NV tribes will not appeal most recent lithium mine ruling

Native American tribes opposing a mine over what could be the country’s largest natural lithium deposit have decided to abandon efforts to halt its construction through the courts after a series of legal setbacks.

But that doesn’t mean they are abandoning the fight.

On Tuesday, the Reno-Sparks Indian Colony announced the tribe won’t appeal U.S. District Judge Miranda Du’s decision last month to dismiss their claim that the mine’s approval violates federal preservation law and land policy. Instead, the tribe has a larger target: The General Mining Law of 1872.

Over the last two years, the Reno-Sparks Indian Colony and several other tribes have sought to overturn federal approval for the mine – a decision that was fast-tracked by the Bureau of Land Management in the last days of the Trump administration. But the courts have repeatedly ruled against the tribe.

The root of the problem is centuries deep, argue tribal members. The General Mining Law of 1872 allows individuals and corporations to excavate public land and stake claims on any mineral discoveries they make. Prior to that, economic colonialists could simply claim land inhabited by Native peoples as long as they used the land productively under the “Discovery Doctrine.”

“The 1872 mining law has to be changed. It means that mines can come anywhere within the state. Even if you were to go to court the only thing you’re going to be able to do is maybe mitigate a few small things or maybe, if you’re lucky, to put a temporary hold on it. You won’t be able to stop the mine,” said former Reno-Sparks Indian Colony Chairman Arlan Melendez during a press conference.

“It’s a broader vision, and there’s a broader effort that we’re gonna have to do,” he continued.

Calls for reforming the General Mining Law of 1872 are likely to get a cold reception from Nevada’s congressional delegation, which for decades has successfully resisted attempts to significantly reform the 1872 law. Melendez acknowledged the uphill battle tribes face trying to reform the mining law in Nevada.

“It’s going to be challenging trying to convince our own politicians, our own congressmen, here in Nevada to change the 1872 mining law. It would be easier to go to a state that doesn’t have so much mining to lobby,” Melendez said.

The Thacker Pass region is considered sacred by the tribes who call it “Peehee Mu’huh,” or Rotten Moon in the Paiute language because, in 1865, federal cavalry killed at least 31 men, women and children who were never given proper burials. The exact location of the massacre is unknown, but it is generally recognized to be within a few miles of the mine. 

There’s no question that the massacre took place in Thacker Pass. Written records by federal surveyors and eyewitnesses at the time give clear descriptions of the massacre. In a 2021 ruling, Judge Du said the evidence presented by tribes “further highlights the shameful history of the treatment of Native Americans by federal and state governments,” but was not enough to prove there were burial grounds within the proposed project site.

“Just because the site doesn’t say ‘historical cemetery’ doesn’t mean the unmarked graves of our ancestors are less than,” said Reno-Sparks Indian Colony Cultural Resource Officer, Michon Eben. “This is the evidence that we did our best to show, but a lot of it was rejected.”

Attorney’s for the Reno-Sparks Indian Colony said they had hoped their lawsuit could prevent the desecration of sacred sites in Thacker Pass, including the site of the 1865 massacre by the federal cavalry, but with construction already started, it’s increasingly unlikely.

While federal laws have been established to help preserve historic and archaeological sites in the U.S., including the National Historic Preservation Act, those laws are not designed to prevent mining on those culturally significant sites.

“There is no law that prevents the federal government from issuing permits for mines that will destroy Native American sacred sites on public land,” said Will Falk, the attorney representing the Reno-Sparks Indian Colony. “Even if tribes tell the government the mine will destroy the most sacred site in the world to those tribes, it does not matter from the federal agency’s perspective, and it does not matter from the federal judge’s perspective.”

Tribal citizens say their concerns have been thoroughly ignored by the U.S. Department of the Interior and the Biden administration.

“We actually invited the Secretary of Interior (Deb Haaland) to come out and meet with the Nevada tribes, but they failed to do that,” Melendez said. “The largest lithium project in the United States and they don’t even have the time to come out here and meet with the tribal nations here in the state of Nevada when we’re affected so drastically.”

In Nevada, there are more than 70 lithium extraction projects in various stages of permitting or exploration, according to the U.S. Bureau of Land Management. The Reno-Sparks Indian Colony warns that if changes aren’t made to how federal lands are managed, many other tribes in Nevada and nationwide will be impacted by the lithium boom with little legal recourse. 

The Reno-Sparks Indian Colony said they believe the only path forward now is to utilize the lessons learned from the Standing Rock Sioux Tribe’s protest against the Dakota Access Pipeline, and  mobilize tribes nationwide to their cause.

“We were disappointed in the outcome. The question now is what do we do now? We didn’t lose the lawsuit because we were wrong. We lost the lawsuit because the law favors mining, especially in this state,” Melendez said. “But we’re not giving up the fight. We’re just changing our strategy and our tactics as to how to go about it. It’s an issue that’s worth marching for. It’s an issue worth assembling for and talking about to whoever will listen.”