Some US Native Americans and advocates for Indigenous peoples' rights warned that bills to fast-track mine permitting would limit the capacity of tribal groups that live near mining projects to play a meaningful role in the decision-making process.

US President Joe Biden hopes to stimulate a domestic battery metal supply chain, but much of the country's mineral wealth lies in or near land controlled by tribes. About 66.7% of nickel, 78.7% of copper, 72.7% of lithium and 100% of graphite reserves and resources are within 35 miles of Native American reservations, according to data from S&P Global Market Intelligence.

Miners have long complained about extended permitting timelines, and both Democrats and Republicans are racing to secure approval for bills that would accelerate the permitting process for energy and mining projects. But those bills put another Biden promise at risk: including tribes in decision-making that affects their homes.

"They are trying to set energy policy on the backs of the Indigenous tribes here," Brian Mason, chairman of the Shoshone-Paiute Tribes of the Duck Valley Indian reservation in Nevada, which opposes Lithium Americas Corp.'s Thacker Pass project, told S&P Global Commodity Insights. "Prior, we would do it because we were uneducated and didn't know better. But now we're not going to play that."

The proposals

Sen. Joe Manchin (D-W.Va.) on May 2 introduced the Building American Energy Security Act of 2023, which was immediately endorsed by the Biden administration. House Majority Leader Rep. Steve Scalise (R-La.) sponsored another permitting bill, H.R. 1, which passed the House on March 30. The bills set the statute of limitations for court challenges to 150 days for Manchin's bill and 120 days for Scalise's bill.

Both bills are unlikely to become law in their current forms, but they set the basis for negotiations.

"There's an incredible opportunity to uplift Indigenous leadership and Indigenous priorities and design a green energy transition that's inclusive of all people, including Indigenous peoples," Kate Finn, executive director of Indigenous-led First Peoples Worldwide, said.

Advocates are alarmed that H.R. 1 does not set out a requirement for tribal notification for all exploratory activities, which "means to miss out on [tribal communities'] expertise on and deep understanding of environmental and social impacts at an early stage," Fabienne Krebs, head of business and human rights at the Society for Threatened People, told Commodity insights.

The bills are "limiting a remedy that Indigenous peoples, tribes and communities can seek should their perspectives and priorities not be taken account of in a meaningful way," said Finn.

H.R. 1 also includes language from Rep. Pete Stauber's (R-Minn.) Permitting for Mining Needs Act, which allows prospectors that satisfy certain requirements to use public lands even if a mineral deposit has not yet been discovered. That feature is just one of several measures that "puts at risk irreplaceable protected lands, special places, endangered and sensitive wildlife, tribal sacred sites, and culturally significant sites," according to a letter from environmental groups.

The Republican and Democrat House Natural Resources Committees and the key sponsors of the bills did not respond to requests for comment. Manchin's office said he does not have a comment at this time.

Consultation to consent

The proposed bills do not establish any changes to the regulatory requirement that mining projects complete prior consultation with nearby tribal communities, but advocacy groups say such legislation would push the US further from ensuring free, prior and informed consent as set out in the United Nations Declaration on the Rights of Indigenous Peoples.

Consent is "a process of dialogue, a process of understanding, negotiation and design" where "Indigenous leaders have their priorities meaningfully respected," and that ideally ends with tribal communities saying yes or no to a project, Finn said. "Any mining that occurs without informed consent [from tribal groups] that affects their lands, territories and resources violates the principle of self-determination."

Aaron Mintzes, senior policy counsel at Earthworks, backed the sentiment. "[C]onsent is a higher standard than consultation, and consultation alone does not guarantee Indigenous Peoples’ full participatory and decision-making rights," Mintzes said.

Some tribes' opposition to faster permitting will test the Biden administration's resolve to strengthen relations with tribes and incorporate tribal knowledge in decision-making.

Biden has ordered a series of measures to strengthen prior consultation in all federal agencies, including an established model for reaching consensus. The administration has also allocated $32 billion for investment in tribal communities under the American Rescue Plan.

Yet Mason said the government failed to involve Indigenous peoples in crafting energy transition policies such as the Inflation Reduction Act of 2022.

"They're just assuming that the tribes want green energy shoved down our throats when most of the tribes are remote," Mason said. "We had an individual from the Energy Department visit our reservation in an electric car without realizing that we were hundreds of miles from anywhere, and there was no [place to] charge."

The Biden administration is now supporting a proposed land swap that would allow Rio Tinto Group's Resolution copper project to operate on the Oak Flat plateau within the Tonto National Forest in Eastern Arizona, despite previous moves to pause the project due to ongoing legal action from nearby tribes, including the Apache Stronghold, who hold the land sacred.

"The Biden Administration pays lip service to respecting Tribal communities but then turns around and claims blanket authority to destroy any Tribal sacred site on federal land for any reason," Luke Goodrich, vice president and senior counsel at Becket, the law firm representing the Apache Stronghold, told Commodity Insights in an emailed response.

"The Biden Administration is repeating the tragic history of the 1800s, when the United States promised to respect Apache territory but then drove the Apache onto reservations and opened their land to mining interests," Goodrich added.

In September 2021, several tribes and Indigenous-led communities filed a rulemaking petition with the US Interior Department calling for new hard-rock mining rules, saying the General Mining Act of 1872 has allowed mining projects to pollute Indigenous lands and local waterways.

Lithium Americas told Commodity Insights that it was working with local tribes and communities "to provide job-readiness training."

A spokesperson for Hudbay Minerals Inc. said its Rosemont copper project in Arizona would continue development without using an area that local tribes say sits on ancestral homelands. A separate lawsuit by the tribes over water permits was denied.

Rio Tinto did not respond to requests for comment. The Interior Department and the Federal Permitting Improvement Steering Council said they had no comment on pending legislation.

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