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The Western Shoshone and U.S. organic law

Right now, Congress is on the verge of passing legislation (S.B. 958 and H.B. 2851) that would pay out some 138 million dollars to the Western Shoshone people for their lands. Passage of the legislation could come as quickly as this week. Members of the House of Representatives and the Senate are working feverishly to wrap the legislation into to an omnibus package so that there will be no open debate on the floor of the Senate, or the House of Representatives.

Apparently, in an effort to punish traditional Western Shoshone for opposing legislation that would force a monetary payment on them, on May 24 agents of the Bureau of Land Management by force of arms stole and sold the cattle of Raymond Yowell (Chief of the Western Shoshone National Council), and of Myron Tybo. On Sept. 22, another force of armed federal agents stole the cattle of Mary and Carrie Dann. All the Western Shoshone cattle were sold by Internet auction.

The feds are violently trampling on the rights of the traditional Western Shoshone, who prefer to live their own way of life, peacefully, on their own lands. According to their spirituality, Mother Earth is not for sale. The traditional Western Shoshone say they do not want money, but instead wish to retain their homelands. However, the federal government says the traditional Western Shoshone have no right of refusal, and now members of the United States Congress are hell bent on forcing that view down the throats of the traditional Shoshone by legislation.

The U.S. Supreme Court has said that because monies were transferred from the U.S. Treasury to the Secretary of the Interior, supposedly on behalf of the Western Shoshone, therefore the Shoshone were paid. The U.S. Indian law theory behind this is that the Western Shoshone are "wards" of the federal government (a category assigned to Indians, mentally incompetent people, and minors), and that, therefore, the federal government has the perfect right to act "on behalf" of the Western Shoshone, without their consent.

Whenever I travel I visit libraries to research the history of U.S. Indian law. Some months ago, I had the opportunity to visit the Amherst College library in Amherst, Mass., and stumbled across a rare volume published by the United States Senate in 1877, "The Federal and State Constitutions, Colonial Charters and other Organic Laws of the United States." The organic laws serve as the foundation of the political and legal system of the United States, which must be faithfully adhered to or else the entire system is gradually and permanently undermined. Four key documents of U.S. organic law are the Declaration of Independence, the Articles of Confederation, the U.S. Constitution, and the Northwest Ordinance.

Having spent many years studying the abuse of the Western Shoshone Nation by the United States, I was curious as to what the book had to say about the organic law of Nevada. I found "An Act to organize the Territory of Nevada," passed in 1861. This was a document that Alan Moss, Sub-Chief of the Western Shoshone National Council, had found in his own research and brought to my attention years ago, and here it was in a volume published by the U.S. Senate acknowledging it as U.S. organic law.

As part of U.S. organic law, many of the territorial acts of the United States provide for the protection of Indian rights, based on the language of the Northwest Ordinance of 1787. Article three of the Northwest Ordinance pledged that the United States would always observe "the utmost good faith towards the Indians," and "their lands and property shall never be taken from them without their consent." Indeed, the Ordinance goes on to say that the Indians' "property, rights, and liberty, ? shall never be invaded or disturbed, unless in just and lawful wars declared by Congress." When Congress reconvened in 1789 under the present Constitution, it passed the Northwest Ordinance as the first Act of the new federal government.

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The Northwest Ordinance lays down fundamental principles for the establishment of new American territories, such as the Territory of Nevada, and explains the process by which new states, such as the State of Nevada, shall be formed and admitted into the Union.

Following the language of the Northwest Ordinance protecting Indian rights, the Nevada Territorial Act declares that "nothing in this act ? shall be construed to impair the rights of person or property now pertaining to the Indians." All Indian land in the region, declared Congress, "is not to be included within the territorial limits or jurisdiction of any State or Territory." Furthermore, "all such [Indian] territory shall be excepted out of the boundaries, and constitute no part of the Territory of Nevada."

According to the above language of the organic law, Western Shoshone lands never became part of the Territory of Nevada, and, therefore, to this day, Western Shoshone territory constitutes no part of the State of Nevada. Nevada statehood did not supersede or overturn the Nevada Territorial Act.

In fact, according to the organic law of the Nevada Territorial Act, the consent of the Indians must first be obtained, and the Indians must "signify their assent to the President of the United States" before their lands may "be included within the said Territory." This has never happened.

True, in 1863 the Western Shoshone Nation made a treaty with the United States. But the Nation did not, pursuant to the Nevada Territorial Act, signify their assent in the Treaty of Ruby Valley to allow their lands "to be included within the said Territory" of Nevada. To this day, the spirit and the letter of U.S. organic law is not being followed by the United States with regard to the Western Shoshone Nation.

The Western Shoshone monetary distribution bill is an effort to circumvent the fundamental organic law of the United States, and the free consent of the traditional Western Shoshone people. If the bill passes, it will prove once again that the United States is perfectly willing to violate Indian treaties and its own laws in order to steal indigenous lands and resources. Ironically, because U.S. organic law serves as the very foundation of the American system, the federal government, through its reprehensible actions toward the Western Shoshone Nation, is busily undermining the very basis of its own system.

Steven Newcomb, Shawnee/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.