The disparity between Indigenous and white incarceration in Washington has roughly doubled over the past…
The post Indigenous people in WA incarcerated at higher rates than any other group, data show first appeared on InvestigateWest.
The post Indigenous people in WA incarcerated at higher rates than any other group, data show appeared first on InvestigateWest.
Kalle Benallie
ICT
A Cherokee citizen is among President Joe Biden’s nominees for federal judge seats.
Former Cherokee Nation Attorney General Sara Hill was nominated Wednesday to serve as a federal judge in the United States District Court for the Northern District of Oklahoma.
If confirmed by the U.S. Senate, she would be the first Native American woman to serve as a federal judge in Oklahoma. Hill is Biden’s fourth Native judicial nominee.
“She is a brilliant attorney and dedicated public servant who possesses the knowledge, demeanor and compassion to serve the country well on the bench. As a female and a citizen of the Cherokee Nation, she not only adds diversity to the ranks of federal judges, she also brings knowledge of Indian Country issues that we need more among federal judges,” Cherokee Nation Principal Chief Chuck Hoskin said.
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Hill previously served the Cherokee Nation as secretary of natural resources from 2015 to 2019 and most recently as attorney general for the tribe from 2019 to 2023. She is currently a lawyer in private practice.
Her other work experience includes being an assistant attorney general from 2004 to 2014, deputy attorney general from 2014 to 2015 and special assistant U.S. attorney in the U.S. Attorney’s Office for the Northern District of Oklahoma from 2014 to 2015.
Hill received her juris doctor degree from the University of Tulsa in 2003 and her bachelors from Northeastern State University in 2000.
The National Congress of American Indians and the Native American Rights Fund have issued their support for Hill.
“Sara Hill will bring unparalleled experience in law and policy to our justice system. NCAI urges the swift confirmation of Ms. Hill as the nomination moves before the U.S. Senate,” Larry Wright Jr, executive director at the National Congress of American Indians, said in a press release.
Native American Rights Fund Executive Director John Echohawk said Hill has a “strong history of public service and possesses excellent qualifications to be a federal judge.”
Additionally, Shanlyn Park, Native Hawaiian, was nominated by U.S. Sens. Mazie K. Hirono and Brian Schatz to be a judge on the U.S. District Court for the District of Hawai’i
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The National Congress of American Indians, Native American Rights Fund and the National Native American Bar Association have expressed their support of Park’s nomination to Sen. Richard Durbin, chairman of the Senate Judiciary Committee, and Sen. Lindsay Graham, ranking member on the committee.
“Judge Park is highly qualified for a federal judgeship. She is an experienced judge and before her appointment to the state court where she currently serves, she was an exceptionally accomplished litigator with experience litigating in state and federal courts, on complex criminal and civil matters, in private practice and in public service as a federal prosecutor,” the press release states.
If appointed and confirmed, Park would be the first Native Hawaiian woman federal judge in Hawaiʻi.
Park and fellow nominee Micah Smith went before the senate judiciary committee on Oct. 4.
Park’s prior work experience includes being a law clerk for Judge Francis I. Yamashita, U.S. Magistrate Judge for the District of Hawai’i from 1995 to 1996; working at a private practice at Hisaka Stone & Goto from 1996 to 1997; an assistant federal public defender in the Office of the Federal Public Defender for the District of Hawai’i from 1997 to 2017; work at the the Honolulu law firms McCorriston Miller Mukai MacKinnon, L.L.P. and Gallagher Kane Amai & Reyes from 2017 to 2021. She currently serves as a state court judge on the First Circuit Court on Oahu.
Hill received her juris doctor from the University of Hawai’i William S. Richardson School of Law in 1995 and her bachelors of arts from Chaminade University of Honolulu in 1991.
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A lawyer named T.F. Neighbors, who was special assistant to the U.S. attorney general, foresaw the likely outcome if the federal government failed to assert tribes’ claims to the river: States would consume the water and block tribes from ever acquiring their full share.
This story is the sixth in our Waiting for Water series about the Colorado River. Get this and other great reporting from High Country News by signing up for our newsletter.
In 1953, as Neighbors helped prepare the department’s legal strategy, he wrote in a memo to the assistant attorney general, “When an economy has grown up premised upon the use of Indian waters, the Indians are confronted with the virtual impossibility of having awarded to them the waters of which they had been illegally deprived.”
As the case dragged on, it became clear the largest tribe in the region, the Navajo Nation, would get no water from the proceedings. A lawyer for the tribe, Norman Littell, wrote then-Attorney General Robert F. Kennedy in 1961, warning of the dire future he saw if that were the outcome. “This grave loss to the tribe will preclude future development of the reservation and otherwise prevent the beneficial development of the reservation intended by the Congress,” Littell wrote.
Both warnings, only recently rediscovered, proved prescient. States successfully opposed most tribes’ attempts to have their water rights recognized through the landmark case, and tribes have spent the decades that followed fighting to get what’s owed to them under a 1908 Supreme Court ruling and long-standing treaties.
The possibility of this outcome was clear to attorneys and officials even at the time, according to thousands of pages of court files, correspondence, agency memos and other contemporary records unearthed and cataloged by University of Virginia history professor Christian McMillen, who shared them with ProPublica and High Country News. While Arizona and California’s fight was covered in the press at the time, the documents, drawn from the National Archives, reveal telling details from the case, including startling similarities in the way states have rebuffed tribes’ attempts to access their water in the ensuing 70 years.
Many of the 30 federally recognized tribes in the Colorado River Basin still have been unable to access water to which they’re entitled. And Arizona for years has taken a uniquely aggressive stance against tribes’ attempts to use their water, a recent ProPublica and High Country News investigation found.
“It’s very much a repeat of the same problems we have today,” Andrew Curley, an assistant professor of geography at the University of Arizona and member of the Navajo Nation, said of the records. Tribes’ ambitions to access water are approached as “this fantastical apocalyptic scenario” that would hurt states’ economies, he said.
Arizona sued California in 1952, asking the Supreme Court to determine how much Colorado River water each state deserved. The records show that, even as the states fought each other in court, Arizona led a coalition of states in jointly lobbying the U.S. attorney general to cease arguing for tribes’ water claims. The attorney general, bowing to the pressure, removed the strongest language in the petition, even as Department of Justice attorneys warned of the consequences. “Politics smothered the rights of the Indians,” one of the attorneys later wrote.
“This grave loss to the tribe will preclude future development of the reservation and otherwise prevent the beneficial development of the reservation intended by the Congress.”
The Supreme Court’s 1964 decree in the case quantified the water rights of the Lower Basin states — California, Arizona and Nevada — and five tribes whose lands are adjacent to the river. While the ruling defended tribes’ right to water, it did little to help them access it. By excluding all other basin tribes from the case, the court missed an opportunity to settle their rights once and for all.
The Navajo Nation — with a reservation spanning Arizona, New Mexico and Utah — was among those left out of the case. “Clearly, Native people up and down the Colorado River were overlooked. We need to get that fixed, and that is exactly what the Navajo Nation is trying to do,” said George Hardeen, a spokesperson for the Navajo Nation.
Today, millions more people rely on a river diminished by a hotter climate. Between 1950 and 2020, Arizona’s population alone grew from about 750,000 to more than 7 million, bringing booming cities and thirsty industries.
Meanwhile, the Navajo Nation is no closer to compelling the federal government to secure its water rights in Arizona. In June, the Supreme Court again ruled against the tribe, in a separate case, Arizona v. Navajo Nation. Justice Neil Gorsuch cited the earlier case in his dissent, arguing the conservative court majority ignored history when it declined to quantify the tribe’s water rights.
McMillen agreed. The federal government “rejected that opportunity” in the 1950s and ’60s to more forcefully assert tribes’ water claims, he said. As a result, “Native people have been trying for the better part of a century now to get answers to these questions and have been thwarted in one way or another that entire time.”
As Arizona prepared to take California to court in the early 1950s, the federal government faced a delicate choice. It represented a host of interests along the river that would be affected by the outcome: tribes, dams and reservoirs and national parks. How should it balance their needs?
The Supreme Court had ruled in 1908 that tribes with reservations had an inherent right to water, but neither Congress nor the courts had defined it. The 1922 Colorado River Compact, which first allocated the river’s water, also didn’t settle tribal claims.
In the decades that followed the signing of the compact, the federal government constructed massive projects — including the Hoover, Parker and Imperial dams — to harness the river. Federal policy at the time was generally hostile to tribes, as Congress passed laws eroding the United States’ treaty-based obligations. Over a 15-year period, the country dissolved its relationships with more than 100 tribes, stripping them of land and diminishing their political power. “It was a very threatening time for tribes,” Curley said of what would be known as the Termination Era.
Tribal water rights were “prior and superior” to all other water users in the basin, even states.
So it was a shock to states when, in November 1953, Attorney General Herbert Brownell Jr. and the Department of Justice moved to intervene in the states’ water fight and aggressively staked a claim on behalf of tribes. Tribal water rights were “prior and superior” to all other water users in the basin, even states, the federal government argued.
Western states were apoplectic.
Arizona Gov. John Howard Pyle quickly called a meeting with Brownell to complain, and Western politicians hurried to Washington, D.C. Under political pressure, the Department of Justice removed the document four days after filing it. When Pyle wrote to thank the attorney general, he requested that federal solicitors work with the state on an amended version. “To have left it as it was would have been calamitous,” Pyle said.
The federal government refiled its petition a month later. It no longer asserted that tribes’ water rights were “prior and superior.”
When details of the states’ meeting with the attorney general emerged in court three years later, Littell, the Navajo Nation’s attorney, berated the Department of Justice for its “equivocating, pussy-footing” defense of tribes’ water rights. “It is rather a shocking situation, and the Attorney General of the United States is responsible for it,” he said during court hearings.
Arizona’s legal representative balked at discussing the meeting in open court, calling it “improper.”
Experts told ProPublica and High Country News that it’s impossible to quantify the impact of the federal government’s failure to fully defend tribes’ water rights. Reservations might have flourished if they’d secured water access that remains elusive today. Or, perhaps basin tribes would have been worse off if they had been given only small amounts of water. Amid the overt racism of that era, the government didn’t consider tribes capable of extensive development.
Jay Weiner, an attorney who represents several tribes’ water claims in Arizona, said the important truth the documents reveal is the federal government’s willingness to bow to states instead of defending tribes. Pulling back from its argument that tribes’ rights are “prior and superior” was but one example.
“It’s not so much the three words,” Weiner said. “It’s really the vigor with which they would have chosen to litigate.”
“It is rather a shocking situation, and the Attorney General of the United States is responsible for it.”
Because states succeeded in spiking “prior and superior,” they also won an argument over how to account for tribes’ water use. Instead of counting it directly against the flow of the river, before dealing with other users’ needs, it now comes out of states’ allocations. As a result, tribes and states compete for the scarce resource in this adversarial system, most vehemently in Arizona, which must navigate the water claims of 22 federally recognized tribes.
In 1956, W.H. Flanery, the associate solicitor of Indian Affairs, wrote to an Interior Department official that Arizona and California “are the Indians’ enemies and they will be united in their efforts to defeat any superior or prior right which we may seek to establish on behalf of the Indians. They have spared and will continue to spare no expense in their efforts to defeat the claims of the Indians.”
As arguments in the case continued through the 1950s, an Arizona water agency moved to block a major farming project on the Colorado River Indian Tribes’ reservation until the case was resolved, the newly uncovered documents show. Decades later, the state similarly used unresolved water rights as a bargaining chip, asking tribes to agree not to pursue the main method of expanding their reservations in exchange for settling their water claims.
Highlighting the state’s prevailing sentiment toward tribes back then, a lawyer named J.A. Riggins Jr. addressed the river’s policymakers in 1956 at the Colorado River Water Users Association’s annual conference. He represented the Salt River Project — a nontribal public utility that manages water and electricity for much of Phoenix and nearby farming communities — and issued a warning in a speech titled, “The Indian threat to our water rights.”
“I urge that each of you evaluate your ‘Indian Problem’ (you all have at least one), and start NOW to protect your areas,” Riggins said, according to the text of his remarks that he mailed to the Bureau of Indian Affairs.
Riggins, who on multiple occasions warned of “‘Indian raids’ on western non-Indian water rights,” later lobbied Congress on Arizona’s behalf to authorize a canal to transport Colorado River water to Phoenix and Tucson. He also litigated Salt River Project cases as co-counsel with Jon Kyl, who later served as a U.S. senator. (Kyl, who was an architect of Arizona’s tribal water rights strategy, told ProPublica and High Country News that he wasn’t aware of Riggins’ speech and that his work on tribal water rights was “based on my responsibility to represent all of the people of Arizona to the best of my ability, which, of course, frequently required balancing competing interests.”)
While Arizona led the opposition to tribes’ water claims, other states supported its stance.
“We thought the allegation of prior and superior rights for Indians was erroneous,” said Northcutt Ely, California’s lead lawyer in the proceedings, according to court transcripts. If the attorney general tried to argue that in court, “we were going to meet him head on,” Ely said.
When Arizona drafted a legal agreement to exclude tribes from the case, while promising to protect their undefined rights, other states and the Interior Department signed on. It was only rejected in response to pressure from tribes’ attorneys and the Department of Justice.
McMillen, the historian who compiled the documents reviewed by ProPublica and High Country News, said they show Department of Justice staff went the furthest to protect tribal water rights. The agency built novel legal theories, pushed for more funding to hire respected experts and did extensive research. Still, McMillen said, the department found itself “flying the plane and building it at the same time.”
Tribal leaders feared this would result in the federal government arguing a weak case on their behalf. The formation of the Indian Claims Commission — which heard complaints brought by tribes against the government, typically on land dispossession — also meant the federal government had a potential conflict of interest in representing tribes. Basin tribes coordinated a response and asked the court to appoint a special counsel to represent them, but the request was denied.
So too was the Navajo Nation’s later request that it be allowed to represent itself in the case.
More than 60 years after Littell made his plea to Kennedy, the Navajo Nation’s water rights in Arizona still haven’t been determined, as he predicted.
The decision to exclude the Navajo Nation from Arizona v. California influenced this summer’s Supreme Court ruling in Arizona v. Navajo Nation, in which the tribe asked the federal government to identify its water rights in Arizona. Despite the U.S. insisting it could adequately represent the Navajo Nation’s water claims in the earlier case, federal attorneys this year argued the U.S. has no enforceable responsibility to protect the tribe’s claims. It was a “complete 180 on the U.S.’ part,” said Michelle Brown-Yazzie, assistant attorney general for the Navajo Nation Department of Justice’s Water Rights Unit and an enrolled member of the tribe.
In both cases, the federal government chose to “abdicate or to otherwise downplay their trust responsibility,” said Joe M. Tenorio, a senior staff attorney at the Native American Rights Fund and a member of the Santo Domingo Pueblo. “The United States took steps to deny tribal intervention in Arizona v. California and doubled down their effort in Arizona v. Navajo Nation.”
In June, a majority of Supreme Court justices accepted the federal government’s argument that Congress, not the courts, should resolve the Navajo Nation’s lingering water rights. In his dissenting opinion, Gorsuch wrote, “The government’s constant refrain is that the Navajo can have all they ask for; they just need to go somewhere else and do something else first.” At this point, he added, “the Navajo have tried it all.”
The federal government chose to “abdicate or to otherwise downplay their trust responsibility.”
As a result, a third of homes on the Navajo Nation still don’t have access to clean water, which has led to costly water hauling and, according to the Navajo Nation, has increased tribal members’ risk of infection during the COVID-19 pandemic.
Eight tribal nations have yet to reach any agreement over how much water they’re owed in Arizona. The state’s new Democratic governor has pledged to address unresolved tribal water rights, and the Navajo Nation and state are restarting negotiations this month. But tribes and their representatives wonder if the state will bring a new approach.
“It’s not clear to me Arizona’s changed a whole lot since the 1950s,” Weiner, the lawyer, said.
Anna V. Smith is an associate editor of High Country News. She writes and edits stories on tribal sovereignty and environmental
justice for the Indigenous Affairs desk from Colorado. @annavtoriasmith
Mark Olalde is an environment reporter with ProPublica, where he investigates issues concerning oil, mining, water and other topics around the Southwest.
We welcome reader letters. Email High Country News at editor@hcn.org or submit a letter to the editor. See our letters to the editor policy.
Speaking out: Rural communities of color changing the narrative
The nearly 14 million people of color who live in rural America face unique challenges that run the gamut — from navigating racism in real estate, environmental regulation and the justice system to gaining access to healthcare and broadband. This six-part series from the Rural News Network, made possible with support from the Walton Family Foundation, explores the issues these communities are facing and what some are doing to change their fates.
Bethany Sam feels a spiritual connection to the high desert of northern Nevada.
A member of the Standing Rock Sioux Tribe and the Kutzadik’a Paiute people, Sam works for the Reno-Sparks Indian Colony, whose reservation sits just north of Reno, Nevada.
It’s about 200 miles from what could be the country’s largest natural deposit of lithium, a critical mineral suddenly in high demand for use in electric vehicle batteries and electronics.
The distance doesn’t mean Reno-Sparks won’t be affected by the decades-long process of extracting the material from the ground and putting it into the domestic supply chain. A Canadian firm, Lithium Americas, has received federal approval to begin mining at the site, and several indigenous and environmental groups are worried about the potential impacts.
While the tribal government nearest to the project has a community benefits agreement with the company, residents of the Fort McDermitt Indian Reservation and other nearby reservations are dissatisfied with the level of community outreach by federal officials.
Sam said regional tribes, who are all connected to the land, were not consulted, and the U.S. Bureau of Land Management instead opted to communicate with just a few tribes.
“BLM thought that they only had to consult with who they wanted to, not realizing how we’re all related. They should have reached out to more tribes with this consultation, knowing that it was going to be the largest [lithium mine] in the country. They should have really made sure all the Great Basin tribes knew,” she said.
Since its inception, the state of Nevada has been a hotbed for mining. The state was granted statehood during the Civil War, and contributed greatly to the Union through its gold and silver reserves. The Comstock Lode, a major silver ore, sparked mass settlement into the area as people sought to make their fortunes. One such man was a young writer named Samuel Clemens, who upon failing at the mines, took up a job at the local newspaper. It’s here he was first published using his pen name, Mark Twain.
Today, Nevada is the world’s fifth largest producer of gold, digging up significantly more of the valuable material than “The Golden State” of California next door. But, there is another extractive industry taking root in the remote high desert of northern Nevada: lithium.
A 6,000-acre lithium mine and processing plant is under construction in remote northern Nevada, but the project has been stalled by a series of legal challenges from environmentalists, a local rancher and regional tribes. The tribes have said the Bureau of Land Management did not conduct proper consultation with them about this project, which was approved during the pandemic when many tribal governments were closed and dealing with the immediate needs of tribal members.
When it comes to any large-scale projects on federally managed public lands, the BLM is required to consult on a government-to-government basis with affected tribal governments. In the case of the Thacker Pass lithium mine project in northern Nevada, tribes across the Great Basin say that didn’t happen – and that’s causing concern and division among tribal members.
The BLM says in December 2019, it sent certified letters to four regional tribes: the McDermitt Paiute and Shoshone Tribe, the Pyramid Lake Tribe, Summit Lake Paiute Tribe, and Winnemucca Indian Colony tribes. The agency says “no comments or concerns have been raised during formal government to government consultation for the Project by the tribes.”
With no objections raised, the BLM approved Lithium Americas’ plans in January 2021 — at the height of the COVID-19 pandemic.
Janet Davis, the chairwoman for the Pyramid Lake Paiute tribe, told Grist in 2021, “One letter and some emails to the THPO [Tribal Historic Preservation Officer] during the pandemic when she was furloughed does not constitute ‘meaningful consultation.”
Winnemucca Indian Colony chair Judy Rojos told the Nevada Current she didn’t receive a letter until April 2021, after the project had already been approved. And the Summit Lake Paiute Tribe sued the BLM in February 2023, claiming that they weren’t properly consulted on the mine either. Both of those attempts were ultimately rejected by a federal district court judge.
The Bureau of Land Management declined an interview for this story.
The project has caused division among residents of the Fort McDermitt Indian Reservation, which sits a few dozen miles from the mine site. The Tribal Council has been in favor of the project for the economic boom it would bring to the region, while some elders and others have said it would ruin sacred land and water.
That led some members of the Fort McDermitt Paiute and Shoshone Tribe to form a group, People of Red Mountain, which has been fighting to raise awareness of the project.
“Nobody really knew anything. It was just all this small talk going around about a lithium mine,” said organizer Chanda Callao.
Calls to the Fort McDermitt Tribal Government were not returned.
While not required, the company itself says it has been working with Fort McDermitt tribal members for years leading up to the start of the project.
“We have a vested interest in making sure that your communities thrive,” said Tim Crowley, vice president of government affairs for Lithium Americas.
The company has entered into a community benefits agreement with the Fort McDermitt Paiute and Shoshone tribes, pledging to build an 8,000 square feet community center that includes a daycare, preschool, playground, cultural facility and communal greenhouse.
“There is an initial investment that we’re making that’s north of $5 million,” Crowley said.
Crowley said all these legal challenges from tribes have been dismissed in court, and this mine is a good project. The federal government and state of Nevada have given the company all the necessary approvals, so he said it’s time to move forward.
Lithium is a metal that is used in lithium-ion batteries, which powers everything from smartphones and laptops to electric vehicles. The U.S. government has deemed it a critical mineral, with the Biden administration investing billions into domestic lithium development.
The Thacker Pass lithium mine project in rural Humboldt County, along the Nevada-Oregon border, will extract lithium from the ore and process that material into lithium-carbonate, the final component used to make batteries. The project will also include an on-site processing plant, which Crowley said helps to secure the domestic supply chain.
“In terms of scale, it’s large. It’s going to be one of the top five producers in the world, certainly the highest producer in domestic areas…it’s a game changer project,” said Crowley.
Lithium Americas has staked hundreds of mining claims in the area, and estimates that this mine could ultimately provide enough lithium for 1 million electric vehicles a year, for 40 years – and that’s just in the first phase.
The project has garnered attention from both the Trump and Biden administrations, investors and the auto industry, with General Motors recently agreeing to invest $650 million into the company. Crowley said GM will be buying all of the mine’s products for the first ten years, roughly 400,000 tons of lithium-carbonate.
“So we’re not worried about who’s going to take our material, we’re focused on making sure that we produce it in the most sustainable way we possibly can,” Crowley said.
A report from McKinsey & Company estimates the global demand for lithium-ion batteries to increase about 27% annually by 2030, with most of the growth coming from mobility. The Thacker Pass lithium mine project is significant, promising an economic windfall for the people of northern Nevada. But, it’s also causing division among rural communities, including among members of the Fort McDermitt Paiute and Shoshone Tribes.
Nestled within the vast expanse of the high desert of northern Nevada lies the Fort McDermitt Indian Reservation. The area, which crosses into Oregon, was first established as a military outpost in 1865 before it was converted into an American Indian reservation school in 1889.
Arnold Sam is a tribal elder who has lived at Fort McDermitt since he was born, and says it has always been hard to find work here. He’s had to travel to nearby cities, including Winnemucca, Battle Mountain, Denio and Carson City, before eventually retiring back at the reservation.
“I’ve been on the road for I don’t know how many years living out there in the white man’s world, working and all of that,” Sam said.
Economic opportunities are hard to come by in this part of rural America. According to the latest Census data, the median household income at the Fort McDermitt Indian Reservation is $16,477, more than $53,000 lower than the U.S. average.
In addition to the community benefits agreement, Lithium Americas says it is also providing opportunities for good-paying, union jobs, starting with construction, then transitioning to mining operations. But Sam said he’d like to see more from the company to help the day-to-day lives of the residents of this remote reservation, who travel roughly 74 miles to Winnemucca, Nev. for basic supplies and services.
“Bring in homes, we need a lot more homes. Bring in a grocery store or something so we [can] just go a little ways over here instead of driving to Winnemucca. Build another clinic, a bigger clinic,” Sam told the Sierra Nevada Ally.
Sam isn’t convinced the mining company is listening to the issues and concerns of tribal members.
“They don’t care. That’s all they’re talking about, is this money, money, money. They’re not thinking about the Indian people around here,” he said.
And he’s not alone.
Back in Reno, Bethany Sam (no relation to Arnold) said her traditional knowledge has helped her form a spiritual connection to the land.
“People just look at Mother Earth as the nature that you go recreate in, that you can go hike or go see really pretty waterfalls or things like that. But when it’s just open desert and nothing, they look at it as nothing,” Sam said.
After hearing from Fort McDermitt residents, many of whom said their tribal government wasn’t listening to their concerns, the Reno-Sparks Indian Colony began drawing up maps, outlining the cultural significance of the region. Michon Eben manages the colony’s cultural resource program and serves as its tribal historic preservation officer.
“We stated that this is our cultural area that we would like to be consulted on. However, if there was a big project, then we needed to be consulted,” Eben said.
She said BLM Winnemucca received letters from the RSIC and several tribes in 2021, showing their opposition to this specific project. Much of the resistance is because in the BLM’s documentation approving the mine, there was no mention of an 1865 massacre of Washoe, Shoshone and Paiute people that occurred near the proposed site.
“The environmental impact statement, the record of decision, the Memorandum of Agreement, the Cultural Resources Inventory, the Historic Property Treatment Plan, a lot of the permitting documents that BLM provided to Lithium [Americas] does not talk about the September 12, 1865 massacre, and that’s a historic event that should have been evaluated according to the National Historic Preservation Act.”
Eben argued the massacre site, and the region, is culturally significant, meaning it’s eligible for some protection as part of the Register of National Historic Places, managed by the National Parks Service. Because of this, she said federal agencies should have conducted interviews with regional tribes to better understand the cultural and historical significance. She helped put together a determination that was sent to BLM Winnemucca making her case.
“And a few weeks later, BLM Winnemucca wrote back and said, ‘Yes, they agree with the Reno-Sparks Indian Colony, that our determination is eligible, we recommend it eligible to the register of National Historic Places,” Eben said.
But, Eben said the BLM never sent that to the National Parks Service [NPS] – and that could mean the difference between protection and destruction. Property listings under the National Register of Historic Places generally offer no protections, unless “the property is involved in a project that receives Federal assistance, usually funding or licensing/permitting,” per the NPS.
The entirety of the Thacker Pass lithium mine project is on federal public lands.
The Bureau of Land Management Winnemucca declined to comment for this story, due to pending litigation. But, Lithium Americas has acknowledged that a massacre did occur, just not close enough to the mine.
“It’s been analyzed and studied extensively that regrettably there was a massacre in the Quinn River Basin, which is several miles from our project,” Tim Crowley with Lithium Americas said.
To Eben, that argument rings hollow. She said there are many members, residents and employees of the Reno-Sparks Indian Colony who have ties to the Thacker Pass area, and the entire mine project lies within the cultural district they are working to get recognized.
“It doesn’t matter about being the closest, what matters is that we’re all related,” she said.
This reporting is part of a collaboration with the Institute for Nonprofit News‘ Rural News Network, and the Energy News Network, Flatwater Free Press, Mississippi Free Press, New Mexico In Depth, Religion News Service and Sierra Nevada Ally. Support from the Walton Family Foundation made the project possible.
Driving to another site in Counselor Chapter, a small community in the eastern reaches of the Navajo Nation where the political chapters are outside the reservation boundaries, she described the different types of equipment — flare stacks, storage tanks, gas compressors — from which she commonly sees emissions. Pinto said that most air emissions seem to come from operators intentionally flaring or venting excess gases that build up in the equipment, rather than unintentional emissions, such as from aging underground pipes. She and her colleagues refrain from calling any emissions “leaks,” though: While these systems were designed to emit gas, usually as a safety mechanism, the vapor trails she films are often caused by malfunctioning equipment.
“If people were to be exposed to this air, they were also at risk of other non-cancer health outcomes, including respiratory, neurological and developmental effects.”
“These little flares should be lit and combusting all the hydrocarbons, but when you put the camera on (a lit flare), a portion of those hydrocarbons are still venting out into the atmosphere and along this horizon,” she said. “And that’s worrisome, because the air has no boundaries.”
The snow had ceased when Pinto trained the boxy, camcorder-
like device on another well site. To the naked eye, the row of 20-foot-tall storage tanks did not appear to be emitting anything unnatural. Using the camera, though, she toggled between monochrome and technicolor image modes, revealing a plume of hydrocarbons rising from an unlit flare stack near the tanks.
Across the region, wells suck crude oil and natural gas from shale formations thousands of feet below the surface. Some of the gas escapes, despite regulations to limit “venting and flaring” by operators. (Flaring is supposed to burn off the escaping methane, converting it to carbon dioxide, a less potent greenhouse gas.) At every juncture — from the wells extracting the hydrocarbons to the storage tanks, compressors and pipelines that convey the material — the system is rife with holes.
Hydrogen sulfide, a byproduct of oil and gas wells that smells like rotten eggs, is a frequent odor in oilfields. Even at very low concentrations, the toxic gas can sting the nostrils and cause nausea, dizziness, bloody nose and other acute symptoms. Inhaling extremely high concentrations of hydrogen sulfide in an enclosed space can kill a human almost immediately. The hydrocarbon soup that comes up from the shale also contains volatile organic compounds (VOCs), such as benzene, which has been shown to increase the risk of blood cancers and pregnancy complications.
A Harvard-led study of millions of people ages 65 and older showed that those living near fracking operations had a higher early mortality risk.
“If people were to be exposed to this air, they were also at risk of other non-cancer health outcomes, including respiratory, neurological and developmental effects,” said Lisa McKenzie, an associate professor with the Colorado School of Public Health who has studied the health impacts of oil and gas production.
The off-gassing benzene is one of the many air toxics that can escape from oil and gas infrastructure. Along with other VOCs like xylene and formaldehyde, the emissions contribute to air pollution in the form of ozone, nitrogen oxides and fine particulate matter. A 2022 study in Pennsylvania showed that children born within two kilometers (about 1.25 miles) of a fracking site were two to three times more likely to develop leukemia. In Colorado, McKenzie led studies showing that children with the blood cancer, as well as congenital heart defects, are more likely to live near oil and gas sites. Older people are also at risk: A Harvard-led study of millions of people ages 65 and older showed that those living near fracking operations — particularly downwind — had a higher early mortality risk compared to elderly people living in areas without wells.
In the mesa-lined valleys that surround Counselor, some wells pump petroleum within a few hundred feet of homes and traditional hogans; one well site lies less than 2,000 feet from a local school. The rural community’s exposure to VOCs and other air toxics has led to mounting concern among some residents about the potential health problems caused by the emissions.
PINTO, who captures footage at oil and gas sites in the area regularly, said she often has a headache “by mid-afternoon” in the field, and has also experienced eye and respiratory irritation that she attributes to exposure.
Given the enormous scale of the extraction activities and resulting air pollution in the Permian Basin — which straddles the New Mexico–Texas border — Pinto said the air-quality problems in her community are often overshadowed. “The problem for folks in this area is that the Permian will get a lot more attention than the San Juan Basin,” she said, noting that cleaning up the industry in the Four Corners region would likely prove more beneficial to human health. An Earthworks analysis shows that in the San Juan Basin, nearly 80% of the population lives within a half-mile of active oil and gas operations.
Another area drawing more media coverage and political attention lies closer to Counselor Chapter: In recent years, the U.S. Department of the Interior’s plan to halt federal oil and gas leasing near Chaco Culture National Historical Park has led to division among the area’s predominantly Navajo communities. The 10-mile buffer zone, which went into effect in June, encompasses all public lands surrounding the thousand-year-old Pueblo complex. The action drew the ire of pro-fracking residents, and was eventually opposed by the Navajo Nation Council and President Buu Nygren.
Many of those who opposed the leasing stoppage are from families who benefit from wells drilled on “Indian allotments,” tracts that the federal government allocated to Navajo households, who could then lease their mineral rights to oil and gas companies and receive royalty payments that are split between the original allottees’ heirs. Under the signed order, Navajo allottees are not prohibited from leasing their mineral rights, but many argue that the buffer zone will make their land less desirable for development. Delora Hesuse, an outspoken allottee from Nageezi Chapter, said that Navajo communities should be free to benefit from the area’s mineral resources, despite the potential exposure to pollutants.
“We do our homework,” Hesuse said. “Those issues have already been spoken about within the families.”
Pinto said she doesn’t relish filming in communities that tend to support oil-and-gas extraction. People have lashed out publicly against her and others who voice concern about the industry’s impact on the environment and community members. Disputes over mineral interests have, in some cases, led to physical violence.
“We absolutely know that malfunctions are not reported, that excess emissions are not reported and that there is noncompliance with regulations on a systematic, widespread basis.”
After documenting the malfunctioning flare, she logged details about the well, which is operated by Enduring Resources. Some of the footage she’s collected for Earthworks has been packaged as part of complaints the organization has filed with the New Mexico Environment Department.
A MAP OF the area reveals a complicated patchwork of land ownership, including federal, state, private and trust lands. Of the more than 21,000 active wells in the San Juan Basin, the majority were leased and permitted on public lands by the Bureau of Land Management. Oil and gas operators in the state are regulated by the New Mexico Oil Conservation Division (NMOCD), which, under the state’s 2021 Methane Waste Rule, is tasked with limiting the amount of natural gas that is wasted by the industry. In theory, that rule prohibits most routine venting and flaring. However, the law includes nearly a dozen exceptions that allow venting and flaring during “an emergency or malfunction,” as well as during scheduled maintenance or the “normal operation of a storage tank.”
Companies self-report their estimated emissions to the division, and are compelled to report any major flaring incidents, as in August of 2022, when more than 107 million cubic feet of gas were flared from a cluster of wells operated by DJR Energy near the community of Nageezi. And while substantial emissions are reported by companies, industry critics say those volumes are likely dwarfed by unreported and so-called fugitive emissions.
NMOCD director Dylan Fuge said equipment such as storage tanks may release gas “as a safety measure so the tanks don’t explode,” or for various other reasons during extraction, storage and transportation. Last year, operators in the northern part of the state reported venting of more than 197 million cubic feet. Fuge emphasized that operators are allowed to vent and flare under exceptions in state regulations, though he acknowledged the likelihood that “there are some” unreported emissions on the division’s watch.
Based on aerial footage, Liz Kuehn, Air Quality Bureau chief with the state Environment Department, is confident that unreported emissions are occurring in the basin. “We absolutely know that malfunctions are not reported, that excess emissions are not reported and that there is noncompliance with regulations on a systematic, widespread basis,” Kuehn told High Country News.
A new rule to limit the emission of “ozone precursors” from specific equipment should help curb VOC releases in the coming years, Kuehn added. Under the Oil Conservation Division’s new Methane Waste Rule, operators will be required to capture 98% of the methane they release by 2026. But environmental organizations say the agencies are letting the industry run roughshod over regulations intended to curb emissions. Earthworks has submitted more than 100 complaint videos to state Environment Department in the past five years, many of which were rejected based on technicalities, Pinto said.
To address some of the organization’s complaints, the agency adopted a system of notifying operators and the public about alleged violations, Kuehn said. The department has undertaken at least four major enforcement actions against operators in the basin over the past five years, while NMOCD has assessed no penalties against operators for venting and flaring in the basin since 2020. The NMOCD currently employs five inspectors in the basin, and the Environment Department has five inspectors statewide.
“It is frustrating that as much as (the agencies) bemoan a lack of resources, a lack of staffing, and an inability to enforce all the time everywhere, that they’re not taking small actions that could make things better in the meantime,” said Jeremy Nichols, who until August was the climate and energy program director for WildEarth Guardians. “The industry needs to be given the message that this behavior, these releases, they won’t be tolerated anymore.”
“You can already smell it when you approach that stop; it gets stronger and stronger until we get right by the tank. It could just give you a headache right there.”
The Navajo Nation EPA currently monitors air quality at two sites in New Mexico and Arizona, neither in the Counselor area, environment program supervisor Glenna Lee said, adding that the agency’s air-monitoring capacity is constrained by the limited grant funding it receives from the U.S. EPA. After requests for an interview, an agency spokesperson said in a statement, “EPA will continue to investigate matters that concern air quality in at-risk communities and we will work with our state partners to ensure public health concerns are addressed adequately.”
In recent years, the BLM has paused leasing throughout its Farmington Field Office area. A draft management plan for the region proposed in 2020 could allow for new drilling in the area. As of this year, that plan is still pending further review. Field manager Maureen Joe declined to address whether additional acreage may be opened in the future.
ON AUTUMN MORNINGS, school buses bounce along the rutted roads linking the rural communities, while children gather at makeshift bus stops in the morning chill. In 2022, a well near one of the stops gave off noxious odors that students had to endure for months, said Harry Domingo, who has driven routes in the area’s predominantly Diné communities for many years.
“You can already smell it when you approach that stop; it gets stronger and stronger until we get right by the tank,” he said. “It could just give you a headache right there.” On other stretches of road, the odors coming from oil-and-gas infrastructure cause students riding the bus to hold their nose and say “Eww,” he recalled.
Domingo is also the vice president of Counselor Chapter. In the past, he has shuttled K-8 students to Lybrook School, a sandstone-colored building overlooking Highway 550. The school used to be located several miles up the road, but was relocated after residents voiced health and safety concerns over a gas-processing plant across the street. In 2005, the school was reconstructed at its present location. A decade later, a drilling rig appeared across the street.
Five wells, now operated by Enduring Resources, were completed in 2015, at the tail end of a fracking boom in which hundreds of oil and gas wells were drilled in the region. The company reported venting at least 48,000 cubic feet of uncombusted gases across from the school in August 2022.
Near a shallow pass in the sandstone ridgeline, a few miles from Lybrook School, Marlene Thomas was cooking at home in the late afternoon. Outside her house, several dogs left tracks in the shallow snow that borders the driveway, which passes within 100 yards of an active well. For three decades, she worked as a community health representative for the Navajo Nation, a role that involved visiting homes throughout the area and consulting residents about their health. Now retired, Thomas said she suspects that the rash of oil and gas activity in the area has caused health problems in the community.
She was on a committee that conducted a community-driven Health Impact Assessment. Starting in 2016, the committee began speaking with residents who described experiencing sore throats, sinus problems, headaches and other symptoms often attributed to increased air pollution. In 2018, the committee conducted air monitoring that showed elevated levels of particulate matter and formaldehyde, and the presence of other VOCs.
Since Thomas retired, she’s continued to hear from community members about the perceived effects of the ongoing air quality issues. She spoke with one woman who said she’d noticed an increase in stillbirths in recent years. Talking about an elder who has since died from a “respiratory illness,” Thomas said the woman noted that her coughing and throat irritation worsened when she would herd her sheep near a particular well site. “She noticed a difference between when she was near” the facility and when she took her sheep in a different direction, which the woman said made her “feel a lot better,” Thomas recounted.
Sitting in his office a few miles away, former Chapter President Samuel Sage said he often smells the gas that collects in certain valleys. Sage, who has provided written testimony to Congress on the issue, said officials with the BLM and the Bureau of Indian Affairs never discussed the dangers posed by fracking during oil-leasing negotiations with allotment owners. “The first thing that was mentioned was, ‘If you sign this, you will get this much money,’ and of course, there was no hesitation,” he said.
While oil tankers tear up the dirt roads that branch off the highway, Sage said the industry’s presence has frayed the fabric of the community, pitting locals who support oil and gas development against those who are opposed to the industry encroaching on the landscape. Undeterred by the controversy, Pinto plans to continue putting pressure on regulators and the industry by documenting emissions and raising awareness of their potential health impacts.
“It’s not good for us, it’s not good for wildlife, it’s not good for plants,” Pinto said. “Are people getting paid enough to bear all these negative impacts — is it worth it?”
Mark Armao (Diné) hails from the high desert in northern Arizona. Now based in California, his recent reporting has focused on environmental issues facing Indigenous communities.