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Published October 26, 2010, 08:52 AM

Settlement reached in Native American farmer case

WASHINGTON — The Obama administration has settled a Native American discrimination case against the Agriculture Department filed in 1999 by Marilyn and George Keepseagle, a Fort Yates, N.D., couple, and other Native American farmers,

By: Jerry Hagstrom, Special to Agweek

WASHINGTON — The Obama administration has settled a Native American discrimination case against the Agriculture Department filed in 1999 by Marilyn and George Keepseagle, a Fort Yates, N.D., couple, and other Native American farmers,

The agreement could bring Native American farmers nationwide a total of $680 million in compensation and another $80 million in debt forgiveness.

Agriculture Secretary Tom Vilsack and Attorney General Eric Holder announced the settlement of the class-action lawsuit — known as Keepseagle v. Vilsack — on Oct. 19. The suit covers Native Americans with discrimination claims against USDA for the years 1981 to 1999.

“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,” Vilsack said.

The farmers had charged that, when they applied for farm loans at USDA offices, they either were denied the same type of loans granted to white farmers or, if granted, the loans provided poor service.

The settlement, which also includes provisions for USDA to make sure Native Americans have access to its programs, sets the stage for resolution of discrimination cases brought by Hispanic and women farmers against USDA.

Marilyn Keepseagle, who traveled to Washington to be in court when the settlement was announced, said the next day, “I feel great,” but added she was “shocked” that the case finally had been resolved.

Keepseagle said she called her husband at their ranch along the Missouri River where he was busy with his cattle. Marilyn Keepseagle said her husband found it hard to believe the government had settled the case, but she told him, “Well, it did.”

Claryca Mandan of Mandaree, N.D., who also traveled to Washington, said the debt relief would resolve problems that have plagued Native American farmers for 20 years.

“The goal is to keep people on the land,” Mandan said.

Porter Holder of Soper, Okla., said he is particularly pleased by the programmatic changes USDA has promised to make.

“USDA has great programs, but they are discriminatory about who gets” to use them, Holder said.

Sarah Vogel, a former North Dakota agriculture commissioner who had worked on the case since before 1999, said she was “delighted” with the settlement. “The money is excellent,” Vogel said, but she added that she is more excited by the changes that USDA will make to the way it treats Native Americans when they come into USDA and handles its loan programs.

The plaintiffs were from North Dakota and other Plains states, but the settlement is open to any Native American farmer in the nation who think they were wrongly treated.

Settlement terms

Under the settlement agreement, two payment “tracks” are available. 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 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 $250,000 per individual. Actual monetary awards are subject to reduction based on the amount of available funding and the number of meritorious claims.

The Judgment Fund maintained by the Justice and Treasury departments will fund any monetary awards provided under the settlement. Unlike the black farmers’ discrimination case known as Pigford II, no congressional appropriation is required. USDA will provide up to $20 million to administer the settlement.

In addition to the $80 million in debt forgiveness to successful claimants with outstanding USDA farm loans, a moratorium on foreclosures of most claimants’ farms and a moratorium on accelerations and administrative offsets of class members’ farm loan accounts will be put into place until after claimants have gone through the claims process or the agriculture secretary has been notified that a claim has been denied.

USDA also will create a Federal Advisory Council for Native American farmers and ranchers that will include Native American representation from around the country as well as senior USDA officials.

Further, USDA will establish an office to address farm program issues relating to Native American farmers and ranchers and all other socially disadvantaged farmers and ranchers and offer Native American farmers enhanced technical assistance services through the establishment of a network that provides intensive instruction to recipients concerning financial, business and market planning skills and supports the deployment of tribal agriculture advocates and third party outreach and education providers.

Although the plaintiffs and the lawyers have said they are pleased with the settlement, other Native Americans will have an opportunity to express their views on the case to the Federal District Court of the District of Columbia, where the case is pending.

Joe Sellers, a Washington attorney for the plaintiffs, said that notice of the case will be placed in publications that Native Americans read.

Sellers said that he expects final approval of the settlement to come next spring. Native American farmers will be able to file their claims electronically or by mail to an independent firm and will not have to go to the Farm Service Agency where they experienced discrimination to file their claims, Sellers said.

The independent firm, which has been hired by the plaintiffs and their lawyers, will analyze the claims. Sellers said he expects payments to be made in late 2011 or early 2012.

Other cases

The settlement of the Keepseagle case is increasing pressure on Congress to provide money to settle the black farmers’ case against USDA and the Native American trust case against Interior and on Justice and USDA to settle the cases brought by Hispanic and women farmers.

President Obama praised the settlement in a release, saying that with it, “We take an important step forward in remedying USDA’s unfortunate civil rights history.” And he added, “In light of that commitment, Congress must also act to implement the historic 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. My administration also continues to work towards a resolution of the claims made by women and Hispanic farmers against the USDA.”

Vilsack said at an Oct. 20 news conference that USDA and the Justice Department are moving forward on the Hispanic farmers’ case, which is known as Garcia v. Vilsack, and the women farmers’ case, Love v. Vilsack. But he noted that the court has not given those cases the class status it gave the Keepseagle case and said that means the settlement process will have to be somewhat different.

Tony West, the assistant attorney general in the civil division who negotiated the final Keepseagle case, said in the news conference that he thinks the Hispanic and women’s cases also will be settled.

The size of the Keepseagle settlement also could set precedents for finalization of the other cases.

Vogel said in an interview that the $760 million total settlement in damages and debt forgiveness represented 98 percent of the relief that an expert study had said was due the Native American plaintiffs and that the costs of USDA’s commitment to make program changes would be on top of that. Reaching such a high percentage of relief in a settlement “is unheard of,” Vogel said.

Stephen Hill, the lead lawyer in the Garcia case, said in a release that the Hispanic plaintiffs “look forward to a speedy and just settlement of our identical claim, a fact that the government has readily acknowledged.” But Hill disputed Vilsack’s statement that the cases are distinguishable on the issue of class certification.

“That is, in fact, a red herring,” said Hill, “because Keepseagle was certified as a class on exactly the same basis as class certification was denied in the Garcia case.” To date, Hill said, the government is “refusing equal treatment for Hispanic farmers.”

Marc Fleischaker, a lawyer for the women farmers in the Love case, said that the Keepseagle settlement was “reasonable,” but noted that the number of potential women farmer claimants could be much larger than either the Native American or Hispanic farmers. Fleischaker said that the women plaintiffs are in discussions and negotiations with the Justice Department and are “hopeful of a mutually agreed settlement, not an imposed settlement.”

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