Volume 8, Number 2                                         November 26, 2004

The Farmer

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Constitutional Committee Hears Complaints on the Black Farmersí Lawsuit

by Dr. Ridgely Abdul Muímin Muhammad

On November 18, 2004 the House Committee on the Judiciary Subcommittee on the Constitution received testimony concerning Pigford v. Glickman. This hearing focused on the adequacy of the Notice Provision in the Pigford v. Glickman Consent Decree.

The Chairman of the subcommittee, Representative Steve Chabot, started out by stating that as the committee examined certain aspects of the Consent Decree, "...it has become increasingly apparent that certain Due Process protections, fundamental to the Constitution, are lacking in this case."

Rep. Chabot goes on to point out that recent statistics released on the Consent Decree suggest that the "fundamental right to notice" was not safeguarded in its construction and administration. Although the notice campaign design was deemed to be "effective" by the court, reports indicate that approximately 66,000 potential class members submitted their claim late, losing their right to sue the USDA for past wrongs.

Written testimonies from a number of individuals and Black farm organizations were received by the committee and oral testimony was given by others. Mrs. Bernice Atchison led a delegation from Chilton County Alabama where no farmer had heard how to get into the Consent Decree until past the deadline. She pointed out that there was no notice posted at the USDA or extension office or in their local newspaper. No announcements were made on the local radio stations nor given to local Black churches.

Mrs. Atchinson pointed out the failure of the USDA to post the original decree, deadlines and extensions was in direct violation of Judge Friedmanís order that the agency do so. Mr. Gary R. Grant, President of BFAA, in an interview after the proceedings pointed out that it was naive or unrealistic to expect the USDA to comply with such demands, when it was the source of past discrimination and no provisions were made to enforce compliance by threats of disciplinary action against offending employees.

During the question and answer period, Rep. Bacchus from Alabama got Ms. Jeanne C. Finegan, representing Poorman- Douglas Corporation which was responsible for getting out the notice to the famers, to admit that they received only $385,000 and 180 days to reach potential class participants. Rep. Bacchus pointed out that he has a budget of $1 million for outreach just for his congressional district which was still inadequate, therefore it seemed that the intent to fulfill the letter of the Consent Decree was not manifested by the placement of sufficient resources or time.

The bottom line to this hearing was the recognition that many of the late applicants were deprived of their constitutional right of "due process" and that a legislative remedy should be produced to address such shortcomings. The suggestion was put forth that all of the 66,000 late claimants should be admitted to the class and their cases properly adjudicated under the guidelines and procedures of the Consent Decree as written.

Of course admitting more members into the class will not help the 39% of the present class members who were denied, nor will it address basic problems of the Consent Decree that were presented at the Fairness Hearing in March of 1999. The problems were not addressed in the final document signed by Judge Friedman and have proven to operate against the Black farmers in the exact manner that they prophesied.

Although only four witnesses were allowed to give oral testimony at the hearing on November 18th, a number of other written testimonies were submitted which point out some of the shortcomings of the Consent Decree. For instance Mr. Obei L. Beal, a farmer and a class member, pointed out that it appears "...the managers committed unlawful acts" while being trusted by Congress to rightly: 1. Construct, 2. Get Approved, 3. Enforce, the Consent Decree. Mr. Beal pointed out that by using the word "Claimant" instead of "Farmer" to file claims allowed "any person" to file a claim in the law suit which resulted in approximately 90,000 claims to filed while USDA records would show that there were only about 15,000 Black farmers. This watering down of the Black farmersí claims mixed in with the many non-farmers allowed the government to pay "claimants" while ignoring many legitimate Black farmers and thereby denying them justice while hiding the fact.

BFAA president, Mr. Gary R. Grant, presented the committee with a list of problems on behalf of BFAA and its members with the enactment of the Consent Degree:

1. Black farmer who are labeled as owing the USDA money are disproportionately more likely to have their claims of discrimination denied by the arbitrator or adjudicator, and this practice appears to be a concerted effort to prevent the "actual or real farmers" from remaining in agriculture.

2. The Black farmers who have not received debt relief, are again besieged by their properties being at risk to foreclosure by the USDA.

3. Black farmersí claims have been denied based on the loophole of finding a "similarly situated white farmer", a stipulation unanimously objected to by the farmers and their representatives at the March 4, 1999 "Fairness Hearing".

4. We object to the unusual requirement in the Pigford Consent Decree that as a part of a class action lawsuit, Black farmers must re-prove discrimination on an individual basis. This requirement is most unjustifiable considering that it was not required in the case of Japanese Americans and the victims of the Jewish Holocaust.

5. We are disappointed that even the Black farmers who did prevail in the Pigford case have not been given preferential treatment in the USDA loans programs since 1999 as stipulated by the Consent Decree.

6. We feel that the final major tactic of the USDAís lawyers and this consent decree is to use tax payer money to prolong the struggle for justice for Black farmers until the farmers die off, especially since statistics show that in 1997 over 25% of Black farmers were over 70 years of age.

Attorney Stephon Bowens pointed out after the hearing that other fundamental constitutional issues concerning this Consent Decree must be brought forward at subsequent hearings. One such hearing is scheduled for late January of 2005 to be held in Cincinnati, Ohio. All Black farmers are encouraged to attend those hearings and express their grievances with hope for some type of relief developed by the new Congress.