USDA Native American case moves closer to resolution

The long-standing Native American discrimination case against the Agriculture Department, Keepseagle v. Vilsack, appears to be near settlement, lawyers for the Justice Department and the plaintiffs told a federal District Court judge Wednesday.

The class action suit, which was filed in 1997, contends that the Agriculture Department discriminated against Native Americans in their applications for USDA's Farm Service Agency farm loans and loan servicing while white farmers received loans and better service.

At a status hearing on the case Justice Department lawyer Joshua Gardner told U.S. District Court for the District of Columbia Judge Emmet Sullivan that the government and the lawyers for the plaintiffs had reached agreement, and the case has been sent to Acting Deputy Attorney General Gary Grindler for review. Joseph Sellers, a lawyer for the plaintiffs, told Sullivan that he believes final approval for the agreement is near.

Gardner said an expedited review is planned, but the agreement is 50 pages and must be reviewed thoroughly. He suggested that Sullivan allow the Justice Department to contact the court to schedule another hearing "when and if we have a signed agreement," but Sellers encouraged Sullivan to schedule another status hearing, which Sullivan set for Tuesday.

Sellers said that it is important to reach an agreement as soon as possible because he plans to use publications that are published only a few times a year to inform Native Americans of their right to file a claim. Sullivan agreed that informing potential claimants of their right to file is important and added that he would use the court's website to try to reach potential claimants.

"They have been waiting years for justice," Sullivan said.

Neither government nor plaintiffs' lawyers would discuss the amount of money in the case, but Sellers said the settlement includes both "economic recovery and programmatic relief." Sellers said he believes there will be tens of thousands of claimants but noted that the number is difficult to predict because USDA did not keep track of applications until 1999.

Sellers said that the settlement includes an "elaborate process" for claimants to come forward even if USDA does not have the paperwork. He also noted that payment will be made through the Justice Department's Judgment Fund and will not require a congressional appropriation like the one that is pending to settle the black farmer case known as Pigford II. Suits against the government are usually settled through the Judgment Fund, but Congress specifically said in the 2008 farm bill that all but $100 million in the Pigford II case must be appropriated.

Three defendants -- Marilyn Keepseagle, Claryca Mandan of North Dakota, and Porter Holder of Oklahoma -- and Sarah Vogel, a former North Dakota agriculture commissioner who is one of the lawyers representing the plaintiffs, traveled to Washington for the status hearing on Wednesday. Mandan said afterward they "were really hopeful that we could [go] home with a celebration." Sellers said he hopes the agreement will be signed by the plaintiffs by next week. He noted that Tony West, the assistant attorney general in charge of the civil division, had participated in at least a dozen meetings that led to the agreement.