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

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Keepseagle payments delayed as opponents take case to Supreme Court

Wednesday, January 10, 2018

Indian farmers and ranchers are on pins and needles as they wait for another round of payments from the historic yet mangled Keepseagle lawsuit.

The Obama administration reached a $760 million settlement in 2010 to address discrimination at the Department of Agriculture. Indian farmers and ranchers were routinely denied services and loans simply based on their race and they lost out on economic opportunities as a result, according to the case.

But the dispute is still alive and well in the courts more than seven years later. At issue is a plan to distribute $380 million that was left in the settlement fund after the number of Indian farmers and ranchers who were able to qualify for payments fell short of expectations.

The D.C. Circuit Court of Appeals concluded that the plan, in which additional payments would go out to members of the Keepseagle class while the remainder would be set aside for programs that help farmers and ranchers in Indian Country, was perfectly legal, although highly controversial and contentious. The outcome was 2 to 1, with one judge ruefully characterizing the affair as a "big payday" for attorneys.

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

Keith Mandan, one of the named plaintiffs in the lawsuit, and Donivon Craig Tingle, a member of the settlement class, are unhappy with the outcome and would rather see all of the funds go to Indian farmers and ranchers. They are asking the U.S. Supreme Court to overturn the D.C. Circuit ruling.

While their petitions, which were filed separately, remain a long shot, the additional payments envisioned in the plan -- amounting to around $77 million -- are in limbo as a result.

The attorneys who represent the plaintiffs have been given until January 22 to respond to the petitions. They will be defending the plan -- agreed to by the other named plaintiffs -- to distribute the $380 million in remaining settlement funds.

"Because the two petitions arise from the same judgment and raise similar issues, Respondents intend to respond to the petitions for writs of certiorari in Case No. 17-807 and Case No. 17-897 in a consolidated brief in opposition," attorneys wrote in a December 27, 2017, letter to the nation's highest court.

Less concrete are the views of the Trump administration. A month after the D.C. Circuit decision, Attorney General Jeff Sessions announced a new policy and said the Department of Justice will "no longer engage" in settlements that require payments to third parties that weren't directly harmed by the conduct at issue in a particular case.

A couple of months later, government attorneys described the entire Keepseagle settlement as a "regrettable."

"If this settlement were proposed to the department today, it would not be approved and, as noted, the department has now taken steps to ensure that a settlement of this nature will not occur again," the attorneys wrote in an August 16 brief.

The Department of Justice also has been given until January 22 to respond to Tingle's petition, which was filed on December 1, and to Mandan's, which was filed on December 19.

Once the responses are filed, Tingle and Mandan will get a chance to reply. After that, the Supreme Court will take their petitions under advisement before announcing whether the justices will hear the case.

The court typically accepts just a small percentage of the petitions presented to the justices. But the process typically takes a few months to resolve, meaning payments can't be made until it's all over.

Indian farmers and ranchers who have repeatedly contacted Indianz.Com in the months since the D.C. Circuit's decision have been extremely concerned about the delay in the payments. Many had hoped they would get additional funds in time for the Christmas holiday.

But some, who asked to remain anonymous because they aren't represented by their own attorneys, expressed sympathy with efforts to have the entire $380 million distributed to fellow class members. In total, about 3,600 Indian farmers and ranchers qualified for payments -- far fewer than the tens of thousands originally predicted after the lawsuit was filed in 1999.

"It is true that more than half of the settlement fund was not distributed through the claims process and is now poised to be distributed via the cy-près provision," Judge Robert Wilkins wrote in an opinion that sought to address criticism of the new distribution plan. "But this was an unanticipated state of affairs, not an intended result."

The settlement modification calls for each class member to receive another $18,500, plus a $2,775 payment sent to the Internal Revenue Service on their behalf. Previously, they received about $300 million from the settlement.

Another chunk of $38 million is set to go to tribes, non-profits and educational institutions with programs that help Indian farmers and ranchers. Keepseagle attorneys started soliciting applications in May 2016 but the appeal has held up the funds.

Finally, after the named plaintiffs receive additional incentive payments, the remaining $265 million is to be invested into a trust fund, whose proceeds will be used to help farmers and ranchers in Indian Country. The mechanisms for this effort are still in development.

Turtle Talk has posted documents from the D.C. Circuit proceeding, Keepsagle v. Perdue.

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