Abstract

Excerpted From: Callie Mobley, Indigenous Law Is Real Law: Ending Erasure Through Legal Reform and Recognition, 94 University of Cincinnati Law Review 569 (2025) (196 Footnotes) (Full Document)

In the early morning of September 12, 1865, the First Nevada Cavalry Battalion of the United States’ Union Army approached a sleeping community of Numu and Newe people in an area known as Peehee Mu’huh and opened fire. The soldiers continued to fire on the fleeing men, women, and children for several hours, and dozens were killed. The Union Army simply left their bodies where they fell and did not allow the families of those killed to return to the area to collect them. This was neither the first nor last massacre of Numu and Newe Indigenous Peoples in the Great Basin region; it was just one of a reported 111 incidents of mass killing the American government perpetrated against these communities.

Today, Peehee Mu’huh is again at the heart of the Indigenous struggle for survival, as the land faces destruction through lithium mining. Lithium Nevada Corporation is planning a mine project which covers nearly 18,000 acres and includes an open-pit mine operating on one of the world’s largest lithium deposits. Although forcibly relocated between 30 to 200 miles from the site, several Native nations maintain enduring spiritual, subsistence, and cultural connections to Peehee Mu’huh. The *570 construction and operation of the lithium mine would desecrate burial grounds associated with the 1865 massacre, disrupt Indigenous access to ceremonial sites, and eliminate longstanding hunting and gathering areas essential to cultural survival.

Lithium Nevada Corporation, a subsidiary of the Canadian corporation Lithium Americas, was able to stake mining claims and conduct mineral exploration at Peehee Mu’huh under the General Mining Act of 1872, which grants U.S. citizens and corporations expansive rights to prospect for and extract minerals on federal public lands, including lands historically seized from Indigenous Peoples. The Bureau of Land Management (BLM) oversees this process and may deny a mining plan only if it would cause “unnecessary or undue degradation,” a standard that has been interpreted narrowly and rarely enforced.

In 2017, President Trump issued , directing federal agencies to streamline leasing and permitting processes for critical minerals, including lithium. This was followed by a 2020 executive order requiring agencies to use “all available authorities” to expedite permits for domestic mineral development. Pursuant to these directives, the BLM initiated the permitting process for Thacker Pass on January 21, 2020 and issued a final decision just under a year later, a timeline far shorter than the 3.1-year average for mining project approvals.

Several Native nations and organizations brought legal action against the lithium mine, challenging the United States government’s failure to conduct meaningful consultation and alleging violations of federal laws protecting Indigenous rights and cultural heritage. The Reno-Sparks Indian Colony, Burns Paiute Tribe, and the People of Red Mountain were *571 among those who filed lawsuits beginning in 2021. These suits primarily argued that the BLM violated the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA) by fast-tracking the mine’s approval without adequate environmental review or Native consultation.

Federal courts ultimately dismissed these challenges. In a 2023 ruling the United States District Court for the District of Nevada found that BLM had satisfied its procedural obligations by sending letters, making phone calls, and holding one virtual meeting with Indigenous representatives, despite the fact that the COVID-19 pandemic made meaningful participation in the consultation process impossible for many individuals and communities. The court ruled that under existing law, BLM was not required to obtain Indigenous consent or halt project implementation while consultation under the NHPA was ongoing, and construction was allowed to proceed. In October of 2025, the U.S. Department of Energy took a 5% stake in Lithium Americas and a separate 5% stake in the Thacker Pass project.

The dismissal of the Peehee Mu’huh lawsuits and the government’s direct involvement in the project illustrate not merely procedural hurdles but deeper structural inequities embedded within the U.S. legal system. While U.S. courts continue to narrowly construe consultation obligations under NEPA and NHPA, international consultation norms are expanding. Global legal standards increasingly recognize Indigenous Peoples’ rights to self-determination, free, prior, and informed consent *572 (FPIC), and environmental protection. These shifting global expectations are creating new advocacy tools that Native communities can leverage even in domestic struggles like the one at Peehee Mu’huh. Yet the fight for Indigenous rights is also hindered by a domestic legal culture that remains profoundly exclusionary. Native Americans remain acutely underrepresented within the legal profession, comprising less than 0.5% of all practicing attorneys in the United States. Indigenous jurisprudence has long been marginalized and delegitimized by mainstream legal scholarship, which has often portrayed Native legal systems as inferior or even non-existent. This history of dismissal persists, as only about one-quarter of American Bar Association-accredited law schools today offer a course in Indigenous law, typically focusing narrowly on Federal Indian Law rather than Indigenous jurisprudence or legal systems.

This Comment argues that the United States is falling behind the expanding body of international law recognizing the right to self-determination for Indigenous Peoples, and that the legal field, which has long played a role in excluding and marginalizing Indigenous voices, must promote and protect that right. Part II provides a brief background on the history of Indigenous participation in international law and introduces the current state of the right to self-determination and consultation for Indigenous groups both internationally and within the United States. Part III explores how the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) can be meaningfully integrated into domestic legal norms and analyzes the responsibilities of legal institutions, educators, and practitioners in advancing this integration. Part IV concludes by reflecting on the structural reforms necessary to align U.S. law with international human rights standards and ensure the full realization of Indigenous Peoples’ rights to self-determination and *573 meaningful consultation.

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The fight to protect Peehee Mu’huh is not an anomaly; it is emblematic of a broader crisis in the United States’ erasure of Indigenous sovereignty. This Comment has argued that symbolic gestures and shallow consultation policies are no substitute for enforceable legal rights. Reforms must begin with codifying FPIC and internal self-determination into domestic law, restructuring statutory frameworks, and repudiating the colonial legal doctrines that persist in federal jurisprudence. But legal reform alone is insufficient. The legal profession must take accountability for its historic role in erasing Indigenous law and commit to supporting Indigenous leadership, embedding human rights norms, and expanding Indigenous legal education.

As one scholar warned, “[t]he tragedy and the injustice would be that after all these years, and all the blood, ink, and tears spilled, the United States will nonetheless finally do away with Indian tribes, not because it knows what they are like, but because it doesn’t.’D’ Whether Native nations survive as sovereign political communities will depend not only on the law as written, but on the choices made by those who interpret, teach, and enforce it. The legal community stands at a crossroads: it can continue to enable Indigenous erasure, or it can choose to defend Indigenous futures.