Tribal concern is brewing over a proposed plan by lawyers who settled the Keepseagle Native American farmer lawsuit that would allow the lawyers to create an agricultural foundation using a substantial chunk of money that was supposed to be awarded to Indian farmers.
The $760 million settlement, approved in April 2011, designated $680 million for Native American farmers who had faced discrimination from the U.S. Department of Agriculture over a period of several years in the past. According to legal documents filed August 30, a major amount – $380 million – has been left unclaimed.
The large leftover sum is unusual in a settlement of this nature, according to legal experts who say its existence indicates a miscalculation by the Obama administration and the lawyers for the Indian plaintiffs over how many Indian farmers would be able to qualify. They say this miscalculation harmed Indian farmer beneficiaries who should have actually received a much greater share of the settlement.
As a result of the problem, the lawyers who settled the case, who themselves have received $60.8 million of the settlement, have drafted a plan dictating where they believe the leftover monies should go.
In late-August, the law firm of Cohen Milstein released a summary report that calls for the creation of a “legacy foundation” to receive the remaining settlement funds, known in legal terms as cy pres funds. The foundation is intended to “establish a longstanding and robust funding stream for nonprofit organizations that assist Native American farmers and ranchers,” according to a press release issued by the firm. Its creation and development would be overseen by the firm with input from Native Americans that the firm solicits.
Interest derived from the leftover funds would be used to sustain the foundation and to fund yearly grants to Indian agriculture-focused individuals and groups. Approximately 80,000 American Indian farmers are currently working nationwide, according to federal government estimates.
“This plan is created to aid all Indian farmers and ranchers,” lead lawyer Joseph Sellers told ICTMN in an interview, adding that he prefers for the foundation to make annual grants, rather than to disperse all the funds all at once. “We want to create something that is not encumbered by past alliances. We don’t want to be embroiled in past conflicts.”
“We see this foundation as a lasting legacy that will benefit both current and future generations of Native American farmers and ranchers,” added Marilyn and George Keepseagle, the lead plaintiffs in the case, in a statement supplied by the firm.
“By consolidating the remaining settlement monies in a strong, well-managed and well-endowed foundation, millions of dollars can be distributed each year to dozens of organizations that serve Native American farmers and ranchers.”
The firm’s report includes letters and resolutions of support for the foundation from some Native American groups, but the supportive documents are dated from December 2012 and January and March 2013—long before the terms of the current plan were publicly released in late-August and also long before the firm knew how much leftover money would be available.
One of the tribal organizations that signed off early on the lawyers’ plan is the Intertribal Agriculture Council (IAC). Ross Racine, executive director of the organization, told ICTMN via e-mail, “IAC was fully aware of the plan for a foundation when it passed the resolution of support last December,” which means the lawyers developed the plan before the complete cy pres situation was known.
Christine Webber, a lawyer with Cohen Milstein, confirms that some tribal groups – IAC, the National Congress of American Indians, the Standing Rock Sioux Tribe, the Coalition of Large Tribes, and the Great Plains Tribal Chairman’s Association – signed off on the foundation idea before all the details were developed.
“An outline of the foundation idea was publicly presented before the IAC National Conference in December 2012, and before the meeting of the Council for Native American Farmers and Ranchers,” Webber said. “Even though we didn't know the final amount of money, we knew how many claims had been submitted, and assuming all prevailed, we knew there would be at least $300 million in the cy pres fund. The Native American leaders were instrumental in formulating a more detailed foundation concept once they learned that there would be more cy pres funds than expected."
Sellers added that he knows some may question why the firm waited to present this proposal in federal court until late-August when it had been having discussions about it with tribal agriculture organizations in December. On that question, he said Native Americans, including Racine, had been asking what would happen with any leftover funds, so the firm developed an early proposal to help satisfy them.
Some tribes and Indian organizations are concerned that they were left in the dark on the details, and now fear they will be shut out of being part of the foundation because they have no relationship with Cohen Milstein. The firm, known for its civil rights work, has not handled many Indian-focused cases beyond Keepseagle, so some tribal leaders question why the firm is overseeing a substantial amount of money meant to benefit tribal citizens.
The Choctaw Nation is one tribe that has raised questions with the Intertribal Agriculture Council over the lawyers’ plan, with Choctaw leaders asking that a joint tribal initiative be awarded cy pres funds. They say the Native American Sustainable Agriculture Intertribal Initiative, which already supports tribal farmers, should be granted cy pres funds because the initiative is run by tribes that know and work in this field. The firm has not developed a partnership with the tribe to date, according to court documents.
Some tribal leaders, noting the ongoing nature of the firm’s proposal, are hesitant to publicly criticize the lawyers’ plan because they fear they could be cut out of any possible deal in retaliation for speaking out.
Michael Jandreau, chairman of the Lower Brule Sioux Tribe, has been publicly critical of the plan, saying at a Council for Native American Farming and Ranching meeting in December that the lawyers pushed the foundation proposal without real agreement from Indian country.
“You’re almost talking like you’ve already gotten predisposed to an ideal, and even though there’s among the plaintiffs themselves and the general population, there is disagreement on that,” Jandreau told the lawyers. “And I haven’t went out and polled all the reservations because I didn’t see that as my responsibility; however, I think you’ve driven me to the point that I have to.”
Tribal leaders concerned with the plan have noted that it is has been customary under federal policy for tribal governments to be the backup beneficiaries of programs designed to benefit individual Indians, such as in operations related to the Indian Land Consolidation Act and the Office of Trust Management.
Racine, for one, is critical of tribes that have questions about the lawyers’ plan. “Where were the ‘tribes and sovereignty’ during the 14 years the plaintiffs were trying to stay alive?” he asked ICTMN. “How sovereign are you if you cannot feed yourself?” He added, “The cy pres funds cannot be distributed to every make-believe wannabe with their hand out!”
Racine further noted that the settlement would have to be expanded to include tribes for tribal governments to receive monies from it.
The federal judge overseeing the case, Emmet G. Sullivan, has the ability to reject the lawyers’ proposal, but he has said in a previous court order that he retains limited jurisdiction now that the case is settled. Still, he must approve the plan for it to be enacted, so he retains an important role. On September 4, he scheduled an October 3 status conference to be held on the matter.
The Obama administration, which has received criticism from government experts involved in the case who questioned its rationale for settling for $760 million, has not to date offered support for the lawyers’ plan, according to court documents, despite a request from the Cohen Milstein firm to do so.
“I would be surprised if the Obama administration chooses not to support this proposal,” Sellers said, adding that he is not sure why the administration has not done so yet. “This should not be controversial.”
On September 4, Judge Sullivan ordered the USDA to weigh in by September 17.