As the Founding Fathers penned the US Constitution, democracy, freedom, and individual liberties were at the forefront of their minds. The Constitution, in the words of its Preamble, aimed to “secure the Blessings of Liberty to ourselves and our Posterity.” And yet, when the Constitution was written, Black Americans were legally classified as property with no protected physical or political freedoms under the law—the very opposite of liberty.

The US enslavement regime recognized only a single group worthy of legal personhood: white men who owned property. All others would need to advocate for themselves to secure any legal rights. Due to this default presumption, Black Americans were not granted any semblance of human citizenship under the law until the passage of the 14th Amendment in 1868.

It is well known that after the US Civil War ended, the promise of “40 acres and a mule” was not honored. What is less known is that during Reconstruction many Black Americans managed to purchase land anyway, scrounging their hard-earned dollars to escape sharecropping, improve their living conditions, provide for their families, and create thriving communities. By 1910, roughly 218,000 Black farmers had acquired 15 million acres of land.

While today this fact is largely unknown by many, at the time, these land acquisitions did not go unnoticed. In response to their post-enslavement land accumulation, whites implemented a variety of legal and illegal practices to effectively intimidate and drive Black Americans from their land. Among the worst of these racial terror tactics was the extrajudicial murder of Black men, women, and children known as lynching. Entire communities of White men, women and children would gather to celebrate the torture, burning, and hanging of Black bodies. From 1865 to 1950, almost 6,500 Blacks were lynched in America.

The lynching numbers are appalling, but only show the tip of the iceberg of the use of violence to push Black Americans off the land they had stretched to buy after the Civil War. For example, in Forsyth County, Georgia, in two months of 1912, more than 1,000 Black residents were forced off their land. A similar story can be told in Gwynn’s Island, Virginia—a community near Norfolk that got relabeled by the white press a “white man’s paradise,” after all the Black landowning families were compelled by violence and threats of violence to leave.

While lynch mobs were arguably the most extreme, a multitude of legal or quasi-legal means were more consistently used to dispossess Blacks of their land including, but not limited to, race-based discrimination in access to credit, unscrupulous deed filings, eminent domain, and disproportionate property tax levies used to force tax foreclosure sales.  Dr. Shirley Sherrod notes that one tactic that her farm, New Communities of Albany, Georgia, faced in the 1970s was being sold bad fertilizer. “We would have problems with liquid fertilizer—they didn’t deliver what we purchased.  [USDA] extension was so racist. They could have helped us prove what happened, but they wouldn’t lift a finger. This forced us to pull a sample from every truck to have it analyzed.”

Perhaps one of the most common mechanisms of dispossession is through white developer manipulation of heirs’ property rules. Heirs’ property results when a property owner dies without leaving a will, a common occurrence among Black farmers who justifiably didn’t trust formal legal processes like probate courts. But heirs’ property can make for unclear title. As NPQ’s Rick Cohen once wrote, “Anyone who could establish themselves as one of the many potential heirs to properties could petition the courts for a forced sale. This tool was often used by developers to get prime real estate out of the control of property owners, frequently for much less than the property’s actual worth—in other words, a money grab by one family member, induced by real estate developers, to the detriment to other family members, even those who didn’t know they might have had some measure of ownership rights.”

The net effect of this unrelenting institutionalized racism is that by 1992 there were only 18,000 Black farmers remaining, owning just 2.3 million acres, which represents a dramatic decline in both Black farmers and Black-owned land over less than 100 years. Since farming is passed down economically and culturally from one generation to the next, Black farmers today find themselves largely as heirs to this tragic legacy.


Congressional Remedies—A Mile Wide and an Inch Deep

In 1990, Congress recognized the longstanding and well-documented history of race-based discrimination against farmers and ranchers of color. In the 1990 Farm Bill, Asian, Black, Latinx, Pacific Islander, and Native American farmers were classified as “socially disadvantaged farmers and ranchers.” Under that same Farm Bill, the 2501 Program was created to improve outreach and technical assistance to help these socially disadvantaged farmers and ranchers access US Department of Agriculture (USDA) programs and services. The services provided are useful, but the program has been routinely underfunded. It also fails to provide any direct benefits to socially disadvantaged farmers and ranchers for the race-based discrimination they have experienced.

In 1994, Congress commissioned a study regarding access to credit for farmers and ranchers of color. The report revealed that “97 percent of disaster payments went to white farmers, while less than one percent went to black farmers.” A few years later, in 1997, a group of Black farmers filed a class action race-based discrimination lawsuit against the USDA, which resulted in the largest federal civil rights settlement in history. According to the Office of the Pigford Monitor, 22,721 individuals filed compensable claims of race-based discrimination by the USDA against Black farmers.

Echoing back to the 1997 Congressional Research Service Report, last year, as the COVID-19 pandemic ravaged the country, only one percent of the COVID-19 disaster relief for farmers went to Black farmers. In short, disturbingly little has changed since the Pigford settlement.

Earlier this year, Senator Cory Booker (D-NJ) introduced the Justice for Black Farmers bill (SB 300), which specifically outlined legislative remedies for the long-standing history of exclusion and discrimination Black farmers have faced and continue to experience to this day. Similarly, Senator Raphael Warnock (D-GA) introduced the Emergency Relief for Farmers of Color bill, which designated Federal funds for Socially Disadvantaged Farmers and Ranchers to compensate for numerous instances of disparate treatment by the USDA.

Both bills influenced the American Rescue Plan Act (ARPA) of 2021 which was signed into law in March 2021. In Section 1005 of the ARPA on Emergency Debt Relief for Farmers and Ranchers of Color, Congress allocated debt relief for 17,000 eligible farmers of color, including 3,100 Black farmers, to repair the unchecked legacy of disparate treatment and outcomes farmers of color have faced.

Almost immediately after ARPA was passed, on April 29, 2021, lawyers representing white farmers have filed over 10 lawsuits against Secretary Tom Vilsack of the USDA alleging race-based discrimination in the implementation of Section 1005 for restricting the emergency debt relief exclusively to farmers and ranchers of color. One of these suits resulted in class certification for white farmers who are ineligible for the Section 1005 debt relief. These lawsuits have, at least for now, halted the intended debt relief. Tragically, even at a time of heightened economic peril due to a global pandemic which has disproportionately burdened communities of color both financially and in terms of mortality, meaningful relief has been put off once more.

To be sure, some legislative provisions may still advance. For instance, Section 1006 of the same ARPA legislation specifies $1 billion for technical assistance. Nonetheless, the pattern persists of remedies that fail to address the depth of the dispossession. Once again, the federal government offers solutions that may be a mile wide but extend only an inch deep.


What Would Justice for Black Farmers Look Like?

Against this historical backdrop, imagining a pro-Black farmer policy regime feels simultaneously unreasonably optimistic, yet impossible to avoid. We must dare to ask the question of what justice demands for Black farmers.

Five themes should guide a pro-Black farmer policy regime.

First, advocacy is required to maximize the benefits for Black farmers in legislation, both bills that are pending and bills that have passed into law, but where implementation is stalled. Despite the challenges, this means continuing to advocate for the full implementation of Sections 1005 and 1006 of ARPA. Likewise, the existing State Agricultural Mediation Program should be funded to expand covered cases to include civil rights issues. This would give Black farmers access to no-cost certified mediation with local USDA agents whenever the farmer perceived they had some unfavorable or adverse experience based on their race.

Second, debt relief and credit access have played significant roles in the challenges Black farmers face. Overly collateralized loans and discriminatory limited access to credit have, in many cases, undermined Black farmers’ economic success. In addition to winning the court battle over Section 1005, this requires ensuring equitable access to credit and an improved civil rights oversight system on agricultural lenders—including the USDA—at the local level. Until the racial bias in agricultural lending is eliminated, individual agents and lenders must face consequences if they have demonstrable racial disparities in their loan approval rates or related matters—such as demanding greater collateral from Black borrowers of delaying the distribution of loan funds to Black farmers.

Beyond civil rights enforcement, Black farmers need to have a cooperatively owned Black farmer financial institution that they control. Cooperative ownership would empower Black farmers to democratically govern their own finances through an institution that will generate and distribute significant dividends to the Black community. Existing cooperatives, credit unions, and community development financial institutions could provide models and technical assistance for the Black Farmer Financial Institution to replicate for their unique credit needs.

A third policy priority is an increased emphasis on cooperative development. With the average Black farmer operating on small plots of less than 100 acres, it is imperative that Black farmers have every available opportunity to work together to protect and promote their farming operations. To support these efforts, we need to develop uniform cooperative authorizing legislation that decreases the burdens Black farmers face when the try to form cooperative businesses—especially in the South. Another policy opportunity within cooperative development support is to include Regional Cooperative Development Center Eligibility under the existing Rural Cooperative Development Grant Program (RCDG) while promoting increased funding to the RCDG program and creating a 10-percent set aside for Black-owned cooperatives.

A fourth priority is to dedicate infrastructure investments to support Black farmers. Due in large part to their smaller average size, infrastructure remains a barrier to economic sustainability for many Black farmers. Institutionalizing and funding a regional marketing system with shared facilities and equipment for processing, aggregation, storage, and distribution for Black farmer cooperatives would increase productivity and enable Black farmers to achieve market success.

A fifth and final priority for a Black farmer policy regime is based on the worsening climate crisis. While Black farmers, due to smaller farm size, generally impact the climate less than white-owned farms, we must ensure Black farmers are supported in agroforestry, climate, and environmental legislation. Black farmers need accessible, reliable scientific and economic data to make informed decisions about sustainable practices including carbon markets and climate-smart agriculture investments on their farms. One possible approach given the significant amount of timberland Black farmers own is allocating funding for a Regional Agroforestry Center focused on Black farmers’ ability to achieve value from sound cooperative timber management practices.

A pro-Black farmer policy regime is a fundamental piece of achieving systemic racial equity in agriculture. All communities, farmers, and farms—especially all small farms—will benefit from this targeted approach that supports the nation’s most vulnerable farming population. It will not be easy, but our generation, if it organizes and demands justice for Black famers and Black farming, has the chance to achieve, finally, transformative racial equity throughout the nation’s agricultural system.