Image description: just two people in the woods, me and a Douglas Fir.
What does it mean to be a “person” in the U.S.?
Since law school it has been drilled into my head that corporations are people too, which means that they have many of the same rights as people. There is a history unique to the U.S. that confers the same rights as a privileged American person upon corporations like Amazon.com and even nonprofits like the Sierra Club. There is a parallel history that bestows upon corporations and privileged Americans more rights than the trees, rivers, and mountains that have existed on this continent for eons.
Let’s rewind to 1830. This is the year I’ve mentioned in a previous post that Chief Justice John Marshall issued his opinion in Johnson v. M’Intosh holding that Indigenous people only had the right of “occupancy” and could not therefore own land, whereas white Christian settlers had the divinely granted right of “discovery,” and with that the right to land ownership. That same year, the Supreme Court issued another decision holding that a corporation established by a group of missionaries in 1787 for the sole purpose of converting Indigenous people to Christianity had the same rights as settlers do to own land. So in one year, the Supreme Court simultaneously decided that some humans were not people, but that a corporation whose mission was dehumanizing these humans was a person. Isn’t it ironic (actually and not Alanis Morrisette’s version of it)?
“The great object of an incorporation is to bestow the character and properties of individuality on a collective and changing body of men,” Chief Justice Marshall stated in yet another 1830 Supreme Court case granting the right of personhood on a corporation (this time a bank). “This capacity is always given to such a body.” Corporations were “always” people. Obvi.
These protections for corporations didn’t stop in 1830. I don’t remember much from law school. But I do remember sitting in my Corporations class in 1999 being dually disgusted by my creepy professor (who was at the time in an illicit relationship with a fellow student) and by the rights of personhood of corporations. These rights extended to equal protection under the 14th amendment when the Supreme Court decided in 1886 that railroad companies could not be treated unequally. (In case you’re interested, a railroad company was whining to the court about being assessed taxes for a fence they had built, instead of the fence being considered an “improvement” just like it would if I built a fence on my property). And as recently as 2010, the Supreme Court held that the nonprofit political action committee Citizens United had the rights to fund campaign ads under the First Amendment’s protections of free speech. The right to free speech!? The right to equal protection!?
Contrast this with the rights of people, and of nature itself. While corporations were amassing rights of American personhood, marginalized groups were repeatedly denied rights of personhood. White women could not own property, much less vote. Black people were only considered 60% of a person by law (and 0% in practice). Indigenous people were killed, removed, relocated, and assimilated into personhood, while all the while not being considered persons. And in the 1800s, as the railroad and oil companies that wrought havoc on the environment were recognized as American citizens and people, the environment itself continued to be considered nothing more than natural resources to be used and exploited.
Let’s return to 1830. Just a few years before the Supreme Court’s decisions holding that Native people were not people but corporations were people, Scottish Botanist David Douglas was traipsing through Oregon collecting samples of plants, seeds, animals, and Indigenous cultural items. He was 47 at the time (my age today, coincidentally!), and probably as blissfully unaware of what was happening around the rights of personhood as he was about his impending death-by-trampling-bullock. As I gaze out at the Douglas Fir tree in my backyard that is named after him, I wonder how close David Douglas’s party was to my home. The tree in my backyard was here long before it was bestowed with his name. By my estimates, ki (thank you Robin Wall Kimmerer for introducing me to ki/kin pronouns) has been here for nearly 300 years. Ki has witnessed genocide. Ki has witnessed settlement. Ki might have witnessed David Douglas walking by and deciding ki should be named after him.
Two years ago, ki had a relative next door, a healthy younger fir, who was cut down by our next door human neighbors because they wanted to AirBNB their house and didn’t want to be saddled with complaints about the nesting birds pooping on parked cars or invest in caring for the tree. In one short day, a centuries old tree was methodically killed, one four-foot long section at a time. And the only elder fir tree left on this block was the one in my yard. I wonder at how ki still has less rights than Amazon.com. How it seems ki will always have less rights than humans, because ki is not a “person” with any destiny beyond that of being converted to timber and firewood.
What if we reimagined a world where corporations are not granted impunity for injustices on the basis of the rights of “personhood,” and where our fir-ry and furry kin have the rights to exist and thrive as people? Let me be clear. I don’t mean a world where we protect nature from people, but one where we protect nature as people.
This reimagined world is not far from reality. In 1972, American professor Christopher Stone wrote an essay that resonates for me as I think about the rights of my 300-year-old neighbor. Entitled “Should Trees Have Standing? – Toward the Legal Rights of Natural Objects” Stone made an argument that has long been part of the worldviews of Indigenous communities across the world. “I am quite seriously proposing that we give legal rights to forest, oceans, rivers, and so-called ‘natural objects’ in the environment—indeed the natural environment as a whole,” he remarked. And with that essay, a white man gave an Indigenous worldview legitimacy in the Western world, and the rights of nature movement took root in the Western environmental movement. In New Zealand, the constitution was amended in 2014 to incorporate worldviews of the Maori people and a national park, a mountain, and a river were granted legal personhood status. In India, there have been attempts to declare the Yamuna and Ganga rivers as “legal persons, living persons, and moral persons.” In Columbia, portions of the Amazon rainforest were recently granted personhood status (and now both the forest and the company named after it are persons).
It's interesting and not surprising that an American professor spurred the worldwide rights of nature movement, but that U.S. law has remained mostly unchanged with few exceptions. But these exceptions tell the story of how we might be able to radically reimagine U.S. law. Pittsburgh, Pennsylvania became the first U.S. city to enact the “community bill of rights” in 2010, which aimed to prohibit fracking by giving nature civil rights and prohibiting corporations from “interfer[ing] with the existence and flourishing of natural communities or ecosystems, or caus[ing] damage" to them. Other cities have followed.
Indigenous communities in the U.S. have also succeeded in utilizing colonial legal systems to support non-human kin in acquiring the rights of persons. In a paper written last year aiming to “unsettle the ways that manifest destiny is operationalized by marine conservation,” Indigenous authors tell the story of the White Earth Band of Ojibwe, who in 2018 established the “Rights of Manoomin,” which established protection not only for manoomin, the wild rice that is core to the food sovereignty of the Ojibwe people, but also the ecosystems in which the rice grows.
In the world of private land conservation, Indigenous communities and land trusts have worked to accomplish the inconceivable: protecting a song that is integral to a more-than-human ecosystem. The Native American Land Conservancy (NALC) worked with Chemehuevi and Paiute cultural leaders on the Salt Song Project, which reveal a cultural and spiritual connection between various communities of Indigenous people and a large circular swath of land encompassing parts of Southern California, Arizona, southern Utah, and wester Colorado. This includes the Old Woman Mountains and parts of what is now called the Mojave Desert. The songs are considered “oral maps” or “storyscapes” that guide listeners through the ancestral Native lands that are threatened by development and damaging forms of recreation. NALC director Kurt Russo is quoted as asking (non-rhetorically): “How on earth do you protect a song when it’s part of an entirely different social imaginary? That’s a challenge. Because it’s not about economic growth It’s not about capitalism, it’s not about ownership.” To them, mapping the Salt Songs was one way to instill personhood in the entire ecosystem and ultimately convince funders to support protection.
But notwithstanding these stories of hope, there is still no federal legislation protecting the rights of nature in the U.S. And the court decisions across the country demonstrate where the law stands regarding the relative personhood of people, corporations, and nature. For example, the Lake Eerie Bill of Rights (LEBOR) would have granted personhood status to the largest body of water in the U.S. and the right to “exist, flourish, and naturally evolve.” But LEBOR was declared unconstitutional in 2020 when a court ruled in favor of an agricultural corporation, declaring that the corporation’s personhood rights to due process under the 14th amendment outweighed the lake’s right to be free from agricultural toxics that harmed the ecosystem and communities’ access to drinkable water. In the hierarchy of persons, therefore, this court held corporations have superior status, followed by (some) people, and only then nature.
This brings me back to the Douglas Fir tree in my backyard. I feel helpless to protect kin from a heartless demise, even though ki has been here for centuries. I can’t even imagine protecting kin for the rest of my life because ki is technically “owned” by another human neighbor, and our neighborhood is getting all up in arms about the dangers of fir trees falling on houses and the nuisance of cawing crows and falling needles that they bring.
But maybe it can start with a few small things. Like language. I learned recently that the public relations sector began in a time of increasing disenchantment with Robber Barons (née “Captains of Industry”) as a project “to invest corporations [the oil and railroad industry] with soul.” I think we can engage in our own public relations campaign to reinvest more-than-human nature with personhood. I’m not saying that using ki/kin pronouns for a tree is going to change the law overnight. But if we continue to speak of more-than-human nature in terms that transcend “it” and “natural resources,” we can begin to rewire our brains and reshape our worldviews.
And then there’s organizing work that we could do in our own communities. Maybe an amendment to the U.S. Constitution granting personhood rights to Old Woman Mountains and removing personhood rights from corporations seems unfathomable. But we can still work to pass community bills of rights to rebalance local human/nature/corporation relationships. There’s even a toolkit to help get the process started! This is where my mind meanders as I continue to be in conversation with my 300-year old arboreal ancestor. Ki has witnessed dehumanization. Might ki also witness personhood?
Beautifully written.