Application process, eligibility announced for $38 million Keepseagle grants distribution

Fast-track registration opens May 25, applications close June 24

WASHINGTON D.C. – Class counsel in the Keepseagle v. Vilsack settlement today announced details about the Native American Agricultural Fast Track Fund (NAAFTF), a one-time distribution of $38 million in settlement funds.  Awards from this fund will be made on a competitive basis to non-profit organizations, tribal programs and educational institutions which provide agricultural, business, technical or advocacy services to existing and aspiring Native American farmers and ranchers.

“Among the far-reaching benefits of the Keepseagle settlement is the means for organizations which have a track record of supporting Native American farmers and ranchers to deliver valuable assistance to promote their continued engagement in agriculture — an important component of the economy in Indian Country,” said Joseph M. Sellers, lead counsel for the plaintiff class.  “The Fast Track Fund will make vital resources available to these important efforts by the end of this year.”

The NAAFTF award process begins with a one-month period for letters of intent applications to be submitted to determine eligibility (after review, eligible applicants will be invited to submit full proposals).  This first step starts May 25 at 12:00 p.m. MDT, when registration, application materials, and further process details and a timeline are made available at http://www.indianfarmclass.com/NAAFTF.aspx.  An applicant must submit a letter-of-intent application no later than Friday, June 24, 2016, by 5:00 p.m. MDT.  Technical assistance relating strictly to the application process will be available by dedicated phone and email contacts.

To be eligible, an applicant organization must document that it provided agricultural, business, technical or advocacy services to Native American farmers or ranchers between January 1, 1981, and November 1, 2010; is based in the United States; and is one of the following:

  • 501(c)(3) tax-exempt organization
  • 7871 designation as a non-profit organization chartered under the tribal law of a state   or federally recognized tribe
  • An educational institution described in 170(b)(1)(A)(ii)
  • An instrumentality of a state or federally recognized tribe, designated under 7701(a)(40)

An applicant organization must propose its use of award funds to provide assistance designed to further Native American farming or ranching activities.  Litigation, lobbying or political activities will not be eligible for funding.

The letter-of-intent application must include a description of the applicant organization, demonstrate eligibility through required documentation of a tribal or board resolution, the purpose for which funding is being sought, the applicant organization’s total annual operating budget, total project costs (if applicable), and requested amount.

An advisory committee will review the letters-of-intent applications and issue an invitation to selected organizations for full proposals on July 28, 2016.

The process will be managed under the supervision of class counsel by Echo Hawk Consulting.  Class counsel will make recommendations to the Court, based on input from the Advisory Committee.  The Advisory Committee is comprised of six individuals with experience and expertise in the fields of Native American farming, ranching and philanthropy.All awards are subject to Court approval.  Awards will range in size depending on an organization’s or tribe’s budget, focus and scope.  NAAFTF will consider as well applications from intermediary organizations having existing, relevant grant programs which can be expanded through awards.

Background
On April 20, 2016, the U.S. District Court for the District of Columbia approved a modification to the Keepseagle settlement agreement, which included a process for the distribution of funds to cy pres beneficiaries.  The modification to the settlement also provides for additional damage awards to be paid to prevailing claimants.  The remaining funds, approximately $265 million, will go to a Trust that will distribute funds at the direction of an independent board of trustees for up to 20 years.  NAAFTF is separate from the Trust, and is designed to ensure that a substantial portion of the remaining funds are distributed to qualifying organizations much more quickly than the Trust will be able to begin making grants.

NAAFTF was created to make awards to such organizations already involved in supporting Native American ranchers and farmers before the original Keepseagle settlement was agreed to in 2010.

The Court’s order is open to appeal through June 20, 2016.  If an appeal is filed, the grant process will be suspended until a decision on the appeal is rendered.

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Contact: Crystal Echo Hawk
Echo Hawk Consulting
crystal@echohawkconsulting.com
720.891.9118

About Echo Hawk Consulting

Echo Hawk Consulting offers expert services in philanthropic giving, policy development, issues analysis, executive nonprofit leadership, program design, fundraising, and marketing to tribes, grant makers, businesses, nonprofit organizations and philanthropic individuals focused on strategic growth, social change, and investment in Indian Country. For more information visit: www.echohawkconsulting.com

D.C. Circuit Rejects Challenge to Keepseagle Settlement

Here is the opinion in Keepseagle v. Vilsack.

An excerpt:

Appellant Timothy LaBatte, a class member in a class action against the United States Department of Agriculture (“USDA”), seeks to intervene in that class action – despite the fact that the action was settled and closed – after his claim for compensation under the terms of the action’s settlement agreement was denied. We affirm the District Court’s determination that it lacked ancillary jurisdiction to hear Labatte’s challenge. We do so because LaBatte’s motion to intervene is unrelated to the underlying lawsuit and because the District Court was not required to hear LaBatte’s motion in order to effectuate its decrees.

Keepseagle Settlement Modification Materials

Here are selected materials from Keepseagle v. Vilsack (D. D.C.):

779-1 Keepseagle Motion to Modify

782 Plaintiffs Opposition to Motion to Modify

784 Great Plaints Plaintiffs Amicus Brief

786 US Opposition

787 Intertribal Ag Council Amicus Brief

793 Keepseagle Reply

811 DCT Order

Here is Judge Sullivan’s opening commentary:

This case places the Court in the unenviable position of enforcing a five-year-old bargain that nobody likes. The bargain at issue is not any old contract; rather, it is a settlement agreement that resolved a major civil-rights class action, was approved by the Court in accordance with the Federal Rules of Civil Procedure, and was made final by that approval and the lack of appeal therefrom. The story that led this case to its current posture is as unique as it is disappointing. In brief, the $680,000,000 in damages that were awarded under the settlement agreement was intended to compensate Native American farmers who alleged that the United States Department of Agriculture discriminated against them personally. The agreement created a claims process for distributing this money, but the claims process failed and $380,000,000 remains undistributed. The scope of this failure is monumental; the reasons for it remain unclear.
The agreement was finalized before the claims process began, so no one anticipated such a large amount of excess funds. But the parties did anticipate that some money might be leftover, so they included in their settlement agreement a cy presprovision, which directs that all leftover funds be distributed in equal shares to a group of charities that serve Native American farmers and ranchers that were to be chosen by Class Counsel. Now, faced with the prospect of over half of the plaintiffs’ damages being distributed in equal shares to charities nominated by Class Counsel, many class members regret that part of their agreement and want to change it. Principal among those class members is Marilyn Keepseagle, who has asked the Court to modify the agreement to create a renewed claims process to distribute more of the money to individual class members. Others, including Class Counsel, ask to modify only the charitable-distribution procedures to accommodate the large amount of money to be distributed by: (1) allowing it to be distributed in unequal shares scaled to an organization’s capacity; (2) spreading the distribution over twenty years; and (3) placing distribution decisions in the hands of a trust run by Native American leaders.
Unless there is a legal basis for this Court to modify the agreement, the Court must enforce the agreement reached in 2011. Doing so would frustrate all parties’ goals. Contrary to the Keepseagles’s wishes, the funds would remain entirely for charitable distribution. Contrary to the goals of Class Counsel and the government, that charitable distribution would be pursuant to the arguably inefficient procedures that were designed to handle a much smaller amount of money. This result could be viewed as both unjust and inefficient. Over half of the class’s damages would be distributed to third parties, despite the relative ease with which class members could be identified, the claims process reopened, and previously successful claimants permitted to prove that they suffered damages in excess of the compensation they have obtained.
The Court’s role is not to craft a new compromise based upon the Court’s own views about the appropriate amount of compensation due to class members who alleged decades-long, and, in many cases, life-altering discrimination at the hands of their federal government. Nor is it to create a preferred process for distributing the funds to charity. Before the Court is a simple question: Are any of the narrow circumstances in which a court’s final judgment may be modified present in this case?
The avenues proposed by the parties for unilateral modification—Class Counsel’s attempt to realign the charitable-distribution procedures pursuant to Federal Rule of Civil Procedure 60(b)(5), and the Keepseagles’s attempt to reopen the claims process pursuant to the legal doctrine governing unclaimed funds as well as Rules 60(b)(5) and 60(b)(6)—are simply inapplicable, as the Court discusses in detail in Parts II.A and II.B of this Opinion. Absent a way to modify the agreement unilaterally, the parties must come to a consensus themselves, which their settlement agreement defines as “the written agreement of the Parties.” As the Court finds in Part II.C, this language requires more than the agreement of Class Counsel and the government, over the objection of at least one class representative and many class members, which is what is presented by Class Counsel’s proposed modification. It also requires more than an alignment between Class Counsel, the class representatives, and members of the class, who would all prefer that the money be distributed directly to class members. Because there is no consensus within the meaning of the agreement, and because the parties’ proposals for unilateral modification are legally insufficient, the Court DENIES both pending motions for modification of the settlement agreement. The Court expects that there will be review of the legal conclusions reached in this Opinion by appellate courts. Upon resolution of appellate proceedings, if this Court’s legal conclusions are undisturbed, the Court will grant the Parties a period of time to negotiate an agreement that they may jointly present to the Court.

Choctaw Nation Attempt to Intervene in Keepseagle Denied

Here are the intervention materials in Keepseagle v. Vilsack (D. D.C.):

647-1 Choctaw Nation Motion to Intervene

705-1 Great Plains Claimants Motion

716 Plaintiffs Response to Great Plains Claimants

717 Plaintiffs Response to Choctaw Nation

718 US Response to Choctaw Nation

719 US Response to Great Plains Claimants

728 DCT Intervention Order

Two Notices for Job Opportunities in Keepseagle Claims Settlement

From Sarah Vogel re: the Keepseagle Indian farmer settlement:

We have two types of income opportunities for attorneys, and one type of opportunity for claims consultants, who need not be attorneys.

The first notice is for lawyers in private practice who would work with Keepseagle claimants who want to pursue a “Track B” claim for an 8% contingency fee.  As you can see, my email is given as a principal point of contact for these attorneys.

Notice_of_Opportunity_for_Private_Counsel_to_Represent_Certain_Claimants_in_Keepseagle

The second notice deals with the opportunity for full time temporary attorneys and full time temporary claims consultants to work on Track A cases.  These individuals would be hired by Excelerate, which is an employment agency for attorneys that is working with class counsel.   These jobs would begin with training in late June and end in late December.  There is a special email for Keepseagle employment at the Excelerate agency.

Notice_of_Employment_Opportunities_for_Track_A_Attorneys_and_Claims_Consultants

Keepseagle Judge Questions Use of Major National Banks to Safeguard Settlement Funds

From BLT:

The federal judge overseeing the $750 million settlement in a Native American class action expressed concern Tuesday over the selection of four banks in which the plaintiffs’ lawyers want to invest money before checks are cut to potentially thousands of beneficiaries.

The plaintiffs’ lawyers in Keepseagle v. Vilsack, a suit over discrimination in the government’s loan processing for Native American farmers and ranchers, proposed splitting and investing about $600 million in Bank of America Corporation, Wells Fargo & Company, Citigroup, Inc. and PNC Financial Services. A fifth bank, owned by a Native American tribe in Oklahoma, would receive about $18 million.

At a hearing in the case yesterday in Washington federal district court, U.S. District Judge Emmet Sullivan criticized the selection of the four major banks, saying the plaintiffs’ team failed to fully examine the use of Native American or minority-owned banks.

The plaintiffs’ lawyers, he said, should have sent proposal requests to more banks outside of the major national institutions. The judge called the selection of the big four banks “suspect” and asked whether their designation marked “business as usual.”

Continue reading

BLT: Coverage of Possible Problems in USDA – American Indian Farmers Settlement

Here is the full article.

An excerpt:

The lawyers representing a class of Native American farmers and ranchers say they are confident the claims process that is part of a $760 million settlement will not have the same problems that plagued a similar suit against the U.S. Department of Agriculture.

In the earlier suit, where a class of African American farmers sued the government over alleged discrimination in federal lending programs, thousands of plaintiffs missed out on compensation because claims were submitted after deadline. The Obama administration is seeking congressional approval for $1.15 billion to compensate black farmers who were excluded from the settlement in a case called Pigford I.

Last week, Judge Emmet Sullivan of Washington’s federal trial court asked the attorneys in the Native American farmer discrimination case Keepseagle v. Vilsack to address how the proposed settlement avoids the Pigford issues.

On Monday, Justice attorneys and the lawyers for the plaintiffs filed a joint submission to try to alleviate Sullivan’s concerns. Click here for a copy.