Tag Archives: American Indians and Literature

The Devil and Tom Walker — A Property Tale 4

by • Property, Uncategorized • Tags: , , , , , , ,

I want to thank Warren, Patrick, Allen and Mai-Linh  for having me here at the Table.

Washington Irving’s The Devil and Tom Walker has been exemplified as a an example of Irving’s use of folklore in constructing narratives of context.  Most writers and commentators focus on the karma-istic nature of the story, the faustian detail (devil story), or the role of greed.   But the Devil and Tom Walker is a property story.  Yes — its about, at its core, the capacity of property to shape relationships amongst people.  A few areas of intersection emerge in a property world.    We see the conflict between entitlements that are respected and those that are not. In fact, as the last assignment for the semester, I am having my students read the Devil and Tom Walker.  These are some of the things I want them to see.  Today I want to point out how landscapes and their surroundings in The Devil and Tom Walker are intertwined in the property world.

The beginning of the story tells us that there are two property conflicts that will shape the story.  We learn that the Pirate Kidd has stashed gold in the hills amongst the trees in an inland swampy area under the watchful “guardianship” of the devil, “as [the devil] always does with buried treasure, particularly when it has been ill-gotten.”  We also learn that Tom Walker and his wife lived in a state of conflict over the things that might be termed their “earthly treasures.”  The wife hid things as they were acquired (like the eggs laid by the hen) and Tom pried about to discover her secret hoards, causing fierce conflicts over what Irving tells us should have been “common property.”  These conflicts left their marks on Tom’s face from time to time, though no one ventured to interfere with their business.

We also get an early glimpse of the poverty in which they lived — poverty which was common amongst their peers.

They lived in a forlorn looking house, that stood alone and had an air of starvation. A few straggling savin trees, emblems of sterility, grew near it; no smoke ever curled from its chimney; no traveller stopped at its door. A miserable horse, whose ribs were as articulate as the bars of a gridiron, stalked about a field where a thin carpet of moss, scarcely covering the ragged beds of pudding stone, tantalized and balked his hunger; and sometimes he would lean his head over the fence, look piteously at the passer by, and seem to petition deliverance from this land of famine. The house and its inmates had altogether a bad name.

Their Property, it seems, began to mimic the desolate nature of their souls.  Their home, like them, was forelorn.  The story does not tell us that Tom or his wife had children, but their property reflecting their nature suggests they were sterile, producing no fruit.  Moreover, the house was unwelcoming — there was no warmth either by fire or welcoming nature and no “traveller stopped at its door.”  The house became anthropomorphasized, at least as it reflected its two inhabitants, similar to the House of Usher in Poe’s tales, or the House of the Seven Gables from Hawthorne.

As Tom went walking one day, through the land, he came upon an area known amongst the common people as a dim place. Tom stops for a rest amongst a great tree and uncovers an indian skull with an ax embedded within it.  The place was known to be one where Indians performed incantations and made sacrifices.  It was a place where the sacred and the profane met.  But Tom was not one to be trifled with such stories.   Here, the story tells us a couple of things.  First, Tom perceives himself differently from the common people.  Common people believe in the mystical nature of the place which shapes the entitlements of people to enter; but not Tom.  Tom’s view of property then is shaped by what we would term entitlements, rather than propriety.  This is exemplified when Tom encounters the devil after kicking away the skull he has unearthed.

“Let that skull alone!” said a gruff voice….

He scowled for a moment at Tom with a pair of great red eyes.

“What are you doing in my grounds?” said the black man, with a hoarse growling voice.

“Your grounds?” said Tom, with a sneer; “no more your grounds than mine: they belong to Deacon Peabody.”

In Tom’s view, the Devil has no right to exclude Tom from the property.  Its only Deacon Peabody, whose entitlement is legally proper — that is respected by the white community.  In this end, it does not matter that Tom does not have an entitlement to the property.  All that matters is that neither does the devil, and from where Tom sees the world, his entitlement is probably better anyway.  Similarly, when Tom learns that the Devil is hewing trees (which represent the souls of the great men of the town), Tom asks what right did the devil have to tear down the trees.  And the Devil responds: “”The right of prior claim,” said the other. “This woodland belonged to me long before one of your white faced race put foot upon the soil.”

There is an irony in the claim of first title that emerges in the discussion between Tom and the Devil.   Tom does not respect the right of the native American’s to occupy the land.   He believes the entitlement is only proper with Deacon Peabody — an opinion which was consistent with the prevailing worldview as title goes.  See Johnson v. M’cintosh for example.  Ironically, Tom seems to accept the Devil’s account when he learns that the devil is not merely native american, but rather absorbs the dark matters across all cultures.   At this, the Devil has trumped Tom’s view of entitlement drawing on a greater source of right, than that which Deacon Peabody claimed his right — the actual right of first occupancy.

Similarly, the question of who has the rights to the chattels on the property are shaped by how Tom and the Devil perceive the entitlement to the wooded area. The Devil tells Tom of the treasure that falls under his protection.   At first, Tom is skeptical of the Devil.  In fact the story tells us that Tom was a “hard-minded fellow” and did not at all fear the devil and asked for proof that what the devil said was true.”  As the story proceeds, we see Tom does ultimately deal with the devil (I am going to cover Tom’s and his wife’s encounters with the devil in part II) and takes possession of the gold.  But what is important is how Tom perceives the Devil’s entitlement to the gold.  The Devil tells Tom that the only way to find the gold is through the Devil, who has hidden it so that none may find it.  As Tom prospers with the Devil’s gold, he begins to think about how he can cheat the devil out of his gold.

Once again, Tom defers to entitlements. His solution is to appeal to the what he believes can conquer the devil — zeal and devoutness.   Once again, relating the property course to this work, we see the American perspective shaped by how entitlements are created.

Some Questions for Students from the Devil and Tom Walker

1. How does Tom’s perception of the entitlements to the forest land shape his interactions with “Old Scratch?”

2. Does Tom’s lack of respect for the entitlements shape the way he respects the things found on the land? Compare the Skull with the Trees, with the Treasure.

3. Considering the reasoning of Justice Marshall in Johnson v. M’Insosh, how should we understand entitlements to the property in the forest.  Could Johnson v. M’Intosh be consistent with Devil’s entitlement to the forest land?

4. How should disputes relating to various chattels be resolved in relation to the Skull, the Trees, the Treasure?  Consider Pierson v. Post, Ghen v. Rich, Popov v. Hayashi, Keeble v. Hickeringill, and NAGPRA.   Does it matter if the Devil’s entitlement isn’t legitimate?

5. How does Property shape the various relationships in the story?   Tom and the Devil; Tom and his wife; Tom and Deacon Peabody; the Devil and Mr. Peabody?

6. Are there entitlements we should respect, regardless of their legal enforceability?

Are there other things that you would ask?  Please post comments below.

Forthcoming — The Devil and Tom Walker: A Property Tale — The Relationships of People to Property.  

William Bartram’s Travels and the Erotica of Nature 1

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I’ll limit my discussion of Bartram’s cognitive originality to some finer points made by Michael Gaudio, whose article, “Swallowing the Evidence,” is a mostly on-the-mark interrogation of Bartram’s persistent use of metaphor.

Gaudio writes that Bartram’s Travels, with its imagery of swallowing, mouths, and voids, calls into question Enlightenment aesthetics while signaling glaring absences in the putatively public sphere. Although Gaudio argues convincingly that Bartram’s imagery signifies an “Enlightenment view of the cosmos in which the natural and the social operate according to the same rational principles,” he privileges a political over an erotic reading, thereby reducing the text to a series of subversive patterns of visual perception. In fact, Bartram’s text is less about movement politics than it is about scientific or social politics (I’m strategically essentializing here—these spheres are neither mutually exclusive nor categorically absolute).

Travels describes a journey lasting from 1773 to 1777, arguably the most intense moment in American political history, yet Bartram makes no mention of the Revolution, the Continental Congress, the Declaration of Independence, or any other political signifier. As the war between Britain and America raged, Bartram rummaged through woods recording data and collecting specimens. He might have been interested in undermining Enlightenment ideals, as Gaudio suggests, but he probably was not keen on likening sink holes to doubts about the democratic project. A better reading would treat Bartram’s concave, hollow, and gaping imagery as vaginal and his nature aesthetics as sexual. Such a reading not only sheds light on Bartram’s aesthetic facility but also gives rise to a better reading of Bartram’s politics as understood through depictions of Natives, black men, or property-owning colonials. Gaudio is right to argue that, for Bartram, “the work of the naturalist is the recording of not only the visibility of nature’s surfaces but also the struggle that leads to that visibility,” but he is wrong to ignore the language of penetration and other pseudo-sexual insinuations. Attending to this sexual language might have allowed Gaudio to enlist Bartram in the “anti-Enlightenment” project in other, more interesting ways—for instance, by contrasting Bartram’s observations of Indian tribes with the unwarranted assumptions of Enlightenment thinkers who dismissed Natives as mere barbarians or worse.

Gaudio submits that because Bartram’s aim was to “exhibit the self-evidence of nature” and to “set the full presence of its surfaces before the viewer,” Bartram’s appeals were necessarily visual. That much, I think, we can grant. But Gaudio goes too far when he contrasts Bartram with Bacon by claiming that the latter employed “rhetoric of penetration” to peer beneath nature’s surfaces whereas Bartram looked precisely to nature’s surfaces because he preferred architectural forms to dissected taxonomies. Gaudio suggests, in other words, that Bartram seeks out rational forms, which share a visual logic, to show nature’s uniform and universal manifestations. Nevertheless, Bartram’s rhetoric (like Bacon’s) is rich in references to penetration. Gaudio’s formative analogy therefore does not stand up to close examination.

“Having some repairs to make in the tackle of my vessel, I paid my first attention to them,” Bartram says of a particularly cheerful morning, adding, “my curiosity prompted me to penetrate the grove and view the illuminated plains.” Similarly, Bartram speaks of “penetrating the groves,” “penetrating the Canes,” “penetrating the forests,” penetrating the “first line” of alligators, “penetrating a thick grove of oaks,” and penetrating “the projecting promontories.” All of this penetration flies in the face of Gaudio’s argument that Bartram’s “voids” signal the limits of Enlightenment thought. Rather than avoiding vocabulary of penetration, Bartram embraces it. Bartram may be interested in surfaces, but he is also interested in—one might say seduced by—what lies beneath. He even employs sexual innuendo and other erotic lexica to portray what lies beneath.

The sexual language in Travels serves to eroticize nature, which seduces with its enchanting if virginal charms. In a brilliant essay, Thomas Hallock speaks of botanic men (including William Bartram’s father, John) who turned “genteel ladies into fascinated subjects.” For these men, plants “served as a shorthand for intimate relationships that were transacted across vast space.” According to this logic, it follows that any “individual who interacts with the natural world takes on an ‘ecopersona,’ an identity or costume of manners that locates consumption of the natural within a given cultural code.” By ignoring the eros pouring forth from Bartram’s nature writings, Gaudio overlooks a very telling association between Native women, whom Bartram eroticizes, and nature, itself a sensual “organism.” More to the point, he misses Bartram’s odd constructions of eco-personae for Native women. Indeed, Bartram forges an association between nature and Native women in his “sylvan scene of primitive innocence,” which was “enchanting” and “perhaps too enticing for hearty young men long to continue idle spectators.”

In what Bartram calls a “joyous scene of action,” nature (read: passion) prevails over reason and European men are drawn helplessly—as if by Sirens—to the Native “nymphs” guarded by “vigilant” and “envious” matrons. The Native women are sensual and seductive because they seem in tune with Nature and the “Elysian fields.” In light of this analogy, Bartram speaks of Natives as “amorous topers,” “amorous and bacchanalian” dancers, amorous singers, and amorous and intriguing wives, just as he speaks of the “sweet enchanting melody of the feathered songsters” in their “varied wanton amorous chaces,” or of the “soothing love lays of the amorous cuckoo.” That is to say, Bartram effectively ties Native women to the carnal cravings of animal lust. For this reason, the desire to penetrate takes on a much stronger meaning than the one Gaudio describes vis-à-vis Bacon—it becomes not just about examinations of exterior surfaces but about the physical need and urge to thrust right through surfaces.

The land on and adjacent to a particular river “appears naturally fertile,” Bartram declares, “notwithstanding its arenaceous surface.” Surfaces can be deceiving, so Bartram digs deeper, so to speak, and identifies their sexual and reproductive possibilities. Similarly, he likens “many acres of surface” to a “delusive green wavy plain of the Nymphae Nelumbo,” a plant that represents sexual purity or virginity. In these and other instances, Bartram renders nature as a playground of erotic spaces for male pleasure. Simply put, Bartram’s nature is fertile and stimulates sexual arousal.

If, for Bartram, Native women were in harmony with nature and so were fertile and seductive—if they were hypersexualized—then Gaudio could have done far more with the vaginal motifs in Travels. Like countless others, he could have called into question the tropes, male gazing, and sexual power plays at work in the book and thereby achieved a “political” reading actually supported by the text. Gaudio is at his best when bringing to light metaphors that would seem easy to overlook, but his analysis fails for disregarding the obvious sexual and vaginal connotations evoked by these metaphors. At worst, his analysis fails for pivoting on a major assumption—that Bartram limited his analysis to surfaces and exteriors without regard to “the insides.” If anything, Bartram seems even more interested in “the insides” given his sexual renderings of a nature that invites penetration and carnal exploration.

–Allen Mendenhall

See the following articles for more reading:

Abrams, Ann Uhry. The Pilgrims and Pocahontas: Rival Myths of American Origin. Boulder: Westview, 1999.

Fischer, Kirsten. “The Imperial Gaze: Native American, African American, and Colonial Women in European Eyes,” in A Companion to American Women’s History. Blackwell Publishing, 2002.

Fleming, E. McClung. “The American Image as Indian Princess.” Winterthur Portfolio. Vol. 2 (1965: 65-81).

Gaudio, Michael. “Swallowing the Evidence: William Bartram and the Limits of Enlightenment.” Winterthur Portfolio. Vol. 36, No. 1 (2001: 1-17).

Hallock, Thomas. “Male Pleasure and the Genders of Eighteenth-Century Botanic Exchange: A Garden Tour.” The William and Mary Quarterly 62.4 (2005): 32 pars. 13 Oct. 2009 .

The Travels of William Bartram. Ed. Mark Van Doren. New York: Dover Publications, 1928.

Schoelwer, Susan Prendergast. “The Absent Other,” in Discovered Lands, Inventing Pasts. Yale University Press, 1992.

Returning from the Oklahoma Sovereignty Symposium 5

by • Roger Malvin's Burial • Tags: , , , , , , , ,


I have been traveling allot the last few weeks.  One of the places that I have been, and which I am returning is the Oklahoma Sovereignty Symposium in Oklahoma City, OK.  This is my first year going and it was well worth the drive.  I was blown away by the Parade of Nations, in which the tribal nations of Oklahoma entered the arena.  I was captivated by the conversations and found myself wishing I had more to contribute.  But on a certain level that seems to be appropriate when we are talking about Native Americans and the law doesn’t it. Our narrative history (I am Choctaw) chants a song that is only heard by some, but when heard is a testament to our life, our struggles and our status as a people.

This years theme was “as long as the grass grows.”  How fitting a phrase for Indian law itself.  As long as the grass grows beneath our feet, Indian law will continue to whisper the remnants of our past.

While I was sitting in the panels and listening to the rich dialogues that of themselves gave birth to the peoples and their stories, I began to think about what types of texts might fit in a law and literature course.

Of course Nathaniel Hawthorne wrote about Indians: we have talked about Roger Malvin’s Burial and Lovewell’s fight in the French and Indian War here; however, Indians in Hawthorne’s tales are mostly in the background — setting for the action of the european settlers. This is in contrast to his contemporary James Fenimore Cooper who romanticized the American Indian (Last of the Mohicans remains a favorite (book and movie).

Another book that looks at the Indian as confronted with modernity, is Sundown, by John Joseph.

A modern piece of literature that struggles with identity, family, and modernity is The Bean Trees by Barbrara Kingsolver.   I keep meaning to read her follow up to that book Pigs in Heaven, though perhaps this summer. Animal Dreams is also a good read.

Perhaps though the best book is Robert William’s The American Indian in Western Legal Thought. William’s historical and cultural sensativity make this volume a must for anyone contemplating Indian Law.

What other works by or about Native Americans should be included in a Law and Literature Course?

Video and Song: Ghost Dance by Robbie Robertson