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Excerpted From: Jordan C. Patterson, Ending a War Waged by Deed of Title: How to Achieve Distributive Justice for Black Farmers, 82 Ohio State Law Journal 301 (2021) (Note) (203 Footnotes) (Full Document)


JordanCPattersonA war waged by deed of title has dispossessed land from 98% of Black farmers in the United States--about 12 million acres in the last century. By many different means--mostly legal--Black farmers lost their homes and livelihoods. Willena Scott-White's family fell victim to these tragic takings. Willena's grandfather, Ed Scott Jr., sharecropped, rented, and managed farms for white farmers until he was able to buy his first 100 acres. By the time the elder Scott passed away in 1957 he had amassed more than 1,000 acres of farmland. Scott's farmland was foreclosed on due to lack of aid in the 1980s.

“When they steal your land, they steal your future,” Atlanta resident Stephanie Hagans uttered while researching how her great-grandmother, Ablow Weddington Stewart, lost her thirty-five acres in North Carolina. Hagans' great-grandmother lost her land after a white lawyer refused to accept payment for her debt of $540 and instead foreclosed on her home. In 1964, another example of this type of land loss occurred when the state of Alabama sued Lemon Williams and Lawrence Hudson--two cousins--contending that their family had no right to two forty-acre farms in Alabama. The family had worked the land for nearly a century, but state officials contended, and Circuit Judge Emmett F. Hildreth ultimately determined, that the land belonged to the state. The judge declared that removing the family, who owned the land since 1874, would be “a severe injustice,” but allowed the state to take the land anyway. Internal memos and letters showed that the family being Black was integral to the case.

These stories, and many others like them, share a common result: Black farmers losing their land. There has been some compensation for this mass land loss. The Pigford v. Glickman settlements, which this Note will discuss, initially allowed for settlement of about 23,000 discrimination claims against the U.S. Department of Agriculture (USDA) for its role in the loss of farmland. The settlements allowed Black farmers to receive compensation, via cash awards and debt relief, for racial discrimination by the Department. Fortunately, some families, like the family of Willena Scott-White, were able to receive compensation through this settlement. However, this compensation was inadequate and unrepresentative of the massive amounts of damage imposed. The class certified in Pigford only allowed for claims of discrimination from 1981-1996, ignoring most of the damage inflicted upon Black farmers, like the relatives of Hagans, Williams, and Hudson, who lost their land prior to 1981.

This Note examines the history surrounding the Pigford v. Glickman litigation and concludes that Congress should enact a Distributive Justice Fund based on the structure of the September 11th Victim Compensation Fund (VCF). Part II briefly discusses the history of Black farmland ownership--from Reconstruction to the present day--and the harm inflicted by the mass dispossession of Black-owned farmland. Part III describes the broad racial discrimination by the USDA and the settlement agreements in Pigford and Black Farmers litigation (collectively going forward, Black Farmers cases). Part IV argues that the VCF should be used as a model to set up a Distributive Justice Fund for Black farmers and their descendants. Without intervention by the federal government Black farmers and their descendants will continue to suffer from gross injustice. Part V then explains how and why the VCF model should be altered to address the needs of and provide equitable relief to Black farmers. Lastly, Part VI briefly concludes by advocating for a Distributive Justice Fund to help provide relief for the Black farmers and their descendants.

[. . .]

The areas where Black farming was dominant have been struck with historic losses of wealth and the tragedy. While the Black farmers cases provided historic settlements, the relief was not sufficient economically to address the needs of the people affected, or sufficient morally to meet the high bar of justice. The VCF provides a model in its purpose and mechanisms that, with some tinkering, can help provide aid to victims of tragedy like Black farmers. The USDA has inflicted damage on Black farmers that cannot be undone; however, relief can and should be provided.

Congress should pass legislation that enacts a Distributive Justice Fund for Black farmers and their descendants. Like the VCF before it, this Fund would show the world that our nation can come together and display compassion by “speaking with one voice and demonstrating the best of the American character.” This Distributive Justice Fund would allow for individuals like Stephanie Hagans, Lemon Williams, and Lawrence Hudson to get need-based compensation for the tragedy inflicted upon their families. The dispossession of Black farmland has created communities that are the most vulnerable and impoverished in the United States. Congress should establish a Distributive Justice Fund to show the world that American compassion extends to those who have been wronged by society--intentionally or unintentionally-- because people are worthy and deserve it. Hagans wondered “[h]ow different would our lives be ... if we'd had the opportunities, the pride, that land brings?” Congress has the power to show her, and all people like her, how different their lives should be.

J.D. Candidate, 2021, The Ohio State University Moritz College of Law; Articles Editor, 2020-2021, Ohio State Law Journal.

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