Three Letters During COVID

On a day in early 2021, during the second winter of the COVID-19 pandemic, the Bureau of Land Management completed its tribal consultation for the Thacker Pass lithium mine in northern Nevada. The mine would become the largest lithium mine in North America. It would be built on land containing 923 documented Native American cultural sites.¹ It would excavate the ground where, in September 1865, United States cavalry and civilian volunteers killed an estimated 30 to 50 Northern Paiute men, women, and children in a massacre the survivors named Peehee Mu’huh, meaning “rotten moon.”²

The consultation, in its entirety, consisted of three mailings sent to three tribal offices.³

The mailings were sent during the height of a pandemic that was killing indigenous people at more than twice the rate of white Americans.⁴ Tribal offices were closed. Elders, the keepers of oral history and cultural knowledge, were dying at disproportionate rates. The capacity of tribal governments to receive, evaluate, and respond to federal correspondence was, by every available measure, severely constrained.

No in-person meetings were held. No extended comment periods were offered. No accommodation was made for the fact that a respiratory pandemic was ravaging the very communities whose input the law required.

The BLM approved the mine. The Department of Energy financed it with a $2.26 billion loan.⁵ General Motors invested roughly $1 billion.⁶ And the federal government, through equity warrants attached to the DOE loan, became a part-owner of the project it had just approved.

Three letters, three tribal offices, during COVID. This is what “consultation” means in American law.

What the law requires

The legal obligation to consult with tribal nations before approving projects that affect their interests derives from several overlapping statutes and executive orders. The framework is not simple, but its core requirements are clear.

Section 106 of the National Historic Preservation Act (NHPA) requires federal agencies to take into account the effects of their undertakings on historic properties, including properties of traditional religious and cultural importance to Indian tribes.⁷ The implementing regulations, issued by the Advisory Council on Historic Preservation, specify that agencies must make a “reasonable and good faith effort” to identify Indian tribes that attach religious and cultural significance to historic properties in the area of potential effect. Agencies must then consult with those tribes about the effects of the undertaking and explore ways to avoid, minimize, or mitigate adverse effects.

The key phrase is “reasonable and good faith effort.” The regulations do not define this phrase with specificity. They leave it to the agency to determine what constitutes reasonable effort in a given context. This discretion is the hinge on which the entire consultation process turns: it allows agencies to claim compliance with procedures that tribal nations and human rights organizations consistently describe as inadequate.

The National Environmental Policy Act (NEPA) requires federal agencies to prepare environmental impact statements for major federal actions significantly affecting the quality of the human environment.⁸ This includes the assessment of impacts on cultural resources and the solicitation of public comment. NEPA does not mandate specific consultation with tribal governments, but its procedural requirements create opportunities for tribal input that agencies are expected to honor.

Executive Order 13175, issued by President Clinton in 2000 and reaffirmed by subsequent administrations, directs federal agencies to engage in regular, meaningful, and robust consultation with tribal officials in the development of federal policies that have tribal implications.⁹ The order recognizes the “unique legal relationship between the United States and Indian tribal governments,” describes tribal nations as sovereign entities, and states that agencies should respect tribal self-governance and sovereignty, honor tribal treaty rights, and meet the responsibilities arising from the trust relationship between the federal government and tribal nations.

The American Indian Religious Freedom Act (AIRFA), passed in 1978, declares it to be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise traditional religions, including access to sacred sites.¹⁰ The statute is largely declaratory; courts have interpreted it as lacking an enforceable cause of action. It establishes a policy but not a remedy.

Taken together, these laws and orders create what appears, on paper, to be a substantial obligation. Federal agencies must identify affected tribes. They must consult with those tribes in good faith. They must consider the effects of their actions on cultural resources, sacred sites, and treaty rights. They must accord tribes the respect owed to sovereign governments.

In practice, the obligation is hollow. The laws set floors so low that virtually any contact qualifies. A letter counts. A voicemail counts. An email to a closed office during a pandemic counts. The agency decides what “good faith” means, the agency determines when consultation is complete, and the agency retains final decision-making authority regardless of what the tribes say.

The pattern at Thacker Pass

The February 2025 report by Human Rights Watch and the American Civil Liberties Union documented the Thacker Pass consultation in detail across 133 pages.¹¹ The findings describe a process that was not merely insufficient but structurally incapable of producing meaningful tribal input.

The BLM did not identify all affected tribal communities. The Fort McDermitt Paiute and Shoshone Tribe, whose ancestral territory includes Thacker Pass and whose oral histories describe the 1865 massacre, was among the tribes that received mailings. But the People of Red Mountain, a community with deep ties to the site, were not adequately engaged. Other tribal communities with historical and cultural connections to the region were similarly overlooked.

The mailings themselves were form letters. They notified recipients that a project was under review and invited comment. They did not describe the scope of the project in detail. They did not explain the cultural resources at stake. They did not propose dates for meetings, site visits, or extended discussion. They did not acknowledge the pandemic conditions that were affecting tribal communities.

The BLM’s environmental impact statement acknowledged the presence of 923 cultural sites in the project area.¹ It described the significance of these sites in general terms. But the statement treated cultural impacts as a category to be weighed against economic benefits, placing the destruction of a massacre site on the same analytical plane as traffic disruption or dust emissions. The framework does not recognize that some losses are categorically different from others, that the excavation of ground containing the remains of massacre victims is not commensurable with increased truck traffic on a rural highway.

The Human Rights Watch/ACLU report also assessed the consultation against international standards, specifically the principle of Free, Prior and Informed Consent (FPIC) articulated in the United Nations Declaration on the Rights of Indigenous Peoples.¹² The Declaration, adopted by the UN General Assembly in 2007, states that indigenous peoples have the right to give or withhold consent to projects affecting their lands, territories, and resources. The United States endorsed the Declaration in 2010, though with qualifications that limit its legal enforceability in domestic courts.

By the FPIC standard, the Thacker Pass consultation failed at every element. It was not free, because the legal framework presumed approval regardless of tribal objections. It was not prior, because the mailings were sent after the project design was substantially complete. It was not informed, because the information provided to tribal governments was inadequate to support meaningful evaluation. And it was not consent, because the process did not contemplate the possibility that tribes could say no and have that answer matter.

A recurring architecture

The Thacker Pass consultation is not an anomaly. It is the most recent expression of a pattern that extends across decades of federal resource management, pipeline construction, and land disposition decisions. The pattern has a consistent architecture: the law requires consultation, the agency performs a procedural minimum, and the project proceeds.

Standing Rock and the Dakota Access Pipeline provide the most widely known example. In 2016, the Standing Rock Sioux Tribe and allied indigenous nations objected to the construction of the Dakota Access Pipeline (DAPL) beneath Lake Oahe, a reservoir on the Missouri River that provides the tribe’s drinking water and holds cultural significance.¹³ The Army Corps of Engineers, which held permitting authority, had conducted tribal consultation that the tribe and federal courts subsequently found inadequate.

The Corps issued permits. The tribe sued. A federal district court found that the Corps had failed to adequately consider the pipeline’s effects on the tribe’s treaty rights and cultural resources. But the pipeline was already built and operating by the time the court issued its ruling. The structural dynamic was clear: the legal process moved slowly, the construction moved quickly, and by the time the courts intervened, the question was not whether the pipeline should be built but whether an already-operational pipeline should be shut down. The answer, predictably, was no.

Bears Ears National Monument in Utah illustrates the pattern in a different register. In 2016, President Obama designated Bears Ears as a national monument, responding to a proposal from an intertribal coalition of five sovereign nations (Hopi, Navajo, Ute Mountain Ute, Ute Indian Tribe, and Zuni) who sought permanent protection for a landscape dense with cultural sites, ancestral dwellings, and ongoing ceremonial use.¹⁴ The designation was the first national monument created at the specific request of tribal nations.

In 2017, President Trump reduced Bears Ears by approximately 85 percent, the largest reduction of a national monument in American history.¹⁵ In 2021, President Biden restored the original boundaries. In 2025, the monument was again reduced. The cycle continues. The tribal nations that proposed the monument have no secure guarantee that their sacred landscape will be protected from mineral leasing, grazing expansion, or off-road vehicle use in any given presidential administration. Sovereignty, in this context, means the right to request protection that can be granted and revoked at the discretion of whoever occupies the White House.

Resolution Copper in Arizona presents a third variation. Oak Flat (Chi’chil Bildagoteel) is a site of profound significance to the San Carlos Apache Tribe, used for coming-of-age ceremonies and other practices that have continued for generations.¹⁶ The site sits atop a massive copper deposit. In 2014, a land exchange authorizing the transfer of Oak Flat to Resolution Copper (a joint venture of Rio Tinto and BHP) was attached as a rider to the National Defense Authorization Act, the annual defense spending bill. The rider bypassed normal environmental review and public comment. It was introduced in the final days of a congressional session and passed as part of a must-pass military spending package.

The land exchange was not the product of consultation. It was the product of a legislative maneuver designed to circumvent consultation. The San Carlos Apache were not consulted about the rider. They learned of it after it passed.

The Keystone XL pipeline, the Line 3 pipeline replacement in Minnesota, and the Mountain Valley Pipeline in Appalachia each generated similar conflicts.¹⁷ In each case, tribal nations or indigenous communities raised objections to projects crossing their territories, affecting their water sources, or disturbing cultural sites. In each case, federal agencies conducted consultation that the affected tribes described as inadequate. In each case, the projects either proceeded or were blocked for reasons unrelated to the quality of tribal consultation (Keystone XL was cancelled due to economic and political factors, not because the consultation process produced a different outcome).

The structure of the failure

The failure of tribal consultation in the United States is not a failure of execution. It is a failure of design.

The consultation framework operates within a decision-making architecture that has already determined the outcome. Under the General Mining Law of 1872, mining is presumed to be the highest and best use of public land wherever valuable mineral deposits exist.¹⁸ Under NEPA, the environmental review process is procedural: it requires agencies to consider impacts, not to avoid them. Under Section 106 of the NHPA, agencies must consult with tribes, but they retain final authority to approve projects regardless of what the consultation reveals. Under Executive Order 13175, agencies must engage in “meaningful” consultation, but the order does not define “meaningful” and does not provide tribes with a mechanism to challenge an agency’s determination that consultation was adequate.

The result is a process in which the agency controls the timeline, the format, the scope, and the outcome. Tribes can participate, but they cannot compel a different result. They can object, but the objection is processed through the same framework that produced the decision they are objecting to. The consultation is, in structural terms, a formality. It exists to satisfy legal requirements, not to produce informed decisions.

This is not a characterization that comes only from tribal leaders or human rights organizations. Federal reports have reached similar conclusions. A 2019 Government Accountability Office study found that federal agencies inconsistently applied tribal consultation policies, that many consultations were conducted with inadequate time and resources, and that tribal leaders frequently reported feeling that their input was solicited but not considered.¹⁹ A 2021 report by the White House Council on Native American Affairs acknowledged persistent shortcomings in consultation practices and called for reforms. The reforms have, to date, not materially changed the dynamic.

The inadequacy is compounded by the practical reality of tribal governance. Many tribal governments operate with limited staff and budgets. They receive consultation requests from multiple federal agencies on multiple projects simultaneously. The requests arrive as form letters, often with short comment periods, frequently without the technical information needed to evaluate the proposed project’s impacts. A tribal environmental office with three staff members may receive dozens of consultation requests per year, each requiring review of environmental impact statements that run to thousands of pages.

The disproportion is structural. Lithium Americas Corporation had hundreds of employees, retained consultants, and engaged lobbyists to advance the Thacker Pass project. The Fort McDermitt Paiute and Shoshone Tribe had a fraction of those resources. The consultation process treats these parties as though they are operating on equal footing. They are not.

The sovereignty question

The fundamental tension underlying tribal consultation is the tension between the legal recognition of tribal sovereignty and the operational reality that federal agencies routinely override tribal preferences.

Tribal nations are sovereign entities. This is not a metaphor. The Constitution, treaties, federal statutes, and Supreme Court decisions all recognize that Indian tribes possess inherent sovereignty that predates the Constitution and survives except to the extent that Congress has explicitly limited it.²⁰ Tribes are governments. They exercise jurisdiction over their territories. They maintain their own courts, legislatures, and executive functions.

Executive Order 13175 acknowledges this sovereignty. It directs agencies to consult with tribal governments on a government-to-government basis, not as stakeholders or interest groups but as sovereign nations with rights and authorities that derive from their own existence rather than from a federal grant.

In practice, the government-to-government relationship is profoundly asymmetric. The federal government decides which projects to approve. The federal government decides how to consult. The federal government decides when consultation is complete. The federal government decides whether tribal objections are sufficient to alter the project, and in nearly every contested case, the federal government decides they are not.

The mailing of three letters to three tribal offices during a pandemic is not a deviation from the government-to-government relationship. It is a demonstration of what the relationship actually entails when a mineral deposit has been identified and a company has filed its claims. The sovereignty of the tribe is acknowledged in the letter’s salutation and disregarded in everything that follows.

The international contrast

The United States is not the only country grappling with the relationship between resource extraction and indigenous rights. But it is one of the few industrialized democracies that has failed to establish a legally enforceable framework for obtaining indigenous consent before approving extractive projects on indigenous lands.

The principle of Free, Prior and Informed Consent, articulated in the UN Declaration on the Rights of Indigenous Peoples, has been incorporated into the domestic law of several countries.¹² In some jurisdictions, FPIC functions as a right of refusal: indigenous communities can withhold consent, and the project cannot proceed without it. In others, it functions as a higher standard of consultation: the process must be more thorough, more transparent, and more responsive than ordinary public participation.

The United States has done neither. It has endorsed the UN Declaration with qualifications that strip FPIC of enforceability. It has maintained a consultation framework that allows agencies to claim compliance with minimal contact. And it has treated tribal objections as one input among many in a cost-benefit analysis that is structurally weighted toward approval.

The contrast is not theoretical. In 2024, the Inter-American Commission on Human Rights accepted a petition from indigenous communities affected by a mining project in South America, finding that the state’s consultation process had been inadequate under international human rights standards.²¹ The commission’s analysis applied criteria (adequate time, full information, culturally appropriate process, genuine ability to influence the outcome) that the Thacker Pass consultation plainly failed to meet.

The United States does not submit to the jurisdiction of the Inter-American Commission on mining disputes. But the standards the commission applies are derived from the same international human rights instruments the United States has signed. The gap between the standards the country endorses in international forums and the standards it applies at home is not a matter of interpretation. It is a matter of record. Three letters, three tribal offices, during COVID.

What consultation could mean

It is worth being specific about what meaningful consultation would require, because the gap between the current practice and a genuine alternative is not as wide as the current practice makes it appear.

Meaningful consultation would begin early, before the project design is finalized. It would provide tribes with the technical information and resources needed to evaluate the proposal on its merits. It would occur through formats determined in partnership with the affected tribes, recognizing that a mailed form letter is not consultation any more than a press release is a negotiation. It would provide adequate time, measured in months rather than the 30-day comment periods that federal agencies routinely impose. It would include site visits, elder interviews, and the documentation of oral histories that might reveal cultural significance not captured in archaeological surveys.

Most importantly, meaningful consultation would include the possibility that the answer is no. Not every sacred site can be mined. Not every massacre ground can be excavated. Not every cultural landscape can be reduced to a line item in a cost-benefit analysis. A consultation process that cannot produce a negative outcome is not a consultation. It is a notification.

None of this would prevent the energy transition. The United States contains multiple lithium deposits, multiple potential mine sites, and multiple possible supply chain configurations. The question is not whether lithium will be produced but whether the specific communities asked to bear the cost of that production will have a genuine voice in the decision. At Thacker Pass, they did not.

The BLM sent three letters. Three tribal offices received them, or did not receive them, during a pandemic that was killing their members at rates far exceeding the national average. The mine was approved. The loan was issued. The equity stake was taken. The surveillance of protesters began.

The process is not broken. To be broken, it would have to have been built. What exists instead is a procedural shell, a set of legal requirements that can be satisfied with minimal effort and that produce, with remarkable consistency, the outcome the agency intended from the start. The shell has the appearance of democratic participation. It has the language of respect for sovereignty. It has none of the substance.

Three letters. Three tribal offices. During COVID.

That is the architecture. It was designed to produce exactly the results it produces. And until the architecture changes, the results will not.