Western Shoshone and other tribes affected by various intrusions into sacred lands, as well as by the Bush Administration's decision to store nuclear waste at Yucca Mountain, Nev., will be in Washington, D.C. this week. It will be a serious week of lobbying for Indian land cases. We encourage all groups and individuals that support Native causes to pay attention, perhaps lend a hand by contacting your representatives to alert them to take American Indian issues seriously.
For the Western Shoshone, the lobbying initiative marks the continuation of a thirty-year-old outreach mission that has taken their leaders beyond U.S. courts to the United Nations in Geneva, Switzerland, and on several national media tours. Underlying the Shoshone case, a major land claim mature by a century and a half, are treaty rights. The U.S. government seeks to settle the land question unilaterally with financial payments. This intensely sought-for federal solution, final and binding in extinguishing aboriginal title, is opposed dramatically by a good core of Western Shoshone leadership and membership, particularly as coalesced by the Western Shoshone National Council.
These leaders argue that taking what might amount to a $20,000 per capita payment is tantamount to settling the claim forever. This is the "money for land" solution imposed by the Indian Claims Commission years ago. We understand that financial need will lead some Shoshones to favor the $20,000 payoffs. But such a payment would preclude the recognition or even the purchase of a land base for Shoshone people. It would not be the first time that Indians have been lured, to their great detriment, to extinguish much more valuable long-term tribal assets and opportunities.
The Western Shoshone case is one of those Indian cases that lingers and lingers because those who attempt to steal the land never relent in their pursuit of legitimacy. It remains as unsettled as the arid lands that comprise the Indian nation's aboriginal territory, because no one has been able to prove that the Western Shoshone people ever intended or did in fact relinquish title to their aboriginal lands. True to form, tribal traditionalists are adamant about their land claim, which they do not want to see sold out. Western Shoshones number some 6,600 people living in Nevada, California, Idaho and Utah.
The American Indian Claims Commission, established in 1946, was focused on extinguishing American Indian title to lands outside recognized reservations. By law it could only award money to do so, and never re-title land to Indian nations. In 1979, the Court of Claims awarded a payment of $26 million (since grown to $128.8 million) to the Shoshones for the surrendering of 16 million acres of unextinguished Shoshone Indian title land. The Shoshone did not accept the money, but the Interior Department accepted it on their behalf, banking it and "legalizing" the unaccepted payment. In time, however, even the original solitary Shoshone representation to the Indian Claims Commission, the Te-Moak Bands, changed political direction and requested to "halt the proceedings and consider the traditionalists' claim." They were refused. Of course, the government's position remains that the payment has been made, albeit to itself.
In 1985, the U.S. Supreme Court ruled against the Shoshone's argument that their nation had never relinquished the bulk of their ancestral lands; the court did this by deciding not to weigh the actual evidence. The Court simply assumed that "extinguishment" of title had taken place, since the federal bureaucracy reported the payment made to Interior as a result of the Indian Land Claims Commission process.
The core of Western Shoshone, many prominent leaders among them, completely disagree. They point out that the 9th District Court of Appeals is the only court that has ever seriously considered the U.S. Government's argument that the Western Shoshone's title to the land had been extinguished through the 1863 Treaty of Ruby Valley. The court, after thoroughly reviewing the government's arguments, found that neither leases of lands or federal homestead laws that marked off specific sections can be held to have extinguished aboriginal title. The premise of their decision was that the Treaty of Ruby Valley did not extinguish overall Western Shoshone aboriginal occupancy.
On a technicality, however, the Supreme Court spared itself the duty of fairly considering the merits of this old American Indian case. Among the Western Shoshone who have complained long and loudly over what they call "long-term treaty abuses" of their lands and rights by the U.S. Government, the Dann sisters, Carrie and Mary, Nevada ranchers and tribal elders, are now well-known spokeswomen for the tribe. They have sustained a major case for three decades. Their livestock has been impounded, their ranch crisscrossed by federal helicopters, and horses killed as a result of continued harassment. Now elderly but still active, they have been arrested, handcuffed and manhandled by armed federal agents for their opposition to the denial of grazing rights on lands they claim are retained under their Treaty of Ruby Valley, "signed by our nation and the U.S. government in 1863." The Dann sisters are saddled by more than one million dollars in fines against them levied by the federal government since it began its effort to drive the Dann's livestock from the lands in question. However, they have vivid and horrific testimony to very ill treatment, particularly at the hands of the Bureau of Land Management, intent on enforcing its regulations on Western Shoshone lands.
"The 1863 Treaty of Ruby Valley only granted rights of passage through our land to white settlers," said Carrie Dann. "But we never gave up the land. Our land has never been ceded or deeded to the U.S., so it's not possible for them to just take it and determine that our title to the land has been extinguished." Legal scholars who have followed the hard-fought land rights case conclude that Dann is, in fact, correct in her assertions that the Western Shoshone still own the land.
A hearing slated for March 21 before the Senate Committee on Indian Affairs on S-958, The Western Shoshone Claims Distribution Act, is a coming flash point. The Act mandates the distribution of around $130 million in a one-time cash payment to individual Shoshones. This was the result of the Indian Claims Commission proceedings that Western Shoshones assert ignored evidence of their existing land title to the area. While Nevada Senator Harry Reid, D-Nev., a central sponsor of the one-time cash payment is against hearing her testimony, opponents of the bill are intent on having the Senators listen to Carrie Dann ? who has battled federal agencies from her horse and cattle ranch for several decades.
It is understandable that Senator Reid would rather not have Carrie Dann heard by the committee. The eloquent grandmother has a difficult argument for the U.S. government. On the face of it, it is impossible to refute the notion that Western Shoshone land title has never been successfully extinguished under any doctrine of law that anyone can hold up proudly.
In fact, this is as sordid a case of land usurpation under a "might makes right" political imperative mentality as has ever occurred. It is part and parcel of a reality so long-standing it appears entrenched in the American psyche as a kind of tolerable injustice.
First, the Claims Commission rode roughshod over the tribes involved, forcing a fired attorney upon the tribes, pretending it had a representative group in hand, settling for 15 cents an acre (1872 value) on 16 million acres. unextinguished under the 1863 Treaty. Western Shoshone tribal governments have opposed the cash settlement since its dubious award in 1979. The Interior Department has held the money since then. The federal government maintains that payment has been made, even though no Western Shoshone has ever received any payment under the dispensation. The U.S. Supreme Court has agreed with the government, denying the Dann sisters and other Shoshones the right to their homelands, where they have lived and worked since time immemorial. Now, a Senator wants to force the payment onto all Western Shoshone by power of law. We urge the good Senators to grant the Western Shoshone witnesses a fair and patient and honorable hearing. Not everyone thinks the same (Yomba Band of Western Shoshone is against Reid's bill, Duckwater Band wants the bill modified, etc.) but a hearing taken to serious historical and legal depth is of crucial importance.
If they don't get a fair hearing, the Western Shoshone have other potential forums. Their elders have taken their case to the United Nations and have a serious process before the Inter-American Commission on Human Rights. These remedies may sound outrageous to some, but consider Awas Tingni.
Not long ago the Awas Tingni, an Indian nation of Nicaragua, won an important case decided by the same commission, a decision against a Korean logging company that had enough teeth to order Nicaragua "to recognize and protect the community's legal rights to its traditional land, natural resources and environment." The Korean conglomerate backed off.
The Western Shoshone case has a lot of the same attributes as the Awas Tingni, although in this case the interloper is the all-powerful United States government. Consider these traits: forced extinguishment of Indian title to collective, ancestral lands; consistent interventions on behalf of the people to defend their treaty rights to the land; examples of people living traditionally on the land; refusal of payment as there is serious contention about such payment and its meanings; the need to coalesce an encompassing and representative governmental entity. Increasingly organized under the aegis of Western Shoshone National Council, in the past twenty years legitimacy has evolved for the broader Western Shoshone Nation.
The precedent-setting case and other rulings from the court would be binding on Western Hemisphere countries as members of the Organization of American States (OAS). The Commission has deemed admissible the complaints brought forth by the Danns, in the words of tribal attorneys, "indicating that the facts currently presented a prima facie case of human rights violations."
It would be most pleasing if the Congressional effort fully considered the long-term interests, traditional and usufructory rights; such study would logically lead to action to grant varieties of rights and concessions over the contested territories in question to the Western Shoshone people. Any solution, imposed or not, that does not include serious concessions relative to their aboriginal claim area, is a tremendous loss to the future generations of the Western Shoshone people. It would also mark yet another horrific stain on the ever-growing history of America's dishonorable treatment of this land's first and rightful owners.
The court-like commission of the OAS declared in its ruling in the Awas Tingni case: "For Indigenous communities the relationship with the land is not merely a question of possession and production, but it is also a material and spiritual element ..."
Strength, power and righteousness are offered to our Western Shoshone sisters and brothers as they represent their people in important meetings in Washington, D.C. this week. Here is hoping the United States will honor its treaties and national obligations with its Native peoples.