5 ms·

Couldn’t the govt just use eminent domain?

wavefunction 6y ago
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.
- 1over137 6y ago
  Does it being a "foreign" company really matter at all?
advisedwang 6y ago
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.
- User23 6y ago
  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.
seniorsassycat 6y ago
Eminent domain would require payment for the land right? The optics would also be worse - tho not much worse than the articles current headlines.
deleted 6y ago
[deleted]
dragonwriter 6y ago
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.
_jal 6y ago
Eminent domain doesn't work across sovereign borders. When you try, that's called 'invasion'.
- abduhl 6y ago
  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.
  - gwright 6y ago
    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_United_States https://en.wikipedia.org/wiki/Tribal_sovereignty_in_the_Unit...
    - abduhl 6y ago
      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.
  - _jal 6y ago
    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.
pnw_hazor 6y ago
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.

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.

1over137 6y ago
Does it being a "foreign" company really matter at all?

advisedwang 6y ago

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.

User23 6y ago
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.

seniorsassycat 6y ago

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

deleted 6y ago

[deleted]

dragonwriter 6y ago

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.

_jal 6y ago

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

abduhl 6y ago
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.
- gwright 6y ago
  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_United_States https://en.wikipedia.org/wiki/Tribal_sovereignty_in_the_Unit...
  - abduhl 6y ago
    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.
- _jal 6y ago
  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.

pnw_hazor 6y ago

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.