It was not until 1879 that Native Americans were given legal status in American as “persons.” That is not to say anything like citizenship or voting rights, it was simply a determination as to whether Native Americans were “persons” under U.S. law. 1
Luther Standing Bear was put on trial for trying to return to his homeland despite being under arrest for nothing other than being a Ponca citizen.2 He was returning back to his homeland in Nebraska with his son’s body to honor his son’s wishes to be buried there. I wrote about this case that is rarely taught in law schools last April, here.3
Corporations had a much easier time of becoming recognized as “persons” under U.S. law.
Early Concepts of Personhood: The concept of personhood has its roots in Roman law, where the term "persona" was used to denote a legal entity capable of holding rights and duties. This concept was further developed during the Renaissance era in France and Germany, where scholars began to use "persona" in a distinct legal sense, laying the groundwork for modern legal personhood.
Corporate Personhood in American Law: The idea of corporate personhood in the United States can be traced back to the early 19th century. In the 1819 case of Trustees of Dartmouth College v. Woodward, the Supreme Court recognized corporations as having legal rights similar to those of individuals. However, it was the 1886 case of Santa Clara County v. Southern Pacific Railroad Company that is often cited as a key moment in the establishment of corporate personhood, although the court's decision did not explicitly grant corporations personhood rights.
The attorney for Southern Pacific, Conkling, was one of the drafters of the Fourteenth Amendment. So when Conkling argued that the drafters of the 14th Amendment had changed the language from “citizens” to “persons” that was all for the purpose of protecting corporations, and it carried weight with the Justices, but they remained unconvinced.
Winkler documents that Howard Jay Graham, a leading expert on the 14th Amendment, later researched Conkling’s claim to the court, and found it was completely fabricated. Apparently there was never any mention of “corporations” or anything other than the word “person” used by the drafting committee. Graham found Conkling’s claims about using “person” to include corporations within Fourteenth Amendment protection was “a deliberate, brazen forgery.”4 So the idea of personhood for corporations began as a complete fabrication that ended up in the headnotes and so took on a life of its own, literally.
Expansion of Corporate Rights: Over the years, the U.S. Supreme Court has expanded the rights of corporations, treating them as "persons" under the law. This has allowed corporations to claim protections under the Constitution, including rights to free speech, religious freedom, and protection against unreasonable searches and seizures.
The concept of corporate personhood remains a contentious issue in legal and political debates. Critics argue that it grants excessive power to corporations, allowing them to influence politics and society disproportionately. Proponents, on the other hand, argue that corporate personhood is necessary for businesses to function effectively and to protect the rights of shareholders and employees.
Beyond Corporations
Personhood Beyond Corporations: While corporate personhood is a prominent aspect of legal personhood, the concept extends to other entities as well. For example, some legal scholars and activists have argued for the recognition of personhood rights for animals, natural entities like rivers, and even artificial intelligence systems.
Nature and Personhood
Justice William O. Douglas of the U.S. Supreme Court did not go so far as to bestow personhood on nature, but he famously said in his dissent in Sierra Club v Morton, 405 U.S. 727, 741 (1972), that “environmental objects” should be able to sue. He opined, “ Contemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation. . . “
That same year Christopher Stone, wrote an essay entitled, “Do Trees Have Standing.”5 If there is a top ten for the century for law review articles, this one would have to make the list. It has sparked a movement in U.S. law to consider personhood for nature in the rights of nature movement.
Unlike corporations society has literally personified nature since the term “Mother Nature” first came into use in the 12th or 13th Centuries, with the term Mother Gaia. Greek mythology further identified the God of the Harvest, Demeter as a mother whose child was abducted by Hades and in her sadness, Demeter stopped all harvesting. Thus, Zeus intervened and returned her daughter, and the earth began to grow again, but she had to return to Hades once a year, and it is during that time that winter occurs on earth.
In 1266, the term Mother Nature was widely used in the world, personifying nature.
Indigenous peoples of the Americans have had a sense of personhood for nature since time immemorial. This kinship with nature was practiced long before the 12th or 13th Centuries (marked as the Dark Ages in Europe, as a reminder). This kinship with nature acknowledges that we are all part of nature and we are all related. What happens to nature, happens to humans. There is an indigenous rights of nature worldview that while aligned as some particular practices.
There is a practice of reciprocity. That is, for example, the Plains Indians are culturally and spiritually bound to take care of bison, and the bison takes care of them. Every part of the bison is used for food, clothing and even shelter. The reawakening to restore bison herds is being led by the Plains Tribes who honor this reciprocal relationship.
One of the most basic of ideas in the rights of nature is respecting the right to exist for nature and parts of nature. Respecting the right of beautiful swans, birds, rabbits, deer and turtles is easy, but this also includes respecting the right of venomous snakes and coyotes (and for my friends in Texas, wild boars) to exist. But indigenous rights of nature also calls for balance and harmony, and having populations out of balance has broad implications for balance in human lives.
Tribal Nations are passing their own ordinances to give rights to parts of nature that are considered sacred and that are in need of protection. The White Earth Band of Ojibwe's recognition of the rights of manoomin (wild rice) is one of the first Tribal ordinances to give a kind of “personhood” to a part of nature. Other Tribal Nations including the Ponca Tribe of Indians of Oklahoma, the Ho-Chunk Nation, the Yurok Tribe, the Nez Perce Tribe and the Menominee Indian Tribe of Wisconsin have all passed ordinances recognizing rights in nature.
Personhood and Rights
The Indigenous Rights of Nature practices and traditions present a view of personhood that has been adopted in tribal ordinances and judicial systems. There is a rights of nature movement underway internationally with several countries recognizing the rights of nature, rivers and other parts of nature. The rights of nature movement has even come to the judicial system in the United States. The Colorado River and the Florida Waterways were both parties in litigation in the United States in the recent past.
Respect for nature is at the heart of this movement. We cannot live without an environment that is in balance, yet for all this power it remains vulnerable and needs our protection. If the measure of society is how well it takes care of its most vulnerable members, then let’s consider whether elements of this movement are in the direction of our collective future?
Dred Scott v. Sanford, 60U.S. 393(1857) found slaves were not “citizens”. Slaves were freed and became “citizens” with the 13th and 14th Amendments to the U.S. Constitution in 1867. In Elk v. Wilkins 112 U.S. 94 (1884) the U.S. Supreme Court held that American Indians were not “citizens”. American Indians did not become citizens until 1924 with a federal statute.
United States ex rel. Standing Bear v. Crook, Case No. 14, 891 Circuit Court (D. Neb) 25 F. Cas. 695 (1879).
Adam Winkler, “We the Corporations: How American Businesses Won Their Civil Rights,” Liveright Publishers, (2018).
https://iseethics.files.wordpress.com/2013/02/stone-christopher-d-should-trees-have-standing.pdf Christopher Stone, “Do Trees Have Standing,” 43 Southern Calif L.R. 450-501 (1972)