Out on a limb: Carnegie International project seeks legal personhood for a tree
On a small patch of green on Pittsburgh’s North Side stands a little tree with some big ideas behind it.
The black gum — leafless in winter, and about 10 feet tall — is located on the southern edge of Community College of Allegheny County’s main campus, on a little bluff overlooking Route 65 and Acrisure Stadium.
It was planted last year as the German collective Terra0’s entry in the Carnegie Museum of Art’s prestigious Carnegie International. This living artwork is titled “A tree, a corporation, a person,” and its ambition is just that: to see if the artists and museum can gain legal personhood for a plant so it might, among other attainments, own both itself and its modest plot of land.
On one level, the project is an experiment in the name of conservation.
“If a tree had the potential to fight back when a corporation was trying to log it and its forest brethren down, that would be incredible,” said Talia Hyman, a curatorial assistant for the International.
The project grew out of Terra0’s desire to find ways of conserving forests that don’t depend on philanthropy. (Traditional conservation groups depend on grants and donations to fund their purchases of woodlands and other acreage.) It was inspired by the sense that human laws don’t fully account for how people interact with nature, says Terra0 co-founder Paul Kolling.
“The basic idea came from a feeling that maybe our current terminology or frameworks to describe ecosystems or represent ecosystems are not really sufficient to the complexity in which we stand to them,” he said during a recent visit to Pittsburgh.
A Tree for the Forest
“Terra0” in fact was initially the name of a prospective self-owned forest conceived by Kolling and fellow Berlin University of the Arts student Paul Seidler. Their 2016 paper on the project (co-written with Max Hampshire) describes a forest that uses “automated processes, smart contracts and Blockchain technology” to sell licenses to log trees, and thereby amasses the capital to purchase itself and even expand.
Carrying out the project was at that time beyond the means of art students. The concept was reborn on a more modest scale with “A tree, a corporation, a person.”
The plan, created with help from the Carnegie and CCAC, is this. The artists have established the Pittsburgh Lobby for Tree Personhood (PLTP). It’s a type of nonprofit corporation called a 501(c)4, an entity that is required to promote social welfare but also permitted to support political causes. Its sole mission is to get this young tree declared a legal person.
The path to that goal is winding, and likely long.
First, the tree’s plot of land – just several square feet, currently owned by CCAC – must be transferred to the PLTP. (This could happen soon.) The group will then begin its efforts to lobby for personhood, perhaps at the municipal level, or the state level if need be. If personhood is granted, the next step would be creating a limited-liability corporation with the tree as the sole shareholder. Long-term, that entity would generate non-fungible tokens (NFTs) that could be sold to finance the tree’s care and perhaps even its legal expenses. (Inside the walls of the Carnegie Museum of Art, the project is represented by a wall-mounted video screen depicting one of these “certificates of care.”)
The Carnegie’s lawyers are on the case, said Hyman, and the museum has agreed to stick with it for the 99 years the lease runs. “The implications for the project were so different than any other artwork we were considering at the time,” she said. “What a museum has to do to care for this work and realize this work, it opens up so many doors and so many questions and opportunities for critical thinking.”
“It would be something thinking outside of the box,” said CCAC president Quinton Bullock.
Speaking for the Trees
“Legal personhood” does not usually grant a non-human entity the same rights as a homo sapien. Even in the U.S. Supreme Court’s controversial decisions granting personhood to corporations — in cases like Citizens United v Federal Elections Commission, when the Court sanctioned unlimited campaign donations from corporations — the designation is a limited one. Corporations don’t have a right to privacy, for example, or a right against self-incrimination. So it would surely be with a black gum.
Likewise, said University of Pittsburgh law professor Mike Madison, the criteria for granting legal personhood doesn’t involve whether a given animal, plant or inanimate object is sentient or can feel pain.
The bigger question, said Madison, who specializes in intellectual-property law, is “do these entities need the power to speak for themselves in court?”
Just as lawyers are appointed to speak for children in family court, it could be argued that a tree warranted legal counsel were it threatened by air pollution or a construction project.
“Does the tree have the right to be represented by a human being in court, for somebody to go in and say, ‘I’m here to advocate for the best interests of the tree?’” said Madison.
This is not the first attempt to obtain legal personhood for a non-corporate entity. In New Zealand, a river sacred to indigenous people was granted that status in 2017. However, an animal-rights group failed in its attempt to convince a court to grant legal personhood to an elephant in the Bronx Zoo.
Madison said Terra0’s strategy of starting with a 501(c)4 is a sound one. But he said any proposed laws leading to tree personhood seemed likely to face opposition at some point.
“Do we want to grant standing to a tree to have the tree advocate for itself if there’s a question of land use?” said Madison. “If I were a lawyer for a real-estate developer, I would say absolutely not. Right? You don’t want to have trees standing in the way of progress.”
However, Madison said a new law to this effect — whether municipal or at the state level — could be beneficial.
“Maybe there’s an on-the-ground kind of power we should grant to a tree to say, both practically and symbolically, it’s going to elevate the idea of environmentalism and ecological balance in a way that Pittsburgh has not experienced before,” he said.
For all its uniqueness, the tree is still a tree.
Jake Milofsky, director of tree care and reforestation for Tree Pittsburgh, the nonprofit hired by the Carnegie to care for the tree, was invited to visit the site in mid-December.
“We come out in the summertime while we’re watering it, we gave it a nice big mulch ring and we’ve been weeding it,” he said. “We put this black plastic guard on it to make sure if any deer come by they don’t rub it with their antlers.”
“Black gum are beautiful trees, they have gorgeous fall color, they’re good for pollinators, so it’s certainly a nice tree to choose here,” Milofsky said.
Black gums can live 75 years, and top 50 feet. This specimen’s growth will be guided, early on, by two tall wooden stakes pounded into the mulch bed.
Black gums are not native to Southwestern Pennsylvania. Terra0’s Kolling said the species was chosen because it should continue to thrive decades from now in what will likely be a much warmer Pennsylvania.
Milofsky said Tree Pittsburgh staff refer to this particular black gum as “the sovereign tree.”
“If someone came and hit it with a lawnmower, is it gonna sue? These are questions that I wonder about as a tree-care professional,” he said.
As a staffer for a group that plants thousands of trees each year to preserve and restore Pittsburgh's tree canopy, he is intrigued by the project. He said legal personhood might be a reasonable designation for a type of entity that provides so many services to humanity, from providing shade and cleaning the air to soaking up stormwater and even sequestering carbon dioxide.
The idea is that "the tree has its own inherent value and that it is working, and that we should be placing value on that work and not just taking it for granted as some kind of externality,” he said.
For whatever notoriety it’s earned the tree is currently somewhat low-profile. No signage notes its importance, and even views of it are partly obscured by temporary fencing from the renovation of a nearby CCAC building. (CCAC President Bullock said the construction should end by summer, and a sign is planned.)
Still, few trees around these parts elicit more concern about their health. The Carnegie’s Hyman recalls one field trip to the site last year: “The first time we went to visit the tree after we planted it we saw a lanternfly on it, and I think we had a heart attack: you can’t die, we just planted you!”