I recently found the Indian Claims Commission's "Findings of Fact" concerning the Western Shoshones on microfiche at the University of San Diego Law School library (11 Indian Claims Commission 387). The "Findings" is 30 pages long, but the portion dealing with the Western Shoshone consists of a mere 31 sentences, more or less.
According to the Commission, "the way of life" of the Western Shoshones "was disrupted" and "they were deprived of their lands," by "gradual encroachment by whites, settlers, and others," and by "the acquisition, disposition, or taking of their lands by the United States." Yet not one shred of information is included in the 31 sentences of the "Findings" document having to do with the Western Shoshones that would substantiate this claim of the supposed taking of Western Shoshone land. Indeed, the reader is provided with no background information to explain on what factual basis the Commission arrived at this "finding." Nothing.
The mysterious basis of the Commission's "finding" that Western Shoshone lands had been "taken" left the Commission unable to pinpoint a date when the supposed "taking" had occurred. Thus: "For these reasons the Commission may not definitely set the date of acquisition of these lands by the United States." There was one simple reason why the Commission could not set the date of acquisition. It was working on the basis of unfounded conjecture rather than documented evidence.
In 1982, the Court of Claims acknowledged that the Indian Claims commissioners had not been able to locate any documentation to prove a "taking." "This was," said the Court of Claims, "one of those land taking claims where it was difficult to point the Commission's finger on any act by defendant [the U.S.] that constituted a taking."
Its inability to document any taking of Western Shoshone land left the Commission faced with a dilemma. The Commission could have correctly found that Western Shoshone lands had never been taken and therefore still belonged to the Western Shoshone nation. But as the Court of Claims later pointed out in its 1982 ruling, the idea that "the Indians might still own the land was likely to not be seriously urged by any party." By "any party" the Court of Claims was not referring to the traditional Western Shoshone who had been saying all along that the land at issue was still Western Shoshone land, as confirmed by the 1863 Treaty of Ruby Valley.
The other option open to the I.C.C. was to issue an erroneous "Findings of Fact" and hope no one cared about the absence of any documentation to back it. This was the course of action the Commission chose. As the Court of Claims explained, "All parties tended to view the task as [being] to select a taking date for valuation purposes, which might have been a taking date when the defendant [the U.S.] had done nothing." In other words, the Claims Commission and the white attorneys of the firm Wilkinson, Kragen and Barker had before them the task of choosing an arbitrary date of taking despite the fact that the U.S. "had done nothing" actually to take Western Shoshone lands.
To explain the actions of the Claims Commission, the Court of Claims further said in its 1982 ruling that the Indian Claims Commission Act had been set up as "a machinery for assessing money awards, not for confirming Indian title to land never taken." But by fabricating a "Findings of Fact" that Western Shoshone lands had been taken, when in fact they had not been, and by manufacturing a "date of valuation," it is arguable that the Indian Claims Commission conspired with the white attorneys handling the Western Shoshone case to use the Claims Commission process itself as a means of violating the rights of the Western Shoshone people by creating the false appearance that they no longer had any land rights.
When the Supreme Court handed down its 1984 ruling in U.S. v. Dann, it did not bother to examine the case in light of the rule that "determinations of fact are normally accorded finality so long as the finding is based upon evidence," and in light of the fact that the ICC's "finding" in the Western Shoshone case was not based upon evidence.
When President Truman signed the Indian Claims Commission Act into law in 1946, he issued a press release that said in part, "The bill makes perfectly clear what many men and women, here and abroad have failed to recognize, that in our transactions with the Indian tribes we have at least since the Northwest Ordinance of 1787 set for ourselves the standard of fair and honorable dealings, pledging respect for all Indian rights."
How ironic, then, that the Indian Claims Commission behaved toward the Western Shoshone people in a way that was neither fair nor honorable and that demonstrated utter disrespect for Western Shoshone land rights.
On August 1, 1946, Secretary of Interior Julius A. Krug sent a letter to President Truman encouraging the president to sign the Indian Claims Commission Act into law. Krug told the president the bill had "international repercussions" and would come to be "viewed as a touchstone of the sincerity of our national professions of fair and honorable dealings towards little nations." (Emphasis added).
In its 1979 final report, the Indian Claims Commission again demonstrated its willingness to play fast and loose with the facts. Apparently believing that Krug's reference to American Indians as "little nations" was problematic, the Commission reworked Secretary of Interior Krug's letter.
According to the ICC's version of history, Krug's letter to President Truman had said that the Indian Claims Commission Act "would 'strengthen our moral position in the eyes of many other minority peoples' in little nations abroad." By adding the word "abroad," the ICC created the false impression that Secretary of Interior Krug had used the phrase "little nations" to refer to nations elsewhere in the world, rather than "little [Indian] nations" inside the geographical boundaries of the United States.
When Secretary of Interior Krug said some 56 years ago that the Indian Claims Commission Act would have international repercussions, he could not have foreseen that the ICC process would be found to have violated Western Shoshone human rights, as recently determined by the Inter-American Commission on Human Rights.
As it now stands, the U.S. government is in a real quandary. The most powerful nation on earth is now thrust into the spotlight on the world stage for all to see. The question is, will the U.S. government choose to behave in a "fair and honorable" manner toward the Western Shoshone - a "little nation" that has a solemn treaty with the U.S. - and thereby tangibly demonstrate to the world its respect for all Indian rights? Or will it instead choose to place yet another leaf in the book where it compiles its lengthy record of rank hypocrisy?
Steven Newcomb, Shawnee/Lenape, is director of the Indigenous Law Institute and Indigenous Research Coordinator at D-Q University at Sycuan on the reservation of the Sycuan Band of the Kumeyaay Nation.