James Anaya: Rio Tinto should make some lands off limits to mining and abandon the project if it can’t gain local support

Congress recently authorized an exchange of land so the multinational giant Rio Tinto can proceed with its Resolution Copper Mine project in eastern Arizona. The land to be conveyed to the company was taken from the Apache people more than a century ago, but Apache today continue to claim strong cultural and religious ties to the land.

The congressional authorization can be seen as a victory for the foreign-owned mining company. At the same time, it represents a shameful circumventing of democratic process in the face of environmental concerns and potential violations of the religious and cultural rights of the Apache people.

The San Carlos Apache Tribe, with numerous other Indian tribes across the country, had successfully opposed stand-alone legislation for the land swap because of these fundamental human-rights concerns. Leaders in Superior had voted to revoke support for the mine.

The mining company, however, convinced key members of the Arizona congressional delegation to authorize the land swap through an amendment buried in the must-pass National Defense Appropriations Act.

The new legislation does not make the land swap immediately effective. Several steps will have to be completed, including an extensive process of environmental review and consultations. Still, it makes the land swap and eventual mining appear to be a foregone conclusion.

Proponents of the mine, including Sen. John McCain, have stressed that the project will lead to needed jobs and generate significant economic activity. But whether or not the American people or Arizonans will fairly benefit economically in comparison with what the foreign company will profit remains highly debatable.

In any case, most Americans understand that the prospect of jobs or economic gain for some cannot alone carry the day, lest all those places rich in natural or cultural bounty that have been set aside as national treasures would be at risk.

The owners of the Resolution Mine project, Rio Tinto and BHP Billiton, subscribe to guidelines adopted by the International Council on Mining and Metals establishing, in keeping with United Nations standards, that mining companies should work to obtain the free, prior and informed consent of indigenous peoples and ensure full respect for their rights, as preconditions to the implementation of mining projects that affect them.

Rio Tinto, especially, has worked to follow these guidelines with a number of its projects around the world, building what many human rights and environmental advocates consider to be good practices.

But the land swap authorization for Resolution Mine was not predicated on the San Carlos Apache’s consent or widespread local support. Instead, the congressional authorization came amid continuing disagreement about the environmental and cultural impacts of the land swap and eventual mining, through a truncated legislative process that altogether avoided confronting the points of disagreement.

Any chances of now meeting local concerns and coming to an agreement with the tribe have been severely damaged.

The only way that those chances might be bettered is for the company to make clear it understands that some places, because of their religious or cultural significance or environmental sensitivities, are simply off limits to mining, and to commit to refraining from moving forward with the land swap or any mining without broad local community support and agreement with the tribe.

The company should be prepared to alter its planned land swap and mining activity, or altogether abandon it, if the company cannot obtain the social license that broad local support and agreement with the tribe would provide.

S. James Anaya is a Regents’ Professor at the University of Arizona Rogers College of Law. He served as the United Nations Human Rights Council’s special rapporteur on the rights of indigenous peoples from 2008 to 2014.

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Congress’ Christmas Gift for the Rio Tinto Mining Company

Steven Newcomb – Indian Country Today, https://indiancountrytodaymedianetwork.com/2014/12/27/congress-christmas...

27 December 2014

The Rio Tinto Mining Company, owned by interests in the United Kingdom and Australia, is representative of the destructive and devouring process of colonization which results in the expropriation and exploitation of the territories of original nations and peoples. The Apache Nation is an example of an Original Nation, well known for fearless and famous leaders such as Cochise and Geronimo who fought to maintain Apache independence from the American empire of the United States.

When the U.S Congress passed the National Defense Authorization Act of 2015 on December 12, 2014, it thereby approved a land swap that will hand over to the global Rio Tinto Mining Company a 2400 acre area that is part of the traditional territory of, and sacred to, the Apache Nation. The area is the location of a massive copper deposit which will be mined for the billions of dollars that will accrue to the dominating societies of the United States, Australia, and the United Kingdom.

When Phil Stago of the White Mountain Apache Nation recently complained to Congressman Paul Gosar (R-Arizona) about the pending land swap travesty that Gosar was supporting, the U.S. representative demonstrated his sympathy with Stago’s concerns by saying: “You’re still wards of the federal government.” A ward is someone deemed to be an incompetent dependent under the control of a responsible guardian or trustee.

A follow-up statement issued by Representative Gosar’s office says in part: “One of the federal government’s dirty little secrets is that Native American tribes are not fully sovereign nations in today’s society.” Gosar’s statement further says that his “comments made at the roundtable last Friday were about this reality and current laws that govern the relationship between tribes and the federal government.”

Statements by rhetorically skilled statesmen need to be carefully parsed and examined in terms of words they have chosen not to use because to use them would reveal what they prefer to leave unsaid, especially when it comes to patterns of domination. Think, for example, of how much more precise and revealing Representative Gosar’s statement would have been if he had talked about “this reality and current laws that govern the colonial dominating relationship between tribes and the federal government.”

If Gosar had made explicit the colonial and colonizing relationship between the U.S. and Indian nations, his comment would trace to the word “colon,” which is the root of “colonization.” The root of the word “colon” is “colo,” which means, “to filter out impurities in the process of mining.” Mining all resources, even “human resources,” is the background context and purpose of the imperial process of colonization.

So, here’s a question for Congressman Gosar: Based on what rationale does the United States claim that Indian nations “are not fully sovereign nations?” A general answer to this question is found in Gosar’s statement: “current laws [of the U.S.] that govern the relationship between tribes and the federal government.” However, what needs clarification is the specific part of current U.S. law that he is referring to. Unfortunately, according to the Associated Press, the congressman’s office declined to elaborate on his statement.

To understand the rationale behind the U.S.’s claim that Indian nations are not fully sovereign nations, we must go back to the origin of the United States. We must turn to the original basis upon which the United States purported, as a political system, to be “the ruling sovereign” over the territories of Indian nations that the British crown had declared, by royal fiat, to be thirteen British colonies, or, in other words thirteen massive areas that were to be filtered and mined for the monetary and political benefit of “the crown” of England, which came to be called “the crown” of the British kingdom.

As part of that colonial and imperial enterprise, intellectuals working on behalf of what George Washington called “our infant empire” devised an argument that could be used to contend that Indian nations are not fully sovereign independent nations. This rationale was developed at length in the U.S. Supreme Court ruling Johnson & Graham’s Lessee v. M’Intosh. The Christian religious basis of that rationale was distilled into a concise form by Justice Joseph Story who was a member of the Supreme Court when it wrote and issued the Johnson ruling.

In his Commentaries on the Constitution of the United States (1833), Story put the rationale in this manner: “As infidels, heathens, and savages, they [the Indian nations] were not allowed to possess the prerogatives belonging to absolute, sovereign, and independent nations.” On what basis did the United States claim the right to unilaterally declare a portion of the Apache Nation’s traditional territory to be the “Tonto National Forest?” According to Story and the Johnson ruling, the U.S.’s rationale is this:

“Because your ancestors were not Christians, and were looked upon by our ancestors as ‘infidels, heathens, and savages,’ we, as the government of the United States, which prevails over you to this day as ‘wards’ of the government, have the right to unilaterally declare, without your consent, your traditional Apache Nation territory to be a ‘U.S. national forest’ and to hand it over to a foreign global mining corporation.”

As Chief Justice John Marshall put it for the Supreme Court in the Johnson ruling: “They [the Christian nations of Europe] asserted the ultimate dominion to be in themselves, and claimed and exercised as a consequence of that ultimate dominion, a power to grant the soil while yet in the possession of the natives,”….”natives, who were heathens.” Such a power to grant “the soil” includes the minerals in the soil, such as copper. This is in keeping with what the U.S. Supreme Court said in United States v. Kagama in 1886: “These Indian tribes are wards of the nation [of the United States]” as a result of the U.S.’s claim of political power over the vast geographical area claimed by the United States.

This fiasco regarding the Apache Nation’s territory is a perfect demonstration of what I have been saying about the UN high level outcome document and the UN Declaration on the Rights of Indigenous Peoples not providing the basis for reforming the conceptual system of domination that constitutes U.S. federal Indian law and policy. This is because the United States government refuses to treat those documents as a basis for such reform.

Domination is one nation or people being forced to live subject to the arbitrary will, or control, of another. The land swap in Arizona illustrates perfectly the political relationship of domination that the United States has with originally and still rightfully free and independent Indian nations. In this case, Rio Tinto gets the mine on sacred Apache lands and the Apache Nation, once again, gets the shaft.

Steven Newcomb (Shawnee, Lenape) is co-founder and co-director of the Indigenous Law Institute and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008). He has been studying federal Indian law and international law since the early 1980s.