Laws of the Land

“The Mining Law of 1872,” reported California Democrat Alan Lowenthal in May 2019, “is one of the most obsolete laws still on the books.” At a hearing before the House Subcommittee on Energy and Mineral Resources, Lowenthal was rehearsing a longstanding critique of antiquation against hard rock mineral legislation—a law to privatize federal mineral lands that has remained in place since the nineteenth century.

For decades, this statute has come under scrutiny, with Congressional hearings on its merits held under every President since George H. W. Bush. Two objections are raised consistently. The first is that, in contrast to developers in other extractive industries, hard rock mining corporations may purchase Western mineral lands from the federal government for the minuscule price of \$5.00 per acre, and are charged no royalties on the resources they extract. This nearly 150-year-old arrangement remains a major gift to multinational corporations: in 1994, the US Interior Department sold about 1,949 acres in Nevada to the Barrick Resources Corporation. The land contained 30 million ounces of gold, which was valued at \$380 per ounce. Sold for just under \$10,000, the land was worth billions. A small royalty commensurate to those of other extractive enterprises would by now have generated hundreds of millions of dollars for the public.

The second objection is related to the first: because these hard rock mining corporations pay no rents or royalties, the government has been left to pay for the lion’s share of the industry’s environmental consequences. Hard rock mining, like most extractive processes, has major impacts on local landscapes and especially on water supplies. Abandoned mines, which number in the hundreds of thousands in the West, continue to leach toxic wastewater into rivers and streams for decades after production ceases. According to the EPA, mining has polluted roughly 40 percent of all watersheds in the West, which will cost as much as 54 billion dollars to clean up. Furthermore, under the current law, the government has little power to stop a corporation from beginning a new mining project on federal land, even if it is in close proximity to natural, recreational, or Indigenous resources. Senator Ed Markey of Massachusetts, who led a reform effort in 2017 in the wake of a major wastewater spill, described the 1872 mining law as not only “outdated” but ultimately “outrageous.” “We need to ensure,” Markey held, “that these large mining companies pay their fair share to mine on public lands so that we have the revenue to protect public health and the environment by cleaning up the hundreds of thousands of dangerous, toxic abandoned mines in Western states.”

As told by pro-reform lawmakers, the history of the law recalls familiar myths of the nineteenth-century West. The 1872 Mining Law, according to Rep. Lowenthal, derived from “the Wild West, when Civil War veterans would head West and try to make their fortunes with a pick, a shovel, a donkey, and a dream.” Its purpose was above all to “encourage people to settle the West.” But Lowenthal concluded: “We are no longer in the mid-19th century. And as a Californian, let me assure you: the West is settled!”

It is true that western settlement was a chief concern when Congress passed the 1872 law. But the policy was also crafted to appease industrial capitalists—not just the lone settler—and to encourage them to invest in mineral extraction. In other words, the law continues to operate as it was always intended to: it maximizes profits for capital owners at the expense of the working class and Native nations, and perpetuates exploitative property relations.

We tend to think of the United States as a nation founded on the rights of property. To be sure, for most of the nineteenth century, federal land policy followed the overarching logic of privatization, with the aim of, as Tristan Ahtone and Robert Lee recently wrote, transforming “Indigenous territory into settler property.” But there were variations within this tendency, among them the government’s relationship to mineral lands. At the nation’s founding, gold, silver, lead, and other metals—used commonly as a means of exchange (money) and to produce weapons—were considered too politically important to leave to private forces, or as Alexander Hamilton once put it, to “the casual speculations of individual adventure.” Instead of transforming mineral lands into private property, the government retained control and experimented with different kinds of property relations, issuing leases and charging royalties for metal extraction. When federal authorities did begin to privatize mines found on the “public domain”—the land seized from Native nations and held by the federal government—they did so in a patchwork way, often on a case-by-case basis, without establishing any federal mechanism to privatize mineral land.

A different process unfolded after 1848, when the U.S. incorporated a massive territory from Mexico. There was still no general policy to purchase mineral land from the federal government, but mining on the public domain soared in the 1850s, as miners rushed first to California’s gold fields and then to other sites in the West. Western miners, whose activity was in large part illegal, became a driving force in U.S. colonialism and global capital accumulation. And despite growing pressure, Congress failed to pass legislation that would allow these miners to purchase mineral lands from the government. While there was support for such legislation, national economic policymaking was too heavily steered by southern slaveholders, who were most concerned with expanding slavery to western territories. Other economic issues took a backseat at the national level.

In the absence of federal policy, miners produced their own vernacular legal codes to structure property rights in mineral extraction. Hundreds of these local rulebooks appeared across the mining West, tending to privilege small, local producers over outside financiers. Their goal was to protect miners—including in their colonial violence—from capitalists and speculators, who might accumulate more property than one party could reasonably mine and drive out cash-poor producers.

These local codes frustrated capitalists seeking to invest from afar, especially as the western industry incorporated more capital-intensive forms of extraction. Whereas most small gold miners extracted metals near the ground’s surface, their methods were less suited to mine deeply embedded ore from underground rock formations. This shift to industrial mining accelerated in the 1860s and 1870s, more quickly in some places than others. It was rapid in Nevada, which held some of the nation’s first major silver mines. Nevada experienced an intense mining rush beginning on the eve of the Civil War, and was dominated by large corporations and outside investors within a few years. Few and far between was the self-employed miner in Nevada, carrying only, as Lowenthal put it, “a pick, a shovel, a donkey, and a dream.” Instead, mining corporations employed hundreds of mine workers, who earned four dollars a day to extract silver. Class conflict escalated quickly around Nevada’s silver mines, with workers going on strike after a wage cut in 1864.

The changing landscape of mining pitted wage-earning workers against bosses, as well as local prospectors against outside investors and capitalists against each other. Frustrated by these disruptive conflicts, capitalists grew increasingly critical of local property codes and the people who crafted them. The variability and imprecision of rules came under fire. So too did the property rights granted to on-the-ground prospectors, who were generally first to claim a mine but who often lacked the capital to extract ore. Most significantly, the definition of underground property was itself deeply contested in Nevada’s silver camps, leading to enormous conflict among competing parties. While well-financed companies bought out smaller competitors, they faced one another in multi-million-dollar lawsuits. The most consequential of these disputed whether Nevada’s Comstock Lode was composed of a singular ore body or several parallel ledges and, by extension, how many parties could lay claim to its wealth. As mining corporations solicited scientists to argue on their behalf, they wagered that the social question—the distribution of property and wealth—should hinge on the geological question. In 1864, a referee for the Territorial court decided that the Comstock was indeed composed of a single ledge, reversing the court’s earlier ruling and lending legal force to the corporate consolidation of property.

The industrial transformation of mining was therefore well underway by the time a newly recomposed Congress revisited mineral land legislation during the Civil War. Of the policies debated, all operated under the assumption that Native polities held no territorial claims to mineral lands. They also, to greater or lesser degrees, aimed to generate federal revenues from western mines, which were now producing millions in unregulated wealth. At one end of the spectrum was a proposal to fund the government’s growing wartime budget with the value generated from mines (this was the most state-centric idea but also stemmed from opposition to a national wartime tax). Another bill aimed to charge a special rent or royalty to extract western minerals from federal lands. A third set of proposals favored privatization but in a highly regulated manner: they would empower the federal government to conduct comprehensive surveys of all underground resources in order to determine their value and sell them off (either at public auction or for \$50 per acre). These proposals also restricted how many acres one person or corporation could mine at once, a provision that would prove disruptive to emergent monopolies. In this moment, in other words, Congress considered alternative systems of property relations that would have privileged public revenues over private profits and decentralized wealth over corporate consolidation.

The legislation that ultimately passed—including the law still on the books today—looked nothing like these wartime proposals. Instead, Congress was swayed by the vocal opposition of western miners, and especially by a newly elected Senator from Nevada, which became a state in 1864. Among the wealthiest members of Congress, Senator William M. Stewart cut his teeth as an attorney for mining corporations, helping to concentrate mineral property into fewer corporate hands as one of the advocates of the “single-ledge” theory in Nevada’s Comstock district. When he arrived in Washington, Stewart brought these experiences with him, even as he championed the figure of the small, poor western miner.

Supported by an emergent western political bloc, Stewart persuaded Congress to ratify a “free mining” system. In a series of three laws passed between 1866 and 1872, Congress preserved the right to stake mineral claims on public land, while it allowed miners to privatize mineral land with very little federal oversight and for a much, much lower price than was initially proposed. Such a system was purported to benefit miners of all classes, and indeed, it protected small producers in their efforts to discover new mines and advance colonial processes. But it did little to prevent large mining corporations from accumulating monopolies and enormous unregulated surpluses. In fact, it actively encouraged the concentration of property. It placed no limits on the number of mineral patents one party could purchase; it made the privatization process cheap enough to appease investors but onerous enough to squeeze cash-poor prospectors; it denied the government’s power to reclaim unworked mines after they were privatized; and it granted exclusive underground rights (known as extralateral rights) to whoever claimed an ore body’s most shallow point, known as its “apex.” This allowed a single party—whoever held the apex—to follow a lode mine’s underground “dips and spurs” and to dispossess other claimholders along the way. In this way the apex rule prioritized corporate investment, for as one leading engineer observed, capitalists were encouraged “in the knowledge that the valuable mineral deposit may be followed indefinitely in depth.” Given the difficulties of locating and determining a mine’s apex, the rule also encouraged million-dollar lawsuits of the sort that broke out in Nevada. As a result, while cash-strapped miners and prospectors remained an important social force in colonial dispossession (and central figures in its justification), they shared less and less in the mining industry’s growing wealth.

The late nineteenth century was an era in which capital accumulation increasingly guided federal policymaking, yielding a large and growing class of landless wage workers. As private property became codified, the wandering miner became the exception, and mine workers entered the ranks of the proletariat: dependent on property owners, governed by the imperative to work for wages. At the same time, mine owners grew dependent on this class of workers, without whom extraction was impossible. In this new relationship, mine workers held unique power to withdraw their labor and bring the system to a halt.

It was this organization of property, industrial corporations, and wage work that shaped the politics of mine workers’ unions, which formed a militant segment of the labor movement in the late-nineteenth century and throughout the twentieth. Through their organizing, mine unions gained substantial victories on the job, forcing mining corporations to share some wealth with the workers who produced it.

But fundamental questions about the organization of property and resources grew more marginal as the labor movement began to mature. For the most part, those questions remained the focus of Native anti-colonial politics, which continued to expose the links between privatization and resource extraction, systematic dispossession, and ecological change. (There were of course exceptions: western mine workers at times engaged in struggles to redraw lines between private property and public resources. In the early twentieth century, for example, mine workers and their households in southern Arizona forced mining corporations to stop profiting off of the water they monopolized.) Yet a separation nevertheless hardened between workplace struggles over the conditions of work on the one hand and broader struggles over the structure of property relations on the other.

This separation remains embedded in the labor movement today. Take for example a recent copper workers’ strike in Arizona and Texas, which began in October 2019 and is ongoing as of June 2020. Some 2000 employees of Asarco, a Tucson-based copper corporation, have gone out on strike after seeing no pay raise for ten years, their health benefits cut, and new exclusions to the company’s pension plan, which creates divisions between newly hired and veteran workers. What’s more, the Supreme Court recently ruled that Asarco owed its employees \$10 million in unpaid bonuses from 2011. The beginning of this squeeze on pay and benefits coincided with Asarco’s historic environmental bankruptcy case: in 2009, after years of legal battles, Asarco agreed to pay a \$1.79 billion settlement (negotiated down from \$3.6 billion) to help clean up polluted water and soil across nineteen states.

During their current strike, Asarco employees have continued to shine a light on the company’s environmental abuses as part of an ongoing pressure campaign. In one case a union local reported Asarco to federal authorities for posing health and environmental risks while scabs attempted to run the facilities on their own. But ultimately, this strike is about deteriorating pay and benefits at the level of the firm, and not environmental justice. Should Asarco make an offer amenable to the union, the strike will come to a close. Waged dependence on property owners thus reproduces structural divisions between mine workers struggling for a raise and local political forces like the Tohono O’odham, a Native nation in southern and central Arizona, which has struggled for years against mineral privatization, environmental degradation, and the colonial foundations of the mining industry.

Overcoming these contradictions requires addressing their material foundations. Struggles for a just transition away from extractive work contain the potential to ease workers’ dependence on industries that pollute water sources, reproduce colonial inequalities, and burden current and future generations with enormous costs. There is no shortage of socially necessary labor to clean up abandoned mines, as Edward Manuel, Chairman of the Tohono O’odham Nation, noted in a recent Congressional hearing. But as Green New Deal and Red Deal advocates have insisted, building enough power to prioritize clean-up over extraction and public resources over private profits—and thus to counter billion-dollar mining corporations—will require more than the occasional hearing.