I confess to you that I enjoy Veggie Tales.*
Like any fan of children’s television, this allegiance requires that I know some songs by heart. And: there is a Veggie Tales tune that I hum on the regular while considering the ontological allocation of property rights unto a conquering people. (Yes, I just wrote, and you just read, a magically syncretic sentence. This is apparently what happens when one blends law, theology, and early childhood education.)
Unlike many Veggie Tales numbers, the song I’m thinking of lacks background animation, dance routines, and any wit whatsoever. It’s quite short and somewhat grating in its earnestness, and is thus appropriately sung as a solo by Junior Asparagus who is by far the most annoyingly earnest veggie. Junior provides, in five quavering lines, an urgent moral reminder to his people—a caveat about land rights, and about honoring the power from which they flow. Junior’s people were, in this case, the Israelites, who after 40 years in the desert were finally being delivered by Joshua into the Promised Land. The problem: the PL was already occupied, and its people were protected and defended by the walled city of Jericho. The Israelites were scared, and they considered turning around to flee, but in this Veggie version, they first returned to the desert to regroup, where Junior sang to them. The song goes:
The Lord has given this land to us
No need to fuss
He knows what He’s doing
We know that He will take care of us
If we just follow Him.
In the Veggie universe, this reminder proves, following some additional musical highjinks, sufficient, and Joshua and his people storm the city by partnering with God to collapse Jericho’s walls. The Veggie version ends with a palatable amount of victorious gloating; the defending French Peas bounce away in confusion rather than being slaughtered by the conquering army alongside every living occupant of the city. The horrific details that follow Jericho’s collapse in the biblical narrative, this Veggie telling implicitly argues, are distasteful but irrelevant information; the important facts about Jericho are:
God gave a people a land
That land was already settled
God’s people** were to deal with the present inhabitants according to God’s directions
After doing this, the settlers’ land claim would be valid (and indeed foreordained)
The settlers are the true owners of this piece of earth.
And while the occupants of Biblical Jericho would likely disagree (in respects that are material to survival) with the way that we tell this particular story of nationmaking-via-land-acquisition, there is basis in both law and policy for the Veggie Tales view.
God gave us this land as organizing principle, battle cry, and core historical narrative may seem overly simplistic. And in a way, this is true- but only insofar as the process of originating land claims at the beginning of colonization, and then laundering those claims into a heritable line of title, is itself violently, conscience-numbingly simple.
The British colonial experiment in America*** begins in what becomes Virginia, and then expands (we’ll get to how this happens—the short answer is land patents) to Massachusetts. What is important to understand for now is that the colonists who landed at Cape Cod were 1. earnestly bought in on “the Lord has given this land to us” as a legitimizing force and a governing ideal and 2. quite literally bought in on the financial side of the colonial project; each English venture to the Americas was funded as a joint stock corporate endeavor intended both to financially bolster and geographically expand the British Empire.
One way to look at these twin realities is that the American colonial project was both contingent on being divinely blessed with land and simultaneously fully intent on taking it. There is a space in which these two ideas- divine right and empire’s might- could exist in tension, but the unity inspired by the shared goal of dominion seems most often to have made them quite collaborative, if circular, bedfellows. The Lord Has Given This Land to Us, and therefore we are able to use force to claim it. We are able to use force to claim this land, and therefore we know that the Lord has given it to us.****
Property law wrestles with this a bit. Where did our right to these lands come from, the Supreme Court asks and answers in Johnson v. M’Intosh (Indian lands and all claims thereto effectively ceded to the British government, and through it to the U.S. government, from the time of occupation; 1823, Chief Justice Marshall writing for the Court). One does wonder why the asking happens then, at enough remove that all that remains is to manifest some destiny. Indigenous challenge, including through the court system, of U.S. usurpation of lands was not unknown in the century previous; why did we open ourselves to reflection at the highest level only at a moment where it might prove ineffectual? Herein, again simplistically but perhaps accurately, lies not just question but answer.
I have mentioned elsewhere that you will never see an environmental clean-up claim involving a currently functional factory. We only do those later, when it’s all over but the shouting, the effect being that we are sometimes willing to wring hands about the externalized costs of capitalism but the deck remains stacked against our actually interrupting costly events as they happen. This is curious to me, in that the grounds (literally in many cases) for requiring cleanup both presuppose harm from damage and seem also in their very structures to assert, re: pollution, that “this never should have happened.”
In short, the Clean Air and Clean Water acts along with CERCLA are saying not simply “clean up your mess/pay its costs,” but “don’t do this kind of harm; there are penalties.” If, however, this were actually what we collectively meant, our regulatory agencies and legal system would move differently while pollution is actually occurring, and they would structure (dis)incentives in a way more observably likely to prevent spills, dumping, and ruin in the first place. In other words, prevention would be a goal, and we would work toward achieving it via a set of structures, tools, and actions consistent with the environmental regulations we have made. However: prevention-in-fact would require the entire system to move differently, which would alter and interrupt activities considered productive, some of which pollute through inattention and inefficiency and some of which pollute as their primary activity.
Instead of interrupting these harms, we simply use preventive moralities to wrestle only with postmortem problems; the system continues to move along its prior track, victims and land are partially bandaged under legal codes that hold that they must be, and official handwringing about gaps between theory and practice achieves the moral absolution sufficient to engage in the next phase of development unencumbered by any obligation to shift paradigms.
This is not unlike the handwringing we see from the Supreme Court in Johnson. The decision, which is the first case that students in first year property law would read (if most professors didn’t skip it, which they seem to) gestures its embarrassment at the legacy it has inherited, and then shrugs and uses laundered chain of title as the springboard from which to embrace another round of genocide in the form of “manifest destiny” and Indigenous removal from all remaining open lands.
Why is the land under your feet yours, in whatever sense? How did our chain of title under property law come to be?
Perhaps you’d like to join me in a song.
j
*I can almost hear your progressive identity freak out but y’all, I already know. My grandparents on my mom’s side are Church of Christ and I don’t mean United Church of Christ, I mean Footloose. The no music, no dancing Church of Christ. The (specific, actual, Colorado Springs institutional) church that raised Nadia Bolz Weber Church of Christ. My paternal grandparents won the baptismal struggle for my immortal soul and voila, I am Lutheran—those grandparents were local, for one thing, and somehow ELCA Lutheranism and the garden variety boomer atheism of my parents found common cause in black coffee and suspicion of liturgical, architectural, or emotional dramatics- but that label and those facts obscure half of my religious heritage. I spent more summers at vacation bible school than you did (unless you’re Pentecostal in which case I defer) and I can sing Blue Skies and Rainbows and I’ve got the Joy Joy Joy with . . . well, not the best of them, but with the group of people who spent summers with very enthusiastic a capella youth songleaders. All to say, there is probably nothing in the larger culture of Veggie Tales that can horrify me at this point, having been subjected to all of it already and by those I love more, and I frankly (usually) appreciate its wit.
**It feels important to note here that this is a faith story belonging to the Jewish people who, after having been held in slavery in Egypt, triumph through their faith in God and are given a place in which to begin again. It feels important to note also that in studying land allocation and legal entitlements and the development of those doctrines in Europe (which not only is not separate from the American story; it subsequently writes it), the repeated massacre of the Jewish people is a throughline so comprehensive and simultaneously a record so understated in tone by the narrators of history that the sole analog that seems fair is the genocidal murder across centuries of Indigenous people, families, villages, and cultures. The slandering and killing of Jewish people happens during the Plague. During land riots. During food riots. During periods of increasing taxation. During political instability. During the Inquisition. And so on.
And it finally feels important to note that this theology- the Lord has given this land to us- is literally what is used to justify genocide against Indigenous people and simultaneously to undergird the labor-cost objectives of enslavement of African people, and it is Christianity making those claims. I note all of this because historical context is both important and maddeningly layered (and while we’re on that subject, there is some doubt as to whether a sack of Jericho in fact occurred), and there are antisemitic hijinks afoot among us even now. Get it straight: if you claim Christian lineage in the United States, the Lord Has Given This Land to Us has been used to support your land claims over and above other people’s human rights, let alone their rights in property. This began as a Hebrew story, but it’s been a fundamentally Christian weapon.
***Not to be confused with the Spanish, French, Dutch and Portuguese conquests of the Americas, happening in competition and dialogue with one another and also with particular and variable intents and impacts upon “discovered” land and people. It’s also important to recognize that significant roil was happening politically in the home countries of colonizing powers, both contemporaneous with and in some ways because of empire-expansion. England experienced a civil war during the early years of the Massachusetts colonies, the Spanish Inquisition was happening as Old World backdrop for Columbus and Vespucci, and the French Revolution happens just ten years after the American one. Empire is expensive; austerity is disruptive.
****The names of the legal doctrines used to uphold this circular reasoning are “discovery” and “conquest.” Conquest is straightforward enough: we were, as above, successful in claiming this land, and we have held uninterrupted dominion over it since we conquered it. Thus, it must be ours in the sense of legal title, which of course is the piece that matters where legal coding of property as an asset is concerned. Discovery, meanwhile, gets a little complicated: it means first in time, and as regards ‘terra nullius’ (in effect, territory belonging to no one). The trouble is that assigning a right to white settlers to hold American lands under discovery means that Indigenous people do not and cannot count as people. How do we justify this inhumane and rather logically unjustifiable conclusion? By asserting that Indigenous people do not and cannot know God. The Lord Has Given This Land . . . to Us.