Discussions

4 Race and Regulation Asian Immigrants in California Agriculture

Laura-Anne Minkoff-Zern, Nancy Peluso, Jennifer Sowerwine, and Christy Getz

Yang 1 planted strawberries and a collection of “ Asian ” vegetables on his small, two-acre plot in Fresno County in California ’ s Central Valley. He and his wife handled the bulk of the labor, from time to time hiring in people to help. In the spring, as the strawberries began to fruit, family members from Fresno, Oakland, Richmond, and elsewhere showed up to help with the harvest — taking home small quantities of the fruit for their children and other family members in exchange for helping the Yangs get their strawberries to market. That is, they did until the day a Labor Standards Enforcement agent came to the roadside farm and asked Yang ’ s mother about the terms of her work. As the older woman did not have a thorough enough command of English to answer, the agent found Yang and asked to see proof of her worker ’ s compensation insurance, which unsurprisingly, he did not have. Reciprocal labor had been part of his family ’ s practices since they had farmed in the mountains of Laos, long before they were forced to leave in the wake of the American war. But new laws protecting family workers in California were about to change such practices. Facing a fi ne of several thousand dollars for the “ offence ” of hiring his mother and other extended family members as unpaid and uninsured labor to pick strawberries, it looked as if Yang would no longer be able to afford farming on his tiny rented plot of land. While the war 2 had not stopped him from farming, U.S. labor laws might, even though these, in prin- ciple, are meant to protect and help workers. Yang and other Hmong farmers clearly did not fi t the picture of the “ average ” farmer in California. How do state agricultural policies affect both access to material resources and the construction of racial identities? In this chapter, we trace the effects of such policies on three Asian immigrant groups.

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Working-class Chinese were the fi rst to be barred from legal immigra- tion through the Chinese Exclusion Act of 1882. The designation of immigrants from Asia as nonwhite and noncitizens set the stage for later enclosure laws in which Japanese immigrants, who had become well established in California as both farmworkers and small farm owners, were barred from owning land. Although for a time Japanese farmers succeeded in resisting such state practices, their gains were erased through the sentencing of both immigrant and American-born Japanese to internment camps during World War II. More recently, Hmong refugees, bringing agricultural experience from their native Southeast Asia, have begun to practice small-scale farming in Califor- nia ’ s San Joaquin Valley. However, U.S. labor regulations 3 have defi ned many Hmong agricultural practices as illegal, contributing to some images of these refugees among regulators as “ problematic. ” These three examples demonstrate that as the state regulates agricultural resources, it creates racial categories that separate lawful members of society from “ alien ” outsiders. These designations then legitimate and are reinforced by everyday experiences of racial “ othering ” or racial exclusion. We refer to the combined effects of these processes as agricul- tural racial formations .

The state historically created racial hierarchies through the restriction of landownership among those designated as “ non-white, ” 4 and there- fore ineligible for citizenship. 5 Japanese immigrants succeeded in circum- venting the alien land laws in the early twentieth century, however, their internment during World War II served as an explicit, state-sanctioned enclosure, stripping Japanese of property that could be expropriated by neighboring whites. In most cases, such land was never returned. Our research reveals that racial hierarchies still exist in complex and indirect ways, though often unintentionally. With regard to the Hmong, the application of labor laws protecting workers, which were primarily intended to regulate much larger farms, have dissuaded many Hmong from participating in agriculture, as they carry penalties disproportionate to Hmong farming incomes. At the extreme, they can be seen to serve as institutionalized enclosure laws, operating through seemingly neutral, and indeed even progressive legislation. Despite the protections afforded by their refugee status, Hmong and other Southeast Asian refugee farmers are obstructed from participating in agriculture due to California agri- cultural laws that continue to assume their agricultural subjects are white.

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The Law and Asian American Farmers

What is the role of law and policy in creating racialized agricultural formations with political and economic consequences? In this section, we draw on theories relating the law, accumulation, and racial forma- tion, in order to explore the role of the state in creating racial distinctions (and hierarchies) in California agriculture. Law and policy play an important role in the processes that constitute “ dispossession by extra- economic means ” ( Glassman 2006 ). Civil rights laws in the United States have rendered it diffi cult, if not impossible, to implement new laws explicitly dispossessing people from land and other resources, based on racialized identities (Civil Rights Acts of 1866, 1964, and 1991). However, law and policies meant to facilitate accumulation in the agri- cultural sector, and those meant to protect the rights of workers, have had indirect effects on the production of racial identity and racialized dispossessions.

We see racial formation as “ the sociological process by which racial categories are created, inhabited, transformed, and destroyed ” ( Omi and Winant 1994 , 55 – 56). As key aspects of “ projects . . . [that] . . . reor- ganize and redistribute resources along racial lines ” (56), agricultural laws and policies construct racial difference through assumptions about what constitutes normal or appropriate agricultural practice and the effects of these assumptions. Though it is beyond the scope of this chapter to comprehensively explore the relationships between law, policy, and racial difference, we examine some of the ways regulations to protect workers have made it diffi cult for Hmong farmers in California, thus creating racialized agricultural formations. We contrast these indirect forms of exclusion with the overt and well-documented experiences of Chinese immigrant farmers due to the federal exclusionary acts and with those of Japanese farmers who lost their land due to California ’ s alien land laws.

In the late nineteenth and early twentieth centuries, Chinese and Japa- nese farmers and farmworkers experienced dispossession in ways that resemble the practices of enclosure described by Karl Marx, except that where class was the primary form of differentiation in the cases Marx described, race has served that purpose in the United States ( Marx [1867] 1977 , 876). 6 In this regard, our chapter contributes to recent debates on Marx ’ s original idea of primitive accumulation, in which it has been argued that dispossession is an ongoing process ( Glassman 2006 ; Harvey

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2004 ; De Angelis 2004 ; McCarthy 2004 ). 7 In California, farmworkers were denied access to land and labor opportunities in order to enable accumulation by Americans of European ancestry. In the case of the Chinese, enclosures were made possible by the Chinese Exclusion Act of 1882, prohibiting further entry of Chinese workers into the country and dampening their presence in the California agricultural labor and land market ( Almaguer 1994 ; Chan 1986 ; McWilliams 2000 ; Omi and Winant 1994 ). Japanese farmers were expropriated fi rst through the Alien Laws of 1913 to 1927 and then more violently through the Intern- ment Acts of 1942. Being defi ned as Chinese or Japanese thus facilitated exploitative treatment of Chinese and Japanese laborers and farmers. Racism and the production of white privilege — not to mention citizen- ship and landownership — were explicit motives in the development of these U.S. laws ( Almaguer 1994 ).

In contrast to the overtly racist motives behind legislated dispossession of Chinese and Japanese farmers from agriculture in earlier times, con- temporary dispossession of the Hmong is more subtle. In the case of the Hmong, we argue that California labor regulations are dispossessing farmers of their ability to engage in agricultural livelihoods. Such regula- tions, and their defi nitions of “ family, ” render long-standing cultural traditions of family labor reciprocity fi nancially onerous, if not impos- sible, for the majority of undercapitalized Hmong farmers in the state.

The following sections trace the origins of racialized dispossessions of so-called Asian American groups, enabled by laws and regulations with racialized intents or effects. We argue that dispossession is racialized when laws, policies, or practices specifi cally affect particular racial groups, whether purposely or unintentionally. To locate such disposses- sions historically, we describe the experiences of Chinese and Japanese immigrant farmers and Hmong refugee farmers at different moments in California history.

Chinese Agriculture and the Exclusion Act of 1882

As the fi rst federal discriminatory immigration law in United States history, the Chinese Exclusion Act of 1882, turned a page on the percep- tion of race in America, defi ning immigration as a privilege generally cor- related with whiteness. The law refl ected and legitimated existing racist ideologies and institutionalized them, in an attempt to deny poor Chinese immigrants access to citizenship, employment, and landownership in the United States ( Gyory 1998 , 2; Calavita 2006 ; Lee 2003 ; Lieb 1996 ).

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In agriculture, the law limited the availability of Chinese immigrants as laborers, changing the ethnic makeup of the farmworker population. By restricting Chinese immigration, it minimized competition for white workers seeking agricultural jobs. Although the law was implemented nationally, its effects on the agricultural sector were most felt in Califor- nia, which by then had the fastest growing agricultural economy in the country. The Chinese had fi rst arrived in California in large numbers around 1852, as part of the Gold Rush. As mining declined, the main occupations of Chinese in California shifted from self-employed miners to wage workers, many of them in agriculture ( Chan 1986 ). In the early 1870s, the onset of economic depression, the completion of the trans- continental railroad, and the declining number of jobs in California had exacerbated anti-Chinese sentiment among white laborers. In 1882, when the law was passed, seven out of eight farmworkers in California were Chinese ( National Farm Worker Ministry 2009 ).

In addition to discriminating based on race and nationality, the law also had a class component: while the working class laborers were disal- lowed, merchants, diplomats, students, and temporary travelers from China all were permitted to enter the country. Nonetheless, many Chinese immigrants evaded the law, fi nding ways to enter the country and prac- tice agriculture. They worked as both farmers and farmworkers in the United States, primarily in California, during the exclusionary period. There were in fact many loopholes in the laws, based on class and gender exemptions, which allowed for falsifi cation of paperwork and identities ( Lee 2003 ). By using false documentation, taking advantage of loopholes in the law, and maintaining a presence in California agriculture, Chinese workers in agriculture proved resistant to the racist law ( Chan 1986 ; Lee 2003 ).

Though managing to continue in agriculture, the Chinese nevertheless suffered exclusion in other ways. The law was extended and amended in 1892, 1902, and 1904, proving a powerful agent in shaping the identi- ties of multiple generations of Chinese immigrants as excluded from the categories of whiteness and citizenship. It was fi nally repealed in 1943, when, in the context of World War II, it hampered U.S. foreign relations with China ( Calavita 2007 ; Gyory 1998 ).

The law had lasting repercussions on society in its determination of racial categories and subsequent racialized agricultural formations. It excluded the Chinese from having a legitimate presence in the United States and California and from legal participation in agriculture. Further, the law underwrote and institutionalized individual acts of racism, which

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had been frequent since Chinese immigration to California ( Calavita 2006 and 2007 ; Gyory 1998 ; Lee 2003 ).

Placing limitations on the immigration and citizenship of certain races and nationalities helped defi ne the parameters of U.S. citizenship and determined the constitution of racial categories in the United States more broadly. Regarding such restrictive legislation, Lee argues: “ The Chinese exclusion laws and other government legislation excluding all other Asian immigrants refl ected and maintained an exclusionary and racial- ized identity that marked Asians, African Americans, Latinos, and Native Americans as outsiders ” ( 2003 , 6 – 7).

Much of the negative racial stereotyping and general anti-Asian senti- ment that was augmented by the Chinese Exclusion Act was also applied to Japanese immigrants. Many white political and labor leaders warned that Japanese immigrants would take the place of the Chinese in creating a threat to white farm labor ( Lee 2003 ). In 1907 President Roosevelt passed an Executive Order restricting Japanese immigration to the U.S. mainland from Hawaii. Japan also agreed to stop issuing travel papers to Japanese laborers, according to a “ gentleman ’ s agreement ” with the United States the same year ( Calavita 2007 ; Lee 2003 ). In the next section of this chapter, we discuss the ways that the explicitly racist alien land laws specifi cally limited Japanese American landownership and agricultural capacity.

Japanese Farmers and the Alien Land Laws of 1913 – 1927

The fi rst substantial wave of Japanese immigrants to California arrived in the 1890s. This fi rst generation, consisting primarily of young unmar- ried males, fi lled some of the labor gaps left by Chinese transitioning out of the farming sector in the early 1900s. Japanese association records show that by 1910 two-thirds of Japanese laborers employed in Califor- nia were working in agriculture. This was the peak of Japanese employ- ment as agricultural wage workers, as labor-intensive crop cultivation had expanded in many regions of California during the preceding decade ( Higgs 1978 , Matsumoto 1993 ).

In order to secure opportunities as agricultural laborers, many Japa- nese workers underbid Chinese, Mexicans, and white laborers for wages. Once established in an area, they would demand higher wages and con- tract renegotiation, striking or initiating work slowdowns in the process. This willingness and ability to organize and protest, and thereby improve their wages and economic status, differentiated them from the Chinese

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workers who preceded them. Organizing both agitated their employers and threatened white growers, corporate and small alike ( Almaguer 1994 ).

From 1900 to 1920, Japanese immigrants ’ primary role in agriculture shifted from farm labor to farm tenant and, less frequently, farm owner- operator. By 1920, Japanese farmers were producing 30 to 35 percent of all trucked crops in California ( Higgs 1978 ). By 1925, almost 50 percent of the Japanese population in California was active in small farming enterprises ( Almaguer 1994 ).

Although wage discrimination may have been overcome as more Japanese transitioned to become tenants and owners, there is evidence of further discrimination against Japanese farmers in the land rental market. Japanese land renters generally paid higher rents relative to land values than did white land tenants. As some Japanese gained access to land as tenants and owners, many also hired Japanese workers, paying them higher wages than the white farmers had paid ( Higgs 1978 ).

These changes in Japanese access to land and labor caused many white farmers to justify their own discrimination against Japanese, as they had viewed the control of land, workers, and capital as white privileges. As Almaguer (1994 , 186) notes, “ Japanese farmers became the fi rst group of racialized immigrants to challenge the precarious position of Anglo small family farmers in the state. ”

Legal discrimination targeting Japanese farmers began in 1913 with the passing of the state of California ’ s fi rst Alien Land Law. The law precluded them from owning land and limited land leases to three years. Section 1 of the Alien Land Law of 1913 states: “ All aliens eligible to citizenship under the laws of the United States may acquire, possess, enjoy, transmit, and inherit real property, or any interest therein, in this state, in the same manner and to the same extent as citizens of the United States, except as otherwise provided by the laws of this state ” ( Alien Land Law of 1913 , 206).

Section 2 of the law stipulated that all other aliens not included above could “ lease land in this state for agricultural purposes for a term not exceeding three years ” ( Guskin and Wilson 2007 ).

The objective of the Alien Land Law, as described by the law ’ s coau- thor, State Attorney General U.S. Webb, was explicitly “ to limit [Asian] presence by curtailing the privileges which they may enjoy here; for they will not come in large numbers and long abide with us if they may not acquire land ” ( Higgs 1978 : 215, brackets in original).

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Although the law did not state any particular nationality or ethnic group, it affected mainly Japanese immigrants, who were at that time the largest Asian immigrant group legally ineligible for citizenship, 8 as Chinese immigration had already been limited via the exclusion laws. The law applied not only to noncitizen individuals, but also to corpora- tions when the majority of the shareholders consisted of aliens ineligible for citizenship. The law was in effect until 1956, when it was repealed ( Higgs 1978 ).

From 1790 to 1952 racialized limits had been legislated concerning who could become a naturalized citizen of the United States. The Natu- ralization Act of 1790 limited eligibility to “ free white persons. ” In the Naturalization Act of 1875, persons of African descent were allowed to become naturalized as citizens. All Asian immigrants, classifi ed as neither white nor black, continued to be “ ineligible ” for naturalization ( Guskin and Wilson 2007 ).

Like Chinese before them, Japanese farmers found many ways to evade the law ’ s restrictions. The most common tactic was to purchase land in the names of their U.S.-born children, who were legal U.S. citi- zens. Since the land bought under the names of minors had to be under the guardianship of an adult, some sympathetic white and Hawaiian- born Japanese citizens (who had immigrated generations earlier) were named as trustees. A second way Japanese farmers evaded the land law was through the creation of “ dummy corporations. ” These were com- panies that were formed in order to purchase land, where the majority of members or stockholders were citizens but owners in name only, allowing noncitizen Japanese to manage the land ( Higgs 1978 , Matsu- moto 1993 ).

The Alien Land Law was amended in 1920, in an attempt to clarify prior ambiguities and increase its restrictiveness. Noncitizen Japanese farmers had been fi nding loopholes and succeeding at farming. After the amendment, noncitizen Japanese were denied rights to lease as well as own agricultural land. Further, they could not be members of any cor- poration with entitlement to land, and could not act as guardians for minors owning or leasing land. Again, the amendments did not prevent Japanese farmers from fi nding ways around the restrictions. As long as white landowners could gain fi nancially by leasing to the Japanese, some were willing to do so, even if it meant breaking the law. After 1920, it was common practice for noncitizen farmers to be named in writing as “ managers ” of white-owned farms, while actually leasing the land from a white farmer.

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The 1923 amendment to the Alien Land Law took the restrictions even further, not allowing those Japanese ineligible for citizenship to “ acquire, possess, enjoy, use, cultivate, occupy, and transfer real prop- erty ” ( Higgs 1978 , 220 – 221). Racialized enclosure could not have been more blatant.

As shown by the actual number of Japanese farm operators in 1940, which was approximately the same as the number in 1920, many Japa- nese immigrant farmers managed to resist the restrictions on their agri- cultural activities. Yet their successful resistance to racist discrimination via exclusionary land laws was ultimately thwarted by other, more ominous racist laws during World War II. From 1942 to 1945, the Japa- nese living on the West Coast of the United States were transported to internment camps, 9 in the course losing their farms, their homes, and the businesses they had established in the United States. After internment, most Japanese were unable to return to their homes and reestablish their previously cohesive communities ( Higgs 1978 ; Matsumoto 1993 ).

In 1923 several U.S. Supreme Court cases challenged the Alien Land Law and its amendments as unconstitutional. It was defended by Justice Pierce Butler as directly affecting the “ strength and safety ” of California agriculture. Using state security as a defense, Butler held that the law was “ not arbitrary and unreasonable in its discrimination ” ( Higgs 1978 , 219). Yet “ how the operation of a few thousand small vegetable and fruit farms by the Japanese threatened the strength and safety of Cali- fornia was not explained by the learned Justice ” ( Ibid. , 219). The alien land laws were racially motivated, without question, and the rhetoric of security used as an excuse to defend unjust legal decisions.

Excluding racialized immigrant groups by dispossessing them of their rights to control land is one way that the white population of California ensured that capitalist farming would remain white. As Almaguer (1994 , 186) poignantly writes, “ These laws represented yet another attempt at social closure by the white population in the state. ” Using the legal system to defi ne the racial makeup of landownership is one way that the law has been used to align race and class, resigning people of color to the unpropertied classes of America.

The Hmong 1975 – 2009: Protecting Workers, Challenging Family Farmers

Hmong refugees are some of the most recent immigrants of Asian descent in California. In 1975 they were deemed political refugees by the United

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Nations as a result of the United States ’ Secret War 10 in Laos. Prior to their arrival in the United States, most Hmong were engaged in subsis- tence agriculture, many in remote areas of their own countries. Most arrived in the United States with minimal English abilities or other skills for employment. 11 Upon settling in the United States, many of the Hmong reached back to their agricultural roots by leasing land and initiating very small-scale or what we call “ microfarming. ”

In contrast to the Chinese and Japanese, who eventually attained the status of “ model minority ” by the 1960s, Laotian and Cambodian refu- gees became the new subjects of overt discrimination. They were largely deemed “ social failures ” because of their agrarian backgrounds, war experiences, poor performance in schools, poverty, and dependence on government welfare ( Ong 2003 ).

Cambodian and Laotian refugees started to be associated with a lower class of immigrants than Chinese and Japanese immigrants before them, which constituted an “ ideological blackening ” ( Ong 2003 , 86). Because of the effects of their tragic history on families and the lack of culturally appropriate social services support, many of the youth have turned to gang violence, contributing further to their racial stereotyping. At the same time, evasion of government authority and institutions by the Hmong, stemming from centuries of government mistrust, inadvertently contributes to the stereotyping. As a result, assumptions made about the Hmong (and other Laotian and Cambodian immigrants), in reference to their agricultural practices, histories, capabilities, and “ remoteness ” have acted to construct racialized identities that have contributed to new racialized agricultural formations.

While the prior, legalized forms of dispossession discussed earlier were overtly racist, contemporary laws and institutions are not explicitly so. Instead, the implementation of certain regulations, when mapped onto the cultural and socioeconomic landscape of small-scale farming in Cali- fornia, has had subtle but profound racialized effects . In this section, we discuss how asymmetries between Hmong cultural norms, rules, and practices and those in the United States, as manifested in laws and other institutions, result in various forms of racialized dispossession of the means of agricultural production. 12

Small-scale family farms have not been characteristic of California agriculture historically; rather, medium-sized, large-scale, and corporate agribusinesses (although often family owned) have been more typical ( Walker 2004 ). However, extremely small-scale, often immigrant, farm families comprise a growing movement of new farmers ( Molinar and

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Yang 2000 ; Walker 2004 ). Their farms are typically so small that the vast majority of them are not even captured by the U.S. Census of Agri- culture. Yet they are subject to many of the same agricultural regulations as are their corporate counterparts with vastly different historical circumstances.

Since their arrival in the United States, many Hmong have engaged in agriculture on a truly small scale. Early on, families grew herbs and a few vegetables for their own consumption. At that time, only a few better-off and more powerful Hmong families succeeded in commercial farming. In 1992, the average Southeast Asian farm in Fresno County was 3.25 acres, and only several hundred had been identifi ed by The University of California ’ s Cooperative Extension programs ( Molinar and Yang 2000 ). By 2008, extension advisors Richard Molinar and Michael Yang had identifi ed 1,500 Hmong, Mien, Laotian, and Cambodian farms. In 2008 – 2009, a team led by UC Berkeley conducted in-depth interviews with sixty Southeast Asian farmers in Fresno. The average farm size at that time was 8.8 acres, ranging from 0.5 to 60 acres, with nearly half being 5 acres in size or less. Average gross revenues from these farming operations ranged between $5,000 and $50,000 annu- ally. 13 Although farming is not typically the chosen profession of Hmong young people, Sowerwine, Getz, and Peluso found that many older Hmong and some younger adults wish to continue in agriculture (see also Nguyen 2005 ). 14

In spite of a variety of challenges, some 1,500 to 2,000 Hmong and other Southeast Asian refugee farmers have managed to establish very small farms in Fresno and Sacramento, and possibly several thousand more farm throughout other California counties ( Molinar 2007 ). Hmong farmers today are most visible in the production of strawberries and “ Asian ” vegetables. 15 Producing for the commercial U.S. market was extremely different from subsistence or market-garden vegetable produc- tion in Laos. Hmong refugees left everything behind and, except for some U.S. government assistance, had few fi nancial resources, no connections to established farmers or extension resources (especially in their early years here), and extremely limited communication skills and marketing connections ( Fass 1986 ; Sowerwine, Getz, and Peluso 2009 ). Moreover, as mentioned, Hmong farming practices diverge signifi cantly from those of small and medium-sized farming practices in the United States. In particular, most of the Southeast Asian – owned farms are signifi cantly smaller and less capitalized than the average owner-operated small farm, particularly in California. The United States Department of Agriculture

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defi nes a small farm as having less than $250,000 in annual gross sales, whereas Southeast Asian farmers earn on average $25,000 in a good year. Second, the vast majority of Southeast Asian farmers lease rather than own land, thus disincentivizing the transition to more profi table organic or perennial crops. Third, the cultural institution of labor reci- procity, in which families share labor or in kind services with extended family members, is central to the economic viability of their farms. Fourth, Southeast Asian farmers lack the language and social networks to tap into government and other institutional resources available to them. Finally, there is a kind of self-selected invisibility of the Hmong, a cultural legacy of the aforementioned government mistrust, which manifests in numerous ways contributing to the racialization of their particular agricultural formation.

The exact number of Hmong farmers is extremely diffi cult to esti- mate because many fail to register with the county agriculture commis- sioner, the most reliable source of agricultural data. Though they work on the land, Hmong farmers remain diffi cult to fi nd and contact because many work elsewhere as well. The spatial arrangements of their micro- production, in the midst of the biggest vegetable and fruit-producing region in the country, do not facilitate their being found. In Fresno, for example, Hmong farms are rarely, if ever, adjacent to their homes; most live in Fresno city or other nearby areas. Some drive up to forty-fi ve minutes to reach their farm plots. Hmong farmers typically do not own the land they farm. Commonly, one better-off farmer leases a larger plot of land, and then engages in various informal subleasing arrangements to other farmers, thereby making it extremely diffi cult to locate those sublessees. In addition, most Southeast Asian farmers only have short- term leases on their farm lands. Because of their short-term leases, and because the land they cultivate typically lies in the urban-agricultural interface, which is frequently targeted for conversion to suburban devel- opment, some farmers cultivate different plots every year or few years. As a result, each time they move, they become invisible by another degree.

Language is another huge barrier to accounting for the number of Hmong farmers and their practices. While some Hmong have learned rudimentary English, few government agencies or their employees have language capacity in Hmong or Lao. Thus it is not surprising that Hmong are underrepresented in state government statistics and under- served by Cooperative Extension services, even when extension offi cers are sympathetic to their needs, as we have found in Fresno and Sacra-

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mento counties. In addition, their physical and practical “ remoteness, ” driven in part by their mistrust of any government offi cials or agents, contributes to a mystique of Hmong farmer identity, making it easier for mainstream/industrial farmers, marketers, and regulators to stereotype their racialized identities and practices ( Sowerwine, Getz, and Peluso 2009 ).

The “ remoteness ” of the Hmong is exacerbated by their prevalent perceptions of hostile regulatory climates in regard to their most common status as microscale farmers. This perception has added to the mistrust of government offi cials who must enforce regulation, and renders the process of establishing trust-based extension relationships with them even more diffi cult. The perception of hostility has been borne out in practice: Hmong farmers have been cited for numerous labor and Occu- pational Health and Safety Act (OSHA) violations. These citations have required poor farmers to pay onerous fi nes for having minors (often nieces and nephews) working in their fi elds, not buying workers ’ com- pensation insurance for extended family members, providing only one portable toilet for thirty employees, not having an illness and injury prevention plan, not training employees about heat-related illness, and not providing single-use cups for their workers ’ use. In addition to refl ecting completely different cultural norms and expectations of family labor, many of these OSHA and U.S. Department of Labor regulations are diffi cult to fi nd and understand for even the most literate immigrant farmers.

While the Hmong have been cited for diverse infractions, we focus specifi cally here on the regulation of labor practices. At certain points in the crop cycle, strawberries and Southeast Asian vegetables need high levels of labor inputs, particularly around harvest time. For small Hmong growers, this labor typically has been provided by extended family members, sometimes in exchange for working on each other ’ s small plots, just as they would have helped each other farming in Laos. Although in Laos, small-scale market farming, in contrast to subsistence farming, changed the expectations of family laborers. With the coming of market farming, hourly or daily wages were paid in addition to the traditional allocation of shares of the harvest.

In California, however, workers ’ compensation law regulates this long-standing cultural practice of unpaid labor sharing among extended family members and by doing so increases the farmers ’ costs. All workers on a farm, paid or unpaid, family or not, must be covered by workers ’ compensation insurance, which can cost a small Hmong farmer/owner

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$445 on average a year. For many whose farms are barely viable, any additional cost is a sizable burden, especially when bad weather results in crop failure. Most Hmong are either unaware or unsure of how to comply with workers compensation insurance requirements due to lan- guage and institutional barriers; as such, they are vulnerable to viola- tions. Moreover, many would simply not be able to farm if they had to bear those costs for workers who came as part of a family harvest event or just to help out. Rather than protect workers from exploitation by growers as it is meant to do, this otherwise progressive legislation has had devastating effects on Hmong microfarmers ’ capacities to continue farming. It also adds to their racialized construction as “ diffi cult ” and “ remote. ” For Hmong, however, part of the diffi culty of regulatory compliance comes in the defi nition of “ family ” and the ways titles and leases are written.

In 2004 a multiagency “ sweep ” was carried out in Fresno County, seeking to identify and prosecute growers who did not carry the appro- priate workers ’ compensation insurance for workers on their farms. Pushed by labor unions, and purportedly aimed at larger growers, several small Southeast Asian growers were hard hit; many felt that they were unfairly targeted. An advocate for these Hmong farmers stated that agents conducting the sweeps failed to have translators on hand, making it diffi cult for the agents to communicate with the farmers. He questioned whether proper information had been gathered and whether or how information on the violations and requirements for action were transmitted to the accused. In one instance, a farmer that was cited actually farmed an adjacent plot to the one in question, yet he happened to be on-site at the time of the inspection and, because he was unable to communicate with the inspector, was wrongly cited. Large numbers of Asians working in a fi eld become easy targets. The law states that a farmer is required to carry workers ’ compensation insurance coverage for each and every person who is not named on the title of the farm. This applies to both nuclear and extended family members, to those who work for pay or exchange labor, and to permanent and temporary laborers. Because the farm owners did not carry the insurance for those differentiated by the law as extended family members (whose names would not be listed on a title or lease agreement), they were cited between $14,500 and $25,000 ( Fresno Bee 2007 ; Sowerwine, Getz, and Peluso 2009 ). As the Fresno Southeast Asian community became aware of the sweep, historical anxieties around government authority reemerged and nearly fi fty Hmong farmers stopped farming for fear of

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being caught ( Fresno Bee 2007 ). Today, farmers remain fearful and resentful of the law. Nevertheless, to fulfi ll their needs for labor during high-input times, some farmers who are trying to stay in business have been forced to hire contract workers. Others count on their luck to not be discovered.

When the workers ’ compensation law is implemented and mapped onto the socioeconomic and cultural landscapes of microfarming in California, arguably a niche landscape dominated by Southeast Asian farmers, the Hmong appear as particularly vulnerable to its effects. They pay fi nes grossly disproportionate to their incomes, to such an extent that many have either been forced out of farming altogether or continue to farm in fear of the authorities.

Legislative attempts 16 to amend workers ’ compensation insurance requirements to exempt small farms have been introduced into the Cali- fornia legislature. Senate Bill 452, introduced in 2007 and framed as protecting small Hmong farmers in particular, is an attempt to exempt any grower with less than $100,000 a year in taxable income from buying workers ’ compensation insurance for unpaid relatives working on the farm. Had it passed, immediate and extended family, including spouses, children, parents, grandparents, aunts, uncles, and fi rst and second cousins, would have been exempted if they worked without wages on a “ small ” family-owned farm. All of the sixty farmers inter- viewed in our 2008 – 2009 survey had annual revenues between $5,000 and $50,000, well within the limit. The labor unions and their allies, however, opposed this, because so many growers that hire labor fall under this $100,000 ceiling and the impacts would extend far beyond the Hmong and Southeast Asian grower community. Because of the strong resistance, the senator sponsoring the bill dropped it ( Sowerwine, Getz, and Peluso 2009 ).

Many Hmong growers are additionally affected by the insurance costs because they are unable to get (and often unwilling to take) bank credit. Few own homes, equipment, or land to use as collateral; few have credit histories that would enable them to acquire working capital to expand their farming activities enough to make the insurance fees affordable. Ironically, lack of capital precludes many Southeast Asian growers from taking commercial advantage of their low-input farming techniques. Many growers use few or no pesticides, but since they do not own their own land, it is diffi cult for them to transition to organic certifi cation. The extra costs and time that would be involved in certifi cation and record keeping are additionally prohibitive.

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The culture of regulation in California agriculture, and the underlying assumptions about accessing capital, farming practices, ethics, rights, and responsibilities, has been articulated in such a way as to marginalize and discriminate against Hmong farmers, particularly the smallest ones. The circumstances of their arrival and status as refugees had, in fact, led us to expect otherwise. On the contrary, regulations intended to protect workers are in fact beginning to have the unintended effects of pushing Hmong out of farming ( Molinar 2007 ). 17 Before examining the emer- gence of this race-class agricultural formation and its relations to the law, we briefl y explain how refugee status differentiates Hmong from other immigrants.

Unlike the Chinese or Japanese immigrant farmers previously dis- cussed, the Hmong immigrated to the United States as documented refu- gees, affording them many benefi ts that Chinese and Japanese immigrants were denied. In 1965 refugees were recognized as a special category of immigrant in the United States, with the understanding that they would not be returning to their home country ( Ong 2003 ). In the case of South- east Asian refugees, most had to leave their home countries because of U.S. intervention (and failure) in the region. Over more than twenty years, waves of Southeast Asian refugees were transported to the United States directly from Laos or from refugee camps predominantly in Thai- land, Hong Kong, and Indonesia. Through various volunteer resettle- ment agencies, the U.S. government settled them in California, Minnesota, Wisconsin, and other states. In order to distinguish legally between refu- gees and immigrants, the United States passed the Refugee Act in 1980.

Because of their status as refugees or resident-aliens, Hmong immi- grants have different political and citizenship status than that of early Chinese and Japanese agricultural workers. They receive a higher rate of government assistance than previous immigrants, have the ability to work legally as soon as they enter the country, and are eligible for per- manent resident status one year after immigration ( Ong 2003 ). They are legally entitled to negotiate fi nancial assistance in the United States, being eligible for welfare, loans, and other government support services ( Lieb 1996 ).

However, this does not mean they actually seek or gain access to these services, again, because language and cultural barriers are diffi cult to overcome. Ultimately, refugee status, though apparently a more privi- leged status than that of other immigrants, has only partially assisted Hmong wanting to farm in California. The intention of refugee assis- tance is not to help them achieve upward class mobility or to become

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landowners, which might allow some to return to agriculture full time, as they had done in Laos. Instead, it is intended to remove them from the welfare system as soon as possible, allowing them to fi ll lower-tier positions in labor markets ( Ong 2003 ).

Although Hmong growers have not been entirely excluded from par- ticipation in California farming, some have decided to move or return to Minnesota (where they may have been originally placed upon immi- gration) to farm or to work factory jobs ( Fresno Bee 2007 ). Clearly, labor regulations have combined with cultural incongruities and contributed to new racialized agricultural formations on the California landscape. This has happened as the traditional reciprocal labor practices of small Hmong farmers and their extended family members have simultaneously come under fi re and created an administrative impression of Hmong as irresponsible, if not outlaw, farmers. In effect, the practice of family farming Hmong-style has been criminalized — the ironic racialized effect of a workers ’ compensation law with progressive intentions.

Conclusion

While the contemporary production of racialized agricultural formations in the United States, and California in particular, is nowhere near as baldly racist as during the times of the exclusionary and alien land laws, the effects of law and policy on different communities practicing agri- culture can have racialized effects. The unique agricultural history of California, one in which large-scale, corporate (albeit family owned) agribusiness has dominated the structure of state agriculture, has pro- duced a Polanyian style response from organized labor in the state to legally protect workers through requiring insurance provision ( Polanyi 1944 ). Yet this push to protect both documented immigrant and unpro- tected family workers has inadvertently contributed to the construction of Hmong family farm labor as a “ problem ” and thereby made Hmong farmers a “ problem population. ” The diffi culties experienced by Hmong in accessing markets and production opportunities through the usual mechanisms sought by even small U.S. growers, such as credit and exten- sion services, further complicate their potential for transcending the stereotypes we have called a new racialized agricultural formation. The dilemma is perhaps a uniquely twenty-fi rst century one: displaced by U.S. interventions in their home country in the late twentieth century, Hmong are still being dispossessed of even the smallest gains they have achieved in their adoptive country. The terms are only subtler and more closely

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related to some relatively unexplored, racialized, dimensions of an old agrarian question about the effects of capitalism on agriculture.

Notes

1. Yang is a pseudonym here.

2. Most Hmong came to the United States from mainland Southeast Asia. Many came to the United States as refugees seeking political asylum after the Vietnam War, in which they fought against communist forces in the region.

3. In critiquing such laws, we do not mean to undermine the important progress made by labor unions and others working for farmworker rights, or to deny that family members may treat their own relatives unjustly. Rather, we argue that such laws, when applied without regards to cultural histories, actually work to discriminate against those who are economically and socially marginalized.

4. Who was actually included in the defi nition of white person has been a topic of legal contestation and deliberated on a case-by-case basis. Legal debates from 1878 to 1944 designated specifi c ethnic and national groups as either included or excluded from the legally defi ned category of “ white ” in the United States. Persons of certain nationalities, such as Japanese, Filipinos, and Syrians, were designated as both white and nonwhite in separate cases ( Lopez 2006 ). It was not until the McCarran-Walter Act of 1952 that whiteness as a precondition for citizenship was formally abolished ( Calavita 2007 ; Lopez 2006 ).

5. Congress made the fi rst declaration that naturalization for citizenship be restricted to white persons in 1790. All persons deemed as nonwhite or other were considered “ aliens ineligible to citizenship. ”

6. In volume 1 of Capital ( Das Kapital ), Karl Marx ([1867] 1977 ) explains his theory of primitive accumulation as the separation of the workers from the means of production. He states that there are two processes in this transformation: the social means of subsistence and production that are turned into capital (accu- mulation) and the creation of the wage-laborer class (via loss of the means of production and subsistence). The “ classic ” form of primitive accumulation that he refers to is specifi cally the removal of agriculturalists from their land or the expropriation of “ the peasant from the soil ” (876), which he depicts in the enclosure of common grazing land in the English countryside in the fi fteenth and sixteenth century.

7. Harvey (2004) differentiates between his notion of “ accumulation by dispos- session ” and Marx ’ s historical notion of primitive accumulation in that accumu- lation by dispossession is ongoing and is more complex than a one-time expropriation of peasants from their land.

8. See note 5.

9. The exclusion order was offi cially rescinded on January 2, 1945, seven months before the offi cial end of the war.

10. The United States offi cially denied involvement in the war in Laos. On May 15, 1997, the United States reversed its policy, acknowledging its role and dedi-

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cating the Laos Memorial at the Arlington National Cemetery in honor of the Hmong and other combat veterans from the “ secret war. ” It wasn ’ t until this time that Hmong vets received their due benefi ts.

11. Some women embroidered traditional textiles ( Fass 1986 ), yet others, includ- ing former military and militiamen, had diffi culty fi nding employment, due to language barriers.

12. Our research explores disjuncts in the realm of agriculture similar to the “ collision of cultures ” between the Hmong and Western health care systems that Anne Fadiman deftly describes in her eye-opening book about the Hmong, The Spirit Catches You and You Fall Down .

13. Sowerwine, Getz, and Peluso comprise the UC Berkeley team that developed and implemented the survey in 2008 – 2009. Hmong language collaborators from The Fresno Economic Opportunities Commission, UC Cooperative Extension, and Fresno State were trained in interviewing techniques and carried out the majority of the surveys. Some of the interviewees were sampled randomly, from lists provided by UCCE Fresno and from pesticide permits on fi le with the Agri- cultural Commissioner ’ s Offi ce. Others were sampled using the snowball method.

14. All “ interviews ” referred to in this section were conducted by Sowerwine, Getz, and Peluso in 2008 – 2009 as part of their ongoing research on Hmong farmers in Fresno and Sacramento counties.

15. Most of the strawberry farmers in Sacramento are actually Mien; however, many of the earliest farmers, producing for the processing industry in the Central Valley, especially around Fresno, were Hmong.

16. Most recently, in February 2009, California Senate Bill No. 677 was intro- duced, which would lower the ceiling to $10,000 and add a restriction prohibit- ing growers that hire contract laborers ( Fresno Bee 2007 ). No action has been taken yet, as the bill is still in committee (California Senate Bill No. 677 2009 ).

17. Richard Molinar is a small-farm advisor in Fresno County, with a long history of assisting Hmong farmers. Yet even for him, accurate estimates of the number who have tried and given up on farming are extremely diffi cult to make.

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