Tribal elder Jorigine Paya learned from her elders how she must always show respect for the ancestors whenever passing Ha’Kamwe’, a hot spring sacred to the Hualapai Tribe in northern Arizona.

Something must be offered – “even if you just pick up some earth and spread it around,” Paya explains. “Our ancestors are welcoming you and protecting you.”

The Hualapai and other tribes have used Ha’Kamwe’ for centuries for healing, prayer, and rites of passage, such as childbirth and coming-of-age ceremonies for young women.

Now Paya and other Hualapai are fighting to save the spring. An Australian company on the hunt for lithium is drilling exploratory holes deep underground, in some cases just yards away from Ha’Kamwe’. In recent months, the water level of the spring has been dropping, according to Hualapai leaders, amid the continuous drilling.

Indigenous communities are likely to experience greater threats from mining interests in the Western U.S., with the rising demand for minerals needed for the transition from fossil fuels to clean energy.

Lithium, like other critical minerals, is needed to produce rechargeable batteries, electric vehicles, solar panels, and wind turbines. In fact, the World Bank projects that demand for some critical minerals will grow by as much as 500% by 2050 to meet the additional demand from the clean energy transition.

And the Hualapai are not alone in seeing a threat. Of the untapped critical minerals in the U.S., some 97% of nickel, 89% of copper, 79% of lithium, and 68% of cobalt – all considered key for energy transition – are within 35 miles of Native American reservations.

Earthjustice, the Hualapai, and many other Indigenous groups are united in the belief that we can electrify our cars, trucks, and buses to end dependence on fossil fuels without replicating the toxic burdens that our current energy system imposes on certain communities. One place to start: reforming the General Mining Act of 1872 that has incentivized reckless mining on federal land for 150 years.

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A Reckless Approval

In February, Phil Wisely, the Hualapai’s director of public services, and Ivan Bender, the caretaker of the land surrounding Ha’Kamwe’, took attorneys down dirt and gravel roads to see some drill sites.

At each site, a subcontractor of the Australian miner Hawkstone left behind holes, several inches in diameter and more than a hundred feet deep, and a mound of concrete – even though federal law requires the land to be restored to its natural state.

At one point, Bender wiped his eyes, saying his ancestors were buried throughout the drilling area. Mountains, including the Hualapai Mountains, surround this arid region of Arizona.

“We want to preserve this land for the next generation,” Bender said. “We don’t want to tell our children, ‘It was a

beautiful country.’ We want to say, ‘This is your land.'”

Over the past few years, Hawkstone has been drilling on three sides of Hualapai land in Arizona’s Big Sandy River Valley. After the explorations are complete, Hawkstone plans to create an open-pit mine for lithium on federal land, which was once Hualapai land but is now overseen by the Bureau of Land Management (BLM). Last summer, the company’s U.S. general manager at the time estimated that producing 20,000 tons of battery-grade lithium could generate enormous wealth: some $260 million in gross annual revenue.

The Hualapai are arguing that BLM has violated their rights in the oversight of this project. Representing the Tribe, Earthjustice attorneys have found that BLM failed to follow federal law when they allowed the exploratory drilling. In particular, the agency did not conduct a required analysis of impacts on the Hualapai’s cultural and spiritual resources. Nor did BLM’s draft environmental assessment properly analyze the impacts on threatened species. Nor did the agency consult with the Tribe before issuing the assessment, as required by the National Environmental Policy Act, or NEPA.

The agency’s Kingman Office, which approved the work, concluded that because the work would not be done on tribal land, there were no tribal impacts to consider.

“Despite the Hualapai’s very explicit communication with BLM, the Tribe is still waiting for meaningful tribal consultation and participation in the NEPA process, as well as a thorough analysis of the health and safety impacts on Ha’Kamwe’,” says attorney Laura Berglan, who is leading the legal work with the Hualapai for Earthjustice, co-counsel with Western Mining Action Project.

Hualapai land is just yards away from some of the drilling locations. The agency’s map shows that more than 130 drilling sites have been proposed, with many already drilled.

NEPA requires an assessment of impacts on adjacent land, such as Hualapai land, along with impacts from previous exploratory drilling projects. The environmental assessment that BLM conducted didn’t reveal the chemical composition of the substances used in drilling or analyze their impact on the aquifer and water quality. Nor did it analyze the impact of drilling on water resources that reflect the current severe drought conditions in northern Arizona.

A Long Legacy of Harm

This careless oversight is far from an outlier when it comes to the history of mining in the United States. Tellingly, the key law regulating the industry dates back 150 years to the Wild West.

Congress passed the antiquated General Mining Act of 1872, which incentivized colonizers to seize Indigenous land in the West. The law, which applies to 350 million acres of public land, allowed at the time automatic privatization of land that contained precious minerals, even if the land was already in use.

Mining companies were not required to pay royalties or clean up the toxic messes their mining caused. As a result, more than 500,000 abandoned mines exist, according to the Department of the Interior, with an estimated cleanup cost of $50 billion. Many sites have legacy pollution that continues to cause health problems, pollute water, and harm wildlife.

Although environmentalists have been pushing for mining reform for 50 years, the mining industry and its allies in Congress have stood in the way.

The poor regulation brought terrible results during the last energy breakthrough. Uranium booms in the 1950s and 1970s left radioactive waste sites throughout the Western U.S. Members of the Navajo Tribe suffered deaths from lung cancer and a degenerative disease called Navajo neuropathy. Radioactive mine waste mixed into drinking water and concrete used to build homes.

A Push for Reform

Earthjustice’s Blaine Miller-McFeeley works the halls of Congress for better laws. A few years ago, he became alarmed about the talk around the clean energy transition and his area of focus mining. He kept hearing that the need for critical minerals is so great that we can’t worry about any resulting harm.

“I take offense to that attitude,” he says. “There’s just a certain understanding that we should do this on the backs of Indigenous people.”

For Miller-McFeeley, this either/or narrative of protecting the planet or protecting Indigenous people is a false choice. “You can do both,” he says.

The importance of mining reform hit him in the gut when he was helping Indigenous leaders prepare to testify before Congress about mining dangers.

“Having dinner with the chairman of the Tohono O’odham and hearing his emotion and his passion for his people helped me realize why this fight is so important,” says Miller-McFeeley.

In September, conservation and Indigenous groups including the Hualapai petitioned the Department of Interior and BLM for a rulemaking to establish critical mineral mining standards with environmental, health, and cultural resource protections to end the type of abuses that harmed Indigenous groups like the Navajo.

To bring mining out of the 1870s, the groups are seeking the highest environmental standards and meaningful tribal consultations, including a provision allowing mining-impacted communities to reject a proposed mine project.

In the last year, mining reform was initially included in the Build Back Better Act, but the provision failed under Republican opposition and the lack of support from a couple of Democrats – Rep. Catherine Cortez Masto and Sen. Joe Manchin – both of whom opposed a requirement that mining companies pay royalties to the federal government.

Many conservation and Indigenous groups have said the demand for critical minerals should be met as much as possible through the circular economy, where minerals are recycled or reused to extend their life.

The U.S. has not been a leader here. “The United States is behind nations in the European Union that operate critical mineral recycling facilities,” says Miller-McFeeley, who points to a lack of laws and incentives as a key reason.

More Mining Ahead

Meanwhile, as mining reform works through the nation’s political logjam, the Hualapai worry not only about the survival of their sacred spring but also about other other threats from mining companies.

In addition to Hawkstone’s drilling, the Hualapai learned during a February meeting with officials from BLM’s Kingman Office that other mining companies are looking to drill dozens of holes deep underground near Hualapai land for lithium, copper, and other minerals.

While industry eyes potential riches, BLM’s regional office is failing to live up to the Biden administration’s promises.

The Hualapai filed comments with BLM in June 2021 and supplemental comments in July, raising many objections to the flawed environmental assessment. Now, the Tribe and Earthjustice are waiting for a revised environmental assessment that BLM officials say they’re working on.

Tribal Chairman Dr. Damon Clarke says the Hualapai are fighting to ensure BLM fully follows federal law.

“We don’t want our cultural resources to be needlessly ruined for the benefit of mining companies that only seek to exploit the land for profit,” says Clarke. “Our heritage is vital to us.”

This blog was originally published in March 2022. It was updated with additional details in October 2022.