Newcomb: An open letter to Congressman Jim Gibbons

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Dear Congressman Gibbons, this past February you introduced H.R. 884, that, if passed, would pay out to Western Shoshone Indians over $130 million dollars that is sitting in an account (Docket 326-K) pursuant to the Indian Claims Commission Act of 1946. The funds are said to be for Western Shoshone lands that were supposedly taken from the Western Shoshone nation by the United States, a groundless contention the traditional Western Shoshone reject along with the money.

I realize that your vice-chairmanship of the House Resources Committee puts you in a powerful position to push your bill forward in an effort to get it passed in this session of Congress. For this reason, I'd like to take this opportunity to ask you a number of questions about the Western Shoshone case. Given that your office has been unwilling to answer my questions in a detailed process of communication, I've decided to write you this open letter.

First and foremost, Congressman Gibbons, I'd like to remind you of a number of Western Shoshone Tribal Council resolutions passed last year. (see Vol. 22, Iss. 21, "Western Shoshone tribal councils oppose Reid's legislation") Some of the resolutions specifically forbade Temoak Chairman Felix Ike and his supporters from rushing forward with a vote on a distribution of the funds in Western Shoshone Docket. All of them opposed last summer's "vote" on the issue. In direct opposition to these resolutions Chairman Ike and the self-appointed "Western Shoshone Steering Committee," held a "vote" and claimed on the basis of their unofficial count that a majority of Western Shoshone favor receiving a distribution of the funds in Docket 326-K.

I have e-mailed your office copies of the resolutions, along with a letter of explanation. Despite this, your office has refused to acknowledge the resolutions, and instead has continually presented the result of Felix Ike's ballot to the media as if it were part of a legitimate political process that followed the Temoak Constitution. Nothing could be further from the truth. Congressman Gibbons, what is your position on the Western Shoshone Tribal Council resolutions?

A second issue I'd like to ask you about, Congressman Gibbons, is the failure of the Indian Claims Commission to file a final report with Congress in the Western Shoshone case. According to Section 21 of the Indian Claims Commission Act, the Commission was required by law to file such a report. I have also sent your office a detailed report about this issue, but as your staff person recently told me in Washington, D.C., the lack of an I.C.C. final report is a "non-issue."

This got me to thinking, Congressman Gibbons. If the lack of an I.C.C. final report is unimportant, why did the Supreme Court of the United States specifically point out in U.S. v. Dann that such a report was an essential ingredient of "finality" in any Indian Claims Commission case?

In the 1984 case U.S. v. Dann, the Court said that "finality" was "effected" by "the language of Section 22(a)[of the I.C.C. Act]: 'When the report of the Commission ? has been filed with Congress, such report shall have the effect of a final judgment of the Court of Claims.'"

As you know, the word "effected" means, "to produce as an effect, bring about, accomplish, or make happen." Thus, the Court was saying that "finality" was "accomplished" or "brought about" when "the report of the Commission ? has been filed with Congress." But since there is no report in the Western Shoshone case to fulfill Section 22(a) of the I.C.C. Act, why did the Supreme Court imply that the Commission had indeed filed a report in the Western Shoshone case? We may surmise that the Supreme Court simply didn't know about the lack of a final report.

Thus, Congressman Gibbons, it seems to me that the Supreme Court's ruling in U.S. v. Dann stands on an insurmountable contradiction. In other words, how can the Court say that the Indian Claims Commission's report to Congress is an ingredient of "finality" in any given case, and then say that such "finality" was "effected" in the Western Shoshone case by a non-existent I.C.C. report, a "report" that was never written and never filed with Congress? Given this contradiction, why do you consider the failure of the Indian Claims Commission to file a final report in the Western Shoshone case a "non-issue?"

Congressman Gibbons, I hope it won't seem presumptuous of me to remind the readers of this letter that you, as a U.S. government official, are sworn to uphold the "laws of the United States." I raise this point because of the 1863 Treaty of Ruby Valley between the Western Shoshone Nation and the United States, which, according to the U.S. Constitution, is part of the "supreme Law of the land." Since the treaty of Ruby Valley is among the "laws of the United States" you are sworn to uphold, in what way is your bill specifically designed to uphold the existing land rights of the Western Shoshone nation, and the treaty relationship between the Western Shoshone nation and the United States?

Also Congressman Gibbons, as you know, in January of this year the Organization of American States' Inter-American Commission on Human Rights made public its finding that the government of the United States, through the U.S. Indian Claims Commission process, violated the human rights of the Western Shoshone people. Thus, the question arises, Given that your bill rests upon the very same statutory framework that the IACHR found to be in violation of the Western Shoshone human rights, won't the very same charge be made about your legislation if it passes?

Congressman Gibbons, I encourage you withdraw your legislation, H.R. 884, and to enter into open dialogue with all Western Shoshone, including the traditional Western Shoshone who steadfastly oppose the distribution of the funds in Docket 326-K, for fear that the argument will be made that their land rights have thereby been extinguished. A negotiated settlement is the only meaningful path to resolving the ongoing dispute over Western Shoshone lands as recognized in the 1863 Treaty of Ruby Valley.

Sincerely,

Steven Newcomb, Director, Indigenous Law Institute

Steven Newcomb, Shawnee and 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. He is a columnist for Indian Country Today.