Students participate in the Cheyenne Eagle Butte School Drum Circle in South Dakota. Photo: U.S. Department of Agriculture

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Keepseagle checks finally coming to Indian farmers and ranchers

Monday, March 26, 2018

It's official -- the long-running legal fight over the remaining funds in the $760 million Keepseagle settlement is finally over.

The U.S. Supreme Court on Monday rejected the last two appeals in the case. The move, which came in an order list, means thousands of Indian farmers and ranchers will finally get their second payment for experiencing discrimination at the Department of Agriculture.

The approximately 3,600 members of the Keepseagle class will now receive a $18,500 check directly, plus a $2,775 payment made in their behalf to the Internal Revenue Service. Altogether, nearly $77 million in additional funds will be flowing to individual Indian beneficiaries, on top of the $300 million on they previously received.

Just as significantly, Indian Country will be seeing a major boost. Tribes, non-profits and educational institutions are due to share in $38 million from the leftover portion immediately in order to help farmers and ranchers in their communities.

And another $265 million will be invested in a trust fund, whose proceeds will be used to address the needs of Indian farmers and ranchers, and those who want to join the industry. The money is to be distributed over a 20-year period by a board of experts.

"I am ecstatic!!" a Keepseagle class member said after learning of the Supreme Court's action on Monday morning.

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

The Obama administration settled the case for $760 million. Of that amount, $680 million was set aside for Indian farmers and ranchers whose requests for loans, assistance and other services at the USDA went unanswered or were handled differently due to allegations of bias at the federal agency.

"With today’s agreement, we take an important step forward in remedying USDA’s unfortunate civil rights history," former president Barack Obama said on October 19, 2010.

On top of the payments to affected individual Indians, the settlement included an $80 million loan forgiveness fund. The money was to be used to address instances in which ranchers and farmers lost equipment, crops and other capital because they said the USDA failed to treat them in a manner similar to non-Indians.

But even though the case drew significant attention in Indian Country, only about 5,100 farmers and ranchers submitted claims, or about half of the expected number. And of those who applied, only about 3,600 qualified for the settlement, again far less than anticipated.

Even of those who qualified, not all were able to submit documentation to secure larger payments from the settlements, which was divided into two tracks, the latter of which required additional evidence to show direct harm experienced at the hands of the USDA.

So after an initial round of $300 million in payments went out, some $380 million remained in the settlement. What to do with those funds led to widespread dissatisfaction in Indian Country, with class beneficiaries at odds with the attorneys who handled the case.

At one point, even the lead named plaintiffs, Standing Rock Sioux citizens George and Marilyn Keepseagle, objected to proposals to distribute the leftover money, known in legalese as cy pres funds. But continued negotiations led to a settlement modification that was agreed to by the class representatives, class counsel and the Obama administration.

The modification consisted of the $77 million in additional payments to class members, $38 million for the Native American Agriculture Fast Track Fund and $265 million for the trust fund.

But the funds have been stuck in limbo because two members of the class objected to the modification. Keith Mandan and Donivon Craig Tingle wanted all of the money to go to Indian farmers and ranchers who, like themselves, previously qualified for the settlement.

Privately, many Indian farmers and ranchers who contacted Indianz.Com about the case supported Mandan's and Tingle's cause. Yet most were eager to see another payment, regardless of the size, and they also did not want to hire their own attorneys, separate from class counsel, to look into the dispute, especially after a federal judge in April 2016 approved the settlement modification.

With their appeals, Mandan, who is a itizen of the Mandan, Hidatsa and Arikara Nation, and Tingle , who is an attorney, attempted to capitalize on the change in power in Washington, D.C. Once President Trump took office in January 2017, his administration took a harsh view of the settlement.

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

In June of that year, Attorney General Jeff Sessions of the Department of Justice adopted a policy that bars settlement funds from going to third parties such as the tribes, non-profits and educational institutions that will benefit from Keepseagle.

Even after the D.C. Circuit Court of Appeals upheld the modification as fair in a May 2017 decision, attorneys from the Trump administration called the situation "regrettable" and said it would never happen again.

"The Department of Justice should not use its settlement authority to subsidize favored causes or political allies," a top former official said in February in remarks that characterized Keepseagle as one of the "worst examples" of the now-barred practice.

But in the end, the Trump team opposed the petitions in Mandan v. Perdue and Tingle v. Perdue, citing the new policy, the lack of errors in the D.C. Circuit ruling and other legal and constitutional issues. The attorneys for the Keepseagle plaintiffs opposed the petitions as well.

With its order list on Monday, the Supreme Court did not explain why it rejected both petitions. The document also did not explain why Chief Justice John G. Roberts "took no part in the consideration or decision of these petitions." Though he previously served on the D.C. Circuit, he does not appear to have participated in earlier appeals in the case.

But even with Roberts out of the picture, the remaining eight justices clearly had no appetite for Keepseagle. It only takes four justices to hear a particular case so there wasn't enough support to accept the petitions.

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