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If Corporations Are Persons

Steve Russell
12/10/11

Last year, in the ironically named Citizens United case, the U.S. Supreme Court followed the logic of a line of cases declaring corporations to be “persons” within the meaning of the Fourteenth Amendment and found them equal to human beings in the matter of spending money to influence politics. In August of this year, the smart money’s Republican presidential nominee, Mitt Romney, kicked it up a notch by declaring in answer to a hostile taxation question at the Iowa State Fair, “Corporations are people, my friend.”

I’m a mere retired judge, but my own view is that corporations are legal technology, ink on paper, and they have no rights not conferred on them by the legislature. I would go further and urge tribal governments to enact business codes that limit corporate activities and require a tribal charter to do business on tribal land. But that’s just me.

In keeping with my personal tradition of finding odd connections in the news, I see that the indigenous President of Bolivia, Evo Morales, is about to promulgate la Ley de Derechos de la Madre Tierra. In English, “the law of the rights of Mother Earth.”

Morales did not pull this out of his sombrero; the idea of humans as one small part of an interconnected universe is common to many indigenous traditions, including my own. It’s the difference between asking pardon of an animal if you take its life or believing humans are deputized by God to cut any swath through the natural world that they find convenient.

Moving from spirituality to science, the indigenous worldview finds expression in the Gaia hypothesis of James Lovelock and Lynn Margulis, holding that all animals (including humans) and all plants and even inorganic materials are part of one incredibly complex system that has a preferred homeostasis. That homeostasis is optimal for the currently existing life, and the hypothesis holds that Gaia will adjust her systems to maintain it. That’s a very optimistic idea. Let’s hope it pans out.

Completing the circle back to Morales’ new law, we have Justice William O. Douglas’ dissenting opinion in Sierra Club v. Morton, an opinion that generated as much vitriol against Justice Douglas as any he ever penned, and that’s a tough competition. I’ve heard it cited as evidence that the old man had stayed on the Court too long and his reasoning power had faded.

The Sierra Club had brought a lawsuit to prevent logging of the Mineral King Valley, a land aboriginally occupied by the Yokut people. The Sierra Club’s concern was encroachment upon Sequoia National Park.

Who “owns” Sequoia National Park? All citizens of the United States. Therefore, the Supreme Court reasoned, the Sierra Club had no “standing” to bring a lawsuit. If the Sierra Club does, the argument goes, anybody does, and nothing can ever get done because of all the lawsuits.

This theory of standing legalizes an ecological theory proposed by Garrett Hardin. He described the problem of numerous people sharing a resource and therefore an interest in not depleting the resource. However, each individual—consulting only his rational self-interest—takes amounts of the common resource such that the resource is in fact depleted. This is why governments make hunting and fishing seasons, bag limits, and sometimes ban the taking of juveniles or females.

The short version is that if we all “own” it then nobody owns it and so nobody will take care of it and we will all lose it. “It” might be timber, clean water, or game. Anything that can be depleted.

I am reminded of a report on the depletion of fisheries in the Northeast, where a number of fishers were asked: if they could make a 15 percent annual return on their investment forever or a 60 percent return and the fish would be gone in ten years, which would they choose? Invariably, the fishermen who were descended from fishermen chose sustainable harvest, while those who had a trawler as a new investment were more inclined to cash out. This, along with the histories of many Indian nations, suggests that “the tragedy of the commons” has a strong cultural component.

In the Sierra Club case, the Supreme Court institutionalized the tragedy of the commons by holding that nobody outside government can stand up and prevent a collective blunder. Everybody knows government is always a rational actor, right? Especially when corporations can make campaign contributions just like other people.

In dissent, Justice Douglas located the legal standing not in the Sierra Club but in the trees themselves, and earned himself decades of ridicule. Douglas claimed the only proper question was whether the Sierra Club had the resources and the proper motive to actually represent the interests of the trees.

Douglas did not limit this idea to living things. Had his dissent been law, some of us here in Texas would have been able to file a lawsuit some years ago when there was a proposal to allow Enchanted Rock, which I’ve been told is sacred to the Tonkawa and Comanche peoples, to be cut up and hauled off for building materials.

Thanks to Evo Morales, Justice Douglas’ dissent is about to become law in Bolivia. I cannot resist pointing out that in our country, corporations are persons but Mother Earth is not.

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He is a columnist for Indian Country Today. He lives in Georgetown, Texas, and can be reached at swrussel@indiana.edu.

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