Changing the relationship between mining and Native American Tribes

Guest Authors
An aerial photo of an arid plain surrounded by mountains with a blue sky above dotted with a few white clouds.
Thacker Pass, Nevada is the site of an ongoing struggle over the construction of a large lithium mine. The land is sacred to local Native American Tribes. Photo credit: Carolyn Cole / Los Angeles Times via Getty Images.

Native American Tribes stand to benefit greatly from mining and processing the critical minerals needed to drive the energy transition in the United States — but only if we acknowledge the sordid history of mining on tribal lands and properly remediate legacy issues while forging a new approach that is transparent, fair and centered on Tribal sovereignty.

On paper, the energy transition offers Tribes a major opportunity. Approximately 97% of U.S. nickel reserves, 89% of its copper reserves and 79% of its lithium reserves lie on or within 35 miles of Native American reservations, according to financial research firm MCSI. Nickel, copper and lithium are crucial components of batteries, wind turbines and numerous other clean technologies and military systems.

Recently passed laws, like the 2022 Inflation Reduction Act, aim to accelerate the clean energy transition in the U.S. while boosting domestic manufacturing. Sourcing some critical minerals at home is key to achieving that agenda. Many of those laws include financing specifically for climate investments in Indian Country.

At a practical level, however, most Tribes lack enough administrative capabilities, associated institutions and technically trained workforces to take advantage of future mining and processing opportunities. With some exceptions, Native Tribes and Tribal communities are collectively some of the poorest in the U.S. even though they are together the largest landowners outside the federal government.

There’s also a horrific and well-documented historical precedent to overcome. In the U.S., the legacy of mining on Tribal lands is rife with financial and human exploitation, abrogated contracts and agreements and dire environmental and health impacts and disparities. This history has been regularly acknowledged by the Biden administration.

To move forward with mining projects on or near Tribal lands, we need to right these wrongs and build projects that are designed with and for Tribes.

Tribal governments and their communities will need to be consulted on projects from their inception and state-of-the-art sustainable mining techniques must be used to help minimize environmental damage. Projects also must maintain a central focus on Tribal sovereignty and ensure the financial, social and environmental benefits for Tribes, their communities and their lands are clear and codified. Supporting economic development, including stimulating a vibrant workforce, must also be a cornerstone of any approach.

The federal government should work toward an ecosystem that allows Tribally-owned corporations to invest profits in a way that bolsters wealth and allows them full agency around decisions on their own lands.

Federal tax policy levers could make critical minerals development on Tribal lands more economically attractive. The government could also craft new specific tax credits for actions like hiring Native American employees in critical mineral development and operations. And Tribal members should be given priority in mining engineering and geology programs at research universities.

An ongoing dispute illustrates how complex it could be to put these solutions into practice. After several years and at least three different court rulings, a lithium project in Nevada on U.S. Bureau of Land Management lands sacred to local Tribes received the go-ahead to move partially forward. The company, Lithium Americas, had signed a Community Benefits Plan (CBP) with the Fort McDermitt Paiute and Shoshone Tribe to ensure the Tribe will get fair revenue benefits from the development, as well as workforce training and education.

Not all Tribes in the region were included in the benefits plan, however, which could lead to future disputes.

Previous efforts to build trust and to encourage mining on Tribal lands have not gone nearly far enough. This fact was made abundantly clear in a recent court case brought by the Osage Nation against three wind farm developers in Oklahoma that had erected 80 turbines. The Osage were not appropriately or adequately brought into the original process or deal before the turbines were erected, the court ruled. Now, the court is saying they may have to come down.

In a sign of its historical and cultural significance, the legislative precedent that determined the case in favor of the Tribe goes back to the 1906 Osage Allotment Act, which was the foundation of the events depicted in the book and movie Killers of the Flower Moon.

Some light is breaking through the cracks of this old set of problems. The work of the Department of the Interior — under the first Native American Cabinet Secretary, Deb Haaland, a member of the Pueblo of Laguna in New Mexico — seems to be making progress in rule making and building trust.

In September, Interior released a report on improving mining on public lands with specific sections on the impacts of mining on Tribes, and it has a resource guide for developing minerals on Indian Trust Land. The Inflation Reduction Act made clean energy tax credits directly available to Tribes for the first time through a process called “direct pay.” (Tribes are not tax paying entities and previously could not benefit from project level tax credits.)

To mine key minerals in the U.S. to drive the energy transition, Tribes must be empowered to lead the way.

As the late N. Scott Momaday, the first Native American to win a Pulitzer Prize, wrote in Earth Keeper: “Something of our relationship to the earth is determined by the particular place we stand at a given time. If you stand still long enough to observe carefully the things around you, you will find beauty, and you will know wonder.”