Tribal “Stewardship” But Not Agreement? The Thacker Pass Lithium Case

I think we’re all for Tribal consultation and co-stewardship (depending on exactly what that means). Here’s a quote from Interior Department Guidance to Strengthen Tribal Co-Stewardship of Public Lands and Waters:

said Secretary Deb Haaland. “By acknowledging and empowering Tribes as partners in co-stewardship of our country’s lands and waters, every American will benefit from strengthened management of our federal land and resources.”

Of course, federal authorities stay the same, that is, to consult and not go with what Tribes want. It seems to be a focus on the process (consultation) rather than the product (decisions that Tribes agree with). This sounds like a bit of an echo of ordinary public involvement. We can have a great process and not decide the way any particular group wants. But the term “co-management” to me implies more than “we listen to your opinion more carefully than other groups”. But if the Admin can still overrule Tribes, are they any more “empowered” than before an enhanced consultation process?

There’s also the scale thing. For example, when DOI had their public session on oil and gas regulations, that I covered here, Tribes and Native Alaskans said they were for “all of the above” and yet this did not seem to transfer directly to DOI policy. Perhaps the scale is the problem, and Tribes should be consulted on the overall decarbonization- climate- energy policy in its entirety. Because the solar-wind-minerals-uranium under all scenarios would occur on federal lands. To the extent that it does, maybe the USG should back up and consult on the broader-scale policy- both energy and climate. Perhaps have an elected Tribal representative in all White House climate discussions?

Anyway, here’s a story from “This is Reno” on Tribes suing the BLM:

Three Native American tribes filed this week a new lawsuit against the Bureau of Land Management over Lithium Americas planned Thacker Pass lithium mine.

The lawsuit comes after federal Judge Miranda Du mostly ruled against the plaintiffs seeking to stop the project near the Nevada-Oregon border. It was filed Thursday by the Reno-Sparks Indian Colony, Burns Paiute Tribe and Summit Lake Paiute Tribe in Federal District Court.

The tribes are alleging BLM withheld information from the state “and lied about the extent of tribal consultation in order to secure legally required concurrence about historic properties” at Thacker Pass. They are also alleging BLM lied and misled the tribes about other aspects of the mining project.

“The new lawsuit is also strengthened by the addition of the Summit Lake Paiute Tribe, one of the Tribes that the BLM claims to have consulted with prior to issuing the [record of decision],” they said in a press statement. “Summit Lake and both other tribes the BLM claims to have consulted (the Winnemucca Indian Colony and Fort McDermitt Paiute-Shoshone Tribe) have disputed BLM’s assertion that any consultation took place.”

The Winnemucca Indian Colony, they said, was unable to intervene in the case for not filing soon enough.

“When the decision was made public on the previous lawsuit last week, we said we would continue to advocate for our sacred site PeeHee Mu’Huh,” said Arlan Melendez, chair of the Reno-Sparks Indian Colony. “It is also the very same place where our people were massacred (never laid to rest properly) by the U.S. Calvary. It’s a place where all Paiute and Shoshone people continue to pray, gather medicines and food, honor our non-human relatives, honor our water, honor our way of life, honor our ancestors.

“The Thacker Pass permitting process was not done correctly. BLM contends they have discretion to decide who to notify or consult with,” he added. “They only contacted 3 out of the 22 tribes who had significant ties to Thacker Pass.”

There’s also a good comprehensive story on E&E News that is open to everyone. They took a political slant to it..

“Democrats and Republicans are both pro-development in this state and always have been,” Lokken said.

Some Democrats are more likely to be concerned about the environmental impact of mining and about ensuring that the state gets tax revenue from the industry, added Lokken, but development has ultimately won out.

“The party decided a long ago that this kind of development is fine,” he said.

15 thoughts on “Tribal “Stewardship” But Not Agreement? The Thacker Pass Lithium Case”

  1. Here in the upper midwest, FS has consistently ignored public input calling for recovery of American marten via protection of older forests, etc. Totally ignored for literally decades.
    New efforts to include tribes in mgmt is all process as far as I can tell. They are still scrambling to log in the center of the species’ core habitat.
    Dishonesty and cynical grudging pro-forma compliance.

    • I remind you that the Forest Service has not cut large trees since 1993, in all Sierra Nevada National Forests. No clearcuts, either. Sadly, we are still losing habitats, due to large and intense wildfires. I would think that such cutting practices in your area are probably vulnerable to lawsuits.

      • additional perspective on the region would note that “tribal perspectives” are neither homogenous nor solely aligned with ENGOs that oppose timber cutting. An example would be clearcutting, which is indeed not uncommon in the upper midwest but also drives the creation of moose habitat, esp. when followed with fire and natural regeneration of aspen and birch. Tribal perspectives in parts of the region tend to be aligned with others in opposition to land-use conversion and development, but diverge from the ENGO line with respect to forestry practices

        • Important points. All people and groups are diverse with diverse opinions. No argument there.

          I would point out that birch is declining and is of concern, despite the massive amount of even-aged mgmt going on. At thw same time, even aged mgmt has created huge amounts of deer habitat and they are seriously damaging regeneration of many species of concern to tribes, environmental and foresters. Unfortunately, changing mgmt to not favor deer will likely never happen.
          Bottom line, wasteful subsidized logging continues to simplify upper midwest ecosystems with proponents using any/every justification they can contrive.

          • David, would you like to write a post on your views of the situation in the upper midwest with more specifics? If so, please send a Word doc with links, a photo and a short bio to my email (to be found in the Donations widget). I’m sure we’d be interested in hearing more and discussing.

  2. No, and no again. We are NOT all for tribal involvement, let alone co-“anything”. They are – should not be – entitled to any more than joe blow around the corner ! Good grief, wake up America!

    • Brian, I think there are three different kinds of arguments around this…
      1. Specific Tribes have reserved treaty rights of different kinds on Federal land that traditionally the federal agencies have not acknowledged. I don’t know the exact terminology, but since it’s legal, it’s probably complicated.
      2. There are international agreement aspects to the treatment of Indigenous people, the nature of which I haven’t yet looked up.
      3. The USG never lived up to its commitments and morally giving them a greater say would help to undo that wrong.

      Now, this isn’t my area, and I don’t know all the right words for these things. Maybe someone can point us to a comprehensive overview of this topic?

    • Cohen’s Handbook of Federal Indian Law describes the unique relationship between the federal government and sovereign tribes:
      “Perhaps the most basic principle of all Indian law supported by a host of decisions . . . is the principle that those powers which are lawfully vested in an Indian tribe are not, in general, delegated powers granted by express acts of Congress, but rather inherent powers of a limited sovereignty which has never been extinguished. What is not expressly limited [by Congress] remains within the domain of tribal sovereignty.”

      So tribes are “entitled” to whatever Congress has not taken away by passing laws or treaties.

  3. I would strongly suggest this piece on co-management/stewardship pertaining to Tribes in the Lower 48:

    …and this one on the same topic regarding Alaska native issues there:

    It seems to me that there is a fair amount of misunderstanding about co-management/stewardship, and folks would be well-served to do some self-education.

    • Thank you, SJ! These are both great background pieces, and yet I think a possible hindrance to our self-education is lack of understanding what some terms mean in practice.. for example, let’s take their forest planning section

      Federal Public Lands Planning
      Federal public lands planning needs to be based on a more accurate inventory and accounting of cultural resources and the related programs within federal land agencies need to be adequately funded and prioritized.
      -The executive branch should ensure that federal land planning regulations and agency-specific manuals, handbooks, and policies related to cultural resources and tribal relations comport with the first principles of federal Indian law and the core principles of tribal co-management.
      -The revision of land use plans provides an important opportunity to adequately account for tribal rights and interests on public lands, to better integrate the purposes and processes of the
      National Historic Preservation Act, and to engage with Indian tribes on a government-to-government basis.

      So I can understand most of it, but .. does “engaging on a government to government basis” mean the same as state and local governments or is it different? What would it mean in practice for a forest planning effort? At the end of the day, does it simply mean “listening more to them and collecting more data” or some (more) political weight to their views? Would the weight depend on the unique history of each Forest or BLM district and the associated treaties (think Winema NF here)? Maybe we could collect a bunch of questions and ask Mills and Martin.

    • Here’s another take on “co-management/stewardship.” It actually distinguishes between the two (whereas Mills and Nie don’t use the term “co-stewardship” at all):

      “The distinction between co-management and co-stewardship — terms the federal government uses for agreements to collaborate on land management with tribal nations — is subtle but important. “Co-stewardship” covers a broad range of collaborative activities like forest-thinning work in Alaska’s Tongass National Forest in partnership with the Hoonah Indian Association, where Indigenous knowledge can be included in federal management. But “co-management” is more narrowly defined. In those instances, tribal and federal governments share the power of legal authority in decision-making of a place or a species. This is the case with Kasha-Katuwe Tent Rocks National Monument in New Mexico, which is co-managed by the Pueblo de Cochiti and the Bureau of Land Management, and with the salmon fisheries in the Pacific Northwest.”

      However Mills and Nie discuss Kasha-Katuwe Tent Rocks differently:

      “The President’s proclamation emphasized the indigenous history of this area and made clear that the BLM shall manage the Monument ‘in close cooperation with the Pueblo de Cochiti…’
      In this case, the Proclamation built on previous actions by the Pueblo and BLM to share power and responsibility as permitted by law and the agency uses assistance agreements that are already authorized by statute. Final decision making power is retained by the BLM, but there is a government-to-government partnership between the BLM and Tribal Council and the Pueblo was able to participate early and substantively in shaping the area’s management plan and range of acceptable uses prior to public comment, not as another stakeholder but as a sovereign government.” (footnotes omitted)

      I would interpret this to mean that a presidential proclamation establishing a national monument can come close to requiring something that tribes might consider “co-management,” and this may be the extreme example. (The HCN article discusses a pending monument designation that may be similar.) It’s not clear how this might be replicated on federal lands that are not proclaimed as national monuments. (With regard to salmon fisheries, the co-management is between tribes and states, based on the legal relationship between those entities, which is different than for federal lands.)

  4. Admittedly, I am no expert and am still learning the ropes here myself, but as I understand it, co-management (or co-stewardship) is more than government-to-government consultation, which is the status quo. I don’t know of a single Tribe that is happy with G2G consultation, which is much more of a check-the-box exercise than listening authentically to Tribal interests and adjusting land management decisions accordingly where appropriate.

    How this looks in practice depends on the Tribe, their Treaty, and the trust obligation owed by the Federal government to that Tribe. Some Tribes may want the Forest Service to use fire to create more huckleberry fields or to not turn out cows immediately after a wildfire (because they eat Treaty resources such as culturally-important plants). Other Tribes may not want additional Wilderness Areas on ceded lands because elders cannot reach those areas without motorized access. Still other Tribes may want to use their Indigenous Traditional Ecological Knowledge to restore fire to the landscape at times and ways that the Forest Service may not ordinarily consider.

    I think Martin and Monte would be willing to entertain thoughtful questions on this topic, but can’t speak definitively for them.

    • Interesting examples. I’m happy to leave this to others who know more, but I’m left wondering whether, when Congress authorizes an agency to manage lands, does that mean the agency can then choose to impair sovereign or treaty rights? Since grazing any particular location is a discretionary activity, why should the agency be able give native rights a lower priority than the agency’s discretionary multiple-uses? Compelling active management seems like it would be different (and Wilderness of course requires an act of Congress).

      • Treaties with Tribes are the supreme law of the land, on par with the U.S. Constitution. Most (if not all) treaties reserve to Tribes numerous rights, both on-reservation (if the Tribe is landed) and on ceded lands.

        Federal agencies, like the Forest Service, routinely ignore those rights on a daily basis. “CAN” they do so? No. But “DO” they”? Yes.


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