Cliven Bundy’s dispute with the Bureau of Land Management has brought the Western Shoshone Nation and the 1863 Treaty of Ruby Valley back into focus. Mary and Carrie Dann, Raymond Yowell, and Myron Tybo had horses and cattle stolen by the Bureau of Land Management for grazing their livestock on Western Shoshone treaty lands without a federal grazing permit, which the Western Shoshone viewed as not required because of the Ruby Valley Treaty. The current Bundy dispute with the BLM has reminded many of us of those contentious days back in 2002, even though in most ways there is no basis for comparison.
Although the Bundy ranch is not in the Western Shoshone territory, the U.S. government has previously claimed that the establishment of such non-Indian ranches was one of the ways that Western Shoshone “aboriginal title” was gradually “extinguished.” This is part of something the United States Indian Claims Commission creatively and falsely called “gradual encroachment,” or, in other words, “gradual stealing.”
The deceptive nature of the United States government’s treatment of Indian nations generally comes into sharp focus when one examines the abusive and dominating manner in which the U.S. has treated the Western Shoshone Nation. This point is made exceedingly well in the classic film by Joel Freedman, “To Protect Mother Earth,” which was the sequel to “Broken Treaty at Battle Mountain.”
In the documentary “To Protect Mother Earth,” we see Freedman’s impromptu interview of U.S. Assistant Attorney General Robert McConnell on the steps of the U.S. Supreme Court building. McConnell was leaving the Supreme Court after having argued the U.S. government’s position in the case U.S. v. Dann, involving the dispute between the United States and the Western Shoshone sisters Mary and Carrie Dann (It was Earth Day 2005 that Mary walked on to the spirit world). In the film we see this exchange:
Freedman: “Sir, can I ask you about the recent session here of the Dann case? What is the government’s position about the taking of Shoshone land?”
McConnell: “The governments’ position is that the Indian Claims Commission found that there had been an extinguishment, ah, long before the Indian Commission Act was enacted. And that that extinguishment had already taken place.”
Freedman: “How did they find it?...What actually took place to extinguish the [Western Shoshone] title?”
McConnell: “The important thing is that Indian title is not title as we traditionally know it as fee title in land. It is a title to hunt and roam and occupy in the sense of making…a living off of the lands in that area, as between Indian tribes, not as between Indian tribes and the United States. That…aboriginal title was seen [by the Indian Claims Commission] and found to be extinguished by a series of events, during a long period of time throughout the area. It was a cumulative effect.”
Freeman: “Such as?”
McConnell: “Railroads were put across the land. Telegraphs were put across the land, ranches were constructed across the land, ah, mines were entering…the gold rush, silver mines were found, mined, cities were, ah, constructed populated, all as an expression, if you will, of, ah, the citizens of the United States actively involved in taking over that land. And it was found by the [Indian Claims] Commission. . .that that had extinguished aboriginal title.”
Freedman: “Did the Commission ever review the…Treaty of Ruby Valley?”
McConnell: “Yes.... I believe they did.”
Freedman: “Did they ever decide whether that had any effect?”
McConnell: “The Treaty of Ruby Valley was a treaty of uh, friendship as opposed to fighting and, …ah, interrupting the white man’s coming onto the land. It did not, and this Court, has found, that none of the five treaties that were entered into at that same time with the Shoshone, did not vest, or even suggest, [or] acknowledge Indian title in the land at all.”
Freedman: “You maintain that this treaty was a treaty of extinguishment then?”
McConnell: “No. No. but we do maintain that if you…that the treaty by its very terms does point out all these activities, if mines are found, that the mines would be allowed to be developed, and mined, and…activity run…if there was ranching, [if] people wanted to go in and ranch, they could ranch, if they were going to [do] timber production, all those things did subsequently in fact take place.”
So, let’s review. The United States set the framework by unilaterally imposing a definition of “aboriginal title” on every original nation, such as the Western Shoshone nation. This imposed definition of title refuses to acknowledge Indian nations to be full-fledged nations, with their own territories. McConnell explains that so far as the U.S. is concerned, it is merely “a title to roam and occupy in the sense of making a living off the land.” He also says that it only applies “as between Indian tribes.” It does not provide the Indians with any leverage in a dispute “as between Indian tribes and the United States.”
Furthermore, we are supposed to buy the idea that the U.S.-imposed Western Shoshone “title” to “roam and occupy” was “extinguished” by “a series of events.” What were those events? “Railroads were put across the land. Telegraphs were put across the land, ranches were constructed across the land, ah, mines were entering…the gold rush, silver mines were found, mined, cities were, ah, constructed populated, all as an expression, if you will, of, ah, the citizens of the United States actively involved in taking over that land.”
According to McConnell, the U.S. government argued “that the treaty [of Ruby Valley] by its very terms does point out all these activities, if mines are found, that the mines would be allowed to be developed, and mined, and…activity run…if there was ranching, [if] people wanted to go in and ranch, they could ranch, if they were going to [do] timber production, all those things did subsequently in fact take place.” McConnell cleverly misspoke: The treaty does not merely “point out” all those activities, it permits them. By the terms of the Ruby Valley treaty the Western Shoshone permitted or allowed all those activities to take place. However, the treaty only allowed for one railroad.
The term “encroachment” implies that that the encroaching activities have taken place against one’s will. So, how can an activity that is permitted, or allowed, be sensibly called “an encroachment,” meaning “to trespass or intrude?” The activities that McConnell said “did subsequently in fact take place,” were activities which the Treaty of Ruby Valley permitted. Therefore, those activities were not encroachments. The Indian Claims Commission and the United States government lied. Big surprise. And Western Shoshone livestock and Western Shoshone people, such as the Dann Sisters, Raymond Yowell, and Myron Tybo were harmed economically based on that lie.
The Western Shoshone Nation has never ceded or relinquished its territory by a ratified treaty with the United States as required by the organic act establishing the Territory of Nevada. The Treaty of Ruby Valley was not a treaty of cession or relinquishment. And, according to the act that established the territory of Nevada, no Indian land shall become part or any state or territory until such time as the Indians enter into a treaty with the United States by which they transfer their lands to the United States. The United States government has been busy violating that part of the organic law of the United States, for millions of acres of land, some $30 billion in gold, and untold amounts of water.
Cliven Bundy is being lionized by the Right as someone who is standing up to government abuse and the developing federal police state in the U.S. He is being demonized by the Left as someone who refuses to abide by “the rule of law.” Yet, once again, neither side of that deeply divided political spectrum bothers to acknowledge the Western Shoshone Nation. Neither side seems to grasp the domination that Mary and Carrie Dann, Raymond Yowell, and the rest of the Western Shoshone Nation have been subjected to for decades.
Steven Newcomb (Shawnee, Lenape) is co-founder and co-director of the indigenous Law Institute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (2008, Fulcrum). He has been studying U.S. federal Indian law and international law since the early 1980s.