• DST

    I’m not sure what your point about eminent domain is. You recognize that the land used for construction is owned by the federal government, yes? You point out the the feds probably shouldn’t own the land, and that’s fine, but it doesn’t seem relevant to the issue at hand, as that question seems to already have been resolved legally. If the feds own the land, then the pipeline owner need bargain only with the government. The Lakota have no property rights to be violated.

    Any mention about “sacred sites” is a red herring. How much subjective value the Lakota place on the land is irrelevant if they’re unwilling to put a number on it and lease or buy it from the feds. You seem to be trying to shove unrelated issues together to have “something to say.”

    • Sean II

      “Any mention about “sacred sites” is a red herring…”

      This is a big problem with animistic religion: everything’s a scared site. Oh sure, some sites are more sacred than others, but it doesn’t take an expert in pre-Colombian belief systems to notice the two factors which most reliably increase the sacredness of a given plot:

      1) Economic value
      2) Media attention

      If nothing else, this proves the shamans of 500 years ago had remarkable prescience. Not only did they tend to anoint ground rich in resources which hadn’t even been discovered yet, they somehow knew that Shailene Woodley would need a way to keep her name in the news after the disappointing 3rd installment of her Divergent franchise.

      It makes me cry, to reflect on all we’ve lost to ignore such ancient ways of knowing.

      • Puppet’s Puppet

        It seems to me that this particular article might actually understate the Standing Rock Sioux’s case, rather than overstating it as many pieces do.

        This is not really a matter of “property rights”; it’s a matter of nation-to-nation relations. Policy should be determined by a close, disinterested reading of the treaty language and related precedents, period. If this pipeline would indeed violate the treaty we should not be superseding it for any appeal to the greater good of the American public at large. (And, as the article points out, even if it were a matter of property rights, this is not how we should be treating any holder of actual deed, rights, easements, etc. to the land in question, even if it were Donald Trump himself. The pipeline is private.) In short, we should pay the SRS what they demand, build it elsewhere, or yes, worst come to worst keep moving the stuff in on surface rail. This is not an existential issue for the American Republic.

        On the other hand, if the SRS indeed have no right to the land in question, we should have utterly no regard for some sort of nebulous “moral right,” buttressed by emotional appeals, that they may claim over it. My impression is that there are established controlling legal principles regarding off-rez matters like hunting rights, off-rez burial grounds, remains, sacred sites, etc.; as well as standard international legal principles regarding acquifers, etc. Again, we should go on a close reading of these; it is what is supposed to govern relations between our nations. We should not shut down debate over every conceivable Indian issue as soon as they invoke “sacredness.” I don’t blame them for playing that card, because this is politics and you do what works, but that doesn’t make it not bullshit. I would not buy a Southern Baptist asking me not to wear eagle feathers in my hair because they are “sacred to his people,” so I sure as hell wouldn’t let this matter slide. If they have no legitimate claim, we should treat a pipeline built along their border just as we’d treat one built along the Canadian border–no more, no less. Market-rate fossil fuels are a human rights issue.

        As you can tell, I don’t know very much about the details. I haven’t been making that much of an effort to follow closely, but it certainly speaks poorly of the press (and possibly of the case for the protesters) that hard information about the SRS’s case is not the most accessible topic of discussion. This is the first I’ve heard, for example, of any claim that the SRS might have based on the text of an earlier treaty. For this alone, I’d say this piece is worthy of praise overall.

        • Sean II

          “Policy should be determined by a close, disinterested reading of the treaty language and related precedents, period…we should not be superseding it for any appeal to the greater good of the American public at large.”

          This is a very easy argument to defeat. For example:

          What if some Sioux chief back in the day built in some crazy clause banning “the presence of any non-shamaniacal physician or medicines” and forbidding the traverse of his territory by “flying machines, artificial moons, and mechanical whispers” with the latter being interpreted to include cell phone signals, radio communications, etc.

          Clearly, only a maniac would say “oh well, the treaty says what it says, and we must abide it…even though that means lots of dead Indian kids, and having to create a technological dead zone across large swaths of the U.S. and Canada…all for the sake of some ridiculous superstition.”

          No, bullshit. There are obvious cases where legal principles should be set aside because, in a given application, they hurt many and help none.

          This is one of those cases. Fossil fuel energy makes life better. Dirt worship does not. And even many strict libertarians would agree that perpetual failure to improve land ought to result in its forfeiture.

          • King Goat

            Are you running for New London City Council?

          • Puppet’s Puppet

            Heh heh. Yeah, that “perpetual failure to improve land ought to result in its forfeiture” certainly freaked me the hell out. I would certainly like to meet some of the “strict libertarians” who believe that.

          • Sean II

            Locke, Rothbard, Rand, etc. It’s not exactly a short list.

          • Puppet’s Puppet

            That is homesteading. That does not have remote applicability to this.

          • Sean II

            Of course it does. If someone stakes a claim on a pile of rocks, and says “this is mine”…but then fails to improve it beyond some nonsense about how spirits live there, then guess what: he doesn’t own it. Because he never mixed his labor with the land to produce any appreciable result.

            About as basic as it gets for homesteading theory.

          • Ron H.

            What would someone have to do to convince you (assuming convincing you was necessary) that they had “improved” the land?

            Does your notion of what an “improvement” includes arbitrarily supersede that of someone who has previously claimed the land for their own use for some purpose you may not understand and may not recognize as an “improvement?

            Your argument seems to be that land not recognized by you as having been improved, despite the assertions of another person, is up for grabs.

            How would you treat justly acquired land intended as a nature preserve by the owner(s)?

          • Sean II

            “What would someone have to do to convince you (assuming convincing you was necessary) that they had “improved” the land?”

            I was thinking water park.

          • Ron H.

            Well, of course. That would be my first choice too, but not everyone thinks like we do. Does our judgement take precedent?

            I suppose it does because we have the most guns.

            So much for truth, justice, and the American Way.

          • King Goat

            You consider Locke and Rand to be ‘strict libertarians?’

          • Puppet’s Puppet

            What if some Sioux chief back in the day built in some crazy clause banning…

            What is some crazy British monarch did the same thing? Would we say, sorry Canada, this insane treaty that we freely agreed to now unexpectedly inconveniences us, so you can shove it? Hell no, we’d have to suck it up and negotiate.

            Now, push come to shove would we break the treaty? If we faced an existential threat or anything close to it, most probably! But not if it’s a matter of having to rail oil in–vastly inferior as that is in every possible way–instead of piping it. That is not remotely enough cause to be invading another nation’s sovereignty. (To say nothing of considering the matter of invading because we have determined that Canada is not “improving” its own land to our satisfaction.) The very nature of treaty–certainly, the U.S.’s reputation for abiding by them–is at stake. I’d say that’s a pretty weighty matter, if we are to put it only in those terms, concerning who gets “helped” and “hurt.” Being consequentialists does not require us to be shortsighted; that is rather more a slur on consequentialism.

            As for the dead Indian babies you have imported into the picture (and the issue of harm to the SRS themselves in general): The SRS are now a democratic, liberal, constitutional, republican government elected by and sworn to protect their own people. Like any other nation, they can and do waive provisions of their treaties that they regard to be no longer in their interest. You present your example as assuming a “crazy chief back in the day,” but it actually rests on the assumption of a far crazier present-day SRS nation. Were that the case, were the SRS actually sacrificing their own babies to their insanity, the U.S. government would indeed have more of a right to intervene than they would over an independent country like Canada; it does have some authority over and responsibility for the SRS nation. But that is not the case in reality. In reality we are talking about–at worst–having to keep transporting oil by rail as we do now. You have taken a fictitiously prescient and insane SRS chief and an unnecessarily gullible U.S. government, imposed a particular legal reading that no actual jurist would adopt, and further hypothesized a mythically self-destructive present-day SRS nation. All this would be perfectly fine if I had claimed that utterly nothing could even in principle supersede the mandate to respect treaties. But I did not. I said that this case must be decided by scrupulous adherence to treaty. Breaking treaties is a very serious matter indeed, and while I am second to no man in my passion for energy abundance, this does not remotely rise to the occasion.

            I suspect that you do not, in fact, respect U.S.-SRS relations as being legitimately and fundamentally nation-to-nation in even a debased way. If that is the case, then that is the leg you should attack.

          • Sean II

            Well of course I don’t regard the Standing Rock Sioux as a real nation. No one does. Not in anything like the same sense that Canada or the U.S. or Mexico is regarded as a nation.

            It’s not a question of size either. Lichtenstein is legit, so too Singapore and however many other micro-states.

            The issue here is “failure to thrive”.

            Also no need to “hypothesize a mythically self-destructive present-day” SRS people. All such holdouts to modernity ARE self-destructive. Christ, have you seen the social stats on reservation dwellers? Federal prison is a better place to live.

            And therefore yes, let’s cut right to the heart of the matter:

            Most people imagine they can discuss this issue without pointing out the awkward fact that the Sioux are wrong about the relative merits of sacred dirt vs, fossil fuel. Sacred dirt is worth nothing, fossil fuel energy is worth a lot. This being just one important consequence of the more important fact that science works and superstition doesn’t…that civilization is awesome while life as a hunter-gather totally sucks.

            In a similar way, most people think they can “fight” Islamic extremism without pointing out the awkward fact that Allah doesn’t exist. They’re wrong too. The most important reason not to engage in suicide terror is: “the guy you’re trying to impress with that isn’t real”.

            Likewise, the most important reason not to get all worked up about a tube running across your little piece of frozen steppe is: “the spirits you’re afraid of disturbing don’t exist”.

            Any approach to this problem which ignores that crucial fact is a bad one.

          • King Goat

            One also might think a woman’s sentimental attachment to a garish pink cottage shouldn’t stand in the way of development of an industrial park/shopping district.

          • Sean II

            Susette’s house might as well have been the Empire State Building, compared to anything standing in the way of the DAPL.

            Also pipelines usually work, while community redevelopment boondoggles almost never do.

            To sum the lesson: if Kelo was the textbook case for eminent domain critics, this is the textbook case for eminent domain defenders.

          • King Goat

            You’ve got it bass ackward, Kelo was the textbook or public face *because* she was an appealing economic underdog

          • Sean II

            Read that comment again. You’ve misunderstood.

          • King Goat

            Not at all. If your first paragraph had any content it was to argue that Kelo had some more much weight on her side of your utilitarian ledger. But her entire appeal was that it was the opposite. She was a more attractive fat guy waiting on what was a runaway trolley. It was about rights vs that calculus, not adebate over the economics of the taking in question.

          • Puppet’s Puppet

            Alright, now we are getting somewhere!

            You are proceeding from all sorts of premises that neither I nor informed authorities (two very disjoint groups!) remotely accept.

            First of all, both American and international law have always considered (even while screwing them over) considered relations with Indian tribes to be nation-to-nation. Since Versailles the trend has been sharply towards most of these relations being between nation-states of equal dignity and absolute independence, but this was not always the case. And even today, sovereignty still retains some relativism and nuance. The U.K.’s relationship with the Isle of Man is not the same as the U.S.’s with Micronesia, which is not the same as the U.S.’s with the U.K. And no theorist I have ever heard of has made “thriving” the relevant standard of nationhood.

            The U.S. signed treaties with the Indian nations, and considers itself legally bound to those treaties. This is not something I made up; it is the law of the land in this country. Try buying up a plot of land as big as ten SRS reservations, amass upon it a thousand times their collective wealth, and see whether you can get the Federal government to sign a treaty with you.

            You appear to have some sort of fixation with theism in general, and with the religious practices of the Sioux in particular. Few would accept any of your premises. Most people who are not theists have other bases for their moral beliefs, and thus would site those as the bases for why an action like murder-suicide would be wrong (if it is possible to explain in the first place). They would be the last people to describe disagreements over theological matters as “the most important reason” not to commit such acts; they would instead cite their moral beliefs. This is to say nothing of the empirical claim that it is a fool’s errand to think there can be any progress against Islamicist terrorism without convincing Muslims of the correctness of atheism. I don’t even know what to say about that one.

            More to the point, yes indeed, “most people think they can discuss the problems” of American Indians without addressing “the crucial fact” that American Indian poverty is caused by the nature of their religious beliefs. I have never heard such a claim made in my entire life. Most people would regard it as utterly preposterous. If you know something others don’t, I am sure they would love to hear it. For now, I will just point out that it has little to do with the actual situation at hand. The SRS’s behavior is completely consistent with considering the sacredness thing to be utter bullshit. (Many SRS undoubtedly do; as my previous comment suggested, the SRS like most tribes have been a multiconfessional nation for years. Many of the spokesmen uttering the stuff about sacredness are probably Lutherans.) They are not vetoing a pipeline that will be pumping free energy into their reservation; they are vetoing a pipeline that runs by their reservation into places far away owned by a company that has nothing to do with them. The benefits are diffuse among the general population. Maybe you are right that the U.S. should ED their claim, but this has nothing to do with the idea that they are being stupid. If I were the SRS President, I might want to play hardball with the U.S. to get a better deal, or just want to protect the holy sites of those of my citizens whose religious beliefs happened to differ from mine. Neither one seems particularly stupid.

            Again, I think you are for some reason so committed to the idea of Indians as a people whose ignorant, primitive beliefs are responsible for their misery and to your vision of religion as a stupid, malevolent force in general that it has overtaken all connection to actual reality. You really don’t seem to have put much of anything into learning about actual Indians.

          • Sean II

            “You are proceeding from all sorts of premises that neither I nor informed authorities (two very disjoint groups!) remotely accept.”

            True. I was hoping we could use reality instead.

          • Puppet’s Puppet

            Looking back I could have been nicer. I apologize.

          • Sean II

            No, not at all. I have no complaints about you apart from an inexplicable failure to agree with me.

            But you certainly don’t lack for niceness, and indeed by all relevant standards you are a fine conversation partner.

          • King Goat

            The anarchist is odd to invoke , because. He would of course see your government issued deed to your current abode equivalent to how you see the treaty. So you really do seem like a a prospective mayor of New London, just with a different ED plan.

          • Puppet’s Puppet

            OK, I see what you’re saying. I guess the best I can ask is that, as an anarchist, you follow most of your fellow travelers in acknowledging that if there must be a state, “legality”–being ruled by principle and consistency and fairness–is prima facie very important indeed. It’s hardly the only desideratum, but state power must not be exercised arbitarily or unfairly. It’s an old core principle of liberalism; and surely you must think a liberal government is better than an illiberal one! I don’t think it’s a good idea for the anarchist to throw up his hands and say, “It’s all statist bullshit anyway.” This attitude has led you to say: (1) The United States government should not abide by its treaties; (2) the United States government should not feel constrained by its own laws; (3) the United States government should embrace the draconian and totalitarian powers improperly given to it by Kelo, which makes no hint of a distinction between land and improvements, and wield it on this occasion to take land from some poor, repeatedly screwed-over Indian tribe and give it to some energy company in the name of some sort of fictitious homesteading principle that, rightly or wrongly, has no actual historical basis in American political culture (we have some homesteading “apparatus” but not nearly enough) without doing a thing to establish this radically new property philosophy in American law. A deviation from the rule of law, despite its prima facie evil, might be appealing if it were against some oppressive law on behalf of greater liberty, but this is not remotely the case here. The “public good” of cheaper oil is selling the rule of law far too cheap.

            State power constrained by law is prima facie better than state power exercised unfairly or arbitrarily. I can see how an anarchist might consider it a bit silly to make a big deal about what is written on scraps of paper. But the fact is that that is how the real world is governed, and there does not seem to be much un-“grown-up” about caring about that. When the scraps of paper have social importance to men with guns, they are a very serious matter to be concerned with indeed.

          • Sean II

            “…as an anarchist, you follow most of your fellow travelers in acknowledging that if there must be a state, “legality”–being ruled by principle and consistency and fairness–is prima facie very important indeed.”

            Absolutely not!

            If there must be a state, the only thing that matters is harm reduction – i.e. trying to make sure that state doesn’t destroy or impoverish humanity by halting the progress of science, industry, culture, etc.

            I don’t care a wit (whit?) about the law, nor about the alleged virtues of principle (i.e a priori thinking) and consistency (i.e. stubbornness) in it.

            The problem with legality is it ennobles the state, disguising the coercive nature of the enterprise behind a veneer of lacquered wood and Latin loan words. This is why you see the trappings of legality in even in Soviet and Nazi style regimes: because it disarms people, makes them feel helpless and small, makes it harder to call the spade a spade, even when it stands naked in the hand of your gravedigger.

            Just look how well legality has worked to stupefy and confuse the people we call conservatives or right-libertarians. Those goofballs have been tricked into looking forever backwards – toward “a return to constitutional limited government”, he said unable to stop himself laughing – meanwhile progressives turn the ratchet for a more statist future, invoking the law when it suits, brazenly ignoring it anytime it doesn’t, but using the cover of legality to screen every turn.

            But maybe I’m being unfair. So be sure to come wake me just as soon as those constitutionalists actually win one. Maybe they’ll resurrect the 10th Amendment, or succeed in getting legislative power limited to the actual legislature, at long last. Except for the hilarious implausibility, I can just about picture it.
            __________________________________________
            ETA: you summarize my views incorrectly. Here’s what my attitude really leads me to believe, changes in bold:

            1) The United States government should not feel an obligation to abide by its treaties…when those treaties are not with real sovereign nations, or when the provision being enforced has nothing to do with anyone’s interest.

            (2) the United States government should not feel already isn’t, for anyone paying attention constrained by its own laws…and the more we refuse to pretend it is, the better off we all are.

            (3) This point was simply wrong. I’m against the Kelo taking, and have no idea how you came to think otherwise.

          • King Goat

            You really don’t see any contradiction between “If there must be a state, the only thing that matters is harm reduction” and “I don’t care a wit (whit?) about the law, nor about the alleged virtues of principle (i.e a priori thinking) and consistency (i.e. stubbornness) in it,” do you?

            Because there’s no difference between our government and rule by a Somali warlord and his crew I guess.

    • “You recognize that the land used for construction is owned by the federal government, yes?”

      Perhaps some of it. Nowhere near all of it. A number of land thef … er, “eminent domain” cases are in court in Iowa over the pipeline.

      • DST

        Sure, eminent domain abuse is a problem, but that’s not what we’re talking about here. We’re talking about the small stretch of land near the Standing Rock reservation, which is already owned (rightly or wrongly) by the federal government.

        • Maybe YOU are talking about the small stretch of land near the Standing Rock reservation.

          I’M talking about a project which, from the start, has been openly reliant on using the government to steal land.

          There’s no need to reach the issue of the reservation or the treaty. If your project is based on stealing land, your choices should be to 1) drop the project or 2) get shot.

          • DST

            Thomas, what’s your favorite type of pasta? I only ask because it seems you want to talk about things other than the topic at hand.

          • The topic at hand is the Dakota Access Pipeline.

            You prefer to focus on one sub-topic. Feel free to do so — just as I will.

          • Sean II

            Right, like he would ever sell his soul to the blood-drenched machinery of Big Semolina by having a favorite pasta.

          • My preferences are pretty plebeian — I’d have to flip a coin between spaghetti and lasagna.

    • King Goat

      DST, I think his argument is that the Feds claim to ownership may very well be unjust (in violation of property rights due to breach of the treaty). Also, the fact that the government owns the land, and is making the entire project possible via eminent domain (albeit elsewhere) throws the possibility of markets deciding this matter efficiently out of whack.

      • DST

        I’m still failing to see the connection between the possible ED abuse elsewhere and the ownership of the small strip of federal land. I do understand that if the federal land were instead in private hands, then the owner of the land, absent ED, might be able to extract a very high price for the easement or lease of the land, particularly if the intended route necessitates passage through that land. And if the owner of the land held it sacred, they might be tempted only by such a high price. Thus, markets would be working properly, at least in my opinion.

        But all of that seems moot, since the land is clearly owned by the feds. I say this as someone who thinks that the feds should own very little land in general, and who also thinks they probably shouldn’t own this bit of land in particular. But the question of ownership of that land is very different from the use of ED elsewhere. An argument about the perils of ED would be fine on its own, and an argument about the wrongness of the federal ownership of the this land would be fine on its own. But Munger seems to want to cram two half arguments together.

        This just seems like a fudge on Munger’s part. And I don’t think that’s atypical. his articles here, and his appearances on EconTalk indicate fuzzy thinking.

        • Puppet’s Puppet

          The ED issue is going to be a nonissue to everyone but Donald Trump and Democrat-appointed judges, so everyone–and certainly everyone here and at Learn Liberty–should be focusing on the issue of whether the government does indeed own the land in question. If it’s going to turn on the historical details of the Ft. Laramie Treaty then that is what we should be exploring. I’d say Munger is already head and shoulders above any journalist I’ve seen (not to mention the SRS leadership–they complain now about all the insufferable white virtue-signalers treating their protest site like Woodstock, when they have been doing everything this whole time to appeal to such people!). Not that that’s saying much.

        • King Goat

          1. If not for the ED elsewhere the value of that land in dispute would be different (because a pipeline becomes worth a lot less if it’s not throughout).

          2. That land may be as clearly owned by the Feds as Susan Kelo’s former property became owned by Pfizer. See?

          • DST

            1. If not for ED, any number of scenarios are possible, but the existence of hypotheticals is not a sign that markets aren’t working.

            2. Whether Kelo could block the sale of her house was an ED issue. Whether the Feds unjustly violated the 19th century treaty to retain the land in this case is not an ED issue. That Munger wants to link the two as examples of unjust takings is fine. I just don’t see how it helps the analysis of either individually. In fact, it seems to cloud the issue at hand.

            All I’m saying is that ED plays no role in the consideration of what’s going on at Standing Rock, nor should it.

          • Sean II

            “All I’m saying is that ED plays no role in the consideration of what’s going on at Standing Rock, nor should it.”

            The underlying issue is similar: can a promise made to one party – be it a treaty or a title deed – be broken for the sake of another promise, made to many others?

            And if so what kind of calculus must be used to weigh the consequences?

          • DST

            I’m still not seeing it. In the case of a treaty, the government is a party. In the case of a title deed, the government is usually not a party. The government breaking it’s own promise given in a treaty has little in common with it interfering with a valid land transfer between two private parties.

            I’m not saying the larger questions you raise aren’t interesting, but the two situations are too different to be effective analogies for each other.

          • Sean II

            Well, I guess I never really bought the idea that the government wasn’t a party to my property ownership.

            They keep sending me letters, I keep sending them checks. They keep forcing me to buy their protection, I keep doing it.

            It certainly feels like they’re involved.

          • DST

            Yeah, I hear you. But the state qua self-declared judge is different than the state qua plaintiff/defendant. The duties are different depending on which role the state takes, as are the remedies when it (inevitably) misbehaves. I think that distinction holds not just on a legal level, but on a deeper, philosophical one as well.

            You can clearly argue that the state has difficulty separating those roles sufficiently – I always laugh a little when I see a government-appointed prosecutor arguing against a government-appointed public defender before a government-appointed judge. But I think that, analytically, these are clearly different roles, and ignoring that completely leads to sloppy thinking.

          • King Goat

            I think his idea is that ideally the treaty would be honored and the pipeline folks would have to bargain with the Sioux, and if not for the use of ED at other links in the pipeline this particular link’s value would be very different. Government got involved at the beginning of the crack of the whip and its market distorting effects travel all the way down to the last-pow that is this unfortunate stand off.

            My second point was a response to your ‘well, this has been legally decided so what’s the fuss?’ Kelo had been legally decided as well, yet moral furor followed. Quite rightly imo, courts get things wrong sometimes.

          • Puppet’s Puppet

            …its market distorting effects travel all the way down to the last-pow that is this unfortunate stand off.

            Don’t you mean…the last pow-wow?

  • SimpleMachine88

    Even if it was private land, this would be a far LESS expansive use of eminent domain than Kelo. Mandatory easements have a long and fairly well established history of being legal, and far better justification than the Kelo case.