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S. 3754 (111th): Pigford and Individual Indian Money Account Litigation Settlement Act of 2010

The text of the bill below is as of Aug 5, 2010 (Introduced).


II

111th CONGRESS

2d Session

S. 3754

IN THE SENATE OF THE UNITED STATES

August 5, 2010

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.

1.

Short title

This Act may be cited as the Pigford and Individual Indian Money Account Litigation Settlement Act of 2010.

2.

Pigford Settlement Agreement

(a)

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.

(b)

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.

(c)

Nothing in this section shall be construed as creating the basis for a Pigford claim.

(d)

Section 14012 of the Food, Conservation, and Energy Act of 2008 (Public Law 110–246; 122 Stat. 2209) is amended—

(1)

in subsection (c)(1)—

(A)

by striking subsection (h) and inserting subsection (g); and

(B)

by striking subsection (i) and inserting subsection (h);

(2)

by striking subsection (e);

(3)

in subsection (g), by striking subsection (f) and inserting subsection (e);

(4)

in subsection (i)—

(A)

by striking (i) and all that follows through Of the funds and inserting the following:

(h)

Funding

Of the funds

;

(B)

by striking subsection (g) and inserting subsection (f); and

(C)

by striking paragraph (2);

(5)

by striking subsection (j); and

(6)

by redesignating subsections (f), (g), (h), and (k) as subsections (e), (f), (g), and (i), respectively.

3.

The Individual Indian Money Account Litigation Settlement Act of 2010

(a)

Definitions

In this Act:

(1)

Amended Complaint

The term Amended Complaint means the Amended Complaint attached to the Settlement.

(2)

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.

(3)

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).

(4)

Plaintiff

The term Plaintiff means a member of any class certified in the Litigation.

(5)

Secretary

The term Secretary means the Secretary of the Interior.

(6)

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.

(7)

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.

(8)

Trust Administration Class

The term Trust Administration Class means the Trust Administration Class as defined in the Settlement.

(b)

Purpose

The purpose of this section is to authorize the Settlement.

(c)

Authorization

The Settlement is authorized, ratified, and confirmed.

(d)

Jurisdictional provisions

(1)

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.

(2)

Certification of Trust Administration Class

(A)

In general

Notwithstanding the requirements of the Federal Rules of Civil Procedure, the court overseeing the Litigation may certify the Trust Administration Class.

(B)

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.

(e)

Trust Land Consolidation

(1)

Trust Land Consolidation Fund

(A)

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.

(B)

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—

(i)

to conduct the Land Consolidation Program; and

(ii)

for other costs specified in the Settlement.

(C)

Deposits

(i)

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.

(ii)

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).

(D)

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.

(2)

Indian Education Scholarship Holding Fund

(A)

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.

(B)

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.

(3)

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.

(4)

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.

(f)

Taxation and other benefits

(1)

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—

(A)

shall not be included in gross income; and

(B)

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).

(2)

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—

(A)

as income for the month during which the amounts were received; or

(B)

as a resource.

(g)

Incentive awards and award of fees, expenses, and costs under settlement agreement

(1)

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—

(A)

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

(B)

giving due consideration to the special status of Class Members (as defined in the Settlement) as beneficiaries of a federally created and administered trust.

(2)

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.

(h)

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).

(i)

Trust Land Consolidation Fund

(1)

Consultation

In implementing paragraph F. of the Settlement, the Secretary shall consult with federally recognized Indian tribes with respect to—

(A)

prioritizing and selecting tracts of land for consolidation of fractionated interests; and

(B)

otherwise implementing the Settlement with regard to consolidation of fractionated interests under the Settlement.

(2)

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.).

(j)

Trust administration class adjustments

(1)

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

(2)

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.

(3)

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.

(4)

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.

(5)

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.

(6)

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.

(7)

Special master

(A)

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.

(B)

Review and approval

Any adjustments made by the special master under subparagraph (A) shall be subject to the review of the Court.

(k)

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.

4.

Use of stimulus funds to offset spending

(a)

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.

(b)

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.