George and Marilyn Keepseagle, both citizens of the Standing Rock Sioux Tribe, take part in a meeting about their historic lawsuit at United Tribes Technical College in Bismarck, North Dakota, in November 2010. Photo: Dennis J. Neumann / United Tribes News

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Fate of Keepseagle settlement funds in hands of Supreme Court

Monday, March 19, 2018

The fate of hundreds of millions of dollars from the Keepseagle settlement is now in the hands of the nation's highest court.

The U.S. Supreme Court will be meeting on Friday to consider the last remaining appeals in the long-running case. At stake is $380 million that was left over from the historic settlement, which addressed discrimination against Indian farmers and ranchers at the Department of Agriculture.

If the justices reject two pending petitions, Indian farmers and ranchers can count on seeing millions of dollars of extra payments sooner rather than later. They have been waiting for their share of the funds -- amounting to around $77 million -- for nearly two years.

On the other hand, if the court accepts the appeals, it could be several more months before arguments are scheduled. Then it could be months after that before a decision is reached on the status of the money.

The delay has many Indian farmers and ranchers on pins and needles. While some privately agree with the sentiment of the appeals, they are eager to see any additional funds come their way.

Other potential beneficiaries in Indian Country are paying close attention too. Tribes, non-profits and educational institutions are due to share in $38 million from the leftover portion. And another $265 million is to be invested to help Indian farmers in ranchers in the future.

It is that portion of the settlement which is the subject of the petitions in Mandan v. Perdue and Tingle v. Perdue.

Keith Mandan and Donivon Craig Tingle say all of those funds should exclusively go to Indian farmers and ranchers who, like themselves, previously qualified for the settlement. About 3,600 class members qualified so splitting $380 million among them would result in significantly higher payments.

"This court stands as the last bulwark against a violation of the appropriations power—one of the most critical cornerstones of the Constitution’s separation of powers—at a cost of more than 300 million taxpayer dollars," Mandan, who is a citizen of the Mandan, Hidatsa and Arikara Nation, wrote in his final brief on March 6.

But the attorneys who have been handling the case on behalf of class members say both Mandan and Tingle failed to raise their arguments when the case was in the lower courts. And while the settlement resulted in "a much larger amount of unclaimed funds than anyone had anticipated," they believe sharing the money with Indian Country is fair because it would help those who didn't qualify in the first place.

"The certified class is undoubtedly much larger than the 3,601 successful claimants, and it includes Native American farmers and ranchers who either did not file claims or whose claims were unsuccessful because they were untimely or incomplete," class attorneys wrote in opposition to Mandan's and Tingle's petitions.

"Class counsel and the court must protect the interests of all class members in settlement— identified or not," they added.

The Trump administration is also opposing the appeals. Since the Department of Justice has adopted a new policy that would prevent future settlements from including provisions that benefit third parties, government attorneys say the concerns raised by Mandan and Tingle have basically been addressed.

"The department’s new policy further diminishes the need for review in this case because it effectively eliminates any ongoing practical importance that the challenges petitioners raise here might otherwise have in future settlement agreements involving the government," Noel J. Francisco, the Solicitor General for the United States, wrote last month.

A former senior official reiterated the same view just days before she departed the Trump administration. Though former associate attorney general Rachel Brand, who was the third-highest ranking political appointee at the department, called Keepseagle one of the "worst examples" of settlements being used to pay outside parties, she said the policy would prevent similar recurrences.

"The Department of Justice should not use its settlement authority to subsidize favored causes or political allies," Brand said on February 15. She stepped down five days later.

Mandan's and Tingle's petitions will be considered by the Supreme Court at a closed-door conference on Friday. The justices are expected to announce whether they will hear the case soon after -- typically that happens on the following Monday, though departures are possible.

The Supreme Court accepts just a small percentage of petitions presented to the justices but the current term, which began last October, has been unusually busy for Indian Country. Three Indian law cases are one the docket, and tribes and their advocates have spent time and money responding to more than two dozen petitions in the last several months.

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