Native Americans say U.S. does not own land it is about to give to Rio Tinto | Hacker News Reader

Native Americans say U.S. does not own land it is about to give to Rio Tinto

reuters.com

204 pointspseudolus64 comments

Rio Tinto have a poor track record for handling indigenous lands too. Just 6 months ago they demolished indigenous australian heritage sites, for apparently very little gain.

https://www.abc.net.au/news/2020-05-26/rio-tinto-blast-destr...

Yep, they blew up the "only inland site in Australia showing human occupation continuing through the last Ice Age" [1].

"Even going through and doing excavations in those areas; to find the plaited hair and the artefacts and how they have been dated back to over 46,000 years — it's something we will always remember." [2]

40,000 years is a long long time, 40,000 years still on my mind. [3]

[1]: https://theconversation.com/rio-tinto-just-blasted-away-an-a...

[2]: https://www.abc.net.au/news/2020-05-26/rio-tinto-blast-destr...

[3]: https://neighbourhoodpaper.com/culture/40000-years-is-long-l...

theconversation.com is speaking loosely - it is the only known inland site. That is different from being the only inland site.

The Pilbara is very large and the Aboriginals have visited a lot of it over the last 46,000 years. It will be riddled with ancient sites, which nobody cares about. The only reason they even bothered to look was because it was in an ore-rich area.

While Native American rights seem more than enough reason to deny the government granting the land, it is a travesty that it's our last line of defense against the inevitable destruction Rio Tinto would bring.

I think the US government has the worst record.

> Tribal members have also filed a lawsuit seeking to block the study’s publication.

Hmm, that's kind of a weird step in the process to block via a lawsuit. The environmental study really doesn't have anything to do with who owns the land. If anything, I would think it would be of the Apache's benefit to have the study published. If the environment effects of a copper mine are damning which is a likely case, then the mine might face significant hurdles anyway.

apparently the land can't change hands until the study is published. it's just a delaying tactic while they seek a favorable judgement.

This is how pretty much all of this stuff goes for natural resource extraction in western US. Same thing happens for timber extraction/runoff/roads, etc. out west. If you want to stop it you throw speed bumps in its way and hope that administrations change. It is very likely that under Biden the EPA/Forest Service/BLM/BIA may have different priorities.

Also infrastructure projects. Environmental lawsuits are used to drive up the time and monetary costs until it no longer becomes viable.

Do you expect that the behavior of the Forest Service, BLM, and BIA will be drastically different under Biden? Are those orgs that under the sway of political appointees rather than career civil servants?

My limited experience with Forest Service is that they were much the same org under Trump, but could not always say so publicly. Maybe that's wrong though.

Yes. (Edit: not necessarily the specific ones you listed, but yes, in general.)

For example, every jurisdictional pipeline project under the Obama admin was "delayed" in a manner that never had to be completed. (Not for the environment, but as a political favor to the railroads.)

Some departments or offices are less flexible in their discretion, as you suggest, but it only takes one out of dozens+ to drag their feet and effectively kill a project.

It has become a serious problem in the last ~20 years, especially as an avenue abused by lawfare type suits. All it takes is the government to not object to the suit, for which there is almost obligation of the executive to defend.

It's likely an EIS (Environmental Impact Study), which is a report on a proposed project, not a peer reviewed study. They're typically managed and written by engineering firms, who hire other scientist and specialists as needed for contributions.

They almost universally have an archeological survey as a component, to ensure no major or unknown sites are accidentally bulldozed.

They're required for almost any government project, as well as many/most large scale private projects.

There are variations based on type of project and scale, but it serves as the document used by government officials to review a project before it's permitted.

Not just an office or two, but dozens, or even hundreds of offices. Responses are given with official govt input, including requested changes. But often it's simply a letter waiving topical or geographic jurisdiction, or simply a letter of no objection.

Once approved, it's all but a green light to proceed, politically.

Which is why you sue if you know what it's going to say, and don't like it.

I wish I could find the court case, but the gist of it was that there was an enormous amount of "public land" in Oklahoma (I think) that a court ruled was actually owned by a Native American tribe and the deed/land was given to them. Access to the public was immediately revoked and multiple casinos were built on the part of the land near a lake and closest to the highway that ran through the land.

Is this a similar case? Also if anyone has a recollection of what I'm referring to, that would be awesome. My search skills are failing me.

Supreme Court Rules That About Half Of Oklahoma Is Native American Land : NPR || https://www.npr.org/2020/07/09/889562040/supreme-court-rules...

Supreme Court recognizes Native sovereignty in much of Oklahoma || https://www.pri.org/stories/2020-10-12/supreme-court-recogni...

Thanks! Yeah this is it. I'm still trying to find the other details about the case

McGIRT v. OKLAHOMA maybe?

https://www.supremecourt.gov/opinions/19pdf/18-9526_9okb.pdf

Half of oklahoma was ruled to be on a reservation somewhat recently. Never heard any casino new related to this ruling though.

Also, the court was pretty clear about not making any drastic interpretation of their ruling, beyond the criminal jurisdiction matter that was at hand.

However, the fact that the court validated the continued legality of the treaty at all was a pretty big deal.

If you google "court declares oklahoma belongs to native americans" you'll get dozens of articles about it from 6mo ago.

Thanks yeah, that's definitely the case. I'm trying to find the other details regarding the issue of revoking the public access and developing areas around some public-access lake that was on the land.

I don't think McGirt v. Oklahoma actually gave ownership of the land to Native Americans. It might seem that being on reservation land would mean that but apparently it doesn't.

I wonder if anyone has tried not paying their US jurisdiction property taxes that lives on supposedly Indian land now.

Usually what ends up happening is that various treaties will be set up such that the Oklahoma state government and the relevant indigenous nation would collaborate on the governance of the area.

for the most part states and the reservations within them are on good enough terms these days for such a thing to happen. It benefits both sides to take care of these issues.

Don't get me wrong, there are plenty of "misunderstandings". However it isn't like 150 years ago when states believed "the only good Indian is a dead Indian."

For a few things, it really is like being in another country. Some tribes used to require you to pay traffic tickets on the spot, because they had no legal recourse once you left the reservation.

Guess how I know...

And yea, there are even fairly recent cases even saying States can't collect road taxes on trucks driving between reservations, on state highways.

Taxes are one of the clearest exemptions spelled out not just in the treaties, but in the actual US Constitution.

I've heard of half of Oklahoma being declared Indian country but I haven't at all heard that public services were revoked and casinos were set up. We'd also hella hear about it because it would mean Tulsa would've been forcibly removed as a city!

This isn't a speculation of malice, but I will say narratives like that were precisely the false and sometimes racist presumptions that had to be fought in that case! Oklahoma was claiming as soon as the land is declared Indian country, the tribes would let all the rapists and murderers out of the state prisons.

> [...] the false and sometimes racist presumptions [...] Oklahoma was claiming as soon as the land is declared Indian country, the tribes would let all the rapists and murderers out of the state prisons.

That probably has a lot more to do with the Jimcy McGirt of McGirt vs Oklahoma being a convicted child rapist, trying to get out of prison...

> Access to the public was immediately revoked and multiple casinos were built on the part of the land near a lake and closest to the highway that ran through the land.

Now that you've been pointed to the story and found this is not at all what happened, it would be nice if you could edit your post to say so (or at least post a follow up saying the same if it's too late to edit).

I know it is the original title, but would it make sense to change it to "Apache" or "San Carlos Apache" instead of "Native Americans"?

The term "Native American" is no more specific than "white europeans", given the diversity of tribes the term is supposed to encompass.

Something I guess I've never understood is why the US still value indigenous claims to pieces of land? I acknowledge that Europeans shouldn't have taken the land for themselves centuries ago, but why are there still people today who believe they have an ancestral right to a piece of land? Why can't these populations just integrate into the US instead of trying to preserve their cultures from migration? Why is this kind of ethnocentric thinking still acceptable in the 21st century America?

The reason I ask is because I see a lot of European nationalists here in Europe asking for similar treatment to native peoples and it's hard to say their arguments are not genuine when you guys in America are tolerating nationalism from other non-European groups. What exactly do you say to a British nationalist who wants claim a piece of land in Britain to protect his "people" and culture from non-British arrivals like native Americans? Is this a backwards, racist concern, or a genuine one?

I should note I am highly autistic. I'm not trying to be cruel here. I've just always found the concern for indigenous cultures and land highly contradictory and want to understand the US perspective better.

It’s because they negotiated a formal treaty (often to end a state of war) which was signed by the president and ratified by 2/3 of the senate. That is supposed to have the same force as any federal law, but over time these were neglected.

https://en.wikipedia.org/wiki/List_of_United_States_treaties...

1) One key fact often overlooked though, is that the tribal treaties (most, anyway) not only gave the US ultimate sovereignty, but also transferred ownership/title of the lands into federally administered trusts, held on behalf of the tribe's members.

So anytime a tribe wants to do anything with tribal land, it's got to get signed off on by someone at the Dept of the Interior, or whoever is holding their trust. But not the Dept of State.

Which I'm assuming is part of what's going on in the situation in TFA. Govt action requires Govt study.

2) The 2/3 vote is to ratify a treaty, but withdrawl is always easier; it's often accomplished unilaterally, and for the US, it's basically at the Presidents sole discretion, if not at his pleasure.

Of course tribal treaties are different things than foreign ones- even if that wasn't the original intent. And politically, leaving any such treaty is an idea DOA.

I don’t think there exists a clean logical explanation for why any sort of ancestral background should grant rights over land anywhere - your confusion makes plenty of sense.

In America this issue is tied to socioeconomic disparities in race. To be born Native American today is to be born with higher likelihoods of poverty, alcoholism, low life expectancy, etc. These disparities are to some degree (how much is a hotly debated topic down political lines) a consequence of white people treating native peoples like shit (vast simplification) for ~500 years.

Prevailing thought on the American political left is that since taking away native land illegally (and other atrocities) created these disparities, giving them their land back is the just and obvious thing to do (this conclusion is much debated). The left feels, generally, that disparities are unnatural, caused by those in power (white settlers and their descendants), and are to be stamped out. The political right, as best I can tell, both doesn’t agree with that assessment and doesn’t care.

To integrate fully would be the ultimate subjugation: to accept the destruction of a culture and way of life they care deeply about that has already been almost totally taken from them by force. The political left believes this shouldn’t be demanded of an already downtrodden people.

Re your Europe question: I believe the thinking goes that natives there are rich, so why should they have more even more land rights? The political poles are flipped, the political left sees no injustice to be fixed by empowering the privileged.

I’m a white American, so my opinion should be discounted appropriately.

>socioeconomic disparities in race. To be born Native American today is to be born with higher likelihoods of poverty, alcoholism,

Important in this context: the predisposition to alcoholism is a known genetic one. It complicates many of the issues you describe.

Thanks for the polite response, I was quite nervous about asking the question incase it was perceived poorly to be honest.

It sounds like my problem is that I'm looking for a one fits all solution. I guess the answer is that Americans have decided different groups are entitled to different things based on historical events and inequalities. I tend to think quite individualistically so treating someone differently based on their ancestral background doesn't come naturally to me.

> Re your Europe question: I believe the thinking goes that natives there are rich, so why should they have more even more land rights? The political poles are flipped, the political left sees no injustice to be fixed by empowering the privileged.

I will say that in my experience isn't true, at least if you're looking on an individual level. Part of the reason I asked the question is because I've asked the reverse to people here in the UK. I'm from a working class background and I know a lot of Brits from working class backgrounds who are unhappy with being "minorities" and feeling culturally alienated because of immigration into their communities. I know one elderly man who due to the effects of migration now lives in a majority Muslim area of my city and often expresses his sadness with no longer being able to enjoy Christmas with his neighbours or not being able to read the posters put up in his council flat, etc.

I've found here in Britain people rarely take these complaints seriously. When I ask people here if we should feel some sympathy for those who feel they're losing "their culture" as "their group" becomes the minority the answer is typically that they need to get with times and adapt to the change, but I'm aware that this is different from the American perspective, which does take the concerns of native groups becoming minorities due to immigration seriously. Funnily enough the only time I've heard anyone give a different answer was from a Muslim immigrant and I wonder if that was because of their sympathy for the struggles of being a minority.

I don't know if there is a right answer to this though. If we want to become are more globalised world these changes are inevitable, but at the same time time I do seem to feel some sympathy knowing that not everyone is asking to live in a globalised world and that many would like to continue living in a nation that resembles the one of their ancestors. I'm just rambling now, but I think about this a lot because I know it's the cause of many problems in the West today (Trump, Brexit, nationalism) and it seems we have quite poor, or at least highly contradictory answers – some cultures deserve to be preserved, some need to get with the times; some natives have rights to their ancestral lands, others are racist for wanting the same; some groups concerns over being a minorities is valid, some groups need to just accept their new minority status. These answers, at least to me, don't seem to be satisfactory. I don't know what the answer is, and I doubt there is a perfect one, but at the very least our answers to these questions shouldn't be contradictory.

I have three small things to add - your perspective is a very interesting one.

1) I think you are conflating America and the American opinion with the opinion of the political left. Not everyone cares about history and inequality here. The political right in America would love to integrate native people and don’t much care for native land rights.

Excuse my lacking knowledge about your country, but it seems like you are also conflating the general UK sentiment with labour supporters. Wasn’t brexit a direct response to immigration and cultural changes of the sort you said isn’t taken seriously? It certainly seemed that way to an outsider like me.

2) I think you hit the nail on the head when you said

> I will say that in my experience isn't true, at least if you're looking on an individual level.

My take is that neither political party individuates in the way you are. A rich black man here, to the left, is black and therefore a member of an unprivileged minority who deserves help and further advantagement. To the right, he is rich and needs no help. Both parties generalize, but their heuristics for doing so are different.

3) I’m not sure our countries are so dissimilar! There has been much talk that Trump was a consequence of white fear of being a minority. Popular sentiment on the left is that those whites need to shut up and accept it. That sounds very similar to your example, with the minor difference of whites being nonnative in America. Google “the war on Christmas” for a silly example of how the American right feels culturally alienated by minority encroachment.

I'm not sure this is some weird American thing like you're making it out to be.

I'm curious how you feel about similar situations in other regions... Ireland under Great Britain, the Israel-Palestine conflict, European colonization of Africa and South Asia, Japanese imperialism, American annexation of Hawaii, et multa alia.

There's a lot to unpack here and like any complex system, there's a lot of history behind why things are a certain way. All of the following are likewise extreme simplifications of a messy reality.

1. Historically the reservation system evolved as a way to control and corral indigenous peoples. It continues to continues to exist today largely because natives want it to exist and there aren't any better solutions. It gives them the ability to form their own governments, own their own land, and have their own quasi-sovereignty. They're (nominally, not always practically) free to leave reservations whenever they like and many do.

2. The US had a couple centuries where the official policy on native peoples was "integration". These years are widely regarded as constituting something called a "cultural genocide". Suggesting it as a policy comes across... badly.

3. Pretty much everyone involved recognizes that logic has very little to do with the whole affair. It's a complicated mess with a lot of sensitive areas, and more competing interests than you can possibly imagine.

tldr:

"An 1852 treaty between U.S. officials and the tribe that is still in force set aside the land for the Apaches’ use."

Answers that question. At least, for those with little idea of how seriously the US takes the treaties it scammed a hundred tribes with (or how it usually got their signatures).

Couldn’t the govt just use eminent domain?

On what is a National Forest but apparently legally Apache land? That's a fair number of hoops to jump through and personally not something I think the US Government should be undertaking for a foreign extractive company like Rio Tinto with such a checkered record and horrendous reputation.

Does it being a "foreign" company really matter at all?

Native american claims on land are stronger than regular property rights. There are treaty provisions and sovereignty too. IANAL and perhaps it is possible to override these with eminent domain, but it's surely legally and politically harder to eminent domain this land than a private owner's.

It depends. Homestead act properties have land patents, which are legally perpetual to the assignee and their heirs and subject to no superior landlord, which means immune to liens, property taxes, and basically everything else (not sure on eminent domain). In practice though the US federal government is just as happy to ignore its promises to Americans as it is those to the sovereign tribes.

Eminent domain would require payment for the land right? The optics would also be worse - tho not much worse than the articles current headlines.

Nope, because this isn’t about simple title, but control by a subordinate sovereign whose interest can only be reduced voluntarily or by Congressional action.

Eminent domain doesn't work across sovereign borders. When you try, that's called 'invasion'.

It's important to note that sovereignty can mean different things. Certainly the federal government and each state government are different sovereigns, but that doesn't mean that the federal government can't use eminent domain to seize land in a state. The federal government is the supreme sovereign in the USA.

It is similar for tribes: they are recognized as sovereigns on the same level as states. The federal government remains supreme and, in fact, can revoke their sovereignty at any time through Congress.

Totally not my area of expertise, but but IMHO the dual sovereignty relationship between the federal government and states is actually not the same sort of relationship as between the United States and Indian tribes.

There may be similarities, but they are not the same.

https://en.wikipedia.org/wiki/Tribal_sovereignty_in_the_Unit...

What I meant by "on the same level of states" is that the federal government is the supreme sovereign. This understanding is per the commerce clause which places them on the same level as states for purpose of regulation: Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes.

I agree they are not exactly the same when it comes to actual powers.

Not an attorney, and especially not a specialist in border disputes, but there is a distinction to be made here.

The Feds using eminent domain inside a state - kicking the former legitimate owner off of it and taking it for federal use - is quite different than the Feds, say, taking a piece of New Mexico and saying it is now part of Texas.

Congress can change the treaty at-will.

In McGirt v OK, the SCOTUS held that Congress did not take the necessary action to rollback/modify the prior treaty as it applied to criminal jurisdiction.

The US, through congressional action, can ultimately do what it wants including an eminent domain type taking. These used to be policy with the termination acts. That's stopped and now federally there is support of self governance, but that could of course change in the future.

Can it do that for tribal land though? Tribes are sometimes legally semi-sovereign, and congress’ power in them is complicated.

Sure - it can and has.

https://www.govinfo.gov/app/details/STATUTE-71/STATUTE-71-Pg...

is an example. Currently however congress has tried to improve / make up for prior poor treatment of native americans - but the power is ultimately in congresses hands (with some small limits).

Trump was active in this more recently

https://www.theguardian.com/us-news/2020/mar/31/trump-admini...

Wasn’t there just a SCOTUS case where they actually stopped the federal government from doing something because it would violate an old treaty? If so, it seems like the government’s ability to do whatever it wants in this area might get clipped.

The SCOTUS cases covered two situations - a guy convicted of murder and another (the one that was deceided) was related to child sex abuse.

The decision was that congress had not disestablished the reservation as part of the Oklahoma Enabling Act of 1906, and so they could not be convicted in Oklahoma courts.

This emphasizes, not diminishes, congresses role in deciding what reservations are established or not.

Yes, but the decision was basically that the treaty was still in force because there has never been a law passed overriding it.

They could do something about it, but they need to pass a law to do it. They can't just do it without changing the law.

Separately from sovereignty, most tribe "owned" land is already held in trust for the tribes members by an agent of the US govt.

Very true. And lots of debates come up about who in the tribe is in charge of this land, and even who is part of the tribe if money gets involved.

Quick note that while my comment was downvoted heavily, it is correct - I do welcome factual responses.

I believe the right approach is for the US to apply for squatter’s rights. The land was not otherwise in use, and the US has been occupying it for years.

Isn't that like trying to apply squatter's rights on a piece of Canada or Mexico? AFAIK, Apache land is sovereign and only managed (not owned) by the US.

It is “owned” (in the sovereign, not title-holding, sense) by the US as well, which is a superior sovereign, but the Apache role in that land can only be diminished by Congress, not the executive.

  The land was not otherwise in use

If by "not otherwise in use" you mean not directly creating profit for US businesses then sure. A lot of things "use" the Earth that aren't human.

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