Clinic Students Reflect on “Land Loss, Wealth, and Reparations”

This blog post was written by students Emma Pollack, MPH ’19, and Fred Chung, J.D. ’20.

In the last 100 years, over one million black farmers in the South have been dispossessed of their land. That is a loss of 90% of black land, at least $250-350 billion of wealth and income (10% of current black wealth). The numbers are stark, but they only paint part of the picture. They do not explain why this land was lost; they do not describe the rampant racism within governmental systems; they do not offer a path forward. As students in Harvard Law School’s Food Law and Policy Clinic (FLPC) last semester, we worked on issues related to black land loss, an often ignored topic that is recently grabbing the media’s attention. In October, we attended the FLPC panel on Land Loss, Wealth and Reparations for Black farmers in America, where Dania Francis, Darrick Hamilton, Bryce Stucki and Thomas Mitchell dug into the details on why and how this land theft occurred and what’s next for justice. Here is what we learned.

The evening’s panel opened with an overview of the history and magnitude of black land loss. According to Bryce Stucki, co-author of the New Food Economy’s recent article, black farmers quickly acquired land after the Civil War, primarily in the South. By 1880, 20% were landowners just a decade and a half on from emancipation, and 25% by 1900. By 1910, they held 17 million acres of farmland. However, black farmers with land holdings were increased targets of discrimination—politically and through physical violence—in an already oppressive environment. Studies have shown that landed black property owners were more likely to experience lynchings. Dozens of documented cases show a resulting exodus from counties and towns, after which whites would take over their property. In addition to racism and violence, there are two main reasons for this great land theft.

Reason 1: Industrialization and Discriminatory USDA Practices

The shift in agricultural production after the New Deal towards consolidation and mechanization spelled a formula for decline. Farming turned into a corporate business that relied on government support, but blacks were excluded from loans and other support by USDA county committees controlled by whites. After Freedom Summer in 1964, attempts to get black farmers on these committees failed. For decades, black farmers continued to be denied loans, receive reduced loans or have loan payments delayed to the detriment of their operations. Black farmers continued to lose their land now through financial and legal coercion.

Reason 2: Division through Intestate Inheritance

Another reason for this massive land loss is heirs’ property ownership structures. When a person passes away without a will, their property is divided among all known descendants of the land. As time passes, the property continues to be split among an ever widening pool of heirs.

First, this extreme splintering of the land makes it hard to exercise ownership over the land and use it in all legal ways possible. That includes, for example, developing it, using it as an asset for loans, or subdividing it. For most of these actions, there needs to be 100% agreement among all of the heirs. This becomes incredibly difficult as the land ownership continues to fraction over generations.

Second, heirs’ property is more vulnerable to partition sales; at least one report has suggested that half of black land lost from 1969 to 2001 was due to partition sales. Such partition sales often occur when a developer, or non-hereditary owner, purchases one relative’s share of the land. Once they purchase this land, the non-hereditary owner is able to petition the court and force a partition sale, in which the land may be sold  often at extremely low rates.

Third, without a will or going through probate, descendants inherit the land without clear title. Generally, the USDA requires clear title to land for participation in various programs including loans, commodity support, disaster relief, and crop insurance. While the 2018 Farm Bill makes it easier for heirs to obtain clear titles and access to programs, the historical lack of access has already caused irreparable, or near irreparable, land loss. And, we have yet to see the 2018 Farm Bill policy be implemented.

As Professor Thomas Mitchell noted, black farmers are less likely to have access to estate planning, often due to the same reasons that deter them from availing themselves of other legal resources such as mistrust and a disproportionately small number of attorneys of color. Accordingly, black landowners have felt the burdens of challenges posed by heirs property more acutely than their white counterparts.

A Way Forward?

Professor Mitchell proposed several ideas for preventing the loss of land that heirs’ property owners experience. Beginning in 2010, the Uniform Law Commission introduced the Uniform Partition of Heirs Property Act, headed by Mitchell, to enhance property rights of families, particularly in partition actions, improve access to USDA programs and to increase land ownership. Building off of his original act, Mitchell presented the Uniform Partition of Heirs’ Property Act 2.0, which would change the consent cut-off for decision making from unanimous agreement to a super majority. However, heirs property is just a part of the problem. Any discussion of a just way forward must include a more serious conversation about reparations. The second half of the October 16th panel was devoted to just that.

Criteria for Reparations

First, who should be eligible? Are reparations only accounting for slavery? What about the racist discrimination associated with Jim Crow, the New Deal, and today? Next, how much? Every study of reparations results in a different monetary estimate, from $500 billion to $6 trillion (or between $12.5 thousand per person to $150 thousand per person). Most use the promised 40 acres and a mule as a starting point for calculating the final price tag. After quantifying the cost of reparations, the next question is how will they be financed? Lastly, what form should reparations take? Options include cash payments, investment in social programs, trust funds, an official apology, institutional reform and public education about slavery and racism.

Professor Dania Francis stressed that reparations should not only focus on the history of violent discrimination, but must also address the ongoing discrimination that is found at all levels of government today. Furthermore, without vehicles to invest money back into the community, cash payments will ultimately end up in the hands of incumbent business owners. There needs to be an infrastructural investment to ensure that cash payments produce multiplying effects within black communities.

Professor Darrick Hamilton reiterated the structural and systemic change that must occur simultaneously with reparations in order to reverse the racist state-implemented practices and policies, as well as the modern economic systems built on power, capital, and inequality. He called for an honest discourse on poverty that begins with the acknowledgment of state-sanctioned terror and an Economic Bill of Rights that addresses the racial wealth gap. In addition to material redress, economic value must be reframed to include humanity, morality and sustainability.

Contributing to the Cause

Recognizing the need for more targeted policies that can overcome the inertia of discrimination, leaders in the black farming community have been setting forth concrete proposals for policy change for years to address these issues. Adding to the shock of learning how widespread and for how long these events unfolded, and continue to unfold, we were surprised to see how long such voices have been ignored. It feels as though mainstream society has dismissed civil rights as a thing of the distant past, when, in actuality, the Pigford II settlement payments, providing partial relief at best, were only disbursed after 2010. Despite the brouhaha of certain media outlets about squandering taxpayer money on fraudulent claims, the roughly $2 billion settlement (between Pigford I and II) is hardly a drop in the bucket compared to the real magnitude of the issue.

Our work in the Food Law and Policy Clinic has provided us with the opportunity to review and refine proposals to address some of these ongoing discriminatory policies. There is a difficult line to be drawn between achieving absolute justice for past grievances and balancing that with other considerations such as equity between different disadvantaged groups and timelines. The discontent over the settlements for Native American, Hispanic, and Women farmers that followed Pigford show just how difficult it is. The biggest challenge, as we review the policy options, is crafting proposals that are realistically achievable but still effective and equitable.

We find hope in the fact that these cries are not falling on totally deaf ears. Among the 2020 democratic presidential candidates, Sanders, Warren, Castro, Klobuchar and Bullock have all recognized the importance of this issue. Yet their proposed remedies leave room for improvement. Our Fall semester began with reading an open letter from black farmers to Senator Warren, critiquing her proposed farm plan and stressing the need for more comprehensive policies aimed specifically at black farmers. Our semester concluded as Senator Warren released a revised plan, building off many of the themes highlighted in the letter. As the media continues to report on the injustices black farmers face, we hope action and comprehensive policy will follow.

Watch the full recording of Land Loss, Wealth and Reparations for Black farmers in America here.

The views reflected in this blog are those of the individual authors and do not necessarily represent those of the Center for Health Law & Policy Innovation or Harvard Law School. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.