Nelson, Cathy; Luebben, Thomas E --- "Update on the Western Shoshone Land Rights Struggle against the US Government" [2002] IndigLawB 52; (2002) 5(19) Indigenous Law Bulletin 18

Update on the Western Shoshone Land Rights Struggle Against the US Government[1]

by Cathy Nelson and Thomas E Luebben

The Western Shoshone (‘WS’) formally began the struggle for recognition of their land rights over 50 years ago. That struggle is very much ongoing today.

Background

In 1863, the WS, who had ancestrally used and occupied a large portion of the North American state of Nevada and smaller portions of the states of Idaho and California, entered into a treaty of peace and friendship with the United States (‘US’) government. It was called the Treaty of Ruby Valley (‘the Treaty’). The Treaty described the boundaries of Western Shoshone Country, but did not cede title to WS lands. It gave the US safe passage through Western Shoshone Country, as well as the right to establish mines, and towns and ranches to support mining on WS land. As early as 1932, the WS attempted to enforce their rights under the Treaty as well as their federal Aboriginal title land rights.

In 1951, the Bureau of Indian Affairs (‘BIA’) convinced some WS that the government had ‘taken’ their land, and that they should file a claim for compensation at the Indian Claims Commission (‘ICC’). The ICC proceedings lasted from 1951 to 1979. During that time, many WS continued to insist that the Treaty was still in effect, that they still held title to the land, and that accepting any form of payment would be selling the land. Many WS assert that the WS involved in the claim thought they were being compensated for the harm committed by non-Indians. The attorneys representing the WS before the ICC incorrectly maintained that the WS were not losing any rights to their land. Gradually, many WS began to disassociate themselves from the attorneys, feeling that they had been taken advantage of and inadequately represented by them.

In 1962, the ICC ruled that by ‘gradual encroachment of whites, settlers and others ... the way of life of these Indians was disrupted and they were deprived of their lands’. Since the ‘deprivation’ itself was deemed ‘gradual’, there was no date on which the land had been taken. Attorneys for both sides agreed that 1 July 1872 would be the ‘date of valuation’. Based on that date, the US Court of Claims awarded less than US$27 million in 1979 for the ‘deprivation’.

The Land and Treaty Rights Struggle

Despite the ICC ruling, the question of whether the WS retain Aboriginal title to their lands has not actually been decided by the US courts. The struggle for recognition of land and treaty rights by the WS has taken on a variety of forms, including the use of political, legal and international mechanisms.

Political organisation

Over the years there have been several different WS bodies that have fought for WS treaty and land rights. The WS do not have a central governing body. However, there are nine federally recognised tribal entities. The Temoak Tribe of Western Shoshone Indians of Nevada is a federation-style tribal government composed of the Elko, Battle Mountain, South Fork, and Wells Band Councils, created under the Indian Reorganization Act of 1934. It became active in the struggle for land rights in the late 1960s, and remains so today. The remaining federally recognised WS entities include the Duckwater Shoshone Tribe, the Ely Shoshone Tribe, the Timbisha Shoshone Tribe, and the Yomba Shoshone Tribe. In 1984, the Western Shoshone National Council was formed to assert WS land and treaty rights. It includes representation from most of the above-named federally recognised tribal entities, in addition to extended family and interest groups, such as the Dann Band and the Western Shoshone Traditional Cattlemen's Association of the South Fork Reservation.

US v Dann

Mary and Carrie Dann are sisters and the leaders of a traditional WS extended family group, the Dann Band. They graze their livestock on a ranch which they consider to be WS ancestral lands in Crescent Valley, Nevada. In 1974, the US Bureau of Land Management (‘BLM’) sued Mary and Carrie Dann, claiming WS ancestral land as federal public land, and demanding that they pay fines, now in excess of US$3 million, for trespass (unauthorised livestock grazing on ‘public lands’). In court the Danns asserted the defences of existing Aboriginal title and rights under the Treaty. After lengthy litigation in the lower courts,[2] the US Supreme Court ruled in 1985 that the transfer in trust of funds from the US Treasury to the Interior Secretary was ‘payment’ for the ‘deprivation’, despite the fact that the WS had not accepted this award and the funds had not, in fact, been distributed to the WS.

Seeking international recognition of the Western Shoshone land rights

Having exhausted their domestic legal remedies, the WS sought international recognition of their land rights before two international forums: the Inter-American Commission on Human Rights (‘IACHR’) of the Organization of American States, and the Committee for the Elimination of Racial Discrimination (‘CERD’) of the United Nations.

In 1993, the Danns took their case to the IACHR, complaining that the US had violated WS rights to property and due process by denying them use of their Aboriginal title and treaty lands, and by continued use of discriminatory legal doctrines.[3] The role of the IACHR with respect to the US is to review complaints against the government alleging violations of the American Declaration of the Rights and Duties of Man. In October 2001, the IACHR transmitted a preliminary report to the US government, which was then released to the public in July 2002.[4] The report outlined the IACHR's findings and conclusions that the US violated the Danns' human rights to equality before the law, a fair trial (due process), and property. The US did so through the use of illegitimate means to gain control of WS lands and the flawed ICC process that neither fully informed the WS, nor provided for their consent or adequate representation.

In 1999, the Yomba Shoshone Tribe submitted a Request for Urgent Action to the CERD.[5] The CERD monitors and reviews actions by states with respect to their international legal obligations under the International Convention on the Elimination of all Forms of Racial Discrimination. The Duckwater and Ely Shoshone Tribes later joined in the request. The request asserted that the US was violating WS rights because they are Indigenous peoples, and asked the CERD to direct the US to end that conduct and commence negotiations with the WS to resolve the longstanding land rights issue. In August 2001, when the CERD met in Geneva, the US government was unable to answer questions regarding WS land rights. In its report on the session, the CERD expressed concern for the ‘persistence of the discriminatory effects of the legacy of ... the destructive policies with regard to Native Americans’ in general, and affecting the WS in particular.[6] The US has until 2003 to respond to the CERD's report.

Latest Events

On 2 August 2002, the Senate Indian Affairs Committee held a hastily scheduled, one-hour hearing on the proposed Western Shoshone Claims Distribution Act. At the hearing, only three WS individuals, chosen by the Bill's sponsor, Senator Harry Reid, were allowed to give oral testimony. Two individuals testified in favour of the Bill, and one spoke against it.

The proposed legislation aims to distribute the Court of Claims 1979 money award. As of 2 August 2002, the judgment fund, comprised of the Court of Claims award and accrued interest, totals more than US$137 million.[7] The Bill has raised serious concerns amongst the WS, as it makes no provision for the restoration of an economically adequate land base for the WS. This failure risks leaving the WS without adequate lands to pass on to their children, as the government is likely to assert that it has fulfilled its duty to the WS people and that no more rights exist under the Treaty. The IACHR preliminary report, mentioned above, is also critical of the proposed legislation, and the US government’s intent to proceed with the legislation despite the ‘deficiencies identified by the Commission’.[8]

On 9 August 2002, the BLM sent yet another letter to the Danns giving them notice of trespass and the potential impoundment of their livestock. This time the BLM also permanently cancelled the Danns’ grazing preference on their home ranch. On the morning of September 22, in a pre-dawn raid, the BLM rounded up over 200 of the Danns' cattle and on October 4, sold them via an internet auction to unnamed bidders from outside Nevada. The proceeds from the sale came to a mere US$59,262. These actions are the latest in a series of events demonstrating the government's flagrant disregard not only for WS human rights, but also for the conclusions and recommendations of an international human rights tribunal such as the IACHR. Despite the threats to which they have been subjected, the Danns continue to use and occupy their ancestral lands.

Conclusion

Attempts at negotiating a resolution to the issues of WS land rights took place in the 1970s, 1980s, and 1990s, but none were successful. The battle continues today. At the time of submission of this article, Thomas E Luebben, tribal attorney for the Yomba Shoshone Tribe, is in Washington DC, with his clients James Birchim, Yomba Shoshone Tribal Chair, and Jeoffrey Bryan, Yomba Shoshone Tribal Administrator, lobbying before Congress to prevent passage of the Western Shoshone Claims Distribution Bill.

Cathy Nelson works on Western Shoshone pro bono representation with the Native Lands Institute, a non-profit organisation housed in the law offices of Luebben, Johnson & Young, Albuquerque, New Mexico. Thomas E Luebben is an attorney specialising in Indian and water law, whose involvement with the Western Shoshone land rights struggle began in the 1970s.

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[1] This article is an update of an article by Thomas E Leubben, ‘The Western Shoshone: the land rights struggle of the Western Shoshone Nation’ (1988) 2(31) Aboriginal Law Bulletin 10.

[2] There were a total of 13 lower-court cases from 1977 to 1991.

[3] See IACHR admissibility report citing receipt of the Dann petition on 2 April 1993: Case 11.140, Inter-Am CHR, No 99/99 (Mary and Carrie Dann, United States) (27 September 1999), para 2, available on www.iachr.org.

[4] Preliminary Report of the Inter-American Commission on Human Rights, Case No 11.140, Inter-Am CHR, Report No 113/01 (Mary and Carrie Dann) (15 October 2001).

[5] This was a Request for Action under the Urgent Action/Early Warning procedure: Situation of Western Shoshone Indigenous People, submitted to the Committee on the Elimination of Racial Discrimination, 19 August 1999. See also the supplement to the Request for Action: Situation of Western Shoshone Indigenous People, submitted to Committee on the Elimination of Racial Discrimination, 25 August 1999 (on file with authors).

[6] Concluding Observations of the Committee on the Elimination of Racial Discrimination: United States of America, 14/08/2001, CERD/C/59/Misc.17/Rev.3.

[7] A bill to provide for the use and distribution of the funds awarded to the Western Shoshone Identifiable Group under Indian Claims Commission Docket Numbers 326-A-1, 326-A-3, 326-K, and for other purposes, 2002: Hearing on S.958 Before the Senate Committee on Indian Affairs, 107th Congress (2002). The statement of Neil A McCaleb, Assistant Secretary of Indian Affairs, Department of the Interior, available at http://indian.senate.gov/2002hrgs/080202hrg/080202hrg_wit.htm, indicated that balance was US$137,286,774).

[8] Preliminary Report of the Inter-American Commission on Human Rights, above n 4.