The USDA has settled a decade-old case brought by Native American farmers alleging discrimination. As with the Pigford litigation, the Native American class action – commonly known as Keepseagle – claims USDA employees caused loans to not be processed and/or checks to arrive so late that it negatively impacted farming operations.

The $680 million settlement will become final when it is formally endorsed by the U.S. District Court of the District of Columbia.

Those who have been following Pigford (for more, see Pigford ) will notice many similarities in the construction of the two settlements. One key difference: how each is funded.

While the $1.2 billion Pigford settlement still needs funding approval from Congress, Keepseagle has no such obstacle. The money provided under the Keepseagle settlement will come from a “judgment fund” maintained by the U.S. Department of Justice (DOJ) and Department of Treasury.

“In a sense, it’s not a budgeted item and isn’t required to have congressional action,” said Agriculture Secretary Tom Vilsack during a press conference touting the settlement. “It’s available for the United States to satisfy any claims that may exist. … Pigford (requires) congressional action because when Congress reopened the Pigford case they specifically denied the USDA and DOJ the capacity to use the judgment fund.”

As with Pigford, Keepseagle claimants will be able to choose between two payment tracks.

“Under the first track – if you meet the class definition and provide substantial evidence of discrimination to an impartial adjudicator – you’ll receive a uniform settlement of up to $50,000,” said Vilsack. “The second track is for those who meet the class definition and believe they have stronger evidence of economic losses caused by discrimination. This track has a higher standard of evidence and damage awards are capped at a maximum of up to $250,000 per individual…

“In addition to the monetary award, the agreement provides up to $80 million in debt forgiveness to successful claimants with outstanding debts with the USDA farm loan program.”

Vilsack – who would not venture a guess as to how many Keepseagle claimants there would be -- also said the settlement will usher in a “new, federal advisory council for Native American farmers and ranchers” along with a new ombudsman position “to address farm program issues relating to Native American farmers and ranchers as well as all other socially disadvantaged farmers and ranchers.”

Further, the USDA will offer Native American farmers and ranchers “enhanced technical assistance services through a network that supports the deployment of tribal agricultural advocates and third party outreach and education providers.”

According to Tony West, Assistant Attorney General, a “very extensive” notice process will soon inform Native Americans of the settlement and payment possibilities. “We’ll send notices out, working with class counsel to make sure we reach as many class members as possible. In that notice there will be instructions on how (potential claimants) can make their claims heard.”

Following that, said West, an actual claims process will be set up. “It’s being set up as we speak, the groundwork is being laid.”

Obama administration officials made it clear there is expectation that the Keepseagle settlement will boost Pigford funding chances.   

“We’ll continue to advocate for action to fully fund the (Pigford) settlement,” said Vilsack. “Our hope is the announcement of this Keepseagle settlement will encourage folks to consider the congressional action necessary to finish the Cobell and Pigford litigation.”

The Cobell case involves Native Americans who claim land trusts were mishandled by the government.

What about burden of proof in Keepseagle claims?

“We know there will be circumstances brought to the arbitrator … that will fall along the lines of an individual who went into an FSA office at the same time as a white farmer asking for assistance and help,” said Vilsack. Then, “they were either turned down or their application wasn’t processed in a timely fashion. Or, the application processed but the check didn’t arrive in a timely way resulting in their operation being compromised.”

One of the “important principles” the DOJ tried to adhere to in structuring the Keepseagle agreement “was to create a claims process that is not adversarial,” said West. “We didn’t believe it made sense for people to have to litigate as if they were in court the fact they were discriminated against in order to demonstrate entitlement to compensation.”

Under the first track, the standard is “substantial evidence of discrimination,” continued West. Such evidence “can be documents, an affidavit.”

Under the second track “there’s a slightly higher standard of proof that must be met.”