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Newcomb: U.S. actions against Western Shoshone becoming transparent

The election results are in and Felix Ike is out. Ike, the embattled former chairman of the Western Shoshone Te-Moak Tribal Council, won a seat on the Elko Band Council, but the October election removed him from the Te-Moak Tribal Council, and stripped him of his role as the Te-Moak chairman.

This development poses a question: If Mr. Ike's position regarding H.R. 884 - the Western Shoshone Claims Distribution Bill - was supported by a "vast majority of Western Shoshones" in the Elko Band, wouldn't this have been reflected in the recent election results? Wouldn't the Elko Band voters have put Ike back in office with an overwhelming show of support?

Instead, Ike received the second lowest number of votes in the Elko Band Council elections. Also, his major supporters on the Elko Council were ousted. Ike now finds himself out of the loop, so to speak, with no seat on and virtually no influence within the larger Te-Moak Council. (The Te-Moak Council is comprised of four Band Councils: Elko, Battle Mountain, South Fork, and Wells).

This recent development must have come as something of a surprise to Senator Harry Reid's office. A couple of weeks ago, Reid's office reportedly called the Elko Band Council requesting that Ike travel to Washington, D.C. Reid's office was told that Mr. Ike no longer represents the Te-Moak Tribe. No word on Reid's response. Nor is there any word of what Nevada Congressman Gibbons thinks of Ike's removal from the Te-Moak Council and from his role as Te-Moak Chairman.

In late September, the United States government received another surprise when Florida attorney Jeff Herman filed a $100 billion dollar lawsuit against the United States on behalf of the Western Shoshone Nation. The following have joined the lawsuit thus far: the Western Shoshone National Council, the Te-Moak Tribal Council, the Elko Band Council, the Battle Mountain Band Council, the South Fork Band Council, the Winnemucca Indian Colony Council, and the Dann family.

I'm quite certain that congressional proponents of H.R. 884 were not expecting the lawsuit. It was filed in U.S. District Court for the District of Columbia and is now before Judge Lamberth, who is, of course, the judge presiding over the Indian trust funds case. No word yet on how the U.S. will respond to the lawsuit.

One point argued in the Western Shoshone lawsuit is particularly fascinating. Mr. Herman's research has determined that Section 22(a) of the Indian Claims Commission Act (ICCA) expired along with the Commission itself on September 30, 1978. This finding shows that the Supreme Court, by relying on Section 22(a) of the ICCA in its 1985 ruling U.S. v. Dann, based its decision in Dann on a statutory provision that hadn't been part of the federal legal code for some six years. Instead of basing its decision in Dann on the existing state of the law at the time of its ruling, the Court based its ruling on what the state of the law had been at some time in the past.

As previously mentioned in this column, the House Resources Committee held a hearing this past June on the Western Shoshone Claims Distribution Bill. During the hearing, New Mexico Congressman Udall asked the Interior Department representative to submit documentation "for the record," substantiating Interior's claims about the Western Shoshone ballot results on H.R. 884. At the September mark-up session for H.R. 884, Congressman Udall continued to press for a response from Interior.

Not wanting any further delay on the bill, Nevada Congressman Jim Gibbons reportedly held up a document during the mark-up that he said contained the answers Congressman Udall was seeking. However, it turned out that the piece of paper Gibbons was holding was merely a Western Shoshone enrollment sheet. It had not been submitted by Interior, and had nothing whatsoever to do with Congressman Udall's questions.

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Interior has had five months to cough up the very documents that Interior presumably used as the basis for its June testimony about the Western Shoshone ballot results. The simple answer for such stonewalling is that Interior is faced with an impossible dilemma: Interior has no independent documentation of the "ballot" results.

There was no independent oversight of the Western Shoshone "ballot" that was put together by then Te-Moak Chairman Ike and Senator Reid. Therefore, the only documentation that Interior could possibly submit for the record to back up its testimony is whatever "results" were provided to the BIA by the unofficial self-styled group known as the "Western Shoshone Claims Steering Committee."

In an interesting development, this columnist has just received a response from the Department of the Interior to an Indigenous Law Institute (ILI) Report. The ILI report documented that the Indian Claims Commission filed no "Final Report" with Congress in the Western Shoshone case, as required by the Indian Claims Commission Act. The United States has now acknowledged in a letter to the ILI that no final report was ever filed with Congress in the Western Shoshone case.

However, the Office of the Solicitor at Interior claims this lack of a final report has little if any importance. The response states in part, "Requiring the filing of a report with Congress by the disbanded Commission before finality can be achieved ... would frustrate the ? purpose" of the Indian Claims Commission Act. Based on a conversation with someone in the Solicitor's Office, this sentence means that the federal government would be put in a "hard position" if it were to find that finality has not been reached in the Western Shoshone case because the Indian Claims Commission failed to file a final report with Congress.

Yet it was Congress that established the statutory requirement that the ICC shall file a final report with Congress as part of the completion of any given claims case. The Solicitor's Office has put forth the curious argument that the purpose of the Indian Claims Commission Act would be "frustrated" by requiring the Indian Claims Commission to fully complete and finalize all the work that Congress required it to do.

The Solicitor's Office response goes on to say, "Although the filing of a report is statutorily required, as is a final distribution plan, the Supreme Court ruled in [U.S. v.] Dann, that failure to comply with such a statutory requirement does not necessarily preclude finality. For that reason, the absence of the Commission's report to Congress does not preclude finality in the Western Shoshone case."

Even though the Indian Claims Commission failed to finalize the work required by Congress in the Western Shoshone case, the federal government still claims that finality has nevertheless been reached in the Western Shoshone case. Why? Because of the Supreme Court's ruling in U.S. v. Dann that payment had been effected when the government paid itself on "behalf of" the Western Shoshones. What the Interior Department conveniently overlooks, however, is that the ICCA defined finality as consisting of two things: 1) a final report to Congress, and 2) payment. A distribution plan was to be developed only after both steps of finality had been completed.

Not only was a final report never filed, but since the government claims to have paid itself "on behalf of" the Western Shoshone, the monetary distribution effort has always been and remains an illegitimate federal effort to claim that Western Shoshone lands no longer rightfully belong to the Western Shoshone Nation.

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