Joaqlin Estus
Indian Country Today

A federal judge has temporarily halted a $4 billion program that would have forgiven federal loans to some 15,000 socially disadvantaged farmers and ranchers, more than half of them Native American.

“The (rescue plan) program that’s probably the most impactful for Indian Country" is a $4 billion socially disadvantaged farmers fund, said Heather Dawn Thompson, Cheyenne River Sioux. She is director of the Office of Tribal Relations at the Department of Agriculture. She described the program as "historic" at a panel discussion on the American Rescue Plan Act hosted by the Harvard Ash Center.

She said it would completely wipe out farm service agency loans made to disadvantaged farmers and ranchers with payments of 120 percent of their loans. The payments would repay their debt and cover taxes and other costs, Thompson said.

The socially disadvantaged are identified as Black/African American, American Indian, Alaska Native, Hispanic/Latino American, Asian American, and Pacific Islanders. The program was designed to lessen the debt of those farmers and ranchers after decades of discrimination in U.S. Department of Agriculture programs. 

Farm field of canola, near Seiling, OK. (Photo by Joaqlin Estus, 2017)

Judge William C. Griesbach of the Eastern District of Wisconsin issued the temporary restraining order decision in a lawsuit filed by a dozen White farmers in nine states against the Department of Agriculture.

The White farmers, the plaintiffs, told the court the program violates the equal protection clause of the U.S. Constitution. They allege the farm loan forgiveness program “actively and invidiously” discriminates against American citizens solely based upon their race.

Plaintiffs said in court documents that socially disadvantaged is defined as “a group whose members have been subjected to racial or ethnic prejudice because of their identity as members of a group without regard to their individual qualities.”

The White farmers said the program must prove individual past discrimination, saying said the department did not prove any discrimination was intentional. They said the program also should consider the financial circumstances of the individual applicants. 

The conservative law firm Wisconsin Institute for Law & Liberty filed the suit. In a prepared statement, Institute President and General Counsel Rick Esenberg said, “Conditioning benefits from the federal government on the basis of race is unconstitutional. (The Institute) is committed to ensuring that the current threats to the bedrock principle of equality under the law, something that many generations have worked tirelessly to achieve, are challenged and fought.” 

An individual plaintiff in the case, Adam Faust, of Wisconsin, was quoted on the Institute's website as saying, “There should absolutely be no federal dollars going anywhere just based on race. The economic impact from COVID-19 didn’t hurt any race more than another as far as agriculture goes.” 

Another plaintiff was quoted. “There is a case for loan forgiveness for individuals,” said Christopher Baird. “But we shouldn’t be looking at the color of someone’s skin and saying this person needs more help or less help based on the color of their skin. That’s just wrong.”

The agriculture department and American Indian farmers’ and Black farmers’ associations are defending the loan forgiveness program against the class action suit.

(U.S. Department of Agriculture photo)

The department, in its court filings, said 12 farmers, “who do not allege that they have been subject to USDA discrimination or left out of prior funding, have filed a motion seeking the immediate cessation of the program to prevent even one payment to a socially disadvantaged farmer, arguing that it is unconstitutional for Congress to provide such targeted assistance.”

The department said, “the views of 12 plaintiffs, some of whom disclaim wanting any such relief themselves, should not be permitted to override Congress’s determination and halt the distribution of payments to fellow Americans in need.”

The department said the agency’s loan programs administered by the Farm Service Agency “have historically been infected by discrimination against minority farmers. That unfortunate history is long standing and well documented in numerous investigations and reports, testimony before Congress, and civil rights complaints and lawsuits by minority farmers against USDA spanning the past several decades.”

The Intertribal Agriculture Council, which advocates on behalf of individual Indian producers and tribal enterprises, said in a prepared statement it deplores the ruling.

“No serious observer of USDA’s role in American agriculture can doubt that the department has engaged in decades of intentional, and systematic, discrimination based on race and ethnicity. The results have been catastrophic and have completely reshaped farming by eliminating a wide swath of farmers," the council said.

"If ever there was a constitutional basis for taking race into account when making policy this is it. In its decision the Court appears oblivious to this history, and hostile to efforts to achieve true racial justice,” the council said.

The council said for decades, agency barriers to disadvantaged farmers limited their ability to make use of agriculture department resources in credit, conservation, marketing, cooperative development and other services.

Judge Griesbach said the temporary restraining order was necessary because otherwise the program would cause irreparable harm to the plaintiffs, traditional legal remedies would be inadequate, and the plaintiffs' case has some likelihood of prevailing on its merits.

Thursday two dozen farming, rural, environmental, health and civil rights groups filed an amicus brief in the case opposing the injunction. The groups included the Intertribal Agriculture Council, and The Southern Poverty Law Center.

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