No Trespassing
Introduction
No Trespassing: How the Ancient Struggle for Ownership, Private Property, and the Rights of the Commons Will Define Our Future
Reminder: Comments are closed. Feel free to print for yourself, or email me an address for a hard copy (international is fine, too). Also, I added some section breaks because Substack wouldn’t support all the formatting I had in Word, so the hard copies I mail will look a little different. I hope to have Chapter 1 (titled “Claim”) ready by the end of September, but no promises.
Introduction
“The dominant culture has been writ large with the concept of private property. This prevents the connection to land physically, psychologically, and spiritually. It seems to me that this is the fundamental cause of the climate crisis, and actually made it inevitable once privatization became nearly ubiquitous.” —We Are the Middle of Forever: Indigenous Voices from Turtle Island on the Changing Earth, Edited by Dahr Jamail and Stan Rushworth
“Earthers get to walk outside into the light. Breathe pure air. . . . And what do they do? They look past that light, past that blue sky. They see the stars and they think, ‘Mine.’” —The Expanse, Season 1, Episode 5
There is a spread of Montana, tumbling south from the borders of Glacier National Park and enclosed within a national forest, that I am in love with. And when I say “in love” I mean in love. The place, 165,000 acres of prairie, grassland, rivers, and alpine forest known as the Badger-Two Medicine, makes me feel equally glorious and weak-kneed, like a besotted teenager. I feel that way about Montana in general, but the Badger-Two Med is a place I could easily see risking my life to protect.
The hills are covered with prairie flowers and grasses, a rare sight in a region where most native prairie has been plowed under for the cultivation of wheat and cattle, and they remain unbroken by the barbed wire fencing so ubiquitous throughout the eastern part of the state. The Badger-Two Med is home to grizzly bears, wolves, and native cutthroat trout, and holds Badger Creek and a fork of the Two Medicine River, two main water sources for Montana’s northern plains.
It’s a place of silence and winds and open sky that was taken from the Blackfeet Nation as part of the 1895 agreement that also took land used to create the eastern portion of Glacier National Park. Together, they’re known as the Ceded Strip. The land was paid for, but the U.S. government hadn’t left the Blackfeet Nation much of a choice: the treaty—which some say was meant to be for a 50-year lease rather than an outright sale—was signed after the government repeatedly failed to meet its other obligations and people were starving.
I am not, as far as I know, related to any of the many nations who have lived for millennia in relationship with the land now known as Montana. I grew up in this state because my mother’s great-grandparents came out from Danish-ruled Prussia via Illinois and settled on land that the U.S. government gave them to homestead, whose ownership of they never questioned.
That land is still in my family, ranched by the son of my grandfather’s cousin. I take my kids to visit sometimes. We stay in the old house that my ancestors constructed from a Sears kit to replace their original sod dugout, marvel at the longevity of the massive, solid Dutch-style barn that my great-grandfather built with his brothers and father well over a hundred years ago, and walk the gnarled hills that harbor elk and my cousin’s cattle and miles of barbed-wire fencing that we slip through to stroll from pasture to pasture. I have no legal claim to this place—the son of my cousin-however-many-times-removed will inherit it—but I feel tied to it. Connected, just as I have always felt connected to the entire place called Montana. Even during the twenty years I spent living overseas and on the U.S.’s east coast, I felt the tether to this land, its space and mountains and scent of pines always there to remind me who I was.
Since I returned home with two children and a spouse, I’ve wondered more what love for this place means in the face of the original theft. I feel an emotional connection to the ranch my cousin works and the one a little further north that my mother grew up on, and the unbroken vastness of the Badger-Two Medicine. But all of that land was stolen from Native Nations and either handed to invaders like my family, or kept by the U.S. government as public land. Do I have a right to love it at all?
Among all the broken and stolen rights and oppressions this continent has seen over the last several hundred years, one thing white settlers have almost never questioned is our right to belong. Maybe it’s time we started.
*****
This isn’t a book about belonging. That question, though, what “belonging” means, is entangled within the ancient legacies of ownership and property. In the culture many of us live in, the dominant one in North America, when it comes to land, I own this is deemed equivalent to I belong here. But that paradigm is not one that has always been, or even is, universally accepted.
Ownership is a human construction. It’s not like gravity or a law of thermodynamics or even the territorial behaviors of mammals. It’s simply us. Property lines imposed on land are the most obvious manifestation of ownership, but even these are only a powerful legal fiction. They create an imagined reality, telling me that what I do in the space I have taken ownership of, whether it’s a studio apartment or a ten-thousand-acre ranch, won’t have an effect beyond those boundaries. But air and water and soil don’t care about property lines. Treatment of them as empty neutral spaces is a legacy of long-outdated legal definitions of ownership and private property rights.
Even the legal walls between what is protected as yours or mine can prove as porous as the property lines we pretend we draw. I might think I own the land my house sits on, but what happens when a natural gas company is given eminent domain to build a pipeline through my yard, and I don’t have the right to stop them from digging? This happens to people in America all the time. In 2016, a family of maple syrup farmers in Pennsylvania lost ninety percent of their mature maple trees after a pipeline company fought for eminent domain over their property and won. Worldwide, communities and individuals battle constantly against sand and gravel mining operations, oil drilling, natural gas pipelines, luxury housing developments, deforestation . . . the legacy of damage and destruction has increased through the twenty-first century, disconcertingly in tandem with the scientific knowledge that continuing our modern way of living is likely to make future human life impossible.
Ownership is not just a set of legal precedents. It extends a sense of being, of self, beyond the body out into the world to claim something else—or someone else—as “mine.” The history of ownership is about the millennia-long fight for liberty—political, economic, intellectual, creative, spiritual, and physical. It was most likely born after the advent of agriculture and what is called civilization and involves nothing less than the struggle of every one of us for the right to live.
Delving into ownership’s history exposes thousands of years of a false separation from nature, from the rest of life, including one another, and a psychological trick that has allowed humans all across the world to build legal empires framing a fractured but fundamental myth: that anything we have the means and ability to take can be an absolute possession. Mine, or yours. That any of us can own anything at all.
*****
When my husband and I bought an empty lot in my small Montana hometown, there was some confusion about the property line, a lack of the kind of absolute clarity required by property ownership. I wanted to divide the lot into thirds and give two parts to my sisters, but to pursue that option (if we could even afford it), we had to find out exactly where our ownership ended, and at which point the overgrown patches of knapweed and Canada thistle became our neighbor’s problem. The thirty-year-old apple tree was clearly within our property boundaries, but what about the little berm crowded against the neighbor’s fence where the overgrown grass hid purple lupine?
The surveyor came out with her equipment, picked through the county’s deed records, and concluded that our neighbor’s fence was placed ten feet into our yard. One of the boundary corners was also missing. To find its exact point she’d have to dig up the street to find the original monument stone so she could measure our property corners from it.
What, I asked her, suddenly far more curious than I’d ever been about the invisible legal lines that snaked under the streets of my hometown, is a monument stone?
*****
I have an obsession with deep time, with geology and paleontology and sedimentation and eons, with the massive movement of the universe, the way that stars are born, and in the mind-bending possibilities contained in billion-year time spans. When I look at how many millions of years dinosaurs were around, how long they’ve been gone, and how vast epochs are compressed in a thin band of stone visible on the side of a mountain that’s been shoved around by glaciers and tectonic plates, the measly few hundred thousand years or so that Homo sapiens have existed comforts me. I worry less about our divisions and weird tendency toward us-and-them thinking and dehumanization. The planet has been around for a very long time, mountains and rocks remind me. Maybe humans just have a lot of growing up to do.
Earth is old. Humans haven’t been on it that long. But in that time we have managed to cause an enormous amount of change. One of the most fundamental has been the creation of private property and its consequences. The planet is a whole, interconnected, living thing, and we humans are animals, living parts of that whole. Yet somewhere along the way some humans invented the idea that they could artificially divide up the whole, giving some to certain people and perhaps a whole lot more to others. Rights of use were created within those imaginary lines: the right to farm, to build homes, to raise animals; to mine, to pollute, to enslave and exploit other people.
I say “we” as if this eagerness for privatization is true of all humanity, but plenty of people know that this isn’t and has never been the case. And while more people are coming to understand the destruction wrought by European colonialism over the past five hundred years and its effects on Indigenous people and ways of living worldwide, those European lands themselves once had very different ways of living and owning that were overthrown, oppressed, and destroyed by colonizers and land-hungry local elites. So where, or when, did this idea come from? The Romans? The Greeks? The Sumerians? Does anybody actually know when human people, hunter-gatherers, cultivators, and wanderers of Earth, first pointed to a landmark, or a fruit tree, or a spring, or a patch of cultivated grain, and said, “That is mine”?
There are theories but no certainties. Nobody—at least that I have found—can say definitively where the idea was born that granted my husband and me ownership over patches of invasive knapweed and an apple tree. What they can say is that private ownership disrupted—almost always through violence—settled ways of sharing resources and land, and continues to fly in the face of the biologies realities of a living planet.
That apple tree cares nothing for ownership. More years than not, it produces more fruit than we can possibly pick, eat, can as sauce, or dehydrate for winter. It will give its bounty, feeding all who are hungry or craving, with or without a title of ownership. Completely opposite to the constructs that currently define my rights to it, including access: the tree might produce more fruit than my family can consume, but anyone else who steps into my yard to glean some—or even smell the tree’s heady, apple-y fragrance or climb its inviting branches—without permission is legally trespassing, and if they reach out a hand to pick the fruit, I could claim theft. I wouldn’t, but that is what the law condones. Those apples, rather than being seen as a vital source of sustenance that could be managed in a way that benefits more people and wildlife than just my family, are my property.
The surveyor’s comment about a monument stone made me curious: what was such a thing, and what story did it play in the long saga of human ownership? Because as it turns out, all ownership is about stories humans tell ourselves.
*****
Every major shift in ownership and property rights throughout history is like those geological layers exposed on mountainsides. In some ways, the layer of our time, of now, grants freedom and a kind of liberty, if you’re lucky enough to own a house or a portion of land; in far more ways, it erodes the possibilities of the same—land hoarders can lock up access to nature, to forests and grasslands and fields and water and apple trees, while wealth hoarders can lock up access to income and capital. At the same time, multi-billion-dollar fossil fuel corporations retain their property right to pollute, earning yet more wealth while stealing future generations’ rights to a habitable planet and a livable future.
What we own and how we own changes over generations. It wasn’t that long ago that people were considered ownable, and not just in the land now called the United States. Enslavement is still a reality for millions of people worldwide. It also wasn’t that long ago that even the most privileged of women were considered the property of a father or a husband—in some societies this is still the case, and even in America there are plenty who would like to see that relationship reestablished.
It took centuries to develop the tangle of private property rights that have led to modern pollution of clean water and air. And colonization and erosion of individual agency and free will—if such a thing exists—now spill out into the future of humanity, where all the data attached to our public and private lives is claimed as private property, hoarded and turned into profit for massive corporations, with consequences for our collective and individual futures that we haven’t even begun to comprehend.
Ownership reaches into every corner of life. If we seek to build a future that has a chance for the amorphous freedoms and liberties many claim to hold so dear, we have to take a hard look at what ownership grants us, and what it takes away. Because its ability to do both shifts according to how we move its boundaries: what rights of trespass we forbid, which ones we grant, and in which of these we’re allowed a true choice.
*****
This book will move through time and iteration, through battles for rights of the commons and colonialism, to fights for clean water in the face of fossil fuel extraction and mining, to defense of arable soil and open-source, tradable, savable seeds. From abortion rights to data mining and the Outer Space Treaty, to the often buried commons-based systems of living and sharing life that defined human existence for at least tens of thousands of years.
Through all of it will be a reminder that how we codify and legally enforce ownership is a reflection of what society values, and a reminder that we can choose to define ownership differently.
In our current time, property laws reflect the value of turning a profit, of commodification both of nature and one another. This attitude was brought starkly to the fore early in the Covid-19 coronavirus pandemic, when certain high-profile politicians and pundits called for the elderly and vulnerable to sacrifice themselves for the sake of what they said was the economy but was in fact simply the falling stock market—in other words, for the vulnerable to sacrifice themselves for the benefit of the already wealthy. Their views laid bare a fundamental problem with the dominant economic model: If an economy doesn’t serve the purpose of reducing suffering and improving quality of life, then what exactly is it for? Even if we were forced to accept that a healthy economy needs the sacrifice of every other living being on this planet—which nobody ever should have to accept—an economy that requires the deaths and suffering of hundreds of thousands of people because it’s too inflexible to serve true human needs even in times of crisis seems a pretty shoddy thing to leave future generations.
It doesn’t have to be that way. We can define rights of ownership differently. We can create economic models that prioritize the values of kinship, relationship, and community. Any economy could be linked just as easily to the health of rivers and air, and the values of nurturing and caregiving, as the dominant one currently is to the Dow Jones industrial average or the FTSE 100 or the Hang Seng, or whatever metric a country’s economic system is subject to. These are choices we can make, if we’re allowed.
Societies, and their legal manifestations of values, can be slow to change. But then, so are rocks slow to change. Just because something takes a long time doesn’t mean it’s not worth doing.
*****
One set of my great-great-grandparents came from Schlwesig-Holstein in Danish-ruled Prussia, first to Illinois and eventually to the Montana territory, where they bent their wills, their backs, and their hearts to a homestead protected by hills rolling out from the Square Butte geological formation. They took advantage of the 1862 Homestead Act, which granted parcels of 160 acres to any citizen who wanted to stake a claim, and the subsequent Enlarged Homestead Act of 1909 that granted 320 acres to those who could make that land productive. Like many homesteaders, my ancestors paid their $18 filing fee and then brought European and midwestern farming practices to a land wholly unsuited for it. Unlike fifty percent of their cohort, they somehow made it work, grew wheat and raised cattle on the arid prairie, survived droughts and excruciating winters tucked into wrinkled draws and springs hidden among the prairie grasses in the Highwood Mountains of central Montana. My grandfather’s cousin continued to work the same ranch until a few years ago, when he died and his son took over.
The connection homesteaders felt to the land they claimed—those who managed to survive the hard winters and droughts and not succumb to the insanity of loneliness—was real. But it was newly born care, nothing like the connection of people whose land they’d helped steal. My ancestors weren’t chatty people and didn’t talk about their connection to land, except for my grandfather now and then when he was sober, but they passed some kind of love on to my mother and to me and my sisters all the same, a sense of connectedness to the ranch and surrounding regions that, for me at least, is unrivaled even by the people I love.
Love and care are the flip side of the violence that private property can wreak on those around it. A sense of home. Ownership has the capacity to divide families, destroy representative systems of government, level mountains, and drain aquifers. Private property laws also allow us, within certain limits, to own land in such a way that we feel free to invest in it both our labor and our affection, hoping to build something for ourselves and our posterity if we choose to have any.
That care, that sense of home, is a compelling story, one that is still being used to justify colonial thefts of land worldwide. It’s a story that can only benefit those who own, not those who don’t, and certainly never those whose ways of owning, sharing, or relating to land, water, and the rest of life isn’t legally recognized.
The story those laws perpetuate is one that the peasants, freed serfs and villeins, and common people of Europe had not known for generations by the time my ancestors left the continent: knowledge that this soil under your feet cannot be taken away by a capricious landlord or vengeful monarch. It’s possible that America’s Revolutionary War was pursued not in the name of abstract human rights and freedoms, but so that a few wealthy land speculators could buy and steal land without asking for permission from their monarch; their promise of land for other settlers from Europe—who were either indifferent or grateful that it had been stolen from people already living there—was sure to earn them support. “Private property can be yours” is a seductive thing to hear when you’ve never known the security of land.
Those same laws of private property are, however, fragile as well as unjust. Even another’s enforcement of their own property rights can ruin yours. European countries’ colonization of much of the world should be a lesson in this fragility: private property rights are yours to keep, until someone more powerful wants them.
Ownership is a potent tool for creation, but far more often for destruction. It should never be wielded lightly. If this planet is to sustain future generations of humans, it must be wielded very differently.
*****
Despite the Badger-Two Medicine’s protection from settlers and development for over a century, it’s still under threat. The Blackfeet Nation and the Glacier-Two Medicine Alliance have been fighting several leases for oil and gas development that were granted in the area in 1982, some of which were upheld in the 1990s, some of which were rescinded in the 2000s, and one of which is still the subject of ongoing litigation. Knowing that development will continue to threaten the sacred area, some have been seeking permanent protection in the form of a national monument. But aside from ignoring the original theft from a sovereign nation, even that form of protection would no longer be a guarantee—as shown by areas like Bears Ears National Monument, which was designated by one president but whose boundaries were severely shrunk by the subsequent one, and restored by yet another. Law can be as fickle as humans ourselves.
The judge who upheld the last remaining Badger-Two Med oil lease in late 2022 called the forty-year saga “Kafkaesque” in his decision, saving his anger for the changes and refinements of federal mineral leasing law—which he called an “interminable, and insufferable, bureaucratic chess match”— and its effects on the holder of the lease, rather than for the injustices the Blackfeet Nation faced. True justice would see that land returned.
Betrayed by the neglect of law in one decade and then saved from extraction by adherence to it in another, this land has been subject to the always-shifting legal interpretations of private property laws and whichever human societal paradigms were paramount at the time. It shouldn’t be, but that is what property law does: it tries to enforce the values and priorities that gave birth to its own narrative. It tells a story.
*****
Which brings me back to that monument stone, laid somewhere under the road my house sits next to, a legacy of the surveying of America that began with the Land Ordinance of 1785 when European settler-invaders walked past the Mississippi River and into the west with 22-yard lengths of chain, measuring and marking off 36-square-mile townships and turning a vast land into a mirage of disconnection. The surveying of America was an enactment of Thomas Jefferson’s vision of freedom contained in the potential of a nation of self-sufficient yeoman farmers—and his stated desire to steal as much land as possible for that purpose from Native Nations—combined with the hard fact that the Revolutionary War had left the country deeply in debt. Once the lands were surveyed, they could be sold, and the fact that they were already Indigenous territory and managed under a completely different system of relationship made no difference to the newly independent government’s dreams.
The monument stone sitting under the street near my house is most likely a simple rock, the surveyor has told me. On it the original surveyors who came out to Montana would have chiseled some reference points that would stay put through the decades, perhaps longitude and latitude, perhaps noting specific trees that looked to last for a few more centuries. Until we pay her to dig it up and see for certain, we won’t know what it looks like or what it says about our property ownership. But whether or not we shell out the money to have it located, that stone still spills the story of ownership into past both ancient and recent. The original surveyors planted that stone and others like it all across America. And in doing so, they turned this land into private property. Humanity’s original myth.