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Western Shoshone crisis: Is the U.S. a nation of arbitrary laws?

In January, as reported in Indian Country Today, the Indigenous Law Institute issued a report on behalf of the Western Shoshone National Council, documenting that the Indian Claims Commission (ICC) never filed a final report with Congress in the Western Shoshone case, docket 326-K. Despite a final report being mandated by Congress in the 1946 Indian Claims Commission Act, the ICC was not able to file such a report in the Western Shoshone case because the case was still on appeal to the Court of Claims when the ICC went out of existence in September of 1978.

Since the ICC no longer exists, no final report will ever be submitted to Congress in the Western Shoshone case. This is extremely important because according to the Court of Claims, finality in any given case consists of three ingredients: 1. the ICC's final report to Congress upon completion of the case; 2. the Congressional appropriation of the monies owed to the Indians in question; 3. the distribution to the Indians of the monies appropriated. The Ninth Circuit Court of Appeals and the Supreme Court both agreed with the Court of Claims: the ICC's final report to Congress is legally mandated by the ICC Act.

Not long after completing our report, I forwarded a copy to the office of Mr. Robert Abbey, State Director, Bureau of Land Management in the State of Nevada. Mr. Abbey is the person who has headed up a number of actions against the Western Shoshone. Some of the actions he has personally overseen include last year's confiscation (what the Western Shoshones call theft) of cattle belonging to Chief Raymond Yowell and Mr. Myron Tybo, the confiscation of cattle belonging to Mary and Carrie Dann, and, most recently, the forced removal of Western Shoshone horses from Western Shoshone lands adjacent to the Dann ranch.

Just the other day I had the opportunity to briefly interview Mr. Abbey by telephone about the Indigenous Law Institute Report. When I asked Mr. Abbey what he makes of our report, he responded, "I don't make anything of it." He said that our report had been sent on to the Solicitor's Office in the Department of the Interior, but that he hadn't heard anything back. When I asked him if he had specifically requested a legal opinion from the Solicitor's office, Mr. Abbey said that he hadn't. He also made it clear that he does not intend to request any opinion from the Solicitor's office.

When I challenged Mr. Abbey about the main point of the ILI report, which is that finality has not been reached in the Western Shoshone case, Mr. Abbey told me, "I believe that finality has been reached in this case." Given his admission that he would not be requesting a legal opinion from the Solicitor's office, I asked him if his position on finality was based on his own personal opinion, or on solid legal advice. He said that it was his own personal opinion.

I then said, "Why don't you request a finding from the Solicitor's office so that you'll know whether or not your opinion is correct?" He made it abundantly clear that he had no intention of doing so, but that I could request a legal opinion from the Solicitor's office.

I then asked him how in the world he could believe that finality had been reached in the Western Shoshone case when the Court of Claims, the Ninth Circuit Court of Appeals, and even the Supreme Court were so clear on this point: an ICC final report to Congress is one of the three ingredients of finality. "How can finality have been reached when there is no final report to Congress?," I asked. Mr. Abbey's only response was, "Speak to our attorneys."

On Feb. 25, Congressman Jim Gibbons of Nevada introduced H.R. 884, which if passed, would distribute some $138 million dollars to the Western Shoshone Indians, supposedly for lands that were taken from them by gradual encroachment. I recently put in a call to Congressman Gibbon's office and spoke to Ms. Sandra Keil, his point person on the bill.

I explained to Ms. Keil that finality has not been reached in the Western Shoshone case, pursuant to the Indian Claims Commission Act, and that, therefore, there is no valid statutory basis for H.R. 884, or for any such bill that would distribute the monies sitting in Docket 326-K. Her response was fascinating: "That's the beautiful thing about being a congressperson," she said. "You can introduce a bill, and as long as it passes both houses of Congress, and is signed off on by the President, the bill supercedes everything that preceded it."

What Ms. Keil fails to realize is that you cannot supercede the Indian Claims Commission Act and at the same time have the Act serve as the basis for the payment. In other words, if the ICC Act is the statutory basis for a monetary distribution in the first place, how can you supercede the ICC Act and still have it serve as the basis for a monetary distribution to the Western Shoshones?

It is unfortunate that the terms of the Indian Claims Commission Act, specifically the statutory requirement that the ICC file a final report with Congress, is of no interest to Congressman Gibbon's staff person. Let's hope Congressman Gibbons himself has more interest in following the letter of the law.

The United States claims to be a nation of laws. But in light of my conversations with Mr. Abbey and Congressman Gibbons' staff person, what is this principle, other than an empty slogan? Clearly, if such conversations and decades of federal actions toward the Western Shoshone are any indication, the United States is a nation of laws only so long as the laws do not get in the way of what the United States wants to do.

Given the willingness of the federal government to utterly disregard the terms of the ICC Act, and the 1863 Treaty of Ruby Valley (which, according to the U.S. Constitution, is the supreme law of the land), it is evident that the U.S. wants to arbitrarily pick and choose which laws it is a nation of.

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.