March 15, 2005
Contacts: Shirley Sherrod, John Zippert or Heather Gray  (404) 765-0991
Overview, Problems and Suggested Remedies for the Pigford Case 
Complete Transcript of Attorney J.L. Chestnutís Speech on the Black Farmer Lawsuit

ATLANTA....On February 19, 2005 at the Federation of Southern Cooperatives/Land Assistance Fund's 2005 22nd Annual Farmer's Conference in Albany, Georgia, Black farmers heard from Attorney J.L Chestnut. Mr. Chestnut is one of the leading attorneys in the Pigford Class Action Lawsuit filed against the U.S. Department of Agriculture in 1997. The first portion of Mr. Chestnutís comments were distributed on February 21, 2005. Here we are including the complete transcript. Mr. Chestnut begins to explain some of the on-going problems with the lawsuit and what was, in fact, included in the Consent Decree between the Black farmers and the U.S. government. As Mr. Chestnut states, this lawsuit was unprecedented and he explains why. He also makes recommendations for ways the Pigford lawsuit can be remedied ? either through agreements between the farmers and government or Congressional action. 

Chestnut was the first black lawyer in Alabama's Black Belt. Throughout his long impressive history, he provided legal services to the Dr.  Martin Luther King,, Jr. and to civil rights activists. He now has the state's largest black law firm from which his civil rights work is on-going.  He is the author, along with Julia Cass, of  Black in Selma: The Uncommon Life of J.L. Chestnut, Jr. New York: Farrar, Straus and Giroux, 1990.  Mr. Chestnut was introduced by John Zippert, who is the Federation/LAF's Director of Programs. 

Comments From Attorney J.L. Chestnut on the
Pigford Case in Albany, Georgia
February 19, 2005

The Pigford, or so-called Black farmers' case, has been misrepresented, distorted, abused and even lied on by people who had zero involvement in the case. To bring that complicated case where it is in 2005, three or four law firms had to suffer and sweat many days and many nights. My little law firm in Selma had to borrow two million dollars to keep it going, only to discover that the government would not even pay the interest on the money. If you do the arithmetic, you will know that the interest in two million is a ton of money. And, in addition to that, weíve had to endure all of the misleading information and all of the distortions and all the lies by people who put nothing in the law suit and didn't do anything to help it along.

Pigford as a Civil Rights Class Action Lawsuit

I want to take a few minutes this morning and talk about what that lawsuit is and what it isn't...the truth...what it started out to be and what it never started out to be.  I remember President Clinton, who is a lawyer of sorts, asking the farmers in the Oval Office why it took so long after President Clinton realized how massive the problem was - that it was national. We had to explain to him that it took so long because this is a lawsuit by farmers, but it's really not about farming. Itís about civil rights and you had to put the two together. And there is one little Black lawyer out there in San Antonio, Texas, and the only thing I know that heís ever done right is that he put those two together. He put the farmers problem in the context of a civil rights case... married the two for the first time. But he didn't know what to do with it after he married the two and got kicked out of court, almost before he got into court. One of the things he did is what we have been criticized for not doing. That is, he tried to include everything under the sun in one lawsuit. He tried to include everything that had been done wrong to Black farmers, and out of court he went, because you canít do everything in one lawsuit. Youíd be lucky if you can correct some of the problems. 

But what we did was to look at what he had done, refine it and then file a law suit skirting all of the problems that had got him kicked out of court. And on August the 28, 1997, three poor little Black farmers filed a lawsuit in federal court in Washington against the then, Secretary of Agriculture, Dan Glickman and the USDA (U.S. Department of Agriculture) itself.  In that lawsuit we did not ask the court to dismantle USDA. We didnít ask that because that is not a legal problem, that is a political problem that can only be corrected by Congress. We did not ask that the court fire any or all the people who worked for USDA, because that is beyond the reach of any judge. What we did say in the lawsuit was that the United States Department of Agriculture - a racist plantation, disguised as a government agency - had discriminated against Black farmers and it had done so since the Civil War. And we wanted money; we wanted damages - thatís what we said. And we said we wanted injunctive relief - thatís what we said. And thatís all we said...because thatís what you say in a lawsuit. 

The injunctive relief was that we wanted legal assurance that Black farmers from that day forward would receive full, fair and equal treatment with white farmers. Now, no such lawsuit as that had ever succeeded in this country. And, as always, with any large class action lawsuit a number of legitimate problems arose. 

Before I tell you about that, let me tell you how I got involved in this lawsuit. I just told you about marrying civil rights to the problems of the farmers.  I didn't know then and donít know now diddely squat about farming. But I have spent the last forty some odd years fighting about civil rights. That, and my getting involved in this lawsuit, was as natural as putting on a raincoat when it begins to rain. Thatís how I got involved. Because I recognized that what this is is a civil rights lawsuit and this is what I've been doing all the while. And as I was saying, in any big class action youíre going to have problems in both the execution and the litigation of the lawsuit. But what was and is different about Pigford is that almost from day one people with secret motives and agendas created a whole series of illegitimate problems. We were there in the beginning and we are there now. And what I want to touch on today are some of the real problems, not the bull. 

Problems with the Pigford Case

I will stand here and tell you that if I had understood in 1997 the magnitude, the real magnitude of mistrust that hurting Black farmers felt against their government I would have searched for some kind of formula specifically to address that problem. I donít know what we would have come up with. I donít know if we could have come up with anything, but more attention would have been given to the problem. When people have been ruined by their government it is hard from them to believe that this government now wants to help them. And I donít care how much you advertise or where you advertise, you canít get really to that problem in depth. 

I know many, many farmers who understandably did not feel that this lawsuit was going anywhere until they saw the first $50,000 check, and that should not shock anybody. The governmentís record in dealing with Black farmers is the reason we had to bring the lawsuit. And if to have understood that in 1997, we would have given it more thought. But I donít know even then if we could have come up with an answer or a solution to that problem. I suspect, but donít know, that for every Black farmer who thought he had a chance to recover money and join the lawsuit, there were at least one or two others who didnít and walked away from it. I suspect that there are farmers who really didnít get notice no matter how much advertising we did. 

But I donít think I ever thought that was the real problem. The real problem comes from hurt and deceit practiced by the government since the Civil War. 

Secondly, in hindsight, which is always perfect, I would have insisted in the notice that we sent out that it would make crystal clear that descendants of deceased farming parents were covered by the lawsuit. That was not there and people had to call to find that out. Some didnít call and lost out. That was a mistake. What I am talking to you about are legitimate problems and oversights in the lawsuit, not all of that other mess youíve been hearing. 

In hindsight...looking back again...with perfect vision, the language in the Consent Decree, addressing Track A claims, should have been tighter. The government turned that language into a loophole. Those are my words... those are my judgments ...otherís may differ. But I said that on the basis that more than 30% or 35% of Track A claims have been denied. We never anticipated that. The whole purpose of Track A was to put those farmers, which was most of them - I think we only had about 150 Track B cases in the whole nation - who had no records, or little records, in a position to receive some money and to receive it as quickly as feasible and we were focused in on doing that. And (we) did not focus, I think, enough on how that language was. 

And some - I must tell you - of our colleagues had more trust in the government than I ever will. And sometimes you just get tired of jumping up and objecting to everything. You begin to feel like youíre just a troublemaker...people canít go forward. Everything somebody wants to do, I object to it. And when you are focusing on trying to get money in poor folks hands and get it there as quickly as you can, sometimes you miss some things. 

I am not sure that if I knew in 1997 what I know now, that I would have agreed that there would be no appeals beyond a certain point. Now, the reason I agreed to it initially was that I knew that the government had way more money than we had, and if you leave the door open they will be appealing to year 2035 and nobody would be getting anything. The problem is, though, when you slam the door on the governmentís face you also slam it in the face of Black farmers. You canít have your cake and eat it too.  If they canít appeal, then you canít appeal. That was a dilemma we had to address. Remember now, we are here in waters never before traveled. There was no precedent. Iíve done a lot of class actions, but Iíve never done a civil rights class action against the government and neither has anybody else. So we were going upstream in a river that nobody else had gone.

I am never surprised that arrogant government lawyers despise me, because the feeling couldnít be more mutual. But for some arrogant overly educated government lawyer to wallow in racism against poor innocent Black farmers is mindboggling. And I saw it day in and day out and had to deal with it day in and day out. My wife will tell you that, in 1997, sometimes I would leave home on Monday and be gone for a week or longer in Washington fighting and struggling, and trying understand how could anybody be so shallow as some of these folk turned out to be. 

We had one of the fairest judges on the bench in this case, but even he would not understand the reach, the stench of racism. He had no idea sometimes of what I was talking about because, unlike me, he was not born into a citadel of racism andÖfighting it all of his life.

I submitted to him (Judge Friedman) the names of three eminent Black lawyers with long professional resumes and asked him to name one of them as a Monitor. He said "no" and named a white lady in Minnesota. And not one of yíall lives in Minnesota. 

I objected to the court, to the government, as opposed to the court, paying the salary of the Monitor, the Mediator, the administrative judges and everybody else (in Pigford) and the court overruled the objection. I made about a twenty-five minute argument against having that done. And this fair judge - fair compared to the rest of them - he said "No, Mr. Chestnut, I overruled that objection."  Do you know why I spent twenty-five minutes arguing against it? Because I didnít want what weíve got now - the government now owns the system. That is like putting a bank robber in charge of probation. And thatís why we've got all of these people getting turned down in Track Aís and all of that - hell, the government is the paymaster. It is the government we sued. I have never known a defendant to be in a position as the government is in this case. And the judge said, "Well, it is the government, you know." 

Possible Remedies to Pigford Case Problems

Agreement with the Government to Change the Consent Decree
Now let me tell you a little bit about the 63,000 late claimants. The Consent Decree in Pigford is a court approved binding contract between the Black farmer class and the government. Just like you sign a contract - thatís what Pigford is. Between yíall and the government and the court approved it.  Now the court cannot on its own change one sentence in that decree. It canít change one deadline on its own. It has to have your agreement, which itís got -  (we could say to we want) the changes to bring in 63,000 people right now. Yet the court has to have the consent of the government which it does not have and is unlikely, at least in my judgment, to get. If we could put enough pressure and embarrassment on a Republican controlled Congress that it will go and speak to Mr. Bush (about this), we might get something done and thatís being worked on right now.

It has been the thought by some of us that Congress would much prefer to have Mr. Bush or somebody on his behalf sit on the telephone and have all of them (the parties) come in rather than Congress having to go through and trying to pass a law which is infinitely more difficult to do. And there are people in the Congress, Democrat and Republican alike, who, I think, are ready to put some pressure on Mr. Bush. I also think that Mr. Bush is feeling pretty good over some inroads he has made into the Black community... in the last election. He might be, as I speak to you, far more open than heís ever been. But the pressure has not come from the Trent Lottís and all of that. When that happens you can get a shift there. So time is kind of the essence. We need to move quickly.... 

It reminds me of when we were getting the "statute of limitations" waived in Pigford. Newt Gingrich was the speaker of the house. He had some kind of deal going on with President Clinton - I donít know what it was but they had something going - and Gingrich was personally involved in getting that legislation through and he came down to preside at the time that the house was voting on it. Now, that was unusual. The speaker of the house doesnít come down to preside. What happens is when the bill is about to be passed the chairman of the committee or his designee sits in the chair. But Mr. Gingrich came down and presided because he knew some of his colleagues were going try to kill it on the floor. I later learned that Mr. Gingrich is the kind of fellow that if youíre going to shoot the King you better shoot him in the head because if he survives youíre dead.  So he came down on the floor so he could preside. I think weíre in a similar situation with the Bush administration and pushing the Republicans in Congress, if we can, to move as fast as they can. 

Congressional Remedies to Pigford
Now if Congress has to pass a law to help these people get into this lawsuit, my own opinion is that I donít think that they ought to try to reopen Pigford. Thatís unnecessary and has all kind of problems. I told you earlier that Pigford is a binding court approved contract between you and the government. There are all kinds of provisions in the constitution that deal with contracts and deal with what you can do and what you canít do. And rather than getting into all of that, itís simpler to create a new cause of action. Create a new Pigford - thatís all you need to do. And then it comes in out of the machinery of the old Pigford. Except Iíd like to change a few things - tighten up the language on the Track A and that sort of thing.  Thatís my view about how you should go about that. 

When I went up to Washington to testify before this subcommittee on the notice provisions, I went up there in the assumption that Congress was just trying to fool some people. That it didnít really intend to do anything - they just wanted to bring some lawyer in and create a problem about notice and then it would all die down and go away. But, before that two-hour hearing was over with, I had changed my mind. So many Congressmen had wanted to get in the hearing they had to modify the rules and say only the members of the committee could sit in on it. Thatís rare. Secondly, the Republican from my state - a white Republican - was more aggressive than anybody else. He was raising holy hell - - saying heíd never seen a mess like that. I was talking with John Conyers and my own Congressman Artur Davis and they were telling me thatís a valuable ally weíve got.  And there are some other Republicans in Congress who look at what has happened to Black farmers and then look at the fact that the 63,000 are out for whatever reason and they are outraged by it. We have a shot at this. 

Accomplishments of Pigford and Where To Go From Here
Now, I am not telling you that you ought to be sending off $25 or $100 to somebody who asks you for it and promises every day is Christmas. Iím telling you weíve got a shot at it. Iím telling you weíve got hard work pressing forward in the Congress, with the President, with everybody else. Iím not promising you a rose garden - there is no rose garden out there. What we have gone through to this point is no rose garden. But weíve got a shot at it. Pigford was not perfect. No lawsuit or anything else crafted by the hand of man is perfect, because man is not perfect. But Pigford put more money in more Black hands in the shortest time than any lawsuit Iíve ever seen and Iíve been practicing law for 45 years.  Pigford represents the only time in the history of the country that Congress passed a law (waiving the statute of limitations) to save a lawsuit filed by Black folk or white folk for that matter - they havenít done that for white folk. 

The important injunctive relief in this case reaches far and wide for the first time in the history of the country. Some, not many, but some of you got land back that the government had taken. Thatís unprecedented. You ought to hold your head up - not down. You ought to be proud and you ought to be brave. We went to Washington - many of you - and we marched on the White House and on the Capitol. I saw poor Black farmers there sleeping four and five in single bed in a Motel 6 and Iíve never been so proud in my life. I saw poor Black farmers with greasy little paper sacks with cold chicken. I saw the Vice President of the United States, Al Gore, so nervous he was shaking in his boots Ďcause his base was out there in front of the White House with signs - us - and he went to the President of the United States and asked him to do something. And the President said he has 30 minutes and he stayed with us three hours. We went to WashingtonÖand we won...and the government lost. We were on the governmentís home court not ours.  Be brave, be proud, be determined...together we can make mountains move, we can make rivers stand still, we can make trees tremble, we can make angels sing and devils cry. I love you and God bless you.

Note: The Federation/LAF, now in its 37th year,  assists Black family farmers across the South with farm management, debt restructuring, alternative crop suggestions, marketing expertise and a whole range of services to ensure family farm survivability.