The FDI angle:

• 89% of copper, 79% of lithium, 97% of nickel and 68% of cobalt resources in the US are within 35 miles of Native American reservations. 
• Rightly or wrongly, tribal claims hinder the US in its race to beat out competition to become a leader in green technologies. 
• Why does this matter? As the US tries to secure domestics supply chains of critical minerals, any bottleneck means extending its dependence on imports, mostly from China, of such minerals. 

In the US, Arizona is sometimes known as the Copper State. It is home to the proposed Resolution Copper project, which is set to supply one quarter of the nation’s demand for the red metal and become the biggest copper mine in North America. Since Congress greenlit the project in 2014, its developers Rio Tinto and BHP have ploughed more than $2bn into the mine. But the project has been delayed by a long-running dispute with Native American communities over its damage to Oak Flat, an area of spiritual significance to the San Carlos Apache people. After their protests, lawsuits and appeal to the UN to intervene, the government committed to reassessing the project. Its final approval, expected last year, has yet to materialise. The controversy has, quite simply, put the project in a bind. 

Bottlenecks appear

Resolution Copper is not the only critical minerals mine delayed by Native American legal challenges. The $2.3bn Thacker Pass project, in northern Nevada along the Oregon border, is sitting on the largest known source of lithium in the US. Yet since gaining government approval in 2021, it has been dragged into court battles with tribes claiming they were not properly consulted on the project’s desecration of what they say is the site of a 19th-century massacre. 

Research by consultancy MSCI has found that 89% of copper, 79% of lithium, 97% of nickel and 68% of cobalt resources in the US are within 35 miles of Native American reservations, or the areas recognised by the government as the ancestral lands of the country’s 574 tribes. Forced displacement means that areas used for traditional practices, or that house sacred — and sometimes burial — sites are often beyond the borders of reservations.

Conflict between Native American tribes and resource projects is not new. The recent movie Killers of the Flower Moon shone a spotlight on the oil industry’s murderous and exploitative past regarding fossil fuels on native land. In December, a court ordered Italian power company Enel to remove 84 wind turbines from tribal land after failing to obtain all permits. But the White House’s drive to expand its domestic critical mineral supply chain has raised the stakes. Rightly or wrongly, tribal claims hinder the US in its race to beat out competition to become a leader in green technologies. “[This] is a bottleneck that you wouldn’t see as much in China, for example,” says Adam Megginson, an analyst at Benchmark Mineral Intelligence.

Not the Wild West

The legal route for Native Americans wanting to oppose a proposed mine is to make submissions on the project’s cultural impact which are considered by the government before issuing a permit under the National Environmental Policy Act (Nepa). But while Nepa requires the government to consider a mine’s impact on tribes, it does not mandate a particular outcome. “[It] could acknowledge a project’s destruction of cultural heritage, but approve it anyway,” says Heather Sibbison, chair of law firm Dentons’ Native American Law and Policy practice.

Crucially, Nepa does not require miners to consult local tribes. According to the National Mining Association, the industry recognises that its tribal outreach obligations go beyond US law. Those developing Resolution Copper and Thacker Pass have issued statements detailing their decade-long engagement with, and accommodation of, local tribes. The former has relinquished land, is protecting the most culturally-important areas and will maintain tribe’s access to Oak Flat during the underground mine’s operation. Canada’s Lithium Americas, which is developing Thacker Pass, is building a daycare centre and schools under a community benefits package with the local Fort McDermitt tribe. Some 20% of the mine’s workforce are Native Americans, who are among the poorest communities in the US. 

But Don Pongrace, head of Akin Gump’s American Indian law and policy practice, says many mining groups have “had pretty clumsy efforts at tribal outreach” and wants more bespoke engagement. “The problem is they bring the same type of negotiation and packages to US tribal groups that they use for south-east Asia,” he says.

Many large miners profess to uphold industry best practices by obtaining the free, prior and informed consent of indigenous communities before embarking on a mine. But knowing a tribe could reject and derail the project makes this “a difficult balancing act for mining companies”, says Tom Drabble, an ESG analyst at Benchmark Mineral Intelligence. 

Social licence

Lawyers and Native American representatives agree that an enforceable regulatory obligation on miners to consult with tribes during early project planning could help address their concerns and reduce investment risks. Ms Sibbison says consultation usually does not occur until the development is at a point where it would be hard to backtrack, and it can only become a roadblock. “That is not a constructive way to try to get to some place where everybody’s comfortable,” she says. Daniel Cardenas, CEO of the National Tribal Energy Association, says a stronger legal responsibility to respect Native American rights could lead to fewer and more nuanced disputes. 

Miners are also being encouraged to engage with tribal members, not just leaders. Groups like Apache Stronghold, which has sued Resolution Copper, and People of Red Mountain, which is among Thacker Pass’s fiercest opponents, are not government-recognised tribes. They are affiliations between (often young) tribe members disgruntled at their elders’ decision to support a mine, environmentalists and others opposing the same project. In explaining her decision to co-found People of Red Mountain, Daranda Hinkey, member of the Fort McDermitt tribe, says: “There are some differences between the tribal government and communities, so we wanted to be represented.”

Some suggest these groups are mobilised by advocacy groups looking to piggyback on the power of Native American claims to resonate with the public. Either way, they have shown they are a force in resisting mining projects and revealed the need to consult different levels of Native American communities. 

For the switch to a green economy to be a net gain for society, more must be done to respect and accommodate tribal links to the land. While mining’s impact on indigenous communities in resource-rich places in Africa is rightly gaining more attention, the plight of these groups in developed countries should not be overlooked. “A just transition is often associated with the global south where a lot of these minerals are located,” says Mr Drabble. “But it’s also a problem for North America.” 

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This article first appeared in the December 2023/January 2024 print edition of fDi Intelligence