Government goofed in Western Shoshone land grab

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In 1974, the United States sued Mary and Carrie Dann for trespassing. The U.S. government accused the two Western Shoshone sisters of grazing cattle on U.S. public land without having obtained a federal permit. The Dann's response was that they were grazing their cattle on Western Shoshone land as recognized in the 1863 Treaty of Ruby Valley. The dispute ultimately ended up before the U.S. Supreme Court in 1984. The Court handed down its decision in the case in 1985.

As I was recently reading through the U.S. v. Dann decision, I noticed that the Supreme Court had said that the "chief purpose" of the Indian Claims Commission Act was "to dispose of the Indian claims problem with finality." In other words, the U.S. government had set up the Commission to put an end, once and for all, to those pesky Indians harassing the government with their land claims.

The Court further explained that "finality" in any given case, was achieved pursuant to section 22(a) of the Indian Claims Commission Act. One part of Section 22(a) had to do with the monetary payment in any given case. The other part of the Section had to do with an Indian Claims Commission (ICC) reporting requirement, or certification that a case was concluded.

Quoting Section 22(a), the Supreme Court wrote: "When the report of the Commission [in a given case]?is filed with Congress, such report shall have the effect of a final judgment of the Court of Claims." (emphasis added).

When I recently read the above sentence, I was struck by a profound question, "Where's the report that the Indian Claims Commission filed with Congress?" After some intensive digging, I found my answer. The report never existed. It turns out the ICC never filed a report with Congress in the Western Shoshone case, Docket 326-K.

The evidence is found on page 125 of the Indian Claims Commission's "Final Report," published in 1979. (It is also found in the book, "Their Day in Court" (1990), by H. D. Rosenthal, who also wrote the ICC's "Final Report.")

According to the ICC's "Final Report," 342 dockets were shown as completed by awards by the time the Commission was dissolved by Congress on Sept. 30, 1978. Of this total, "20 dockets [were] not reported to Congress as concluded." The Western Shoshone Docket 326-K was one of the cases not reported to Congress because it was on appeal to the Court of Claims when the ICC went out of existence.

In the legal brief that the U.S. government filed in U.S. v. Dann, the U.S. attorneys also quoted the reporting requirement of the Indian Claims Commission Act. In other words, the U.S. Attorneys, either because of fraud or incompetence, did not inform the Court that the Commission had never filed a report with Congress in the Western Shoshone case pursuant to Section 22(a).

This also means that other sections of the Indian Claims Commission Act were never carried out by the ICC in the Western Shoshone case. For example, Section 21 defines "Report of Commission to Congress," and reads in part as follows: "In each claim, after the proceedings have been finally concluded, the Commission shall promptly submit its report to Congress." Such a report shall contain the "final determination" of the Commission, along with "a transcript of the proceedings or judgment upon review, if any, with the instructions of the Court of Claims."

"Final determination" is defined in Section 19 of the Act: "The final determination of the Commission shall be in writing, [and] shall be filed with its clerk." Furthermore, the final determination shall include "the findings of the facts upon which its conclusions are based" and "a statement of its reasons for its findings and conclusions." The Commission failed to comply with these legislative provisions of the Indian Claims Commission Act in the Western Shoshone case by sending the above information to Congress.

This new controversial revelation that the ICC never reported the Western Shoshone case to Congress is entirely bizarre. It means that the Supreme Court in U.S. v. Dann was referring to a "report" that never existed. Assuming that the Commission's report to Congress was a required step in the process toward finality, the result is an error of fact in the Court's decision in U.S. v. Dann. The Court did not address, as a factual matter, whether the Indian Claims Commission had filed, as required by statute, its report with Congress in the Western Shoshone case.

Importantly, the Court of Claims said in a 1979 decision, Te-Moak Band of Western Shoshone Indians, that "the United States would not be discharged of any claim, including the one that the Western Shoshones own the land, until the judgement was reported to Congress, money to pay it appropriated, and payment made." (emphasis added)

The proposed distribution to the Western Shoshone of roughly 140 million dollars in judgment funds in Docket 326-K, is premised on the assumption that the ICC had reached finality in the Western Shoshone case, based on the legislative requirements laid down by Congress. But this is impossible given that the ICC was dissolved before it had the opportunity to conclude the Western Shoshone case by filing a report with Congress.

This information undercuts the very basis of the Western Shoshone monetary distribution bill that U. S. Sen. Harry Reid, D.-Nev., has said will be reintroduced in the upcoming session of Congress, and that U. S. Rep. James A. Gibbons, R.-Nev., has said will be reintroduced on the House side. Since the Indian Claims Commission never fulfilled the requirements of the Indian Claims Commission Act, this means there is no valid statutory basis for the Western Shoshone distribution bill.

This new finding underlines the fact that negotiations will be the only way to resolve the impasse between the United States and the Western Shoshone Nation. An effort at negotiations was attempted during the Carter Administration but ultimately failed. Such negotiations must be immediately reopened.

Additionally, the Senate Committee on Indian Affairs ought to take this new development as its opportunity to do a full investigation of the slipshod manner in which the ICC dealt with the Western Shoshone case. A Senate investigation would provide both the United States Congress and the Western Shoshone people with the opportunity to get to the bottom of the negligent manner in which the ICC dealt with Western Shoshone land rights, as well as the opportunity to start off negotiations with a clear picture of what went wrong, and what the U.S. can do now to get it right.

Steven Newcomb, Shawnee/Lenape, is director of the Indigenous Law Institute, and Indigenous Law Research Coordinator at D-Q University at Sycuan, on the reservation of the Sycuan Band of the Kumeyaay Nation.