The Western Shoshone have been litigating the rights to their homeland since at least 1951, when a claim was filed, purportedly in their behalf, before the United States Indian Claims Commission (ICC). A full statement of this history is in Elmer R. Rusco, "Historic Change in Western Shoshone Country: The Establishment of the Western Shoshone National Council and Traditionalist Land Claims," 16 American Indian Quarterly 337 (1992).
Raymond Yowell's pro se lawsuit against the Bureau of Land Management (BLM) is the latest effort in this struggle to make the United States live up to its treaty obligations. Not surprisingly, the federal court dismissed the suit. I say not surprising, because the dismissal is in line with prior decisions attacking Western Shoshone lands. The courts are at least consistent in their support for U.S. claims of domination over Indigenous nations.
The U.S. has endeavored for years to extinguish the territorial integrity of the Western Shoshone Nation. Yowell's persistence in challenging this is a thorn in the side of the federal government. After the ICC decision, the U.S. offered money in exchange for Western Shoshone title. When they refused to accept the money, the U.S. took the extraordinary step of accepting it on their behalf, claiming to be their "trustee." The U.S. Supreme Court upheld this in United States v. Dann, 470 U.S. 39 (1985), stating that "the Shoshone's aboriginal title has been extinguished" because the U.S. accepted the money from itself on behalf of the Western Shoshone.
Raymond Yowell's land, from which BLM seized his cattle, is within the ancestral territories of the Western Shoshone Nation recognized in the 1863 Treaty of Peace and Friendship signed at Ruby Valley . The Western Shoshone have never ceded or relinquished their fundamental indigenous relationship to these territories. They continue to hunt, fish, gather, graze, and live on the lands in accordance with laws and instructions given to them by the Ah-Peh (Father).
In 1995, Mr. Yowell was Chief of the Western Shoshone National Council, the traditional government of the Western Shoshone Nation. Under his leadership, the Council decided to challenge claims by the U.S. and Nye County, Nevada, that they had title to Western Shoshone lands. This litigation was conducted jointly by the Western Shoshone National Council on behalf of the Nation, and by Chief Yowell as representative of the class of Shoshone persons who assert individual relationship to the lands.
I had the honor of working with Raymond Yowell and the Council to assist in the conduct of the litigation. Steve Newcomb was involved as a researcher and Robert Doyle as a consultant. The litigation challenged the fundamental doctrines of federal Indian law—"plenary power" and "trusteeship"—on the ground that these are extensions of Christian imperialism asserted in the colonial process.
One might think the Western Shoshone were foolish by raising these issues. A conventional approach to federal Indian law says Indians have "lost" title because of the "discovery doctrine." However, as soon as the Western Shoshone filed their lawsuit in the controversy between Nye County and the U.S., those two parties decided they would give up the title claims and focus on land management issues instead. In other words, everyone knew that the Western Shoshone title was better than any other party. The judge went on to ignore the Western Shoshone, and the Appeals Court somehow "lost" their filing. Twice.
Chief Yowell won another brief victory in the course of the litigation, when an injunction was issued against the BLM, prohibiting it from "impounding, confiscating, or forcibly removing" Western Shoshone livestock. That order was later dissolved, when the court ruled that (1) the Western Shoshone Nation's assertion of self-government "flies in the face of reality" because the relationship of American Indians to the United States "is not, and has not traditionally been, one which could be characterized as a foreign or independent nation"; (2) the application of principles of international law is not "appropriate"; and (3) that "both tribal and individual aboriginal title to the Western Shoshone lands ... have been extinguished and compensation paid therefore."
The breadth of the court's ruling shows the breadth of the challenge that Raymond Yowell and the Council were making. Theirs was an astounding effort to use U.S. courts to challenge U.S. power. Perhaps it was doomed from the start, despite the abandonment of title claims by the county and feds and the brief injunction Whatever one thinks about the effort, it stands out as an historic moment in the relationship between Indigenous peoples and the U.S.
Raymond Yowell's tenacity in trying to force the courts to recognize the sham that is called federal Indian law is a testimony to his courage and perseverance. He is a leader of his people, putting himself on the line in the ongoing struggle for Western Shoshone self-determination.
Peter d’Errico graduated from Yale Law School in 1968. Staff attorney in Dinébe'iiná Náhii?na be Aga'diit'ahii Navajo Legal Services, 1968-1970. Taught Legal Studies at University of Massachusetts, Amherst, 1970-2002. Consulting attorney on indigenous issues.