One of the most important tools to combat this kind of environmental injustice is procedural justice: ensuring that all affected people are informed, can express their opinions, and influence decisions. For Tribes, procedural justice is especially important. Even though they were forced off their lands, Tribes retained inherent sovereignty and maintain a government-to-government relationship with the federal government. Several federal statutes mandate Tribal consultation to inform Tribes of potential impacts to their historical and cultural resources and to protect their cultural resources.
Although Tribal consultation is mandated, procedures vary by agency. In 2022, the Biden administration published a memorandum on uniform standards for Tribal consultation that requires “information obtained from Tribes be given meaningful consideration, and agencies should strive for consensus with Tribes or a mutually desired outcome.” While uniform standards are a good start, they are not binding. And when it comes to extraction of resources on Tribal land, consultation stops at an agency’s legal obligation and falls short of consensus or a mutually desired outcome.
One recent example of how current Tribal consultation policies have failed to live up to meaningful Tribal consultation is the proposed lithium mine at Thacker Pass or Peehee Mu’huh in the Paiute language. Located in Northern Nevada, the proposed mine is home to the nearby Fort McDermitt Paiute, Reno-Sparks Indian Colony, among others, and also the largest known lithium deposit in the United States. Under the Trump administration, the Bureau of Land Management (BLM) fast-tracked permits to construct a lithium mine there. However, the land is sacred to the local tribes who share it because it was the site of a brutal massacre of their Tribal members in the late 1800s.
Under the National Historic Preservation Act (NHPA), agencies are required to identify historic properties on state or private land when a project might affect areas of religious or cultural significance to the tribe. 32 C.F.R. § 800.2(c)(2)(ii)(A). Historic properties include Native American massacre sites. However, if a Tribe’s cultural officer or state preservation officer fails to respond within 30 days of receipt of a request for review of a finding or determination, the agency official may proceed without being required to reconsider previous findings or determinations. 36 C.F.R. § 800.3(4). All that the NHPA requires is a “reasonable and good faith effort” to identify any Tribes that may attach significance to historic properties so that they may participate in the process. 36 C.F.R. § 800.3(4)(f)(2).
In 2019, environmental groups and two Tribes sued to try and stop the project, alleging among other claims, that BLM failed to adequately consult with the Tribes before approving the project. In response, BLM argued that they met their consultation requirements for some of the Tribes by “checking the box” and simply sending notice through certified mail, and that because two Tribes had not mentioned anything before in other nearby projects, they assumed that they did not want to be contacted. The Ninth Circuit agreed and allowed the project to move forward. However, this reasoning begs the question: For Tribes that are recognized as sovereign and have a government-to-government relationship, how is sending a single certified letter to each Tribe considered sufficient consultation?
While this is an example with extreme consequences, meaningful Tribal consultation can still fall short for several reasons. First, historical disinvestment and the lack of resources among Tribal offices can impede their ability to respond to each consultation request. Many Tribes lack the necessary time, capacity, or even legal offices to engage adequately in these processes, perpetuating an uneven power dynamic in consultation efforts. Second, several Tribes may have claims to the land; including numerous non-federally recognized tribes that are often excluded from the consultation process, despite their legitimate land claims. Under the NHPA, the burden is on the non-recognized tribes to write a letter to the BLM requesting to intervene, but even then, intervention is not guaranteed. 32 C.F.R. § 800.3(4)(f)(3).
Finally, legal obligations for Tribal consultation are not the same as meaningful consultation. That delivery of certified mail as legally adequate for Tribal consultation hardly qualifies as “meaningful consultation,” especially according to the Biden administration’s memorandum and other principles of climate justice. True consultation should aim for consensus and consider the multifaceted issues important to Tribal communities. Relying on two Tribes’ failure to assert claims in previous projects should also not be sufficient to assume that there are no other claims to bring in the current case. As a result, the current approach not only overlooks potentially affected Tribes but also fails to uphold the meaningful and inclusive dialogue crucial for genuine Tribal consultation.
The lithium mine at Peehee Mu’huh also underscores a broader problem: even in cases with consequential environmental and public health harms, a government that advocates for environmental justice stops short of its stated goals for meaningful consultation respecting Tribal sovereignty and instead rests on its legal obligations. Approving a mine while desecrating an important cultural site and exposing Tribes to irreparable environmental harms is far too high of a cost to secure raw materials for electric vehicles. This failure continues to perpetuate a legacy of disregard for Tribal sovereignty despite the importance of the government-to-government relationship being underscored in statutes like the NHPA.
This is not to say that climate change solutions are always at odds with Tribal sovereignty. However, if we truly wish to honor the promise of a greener future, we must recognize that Tribal consultation is not a hindrance but a vital component of ethical decision-making. Peehee Mu’huh serves as a poignant reminder that to address climate change in an equitable way, we must reevaluate our approach to resource extraction, and incorporate meaningful dialogue with Tribes as an integral part of the process. To that end, agencies can do more to engage with Tribes like building up their capacity to respond to requests, hold more public and community involvement early and often, and engage in more robust historical analysis to ensure that Tribal cultural and historical resources are not harmed in the process.
As for the mine, the battle is not over yet. Another lawsuit has been filed to turn the site into a cultural district to prevent further disturbance to the massacre site. The Tribes have also been in contact with the White House to pressure BLM to act. If the Biden administration is serious about its stance on climate justice, it should prevent the mine from proceeding and reopen a dialogue with Tribes to find consensus or a mutually agreeable outcome.
