Court revives Indian farmer's claim to share of Keepseagle settlement

Friday, August 17, 2018

It turns out that the legal battles over the Keepseagle settlement aren't quite finished even as more funds flow to Indian Country.

Timothy LaBatte, a citizen of the Sisseton Wahpeton Oyate, has won the right to pursue a damages claim against the federal government for denying him a share of the $780 million settlement. A unanimous decision from the Federal Circuit Court of Appeals on Thursday reopened his lawsuit.

LaBatte believes he should have been awarded $202,700.52 for experiencing discrimination at the Department of Agriculture. He was denied loans and services even though he knew of non-Indian farmers in South Dakota who were able to secure assistance, he alleges.

To back up his claim, LaBatte asked two witnesses who were aware of his disparate treatment to submit sworn declarations to the Keepseagle settlement arbitrator. But the federal government prevented him from submitting signed versions of those documents.

Why? His witnesses happened to be employees of the Bureau of Indian Affairs, and even though their statements had nothing to do with their jobs, they were ordered not to participate in the settlement process.

That was wrong, the Federal Circuit concluded.

"Department of Interior regulations dictate that 'it is the Department’s general policy not to allow its employees to testify,'" Judge Timothy B. Dyk wrote for the court. "However, employees of the government are allowed to testify to information that they did not secure as a result of their government employment."

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One of the witnesses wasn't even an employee of the BIA at the time he was aware of the alleged discrimination at the USDA, the judge noted. That declaration alone could have helped LaBatte secure his $202,700.52 payment from the settlement, according to the decision.

As a result, the Federal Circuit ordered the U.S. Court of Federal Claims to review LaBatte's case again. And even though all other legal challenges to the Keepseagle funds ended earlier this year, Judge Dyk said there is still a way to award the $202,700.52 being sought by the farmer.

"We are confident that if, after further proceedings, the Claims Court finds that there was a breach, the court will be able to decide on an appropriate remedy to provide Mr. LaBatte what he would have received," Dyk wrote in the 15-page decision.

According to the Keepseagle administrator, about 3,600 Indian farmers and ranchers qualified for the settlement. That was far less than anticipated and it resulted in a large pot of leftover funds.

A modification to the settlement resulted in a second round of payments for those who qualified. After the final legal challenges ended in March, checks went out in late May, resulting in another $77 million in benefits to Indian farmers and ranchers, on top of $300 million they previously received for suffering discrimination at the USDA.

Another $38 million in grants went out to Indian Country, thanks to a federal judge's decision. Recipients have included the Shoshone-Bannock Tribes ($317,545); the Bay Mills Community College ($298,503), the National Congress of American Indians ($388,941) and the Pueblo of San Felipe ($239,800), according to a July 19 court order.

The remaining $266 million has been put into the Native American Agriculture Fund. Overseen by a board of trustees from all over Indian Country, it's now the largest philanthropic organization dedicated to serving tribes and their communities.

While the settlement modification was being negotiated but before it was approved, LaBatte tried to pursue his claim in the U.S. District Court for the District of Columbia. He was denied in a decision that was later upheld by the D.C. Circuit Court of Appeals.

With that avenue closed, LaBatte turned to the U.S. Court of Federal Claims and presented evidence of discrimination with his complaint. According to a declaration that was to be signed by Russell Hawkins, a former chairman of the Sisseton Wahpeton Oyate, an official at the USDA refused to help LaBatte secure a $330,000 for his farming operation on the reservation.

"He gave no loans to Indian farmers while giving loans to non-Indian farmers. This was federal loan discrimination," the document read.

Though Hawkins currently works for the BIA, presently serving as superintendent of the Sisseton Agency, he was not a federal employee at the time he knew of LaBatte's situation, the decision on Thursday stated. He should have been able to sign his declaration, the court concluded.

The Sisseton Wahpeton Oyate is headquartered in South Dakota, with its Lake Traverse Reservation extending into North Dakota.

Federal Circuit Court of Appeals Decision

LaBatte v. U.S. (August 16, 2018)

Briefs from Turtle Talk

LaBatte Brief

US Brief

D.C. Circuit Court of Appeals Decision

Keepseagle v. Perdue (May 16, 2017)