The Elephant Who Could Be a PersonRoundup
tags: legal history, animals, animal welfare
Jill Lepore is a staff writer at The New Yorker and the David Woods Kemper ’41 Professor of American History at Harvard University. She is the author of If Then: How the Simulmatics Corporation Invented the Future.
The subject of the most important animal-rights case of the 21st century was born in Thailand during the Vietnam War. Very soon after that, a tousle-haired baby, she became trapped in human history. She was captured, locked in a cage, trucked to the coast, and loaded onto a roaring 747 that soared across the Pacific until it made landfall in the United States. She spent her earliest years in Florida, not far from Disney World, before she was shipped to Texas. In 1977, when she was 5 or 6, more men hauled her onto another truck and shipped her to New York, to a spot about four miles north of Yankee Stadium: the Bronx Zoo. In the wild, barely weaned, she’d have been living with her family—her sisters, her cousins, her aunts, and her mother—touching and nuzzling and rubbing and smelling and calling to each other almost constantly. Instead, after she landed at the zoo and for years after, she gave rides to the schoolchildren of New York and performed tricks, sometimes wearing a blue-and-black polka-dotted dress. Today, in her 50s and retired, she lives alone in a one-acre enclosure in a bleak, bamboo-shrouded Bronx Zoo exhibit called, without irony, “Wild Asia.”
This fall, on a day nearly barren of tourists, I rode through Wild Asia on a mostly empty monorail, the Bengali Express, over the Bronx River. “You’ll have no trouble spotting the next animal on our tour, the largest land mammal,” the tour guide said, dutifully reciting a script. “The lovely lady we’re meeting right here, her name is Miss Happy.” A few yards away, behind a fence of steel posts and cables enclosing a small pond, a stretch of grass, and a patch of compacted dirt—an exhibit originally named the “Khao Yai,” after Thailand’s first national park—Miss Happy stood nearly still and stared, slightly swaying, as she lifted and lowered one foot. Miss Happy has managed “to keep her wonderful figure in shape,” the guide said, as if she were describing a vain, middle-aged woman, and the zoo takes “very, very good care” of her: She receives “weekly pedicures and baths,” she said, as if this were an indulgence, the zoo a spa. The script did not mention that the pedicures are necessary to help prevent crippling and even fatal foot disease, a common consequence of captivity, since, in the wild, these animals, traveling in families, often walk many miles a day.
I rode the monorail again. Happy stood and swayed and stared and lifted and lowered her foot. Next year, maybe as soon as January, the New York Court of Appeals will hear oral arguments regarding a petition of habeas corpus that alleges that Happy’s detention is unlawful because, under U.S. law, she is a person. She is also an elephant.
A “person” is something of a legal fiction. Under U.S. law, a corporation can be a person. So can a ship. “So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air,” Justice William O. Douglas wrote in a dissenting Supreme Court opinion in 1972. Pro-life activists have argued that embryos and fetuses are persons. In 2019, the Yurok tribe in Northern California decreed that the Klamath River is a person. Some forms of artificial intelligence might one day become persons.
But can an elephant be a person? No case like this has ever reached so high a court, anywhere in the English-speaking world. The elephant suit might be an edge case, but it is by no means a frivolous case. In an age of mass extinction and climate catastrophe, the questions it raises, about the relationship between humans, animals, and the natural world, concern the future of life on Earth, questions that much existing law is catastrophically ill-equipped to address.
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