Olivia Martini, Associate Member, Immigration & Human Rights Law Review
I. Introduction
The sun rises over the desert of Northern Nevada, casting long shadows over the hills of Thacker Pass. For the Paiute and Shoshone peoples, this land is sacred ground, a site of commemoration and mourning.[1] In 1865, Nevadan calvary soldiers massacred at least thirty Paiute people here, their bodies left unburied in the dust.[2] Today, their descendants return to Thacker Pass to pray, to remember, and to fight.[3] Instead of soldiers, they now face the roar of excavation equipment, tearing into the land to extract lithium—heralded as the “white gold” of the renewable energy revolution.[4]
This blog examines how U.S. law fails to protect mineral-rich Indigenous lands from exploitation, instead prioritizing corporate projects and federal energy policy over Indigenous sovereignty.[5] Although the push for renewable energy is crucial for the future of the environment, the push for lithium mining comes at the expense of vulnerable populations.[6] The Thacker Pass mine highlights how legal loopholes allow extractive projects to proceed without genuine consent from Indigenous communities, exposing the fundamental flaws in the U.S. legal framework. The United States must reform its mining laws to incorporate the principle of Free, Prior, and Informed consent (FPIC)—a legal standard that would grant Indigenous communities the power to approve or reject projects that impact their lands and lives.
II. Background
Thacker Pass, located in Northern Nevada and belonging to the Paiute and Shoshone peoples, sits on one of the world’s richest known lithium deposits.[7] The Thacker Pass mine will span over 18,000 acres of public land and is set to extract lithium from the McDermitt Caldera, a recently identified geological formation rich in lithium.[8] The mine aims to produce enough battery-grade lithium-carbonate to power 800,000 electric cars each year, fueling the transition to green energy.[9]
A. Permit Approval
While the land holds cultural and historical value for Indigenous peoples, it also has become a site of legal and corporate interests as plans for the Thacker Pass mine progressed in the 2010s.[10] In January 2021, the U.S. Department of Interior’s Bureau of Land Management (BLM) granted a permit to Lithium Nevada, a subsidiary of Lithium Americas, for the Thacker Pass mine.[11] The permit process was unusually fast-tracked under the first Trump administration.[12] The BLM only sent three pieces of mail to three local tribal governments—a gesture that Indigenous groups condemn as inadequate and a failure of meaningful consultation.[13] Despite strong opposition from five different tribal groups in the area, including the West Shoshone and the Pyramid Lake Paiute, the permit was approved.[14]
The Thacker Pass project quickly acquired major financial backing.[15] General Motors invested $625 million into the mine, making it not only the largest stockholder in the mine but also securing exclusive rights to the lithium-carbonate extracted for the first fifteen to twenty years.[16] Additionally, the U.S. Department of Energy provided a $2.26 billion loan under the Advanced Technology Manufacturing Loan Program to help finance the construction of the processing facilities, further intertwining the project with the federal government’s agenda to boost domestic lithium production.[17]
B. Legal Challenges and Construction Progress
Despite the fast-tracked approval and financial backing, the Thacker Pass project faced immediate legal challenges from environmental and Indigenous groups.[18] However, these challenges were unsuccessful in stopping the mine’s construction.[19] In February 2021, four environmental groups and two Indigenous groups sued the BLM, arguing that the agency violated multiple federal statutes, including the National Environmental Policy Act (NEPA) and the Federal Land Policy and Management Act (FLPMA).[20] A federal judge ruled that even though the BLM had violated the law, the economic and strategic importance of lithium extraction justified continuing construction.[21]
As of March 2025, construction of the mine is nearly fifty percent complete.[22] Excavations for the processing plant and other infrastructure are well underway, with mining operations expected to start in summer 2025.[23] The government fenced the site off, barring Indigenous groups from accessing the land, with trespassing charges imposed on those attempting to enter.[24] While the extraction of lithium for clean energy would be beneficial for several industries, the mine raises significant ethical and legal issues for local Indigenous communities.[25]
C. Effects on Indigenous Groups
The construction and operation of the Thacker Pass mine raises serious concerns about environmental degradation, sexual violence against Indigenous women, and the displacement of Indigenous people.[26]
First, environmental impacts are a major concern.[27] The mine threatens the health of local communities through contamination of water sources, air pollution, depletion of groundwater, and the destruction of biodiversity.[28] The extraction process requires vast amounts of water—an estimated 5,200 acre-feet per year—exacerbating water scarcity in an already arid region.[29] Furthermore, the operation will produce significant toxic waste, including heavy metals and sulfate, which will be stored in a 350-foot mound at the site, which will likely lead to long-term environmental contamination.[30]
Second, beyond environmental harm, mining projects like Thacker Pass contribute to higher rates of sexual violence against Indigenous women.[31] The influx of transient workers in “man camps” is often linked to increased instances of sexual violence, missing and murdered Indigenous women, and other forms of gender-based violence.[32]
Third, construction restricts Indigenous access to culturally and spiritually significant lands, including areas used for prayer, ceremonies, and historical remembrance.[33] The destruction of sacred sites at Thacker Pass represents a profound emotional and spiritual wound for the Indigenous communities.[34] For the Paiute and Shoshone peoples, these lands are not merely property, but the living embodiment of their ancestors’ history, spirituality, and identity.[35] The grief and dislocation felt by those who may no longer perform sacred rituals on their ancestral land is an immense psychological toll.[36] Thacker Pass is the site of memorialization for the massacre of at least thirty Paiute people by the Nevada calvary members in 1865.[37] Today, tribal members visit Thacker Pass to pay tribute to their ancestors, commemorate the massacre, and engage in sacred ceremonies.[38] In addition to its spiritual and historical importance, the land serves as a vital resource for hunting, fishing, gathering food and medicinal plants, and practicing their religion—traditions that have been upheld for centuries.[39]
The tribes’ primary grievances are the lack of meaningful consultation, the destruction of culturally sacred sites, and the environmental degradation that threatens their health and traditional practices.[40] Indigenous communities assert that the U.S. government is desecrating and commodifying their ancestral lands for economic gain without their consent.[41] Activists and tribal members have staged protests, set up prayer camps, and taken legal action to halt construction.[42] Many view the mine as yet another chapter in a long history of land theft and exploitations, perpetuating a colonial legacy that disregards Indigenous sovereignty and sacred spaces.[43] The Thacker Pass mine is not an isolated incident but part of a broader pattern of resource extraction that disregards Indigenous rights and environmental concerns.[44] Addressing these systemic issues requires meaningful reforms that prioritize Indigenous sovereignty, environmental justice, and corporate accountability.[45]
III. Discussion
The legal framework governing mining in the United States fails to adequately protect Indigenous lands and communities.[46] This section examines how the General Mining Law of 1872 enables the continued exploitation of Indigenous territories, with Thacker Pass serving as an example of this systemic failure.[47] This section argues for amending the General Mining Law to incorporate Free, Prior, and Informed Consent and for implementing stronger environmental safeguards to uphold Indigenous rights and protect their lands.
A. U.S. Laws Fail to Protect Indigenous Peoples
The Thacker Pass mine is not an isolated incident but part of a larger pattern of exploitation of Indigenous lands for mining purposes.[48] Outdated U.S. mining laws enable this exploitation. For example, the General Mining Law of 1872, which remains largely unchanged since its enactment, allows private citizens and corporations to claim mineral rights on federally-owned lands—including lands that were once Indigenous territory—without requiring tribal consultation or consent.[49] The law governs hardrock mining on 350 million acres of federal public lands, mainly in the Western United States and Alaska, representing roughly fifteen percent of all land in the country.[50]
The law was originally designed to encourage settlement and development in the West, but it offers slim protections for Indigenous peoples and their lands.[51] While tribes may assert claims under limited circumstances, the law does not require FPIC from Indigenous groups before mining projects proceed.[52] Consequently, corporations can move forward with projects even in the face of Indigenous opposition.[53] This lack of legal protection directly enabled the approval of the Thacker Pass lithium mine, despite protests from local tribes who consider the land sacred and have raised concerns about its environmental and cultural impact.[54]
In contrast, the Indian Mineral Development Act (IMDA) of 1982 provides a more collaborative framework, allowing tribes to enter into agreements with mining companies for the development of mineral resources on tribal lands.[55] The IMDA grants Indigenous communities the right to negotiate the terms of their resource extraction directly, ensuring they have a degree of control over how their lands are used.[56] However, the IMDA’s protections only apply to land held in trust by the federal government for tribes, leaving a vast amount of ancestral land—like Thacker Pass—outside its scope.[57] Because Thacker Pass is considered federal public land rather than tribal land held in trust, the IMDA did not provide the affected tribes with a legal mechanism to prevent or negotiate the terms of the project.[58] This gap in legal protections highlights how the current regulatory framework fails to safeguard Indigenous sovereignty.
Additionally, over seventy-five percent of lithium, copper, and nickel resources in the United States are within thirty-five miles of Native American reservations.[59] Given this proximity, Indigenous peoples must have a voice in the decision-making process regarding the minerals located within or near their land—yet under current law, that is not the case.[60] Without implementing protections, the exploitation of Indigenous lands, like Thacker Pass, will continue unchecked.[61]
B. Proposed Reform
Adopted in 2007, the United Nations Declaration on the Right of Indigenous Peoples (UNDRIP) sets international human rights standards for protecting Indigenous lands.[62] Although the United States formally endorsed the UNDRIP in 2011, it has not fully implemented its core principles., meaning that while the U.S. acknowledges the Declaration, it is not legally bound to its provision and has not taken steps to incorporate them into domestic law.[63] One of the most critical provisions of the UNDRIP is the FPIC requirement for projects that impact Indigenous peoples’ lands, territories, and cultural practices.[64]
FPIC consists of four essential components.[65] First, consent from Indigenous peoples must be given voluntarily, free from coercion, intimidation, or manipulation.[66] Second, Indigenous peoples must be consulted before the authorization of any project affecting their lands or communities.[67] Third, Indigenous peoples must be provided with adequate and material information about the project, including its potential risks and impacts.[68] Finally, Indigenous peoples have the right to approve, reject, or impose conditions on the project through a collective decision-making process, allowing Indigenous communities to exercise their autonomy and traditional governance structures in determining the future of the lands.[69]
However, because the General Mining Law of 1872 does not incorporate FPIC, Indigenous communities in the United States lack meaningful legal mechanisms to prevent mining operations on their lands.[70] Being a federal statute, the General Mining Law holds legal supremacy over non-binding international agreements like UNDRIP.[71] Without congressional action to amend the law, UNDRIP remains an aspirational document rather than an enforceable legal standard in U.S. courts. As a result, mining companies can legally proceed with projects such as Thacker Pass without securing Indigenous consent, despite UNDRIP’s protections.[72]
To effectively implement FPIC in protecting tribal lands, the United States must take three steps. First, Congress should amend the General Mining Law of 1872 to require formal consultation and consent from Indigenous nations before permitting mine operations on or near their land.[73] While adopting a wholly new legal framework may seem ideal, reforming the existing statute offers a more feasible solution because it integrates necessary protections without requiring a complete legislative overhaul.[74] Amending the law ensures continuity in federal land management while introducing safeguards that align U.S. policy with international human rights standards.[75] This amendment would provide Indigenous communities with legally enforceable rights to reject or negotiate mining projects that threaten their land, culture, and sovereignty.[76]
Second, the federal government should establish an independent Indigenous review board to evaluate mining projects.[77] Currently, no such board exists; while agencies like the Bureau of Indian Affairs oversee some aspects of tribal land management, they lack the autonomy and direct tribal representation for impartial decision-making.[78] This review board, composed of Indigenous representatives from diverse tribal nations, would ensure that Indigenous perspectives are central to the evaluation process.[79]
Third, the government must enforce stronger federal protections. Mining projects inflict severe environmental damage, disproportionately affecting Indigenous communities.[80] The federal government must implement stricter environmental regulations and require corporations seeking to mine near Indigenous lands to meet higher environmental and ethical standards.[81] One way to achieve this is through financial incentives; for example, federal loans should be contingent on compliance with these, ensuring meaningful safeguards for Indigenous lands and peoples.[82] When implemented, these measures will uphold Indigenous sovereignty and create a more equitable legal framework that prioritizes environmental stewardship and human rights above unrestrained resource exploitation.[83]
In essence, these changes aim to ensure that Indigenous rights are respected while prioritizing the protection of our environment and communities over unchecked resource extraction.[84] In the case of the Thacker Pass mine, requiring FPIC and strengthening federal protections would have given the affected Indigenous communities a legal mechanism to challenge the project before its approval, rather than resorting to litigation after the fact.[85] A mandated review board could have ensured that tribal concerns were adequately considered.[86] By incorporating these safeguards, future projects will involve a more just and transparent approval process, preventing similar violations of Indigenous rights.[87]
IV. Conclusion
The story of Thacker Pass is not just about lithium and renewable energy; it is a stark reminder of how U.S. law continues to sideline Indigenous voices in the name of progress. As the nation pushes towards a greener future, it must reckon with the cost of that progress on vulnerable communities. Implementing FPIC is not just a legal reform—it is a moral imperative and a chance to ensure that the pursuit of clean energy does not come at the expense of those who have long fought to protect their sacred lands. Thacker Pass stands as a call to action: to listen, to reform, and to honor the sovereignty of Indigenous peoples.
[1] Abbey Koenning-Rutherford, New Report Finds Nevada’s Lithium Mine Permit Violates Indigenous Peoples’ Rights, Am. C. L. Union (Feb. 6, 2025, 11:00 AM), https://www.aclu.org/press-releases/new-report-finds-nevadas-lithium-mine-permit-violates-indigenous-peoples-rights [https://perma.cc/2S9U-JC98].
[2] Id.
[3] Id.
[4] Id.
[5] Abbey Koenning-Rutherford et al., The Land of Our People, Forever: United States Human Rights Violations Against the Numu/Nuwu and Newe in the Rush for Lithium, Hum. Rts. Watch (Feb. 6, 2025), https://www.hrw.org/report/2025/02/06/land-our-people-forever/united-states-human-rights-violations-against-numu/nuwu [https://perma.cc/5AKN-DVHK].
[6] Id.
[7] Tokata Iron Eyes, Thacker Pass and the Ugly Tradition of Extraction Without Indigenous Permission, Lakota People’s L. Project (Aug. 9, 2023), https://lakotalaw.org/news/2023-08-09/mining-without-permission [https://perma.cc/S9J8-X9WT].
[8] See Koenning-Rutherford et al., supra note 5.
[9] Id.
[10] Id.
[11] Id.
[12] The average approval time for a mine permit is a little over three years. The Thacker Pass mine permit was granted in less than twelve months. Id.
[13] Id.
[14] Id.
[15] Unlocking Thacker Pass: General Motors to Contribute Combined $625 Million in Cash and Letters of Credit to New Joint Venture with Lithium Americas, Lithium Americas, 1 (Oct. 16, 2024), https://s203.q4cdn.com/835901927/files/doc_news/Unlocking-Thacker-Pass-General-Motors-to-Contribute-Combined-625-Million-in-Cash-and-Letters-of-Credit-to-New-Joint-Venture-with-Lith-XXA0Y.pdf. [https://perma.cc/589M-ZRRK].
[16] Id. at 2.
[17] Id. at 1.
[18] Shifting Gears Part II: Indigenous Peoples’ Rights and Mining in the U.S., Investor Advoc. Soc. Just. (Apr. 11, 2023), https://iasj.org/shifting-gears-part-ii-indigenous-peoples-rights-and-mining-in-the-u-s/ [https://perma.cc/7VYS-R9ZW].
[19] Id.
[20] 42 U.S.C. § 4321 (1970); 43 U.S.C. § 1701 (1976). See Shifting Gears Part II, supra note 18.
[21] Id.
[22] See Unlocking Thacker Pass, supra note 15.
[23] Id.
[24] See Koenning-Rutherford et al., supra note 5.
[25] Id.
[26] Id.
[27] See Shifting Gears Part II, supra note 18.
[28] Id.
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Id.
[34] Id.
[35] Id.
[36] Id.
[37] Id.
[38] Id.
[39] Id.
[40] Jarette Werk, At Thacker Pass, Extraction and Resistance Come to a Head, Underscore Native News (June 9, 2023), https://www.underscore.news/land/at-thacker-pass-extraction-and-resistance-come-to-a-head/ [https://perma.cc/VL94-P4EA].
[41] Id.
[42] Id.
[43] Id.
[44] See Koenning-Rutherford et al., supra note 5.
[45] Id.
[46] Id.
[47] 30 U.S.C. § 22 (1872).
[48] See Koenning-Rutherford et al., supra note 5.
[49] 30 U.S.C. § 22 (1872); 1872 Mining Law: A Century and a Half of Subsidizing Irresponsible Mining, Earthworks (Mar. 17, 2025), https://earthworks.org/issues/1872-mining-law/ [https://perma.cc/Y233-KJ9Q].
[50] See 1872 Mining Law, supra note 50.
[51] Id.
[52] Id.
[53] Id.
[54] Id.
[55] 25 U.S.C. § 2101 (1982); Antoinette G. Houle, Non-Lease Agreements Available for Indian Mineral Development, 24 Nat. Res. J. 195, 196 (1984).
[56] See Houle, supra note 56, at 199.
[57] Id. at 196.
[58] Id.
[59] Julia Simon, Demand for Mineral Sparks Fear of Mining Abuses on Indigenous Peoples’ Lands, Nat’l Pub. Radio (Jan. 29, 2024), https://www.npr.org/2024/01/29/1226125617/demand-for-minerals-sparks-fear-of-mining-abuses-on-indigenous-peoples-lands [https://perma.cc/JAQ4-55UJ].
[60] Id.
[61] Id.
[62] United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007).
[63] U.S. Dep’t of State, Announcements of U.S. Support for the United Nations Declaration on the Rights of Indigenous Peoples, 5 (Jan. 12, 2011), https://2009-2017.state.gov/documents/organization/154782.pdf [https://perma.cc/V4GW-JE9L].
[64] See Shifting Gears Part II, supra note 18.
[65] Id.
[66] Id.
[67] Id.
[68] Id.
[69] Id.
[70] Id.
[71] 30 U.S.C § 22 (1872).
[72] See Simon, supra note 60.
[73] See Shifting Gears Part II, supra note 18.
[74] Id.
[75] Id.
[76] Id.
[77] Id.
[78] Id.
[79] Id.
[80] Id.
[81] Currently, mining projects are subject to the National Environmental Policy Act (NEPA), the Clean Air Act (CAA), and the Clean Water Act (CWA), but these regulations primarily address environmental impact rather than Indigenous rights. Id.
[82] Id.
[83] Id.
[84] See Koenning-Rutherford et al., supra note 5.
[85] Id.
[86] Id.
[87] Id.
