Keepseagle earns settlement agreement

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WASHINGTON – Native American farmers and ranchers alleging discrimination by the federal government have earned a settlement agreement from the Obama administration that could total up to $760 million. Significantly, the deal is structured to be paid from the U.S. judgment fund, so congressional approval is not anticipated to be required.

An agreement in the Keepseagle v. Vilsack case was announced Oct. 19 at the U.S. District Courthouse in Washington after months of intense negotiation. The suit was first filed 11 years ago, and has seen numerous setbacks over the years, with some of the Indian plaintiffs having died during the time it has taken for action.

The farmers alleged discrimination by the U.S. Department of Agriculture in programs that were supposed to support their work. In addition to Native Americans, African-American, Hispanic, and female farmers have sued the government with similar claims.

The deal specifically calls for $680 million in damages to class members for losses they suffered due to the denial of loans or loan servicing by the USDA. It also directs the agency to forgive up to $80 million in debt currently held by class members who succeed in obtaining damages.

An expert report prepared by a former USDA economist found that Native Americans suffered actual financial losses amounting to $776 million between 1981 and 2007 as a result of receiving less than their fair share of credit opportunities from the USDA.

The lead plaintiffs’ lawyer Joseph M. Sellers, a partner at Cohen Milstein Sellers & Toll, PLLC, estimated that class members could begin receiving payments by the end of 2011. For that to happen, the agreement must gain federal court approval and then a series of administrative steps would have to occur to determine actual remuneration.

“It will take time, but it will be worth it,” Sellers said. “Native farmers deserve this justice.”

Part of the administration will involve two payment tracks created under the agreement. Under the first track, persons who meet the class definition and provide substantial evidence of discrimination to an impartial adjudicator will receive a uniform settlement of up to $50,000.

The second track is for those persons who meet the class definition and believe they have stronger evidence of economic losses caused by discrimination. This track requires a higher evidentiary standard and damage awards are capped at a maximum of up to $250,000 per individual.

Actual monetary awards are subject to reduction based on the amount of available funding and the number of claims, USDA officials noted.

According to government officials, the judgment fund maintained by the U.S. Departments of Justice and Treasury will fund any monetary awards provided under the settlement and USDA will provide up to $20 million to administer the settlement.

Beyond the payments, if the court grants the agreement, the USDA will establish a moratorium on foreclosures, debt accelerations and debt offsets not already referred to the Treasury Department. The moratorium will last until the debt relief process has concluded and class members’ debt has been forgiven. After the debt relief is provided, USDA will engage in a round of loan servicing for all class members who are delinquent on any outstanding USDA farm loan debt.

The agreement also calls for changes to USDA’s farm loan program aimed at improving the delivery and responsiveness to Native American farmers and ranchers, including through the creation of the Native American Farmer and Rancher Council, a new federal advisory committee.

The new council is anticipated to have 15 members, 11 of whom will be Native Americans or represent Native American interests and four of whom will be top USDA officials.

President Barack Obama hailed the settlement, saying it is “an important step forward in remedying USDA’s unfortunate civil rights history.”

He also called on Congress to implement the settlements of the Pigford II lawsuit, brought by African-American farmers, and the Cobell lawsuit, brought by Native Americans over the management of Indian trust accounts and resources.

“Today’s settlement can never undo wrongs that Native Americans may have experienced in past decades, but combined with the actions we at USDA are taking to address such wrongs, the settlement will provide some measure of relief to those alleging discrimination,” said USDA Secretary Tom Vilsack. “The Obama administration is committed to closing the chapter on an unfortunate civil rights history at USDA and working to ensure our customers and employees are treated justly and equally.”

“The settlement announced today will allow USDA and the Native American farmers involved in the lawsuit to move forward and focus on the future,” said Attorney General Eric Holder. “Under the process established in this agreement, Native American farmers who believe they suffered discrimination will have their claims heard.”

Several Indians and Native organizations have also praised the agreement, with the National Congress of American Indians saying it provides “long awaited justice.”