Documents and Links
Updated October 16, 2022
Recent Legal Developments:
While many had hoped that settling the discrimination cases brought against the USDA would bring resolution to the decades of problems, it did not. As noted in the text, only about 33,000 Black farmers recovered under either Pigford or the subsequent In re Black Farmers cases (often referred to as Pigford II) and many who did recover believed that the amount they received was inadequate compensation given the extent of their losses.
Farm program assistance continues to favor farms that are largest and most successful, with a high percentage of these operations owned by white farmers. This was also the case with the large COVID relief and Market Assistance support funding provided to agricultural operations. Rising land prices, COVID disruptions, trade disruptions and economic factors all impacted low-income farmers significantly, placing an additional strain on many farmers of color. Some have debt obligations through the USDA loan programs and are desperately trying to make ends meet.
During the Trump administration, no actions were taken to address these issues, and there was both an increase in racial tensions and a push-back against efforts to address discrimination. For example, during the Trump administration, diversity training was banned at federal agencies and for federal contractors. See, e.g., Trump Expands Ban on Racial Sensitivity Training to Federal Contractors , NPR (Sept. 22, 2020).
When President Biden was elected, he and the Democrats in Congress once again sought to address the issue of diversity and discrimination as part of their agenda.
On March 11, 2021, President Biden signed into law the $1.9 trillion American Rescue Plan Act (ARPA), which included the Emergency Relief for Farmers of Color Act. The Act included $4 billion in direct relief payments to help socially disadvantaged farmers pay off outstanding USDA farm loan debts and related taxes (§ 1005). It also included $1.01 billion to support activities at USDA that would root out systemic racism, provide technical and legal assistance to agricultural communities of color, and fund under-resourced programs that would shape the future for farmers and communities of color (§ 1006).
The Act uses the definition of “socially disadvantaged farmer or rancher” set forth in § 2501(a) of the Food, Agriculture, Conservation, and Trade Act of 1990 (7 U.S.C. 2279(a)). This defines the term as meaning a member of a group that has been subjected to racial or ethnic prejudice because of their identity as members of the group without regard to individual qualities.
The Emergency Relief for Farmers of Color Act was just a part of the significant efforts included in the ARPA that were designed to restore the economy and assist those who were struggling as a result of the pandemic. The main agricultural provisions of the ARPA are summarized in this USDA Fact Sheet: USDA Provisions in H.R. 1317, the American Rescue Plan.
The Washington Post described the debt relief bill with an article headlined as, Relief Bill is Most Significant Legislation for Black farmers Since Civil Rights Act.
While the text of § 1005 is short and appears to set forth a simple goal, implementation involved many complexities. Nevertheless, in May 2021, the USDA Farm Service Agency (FSA) published a Notice of Funds Availability in the Federal Register that began the implementation process for direct loan borrowers who are actively farming and who still have farm collateral. The notice indicates that guaranteed loan borrowers and direct loan borrowers who have lost their collateral and are no longer farmers would be addressed in a subsequent notice. Skim this notice to get a feel for how this program was design to work.
However, the USDA soon found itself embroiled in litigation. Five lawsuits were filed by white farmers, challenging the “race-based qualification” standards that frame the relief. In one case in Florida, a preliminary injunction was issued, enjoining the implementation of the debt relief program. See, Judge Blocks $4 Billion U.S. Debt Relief Program for Minority Farmers, NY Times (June 23, 2021).
Fearing a defeat in the Fifth Circuit that would not only apply to this case but also threaten many of the other federal efforts to assist minorities, the USDA continued to defend the program but did not appeal the preliminary injunction order from the district court. Concern about the new conservative majority in the Supreme Court and its past rulings regarding discrimination prompted many supporters of the relief program in Congress to consider other approaches. With the program enjoined, farmers who had been promised relief were frustrated.
The Inflation Reduction Act (IRA) that was signed into law in August 2022. This Act repealed § 1005 of the ARPA and replaced it with the following:
In addition to amounts otherwise available, there is appropriated to the Secretary for fiscal year 2022, out of amounts in the Treasury not otherwise appropriated, $3,100,000,000, to remain available until September 30, 2031, to provide payments to, for the cost of loans or loan modifications for, or to carry out section 331(b)(4) of the Consolidated Farm and Rural Development Act (7 U.S.C. 1981(b)(4)) with respect to distressed borrowers of direct or guaranteed loans administered by the Farm Service Agency under subtitle A, B, or C of that Act (7 U.S.C. 1922 through 1970). In carrying out this section, the Secretary shall provide relief to those borrowers whose agricultural operations are at financial risk as expeditiously as possible, as determined by the Secretary.
The IRA also called for the formation of Equity Commissions to address racial equity issues with the USDA and its programs.
Debt Relief for Black Farmers Shows Challenges Of Pursuing Racial Equity With Policy, National Public Radio (Aug. 31, 2022).
This approach, however, has already drawn additional litigation. Read the following Reuters report by Leah Douglas:
In the most recent development, on October 13, the USDA announced that it was seeking public comment on how it should implement the new discrimination provisions -
Perspectives on Land Loss & the Attendant Loss of Wealth
The Great Land Robbery, The Atlantic (Sept. 2019) (by Vann R. Newkirk II)
Video broadcast interview with Vann Newkirk, How Southern Black Farmers Were Forced From Their Land, and Their Heritage, PBS Newshour (Aug. 13, 2019)
Video broadcast interview with Vann Newkirk, How Black Farmers Were Forced From Their Land, CBS News (Aug. 14, 2019)
Their Family Bought Land One Generation After Slavery: The Reels Brothers Spent Eight Years in Jail for Refusing to Leave It, ProPublica and The New Yorker (July 19, 2019) (by Lizzie Presser)
Without in any way diminishing the story of black land loss and the attendant loss of generational wealth, it is important to also note the 1.5 billion acres taken from indigenous peoples in America.
The gif posted above provides a graphic representation showing the decline of Indian homelands from 1776 to 1887. Blue indicates lands held by Indian tribes; red indicates reservation land. This is the work of University of Georgia historian, Claudio Saunt to supplement his book, West of the Revolution: An Uncommon History of 1776. The graphic was created with the assistance of State magazine's Rebecca Onion as is available on the Vox website, The Theft of Native American's Land, in One Animated Map (June 19, 2014).
General Updates to Food, Farming, & Sustainability readings:
In re Black Farmers Discrimination Case
Order Approving Settlement (containing summary of issues)
Other Related Documents (link)
Keepseagle v. Vilsack
Notice re: Cy Pres Funds (Proposed Settlement & Request for Comments)
Final Resolution of Issue of Cy Pres Funds provides additional money to class members but establishes long term plan to provide positive impact in Indian Country: Keepseagle Checks Finally Coming to Indian Farmers and Ranchers;
From the official class website:
On March 26, 2018 the U.S. Supreme Court denied the request by two objectors for review of the Court of Appeals for the District of Columbia Circuit ruling affirming the district court’s decision approving the plan for distribution of the $380 million remaining in the settlement fund. Pursuant to the original Settlement Agreement, those funds could only be given to non-profit organizations which provide services to current Native American farmers. However, the District Court approved a modification under which the funds would be divided with approximately $76 million used to provide a supplemental payment to prevailing claimants, $38 million being directed immediately to non-profit organizations serving Native American farmers and ranchers, and $266 million being used to fund a Trust. With the Supreme Court’s
decision, that ruling is now final. That ruling is described in detail here. The distribution of the $38 million is described in greater detail here here. The supplemental payments of $18,500 to each prevailing claimant, along with $2,775 to the IRS on behalf of each claimant were mailed on May 21, 2018.
See also, New Native American Farm Fund to Distribute $266 Million in Landmark Civil Rights Settlement, Wash. Post (Aug. 13, 2018).
The Native American Agriculture Fund (NAAF) was established in late 2018 and will provide grants to eligible entities for business assistance, agricultural education, technical support, and advocacy services to support Native farmers and ranchers over the next twenty years. For more information, visit the NAAF website.
Hispanic & Women Farmers & Ranchers Discrimination Case
of Hispanic and Women Farmers (Jan. 25, 2012)
USDA Office of Inspector General, Hispanic and Women Farmers and Ranchers Claim Resolution Process, Audit Report 50601-0002-21 (Mar. 2016).
Update taken from the website - www.mysettlementclaims.com:
On April 12, 2016, the USDA filed a status report with the Court.
The report noted that as of April 11, 2016, the Judgment Fund has paid cash awards and tax relief on a total of 3,077 claims.
A total of 130 claims require the claimant to submit additional documentation, such as proof of legal representative status for claims involving a deceased or incapacitated claimant.
The deadline for these 130 claimants to submit the additional information has been extended to July 29, 2016. The USDA further notes that “once such documentation is received for any such claim prior to the deadline, the Administrator will submit that claim to the U.S. Department of Treasury (“Treasury”) for review and payment. The Administrator will not accept any submissions after the deadline, and will not submit any such claims to Treasury.”
The Status Report also attached the Office of Inspector General Audit Report on the female and Hispanic farmer Administrative Claims Process.
General Legal Resources
U.S. Code (statutes)
Agricultural Law Resources
Information on Civil Rights
The Indigenous Food & Agriculture Initiative enhances health and wellness in tribal communities by advancing healthy food systems, diversified economic development and cultural food traditions. It works to empower tribal governments, farmers, ranchers and food businesses by providing strategic planning & technical assistance; creating new educational programs in food systems & agriculture; and increasing student enrollment in food & agricultural related disciplines.
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2010 - present