Or better, take seriously what she had to say.

At the Grammy Awards last weekend, singer Billie Eilish, like many of her peers, denounced the violence and brutality of the Trump Administration’s unconstitutional raids against undocumented immigrants and expressed her support for those Americans murdered by Trump’s secret police.  “No one,” she said, “is illegal on stolen land.”

            Richard Epstein and Max Raskin, the former a law professor at New York University aligned with the Cato Institute and the latter a “Kardashian-curious crypto evangelist” and real estate investor who teaches there part time, took exception to Eilish’s acceptance speech. In a Washington Post op-ed dripping with smug condescension, the pair provided a tendentious lecture on American property law and a celebration of Indigenous dispossession. It’s an embarrassing and unseemly essay.  It’s deeply dishonest and completely divorced from any real grasp of the history of how white people came to control Indigenous land in North America.

            With a tut-tut and a wave of the hand, Epstein and Raskin assert that “Americans are not thieves who built on stolen land.” Indigenous peoples, they point out, were vicious.  They mention, after all, the “fierce conquest of the southern Plains by the Comanche” and “the prevalence of Native American slavery before European arrival.” Indigenous peoples were so barbarous, Epstein and Raskin suggest, that taking their land was entirely justified. It was natural, inevitable, and, they seem to believe, we are all better for it.  A lot of nasty people, across the vast expanse of this continent’s history, would agree.

            In the centuries since Europeans arrived, lands have changed hands many times.  Americans have bought and sold, and surveyed, developed and built many trillions of dollars’ worth of real property. Because of that, “the effort to undo the past would involve trillions of dollars in transfer payments and coerced title shifts that would unsettle every home mortgage, every mining and oil lease, and every graveyard in the United States.”

            But that is not what Eilish suggested. There is something really gross about their line of argument. Never mind that Eilish did not call for the massive confiscation of property that Epstein and Raskin fear (Eilish, 24, is roughly the same age as Epstein and Raskin’s students; I hope they treat their students with more grace, honesty, and decency than they showed Eilish). It’s that at heart they never deny the magnitude of Indigenous dispossession and the scale of the corruption, deceit and coercion used to acquire this continent. Rather, they suggest, Indigenous peoples had it coming because some of them were mean to each other and because it would be too difficult and too inconvenient to do anything about it now.

            The American people, Epstein and Raskin continue, “should be allowed to enjoy security in their purchases and not have to worry about what happened centuries ago.” Ever pedantic, they point out that “statutes of limitation and doctrines such as adverse possession clearly provide that you must sue by a certain date or your title is gone, no matter how maliciously acquired.” Of course, the courts of the conquerors were not open to Indigenous peoples, even when the United States blatantly, clearly, and explicitly ignored its own statutes and the provisions of treaties it negotiated with Indigenous peoples, both of which, the Constitution tells us, are the “supreme law of the land.”

            Epstein and Raskin quite simply do not care that what Americans gained came at the expense of Indigenous peoples. It is, to them, legally and thus morally irrelevant.  Sure, Native Americans may have lost their lands “centuries ago,” and “it is easy to call land stolen,” but “what about the innocent purchasers who acquired in good faith in the interim?” Epstein and Raskin ask of these good faith purchasers, “are they thieves?”

Yeah.

In a sense they are. I am. And you are, too.

In the same sense that the purchasers of art looted by the Nazis who claimed that they did know the provenance of the pieces they acquired are guilty, so too are the American owners of Indigenous land. Of course, Epstein and Rankin are correct to point out that returning a continent to its original inhabitants would be an impossibility, which is why no serious person has ever called for a return of land on that scale.  But that does not change the fact that New York became the Empire State through a systematic program of Indigenous dispossession that quite often violated the laws of the United States and, even when it adhered to the letter of those self-serving rules, rebelled against every standard of decency, justice, and morality that I trust you hold dear.  And there is nothing Epstein and Rankin can say to deny that if you are a landowner in this state today, you are the beneficiary of the original duplicitous, unjust, and illegal acts of dispossession. I am happy that Eilish used her enormous platform to bring attention to this historic process, and I believe we would be better off exploring what we might do to set things right rather than saying, as Epstein and Raskin seemingly do, that “shit happens.”

            It is easy for me to remember that Billie Eilish is young, and because of that, to extend her grace.  As an educator of students just a few years younger than her, I find the moral energy and sense of justice carried by the people I teach energizing. And I find the reductio ad absurdam presented by Epstein and Raskin absolutely repellent. They sound like old men, grousing about “celebrities,” as if Statler and Waldorf had moved from the balcony to the pages of the Washington Post. They trivialized the point Eilish made, which is an important one: this continent was taken from Indigenous peoples by violent squatters or through treaties that frequently were coerced, or fraudulent, or subsequently ignored by the United States when they became inconvenient. Dispossession was neither natural nor inevitable, whatever Epstein and Raskin believe. It was, quite often, a crime against the laws of the United States.  What is legal, after all, can cut both ways, and we must remember that the law was written by American people to support American interests. Billie Eilish, I believe, tried to remind us of that.