Keepseagle: The battle that cost $1 billion
Precedent set for Indian farmers and ranchersBy James Giago Davies
Native Sun News Today Correspondent
nativesunnews.today WASHINGTON—Despite the Supreme Court ruling against two appeals which held up the distribution of Keepseagle settlement funds for over three years there is no definitive date when the prevailing Keepseagle claimants will receive their awards. It is assumed by all involved parties that this will be accomplished before year’s end. There may be an official ruling clearing away the last road block in distributing the funds, but like most legal matters even the legal representatives most closely involved in the case can’t tell people definitively when the awards will be distributed. More than this, the entire history of the Keepseagle class action has been marred by confusion and misinformation with many people misunderstanding the principle and positions of all sides involved in the settlement. While nothing has ever been done about the 20-year long violation of Native American civil rights as far as criminal prosecution is concerned, in 1999 a nationwide class action lawsuit was filed (Keepseagle v.Vilsack), plaintiffs alleging that since 1981, the United States Department of Agriculture (USDA), had denied Indian farmers and ranchers, across the country the same opportunity to obtain low-interest rate loans and loan servicing as their white neighbors causing hundreds of millions of dollars in economic loss and hardship. It took 12 years before the government agreed to a settlement of $680 million in damages to Indian farmers and ranchers. Claimants could file for monies under two tracks: Track A had a cap of $50,000 dollars and required a minimal degree of evidence to meet eligibility: claimants had to provide information under oath they were Indians, and that they had or had attempted to farm or ranch between 1981 and 1999, and that the loan or loan servicing they sought from USDA was denied, or they were otherwise treated unfavorably. For Track B recovery, claimants could be awarded up to $250,000, but they had to supply evidence that would hold up in court, and a similarly situated white farmer had to be shown to have received favorable treatment. Understandably, few could meet the Track B requirements, but over 3,000 met Track A requirements. This left a whopping $380 million unclaimed, and so a battle ensued over the last seven years on how that remainder should be distributed, even if it should be distributed, or if it should all be returned to the treasury. Lead class counsel for the prevailing claimants was Joe Sellers, partner of Cohen Milstein Sellers & Toll. “We litigated this case twelve years before we got paid a penny,” Sellers told Native Sun News, pointing out his firm ran up a million dollars in costs and 10,000 billable hours. “We negotiated some far reaching changes in the farm loan program, it’s not perfect, but we made some significant changes. We got debt paid off.”
The debt Sellers refers to is $80 million of debt forgiveness, part of the settlement agreement which is seldom factored into the settlement total, but which brings it to $760 million. To improve the farm loan programs responsiveness to Indians the USDA created the Native American Farmer and Rancher Council, a 15-member federal advisory committee, 11 members either Indian or representing Indian interests, and four of whom are USDA officials. The council has been slated to meet twice a year for at least five years. The USDA was also required to take steps to improve services to Native Americans: about a dozen regional sub-offices to provide education and technical support to Indians and their advocates; reforming farm loan policy to better assist Indians; create a guide to assist in understanding how to apply for USDA credit; create the Office of the Ombudsperson to address concerns of the socially disadvantaged farmer or rancher; regularly collect and report data on how Native Americans are being treated under these new changes and policies. Two prevailing claimants made their feelings clear about the settlement. “We’ve waited three decades for the USDA to be held accountable to the Native American people,” said Claryca Mandan, of Mandaree, ND. “So today is a great day, indeed. The changes to USDA’s Farm Loan Program will mean that our children and grandchildren will inherit a system that is far more responsive and fair to Native Americans than the system that hampered our generation of farmers and ranchers.” Porter Holder, Soper, OK, said: “This settlement will help thousands of Native Americans who are still farming and ranching. The USDA has some terrific programs, but Native Americans must have equal access to them. That’s what the law requires. We look forward to forging a new era of partnership with the USDA so that our communities can fully benefit from USDA’s farm loan program.” At this point, everything seemed to have been a ringing success for Indians, and in 2010 Obama sang praises over the settlement. But then there was the four-hundred-pound gorilla in the room—what to do with the remaining $380 million. The courts ruled in 2016 only $77 million should be distributed to the prevailing claimants from the first round of distribution. This amounted to about $18,000 after taxes are paid. Tribes and non-profits were awarded $38 million, directed to help farmers and ranchers in their communities. The remaining $265 million went into a trust fund to be distributed over a 20-year period by a board of ostensible experts, to Indian farmers and ranchers in need. Sellers is pleased with the formation of this trust, pointing out “a couple of the named plaintiffs in this case are some of the trustees of the new trust.” Enter two prevailing claimants, Keith Mandan and Donivon Craig Tingle. They sought counsel and appealed this ruling, wanting all of the unclaimed funds to be divvied up among the prevailing claimants, which according to Sellers, “it would have more than doubled the amount (the prevailing claimants) were receiving.” Sellers attempted to explain how unlikely it was an appeal would prevail, and he repeatedly counseled Mandan against this action, receiving what he called “a very stern no.” “I appreciate and respect that Mr. Mandan feels we haven’t been adequately representing his interests,” Sellers said, “but we respectfully disagree. I admire people who act on principle, and I respect his right to do what he did.” Ultimately, Mandan and Tingle failed before the highest court in the land. But between their decision to act on principle, and the ruling of the SCOTUS, were several years of hand wringing frustration by prevailing claimants who desperately needed that additional $18,000 and wondered when, if ever, they would ever see it. That was the danger in this appeal process. The judges could, at any stage, rule that the $380 million not be distributed at all, but returned to the treasury. One judge wrote a dissenting opinion detailing just that. Hers was the only dissenting opinion, and was extremely not in favor of the appeal. No judge ruled in favor of the appeal. “Usually, if you think your argument is going to be successful,” Sellers said, “you at least have one judge on that panel who is going to agree with it.” Given 20/20 hindsight, it is easy to see the appeal process was doomed, and advice against it, foolishly ignored, and all that can be hoped is that the monies that did not go directly to prevailing claimants, will eventually find a way through assistance programs to assist a generation of Indian farmers, hugely wronged by a corrupt system of racial and cultural bias. Despite the award of monetary damages, this system has never had to face a moral or punitive consequence for discrimination and mistreatment of American citizens. It is hoped by all parties, that the watchdog safeguards now in place, largely a consequence of the efforts of Sellers and his legal team, will prevent a future system of blatant discrimination against Indian farmers and ranchers from insidiously reestablishing itself. “Final approval of the Keepseagle Settlement marks the end of an unfortunate chapter in our nation’s history where USDA’s credit discrimination against Indians was the norm,” said Sellers. “This case is also especially noteworthy as it represents a successful effort by Native Americans, who understandably regard the United States government with mistrust as a consequence of the mistreatment they received for centuries, to use the judiciary of the United States to hold a major agency of the United States accountable for violations of laws of the United States.” D.C. Circuit Court of Appeals Decision:
Keepseagle v. Perdue (May 16, 2017) James Giago Davies is an enrolled member of the Oglala Lakota tribe. He can be reached at skindiesel@msn.com Copyright permission Native Sun News Today
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