Indianz.Com > News > Howard Center: Tribes in uphill battle against lithium mining
Tribes face an uphill battle to defend their sacred land against lithium mining
Monday, February 5, 2024
Howard Center for Investigative Journalism
OROVADA, Nevada — Myron Smart remembers stories told by his father and other tribal elders about the connection between Thacker Pass in Nevada, where a new lithium mine is under construction, and a tragic moment for the Fort McDermitt Paiute and Shoshone.
In Northern Nevada near the Oregon border, Thacker Pass was traditionally used by Smart’s ancestors to camp, hunt and gather, collect obsidian and medicine, and perform ceremonies. On September 12, 1865, the 1st Nevada Cavalry raided a campsite and slaughtered at least 31 Paiutes.
“The cowboys came to kill everybody – woman, children, all the elders,” Smart said last September to a group gathered at Thacker Pass on the anniversary of the massacre. The deadly encounter was an episode in the Snake Wars, one of many skirmishes with Native Americans in the 19th century West, as white settlers came looking to mine for gold.
Now, Smart said, a new kind of mining threatens to wipe out culturally important sites related to the massacre, harming the tribes yet again. Lithium Nevada Corporation, a subsidiary of Canada-based Lithium Americas, will blast through rock and dirt in the area as the company builds a massive, open-pit lithium mine. The federal Bureau of Land Management issued a Record of Decision to greenlight the mine in January 2021. All court challenges to the decision have failed.
The process of greenlighting Thacker Pass
Federal records show that BLM attempted to consult with three tribes – Fort McDermitt Paiute and Shoshone Tribe, Summit Lake Paiute Tribe, and Winnemucca Indian Colony – all with reservations in the same county as the Thacker Pass mine. BLM said that these tribes were invited to consult “due to their proximity to the project area.”
None responded the following year, and in January 2021, BLM’s Winnemucca District Office issued its Record of Decision greenlighting Lithium Nevada to mine for lithium at Thacker Pass.
Randi Lone Eagle, chairwoman of Summit Lake, said in an email to the Howard Center that she has no record of receiving BLM’s tribal consultation invitation dated mid-December 2019, when tribal offices start to close for the holidays. A few weeks later, Lone Eagle said she came “under tremendous pressure to navigate the COVID-19 pandemic.”
“If government agencies are serious about fulfilling their trust responsibilities,” Lone Eagle wrote in the email, “they will do more than simply send letters; they will call us directly and visit us to speak face-to-face.”
“Sending a letter to a tribe and receiving no response does not constitute sufficient effort to initiate tribal consultation. And so that’s all they did,” said Eben, the tribal preservation officer for Reno Sparks Indian Colony. The federally recognized tribe in Washoe County has just over 1,100 members of Paiute, Shoshone and Washoe ancestry.
“Just because regional tribes have been isolated and forced on to [sic] reservations relatively far away from Thacker Pass does not mean these regional tribes do not possess cultural connections to the Pass,” said Eben of Reno Sparks.
She contended that BLM should have invited tribal consultation for Thacker Pass with all of the Paiute and Shoshone tribes, before issuing the mine’s permits. That includes Reno Sparks.
“They should have consulted with the Reno Sparks Indian Colony because we have members that descend from Paiute and Shoshone.”
Eben wrote a letter to BLM in June 2021 that identified a dozen tribes that have “powerful historical connections to Thacker Pass,” where “some of our ancestors were massacred.”
“The American government was engaged in a campaign to massacre us,” she said in an interview with the Howard Center. “They were sanctioned to massacre us over here because they saw this land and all the minerals that were here.”
She likened opening a mine here to “disturbing Pearl Harbor or Arlington National Cemetery,” noting U.S. memorials to lost soldiers are venerated by the public and not subject to desecration.
Problems with tribal consultation
BLM issued its Record of Decision to approve Thacker Pass on January 15, 2021, in the last days of the Trump administration.
Eleven days later, Joe Biden, the newly elected president, issued a memorandum highlighting the importance of federal agencies engaging in meaningful consultation with tribes on projects that impact their communities.
The president issued a follow-up memorandum in November 2022, announcing his desire to develop a uniform process for federal agencies to follow for consultation with tribes. That process would require federal agencies to “strive for consensus with Tribes or a mutually desired outcome. Consultation should generally include both Federal and Tribal officials with decision-making authority regarding the proposed policy that has Tribal implications,” the memorandum said.
Yet Grussing, head of the National Association of Tribal Historic Preservation Officers (NATHPO), said she doesn’t think the administration is going to do anything different.
“They’re going on the record and they’re making an investment in various levels, prioritizing Indigenous knowledge in federal decision making and lots of things like that. But when the rubber meets the road, we’re not seeing it put into practice at places like Thacker Pass.”
Grussing said that one of the challenges is the lack of Indigenous knowledge and experience within federal agencies.
“There’s practically zero requirements or standards and even accountability,” Grussing said. Federal agencies retain full discretion over the content of their decisions and don’t need to meet a prescribed outcome, according to the National Historic Preservation Act.
NATHPO is a nonprofit membership association that advocates for protecting sites that perpetuate Native identity and culture. Its main advocacy priority is funding for tribal preservation officers, who serve as liaisons with federal agencies on the management of tribal historic properties.
Chairwoman Lone Eagle of the Summit Lake Paiute Tribe does double duty as the tribal preservation officer for her tribe.
“We get dozens of letters, by mail, from government agencies about proposed projects every month,” she said.
Reno Sparks’ tribal preservation officer, Michon Eben, echoed these concerns. “I’m getting projects from up all over and I’m one person. And so for me, I almost have to pick and choose,” she explained. “Tribes need help.”
She said she hopes that tribes can receive more federal funding to better tackle what is sent to them, “so that we are equipped and educated and have resources to help us to respond to all these letters.”
Grussing added that without more resources, tribal preservation officers will be unable to carry out their duties successfully.
Is Thacker Pass on sacred land?
One of the most contentious aspects of the Thacker Pass project has been the location of the 1865 massacre.
The BLM’s Record of Decision greenlighting the lithium mine at Thacker Pass did not mention the 1865 massacre. That omission, the tribes contend in their 2023 lawsuit, violates the National Historic Preservation Act, Federal Land Policy and Management Act, and National Environmental Protection Act.
But the Howard Center found at least two records from the BLM’s own archives that show the site of the massacre – a map and a hand-written field journal, both prepared in 1868 by U.S. Deputy Surveyor General Abel Abed Palmer – which depict that the massacre occurred at the mine’s site.
Palmer’s field notes describe finding the “remains of an extensive Indian camp,” which he explains was the site of the 1865 massacre. He also lists seeing “many Indian skulls and remains.”
He notes within the map and his field journal the camp’s location between two specific sections of land near the Trout Creek, a waterway that also runs through the Thacker Pass lithium project site.
Comparing the 1868 map created by the BLM and the map from Lithium Nevada’s Environmental Impact Statement, the Howard Center found that the massacre site appears to fall within BLM jurisdiction and within the area of potential area of effect.
BLM maintains that the massacre site is in fact on private land outside of their jurisdiction. In an email from the BLM Winnemucca office to the Howard Center in December, Spokesperson Heather O’Hanlon wrote that “the location of this site is on Private ground and not within the project footprint.”
Lithium Nevada also backed up this claim. “Ten times this issue has come up in front of a judicial system and 10 times it’s been dismissed,” said Tim Crowley, vice president of government and community affairs. Crowley said lawsuits and attempts to win an injunction by ranchers, tribes and environmental groups have all failed.
In an interview with the Howard Center, Eben from Reno Sparks disagreed that the massacre site only includes the Paiute camp location documented by Palmer. “That’s where it began,” she said about the massacre, but people were killed for miles outside of the campsite.
“Our people did not come out of their huts and just die right there. They ran – because it lasted for several hours,” she said.
Even with the post-review consultation process underway, Eben feels like saving Thacker Pass is a lost cause.
“No matter how much I participate, how much I consult, how much I put in writing, how much I’m at the table – sometimes it’s just not enough. It’s not enough.”
Last ditch efforts
Reno Sparks, Burns Paiute and Summit Lake Paiute filed a lawsuit in February 2023 in the U.S. District Court of Nevada against local BLM officials and Secretary of the Interior Deb Haaland. Among the tribes’ allegations was that the BLM did not make a reasonable and good faith effort to identify historic properties in Thacker Pass or consult the appropriate tribes, as required by the National Historic Preservation Act.
While these efforts were pending, a federal judge said construction on the mine and supporting facilities at Thacker Pass could start in March 2023.
Time for reform?
In September 2023 the Biden administration’s interagency working group on mining reform submitted a report with recommendations to revise the laws around mining on public lands.
The report found that the rules are clearer for consultation with tribes when minerals are developed on their present-day reservation lands. But it also noted that tribes have far fewer rights to land outside their present-day borders to which they may hold historical, cultural and spiritual ties.
The report said that it is of “utmost important [sic]” to make clear the procedures for conducting effective consultation and coordination with tribes. New rules must also be implemented to protect sacred, cultural or historical sites, so that some areas are considered off limits for hard rock mining. “Tribes should have more control over sacred lands,” the report said.
Community benefits
The mining reform report recommended that mining companies negotiate community benefits agreements with impacted tribes.
One tribe impacted by the Thacker Pass mine did negotiate an agreement with Lithium Nevada.
The Fort McDermitt Paiute and Shoshone Tribe signed a Community Benefits Agreement with the company in October 2022. The Fort McDermitt reservation is approximately 26 miles northeast of Thacker Pass, near the state line of Nevada and Oregon.
Crowley said the agreement is the culmination of more than 10 years of dialogue with the tribe. The mining operation will provide employment opportunities for tribal members and people who live on lands that surround the mine, he said.
The agreement provides for job training and construction of an 8,000 square foot community center that will have a daycare, preschool, playground, cultural facility and greenhouse where plants can be grown for use in traditional medicine practices.
“It’s a very isolated area that has very limited opportunity for not just a job, but a job that pays twice the state salary average,” Crowley said.
“It’s an agreement that is the foundation for a really healthy relationship going forward.”
Lithium Nevada declined to provide a copy of the community agreement contract, citing that it is a private document.
In early December, the Biden administration issued a progress report on its work with Tribal Nations. The White House report said that 12 federal agencies are on track to updating their consultation policies. Nine agencies – including the Interior Department – had revised Tribal Consultation policies or developed trainings for federal staff who work with tribes or on policies with Tribal implications.
Grussing of the National Tribal Historic Preservation Officers association is skeptical. In 2007 the U.S. voted against the Declaration of the Rights of Indigenous Peoples in the UN General Assembly, which advanced the free, prior and informed consent (FPIC) standard. The standard upholds Indigenous Peoples’ rights to do more than consult on a project – FPIC ensures that tribes either give or withhold their consent on a project impacting their communities. In 2016 the U.S. ratified the declaration but called its support “aspirational” and “not legally binding.”
According to Grussing, until the U.S. adopts the FPIC standard, tribal consultation is “kind of meaningless. And I don’t see that happening,” Grussing said.
Emma Peterson and Caitlin Thompson contributed to this story. It was produced at the Howard Center for Investigative Journalism at Arizona State University’s Walter Cronkite School of Journalism and Mass Communication, an initiative of the Scripps Howard Fund in honor of the late news industry executive and pioneer Roy W. Howard. For more see https://azpbs.org/lithium. Contact us at howardcenter@asu.edu or on X @HowardCenterASU.
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