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Hardrock mining in the West: Revising the General Mining Law of 1872

Part 1 of 2

A new chapter in the saga of exploitation and destruction, wealth and economic opportunity that describes mining in the Americas is now being written in Congress by a representative from the State of West Virginia, a state that has seen more than its share of devastating mining impacts.

Spanish missionaries, conquistadors and colonists enslaved Native peoples to extract valuable hardrock minerals from their own lands for the benefit of foreign governments.

While the details have changed, the post-colonial extraction of minerals from Indian country continues to have severely negative impacts on Native American communities.

On Jan. 27, House Natural Resources Committee Chairman Nick J. Rahall, D-W.Va., introduced legislation that would ameliorate some of those impacts. Long-awaited revisions to the General Mining Law of 1872 are again on the table.

The law was passed at a time when the Anglo-European “American” frontier ethic was in full force and the ambition of conquering nature and exploiting its resources was not open for discussion. The 136-year-old law has undergone no substantive revisions, despite efforts over the past decade to bring it at least into the 20th century when our understanding of the role we do and should play in the natural world began to change with the passage of the National Environmental Policy Act in 1969 and the Clean Air Act and the Clean Water Act exactly 100 years after the General Mining Law was passed.

With the passage of the Indian Civil Rights Act of 1978 and the Religious Freedom Restoration Act of 1993, the United States has begun to articulate a fuller understanding of the rights of Native American tribes and tribal members.

Protection of the environment and respect for Native American religions and cultures are key tenets of the proposed revisions. Native Americans are among those who would benefit from the proposed legislation’s most striking provisions.

The context

Common knowledge says the mining law was passed to help settle the West, a point of view stated in a 2007 Congressional Resource Service report: “The original purposes of the Mining Law were to promote mineral exploration and development on federal lands in the western United States, offer an opportunity to obtain a clear title to mines already being worked, and help settle the West.”

Yavapai-Apache Nation Chairman Thomas Beauty added a dimension to this explanation. “We’re of the opinion here that if you look at the tribal history of the mining law. … there is a parallel to the removal of the tribal people here in 1872. All the Yavapai and Apache people were rounded up by the military in 1870, ’71 and ’72 and forcibly removed to a concentration camp 150 miles away. And then that very year the mining law was passed, and so the fate of the Yavapai-Apache Nation was irrevocably tied to that law.”

That removal was one incident in a long history. The Five Civilized Tribes had been moved from their ancestral lands in the 1830s. The Spanish Entrada and the Gold Rush of 1848-1859 had left most of the California tribes devastated. In 1862 the U.S. Calvary removed the Navajo from their lands and marched them to Bosque Redondo. It was in 1868 that the last Indian treaties were signed, including the Navajo Treaty of 1868, which released the prisoners in New Mexico to a tiny portion of their homelands. For the most part, Native Americans were now restricted to small reservations and the West was up for grabs.

Other factors were in play too. The year 1870 marked the beginning of a new era in the American economy. In the mid-1800s, 35,000 miles of new railroad track had been laid in the West. A new, faster type of steel mill had been invented and installed in Pittsburgh in 1870. Steam turbines were fully developed and factories were beginning to switch to electricity generated by steam engines fueled by coal. The country was poised to begin an unprecedented age of manufacturing, and for that the West’s wealth in raw materials was critical. To officials in Washington, settling the West, building the U.S. economy and fostering American hegemony were inextricably linked.

Three points

Three provisions – or more accurately, principles – of the General Mining Law of 1872 have long since outlived the mores of the era that created them.

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Public wealth into private hands

Any person or company may stake (“locate”) a claim of mineral deposits on public lands. (The law pertains to federal lands only, not to mining on private lands. It does not, nor did it ever, apply to Indian lands, which are not considered federal lands but trust lands.) The claim may be “patented,” that is the land may be purchased, for $2.50 to $5 an acre. Once ownership of the land has changed hands, there is no requirement that mineral production begin or that the land be used for that purpose, ever.

During the Clinton administration, Congress passed a moratorium on patenting mining claims, which means no further lands can be sold for mining, but patents already in existence are not affected. This moratorium must be renewed each year.

“Even the mining companies realized how ridiculous this system was,” said Roger Flynn of the Western Mining Action Project in Colorado, a nonprofit that provides free legal advice to citizen groups and Native American tribes on hardrock mining issues.

No royalty has ever been paid to the people of the United States on the value of the minerals extracted under the 1872 law. An attempt to impose a five percent royalty failed during the Clinton administration. No further efforts were made during the Bush administration.

Environmental controls

The General Mining Law contains no environmental protections, though mining on federal lands is now subject to the Clean Air Act, Clean Water Act, state regulations and federal and state rules regarding the disposal of toxic wastes.

But, before the late 1960s, there were virtually no environmental protection laws on the books. Mining companies could leave toxic lands, abandoned mines, polluted water and any other environmental depredations associated with their operations and simply walk away. There was no reclamation bond and there is no money to pay for the cleanup except for what Congress, state and local governments authorize.

Not only did the American people receive no royalties on the minerals extracted from public lands, they now must pay the enormous bill to clean up the mess, if it is to be cleaned up at all. There are an estimated 500,000 abandoned hardrock mine sites in the U.S, according to the Congressional Research Service, and an estimated 40 percent of headwaters in the United States are polluted from mining activities.

Beauty talked about the downstream effects of mining pollution. “Things that happen hundreds of miles away from here, like the Atlas mine up in Moab, Utah, which dumped millions of metric tons of radioactive tailings right along the edge of the Colorado River. That becomes a constant source of radioactive materials into that river. We’re in that watershed.”

Cultural and religious values

In 1872, mining trumped any other activity that was, or could be, carried out on public lands.

Many tribes had been removed to reservations, disease and hunger were rampant and ignored or purposefully exacerbated, and the Dawes Act was yet to come. Manifest Destiny was thriving. It was not a time when the religious and cultural (or any other) rights of Native Americans had any standing in the minds of those who wrote the laws of the land.

Little change since 1872

With a few modifications, the General Mining Law of 1872 remains the same as it was the day it was enacted. In 1920 the Mineral Leasing Act removed coal, oil, gas, oil shale, phosphates, sodium and some other minerals from the claim-patent system of the 1872 law and created a system of leasing whereby mining companies lease lands for the development of these resources and pay a royalty on the minerals they extract. The federal government continues to own the land. Still covered under the provisions of the 1872 law are hardrock minerals, including platinum, gold, silver, copper, lead, zinc, uranium, magnesium, nickel, molybdenum, vanadium and tungsten.

Editor’s Note: Part 2 of this two-part series on hardrock mining in the West will appear in Vol. 28, No. 41 and will look at mining now and moving forward.