READ THE FULL TRUST AGREEMENT
NAAF strongly encourages applicants and interested partners to read the Trust Agreement here which sets specific requirements for our operations and grants.
If you prefer a hard copy of the Trust Agreement, please contact media@NativeAmericanAgricultureFund.org and NAAF will mail one to your preferred address.
Native American Agriculture Fund Trust Agreement
Section 1. Name of Trust
Section 2. Transfer of Property
Settlor hereby irrevocably transfers to Trustees the property listed in Schedule A attached hereto
and made a part hereof (all of which is hereinafter called “principal”), and Trustees agree to hold
the principal in trust in accordance with the following terms and provisions.
Section 3. No Additional Contributions
The Trust is to be funded by the Cy Pres Fund established in the settlement of Keepseagle v.Vilsack, No. 1:99CV03119 (D.D.C.). The Trust shall not accept contributions of additional property from any other source.
Section 4. Irrevocability
Section 5. Intention Regarding Tax Qualification, Legal Compliance, and Amendments to Prevent Frustration of Purpose
(a) It is intended that the Trust be exempt from U.S. federal income tax as an organization described in Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the “Code”). Accordingly, the provisions of this Agreement of Trust shall be construed and the Trust shall be administered in such manner as to ensure its exemption from U.S. federal income tax. Trustees shall have the power to amend the provisions of this Agreement of Trust, effective ab initio, without application to any court, for the sole purpose of accomplishing such intent.
(b) It is intended that the Trust maintain compliance with all applicable laws. Accordingly, the provisions of this Agreement of Trust shall be construed and the Trust shall be administered in such manner as to ensure its compliance with all applicable laws. Trustees shall have the power to amend the provisions of this Agreement of Trust, effective ab initio, without application to any court, for the sole purpose of accomplishing such intent.
(c) It is intended that the Trust operate efficiently and effectively to accomplish its Mission as described in Section 7. Accordingly, the provisions of this Agreement of Trust shall be construed and the Trust shall be administered in such manner as to ensure that the Trust’s purposes are not frustrated. Trustees shall have the power to amend the provisions of Section 13 of this Agreement of Trust, effective ab initio, without application to any court, for the sole purpose of accomplishing such intent.
Section 6. Tax-Exempt Purposes
The Trust is organized, and shall be administered, distributed, and operated exclusively for charitable and educational purposes within the meaning of Section 501(c)(3) of the Code.
Section 7. Mission
The Trust’s Mission shall be to make grants to Eligible Grant Recipients, described in Section 8, to fund the provision of business assistance, agricultural education, technical support, and advocacy services to Native American farmers and ranchers to support and promote their continued engagement in agriculture.
Section 8. Eligible Grant Recipients and Grant Requirements
(a) Eligible Grant Recipients shall be limited to:
(1) Tax-exempt organizations described in Section 501(c)(3) of the Code;
(2) Educational organizations described in Section 170(b)(1)(A)(ii) of the
(3) Community Development Financial Institutions (“CDFIs”), including Certified Native CDFIs and Emerging Native CDFIs, provided, however, that such CDFI is a tax-exempt organization described in Section 501(c)(3) of the Code;
(4) the instrumentality of a state or federally recognized tribe, including a non-profit organization chartered under the tribal law of a state or federally recognized tribe, that furnishes assistance designed to further Native American farming or ranching activities, provided, however, that
(i) The use of any grant funds by such grant recipient shall be restricted exclusively to charitable and educational purposes described in Section 170(c)(2)(B) of the Code to accomplish the Trust’s Mission;
(ii) The grant recipient shall annually provide the Trust with audited financial statements and reports as required by the Trust; and
(iii) If the grant recipient is a governmental entity, it shall agree to a limited waiver of sovereign immunity with respect to the Trust’s right to enforce the terms of the grant.
(iv) Where required, the Trust shall comply with Expenditure Responsibility described in subsection (b)(3) below.
(b) Grant Requirements.
(1) Grant recipients shall demonstrate to the satisfaction of the Trustees that the grant recipient:
(i) Will use grant funds to accomplish the Trust’s Mission and Tax-Exempt Purposes;
(ii) Will return any grant funds not used for such purposes to the Trust;
(iii) Will not use grant funds to provide more than an incidental private benefit to any individual, provided, however, that this limitation is not intended to and shall not be construed to prohibit grantees described in Section 8(a)(3) above from making loans to individual farmers and ranchers for purposes consistent with the Trust’s Mission;
(iv) Has sufficient organizational capacity to accomplish the purposes of the grant; and
(v) Will make efficient use of grant funds without paying administrative overhead expenses in excess of reasonable amounts to accomplish the purposes of the grant, taking into account the amount of administrative expenses that a like organization would ordinarily pay for like expenses in like circumstances. The Trustees will consider best practices for grant making private foundations in determining what are reasonable administrative overhead expenses.
(2) Grant Reporting and Recordkeeping.
(i) Grantees shall submit full and complete annual reports to the Trust on the manner in which the funds are spent and the progress made in accomplishing the purposes of the grant.
(ii) Grantees shall keep records of receipts and expenditures with respect to the use of grant funds and shall make grantee’s books and records available to the Trust at reasonable times.
(3) Expenditure Responsibility. The Trust shall comply with the expenditure responsibility requirements of Section 4945(h) of the Code for all grants to organizations described in Section 4945(d)(4)(A) of the Code.
(c) Grants to Fiscal Sponsors. The Trust may make grants to Eligible Grant Recipients, defined in Section 8, acting as fiscal sponsors (“Fiscal Sponsors”) for organizations that would be Eligible Grant Recipients but for the fact that such organizations have requested but have not yet received a favorable determination letter from the Internal Revenue Service recognizing such organization’s tax-exempt status. The Trust shall exercise expenditure responsibility within the meaning of Section 4945(h) of the Code when making grants to Fiscal Sponsors.
Section 9. Limitations
(a) Private inurement. No part of the net earnings of the Trust shall inure to the benefit of any private person.
(b) Lobbying. No part of the activities of the Trust shall consist of carrying on propaganda, or otherwise attempting, to influence legislation. Without limiting the foregoing, and for the avoidance of doubt, the Trust may educate the public on agricultural issues, the needs of Native American farmers and ranchers, and other matters related to the Trust’s Mission, including by advocating for a particular position or viewpoint, so long as it presents a sufficiently full and fair exposition of the pertinent facts as to permit an individual or the public to form an independent opinion or conclusion.
(c) Political Activity. The Trust shall not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.
(d) Grants to Individuals. The Trust shall not make grants to individuals; however, the Trust may make grants to Eligible Grant Recipients that make grants to individuals, provided that the Trust not earmark the use of the grant for any named individual and there does not exist an agreement, oral or written, whereby the Trust may cause the selection of the individual grantee by the grantee organization.
(e) Litigation. The Trust shall not make grants for the purpose of supporting litigation.
(f) Self-Dealing. The Trust shall not engage in any act of self-dealing with any disqualified person as such terms are defined in Section 4941(d) and 4946(a)(1) of the Code.
(g) Undistributed Income. The Trust shall expend or distribute the net income and/or principal of the Trust for each taxable year at such time and in such manner as not to subject it to the tax on undistributed income imposed by Section 4942 of the Code.
(h) Excess Business Holdings. The Trust shall not retain any excess business holdings as defined in Section 4943(c) of the Code.
(i) Jeopardizing Investments. The Trust shall not make any investments that would subject the Trust to tax under Section 4944 of the Code.
(j) Taxable Expenditures. The Trust shall not make any taxable expenditures as defined in Section 4945(d) of the Code.
Section 10. Term
Section 11. Dissolution
Upon termination or dissolution of the Trust, any assets of the Trust remaining after payment of expenses and satisfaction of all liabilities shall be distributed by Trustees (or, if there be none, by a court of competent jurisdiction) to one or more organizations described in Section 8 of this Agreement of Trust, provided that each such organization is described in section 170(b)(1)(A) (other than a private foundation described in section 170(b)(1)(A)(vii) or a supporting organization or other organization described in section 170(b)(1)(A)(viii)) and has been so described for a continuous period of at least 60 calendar months immediately preceding such distribution, as shall be determined by the Trustees (or, if there be none, by such court).
Section 12. General Powers
Subject to the provisions of Section 9, Trustees shall have the following powers, in addition to any authority otherwise given, to be exercised in the discretion of Trustees and on such terms as Trustees may deem best, without need for court approval and effective until final distribution of all assets:
(a) To retain any property transferred to the Trust and to invest and reinvest, with reasonable prudence, bearing in mind the intent of the Settlor, that the funds are to be maintained and reasonably available for distribution to Eligible Grant Recipients over the course of the Trust’s term; in order to accomplish such intent, Trustees may invest and reinvest, without being limited to statutorily “authorized investments”, in any form of property; such property includes, by way of illustration and not of limitation: common stocks; common trust funds maintained by or securities issued by any corporate fiduciary hereunder or securities issued by any corporation controlling or otherwise affiliated with such corporate fiduciary; investment trusts; mutual funds; money market accounts; bank deposit certificates; United States Treasury bills; and short term Treasury notes;
(b) To sell, exchange or lease for the duration of the Trust’s term any property, real or personal; to enter into agreements of limited partnership;
(c) To subscribe for stocks, bonds or other investments; to join in any plan of lease, mortgage, merger, consolidation, reorganization, foreclosure or voting trust and deposit securities thereunder; to exercise options to purchase stock and other property; and generally to exercise all the rights of security holders of any corporation;
(d) To register securities in street name or in the name of a nominee or in such manner that title shall pass by delivery and to vote, in person or by proxy, securities held hereunder and in such connection to delegate discretionary powers;
(e) To retain reasonable amounts of cash uninvested, in the commercial or trust department of any bank or trust company, including any corporate fiduciary hereunder, for such periods of time as are deemed reasonable for the efficient administration of the Trust;
(f) To make all reasonable compromises;
(h) Compensation and Expenses.
(1) Individual Trustees shall be entitled to compensation for their services as Trustees provided that such compensation is reasonable and necessary to carrying out the Mission and Tax-Exempt Purposes of the Trust within the meaning of Section 4941(d)(2)(E) of the Code. Individual Trustees shall be entitled to receive base compensation of $10,000, exclusive of expenses, per year, adjusted annually based on the average Consumer Price Index published by the United States Department of Labor. Trustee compensation above $10,000 per year is allowed, provided that such compensation is reasonable based on the amount that a like organization would ordinarily pay for like services in like circumstances, the Trustees may adjust such amounts for each Trustee as appropriate, considering the extent of their duties. Compensation may be paid from income or principal of the Trust, or partially from each.
(2) Trustees shall be entitled to payment or reimbursement of their reasonable travel and other expenses incurred in connection with their services as Trustees.
(1) All powers granted to Trustees under this and other Sections of this Agreement of Trust are exercisable only in a fiduciary capacity. No such power shall be construed to enable any person to purchase, exchange or otherwise deal with or dispose of any trust asset for less than adequate consideration, nor shall any such power be construed to permit Trustees to take any action which would cause the Trust to fail or cease to qualify as an organization described under Section 501(c)(3) of the Code.
(2) The Trustees shall not have the power to (i) cause the Trust to convert or merge, reorganize or consolidate with or into one or more trusts, partnerships, limited liability companies, associations, corporations or other entities: (ii) cause the Trust to incorporate under the laws of a state, commonwealth, possession or colony of the United States or the laws of any Indian tribal government; or (iii) sell or convey all or substantially all of the assets of the Trust to another trust, partnership, limited liability company, association, corporation or other entity; provided, however, that the Trustees may make distributions in termination or dissolution of the Trust as set forth in Section 11.