The most important animal-rights case of the 21st century revolves around an unlikely subject.
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.
The U.S. Constitution, written in Philadelphia in 1787, rests on a chain-of-being conception of personhood. The men who wrote the Constitution not only made no provision for animals or lakes or any part of the natural world but also made no provision for women or children. The only provision they made for Indigenous people and for Africans and their descendants held in bondage was mathematical: They calculated representation in Congress by adding up all the “free Persons,” subtracting “Indians not taxed,” and counting enslaved humans as “three fifths of all other Persons.” When the question was raised in Congress earlier, about whether, in that case, domesticated animals like cattle ought to count toward representation, Benjamin Franklin had offered a rule of thumb for how to tell the difference between people and animals: “Sheep will never make any insurrections.” He did not mention elephants.
Much of American history is the story of people, rights, and obligations left out of the constitutional order making their way into it, especially by constitutional amendment. The purpose of amendment, as early Americans understood it, was “to rectify the errors that will creep in through lapse of time, or alteration of situation.” Without amendment, they believed, there would be no way to effect fundamental change except by revolution: everlasting insurrection. But, like the peaceful transfer of power, the people’s ability to revise the Constitution is no longer to be relied on: Meaningful amendment became all but impossible in the 1970s, just when the environmental and animal-rights movements began to gain strength.
The Constitution has become all but unchangeable; the natural world keeps changing. The average annual temperature in Philadelphia in 1787 was 52 degrees Fahrenheit. In 2020, it was 58. Last year, the World Wildlife Foundation reported that wildlife populations around the globe have declined sharply in the past half century, with the species it monitors falling by an average of two-thirds. “We are wrecking our world,” a head of the foundation said. Most of the latest extinctions are due not to climate change but to habitat loss. Meanwhile, in the violence of human conquest of animal territory and the atrocities of factory farming, diseases cross from animals to humans and back again. Nearly 5 million people have so far died of COVID-19, which will not be the last zoonotic pandemic. Humans, having destroyed the habitat of many of the world’s other species, are now destroying their own.
New federal and international laws could help, but Congress barely functions and most environmental treaties are either nonbinding or not enforced and, in any event, the United States is not party to many of them, having largely withdrawn from the world. With so many legal, political, and constitutional avenues closed, the most promising strategy, influenced by Indigenous law, has been to establish the “rights of nature.” One such approach relies on property law. Karen Bradshaw, a law professor at Arizona State University, argues that wildlife such as bison and elephants have ancestral lands, and that they use, mark, and protect their territory. “Deer do not hire lawyers,” she writes in a new book, Wildlife as Property Owners, but if deer did hire lawyers, they’d be able to claim that, under the logic of the law of property, they should own their habitats. Another approach, the one taken on behalf of Happy by the Nonhuman Rights Project (NhRP), a sort of animal ACLU, relies on common law. It takes inspiration from abolitionists who used habeas corpus petitions to establish the personhood, and gain the freedom, of people held in bondage. Both strategies risk pitting animal-rights activists against environmentalists, two movements that have often found themselves at odds. (Environmentalists, for instance, wanted wolves in national parks, but accepted that wolves outside the park could be shot by hunters and ranchers.)
This case isn’t about an elephant. It’s about the elephant in the courtroom: the place of the natural world in laws and constitutions written for humankind. In the wild, the elephant is a keystone species; if it falls, its entire ecosystem can collapse. In the courts, elephant personhood is a keystone argument, the argument on which all other animal-rights and even environmental arguments could conceivably depend. Elephants, the largest land mammal, are among the most intelligent, long lived, and sentient of nonhuman animals, and, arguably, they’re the most sympathetic. As moral agents, elephants are better than humans. They’re not quite as clever, but, as a matter of social intelligence, they’re more clever than every other animal except apes and, possibly, bottlenose dolphins, and they’re more decent than humans. They live in families; they protect their young; they grieve their dead; they don’t eat other animals, and they don’t cage, isolate, and torture them. Elephants appear to possess a theory of mind: They seem to understand themselves as individuals, with thoughts that differ from the thoughts of other creatures. They suffer, and they understand suffering.
The Bronx Zoo insists that Happy is not alone: There is one other elephant at the zoo, Patty, and although they’re kept apart, they can sometimes see and smell each other, and even touch one another’s trunks. (Patty and Happy take turns being on exhibit, and also use a small yard, off-exhibit, and each has a stall in an elephant barn.) The zoo has dismissed the case as nothing more than a cynical public-relations scheme. And certainly Happy’s plight has attracted a slew of celebrities. “Everyone knows that elephants are social animals,” Mia Farrow tweeted while the NhRP pursued a #FreeHappy campaign. “No matter how much money you make by displaying her, it’s wrong. Let Happy join other elephant friends at a sanctuary.” Nearly 1.5 million people have signed a petition calling for Happy’s release. Happy is not Happy, read a sign carried by a little girl dressed in a gray-fleece elephant suit, during a 2019 protest held at the zoo. “We would have taken her case if she’d had a different name,” Steven Wise, head of the NhRP, told me. But the name helps. In the 1960s, the ACLU, in choosing to challenge Virginia’s miscegenation laws, selected as a test case the interracial marriage of Richard and Mildred Loving. The ACLU wanted Loving v. Virginia to be about love; the NhRP wants Happy’s case to be about happiness. It also doesn’t hurt their case that her misery comprises forms of distress that many humans, just now, understand better than they used to. In this 21st-century Planet of the Apes moment, humans have so ravaged the planet that many feel themselves caged, captive, isolated, and alone, dreading each dawn, so many humans wearing elephant suits, seeing in Happy a reflection of their own despair.
That’s not the only mirror in this story. Happy’s lawyers at the NhRP found Happy to be an attractive client for many reasons, but among them is that, in 2005, in an extraordinary experiment conducted by the cognitive ethologist Joshua Plotnik, she became the first elephant proven to recognize herself—as a self—in a mirror. This test, which only great apes, dolphins, and elephants have passed, is a measure of a species’ self-awareness, which is often linked to a capacity for empathy. But Plotnik, who runs a lab at CUNY’s Hunter College and leads a nonprofit called Think Elephants International, has reservations about the NhRP’s case and regrets the way its litigation has deployed his work. The Bronx Zoo is run by the Wildlife Conservation Society, whose mission is to conserve habitat in 14 of the world’s largest wild places, home to more than 50 percent of the planet’s diversity, and is a leader in efforts to reduce human-elephant conflict in Asia and restore elephant populations and fight poaching in Africa. (In 2016, its campaign “96 Elephants”—for the 96 elephants then killed in Africa every day—helped lead to a near-total ban on the sale of ivory in the U.S.) “Why WCS?” Plotnik asks about the NhRP’s choice of adversary. “Why target them? Why not a roadside zoo that we all agree is taking terrible care of an elephant?” Arguably, every dollar the WCS spends fighting a case involving this single captive elephant is a dollar it doesn’t spend on the preservation of habitat for millions of elephants in the wild, including the mere thousands remaining in Thailand.
“I think the Wildlife Conservation Society is great,” Wise told me. “But all we care about is our client.” Amicus briefs have been filed on Happy’s behalf by a legion of the country’s most respected lawyers, philosophers, and animal behavioralists, including Laurence Tribe, Martha Nussbaum, and the much-celebrated scientist Joyce Poole, who has studied elephants for nearly as long as Happy has been alive, and who co-directs ElephantVoices, a nonprofit research center that studies elephant communication, cognition, and social behavior. Briefs in support of the WCS, on the other hand, as Tribe pointed out to me in an email, have been filed instead by “groups with a strong economic self-interest,” such as the National Association for Biomedical Research, which claims that establishing personhood for Happy risks the future of all laboratory testing on all animals. And, as Poole observed in one of her own affidavits, none of the many highly regarded WCS scientists who study elephants in Asia and Africa has contributed an affidavit in support of the zoo’s position that Happy should remain in the Bronx.
No historians have been involved in the case. But elephants, which can live into their 70s, appear to possess not only a theory of mind but also a theory of history: They seem to understand their lives as a series of events that take place over time; they remember the past and know that it’s different from the present; they might well wonder and worry about the future. Most other nonhuman animals live in the present—so far as humans know, anyway—but elephants are, like humans, historians.
Elephants cannot write autobiographies, of course. But for a long time, the people who subscribed to a chain-of-being ranking of all creatures believed that the same applied to whole classes of humans. In 1845, after Frederick Douglass wrote his autobiography, the abolitionist Wendell Phillips wrote him, “I am glad the time has come when the ‘lions write history.’” Douglass was not a lion. “We are two distinct persons, equal persons,” he once wrote to the man who once claimed to own him, as if he were an animal. “You are a man, and so am I.”
An elephant is not a man, and an elephant cannot write history. But an elephant might very well be a person, and every elephant has a history. The NhRP says that no elephant should live alone; the Bronx Zoo says this particular elephant should, because of her past: “Happy has a history of not interacting well with other elephants,” the zoo’s director, James Breheny, said in his affidavit. What if another way to consider this case, then, is biographical? It wouldn’t answer the question of what Happy wants, but it would contain within it a tale of atrocity and slaughter, care and tenderness, loss upon loss: the unraveling and un-constituting of worlds.
Around 1970, Harry Shuster, a South African lawyer and businessman, placed an order for seven baby elephants. Shuster had earlier opened an animal park called Lion Country Safari in Florida, not far from Disney World, and was now preparing to open another one in Southern California, a $12 million “un-zoo,” a drive-through safari just off the San Diego and Santa Ana freeways, outside Irvine. He said he expected the 500-acre site to be “the next Disneyland.” In California, he got some of his elephants from Hollywood, including an Asian elephant named Mocdoc. She’d spent much of her life performing for Ringling Bros. circus until, in 1966, she became a star of the safari-themed television series Daktari. After the show was canceled, Shuster bought her. But what Shuster really wanted were elephant babies, as adorable as Disney’s Dumbo. By one account, he paid $800, in advance, for seven calves. He planned to name them after the seven dwarfs from Walt Disney’s 1937 film Snow White and the Seven Dwarfs: Grumpy, Sleepy, Doc, Sneezy, Dopey, Bashful, and Happy. Mirror, mirror, on the wall …
To capture and transport them, Shuster very likely hired an outfit called the International Animal Exchange, although this is impossible to confirm. Details of Happy’s life are hard to come by, and harder to corroborate. Lion Country Safari was not able to locate its records from the 1970s, the International Animal Exchange declined to speak with me, and the Bronx Zoo did not respond to my request to see its files on Happy. I did, however, speak to some of Happy’s former keepers, and this account relies, too, on a wealth of documentary evidence.
The International Animal Exchange was run by a man from Michigan named Don Hunt, who’d started out with a pet store in Detroit and then starred in a nationally syndicated children’s television show called B’wana Don in Jungle-La, with his trained chimpanzee, Bongo Bailey. In 1960, Hunt used the money he made from the TV show to start the International Animal Exchange. In 1968, it provided nearly all of the hundreds of animals purchased by Busch Gardens, in Tampa. And by 1969, according to Hunt, it had grown to become the largest importer of wild animals in the world. (The company remains in family hands and chiefly provides animal transport.)
Hunt’s brothers ran the business from Detroit, but Hunt lived in Kenya in a house “adorned with elephant tusks and leopard skins,” according to a 1969 Newsweek article, and kept a pet cheetah, as if he lived on the set of Daktari. His biggest money came from supplying monkeys to laboratories, but he also did a brisk business, he told Newsweek, in “baby elephants.” He only ever caught animals to order, Newsweek reported, “never on speculation.” In Africa, Hunt did much of the capturing himself. “Giraffes have to be lassoed,” he told Newsweek. “It has to be done quickly.” In other parts of the world, the International Animal Exchange contracted with private dealers who hired local hunters. Prices were high, Hunt told The Wall Street Journal in 1971, when the International Animal Exchange was supplying four out of every five animals imported by U.S. zoos: “Zebra, $2,000 to $2,500; giraffe, $5,000 to $6,500; small antelope, $1,000 to $4,000; rhinoceros, $7,000 to $10,000; leopard, $1,000 to $1,500; and lowland gorilla, $5,000 to $6,000.” He concentrated, he said, on the babies and young adults. Between 1969 and 1970, Hunt’s company’s gross revenue doubled.
In the wild, elephants live in matriarchal herds where all the females help raise the young. Calves spend the first few years of their lives nursing, and are virtually inseparable from their mothers. Males usually venture out on their own in their teens. But female elephants seldom leave their mothers. The seven calves that came to be known as the seven dwarfs were very young; Happy seems to have been less than a year old when she was captured. Methods of capture vary, but capturing a calf can involve killing its mother and other adults that die trying to protect it, as reported in a recent study by TRAFFIC, a conservation organization that works on the wild-animal trade. An expedition that captured many very young calves—like the one in which Happy might have been caught—might have involved the slaughter of most of a herd.
After the terror and tragedy of capture, and having been separated, forever, from their mothers, sisters, aunts, and cousins, calves were typically herded into a corral. “Catching an animal is the easy part,” Hunt said. “It’s after capture that the work starts.” They’d have been kept in the corral for a month—an adaptation period, Hunt explained. Young elephant calves would have had to learn to take milk from a bottle; older calves would have had to get used to eating not local plants but oats, corn, and soybeans. Hunt said that the “animals must become accustomed to man, too, and they must adjust to the shock of losing their freedom.” To prepare animals for travel, he set up speakers and played tapes of the noise of traffic, airplanes, and ships, over and over. The seven calves were herded into cages and flown to the U.S. Lion Country’s youngest elephants were so young that they had to be fed formula, by bottle, every four hours. According to one report, Sleepy died soon after arriving in California, and was replaced, although other sources suggest that all seven calves went instead to Florida.
“Two baby elephants came by truck on opening day,” the Los Angeles Times reported in June 1970. It’s possible that those two were Happy and Grumpy, another female, who seemed, from the start, inseparable. “They were buddies,” a former keeper told me. By opening day, the California Lion Country Safari boasted more than 800 animals, including ostriches, chimpanzees, wildebeests, gazelles, elands, impalas, giraffes, flamingos, camels, and lions. But Shuster was scrambling to add more. “Lion Country Safari, a great hotel for wild animals, is not yet filled,” the Times reported. Seven rhinos arrived only the night before the opening, even as “at least 13 cheetahs, 55 lions, 6 hippos and 80 more antelopes are still on the high seas.” Fifty zebras were “in quarantine in New Jersey.” Most of all, the public wanted “zoo babies,” which were said to “fall in love at first sight with human stepparents.”
Lion Country represented the vanguard of a new era of zoo. (It also appears to have been the inspiration for Michael Crichton’s Jurassic Park.) “You stay in your little steel cage (your car), windows up, and gawk as they gambol, cuddle in the shade, grumble over a hunk of horse bones, or take a swipe at your windshield wiper,” the Times reported. “Over on a hillock, elephants—ears flapping in the wind—play tag—you’re it—with nary a thought of the caged homo sapiens cruising by.”
Terry Wolf is now retired, but he started working at Lion Country Safari in Florida in 1970 and went on to become its director of wildlife. “We had good intentions,” Wolf told me. “And it was a different time.” Flipper was on television (think of Lassie, but with a dolphin), he reminded me, and so was Grizzly Adams (Lassie, but with a grizzly bear). Ads pitched Lion Country as the perfect family outing: It would feel like traveling to Africa or Asia, without all the hassle of passports and malaria shots. One advertisement asked, “Why not round up your pride and bring them to Lion Country today?” A billboard at the entrance read:
NO TRESPASSING
VIOLATORS WILL BE EATEN!
When Happy left Thailand, she flew into American history. In 1971, while war raged in Vietnam, Henry Kissinger, a divorcé, took his two children, ages 10 and 12, on a trip to California. That year, Kissinger, Richard Nixon’s national security adviser, went on a top-secret mission to China. In California, an awkward Shuster, a very distracted-looking Kissinger, and the children posed for a photograph at Lion Country with “the prize baby elephant of the animal preserve.” (Shuster never had much to do with the animals, Wolf told me. “He never had so much as a goldfish for a pet.”) Shuster, in a suit and flashy tie, appears to be attempting to hold the very young Asian elephant in place while the children pet its back. It might even have been Happy, an elephant orphan, made into a plaything for the children of statesmen.
“Why should they want to escape?” Shuster once asked, about the animals in his drive-through safaris. In the wild, he said, they never had it so good. Only one elephant ever escaped from Lion Country Safari, California. An Asian elephant named Misty crashed her way out and charged toward the 405 freeway. When her keeper tried to chain her legs, she killed him. She stepped on his head and crushed his skull.
“Want more than fries from your drive-through?” asked a television ad for Lion Country Safari, Florida. “Drive Yourself Wild!” In 1972, Lion Country put the dwarfs on exhibit in Florida, where they were tended to by a series of beautiful young women, their own Snow Whites. Was Happy happy? One keeper said the elephants were misnamed. “Grumpy should be Sleepy,” 28-year-old Linda Brockhoeft told the Fort Lauderdale News. “Sneezy is the grumpy one.” Doc was mischievous and Dopey wasn’t necessarily daft. Brockhoeft loved Bashful best.
In Florida, the seven dwarfs lived in a petting zoo called Pets Corner, in a cement-floored, U-shaped pen, with a little lake and fountain. “Visitors could walk into the center of the U, where the elephants could walk right up to them and people could pet the elephants and touch them and the elephants would wind their trunks around them,” Carol Strong-Murphy told me. She worked at Lion Country from 1972 to 1974. It was her job to take care of the baby elephants, 10 hours a day, six days a week, feeding them and minding them and sweeping out a little barn, where each calf had a stall with its name on it, like the beds of the seven dwarfs in Snow White. She was devoted to them, and found them ingenious. “Those elephants could do anything: untie your shoes, get into your pocket, take your keys, open any door,” she said. They could escape pretty easily, but she figured out that all they really wanted to do was get back in, to be with the rest of the herd. “If I just got the other six to the opposite side, the one would climb back in.” It took her only two days, she said, to tell them all apart. “Happy,” she said, “was just a really nice elephant.”
For a few, cash-rich years, the business grew, and Shuster acquired more animals, and more elephants. In 1972, he opened a new Lion Country in Grand Prairie, Texas. But when the price of gas began to rise, Shuster started selling off his most valuable animals to raise cash. In 1974, the seven dwarfs, now likely around four years old, were separated. Shuster sold Sneezy to the Memphis Zoo, which loaned him to the Tulsa Zoo in 1977. (Sneezy is still there, but the Tulsa Zoo did not reply to my queries about his history.) Dopey and Bashful were sold from one circus to another before ending up in the George Carden Circus in 1993, under new names: Cindy and Jaz. As of this spring, Cindy was still traveling with the circus and performing. (The circus did not reply to my queries.) Doc died in a zoo in Canada in 2008. I don’t know what happened to Sleepy.
Happy and Grumpy were inseparable. “They were sweet little girls,” Terry Wolf told me. “Happy was the shy, reserved one. Grumpy was more playful, the one to steal all the treats out of your pocket.” They were three feet tall when he met them in Florida. When the other dwarfs were sold to other zoos and circuses, Happy and Grumpy were shipped, by truck, to the Lion Country Safari in Texas, another few thousand miles, to yet another Sun Belt state. At the Grand Prairie site, children could ride on boats shaped like hippopotamuses through the baby elephants’ little lake. In May of 1974, a photographer captured Grumpy (“a recent arrival”), deep in the water, reaching her trunk up to a little girl in pigtails who was riding on one of the boats. That summer, Grumpy was caught on camera reaching for a hot dog held by a 12-year-old girl.
Two years later, in September of 1976, as the gas crisis worsened, Shuster closed the Lion Country Safari in Texas. All of its animals—but not the site—were sold for $271,000 to the International Animal Exchange, which hoped to secure a lease on the land and reopen the park as the Lion Country Safari and Wild Animal Breeding Farm: They intended to use it to breed animals to stock other parks. But by January of 1977, the fate of the animals remained uncertain, and in March, the International Animal Exchange sold Happy and Grumpy to the Bronx Zoo. That same year, two young elephants, both four years old, not much younger than Happy and Grumpy, escaped from the Grand Prairie site: While they were waiting to be shipped to Japan, they had been kept inside a locked truck and, somehow, they got out. Likely, Happy and Grumpy had been locked in a truck too.
The Nonhuman Rights Project argues that no elephant should live in solitary confinement in a one-acre enclosure. Wise is sure he knows how Happy feels and what she wants. “She is a miserable, depressed, extraordinarily lonely elephant,” he told me, and said any elephant would be, under those conditions. He blames people at the Bronx Zoo for her misery. “They certainly don’t love Happy. Why didn’t they just put her in a spectacular sanctuary?” (The NhRP had arranged that: Last year, the Elephant Sanctuary in Tennessee signed an affidavit in support of the NhRP, pledging to offer a place for Happy. But shortly afterward the sanctuary asked the NhRP not to file the affidavit and issued a statement distancing itself from the case and describing the Bronx Zoo as a “well-respected and fellow-accredited member of the Association of Zoos and Aquariums.”)
Happy isn’t any elephant, Breheny, the zoo director, says. She is a particular elephant, who doesn’t get along with other elephants, and who is extremely anxious about any kind of travel and “becomes particularly distressed even by short moves within the zoo.” The NhRP’s argument that Happy would be better off in a sanctuary, Breheny says, neglects “the particular needs, wants, and temperament of any one elephant” and rests on research like the work done by Joyce Poole on elephants in the wild. Poole says her research is relevant to Happy’s condition and argues that if the zoo maintains that Happy has had a hard time getting along with other elephants and is miserable being moved, these claims are not evidence that Happy should stay where she is but are, instead, confirmation of “the zoo’s inability to meet Happy’s basic needs.”
Happy is a particular elephant, but she also stands for all elephants: A test case uses an individual to make a rule about a category. And if the courts recognize her as a person, that ruling will help establish the rights of nature itself. This particular test case is also caught up in the difference between personhood, as a legal concept, and personality, as a concept in the study of animal behavior. “Personality” means consistent individual differences in the way animals behave, measurable traits, like boldness, innovation, sociality, and fear of novelty, as Joshua Plotnik explained to me. There’s no such thing as a typical elephant personality, any more than there’s such a thing as a typical human personality. Happy has a particular personality, and elephants with different personalities respond differently to different situations. Would she, at this point, thrive in a sanctuary? “The sanctuaries, lawyers, and scientists who have never met her really need to consider Happy as an individual, with unique experiences and needs,” Plotnik told me. Plotnik, who worked at the Central Park Zoo when he was in high school, knows and admires zookeepers—people animal-rights activists tend to demonize—and he trusts that Happy’s keepers want what’s best for her, even if, as he pointed out, they shouldn’t be the only people involved in figuring that out.
Another way to close the distance between “any elephant” and “this particular elephant,” though, would be to establish the history of the category to which Happy actually belongs, not elephants in the wild but elephants in the United States. Happy carries on her wide, gray back this terrible history, a fable about the brutality of modernity. It begins with the very first elephant in America. She was called, simply, “the Elephant.”
The Elephant, a two-year-old female from Bengal, was shipped from Calcutta on the America in 1795 and reached Philadelphia in 1796, not long after the ratification of the U.S. Constitution. A broadside celebrated the 3,000-pound animal as “the most respectable animal in the world” whose “Intelligence … makes as near an approach to Man, as Matter can approach Spirit.” She was said to be “so tame” as to travel “loose, and has never attempted to hurt anyone.” In 1797, she traveled to Cambridge, Massachusetts, in time for Harvard’s commencement. Very soon, this seemingly most exotic of animals became a symbol of the new United States, an adopted animal ancestor.
Even before the Elephant toured the United States, Americans had been unusually interested in elephants. Benjamin Franklin collected tusks and elephant bones, knew the difference between the African and the Asian elephant, and, on “the scale of beings,” placed the oyster at the bottom and the elephant at the top. In making this assessment, he relied on knowledge of antiquity and also on English travel narratives. In 1554, John Lok, ancestor of the political philosopher, served as master of a ship voyaging to present-day Ghana; it brought back “certeyne blacke slaves”—the first enslaved Africans in London—250 elephant tusks, an elephant head, and a report of the elephant: “Of all beastes they are moste gentyll and tractable,” according to this report, “for by many sundry ways they are taught and do understand: in so much that they learne to do due honour to a king, and are of quicke sence and sharpenes of wyt.” Or, as the English clergyman Edward Topsell wrote in his Historie of Foure-Footed Beastes in 1607, “There is not any creature so capable of understanding as an Elephant.”
But there was another reason Americans were interested in elephants. Franklin regretted the extinction of the American elephant, “no living elephants having been seen in any part of America.” But the bones and teeth of a so-called animal incognitum, a massive, unnamed animal, had been found along the Hudson and Ohio Rivers, starting in 1705, and when some turned up in South Carolina, enslaved Africans pointed out that they resembled the bones of African elephants. In 1784, Ezra Stiles, the president of Yale, wrote in his diary about a newfound tooth, “but whether an Elephant or Gyant, is a Question.” Thomas Jefferson set about finding a living specimen of this animal—he called it a “mammoth”—in order to answer the insult made by a French naturalist who had declared, “No American animal can be compared with the elephant.” Jefferson charged Meriwether Lewis and William Clark with finding an American elephant. “In the present interior of our continent,” he explained, “there is surely space and range enough for elephants.”
Americans didn’t find any, but they did start importing them, and then began adopting the elephant as a national symbol: gigantic and wise. By 1824, one elephant held captive in the United States was named “Columbus.” In 1872, after the ratification of the Fourteenth and Fifteenth Amendments, which established that all men are “Persons,” this newly amended, reconstructed Constitution was represented in political cartoons as … an elephant. Two years later, the elephant became the symbol of the Republican Party: the immense, powerful, and intelligent might of the Union reconstructing a Confederacy of dunces, the Democratic jackass.
After the abandonment of Reconstruction, the fate of the elephant took a turn. Americans began importing elephants from Africa, most famously Jumbo, brought to New York by P. T. Barnum in 1882. Barnum bought Jumbo from the London Zoo, but he imported most of his animals from the German exotic-animal trader Carl Hagenbeck. Between 1875 and 1882, Hagenbeck claimed, he shipped about 100 elephants to the United States. Most were imported by circuses; many died in zoos, where the display of exotic animals, fettered and caged, became a feature of the age of imperialism.
The first American zoo opened in Philadelphia in 1874; on opening day, a kangaroo broke both her legs on the bars of her cage. The zoo’s first exhibits included an Asian elephant, Jennie, born wild in 1848 and bought from a circus. “There would not have been zoos in America without elephants,” the historian Daniel Bender has observed. Zoos prided themselves on exhibiting biological specimens for scientific study, but the elephants they acquired from circuses had been tortured into submission to entertain crowds by performing tricks. Captive elephants can be tamed and are often termed “domestic” because they can be trained to live peaceably in confinement, but they are not “domesticated” animals, like dogs or cows or sheep, because they have never been selectively bred. Many elephants tortured by circus trainers would, in the end, fight back. “Mad elephants,” they were declared, and were offloaded to zoos. Sometimes the rampages of bull elephants are due to musth, a period of heightened sexuality associated with aggressive behavior. But bulls aren’t the only elephants that become ungovernable, and most elephant aggression is a response to violence. An elephant named Bolivar joined Jennie at the Philadelphia Zoo from the Forepaugh Circus after he killed a spectator who’d burned him with a lit cigar.
In the 1880s, when Jennie was in her 30s, she was captured in motion when Eadweard Muybridge, with funding from the University of Pennsylvania, photographed her for his Animal Locomotion series. She lumbers along, as if free. But many elephants in the United States spent their entire lives in foot chains that evoked nothing so much as slave coffles. During the age of Jim Crow, the elephant in some meaningful ways replaced “the slave” in the American imagination, a nonhuman nonperson to be shackled, whipped, and even lynched, by daylight, in the public square. After Jennie died in 1898, her skin was tanned and turned into wallets, sold as souvenirs. Elephant insurrections were put down with elephant executions, as the historian Amy Louise Wood has chronicled. At least 36 American-owned elephants were sentenced to execution between 1880 and 1930. Many of these elephant executions, not all of which succeeded, took place in the Jim Crow South, in states that included Georgia, Texas, and South Carolina, but they happened in the North, too. Most often, elephants were notionally charged with murder—they tended to kill their keepers—and executed, vigilante style, as if they were criminals. In 1883, P. T. Barnum executed Pilot, an elephant The New York Times, in a send-up of its own crime reporting, described this way: “He had no regard for religion or morals.” In 1885, another Barnum elephant was chained to four trees in Keene, New Hampshire, and executed by firing squad in front of 2,000 spectators. In 1894, Tip, exhibited in Central Park, was indicted, “tried and convicted” for murder, and then publicly poisoned. Six-ton, 36-year-old Topsy, named after the slave child in Uncle Tom’s Cabin, “the first baby elephant to be held in captivity in the United States,” worked for a circus and killed three men in three years before being sold to a park in Coney Island, where, in 1903, she was executed; electrodes were strapped to her feet and a noose around her neck was tied to a steam engine after she had been fed carrots loaded with cyanide. The Edison Manufacturing Company electrocuted her and made a film of it, Electrocuting an Elephant.
In 1916, Sparks World Famous Shows, a traveling circus, was in Kingsport, Tennessee, when a trainer, riding on an elephant named Mary at the head of a parade leading spectators to the circus, “dealt her a blow over the head with a stick.” She grabbed him by the waist with her trunk and, according to one report, “sunk her giant tusks entirely through his body” and then trampled on him, “as if seeking a murderous triumph.” The circus’s publicist decided to stage a public execution by hanging her from a derrick provided by the Clinchfield Railroad Company. “I mean, if we have to kill her, let’s do it with style,” he said. The hanging broke her neck, but, as was reported at the time, “the apparent intelligence of the animal made her execution all the more solemn”: She tried to use her trunk “to free herself.” The NAACP requested materials about the execution for its lynching files.
The Bronx Zoo, then known formally as the New York Zoological Park, opened in 1899, with funding from Andrew Carnegie and J. Pierpont Morgan, under the direction of William T. Hornaday. It was meant to be an answer to the cheap attraction of circuses and the brutal exploitation of circus animals. Hornaday called his zoo “the high-water mark of civilization.” Exotic animals were held captive in elegant, neoclassical, Victorian homes—the Bird House, Antelope House, Reptile House—with the buildings arranged along tree-lined streets in the form of the most fashionable Victorian suburbs. The Bronx Zoo, too, was a retreat from the city, a city teeming with immigrants, living in poverty. At its center stood a massive dome-topped limestone mansion modeled after the Antwerp Zoo’s Palais des Hippopotames: the Elephant House.
Hornaday had started out as a big-game hunter and, as he wrote in a memoir, Two Years in the Jungle, shot his first elephant in India in 1877. (The stuffed remains of another elephant he killed were displayed at Harvard until 1973.) He had gone on to become the country’s leading conservationist. Hornaday helped save the bison: He collected and grew a herd for the zoo and then shipped it west as part of one of the world’s first efforts to preserve an endangered species.
Zoological parks and national parks were two sides of the same coin. Hornaday advocated for, and Theodore Roosevelt in the White House helped deliver, the public ownership and stewardship of land in the West, especially in the form of the national parks, a conservation project that involved displacing Indigenous peoples, in violation of treaties, not by granting rights to trees or wolves but by granting the power of environmental protection to the state. As Oliver Wendell Holmes wrote in 1908, “The state, as quasi-sovereign and representative of the interests of the public, has a standing in court to protect the atmosphere, the water, and the forests within its territory.” In arguing for the protection of wildlife (generally at the expense of Native Americans), no conservationist was more fierce than Hornaday. “I will make no compromise with any of the enemies of wildlife,” he said in 1911. Two years later, he published a manifesto called Our Vanishing Wildlife. The Sierra Club compared the book’s zeal to that of abolitionist literature “when the force of great moral convictions won the day against greed and wrong.” Young Aldo Leopold reviewed it and called it “the most convincing argument for better game protection ever written.”
Hornaday believed in a still-more-elaborate and racist chain of being than did the 18th-century Framers of the U.S. Constitution. In 1906, he exhibited in his zoo an African man named Ota Benga, alongside the primates. (Benga later committed suicide.) Hornaday believed elephants to be not only the most civilized of all animals, but also more civilized than some humans, pronouncing it “as much an act of murder to wantonly take the life of a healthy elephant as to kill a native Australian or a Central-African savage.”
Hornaday decried the lynching of elephants because he believed in the morality of elephants. “I know of no instance on record wherein a normal elephant with a healthy mind has been guilty of unprovoked homicide, or even of attempting it,” he wrote, attributing elephant rampages to mistreatment. “So many men have been killed by elephants in this country that of late years the idea has been steadily gaining ground that elephants are naturally ill-tempered, and vicious to a dangerous extent. Under fair conditions, nothing could be farther from the truth.” Instead, “many an elephant is at the mercy of quick-tempered and sometimes revengeful showmen, who very often do not understand the temperaments of the animals under their control, and who during the traveling season are rendered perpetually ill-tempered and vindictive by reason of overwork and insufficient sleep. With such masters as these it is no wonder that occasionally an animal rebels.” Hornaday articulated, in effect, an elephant right to revolution. It apparently did not apply to elephants at the Bronx Zoo.
In 1908, five years after Topsy was electrocuted on Coney Island, Hornaday bought an Asian elephant named Alice from Topsy’s old circus. She was loaded into a teakwood crate and hoisted onto a truck. Housed temporarily in the Antelope House, she went on a rampage while on a walk, after being spooked by a puma, and wreaked havoc in the Reptile House. As Hornaday later wrote, she was captured again, and controlled “by vigorous work with the elephant hooks” and then shackled: “We quickly tied her hind legs together,—and she was all ours. Seeing that all was clear for a fall, we joyously pushed Alice off her feet. She went over, and fell prone upon her side. In three minutes all her feet were securely anchored to trees, and we sat down upon her prostrate body.” She was forced to lie in chains.
In 1904, Hornaday bought Gunda, a male Asian elephant, born in the wild in northeast India. Like Alice, he was trained with a howdah to give rides to children. But in 1912, Gunda rebelled: He gored his keeper and was declared a mad elephant. (The keeper survived.) Hornaday ordered Gunda to be placed in chains, for two years, until his sorry state led, in 1914, to complaints that the zoo should be closed. The zoo insisted that Gunda was happy. In 1915, The New York Times ran a story with this headline:
PUT DOUBLE CHAINS ON GUNDA AGAIN
Bronx Zoo Elephant Is Condemned to Stand and ‘Weave’ All Day in His Pen.
KEEPERS SAY HE LIKES IT
“All day long the huge animal—he is nearly ten feet tall—stands swaying, moving his great body in a diagonal direction—weaving, the zoologists call it,” the Times reported. “This is all that Gunda seems to do—just stand and sway his body. He is as ceaseless as Niagara Falls.” (Swaying, or weaving, is a sign of distress.) The injured keeper and Hornaday both insisted, as the Times reported, “that the elephant is content in his chains, that he does not want to roam around his pen, and that the chains are long enough to permit him every freedom of movement, whether standing or lying down.” In the end, Hornaday had Gunda shot. His remains were fed to the lions.
A half century later, Happy and Grumpy, shipped by truck from Texas to New York, moved into the Elephant House.
The Bronx Zoo opened its 38-acre Wild Asia exhibit in August 1977. Like Lion Country Safari, when Wild Asia first opened, it represented the very best in modern zookeeping. The New York Times called it “probably the finest wild-animal display in the country east of the San Diego Zoo’s Wild Animal Park.” Earlier, the reporter said, visiting the Bronx Zoo had been like “visiting an inmate in a prison.” Now it was like visiting an animal in the wild. “Elephants crashed out of the forest and lumbered down the hillside to splash into the water,” the reporter gushed. “Four of them plunged in over their heads, bobbed up to spray the water from their trunks and cavorted playfully together.”
Happy and Grumpy were not among those four elephants, who were Groucho, a male, and three females, named after the Andrews sisters, Maxine, Laverne, and Patty. “To immerse yourself in this great Asian heartland, no visas, inoculations or air fares are necessary,” the Times reported, echoing earlier coverage of Lion Country. “It involves no jet lag or any lag longer than needed to recuperate from a journey by subway, bus or car.” It needed only an uptown train.
But when Happy and Grumpy arrived at the Bronx Zoo, they didn’t live in Wild Asia. They lived in the Elephant House with an older Asian elephant named Tus and performed tricks and gave rides to children.
The Bronx Zoo seemed caught between two ways of thinking about elephants: In Wild Asia, they were wild animals; in the Elephant House, they were toys for tots. The infantilization of the elephant had begun in earnest with Walt Disney’s Dumbo, released in 1941. In Dumbo, Mrs. Jumbo, a circus elephant, has a baby named Jumbo Junior, presumably the son of the world-famous Jumbo, but cruelly nicknamed “Dumbo.” Defending him, Mrs. Jumbo grows violent, and, like the Bronx Zoo’s Alice, is dragged down and shackled in chains. Then, like Gunda, she’s locked up, in this case in a circus trailer over which a sign is hung, reading DANGER: MAD ELEPHANT. (The actual Jumbo did not have any offspring, but Barnum sometimes passed off as his daughter an elephant named Columbia. In 1907, Columbia became unruly and was “condemned to death.” As a lesson to the other elephants, she was strangled “before twenty-one other elephants, including her mother.” Dumbo offered a rewriting of that story.)
In the Baby Boom of the 1950s and 1960s, baby elephants became all the rage, in everything from toys to stuffed animals. In the era of postcolonial independence movements, the wild, in the American imagination, became first juvenilized, and then feminized. In 1959, the French territories in west-central Africa sent President Dwight Eisenhower the gift of a baby elephant named Dzimbo. Within the GOP, the elephant also became feminized, a symbol of the political housewife, the conservative white woman Republican activist. One senator, speaking to the National Federation of Republican Women, suggested that the elephant was the right symbol for the Republican Party because an elephant has “a vacuum cleaner in front and a rug beater behind.”
The symbol became less useful in the political tumult of the 1960s. In 1968, reporters covering the Republican National Convention in Miami went out to the airport to witness the arrival, by Delta Air Lines, of a baby elephant in a tutu, which was nudged into a Hertz trailer for delivery to the convention, a gift to Nixon. Americans had begun objecting to zoos, especially after the publication, in 1968, of a Life essay by Desmond Morris called “Shame of the Naked Cage.” In 1971, activists operating undercover on behalf of the Humane Society investigated the nation’s zoos and described them as slums, another 1970s story of urbanization gone wrong. The San Diego Zoo, which opened its Wild Animal Park in 1972, answered the call to move to the suburbs. And the Bronx Zoo began planning Wild Asia.
In 1975, with the publication of Animal Liberation, a manifesto by the philosopher Peter Singer, the animal-welfare movement began to yield to the animal-rights movement, and environmental protection began to yield to environmental rights. In the U.S., most federal measures in place to protect the environment, regulate pollution, preserve endangered species and wildlife habitat, and halt climate change date to the early 1970s: the Clean Air Act, the Clean Water Act, the National Environmental Policy Act.
One of the first proposals to address environmental degradation by way of a constitutional amendment came in 1970, when Wisconsin Senator Gaylord Nelson, who also founded Earth Day, proposed an amendment to read, “Every person has the inalienable right to a decent environment. The United States and every State shall guarantee this right.” But by then, the Constitution had already become effectively unamendable. Environmental-rights proposals kept getting introduced—“The right of each person to clean and healthful air and water, and to the protection of the other natural resources of the nation, shall not be infringed upon by any person,” read one that had the support of lawmakers from 37 state legislatures—and they kept going nowhere. In the absence of any language in the Constitution regarding the environment, legislative and statutory measures are extraordinarily vulnerable: From 2017 to 2021, the Trump administration rolled back nearly 100 environment provisions. The Biden administration has made restoring these provisions, and adding more, a top priority, but all of them are reversible.
Other countries amended their constitutions. Out of 196 constitutions in the world, at least 148 now make some provision for what is called “environmental constitutionalism.” Animal constitutionalism has been following in its tracks. In 1976, in a decision attributed to the influence of Hinduism, India adopted a constitutional amendment declaring it to be the duty of every citizen “to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures”—language its Supreme Court in 2014 described as “the magna carta of animal rights” in a decision in which the court defined compassion to include “concern for suffering.” In 2002, prodded by the Green Party, Germans amended their constitution’s provision about the state’s “responsibility toward future generations”—its obligations to the natural world—by adding three words: “and the animals.”
In the U.S., though, with its unamendable Constitution, both environmentalists and animal-rights activists began to adopt a novel legal strategy: arguing for the rights of nature. In 1972, Christopher Stone published a law-review article called “Should Trees Have Standing?” Stone argued that the history of law represented a march of moral progress in which the notion of being a rights-bearing person had been extended to an ever-widening class of actors, from only certain men to more men, then to some women, and, finally, to all adults and then children and even corporations and ships. Why not trees and rivers and streams? The logic had a pedigree: As early as 1873, Frederick Douglass had publicly called for a defense of nonhuman animals, a compassion born of having been treated like one and of witnessing the consequences of the cruelty instilled by living near the bottom of a presumed chain of being. “Not only the slave, but the horse, the ox, and the mule shared the general feeling of indifference to rights naturally engendered by a state of slavery,” he said. If personhood were extended to the natural world, remedies for harms against the natural world could be pursued not only by humans who were affected by those harms but on behalf of nature itself. In 1972, Stone hoped, urgently, that his article would have an effect, and rushed it to press in order to get it before Justice William O. Douglas, who in fact cited it, months later, in his dissenting opinion in Sierra Club v. Morton: “Contemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation.”
Stone explained, half a century ago, that he was proposing this solution as the best possible remedy to address a looming catastrophe. “Scientists have been warning of the crises the earth and all humans on it face if we do not change our ways—radically,” Stone wrote in 1972. “The earth’s very atmosphere is threatened with frightening possibilities: absorption of sunlight, upon which the entire life cycle depends, may be diminished; the oceans may warm (increasing the ‘greenhouse effect’ of the atmosphere), melting the polar ice caps, and destroying our great coastal cities.” One of the greater tragedies in the history of American law is that this proposal did not meet with immediate success, as it might very well have averted our current catastrophe. But if the Constitution wasn’t amended during the early decades of the environmental and animal-rights movements, and if rights-of-nature arguments failed, American public opinion was shifting. By 1985, more than three in four Americans answered yes to the question “Do you think animals have rights?” In 1989, 80 percent agreed that “animals have rights that limit humans.” By 1992, more than half of Americans surveyed said they believed that laws protecting endangered species had not gone far enough. A 1995 survey found that two-thirds of those polled agreed with the statement that “an animal’s right to live free of suffering should be just as important as a person’s right to live free of suffering.”
This shift in opinion does not appear to have changed Happy’s experience of a toys-for-tots life in the Bronx Zoo’s Elephant House. In the 1980s, the zoo held “Elephant Weekends.” “Tus, Happy and Grumpy have been rehearsing all week for the big show—a workout on the tambourine, a run-through on the waltz, some salutes and bows,” the Times reported in 1981. Larry Joyner, “their low-key, no-nonsense trainer,” a former circus trainer who started with the zoo in 1979, said, “Since elephants are extremely intelligent, they realize that when there are people in front of them, they can work slower and get by with it because I don’t yell at them as much.” (“If an elephant doesn’t obey him, Joyner whacks it mightily on its thick-skinned side with a bull hook,” the L.A. Times later reported. “Good behavior is rewarded with an apple and a pat.”) Joyner particularly noted 10-year-old Happy’s talents: “Happy is a more physical elephant than anything I’ve ever seen. Most people, when they train elephants, cats, horses or whatever, usually turn them loose and just watch them for hours. Then you can figure what trick to put on each elephant. Happy runs more, she moves more, she’s rougher. That’s why I put all the physical tricks on her: the hind-leg stand, the sit-up. Grumpy’s more intelligent. She learns well; she uses her head.”
For the celebration, Happy, Grumpy, and Tus were dressed up in costumes, decorated blankets whose designer told the Times, “There is a sort of Oriental smoking jacket for Grumpy—black-and-yellow checked. Happy will have a blue-and-black polka-dotted dress that also has tassels and ‘diamonds’—they are really rhinestones—on it. It is all going to be very extravagant.” During the exhibit, the Associated Press reported, “zoo-goers will see Tus pick up a human being. Happy will do a hind leg stand. Grumpy will pick up an egg without breaking it.” The highlight of an Elephant Weekend was a tug-of-war, reported on, in 1984, by The New Yorker: “During the past four years’ history of Elephant Weekends the non-elephant team has won the tug-of-war only once—that was in 1982, when the victors were the Fordham Rams football team. On Saturday, the challengers were members of the Purchase, New York, Volunteer Fire Department. They didn’t win. Nor did the Fordham Rams on Sunday. Grumpy won.”
Elephant Weekends came to an end. And the elephants at the Bronx Zoo began dying off. In 1981, Patty had a calf, Astor, named after Brooke Astor, who had helped fund the Wild Asia exhibit; the calf died less than two years later. (The infant mortality rate for elephants in American zoos is 40 percent, almost triple the rate in the wild, according to a 2012 investigation by The Seattle Times.) Laverne died in 1982, of a salmonella infection; she was 12. Half the elephant deaths in American zoos are of animals younger than 24 years old, The Seattle Times reported, and most die “from injury or disease linked to conditions of their captivity, from chronic foot problems caused by standing on hard surfaces to musculoskeletal disorders from inactivity caused by being penned or chained for days and weeks at a time.” In 1985, shortly before Groucho was moved to the Fort Worth Zoo, Happy, Grumpy, and Tus were moved to Wild Asia. The Elephant House became a visitor center.
In the wild, Happy would have become pregnant for the first time around the age she was when she moved to Wild Asia. She would have had a calf every three or four years, until she was in her 50s, the age she is now. She would have been living with daughters and granddaughters. Instead, she has no family at all.
In the 1980s, when the Bronx Zoo moved Happy and Grumpy from the Elephant House to Wild Asia, other zoos began to relocate their elephants, especially as the animal-rights movement grew more militant, adopting some of the same tactics as the anti-abortion organization Operation Rescue. The Central Park Zoo and Prospect Park Zoo closed their elephant exhibits. San Francisco, Detroit, Santa Barbara, and Chicago all announced the end of the exhibition of captive elephants. Circuses, including Ringling Bros., followed. In this context, when captive elephants escaped or rebelled, those stories garnered more and more heated attention. Hardly a month passed without another report, most well founded but some exaggerated (one circus sued PETA for defamation). In 1988, keepers at the San Diego Zoo beat an African elephant named Dunda with ax handles for two days, while her legs were chained. Three years later, an Asian elephant at that zoo killed her keeper. In 1992, an Asian elephant named Janet escaped from a circus in Florida and targeted two of her trainers (without harming any of the children riding on her back). The next year, a small group of circus elephants in Florida together trapped and stomped their trainer, and, in Honolulu in 1994, a 21-year-old African elephant killed her trainer in the arena and escaped. (Police shot and killed her in the street.) In 1995, two female elephants escaped a circus while it was in Pennsylvania and, months later, while it was in New York. In 2002, an elephant named Tonya escaped for the fourth time in six years, having fled a Maine wildlife park, a circus in Ohio, another in Pennsylvania, and another in South Carolina.
The Bronx Zoo adopted a protocol known as “protected contact,” which meant that Happy and Grumpy, hand-raised since infancy, no longer spent much time in the close company of people. And opposition to keeping elephants in captivity deterred the zoo from bringing in new elephants to keep the others company. Tus, who likely had been something close to a mother for Happy and Grumpy, died in May of 2002. Two months later, Patty and Maxine attacked Grumpy. Happy wasn’t with them, but she would have heard it happen. Grumpy’s injuries were so grave that in October of 2002, the zoo decided to euthanize her.
“It is hardly fair to say that Happy has a history of not getting on with other elephants,” Joyce Poole wrote in her affidavit on behalf of the Nonhuman Rights Project. In five decades at the zoo, Happy and a handful of other elephants had “been forced to share a space that, for an elephant, is equivalent to the size of a house.” And two of those elephants killed her closest companion. After that, it was impossible to house Happy with Patty and Maxine. The zoo picked a young female elephant, Sammy, to be a companion for Happy, but she died not long afterward.
In 2005, at a meeting at Disney World, the Association of Zoos and Aquariums decided to “speak and act with a unified voice”—determining to defend keeping elephants in zoos and to call critics of their captivity “extremists”—even as it set new rules for elephant care. The AZA requires that “each zoo with elephants must have a minimum of three females (or the space to have three females), two males or three elephants of mixed gender.” The Bronx Zoo is in compliance with this rule because it has room for elephants it does not have.
Happy might have been better off if she’d never left Lion Country Safari. “If we can’t keep elephants in captivity properly, we shouldn’t,” Lion Country’s Terry Wolf told me. “And we’ve proven that we can’t.” In 2006, during Wolf’s tenure, Lion Country decided to release its last elephants. That year, The New York Times reported that Bronx Zoo officials “say it would be inhumane to sustain an exhibit with a single elephant.” Happy has been alone ever since.
When you ride the monorail through Wild Asia, your view is quite constrained. All the cars face the same direction, and you can see only what’s in front of you. Behind the monorail lie the rest of the zoo structures, including the Elephant Barn. In 2005, Joshua Plotnik spent a very hot summer on top of that barn, watching Happy, Patty, and Maxine, by turns, inspect an elephant-size mirror.
Plotnik was in a doctoral program at Emory University when he decided to study elephants. He wanted to know, empirically, “How do we get inside the elephant’s head?” Together with Diana Reiss, now a professor of psychology at Hunter College but at the time a scientist with the Wildlife Conservation Society, Plotnik decided to see if an elephant could pass what’s known as the mirror self-recognition test. Humans can pass this test around the age of 2. Only the great apes and dolphins had been proven to pass it. Plotnik and Reiss encased a two-by-two-meter acrylic mirror in a steel frame, and the zoo helped them install it in the pen. “I remember Maxine and Patty getting really close to the mirror on the first day,” Plotnik told me. “They would get down on their knees or try to smell over the mirror to inspect behind it—it’s as if they were trying to get at that elephant in the mirror.” This is what many animals do: They consider the animal in the mirror a stranger and try to figure out how to intimidate and threaten it, or how to meet and greet it. “Very quickly when they realize they can’t touch, smell, or hear this animal, some species just stop displaying social behavior,” Plotnik said. But elephants investigate; they move one way, and then another, looking. “It’s like Harpo and Groucho in Duck Soup,” he said. “It’s as if they’re asking, Why is that animal doing the same thing that I’m doing?” And then an elephant like Happy decides, If there’s no other elephant there, it must be me.
Sitting on the Elephant Barn, Plotnik and Reiss were astonished. Happy, Patty, and Maxine did the most interesting things. “Next, they start inspecting themselves, inspect their mouths, look closely at parts of their body they don’t otherwise get to see. They’d grab onto their ears and pull their ears back and forth.” To prove that the elephants understood that they were looking at a reflection, Plotnik and Reiss devised a test, a modified version of a test done on chimpanzees: They painted a white X on the elephants’ foreheads and, with a glow-in-the-dark Halloween paint that’s invisible during daylight, they painted another one on the other side, as a control. Only one of the three elephants passed this task. Happy walked up to the mirror and reached her trunk up to touch the X. I’ve wondered whether she thought, for a moment, that it was Grumpy, come back, before she realized that she was looking, instead, at herself.
Plotnik hasn’t seen Happy since then. He doesn’t believe that he knows what’s best for her, and he’s baffled that the NhRP thinks it does. The question, he said, is whether Happy wants to be with other elephants. “If we had asked this question decades ago, when Happy was first brought to a zoo, yes, I absolutely think what would have been best for Happy would have been for her to remain with her family, in the wild,” Plotnik told me. “But she has been in captivity now for 50 years, unfortunately, so it’s really difficult to know whether such a big change to her life would be in her best interest now.”
The subtlety of that position has been lost on much of the press, and especially on celebrities who have taken up Happy’s cause. Elephant advocacy has long been a Hollywood hobby, from Richard Pryor and Cher to Lily Tomlin and Edward Norton. While that commitment is surely earnest, it comes at very little cost to celebrities’ lives and livelihoods. But, as Plotnik points out, #FreeHappy might well come at the expense of poor farmers in Thailand, much like the campaign to save the bison, or preserve the national parks, came at the expense of people like the Yosemite Indians.
Plotnik does most of his fieldwork in Kanchanaburi, Thailand, with wild elephants. He’s fluent in Thai and spends a great deal of time with villagers who work with elephants, and also with villagers who are very frustrated with elephants eating their crops and destroying their fields. “We need to refocus our attention on the fact that fewer than 50,000 Asian elephants remain on the planet. Countries like Thailand and Sri Lanka have a long history of coexistence between humans and elephants,” he said. “Any decisions about elephant personhood that might have a cascading effect on elephant welfare and conservation around the world ought to take into account the needs and livelihoods of the people that have existed alongside them for thousands of years. Most Westerners just have never thought about that impact.”
People on either side of the legal battle about Happy tend to see each other as villains, unable to find common cause or common purpose in their growing desperation about what humans are doing to one another and to animals and to the world. Meanwhile, waters rise, coastlines erode, humans and above all the poor suffer and die, diseases spread, homes wash away, forests die, fortunes are lost, habitats disappear, species die out. In the end, elephants are just a lot better at getting along with one another than people are—unless they’re held captive, for year after year, decade after decade.
Still, even the most poorly treated elephants can thrive in sanctuaries. Sissy was born in Thailand and first exhibited at Six Flags Over Texas in 1969. She was moved four times, and, as Joyce Poole wrote in her affidavit, she “spent a decade and a half alone before being sent to the Houston Zoo, where she was labelled autistic and antisocial.” In 1997, returned to solitary confinement in Gainesville, she crushed a park supervisor to death. “She was moved again to El Paso Zoo,” Poole wrote, “where she was beaten because she was a killer elephant.” At some point, her trunk became partially paralyzed. In 2000, she wasn’t expected to live out the year. But at the start of that year, she was moved to the Elephant Sanctuary in Tennessee. Within weeks of her arrival, she was spotted lying down, something she hadn’t done in the zoo for years. She made a fast friend, Winkie. “Within six months of arrival she was calm and cooperative,” Poole wrote. “She became a leader, putting all elephants at ease.” Nearly 22 years later, Sissy is still there, living on a sanctuary of almost 3,000 acres.
The Nonhuman Rights Project, founded in 1996, always intended to begin its litigation with Happy. In a Supreme Court opinion written in 1992, Antonin Scalia had dismissed legal arguments about people claiming to have standing to enforce the protection of animals and the natural world. The case concerned the Endangered Species Act, and the only elephants mentioned were wild elephants in Sri Lanka, but Scalia, who grew up in Queens, scoffed, “Under these theories, anyone who goes to see Asian elephants in the Bronx Zoo, and anyone who is a keeper of Asian elephants in the Bronx Zoo, has standing to sue.” Maybe that caught someone’s attention. Meanwhile, personhood claims began to look promising. In a 2004 case filed by an attorney as if working for whales and dolphins, the Ninth Circuit said that an animal “cannot function as a plaintiff” but that nothing in the Constitution “prevents Congress from authorizing a suit in the name of an animal, any more than it prevents suits brought in the name of artificial persons such as corporations, partnerships or trusts, and even ships, or of juridically incompetent persons such as infants, juveniles, and mental incompetents.”
To be granted personhood, in the legal sense, something doesn’t have to be like a person, in the colloquial sense. But if it were necessary, elephants would come close. If having a conscious awareness of one’s past, present, and future is a definition of personhood, the philosopher Gary Varner argued in 2008, then “elephants might be persons—or at least near-persons.”
In 2013, the NhRP formalized its decision to file a petition on behalf of Happy as its first client, but then the lawyers had an overnight change of mind. “We decided to go with chimpanzees instead,” Steve Wise told me. For one thing, they had more chimpanzee experts available. Jane Goodall is a founding member of NhRP’s board. Happy’s case would have to wait.
In 2013, the NhRP filed habeas corpus petitions for chimpanzees named Kiko and Tommy. The New York court rejected both petitions, pointing out that “habeas corpus relief has never been provided to any nonhuman entity.” In 2016, after the NhRP filed a second habeas corpus petition for Kiko, Harvard’s Laurence Tribe submitted an amicus brief, disputing the court’s claim that Kiko could not be a person on the ground that persons bear both rights and duties. The court’s definition of personhood, he argued, “would appear on its face to exclude third-trimester fetuses, children, and comatose adults (among other entities whose rights as persons the law protects).” In 2018, the New York Court of Appeals denied a motion for permission to appeal, but one judge, Eugene M. Fahey, observed that “the issue whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching. It speaks to our relationship with all the life around us. Ultimately, we will not be able to ignore it.”
Meanwhile, animal personhood had been established, at least notionally, elsewhere. In 2016, a court in Argentina ruled that “a chimpanzee is not a thing,” and declared that “great apes are legal persons, with legal capacity.” In 2018, a judge in India declared “the entire animal kingdom” to be “legal entities having a distinct persona with corresponding rights, duties and liabilities of a living person.”
In the U.S., other cases have been working their way through other courts. In 2018, in Oregon, the Animal Legal Defense Fund filed a suit on behalf of a horse named Justice. The judge dismissed the case for lack of standing, writing, “The problem is that there is not an adequate procedural avenue for Justice to utilize that would grant him access to the courthouse door,” and expressed concern about the “profound implications of a judicial finding that a horse, or any non-human animal for that matter, is a legal entity.” The Pepperdine law professor Richard Cupp, an ardent opponent of animal personhood, observed, about Justice the horse, “Any case that could lead to billions of animals having the potential to file lawsuits is a shocker in the biggest way. Once you say a horse or dog or cat can personally sue over being abused, it’s not too big a jump to say, ‘Well, we’re kind of establishing that they’re legal persons with that. And legal persons can’t be eaten.”
This fall, the ALDF filed a request in a court in Cincinnati representing the descendants of a “Community of Hippopotamuses” once owned by Pablo Escobar as “interested persons” in a legal dispute in Columbia. “Hippos are People, Too!” ran the reports. Hippos are not people. Maybe the press isn’t quite ready for the gravity of Happy’s case.
Happy’s plight is as serious and desperate as the consequences of the court’s eventual ruling are unknown and unknowable and, quite possibly, profound. She stands and stares and lifts one foot. She swings her trunk. She sways, watching the monorail pass by, again and again and again. The New York Court of Appeals could hear the case as early as this winter. But courtroom arguments about elephant personhood have taken place before. In 2017, the Nonhuman Rights Project tried seeking habeas corpus relief for three elephants in Connecticut. In oral arguments, the judges asked Wise about the implications of elephant personhood:
What with one thing and another, in the wandering ways of courts, the answer never came out. But one day soon, an elephant will stand, metaphorically, at the courtroom door, a great gray emissary from the natural world, wild. She will rumble, raise her trunk, and trumpet, piercing the uncanny quiet.
