispersed over a 

wide area. 

16 See Letter from Andrew Guy, President and CEO of Calista Corporation to Catherine Wolfram, Acting Asst. 

Secretary for Econ. Policy, Treasury (Mar. 24, 2021) at 4; Letter from Sheri Buretta, Chairman and Interim CEO, 

Chugach Alaska Corporation (Mar. 24, 2021); Sophie Minich, President and CEO, Cook Inlet Region, Inc., to 

Secretary Yellen (Mar. 24, 2021) at 4; Letter from Julia Zaukar, President, Crooked Creek Traditional Council, to 

Catherine Wolfram (Mar. 24, 2021) at 3; Letter from Gwen Slim, Kipnuk Traditional Council President, to 

Catherine Wolfram (Mar. 24, 2021) at 4; Letter from Gabriel W. McKilly, Uyak Natives Inc. (Mar. 19, 2021). 
9

Consequently, Treasury decided that its 2021 Distribution could only address those cases in 

which formula area populations may have served as an inadequate proxy for increased COVIDrelated expenditures. To do this, Treasury decided to rank Tribes based on population ratios, 

establish a cut-off point below which Tribes would not receive a payment, and then scale 

payments across the ranking. For several reasons, Treasury decided to rely on population ratios, 

rather than on the absolute differences between Tribes’ formula area population figures and their 

enrollment figures. As an initial matter, a large, absolute disparity between a Tribe’s formula 

area population figure and its enrollment figure does not necessarily mean that the Tribe’s initial 

population-allocation was inadequate. As explained above, a Tribe with a substantial formula 

area population may have focused its resources on those living within its formula area, rather 

than on enrollees who live outside of the formula area. In that scenario, the enrollment figure—

which includes those living off of the formula area—would overstate the Tribe’s COVID-related 

expenditures.

17

Focusing on population ratios would enable Treasury to focus the supplemental payments on the 

Tribes at issue in the D.C. Circuit’s decision: the Tribes with zero formula area populations, 

17 As a result of the 2021 Distribution, Tribes receiving top-up payments end up with different payment amounts per 

enrolled member. But prior to the 2021 Distribution, Tribes received payments in varying amounts as a proportion 

to their enrollment as well. Treasury never intended to achieve a uniform payment amount per enrolled member 

(just as it never intended to achieve a uniform payment per acre of Tribal land, another metric proposed by some 

Tribes during the 2020 consultation that Treasury considered but did not adopt). Instead, both the 2021 Distribution 

and the original allocation methodology intended to estimate and predict increased expenditures attributable to the 

COVID-19 pandemic, and Treasury decided that a population-based metric could correlate with the increased 

expenditures of Tribal governments relating directly to the public health emergency, such as increased costs to 

address medical and public health needs. Thus, the final allocation—consisting of both the 2021 Distribution and the 

original allocation methodology—takes account of three figures: formula area population, enrollment, and the ratio 

between the two, with the ratio being used to assign weights to the other two figures. This calculation may not 

perfectly correlate with the Tribes’ relative COVID-related expenditures, but neither would any other metric, 

including just enrollment data. That data may underestimate increased expenditures by disregarding individuals to 

whom Tribes provide services but who are not members and may overestimate increased expenditures by counting 

Tribal members who live far from the Tribe’s jurisdiction and receive relevant services from other sources. The 

weighted formula used in the final allocation is a logical and data-based effort to address these concerns and to 

estimate and predict increased expenditures. 
10

which have high population ratios. If Treasury had decided to use the difference between 

formula area population and enrollment in determining eligibility, given the limitation on funds 

available, Treasury would only have been able to pay a small fraction of the difference between 

enrollment and formula area population to those Tribes with the largest differences. This is 

made evident by the case of the Cherokee Nation, for example, for which the difference between 

formula area population and enrollment is 267,973, which dwarfs the difference between these 

two figures in the case of the Prairie Band Potawatomi Nation (3,768), the Shawnee Tribe 

(3,140), or the Miccosukee Tribe of Indians of Florida (597)—the three Tribes that brought suit 

challenging Treasury’s CRF allocation methodology. More important, a reallocation for which 

eligibility was based on the difference between population and enrollment would not have 

provided sufficient funding to zero formula area population Tribes. For example, a reallocation 

provided to the Tribes in the top 15th percentile based on the difference between population and 

enrollment would have only provided funding to two zero formula area population Tribes. 

Treasury instituted the “phase-out”—whereby Tribes in the top 15% received progressively 

lower percentages of their “enrollment allocations” as their population ratios decreased—for a 

similar reason. As noted above, Treasury had only a limited amount of funds it could reallocate, 

and it wanted to ensure it could focus those funds on the zero formula area population Tribes. 

Those Tribes had the highest population ratios, and thus, pursuant to the “phase out,” they 

received the full amount of their “enrollment allocations.” Awarding all Tribes in the 15th

percentile the full amount of the difference between their formula area-based allocations and 

their enrollment-based allocations would have required reallocating approximately twice as 

much funding away from ANCs and would have caused a sharp discontinuity in treatment 

between those Tribes on one side of the 15th percentile line and those on the other.
11

In sum, in 2021, Treasury responded to concerns from Tribes and the D.C. Circuit about the use 

of formula area population by reallocating funds from ANCs based on Tribal enrollment data. 

Treasury still believed formula area population provided a good proxy for increased expenditures 

in most cases, and Treasury had limited funds available for reallocation. It was the zero formula 

area population Tribes that were the most likely to be adversely affected by the use of formula 

area population and that were the focus of the D.C. Circuit’s 2021 opinion. Treasury based the 

reallocation on the population ratio in order to target relief to these zero formula area population 

Tribes. By providing additional funding to these Tribes and others with similarly large 

population ratios, Treasury more closely aligned allocations with Tribes’ increased expenditures.