[Congressional Record (Bound Edition), Volume 156 (2010), Part 11]
[Senate]
[Pages 15211-15215]
[From the U.S. Government Publishing Office, www.gpo.gov]




                         PIGFORD II SETTLEMENT

  Mrs. LINCOLN. Madam President, I want to say a special thanks to my 
colleague, Senator Dorgan, not only for yielding, but also, most 
importantly, for his incredible passion for justice. He has worked long 
and hard in this body and in the other, but certainly working hard for 
justice for those whose voices are often quieted. He does a tremendous 
job at it. I think we are all very grateful for that passion and for 
that plea for justice.
  I come to the Senate floor today to urge with great passion my Senate 
colleagues to support another important piece of legislation; that is, 
to fund the racial discrimination settlement known as Pigford II 
between African-American farmers and the U.S. Department of 
Agriculture.
  The time is long overdue to move beyond USDA's discriminatory past 
and begin to right the wrong of African-American producers and what 
they have experienced. We have a keen opportunity today to be able to 
move forward and to see, again, justice as has been described by 
Senator Dorgan in talking about moving forward and away from the past 
and the discrimination that occurred and putting an end to these 
settlements that have already been settled. We have spent the time and 
the energy and the resources to settle these arguments. Now we need to 
make sure those who have been wronged will be right.
  Between 1981 and 1996, African-American farmers seeking farm loans 
and credit were discriminated against, denying them access to 
government programs and to capital. In some cases, these farmers were 
discouraged from even applying for loans. They were told they were 
ineligible or that application forms were unavailable. In other 
instances, loan applications were intentionally delayed to miss 
deadlines, continuing to disadvantage those African-American farmers. 
As a result of the discrimination, many of these farmers were unable to 
run successful businesses and sustained severe damages to their credit 
histories.
  Despite these challenges, despite all of what they were presented 
with and what they were dealing with, some of these farmers are still 
farming today, embodying the essence of resilience and the industrious 
characteristic of all American farmers. We should be proud they are 
still farming today, and we should honor that by making sure we move 
this settlement forward and make sure these awards are granted to those 
who have been wronged.
  Another fallout faced by African-American farmers is their shaken 
faith in the USDA and, by extension, the U.S. Government. Who can blame 
them--to have been wronged and to be found they were in the right and 
yet still not to be made whole? Many farmers have spent more than 20 
years seeking recognition of the discrimination they experienced. While 
no settlement can completely compensate them for the anxiety, the 
anguish, and, of course, the humiliation they experienced, finally 
funding this settlement is a critical first step in restoring the 
USDA's credibility among minority farmers.
  I hope my colleagues will understand how critically important this is 
to the embodiment of who we are as a people and a government to move 
this forward. While it is understood that a legal settlement agreement 
is rarely perfect, funding this agreement will provide much needed 
reconciliation for African-American farmers. It is an opportunity to 
restore their faith in their government, by renouncing a past riddled 
with discrimination and rightfully honoring the settlement.
  Time is of the essence, as many Pigford claimants have passed away 
waiting for closure on this matter, just as Senator Dorgan mentioned 
Native Americans who have passed away waiting for justice. We simply 
cannot afford to delay this process any further. We have seen multiple 
opportunities and efforts to try to move forward. I hope today is an 
opportunity none of us will deny to move the issue forward.
  In my State of Arkansas, I have heard the stories of hard-working 
farm families who, despite years of neglect and discrimination from 
their own government, continue pushing ahead. I have heard from farmers 
such as Mr. Charlie Knott, a hard-working Arkansan who sought farm 
loans in the 1980s but was misled and mistreated in that process. Mr. 
Knott was refused timely

[[Page 15212]]

access to sufficient capital because of discrimination, limiting 
production and ultimately crippling his business.
  When Mr. Knott fell ill, his children tried to take over the farm but 
were also met with resistance and neglect from their government, 
leading to destroyed credit ratings, a loss of 230 acres, as well as 
the family tractor and other farm equipment. After farming on the same 
land for over 100 years, the Knott family was forced to quit.
  Adding insult to injury, the Knott children were once again denied 
access to the Pigford claim because of missed filing deadlines. The 
Knott children are determined to return to farming, to restore the 
family business and their dignity, and to uphold the legacy of their 
father, who fought for years not only to serve his family and community 
but to contribute to the strong legacy of American farming.
  Farmers such as Mr. Knott deserve justice and gratitude from a nation 
that wouldn't be what it is today absent their sacrifices and 
contributions. Farmers such as Mr. Knott have suffered gross 
injustices. It is incumbent on the Members of Congress to demonstrate 
the leadership to correct this injustice and to pass this legislation. 
If not today, when? When will we do this? This action is long overdue. 
The time has come to take this step, to live up to our founding 
principles, to begin the healing process that is so needed, and to 
restore faith in our government. I urge my colleagues to support this 
measure today as we move forward and put it behind us, as we begin to 
heal and rebuild faith in our government.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. GRASSLEY. Madam President, I thank the Senator from Arkansas for 
what she has said. It really is unfortunate that we cannot get this 
Pigford legislation passed.
  I know the distinguished Presiding Officer, the junior Senator from 
North Carolina, has been working on this very hard as well. In fact, 
she and I have cosponsored a piece of legislation to give justice in 
this area as well.
  Today, we have an opportunity to finally take care of this situation 
of bringing justice to Black farmers who have been waiting for decades 
to settle their discrimination claims against the Department of 
Agriculture. Earlier this year, Secretary Vilsack was able to reach a 
settlement agreement with the Pigford II claimants who were denied a 
determination on the merits of their claims against the USDA for no 
reason other than they had filed late.
  The government has an obligation to fund the settlement, which is 
subject to court approval, and Congress must act to provide relief for 
these claimants and do it quickly. The Black farmers have been asking 
for stand-alone consideration of this bill. That is what I was hoping 
to get done today.
  I have nothing against what my colleagues are doing on the Cobell 
settlement as well.
  I think it is fair to say that such appropriation for the Pigford 
settlement ought to be offset.
  There is an advocate for the Black farmers--John Boyd. I have been 
working with him for a long period. He was working hard on this a long 
time before I was. We should be getting this resolved for the benefit 
of the farmers but also for the advocates, those people who have been 
working so hard finding ways to get it done. We thought now was the 
opportunity to get it done.
  The farm bill we passed last year does one thing right: it focuses a 
considerable amount of resources on new and beginning farmers and 
ranchers. Many of the Pigford claimants were in that same boat 20 years 
ago. We have an opportunity to rectify that misjustice. We know USDA 
has admitted the discrimination occurred. Now we are obligated to do 
our best getting relief to those who deserve it. It is time to make 
these claimants right and move forward into a new era of civil rights 
in the Department of Agriculture.
  I look forward to the time we can get this done. I plead with my 
colleagues, as the Senator from Arkansas pleaded, to get this done 
right now.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Ms. LANDRIEU. Madam President, I add my voice in support of coming to 
closure on this important issue. I thank Senator Dorgan and Senator 
Lincoln for their extraordinary leadership for the Pigford and Cobell 
claimants. We are very close to settling a grave injustice that has 
gone on in two communities, one the Native-American community and the 
other the African-American community. I surely hope we can find a way 
forward in the next few hours, before we leave, to get this done; if 
not, that it would be one of the first orders of business when we 
return.
  Explanations have been made beautifully on both sides. I represent 
1,000 African-American farmers. I am going to fight for them and 
advocate for them and continue to bring their cases before this body 
until we get justice.
  People in Louisiana generally, of many different races, understand 
systematic injustice. Talking about oil moneys not coming the way they 
should, there are many people in Louisiana right now shaking their 
heads in great sympathy with the stories the Senator from North Dakota 
shared with us about Native Americans.
  I support the Pigford settlement. I support the Cobell settlement. I 
hope we can find the $5 billion, approximately, so that it does not 
affect the deficit, paid for in a responsible way to end this 
discrimination and to provide some hope and support to these families.
  I was proud to send Clarence Hawkins' name to run the USDA in 
Louisiana, the first African-American administrator to do so, former 
mayor of Bastrop. The President appointed him at my suggestion. We are 
making some headway in Louisiana to rectify past injustices.
  Again, I thank Senators Dorgan and Lincoln for their leadership.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. DORGAN. Madam President, Senator Barrasso and I, as chairman and 
vice chairmen of the Indian Affairs Committee, have been working on 
this issue for a long while. Senator Kyl, Senator Baucus--we have had 
discussions. Senator Kyl had to leave the floor, but I believe he will 
return. He very much wants to find a way to resolve these issues, as do 
I and others.
  This is not complicated. This is a case where the Federal Government 
said to American Indians in the late 1800s: We are going to break up 
these tribal lands and give you personal ownership of these lands. And 
then we will manage the lands for you and take care of it for you in 
trust, and the income that comes off those lands will be yours. We will 
manage your trust accounts.
  The fact is, they took control of the lands and created trust 
accounts. And the Indians got bilked, looted. Grand theft occurred.
  Let me show one more photograph. This fellow is still alive. His name 
is James Kennerly. He is a Blackfeet Indian, standing in front of his 
rather humble home. He is hoping that Congress will resolve this by 
approving the settlement. His father was a World War I veteran, 
wounded, disabled in combat. The family lives on land that has 
considerable oil and gas leases. Thousands of barrels a week were 
pumped off that land. Years later, the oil wells still continue to 
pump, but all the lease documents have disappeared. This family lives 
in a humble home despite having had oil interests on their property.
  Another person waiting for justice, Johnson Martinez, a Navajo Indian 
in his seventies, lives in a rundown trailer house near Bloomfield, NM. 
He has no running water and no electricity. At night, he builds a fire 
to keep himself and his dogs warm. He lives yards away from where the 
gas pipelines cross his family's land. He lives off the right-of-way 
fees for the gas pipeline. One month, he got a check for $80. Sometimes 
he gets a check for a few cents. A court-appointed investigator found 
that non-Indians were receiving 20 times more than Navajo Indians such 
as Johnson Martinez were receiving in the same circumstances.
  And then there is Esther and Sam Valdez--Navajo Indians--they live 
100 feet from natural gas wells. They have been producing natural gas 
for a long

[[Page 15213]]

while. Yet this family has trouble putting food on the table. They 
receive checks for $6 and $8. Sometimes the checks come, sometimes they 
don't. The Federal Government can never explain to them what happens to 
the money. This is grand theft.
  For more than a century, American Indians were cheated. Yes, there is 
some incompetence here. That is the comfortable word. But there is also 
looting and theft involved in having these folks cheated.
  The lawsuit was filed 15 years ago. Ten years ago, the Federal court 
said the Federal Government is completely without merit and violated 
its trust. The court found in favor of the plaintiffs, saying that they 
have been bilked. That was 10 years ago. But, the case continued in 
Federal court with more and more money spent on lawyers.
  Finally, at long last, Interior Secretary Salazar and Attorney 
General Holder, and the plaintiffs in this case negotiated an 
agreement, and the Federal judge in the case said: This looks like 
justice to me. This settlement was sent to the Congress for approval 
and to provide the funding for this agreement.
  I came to the floor to offer a unanimous consent request to see if at 
long last we might put the Cobell litigation behind us and do the fair 
thing. I understand a unanimous consent request would be objected to at 
this moment because of what is called the ``pay-for.'' So we have a 
disagreement about that. But I also understand from discussions we have 
held that there is the possibility and the potential that this 
afternoon we might find a way to reach agreement on the ``pay-for'' 
portion of this and have the Senate finally approve the Cobell 
settlement, and also the Pigford settlement so that we can move beyond 
on this.
  In the situation that led to the Cobell case, there are people who 
should hang their head in shame, many of them now departed, who have 
bilked the Indians out of so much money over so many years.
  I would finally say this about the Cobell matter and the American 
Indians involved. This is a chart that shows the 10 poorest counties in 
America, the 10 counties with the most significant poverty in our 
country. Madam President, 8 of the 10 counties have Indian reservations 
in them--8 of them. We know that. We know what is going on.
  Then I talk about these people, American Indians, who live in humble 
homes with no money, with six oil wells on their land. Somebody is 
getting the money, but the Indians are not. Who is cheating them? Who 
cheated them a decade ago, five decades ago, ten decades ago? Will we 
ever settle our account here? Will this country ever deal responsibly 
with what I call a shame?
  Well, my colleague, Senator Barrasso, and I have worked on this a 
long while. He has had some concern about certain aspects of the 
settlement, but I do not think there is a disagreement between us at 
all about the need to move forward to resolve this issue. My hope is we 
can do that very soon.
  As I said, I was intending to seek a unanimous consent request, but I 
think I will stop short of that at this moment because there is the 
potential, perhaps later this afternoon, for us to reach agreement on 
the ``pay-for'' and a couple of other elements and get a unanimous 
consent request agreed to, which would be a very significant 
achievement in this body today.
  I know Senator Barrasso from Wyoming wishes to seek recognition. Let 
me yield the floor so that might happen.
  The PRESIDING OFFICER (Mr. Burris). The Senator from Wyoming is 
recognized.
  Mr. BARRASSO. Mr. President, I appreciate the hard work done by my 
colleague from North Dakota and his commitment as chairman of the 
Indian Affairs Committee to try to come to a solution in the Cobell 
settlement.
  He is absolutely right. We still need to work on some policy issues, 
as well as some issues in terms of how this will be paid for. He and I 
both agree we need to settle the Cobell lawsuit. There has been much 
rhetoric. We both agree we need to settle the Cobell lawsuit.
  At the President's insistence, and the House and the Senate 
majorities, they have repeatedly tried to get this bill enacted outside 
the regular process. This settlement has been inserted into various 
bills over the past several months that have absolutely nothing to do 
with American Indian issues. You ask yourself why. Well, perhaps folks 
wanted to avoid some scrutiny--scrutiny by Congress, by the press, and, 
most of all, by those who have been most affected, the stakeholders.
  Two weeks ago, I came to the floor and offered an amendment to 
legislation that addressed some of the more egregious problems with the 
settlement. I am talking policy as well as pay-for issues. The majority 
leader dismissed my amendment, and he called it the ``beat up the 
lawyers'' amendment. Well, he called it that because one of the 
provisions in the amendment establishes a $50 million cap on 
presettlement attorneys' fees--$50 million. The settlement says it 
should be between $50 million and $100 million. My amendment said, 
let's keep it at that lower figure. Only in Washington, DC, would 
anyone ever call a $50 million cap on attorneys' fees--$50 million of 
attorneys' fees--as beating up the lawyers.
  Well, because attorneys' fees were capped at $50 million, the 
majority leader objected to both the Cobell and the Pigford 
settlements.
  There was and still is a good reason for that cap. Every Member of 
this body should read a couple of op-eds on this Cobell settlement. One 
was in the August 1 edition of The Hill, the other in today's August 
5th edition. The August 1 article: ``Cobell settlement worth doing 
right, together.'' The one from today: ``Unconscionable Cobell.''
  Mr. President, I ask unanimous consent that both these articles be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             [From the Hill's Congress Blog, Aug. 2, 2010]

             Cobell Settlement Worth Doing Right, Together

                          (By Kimberly Craven)

       Today, the Senate will be asked to approve by unanimous 
     consent settlement of the proposed Cobell lawsuit (Cobell v. 
     Salazar). Senators are not being advised that the proposed 
     settlement is constitutionally dubious and greatly expands 
     the original litigation. It authorizes a mandatory class of 
     plaintiff with no regard to the due-process rights of 
     individuals to opt. It creates a new class to settle land and 
     natural resource mismanagement claims which were never part 
     of the original litigation and not been part of the 14-year-
     long Cobell lawsuit which, we have been told, sought only an 
     accounting of individual Indian money (IIM) accounts.
       If Congress approves it, the settlement will consist of two 
     classes: those of the historical accounting class and the new 
     ``un-litigated'' class--the trust mismanagement class. The 
     first class will receive $1,0oo and any traditional safe-
     guard of opting-out will be denied this class. The new second 
     class will receive $500 and a formula based on the top 10 
     sums that have filtered through a person's IIM account.
       Creation of the new class has been disturbing to many 
     tribes and American Indians. The government will be 
     authorized to pay more than $3.4 billion without even filing 
     an Answer to the new Complaint of land mismanagement claims. 
     What it means is that if you're a Native person whose land 
     has been flooded or damaged, timber destroyed, mineral 
     royalties underpaid, soil poisoned, grass lands over-grazed 
     by your lessee or if you've just been the victim of trespass, 
     your claims will be settled for $500 and a formula amount 
     that bears no resemblance to actual damages or loss.
       Many American Indians think this entire settlement, 
     although cloaked in righteous language, has been cobbled 
     together for the primary purpose of permitting the 
     Administration to fulfill a campaign promise. This settlement 
     will permit the attorneys to claim as much as $100 million in 
     attorney fees with a side agreement they are not even 
     required to document the time spent on the case for the first 
     fourteen years. Personally, I find it disturbing that one of 
     the plaintiff attorneys served on the Obama campaign, 
     transition team, and posted pictures of himself on Facebook 
     partying at the White House holiday party around the time the 
     settlement was reached, and now is rumored to be up for 10th 
     Circuit Court of Appeals nomination. The lead plaintiff has 
     been very upfront that some Indians will get hundreds of 
     thousands of dollars and is on record as saying, ``Some 
     people will be very, very rich.'' I think we know who some of 
     those people might be. The litigation was filed in a Court of 
     Equity where only an accounting (an equitable action) could 
     be ordered and money

[[Page 15214]]

     damages could not be awarded. The seven attorneys will share 
     in $100 million and the lead plaintiff will also be entitled 
     to up to $15 million in ``reimbursements'' for ``repayable 
     grants,'' surely an oxymoron even in Washington-speak, plus 
     an undisclosed amount in ``incentive fees for the four lead 
     plaintiffs.''
       As I wrote this opinion piece, I researched elements of an 
     unfair class action lawsuit and found this information at 
     www.classactionlitigation.com/faq. Elements include ``any 
     settlement where the release being demanded as a condition of 
     the settlement is extremely overbroad and encompasses claims 
     that were neither pursued in the class complaint nor subject 
     to true adversarial litigation prior to the settlement and 
     virtual nonexistence of discovery by the class counsel who 
     proposes a settlement.'' This surely meets those thresholds 
     with no discovery, judicial record, or due process for the 
     proposed second class.
       Both the Affiliated Tribes of Northwest Indians and the 
     Great Plains Tribal Chairmen's Association are on record as 
     wanting changes to the settlement. Sen. John Barrasso (R-
     Wyo.) has recommended many of these changes to address the 
     fairness, restoration, due process, and other infirmities in 
     the settlement proposed today and many Indian people 
     appreciate his efforts in his leadership role as Vice 
     Chairman of the Senate Indian Affairs Committee. Having 
     worked for a Republican Senator, Sen. Daniel J. Evans (R-
     Wash.), who also served in this capacity, I know firsthand 
     that Indian issues are not partisan in nature. If this is 
     worth doing to the tune of $3.4 billion, then it's worth 
     doing right together.
                                  ____


           [From the The Hill's Congress Blog, Aug. 5, 2010]

                         Unconscionable Cobell

                        (By Richard A. Monette)

       A few facts about the Cobell settlement to be voted on in 
     Senate today:
       Number of published court opinions in the case: 80-plus;
       Amount awarded to plaintiffs by courts at present: $0;
       Amount to attorneys under settlement: $100 Million (through 
     Dec. 7, 2009);
       Amount to each account holder under settlement: $1,000.00;
       Number of accounts with less than $15: 107,806;
       Total amount of money in accounts with less than $15 (small 
     accounts): $15,210.51;
       Average balance in 107,806 small accounts: $7.09;
       Total to be paid under settlement to small accounts: 
     $107,806,000.
       The Senate is asked today to give approval, sight-unseen 
     and by unanimous consent, to a $3.4 billion ``settlement'' of 
     a 14-year-old lawsuit brought by five individuals on behalf 
     of all American Indians who have money or land held in trust 
     by the United States. $2 billion of this amount will be 
     earmarked to pre-fund an existing Bureau of Indian Affairs 
     program for 10 years. The amount awarded by the courts to 
     date after more than 10 trials is exactly zero dollars and 
     zero cents. If approved by the Congress, and subsequently by 
     the courts, the remainder of this money will be parceled out 
     by formula in the form of reparations without regard to any 
     individual's actual losses or damages.
       The only individuals who will be permitted to present 
     actual clams are the attorneys and the five named individual 
     plaintiffs. The five named plaintiffs are authorized up to 
     $15 million as ``reimbursements'' for ``repayable grants,'' 
     plus an undisclosed amount as ``incentive fee awards.'' The 
     lawyers will be authorized to claim up to $100 million off 
     the top, plus their ``normal hourly rates'' for as long as it 
     takes to settle up with some 300,000 individuals, more than 
     83,000 of whose whereabouts are unknown. Much smaller mass 
     settlement awards have taken more than 10 years to close out.
       More than 100,000 of these individuals have account 
     balances of less than $15. Each of them will receive a check 
     for $1,000, or an amount more than 6,600 percent of their 
     current balance. Those individuals with more than $1 million 
     in their accounts will receive $1,000 also, or less than one-
     tenth of 1 percent of their current balances. There is 
     neither rhyme nor reason to this scheme.
       The $2 billion, pre-funded BIA program completely usurps 
     the authority of the Appropriations Committees for 10 years. 
     This settlement also confers jurisdiction on a federal 
     district court that does not presently have it; rewrites the 
     Federal Rules of Civil Procedure for this case to authorize 
     the court to exercise the conferred jurisdiction; and 
     presents the court not with a case or controversy as required 
     by Article III of the Constitution, but with a pre-packaged 
     financial program simply to administer. The sponsor of this 
     measure in the Senate stated that no other committee (i.e., 
     Judiciary) needs to review this measure before it is 
     presented for a vote.
       Proponents claim this settlement will ``turn the page'' on 
     a dark chapter. Some who are familiar with the litigating 
     history beyond this case of the lead counsel and lead 
     plaintiff think this settlement is more likely only to fuel a 
     war chest for subsequent, similarly entrepreneurial and 
     extortionate litigation. No senator should think this 
     settlement approximates ``justice'' that has somehow escaped 
     the attention of the federal judges who have actually 
     presided over the 14-year history of this case.

  Mr. BARRASSO. So there are issues of policy dealing with 
transparency, dealing with the production of records by the attorneys 
who are involved in this. When you read one of these editorials, the 
one in today's Hill, ``Unconscionable Cobell,'' written by a law 
professor at the University of Wisconsin-Madison:

       Number of published court opinions in the case: 80-plus
       Amount awarded to plaintiffs by courts at present: $0
       Amount to attorneys under settlement: $100 Million. . . .
       Amount to each account holder under [this] settlement:

  We are talking now about those who have been affected by this--

     $1,000.00

  What an incredible disparity.
  Well, if we were all to take the time to look through these two 
editorials, the changes to the settlement I have been proposing would 
not only seem reasonable, they would be absolutely necessary. They 
point out several real problems with the settlement, including the way 
the attorneys' fees are handled. I am continuing to work with my 
colleagues on dealing with that. These are the blunt facts.
  So I agree with my colleague from North Dakota, the problems with the 
Cobell settlement are by no means insurmountable. They can and they 
must be resolved. In fact, I do not think it would be difficult to 
resolve the differences we have regarding the Cobell settlement. We can 
sit down, and we plan to do that, to discuss the issues directly. I 
think we can get beyond this impasse, and that is what I am committed 
to do.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Dakota is recognized.
  Mr. DORGAN. Mr. President, as I indicated, I intend to withhold the 
unanimous consent request because it would clearly be objected to. 
There are some people who disagree with the method by which this 
settlement would be paid for.
  But I also wish to mention that I have some hope that later today, 
finally at long last, we may be able to come to the floor of the Senate 
with an agreement that would be able to withstand the unanimous consent 
request. If we do that before we break, we would have resolved a very 
longstanding issue, not just 15 years of litigation, or a century of 
mismanagement, but also since last December, when this agreement was 
reached and the Congress was given time to approve it, but then that 
deadline had to be extended six times. At long last, perhaps we will be 
able to decide we can do this together.
  I very much appreciate the work Senator Barrasso is doing and Senator 
Kyl and Senator Baucus and others. My hope is that later this afternoon 
I will be able to come to the floor with such a unanimous consent 
request.
  Mr. CARDIN. Mr. President, I rise today to talk about the Pigford II 
settlement pending full action by the U.S. Senate.
  We all know that farming is a difficult occupation. The hours are 
long, the weather is unpredictable, and the challenge of competing in a 
global marketplace is intense. Tens of thousands of Black farmers have 
had to face all those normal challenges. Tragically, they have also had 
to deal with a challenge that was unique to them based solely on race. 
The U.S. Department of Agriculture, USDA, was discriminating against 
them.
  More than 12 years ago, Black farmers across America brought a class 
action suit against the USDA for racial discrimination. The history of 
that discrimination is a sad one, and it is well documented. Farmers, 
like all businesses, need access to loans. They need to borrow money 
for expensive equipment and they need funding to help them when 
droughts strike or when markets collapse. The Congress has recognized 
this need for decades, and we have established special loan programs in 
the USDA to support these special needs. But when it came to lending, 
tens of thousands of Black farmers were the victims of systemic

[[Page 15215]]

discrimination. During the 1980s and 1990s, the average processing time 
for a loan application by White farmers was 30 days; the average time 
for a loan application by Black farmers was 387 days. Black farmers had 
to wait 12 times as long to receive a loan. This discrimination earned 
the USDA the regrettable nickname ``the Last Plantation.''
  Black farmers finally sought justice through a class action lawsuit 
in 1997. More than 20,000 farmers initiated claims citing racial 
discrimination in the USDA farm loan programs. Two years after the 
action was initiated, the U.S. District Court for the District of 
Columbia entered a consent decree approving a class action settlement 
to compensate these farmers for years of racial discrimination by the 
USDA. Each farmer who could prove discrimination was entitled to 
damages. Out of the initial 20,000 farmers, 15,000 were meritorious in 
the claims they brought.
  As the legal process continued, additional farmers began to join the 
class action and filed their own claims. Approximately 80,000 farmers 
eventually brought claims. Unfortunately, many of these farmers did not 
know about the class action suit, and by the time they learned of its 
existence, the filing deadline had passed.
  In 2008, Congress recognizing the injustice of stopping 80 percent or 
more of the farmers who potentially suffered discrimination by our 
government--decided to take action and created a new cause of action 
for farmers previously denied access to justice. In the 2008 farm bill, 
with bipartisan support, Congress included $100 million for payments 
and debt relief as a downpayment to satisfy the claims filed by 
deserving claimants denied participation in the original settlement 
because of timeliness issues.
  After years of litigation and negotiation between the Department of 
Justice, which represented the USDA, and lawyers for the farmers, a 
settlement was finally reached in February 2010. The Pigford II 
settlement agreement will provide $1.25 billion, which is contingent on 
appropriation by Congress, to African-American farmers who can show 
they suffered racial discrimination in USDA farm loan programs. Once 
the money is appropriated farmers can pursue their individual claims 
through the same nonjudicial process used in the first case.
  To address this funding need, President Obama included $1.15 billion 
in additional funding for his fiscal year 2010 and fiscal year 2011 
budgets. Both Chambers of Congress have worked to pass appropriations 
to fulfill the settlement agreement since February. The House of 
Representatives has passed funding language for the Pigford case twice; 
once as part of the war supplemental and the other on a tax extenders 
bill. But the Senate has not been able to do the same. Despite the 
majority leader's efforts in finding ways to pay for the legislation 
and move the legislation for full Senate consideration, we have been 
unable to proceed to a rollcall vote. This bill has come before the 
Senate a half dozen times. There are no known objections to the 
settlement, yet we have failed to pass the funding therefore denying 
the process for funding to these farmers who were discriminated against 
by our own government.
  We must move to appropriate these funds. The settlement that was 
reached is only valid until August 18, 2010. Failure to appropriate the 
money by then could cause the agreement to be voided. William Gladstone 
once said that ``justice delayed is justice denied.'' Let us not be in 
the business of delaying and denying justice for African-American 
farmers. Let us be in the business of allowing the justice system to 
work and provide them with adequate redress. I urge my colleagues to 
support this funding.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized.
  Mr. DODD. Mr. President, I think my friends and colleagues on the 
other side have blocked out some time. If they would not mind, I would 
be very grateful if I could take 5 or 6 minutes to make some comments 
about the Kagan nomination. I see heads nodding affirmatively, so I 
appreciate it.

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