Captivity narratives

Wednesday afternoon I was walking toward the back side of the house to fetch something when my eye caught a spot of burnt orange in the browning-out palette of the urban woods. It was a chunky red-shouldered hawk sitting on the branch of one of the nearby hackberrys, watching the forest floor for prey. So well camouflaged, and at the same time so conspicuous.

It waited for me to go get my real camera, and cooperated with the patience of an aloof fashion model. Typically raptors wisely fly off the minute they see a black metal object in human hands closer than a hundred yards or so, especially when the object is lifted and aimed right at them, making clicking noises along the way. But this bird stayed close, moving a couple times to another nearby branch but at the last one letting me get about as close as I have ever gotten to one of these birds that dominate the treetops around here. I even tried talking to it, and it didn’t seem to mind. Maybe it has become familiar with my presence, a bird I have taken a hundred pictures of over the last few years and not known it was all the same hawk.

I had never really noticed the shoulders of a resting hawk, the way the whole beautifully feathered and insanely complex structure of its wings drapes over its back like the thick cape of some barbarian king. You could see how it was taking advantage of the lattice of shadows the autumn sun cast through the thinning branches of the woods, and how even its feather patterns mimic the way the light dapples through the foliage.

Perhaps the most amazing thing was to see how much it takes advantage of the opening up of the sightlines as the leaves fall to the forest floor. Not just as vantages to expand its range, but also as vortices through which to attack, or escape. Pity the creatures of the field, who must live in terror of these raptors that attack from faraway, with the stealth of shadow. Birds who become more dangerous as the weather gets colder.

The next morning I found the remains of another bird deeper down in those woods, a heron or egret, and wondered who might have taken it—coyote, raptor, or cat. A better tracker would be able to reassemble the whole story encoded in this remnant on the forest floor behind the dairy plant. My guess would be that this time the mammal won.

Those white feathers were along the path of an old road that used to continue from the end of the street where we live down to what was a ferry crossing before they built the bridge, and later was used by aggregate companies to dredge gravel from the river. The section of that roadbed nearest to us was recently revealed to still be public land by a smart real estate lawyer friend of mine, a little sliver of the commons that, in the eyes of the developers working to turn the empty lots back there into income-generating properties, is a road to nowhere that should be sold to them.

Like most rights of way that date back to the earliest parceling up of the county into private and public property, that roadbed is shared by easements for telecommunications infrastructure, and the raptors really love this one particular telephone pole that carries data for AT&T, Spectrum, and Google. It’s right there behind the door factory, the first pole after the lines leave the road and cut a path above a sloping field where the industrial park turns into a real park. It’s usually the red-shouldered hawk(s) I see perched up there when I step out of my trailer office in the afternoon, but on Thursday a smaller peregrine was on their turf.

The empty lots along that right of way got freshly dressed with survey markers this month, little data points marked in physical space with ribbons of red and green plastic hanging from trees. The efforts to repurpose that land for productive human use have been going on for as long as we’ve been here, and it’s funny to watch how the land itself confounds them by not staying in one place. The river moves, the dirt shifts and erodes, and the lines the legal code tries to draw to define that space move with them.

In the meantime, the animals take advantage of a little pocket of forest where they are free to roam in the negative space of the city. Like this coyote who returned from last week, accompanied Monday night in the beginning of the video by a mangy friend who helps you understand where the legend of the Chupacabra comes from. Watching them mark this same empty lot as their domain, you might ask whether they will get notice from the city when the developers seek the variances that will allow them to build their new office building over their dens.

Fall opens up the woods to bipeds, too, as the tall grasses of summer go dormant and yield new avenues to the bushwhacker. Sometimes the owners send men out to mow the empty lots behind the factories, and you are reminded how our domestication of the land changes space. The faster you can travel across it, the smaller it feels. But when allowed to grow wild, it becomes dense with other life, each square foot a little world of its own. And the lines we draw on the registries of real property are mostly forgotten.

Something there is that doesn’t love a wall

“Good fences make good neighbors,” say the Texans, who don’t valorize public land the way the do-gooding acolytes of Teddy Roosevelt and John Muir do. They also don’t obfuscate the fact that they took the land by force from the people that were here before them. They are kind of proud of it, and they have a whole creation myth based on the story of just how they did it. But their best myths are the ones about the men and cattle who ranged freely across the state before it got all parceled up, many of them following trails that went right through this spot, driving herds of rounded-up semi-feral cattle from South Texas to railheads in the Midwest.

“Other states were carved or born; Texas grew from hide and horn.

Other states are long or wide; Texas is a shaggy hide.

Dripping blood and crumpled hair, Some gory giant flung it there.”

That grisly ode to Lone Star identity opens the poem “Cattle” by Berta Hart Nance, which I found quoted in J. Frank Dobie’s The Longhorns —a book with a killer tagline:

Maybe it’s a hazard of being a lawyer that when I walk in the urban woods I often find myself thinking about the laws that define where the fences and walls can go. About the simultaneously absolute and ephemeral nature of the rights to occupy, exploit, alienate and exclude others from land we are raised to accept as fundaments of how the world around us is constructed. About how we inherited that entire system from the Norman warlords who used it to conquer England, and within a century found themselves spending a lot of time and money developing novel ways to sue each other over who had which rights to which piece of land, and whose descendants eventually used it to enclose most of the land across which people had once been free to roam.

View from an unmarked property line between corporate land and the commons

That platitude about good fences and good neighbors so often quoted by Texans and other Americans is probably as old as the idea of New England, but its contemporary persistence appears to come from its use by Robert Frost in his frequently taught poem “Mending Wall,” which turns out to be a meditation on the paradoxes of how territorial boundaries both define and impede human fellowship, in a vignette about two guys repairing the stone wall between their properties:

He only says, ‘Good fences make good neighbors.’
Spring is the mischief in me, and I wonder
If I could put a notion in his head:
‘Why do they make good neighbors? Isn't it
Where there are cows? But here there are no cows.
Before I built a wall I'd ask to know
What I was walling in or walling out,
And to whom I was like to give offense.
Something there is that doesn't love a wall,
That wants it down.’ I could say ‘Elves’ to him,
But it's not elves exactly, and I'd rather
He said it for himself. 

Here there are no cows.

Around the time Robert Frost wrote his poem about fences in 1914, my grandfather was writing poems about the wonders of free roaming the Prussian countryside. One of my cousins in Hamburg recently sent me a poem Opa wrote in a letter to his sister in 1913, about fire dancing at a summer solstice campout outside Jena. Sonnenwende. It was only recently that I learned that in those innocent years before World War One, he was involved in the Wandervogel scene, a youth movement devoted to the joys of walking wherever you want to across the landscape and singing folk music as you go. I learned this after inheriting one of the instruments he used to play while wandering, a German lute like the one this lady is strumming:

That photo comes from a book I recently tracked down, a pictorial history of the Wandervögel that gives a sense of the diversity and scale that the movement took on, even as it seems to evade some of the more complicated aspects of a story about a mass movement that responded to modernism and industrialization with romanticization of the land and a revival of Teutonic folk culture that quickly morphed into fervent nationalism that could be manipulated into a “romanticism made of steel.” Reading the book this week, I found myself not thinking so much about those heavy issues of twentieth century history, but about how it is that the idea of the freedom to roam never took root as British and European immigrants colonized this continent.

In most of Europe, every person has a general right to cross the private property of others for recreation and exercise. That the exercise of such a right would likely get you killed in Texas, and in big trouble in almost any part of the U.S. other than a public beach or navigable waterway, is something we can also blame on those Norman warlords who bequeathed us our real property law. But I suspect it’s also something that was necessary to secure our recent conquest of this land.

Another book I’ve been reading this week is one I found the other day while trawling my favorite used bookstore with my daughter. It’s a volume from a series I keep an eye out for: one of the Lakeside Classics books published each year by the financial printer R.R. Donnelly as a holiday gift for their clients and employees, always a public domain work of Americana redone in a beautiful little book with a new introduction and supplemental illustrations. I used to get them when I was one of the lawyers who made the recommendations of which printer to use for the IPO. The newest addition to my collection is Fanny Kelly’s 1871 Narrative of My Captivity among the Sioux Indians.

The book tells the story of a wagon train of settlers migrating from eastern Kansas to new land in Idaho, following the course of the Platte River through the Nebraska Territory. They travel through places that are familiar to me, and it gives a fresh sense of how recently it was that most of this country was treated as open territory to explore and traverse—and how recent were the atrocities that erased the prior inhabitants of that great continental expanse. Kelly’s group were attacked two weeks after an Apocalypse Now-worthy incident in which the Dakota Cavalry decapitated three Indians and mounted their heads on poles near their camp as a warning. Another sort of territorial marking.

The freedom to roam had to be extinguished to secure the dominion that you can see when you drive on the interstate highways that follow the paths of those pioneer trails that were once Indian trails and before that the trails of migrating megafauna, a history evidenced in the towns named after forts and the places whose names come from the dead languages of vanquished peoples. You may not be driving past some of those places on this quarantine Thanksgiving, but this weird American holiday is a good time to think about just how it is we occupy and share the land. And to wonder, if we were to start over again, whether we might do it differently, with an understanding of how fences and walls narrate our own voluntary captivity to legal fictions that effect our own servitude to power.

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Further reading

For more on the freedom to roam, the Wikipedia entry is a good start. For a deeper dive, check out “Why Is It Illegal to Walk Freely in Most of the US?” by Melissa Breyer at Treehugger, or this piece at 99% Invisible for the history of British fights for a rudimentary right to roam. And for my fellow trespass-loving Texans, Texas Observer has this amazing piece by Naveena Sadasivam on one man’s effort to hike the entire route of the Keystone XL pipeline as an act of protest.

For a primer on the English land law we mostly inherited, try this Wikipedia entry.

For more on the Lakeside Classics books, check out this piece at Fine Books.

And over at Reckoning, a literary journal of speculative environmental writing started by my friend Michael DeLuca, you can find my 2017 piece “The Rule of Capture,” which explores the nexus of legal history and folk horror in the lot those coyotes have been traversing this month. It’s a short piece that encodes some of the same themes I dealt with in my 2019 novel Rule of Capture, a book about trespassers who get treated as terrorists.

Happy and safe Thanksgiving for those who celebrate it. And happy anniversary to my wife Agustina, my partner for life in these explorations.