The Rule of Capture

Christopher Brown

1.

There is no such thing as an empty lot.

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2.

I knew foxes were living back in there in the woods behind the door factory, but the first time I saw one was when it was running away from a realtor.

It is curious how we can identify so many animals that we have never seen. We are taught to do it as children. Especially the animals dangerous enough to eat us, or wily enough to live at the edges of our encampments and steal our food.

The realtor did not see the fox, and I did not call it to his attention. If this were a fairy tale, I would tell you how the fox appreciated that.

We entered the lot through my back gate, and then walked through the tall grass toward the old roadbed that once led to the ferry across the river. That’s where I saw the fox. It ran right down one of the tracks of the human path, then into the dense brush of cactus, scrub trees and mustang vine grown up around the drainage pipe that empties behind the construction supply warehouse. I suspect the den is back in there, and have seen trailsign, but have never found the hole.

Most of us are better at the taxonomy of human variants than the naming of animals, even though we have no zoos to show us the former in simulated habitats, unless you count television. The realtor was typical of his breed, an affluent white guy in his twenties, tall and business casual, looking lost the minute he stepped out of his polished black SUV and tried to interpret the spot where the road ended at a run-down chainlink gate overgrown with uninvited vines, like Boromir pondering the hidden door to Khazad-dûm.

As with most realtors, this one was kind of a hunter, but not the kind with eyes trained to see movement in woods. He was hunting for human value locked up in undeveloped land, a percentage of which value he could capture as numbers on paper by finding someone who would “improve” the land. The lot was ten acres of woods above and along the river, land that had once been owned by the ferry company as its north landing, and then been a place where men would dredge river rock to make concrete to pave the city.

Capital abhors unimproved land, especially when it is in the fastest growing city in America. And capital does not see wild animals. They do not appear on its register, unless they have been captured and turned into property. And that is probably why realtors cannot see wild animals, even in Texas, where all the realtors who are real Texans are also real hunters, the kind that have nice guns and coolers full of very cold beer.

Realtors are how capital captures the wild instincts of human hunters and uses them to eliminate wildness from the world, by partitioning every spot of earth and sometimes the air above it, overlaying the surface of the entire planet with a grid that allocates dominion among the naked apes. A system which has very little to say about the things capital does not register, like all the other living beings with whom the land and air and water is shared.

 

3.

The first case you read if you go to law school is about a fox running from a real estate investor across an empty lot.

The exact date is hard to find, but around 1805 (the year the ensuing lawsuit was finally adjudicated) a rich dude in the Hamptons named Lodowick Post, on horseback and aided by hounds, pursued a fox across “waste and uninhabited land” (aka the commons, which was more plentiful in the early days of this country)—only to be stymied when, just as Post was about to strike, another local named Jesse Pierson killed the animal first. Post sued, asserting that by initiating the chase he acquired ownership of the animal. The trial court agreed, but the New York Supreme Court reversed1, citing ancient precedents to find that “occupancy” is essential to turn a wild animal into your personal property—and that occupancy can only be achieved through kill or capture, or mortally wounding the animal such that it will inevitably come under your control.

This case is used as a laboratory for hypothetical theorizing about property rights, and learning to think about the natural world in the way lawyers do, as a realm overlaid with infinitely divisible chains of human right. Rarely does anyone ask about the rights of the fox, and if they do, there’s a good chance they will get publicly shamed by the professor.

The fresh social contract under which Pierson and Post and their fellow citizens of the brand new United States lived derived its notions of property from the English philosopher John Locke, who theorized the justification for individual ownership of things found in nature by an invented counterfactual, the imaginary “state of nature” in which no prior property rights or other forms of “occupancy” exist. If you own your own body, said Locke, you own your own labor. And when you apply your labor to nature, by carving a piece of wood, or capturing and skinning a fox, you obtain ownership of the object because your labor is now embodied within it.

The rule of capture comes in very handy for people who make their fortunes off the things we find in the ground.

A world in which the fox also had rights would be a very different one than the world we live in. It would probably not be one in which, as the World Wildlife Fund recently reported, more than sixty percent of the wildlife population of the planet has disappeared in my lifetime.2

4.

On Highway 81 in north central Oklahoma, which travels the path of the old Chisholm Trail, there is a town called Bison. The only bison you will see there is a faded painting on the side of the old grain elevator.

Images of buffalo are all over the human landscape of the Great Plains. You can buy them on ball caps and refrigerator magnets in the service areas of the Kansas Turnpike, much of which follows the route of the Santa Fe Trail. In the Visitors Center they have brochures for places where there are actual living buffalo. Like petting zoos, without the petting, you imagine.

The ecology of the continent is there in the country you drive through. Sometimes you can perceive it through your windshield, in place names and long view topographies. There are remnants, real remnants, but they are not easy to find.

North of Bison, Oklahoma, southwest of the Wichita Vortex, near a town called Jet, one of the forks of the Arkansas River flows through an exposed plain of salt. You can see it on your computer map right now, the Great Salt Plains, where there is a national wildlife refuge and a state park. In the time of the free ranging buffalo this was an oasis for all manner of migratory wildlife, a place where the megafauna would gather from far away and the humans would come to hunt them. It still is a sanctuary for the waterfowl, who flock there in huge numbers. When you leave the refuge and head south through Jet, you realize where the town got its name, from the United States Air Force landing strip along the lake, and you understand why there are all those warning signs around the salt flats.

Boom.

You see it in Leavenworth, Kansas, from the scenic overlook where they let you take pictures of the very scary-looking old federal prison that looms beyond the main road. That riverfront northwest of Kansas City is a military outpost, strategically placed as a launching point for expeditions into the Missouri River basin all the way to the edge of the Rockies. As you drive south from there along the edge of the plains, you pass through other forts, and while the Indians are largely gone and subjugated, you see how the whole landscape is a captive. You see it in the brutalist grain elevators that tattoo themselves with the memory of the animals they displaced, in the grid of mechanized land uses traced on the road map, in the oil derricks pumping by the road, in the microwave transmission towers, even in the giant wind farms that now grace the flats along the interstate. The yeoman farmer that is the lodestone of American identity is a rapist who cut the trees and plowed the prairie to plant grain to feed livestock to feed white people so they can repeat the process. The Air Force bases of Kansas and Oklahoma, at the heart of the American continent, are the grandsons of the cavalry forts that were there before soldiers learned how to fly, taking the exercise of dominion into the sky. We have applied our labor to the rich wilderness we found across the water, and made it into a cyborg.

5.

A real estate broker, a fox, and a manitou walk into a bar.

6.

“Dogs are hereby declared to be personal property,” says Oregon law. There are caveats, and limits. Oregon law also declares it a crime to own, possess, keep, breed, train, buy, sell or offer to sell a fighting dog, to keep an exotic animal without a permit, to use a dog in the commission of a crime, or to carry a dog on certain parts of a vehicle operated on a highway without specified protective measures. Most importantly, it makes it a crime to cruelly kill or injure, or fail to provide minimum care for, an animal in your custody and control. On that basis the Oregon Supreme Court recently concluded that dogs are not mere property, but “sentient beings capable of experiencing pain, stress and fear” that may not be treated in all the ways humans are free to treat other forms of property, even if they may be treated in ways humans may not treat other humans.3

The Chippewa people of the Great Lakes, or so we are told by the Europeans who first encountered them, believed the bounty of their environment came from the union of man and dog. The story was told that woman, who was the first human being, had a nocturnal dream that she was sleeping with a handsome youth, who in reality was her pet dog transformed. Then one day a giant appeared, shaped the land into lakes and rivers and mountains, then grabbed the dog, ripped it to pieces, and cast its guts into the waters to make the fish and dispersed its flesh over the land to make the animals.4

The Chippewa, Ojibwe and Cree lived by an ecology grounded in a kind of contract—a relationship between the people and the animals that surrounded them based on duties of mutual obligation and courtesy. When the Algonquinian populations were ravaged by European disease that may have taken as much as ninety percent of their population, disease the indigenous healers could not combat, some Indians took it to be a conspiracy of the animals against them, and undertook a war of retaliation, aiding the Europeans in the harvest of most of the fur-bearing animals of the North Woods to clothe urban Europeans.5

Our cosmology may articulate similar obligations on our part in its notions of stewardship, but only trace echoes of those notions appear in our jurisprudence and political economy, which know only rights of possession and consumption grounded in the valorization of the human self and its physical expressions, countermanded only by such duties as our worst behavior compels the law to encode. Imagine if the opposite were true—that we were governed by obligations to protect the natural world in the way our contemporary religious traditions tell us is our duty, and that our rights to take from nature were confined by their concordance with ecological balance.

That is a dream, even sillier than a dream about the original woman making love to a dog disguised as a hot boy.

7.

That is why, every winter, we sacrifice a realtor to a remnant of the American woods. It would be an overstatement to call the supplicant a volunteer. Baited by the carefully dressed lure of a gorgeous woodland acreage in the heart of the city waiting to be sold to a corporate developer, he (it is always a he) comes to enslave the land to industrial capital. But this quest is closer to the search for the existential heart of the land than you might imagine.

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The ceremony takes place in a riverine grove of cottonwood, hackberry and mustang vine. The realtor is stripped and secured with flotsam cabling to the throne of the Texas Druid king, a wooden yard chair deposited in this spot by a Halloween flood some years ago. Adorned with a crown of chile pequin harvested nearby, gagged with the green brain fruit of the Bois d’Arc tree, the broker is “dressed” in a suit of honey made by a colony of Africanized bees in a half-buried truck tire. As night comes, a song is improvised on instruments made from the things the city leaves in the woods, a song of summoning and loss.

They say that many of the animals of the American woods only became nocturnal when the European trappers arrived. This is easy to believe, even if it is not true. Ask a beaver.

Sometimes the realtor manages to eat his way through the gag, and you can hear his cries echo along river corridor. But even then, language seems to be lost, as man becomes mere food and finds the involuntary path to authentic oneness with the woods.

The remains that cannot be eaten are mostly taken by the wet earth of the floodplain, eventually devoured by the bugs who provide food for the armadillos that forage the subsurface at night. Once in a while a bone is found in daylight by a human wanderer, but they rarely know what it is.


1 Pierson v. Post, 3 Cai. R. 175, 2 Am. Dec. 264 (N.Y. 1805)

2 World Wildlife Fund, Living Planet Report 2016, http://www.wwf.org.uk

3 Oregon v. Newcomb, 359 Or 756 (2016).

4 See Calvin Martin, Keepers of the Game (1978), pp. 69-70.

5 Ibid.

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Author: Christopher Brown

Christopher Brown is the author of Tropic of Kansas, a novel about American ecology, politics and rebellion forthcoming from Harper Voyager in the summer of 2017. He was a 2013 World Fantasy Award nominee for the anthology he co-edited, Three Messages and a Warning: Contemporary Mexican Short Stories of the Fantastic. He lives in Austin, in an abandoned petroleum pipeline site he and his wife have been restoring to native Texas prairie. More at christopherbrown.com.

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