BISMARK, N.D. — An 18-year battle that has been taking place in North Dakota has finally come to an end. A decision by a Washington, D.C., court of appeals concluded an ongoing lawsuit against the USDA for discrimination against Native American farmers and ranchers.

 

In Keepseagle v. Vilsack, originally filed in 1999, a group of Native American producers asserted that the USDA discriminated against them in their attempt to procure loans from the agency, from 1981-99. (Current USDA Secretary Sonny Perdue’s name was lately updated as the defendant, since he is the officeholder, just as former Secretary Tom Vilsack’s was while he was in office – but neither is the original defendant.)

According to a former USDA economist as part of the original case, Native Americans suffered actual economic losses amounting to $776 million between 1981-2007 as a result of receiving less than their fair share of credit opportunities.

In the original settlement, the USDA paid $680 million for damages and another $80 million in USDA Farm Loan program debt forgiveness to settle the suit. The settlement also included a claim that any funds left over would be distributed to nonprofit groups that provided educational, charitable and other programs to assist Native American producers.

At the time, remaining funds were expected to only be about $1 million. This figure turned out to be exceedingly low, after only 3,600 of the expected 10,000 claims were successful. This has left $380 million remaining to be divided among various parties.

In 2016, a D.C. district court confirmed the decision to allocate the funds among the plaintiffs, nonprofits and a trust fund aimed at giving long-term assistance. However, two of the class claimants appealed to the U.S. Court of Appeals for the D.C. Circuit, stating that all remaining funds should be awarded a second time to those who had previously received damage compensation, and that other organizations did not have the right to any of the settlement funds. The appeals court, in a split 2-1 decision, sided with the prior court ruling in its verdict.

“We have no good reason to second-guess the District Court’s conclusion that, in providing both supplemental payments and reforming the cy pres process, the negotiated compromise fairly balances the parties’ competing positions,” said Senior Circuit Judge Harry T. Edwards in the majority opinion. Under the final agreement, $77 million is to be allocated among the 3,605 class members, with another $38 million to be allocated to nonprofits and educational institutions to create and maintain programs designed to assist the farmers and ranchers.

The largest portion, at $265 million, is to be invested in a 20-year trust fund to nonprofit entities designed to help producers. The details of how, specifically, this will be used is still in development. Circuit Judge Janice Brown was the dissenting vote, arguing the matter “should be the decision of the people and their elected representatives.” She compared the plan to “the executive branch raiding hundreds of millions of taxpayer dollars out of the Treasury, putting them into a slush fund disguised as a settlement and then doling the money out to whatever constituency the executive wants bankrolled.” 

 

Joseph Sellers, lead lawyer for the plaintiffs, applauds the decision. “We look forward to putting this money to work to support farming and ranching among America’s first farmers. Native American farmers and ranchers who have been fighting for themselves and their families for nearly a decade can finally bring this case to a close.”