Native American Ag Fund from Keepseagle case launched
August 16, 2018
A charitable trust fund to benefit American Indian farmers and ranchers from funds leftover in the Keepseagle discrimination case against the Agriculture Department has finally been established as the Native American Agriculture Fund.
The District Court for the District of Columbia recently approved the appointment of 14 trustees and named Janie Hipp, a Chickasaw lawyer based in Arkansas, as executive director.
"With over $266 million in funding, the NAAF is the largest philanthropic organization solely devoted to serving the Native American community," Hipp said in a news release from the fund trustees. The charitable mission is "to fund the provision of business assistance, agricultural education, technical support and advocacy services to Native American farmers and ranchers to support and promote their continued engagement in agriculture," she added.
"Native American agriculture is at an important moment for investing in meeting the needs of our agriculture producers," Hipp said in a news release from Cohen, Milstein, Sellers and Toll, the law firm that landed the case for the plaintiffs. "Combining such investments with the continued focus on feeding ourselves will create important new opportunities to solidify our economies, strengthen our communities and improve our access to healthy foods. Important next steps for the trustees and the director include developing strategies for grant-making and building a solid administrative office for carrying out the responsibilities of the fund."
The origin of the fund is a case filed by Marilyn Keepseagle, a Standing Rock Sioux living in North Dakota, in 1999, alleging that since 1981, the Agriculture Department had systematically denied American Indian farmers and ranchers nationwide the same opportunities as white farmers to obtain low-interest rate loans and loan servicing, causing them hundreds of millions of dollars in economic losses.
After years of litigation, the Obama administration agreed to settle the case for $760 million – a $680 million compensation fund with an additional $80 million in debt relief. A six-month claims process resulted in approved claims of $238 million for more than 3,600 American Indian farmers and ranchers. The settlement also required USDA to create an advisory body reporting to the secretary of agriculture (which had its last meeting in June), enact modifications in the farm loan programs, and create technical assistance opportunities for American Indian producers.
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But the number of claimants was not as high as expected, resulting initially in $380 million in leftover funds. Some plaintiffs said that the leftover money should be distributed among the approved claimants, but the government declined to go along with that proposal and insisted that the leftover money should be put in a "cy pres" award – a legal way to honor and advance the interests of class members through collective, continuous service to the public interest when complete dispersal of the award or settlement is not feasible. Following more negotiations, supplemental payments to prevailing claimants totaling about $76 million were issued. Some plaintiffs took the case all the way to the Supreme Court, but on March 26 the court declined to hear an appeal.
The Supreme Court decision paved the way for the District Court of the District of Columbia in which the case was considered to pay out $38 million in immediate cy pres awards to nonprofit organizations serving American Indian farmers and ranchers (see link for names of groups) and $266 million to the Native American Agriculture Fund as a trust created as part of the modified settlement empowered to fund programs through nonprofit organizations over the next 20 years.
Those appointed to serve as trustees and their tribal affiliation are:
▪ Elsie Meeks (Oglala Lakota) – board member of the Federal Home Loan Bank Board; former state director, South Dakota Rural Development; rancher
▪ Claryca Mandan (three affiliated tribes) – lead plaintiff; natural resources director, MHA Nation; rancher
▪ Richard Williams (Oglala Lakota) – consultant; former director of the American Indian College Fund
▪ Porter Holder (Choctaw) – lead plaintiff; vice chair, Council on Native American Farming and Ranching; rancher
▪ Paul Lumley (Yakama) – executive director, Native American Youth and Family Center
▪ Charles Graham (Lumbee) – state representative, North Carolina General assembly
▪ Michael Roberts (Tlingit) – president and CEO, First Nations Development Institute
▪ Sherry Salway Black (Oglala Lakota) – chairperson, First Peoples Fund; board member and consultant to Johnson Scholarship Foundation
▪ Pat Gwin (Cherokee) – senior director of environmental resources, Cherokee Nation; rancher and expert on American Indian heirloom seeds
▪ Dr. Joe Hiller (Oglala Lakota) – professor emeritus, University of Arizona College of Agriculture and Life Sciences
▪ Jim Laducer (Turtle Mountain Band of Chippewa) – director and majority shareholder, Turtle Mountain State Bank
▪ Marilyn Keepseagle (Standing Rock Sioux) – lead plaintiff; rancher; recently replaced by Dave Archambault, Sr. (Standing Rock Sioux) – chairman, American Indian Business Leaders and education consultant
▪ Ross Racine (Blackfeet) – executive director, Intertribal Agriculture Council; rancher
▪ Monica Nuvamsa (Hopi) – executive director, The Hopi Foundation
In a news release, the trustees said that Meeks was selected to serve as chair of the trustees board and Williams was selected to serve as vice chair. In late July, Keepseagle resigned from service as a trustee, and on her strong recommendation, the board voted to replace her with Archambault.
The trustees added that they and Hipp "are engaged in strategic planning, selecting staff and advisors to carry out their required functions and all necessary activities to launch the NAAF in a thoughtful and comprehensive manner. Ensuring the funds available are used for the purposes outlined in the NAAF trust documents is paramount, as is ensuring that the fund is managed professionally and in accordance with the law."
They also noted that "the court-approved trust agreement is irrevocable and cannot be changed. Among the key provisions of the trust agreement are the eligibility criteria for grantees. Eligible grantees include: tax exempt organizations described in section 501(c)(3) of the Internal Revenue Code; educational organizations; Community Development Financial Institutions that are also 501(c)(3) organizations; and instrumentalities of federal or state recognized tribes that furnish assistance designed to further Native farming and ranching, under certain conditions. In addition to meeting eligibility requirements, any grantee of NAAF will have reporting and recordkeeping requirements and comply with certain restrictions set forth in the trust agreement on how the funds may be used. Examples of some of the restrictions or limitations on grant purposes include: funds cannot be used for lobbying or political activity, and there can be no grants to individuals or to support litigation. Further clarification on these issues will be forthcoming from NAAF."
Trustees said they intend to begin hearing from American Indian farmers and ranchers as soon as NAAF's website is launched and that meetings will be scheduled to engage in a series of listening sessions, and surveys will be conducted to ensure NAAF communicates effectively with those NAAF is designed to assist and to ensure the NAAF's grantmaking resources are invested in areas of greatest importance to American Indian farmers and ranchers.
"The modification to the settlement agreement struck a sound balance between distributing some of the funds to those who had been successful claimants before and other funds to serve the broader Indian farming and ranching community," stated Joseph M. Sellers, lead counsel for the plaintiffs and chair of the Civil Rights & Employment practice group at Cohen Milstein Sellers & Toll. "In many ways, the creation of the Native American Agriculture Fund trust could turn out to be one of the most lasting legacies of this case because it will create the largest nonprofit institution to serve Native Americans in the history of this country. We look forward to seeing the Native American Agriculture Fund move forward to bring benefits to Indian farmers and ranchers beyond what litigation alone has provided."
"The conclusion of Keepseagle is a very exciting time for Native American agriculture. Class members and other Native American producers will reap significant benefits from these cy pres funds," noted Christine E. Webber, plaintiffs' class counsel, who chaired the grantmaking process and a partner in Cohen Milstein's Civil Rights & Employments practice. "There is great need in Indian Country for funding worthwhile projects, and even $38 million could not cover every request. The proposals we received, however, demonstrated an engaged and invested interest across Indian Country to ensure that agriculture will sustain Native communities now and in the future."