Expect longer wait for Keepseagle payments as legal dispute drags out

Tuesday, January 23, 2018

Indian farmers and ranchers who experienced discrimination at the Department of Agriculture will have to wait even longer for another round of payments from the historic Keepseagle lawsuit.

The U.S. Supreme Court on Monday gave the Trump administration another month to file a response in the long-running case. That means the financial windfall -- amounting to around $77 million -- will be stuck in limbo for longer than expected.

Attorney Donivon Craig Tingle, who is part of the settlement but has raised challenges to it, said "there are a lot of anxious class members ready to be heard and a resolution to be had" in a letter on Sunday in which he opposed an extension.

The Department of Justice had previously been given until Monday to respond to Tingle's petition, and to another one filed by Keith Mandan, who also is part of the settlement and has raised challenges. But on Friday, government attorneys representing Secretary of Agriculture Sonny Purdue asked for the extension.

"The additional time is needed for the government to prepare its response to these two petitions arising from the same judgment but presenting somewhat different arguments," Noel J. Francisco, the Solicitor General for the United States, wrote in the motion.

The separate petitions didn't pose a major problem for the attorneys who have been handling the Keepseagle case. They were able to file a consolidated response to Tingle and Mandan on time on Monday.

"The issues presented are fact-bound questions of first impression that even petitioners admit are unlikely to recur, and therefore do not warrant this court’s review. The petitions should be denied," the attorneys wrote.

Indianz.Com SoundCloud: D.C. Circuit Court of Appeals Oral Arguments in Keepseagle v. Vilsack

The Obama administration settled Keepseagle for $760 million in 2010. Indian farmers and ranchers were routinely denied services and loans simply based on their race and they lost out on economic opportunities as a result, according to the case.

But a big issue arose after the number of farmers and ranchers who qualified for payments was far lower than expected. After payments were made to about 3,600 class members, some $380 million was left over in the settlement.

Class members, attorneys and the federal government eventually agreed to a modification that was upheld by the D.C. Circuit Court of Appeals in a unanimous decision from May 2017. Tingle and Mandan are now asking the Supreme Court to overturn that ruling.

"It is true that more than half of the settlement fund was not distributed through the claims process and is now poised to be distributed via the cy-près provision," Judge Robert Wilkins of the D.C. Circuit wrote in an opinion in the case. "But this was an unanticipated state of affairs, not an intended result."

The settlement modification calls for each class member to receive another $18,500, plus a $2,775 payment sent to the Internal Revenue Service on their behalf. Previously, they received about $300 million from the settlement.

Another chunk of $38 million is set to go to tribes, non-profits and educational institutions with programs that help Indian farmers and ranchers. Keepseagle attorneys started soliciting applications in May 2016 but the appeal has held up the funds.

Finally, after the named plaintiffs receive additional incentive payments, the remaining $265 million is to be invested into a trust fund, whose proceeds will be used to help farmers and ranchers in Indian Country. The mechanisms for this effort are still in development.

The Trump administration's responses are now due February 23. Since the government was granted an extension, Tingle has already asked for more time to file a reply, delaying resolution of the petition even further. He intends to consolidate his reply to the government and to the Keepseagle attorneys, according to a letter he sent to the Supreme Court on Monday.

The court typically accepts just a small percentage of the petitions presented to the justices. But the process typically takes a few months to resolve, meaning payments can't be made until it's all over.

In the event the court takes the case, the process will be drawn out even longer as additional briefs are filed and oral arguments are scheduled. Then a decision would have to be issued.

Turtle Talk has posted documents from the D.C. Circuit proceeding, Keepsagle v. Perdue.

D.C. Circuit Court of Appeals Decision:
Keepseagle v. Perdue (May 16, 2017)