Personhood

In May 2019, the Yurok Tribal Council passed a resolution to extend rights to the ‘We-Roy, which is known in English as the Klamath River:

…the Yurok Tribal Council now establishes the Rights of the Klamath River to exist, flourish, and naturally evolve; to have a clean and healthy environment free from pollutants; to have a stable climate free from human-caused climate change impacts; and to be free from contamination by genetically engineered organisms.

In this essay, I ask what it means to recognize a nature entity as a person, and what political theologians can learn from such recognition. I argue that this resolution demonstrates a kinship relationship between the Yurok and the Klamath River, a relationship that calls Yurok people to take responsibility for the struggling river and to help it heal. I also see in this resolution an assertion of Yurok sovereignty. While the United States government has regulated Native lives by determining Native identity on the basis of blood quantum, the Yurok here define their community as including not only those who are enrolled members of the Yurok Tribe, but also the Klamath River, who is their kin, and for whose well-being they are responsible. Some scholars have talked about obligation rather than responsibility. My choice to use the term “responsibility” throughout this essay follows Lakota scholar Vine Deloria, Jr., as I discuss below.

While the extension of personhood to corporations and human fetuses has been cynically used against marginalized groups, and therefore may be justly critiqued by feminist thinkers, this essay shows that the recognition of nature entities as persons is different due to the notions of kinship and of responsibility that drive this recognition. Personhood here is not about having been created in the image of God, but it is about Yurok cosmology, Yurok relationship with the creator, with ancestors such as the woge, and the significance of the natural environment—something US courts have been talking about as sacredness—to the community’s livelihood.

In recent years, we have seen, around the world, movement toward the acknowledgement of nature entities as legal persons to whom rights are granted. In 2008, Ecuador became the first country to enshrine the legal rights of nature in its constitution. Bolivia passed a similar law in 2010. New Zealand and the Indian state of Uttarakhand granted legal rights to specific rivers in 2017. In Bangladesh, since July 2019, all rivers count as legal persons, and an environmental council can take to court anyone who harms the rivers. That same year, the city of Toledo, Ohio passed the Lake Erie Bill of Rights to protect its shores, and the bill was declared unconstitutional by a federal judge in 2020. In February 2021, the Magpie River in Quebec, Canada was granted official rights and legal personhood. It was assigned nine rights, as well as potential legal guardians responsible primarily for ensuring these rights are respected. This is the first such case in Canada. In Pakistan, activists have been demanding, for several years now, that the state grant legal rights and personhood status to the Indus River.

Activists in Bangladesh and New Zealand say they see the rivers as their ancestors, while Indian activists talk about sacredness as the reason for acknowledging the river’s personhood. We should note, though, that the Ganges is only sacred to Hindus, and that others in India explicitly see rivers as not sacred. And so the sacredness of rivers may be a shaky ground for acknowledging personhood and rights of rivers. In Ohio it was simply too much pollution that drove the bill of rights. In Canada, the desire to preserve both recreational and traditional activities was declared as the reason for granting rights to the Magpie River. Many of these laws met with resistance from industry, farmers, and river communities who argue that giving nature personhood infringes on their rights and livelihoods. The question of responsibility is a complicated one, and in practice comes down to the question of who has the money to sue, though the epistemological shift from rights to responsibilities is much more significant to me than the practical legal questions. As Tanana Athabascan poet and scholar Dian Million writes,

nation-states and international humanitarian orders offer up promises of recognition, equality, and rights while reducing our non-human relations to resources. As subjects of these human “rights,” the Indigenous are positioned at the end of a long line of those who seek “rights” in the form of care that never disrupts the violence of the racial-capitalist-settler-colonial order. Meanwhile, our non-human relations are quantified, commodified, and extracted – our relations in places are reduced to things.

Million, “Resurgent kinships: Indigenous relations of well-being vs. humanitarian health economies,” 395.

This epistemological shift from rights to responsibility, then, disrupts the settler colonial order, and transforms the non-human environment from commodity or resource to kin. Enforcement is inherently difficult because of the trans-boundary nature of rivers, but the trans-boundary nature of rivers also makes them an apt site for critique of the binary notion of sovereignty. At the same time, rivers’ wild, raging, unpredictable nature also makes them a fitting site for critique of governmentality – can humans really control rivers? Ethnic studies scholar Charles Sepulveda (Tongva and Acjachemen) writes about the efforts to “domesticate” rivers, comparing these efforts to the domestication of women: “Both domestication projects were produced for the expansion of empire and the growth of capital. The purpose and operating logic within both of these projects was to produce authority and (dis)possession over the land/water. And ultimately, to domesticate the ‘wilderness’” (48).

 What I want to take from these global examples are the questions that they raise about what it means for us to think of rivers as legal persons. “What does it mean for a river, and its associated natural elements, to have rights? What does it mean for them to have rights as a ‘person’? How would such rights be implemented, given that rivers and other elements of nature would not be able to themselves claim and defend such rights?” ask environmentalists Ashish Kothari and Shrishtee Bajpai following the 2017 Uttarakhand High Court’s decision to grant rights to the Ganga and Yamuna rivers as living beings. Mostly, they are interested in the implications for the relationship between humans and the rest of nature. They ask about dams – should building them be allowed? Can the water be diverted to such an extent that water is no longer flowing in long stretches of the river? In addition, who would sue in the name of the rivers? And who would be the beneficiary of potential compensation?

These questions have been asked by legal scholar Christopher Stone in his groundbreaking 1972 essay, “Should Trees Have Standing?” where, comparing environmental entities to others who had been previously considered not fully human and therefore rightless (Blacks, women, children), he argued for the recognition of environmental personhood and rights. However, what I am interested in is Kothari and Bajpai’s observation that “[r]ights are the obligations that the society and state have for establishing sustainable relationships. Fundamental rights, in that sense, are the most basic of obligations because they emanate from the idea that they are present even if no law exists.” If the most fundamental right is the right to life, what does that mean when we talk about a river? Does it include the right to flow freely? Does it include the rights of other species? Kotari and Bajpai suggest that

The river has a right to exist, right to maintain its identity and integrity. This does not put an end to fishing or other human activities related to the river, but rather pushes for a healthy relationship that maintains the essential conditions of a river: its flow, its constituent plants and animals, its catchment, where snow or rain sustains its water intake, the rocks and soil and other elements of the landscape it flows through. Consequently, what could be challenged in the recognition of such a right are activities that badly or irreversibly damage the above conditions, including dams and diversions, industrial and urban pollution, fisheries using explosives or trawling methods, etc.

I am less interested in the practical questions that these cases raise than in the epistemological shift they require from us. As environmental studies scholars Nicole Wilson and Jody Inkster write, “at the very least, [they] complicate concepts of governance as [they] call into question the ability of humans to govern or act on behalf of water. [They] may even call into question the extent to which water as a more-than-human is even ‘governable’” (531-532).

As Kothari and Bajpai explain, “Any rights-based movement, especially one that is arguing for fundamental and inalienable rights, challenges not only the legal system, but also the culture on which this system is built.” This observation is in line with Muscogee scholar Daniel Wildcat’s argument that Native thinkers, unlike Western thinkers, “include as a part of their political communities many other-than­ human persons, including persons that swim, winged persons, four-legged persons, and so on.” Therefore, Native thought and practice “have defined politics and ethics as involving a much broader conception of persons” (93).

Religious studies scholars Suzanne Crawford O’Brien and Inés Talamantez (Mescalero Apache) write that in Anishinaabe cultures, “an animate being is a person by virtue of its membership and participation in an actual network of social and moral relationships and practices with other persons. So moral agency is at the core of the Native conception of personhood. This means that one cannot be a person in isolation” (24). Therefore, instead of anthropomorphizing nature, Native epistemologies open the category of personhood to include nonhuman beings. What is changed is mainstream non-Native perception of both nature and personhood. I should emphasize that the status of certain nature entities as persons does not depend on their recognition as such by human beings. While the declaration of nature entities as persons (by Native and non-Native communities) is significant in bringing about a shift in Western thinking about personhood, and perhaps in legal protection, the declaration itself does not make the nature entity into a person (in the same way that our recognition of a place as sacred is not what makes it sacred). Dakota scholar Kim Tallbear writes against the “animacy hierarchy” that places some beings below others: “Strictly speaking, the ideas of being animate and inanimate posit categorical divides between entities – those seen to be alive and those deemed as not living, a divide defined organismically in dominant thinking.” And she reminds us that “The animacy hierarchy also de-animates many humans, including Indigenous and Black people, by placing them below the Western and often male subject” (25).

Lakota lawyer and theologian Vine Deloria, Jr., adds that “human personality was derived from accepting the responsibility to be a contributing member of a society. Kinship and clan were built upon the idea that individuals owed each other certain kinds of behaviors, and that if each individual performed his or her task properly, society as a whole would function” (44). And so we could say that the challenge Kothari and Bajpai write about is a challenge to Western legal cultures, which focus on rights rather than on responsibility, and whose communities include only those who are recognized as human beings.

Legal scholar Lawrence Tribe, building on Christopher Stone’s work, proposed a new basis for environmental law, one that would start with human obligation. Thinking of our relationships (with one another as well as with the physical world) as almost sacred, Tribe recognized that it is easier for us to grant personhood and rights to animals than to tress, for example. However, “what is crucial to recognize is that the human capacity for empathy and identification is not static,” and that “choosing to accord nature a fraternal rather than an exploited role … might well make us different persons from the manipulators and subjugators we are in danger of becoming (1345-6). This resonates with the shift I have described above, from thinking of nature in terms of resources or property to be domesticated or dominated by us humans to thinking of nature entities as relatives should be central to environmental law. What’s at stake, Tribe tells us, is our own humanity. In other words, our (humans’) status as persons is tied with nature’s status as person and as kin.

But if personhood and rights are at the heart of liberal theories that have contributed to Indigenous land dispossession (especially through the Lockean understanding of land as property), can we really trust these same ideas to promote and protect the well-being of Indigenous communities, including land and water? Lenape scholar Joanne Barker does not think so. According to her,

Nowhere is the capitalism of rights clearer than in the extension of human rights to other-than-human beings, including water. The revolution has truly failed when the only way for water, air, or the land to remain unpolluted is by legally assigning it the status of human. Genuine revolution means genuine alterity. Vine Deloria Jr. suggested that for Indigenous peoples, responsibilities capture the core ethic of this alterity: “The basic problem is that American society is a rights society, not a responsibilities society.”

Barker, “Confluence: Water as an Analytic of Indigenous Feminisms,” 18.

Barker presents us with a challenge here: how can we accept, simultaneously, that the extension of personhood and rights to rivers preserves and justifies the rights discourse that has been vastly critiqued by marginalized groups, as well as that the Klamath River Resolution, for example, does not participate in the perpetuation of the capitalist logic of the rights discourse?

Yurok attorney Amy Cordalis sees things differently in the context of the Klamath River Resolution, and I think her perspective may offer an adequate response to Barker’s challenge. According to Cordalis, while the declaration of a corporation as a person perpetuates capitalism (and, I’ll add, the declaration of the fetus as a person perpetuates patriarchy), the declaration of the Klamath River as a person, as a member of the Yurok political community, does something else. She struggles to find an adequate English phrase to describe what it does. She explains in an interview that:

Law is a reflection of cultural values. In the U.S. we value economy, we value capitalism, and so the granting of corporation personhood is a reflection of that value. Here in Yurok, we value the river as our most sacred, our most important – and here we were struggling to find the right word, because it’s not just an asset, it’s not just a resource, it’s more than that. And there isn’t a word in the English language to describe that. But the gist is that we value it as one of the most important things here on the planet, and so it makes sense for us in our own tribal law to make sure that our modern tribal law reflects these cultural and religious values around the river.

With Cordalis’ words, let me return, finally, to political theology. One might say that personhood is a category that captures our values as a culture because we—as humans—are valuable because we were created in the image of God. But this is a western, monotheistic view. Not all cultures think of humans as closer to God than to nature, for example. Even more so, not all cultures see corporations as more God-like than rivers. As the examples this essay has explored demonstrate, the conversation about nature’s personhood and rights is always political, often legal, and sometimes theological. Most importantly, it is a localized conversation about the boundaries of a given community – who is part of the community and who isn’t. And as Kotari and Bajpai remind us, it is not only the river that is declared part of a community when it is considered a person. There is a network of relationships that is affirmed in such declarations, including the river’s plants and fish. When the Yurok protest or take legal action against the pollution of the Klamath River and the killing of the salmon, what they protest or take legal action against is their continuing genocide.

In the sense that the conversation about personhood is about jurisdiction and governmentality, it touches upon the most prominent political theological concept—sovereignty—when it asks who the sovereign is who gets to decide on the fate of a nature entity. Really, when we (women, Black people, Indigenous peoples, fetuses, corporations, rivers) become persons, we are asked to accept the authority of a court of law, or a nation-state, to decide what is best for us. If this is the case, maybe some of us would rather narrow, rather than broaden, the category of the person.  

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Annotated Bibliography

Christopher Stone, Should Trees Have Standing? Law, Morality, and the Environment (New York: Oxford University Press, 2010).

The essay that became the first chapter of this book was written and published as a law review article with the hope that it would serve as a basis for a U.S. Supreme Court decision in favor of the Sierra Club in Sierra Club v. Morton (1972). It did become the basis of Justice Douglas’ dissent in this case, but it also galvanized a global movement to grant nature the legal status of personhood.

Vine Deloria, Jr., and Daniel R. Wildcat, Power and Place: Indian Education in America (Golden, CO: Fulcrum, 2001).

This book is about Native American education, but several of its chapters lay the philosophical groundwork for rethinking personhood as a category that includes more than just human beings, and for transcending the rights discourse and moving toward a discourse of responsibility as grounding our law and politics.

Elizabeth Jane Macpherson, Indigenous Water Rights in Law and Regulation: Lessons from Comparative Experience (Cambridge, UK: Cambridge University Press, 2019)

This book asks how Indigenous peoples’ rights might be included in contemporary regulatory regimes for water. It looks at the commodification of the natural environment, private property rights, and market mechanisms in water regulation. It then looks at attempts to devise new legal mechanisms for the management and governance of water resources, particularly “legal person” models. The book includes case studies from Australia, Aotearoa New Zealand, Chile, and Colombia.