Journal of Food Law & Policy Volume 4 Number 1 Article 5 2008 Disestablishing "The Last Plantation": The Need for Accountability in the United States Department of Agriculture Seth L. Ellis Northern Illinois University Follow this and additional works at: https://scholarworks.uark.edu/jflp Part of the Agriculture Law Commons, Civil Rights and Discrimination Commons, Food and Drug Law Commons, Land Use Law Commons, and the Law and Race Commons Recommended Citation Ellis, S. L. (2021). Disestablishing "The Last Plantation": The Need for Accountability in the United States Department of Agriculture. Journal of Food Law & Policy, 4(1). Retrieved from https://scholarworks.uark.edu/jflp/vol4/iss1/5 This Article is brought to you for free and open access by ScholarWorks@UARK. It has been accepted for inclusion in Journal of Food Law & Policy by an authorized editor of ScholarWorks@UARK. For more information, please contact [email protected]. DISESTABLISHING "THE LAST PLANTATION": THE NEED FOR ACCOUNTABILITY IN THE UNITED STATES DEPARTMENT OF AGRICULTURE Seth L. Ellis* [S]even years ago, I personally faced some discriminatory acts by the United States Department of Agriculture. As I sat in my farm house by candlelight during the dead of winter, it became very clear to me. My lights had been turned off. Federal officers were knocking at my door threatening to confiscate my equipment. Foreclosure signs were being posted on my property. Stress had destroyed my family. There was no money. All of this at no fault of my own.1 I. INTRO DUCTION ........................................................................ 94 II. HISTORY OF THE TREATMENT OF AFRICAN-AMERICAN FARMERS IN THE UNITED STATES ........................................ 97 A. The Post Civil War and Reconstruction Era ..................... 97 B. The N ew Deal Era ............................................................. 100 C. The M odem Era ................................................................ 102 III. THE STRUCTURE OF THE USDA LOAN PROGRAM ................ 103 IV. DISCRIMINATION BY THE USDA AGAINST AFRICAN AMERICAN FARMERS .............................................................. 106 A. Government Issued Reports ................................................ 106 B. Personal Storiesfrom Virginia and North Carolina............ 111 V. THE RISE OF PIGFORD V. GLICKMAN ...................................... 114 VI. FAILURE OF THE PIGFORDCONSENT DECREE TO RECTIFY USDA DISCRIMINATION ........................................................ 117 * Seth L. Ellis received his J.D. from Northern Illinois University College of Law in 2008. He would like to thank Professor Guadalupe T. Luna for her thoughts and guidance in the writing process. He would also like to thank his par- ents and Kelli for all of their support in the last three years. 1. USDA Civil Rights: Hearing Before the Comm. on Agriculture, Nutrition, and Forestry, United States Senate, 106th Cong. 34-35 (2000) (statement of John Boyd, African-American farmer from Baskerville, Va. & Pres. of the Nat'l Black Farmers Ass'n) [hereinafter USDA Civil Rights Hearing]. JOURNAL OF FOOD LAW & POLICY [VOL. 4:93 VII. LACK OF USDA ACCOUNTABILITY IN THE AFTERMATH OF THE CONSENT DECREE ..........................................................120 VIII. CONCLUSION: DISESTABLISHING THE LAST PLANTATION ...124 I. INTRODUCTION The United States Department of Agriculture (USDA) was signed into law by President Abraham Lincoln in 1862. At the sign- ing ceremony, President Lincoln declared the Department of Agri- culture to be the "people's Department" because he said it governed an industry "in which [citizens felt] more directly concerned than in any other. ..." Today, many American citizens do not share Abraham Lincoln's view of the USDA as being the "people's Department"; rather, they identify it as being "the last plantation" due to its long history of open discrimination against African-American farmers.! While this discrimination has occurred throughout America's history, perhaps most disturbing are the more recent events. Within the last two dec- ades, discrimination against African-Americans through the Depart- 2. Rasmussen, Abraham Lincoln and Agriculture, http://www.nal.usda.gov/ speccoll/exhibits/lincoln/index.html (last visited June 1, 2008). See also 7 U.S.C. § 2201 (2006) (declaring, "[t]here shall be at the seat of government a Department of Agriculture, the general design and duties of which shall be to acquire and to diffuse among the people of the United States useful information on subjects connected with agriculture, rural development, aquaculture, and human nutrition. ..."). 3. Rasmussen, supra note 2. President Lincoln, who lived on multiple farms during his youth, knew the importance of agriculture in the United States. On September 30, 1859, Lincoln gave a speech before the Wisconsin State Agricultural Society. In his speech, Lincoln emphasized the great influence of farmers on American society. He stated, "[b]ut farmers being the most numerous class, it fol- lows that their interest is the largest interest. It also follows that interest is most worthy of all to be cherished and cultivated-that if there be inevitable conflict be- tween that interest and any other, that other should yield." President Abraham Lincoln, Address Before the Wisconsin State Agricultural Society (September 30, 1859), available at http://www.nal.usda.gov/speccoll/exhibits/lincoln/lincoln- wisconsin.htrnl. 4. UNITED STATES DEP'T OF AGRIC. (USDA), CIVIL RIGHTS ACTION TEAM, CIVIL RIGHTS AT THE UNITED STATES DEPARTMENT OF AGRICULTURE: A REPORT BY THE CIVIL RIGHTS ACTION TEAM 2 (1997) [hereinafter CRAT REPORT]. Besides African- Americans, the USDA has also allegedly discriminated against Hispanic farmers, American Indian farmers, elderly farmers, and female farmers. See Carmel Sileo, USDA Faces Series of DiscriminationLawsuits, 40 TRIAL 17 (2004). Further, the USDA has settled multiple lawsuits for discriminating against its own employees. In 2001, for instance, the USDA settled a class action lawsuit of 5,000 female employees who alleged sex discrimination by USDA officials. Id. In 2003, the USDA settled a class action lawsuit brought by 2,100 Asian and Pacific Islander employees. Id. 20081 DISESTABLISHING "THE LAST PLANTATION" ment of Agriculture's lending programs has been documented, in- cluding its failure to investigate thousands of filed complaints of dis- crimination and general non-compliance with the United States Con- stitution and other federal laws prohibiting discrimination on the basis of race.' These unjust actions have contributed to the dramatic decline in farmland owned by African-Americans; indeed, African- Americans experienced a greater loss in farm operations than any other racial group in the twentieth century.' In 1997, African-American farmers united and filed a class ac- tion lawsuit, Pigford v. Glickman, against the USDA.7 The farmers alleged "(1) that the [USDA] willfully discriminated against them when they applied for various farm programs, and (2) that when they filed complaints of discrimination with the USDA, the USDA failed properly to investigate those complaints."8 Eventually, the 5. CRAT REPORT, supra note 4, at 21-25. See also 15 U.S.C. § 1691(a)(1) (2000) (prohibiting the USDA, as a creditor, from discriminating against applicants "on the basis of race, color, religion, [or] national origin... ."); 42 U.S.C. § 2000d (2000) (declaring that "[n]o person... shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assis- tance"); 7 C.F.R. § 15.1 (2005) (proclaiming that "no person in the United States shall, on the ground of race, color, or national origin be... subjected to discrimi- nation under any program or activity of an applicant or recipient receiving Federal financial assistance from the Department of Agriculture or any Agency thereof."). 6. U.S. COMM'N ON CIVIL RIGHTS, THE DECLINE OF BLACK FARMING IN AMERICA 11 (1982) [hereinafter THE DECLINE OF BLACK FARMING IN AMERICA]. 7. Pigford v. Glickman, 182 F.R.D. 341 (D.D.C. 1998). By 2004, three more class action lawsuits alleging past discrimination by the USDA were filed by farmers of different demographic groups. See Love v. Veneman, 224 F.R.D. 240, 241-42 (D.D.C. 2004) (alleging that women farmers "were refused USDA farm loans, loan servicing and loan continuation, and even refused farm loan application forms, because they were women"); Garcia v. Veneman, 211 F.R.D. 15, 17 (D.D.C. 2002) (alleging that the USDA "discriminated against Hispanic farmers and ranchers in making operating loans, farm ownership loans, and emergency loans, and in award- ing disaster benefits"); and Keepseagle v. Veneman, No. 99-03119, 2001 WL 34676944, *1 (D.D.C. Dec. 12, 2001) (alleging that "(1) [the] USDA discriminated against [838 Native American farmers] on the basis of race in processing their farm program applications; and (2) [the] USDA did not investigate complaints of dis- crimination"). 8. Pigford, 182 F.R.D. at 343. Throughout the USDA's long history, numerous government divisions have been placed in charge of administering the USDA's lending program. Some of these divisions include the Farmers Home Administra- tion (FmHA) and the Farm Service Agency (FSA). To avoid confusion, "USDA" will be used in this article to represent all of the past branches of the USDA which have controlled its loan