Julie Fishel, Western Shoshone Defense Project, for reviewing prior to initial publication.
September 3, 2007
February 4, 2010
Mount Tenabo and its environs are part of Newe Sogobia, the ancestral land of the Western Shoshone, which has never been legally ceded to the federal government. Nevertheless, U.S. politicians and multinational corporations have ignored an 1863 federal treaty acknowledging Western Shoshone ownership of the land, treating sacred land as a public resource to be mined for gold. Today, Barrick Gold, the world’s largest multinational mining corporation, is planning an open-pit gold mine on Tenabo, the highest peak in the Cortez Range of northern Nevada. To justify the resource extraction, the government has been working for decades to force the Western Shoshone to accept a one-time payment for their land. Western Shoshone elder Carrie Dann said: “The Indian Claims Commission payment constitutes selling of our Indian lands and destruction of the Indian heritage and culture. No money could ever compensate taking the land from our native people. No race of people has ever sold their homeland. Where will our homeland be if we accept the money? Let us walk with dignity and honor and never as a people without a country.”
The Land and Its People
Newe Sogobia, which translates as “the people’s earth mother,” stretches from southern Idaho through eastern Nevada to the Mojave desert in California. This Great Basin terrain is a high-altitude desert with no drainage to the ocean. In this landscape of intricate relations, everything — mountains, plants, animals, waterways — has a purpose and is related to everything else. For example, mountains capture precious rainwater and feed the numerous springs upon which desert people depend for survival. The Western Shoshone recognize the existence of Bah-o-hah, water beings that live in the creeks and springs of Newe Sogobia. These sites are in turn the settings for curing ceremonies. Two of the most important sacred sites in Newe Sogobia are Mount Tenabo and Horse Canyon, which have prominent roles in Shoshone creation stories and are the sites of ancient burials. Today, the Western Shoshone still have ceremonies and gather medicinal plants at all of these sacred places.
English fur trappers from the Hudson Bay Co. entered Newe Sogobia from the north in 1828, beginning the era of resource exploitation on Western Shoshone land. As part of their competition with the American trappers, they trapped all the beavers they could find so that when Americans arrived on their heels, the streams would be empty. Americans came through the area in great numbers in the 1840s, spurred by the California gold rush. In 1862, federal troops arrived in Ruby Valley to establish a fort and ensure the safe passage of whites through Western Shoshone territory. Troops were authorized to kill male Shoshones in punishment for attacks on settlers. The presence of the settlers who stayed in the area to mine this delicate desert environment led to depleted wild game, overgrazing of cattle, scarcity of water, and deforestation.
Desperate to end the violence and survive on their land, Western Shoshone leaders agreed to the 1863 Ruby Valley Treaty. This treaty acknowledged Western Shoshone ownership of the land, but permitted non-native Americans to engage in extractive activities, for which royalties were to be paid to the Western Shoshone. The slow erosion of Western Shoshone land sovereignty began in the early 1900s when the Forest Service and the Grazing Service (predecessor to the Bureau of Land Management) started to refer to Western Shoshone territory as “public land,” without any legal change in its status. Whites also began to claim water rights in the area based on “first use.”
Western Shoshone representatives made numerous trips to Washington, D.C. to remind the government of the treaty, which specifically excluded any transfer of land title from the Shoshone to the United States. Not to be deterred, the federal government set up the Indian Claims Commission as a mechanism to legally assume title to native lands across the United States. The work of the commission became one of the great travesties of Native American history, as tribes became ensnared in the American judicial system, fighting for their lands with foreign and often easily manipulated rules. Lawyers would find a few individuals to sue on behalf of their tribe, the government would give them a one-time sum of money, and then declared the land legally purchased. This process went on for decades, as natives would realize what was happening and back out, and the lawyers would find others to take their place. In 1976, the Western Shoshone attempted to fire their lawyer, but the ICC continued to recognize him as representing the people. Finally in 1979, a settlement of $26 million for Newe Sogobia was offered.
Rejected by the Western Shoshone, the money was held in trust by the Department of Interior and to this day, legislators are still attempting to force Western Shoshone to accept payment to legitimize the land sale, which most view as a way to extinguish aboriginal title and preclude future land claims.
The U.S. government still claims jurisdiction over 80 to 90 percent of the original 60 million acres of Newe Sogobia. The Western Shoshone never have received royalties for the extraction of natural resources. Today, only 0.1 percent of Newe Sogobia is controlled by the Western Shoshone. These lands comprise the third largest gold-producing area in the world and also have been cited as the next “Saudi Arabia” of geothermal energy production. Further, the U.S. Department of Defense has targeted Western Shoshone lands for renewed nuclear weapons testing and waste storage.
Arguably, nowhere is the collusion between government and industry more apparent than in the case of gold mining, where the government is allowing multinational companies to operate without permission from or recompense to the Western Shoshone. Modern gold mining began in the 1960s when scientists, subsidized by the government, figured out how to profitably process microscopic gold. In 1965, Newmont opened Carlin Mine, the first modern mine in Newe Sogobia, and the company continues to operate five sites in the area. Beginning in the 1980s, gold prices soared, and there are currently two dozen major gold mines operating in Newe Sogobia. The two largest gold operations in Newe Sogobia are now Goldstrike and Cortez, both of which encompass several mine sites. Newe Sogobia now yields 64 percent of U.S. gold production and nearly 10 percent of world production, totaling $30 billion to date.
The gold embedded in this desert country is present in tiny traces, and must be extracted through the environmentally destructive cyanide heap-leach method, which uses a cyanide-water solution to remove gold particles. This process produces vast tracts of blasted rock, open pits, and contaminated water. (See also our reports on Indian Pass, Calif. and Mount Quilish, Peru). One effect of the cyanide heap-leach method is high mercury levels in the air and in fish that live in nearby waters. When ore is heated, mercury is released into the air, and more emissions occur when the waste rock is disposed of. An estimated 95 percent of airborne mercury comes from gold mines. Mercury is a known neurotoxin that has been linked to brain damage, birth defects and cancer.
Gold mining is far less regulated than energy-producing coal-fired power plants. The average coal-fired power plant emits approximately 250 pounds of mercury emissions into the air, while in 2005 the Goldstrike mine emitted 1,700 pounds and the Cortez mine 850 pounds. The U.S. government is requiring coal-fired plants to reduce mercury emissions, but there are no such regulations aimed at gold mines. For a long time, Nevada had a voluntary regulation program determined by the mine operators. By 2006, public outcry about the health hazards of mercury was strong enough that the state adopted mandatory regulations. These are still quite weak: they allow the companies to monitor their own emissions, only having to measure already-known points of emission, and do not force a reduction in emissions levels. By 2018, if the Goldstrike mine continues at current levels, it will emit seven times more mercury than all of Nevada’s coal-fired power plants combined.
Cyanide, which industry claims is relatively harmless because it breaks down quickly when exposed to air and light, lingers for a long time in the underground water table, raising grave concerns about the acidity of water, a scarce resource in the desert. Tailings (waste rock) from the mine are a semisolid solution that contains cyanide, arsenic and mercury. Pit lakes with this hazardous water are predicted to linger up to 250 years after the mine has closed, long after the mining companies are legally held accountable for the land’s restoration.
In 2005, Barrick Gold, the owner of the Cortez mine, received permission from the Bureau of Land Management to explore an additional 30,000 acres around the Cortez mine. Then, in 2008, it proposed the Cortez Hills Expansion Project, a new open-pit mine directly on Mount Tenabo. Framed as an “expansion” of the current Pipeline and Cortez mines, Cortez Hills is really a new mine complex that would blast out a pit up to 2,200 feet deep, bring three new waste rock facilities, and cause the permanent loss of 817 acres of pinion trees, which provide pine nuts, a traditional Western Shoshone food source. It will also have a massive impact on groundwater, pumping out 1.8 billion gallons per year for 10 years, which will endanger up to 50 surrounding springs and drop the water table by 1,600 feet around the pit and by 10 feet within a three- to four-mile radius.
The Western Shoshone filed suit to obtain a preliminary injunction against Barrick, an emergency measure designed to stop any digging at Cortez Hills until a full-scale trial can occur. Their request was denied in January 2009, but on Dec. 3 of that year, the Ninth Circuit Court of Appeals reversed that decision. In its decision, the court affirmed the merit of the environmental claims of the Shoshone’s case and said that an injunction was in the public interest, noting “the irreparable environmental harm threatened by this massive project.”
The appeals court ordered the case sent back to the lower court to issue the injunction pending the preparation of an environmental impact statement that “adequately considers the environmental impact of the extraction of millions of tons of refractory ore, mitigation of the adverse impact on local springs and streams, and the extent of fine particulate emissions.”
Barrick and the BLM argue that archaeological surveys prove the mine site is not a sacred site and while there is evidence of religious activity at the top of Mount Tenabo, at the White Cliffs and in Horse Canyon, none appears where the open-pit mine is being developed. Paying attention only to archeological sites — excavating them and then conveying artifacts to museums or universities — is not the same as protecting living spiritual practices, of which there are often not material traces. Traditions at Mount Tenabo, including the gathering of medicinal plants, hunting rituals, fasting, and prayers at sacred streams, are all endangered.
The Western Shoshone Nation is hurt not only by the lack of protection for its religions practices but by the antiquated 1872 Mining Law. Under this law, metal mining companies do not pay royalties for extraction on federal land as oil and gas companies do. The law makes mining a priority use of public land and authorizes the sale of land to be mined for $2.50 to $5 an acre. Further, lands purchased under the mining law become subject only to state environmental regulation, less stringent than federal regulation in mining-friendly Nevada.
The state of Nevada does not require that companies return the land to its original ecological condition after they leave. Open pits may be left as-is, while tailings piles are covered up and revegetated, leaving the toxic material buried underneath. Rain runs through heap-leach pads, releasing toxins into the water. Several companies operating in the area have gone bankrupt, abandoning nine mine sites for which the state does not have the funds to properly clean up.
In addition to the mining pollution of their ancestral land, the federal government maintains that the Western Shoshone must obtain permits from the BLM to keep their herds on their own land. In 2002, the BLM removed horses in this area belonging to Western Shoshone elders Mary and Carrie Dann, who have been prominent activists for land rights. The BLM claimed the Danns owed $5 million in grazing fees. Only a few months later, Placer Dome doubled its estimate of the amount of gold contained in that same land and the BLM approved the mining company’s operation on that land.
The Western Shoshone Distribution Bill of July 7, 2004 is the latest effort to legitimize U.S. ownership over Newe Sogobia. It authorizes a payoff of approximately 15 cents per acre for 24 million acres of land that was supposed to have been protected by the 1863 Treaty of Ruby Valley. The settlement, totaling approximately $145 million, was welcomed by some in the Shoshone community who thought they should accept the money since they see no chance of regaining the land. However, a majority of involved tribal councils and all of the traditional leadership, including the Western Shoshone National Council, strongly opposed the bill, arguing that their ancestral lands were too high a price to pay and that they would continue the struggle.
Western Shoshone fear that accepting the money will negate any future land title arguments. Politicians justified the bill based on uncertified polls of individual Shoshone rather than the various tribal councils, the governing bodies that can legitimately negotiate sovereignty. Massive opposition by numerous traditional people, human rights organizations, and thousands of individual citizens delayed numerous votes on the bill, but was ultimately unable to stop its passage.
An August 2006 Environmental Assessment by the Department of the Interior admits to many of the ways in which the Western Shoshone have a spiritual connection to the land, and to the existence of Traditional Cultural Properties that are eligible for listing on the National Register of Historic Places. Protection under this list would be a step toward making Newe Sogobia off limits to resource extraction.
The U.S. government needs to conduct proper consultation with the Western Shoshone on a nation-to-nation basis, acknowledging them as the rightful caretakers of their land and designating sacred areas that should be permanently off limits to resource extraction. The government should negotiate in good faith with the Shoshone over their treaty rights to ancestral lands, giving them the option to regain control of some of the land, rather than forcing them to accept a financial settlement. The Western Shoshone are owed royalties from current mining operations, which would be fairer compensation than a one-time payment for a land sale that never occurred.
The 1872 Mining Law must be revised so that it protects select public lands from being mined and forces mining companies to take responsibility for environmental damages and cleanup. Companies should post reasonable bonds to cover the costs of cleanup after a mine closes. For the economic health of the Western Shoshone and their neighbors, government agencies should increase development of solar and wind energy technologies and provide job training to funnel mine workers into new professions in preparation for the inevitable mine closures.
What You Can Do
The inability to protect Mount Tenabo on the grounds of religious expression is another example of the weaknesses in the Religious Freedom Restoration Act and the American Indian Religious Freedom Act. The legal case to protect Mount Tenabo has already been weakened because of the failure of these laws to protect the San Francisco Peaks in 2009. Contact your senators and representatives to express your support for specific legal protection for Native American religious expression. You may also remind them of the need to reform of the antiquated 1872 Mining Law and demand more environmental regulation of mining and required royalty payments for mineral mining on public land, as already exist for the coal, oil and gas industries.
Visit Great Basin Resource Watch’s Mount Tenabo Action Page to learn how you can help. Also see the Western Shoshone Defense Project’s website to join their mailing list and support their activism. Watch a clip from the documentary film “Our Land, Our Life.” Learn more about Western Shoshone culture, history and treaty rights at websites sponsored by the Te-Moak Tribe of Western Shoshone Indians of Nevada and Healing Ourselves and Mother Earth.
Earthworks. “Western Shoshone Nation, USA.” No Dirty Gold.
Gage, Beth and George Gage. Our Land, Our Life. Video.
Great Basin Resource Watch. “Western Shoshone Prevail at Ninth Circuit Court on Mt. Tenabo.” News release, December 3, 2009.
Great Basin Resource Watch. “Mount Tenabo Threatened.” Great Basin Resource Watch.
Harding, Adella. “Supreme Court ruling weakens Cortez challenge.” Elko Daily Free Press, June 13, 2009.
Newcomb, Steven. “Editorial: Chairman’s Testimony Violated Te-Moak Constitution.” Indian Country Today, June 27, 2003.
Nijhuis, Michelle. “Land or Money.” High Country News, August 5, 2002.
Sonner, Scott. “Judge refuses to halt huge Nevada gold mine.” Associated Press, January 26, 2009.
U.S. Court of Appeals for the Ninth Circuit.
Werner, Erica. “House passes long-stalled bill to pay Western Shoshone for land.” Associated Press, June 21, 2004. (PDF)
Western Shoshone National Council. Update to the U.N. Committee on the Elimination of Racial Discrimination. 2007. (PDF)
Wolf, Lisa J. “Native Americans Ask Court to Stop Gold Mine on Sacred Mountain.” Environment News Service, June 6, 2009.
Wolf, Lisa J. “Shoshone Use Film, Courts to Fight Gold Mine on Sacred Land.” Environment News Service, December 6, 2007.