Numu/Nuwu and Newe prayer horse riders pictured in front of the mountain range approaching Peehee Mu’huh on the annual memorial and prayer horse ride in honor of the 1865 massacre. Fort McDermitt, Nevada, March 24, 2024. (Photo: Allison Leal Parker/Human Rights Watch, courtesy Human Rights Watch)
The U.S. government violated international human rights law when it provided a mining permit to Lithium Americas for the Thacker Pass mine in Nevada, according to a report released Thursday by the Human Rights Watch and the American Civil Liberties Union.
According to the report, the Bureau of Land Management (BLM) permitted the Thacker Pass lithium mine without meaningful consultation with Tribal governments in the region, and without their free, prior, and informed consent — a violation of international human rights law and standards.
The mine was approved in January 2021 during the Covid-19 pandemic, which devastated Tribal governments. Native American communities were among the hardest hit demographic groups, according to the Centers for Disease Control and Prevention.
The U.S. Department of Energy has since provided a $2.26 billion conditional loan to Lithium Americas, the largest federal investment in a lithium mine to date.
“The Thacker Pass project shows how US mining laws and the permit process run roughshod over the rights of Indigenous peoples,” said Abbey Koenning-Rutherford, a fellow with the American Civil Liberties Union and Human Rights Watch. “US federal and state mining agencies should urgently review the regulations governing mine permits to bring them in line with international standards on Indigenous peoples’ right to free, prior, and informed consent.”
International human rights law is a set of rules by which governments pledge to protect and promote human rights established through the United Nations General Assembly. Former President Barack Obama signed onto the United Nations Declaration on the Rights of Indigenous Peoples in 2010, although the treaty is not legally binding.
In a rush to obtain lithium, the BLM approved the Thacker Pass mine in less than a year, far less than the 3.1-year agency average for approving a new mining operation. The speed of the process resulted in a below standard consultation process that was further hampered by the COVID-19 pandemic.
The report describes how the BLM failed to provide reasonable outreach during the permitting process to all tribes in the region with cultural connections to Thacker Pass, despite the land’s sacred status in part due to its connections to an 1865 massacre of Indigenous people by United States cavalry.
Only three Tribal governments — Fort McDermitt Paiute and Shoshone Tribe, the Winnemucca Indian Colony, and the Summit Lake Paiute Tribe — were directly contacted by BLM through mailings, none of which replied to the agency.
The Winnemucca Indian Colony and the Summit Lake Paiute Tribe have since been vocal in their opposition to the mine, saying the global COVID-19 pandemic forced Tribal governments to close their offices.
Three other Tribal governments with strong spiritual and cultural connections to Thacker Pass were not consulted by BLM and later attempted to take legal action against the mine — the Reno-Sparks Indian Colony, the Burns Paiute Tribe, and the Duck Valley Shoshone-Paiute Tribe.
The Duck Valley Shoshone-Paiute Tribe later escalated their opposition in a letter to the UN Special Rapporteur on the rights of Indigenous peoples, according to the report.
One Tribal government — the Fort McDermitt Paiute-Shoshone Tribe — has since signed an agreement with Lithium Americas and issued a letter supporting the mine.
Federal law in the United States contains only limited requirements for consultation with Indigenous peoples impacted by mining operations on federal land, a process that does not align with international human rights law, according to the report.
That’s largely due to the 1872 General Mining Law, which allows individuals and corporations to excavate public land and stake claims on any mineral discoveries they make. The mining law also lacks early tribal consultation requirements, or clear requirements on what is considered adequate consultation.
Koenning-Rutherford said Thacker Pass is an example of how consultation requirements under federal mining law fall far short of the free, prior, and informed consent required under international human rights law.
“This report really dives into the limitations of United States law and the lack of protections it provides indigenous peoples,” Koenning-Rutherford said.
‘Mine stands as a warning’
Under international human rights laws, Indigenous community members have the right to return to their traditional and ancestral land and practice their cultural traditions and religion.
The Northern Paiute and Western Shoshone peoples have a deep cultural connection to Thacker Pass or “Peehee mu’huh,” which translates to “rotten moon” in honor of their ancestors who were massacred by the U.S. Cavalry in 1865 in an area of the pass shaped like a moon.
It’s also one of the few remaining places in the Great Basin where tribal citizens can still gather traditional foods such as chokecherries, wild potatoes and onions, and traditional medicines like the toza root.
Thacker Pass is now fenced off with a four-strand barbed wire fence and ‘No Trespassing’ signage installed every 500 feet. All access gates are locked, or directly supervised by on-site security.
Indigenous community members told the Humans Right Watch and ACLU that other portions of the traditional and ancestral land of Peehee Mu’huh were made inaccessible due to the presence of private security on the road that has stopped community members on several occasions.
When asked about these interactions, Lithium Americas told the reports investigators that the company “uses a contract security company that does not have vehicles equipped to pull other vehicles over” and that the “security contractor is not authorized to pull vehicles over,” according to the report.
In two letters to the report’s researchers, Lithium Americas responded by highlighting the company’s “intensive consultation process and environmental analyses conducted as part of permitting for the project.”
The report also documents the mine’s environmental impact, including toxic waste storage and sulfuric acid production. It recommends stronger tribal consultation under U.S. law in order to align U.S. law with international human rights standards.
“International human rights law very clearly establishes safeguards to protect the rights of Indigenous peoples, including indigenous peoples impacted by mining and other development projects,” Koenning-Rutherford said. “Indigenous peoples have the right to give or withhold free, prior informed consent to any project that affects their lands or territories.”
“The experience of indigenous peoples at Thacker Pass shows that United States mining laws and the permitting process did not respect that right,” she continued.
The report recommends specific actions for Congress, the executive branch, and the Department of the Interior to improve consultation and legal protections for indigenous communities.
The report also calls on the federal government to conduct a review of Thacker Pass mine permits to ensure their alignment with international human rights law. The report also calls on Congress to amend the 1872 Mining Law to protect Indigenous peoples’ rights.
“The Thacker Pass mine stands as a warning of the risks Indigenous peoples face from such mining,” Koenning-Rutherford said. “The United States should respect Indigenous peoples’ centuries-long connections to Peehee Mu’huh and act to prevent further harm at Thacker Pass.”