On April 28, 2011, U.S. District Judge Emmet G. Sullivan today granted final approval of the historic settlement between Native American farmers and ranchers and the United States Department of Agriculture (USDA), in a case known as Keepseagle v. Vilsack. Resolving a nationwide class action lawsuit, the Keepseagle settlement agreement requires USDA to pay $680 million in damages to thousands of Native Americans, to forgive up to $80 million in outstanding farm loan debt, and to improve the farm loan services USDA provides to Native Americans.
“Final approval of the Keepseagle settlement marks the end of an unfortunate chapter in our nation’s history where USDA’s credit discrimination against Native Americans was the norm. Under this settlement, Native American farmers and ranchers will finally receive the compensation and justice they deserve, and we will undertake a process to ensure that the USDA treats Native Americans equally and fairly.” said lead plaintiffs’ attorney Joseph M. Sellers, of Cohen Milstein Sellers & Toll, PLLC.
Named plaintiffs Claryca Mandan, of Mandaree, N.D., and Porter Holder, of Soper, Okla., who attended the fairness hearing on Thursday, were elated by the court’s official ruling.
“We’ve waited three decades for the USDA to be held accountable to the Native American people. So today is a great day, indeed,” said Mandan. “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.”
Added Holder: “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.”
Judge Sullivan praised counsel, saying, "It's probably the best negotiated agreement that this court has seen in its experience...the terms of this settlement are historic," and "[Cohen Milstein has] demonstrated the highest level of skills and professionalism."
The Keepseagle class action lawsuit was filed more than 11 years ago, on the eve of Thanksgiving 1999. The plaintiffs alleged that since 1981, Native American farmers and ranchers nationwide were denied the same opportunities as white farmers to obtain low-interest rate loans and loan servicing from USDA, causing them hundreds of millions of dollars in economic losses.
The settlement agreement approved by Court represents an extraordinary result for the plaintiffs. The settlement’s $760 million in monetary relief represents about 98 percent of what the plaintiffs could possibly have won at trial, according to an expert report prepared by a former USDA economist for the plaintiffs. All funds for the settlement will be paid from the federal Judgment Fund, which is controlled by the U.S. Department of Justice, and will not have to be approved by Congress.
“This case is 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,” said Sellers.
Now that the settlement agreement has received final approval, Native American farmers and ranchers will have until Dec. 24, 2011 to file claims for damages and debt relief. Keepseagle class members will have an option to file individual claims under either Track A or Track B. Track A permits eligible class members to recover up to $50,000 by providing information under oath that they are Native Americans, that they farmed or ranched (or attempted to farm or ranch) between 1981 and 1999, that they sought a loan or loan servicing from USDA during that period, and that they complained when they were denied a loan or otherwise treated unfavorably. Track B permits eligible class members to seek an award of damages up to $250,000, with the amount based upon evidence of their actual economic loss. Track B claims must submit evidence that would be admissible in court to satisfy each of the same elements as Track A, and in addition must identify a similarly situated white farmer who received more favorable treatment.
Starting in July 2011, Class Counsel will conduct a series of meetings to assist Native American farmers and ranchers with filing claims under Track A. These meetings will occur throughout Indian Country from July through December 2011. Class members are encouraged to retain individual counsel for Track B claims, as far more is involved in preparing a successful Track B claim than a Track A claim. A list of attorneys willing to consider Track B claims will be provided to interested class members. Claims approved by a neutral adjudicator are expected to be paid in the summer of 2012.
Notification of meetings and information on how to file a claim can be found on the IndianFarmClass.com website or by calling 1-888-233-5506.
Under the settlement agreement, the USDA also will forgive up to $80 million in debt currently held by class members whose claims are approved under Track A or Track B. When the U.S. District Court granted preliminary approval of the settlement in November 2010, that order put into effect a moratorium on foreclosures, debt accelerations and debt offsets not already referred to the U.S. Treasury Department. The moratorium currently applies to all Native American farmers and ranchers and for those who file Track A or Track B claims the moratorium will last until the claims process has concluded. After the debt relief is provided, if there are any class members with remaining debt, who are delinquent on any outstanding USDA farm loan debt, the USDA will engage in a round of loan servicing of that debt.
The third provision of the settlement agreement calls for the USDA to improve the delivery and responsiveness of its farm loan program to Native American farmers and ranchers. One of the most important provisions is the creation of the Native American Farmer and Rancher Council, a new federal advisory committee. The Council will have 15 members, 11 of whom will be Native Americans or represent Native American interests and four of whom will be top USDA officials. The Council will meet at least twice a year for the next five years to discuss how to make USDA’s programs more accessible for Native Americans farmers and ranchers. The Council will report its recommendations directly to senior UDSA officials.
In addition to establishing the Council, the USDA will take the following additional steps to improve its services: 1) create 10 to 15 USDA regional sub-offices that will provide education and technical assistance to Native American farmers and ranchers and their advocates; 2) undertake a systematic review of its farm loan policies to determine how its regulations and policies can be reformed to better assist Native American farmers and ranchers; 3) create a customer guide on applying for credit from the USDA; 4) create the Office of the Ombudsperson to address concerns of all socially disadvantaged farmers and ranchers; and, 5) regularly collect and report data on how well Native Americans fare under USDA’s farm loan programs.
Additional information about the Keepseagle v. Vilsack settlement agreement is available at www.IndianFarmClass.com or by calling, toll free, 1-888-233-5506.
Aside from Cohen Milstein Sellers & Toll, PLLC, the plaintiffs are represented by the firms of Conlon, Frantz & Phelan; Jenner & Block, LLP; Sarah Vogel Law Firm; Patton Boggs, LLP; and Stinson Morrison Heckler.