Property’s More-than-Human Personhood

For there is no creature whose inward being is so strong that it is not greatly determined by what lies outside it.^[1]

–George Eliot

I. Introduction

It was international news when New Zealand’s Parliament, in a 2017 settlement of Māori land claims, acknowledged the Whanganui River “and all of its physical and metaphysical elements” as part of Te Awa Tupua, “an indivisible and living whole from the mountains to the sea.”^[2] In case the intended legal effect of that declaration wasn’t clear enough, the document goes on to state flatly that Te Awa Tupua “is a legal person and has all the rights, powers, duties, and liabilities of a legal person.”^[3]

Around the world today, law’s relation to nonhumans is being reimagined in widely varied national and cultural contexts and at different levels of government.^[4] Various press sources ballyhooed the Whanganui as the first river to become a person.^[5] But, in fact, more than a decade earlier, the borough council of Tamaqua, Pennsylvania, a town of about 7,000 midway between Pittsburgh and Philadelphia, declared that “natural communities, and ecosystems shall be considered to be ‘persons’ for purposes of the enforcement of the civil rights of those . . . natural communities, and ecosystems.”^[6] Since then, “rights of nature” ordinances have popped up all over the United States, from Cleveland, Ohio to Santa Monica, California to Orange County, Florida.^[7] The explicit recognition of other animals, and even landscape, as rights-bearing legal subjects has been called a “legal revolution.”^[8] Doubtless, the modern Western worldview generally sees “nature” as a resource for human use.^[9] Nevertheless, I will argue here that the rights of nature “revolution” is not entirely at odds with traditional Anglo-American legal doctrine.

In the United States, reactions to explicit grants of “environmental personhood” vary from consternation to celebration.^[10] To many political conservatives, legal rights for water are a crackpot illusion or a devious lawyers’ trick that threatens the legitimate property rights of law-abiding humans. As the Florida Chamber of Commerce puts it, “[y]our local lake or river could sue you? Not on our watch.”^[11] To liberal environmentalists, on the other hand, rights for rivers look like the next step forward in a long march of modern moral progress, and a progressive rejoinder to the U.S. Supreme Court’s recognition of corporate rights of personhood.^[12] If rights offer protection against arbitrary power, why not extend them to the natural world?

What both liberals and conservatives agree upon is that recognizing nonhuman legal subjects is an entirely new idea in Anglo-American law. A famous 1972 essay by Christopher Stone is frequently cited as the first argument for natural nonhuman legal rights.^[13] Proposing that rivers and trees should have standing to sue, Stone asserts that they “have traditionally been regarded by the common law, and even by all but the most recent legislation, as objects for man to conquer and master and use.”^[14] Thus, even proponents of nonhuman rights generally take for granted that Western legal systems inscribe a basic impermeable boundary between human subjects and their objectified world.

This Article challenges that claim. I argue that in classic, conventional Anglo-American legal culture, the line between persons and property is often vanishingly thin. So thin, in fact, that things and persons, humans and nonhumans, cross back and forth—not as bizarre anomalies that diverge from the usual way of looking at things, not as exceptions but as standard cases, examples of the way ordinary doctrinal rules work. Drawing on that most canonical source, Blackstone’s Commentaries, I will offer examples from traditional English common law at the time of the American founding.^[15] And I will point to ways in which twenty-first-century legal structures continue to treat legal persons and property not as discrete categories but as different positions in an ever-shifting network of relations in which one’s identity as a rights-bearing owner or an object to be owned is open to change.

It might seem unlikely to find more-than-human personhood in Anglo-American property law.^[16] After all, this is a corner of legal culture perennially viewed as enabling exclusive human control. But that is my project here. It’s undeniable that mainstream property law can be read to embody a dualistic system of human domination over an objectified natural world. I want to show, however, that longstanding conventional legal structures also can accommodate a worldview that recognizes a kind of agency in other-than-human beings.

Sir William Blackstone’s foundational eighteenth-century account of English property law is often said to promote absolute individual sovereignty over territory and resources.^[17] But reading Blackstone’s Commentaries without this preconception, one finds a legal scheme in which human beings are not always on top of a property-person hierarchy. True, Blackstone opens with an evocation of just such anthropocentric control. He declares that nothing “so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world.”^[18] But it seems the operative word here is “imagination.” In the complex common-law system Blackstone goes on to describe, individual humans often come across as less potent than the landscape they inhabit, relatively ineffectual compared with “real property,” that is, property based in things that are “imagined to be lasting.”^[19] Meanwhile, the “permanent and immovable”^[20] land turns out not to be a “natural object”^[21] at all, but some strange combination of physical and “incorporeal”^[22] entities that is both a source of legal rights for humans and at times a kind of agent with the power to affect human behavior.

Current legal structures continue to muddle the line between human owners and nonhuman objects of property. For instance, easements are rights of access and use that “run with the land,” and so restrict what human landowners can do with their property.^[23] If rights-bearing is the signal characteristic of legal subjects, then through such “appurtenant” easements, land, the paradigmatic object of property law, begins to acquire agency.

My Article focuses on mainstream Anglo-American legal sources, but it is informed by other areas of inquiry, theory, and imagination. Critiques by political theorists and philosophers and accounts of Indigenous ontologies by Indigenous and Western anthropologists frame alternatives to the mainstream dualistic worldview.^[24] This literature sets the stage for a less anthropocentric reading of law. After considering some ways more-than-human agency emerges in these writings, it becomes easier to catch how familiar legal doctrines sometimes blur the boundaries between property and personhood, and how, like persons in many Indigenous cultures, all legal persons are at once made and found.^[25]

To be clear, I am not claiming that it is wrong to see Western property law as anthropocentric, just that it is not the only possible view. Most lawyers and scholars interested in envisioning “more than human law,” focus on the ways conventional legal authorities construct a world geared toward human domination.^[26] I have no quarrel with that analysis, except when it insists that conventional Anglo-American law is necessarily dualistic and anthropocentric, and so renders the potential legal agency of nonhumans entirely exotic. Such essentialized critiques obscure the potential for more-than-human subjects to emerge in current and historical Anglo-American legal rules, concepts, and systems. I want to bring that potential to the surface.

Nor am I defending the way current Western legal systems treat relations among humans and nonhumans, and between white Western settler cultures and Indigenous societies and individuals. The point is not that “every thing [is now just] as it should be.”^[27] Property law has been, and continues to be, an instrument of violent dispossession and subjugation. The point is rather that the legal structures leveraged in those projects are not necessarily, inherently geared to produce domination by one group of humans over nonhuman others. Overlooking, or denying, the way agency emerges out of relationships with a vital more-than-human world has been one way of facilitating Western domination of both non-Western humans and nonhuman others. I am interested in destabilizing those projects by recovering the reciprocal quality of conventional legal personhood.

The notion of a river as a legal person strikes us as peculiar at least partly because it seems antithetical to the way we think our legal system normally works. Just by showing that some long-accepted property law doctrines—adverse possession and easements—can be read to suggest a kind of legal agency for land, I am pushing back against the supposed exoticism of recognizing rights for rivers and land. The main point is that we do not have to tear down the entire Western property-law system to accommodate such rights.

We may be more likely to share legal personhood—and power—if we recognize that our legal system already carries traces of shared subjectivity and agency. Origins are not destiny, but, as Saidiya Hartman observes, “when those formerly excluded are belatedly conferred with rights and guarantees of equal protection, they have traditionally had difficulty exercising these rights, as long as they are seen as lesser, derivative, or subordinate embodiments of the norm.”^[28] If we see that agency moves in and out of human and nonhuman beings in longstanding conventional legal frameworks, then we may be better able to shift away from the view that humans are the only authentic rights bearers. We may be more accepting of new legal texts and interpretations that explicitly recognize rights of personhood in nonhuman natural entities. And we may see other ways that our legal system can help to bring about more sustainable, morally responsible relationships among humans and between humans and others.

The Article proceeds as follows: In Part II, I summarize some recent philosophical critiques of modernist anthropocentrism and some analyses of Indigenous worldviews by both Indigenous scholars and Western anthropologists. Together, these sources produce an alternative relation-based understanding of interactions between humans and nonhumans. Part III applies this view to conventional Anglo-American property law, focusing on the doctrines of adverse possession and easements. It turns out that the alternative non-dualist relational lens makes sense of some counterintuitive aspects of these familiar doctrines. In Part IV, I observe that in both Indigenous and modern legal cultures, subjects and objects are created and recognized through a combination of formal performances and everyday interactions. I offer some thoughts on how subject–object relations in property law reflect the simultaneously found and made nature of all legal persons.

II. More-than-Human Worlds

Law shapes the world, and the world shapes law. Our understanding of both is built with concepts, narratives, and practices that create and reiterate familiar categories. As Victor Turner observes, “most of us see only what we expect to see, and what we expect to see is what we are conditioned to see when we have learned the definitions and classifications of our culture.”^[29] We perceive the world, ourselves, and the texts, ideas, and practices that constitute our legal system as if through a template that tends to produce familiar types, endows them with the characteristics of those familiar beings, and ignores or trivializes aspects that contradict those characters.

At least since the seventeenth century, the dominant cultural template of modern Western societies is riven by a set of splits: body and mind, nature and culture, matter and spirit, animate and inanimate. This dualistic Western worldview valorizes conscious human action and overlooks, or suppresses, the capacity of other entities to trigger, respond to, or influence human behavior. Notions of rationality, self-reflection, and deliberate intention are held to constitute paradigmatic personhood and attributed exclusively to humans. The philosopher Bruno Latour sums up the result as a world with “two entirely distinct ontological zones: that of human beings on the one hand; that of nonhumans on the other.”^[30] It is a dichotomy so fundamental that we tend not to notice it until something like a legal settlement granting rights to a river challenges it. As Nurit Bird-David points out, however, reality “does not necessarily consist dichotomously of a physical world and humans.”^[31] That is a culturally specific modern Western view. It is one approach to interpreting our experience of a complex, dynamic world, a cultural model, not a transparently accurate truth.

It is important to see that social conservatives are not the only dualists. Progressive social critics can be just as committed to the idea of an essential split between nature and culture. Unmasking false claims of natural necessity is the modern critical move par excellence, a tried and true technique for undermining claims that some social structure or other simply reflects the nature of things, rather than political choices.^[32] To debunk arguments that the hierarchical status quo is just “the way things are,” progressives become engaged in “carefully separating the part that belong[s] to things themselves and the part that could be attributed to” some social–political structure that exists only by human design.^[33] So, in the process of exposing false claims that nature dictates some inter-human hierarchy, progressives ratify natural human exceptionalism, and nonhumans wind up even deader and more empty of agency than in the conservative ideologies being critiqued.^[34] In such a world, recognizing rivers as persons looks crazy.

Of course, there have always been chinks in the modern wall between human beings and the material world.^[35] And today various scientific discourses routinely challenge the “common sense” view of ourselves as individuals acting upon an inert environment that remains entirely separate from our unique human selves. For instance, biologists tell us that abundant nonhuman organisms and cells from other humans move in and out of, and are part of, “our” bodies.^[36] At the same time, many of the once supposedly distinguishing features of human culture are attributed to nonhuman animals—language, toolmaking, kinship structure, social collaboration, interspecies resource sharing in response to communicated needs.^[37] Indeed, even things we would likely still characterize as “inanimate” have been found to act in ways that were once regarded as exclusively human.^[38]

It is the job of models to simplify realities that are too complex for us to navigate. So, all models incompletely capture a lifeworld of overwhelming mystery. The dualistic Western paradigm of a separate, mindful human individual moving about in an outside world made up of other discrete entities, is not necessarily less accurate or less pragmatically useful than more holistic alternatives. But it is not the only possible view. There are other models. Where the modern Western view emphasizes separation and difference, individuality, and stable identity, ontological alternatives foreground connection, combination, similarity, and mutability. Accounts of these alternatives denaturalize the modern dualistic view of human subjects acting unilaterally in an environment of inert objects.

A. Hybrids, Actants, Assemblages, and Boundaries

In recent decades, some political theorists, philosophers of science, and anthropologists have worked, often across disciplines, to identify and critique the modern dualist worldview and to offer alternative perspectives. To these critics, the radical separation of human subjects and nonhuman objects distorts rather than reveals the world. They bring to light and reject the assumption that one gets to the heart of complex reality by separating constitutive strands, purifying experience into essentially different aspects—distinguishing nature from culture, matter from spirit, human subjects from an objective world. Rather than a discovery of the world’s constituent reality, these divisions are regarded as modern inventions, or illusions.

Indeed, Bruno Latour defines the onset of modernity as the creation of these separate categories and the simultaneous masking of that creative act.^[39] Far from a perspective offering privileged insights, according to Latour such a dualistic view can never grasp the dynamic “hybrid” world that is “simultaneously real, like nature, narrated, like discourse, and collective, like society.”^[40] For instance, “[t]he ozone hole is too social and too narrated to be truly natural; the strategy of industrial firms and heads of state is too full of chemical reactions to be reduced to power and interest.”^[41] Instead, understanding the world means giving up the modern separation of humanity from “‘nonhumanity’—things, or objects, or beasts.”^[42] Rather than a model of conscious humans as the only ensouled agents acting in and upon an inert world, Latour proposes “actor-network” theory.^[43] In this worldview humans are just one kind of “actor” or “actant,” “that is something that acts or to which activity is granted by others”—a “source of an action” that “implies no special motivation of human individual actors, nor of humans in general.”^[44]

Similarly, Jane Bennett rejects the separation of human from nonhuman, live action from dead matter.^[45] Bennett wants us to decenter individual cognition and action. Instead, she foregrounds the concerted activity of humans and nonhumans, as an “assemblage,” which she describes as “an animal-vegetable-mineral-sonority cluster with a particular degree and duration of power.”^[46] The terminology sounds highfalutin, but Bennett’s examples of assemblages in which human agency is subordinated to the “power of things” are sometimes laughably ordinary: “To eat chips is to enter into an assemblage in which the I is not necessarily the most decisive operator.”^[47]

Bennett’s assemblages are like Latour’s “hybrids”—entities, things, subjects, processes, or events that defy the modern dualist separation. Their mixed material and political/moral dimensions are at once the product of nature and culture. Unlike Bennett’s potato chips, however, the examples Latour gives of hybrids tend to be dramatic, extraordinary, weird—the hole in the ozone layer, global warming, rights for frozen embryos, whales wearing radio tracking devices.^[48] That said, the modern production of processed foods that leverage certain substances’ capacities to trigger human cravings would seem to be a paradigmatic example of Latour’s theory that the more we insist on the separation of the natural and artificial, and “forbid ourselves to conceive of hybrids,” the more we find ourselves producing monstrous combinations of nature and artifice that would be unthinkable in a society that takes for granted the interconnected hybrid nature of all reality.^[49]

More generally, Bennett proposes that we “take seriously the vitality of (nonhuman) bodies” and not assume that “the only source of vitality in matter is a soul or spirit.”^[50] She points out that it is sometimes possible to see in things we ordinarily regard as inanimate a “capacity . . . not only to impede or block the will and designs of humans but also to act as quasi agents or forces with trajectories, propensities, or tendencies of their own.”^[51] So, rather than a “tool to ‘be taken possession of if life is to continue,’” Bennett understands “food as itself an actant,” in a complex system “that includes among its members my metabolism, cognition, and moral sensibility.”^[52] To be sure, food is “not the only actor or necessarily the key operator” in this assemblage, but it is “a player.”^[53]

Understanding the world as a fundamentally holistic system entails a different approach to how we come to know that world. As Donna Haraway notes, the concept of objectivity presumes that the scientific observer’s “‘object’ of knowledge is a passive and inert thing.”^[54] But when everything is connected to everything else and humans are never outside multiple dynamic relationships with nonhuman actors, our situation inevitably affects how we learn about reality. Modern notions of objective investigation are undone. Haraway shows how some late twentieth-century science itself rejects the objective stance, and offers as an example computer scientist Terry Winograd’s “doctrine of interdependence of interpreter and interpreted, which are not discrete and independent entities.”^[55] It is an approach that rejects the rationalist model in which a “cognitive being gathers ‘information’” about preexisting “things.”^[56] And it resists the picture of a human individual looking into a natural world that can be recognized, represented, and owned. Instead, for Haraway “‘objects’ do not pre-exist” human investigation and determination: “Objects are boundary projects.” This does not mean that humans are completely in control of shaping and determining the objects whose boundaries they map. Haraway explains “boundaries shift from within; boundaries are very tricky. What boundaries provisionally contain remains generative, productive of meanings and bodies.”^[57]

Like Latour and Bennett, Haraway sees the separation of natural, social, and critical frameworks as a feature of modern Western society, not a recognition of different spheres that somehow exist apart from the viewer who applies them. She rejects the idea of acquiring knowledge through active human examination of a passive natural world whose surface we crack open to explore. Instead, Haraway offers the metaphor of developing knowledge through “conversation” with a world of actors, or with world as agent and active participant in the production of knowledge.^[58] Such an approach does not mean that human and other agents are all alike. “Actors come in many and wonderful forms.”^[59] Jane Bennett likewise contends that a “vital materialist” view does not erase differences between humans and others.^[60] Instead it requires that differences be “read horizontally as a juxtaposition rather than vertically as a hierarchy of being.”^[61] One can readily distinguish persons from other “actants,” humans from nonhumans, although it is “constantly possible for these two sets of kinds to exchange properties.”^[62] For Bennett, recognizing this interactive potential is in itself a way “to begin to experience the relationship between persons and other materialities more horizontally,” and thus to develop a “more ecological sensibility.”^[63]

B. Indigenous Worldviews

Modern dualism has never been alone in the world. The recent critical Western scholarship discussed in the previous section often chimes with accounts of Indigenous worldviews that developed over thousands of years. Though they describe diverse cultures rooted in lands all over the globe, from the Arctic to Australasia, the Salish Sea to the Indian highlands, these accounts report some commonalities—including more fluid, less hierarchical, more interconnected relations among humans and nonhumans and an assumption that the ability to communicate, affect, and otherwise interact with humans is not limited to other humans.

1. A Note on Methods. Indigeneity is a vexed concept. Just as references to a singular “Western” worldview encompass a wide array of concepts and knowledge practices (having little to do with compass direction), the idea of a singular “Indigenous” outlook is, at best, shorthand.^[64] At worst, using bits and pieces of Indigenous concepts to elucidate Western legal structures contributes to an ongoing project of colonialist/settler domination.^[65]

In some ways, the contrast between Western and Indigenous worldviews is a Western concept, and problematic politically. Indeed, it may be just another example of modern Western dualism, with its fetish for separation, strong boundaries, and ostensibly balanced oppositions that are actually understood as hierarchical. Some argue that the idea of separate Indigenous and Western worlds arose in the specific historical context of British colonization of North America, and has been “used for the normalization of interracial marriage taboos, racial segregation, and the creation of reservations.”^[66] Moreover, situating Indigenous worldviews as an alternative to Western ways of knowledge may circumscribe them within a liberal pluralist framework that disempowers Indigenous communities.^[67]

On the other hand, ignoring Indigenous worldviews in an article discussing more-than-human personhood seems even more politically problematic. There is a movement of self-identified Indigenous scholars, whose work aims “to elucidate the nature of [Indigenous] systems and their interaction with Western ways of knowing.”^[68] As one of these scholars observes, “[t]he question we have to ask is why Indigenous knowledges and peoples are not being centered in accounting for these more than human relations” in academic discussions.^[69]

Nevertheless, trying to grasp Indigenous understandings of nonhuman agency within the framework of Western academic knowledge production (like this Article) is bound to distort those understandings. As Sarah Hunt notes, “[t]he heterogeneity of Indigenous voices and worldviews” is lost.^[70] And the problem is not just over-generalization. “Indigeneity is . . . lived, practiced, and relational.”^[71] So representing Indigenous worldviews as dislocated concepts, “just words on a screen,” mischaracterizes “Indigenous knowledge, suppressing its dynamic nature” and its “place-based ways of knowing.”^[72]

As if that weren’t enough, another troubling issue arises when it comes to discussing Indigenous worldviews in the context of rights-of-nature grants, like the New Zealand settlement referenced at the beginning of this Article. While such grants sometimes refer to Indigenous understandings of the nonhuman entities they protect, they can be used to further disempower Indigenous communities and block Indigenous territorial claims.^[73] Digno José Montalván Zambrano points out that court recognition of autonomous rights of nature may heighten tensions “between the rights of indigenous peoples and the interest in environmental conservation of their lands,” supporting efforts to locate nature reserves in Indigenous territories.^[74] More broadly, as Roger Merino argues, settler governments may seek to weaken Indigenous political and legal claims to territory by “translating this agenda into technical, depoliticized mechanisms and assumptions of modern environmentalism.”^[75] Rights-of-nature grants fit neatly into such a strategy. And indeed, there are examples of Indigenous communities being further dispossessed of lands and resources in the name of the environmental conservation that might be seen as the goal of legal rights of nature.^[76]

With all these problems, it might seem like the better part of responsible legal scholarship to avoid using descriptions of Indigenous ideas and practices of which I am profoundly ignorant. But ultimately it seems to me a worse failing to leave out these perspectives. Indigenous knowledges continue to be excluded from academic discourse and marked, explicitly or implicitly, as a kind of unscientific mythic storytelling that does not belong in sophisticated analyses.^[77] That exclusion further universalizes Western dualism and obscures the ways it continues to be operationalized—including in our legal system—through the suppression of other cultures and ontologies.^[78] So, having decided to incorporate some examples of approaches to personhood from diverse Indigenous cultures, I want to acknowledge that the following account certainly glosses over the depth and variety of Indigenous worldviews.

2. Indigenous Personhood. As Sarah Hunt/Tłaliłila’ogwa remarks, the idea of “‘more than human relations’ . . . is old news for Indigenous peoples.”^[79] Indeed, she notes that Indigenous peoples “do not need terms like more than human” to destabilize anthropocentric thinking, as their “languages and oral histories reflect political ecologies formed without humans at the center.”^[80] Relationships between humans and other beings, and social practices in general, are “premised on entirely different orderings of the world.”^[81]

Whereas in Western thought, networks develop when individuals connect with one another, in at least some Indigenous ontologies that conceptual order is reversed. Indigenous scholars Ambelin and Blaze Kwaymullina describe an aboriginal worldview that assumes inevitable interconnectedness and relationality: “Nothing exists in isolation. All life—and everything is alive . . .—exists in relationship to everything else.”^[82] This vital relatedness is not subject to differentiation without damage and cannot be dispensed with for the sake of analysis. As Kwaymullina and Kwaymullina explain, “because all relationships interconnect, so does all knowledge. In a sense, the way one thing relates to another is the core of what knowledge is.”^[83] From this perspective, a stance of objective distance is a distortion of reality, not a way to better understand it: “Indeed, a state of being where the individual sought to remove themselves from the system, to sever or suppress their connections to the web of relationships that forms the world, might well be termed exile.”^[84]

Likewise, relationships are primary for the South Indian Nayaka, who anthropologist Nurit Bird-David has studied, and those relationships can be between humans and other sorts of animals and entities.^[85] Nayak individuals emerge out of networks. Rather than persons building relationships, a Nayak person “objectifies relationships of . . . mutual sharing of space, things, and actions.”^[86] Instead of autonomous individuals building relationships to form a social group, persons—human and nonhuman—emerge out of diverse interspecies communities.^[87] Unlike the Western individual person who exists somehow “naturally” and then proceeds to construct social relationships (including ownership), the Nayak person is primarily constituted as a self who objectifies relationships.^[88]

In a wide range of Indigenous contexts, “[n]either material form nor spiritual or mental faculties are definitive” of personhood.^[89] James Leach notes that it is a “long-observed fact in Melanesia” that “persons are thought to take different forms, or that things can take the form of persons.”^[90] Instead of a world populated from the get-go with persons and objects, “persons objectify relations.”^[91] In this view, persons are not defined by any “internal essence,” but rather “by their participation . . . in generative social processes.”^[92] For instance, among Rai Coast gardeners in Papua New Guinea, slit-gong drums are considered to be “a kind of person.”^[93] Again, relationships are the source of personhood. A slit-gong drum is made as part of an exchange between a man and his relations by marriage “as a culmination in his emergence as a man with a presence and authority.” So the drum “emerges between kin groups,” and, like a newly initiated boy or girl, “gives form to the connection between” those groups.^[94]

Similarly, Fred (Gopit) Metallic notes that the Mi’gmaq language “emphasizes relationships and the processes that are needed in order to live in and with the environment: social, political, spiritual, and physical.”^[95] He again centers relationships of mutual interaction, rather than human actions upon a passive environment: “We are connected to each other. We live in and from the territory; the salmon, through the water, keeps us connected. The land and the water are no different, just as the salmon and I are no different.”^[96] Unlike the Western model of active human subjects investigating objectified others, models of Indigenous knowledge are often reciprocal, and sometimes framed as a process of nonhumans teaching humans.^[97] Metallic writes that he will share “what the Listuguj Sipu [(river)] and the plamu (salmon) have taught” him, and notes that in the water ceremony, “the salmon is one guide, which reminds us of the importance of balance and good order in our relationships.”^[98]

In Indigenous ontologies, land is generally not seen as inanimate, senseless or powerless.^[99] Kwaymullina and Kwaymullina explain that “[i]n an Aboriginal worldview, space is both alive and conscious” and “the ‘space’ of country is both physical and metaphysical.” So, land “causes action rather than simply being subject to it.” It is “the source of all life and all consciousness.”^[100] In this view, humans are not the only makers of meaning. “As all relationships are a part of space, and space is a part of all relationships, it is as true to speak of space as bringing meaning to humans, as of humans bringing meaning to space.”^[101] In short, space, land, and the aspects of “the environment” that Westerners regard as inanimate, like rocks and rivers, have agency. “In a world composed of relationships, space is a primary attractor, a centre around which other relationships orbit. Indeed, so great is the power of some spaces that . . . they are able to affect even those who do not recognise their conscious nature . . . .”^[102] For example, a Nyoongah and Ingebundi man ascribed the existence of a park in twenty-first-century Perth to the power of the land. Noting that the park land “was important in the old times too” he explained, “[t]he spirit in that land is so strong that it saved itself from development.”^[103]

Rosiek and his co-authors describe Indigenous contexts in which humans draw power and knowledge from land, for instance the “Anishinaabe understanding of human agency as emanating from a relation to the personhood of the land.”^[104] Westerners are liable to misinterpret Indigenous accounts of such more-than-human agency, underestimating the role of land. Michael Marker observes that they miss “the preeminence of place in the ways the blurred division between physical and metaphysical reality is narrated.”^[105] Re-examining old ethnographic interviews, he points to Indigenous elders’ descriptions of land as a source of power: “The place itself is saturated with energy forms that exist only in the dimension of that landscape.”^[106]

These views of more-than-human agency do not entail an erasure of all difference between humans and other beings. Rather, Indigenous worldviews seem to hold a broader, and more variable concept of personhood, and a less dogmatic attitude about what it means to be alive. As the Western anthropologist Irving Hallowell observes, “[i]t leaves a door open that our orientation on dogmatic grounds keeps shut tight.”^[107] Hallowell describes among the North American Ojibwe a subtle, shaded openness to the potential for sensibility, agency, and communication in things that Westerners regard as inanimate, including, the sun, trees, thunder, and stones.^[108] He emphasizes that his fieldwork did not establish that the Ojibwe conceptualize stones as persons in the abstract, or always treat them as such, let alone that they see stones and human beings as the same kind of person. Rather in certain circumstances, Ojibwe treat a stone “as if it were a ‘person’ not a ‘thing.’”^[109] Likewise, Danny Naveh and Nurit Bird-David explain that among the Nayaka, “forest and domesticated animals and plants are both regarded as sentient co-dwellers in some cases, and as objects in others, depending not on what they are in essence, or where they are, but on when, by whom, and for what purpose they are approached.”^[110] Because it is relational, personhood comes and goes. It arises and departs depending on connections and situations at a given moment.

Among the Nayaka, nonhuman devaru persons arise in particular situations, and “are not limited to certain classes of things.”^[111] They are particular beings—an elephant, a stone, a hill—“certain things-in-situations of whatever class,” who emerge sometimes unpredictably in everyday encounters.^[112] The devaru “objectify sharing relationships between Nayaka and other beings.”^[113] They are “relatives” of the Nayaka, not in the sense of being biologically related or playing predetermined social roles, but “in the literal sense of being ‘that or whom one interrelates with.’”^[114] A hill devaru objectifies and “makes known the relationships between Nayaka and that hill.”^[115]

In cultures that recognize situational more-than-human personhood, nonhuman persons need not be visible to everyone all the time. As Katherine Swancutt observes, personhood may “only come into focus in the right circumstances, contexts, and moments,” and it may take specific training and practice—and/or a special talent—to be able to recognize nonhuman persons when they appear.^[116]

Sarah Hunt explains that there are “place-specific practices for understanding how categories of being are made possible.”^[117] In some Indigenous cultures, nonhuman persons show up unexpectedly in everyday situations and also are intentionally summoned through performance.^[118] So, for instance, Fred (Gopit) Metallic describes a Mi’gmaq water ceremony that “is reflective of the long-standing belief in the spirit world that is part of all life.”^[119] In such ceremonies, he writes, “we are reminded of our agreements with all beings—with the water, and with all beings that depend upon the water.”^[120] Nurit Bird-David recounts how the Nayaka “bring to life” devaru persons in performances that take place every year or so.^[121] During the course of these two-day-long events, performers fall into trance and enact different devaru characters through words, gestures, and voicings that are recognizable at different levels of specificity. Other Nayaka converse with the visiting devaru.^[122] The performers’ skill varies. Devaru are sometimes embodied crudely and sometimes “with great finesse.”^[123]

Performed and spontaneous appearances of more-than-human beings may reinforce each other. Bird-David proposes that interactive Nayaka devaru performances are a practice through which participants develop the ability “to perceive that animals, stones, rocks, etc., are things one can relate with” as persons.^[124] By “conversing and sharing with devaru characters” in formal performances, Nayaka learn “to discriminate mutually responsive changes in themselves and things they relate with,” and so to recognize agency in nonhuman beings through their interactions with them.^[125]

III. Interactive Property and Personhood

It is unsurprising that we read Anglo-American property law through a modern dualist lens. After all, that law developed along with, and continues to operate in, a modern Western society. But when I began reading Blackstone’s volume on property for another project, I was repeatedly taken aback by the ways the law it described slipped that familiar view. To my surprise, the property that emerged from Blackstone’s legal exegesis was often not an objectively knowable thing with distinct boundaries to be discovered. Nor were the lines between property and persons permanently, or even clearly drawn. There was a sense that the ability to affect others and change their actions was not exclusive to a category of persons defined in opposition to property, let alone to human persons. Reading Blackstone’s eighteenth-century account of doctrines that are still familiar parts of U.S. property law today, I began to notice how some of those structures, like easements^[126] and adverse possession,^[127] can be understood to produce a world of property relations that is less rigidly anthropocentric and more interactive and dynamic than is usually assumed.

This is not a causal story about the original meaning of Western law. I do not contend that the doctrines of Anglo-American property can be read in non-dualist ways because they originated historically in a pre-modern non-dualist culture. Although, it is interesting to consider whether property law remains open to such readings partly because it preserves structures that developed long before the Enlightenment. My point is simply that—for whatever reason—Anglo-American property law is open to non-dualist interpretations. Indeed, once one becomes alert to this possibility, some familiar doctrines seem to call out for such interpretations.

To explore the potential for non-dualist persons and property, I will consider a few legal concepts, doctrines, and practices as they emerge from Blackstone’s Commentaries and in U.S. case law, including both state property-law rulings and recent opinions of the U.S. Supreme Court. All of these are mainstream sources of current Anglo-American legal doctrine.^[128] So if suggestions of nonhuman agency and fluctuating person–property boundaries appear in these writings, that seems like good evidence of the potential for more-than-human personhood in conventional Anglo-American legal culture.

A. What Is Land?

Blackstone calls the hereditary descent of land “the principal object of the laws of real property in England.”^[129] To this day, the standard law school course on property focuses on land: forms of land ownership, land use conflicts, limits on government regulation of land, methods of transferring land, etc. But what is “land,” and what does it mean to own land? From a dualistic modern perspective, we imagine land ownership as rightful control of some measurable portion—a “lot,” “tract,” or “parcel”—of a thing that preexists legal definition.^[130] But in Blackstone’s classic common-law treatment, land is actually a mixed cultural and natural matter, like one of Latour’s hybrids or Bennett’s assemblages.^[131]

The idea that land ownership is a simple matter of appropriating some objectively measurable piece of an inert physical world for human use breaks down early in Blackstone’s survey of traditional English property law. Initially we seem to be on solid dualist ground. Blackstone offers this apparently straightforward categorical distinction: “The objects of dominion or property are things, as contradistinguished from persons.”^[132] But it gradually emerges that the most important “thing” of property at the heart of the whole system—land—is not entirely natural or even material. As Blackstone remarks, “land” is “a word of very extensive signification.”^[133]

In the common law of property, land is “any ground, soil, or earth whatsoever; as arable, meadows, pastures, woods, moors, waters, marshes, furzes, and heath.”^[134] Wait—waters? Blackstone himself points out that it might seem like a mistake (he says a “solecism”) to classify water as land. He takes a shot at justifying this counterintuitive categorization by suggesting that what it really means is that the water belongs to the owner of the ground underneath it. But he never really cashes out this argument, ending instead with a kind of verbal shrug: “such is the language of the law.”^[135]

Actually, water is the least of his problems. Because, as Blackstone goes on to explain, in property law “‘land’ includes not only the face of the earth,” and not even just “all castles, houses, and other buildings” but everything growing or built on the ground, and “every thing under it, or over it.”^[136] You read that right. There are no material boundaries at all: an owner of land has rights over “an indefinite extent, upwards as well as downwards.”^[137]

Like Kwaymullina and Kwaymullina’s aboriginal “country,” and Marker’s Indigenous landscape, Blackstone’s property in “permanent, fixed, and immovable” land turns out to be “both physical and metaphysical,” or in the language of common law, to involve both “corporeal and incorporeal” hereditaments.^[138] In Blackstone’s account, an “estate” (which he notes is the English equivalent of the Latin “status”) is not a preexisting place or thing but rather the emergent identity of an owner created through his relationship with land.^[139] It seems that not only property, but land itself is partly constituted out of this network of relationships.^[140] “Land” only becomes a “thing” because of how we use and treat “it,” “a distinct space defined by the two-dimensional boundaries of the transformative acts.”^[141] The world turns into land precisely at the moment it turns into owned land.

Of course, in some ways the common law’s everything-everywhere-all-at-once approach to land is truer to reality than the modern imaginary concept of land as a separable, securely bounded area that can be controlled by a human individual. For in fact, no such discrete natural entity exists, and no such control is possible. As Alan Greer observes, land is intermingled with many different kinds of beings and processes: “weeds, insects and fires cross its boundaries; the trees that grow on a lot and the buildings erected upon it affect the currents of air.”^[142] With all this in mind, land is less a thing than a dynamic process of change.^[143] So the first clue that property law’s personhood may not be a stable preexisting characteristic comes with the realization that the person’s opposite number is a complex, slippery combination of nature and culture whose boundaries are in flux and indefinite.

The hybrid quality of land may explain why courts use the words “property” and “land” in ways that sometimes seem distinct and at other times appear virtually synonymous. In a recent U.S. Supreme Court case, Murr v. Wisconsin, the terms “property” and “land” sometimes seem to refer to distinct concepts or entities but at other times appear interchangeable.^[144] At first the Court seems to be distinguishing land as a physical entity from the property rights at issue. The majority opinion explains that to determine the impact of a government land-use regulation, courts must decide “whether reasonable expectations about property ownership would lead a landowner to anticipate that his holdings would be treated as one parcel.” That evaluation entails considering “the treatment of the land under state and local law; the physical characteristics of the land; and the prospective value of the regulated land.”^[145] Overall, “courts should assess the value of the property under the challenged regulation, with special attention to the effect of burdened land on the value of other holdings.”^[146] Here, “property” seems to entail something more than a physical thing. It seems to refer to some intangible, albeit real, social concept and power relationship, that confers economic value and mediates individual humans’ relationships with a tangible, physical, natural entity—land.

But the opinion immediately smudges that distinction, by referring to the property’s “physical characteristics . . . includ[ing] the physical relationship of any distinguishable tracts, the parcel’s topography, and the surrounding human and ecological environment.” The ambiguity only grows when the majority gets around to applying their prescribed inquiry, concluding that “[p]etitioners could have anticipated public regulation . . . of their property [due to its location along the river, which] was a regulated area under federal, state, and local law long before [they acquired] the land.”^[147] Assuming that the slipperiness of the terms “land” and “property” is not just careless, it seems to come from the Court’s ambivalence about the material and metaphysical nature of both property and land. It reflects a fluctuating sense of property as both a material thing and a mutually constituting relationship with that thing and with others through that thing.^[148]

The ambiguity of what constitutes property in land is not a purely abstract problem. It fuels practical legal conflicts. In regulatory-takings claims, the question is whether a government regulation “goes too far” in limiting some person’s use of their land and so violates the constitutional guarantee that “property . . . shall not be taken for [public] use without compensation.”^[149] Any such calculation requires an initial measurement of the total property to be considered, the whole against which to compare the part effectively lost through regulation, often referred to in arithmetic terms as the “denominator.”^[150] As the Supreme Court explained:

“[B]ecause our test for regulatory taking requires us to compare the value that has been taken from the property with the value that remains in the property, one of the critical questions is determining how to define the unit of property ‘whose value is to furnish the denominator of the fraction.’”^[151]

This is a highly consequential matter, for as the Court went on to observe, “the answer to this question may be outcome determinative.”^[152]

The case that first articulated the regulatory-takings issue about a century ago involved a statute that prohibited mining under a dwelling, for fear of subsidence.^[153] Prior to the law’s passage, the Pennsylvania Coal Company sold the surface rights to some land it owned.^[154] The deed conveying the land to the homeowners expressly “reserve[d] the right to remove all the coal under the same.”^[155] Once the new law came into effect, however, the owner of the surface, which now had a house on it, sued to enjoin the coal company from exercising their contractual right to mine the coal below. When a state court held that the new law did indeed forbid mining the coal, the coal company brought the case to the U.S. Supreme Court, arguing that preventing them from exercising their mineral rights amounted to an unconstitutional taking of property. In a split decision, the Supreme Court vindicated the coal company’s claim.^[156]

Through an opinion written by Justice Holmes, the majority held that under the circumstances, prohibiting mining required compensation. Justice Holmes reasoned that after selling the surface, the coal company’s only remaining property was the subsurface coal. The state law requiring the company to keep the coal in place thus went “too far” because it effectively took all the coal company’s property.^[157]

Not so fast, said Justice Brandeis in dissent. Echoing Blackstone’s multifarious common-law definition of land, Justice Brandeis acknowledged that “[c]oal in place is land.”^[158] Nevertheless, he contended that, “[i]f we are to consider the value of the coal kept in place by the restriction, we should compare it with the value of all other parts of the land. That is, with the value not of the coal alone, but with the value of the whole property.”^[159] In this view, forbidding mining took only a relatively small part of the “land” that, according to Blackstone, includes both the “face of the earth” and “every thing under it or over it.”^[160] This would be what the coal company owned before it broke up the property by selling the surface rights. For Justice Brandeis, apparently, traditional legal estates in land, unlimited in depth and height, have a kind of integrity that is not subject to individual human owners’ manipulation. Owners cannot unilaterally sever their legal relationships with land, without destroying, or at least greatly limiting, their relationship with the remaining property. “The rights of an owner as against the public are not increased by dividing the interests in his property into surface and subsoil.”^[161] From a modern dualist perspective, Justice Brandeis’s view sounds oddly metaphysical compared with Justice Holmes’s matter of fact opinion. Nevertheless, in subsequent takings cases, the Court adopted something like Justice Brandeis’s holistic view.^[162]

Murr, the latest Supreme Court “denominator” case, further troubles the view that owned land is a simple natural thing.^[163] The land at issue in Murr was originally purchased as two adjacent lots and later transferred to the current owners, adult children of the purchasers.^[164] The owners wanted to sell one of the original lots to finance improvements on the rest of their land, but state law prohibited the separate sale or development of adjacent lots below a certain size.^[165] From the owners’ perspective, by preventing them from selling, the state appropriated all of a piece of real property they owned—one of the two originally separate lots. But the state court held that the property in question was the entire merged acreage, and so the regulation affected only a small part of the land they owned.^[166]

The Supreme Court justices could not agree on how the land, or property, in Murr should be defined. As Meghan Morris observes, both the majority and the dissent “[make] clear just how contingent [real property’s] boundaries . . . really are, and how little land can be taken for granted as an easily identifiable, stable, or fixed ‘thing’ in the world.”^[167] That said, there is a difference between the majority and the dissent’s approaches that is significant for my analysis here.

The dissenters emphasized the preexisting legal definition of land.^[168] In a clear modern dualist move, they would define the property at stake entirely as a matter of legal culture without reference to natural or physical contours: “State law defines the boundaries of distinct parcels of land, and those boundaries should determine the ‘private property’ at issue in regulatory takings cases.”^[169] But the Murr majority took a more holistic approach, declaring that “no single consideration can supply the exclusive test for determining the denominator.”^[170] In their view, courts should consider legal treatment of the property, but legal divisions alone do not determine the “land” at issue.^[171]

In the majority’s approach, an interactive network of “physical,” “ecological,” and “legal” “factors” creates and defines property in land. In addition to how land “is bounded or divided under state and local law,” courts should consider “the physical characteristics of the landowner’s property,” including, “the physical relationship of any distinguishable tracts, the parcel’s topography, and the surrounding human and ecological environment.”^[172] The interaction of the burdened land with other land held by the claimant is also relevant, particularly if the effect on the “regulated land adds value to the remaining property, such as by increasing privacy, expanding recreational space, or preserving surrounding natural beauty.”^[173]

According to the Murr majority then, there is no preexisting natural, physical “thing” here that can be identified as the land the plaintiffs own. But neither is the land—or the property—entirely a legally defined social construction or a matter of abstract rights. Instead, the Court combined social, political, and economic considerations with “the physical characteristics of the landowner’s property.”^[174] Moreover, the Court’s definition of property in land relies on the interactive relationships among the land, the individual owners and the community. Just as Nayak individual persons emerge from networks of relationships, in the Murr schema, relationships produce a recognizable object of property, not vice versa.^[175]

To be sure, what is being identified is a thing, not a person. But the relational primacy troubles the picture of property as a matter of individual human domination over pieces of an otherwise inactive world. It blurs the line between nature and culture. In the Murr majority’s approach, the paradigmatic object of real property is not a predefined natural thing available for ownership, but neither is it a pure legal creation.^[176] Instead, it emerges out of relationships among humans and nonhuman entities.

C. Land Makes the Man

When the legal object of property is the result, rather than the origin, of relations with humans, it suggests that owners of property also may not be essential, preexisting (human) beings. Dynamic, interrelated property may work both ways so that not only owned objects, but owning subjects, emerge from interactive relationships. While takings doctrine looks to interactions with humans to define land as an object of property, in other areas of law relations with land create particular forms of human agency, generating political subjects.

1. Voting Rights. When the United States was founded, the right to vote for political representatives was largely reserved for landowners.^[177] Indeed, land ownership was so deeply associated with voting rights that it could sometimes override disqualification for characteristics that were then (and are often still) understood to be essential natural characteristics of human individuals, notably gender. We tend to assume that prior to the Nineteenth Amendment in 1920, women in the United States were entirely excluded from voting on account of sex. But that is not the case. In early American colonies and some states, women who owned land sometimes had voting rights.^[178] In a sense, one could say of early American election law what Kwaymullina and Kwaymullina say about an Indigenous worldview: rather than just understanding that “humans bring[] meaning to space” this approach sees “space as bringing meaning to humans.”^[179] So, rather than a right belonging to individual human beings based on their essential identity, enfranchisement emerged out of relationships with land.

Landowning as a voting qualification could be rationalized in various ways. Among other things, it was argued that individuals without property could be easily manipulated by more powerful members of society. Blackstone offers this traditional liberal justification in typical modern terms: “If these persons had votes, they would be tempted to dispose of them under some undue influence or other.”^[180] But elsewhere he explains the rule in a way that can be read literally to treat the relationship with land as actually generating the voting subject. He says that making land ownership a voting qualification excludes those who “have no will of their own.”^[181] Thus, Teresa Michals observes that “[a]ccording to Blackstone, an independent will is itself an effect of real property, not an attribute of natural persons.”^[182]

In the scheme Blackstone lays out, the enfranchising power of land is quite concrete and particular. So, “only one person shall be admitted to vote for any one house or tenement,”^[183] and, conversely, someone who owns lands in several locations “has probably a right to vote at more places than one, and therefore has many representatives.”^[184] This idea looks very strange in modern voting culture, because it seems to contradict our “one person, one vote” rule.^[185] But that is only true if the relevant “person” is a translocational, individually embodied human who may have multiple land holdings but whose political identity does not change or multiply depending on those relationships. If instead we imagine voters developing the way Nayak individuals emerge out of more-than-human relationships, or through land’s ability to confer agency, or bring meaning to humans as Kwaymullina and Kwaymullina put it, then Blackstone’s approach makes sense. Relationships with land constitute and individuate persons who objectify the relationships, and emerge as subjects empowered to vote. Like land, such persons are defined both physically and metaphysically. Multiple relationships with land might generate multiple voting persons out of a single human body.

The enfranchising power of land has not been entirely lost in current U.S. voting structures, despite our ostensible adoption of universal enfranchisement. The voter registration gateway for electoral participation remains tied to an association with a specific spatial location defined as legal residence. Some relationship with land is required. Thus the Pennsylvania voter registration site instructs “homeless” registrants to use a map on the application to mark “where you live or spend most of your time.”^[186] Even for those who do have permanent homes, it turns out that the legal structures that shape and maintain our electoral systems are organized in ways that favor a particular property relationship with land, namely ownership in fee simple. For instance, to vote “in person” one must turn up at a particular building, and perhaps a particular table in the room, that is determined by one’s home address. That location, and one’s identification as a qualified voter, is unstable if one’s address changes, as is more frequent with renters (to say nothing of the unhoused). Voting by mail similarly favors electors with stable residential addresses. In addition, many states validate their voting rolls by mailing postcards to registered voters’ home addresses and striking voters when the cards are returned as undeliverable, again more likely when a voter rents.^[187] So renting real estate produces less resilient, if not absolutely less, political agency than owning it in fee simple. The stability of your status as a political actor varies with your relationship to land.

None of this is grounds to claim that a relational approach to personhood is the uniquely correct way to understand the connection between voting rights and land. Moreover, if current voting rules do make more-than-human relationships a prerequisite for enfranchisement, it goes to show that personhood emerging out of more-than-human networks is just as capable of producing inequality as anthropocentric dualism. Nevertheless, the basic point remains: conventional legal doctrines that we take for granted can be seen as embodying a worldview in which relationships produce legal persons, rather than vice versa, and interactive relations with land exert a kind of rights conferring, and so personifying, power. If not itself an agent, land has an animating capacity. Humans come into their own as political persons through more-than-human relationships.

2. Adverse Possession. Ordinarily, we think of exclusive physical possession, or occupation, as justified by legal ownership.^[188] But in traditional, and still current, property law, the causal arrow does not point only in one direction. Every U.S. state maintains a version of the doctrine of “adverse possession,” under which a landowner may be legally dispossessed by a stranger who occupies their land.^[189] Thinking of interactions with land as a source of rights-bearing legal personhood suggests new ways to understand this puzzling property law structure.

Adverse possession always elicits consternation in my 1L property class. And no wonder. It seems to violate the basic rule-of-law principle of right before might. Isn’t the whole idea of legal ownership that property rights flow from something other than just showing up and taking over? At least if the place where you turn up is already legally owned by someone else. One of the definitional rights (some say the definitional right) of private property is excluding other people.^[190] Get off my lawn! But through the doctrine of adverse possession, a stranger who takes up residence on your land without your permission winds up getting to exclude you. No legal formality or financial exchange is necessary. To become an owner through adverse possession, you just have to prove that, for whatever period the state’s statute requires, you have occupied private land in a way that is open and notorious, exclusive, continuous, and (this is key) “hostile” or “adverse,” that is, without permission.^[191] As Joseph Singer says, adverse possession “transforms trespassers into owners.”^[192]

Apparently, possession may be a cause, rather than an effect, of rightful legal land ownership. This is particularly strange, when you consider what it takes to establish exclusive possession of land. Obviously, you can’t keep land physically to yourself as you would a small discrete object. You can build some fences, but fences are at least as much about communicating a moral and legal claim to exclusivity as they are about physical deterrence. And they will be effective signals of exclusive ownership only for those who recognize and choose to treat them as social boundaries.^[193] On the other hand, physically or coercively excluding anyone and anything who does not recognize the signs of your claim and voluntarily acquiesce will require constant surveillance and perhaps force, exactly the sort of behavior that rightful legal ownership is presumably meant to make unnecessary. So adverse possession seems to sabotage the basic concept and effectiveness of exclusive legal rights.

Various rationales have been advanced for this counterintuitive doctrine.^[194] Some say adverse possession enforces a socially beneficial expectation that property owners will take care of their land, or at least keep watch over it.^[195] Others point out that adverse possession often awards ownership to the one who is most productively using the land.^[196] Alternatively, adverse possession is said to serve coordinating and peacemaking functions by making sure that private property is clearly defined by evidence that someone is in charge.^[197] Oliver Wendell Holmes floated an idea that seems surprisingly empathic for this usually cold-blooded rationalist. He contended that the “true explanation” for adverse possession was that severing the relationship between humans and the land they occupied would cause the occupiers harm. Interestingly, Holmes articulated this idea with an image of more-than-human relationships, explaining that “man, like a tree in a cleft of a rock, gradually shapes his roots to his surroundings, and when the roots have grown to a certain size, cannot be displaced without cutting at his life.”^[198]

I want to propose another way to make sense of adverse possession—as a matter of seeing a legal owner arise out of a more-than-human relationship, as signaled by changes in the land. We might understand this as something like the Nayak approach to personhood in which the “person objectifies relationships.”^[199] Rather than seeing persons as essentially independent individuals who form relationships with others, the Nayaka (in common with some other Indigenous cultures) see persons as emerging out of interactive connections in the world.^[200] Think of owners as a special kind of legal persons, who appear through their interactive relationships that manifest visible changes in land.

As I understand it, the Nayaka are culturally sensitized to be alert for meaningful “variances,” which manifest in some perceptible way the emergence of a person as an agent of those changes. They recognize the presence of another person when they perceive “changes of things in the world in relation to changes in themselves.”^[201] Likewise, in adverse possession, land ownership, the gold standard of personhood in property law, emerges through recognizable relations with land, communicated by changes in the land itself.

In contrast, from a modernist perspective, we see ownership as the result of choices made by preexisting individuals. We also tend to see ownership, once achieved, as a stable connection that generally can only be destroyed by the owner’s acts. Ownership dissolves, paradigmatically if not exclusively, through an owner’s conscious choice to sell or give away the property, or by virtue of the owner’s voluntary actions that privilege others to take the property (committing a felony, say, or failing to pay taxes) or because the individual owning subject is extinguished—dies. In this framework, agency arises only in the (human) owner. The idea of the land having any sort of agency to produce ownership, or the ability to communicate it, is absurd.

Looking at adverse possession doctrine with Indigenous worldviews in mind, however, produces a sense of the land as something like Latour and Bennett’s “actant.”^[202] In this view land is not a volitional subject modeled on a human being. But neither is it an inert object. And the counterintuitive results of adverse possession begin to make sense if we think of the land involved as able to interact with humans, and so to be a “source of action . . . which has efficacy, can do things, . . . make a difference, produce effects, alter the course of events.”^[203]

From this relational perspective, we would expect ownership to emerge through interactive relationships that produce perceptible changes in nonhuman entities, changes that signal the presence of a powerful agent. Formal legal performances, e.g., deed exchange, closing ceremonies, or court judgments, might, like the Nayaka devaru performances, produce recognizable characters (here, landowners), but they would not be the only situations in which those subjects emerge. Instead, the appearance of owners in paradigmatic formal performances would sensitize us to recognize when ownership emerges out of everyday relationships among humans and land. Observable changes in the land could signal the presence of an agent of change, personified as a new owner.

Like other forms of relationally created personhood, the subject whose presence is signaled by such changes would be mutable and particular to the given situation. Ownership would not produce a transcendental form of personhood or absolute control over essential objects—animate or inanimate. Rather, landowner subjects would only exist and be recognized if they remain connected to the land in continuing relationships of mutual influence and effect. And new owners would emerge when changes in their relationships with land were perceived as significant enough to constitute them as the agents of change. These subjects might be visible to people who had been sensitized and trained to recognize the key changes that signal the emergence of an owner-agent subject, that is, to those adept at “read[ing] the signs” of such ownership.^[204]

The choice to privilege visible signs of a possessory relationship with land over the formally constituted legal title of another subject offends a dualistic modern sensibility. From the dualist point of view, agents of change are always human. Humans become owners only through their own actions, or the acts of other humans, not through the land’s interactive relationship with them, or through the land’s communications about that relationship. In the modern dualist framework, Justice Holmes’s vision of human character shaped by land is a sentimental, metaphorical way of describing how people feel about their relationships with land, relationships that they forge unilaterally. Legal ownership is not a question of feeling, or of physical connections and is largely immune to change caused by external events that do not involve the owner. Indeed, from this anthropocentric perspective, property ownership is a kind of insulation that makes the owner relatively impervious to changes in the world, including changes in the land that is owned.

Adverse possession’s divergence from a modernist focus on individual human acts and intentions is signaled by a lack of concern for the state of mind of the two human actors—titleholder and trespasser—whose roles the doctrine reverses. For adverse possession to “work,” the individual who occupies the property of another must not be privileged to be there in the first place. So, if the titleholder has given someone permission to occupy their land, that other individual’s presence can never lead to ownership via adverse possession.^[205] But the only kind of permission that will actually prevent an adverse possession claim is a positive act.^[206]

When it comes to the intentions of the trespasser, things are even more muddled. A few jurisdictions require proof that the adverse possessor was unaware that they were trespassing, and a few others require the exact opposite—knowledge that they were trespassing with an intention to dispossess the titleholder.^[207] In most jurisdictions, however, it matters not whether the interloper mistakenly believes that they are occupying land they already own (often the case in border disputes), innocently intend to use land not owned by anyone, or have set out quite deliberately to take over someone else’s legal property. Under the majority rule, both the titleholder’s and the trespasser’s state of mind are irrelevant: “What matters is the possessor’s physical relationship to the land . . . .”^[208] It is “the nature of the possession alone” that determines whether a new owner has emerged. Courts “look to the actual physical facts of the possession.”^[209]

Judges’ adverse possession rulings sometimes rationalize this focus on physical changes in the land as a form of notice to the titleholder. They explain the emphasis on visible signs of a possessor’s interactions with the land as if it were designed to make the titleholder aware of what is going on and so give them the opportunity to intervene. In one case, the court explained, along with “physical visibility,” “community repute is also relevant evidence that the true owner was put on notice.”^[210] But whether the titleholder had an actual opportunity to see those changes or would have understood them as “possession” if they had, is never discussed. Instead, the court spoke in terms of an objective standard: “Use consistent with ownership . . . gives visible evidence of the claimant’s possession, such that the reasonably diligent owner ‘could see that a hostile flag was being flown over his property.’”^[211]

This approach attempts to justify adverse possession in modernist terms, as a contest between human individuals for domination of an inert object of property. It puts the focus on the “diligence,” and moral worthiness, of the original titleholder. Adverse possession is a hostile takeover that only succeeds if the titleholder fails to properly perform their role of exclusive control.

But this brings us back to the main problem with adverse possession. It violates the foundational notion that once property is one’s own, one is free to use—or not use—it as one chooses, at least so long as one’s use does not interfere with others’ rights (sic utere). It is unclear how nonuse, or a failure to exclude others, interferes with anyone else’s legal rights. Of course, one could offer a policy argument that it is generally not good for a society to have a lot of uncultivated, unsupervised property around. But that doesn’t show why a particular titleholder should forfeit their property rights without some proof that their nonuse is actually causing harm. And the more one relies on broad social welfare arguments to justify adverse possession, the more the explanation conflicts with the basic understanding that what private-property law confers on owners is the right not to have to justify their property use on general social welfare grounds.

A non-dualist approach avoids iffy fictions and social welfare rationalizations by reframing property as a dynamic relationship between land and humans that produces ownership. In this view, the basic value is a reciprocal physically observable relationship in which the land and the human possessor act upon one another. From this more-than-human personhood perspective, we might say that members of the legal community are sensitized to the presence of someone who the land identifies as an owner. The question is whether there are signs of a relationship that the surrounding community recognizes as ownership and thus the emergence of a person recognized as the owner. Similar to Bird-David’s understanding of Nayaka personhood, the land “make[s] them ‘relatives’ by sharing with them and thus make[s] them persons,” constituted as owners in the ontology of property law.^[212]

The trespasser engages with land and is thereby changed into an owner. What precipitates the new rights-bearing owner is not their actions in relation to any other human agent, least of all the individual who holds formal title to the land. And their subjective intentions are irrelevant, as are those of the titleholder. What matters is the way the possessor and the land are related, that is, how they affect one another. As the court in Tioga puts it, “the nature of the possession alone is what is important.”^[213] The question is whether the land is somehow affected by the trespasser in ways that reconstitute the trespasser as the rightful owner. That transformation is determined entirely by perceptible changes in the land, that are recognizable to others in the relevant community as signaling the presence of an owner. Because no actual notice to the titleholder is necessary, the court’s inquiry focuses entirely on the cultural meaning and community perceptions of the visible changes in the land.^[214] Or, in an even more provocatively more-than-human personhood perspective, the land itself emerges as a kind of communicating agent, whose responsive changes identify the possessor as owner.^[215] In Bennett and Latour’s terms, the land is an “actant,” a nonhuman “source of action . . . which has efficacy, can do things, . . . make a difference, produce effects, alter the course of events,” change a trespasser into a legal owner.^[216]

To sum up, two related aspects of adverse possession make the doctrine seem perverse: (1) the reversal of the ordinary legal cause-and-effect relationship between formal title and rightful exclusive possession, and (2) the way a rightful record titleholder owner loses ownership because their rights are violated. A non-dualist worldview explains both results. From that perspective, it makes sense that new owners would emerge and be recognized through changes in the land that signal changing relationships between humans and more-than-human entities. By manifesting responses to the occupier’s acts that are understood as legally meaningful, the land communicates the presence of a new owner. And it makes sense that a titleholder who fails to maintain an active relationship with the land eventually disappears as an owning subject related to that land. In this process, the land emerges as a kind of collaborator in the ownership transformation, a nonhuman agent of change who “responds to” the approaches of the adverse possessor and the absence, or at least passivity, of the record titleholder.^[217]

It might seem fanciful to imagine land as a quasi-agent somehow capable of changing a human being’s legal status through interaction. (Although that does seem fairly close to the image Justice Holmes’s poetic justification of adverse possession presents.) But we might ask whether it is any more fantastic than Blackstone’s famous image of individual humans exercising exclusive “despotic dominion” over “not only the face of the earth, but every thing under it, or over it” to “an indefinite extent, upwards as well as downwards.”^[218] In any case, I do not mean to contend that modern judges considering adverse possession claims think of land as a personifying agent of change. I am rather proposing that we consider the doctrinal requirements of adverse possession without imposing modernist assumptions. From a more-than-human relation-based worldview, changes in land signal and constitute a newly personified owner. In this view, land plays a more active role than we ordinarily attribute to an object of property. By responding physically, to the adverse possessor’s presence, the land becomes a communicative co-creator of that person’s ownership.

D. Land as Owner

It is possible to explain adverse possession in terms of a transformative relationship, in which land actively participates in the production of legal owners. In some other common-law structures—both historical and contemporary—land arguably emerges as itself a kind of owner. Meanwhile humans can be objectified as a form of property.

1. Villeinage. In medieval England, a group known as “villeins” were considered appurtenances to manorial estates.^[219] Legal historical references to villeins tend to be somewhat ambiguous about the role they played in the legal and social structures of medieval Britain. But it was not trivial. For three or four hundred years after the Norman Conquest, villeins were ubiquitous. Historians estimate that in the thirteenth and fourteenth centuries, villeins made up the majority of the rural English population.^[220]

Villeins were incapable of legally acquiring ownership of “property either in lands or goods.”^[221] Some known as villeins “in gross” were owned personally by their lords and were “transferable by deed from one owner to another.”^[222] But it seems that the majority were “villeins regardant,” who were “annexed to the manor or land.”^[223] If the land changed hands, they went with it. If villeins were not exactly property themselves, they could be said to occupy a sort of hybrid status, to exist on the cusp of property and personhood and to lack basic rights of personhood. A villein generally “had no action or remedy at law against his lord,” who could beat his villeins with impunity.^[224]

According to Blackstone, “law . . . protected the persons of villeins” to the extent that the lord “might not kill or maim his villein.”^[225] But this protection was not necessarily based on villeins’ rights. When villeins were held as part of an estate that was limited in time, say, a life estate, the lord might be sued for waste if he mistreated them.^[226] In other words, killing or maiming a villein was illegal not because of any personal rights of the villein, but because destroying or damaging a villein harmed the property of another person. In modernist terms, we would see this as harm to the future interest of the human remainderman, the individual who stands to inherit the land to which the villein is attached. But an interactive relational account might make the land itself the injured subject whose property was destroyed.

By the seventeenth century, villeinage was gone. Exactly when and how it ended is not clear.^[227] The wholesale transformation of villeins into free persons from some kind of property, or hybrid person/property status, would seem to be a crucial legal development.^[228] But there is remarkably little information on the causes and legal mechanisms of this social transformation. Alexander Savine asserts that express manumission (which entailed payment by the enfranchised villein) was the “most important legal form of cessation of villeinage.”^[229] For his part, Blackstone, attributes the transition from owned objects to owning subjects to villeins’ longstanding relationships with land. In fact, he views villeins’ historical enfranchisement as a kind of slow-moving class-wide adverse possession claim.^[230]

It seems that villeins traditionally planted gardens for their own use on the manorial estates to which they were attached, and the use of these plots was more or less exclusive.^[231] Over time, then, they engaged in the sort of relationship with that garden land—adverse (without explicit permission), continuous, exclusive, open and notorious—that might give rise to rightful ownership under the doctrine of adverse possession (also known as “prescription”). Blackstone theorizes that because “many lords of manors” had passively allowed “their villeins and their children to enjoy their possessions without interruption,” the villeins could eventually “prescribe against their lords” and claim title to those lands “in spite of any determination of the lord’s will.”^[232] Because the villeins “by a long series of immemorial encroachments on the lord, have at last established a customary right” to hold their land, a rights-bearing relationship of ownership that reconstituted them as legal subjects.^[233]

From a modern dualist view, the idea that villeins’ personhood rights grew out of their gardens is an obvious legal fiction—the sort of “transcendental nonsense” that legal realists mock.^[234] Such an important political and social change must have a human social structural cause. While this may be entirely accurate as a matter of political analysis, it need not be so in the doctrinal imaginary of a legal system. The legal system may recognize “actants” that emerge out of hybrid nature/culture, or individual persons who develop out of interactive relationships with land. Through a non-dualist relational worldview, Blackstone’s explanation for villeins’ enfranchisement due to their longstanding gardening relationships with land makes sense as an example of the way legal rights and obligations flow not just among humans but between humans and nonhuman others, including land.^[235]

2. Easements. Villeins are long gone from legal theory and practice. But twenty-first century Anglo-American law retains another common type of real estate that challenges the view that humans are the only subjects of property rights and troubles the divide between objects and owners of property. “Easements appurtenant” are long-recognized traditional property rights that “run with the land.” Like villeins regardant, they belong not to human individuals but to the land.^[236]

An easement is a right to use land that is legally possessed by another.^[237] So, for instance, a house may have an easement to use the driveway of the house next door. If the easement is “appurtenant,” the right to use the neighbor’s driveway belongs to the house, rather than the humans who happen to inhabit it. “Easements appurtenant become part of the realty which they benefit.”^[238] In effect, the benefited land confers on any future occupants the power to force the owners of the burdened land next door to allow them access to the driveway. Different owners may come and go, but the easement carries on restricting and enabling their behavior, depending on their relationships with the land.

The idea that a right-of-way belongs not to the house’s human owner but to the house itself is more than a poetic abstraction. It has practical legal effects. If the land with the driveway is inherited by people who do not own a car, the new owners will not be able to dig up the driveway and plant a garden; they will be obliged to maintain the driveway for use by whoever lives in the house that holds the easement.^[239] If the owner of the house with the benefit of the easement moves away, she cannot take the right with her. Nor can she sell her driveway access to someone else. If the house that holds the easement is sold, the right to use the next-door driveway goes with it. It remains with the house or, rather, with the land to which it was originally granted. This is so even if the benefited property is developed, and its structures changed entirely. Imagine, for instance, that the original house with the right to use the neighboring drive is part of a large farm that eventually is sold to developers who plan to divide it and sell many separate plots with single-family homes on them. Each one of these future homes will carry with it an easement to use the burdened driveway.^[240]

A legal realist would insist that we should skip all this hybrid, relational folderol. To realists, saying that your house has an easement is just saying that you can go to court to enforce your access to your neighbor’s driveway. The realist view focuses entirely on interhuman relations and assumes that the only “real” power belongs to the human individuals involved. From that anthropocentric perspective, the defining common-law concept that an easement “runs with the land,” is fictional, or even fraudulent—a way to hide the human politics at work.

If we let go of the assumption that only humans can have agency, however, it is quite possible to see the situation as the house empowering its occupants to use the neighboring land and limiting the neighbors’ ability to exclude them. Mind you, in this non-dualist relational account of easements, human owners of property are still powerful agents. They are just not the only ones who can “do things . . . make a difference, produce effects . . . .”^[241] And some of their agency comes from their relationship with land. The control humans exercise over the land—and over their own and others’ actions—is bound up with the power of the land to influence their actions.^[242] We can see the legal work of the easement as something like the “interface” Rosiek and his co-authors describe: “sometimes the land enables the agency of the human and sometimes the human becomes the extension of the agency of the land.”^[243]

IV. Finding, Making, and Performing

Owners and Objects</span>[268]

I have described some substantive similarities between concepts of personhood in Indigenous ontologies and mainstream Anglo-American property doctrines. There are also some practical, in a sense procedural, similarities. Both Indigenous more-than-human persons and legal subjects emerge and become recognized through a combined process of discovery and creation.

Nurit Bird-David describes how Nayak “make their personhood” both through sharing interactions in ordinary life and dedicated formal performances.^[268] In those performances, Nayak devaru characters are only meaningful because they are understood to be incarnations of “devaru in-the-world.”^[268] At the same time, recognizing devaru in the world depends in part on engagement with the devaru created in performance: “Participants learn from conversing and sharing with devaru characters to discriminate mutually responsive changes in themselves and things they relate with” and so to recognize the emergence of agents of those changes. The formal performances involve “‘making devaru alive,’ that is, raising people’s awareness of their existence in-the-world and, dialectically, producing and being produced by this, socializing with them.”^[268] Likewise, in modern legal culture rights-bearing persons—human and otherwise—are both found in the world and creatively produced through formal performances. These performances come in the shape of courtroom proceedings, formal documents, and transactions like real estate “closings.” Like Indigenous characters, all legal persons are at once made in found.

Legal concepts and doctrines do not passively describe a world already divided up along lines of ownership and exclusion. Instead, deployed through formal legal practices; they make that world.^[268] As Terezie Smejkalová observes, a legal subject is created by “general law-imposed criteria recognizing her as such.” Formal legal performances in courtrooms are “spaces created and delimited by law where this recognition is also visible.”^[268] And we treat these recognized legal forms as real even while acknowledging that they are creative constructions. Like Nayak devaru who are “brought to life” in ritual performance, landowners and owned land emerge through traditional legal performances that both refer to and reshape everyday life. Importantly, their constructed nature does not make them unreal. Recognizing the reality of nonhuman persons is crucial to grappling with a non-dualist worldview. Thus, Zoe Todd calls for “anthropologists to treat Indigenous people’s human-animal engagements and ontological assumptions as literal rather than only symbolic matters.”^[268] Likewise, Nicholas Blomley notes that law “refuses a divide between reality and representation.”^[268]

Formal and everyday property creation operate reciprocally. The performative power of formal legal process always depends on reference to a much wider cultural context. As Blomley observes, “certain solitary speech acts or other performative moments,” like courtroom rulings or the “registration of a property interest in the Land Titles Office[] appear to, by themselves, bring a legal interest into being.”^[268] In fact, though, they depend on “dense networks of meaning, violence, record-keeping, and sedimented history that make such performances possible.”^[268] At the same time, formal legal creation of certain types of property interest and relationships disposes us to see those interests and relationships in our everyday life.

Easements are created paradigmatically through formal transactions involving transfers of deeds—traditional written instruments whose specific words are understood to create various types of legal property interest.^[268] But, just as in adverse possession everyday relationships can evoke ownership and so replace formal title, easements can emerge because of everyday conduct that manifests relations among humans and land identified in formal settings. So, for instance, when trucks picking up grain from a feed store routinely used a parking lot owned by another store, that use over time prompted a court to recognize a “prescriptive” easement, a legal right to use the lot owned by others.^[268] Like “devaru in the world,” prescriptive easements that develop through lived relationships among humans and land are both the original source of the formal easements in property deeds and recognizable and legally effective only because they reiterate the formal pattern those deeds inscribe.

Modernist explanations of property law tend to emphasize a dichotomy and potential conflicts between formal and informal property creation. For instance, the modernist view contrasts transfer of record title with occupation, court judgment with community practice, viewing these as entirely separate modes of property acquisition that are often at odds. But thinking of the way Nayak performances sensitize awareness of emergent persons in everyday life, we might see how legal performance spreads out of formal courtroom and transactional settings into everyday activities and how relationships in the wider world feed formal legal performance.

In this view, there is no clear divide between performance and reality. Objects and owners do not exist prior to the performances that produce them, but at the same time those interactions are productive only because in some sense they refer to or reproduce other previous enactments, including formally created ones. Blomley explores, for instance, how fence building has a performative as well as instrumental effect—constituting property at the same time that it marks a prior claim of ownership.^[268] Neighbors building a fence enact their ownership as subjects who “neither precede nor follow the act of fence building, but emerge as subjects of property through these very performances.”^[268] In this way property, and its enacting subjects, are at once constructed and recognized, made and found. Building or rebuilding the fence does not just mark property, it generates it. Yet, to be successful, the performative creation of property must refer to some originality, some previously enacted form that is always absent and always to some extent re-iterated, reproduced or re-presented in the present acts.^[268]

The legal creation/recognition of property is never finished; it requires constant attention and reiteration.^[268] Like the ongoing conversation necessary to keep “the Nayaka-devaru interaction and in a sense the devaru themselves ‘alive,’” the work of performing property is endless.^[268] And this need for endless repetition may speak to yet another commonality of Indigenous ritual personification and modern Western law, namely the incongruity between ritual forms and lived experience. Perhaps rituals and legal processes both must be endlessly renewed because, as Seligman and co-authors suggest, the “subjunctive world” both kinds of performance create “is always doomed ultimately to fail—the ordered world of flawless repetition can never fully replace the broken world of experience.”^[268]

Modern Westerners sometimes assume that ritual practitioners fail to recognize the gap between ritual and ordinary reality, but accounts of Indigenous ritual in a variety of contexts contradict those expectations. For instance, Bird-David notes that in the Nayak performance gatherings, participants both engage with the devaru persons embodied by entranced performers and critique the performers, evaluating “how skillfully they ‘bring’ the devaru ‘to life,’” noting how some performances are less evocative than others.^[268] Likewise in our modern legal culture, we move back and forth between acting as if judicial rulings recognize property that already exists to be found in the world, and viewing those rulings as creating or destroying property. And we critique judicial decisions as more or less persuasively evoking common-law standards that are understood to both preexist and be changed by the latest legal outcome.^[268] Like the Nayak devaru, who both appear spontaneously in everyday settings and are deliberately materialized through ritual, legal subject owners and the objects they own are both created through various formal performances and recognized in the world.

Confronted with this hybrid made-and-found legal world, modernist jurisprudential approaches rush to reestablish a more dualistic framework. Formalism understands determining legal personhood or property status as a matter of finding the legally relevant characteristics that somehow preexist the legal inquiry.^[268] In this naïve modern dualist view, what judges do when they identify legal owners and property is conduct a sort of objective investigation to discover the essential legal nature of the characters and entities involved. Their decision reports whether their investigation has found something owned or someone owning.^[268]

Legal realists observe, correctly, that no such objective legal status exists to be discovered out there in a nonlegal world unaffected by the legal decisionmaker. Focusing on the way property-law decisions create enforceable access to resources for some and exclude others from those resources, realists view legal property decisions as entirely a matter of constructing social power relations. In its focus on relationships, the realist view resonates with a non-dualist approach to personhood. In both worldviews, an individual’s power is always limited and generated by their relationship with others. But in another sense, the realist view is even more relentlessly dualistic and anthropocentric than formalism. Realists recognize only human relationships as primarily significant, and only humans are authentic natural persons. So realists want to unmask any other legal personifications as falsely endowing made-up entities with human attributes. For realists, nonhuman persons are suspect because they can be used to hide the real social, economic, and political forces such personifications enable. Realists assume that because legal personification involves a creative performance, rather than a pure act of natural discovery, it is not real.^[268]

In this way, realists essentialize a modern dualist split between natural reality and human social action even more rigidly than do formalists. For realists, any recognition of nonhumans as rights-bearing agents amounts to a formalist illusion that distracts us from the real world, a modern world in which natural entities are clearly separable from social structures and political interests. They view legal personhood and property as contingent social constructions. More-than-human subjects emerge from legal decisions through metaphorical sleight of hand, as illusory personifications or “thingifications” used to cover up the real social power relations that those legal decisions create and protect.^[268]

In my view, both formalist and realist approaches miss law’s holistic performative capacity to shape and reshape reality. Indeed, I now tend to think of formalism and realism not so much as opposing legal philosophies but as two traps into which one can fall by slipping out of the open-minded double consciousness needed to see legal relationships and persons as at once made and found. Relentless realist-formalist opposition closes off law’s creative potential—a creativity that is surprisingly evident in the most mundane property doctrines, like adverse possession and easements. Recognizing law’s endless interactive oscillation between finding and making owners and objects of property does something like what Irving Hallowell noticed in the Ojibwa approach to personhood: it “leaves a door open that our orientation on dogmatic grounds keeps shut tight.”^[268]

V. Conclusion

Doubtless, Anglo-American property law has long served to amplify exclusive human dominion over a world figured as instrumental resources. With that in mind, recognizing a river as a person would seem to disrupt the entire system of ordinary legal ownership. Yet familiar legal doctrines can summon up a queasy instability in relations between subject owners and objects of property and suggest a different worldview. In everyday property-law structures, humans find themselves enmeshed with more-than-human beings that escape absolute control and even, sometimes, exercise control over humans. We gain and lose recognition as rights bearers through interactive relations with land, and in the process, land acquires a kind of agency. These strains of legality run counter to an anthropocentric view of humans as the lone bearers of authentic personality and rights in an inert impersonal world.

Explicitly recognizing more-than-human personhood is something new in Anglo-American law. But the Te Awa Tupua Act—and others like it—can be seen as building out structures, attitudes, and practices that have long been present, though often overlooked.^[268] Legal capacity for agency, and even ownership, has not been entirely conceived as the product of essential qualities exclusively present in human beings. In this sense, explicit grants of rights-bearing personhood to rivers, trees, and mountains are radical not because they uproot and replace conventional property law, but because they uncover the personifying power of old legal roots and imagine new legal subjects emerging out of them.

Noticing the porous boundaries and ambivalent distinctions between things and persons in mainstream Western property law leads to two arguably opposite-facing conclusions, one quite pessimistic and the other more hopeful. From a skeptical point of view, recognizing longstanding holistic tendencies in Anglo-American law just shows how ineffectual those tendencies are. If openings for more-than-human personhood have been present all along, they manifestly have not prevented an anthropocentric version of Anglo-American property law from becoming dominant. Nor have they noticeably slowed the use of property law to justify the violent dispossession of Indigenous peoples and the destructive extraction of land. This Article was partly written in a city choked by smoke from wildfires burning thousands of miles of forests to the north, forests that were taken from Indigenous people under Western property-law structures that remain largely in place. Whatever their more-than-human aspects, those legal structures remain largely at odds with the holistic worldview of the people whose land they were used to appropriate, and with the world we now seem poised to obliterate. Without doubt, something more than the legal status quo will be needed to turn around this self-destructive trajectory.

From a more hopeful perspective, pointing out traces of more-than-human agency in traditional property doctrines may help ground new explicit grants of nonhuman personhood in a durable legal framework. True, any holistic tendencies of conventional property-law structures have so far done little to move law away from an anthropocentric view. They cannot save us from ourselves. But, especially at a time when “originalism” is in vogue, discovering more-than-human personhood in longstanding doctrine may make the idea more acceptable to legal decision-makers. Moreover, seeing how existing legal doctrines and practices can embody a wholly different worldview highlights the plasticity of legal structures—how, like the dynamic holistic more-than-human world, the legal system is in constant flux, always moving and reshaping, and how movement in the tiniest corner eventually affects every other place. When all human life is threatened by catastrophic changes brought about by modern Western interactions with a more-than-human world, it seems worth considering how existing legal structures can be interpreted to help construct more just and sustainable relationships in that world.

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1. George Eliot, Middlemarch: A Study of Provincial Life 840 (Foleshill ed. 1900).

2. Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, pt 2, s 13(b) (N.Z.); Eleanor Ainge Roy, New Zealand River Granted Same Legal Rights as Human Being, Guardian (Mar. 16, 2017, 12:50 AM), https://www.theguardian.com/world/2017/mar/16/new-zealand-river-granted-same-legal-rights-as-human-being [https://perma.cc/TR5U-SXEL].

3. Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, pt 2, s 14(1)–(2) (N.Z.).

4. For example, an Indian court recognized the legal personhood of the Ganges and Yamuna Rivers. Erin L. O’Donnell, At the Intersection of the Sacred and the Legal: Rights for Nature in Uttarakhand, India, 30 J. Env’t L. 135, 137 (2018). A constitutional provision adopted by Ecuador in 2008 provides that “Nature, or Pacha Mama, where life is reproduced and occurs, has the right to integral respect for its existence and for the maintenance and regeneration of its life cycles, structure, functions and evolutionary processes.” Constitución Política Del Ecuador [Constitution of the Republic of Ecuador] Oct. 20, 2008, tit. II, ch. 7, art. 71. In 2021, the Ecuadorian Constitutional Court revoked mining permits based on the rights of nature provision. Patrick Greenfield, Plans to Mine Ecuador Forest Violate Rights of Nature, Court Rules, Guardian (Dec. 2, 2021, 12:40 PM), https://www.theguardian.com/environment/2021/dec/02/plan-to-mine-in-ecuador-forest-violate-rights-of-nature-court-rules-aoe [https://perma.cc/Y3NJ-VPCF].

5. See, e.g., Roy, supra note 2 (“In a world-first a New Zealand river has been granted the same legal rights as a human being.”).

6. Tamaqua Borough, Schuylkill County, Pa., Code of Ordinances ch. 5, art. VI, § 260-61(f) (2006). A few years later, probably inspired by Tamaqua’s ordinance, the river less than a mile from my house in Pittsburgh was granted its own “rights to exist and flourish” where “[r]esidents of the City shall possess legal standing to enforce those rights on behalf those natural communities and ecosystems.” Pittsburgh, PA., Code of Ordinances art. I, § 104(b) (2011).

7. See, e.g., Santa Monica, Cal., Mun. Code § 12.02.030(b) (2019) (“Natural communities and ecosystems possess fundamental and inalienable rights to exist and flourish in the City of Santa Monica.”). Orange County voters approved the Wekiva River & Econlockhatchee Bill of Rights by 89% in 2020, but meanwhile, the Florida legislature amended the state’s Environmental Rights Act to forbid any local authority that would “recognize or grant any legal rights to a plant, an animal, a body of water, or any other part of the natural environment that is not a person or political subdivision.” Joseph Bonasia, Orange County Voters Approved Right to Clean Water, Fla. Times-Union (Nov. 15, 2020, 1:42 AM), https://www.jacksonville.com/story/opinion/columns/2020/11/15/column-orange-county-voters-approved-right-clean-water-possible-precedent-nation/6186916002/ [https://perma.cc/M2T5-ERSG]; Fla. Stat. § 403.412(9)(a) (2021). In 2022, a Florida judge held that the amended act preempted the county’s charter provision, dismissing the plaintiffs’ lawsuit seeking to defend the rights of a Florida lake. Order Granting Defendants’ Motions to Dismiss at 5, 7, Wilde Cypress Branch v. Beachline S. Residential, LLC, No. 2021-CA-004420-O (Fla. 9th Jud. Cir. Ct. July 6, 2022).

8. David R. Boyd, The Rights of Nature: A Legal Revolution that Could Save the World (2017) (discussing the trajectory of human’s interactions with nature and changing perspectives on the nature of legal rights of the natural world).

9. As David Boyd observes, “[t]he idea that nature is merely a collection of things intended for human use is one of the most universal and unquestioned concepts in contemporary society.” Id. at xxvi.

10. Gwendolyn J. Gordon, Environmental Personhood, 43 Colum. J. Env’t L. 49, 53–54, 74 (2018).

11. Your Local Lake or River Could Sue You? Not on Our Watch, Fla. Chamber of Com. (Jan. 29, 2020), https://www.flchamber.com/your-local-lake-or-river-could-sue-you-no
    t-on-our-watch/ [https://perma.cc/6APW-3NDM]; see also, Elizabeth Kolbert, A Lake in Florida Suing to Protect Itself, New Yorker (Apr. 11, 2022), https://www.newyorker.com/magazine/2022/04/18/a-lake-in-florida-suing-to-protect-itself [https://perma.cc/WE7F-SYD8].

12. See Citizens United v. FEC, 558 U.S. 310, 343 (2010). As Gwendolyn Gordon puts it, “[i]f constitutional rights protect already-powerful corporate entities as ‘persons’ (the argument goes), why not so protect things that actually, and desperately, need our protection?” Gordon, supra note 10, at 60.

13. See generally Christopher D. Stone, Should Trees Have Standing? Toward Legal Rights for Natural Objects, 45 S. Cal. L. Rev. 450 (1972) (arguing that the environment should have legal rights); Robin Kundis Craig, Rights of Nature Is Becoming a U.S. Reality, Nat. Res. & Env’t, Fall 2022, at 50, 50 (“Much of the intellectual foundation for Rights of Nature came from Christopher D. Stone and his famous article . . . .”).

14. Stone, supra note 13, at 463.

15. The U.S. Supreme Court treats Sir William Blackstone’s Commentaries on the Laws of England as evidence of the legal understanding of the framers of the U.S. Constitution. See Jessie Allen, Reading Blackstone in the Twenty-First Century and the Twenty-First Century Through Blackstone, in Re-Interpreting Blackstone’s Commentaries: A Seminal Text in National and International Contexts 215, 224–25 (Wilfrid Prest ed., 2014); see also, e.g., District of Columbia v. Heller, 554 U.S. 570, 593–94 (2008) (quoting Alden v. Maine, 527 U.S. 706, 715 (1999)) (Blackstone’s work “constituted the preeminent authority on English Law for the founding generation”).

16. To date, most legal controversies regarding nonhuman personhood have focused on the concept of “standing,” that is, on the capacity to launch legal claims in one’s own right. See, e.g., Tilikum v. Sea World Parks & Ent., Inc., 842 F. Supp. 2d 1259, 1264 (S.D. Cal. 2012) (dismissing orcas’ 13th Amendment claim for lack of standing because “the Amendment only applies to humans, and not orcas”). I agree that standing to bring lawsuits is an important aspect of legal subjecthood, both formally and pragmatically. But I am focusing here on a different legal area, namely property law.

17. See, e.g., William N. Eskridge, Jr., Nino’s Nightmare: Legal Process Theory as a Jurisprudence of Toggling Between Facts and Norms, 57 St. Louis L. Rev. 865, 880 (2013).

18. 2 William Blackstone, Commentaries *2.

19. Id. at *384.

20. Id. (emphasis omitted).

21. Stone, supra note 13, at 456.

22. 2 Blackstone, supra note 18, at *20.

23. . Restatement (Third) of Prop.: Servitudes § 1.2(1) cmt. a (Am. L. Inst. 2000) (“An easement creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement.”).

24. For a discussion of the problems of defining Indigeneity and discussing Indigenous knowledge in a Western academic context, see infra Part II.

25. See discussion infra Part IV.

26. See, e.g., Emille Boulot & Afshin Akhtar-Khavari, Law, Restoration and Ontologies for a More Ecologically Complex World!, 39 U. Queensland L.J. 449, 452–53 (2020) (“Along with the legal illusion of control and stability that remains prominent in international and national norms, environmental governance continues a single-trait, maximum-sustained yield paradigm that is top-down . . . .”); Jérémie Gilbert et al., The Rights of Nature as a Legal Response to the Global Environmental Crisis? A Critical Review of International Law’s ‘Greening’ Agenda, 2021 Neth. Y.B. Int’l L. 47, 51; Irus Braverman, More-than-Human Legalities: Advocating an “Animal Turn” in Law and Society, in The Handbook of Law and Society 307, 308 (Austin Sarat & Patricia Ewick eds., 2015).

27. The eighteenth-century Utilitarian philosopher Jeremy Bentham mocked William Blackstone’s Commentaries as an apologia for the legal status quo, pointing to this sentence from Blackstone’s section on heresy, alleging that it actually summed up Blackstone’s analysis of the entire English legal system. Jeremy Bentham, A Fragment on Government xiv, 400, 407 (1776).

28. . Saidiya V. Hartman, Scenes of Subjection: Terror, Slavery, and Self-Making in Nineteenth-Century America 123 (1997).

29. Victor Turner, Betwixt and Between: The Liminal Period in Rites of Passage, in Betwixt and Between: Patterns of Masculine and Feminine Initiation 3, 6 (Louise Carus Madhi et al. eds., 1987).

30. . Bruno Latour, We Have Never Been Modern 10–11 (Catherine Porter trans., 1993) (1991).

31. Nurit Bird-David, “Animism” Revisited: Personhood, Environment, and Relational Epistemology, 40 Current Anthropology S67, S68 (Supp. 1999).

32. Blackstone offers an early articulation of the critical approach that Latour dates from the nineteenth century, observing that “we often mistake for nature what we find established by long and inveterate custom.” 2 Blackstone, supra note 18, at *11.

33. . Latour, supra note 30, at 35.

34. Vicki Kirby notes that cultural constructivists double down on human exceptionalism by installing “human species being as sole author and reader of its world.” Vicki Kirby, Matter Out of Place: New Materialism in Review, in What if Culture Was Nature All Along? 5, 7 (Vicki Kirby ed., 2017).

35. Even Rene Descartes, the eponymous founder of modern mind–body (“Cartesian”) dualism, observed, “I am not present in my body merely as a pilot is present in a ship.” See Rene Descartes, Sixth Meditation in Meditations on First Philosophy, in Descartes: Philosophical Writings 109, 117 (Elizabeth Anscombe & Peter Thomas Geach eds. & trans., 1954).

36. See Elena E. Georgi, From Many, One, Scientist (Apr. 1, 2015), https://www.the-scientist.com/features/from-many-one-35710 [https://perma.cc/4AU3-HDAL] (“[W]e harbor millions of bacteria and other microorganisms that can indeed impact our phenotype depending on what genes they express . . . .”). In “microchimerism,” some of a fetus’s cells persist and become embedded in various organs and become a part of the parent. Id. Just as human bodies are full of other organisms, the “environment” is full of human bodies. See id. “[H]umans shed their entire outer layer of skin every 2 to 4 weeks.” Charles J. Weschler et al., Squalene and Cholesterol in Dust from Danish Homes and Daycare Centers, 45 Env’t Sci. & Tech. 3872, 3872 (2011). Shed skin is a “major constituent[]” of house dust. Id. Luckily, it seems that human skin in the air has the salutary effect of somehow reducing (other) indoor air pollution. Id. at 3877.

37. See Marc D. Hauser et al., The Faculty of Language: What Is It, Who Has It, and How Did It Evolve?, 298 Science 1569, 1573 (2002), https://www.science.org/doi/10.1126/science.298.5598.1569 [https://perma.cc/TPL5-SJJJ]; Sonia Shah, The Animals Are Talking. What Does It Mean?, N.Y. Times, https://www.nytimes.com/2023/09/20/magazine/animal-communication.html [https://perma.cc/8F2U-BEK7] (last updated Sept. 22, 2023); Shona Duguid & Alicia P. Melis, How Animals Collaborate: Underlying Proximate Mechanisms, 11 WIREs Cognitive Sci. 1, 2 (Apr. 1, 2020), https://wires.onlinelibrary.wiley.com/doi/epdf/10.1002/wcs.1529 [https://perma.cc/2QCJ-LT6E]; Vicki K. Bentley-Condit & E.O. Smith, Animal Tool Use: Current Definitions and an Updated Comprehensive Catalog, 147 Behaviour 185, 189 (2010), https://brill.com/view/journals/beh/147/2/article-p185_3.xml?language=en [https://perma.cc/4PMP-J6UF].

38. See, e.g., Merlin Sheldrake, Entangled Life: How Fungi Make Our Worlds, Change Our Minds & Shape Our Futures 135–36 (2021) (describing experiments revealing a system of carbon–phosphorous exchange between plants and fungi that was “in some sense negotiated between the two depending on the availability of resources”).

39. . Latour, supra note 30, at 13.

40. Id. at 6 (emphasis omitted).

41. Id.

42. Id. at 13.

43. Bruno Latour, On Actor-Network Theory: A Few Clarifications, 47 Soziale Welt 369, 372 (1996).

44. Id. at 373.

45. Jane Bennett, Vibrant Matter: A Political Ecology Of Things 23 (2010). Bennett aims “to theorize a materiality that is as much force as entity.” Id. at 20.

46. . Id. at 23.

47. Id. at 40.

48. . Id.; Latour, supra note 30, at 1–2.

49. Latour, supra note 30, at 12.

50. . Bennett, supra note 45, at viii.

51. Id.

52. Id. at 51.

53. See id. In a more mainstream context, consider the popular organizational consultant Marie Kondo’s insistence on the need to recognize the power of household objects and personal items to “spark joy” in us. See generally Marie Kondo, The Life-Changing Magic of Tidying Up: The Japanese Art of Decluttering and Organizing (Cathy Hirano trans., 2014) (2011).

54. . Donna J. Haraway, Simians, Cyborgs, and Women: The Reinvention of Nature 197 (1991).

55. Id. at 213.

56. Id. at 201.

57. Id.; see also Kirby, supra note 34, at 1–2 (observing that the ability of symbols (e.g., mathematical formulas) “to re-present, or capture a world that is not inherently symbolic” is “a riddle whose mysteries are almost invisible because commonplace”); Karen Barad, Meeting the Universe Halfway: Quantum Physics and the Entanglement of Matter and Meaning 31 (2007) (discussing physicist Neils Bohr’s assertion that “agencies of observation” cannot be “‘subtracted out’ to leave a representation of the world as it exists independently of human beings”).

58. Haraway, supra note 54, at 197–98, 209.

59. Id. at 198.

60. . Bennett, supra note 45, at 11.

61. . Id. at 9–10.

62. Id.

63. Id. at 10 (emphasis omitted).

64. Even the definition of who counts as Indigenous is contested. This Article adopts the United Nations standard of self-identification that defines Indigenous peoples as those “having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, [and] consider themselves distinct from other sectors of the societies now prevailing on those territories, or parts of them.” Secretariat of the Permanent Forum on Indigenous Issues, The Concept of Indigenous Peoples, ¶ 2, U.N. Doc. PFII/2004/WS.1/3 (Jan. 19–21, 2004). According to Indigenous scholar, Joanne Barker, this definition “is important not as a capture of the essence or truth of what it means to be indigenous,” but because “it instances the political agendas of those aligned through the United Nations to rearticulate themselves as ‘indigenous communities, peoples and nations’ with human rights to self-determination.” Joanne Barker, Native Acts: Law, Recognition, and Cultural Authenticity 9 (2011).

65. See Michael Marker, There Is No Place of Nature; There Is Only the Nature of Place: Animate Landscapes as Methodology for Inquiry in the Coast Salish Territory, 31 Int’l J. Qualitative Stud. Educ. 453, 456 (2018) (observing that distanced Western academic accounts of Indigenous cosmology may “perpetuate an ongoing colonial legacy of demolition”); see also Jerry Lee Rosiek et al., The New Materialisms and Indigenous Theories of Non-Human Agency: Making the Case for Respectful Anti-Colonial Engagement, 26 Qualitative Inquiry 331, 332–34 (2020); Glen S. Coulthard, Subjects of Empire: Indigenous Peoples and the ‘Politics of Recognition’ in Canada, 6 Contemp. Pol. Theory 446–47 (2007).

66. Isabel Altamirano-Jiménez, The Colonization and Decolonization of Indigenous Diversity, in Lighting the Eighth Fire: The Liberation, Resurgence, and Protection of Indigenous Nations 175, 179 (Leanne Simpson ed., 2008).

67. See Glen Coulthard, Beyond Recognition: Indigenous Self-Determination as Prefigurative Practice, in Lighting the Eighth Fire, supra note 66, at 187, 188–89.

68. Ambelin Kwaymullina & Blaze Kwaymullina, Learning to Read the Signs: Law in an Indigenous Reality, 34 J. Austl. Stud. 195, 195–96 (2010).

69. Sarah Hunt/Tłaliłila’ogwa, Unsettling Conversations on Climate Action, 74 Pro. Geographer 135, 135 (2022).

70. Sarah Hunt, Ontologies of Indigeneity: The Politics of Embodying a Concept, 21 Cultural Geographies 27, 29 (2014).

71. Id.

72. Id. See also Rosiek et al., supra note 65, at 337.

73. See Catherine J. Iorns Magallanes, Māori Cultural Rights in Aotearoa New Zealand: Protecting the Cosmology That Protects the Environment, 21 Widener L. Rev. 273, 276–79, 281, 283 (2015) (discussing the relationship between Māori views of nature and Western liberalism); see also Arnu Turvey, Te Ao Māori in a “Sympathetic” Legal Regime: The Use of Māori Concepts in Legislation, 40 Victoria U. Wellington. L. Rev. 531, 533–35 (2009) (arguing that although some Māori concepts have been incorporated into New Zealander legislation to give effect to the Treaty of Waitangi, incorporation sometimes leads to the appropriation and distortion of Indigenous concepts).

74. Digno José Montalván Zambrano, The Protection of Lands and Territories of Indigenous Peoples Through Human Rights: The Controversy Raised in the Case of Lhaka Hoonhat (Nuestra Tierra) v. Argentina, RIVERS (July 28, 2020), https://rivers-ercproject.eu/the-protection-of-lands-and-territories-of-indigenous-peoples-through-human-rights/ [https://perma.cc/4ATH-M9V8].

75. Roger Merino, Conflicting Sovereignties: Global Conservation, Protected Areas, and Indigenous Nations in the Peruvian Amazon, 22 Glob. Env’t. Pol. 95, 97 (2022).

76. See, e.g., Turvey, supra note 73, at 546–47; John P. La Velle, Rescuing Paha Sapa: Achieving Environmental Justice by Restoring the Great Grasslands and Returning the Sacred Black Hills to the Great Sioux Nation, 5 Great Plains Nat. Res. J. 40, 70–71 (2001).

77. See Irene Watson, Re-Centering First Nations Knowledge and Places in a Terra Nullius Space, 10 AlterNative 508, 518 (2014).

78. See Hunt/Tłaliłila’ogwa, supra note 69, at 135–36 (asking why Indigenous peoples’ knowledge is not centered in academic climate change conversations). Another strategy I considered was to use only the work of self-identified Indigenous scholars in describing Indigenous worldviews. But I gave up on this approach for several reasons. First, claims of personal identity and perspective do not, in my view, necessarily validate a speaker’s understanding of a particular group, culture, or history. Moreover, as an outsider to the network of Indigenous scholars and to all Indigenous cultures, I have little basis for assuming that any given Indigenous scholar has an accurate view of their community’s philosophy and practices, let alone an exclusively legitimate prerogative to describe all Indigenous worldviews. The best I can do is pay attention to what Indigenous writers have to say and draw my own conclusions. At the same time, while some Western scholarship is tone deaf to Indigenous thoughtways and practices (and has been called out as such by both Indigenous and other Western scholars), some Western anthropologists seem sensitive to the complexity of the Indigenous cultures they observe and able to reflect on the limits of their own Western perspectives. The upshot is that in what follows, I use accounts of Indigenous worldviews by both Indigenous and Western scholars in my attempt to illuminate Indigenous perspectives on nonhuman agency.

79. Hunt/Tłaliłila’ogwa, supra note 69, at 135.

80. Id.

81. Id.

82. Kwaymullina & Kwaymullina, supra note 68, at 195–96 (emphasis omitted).

83. Id. at 196.

84. Id. at 197.

85. See Bird-David, supra note 31, at S73 (“Nayaka maintain social relationships with other beings not because . . . they a priori consider them persons,” rather “by sharing with them” they “make them persons.”) (emphasis added).

86. Id.

87. Id. Bird-David draws on the work of Marilyn Strathern, who explains that in the Indigenous Melanesian cultures she has studied, persons are not “imagined as conceptually distinct from the relations that bring them together.” Marilyn Strathern, The Gender of the Gift: Problems with Women and Problems with Society in Melanesia 12–13 (1988).

88. Bird-David, supra note 31, at S73.

89. . Graham Harvey, Animism: Respecting the Living World xv, xvii (2006).

90. James Leach*, The Death of a Drum: Objects, Persons, and Changing Social Form on the Rai Coast of Papua New Guinea*, 21 J. Royal Anthropological Inst. 620, 624 (2015).

91. Id. at 624 (quoting Strathern, supra note 87, at 299).

92. Id. at 621.

93. Id. at 620.

94. Id. at 621, 626–28.

95. Fred (Gopit) Metallic, Strengthening Our Relations in Gespe’gewa’gi, the Seventh District of Mi’gma’gi, in Lighting the Eighth Fire, supra note 66, at 59, 68.

96. Id. at 69.

97. Id. at 60–62.

98. Id. at 62, 64.

99. Rosniek and his co-authors observe that “explications of the relation between particularity, non-human agency, knowledge, thought, place, and being are ubiquitous” in Indigenous studies. See Rosniek et al., supra note 65, at 337.

100. Kwaymullina & Kwaymullina, supra note 68, at 198, 201–02 (emphasis omitted).

101. Id. at 201.

102. Id. at 202.

103. Id. at 201–02.

104. Rosiek et al., supra note 65, at 338 (citing Vanessa Watts, Indigenous Place-Thought and Agency Amongst Humans and Non-Humans (First Woman and Sky Woman Go on a European World Tour!), 2 Decolonization: Indigeneity, Educ. & Soc’y 20, 21 (2013)).

105. Marker, supra note 65, at 456.

106. Id. at 456–57.

107. A. Irving Hallowell, Encyc. Britannica, https://www.britannica.com/biography/A-Irving-Hallowell [https://perma.cc/7ZER-QGC5] (last visited Sept. 21, 2024); A. Irving Hallowell, Ojibwa Ontology, Behavior, and World View, in Primitive Views of the World 49, 51 (Stanley Diamond ed., 1964). Hallowell notes that, although “in all cultures ‘persons’ comprise one of the major classes of objects to which the self must become oriented, this category of being is by no means limited to human beings.” Id. at 51 (emphasis omitted).

108. Hallowell, supra note 107, at 53–54.

109. See id. at 54, 56 (emphasis omitted).

110. Danny Naveh & Nurit Bird-David, How Persons Become Things: Economic and Epistemological Changes Among Nayaka Hunter-Gatherers, 20 J. Royal Anthropological Inst. 74, 74, 88 (2014).

111. Bird-David, supra note 31, at S75.

112. Id. at S73, S75.

113. Id. at S73.

114. Id.

115. Id.

116. Katherine Swancutt, Animism, in The Open Encyclopedia of Anthropology 1, 7 (Felix Stein ed., 2019), http://doi.org/10.29164/19anim [https://perma.cc/3JRA-K8UZ].

117. Hunt, supra note 70, at 27.

118. Bird-David, supra note 31, at S71, S74–S75.

119. Metallic, supra note 95, at 64.

120. Id.

121. Bird-David, supra note 31 at S75–S76.

122. Id. “With numerous repetitions or minor variations on a theme, Nayaka and devaru nag and tease, praise and flatter, blame and cajole each other, expressing and demanding care and concern.” Id. at S76.

123. Id.

124. Id. at S76–S77.

125. Id. (emphasis added).

126. See discussion infra Section III.C.

127. See discussion infra Section III.B.

128. The recent Court rulings are definitionally current legal authorities. And while Blackstone’s treatise is more than 200 years old, it remains a go-to resource for U.S. courts. See Allen, supra note 15, at 218–19. Blackstone’s popular treatise was apparently influential for the drafters, ratifiers, and early judicial interpreters of the U.S. Constitution. See Albert W. Alschuler, Rediscovering Blackstone, 145 U. Pa. L. Rev. 1, 5, 15 (1996); see also Dennis R. Nolan, Sir William Blackstone and the New American Republic: A Study of Intellectual Impact, 51 N.Y.U. L. Rev. 731, 744, 746, 755, 759, 767–68 (1976). As legal historian Robert Ferguson observes, the founding documents of the United States are “steeped in” Blackstone. Robert A. Ferguson, Law and Letters in American Culture 11 (1984). U.S. founders sometimes took issue with Blackstone’s version of common law. See, e.g., Chisholm v. Georgia, 2 U.S. 419, 460 (1793) (opinion of Wilson, J.) (rejecting Blackstone’s views on sovereign immunity). Nevertheless, there is a wide consensus that his text was influential. The U.S. Supreme Court perennially cites Blackstone for “originalist” understandings of U.S. law, declaring that the framers of the U.S. Constitution “were formed by Blackstone.” Rogers v. Tennessee, 532 U.S. 451, 477 (2001) (Scalia, J., dissenting); see also District of Columbia v. Heller, 554 U.S. 570, 593–94 (2008) (stating Blackstone was the “preeminent authority” on common law at the time of the United States’ founding); Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 832–33 (2011) (Thomas, J., dissenting) (citing Washington v. Glucksberg*,* 521 U.S. 702, 712 (1997) (“Blackstone’s Commentaries was a ‘primary legal authority for 18th- and 19th-century American lawyers.’”)). But see Martin Jordan Minot, Note, The Irrelevance of Blackstone: Rethinking the Eighteenth-Century Importance of the Commentaries, 104 Va. L. Rev. 1359, 1397 (2018). Several important recent U.S. Supreme Court property-law decisions draw on Blackstone. See, e.g., Cedar Point Nursery v. Hasid, 141 S. Ct. 2063, 2072 (2021) (quoting Blackstone in support of the idea that a strong right of exclusion is of primary importance for property).

129. 2 Blackstone, supra note 18, at *201.

130. See, for example, this definition of “tract” in an online commercial real estate dictionary:

     Simplified, a Tract is a parcel of land.

     A tract of land typically refers to a large piece of land that is designated or identified as a distinct unit for legal, administrative, or surveying purposes. The exact size and boundaries of a tract of land can vary depending on the context in which it is used, but it generally implies an area of land that is larger than a single lot or parcel and may encompass multiple lots or parcels.

     What Is a Tract?, Stewart, https://www.stewart.com/en/real-estate-dictionary/tract [https://perma.cc/4JHR-JYVR] (last visited Aug. 3, 2024).

131. See Latour, supra note 30, at 6; Bennett, supra note 45, at 23–24.

132. 2 Blackstone, supra note 18, at *16.

133. Id.

134. Id. at *17.

135. Id. at *18.

136. Id. at *17–18*.*

137. Id. at *18.

138. Kwaymullina & Kwaymullina, supra note 68, at 198; Marker, supra note 65, at 456, 463; 2 Blackstone, supra note 18, at *16, *20 (explaining corporeal and incorporeal hereditaments).

139. 2 Blackstone, supra note 18, at *103 (“An estate in lands, tenements, and hereditaments, signifies such interest as the tenant has therein. . . . It is called in Latin status; it signifying the condition or circumstance in which the owner stands with regard to his property.”).

140. Amanda Byer contends that in Anglo-Saxon Britain before the Norman Conquest, the word “land” was not primarily spatial and the institutions of legal administration were fundamental to its meaning, “not dissimilar to our word country.” Amanda Byer, Before Property: A Prehistory of Property Rights in Land 6 (Univ. Coll. Dublin Working Papers in L., Criminology & Socio-Legal Stud., Working Paper No. 10, 2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4293847 [https://perma.cc/GA6F-W4LC].

141. Naveh & Bird-David, supra note 110, at 85.

142. . Allan Greer, Property and Dispossession: Natives, Empires and Land in Early Modern North America 12 (2018); see also Theodore Steinberg, Slide Mountain or the Folly of Owning Nature 5 (1995).

143. And don’t forget the fungal mycelial networks that apparently run throughout: “sprawling, interlaced webs strung through the soil . . . through plant and animal bodies both alive and dead, in rubbish dumps, carpets, floorboards, old books in libraries . . . .” Sheldrake, supra note 38, at 46. According to microbiologist Merlin Sheldrake, mycelium is so ubiquitous and pervasive that it is practically impossible to measure its interactive presence in “the Earth’s structures, systems, and inhabitants—its weave is too tight.” Id. So, it seems that land inevitably includes this living organism—or organisms—intermingled with everything else. Id.

144. Murr v. Wisconsin, 582 U.S. 383, 397–98 (2017).

145. Id. at 397.

146. Id. at 398.

147. Id. at 398, 403.

148. For a critique of the “New Private Law” or “architectural” approach to defining objects of property, and a sociolegal investigation of the boundaries of “land” as an object of property for everyday folks, see Nicholas Blomley, The Boundaries of Property: Complexity, Relationality, and Spatiality, 50 L. & Soc’y Rev. 224, 248 (2016); see also Meghan L. Morris, Property and the Social Life of Things, 97 Tul. L. Rev. 403, 413–14 (2023).

149. Pa. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922) (citing U.S. Const. amend. V).

150. See Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1054 (1992) (Blackmun, J., dissenting) (“[W]hether the owner has been deprived of all economic value of his property will depend on how ‘property’ is defined. The ‘composition of the denominator in our “deprivation” fraction,’ ante, at 1017, n. 7, is the dispositive inquiry. Yet there is no ‘objective’ way to define what that denominator should be.”).

151. Murr, 582 U.S. at 395 (quoting Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 497 (1987)). This conceptualization of ownership as something that can be quantified arithmetically exemplifies an attempt to capture the legal culture of property in modern rationalist terms. But that attempt so far has been unavailing.

152. Id.

153. Mahon, 260 U.S. at 412–13.

154. Id. at 412. Property law routinely divides indefinitely extensive property in land into different “estates”—creating separate ownerships, and owners, of mineral rights underground, surface rights to use and build up to a (sometimes measured, sometimes uncertain) height above ground, and additional air rights beyond limited surface rights. See 58 C.J.S. Mines and Minerals § 202 (2017) (“mineral interest may be severed from, and exist as a fee interest independent of a surface estate”); see also Pa. Cent. Transp. Co. v. New York City, 438 U.S. 104, 137 (1978) (discussing the potential division and transfer of air rights).

155. Mahon, 260 U.S. at 412.

156. Id. at 412, 416.

157. Id. at 412, 414–15.

158. Id. at 417 (Brandeis, J., dissenting).

159. Id. at 419.

160. 2 Blackstone, supra note 18, at *18.

161. Mahon, 260 U.S. at 419 (Brandeis, J., dissenting).

162. The first of these arose when the Penn Central Transportation Company, which owned New York’s Grand Central Station, made a deal to sell the air rights above the station to a company that planned to build a skyscraper. Pa. Cent. Transp. Co. v. New York City, 438 U.S. 104, 115–17 (1978). After the New York City Landmarks Commission put the kibosh on the idea of building a tower on top of the terminal, Penn Central sued, claiming that the ruling effectively deprived them of the entire value of the air rights and so amounted to an unconstitutional taking. Id. at 117, 130. The Court disagreed. The majority calculated the economic effect of the landmark ruling not as the complete deprivation of the owner’s air rights, but as the loss of only a relatively insignificant part of the property at stake, which included not only the space above the terminal that the owners wished to sell, but the station’s overall use and profits, and indeed, the value of the entire city block which was the original property Penn Central developed when it set about building the train station. Id. at 129–31, 135–38.

163. Murr v. Wisconsin, 582 U.S. 383, 395 (2017).

164. Id. at 388–89.

165. Id. at 389–90.

166. Id. at 390–92.

167. Morris, supra note 148, at 423.

168. Murr, 582 U.S. at 407.

169. Id. (Roberts, C.J., dissenting). The State’s definition may not disavow traditional property interests, and the court considering the takings question can consider “common ownership of adjacent property.” Id. at 407, 412.

170. Id. at 397.

171. Id. at 397–98.

172. Id.

173. Id. at 398–99.

174. Id. at 397–98.

175. See discussion supra Section II.B.; Murr, 582 U.S. at 397–99.

176. Murr, 582 U.S. at 397 (“The endeavor should determine whether reasonable expectations about property ownership would lead a landowner to anticipate that his holdings would be treated as one parcel, or, instead, as separate tracts. The . . . reasonable expectations at issue derive from background customs and the whole of our legal tradition.”).

177. Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 4 (rev. ed. 2009) (“On the eve of the American Revolution, in seven colonies men had to own land of specified acreage or monetary value in order to participate in elections; elsewhere, the ownership of personal property of a designated value . . . could substitute for real estate.”).

178. See id. at 365 tbl.A.17, 366 tbl.A.18.

179. Kwaymullina & Kwaymullina, supra note 68, at 201.

180. 1 William Blackstone, Commentaries *171.

181. Id.

182. Teresa Michals, “That Sole and Despotic Dominion”: Slaves, Wives, and Game in Blackstone’s Commentaries, 27 Eighteenth-Century Stud. 195, 199–200 (1993).

183. 1 Blackstone, supra note 180, at *173.

184. Id. at *172.

185. See Reynolds v. Sims, 377 U.S. 533, 562 (1964) (“It would appear extraordinary to suggest that a State could be constitutionally permitted to enact a law providing that certain of the State’s voters could vote two, five, or 10 times for their legislative representatives, while voters living elsewhere could vote only once.”); see also Gray v. Sanders, 372 U.S. 368, 381 (1963) (“The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.”).

186. Voter Registration Application, PA Online Voter Reg., https://www.pavoterservi
     ces.pa.gov/Pages/VoterRegistrationApplication.aspx [https://perma.cc/B58C-JHN8] (last visited Oct. 6, 2024).

187. Phil Keisling, A Better Path to Accurate Voter Rolls, Governing (Sept. 27, 2018), https://www.governing.com/archive/col-better-path-more-accurate-voter-rolls-postcard.html [https://perma.cc/D26Y-JPCL].

188. See, e.g., Thomas W. Merrill & Henry E. Smith, The Morality of Property, 48 Wm. & Mary L. Rev. 1849, 1858 (2007) (“Property can be regarded as a robust right to possess over time; ultimately the right to exclude is the right to determine who can possess the thing in question.”).

189. See generally Ward v. Cochran, 150 U.S. 597, 606–07 (1893) (asserting the legitimacy of adverse possession laws among various states); Brown v. Gobble, 474 S.E.2d 489, 496 (W. Va. 1996) (defining the conditions of adverse possession); 42 Pa. Cons. Stat. § 5527.1(a) (2018) (stipulating a ten-year minimum for an adverse possession claimant to have openly and hostilely possessed another’s land before asserting a claim for adverse possession).

190. See, e.g., Thomas W. Merrill, Property and the Right to Exclude, 77 Neb. L. Rev. 730, 730 (1998) (calling the right to exclude the “sine qua non” of property).

191. See, e.g., Lysak v. Grull, 812 A.2d 840, 844 (Vt. 2002) (“In order to earn title to property by adverse possession, each of the petitioners must establish open, notorious, hostile, and continuous possession of the property through the statutory period of fifteen years.”). The required period varies widely from state to state, from 5 years (3 states) to 40 years (1 state), with most states requiring 10 to 20 years. 10 Thompson on Real Property 84–92 (David A. Thomas ed., 3d Thomas ed. 2013 & Supp. 2023).

192. . Joseph William Singer et al., Property Law: Rules, Policies, and Practices 309 (8th ed. 2022).

193. See Carol M. Rose, Possession as the Origin of Property, 52 U. Chi. L. Rev. 73, 77–78 (1985) (citing 2 Blackstone, supra note 18, at *9) (explaining possession as a source of property rights on the theory that it is a clear act that communicates a claim of property and so enables social coordination and pointing out that Blackstone himself speaks of possession as a “declaration” of ownership); see also Nicholas Blomley, Performing Property: Making the World, 26 Canadian J.L. & Juris. 23, 34, 36 (2013) (proposing a performative model in which ownership is enactment rather than communicative signaling, and describing fence building as a performance through which landowners “neither precede nor follow the act of fence building, but emerge as subjects of property through these very performances”); see discussion supra note 190 and infra notes 206–08.

194. Of course, it is also possible that adverse possession is an anomalous doctrine that runs counter to the basic moral-conceptual scheme of private property.

195. See, e.g., Jennifer Hiatt, Ctr. for Rural Affs., Adverse to Change: A Modern Look at Adverse Possession 1 (2019), https://www.cfra.org/sites/default/files/publications/adverse-to-change-a-modern-look-at-adverse-possession.pdf [https://perma.cc/4EP6-4XZ9] (“Neglected or abandoned land has limited value. . . . If land is not maintained, it becomes a nuisance and lowers the value of the properties surrounding it. In this way, an absentee owner infringes on the rights of others.”).

196. . Robert Cooter & Thomas Ulen, Law and Economics 162 (Denise Clinton et al. eds., 5th ed. 2007).

197. Rose, supra note 193, at 79–80.

198. Tioga Coal Co. v. Supermarkets Gen. Corp., 546 A.2d 1, 5 (Pa. 1988) (quoting Justice Holmes in Max Lerner, The Mind and Faith of Justice Holmes: His Speeches, Essays, Letters, and Judicial Opinions 417 (1953)). The source of this quote—a letter to Justice Holmes’s lifelong friend, the great psychologist and philosopher William James—perhaps explains, at least partly, its unusual affective focus. Id.; see G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self 89, 92–93 (1993).

199. Bird-David, supra note 31, at S72.

200. See Naveh & Bird-David, supra note 110, at 75 (“The local own sense of ‘persons’ is best summed up as those who live together and share experiences, resources, and, in a sense, their selves. In this sense, ‘persons’ is fairly close to the local sense of ‘relatives.’”); see also Leach, supra note 90, at 630 (“The person as a nexus of particular relations to affines is an appearance of those relations, an objectification of them, at a particular moment.”).

201. Bird-David, supra note 31, at S74. Similarly, in Haraway’s model of knowledge acquired through “conversation” with nonhuman others, and Metallic’s descriptions of teaching by other-than-humans (salmon, rivers), nonhuman entities communicate knowledge to humans. See Haraway, supra note 54, at 209–10; see also Metallic, supra note 95, at 67–70.

202. See discussion supra notes 40–44.

203. . Bennett, supra note 45, at viii (citing Bruno Latour, Politics of Nature: How to Bring Sciences into Democracy 237 (Catherine Porter trans., 2004)).

204. Kwaymullina & Kwaymullina, supra note 68, at 206.

205. See, e.g., Hoover v. Callen, 134 So. 3d 828, 832 (Miss. Ct. App. 2014) (“The adverse possessor must also possess the property without permission, because permission defeats any claim of adverse possession.”) (citing Roberts v. Young’s Creek Inv. Inc., 118 So. 3d 665, 670 (Miss. Ct. App. 2013)).

206. See Kudar v. Morgan, 521 P.3d 988, 995 (Wyo. 2022) (“To support a finding of permissive use, [the titleholder] must establish that he or she actually communicated, either explicitly or implicitly, to the adverse claimant that he or she was allowing the adverse claimant to use the disputed property at his or her sufferance.”) (quoting Whitman v. Denzik, 882 N.E.2d 260, 269 (Ind. Ct. App. 2008)).

207. One possible policy explanation for this requirement of intentional wrongdoing is to encourage squatters to take over and use land that has been left to deteriorate by absent titleholders, while not validating accidental border overreach between present landowners. Joseph William Singer et al., Property Law: Rules, Policies, and Practices 297 (7th ed. 2017) (citing Eduardo M. Peñalver & Sonia K. Katyal, Property Outlaws 133–34 (2010)).

208. Tioga Coal Co. v. Supermarkets Gen. Corp., 546 A.2d 1, 3 (Pa. 1988) (quoting R.H. Helmholz, Adverse Possession and Subjective Intent, 61 Wash. U. L.Q. 331, 331 (1983)).

209. Id. at 4 (quoting Schlagel v. Lombardi, 486 A.2d 491, 494 (Pa. Super. Ct. 1984)).

210. Nome 2000 v. Fagerstorm, 799 P.2d 304, 309 (Alaska 1990).

211. Id. (quoting Shilts v. Young, 567 P.2d 769, 776 (Alaska 1977)).

212. Bird-David, supra note 31, at S73.

213. Tioga Coal Co., 546 A.2d at 4.

214. See id. at 5.

215. Bird-David, supra note 31, at S73–S74.

216. . Bennett, supra note 45, at viii (citing Latour, supra note 203, at 237).

217. Bird-David, supra note 31, at S76 (Nayaka identify each nonhuman devaru person “by how it idiosyncratically interrelates with Nayaka (how it laughs with, talks with, gets angry at, responds to Nayaka, etc.)”).

218. 2 Blackstone, supra note 18, at *2, *18.

219. Villein, Black’s Law Dictionary (11th ed. 2019) (“At the time of the Domesday Inquest (shortly after the Norman Conquest), about 40% of households were marked as belonging to villeins: they were the most numerous element in the English population.”); 1 Thompson on Real Property § 5.03(a)(1)–(2) (3d Thomas ed. 2022).

220. Mark Bailey, Villeinage in England: A Regional Case Study, c.1250–c.1349, 62 Econ. Hist. Rev. 430, 430 (2009); Alexander Savine, Bondmen Under the Tudors, 17 Transactions Royal Hist. Soc’y 235, 235–36 (1903).

221. 2 Blackstone, supra note 18, at *93.

222. Id.

223. Id.; see also Somerset v. Stewart (1772) 98 Eng. Rep. 499, 500 (KB).

224. 2 Blackstone, supra note 18, at *94.

225. Id.

226. . Paul R. Hyams, King, Lords and Peasants in Medieval England: The Common Law of Villeinage in the Twelfth and Thirteenth Centuries 27–29 (1980).

227. Savine, supra note 220, at 235–36, 241 (asserting that villeinage disappeared by the end of the Tudor period, i.e., 1603). Across the Atlantic, of course, another form of property in humans persisted until the end of the nineteenth century. There is much to be said about slavery in colonial America and the United States, including some further ways in which, a human being’s status as a person or a piece of property depended on their physical relationship to certain land. Blackstone asserted that the “spirit of liberty is so deeply implanted” in the English legal constitution, so “rooted even in our very soil” that any slave who lands in England “becomes a freeman.” 1 Blackstone, supra note 180, at *127.

228. See Somerset, 98 Eng. Rep. at 500.

229. Savine, supra note 220, at 269.

230. 2 Blackstone, supra note 18, at *94–95.

231. Blackstone explains that they held “small portions of land by way of sustaining themselves and their families” but notes that this was “at the mere will of the lord.” Id. at *93.

232. Id. at *95.

233. Id. Land’s personifying agency through physical connection is even more startlingly at work in Blackstone’s contention that contact with English land instantly converts a foreign slave into a free person. 1 Blackstone, supra note 180, at *127.

234. Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809 passim (1935).

235. Cf. Asaf Raz, Taking Personhood Seriously, 2023 Colum. Bus. L. Rev. 729, 745–46 (2023) (discussing how law can define legal persons).

236. Lewitz v. Porath Fam. Tr., 36 P.3d 120, 122 (Colo. App. 2001) (“[A]n easement appurtenant is an ‘incorporeal right’ attached to and belonging with some other parcel of land. It runs with that land and is incapable of existence separate and apart from the particular land to which it is annexed.”); Ammer v. Ariz. Water Co., 818 P.2d 190, 194 (Ariz. 1991) (“An easement appurtenant involves two parcels of land—the dominant tenement, to which the right of use belongs . . . .”).

237. Restatement (Third) of Prop.: Servitudes § 1.2(1) cmt. a (Am. L. Inst. 2000) (“An easement creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement.”).

238. Green v. Lupo, 647 P.2d 51, 54 (Wash. Ct. App. 1982).

239. See Charles E. Clark, The Assignability of Easements, Profits and Equitable Restrictions, 38 Yale L.J. 139, 139, 151 (1928) (“The burden on the servient land passes with such land to all takers thereof.”).

240. “Unless limited by the terms of creation or transfer, appurtenant easements follow possession of the dominant estate through successive transfers. The rule applies even when the dominant estate is subdivided into parcels, with each parcel continuing to enjoy the use of the servient tenement.” Green, 647 P.2d at 54; see also Cox v. Glenbrook Co., 371 P.2d 647, 653 (Nev. 1962).

241. . Bennett, supra note 45, at viii (citing Latour, supra note 203, at 237).

242. Another type of property interest—restrictive covenants or servitudes—arguably presents an even starker example of a way that objects of property may control the behavior of their human owners. See 21 C.J.S. Covenants § 6 (2016) (“[A] ‘real covenant’ creates a servitude upon the realty, in other words, a servient estate, for the benefit of another parcel of land or the dominant estate.”). Like appurtenant easements, servitudes empower or restrain individual humans only through their relationships with particular land. See John Paul Hanna & David Van Atta, Hanna and Van Atta on California Common Interest Developments: Law and Practice § 22:80 (2023) (“Purchasers and owners of real property interests are bound by recorded restrictions that are expressly for the benefit of the lands that are subject to the restrictions . . . .”). The servitude runs with the benefited and burdened land. See, e.g., Neponsit Prop. Owners’ Ass’n v. Emigrant Indus. Sav. Bank, 15 N.E.2d 793, 797 (N.Y. 1938). It can impose limits on the human owner of the burdened estate, simply by virtue of their relationship with the land*. Id.* at 794–95 (imposing a requirement on future property owners in a residential development to pay a fee “devoted to the maintenance of the roads, paths, parks, beach, sewers and such other public purposes”). Those limits might include prohibitions on various land uses and even affirmative obligations to carry out certain actions, for instance, to maintain the land in certain ways. See, e.g., id. at 795; River Heights Assocs. Ltd. P’ship v. Batten, 591 S.E.2d 683, 688 (Va. 2004); Nahrstedt v. Lakeside Vill. Condo. Ass’n, 878 P.2d 1275, 1292 (Cal. 1994) (validating a prohibition on condominium owners living with cats, dogs, or other animals).

243. Rosiek et al., supra note 65, at 338.

244. Bird-David, supra note 31, at S73, S75.

245. Id. at S74–S76.

246. Id. at S77.

247. Blomley, supra note 193, at 33–34.

248. Terezie Smejkalová, Legal Performance: Translating into Law and Subjectivity in Law, 22 Tilburg L. Rev. 62, 70 (2017).

249. Zoe Todd, Fish Pluralities: Human-Animal Relations and Sites of Engagement in Paulatuuq, Arctic Canada, 38 Études Inuit Stud. 217, 222 (2014) (citing Paul Nadasdy, The Gift in the Animal: The Ontology of Hunting and Human-Animal Sociality, 34 Am. Ethnologist 25, 26 (2007)); Paul Nadasdy, Hunters and Bureaucrats: Power, Knowledge, and Aboriginal-State Relations in the Southwest Yukon 124–25 (2003).

250. Blomley, supra note 193, at 24; see also Rose, supra note 193, at 78–79.

251. Blomley, supra note 193, at 36–37.

252. Id. at 37.

253. See, e.g., McMahon v. Hines, 697 N.E.2d 1199, 1204 (Ill. App. Ct. 1998) (“[B]ecause an easement is an interest in land, a grant of an easement by contract must contain all the formal requirements of a deed.”).

254. Cmty. Feed Store, Inc. v. Ne. Culvert Corp., 559 A.2d 1068, 1069, 1072–73 (Vt. 1989).

255. Blomley, supra note 193, at 36–37.

256. Id. at 36.

257. Performances of property are, like all performance, in some sense reiterative. In other words, what makes a performance a performance is its quality of calling forth, standing in for, repeating, or replacing something or someone that is absent. Definitionally, performance is a repetition of, or stand-in for, some previously thought, scored, or recorded action or scenario, what Richard Schechner calls “twice-behaved behavior.” Richard Schechner, Between Theater & Anthropology 35–36 (1985); cf. Joseph Roach, Cities of the Dead: Circum-Atlantic Performance 36 (Jonathan Arac ed., 1996) (performers produce “effigies,” stand-ins, re-presentations or reincarnations, that is, characters and events that are made in the image of an absent other imagined or recalled).

258. In Blomley’s words, “[f]or property to be made real requires sustained, repetitive and often complicated work.” Blomley, supra note 193, at 37.

259. Bird-David, supra note 31, at S76.

260. . Adam B. Seligman et al., Ritual and Its Consequences: An Essay on the Limits of Sincerity 30 (2008).

261. Bird-David, supra note 31, at S76.

262. See Frederick Mark Gedicks, Working Without a Net: Supreme Court Decision-Making as Performance, 2018 BYU L. Rev. 57, 61, 92–93 (2018) (arguing that performance theory offers a better way to analyze Supreme Court decisions than assessing whether judges’ legal rationales actually reflect their decision-making process).

263. For general discussions of legal formalism, see generally Martin Stone, Formalism, in The Oxford Handbook of Jurisprudence and Philosophy of Law 166 (Jules Coleman et al. eds., 2004); Chaim Saiman, The Law Wants to Be Formal, 96 Notre Dame L. Rev. 1067 (2021); Thomas B. Nachbar, Twenty-First Century Formalism, 75 U. Mia. L. Rev. 113 (2020).

264. As Joseph Singer explains, formalists (he calls them “classical lawyers”) “assumed that property rights were created either by individual effort in the private sphere or by free exchanges between equal market participants.” Joseph William Singer, Legal Realism Now, 76 Calif. L. Rev. 465, 487 (1988) (footnote omitted).

265. See generally Cohen, supra note 234.

266. Cohen, supra note 234, at 815.

267. Hallowell, supra note 107.

268. Te Awa Tupua Act, supra note 2.