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Selected English Article Available ONLINE: The San Francisco Bay Area in Three Legal Codes

Von Owens, Marcus /  Antiporda, Christina

Published in: ARCH+ "Legislating Architecture," English Version, ISBN 978-3-931435-34-9, Release: May 2016

The only Ikea in the San Francisco Bay Area is located in Emeryville, California at 4400 Shellmound Street. As part of a multinational corporation boasting some 301 stores across 37 nations and territories, little is architecturally unique about this particular blue box structure; the tour buses clambering up San Francisco’s steep hills certainly don’t bother to stop here. Nevertheless, the site of this Ikea presents an ideal case study for exploring the social-spatial dynamics of the Bay Area, as affected by three legal codes— codes that also produced more iconic San Francisco landscapes like Golden Gate Park or Alcatraz Island. These codes—the Spanish Empire’s 1680 Law of the Indies, the federal Preemption Act passed in 1841, and California’s Proposition 13 passed by public referendum in 1978—reflect shifting modalities of land and power in the United States, with potential ramifications for design as contemporary spatial praxis.

The Ikea sits at the eastern foot of the Bay Bridge, directly across from the surging skyline of downtown San Francisco. It also sits a few kilometers north of the Port of Oakland, one of the largest ports in the US. Emeryville itself is a small enclave, one of the many independent cities scattered around the East Bay. When it developed into a site of industry and vice in the late nineteenth century, the city excluded residential development to accommodate local industrialists’ thirst for total political control.1 Instead, railyards, steel mills, casinos, and racetracks proliferated, carving up as mere interstitial space the tidal mudflats and hallowed burial mounds that once belonged to indigenous predecessors. After the decades of industrial flight and decline around midcentury, the Ikea on Shellmound Street emerged as part of larger redevelopment visions in the Bay Area that focused on retail shopping and tech offices. But these recent changes are only part of a much longer genealogy of the site, as even the street name attests (Shellmound Street itself is named after the enormous shellmound that once stood at the site, the Bay Area’s largest midden—that is, man-made shellfish deposit—with sacred significance for the Native American inhabitants). Tracing this genealogy enables us to track how the site’s meaning and relevance have shifted as it has variously embodied, in physical space, the implementation of the three aforementioned codes.

Foucault writes that genealogy differs from history in that, rather than demonstrating that the past actively exists or continues to animate the present in some essential, predetermined form, genealogy identifies the accidents, deviations, errors, false appraisals, and faulty calculations that gave birth to things that have value to us.2 Using a genealogical perspective helps illustrate how the shifting afterlives of these three legal codes continue to shape spatial dynamics and landscapes in San Francisco, from the Ikea to the iconic. Additionally, this perspective frames an account of a design collaboration with Land Action, a squatter’s rights legal-aid organization active only a few hundred feet away from the Emeryville Ikea, across the municipal border in Oakland. This report shows how the genealogical accidents buried deep within various interpretations and implementations of the law carve out a space for architecture and design practices.

LAW OF THE INDIES AT THE EDGE OF EMPIRE

The Law of the Indies, a body of law compiled in its most famous form in 1680 that governed how Spanish imperial subjects interacted with the indigenous peoples of the Americas, stipulated in detail how settlements in the New World were to be organized. While the formal organization imposed by the Law of the Indies doesn’t persist in contemporary San Francisco to the same extent as in other cities of the Spanish Empire, this legal code nevertheless reconfigured the landscape and people in Alta California according to the Catholic Church’s missionary agenda. Under Spanish imperialism, space in New World settlements was organized into three separate formations: a Presidio military installation, an ecclesiastical Mission, and a Pueblo, the name given to a civilian town, where the Law of the Indies roughly established the grid form that continues to reverberate today. The Law’s guidelines, which were largely based on Leon Battista Alberti’s Renaissance interpretations of Vitruvius’s ancient Ten Books of Architecture, designated public spaces for pasturing livestock and trade goods—in contemporary San Francisco, recognizable as the plaza and today’s Union Square. However, this physical cuadricula (grid) was underpinned by the ecclesiastical cosmology of the mission, within which racial hierarchy and spatial transformation were bound together.3

In the Mission, representatives of the ecclesiastical order forcefully acculturated indigenous peoples to laboring within the Spanish mercantilist system. This indigenous population, which included the Ohlone peoples native to the San Francisco Bay, were understood to be living in the mythic “state of nature”—allowing missionaries to treat them as gente sin razon (people without reason), who lacked a recognizable system of property, resided on the boundaries of humanity, and therefore required salvation.4 Administrators of the Mission system saw the process of imposing agro-pastoralism, restricting mobility, and assigning individuals with identifiable Christian names as a process akin to breaking a wild animal.5 And similar to its people, the land through the eyes of the colonizer was unimproved, wild, and natural—a state that required partitioning or remapping through a Judeo-Christian cosmology that disregarded the “sacred” designations of the Ohlone. Hence the shellmound burial sites in what is now Emeryville became archaic ruins in little over a generation. Scholars of colonialism note how visions of “improvement” of the land and its people are fundamental to the imperialist rationale—underpinned by the basic assumption that surplus-oriented societies were inherently more advanced than subsistence ones.6 This tendency reemerges in contemporary urban processes like gentrification.

THE PREEMPTION ACT AND THE LOGIC OF OCCUPATION AND ENCLOSURE

With the decline of Spanish mercantilism, the church’s role as primary arbiter of land and labor in California came to an end. The crown secularized the missions and granted large tracts of land to Californio ranchers, the population of mixed Spanish descent that became the landed gentry of the new Mexican Republic. However, only 25 years after Mexico achieved independence, the Mexican-American War broke out over a land dispute with the newly annexed state of Texas as the US expanded westward along the frontier. In the midst of the war, the United States annexed the sparsely populated Alta California; at war’s end, the US occupation was made official, with Mexico ceding the territories of modern-day California, New Mexico, and other large chunks of the West in exchange for the paltry sum of $15 million. Land outside the municipal boundaries of the old pueblos or unaccounted for in arcane Spanish records became de facto “public domain,” eligible for settlement by white men according to the Preemption Act of 1841. This federal act of congress, passed a few years before the start of the Mexican-American War, had outlined, legalized, and encouraged the practice of squatting as a mechanism to settle America’s newly acquired western territories. After the war’s end in 1848, the Preemption Act provided a legal incentive for migrants to occupy public land and chip away at large Ranchos, which now became actively targeted by squatters and speculators.

The anthropological concept of the parazone, which describes the permeable and contestable zones adjacent to legal domains, serves as a tool to understand the process through which legal codes take form in space and come to influence design practice.7 In this case, the Preemption Act generated a parazone for white settlers, giving them a legal framework for homesteading and establishing private ownership—what became known colloquially as a “shotgun title.” Under the act, squatting land entailed staking out tracts of federal holdings (no larger than 160 acres), and then economically improving the land for five years.8 Before the improvement could begin, squatters delineated their territory by stacking piles of rocks at the desired coordinates. However, in the Bay Area, competitors were known to move these piles of rock in the night, especially in highly contested zones at the peripheries of the city like the East Bay or the “Outside Lands” on San Francisco’s western edge. Therefore, in order to navigate and maintain this parazone and successfully lay claim to public land as a private homestead, a whole host of equipment was necessary beyond one’s farming or mining equipment—ranging from bells and dogs to shotguns.

When gold was discovered in the nearby Sierra Nevadas in 1848, as Marx would decry, “golden dreams were to supplant the socialist dreams of the Paris proletariat.”9 Often referred to as a pressure valve, the gold rush in the West siphoned off excess labor from slums in the emerging industrial centers of the East Coast and Europe and attracted rural peasants from Asia and South America. The arrival of the railroads accelerated this process, as the infrastructures of industrial capitalism supplanted the pastoral colonialism of settlers. The city now known as Emeryville is an instantiation of this; its namesake, Joseph Stickley Emery, came to California in search of gold and wound up a local railroad magnate. He purchased the 185 acres that would later become Emeryville in 1859 and, after helping secure the terminus of the transcontinental railroad in Oakland a kilometer to the south, incorporated Emeryville as a separate city in 1897.

In both the East Bay and San Francisco, squatting practices played a central role in the formation of the modern metropolis by enclosing private land and paving the way for industrial capitalism. Squatters, for example, played an important role in the creation of San Francisco’s iconic parks in the 1860s, including the famous Golden Gate Park, which at the time was just a sandy swathe of the Outside Lands where it was unclear who could claim jurisdiction and ownership of the shifting dunes. While city officials argued that the land was part of the Spanish pueblo and therefore within the jurisdiction of the City of San Francisco, prominent and politically influential squatters in the area argued that they occupied federal lands subject to homesteading— that is, subject to the Preemption Act of 1841. After protracted litigation over the location of the new park, the Outside Lands location was chosen to suit the mutual interests of both the squatters and the city. Prominent squatters agreed to donate their claims to portions of land to the city, to build Golden Gate Park, in return for receiving a clear title to their remaining homesteads. As was foreseen, with the construction of the park, the value of their remaining property spiked dramatically. The city, for its part, rather than constructing a park in the crowded tenements where land was more expensive, managed to acquire cheap land and extend the boundaries of San Francisco all the way to the Pacific.10

The Outside Lands would later become streetcar suburbs when San Francisco emerged as the staging ground for American imperial excursions in the Pacific. The same would be true for the hills of the East Bay above Emeryville and the industrialized Bay Shore as the economic titans of military research, manufacturing, and logistics provided the motor for federally subsidized homeownership, and the suburban California dream spread across the Bay Area in the middle years of the twentieth century. Yet with concomitant urban disinvestment and, later, the decline of American industry, the centers of deindustrialized cities —in a spatial process that served as something of a throwback to the days of colonization—became what Neil Smith has termed the “new urban frontier.” (Urban theorist Manuel Castells has even used the phrase la ville savage to depict these emergent landscapes of urban wilderness.) In Emeryville, the eerie landscapes depicted in Chris Marker’s 1981 film Junkopia, shot on the mud flats near the present-day Ikea site, capture this socio-spatial transition.

A turning point in the genealogy of occupying land in California arrived in 1969, with the occupation of Alcatraz Island. In contrast to squatters’ political movements of the Old West—whose tactics, though at times populist, typically rested on nativist appeals and a settler mentality, as enshrined by federal law—the occupation of Alcatraz Island was specifically a turn to occupation as a resistance tactic. After the Department of Justice decided to stop using Alcatraz Island in the San Francisco Bay as a federal prison, a group of Indians occupied the island, citing treaties signed between Native American tribes and the US government, in which the government had promised to transfer all decommissioned federal land to tribal authorities. Rather than piles of rocks and shotguns, these occupations relied on press conferences and slogans, and drew on support networks across the country and globe thanks to broadcast TV and radio. Referring to themselves as “Indians of All Tribes,” the prominent leaders of the occupation hailed from tribes as far away as the Iroquois Confederacy of the Great Lakes.11

For many historians, the occupation serves as an important marker of the rise of “Red Power,” and the mobilization of pan-Indian cultural identity and a symbolic politics of representation.12 This approach embraced the construct of race rather than tribal identity as a source of empowerment. Pan-Indian identity provided a new mode of political engagement for Native Americans across North America and catalyzed a resurgence of the Ohlone identity, which had long been integrated into the local Mexican-American population. However, this wasn’t enough to achieve the occupiers’ goal of establishing a university on the island under Indian authority. Ultimately the occupation of Alcatraz gave way to the formation of the Golden Gate National Recreation Area (GGNRA), built on the ruins of the military infrastructure as America’s “first urban national park.” With culture and identity as a point of mobilization, demands for collective determination could be hollowed out by the state into choreographed, appeasing gestures. The US National Park Service’s decision to preserve the militant graffiti left behind by the Indians of All Tribes—“You are Now on Indian Land,” reads one recently repainted inscription—illustrates the power of aesthetics and the “landscape gaze,” subsuming ostensibly territorial claims as a mere historical, capital-generating visual asset.13 Similarly, near the former site of the enormous Emeryville Shellmound, at the corner of Ohlone Way and Shellmound Street, a couple of meters up the road from Ikea, wedged between retail outlets and towering parking garages, there now stands a small privately-owned public square featuring a historical marker and a reconstructed shellmound.

PROPERTY AND PROPOSITION 13

The present-day status of the Emeryville flats can be tied to a final, especially pivotal legal code: the infamous Proposition 13, an amendment to the Constitution of California passed by public referendum in 1978. As the real estate market in California began to suffer heavy inflation in the late 1970s, a wave of retirees concerned about paying property taxes on a fixed income initiated a referendum officially named the “People’s Initiative to Limit Property Taxation.” By freezing property taxes at their 1975 value with a hard cap on interest until the property is resold, Prop 13 served to permanently skew the real estate market, locking in a predominately white landed class—which had already benefited from the wartime boom and postwar prosperity— into paying a disproportionately low property tax into perpetuity. Prop 13 effectively ended an era of progressive planning that helped build the infrastructure of twentieth-century California, as local governments, losing a major source of revenue, became beholden to block grants from the state government. But beyond decimating public services, it had the unintended spatial consequence of fiscalizing land-use into separate classes of liabilities (such as schools for children) and tax-earning assets (such as retail shopping centers that generate sales tax revenue), in the place of traditional planning criteria.14 Redevelopment plans after Prop 13 would prioritize the kind of big-box retail that would generate tax dollars for local governments. The destruction of the remaining shellmounds languishing in the post-industrial landscape to make way for the Ikea on Shellmound Street and the rest of the nearby retail shopping and tech offices illustrates the spatial logic of Prop 13. And tellingly, Emeryville’s retail shopping and thriving office buildings, arguably the economic center of the East Bay, contribute no tax benefits to the struggling residential flatlands that surround them; belonging to separate municipalities without post-industrial wastelands to redevelop, Prop 13 leaves these communities practically no recourse to gather tax revenues.15

This dynamic points to a broader regional trend. While the Bay Shore flatlands struggled the most in the wake of post-Keynesian restructuring, San Francisco remained a center for finance, later evolving into a tourist city and increasingly something of a suburb for the region’s real economic engine: Silicon Valley, near San Jose. As a result, the region is home to some of the most extreme economic inequality in the country. Meanwhile, the disincentive to sell created by Prop 13—because selling a house means its tax level can be reassessed—has resulted in bottlenecks in the housing delivery system, making for skyrocketing rents across the region. Downtown Oakland and the East Bay flatlands now sit on the verge of transformation.16 With San Francisco becoming the bedroom community for Silicon Valley, cultural industries and non-profits have been displaced to Oakland—the new “new urban frontier”—and gentrification creeps across the bay.17 West Oakland, a historically black area that has witnessed systematic disinvestment and practically came under siege during the war on drugs of the 1980s and ’90s, has gradually come to be appreciated for its Victorian housing stock, multicultural diversity, and ten-minute non-stop train ride to downtown San Francisco. In a cruel twist of the logic of Prop 13, residents priced out of San Francisco and the flatlands of Oakland, in order to find affordable housing on a service industry wage, must now travel beyond the affluent hilltops lined with off-limits nature conservation zones to suburbs in the San Joaquin Valley, over 100 miles from San Francisco. Because this low-wage housing stock generates so little in property taxes, it often lacks basic amenities and infrastructure.18 The subprime mortgage crisis of 2008 accelerated this process, especially for working-class families in the gentrifying flatlands ringing the bay and the far-flung suburbs of the valley, hitting California—“the fountainhead of the Great Recession”—hardest of all.19

FROM RED TO GREEN: IDENTITY AND OCCUPATION WITHIN LAND ACTION

When the Occupy movement emerged in 2011 as a critique of the Wall Street bailouts following the Great Recession, occupiers in New York City’s Zuccotti Park enjoyed “flagship” status. But Occupy Oakland also garnered national attention, undertaking radical actions like the dramatic closure of the Port of Oakland. Street violence in Oakland was compounded by the police killing of Oscar Grant, a young black man who was shot while handcuffed and lying facedown on a train platform as hundreds watched from a crowded train during the New Year’s celebration that year. Attempts to permanently occupy vacant buildings in downtown Oakland, leading to pitched battles with the police and a proliferation of political squats across the city, have garnered less attention. This is the context that has given birth to Land Action, a legal aid skill-share, dedicated to mobilizing occupiers to utilize adverse possession law—rooted in the settling of the Old West—to reclaim properties left vacant and blighted from decades of racialized disinvestment and fiscalized urban development.

In contemporary California, occupied lots are a different sort of parazone, with a new set of parameters. As in the days of the Old West, to begin the process of adverse possession, one must continuously occupy and tend to the land, differentiating the project from a community garden or temporary tactical project. The habitation of the property must be open and notorious. Potential sites are located by researching tax-defaulted property-auction listings, or inquiring with government officials on the legal and financial status of other prospective sites. Once a prospective site is selected, physical and spatial qualities—like the presence of buildings or the quality of the soil—become important indicators for the possible use of the site and the potential for demonstrating its “improvement”; a feature like the location of a sewer lateral might dictate the placement of additional structures such as a “water house,” with a shared kitchen and bathroom. Police intimidation and red tape from municipal officials in acquiring building permits can serve as major impediments to action. To anticipate these obstructions, “permit-free” structures with a maximum footprint of 11.15 square meters, spaced 15 meters away from each other, stop shy of the floor-area threshold that requires a building permit in California. An occupation can be evicted at any time, especially in the early stages, so inexpensive and modular designs that can be constructed quickly and cheaply, using salvaged or off-the-shelf materials and tools, are ideal.

In many respects, these tactics intersect with the “Tiny Home” or “Small House” trend that is popular in the largely affluent northern reaches of the Bay Area. Following this typology, a well-designed small dwelling can function to activate the landscape and utilize it as an exterior dwelling space in the moderate California climate. However, in contrast to the Thoreau-inspired dogma prevalent in the Tiny House movement and the self-sufficiency of homesteading squatters in the nineteenth century, occupying urban land means working with people, building coalitions and commons, and, most importantly, understanding that spatial politics in Oakland cannot be reduced to building codes.

While the conflicts of the Old West lie in the past, their afterlives continue to animate contestations around land in California in new ways. Conflicts over identity and decolonization in the wider Occupy movement, and Occupy Oakland specifically, are well-documented and play an important role in contemporary American politics more broadly. Similarly, Land Action must navigate the slippery cultural politics of gentrification. Following years of conflict in the aftermath of Occupy Oakland, Land Action reached an agreement with the City of Oakland. “Underwater lots,” or properties with less market value than the back taxes and blight fines associated with them, that also have absentee owners and are successfully occupied will have back taxes waived. Obviously, it is in the city’s interest that these lots are “improved” and returned to the market to attract investors slowly making their way across the Bay from San Francisco—a situation that serves to perpetuate the dynamics that push poor and minority communities out of Oakland. However, to avoid contributing to this dynamic, Land Action has partnered with the Northern California Community Land Trust to revert the properties acquired in this manner to a community land trust, out of the reach of the market. In this way, legal codes shape a design practice that provides access to land without capital, and returns that land to communal control. In doing so, these practices present an alternative mode of development based on sweat equity and affinity.

We may consider this cooption of resistance practices, and the ongoing process of restrategizing that results, as part of the cyclical genealogy handled throughout this paper. In the case of Ikea and the Ohlone, the state reduced the New Left’s demands for cultural visibility to weak aesthetic gestures in the Emeryville plaza. However, new mobilizations around identity stoke contemporary struggles over land, as the Ohlone have recently sought to reassert claims to ancestral sites around the Bay Area. Perhaps most tellingly, last Thanksgiving, a group of Indians, allies, and onlookers from the furthest reaches of the Bay Area converged on Alcatraz at sunrise to commemorate the occupation of 1969–71. The following morning, many of the same activists gathered at the Ikea on Shellmound Street, protesting not only the disregard of their ancestral burial sites, but also the “Black Friday” shopping madness and the economic structures that drive it. Across all these cases, legal codes continue not only to transform space and politics, but also to engender new practices of resistance—even in an age of Ikea.

Postscript: At the time of print, Land Action founder Stephen DeCaprio and three other members of the group are facing felony conspiracy, fraud, and trespassing charges stemming from an occupation in the winter of 2015–16. DeCaprio believes these charges are politically motivated and is hoping to have the case dismissed. His defense team is headed by the prominent Bay Area civil rights attorney Tony Serra, brother of the sculptor Richard Serra.

_____

1 See Richard Walker, “Industry Builds the City: The Suburbanization of Manufacturing in the San Francisco Bay Area, 1850–1940,” Journal of Historical Geography 27 (2001): 36–57. 2 See Michel Foucault, Language, CounterMemory, Practice (Ithaca, NY: Cornell University Press, 1980). 3 See Lisbeth Haas, Conquests and Historical Identities in California, 1769–1936 (Berkeley: University of California Press, 1995). 4 See Rousseau’s figure of the savage in the 1754 work, On the Origins of Inequality. 5 For more on racial identity and labor in Spanish California, see Haas, Conquests and Historical Identities and Steven W. Hackel “Land, Labor, and Production: The Colonial Economy of Spanish and Mexican California,” California History (1997): 111–146. 6 See Mary Louise Pratt, Imperial Eyes: Travel Writing and Transculturation (New York: Routledge, 1992), and Richard Drayton, Nature’s Government: Science, Imperial Britain, and the “Improvement” of the World (New Haven: Yale University Press, 2005). 7 For more on the concept of parazones, see Paul Rabinow, “Minor Vices: Disparagement,” Anthropological Research on the Contemporary (2014): available online at: http://anthropos-lab. net/bpc/2014/04/minor-vices-disparagementrabinow, accessed August 31, 2015. 8 For more on the practices of squatting in the making of early California, see Tamara Venit Shelton, A Squatter’s Republic: Land and the Politics of Monopoly in California, 1850–1900 (Berkeley, University of California Press, 2013). 9 Quoted in Eric Hobsbawm, The Age of Capital: 1848–1875 (London: Abacus, 1977). 10 For the prehistory of Golden Gate Park and the Outside Lands, see: Terence Young, Building San Francisco’s Parks, 1850–1930 (Baltimore: Johns Hopkins University Press, 2004), and Raymond H. Clary, The Making of Golden Gate Park: The Early Years, 1865–1906 (San Francisco: California Living Books, 1980). 11 See Troy R. Johnson, The Occupation of Alcatraz Island: Indian Self-Determination and the Rise of Indian Activism (Urbana: University of Illinois Press, 1996). 12 See Joane Nagel, American Indian Ethnic Renewal: Red Power and the Resurgence of Identity and Culture (Oxford: Oxford University Press, 1996). 13 Carolyn Strange and Tina Loo, “Holding the Rock: The ‘Indianization’ of Alcatraz Island, 1969– 1999,” The Public Historian 23, no. 1 (2001): 55–74. 14 See Alex Schafran, “Origins of an Urban Crisis: The Restructuring of the San Francisco Bay Area and the Geography of Foreclosure,” International Journal of Urban and Regional Research 37, no. 2 (2013). 15 See Richard Walker and Alex Schafran, “The Strange Case of the Bay Area,” Environment and Planning A, no. 1 (2015). 16 Ibid. 17 See Neil Smith, The New Urban Frontier: Gentrification and the Revanchist City (London: Routledge, 1996). 18 See Schafran, “Origins of an Urban Crisis.” 19 See Ashok Bardhan and Richard Walker, “California Shrugged: Fountainhead of the Great Recession,” Cambridge Journal of Regions, Economy and Society (2011).

Oakland specifically, are well-documented and play an important role in contemporary American politics more broadly. Similarly, Land Action must navigate the slippery cultural politics of gentrification. Following years of conflict in the aftermath of Occupy Oakland, Land Action reached an agreement with the City of Oakland. “Underwater lots,” or properties with less market value than the back taxes and blight fines associated with them, that also have absentee owners and are successfully occupied will have back taxes waived. Obviously, it is in the city’s interest that these lots are “improved” and returned to the market to attract investors slowly making their way across the Bay from San Francisco—a situation that serves to perpetuate the dynamics that push poor and minority communities out of Oakland. However, to avoid contributing to this dynamic, Land Action has partnered with the Northern California Community Land Trust to revert the properties acquired in this manner to a community land trust, out of the reach of the market. In this way, legal codes shape a design practice that provides access to land without capital, and returns that land to communal control. In doing so, these practices present an alternative mode of development based on sweat equity and affinity. We may consider this cooption of resistance practices, and the ongoing process of restrategizing that results, as part of the cyclical genealogy handled throughout this paper. In the case of Ikea and the Ohlone, the state reduced the New Left’s demands for cultural visibility to weak aesthetic gestures in the Emeryville plaza. However, new mobilizations around identity stoke contemporary struggles over land, as the Ohlone have recently sought

All images by Marcus Owens and Christina Antiporda 53

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