Extermination of the Buffalo and Creation of the Corporate Person

Was this a coincidence?

Feb 03, 2024

IN THIS POST: Extermination of the buffalo destroyed the original free existence of original peoples and opened the way toward domination of the continent by concentrated corporate power allied with US empire.

Years ago I dug into the legal doctrine of “corporate personality” — the notion that a corporation has the status of a person under the US Constitution.

I was struck by a coincidence of dates between the judicial decisions decreeing the doctrine and the extermination of the buffalo:

The 1882 buffalo hunt by the Teton Lakota is generally said to be the “last great hunt”, after which buffalo were nearly gone.
The 1883 and 1886 decisions in Santa Clara County v. Southern Pacific Railroad Company declared the railroad to be a "person" under the US Constitution.

The more I thought about it, the more I came to see the extermination of buffalo as a historical precondition to the creation of the corporate person.

One way to tell this story is to see how railroads were central to the extermination of the buffalo and to the creation of the corporate person.

RAILROADS VS. BUFFALO

David M. Vigness, award-winning southwestern historian wrote:

The immediate cause for the tremendous slaughter of buffalo in the 1870s and 1880s was the completion of the transcontinental railroad.

On one hand, Vigness said:

When the Union Pacific was completed in 1869, it became possible to ship hides from the Great Plains to eastern markets for a profit.

On the other hand, the railroad divided the buffalo into two great herds, the northern and the southern.

The southern herd was the larger and was exterminated first. The slaughter in the south began in earnest in 1874 and was over by 1878. In the north the great hunts began in 1880 and were over by 1884.

The masterwork on the extermination of the buffalo is William Temple Hornaday’s 1889 The Extermination of the American Bison, published as a report of the National [Smithsonian] Museum, Washington, DC.

Hornaday quoted “the only reliable estimate” he could obtain, a statement by Mr. J.N. Davis of Minneapolis, a fur trader who operated “on a large scale throughout [the] Northwestern Territories”.

“It is impossible to give the exact number of robes and hides shipped out of Dakota and Montana from 1876 to 1883, or the exact number of buffalo in the northern herd, but I will give you as correct an account as anyone can. In 1876 it was estimated that there were half a million buffaloes within a radius of 150 miles of Miles City. In 1881 the Northern Pacific Railroad was built as far west as Glendive and Miles City. At that time the whole country was a howling wilderness, and Indians and wild buffalo were too numerous to mention. The first shipment of buffalo robes, killed by white men, was made that year, and the stations on the Northern Pacific Railroad between Miles City and Mandan sent out about fifty thousand hides and robes. In 1882 the number of hides and robes bought and shipped was about two hundred thousand and in 1883 forty thousand. In 1884 I shipped from Dickinson, Dakota Territory, the only carload of robes that went East that year, and it was the last shipment ever made.” {pp. 512-513}

As another source puts it, by mid-year 1883 nearly all the bison in the United States were gone.

Hornaday reported his personal observations:

In 1886 we found the scattered remnant of the great northern herd the wildest and most difficult animals to kill that we had ever hunted in any country. It had been only through the keenest exercise of all their powers of self-preservation that those buffaloes had survived until that late day. {p. 430}

Hornaday was so distraught by the slaughter of the buffalo that he became a preservationist. He returned to Washington with specimens for the Smithsonian and also with live buffalo for the National Zoo, which he helped establish in 1889, one year after Albert Bierstadt completed his famous painting, “The Last of the Buffalo”:

Albert Bierstadt, “The Last of the Buffalo”. National Gallery

Extermination by the railroads was supplemented by a US policy of purging the country of both Native peoples and buffalo.

The 1873 Annual Report of the Secretary of the Interior, Columbus Delano, put it this way:

… I would not seriously regret the total disappearance of the buffalo from our western prairies, in its effect on the Indians, regarding it rather as a means of hastening their sense of dependence upon the products of the soil and their own labors…. {p. 688}

🤯 As if buffalo were not “products of the soil” and hunting were not “labor”! They weren’t farming and wage labor!

Carolyn Merchant, in her 2007 American Environmental History: An Introduction, quotes a US Army officer who in 1867 is said to have ordered his troops:

“Kill every buffalo you can. Every buffalo dead is an Indian gone.”

RAILROADS AS CORPORATE PERSONS

The Library of Congress explains that railroads were a joint corporate / government project:

In 1862, Congress passed the Pacific Railway Act, which authorized the construction of a transcontinental railroad. The first such railroad was completed on May 10, 1869. By 1900, four additional transcontinental railroads connected the eastern states with the Pacific Coast.
Four of the five transcontinental railroads were built with assistance from the federal government through land grants. Receiving millions of acres of public lands from Congress, the railroads were assured land on which to lay the tracks and land to sell, the proceeds of which helped companies finance the construction of their railroads.

Railroad finance raised investment banking to astounding levels.

As Charles Francis Adams (son of John Quincy) put it, “Railroads… are the most developing force and largest field of the day.”
An intensive appetite for capital [arose for] constructing, maintaining, and operating …railroads. New sources of capital had to be found, and new ways of mobilizing that capital.

Populist state legislatures responded by enacting legal obstacles to corporations doing business within their states.

California's 1879 railroad tax provisions were a high-water mark of anti-corporate state laws. They distinguished between mortgages for personal property (e.g., homes) and mortgages for business capitalization.

The state Board of Tax Equalization targeted railroad mortgages because "railroads, unlike other property, were mortgaged for more than cost, yet still paid handsome dividends".

The law changed the mode of tax assessment to get at the "going value" of the railroads — their profit-generating capacity, as contrasted with the cash value of their assets.

Railroads challenged the law as a violation of the 14th Amendment, which says:

No state shall…deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The railroads said their corporations were “persons” protected by this clause.

The Circuit Court ruled for the railroad, basing its decision on a series of hypothetical statements:

First, the court decried tax discrimination among different kinds of people:

Strangely, indeed, would the law sound in case it read that in the assessment and taxation of property a deduction should be made for mortgages thereon if the property be owned by white men or by old men, and not deducted if owned by black men or by young men; deducted if owned by landsmen, not deducted if owned by sailors; deducted if owned by married men, not deducted if owned by bachelors….

Next the court segued to different kinds of enterprises:

…deducted if owned by men doing business alone, not deducted if owned by men doing business in partnerships or other associations; deducted if owned by trading corporations, not deducted if owned by churches or universities; and so on…

Then it put these two categories together:

…making a discrimination whenever there was any difference in the character or pursuit or condition of the owner.

Finally, the court concluded that any such kind of tax discrimination would be “tyranny”:

To levy taxes upon a valuation of property thus made is of the very essence of tyranny, and has never been done except by bad governments in evil times, exercising arbitrary and despotic power.

The court said that the Fourteenth Amendment protection of human equality extended to nonhuman corporations and therefore prohibited any distinction between humans and corporations:

With the adoption of the [Fourteenth] amendment the power of the state to oppress any one under any pretense or in any form was forever ended; and henceforth all persons within their jurisdiction could claim equal protection under the laws….
This protection attends every one everywhere, whatever be his position in society or his association with others, either for profit, improvement, or pleasure. It does not leave him because of any social or official position which he may hold, nor because he may belong to a political body, or to a religious society, or be a member of a commercial, manufacturing, or transportation company.
It is the shield which the arm of our blessed government holds at all times over every one, man, woman, and child, in all its broad domain, wherever they may go and in whatever relations they may be placed.

When California appealed, the US Supreme Court adopted the Circuit Court decision.

In fact, the Supremes didn’t allow the parties to argue the question:

"The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of opinion that it does".

In 1938, Supreme Court Justice Hugo Black lamented that:

"Of the cases in this Court in which the Fourteenth Amendment was applied during the first fifty years after its adoption, less than one-half of one percent invoked it in protection of the negro race, and more than fifty percent asked that its benefits be extended to corporations" {Connecticut General Co. v. Johnson (1938)}.

“Corporate personality" is synonymous with the sacrifice of natural persons.

The Circuit Court denied populist objections to vast aggregations of wealth and asserted that corporate capital was beneficial to people's lives:

"The aggregate wealth of all the… companies … amounts to billions upon billions of dollars… and furnishes employment, comforts, and luxuries to all classes, and thus promotes civilization and progress….”

Railroad lawyers were satisfied. As one of the Southern Pacific Railroad briefs put it, in a prophetic typographical error, the Fourteenth Amendment clause about protection of “property” reads protection of “profit".

But legal philosophers were worried:

“Natural persons” have existential human reality.
“Corporate persons” are an abstract legal concept.

The Circuit Court made the difference clear:

The legal entity, the metaphysical being, that is called a corporation, cannot feel….

In 1926, John Dewey tried to reconcile the difference by saying law was the foundation of both forms of “personality”.

Dewey said:

Even if it were true, as it is not, that "natural person" is a wholly unambiguous term, to term a "natural" person a person in the legal sense is to confer upon it a new, additive and distinctive meaning….

In other words, Dewey said, a “natural person” has meaning in law only because law gives it meaning….

By mid-20th century, legal philosophy had come to a general agreement to stop fretting and conclude that “corporate persons” and "natural persons" were both just legal concepts.

Lawyers and judges no longer needed to grapple with difficult questions about the "essence" of human personality.

When the US Supreme Court overturned New Hampshire's attempt to turn Dartmouth College into a public institution in 1819 (Dartmouth College v. Woodward), the decision, written by Chief justice John Marshall, said the college corporation was:

“an artificial being, invisible, intangible, and existing only in contemplation of law… by which a perpetual succession of individuals are capable of acting… like one immortal being."

Marshall said that the college was protected by a charter from the British Crown creating the college. [Readers familiar with “Christian discovery” will see a pattern here.]

In a truly bizarre comment, Marshall added that the corporation’s "immortality no more confers on it political power… than immortality would confer such power… on a natural person".

🤯 As if.

Perhaps it is the notion that a corporation has no soul (from Pope Innocent IV, lifted into English law by Sir Edward Coke and Blackstone) that has allowed corporate “persons” to commodify Earth itself in a mad rush for domination of all life.