BISMARCK, N.D. (AP) — An appeals court panel on May 16 approved a lower court's plan for distributing $380 million left over from the U.S. government's loan discrimination settlement with American Indian farmers and ranchers six years ago.
The decision wasn't unanimous, however, with one of the three judges arguing that Congress should have had a say.
President Barack Obama's administration agreed in 2011 to pay $680 million to settle a class-action lawsuit filed in 1999 by Indian farmers who said they were denied loans for decades because of government discrimination. The lead plaintiffs were George and Marilyn Keepseagle, ranchers on the Standing Rock Indian Reservation, which straddles the North Dakota-South Dakota border.
Only about half of the 10,000 expected claims came in. In April 2016, a judge approved a plan for the leftover money devised by the two sides in the lawsuit that included an additional payment of $21,275 to each claimant and about $300 million to groups that help Indians.
Two of the claimants appealed to the U.S. Court of Appeals for the District of Columbia Circuit, arguing that the entire $380 million should be divvied up among the class members. A three-judge panel on Tuesday voted 2-1 to uphold the district court's finding that the plan was “fair, reasonable and adequate.''
“We look forward to putting this money to work to support farming and ranching among America's first farmers,'' said Joseph Sellers, lead lawyer for the plaintiffs. “Native American farmers and ranchers who have been fighting for themselves and their families for nearly a decade can finally bring this case to a close.''
Circuit Judge Janice Brown disagreed with her colleagues, Judges Robert Wilkins and Harry Edwards, saying the matter “should be the decision of the people and their elected representatives.'' She equated the plan to “the executive branch raiding hundreds of millions of taxpayer dollars out of the Treasury, putting them into a slush fund disguised as a settlement, and then doling the money out to whatever constituency the executive wants bankrolled.''
William A. Sherman, attorney for the two men who appealed the plan, said Brown's dissent “reaffirms our position that the judgment fund cannot be used in the manner contemplated'' and that “there are plenty of issues for appeal.''
PIERRE, S.D. (AP) — Roughly two years after an American Indian tribe began an ambitious push to open the nation's first marijuana resort in South Dakota, a consultant who helped pursue the stalled venture is heading to trial on drug charges.
Jury selection starts Thursday in the case of Eric Hagen, a consultant who worked with the Flandreau Santee Sioux Tribe on its operation about 45 miles north of Sioux Falls. Hagen was indicted on state marijuana charges months after the tribe destroyed their crop amid fears of a federal raid.
Here's a look at key information about the trial:
WHAT'S GOING ON?
Hagen and fellow consultant Jonathan Hunt, officials with Monarch America, a Colorado-based company in the marijuana industry, were charged last year after assisting the tribe.
The Santee Sioux began a marijuana growing operation after the Justice Department outlined a new policy clearing the way for Indian tribes to grow and sell marijuana under the same conditions as some states that have legalized pot.
State Attorney General Marty Jackley warned against the idea from the outset. The tribe ultimately destroyed its crop in November 2015 after federal officials signaled a potential raid.
Jackley announced charges against Hagen and Hunt about nine months later. Hagen, 34, of Sioux Falls, has pleaded not guilty to charges of conspiracy to possess, possession and attempted possession of more than 10 pounds of marijuana.
He faces a maximum penalty of 10 years in prison on both the conspiracy and possession counts and 7 1/2 years on the attempted possession count. Hunt last year pleaded guilty to a drug conspiracy count after agreeing to cooperate with law enforcement.
Court documents say Hunt ordered marijuana seeds from a company in the Netherlands that were shipped surreptitiously to the tribe's office in 2015. Authorities say he and others cultivated the plants at the Flandreau grow facility before they were burned.
The state doesn't have jurisdiction over the tribe. But prosecutors argue that state courts have jurisdiction over non-Native Americans who commit “victimless'' crimes in Indian Country, so Hagen can be prosecuted. Hagen's defense has argued that the federal government has jurisdiction.
Hagen's defense against the indictment is that the marijuana belonged to the tribe. Mike Butler, Hagen's attorney, said Jackley doesn't have jurisdiction to charge the tribe, so perhaps the prosecution is “an offshoot of his frustration that he couldn't impose his will on the tribe.''
“The tribe voted to enact a law. The tribe paid for this stuff. The tribe ultimately voted to burn it. Not my client,'' Butler said. “It was the tribe's exclusive possession in this case.''
Butler said law enforcement was fully informed and involved from the beginning of the venture. He pledged to appeal if Hagen is convicted.
“This is a one-of-a-kind prosecution,'' said Tim Purdon, a former U.S. attorney for North Dakota. “That doesn't mean it's a bad one. It's just, this is truly groundbreaking.''
When tribal leaders initially touted their plan to open the resort on tribal land in Flandreau, President Anthony Reider said they wanted it to be “an adult playground.''
They projected as much as $2 million in monthly profits, with ambitious plans that included a smoking lounge with a nightclub, bar and food service, and eventually an outdoor music venue. They planned to use the money for community services and to provide income to tribal members.
Reider said after the marijuana was burned that federal officials had concerns about whether the tribe could sell marijuana to non-Indians, along with the origin of the seeds used for its crop.
Purdon, now a partner at the Minneapolis law firm Robins Kaplan, said that if Hagen is convicted, it would put a “huge chill on non-Native consultants working with tribes who are interested in exploring medical or adult use cannabis.''
Reider this week called the prosecutions of Hagen and Hunt “very unfortunate,'' saying that the tribe originally reached out to Monarch America about the project.
He said the Santee Sioux have looked into the possibility of growing marijuana again, but said they're waiting for more clarity at the federal level with President Donald Trump's new administration.
The grow facility hasn't been used since the marijuana crop was burned, Reider said.
“It's unfortunate that we were unable to be successful with the project,'' he said. “We were hoping with the revenues to do a lot of positive things for the tribe and the local community.''