(Photo courtesy Max Wilbert)
A federal judge in Nevada has rejected a legal effort to stop excavation at the site of a planned lithium mine near the Oregon-Nevada border, turning down requests from Native American tribes to reconsider additional evidence that a massacre took place in the area.
U.S. District Judge Miranda Du ruled earlier this month that Canadian-owned Lithium Americas Corp. may continue excavation work being conducted at the Thacker Pass lithium mine development site.
The additional evidence presented by the Reno-Sparks Indian Colony and the Burns Paiute Tribe included written records and two eyewitness accounts of federal soldiers massacring at least 31 Paiute men, women, and children at Thacker Pass in 1865.
Tribes in Nevada consider Thacker Pass a sacred place and refer to it as “Peehee mu’huh” which translates to “rotten moon” in honor of their ancestors who were massacred in an area of the Pass shaped like a moon. The Reno-Sparks Indian Colony has argued that excavation of their ancestral land is “like disturbing Pearl Harbor or Arlington National Cemetery.”
However, Judge Du argued the newly presented evidence “does not definitely establish that a massacre occurred” within the proposed project site, calling the evidence “too speculative” to grant a halt on planned archaeological digs in Thacker Pass.
“While the Court agrees with RSIC and the Burns Paiute Tribe that this additional evidence further highlights the shameful history of the treatment of Native Americans by federal and state governments, it does not persuade the Court that it should reconsider,” wrote Judge Du in her decision.
Excavations of the site will not begin immediately. Lithium Nevada, a subsidiary of Lithium Americas, must first complete archaeological surveys of the area before construction of the mine can move forward.
Far Western Anthropological Research Group is currently seeking authorization from the Bureau of Land Management to conduct archaeological excavations at Thacker Pass, but BLM had not yet granted the group a permit as of Friday.
“That could be tomorrow, that could be next week, or it could be next spring. We just have to be prepared for many different scenarios,” said Will Falk, the attorney representing tribes in the lawsuit.
Tim Crowley, vice president of government affairs and community relations for Lithium Nevada, said the company is working with the Fort McDermitt Paiute-Shoshone Tribe to ensure impacts to historic artifacts are mitigated.
“The purpose of the less than 0.3 acre surface disturbance at issue in the motion is cultural resource preservation,” said Crowley in a statement. “As the specialists complete the cultural preservation work, we are committed to working closely with the Fort McDermitt Paiute Shoshone tribe who will monitor the work and ensure artifacts are protected and preserved in a way most suitable to tribal interests.”
Now lawyers for the tribes are seeking additional legal avenues to challenge construction of the lithium mine, including what they say is “growing evidence” that BLM failed to follow the Archaeological Resources Protection Act and the Native American Graves Protection and Repatriation Act. Council for the tribes have also not ruled out appealing Judge Du’s decision.
Thacker Pass is the traditional homeland of several related Indigenous nations, including the Shoshone-Paiute Tribes of the Duck Valley Reservation, the Fort McDermitt Paiute Shoshone Tribe, Lovelock Paiute Tribe, Fallon Paiute Shoshone Tribe, Pyramid Lake Paiute Tribe and the Reno-Sparks Indian Colony.
Tribal leaders argue BLM failed to consult all tribes who attach religious and cultural significance to Thacker Pass, sidestepping “meaningful government-to-government consultation with all of the tribes that are connected to Thacker Pass.”
The Reno-Sparks Indian Colony joined the lawsuit after receiving a letter from the BLM denying its request for government-to-government consultation under the National Historic Preservation Act, which gives tribes the right of consultation when a project will affect areas of religious or cultural significance to the tribe.
Lawyers for the tribes say tribes who were contacted by BLM were also not afforded a reasonable opportunity to respond to BLM, which they claim violated federal law.
“Just because BLM uses the proper buzzwords – terms like ‘initiating formal consultation’ and ‘formal government-to-government consultation,’ this does not mean BLM actually engaged in formal government-to-government consultation,” wrote attorneys for the Reno-Sparks Indian Colony and the People of Red Mountain, a group of native peoples opposing the proposed mine.
The court is still considering the broader question of whether former President Donald Trump’s administration erred when it approved the project in January. That ruling is expected by early 2022.
The case, however, has put a spotlight on the role federal and state governments played in the murder of Indigenous peoples in Nevada’s history.
One eyewitness account of the Thacker Pass Massacre includes a Paiute man named Ox Sam, whom many People of Red Mountain members say they are directly descended from. In the account recorded by American labor organizer Big Bill Haywood, Sam says his father, mother, sisters, and brothers were massacred by the army cavalry at Thacker Pass.
The massacre was also recorded in a September 23, 1865 article in The Humboldt Register newspaper. The account describes the 1st Nevada Cavalry ambushing a camp of Indigenous peoples who “broke and ran” before being chased down by the cavalry.
Accounts of the massacre made their way up to Idaho where The Owyhee Avalanche, in its first year of publication, printed an article describing cavalry soldiers pursuing a camp of Indigenous peoples at Thacker Pass “over several miles of ground for three hours, in which time all were killed that could be found.”
“The memory of the massacre lives on in the land. Destroying the land where the massacre happened makes it more difficult to imagine that massacre,” said Falk. “Destroying massacre sites destroys the evidence of the massacres. And, when the American government and others have worked to suppress the history of genocide against Native Americans, we need to preserve those massacre sites.”
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