Abstract

Excerpted From: Shaadie Ali, Breaking Ground: Understanding Indigenous Mining Disputes Through Negotiation Theory, 25 Minnesota Journal of Law, Science & Technology 221 (May 10, 2024) (158 Footnotes) (Full Document)

In early 2023, tribes and conservationists in Nevada urged the 9th Circuit Court of Appeals to overturn the District Court's decision to allow the operation plan for the Thacker Pass lithium mine to proceed. While tribes and conservationists are no strangers to mining disputes, Thacker Pass marks a significant development in mining conflict because the Western Shoshone and Paiute tribes found themselves against unlikely adversaries: green energy advocates. As the United States steps up its efforts to decarbonize its transportation sector, many in the United States are pushing to increase U.S. lithium independence. Although the U.S. Inflation Reduction Act, President Biden's flagship climate legislation, provides tax credits for electric vehicles that source battery materials from the United States and free trade partner countries, roughly 95% of global lithium production currently comes from Australia, Chile, China, and Argentina. As a result of the Act, U.S. investors and green technology manufacturers have made historic investments in U.S. lithium mines like Thacker Pass. Given the increasing demands on U.S. lithium production independence, such tensions between green energy advocates and tribes will likely worsen in the coming years.

In light of these trends, the relationship between indigenous communities and mining remains highly relevant. Although “Indigenous peoples make up 5 to 10 percent of the global population,” they are “involved in 40 percent of ecological distribution conflicts.” Over one in four NativeAmericans live in poverty, “the highest rate of any racial group in the United States.” Moreover, due to the lack of a formal private sector on most reservations, reservation unemployment rates are around fifty percent. The confluence of these factors makes NativeAmericans particularly vulnerable to the negative externalities associated with mining projects. Troubling as these data are, narratives that frame NativeAmericans as passive victims in relation to mining developments are also problematic. In practice, tribes vary in their approaches to mining projects ranging from collaboration to fierce opposition. A confluence of political, legal, and sociological factors have led to tribes taking increasingly sophisticated approaches to dealing with mining projects. The purpose of this Note is to evaluate recent developments in these conflicts to identify opportunities for collaboration, areas of improvement, and to anticipate future developments in this field of conflict.

This Note uses a comparative analysis of three indigenous mining disputes from different times and places across the United States to assess the efficacy of various negotiation strategies. By reviewing case studies holistically through careful considerations of the economic, social, and legal contexts of each case, this Note aims to develop criteria for successful outcomes for tribes in mining disputes. This Note takes a novel approach to indigenous mining legal scholarship by firmly situating mining disputes within the context of negotiation rather than framing such conflicts in the terms of discrete legal questions and legal theories that might arise out of a given dispute. Within this context, lawsuits, protests, legislation, lobbying, shareholder activism, and exercise of tribal authority become legible as sophisticated negotiation tools that drive what litigation theories and processes are viable going forward.

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Turning back to the Thacker Pass mining dispute, the principles of negotiation theory analyzed and identified in this Note may give some cause for concern for those interested in tribal sovereignty. Since the 1990s, non-tribal environmental activist coalitions have been a core part of tribal negotiation strategy with mining companies. A broad-based cross-racial and cross-class coalition of community members opened up a host of strategies to the Sokaogon in the Crandon mine dispute: from triggering shareholder disputes within Exxon to achieving legislative victories through protest and lobbying, activist firepower gave the Sokaogon the ability to create pinch points in negotiations with Exxon at several key junctures. However, the growing rift between environmentalists and green energy advocates puts the tool of activist leverage in jeopardy. Unlike the rift between white anti-treaty conservationists and pro-treaty conservationists in Wisconsin in the 1990s, the pro-mining green energy contingent seems unlikely to be sidelined.

The ascendancy of a pro-mining green energy faction within U.S. politics creates a second major problem for the negotiating power of tribes: the role of the federal government. While the role of the federal government has been complex and varied throughout the history of the United States, the Biden administration's decision to take an active role in the Thacker Pass mine marks a shift from the cases of the Crandon mine and the Peabody mine, where the federal government was actively helpful or passively unhelpful respectively. Rather, the case is more in line with the Oak Flat mine dispute, where the federal government's involvement in support of the mine has made a favorable negotiated outcome for the tribes all but impossible by severely weakening the tribe's negotiation power. Also as in that dispute, the Western Shoshone and Paiute tribes have employed similar legal arguments about the sacredness of the land as a method to oppose the mine.

Despite the apparent imbalance of the parties, there are still important reasons for the Bureau of Land Management and the Lithium Nevada Corp. to employ a more integrative negotiation strategy with the Shoshone and Paiute: they are long-term neighbors. While the competitive bargaining model has obvious appeal as a way to secure immediate gains, the life-cycle of a mine can be many decades, and in some cases, over a century. Because the integrative approach often yields better outcomes in cases where the preservation or maintenance of a long-term relationship is prioritized, the fact that Lithium Nevada Corp. will have to contend with the Shoshone and Paiute for decades means that an all-or-nothing approach may cause decades of costly and tumultuous conflict, as in the Peabody mine example.

Regardless of how the Thacker Pass mining dispute resolves, the intersection of tribal mining disputes and dispute resolution theory remains fertile ground for analysis and creative problem-solving. Although this note focused primarily on negotiation theory, tribes and their mining company counterparts engage in a variety of complex dispute resolution tactics that can and should be understood within broader dispute resolution frameworks. Future scholarship and research in this field should seek to apply other dispute-resolution theory to tribal mining disputes. While some scholarship already exists on the question of how sovereign immunity for tribes impacts whether arbitration agreements with tribes are binding, expanding those inquiries to a broader investigation of the relationship between dispute resolution and tribes is new and important work.

Tribes are sophisticated and intelligent parties that are subject to substantial conflict with mining companies and the federal government. The fact that they are remarkably open about their strategies, constraints, and goals makes them excellent leaders and teachers in negotiation theory and dispute resolution more broadly. While recent trends in federal government policy on mining have been troubling, the author hopes that this contribution summarizing achievements and challenges in mining negotiations can assist in some way to help community leaders and decision-makers at mining companies come to informed, productive, and safe agreements.

J.D. Candidate, 2025, University of Minnesota Law School; B.S., 2018, University of Wisconsin-Madison.