II
111th CONGRESS
2d Session
S. 3754
IN THE SENATE OF THE UNITED STATES
August 5, 2010
Mr. Barrasso introduced the following bill; which was read twice and referred to the Committee on Finance
A BILL
To provide funding for the settlement of lawsuits against the Federal Government for discrimination against Black Farmers and the mismanagement of Native American trust accounts.
Short title
This Act may be cited as
the Pigford and Individual Indian
Money Account Litigation Settlement Act of 2010
.
Pigford Settlement Agreement
There is hereby appropriated to the
Department of Agriculture, $1,150,000,000, to remain available until expended,
to carry out the terms of a Settlement Agreement (such Settlement
Agreement
) executed by In re Black Farmers Discrimination Litigation,
No. 08–511 (D.D.C.) that is approved by a court order that has become final and
nonappealable, and that is comprehensive and provides for the final settlement
of all remaining Pigford claims (Pigford claims
), as defined in
section 14012(a) of Public Law 110–246. The funds appropriated herein for such
Settlement Agreement are in addition to the $100,000,000 in funds of the
Commodity Credit Corporation (CCC) that section 14012 made available for the
payment of Pigford claims and are available only after such CCC funds have been
fully obligated. The use of the funds appropriated herein shall be subject to
the express terms of such Settlement Agreement. If any of the funds
appropriated herein are not used for carrying out such Settlement Agreement,
such funds shall be returned to the Treasury and shall not be made available
for any purpose related to section 14012, for any other settlement agreement
executed In re Black Farmers Discrimination Litigation, No. 08–511 (D.D.C.), or
for any other purpose. If such Settlement Agreement is not executed and
approved as provided above, then the sole funding available for Pigford claims
shall be the $100,000,000 of funds of the CCC that section 14012 made available
for the payment of Pigford claims.
Nothing in this section shall be construed as requiring the United States, any of its officers or agencies, or any other party to enter into such Settlement Agreement or any other settlement agreement.
Nothing in this section shall be construed as creating the basis for a Pigford claim.
Section 14012 of the Food, Conservation, and Energy Act of 2008 (Public Law 110–246; 122 Stat. 2209) is amended—
in subsection (c)(1)—
by striking
subsection (h)
and inserting subsection (g)
;
and
by striking
subsection (i)
and inserting subsection
(h)
;
by striking subsection (e);
in subsection
(g), by striking subsection (f)
and inserting subsection
(e)
;
in subsection (i)—
by striking
(i)
and all that follows through Of the funds
and
inserting the following:
Funding
Of the funds
;
by striking
subsection (g)
and inserting subsection (f)
;
and
by striking paragraph (2);
by striking subsection (j); and
by redesignating subsections (f), (g), (h), and (k) as subsections (e), (f), (g), and (i), respectively.
The Individual Indian Money Account Litigation Settlement Act of 2010
Definitions
In this Act:
Amended Complaint
The term
Amended Complaint
means the Amended Complaint attached to the
Settlement.
Land Consolidation Program
The
term Land Consolidation Program
means a program conducted in
accordance with the Settlement and the Indian Land Consolidation Act (25 U.S.C.
2201 et seq.) under which the Secretary may purchase fractional interests in
trust or restricted land.
Litigation
The
term Litigation
means the case entitled Elouise Cobell et al. v.
Ken Salazar et al., United States District Court, District of Columbia, Civil
Action No. 96–1285 (JR).
Plaintiff
The
term Plaintiff
means a member of any class certified in the
Litigation.
Secretary
The
term Secretary
means the Secretary of the Interior.
Settlement
The
term Settlement
means the Class Action Settlement Agreement
dated December 7, 2009, in the Litigation, as modified by the parties to the
Litigation.
Side Agreement on Attorneys' Fees, Expenses, and Costs
The term Side Agreement on Attorneys’ Fees, Expenses, and Costs means an agreement dated December 7, 2009, between Class Counsel (as defined in the Settlement) and the Defendants (as defined in the Settlement) relating to attorneys’ fees, expenses, and costs incurred by Class Counsel in connection with the Litigation and implementation of the Settlement.
Trust Administration Class
The term Trust Administration
Class
means the Trust Administration Class as defined in the
Settlement.
Purpose
The purpose of this section is to authorize the Settlement.
Authorization
The Settlement is authorized, ratified, and confirmed.
Jurisdictional provisions
In general
Notwithstanding the limitation of jurisdiction of district courts contained in section 1346(a)(2) of title 28, United States Code, the United States District Court for the District of Columbia shall have jurisdiction over the claims asserted in the Amended Complaint for purposes of the Settlement.
Certification of Trust Administration Class
In general
Notwithstanding the requirements of the Federal Rules of Civil Procedure, the court overseeing the Litigation may certify the Trust Administration Class.
Treatment
On certification under subparagraph (A), the Trust Administration Class shall be treated as a class under Federal Rule of Civil Procedure 23(b)(3) for purposes of the Settlement.
Trust Land Consolidation
Trust Land Consolidation Fund
Establishment
On final approval (as defined in the
Settlement) of the Settlement, there shall be established in the Treasury of
the United States a fund, to be known as the Trust Land Consolidation
Fund
.
Availability of amounts
Amounts in the Trust Land Consolidation Fund shall be made available to the Secretary during the 10-year period beginning on the date of final approval of the Settlement—
to conduct the Land Consolidation Program; and
for other costs specified in the Settlement.
Deposits
In general
On final approval (as defined in the Settlement) of the Settlement, the Secretary of the Treasury shall deposit in the Trust Land Consolidation Fund $2,000,000,000 of the amounts appropriated by section 1304 of title 31, United States Code.
Conditions met
The conditions described in section 1304 of title 31, United States Code, shall be considered to be met for purposes of clause (i).
Transfers
In a manner designed to encourage participation in the Land Consolidation Program, the Secretary may transfer, at the discretion of the Secretary, not more than $60,000,000 of amounts in the Trust Land Consolidation Fund to the Indian Education Scholarship Holding Fund established under paragraph 2.
Indian Education Scholarship Holding Fund
Establishment
On final approval (as defined in the
Settlement) of the Settlement, there shall be established in the Treasury of
the United States a fund, to be known as the Indian Education
Scholarship Holding Fund
.
Availability
Notwithstanding any other provision of law governing competition, public notification, or Federal procurement or assistance, amounts in the Indian Education Scholarship Holding Fund shall be made available, without further appropriation, to the Secretary to contribute to an Indian Education Scholarship Fund, as described in the Settlement, to provide scholarships for Native Americans.
Acquisition of trust or restricted land
The Secretary may acquire, at the discretion of the Secretary and in accordance with the Land Consolidation Program, any fractional interest in trust or restricted land.
Treatment of unlocatable plaintiffs
A Plaintiff the whereabouts of whom are unknown and who, after reasonable efforts by the Secretary, cannot be located during the 5-year period beginning on the date of final approval (as defined in the Settlement) of the Settlement shall be considered to have accepted an offer made pursuant to the Land Consolidation Program.
Taxation and other benefits
Internal Revenue Code
For purposes of the Internal Revenue Code of 1986, amounts received by an individual Indian as a lump sum or a periodic payment pursuant to the Settlement—
shall not be included in gross income; and
shall not be taken into consideration for purposes of applying any provision of the Internal Revenue Code that takes into account excludable income in computing adjusted gross income or modified adjusted gross income, including section 86 of that Code (relating to Social Security and tier 1 railroad retirement benefits).
Other benefits
Notwithstanding any other provision of law, for purposes of determining initial eligibility, ongoing eligibility, or level of benefits under any Federal or federally assisted program, amounts received by an individual Indian as a lump sum or a periodic payment pursuant to the Settlement shall not be treated for any household member, during the 1-year period beginning on the date of receipt—
as income for the month during which the amounts were received; or
as a resource.
Incentive awards and award of fees, expenses, and costs under settlement agreement
In general
The Court shall determine the amount to which the Plaintiffs in the Litigation may be entitled for incentive awards and for attorneys’ fees, expenses, and costs—
in accordance with controlling law, including (with respect to attorneys’ fees, expenses, and costs) any applicable rule of law requiring counsel to produce contemporaneous time, expense, and cost records in support of a motion for such time, expense, and cost records; and
giving due consideration to the special status of Class Members (as defined in the Settlement) as beneficiaries of a federally created and administered trust.
Notice of side agreement on attorneys' fees, expenses, and costs
The description of the request of Class Counsel for an amount of attorneys’ fees, expenses, and costs required under paragraph C.1.d. of the Settlement shall include a description of all material provisions of the Side Agreement on Attorneys’ Fees, Expenses, and Costs.
Selection of 1 or more qualifying banks
The Court, in exercising the discretion of the Court to approve the selection of any proposed Qualifying Bank (as defined in the Settlement) under paragraph A.1. of the Settlement, may consider any factors or circumstances regarding the proposed Qualifying Bank that the Court determines to be appropriate to protect the rights and interests of Class Members (as defined in the Settlement) in the funds to be deposited in the Settlement Account (as defined in the Settlement).
Trust Land Consolidation Fund
Consultation
In implementing paragraph F. of the Settlement, the Secretary shall consult with federally recognized Indian tribes with respect to—
prioritizing and selecting tracts of land for consolidation of fractionated interests; and
otherwise implementing the Settlement with regard to consolidation of fractionated interests under the Settlement.
Contracting and compacting
Notwithstanding any provision of the Indian Land Consolidation Act (25 U.S.C. 2201 et seq.), the Secretary shall implement paragraph F. of the Settlement through contracts or compacts under titles I and IV of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.).
Trust administration class adjustments
In general
In addition to any amounts deducted from the Accounting/Trust Administration Fund under paragraph E.4.b.2. of the Settlement, the Court shall require the Claims Administrator (as defined in the Settlement) to set aside, from the funds paid into the Accounting/Trust Administration Fund (as defined in the Settlement) pursuant to paragraph E.2.a. of the Settlement, $50,000,000 for making equitable adjustments to the payments to members of the Trust Administration Class
Purpose of adjustments
The purpose of the adjustments under this subsection is to provide additional compensation to any member of the Trust Administration Class who demonstrates that the pro rata formula calculated under paragraph E.4.b.(3) of the Settlement does not provide fair compensation to such member of that class.
Procedures
Except as provided in paragraph (5), the procedures, manner, sufficiency of proof, and other requirements for members of the Trust Administration Class to receive adjustments under this subsection shall be established by, and be within the discretion of, the Court.
Amount of adjustments
Whether a requested adjustment under this subsection should be made and the amount of any such adjustment shall be within the discretion of the Court and not subject to appeal.
Timing of adjustments
Any adjustment payments authorized under this subsection shall be distributed after payments have been made to class members under paragraphs E.3. and 4. of the Settlement.
Remaining funds
Any funds remaining in the amount set aside under paragraph (1) after completing the payments of equitable adjustments under this subsection shall be distributed to all members of the Trust Administration Class in accordance with the pro rata percentages calculated for the members of that class under paragraph E.4.b.(3) of the Settlement.
Special master
In general
At the discretion of the Court, the determination of the amount of equitable adjustments under this subsection may be made by the special master appointed under the Settlement.
Review and approval
Any adjustments made by the special master under subparagraph (A) shall be subject to the review of the Court.
Appointees to Special Board of Trustees
The 2 members of the special board of trustees to be selected by the Secretary under paragraph G.3. of the Settlement shall be selected only after consultation with, and after considering the names of possible candidates offered by, federally recognized Indian tribes.
Use of stimulus funds to offset spending
In general
The unobligated balance of each amount appropriated or made available under the American Recovery and Reinvestment Act of 2009 (Public Law 111–5; 123 Stat. 115) (other than under title X of division A of that Act) is rescinded, on a pro rata basis, by an aggregate amount that equals the amounts necessary to offset any net increase in spending or foregone revenues resulting from this Act and the amendments made by this Act.
Report
The Director of the Office of Management and Budget shall submit to each congressional committee the amounts rescinded under subsection (a) that are within the jurisdiction of the committee.
