For decades now, Western Shoshone elder Carrie Dann has repeatedly and adamantly declared, ''Mother Earth is not for sale.'' In keeping with this statement, she will decline any monies paid by the U.S. government in its effort to create the appearance that Western Shoshone land rights have been extinguished. Although it is impossible to know how many Western Shoshones are likely to refuse the ''payment,'' others, such as Raymond Yowell, former chief of the Western Shoshone National Council, have also indicated that they will refuse any payment by the United States.
With the U.S. government preparing to distribute funds related to Docket 326K, perhaps as early as November of this year, the Western Shoshone National Council has formally approved a notice of rejection. By signing this form, those Western Shoshones who decide to refuse the monies that the U.S. government plans to pay out will be able to formally decline the monies and affirm the ancestral rights and treaty rights of the Western Shoshone Nation.
The Western Shoshone National Council statement provides a rationale explaining why the Indian Claims Commission process in their case was flawed, and the various ways in which the U.S. government has not followed its own laws in the Western Shoshone case.
It is important to remain mindful of what is behind the Western Shoshone National Council notice. It is premised on the original free and independent existence of the Western Shoshone as a nation of people who have lived for thousands of years in their own territory. The notice is designed to explain why there is no legitimate basis for a payment of monies for an unproven ''taking'' of Western Shoshone lands.
Accordingly, the Western Shoshone National Council notice begins with the 1787 Northwest Ordinance. In this ordinance, the U.S. government pledged that Indian ''lands and property,'' such as those of the Western Shoshone, ''shall never be taken from them without their consent.'' Because ''permission'' is another word for ''consent'' as used in the Northwest Ordinance, the U.S. government pledged that Indian lands such as those of the Western Shoshone will not be taken from them without the permission of the Western Shoshone people.
The notice goes on to demonstrate that there is no documentation showing that the Western Shoshone ever gave the United States permission to ''take'' the ''lands and property'' of the Western Shoshone nation. For example, when the U.S. Congress passed an act establishing a government for the territory of Nevada, it stated that Indian lands, such as those of the Western Shoshone, ''shall be excepted out of the boundaries, and constitute no part of the territory of Nevada.'' The Territorial Act further declared that the Indians would retain their ''rights of persons and property ...'' so long as those Indian rights ''shall remain unextinguished by treaty with the United States and such Indians.''
The only treaty between the United States and the Western Shoshone Nation is the 1863 Treaty of Ruby Valley, made two years after Congress passed an act establishing the territory of Nevada. Based on the language of the Northwest Ordinance and the language of the Nevada territorial act, the United States has the burden of demonstrating explicit language in the treaty whereby the Western Shoshones gave their permission to no longer ''retain'' their original ''rights of persons and property,'' or gave their permission for the lands of the Western Shoshone Nation to no longer be ''excepted out of'' and begin to ''constitute'' part ''of the territory of Nevada,'' or the state of Nevada for that matter. No such language is found in the Ruby Valley Treaty of 1863.
Based on the above history, the Western Shoshone National Council notice declares: ''In 1863, the Western Shoshone Nation and the United States entered into a Treaty of Peace and Friendship. The Treaty did not cede Western Shoshone Territory to the United States.''
The Western Shoshone notice goes on to explain that in 1952 ''the Te-Moak Tribal Council, a creation of the United States under the 1934 Indian Reorganization Act, filed a claim with the United States Indian Claims Commission.'' This claim, states the notice, ''did not need to be filed since the United States has not to this day acquired the Territory of the Western Shoshone Nation, as required by its laws stated above.'' The notice continues:
''This claim, Docket 326K, came out of the ICC [Indian Claims Commission] in 1979, with no final report to Congress and the United States Secretary of the Interior accepted the monetary award for the 'Western Shoshone Identifiable Group' under the shroud of being their trustee having [supposedly] become that in some mysterious fashion sometime in the past.''
Here again, the Western Shoshone never gave their permission for the secretary of the Interior Department to accept, supposedly on their behalf, an unwarranted award for Western Shoshone lands that had never been ''taken'' or ''acquired'' by the United States, pursuant to the terms of the Northwest Ordinance and the Nevada Territorial Act.
The notice explains that in 2004, despite Western Shoshone efforts to stop it from doing so, Congress passed H.R. 884, ''which they called 'the Western Shoshone Distribution Act.'' Additionally, ''On July 7, 2004, the President of the United States signed HR 884.'' The notice created by the Western Shoshone National Council enables each person of Western Shoshone descendent to affirm Western Shoshone citizenship by refusing monies being paid by the United States, and by reaffirming ''all my rights under the 1863 Treaty of Peace and Friendship made between the Western Shoshone Nation and the United States, a treaty that remains in full force and effect.''
Steven Newcomb, Shawnee/Lenape, is the indigenous law research coordinator at Kumeyaay Community College and the education department of the Sycuan Band of the Kumeyaay Nation, co-founder and co-director of the Indigenous Law Institute, and a columnist for Indian Country Today.