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Legal holes in BLM 'gather'

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CRESCENT VALLEY, Nev. - Everyone in the government assumes the Western Shoshone legal case is settled.

The Bureau of Land Management assumed it in rounding up the herds belonging to traditional Shoshone elders last year and in warning the Dann sisters of an impending "gather" of their horses.

U.S. Sen. Harry Reid, D-Nev., assumed it in pushing his bill last year to distribute cash from the land claims settlement offered by the long-defunct Indian Claims Commission, a bill his staff says he plans to reintroduce in the upcoming Congressional session.

Even some court decisions seem to assume it.

But when you look for the actual documents that would have settled the case, they strangely are not to be found. Steven Newcomb, director of the Indigenous Law Institute of Eugene, Ore., reports in the column alongside that the Indian Claims Commission appears never to have finished its work on the Western Shoshone docket 326-K. The Commission, which has fallen in sharp disfavor with historians, was abolished by Congress in 1978 before it presented a final report on the case.

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Some other major cases might have fallen into the same limbo, but Newcomb is withholding statement on them until he can do further research. All the work he has done to date, which he has presented in a report to the Western Shoshone National Council, indicates, however, that the basic government assumption about the tribe's Nevada land claims quite simply is wrong.

The implications are still being digested, but they should be enormous. At the very least, they require government officials to verify the often repeated statement that the U. S. Supreme Court has rejected the land claim of the traditional Western Shoshone.

Julie Ann Fishel, legal counsel for the Western Shoshone Defense Project, reports her frustration in conversations with officials of the Reno, Nev., BLM office, which has conducted round-ups of Shoshone herds it maintains are trespassing on public lands. She said that the BLM has never produced the legal backing for its position, despite her repeated requests to talk to the lawyer who supposedly provided it. "It's like talking to the clouds," she said.

Likewise, Sen. Reid pushed his Distribution bill to pay out some $140 million in the trust account provided by the Indian Claims Commission without debate on the Senate floor and with a committee hearing heavily weighted toward tribal members who wanted the money. The bill passed the Senate without opposition and died in the House only because of the last minute crush at the end of the session.

A spokesperson for Reid's office said he would definitely resubmit the bill this year, although she was unable to say when.

Some legal scholars who have followed the case are now advocating land settlement negotiations between the government and Western Shoshone leadership, citing the process that produced the Timbisha Shoshone Homeland Act in 2000. In a letter to the Senate Indian Affairs Committee last September, Professor Charles Wilkinson of the University of Colorado at Boulder School of Law called such talks "the only course of action that will result in a permanent, fair resolution of the issues."