Author: Antonia Malchik

Threadable-adjacent reading discussion on land ownership

The most recent Threadable* reading selections were the two 15th-century papal bulls that comprise the Doctrine of Discovery, along with a short introduction to Bull Inter Caetera of 1493 from the Doctrine of Discovery organization.

I’m sending the newsletter version of the reading earlier than normally scheduled because the Doctrine of Discovery is heavily intertwined with the 1823 Johnson v. M’Intosh U.S. Supreme Court case, and is also essential to land ownership precedent worldwide, that I really think they should be studied in tandem. The bulls are fussy to read, but short.

I’ve included the two main bulls in the readings, as well as an introductory translation of Bull Inter Caetera of 1493 from the Doctrine of Discovery organization:

• Bull Romanus Pontifex of 1455

• Bull Inter Caetera of 1493

• The Papal Bull Inter Caetera of May 4, 1493, introduced and translated by
  Sebastian Modrow and Melissa Smith

*(https://threadablenative.page.link/Rxp8yegeZ1vXy4u19 if you want to try the Threadable social reading app and need the link! Only works on iOS/Apple devices for now.

For anyone new to On the Commons, an overview of this project is here. These Substack posts are for anyone who doesn’t have iOS or doesn’t want to use Threadable but still wants to know about the readings; the subtitles are marked with “Threadable-adjacent reading discussion on land ownership.” Please feel free to comment or email me with any questions.)

The more I read about the Doctrine of Discovery, the more obvious its importance to land claims and land theft becomes. I think it’s vital enough to understand—not just the content or its contemporary effects, but the way it shapes our world today—that I’ve been trying hard to find other sources that explain it so people don’t have to read it cold and glean its importance for themselves. I was recently listening to a new podcast series, Mapping the Doctrine of Discovery, in which the hosts said in their introductory episode that,

“The Doctrine of Christian Discovery is essentially the key to understanding so much of what ails us today in the world. The Doctrine of Discovery is quite simply the Doctrine of Christian Discovery—that is, the relationship between how religion justified and encouraged the taking of lands by European monarchs and the Vatican from Indigenous peoples around the world.”

The papal bulls included in this reading were written permission from the pope at the time to the monarchs of Portugal and Spain respectively to claim the lands, resources, and people of any place its representatives came across, as long as said lands weren’t already “owned” by a Christian prince.

I don’t want to get too lost in the weeds here. Within Threadable, I included resources for some of the contemporary history from the 1400s; as with the definitions in the Charter of the Forest, just ask if you’d like me to share more! To summarize: almost at the same time that the heavily indebted Christopher Columbus was given permission and funds to sail and claim lands for monarchs Ferdinand and Isabella, they had only just reclaimed the kingdom of Granada from the Muslim empire. Pursuing religious war in the name of Catholicism was predominant at the time that Bull Inter Caetera was issued in 1493, granting Spain ownership of around half the world. (I recommend Patrick Wyman’s recent book The Verge for an in-depth and readable history of this time.)

Bull Romanus Pontifex of 1455 was issued on behalf of the Portuguese empire and was directed mostly at West Africa. Both of these bulls gave broad license to the monarchs’ representatives to claim the world, no matter who was already living in lands they came across.

The rulers were, in fact, given express encouragement to claim not only lands and resources, but ownership of non-Christian people themselves.

The power granted and emboldened by these documents cannot, I think, be overstated. Not that land ownership and land theft started with the Doctrine or was limited to Portugal and Spain—the Charter of the Forest, which we went into a few weeks ago, is focused within England’s borders and addresses land enclosures and rights of the commons in the 1200s—but they empowered a hyper-driven and even more violent colonialism. And they were used to justify further taking of Indigenous rights and land for centuries.

The Doctrine of Discovery wasn’t called such at the time. It became doctrine through references in legal cases like Johnson v. M’Intosh that claimed in 1823—without any moral or legal defense—that discovery of land (by Christians or Europeans in general, depending on which empire was doing the discovering) was equivalent to ownership of it.

The point I know I keep making but is crucial, again, is that this precedent is still being used. The Doctrine of Discovery was what Justice Ruth Bader Ginsburg referenced when denying sovereignty to the Oneida Nation in 2005. It reads as dusty, outdated history, but is in fact a living doctrine that has profound effects on lives and land around the world.

The link above, to an article by Villanova University professor Dana Lloyd, breaks down the doctrine’s role in that 2005 case and the finicky legal language used to try to erase the harms done: paradoxically, Ginsburg defended the decision on the basis that invasion and colonialism were part of history—done with, in the past—while referencing a doctrine that continues to do harm through legal decisions like her own.

There are also some readings that I didn’t include on Threadable itself because the platform doesn’t yet lend itself easily to exploring other texts within the app, but they are related and provide a broader foundation for thought and discussion:

• “Listen,” by Matthew L. M. Fletcher, in the Michigan Journal of Race and Law, on being a Native American student learning about Johnson v. M’Intosh in law school:

“The story is huge. I cannot emphasize that enough. The story’s many strands and fibers contain the fate of ten million, or twenty million, or maybe even 100 million, people living in this land before the Vikings or Columbus arrived. Now imagine how many stories we all have, stories that shape us, define us, restrict us, lead us, teach us, and evolve with us. I have so many, I cannot keep track of them. And I always want more stories.”

• “The Doctrine of Discovery and the Elusive Definition of Indian Title,” by Blake A. Watson (author of Buying America from the Indians) from a 2011 Lewis & Clark Law Review Symposium.

• “Dismantling the Doctrine of Discovery,” from the Assembly of First Nations, January 2018.

• Mapping the Doctrine of Discovery, a podcast series from the Indigenous Values Project.

I’m only partway through the Mapping the Doctrine of Discovery podcast, and can’t recommend it enough. It does a better job than I can of explaining how much of an impact this doctrine and the worldviews that shaped it have on our world today, from continued theft of Indigenous lands to climate change to resource extraction. And right in the introductory episode, the hosts lay out the entanglement of missionary Christianity with the belief in entitlement when it comes to Christian (and eventually white, European, etc.) claiming of resources.

“The Johnson v. M’Intosh decision, in which the doctrine of discovery was essentially moved from this Catholic principle of land-taking, conquest, and domination, into a Protestant state-building contest. . . . At the time, Catholics and Protestants literally hated one another. They were killing one another. But on this issue of Christians appropriating everything non-Christians had, they agreed on that principle. After it becomes this principle of law, of property, then this becomes literally becomes the law of the land in U.S. property law. Every law student during their studies is introduced to the Doctrine of Discovery.”

I’ve read a lot about the Doctrine of Discovery, but I hadn’t fully appreciated the Catholic/Christian aspect of it until sitting down with the documents themselves and then listening to the podcast. The legal effects of the Doctrine of Discovery might be most visible today, but the religious worldview they came from can’t be ignored.

These documents are important. They’re important because of what they set in motion in the first place as European empires spread out across the planet. They’re important because, through the U.S. Supreme Court, they gave license to ever more ravenous land theft in early 1800s North America, and were then referenced throughout the world. And they’re important because their influence still defines relationships of colonialism today.

That’s it for this one. The next reading for the Threadable circle on Land Ownership will be from Nick Estes’s book Our History Is the Future: Standing Rock Versus the Dakota Access Pipeline, and the Long Tradition of Indigenous Resistance, which is a great book that I think everyone should read. It will be followed by a personal touchstone of mine, a selection from Henry George’s 1879 book Progress & Poverty, detailing the reasons why absolute private land ownership is one of the human world’s biggest sources of injustice.

Walking composition

“I don’t like planets. There’s dust and weather, and something always wants to eat the humans.” —The Murderbot Diaries: Exit Strategy, Martha Wells

I had the most beautiful hunting day recently, just before the season ended with my tags unclipped. I got out just before dawn to a place I haven’t been to in two or three years and it was so gorgeous and full of deer I chided myself for not going earlier in the season. I’d been hunting smaller parcels closer to home with no luck—one bit of state land in particular is my favorite spot to go hunting, even though I’ve literally never seen a deer in there in any season. Plenty of fresh sign, but no deer. I think I just go for the larches and chickadees.

The day before the American Thanksgiving holiday, a few inches of fresh snowfall overnight had me following several sets of fox tracks, two to dens, and tiny little rabbit hops leading across hillsides and under trees. And a lot of deer.

Shortly after turning from the old logging road (pictured above) into the hills, I spotted a doe through the woods. This is not a doe-hunting time of year in this place—bucks only—so all I could do was watch, and that was a gift all its own. The doe turned out to be two does, and they spotted me after a few moments. I stood as still as I could for over half an hour while they took turns stamping their front hooves and huffing warnings about my presence.

Deer alarm snorts, with a snow-crunch as my foot shifted and an airplane passing overhead.

My feet grew tired and cold-numb, but I watched the sunlight move through the woods and old man’s beard lichen wave in a barely-felt breeze and it was one of those days where I didn’t mind being chilled and stiff and wishing my knees were younger. Eventually, the does wandered up over a hill, and I sat on a fallen tree and took my hat off and watched the light for a while longer.

About an hour and a half and a couple of hills later, I had been sitting on a stump for a while watching a small gully that showed evidence of a lot of recent hoof traffic and finally decided it was time to make my way toward the car so I could go home and get started on Thanksgiving dinner preparations. I stood up, turned around, and just up the hill from me was another deer with—I thought I could make out from its head rising from a dip in the ground—short antlers.

I lifted my binoculars, slowly slowly, and sure enough, it was a young buck. I stood there staring at it for a few moments, heart racing, before remembering that there was a purpose to my being out there standing calf-deep in snow wishing I’d brought more hot tea with me. I lowered the binoculars, raised my rifle, breathed, aimed carefully.

And missed.

---

A couple of years ago I heard an interview with the German philosopher Andreas Weber, which was interesting enough to prompt me to buy his book Enlivenment: Toward a Poetics for the Anthropocene.

I finally started reading it recently, and found it different from what I expected. The language itself is a reminder of why I quickly dropped the idea of being a philosophy and physics major in college (if there’s one word besides “blog” I wouldn’t miss from the English language, it’s “dialectic”), but what got my attention was Weber’s immediate inclusion of the commons. “‘Commoning’* is a metabolic reality,” he writes. “The body itself—our own individual bodies, for that matter—is possible only through participation in reality as a commons.”

It seems fitting that I started reading Enlivenment during hunting season, when I spend a lot of time out in the woods, most of it thinking about what this interconnection is, what it means to be out there, what I owe the place, what I expect or hope from it. How to stop more of it from being closed off for privatization.

And even more, what it is about humans and our culture that dismiss the centrality of these thoughts. That see the pure act of taking, or even the pure act of doing, to be goods in and of themselves. How the domination and control of nature have defined our relationships with it for centuries, and how the same mindset might be perpetuating itself in ways I can’t see. For which I appreciated Weber’s insights on the Anthropocene (which he extends later into the idea of sustainability):

“At present, I am concerned that the idea so predominant in the Anthropocene approach—that we can reconcile humankind with the unconscious, organic in itself and in others (human and not human) by subverting all of this under the power of culture—is just another attempt at domestication. We can see in it one more claim for controlling the world.

The neoliberal market system and its prerequisites . . . follow this method of exerting control by dividing the world into two halves: one nonliving sphere that needs to be colonized, and one that oversees and manages this control. The world, however, becomes better not through control, but through participation.”

I always come back to thinking that a need to control is born from fear. It transforms itself into something else, though, crawling all over human psyches and prompting a kind of pleasure in the act of controlling. I can see it in photos of successful hunts posted on social media, especially in what’s known as the “grip-and-grin” post-hunt or post-fish photo. I’ve read persuasive pieces on how these photos honor the animal as well as the hunt, but I can’t ever manage to see them as other than displaying a person’s triumph over a dead foe. To many, that’s a mischaracterization. Fair enough. But I don’t personally know many people who take and post those photos who care much about the animals and their own intentioned lives. Some, but not many.

We can’t help but consume—to be alive is to consume, to participate in death—but we can help how we approach it.

It was interesting to think about this practice in the context of Weber’s idea of enlivenment. “Ecological existence is only possible through gifts,” he writes, but the same is true of art.

“This has to do with the fact that art tries to capture aliveness from the inside.” (Emphases added.)

I’d like to think about that for a very, very long time. Is the purpose of art to make aliveness visible? To bring it into another’s sensory experience, to make possible the embodiment of interconnected aliveness? And what happens when art tries to serve the opposite?

---

The buck gave me a second chance, waiting there on alert while I fumbled around with my rifle. By the time I realized the bolt was caught on the scope cover, he’d run off over the hill. I waded through snow around the side of the hill hoping to catch him if he came back over a ridge, but all I found was yet another doe who huffed at me for a while from behind some bushes where I couldn’t see her.

When I came home after that day of hunting, almost my last and the closest I came to bringing home food this year, my kids asked—amused, as always; I don’t know why but they find my itch to hunt funny—if I’d gotten anything.

“No,” I said, and told them about seeing the buck and missing it and that I was kind of bummed.

“Good for the deer,” said my daughter.

A reminder, if I needed it, that the commoning part of this, the interrelationship, is what matters. We are still eating from the elk I brought home last year, and I’ll never forget the few moments that led to her being in the freezer, the long, frigid day spent in the Sweetgrass Hills, the way she seemed to wait patiently while I scrambled to get my frozen fingers in position.

“This notion of the ‘meaning of life,’” writes Weber, “embodies some simple, everyday questions that stand at the center of human experience.” What are our needs, how do we make a living; what are our relationships and what do we owe them?

“My proposal is to shift focus to a new question: What is life, and what role do we play in it? . . . How is the metabolism of goods, services, and meaning possible without it degrading the system in which they operate?”

Good for the deer. In a strange way, I feel like I owe that deer’s ecosystem—our ecosystem, our home—even more than I would have if I hadn’t missed. Those words remind me that this hunting thing, it’s not about taking or even consuming. It’s about a relationship. And it goes both ways.

---

*No matter how many times I’ve typed “commoning” in this newsletter, the platform insists on auto-correcting it to “communing.” I find this hilarious and also intriguing. The commune, at least in the Soviet sense, came partly out of the traditional Russian mir, the “shared responsibility” village that shaped life in that country for centuries. There is a relationship between a commune and the commons, just as there is one between today’s intentional communities and the commons, just as there is between each of us and the commons. That’s part of the reality of being alive; the question is how aware and intentional we are about that relationship.

Some stuff to read or listen to:

• The same Andreas Weber with the essay “Skincentric Ecology,” a beautifully written love letter to lichens, but also to life, on the Center for Humans & Nature: “Although I was only watching them, the velvet spheres out on the roof made my body tingle. They made me joyful, nervous, and restless. It was a view of other beings’ skin. The voice inside that whispered to love back did not originate in my head; it was my skin murmuring.” (This essay is included in the anthology Kinship: Belonging in a World of Relations, which I haven’t yet read all of. There’s a nice interview with the editors, including Robin Wall Kimmerer, in Orion.)

• The Conspirituality podcast recently did a two-hour episode titled “Doing Good in Impossibly Bad Times” on the Bund, which they describe as a “leftist communitarian group that resisted fascism and protected Jewish people during the Reich.” (The pre-episode chitchat ends at about 31 minutes.) Just in case, you know, anyone feels in need of something like that right now. Or always.

• Erica Gies’s essay in Psyche, “What does water want?” looks briefly at efforts around the world to restore natural water flows, which Gies has dubbed the Slow Water movement: “Fresh water’s true nature is to flex with the rhythms of the earth, expanding and retreating in an eternal dance upon the land.”

• An interview from last year with Tyson Yunkaporta (author of Sand Talk) on For the Wild podcast in which he mentions something I wish everyone would talk about more: “60% of capital in the world is what? Land is what’s most of the capital in the world. That’s what’s used to leverage derivatives and futures into infinity, is that land. That’s why we’re not allowed to have access to it.”

• Mercedes Valmisa writing in Aeon on classical Chinese philosophy and the realities of life’s interdependence: “When humans participate in co-acting along with things, there is more than resonance and harmonisation at play, because intentions are introduced into the equation. This leads us to the third claim embedded in the co-action paradigm: that humans should design their actions so as to take into account all the others participating along with them. . . . One of the many powers of individualism – certainly one of the most corrosive ones – is that it makes us blind to the structures, institutions and resources that enable our possibilities to act and to become who we want to be, both personally and as a society. The way individualism makes us see social reality is the heart of its efficacy.” (I’m struck by the “intentions are introduced into the equation.”)

• Elizabeth Winkler in The New Yorker on what seems to have been the world’s first (known) author: Enheduanna, a priestess living about 4300 years ago in what is now known as Iraq: “For hundreds of years, students learned by etching Enheduanna’s words onto clay tablets, and about a hundred of these copies of ‘The Exaltation of Inanna’ survive. But since their discovery, in the mid-twentieth century, scholars have fiercely debated Enheduanna’s authorship.”

• I was recently catching up on issues of Montana Outdoors and found myself cutting out pages of the July-August issue from this year, on 100 things to see and do in the state. Now I have a little pile of ideas for next summer’s family trips. Sometimes it surprises me how little of the state I was born and raised in I’ve actually seen. Though to be fair, it’s a big place.

• Ethnobotanist Dr. Susan Leopold was on Backcountry Hunters & Anglers Podcast & Blast talking about United Plant Savers, her learning trajectory in ethnobotany, and a lot I never knew about American ginseng and medicinal plants.

• I mentioned a long time ago that I like the Pondercast podcast in part because it reminds me of really good middle of the night college radio in the early 1990s. (Also, unlike many podcasts, it’s short.) The recent episode “Lists” fit that niche nicely: “What started out as the abacus has turned into an alternate universe of information we no longer need to burden our brains with. . . . Umberto Eco says, ‘Look to lists for the history of culture. . . . What does culture want? To make infinity comprehensible.’”

Threadable-adjacent reading discussion on land ownership

The most recent Threadable reading* was a selection from Walter R. Echo-Hawk’s book In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided: Chapter 4 on Johnson v. M’Intosh, pages 56-77, just before the section breaks.

*(https://threadablenative.page.link/Rxp8yegeZ1vXy4u19 if you want to try the Threadable app and need the link! Only works on iOS/Apple devices for now.

For anyone new to On the Commons—of which there are, um, a lot, welcome! and thank you to Terrell for recommending it on Substack Reads!—an overview of this 12-week project is here. These Substack posts are for anyone who doesn’t have iOS or doesn’t want to use Threadable but still wants to know about the readings; the subtitles are marked with “Threadable-adjacent reading discussion on land ownership.” Please feel free to comment or email me with any questions. I have also slowed the reading posts pace from once a week to once every 10-14 days.)

There is a copy of Echo-Hawk’s book on archive.org. If you don’t have an account, you can create one for free and borrow the book for one hour at a time. I apologize; I’ve been forgetting to time my own reading of these, but in general they’ve been taking me about 40-45 minutes. And if you’re interested in this subject, Echo-Hawk has an engaging writing style. Its nearly 600 pages look daunting, but the book is very accessible to read.

While the purpose of the Threadable reading circle is to dig into the phenomenon of land ownership, it was always going to end up at theft of Indigenous lands. Though I suppose it started that way in any case, as the reading from Andro Linklater’s Owning the Earth was focused on the enclosures of the commons in 15th-century Britain and the dire consequences for those who depended on that land for their survival. Anywhere that land is owned, which is pretty much everywhere, it has been taken from everyone else.

Anything that really digs into the 1823 U.S. Supreme Court case Johnson v. M’Intosh is essential reading on this subject. It is this case that made possible many of the most egregious land thefts from Native Nations in America. Not only that, but it’s been referenced as a basis for Indigenous land theft worldwide. It’s one of the most important readings because it relies on the 15th-century Doctrine of Discovery and is still used as precedent today. Justice Ruth Bader Ginsburg referenced Discovery in the 2005 case City of Sherill v. Oneida Indian Nation of New York, deciding that the Oneida Nation could no longer claim sovereignty over land it had legally purchased on the open market:

“Under the ‘doctrine of discovery,’ . . . ‘fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign—first the discovering European nation and later the original States and the United States.’”

Johnson v. M’Intosh is an incredibly convoluted case that involves generations of white people’s land speculations crossing from before the U.S.’s Revolutionary War to decades after it. Echo-Hawk covers much of the story, but if you really want to dig into the wonky details I also recommend Blake Watson’s book Buying America from the Indians, which is specifically about this case and everything leading up to it. (I wrote about Watson’s book around a year ago.)

There are two important points that Echo-Hawk highlights in this chapter: The first is that Chief Justice John Marshall, who authored the opinion in the case, was himself a well-known land speculator. He and his father owned vast tracts of land, and anything the Supreme Court decided about land ownership rights would directly affect Marshall’s own fortunes.

The second is the legal question that the case hinges on, which was, “Could white people buy land from Native Americans?” Or, to put it as Marshall viewed it, “Could Native American people own land at all?” The question being decided was whether those who had originally purchased the land from Native Americans owned it legally, or whether it was owned by people who purchased it later. But Native people, as Echo-Hawk states repeatedly, weren’t even allowed to have a stake or a say in the case.

Marshall skipped right over any of these considerations (in fact, as Echo-Hawk details, the entire case was rife with ethical shenanigans, including a straw man plaintiff and hand-picked lower-court judges—“the case was a sham,” he wrote) and went straight to what he considered, evidently, to be a self-evident truth: discovery of land translated into ownership of it. At least, it did for European people who wanted to impose their own private property systems on others. “Discovery” is mentioned several times in the 1823 decision, the most pointed instance being,

“The rights of the original inhabitants were in no instance entirely disregarded, but were necessarily to a considerable extent impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty as independent nations were necessarily diminished, and their power to dispose of the soil at their own will to whomsoever they pleased was denied by the original fundamental principle that discovery gave exclusive title to those who made it.

While the different nations of Europe respected the right of the natives as occupants, they asserted the ultimate dominion to be in themselves, and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil while yet in possession of the natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy.”

(Emphases added.)

That is, Native Americans could live on and occupy and use land, but they could not own it. Because Europeans had “discovered” it.

The decision is made even more egregious, Echo-Hawk notes, because not even the papal decrees comprising the Doctrine of Discovery (which will be included in the next reading) nor English law at the time “entertained the notion that discovery grants title to Indian land.”

Marshall attempted further justification by stating that, “Conquest gives a title which the Courts of the conqueror cannot deny,” which Echo-Hawk notes is a “half-hearted justification,” especially given the fact that almost no—if any—North American nations were ever actually conquered.

Conflating discovery with conquering, Marshall also makes the claim that, even if the Doctrine of Discovery doesn’t have much solid justification, it had been used to create private property rights and therefore couldn’t be questioned:

“However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned.”

My Threadable comment on this passage is a little long to include here, but the Post-It note in my physical copy of the book reads, “So, because a pretension led to property acquisition, you can’t question that basis. What an asshole.”

I’m reminded of a passage in Willa Cather’s novel Shadows on the Rock, in which a character tells his daughter that the law is about protection of property, not about justice. See also Season 4 of The Expanse TV show. No matter how much Johnson v. M’Intosh is buried under ponderous legal language, it comes down—as does most land ownership justification—to one thing: I took it; now it’s mine.

The important thing to remember, again, is that this case is still precedent in the U.S. and many other countries today. It is this case, and the Doctrine of Discovery behind it, that create barriers toward realizing Indigenous land rights; and in fact pervade much of our perspective about property and land ownership worldwide.

The question I’d like to leave you with is: What do we do about this? Because I don’t think “nothing” is an option, or at least it’s not one I’m willing to accept. I look at my ancestors who homesteaded in Montana 5 generations ago, and I see a lot of heart and hard work, but I do not see justice.

There are movements to overturn the Doctrine of Discovery, which you can read about through the Indigenous Values Initiative. And you can read writers like Echo-Hawk, who asks not just “Was theft of Native American lands legal,” but also why it’s still being justified today. Reading won’t fix this, but knowledge is always a good start.

Walking composition

"mountains
will speak
for you

rain
will flesh
your bones"
—from "To Those Who Have Lost Everything," Francisco X. Alarcón

(This is a public post for all subscribers. Please be forewarned there are some anti-Semitic and hate tweets—directed at me—below.)

Like too many people, I have been wrapped up in the news about Twitter. I even took thoughts of it this morning up a forest service road to the view above, where I was just about to turn up a hill to look for some deer. Whether the deer were going to be found or not I don’t know—there was plenty of sign, but the snow was almost the crunchiest, noisiest I’ve ever walked on and there was no way I was getting anywhere near them today.

I have a lot of thoughts about Twitter, mixed up with my thoughts about the cryptocurrency crash currently occurring. Do I care about cryptocurrency? Not really. I don’t really care about social media, either, except, like politics, they have effects on all of our lives that we can’t control, whether we use them or not. I haven’t had a social media account (does Substack count?) for years, but not having social media doesn’t stop people from living in the world it helps create, nor from suffering from the hate that can be spread on it.

The podcast Your Undivided Attention had an episode in June 2020 detailing social media’s role in a genocide in Myanmar and the election of Jair Bolsonaro in Brazil, and the social media-amplified effects of false news stories and misinformation. Their guest also talked about the effects on people who will never see the stories being spread about them. They’re not on social media, don’t have access to the internet, and therefore can’t respond. But they are still harmed:

“The truth is, you have a lot of communities who don’t have access to social media, who don’t have access to technology. The best example is the Indigenous community in Brazil or the Muslim community in Assam in India who are much poorer, who have less access to these technologies.

So you will have this cycle, this bullying cycle essentially, where, even for people who are not online, they’re being attacked and targeted online, on social media, by these bad actors. And they can’t report it. They’re not online. They can’t respond to it and spread their own stories. They can’t even have a conversation about it, they’re just sitting there being pummeled and pummeled and pummeled by this horrendous content that’s making people literally go out and look for them in the streets.”

I want to pretend that ditching all social media would protect us from the hate spread on it, but it doesn’t. It’s like pretending that you can be protected from violent rhetoric simply because you don’t speak the language it’s being spoken in. Having a billionaire who thinks every line of violent rhetoric is a good joke or “free speech” in charge of a platform is only going to make it worse.

In late 2016, just after the presidential election, my town was inundated with weeks of online hate and outright death threats mostly aimed at people in Jewish community. (There were plenty of national news stories about it at the time, but Anne Helen Petersen’s at BuzzFeed was the best and most comprehensive.) The same week it started, I had published an op-ed in the Los Angeles Times about my town, one particular white supremacist, and how community resilience is built, which drew some of that same hate-filled attention my way. It was only a splash, but it was enough.

There were several extremely shitty weeks, and more shitty months after that, and it’s not like the damage has ever disappeared. I’m still proud of how my town responded, how people supported one another and resisted the hate and how the entire place closed down the day of a threatened armed neo-Nazi march that never materialized.

I still had a Twitter account then and kept screenshots of some of what was sent my way, which wasn’t notable for its level of hate, but for the fact that the person writing the posts knew my nickname (which I’d almost never shared online before), my phone number (ditto), and my family’s routines. Which meant they either knew me or knew someone who did. I’ll never forget walking to the elementary school playground day after day, wondering who?

(For the record, I am not Jewish, but a) that shouldn’t ever matter, and b) once you go down this road it’s only a matter of time before you wrap hate around everyone who disagrees with you, no matter their ethnicity or religion.)

This entire episode was part of what got me to write so much about community and trust in my book on walking. What do you do when trust is broken? What do you do when you don’t know whom to trust and still have to live your life, day to day? It’s a big part of why I wove in much of my father’s experiences growing up under Stalin into that book.

I didn’t leave Twitter until at least a few months after all this happened. And though it was a major factor, it wasn’t the only factor: Twitter is the only social media platform I’ve ever felt an addiction to, which was most of the reason—I wasted so much time scrolling and browsing it’s embarrassing to admit; plus I can honestly say I’m still relieved at the thought of never receiving a picture of some guy’s genitals in my DMs again.

Looking at these tweets still makes me feel ill. I kept them because I didn’t want to forget that time. How I couldn’t sleep much for weeks on end, and had trouble eating. How much worse it affected people here who were more relentlessly and violently attacked. How billions of people all over the world live with this kind of fear. How much of human history has been shaped by the violent actions that are the inevitable endpoint of hate and dehumanization.

A few months ago I tried to talk myself into getting over my issues with Twitter. There’s no use pretending that Twitter doesn’t play a major role in writers’ careers. It does, and I have fewer opportunities without it. Elizabeth Spiers wrote a compelling article about this reality, and after reading it I told myself to grow up and get back on the stupid bird app.

So I created a new profile, uploaded a photo, wrote a bio, linked to my website, did all the things. Then I went and looked at two of my Montana friends whom I’d probably follow first, to see what was going on in their Twitter-worlds. And I remembered what being on Twitter was like. Not what would come my way—what I’m like on there. What I’d have to comment on, and how. How I’d get sucked into never-ending politics dialogues because I have a problem with that kind of thing.

I almost threw up, seriously. Life really is too short, I thought. Maybe nobody ever pays me to write another book or essay in my entire life, that is fine as long as I never have to be that person again, the person I am on Twitter.

This post hasn’t gone where I intended it to go. Because it’s not meant to be about me; it’s about ownership, once again. It’s about the fact that the ability of people to become billionaires is a failure of society. It’s about how becoming that wealthy gives you immense power over the global commons. You can buy your 340,000-acre ranch from your fellow billionaire friend and use your wealth and influence to fence in not just the land, but the wildlife, the water, the democratic will of the people who want to keep those things in the public trust, with public access. And you can buy one of the most influential social platforms on the planet and fill it with hate speech and trolls.

One of the chapters of the book I’m working on is about ownership of data, which I maintain is a type of ownership over our selves—including our future selves, especially for children—that few of us really grasp the power of. It’s been strip-mined and commodified for years now, at the expense of society and our own agency in ways we don’t even understand.

Twitter is no different in this respect, but I think Ryan Broderick put what’s truly at stake best in a recent Garbage Day post on what’s really happening as the company’s staff and moderation are gutted:

“The narrative right now is that Musk’s egomania drove him to buy and inevitably ruin Twitter because he hoped to transform it into X, his totalitarian ‘everything app’ WeChat clone he wanted to send us to space with. But there is another, simpler narrative here. A man who grew up in apartheid South Africa, whose family owned a diamond mine, who made his name helping cyberlibertarians bypass banking laws, manipulating the US tax system to build faulty self-driving cars, and shooting rockets into space in the hopes of establishing debt slavery on Mars, bought an app built by activists and Black Americans, and that is relied on by the Global South as a valuable democratic tool, and is used by journalists around the world as a free and open source of information, and tried to turn it into his personal country club. This is just the mundane nightmare of watching a wealthy man wreck his new plaything — an imperfect, but vital communication system for some of the most vulnerable and marginalized communities in the world. This is a colonialist doing what colonialists do.” (Emphasis added.)

I have no particular interest in saving Twitter for Twitter’s sake, but it’s hard to deny its usefulness worldwide. It was instrumental in the Arab Spring protests, and I’ve read that it’s vital for the current women-led revolts going on in Iran.

It is the users who truly build these networks, who give them value. Just like it’s a physical community that gives land its value. Not the person who owns title to it. Yet in a system that rewards capital, it’s always the title holder who collects that value, who commodifies the commons and claims its rewards for themselves. It was true with Montana’s early Copper Kings; and with England’s 15th-century landowning nobility who kicked people off their land to make a better profit off of sheep; and with all the George Washington-type land speculators who made fortunes out of stealing North American land from people who already lived here; and it’s true of the digital technology that we hate, use, appreciate to some extent, and create through our labor.

I loathe all the digital technology. But what I loathe is how it’s been dictated to us. How we’re not allowed to buy devices built without literal slavery and poisonous extraction; how we don’t get to decide how we want to use it, and where, and what role it plays in our societies and individual lives. I don’t loathe what it’s given me: the ability to connect with people in ways I never could have in my own childhood, when we called my father’s family in the Soviet Union once every few years, from a neighbor’s phone at exorbitant rates per minute. I like being able to text with friends wherever they live, and video-call family overseas.

But it’s far too easy to say, “Well, look at all the benefits you get! You can’t make an omelette without breaking eggs.” To which I’d like to remind people of philosopher’s John Gray’s point that, “You can break millions of eggs and still not have a single omelette.”

I’ll end with a quote about technology from my own book on walking, because when I was writing about trust and community and loneliness, I was asking these questions, about the destruction that a car-centric culture has left us with, and whether digital technology is going down the same road:

“‘Progress’ is a messy ramble, less a clear path through the woods than a process of bushwhacking through a jungle full of dead ends and U-turns and countless life-threatening encounters.

Building a completely car-dependent culture has brought us to one of these dead ends. Instead of increasing our freedom of movement, we’ve limited it to where and how we construct roads. Instead of opening the planet up to our human experience, we’ve gridded it out and closed it off. Instead of learning how to make better, stronger communities, we’ve boxed ourselves into suburbs lives that are at the same time disconnected physically and hyper-connected digitally, building out of our lives the wealth of daily interactions that make community-scale social capital possible, while investing in infrastructure that makes us incredibly vulnerable to the vagaries of a planet ruled by nature. . . .

How might technology be carefully and deliberately designed to improve human existence, without wholesale rewriting of it? How do we avoid making the same mistakes with assistive technology that we made with automobiles?”

Social media, and digital technology in general, taps into our deep-seated need to connect with one another. Humans are social creatures, even the strongly introverted among us like me. Our need for connection is real. It should never have been commodified, any more than water or air or land or people should have been.

I’m tired of the wealthy and influential among us breaking all the eggs and telling us we have to accept the few omelettes that might or might not get cooked and that they might or might not eat first. The digital world is a commons, too, and we should all have a say in how it’s created and how it’s governed.

This is already monstrously long, so I’m skipping the Stuff to Read/Listen to/Watch this week except that I recommend everything I linked to in here, most especially Francisco X. Alarcón’s poetry, which you can find more of on Poetry Foundation.

I did enable the Substack Chat option. This is purely because I have no other social media and it’s a way to share things that are more ephemeral, like an Instagram photo except not. You’re not going to miss out on much without it, and so far I’m not liking the experience of trying to read full newsletters or write comments on it. There shouldn’t be any pressure about this. After all, I don’t follow any of you on Twitter! But I am using the chat option casually. It’s nice for me to be able to see everyone else’s photos.

Speaking of photos, let’s end up on an up note. This is from Yellow Bay State Park on Flathead Lake, which I drove down to visit just to get out somewhere different a couple weeks ago. I love this planet.

Subscriber chat, and next month’s roundtable with Pedestrian Space

Readers who’ve downloaded the Substack app might have noticed the new chat feature. Since I don’t have any other social media accounts (I almost went back on Twitter last summer but now am kind of glad I couldn’t bring myself to follow through), I’m curious if the chat option for On the Commons can help us all connect in more casual ways. I enabled it this week and started with—of course—asking what people are reading (I finally started Kim Stanley Robinson’s Mars trilogy).

I have a feeling I might be using the chat to talk more about walking and walkability, as well as private property, the commons, and trespassing. A lot of the photos I take but don’t get around to using on the newsletter are related to walking infrastructure and car-centric culture. It’s something I could write a lot more about, but since I wrote a whole book about it—which, you know, I think is actually pretty good if you feel like reading something on that subject!—it feels like I’m repeating myself a lot of the time. And without social media, there’s not really a way to share short observations of things like missing crosswalks or sidewalks closed for construction (there is always a sidewalk closed for construction).

Anyway, it’s there if you want to join! You’ll need to download the Substack app (messages are sent via the app, not email). From what Substack has said, this feature is in beta, so you might not see it yet on all the newsletters you subscribe to. Annoyingly, it looks like the chat function is only for iOS (Apple devices). I think all of you who’ve commented that Apple-centric apps are like a walled garden are probably right.

Here’s Substack’s explanation of how to get started:

How to get started

1. Download the app by clicking this link or the button below. Chat is only on iOS for now, but chat is coming to the Android app soon.

2. Open the app and tap the Chat icon. It looks like two bubbles in the bottom bar, and you’ll see a row for the chat inside.

3. That’s it! If you have any issues, check out Substack’s FAQ.

And . . .

On December 9th, I’ll be joining Pedestrian Space for a roundtable conversation about walking and walkability. To join, you can tell me and I’ll send your email to the organizer, Annika Lundkvist.

These roundtables are very small and probably tend toward the more policy-wonky or granular end of advocacy. But I wanted to mention it because Pedestrian Space is well worth following even if you’re not interested in the roundtable. It’s a very cool organization headquartered in Warsaw, Poland, that advocates for pedestrians worldwide—especially through its Global Walkability Correspondents Network—and is supported by the Schumacher Institute. If you’re despairing of the world, connecting with walkability advocates is a great way to give yourself some hope.

That’s all! I’m hoping to give some book progress updates soon. I’ve been waiting on an interview that I think is necessary for one of the stories in there, and for a visit to the ranch that my mother grew up on, which might take a few months to organize.

A review of Simon Winchester’s book “Land”

The following is, as promised, a review of Simon Winchester’s most recent book Land: How the Hunger for Ownership Shaped the Modern World. I haven’t published a review on this newsletter before and don’t intend to make it a regular thing because I prefer to talk about books within the context of ownership, the commons, and humanity. Not that I don’t enjoy writing reviews—I do—but I avoid them for the same reason I avoid writing about feminism and misogyny: they make me full of either rage or a kind of fierce, burn-it-all-down joy, and other writers channel those feelings better than I’m able to.

I used to write book reviews for a travel website but haven’t in many years, and a long time ago decided not to write any more reviews of books I didn’t like. Land is an exception.

I’ve long admired and enjoyed Winchester’s work, from The Professor and the Madman to Calcutta to a recent essay in The American Scholar on the generosity of travel writer Jan Morris. Unfortunately, Land exposes Winchester’s persistent colonial worldview in a way that even this author of twenty- or thirty-some books can’t narrate his way out of.

While Land explores the many ways in which ownership is made possible, from surveying to cartography to imperialism, it leaves unasked the question of why humans crave land ownership in the first place. Why do societies insist on perpetuating a legal fiction that plays such a deep structural role in solidifying and widening inequality and injustice? Winchester has no answers and doesn’t seem very curious about the question.

Leaving out the initial why? creates a fundamental problem for the rest of the book. Without examining that impetus, it’s easy to gloss over the consequences of this millennia-old myth for the majority of humanity, much less for the rest of life on the planet. Winchester includes a number of stories referencing dispossession of Indigenous lands in North America and New Zealand, but the stories feel perfunctory when they should be central. He tells the facts—and very often only those—but frames them in a way that presents these histories as inevitable and, worse, Indigenous people as passive bystanders.

It is impossible to talk about private ownership of land without spending a significant amount of time on the inherent violence necessary to convert a landscape into real estate, yet somehow Winchester manages it, not only grossly simplifying complex stories of land dispossession in North America but ignoring almost the entirety of English and European land hoarding by the nobility through enforced serfdom and private enclosure of common lands.

Every review I’ve found of Land has lauded Winchester for his centering of Indigenous people worldwide. And it’s true, I think, that these stories are highlighted in a way that they seldom have been by a well-known white writer. In a way, that makes his approach all the more egregious. It makes it seem like telling the stories is enough, that no examination of the ongoing injustices needs to happen.

In Andro Linklater’s Owning the Earth—a book Winchester acknowledges as foundational for his own thinking and research—the author wrote that, “The idea of individual, exclusive ownership, not just of what can be carried or occupied, but of the immovable, near-eternal earth, has proved to be the most destructive and creative cultural force in written history.” It’s this kind of perspective that is missing from Land.

Overlooking the destructive effects of private land ownership allows Winchester to ignore his own biases, which become obvious shortly into the narrative. The book is full of phrases and words that led me to plaster it with Post-It Notes on which I wrote, simply, “WHAT???” rather than a useful note-to-self to refer to later.

The language he uses to describe people, cultures, and the process of dispossession and theft are both colonial and generalized. That’s at best. I’m trying to be generous here. Winchester’s finest and most detailed writing is saved for measuring, dredging, and building, the engineering- and thing-centered subjects that he has excelled at in previous books. Dispossession, theft, and colonization are treated with a few broad strokes and more than a few stereotypes. Again, that’s at best. By page 18, I was already sending snippets to a few writer friends to see if my outrage at Winchester’s perspective was over the top:

“The relict Schaghticoke did not merely leave, however, but clung on in the naïve hope that one day, treaties would be honored and promises kept. But they never were; and today the rump of the tribe, with a few hundred others scattered wide and bickering among themselves, are reduced to living in a cluster of shacks on the flood-prone banks of the Housatonic, constantly in and out of court, pressing in vain their claims for land long ago given to a local school and the state power company.”

Relict. Naïve. Rump of the tribe. Reduced to living. Almost every bump of every sentence in this passage—and it continues for another two-thirds of a paragraph—is nailed with language that dehumanizes and demeans, and more than that, it and other passages get hammered down in absolute ignorance of history. Is it naïve to trust that a government will honor its treaty obligations? One could argue that perspective in the case of the United States (why not write, then, about how egregiously treacherous and shitty that is, about a government so dishonorable and thieving that it’s naïve to trust it? Why skip right over that part?), but even if it is, that isn’t what happened. There is plenty of scholarship out there detailing the ways in which Native American nations fought for land and people—legally, politically, diplomatically, and physically—but Winchester fails to make the slightest effort to question his own assumptions. Nor does he seem to have any knowledge of the Landback movement, which was hardly new when he would have been writing this book. Why can’t the local school and the state power company return the land? It doesn’t occur to him to ask.

Recent books such as Nick Estes’s Our History Is the Future have skillfully laid out the betrayals of the U.S. government in particular and white European colonizers in general whose “success” in “settling” North America consisted of killing off as many Indigenous people as possible whether through disease or massacre; repeatedly refusing to honor treaties that the government itself had insisted that Native nations agree to; and, when nations refused to give up land that was meant to be solely theirs by treaty right, took their children away and sent them to boarding schools until they complied. There is nothing naïve in any of this.

No matter how sympathetic his perspective, Winchester never manages to write about Indigenous people as anything more than passive observers of history. Repeated use of the world “bewildered” leaves the impression that Native people have been confused, innocent, placid, and, again, naïve. The Sioux leaders were “bewildered” during 1858 treaty negotiations, and the reservation today “forlornly advertises itself as ‘the Land of the Friendly People of the Seven Council Fires of 1858.’” Forlornly advertises. A colonial viewpoint if there ever was one.

Colonial remains Winchester’s worldview. There’s a bare smidgeon of consolation in the fact that he uses similar characterizations for tenant farmers forced off of lands in Scotland during the Highland Clearances. The Clearances were born from the enclosure movement that started centuries ago and stole the commons from the people of England; they were their own iteration of colonialism:

“Lord Stafford, as he was then still known, forcibly and cruelly removed thousands of crofters from their pitiful smallholdings and settled them, mulish and unwilling, scores of miles away from home.”

Pitiful. Mulish and unwilling.

I’ve worked with words almost my whole life—certainly all of my professional life. Being a copy editor is in some unexpected ways akin to being a poet, only in that the precision of language matters a great deal. In my own writing, I’ll sometimes stare out a window or go for a walk in search of the right word; when I’m copy editing, I do this even more frequently. I feel for the textures of words. Their nuances and the underlying metaphors. What they mean to say. What world does this word hold? is a question my copy editor self carries with her constantly.

Winchester has been a professional writer for decades at this point. He knows how to tell a story and his books are generally fun to read. He doesn’t, as far as I’ve seen, narrate in a haphazard fashion. He’s most famous for The Professor and the Madman, which is in itself a book about how much meaning any given word can hold. I don’t think he intends to be demeaning, but everything about his approach in Land is a choice that reflects how he sees the world, and that includes how he writes about people.

These choices are made worse by the fact that Winchester doesn’t seem to have interviewed a single Indigenous person for this book, and with perhaps one exception (quoting Harvard professor Philip Deloria on land-stealing treaties) failed to write any of these stories from a non-colonial perspective. I have a hard time believing, for example, that this passage would find widespread agreement even among bog-standard university historians:

“The Native Americans whose lands these once were have not forgotten, nor probably ever will. But such anger as they might justly feel has long ago ebbed, and it just simmers in the far background. The notion that the United States could ever have had the effrontery to call these acres ‘unassigned,’ when in truth the republic never possessed the moral authority either to assign or unassign them, here or anywhere else, is mostly forgotten today. The world has moved on.”

[Me on a Post-It for the umpteenth time: WHAT???]

Winchester published these lines despite the fact that the 2020 McGirt v. Oklahoma U.S. Supreme Court decision essentially restored 1866 treaty boundaries and reaffirmed the Muscogee (Creek) Nation’s sovereignty over tribal members on that land. (This decision was appealed yet again and has found a court more friendly to continued settler-colonialism.) While the decision likely would have come after Land was already in the editing process, the case was originally heard in the Tenth Circuit in 2017 and the Supreme Court agreed to an appeal petition in December 2019. Since he had a whole chapter on the colonization of Oklahoma, he’d almost have had to work at not knowing about the case while writing this book.

To say that land dispossession had been “largely forgotten” is simply untrue. While many people might have been unaware of these cases or the issues at stake, Native nations certainly haven’t been. And they are central to anyone purporting to write authoritatively about land ownership in North America. To overlook them is simply sloppy research.

Should I give Winchester more credit for at least trying? Maybe. But every time he writes about these histories, his tone is patronizing and he seems uncomfortable. In the passage on Francis Drake landing in (probably) what is now northern California, Winchester clearly wants to frame Drake’s claiming of the “whole land unto her Majesties keeping” as an injustice inflicted on the Miwok nation. Yet that history is briefly covered in a few lines. He spends a great deal more time and detail on the queen’s knighting of Drake in 1580. It’s in describing Drake’s ship and voyage and knighting where his language flows. When he writes about the actual consequences of these actions and choices, he reminds me of me when I was writing the robotics sections of my book on walking: pained.

I write a lot about being compassionate and kind—yet another reason why I don’t like to write book reviews anymore—but I write about those because I struggle so much with them. Truthfully, I am tired to the core of giving people with enormous privilege credit for simply trying. Try harder.

The effect of reading Land is at best one of psychological whiplash. His research, while extensive in the realm of cartography, overlooks, for example, the significance of the 1823 U.S. Supreme Court decision Johnson v. M’Intosh, which stated among other things that:

“Not only has the practice of all civilized nations been in conformity with this doctrine,* but the whole theory of their titles to lands in America, rests upon the hypothesis, that the Indians had no right of soil as sovereign, independent states. Discovery is the foundation of title.”

* The Doctrine of Discovery comes from the 1454 and 1493 papal declarations that gave right of ownership over land, resources, and people to European Christians who “discovered” them

Not only did Johnson v. M’Intosh state that Europeans have title by automatic right to all North American land due to discovery; it also stated that, since Native nations supposedly had no concept of private ownership, they could never have been qualified to hold property title in the first place. This second declaration is a circular and self-referential decision that made white settler ownership of land a fait accompli no matter which way you looked at it.

More recent cases, too, such as City of Sherill v. Oneida Indian Nation of New York, which was decided by the U.S. Supreme Court in 2005, used the Doctrine of Discovery to decide that the Oneida Nation could no longer claim sovereignty over land it had legally purchased on the open market:

“Under the ‘doctrine of discovery,’ . . . ‘fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign—first the discovering European nation and later the original States and the United States.’”

In other words, the Oneida Nation could buy the land, but not claim sovereignty over it. That decision was written by Justice Ruth Bader Ginsburg, which is why, as much as I respect her work and legacy, I’m not a total fan. (The Indigenous Values Initiative has a good explainer of this case.) These cases and their lasting consequences matter tremendously in the question of land ownership. They show its foundations to be full of rot and racism, but Winchester doesn’t go anywhere near them.

All of this is before we even get to his failure to address what is purportedly the topic of the book: land ownership itself.

Winchester barely touches land ownership’s genesis. He claims at one point that ownership in England began “with the lines of furrows left behind by the ploughs of neighbors, probably fourteen hundred years before the birth of Christ.” Which is, not to put too fine a point on it, ludicrous. Maybe this was how a form of ownership was practiced, but it’s just as likely that a form of commons land-sharing was in play, as it has been all over the world and for which there is plenty of research that Winchester doesn’t seem to care to glance at. Even though, again, he credits Linklater’s Owning the Earth, which is entirely about how land has been shared and how private land ownership destroyed various systems of commoning worldwide.

Land is a mess of a book. Which is a pity. It covers a lot of important and widely neglected histories, like the forced collectivization of farms in Ukraine under Stalin’s Soviet Union, which led to the starvation of millions in what is known as the Holodomor. It delves into how Americans of Japanese descent left the U.S.’s concentration camps after World War II to find that white people had stolen their land and businesses. It unfolds the destruction of vast areas like the Marshall Islands in the 1950s, sacrificed to the U.S.’s nuclear weapons program.

These stories are important, and I’m glad Winchester wrote about them. That doesn’t erase the fact that too much of this book is written by a man stuck in time, in a mindset and worldview that his words can’t hide. Maybe I should be more generous. But what I take from this book is instead a reminder to myself: Try harder.

In Our History Is the Future, Nick Estes makes the firm and repeated point that massacres, thefts, and betrayals of treaty obligations had one aim: to turn land into private property. The heart of ownership is that something is mine—not yours and most certainly not ours. This process isn’t accomplished, as Winchester seems to wish, by interesting endeavors to measure the planet or map geographical contours. It’s accomplished with violence. To gloss over that in a book on ownership, in this day and age, is unacceptable.

Two more gripes:

I am utterly confused by Winchester’s lines in a paragraph promoting pre-Colombian American culture and civilization: “Native Americans are all, it should be remembered, genetically related to those who twenty thousand years ago crossed by way of Beringia, the land bridge across the north Pacific between eastern Russia and western Alaska. Native Americans are, genetically, a Pacific people. They are, in essence, an Asian people.” First off, did he talk to a single Native American person about this? And secondly, try as I might, I can’t find a way to read this entire passage as anything other than Winchester saying, “These people must be civilized because they’re Asian.”

I would also like to take issue with his statement that, “No American, so far as I am aware, ever professed a deep and unsullied affection for the USGS topographical sheets that it is possible to order from the government agencies.” I’ve written about my own childhood obsession with my mother’s collection of topo maps in several places, I think even in my book about walking somewhere. I’m sure I’m not the only American who has a deep affection for those maps. Maybe, as with so many things in this book, he didn’t bother to ask.

Walking composition

“Soul, self; come, poor Jackself, I do advise
You, jaded, let be; call off thoughts awhile
Elsewhere; leave comfort root-room"
—from "My own heart let me more have pity on," Gerard Manley Hopkins

A couple of mid-mornings ago I was sitting at a table with my younger sister, her two little girls, and my daughter, playing an interminable game of Unstable Unicorns. I glanced up from my hand with the two “Neigh” cards I kept forgetting to use, when I lost control of words and patted my daughter on the arm enthusiastically several times before spitting out, “There’s a fox on the porch!”

My daughter has been hoping to see a fox in person for ages and thought I was joking, but no. It was right there looking at us through the window. I’ve seen a number of foxes even just around our town, but she somehow always misses out.

We were staying at a Forest Service cabin in Montana’s North Fork valley, no internet or electricity or running water, and it just trotted up during our card game. We all put our cards down and padded from window to window as the fox tracked around the cabin, watching it until it disappeared back into the woods.

One of the most famous and pivotal property law cases in U.S. history, the 1805 case Pierson v. Post, involves the hunting of a fox. I have no interest in hunting foxes (I only hunt for food, and not very successfully at that), but the legalities of that particular case have staying power for a reason. They hinge on the question of what grants ownership: labor or possession? Was it Post, who was hunting the fox, or Pierson, who actually killed it, who owned the animal in the end? New York State Supreme Court reversed a lower-court decision in Post’s favor and granted ownership to Pierson. The written decision reached back through centuries of legal thinking, drawing even from the Byzantine emperor Justinian I.

Law students—and people like me who read too much about this stuff—can get hung up for ages arguing about Blackstone and Locke and whether it was the labor of the hunt or the person who had physical possession in the end that determined ownership. Labor and possession are two keystones of property law.

Yet none of us asked: What about the fox herself?

How can ownership really be debated or discussed without considering whether every entity has rights in and of themselves? To exist, to wander freely, to sniff around a porch for food humans might have neglected to store. To decide they don’t want to hang out and play Unstable Unicorns.

The five of us were staying at this cabin in my usual run-away-from-election-news routine. I have an unfortunate emotional reaction to elections. I’m sure it’s not uncommon, but it’s exhausting and also completely useless to be refreshing news every few seconds, tracking outcomes to events that I have zero control over. A couple of years ago I started booking cabins far away from internet service over election days, and hope I can keep doing that as long as Montana still has early absentee voting widely available. Which might not be long.

When we drove up to the cabin, my sister said, “Are you f—ing kidding me?” in response to the stunning view, and I said, “When do they light the beacon fires?” because it really did look like that scene in the movie version of Lord of the Rings. This is from two people who live barely an hour’s drive away and grew up here. You’d think we’d be used to the beauty. You’d be wrong.

But I don’t just engage in this ritual so that I can get away from it all and admire the view. I persist in it because I want to spend that day reminding myself of why I care. I’m not interested in politics because I’m into politics. I’m interested, and emotionally invested, because I care about this world we all share, these ecological and social and spiritual commons. Going away to a silent river valley, spending all night feeding the wood stove every hour because it’s well below freezing, watching the sun rise over the mountains, being surprised by a fox—these things remind me why I volunteer in my community, why I encourage people to attend school board and city council meetings now and then, why keeping places like the North Fork free from too much human development is important, why the political bent of my home county breaks my heart all the time, and has done since I was a teenager.

It also reminds me that my heartbreak isn’t even a noticeable microbe in the span of geological time.

A few years ago we visited Zion National Park in Utah, another place of surreal beauty. I stopped on a trail to observe the facing cliff for a while, so tall it felt unreal. All that orange- and red-tinted rock, and somewhere deep down in the face, a single, narrow band of black. How much time did that band represent in the hundreds of feet of stone surrounding it? A thousand years? Ten thousand? Everything that happened in a span of time far beyond humans’ ability to grasp, pressed into that one bit of different-colored rock, a tiny note for future observers to see: Something happened here. For millennia. And yet in the vastness of geological time it barely left a mark.

Several hours after the fox left us, alpenglow from the sunset hit the snow-covered peaks of Glacier National Park (pictured below), looking deceptively like a sunrise, and barely forty-five minutes later the full moon rose behind them (pictured at the top of this post), covering the entire valley with the kind of unfiltered sky-light I sometimes forget exists, and we all stood in our pajamas and watched it, our breath spilling out into the frozen air.

I thought about the fox’s visit, and Pierson v. Post and the question of property, and how long ago it was that some humans decided to claim ownership over others—water, wildlife, women—and then create justifications for such claims through centuries of philosophical, religious, and legal argument. What could change if we inverted that relationship? If we started from an assumption that all beings own themselves, that every being has agency and choice?

Our lives are so short. The events that shake our worlds so brief, against the timespan of stone. No matter what is forgotten of these times—eventually, everything will be, and everything for hundreds and thousands of years on either side of us, even foxes and Unstable Unicorns—it still matters how we care for one another. How we practice kindness, how we love, how we watch the moon rise and whom we share it with.

The joys and the pains are not everything, but they are not nothing.

Some stuff to read or listen to:

• Science writer Sarah Boon had a piece recently in Electric Literature on 7 books about trees and humans’ relationship with them written by women.

• A reader on the recent post about Simon Winchester’s book Land linked to this story about a beautiful-sounding piece of filled land in Toronto that has become a haven for birds, butterflies, and, as is true of all such places, people.

• In September’s High Country News, I really loved this essay by Madhushree Ghosh that weaves together a story about Indian restaurants that cater to Sikh long-haul truckers in the U.S., and the history of Sikhism in India.

• A two-part podcast collaboration between Reveal News and ICT (formerly Indian Country Today) about Native American boarding schools and the lasting individual scars and intergenerational trauma they’ve created: “[Basil was just six years old when he was brought to live at Red Cloud.] I was in a state of shock, traumatized. . . . I didn’t cognitively understand what abandonment meant, but I knew what it feels like. Being left at a school, I felt taken away from my parents. It was very traumatizing. You block your emotions.”

• Yesterday the U.S. Supreme Court heard opening arguments in a case challenging the Indian Child Welfare Act (ICWA). ICT reports on the background of this case, but for a deep dive, This Land podcast’s series in ICWA is invaluable and important.

• A timely, nuanced essay by my friend Sarah Buttenweiser on being an adoptive parent and what “choice” really means when it comes to adoption: “Books like American Baby and The Girls Who Went Away convey the terrible harm done through shame and loss of one’s bodily agency, because adoption was imposed upon a young, pregnant woman. Rather than being her decision, adoption constituted an aggressive and assaultive act of family separation.”

• Kind of a random tangent, but as alpenglow is always a fascinating phenomenon and not everyone will have the chance to see it in their lifetimes, it’s interesting to read about what causes it. Landscape photographer Dan Bailey has a post explaining why he thinks it’s caused by direct sunlight, contradicting than the usual explanation of indirect light from the just-set sun.

Threadable-adjacent reading discussion on land ownership

Last week’s Threadable reading* was a selection from Simon Winchester’s book Land: How the Hunger for Ownership Shaped the Modern World: pages 101-121 (Part II: Chapters 1 and 2).

*(https://threadablenative.page.link/Rxp8yegeZ1vXy4u19 if you want to try Threadable and need the link! Only works on iOS/Apple devices for now. For anyone new to On the Commons, an overview of this 12-week project is here.)

This book is not on archive.org nor is there a preview on Google Books or anywhere else that I can find. But I’m sure it’s widely available in libraries if you would like to read the selection.

I wasn’t originally going to include Land in my Threadable selections, mostly because I deeply disliked the book. (I am working on a review of it that will explain why more fully, and will share that later this week or early next. Generally I’m a Winchester fan, but am wondering if I’d think differently of his earlier books now.) But it does go into detail about a number of land ownership and theft injustices that few others have written about, which makes it important on its own, even with its flaws: the theft of land owned by Japanese-Americans when people were forced into camps during World War II, for example, and Stalin’s forced collectivization in Ukraine that resulted in millions starving to death in the Holodomor.

The reading from Land is a crossover selection that is also going to be used in Mike Sowden’s upcoming Threadable circle on geology (he’s currently doing one on colors, or colours since he’s British, and the Rebecca Solnit selection he chose from The Faraway Nearby was breathtaking; what a writer she is). The section we chose is mostly about the Netherlands and the country’s long life in the face of a sea that wants to swallow it.

Winchester begins by discussing what he calls “new” land, such the island of Surtsey off the coast of Iceland that appeared in 1963; and the many islands frequently created in the Kingdom of Tonga.

It quickly moves to human-created habitable land, like Battery Park City in New York City and the fill that turned Stonecutters Island near Hong Kong into not-an-island. I often think of parts of Boston that I used to walk a lot when I lived there, all of which were built on fill-in land. I never liked Boston much (sorry!), but liked to wander that area because a great-grandmother (or great-great, I forget) of mine once lived there and went to the Episcopal church. She seemed to have a thing for the priest, judging by the clippings in her scrapbook. Though by “a thing,” I mean she seemed very inspired by his sermons.

The bulk of this selection from Land is about the Netherlands, though, and its centuries-long efforts to keep its lands . . . land. That is, solid ground. Especially over the last century—Winchester’s most focused writing here is on the dam built to wall off the Zuider Zee and bring in people to populate and farm the newly available land. He goes into a fair bit of detail on how important it was that the land not just be populated, but privatized, and by the “right” kind of people, though he never really talks about what that means aside from a religious balance that reflects the country’s split between mostly Catholic and Protestant.

This reading selection demonstrates many of Winchester’s strengths, as well as his weaknesses. As I commented within Threadable, he’s at his best when describing these kinds of big technological projects—it’s what made The Map That Changed the World such a compelling read—but turns out to be on less solid ground when talking about impacts of these activities and choices on people and the rest of an ecosystem.

Which also brought to mind something I think about maybe far too often, which is how Singapore is slowly growing in physical size by mining sand from Cambodia, putting the lives and livelihoods and ecosystems of many Cambodian islanders at risk. (That link is to a 16-minute documentary on Aeon, well worth watching.) What does it means to “reclaim” land? Or to build “new land”? At whose cost? Not just human, but everything.

It was interesting to read about the work on the Zuider Zee and Holland’s polder system that refers specifically to land “reclaimed” from a river or the sea. What I found myself stumbling over was a lot of human-centric language and assumptions about what “progress” really means, so some questions I’ll leave you with:

• What do we mean by “reclaimed” land? It seems obvious that it means “land humans couldn’t previously live on permanently but now can,” but how would we think about this with a deeper understanding of ecology and how we might live within ecosystems?

• Winchester barely touches on how climate change might affect some of the places he discusses (having been through the book process, I did wonder if his editor prompted these questions and he squeezed in some thoughts), but it’s worth talking about more. How much do you invest—with time, money, materials, and energy—into keeping nature at bay?

That’s it! I’m going to be spreading these readings out just a touch more—more like 10 days rather than a week apart. Please tell me if you’d like even more space between these posts, too. There’s no deadline. This isn’t a class or a course. Land ownership will be here, unfortunately, long after I’m dead. And nobody benefits when I dictate a reading pace.

My part of Montana has turned snowy and bitterly cold. Just the way I like it. Unfortunately, it also resulted in a lot of broken tree limbs, downed trees, and power outages. A mixed bag. I hope wherever you are reading this, you have weather that breathes life into you.

Walking composition

“It doesn’t make you a hero just because everybody else didn’t do their job.” —A Wizard’s Guide to Defensive Baking, T. Kingfisher

Hunting season has started in Montana (rifle season, that is; archery season opened ages ago but I am not a bow hunter), which means I’m constantly distracted these days by getting ready to go into the woods, wishing I were in the woods, or being in the woods. Though that last hopefully means I’m being attentive rather than distracted.

I love hunting. Not because I love the potential moment of violence inherent in the process; I love it because the attention required is so achingly slow that it feels like it sinks into the soil with the moss and fallen leaves. It could become part of the earth’s humus if you stayed there long enough. Every step has my attention, every breeze-danced branch from the trees, every hint of tan color around the bend of a hill. The way I breathe, the way my braid brushes my coat if I’ve forgotten to clip up my hair. How cold my hands are, how heavy the rifle is on my shoulder. The twigs and fresh deer poop and carpet of larch needles underfoot. The scolding squirrels and the arrival of winter one slow-falling aspen leaf at a time.

Every now and then I come upon a flock of chickadees twittering and flickering wildly among a clutch of trees, which was what happened on a recent afternoon as I walked in the rain and the light slowly faded from the woods. So I sat on a hillside and watched them fly around until sunset neared with no deer in sight and the wet, chill air sank through my layers and I wished I could stay all night.

Light rainfall in the woods.

Threadable-adjacent reading discussion on land ownership

Last week’s Threadable reading* consisted of two documents:

• The original Charter of the Forest, a companion document to the Magna Carta, signed in 1217 by the regent for King Henry III and reaffirmed by Henry III in 1225; and

• Two excerpts from Pace University law professor Nicholas A. Robinson’s book chapter “The Charter of the Forest: Evolving Human Rights in Nature” (Part I: Introduction: The Forest Charter in a Nutshell, starting on page 317; and Part IV: Substantive Provisions of the Forest Charter, starting on page 339)

*(https://threadablenative.page.link/Rxp8yegeZ1vXy4u19 if you want to try Threadable and need the link! Only works on iOS/Apple devices for now. For anyone new to On the Commons, an overview of this 12-week project is here.)

Both of these documents are freely available online through the links above. The original Forest Charter is straightforward in its provisions but challenging to read due to the arcane and obsolete language; the second selection (Part IV) from Robinson’s legal paper lists its provisions in (mostly) plain modern English.

I spent some hours last week looking up and defining words like swanimote and freemen (the rights detailed in the Charter are for “freemen”—that is, not serfs, who were considered property; one medievalist estimated that only about 1 in 5 English men at this point in time would have been freemen, and I won’t go into the status of women because I’ll just get sidetracked by rage).

An entire list of these definitions would be a lot of clutter-text, so I’ll just define a few important ones. Feel free to ask for any others in the comments if you want or need and I’ll answer there.

• forest: “The Norman definition of Forest extended beyond wooded areas and was used to describe any rural area that contained useful natural resources such as wood or peat, or where animals that provided game for sport and meat for aristocratic tables resided. These areas were often enclosed and became the exclusive property of the Angevin royal family. This state of affairs existed as a result of a perversion of the Norman forest laws that had been imported by William the Conqueror and applied to his new Kingdom of England in 1066.” (This is from an article by medievalist Timothy R. Jones on the lasting importance of the Forest Charter: https://www.medievalists.net/2020/02/charter-forest/)

• afforested/disafforested: “Afforestation” was the practice of expanding Royal Forests; “disafforestation” was forcing the monarch to give up lands they’d previously claimed as Royal property. Almost a third of England had been claimed as Royal Forest by this time, and disafforestation was one of the main purposes of forcing Henry III to sign the Charter of the Forest.

• swanimote: “A court formerly held before foresters, verderers, and other forest officers to try offenses against vert and venison and to hear grievances against forest officers.” (Oxford English Dictionary; also: vert is greenery, and venison, according to one source, applied to any game animals of the forest, not just deer—rabbits, for example)

• lawing of dogs: “The cutting of several claws of the forefeet of dogs in the forest, to prevent their running at deer.” (Black’s Law Dictionary)

• demesne: “Possession (of real estate) as one’s own. Chiefly the phrase ‘to hold in demesne’ (tenure in dominico), i.e. in one’s own hands as possessor by free tenure.” (Oxford English Dictionary, definition of demesne as related to the law)

(I love the richness of words, so didn’t mind doing this and don’t mind doing more if you can’t find something. Part of me still just wants to be an etymologist.)

This note I left on Threadable gets at one of the reasons I think the Charter of the Forest is so important for people to get to know:

The Forest Charter is a crucial document because it’s an early example of how fluid private property rights can be, and how much people disagreed over claiming and enforcing of those rights even 800 years ago. William the Conqueror simply declared vasts sections of common land to be Royal Forest, starting in 1066, and subsequent kings expanded those claims. Literal bloody battles were fought to push back on royal assertions over land.

Getting Henry III to sign the Charter of the Forest (in 1225—his regent had initially done so in 1217; Henry was 9 years old at that time) and agree to disafforestation wasn’t the last of these battles. In the parts of Nicholas A. Robinson’s paper that isn’t in the reading, he goes into detail about these power struggles over the centuries. Extensive afforestation was one of the major complaints against King Charles I that led him being beheaded, for example.

Getting a good grasp of what rights of sustenance and land English people nearly a thousand years ago insisted they had feels necessary to getting our heads around the idea that, whatever the dominant culture currently thinks of as private property rights over land, they have always been subject to change. Not only that, but defining the parameters of those rights spills out into many other areas of our lives.

Robinson’s paper focuses on this legacy. He writes about how the Forest Charter informs modern environmental laws, but more importantly—to me—he focuses on the ways in which the practice of defending the Charter of the Forest and the subsistence rights it details was the means by which the more abstract human rights listed in the Magna Carta were also defended and defined. For most of the past 800 years, he says, the Forest Charter was the more well-known and important of the two documents. It was the crucible in which human rights were shaped.

Some questions and thoughts I left in the Threadable version of the readings:

• What is the relationship between physical rights and more abstract rights? How do these interactions relate to land access or lack thereof? (It seems to me that it’s hard to have rights of freedom if you aren’t also guaranteed rights of survival.)

• Related to that, where does law come from? Reading these documents, it felt to me that laws are first born out of interactions with the physical land we live on and with—and all the other people who do the same.

• How might a study of the Forest Charter change how we view property law? Should property law have embedded in it a right of survival for everyone else? What about Rights of Nature?

• Could different societies be served now by modern equivalents of the Charter of the Forest, maybe centered around management of commons?

Take your time with these. The struggles over land ownership, property rights, and rights of subsistence have been going on for an unimaginably long time, and none of them are going to come to a resolution next week. Or next year. Or next millennium, probably. But better understanding their roots might help us envision a different way forward.

Next week’s selection will be from Simon Winchester’s new book Land: How the Hunger for Ownership Shaped the Modern World (Chapters 1 and 2 of Part II). After that, we’ll be delving into the 1823 U.S. Supreme Court case Johnson v. McIntosh, its progenitor the 15th-century Doctrine of Discovery, and the ongoing consequences of both.

A little private property trespass to start your week with.