Most critical minerals are on Indigenous lands. Will miners respect tribal sovereignty?

Mining — whether for fossil fuels or, increasingly, the critical minerals in high demand today — has a long history of perpetuating violence against Indigenous people. Forcibly removing tribal communities to get to natural resources tied to their homelands has been the rule, not the exception, for centuries.

Today, more than half of the mineral deposits needed for a global energy transition — including lithium, cobalt, copper, and nickel to make things like batteries and solar panels — are found near or beneath Indigenous lands.

In 2007, the United Nations adopted a resolution called the Declaration on the Rights of Indigenous Peoples that included the right to free, prior, and informed consent to the use of their lands, a concept known as FPIC. This principle protects Indigenous peoples from being forcibly relocated, provides suitable avenues for redress of past injustices, and gives tribes and communities the right to consent to — and the right to refuse — extractive industry projects like mining.

There’s a lot at stake: When followed, FPIC promises a process that gives Indigenous peoples a voice in how their homelands are used, as well as the right to say no to development altogether. And when it’s not, which is the vast majority of the time, tribal communities are further disenfranchised, facing violence and forced relocation as their sovereignty and rights are ignored.

There are an estimated 5,000 tribal communities around the world, encompassing roughly 476 million people across 90 countries, according to the U.N. Different tribes have different opinions on mining, but rarely is their legal right to refuse extraction projects recognized, even under the 2007 declaration.

Grist talked with five experts to better understand what free, prior, and informed consent should look like in this new era of mineral extraction. Their responses have been edited for length and clarity.

Kate Finn, Osage, founder and executive director of the Tallgrass Institute

Originally an attorney, Finn now works with tribal communities and those in the mining industry to better implement FPIC. The Tallgrass Institute provides training and resources about the importance of tribal sovereignty.

Through one of our close partnerships, the SIRGE Coalition, we published an FPIC guide for Indigenous leaders. The goal of this resource is to provide information for Indigenous leaders who want to start putting together their own protocols for FPIC. I get to see a lot of innovation in this way from my desk and in my role as leading a global nongovernmental organization. But I know Indigenous leaders are always looking for what others are doing and what is working and what isn’t, so our best hope is that this guide helps provide information to build knowledge.

With investors, we provide resources and tools that not only help them to understand the breadth and depth of Indigenous peoples’ expertise and knowledge, but also to implement rights-based engagements. This is exactly what we want with our Free, Prior and Informed Consent Due Diligence questionnaire. This tool helps investors parse all the ways and steps that lead to a better engagement with Indigenous peoples.

What is FPIC?

Free, prior, and informed consent, or FPIC, reflects Indigenous peoples’ right to give or withhold consent on anything that affects their lands or resources. FPIC is embedded in the U.N.’s Declaration on the Rights of Indigenous Peoples, requiring the 147 countries that signed it to make laws that give it legal standing.

However, implementation is often left to corporations and government agencies, and there are major power imbalances and policies that can derail negotiations between tribes, governments, and investors.

How can I advocate for FPIC?

1) Indigenous peoples are protected groups with rights that protect land and its original inhabitants through documents like treaties. Familiarize yourself with those that affect your area, and advocate for tribal consent and self-determination.

2) Learn as much as you can about FPIC and talk directly to community leaders about developing a plan to have in place if a mining project is proposed on or near your land.

3) State and federal agencies have differing policies based on tribal consultation, so the burden of communication lies largely with tribes. Because tribes can create their own policies around FPIC, talk to community leaders about what that process looks like.

4) Learn the names of international, large-scale mining companies that might be operating in your area, such as Solaris Resources, Rio Tinto, Vale S.A., and Glencore.

5) When possible, build relationships with other communities protected by FPIC that have fought against mines around the world, so that you can learn from them and share strategies.

Where can I find more information?

1) Securing Indigenous Peoples’ Right to Self-Determination: A Guide on Free, Prior, and Informed Consent is a 60-page illustrated guide, coproduced by the SIRGE Coalition, for Indigenous leaders looking for ways to engage on a project that impacts them.

2) The Free, Prior, and Informed Consent Due Diligence questionnaire, created by the Tallgrass Institute, provides a list of considerations for investors seeking to implement best practices around Indigenous rights when developing resources.

3) The United Nations Declaration on the Rights of Indigenous Peoples, adopted in 2007, outlines a framework of minimum standards for the survival, dignity, and well-being of Indigenous peoples of the world.

There is a lot of opportunity in this area. Shareholder engagement provides a pathway for Indigenous peoples to join collaboratively with allied investors to shift corporate behavior in a way that is aligned with Indigenous peoples’ priorities and self-determined goals. This can be a critical and necessary strategy when countries’ substandard policies allow corporations to operate with impacts to Indigenous peoples, whether operating in their own jurisdictions or internationally.

One powerful memory is a shareholder training we did with Indigenous youth at the U.N. Permanent Forum of Indigenous Peoples in 2024. We asked a room full of young people — all new to the idea of speaking to a shareholder or to the heads of a corporation — to craft a three-minute presentation that conveyed the priorities and concerns of their communities. The enthusiasm, readiness, eloquence, and precision that these young leaders brought to the exercise was breathtaking. It gave me delight and inspiration to witness future leadership in this field, and it opened my eyes to the potential for a generational approach to shareholder advocacy.

Richard Luarkie, Laguna of Pueblo, director of the Native American Mining and Energy Sovereignty Initiative

Luarkie works to give tribes interested in pursuing mining opportunities the power to leverage their resources while asserting themselves as sovereign nations.

In 1952, our tribe entered into mining uranium. I read back on some of those council minutes, and it was very interesting because the discussion was about: “How do we do this? How do we provide for our people in the best way that we can?” We went from a few hundred thousand dollars in our bank account in the early ’50s to having millions at the end of the ’50s. Leapfrog to the late ’80s, and when I started college my bachelor’s was paid for with a scholarship — mining paid for my education.

I see all this need for critical minerals. The U.S. Department of Interior manages 55 million acres of surface land for tribes, and 57 million acres of subsurface minerals for tribes. Yet we are the poorest people in the country.

We need to go from sovereignty to significance. That’s how nations behave. We need to be significant. I believe that energy — because of the vast amount that is on or near our tribal lands across the country — is going to catapult us to significance.

I think our role is going to be bringing those tribes that have an interest, or curiosity, to engage in discussions. It’s not going to be all 574 tribes in the U.S., but I bet you if we could get 10 that’s going to be pretty big. They are going to be multibillion-dollar tribes. Those are going to be your sovereigns.

Aaron Mintzes, senior policy counsel at Earthworks

Mintzes looks at federal hard rock mining policy to advocate for better protections for the environment and tribes.

There are sales pitches from mining companies saying, “We’ll give you a job, and we’ll buy you a school, and we’ll build some roads and provide some infrastructure.” I’m not denying those things happen. But there is a difference between earning consent from a community — because you’ve shaped the mine operation in the way that meets their needs and shares revenue and benefits — versus just saying, “I’m giving you a benefit, take it or leave it.”

Mining companies may put up money upfront for some kind of security or financial assurance for when they need to clean up after a mine closes. The Interior Department keeps those bonds, and they are supposed to be sufficient, but they rarely are in our experience. We can point to examples of so-called modern mines that have been permitted under current rules, with current bonding levels. The mine goes belly-up and is unable to pay to clean things up.

The bonds that are insufficient, I think of them as glorified dirt-moving bonding money to pay for the recontouring of a slope or planting some grass. The bonds you really need to care about are the “shit just hit the fan” bond: A climate change event we weren’t expecting. There is a flood or hurricane. Fires. A dam bursts. We need sufficient bonds for that. There are ways to do it, we just need governments to hold companies accountable.

Recently, the U.S. launched our nation’s first-ever fund for cleaning up abandoned hard rock mines — but there’s only $5 million that’s been appropriated for that every year since 2022. That’s not nearly enough. The total liabilities are about $50 billion.

Fermina Stevens, Western Shoshone, executive director of the Western Shoshone Defense Project

Stevens and the Western Shoshone Defense Project have fought against deceptive mining development for decades in Nevada by promoting tribal jurisdiction over lands granted by an 1863 treaty.

The Western Shoshone Defense Project has been up and going since the early ’90s, so we’re a little over 30 years in of trying to protect our treaty territory. We’ve been dealing with gold extraction, and just trying to bring light to the harm that it causes the land and water.

Recently, we’ve been working to understand lithium and the green energy transition. We do a lot of international work regarding our unceded treaty. The United Nations’ Committee on the Elimination of Racial Discrimination did a 10-year review of our case and determined that our [the Western Shoshone’s] human rights were violated in the so-called taking of our land through gradual encroachment. Those violations are where we make our stance, but the United States has basically ignored all that.

Doing this work, we’ve come to the conclusion there are no laws that really protect the things that are important: land, air, water, sun. The laws are written to give corporations the go-ahead to do whatever they choose. Free, prior, and informed consent is something that we’ve been screaming. In my view, [the United States] thumbs its nose at international law.

Dov Korff-Korn, legal director at Sacred Defense Fund

The Sacred Defense Fund’s mission is to promote Indigenous sovereignty and fight for environmental justice for tribes.

It’s important to start with the U.N.’s Declaration on the Rights of Indigenous Peoples and FPIC, because it shows that tribal nations in the U.S. are separate nations. Non-Native people have been colonized to think that that is untrue. We’re supposed to think of tribes like people practicing their culture, but not like they have legal or jurisdictional authority. We know they do. The [U.S.] Constitution says so. It’s been upheld numerous times, over 200 years of Supreme Court precedent that tribes have legal authority and jurisdiction over their lands.

But the question then becomes: What are tribal lands? Dispossession and colonization reduced tribal lands from vast areas of territory. About 90 percent of extraction is happening within 30 miles of reservations, and what these corporations do is they know exactly where tribal jurisdiction ends. So tribes have to look to other laws that don’t really regard tribal sovereignty on lands held or owned by a tribe, but pertain to cultural resources or artifacts, where then there’s a whole other realm of questions that come up.

Like in northern Nevada, where lithium and other heavy metals are needed for the renewable energy transition, the mines are being built adjacent to tribal lands. So even if they are going to impact the air and water, it’s very hard for tribes to step up when tribes are underresourced.

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