NO.: CV-S-97-327-HDM (RLH)

by its Chief, Raymond D. Yowell, and
CHIEF RAYMOND D. YOWELL as Representative of
the Class of Shoshone Persons,


Department of the Interior, Secretary BRUCE BABBITT,
Bureau of Land Management, ANN J. MORGAN, HELEN HANKINS; and
affiliates, subsidiaries, successors, assigns, etc.,


I. Summary of Western Shoshone Land Rights Issues

The Western Shoshone National Council is the contemporary manifestation of the traditional and original government of the Western Shoshone people, which has been in existence for countless generations, continuously and unbroken from time immemorial to the present and throughout the period of Anglo-European presence on this continent. The Nation asserts a continuing inherent and exclusive right to decide how Western Shoshone people live on their lands in keeping with the Law of their own language, culture, and traditions, without interference or encroachment by any other government.

The inherent, vested, and absolute right of the Western Shoshone to protect themselves by excluding all other nations from invading, usurping, or otherwise violating their land rights and territorial integrity is a fundamental aspect of international law:

...[A]s the right of a nation ought to be respected by all others, none can form any pretensions to the country which belongs to that nation, nor ought to dispose of it without her consent.... Vattel, The Law of Nations 164 (1758).

The United States has acknowledged this principle of territorial integrity and free consent in its own organic law, specifically applicable to the Native Nations of this continent:

The utmost good faith shall always be observed towards the Indians, their lands and their liberty shall never be taken from them without their consent; and in their property, rights and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress.... The Northwest Ordinance, 1 Stat. 51 (July 13, 1787).

In 1861, an Act of the United States Congress was passed to organize the Territory of Nevada, 12 Stat. 210. This Act reiterated the principles of territorial integrity and free consent stated in the Northwest Ordinance and explicitly applied these basic principles of international law to the Western Shoshone and other nations pre-existing in the territory:

Nothing in this act ... shall be construed to impair the rights of persons or property pertaining to the Indians in said territory, so long as such rights shall remain unextinguished by treaty with the United States and such Indians, ... but all such territory (belonging to the Indians) shall be excepted out of the boundaries, and constitute no part of the territory of Nevada, until said tribe shall signify their assent to the president of the United States, to be included in said territory.... Act to Organize the Territory of Nevada, Id. (1861).

The Treaty of Ruby Valley, 1863, 18 Stat. 689, between the Western Shoshone Nation and the United States did not extinguish Western Shoshone land rights, but was rather a formal expression of the fundamental principles of territorial integrity and free consent as the basis of international relations.

The Treaty of Ruby Valley provides for certain activity on Western Shoshone lands by United States citizens under specified conditions. It is the sole agreement between the two nations and the only basis for nation-to-nation government relations. The Western Shoshone Nation was never conquered by the United States nor has it ever freely agreed to cession of its territory to the United States.

Western Shoshone ownership of lands claimed by Defendants Bureau of Land Management and Oro Nevada Resources, Inc., has been acknowledged in the courts of the United States.

The Ninth Circuit Court of Appeals is the highest United States court to have ruled on substantive Western Shoshone land rights issues. It found in favor of Western Shoshone land rights against various arguments advanced for their extinguishment by the United States. The Ninth Circuit held that Western Shoshone land rights had

... not been extinguished as a matter of law by application of the public land laws, by creation of the Duck Valley Reservation, or by inclusion of the disputed lands in a grazing district and issuance of a grazing permit pursuant to the Taylor Grazing Act. United States v. Dann, 706 F.2d 919, 927-933 (9th Cir. 1983), rev'd on other grounds, 470 U.S. 39 (1985).

The substance of Western Shoshone land rights has never actually been litigated. The United States Supreme Court did not overturn the Ninth Circuit holding to this effect when it reversed the Circuit Court decision on other grounds, expressly noting that

... [w]hatever may have been the implicit assumptions of both the United States and the Shoshone Tribes (sic) during the litigation ..., the extinguishment question was not necessarily in issue, it was not actually litigated, and it has not been decided. United States v. Dann, 470 U.S., at 43-44, quoting 572 F.2d 222, 226-227.

The Supreme Court decision in Dann, Id., thus left intact the Ninth Circuit holding on the substantive issues of Western Shoshone land rights. The Supreme Court rested its reversal of the Ninth Circuit decision on an interpretation of the Indian Claims Commission Act, 25. U.S.C. §70u(a) (1976 ed.), and on an assertion that the United States may act as a "trustee" for the Western Shoshone Nation:

... [T]he United States has made "payment" under §22(a) [of the Indian Claims Commission Act]. The final award of the Indian Claims Commission placed the Government in a dual role with respect to the Tribe: the Government was at once a judgment debtor ... and a trustee for the Tribe.... In short, the Indian Claims Commission ordered the Government qua judgment debtor to pay ... the Government qua trustee for the Tribe as the beneficiary. United States v. Dann, 470 U.S. 39, 49-50 (1985).

The Western Shoshone Nation has never in fact entered into any "trust" agreement with the United States. The Supreme Court did not cite any trust instrument or document indicating otherwise. The Court noted various scholarly works on trust law,1 all of which presume the existence of a bona-fide, documented trust relationship and none of which support the existence of a "trust" in the circumstances of the Western Shoshone Nation and the United States.

Assertions of a United States "trusteeship" over the Western Shoshone were manufactured from whole cloth by the United States Supreme Court. The Western Shoshone Nation explicitly rejects any attempt by the United States to impose upon it a "trust" relationship, especially when such a "trust" amounts to a unilateral declaration by the United States that it "owns" Western Shoshone lands in contravention of Western Shoshone understandings of the Treaty of Ruby Valley.

The Supreme Court did acknowledge that individual Western Shoshone land rights may exist:

... [W]e have recognized that individual aboriginal rights may exist in certain contexts.... 470 U.S., at 50.

The Ninth Circuit subsequently declined to decide this issue, stating that the plaintiffs in that case "make no such ... claim...." 873 F.2d, at 1196.

The United States Bureau of Land Management and Oro Nevada Resources, Inc., defendants in the current litigation, assert claims to lands which the Western Shoshone Nation have never freely ceded or lost by conquest. The Western Shoshone Nation and the class of individual Western Shoshone persons whose land rights are disputed by the Defendants have entered this Court to protect their lands and their way of life on the land.

II. Purported Federal "Trusteeship" is Based on Religious Supremacy Doctrines and Has No Basis in Fact

The Supreme Court of the United States "deemed"2 Western Shoshone land rights extinguished when the Secretary of the United States Department of the Interior accepted a monetary award of the Indian Claims Commission as "trustee" for the Western Shoshone Nation:

Once the money was deposited into the trust account, payment was effected. 470 U.S., at 50.

On this basis, the Supreme Court apparently held that (1) although no member of the Western Shoshone Nation has accepted any money; and (2) it will take an agreement between the Western Shoshone Nation and the United States to bring about a payment in fact; and (3) Western Shoshone land rights have never factually been extinguished; nevertheless, (4) the Western Shoshone are precluded from relying on their land rights or even litigating their continuing existence.

The Western Shoshone Nation and the class of Western Shoshone persons represented herein as Plaintiffs have rejected and continue to reject any "compensation" from the United States Indian Claims Commission for a "claim" they never made.

The Western Shoshone government challenges the presumption of a so-called "trusteeship" of the United States over the Western Shoshone Nation. Because the Western Shoshone government has never freely and knowingly consented to a "trust" relationship with the United States, the United States is without foundation to act as a "trustee" for the Western Shoshone Nation.

The "acceptance" by the Secretary of the Interior of a monetary award from the Indian Claims Commission in exchange for Western Shoshone land rights to be transferred to the United States is a sham. It is nothing more than an accounting maneuver in the fiscal books of the United States. It can have no effect on the land rights of the Western Shoshone.

...[T]he Court held a "payment" had been effected, although the Indians received no money and opposed the conversion of their land. The trust doctrine was the device the Court struck upon for executing this maneuver. The United States was not only the judgment debtor to Indians, the Court said, but was also trustee to the Indians. Therefore the United States as debtor can pay itself as trustee, say this change in bookkeeping constitutes payment to Indians, and the Court will certify the fiction as a reality. Ball, Constitution, Court, Indian Tribes, 1987 Am. B. Found. Res. J. 1, 65 (1987).

There is no evidence of any actual "trust" relationship having been agreed to between the Western Shoshone and the United States. The 1863 Treaty of Ruby Valley, the only document evidencing any formal relationship between these two nations, contains nothing that would substantiate the creation of such a "trust.."

The inability of the United States to produce any "trust" instrument, document, or agreement is significant evidence that a "trust relationship" does not and cannot exist. The behavior of the United States as a self-proclaimed "trustee" over the Western Shoshone constitutes an act of aggression in violation of the peace and friendship clause of the Treaty of Ruby Valley.

The notion of "trusteeship" which the United States Supreme Court used to preclude hearing the substantive position of Western Shoshone land rights in Dann, Id., is not based on any actual "trust relationship" between the United States and the Western Shoshone Nation. To the contrary, it is based on a unilateral judicial fiction:

The Court has applied these principles [of trusteeship] to relations between native (sic) American communities and the United States. ... Seminole Nation v. United States, 316 U.S. 286 (1942).... 470 U.S., at 48.

The "trusteeship" principle is, as the Supreme Court's citations indicate, a fiction rooted in an early case, Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) [cited in Seminole Nation, 316 U.S., at 296]. The reference is to a remark by Justice Marshall, obiter dictum, in Cherokee Nation:

... it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian. 30 U.S. (5 Pet.), at 17.

This dictum of United States "guardianship" over American Indians was premised on a doctrine of "Christian supremacy" announced eight years previously in Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823), where the Court stated as follows:

On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves as much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. 21 U.S. (8 Wheat.), at 572-573.
In (the) first effort made by the English government to acquire territory on this continent, we perceive a complete recognition of the principle which has been mentioned. The right of discovery given by this commission (to the Cabots) is confined to countries "then unknown to all Christian people;" and of these countries Cabot was empowered to take possession in the name of the King of England, thus asserting a right to take possession, "notwithstanding the occupancy of the natives, who were heathens, and at the same time admitting the prior title of any Christian people who may have made a previous discovery. Id., at 576-7.

Henry Wheaton, the court reporter for this case, later elaborated the concept of Christian nationalism that was the basis for the court's ruling. He wrote:

... [T]he heathen nations of the other quarters of the globe were the lawful spoil and prey of their civilized conquerors, and as between the Christian powers themselves, the Sovereign Pontiff was the supreme arbiter of conflicting claims. ... It thus became a maxim of policy and of law, that the right of the native Indians was subordinate to that of the first Christian discoverer.... Wheaton, Elements of International Law 219, 220 (1855).

Justice Joseph Story, a judge on the same court, also independently discussed how the laws of Christendom became the basis for United States federal Indian law. In his famous Commentaries on the Constitution, Story pointed out that non-Christian peoples were regarded as less than Christians in their rights to territorial integrity:

... [I]nfidels, heathens, and savages ... were not allowed to possess the prerogatives belonging to absolute, sovereign and independent nations. 1 Story, Commentaries on the Constitution of the United States 134 (1833).

Close attention to the "trusteeship" principle thus demonstrates that it arises from a prejudice of religious supremacy of Christians over the indigenous peoples of this continent:

Grant that res nullius is the property of the [Christian] finder; that an infidel is nullus [an unbaptised person or people, of no legal standing]; that the American savage is an infidel, and the argument is complete.... Such is the origin of the Right of Discovery, the criterion to which the nations that divided the New World appealed in territorial controversies, and the ultimate ground of title throughout the United States. Hinsdale, The Right of Discovery, 2 Ohio Archeology and History Q. 37 (1888).

It therefore cannot be denied that claims of United States "trusteeship" over the Western Shoshone rest on and reiterate claims promulgated by fifteenth century popes and kings based on a "Christian" - "heathen" distinction. The principle of "trusteeship" embodied in United States federal Indian law and policy is traceable directly back to a Papal Bull of 1493, in which the Pope declared that all Indian Nations ("barbarous nations") should be subjugated to the "Christian Empire." See Newcomb, The Evidence of Christian Nationalism in Federal Indian Law: The Doctrine of Discovery, Johnson v. McIntosh, and Plenary Power, XX NYU Rev. of Law and Social Change 303 (1993).

Later United States cases tend to omit reference to Christian doctrines, as the government of the United States became more astute about the problem of separation of church and state. Occasional explicit references occur. For example, in 1877, regarding federal interference with "occupancy of the Indians," the Supreme Court stated:

... [I]t is to be presumed that in this matter the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race." Beecher v. Weatherby, 95 U.S. 517, 525 (1877).

And as recently as 1946, Supreme Court Justice Reed argued against monetary compensation for a federal taking of Indian lands on the ground that:

...[D]iscovery by Christian nations gave them sovereignty over and title to the lands discovered. United States v. Alcea Band of Tillamooks, 329 U.S. 40, 58 (1946). (dissent)

However believable concepts of Christian supremacy, "discovery," and "trusteeship" over "heathens" may have been to monarchs and popes in centuries past, and however oft-quoted and relied upon in subsequent Supreme Court opinions, the Western Shoshone assert that these concepts of religious supremacy are unacceptable as a legal basis for international relations or as justification for assertion of power by one nation over another.

... [T]he ["trustee"] theory is inconsistent with widely accepted tents of contemporary morality. It is grounded on both cultural intolerance for nonwhite institutions and the conviction that Indians are inherently inferior to Americans of European descent. Such attitudes contradict the principle, broadly reflected in American law, that all individuals should be accorded equal respect regardless of race. Note, Rethinking The Trust Doctrine In Federal Indian Law, 98 Harv. L. Rev. 420, 427 (1984).

The purported United States "trusteeship" over the Western Shoshone is purely and simply an extension of the Christian European notion that Christian "discovery" established a "divine right" of dominion over the persons and lands of non-Christian Peoples.

The holding in Johnson v. McIntosh,, above, is that "might makes right" and "finders, keepers," or, more specifically, "Christian might makes Christian right," and "Christian finders, Christian keepers." This doctrine has never been repudiated by the United States. It is the continuing basis for all aspects of federal Indian law, including the purported "trusteeship" by which the United States has attempted to destroy the indigenous self-determination and territorial integrity of the Western Shoshone Nation.

The Western Shoshone National Council and the Class of Western Shoshone Plaintiffs unequivocally reject the doctrine of Christian supremacy and the concomitant assertion of federal "trusteeship" over "Indian wards" inherent in the Supreme Court holdings cited by Defendants in their Motion to Dismiss. The racist and discriminatory content of "Christian discovery" may not operate -- by collateral estoppel or res judicata or otherwise -- to bar a full and fair adjudication of the facts of Plaintiffs' rights to and in their homelands.

III. International Law Requires Free Consent as Basis for Relations Among Nations and Peoples

Plaintiffs urge this Court to rely on principles of territorial integrity and free consent, by which one nation respects the land rights and government of another and through which nations negotiate just resolutions of their acknowledged differences. These principles have been acknowledged elsewhere to supersede discriminatory doctrines derived from English common law:

... [I]t is imperative in today's world that the common law should neither be nor be seen to be frozen in an age of racial discrimination.
A common law doctrine founded on unjust discrimination in the enjoyment of civil and political rights demands reconsideration. It is contrary both to international standards and to the fundamental values of our common law to entrench a discriminatory rule which, because of the supposed position on the scale of social organization of the indigenous inhabitants of a settled colony, denies them a right to occupy their traditional lands. Mabo And Others v. Queensland (No. 2), 175 CLR 1 F.C. 92/014, par's. 29, 41, 42 (1992) [High Court of Australia].

The unilateral assertion by the United States of "trustee" power over the Western Shoshone is contrary to the International Trusteeship System established by Chapter XII of the Charter of the United Nations.

The United Nations Charter provides for the possibility of "trusteeship" relations among nations, but only on the basis of specific "trusteeship agreement(s)."

The United Nations shall establish under its authority an international trusteeship system for the administration and supervision of such territories as may be placed thereunder by subsequent individual agreements. Charter of the United Nations, June 26, 1945, 59 Stat. 1031, T.S. 993, 3 Bevans 1153, entered into force Oct. 24, 1945, Art. 75.

As has been pointed out above, there is no evidence of an actual trust "agreement" between the government of the Western Shoshone Nation and the United States government. The 1863 Treaty of Ruby Valley is the only formal instrument governing relations between the governments of these two nations. It is protected by the United Nations Charter from being infringed or unilaterally converted into a "trust":

Except as may be agreed upon in individual trusteeship agreements..., nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments.... Charter, Id., Art. 80.

The United States recognized the international principles of self-government and free consent in a 1987 submission to the United Nations Secretariat regarding American Indian Nations. The Hopi Nation had challenged the assertion of "trustee" powers by the United States. The United States asserted the existence of

... a unique political relationship between the Hopi tribe and the United States. ... Confirmation and acceptance of that special relationship by Indian tribes automatically subject them to the authority of Congress and the United States. Response of the Government of the United States to United Nations Secretariat Notes no. G/SO 215/1 USA (107), (112), (114), (117), and (119). United Nations Economic and Social Council, E/CN.4/GR.1987/7/Add.12 (30 September 1987), 23.

Defendants have not referred to any act or document indicating Western Shoshone "confirmation and acceptance" of a "trust relationship" with the United States. The United States submission to the United Nations also specifies that the United States does not have a "trust" relationship with the original Hopi government because that government has never confirmed and accepted such a relation. The same is true of the original government of the Western Shoshone.

Finally, the exercise by the United States of purported "trustee" powers to assert ownership of Western Shoshone lands and to deny attempts to defend Western Shoshone land rights is a direct violation of the purposes for which international law recognizes "trust" agreements:

The basic objectives of the trusteeship system ... shall be: ... to promote ... self-government .... Charter, Id., Art. 76.

The United States has used the racist and discriminatory doctrines of "Christian discovery" and "dominion" to attempt to define the very existence of the Western Shoshone Nation and to interpret and avoid the 1863 Treaty of Ruby Valley to deprive Plaintiffs of their property, their government, and their way of life without their free consent. In this context, the rhetoric of "government-to-government relations" which the United States uses to explain its "unique relation" to the Western Shoshone is but a subterfuge for an attempted denial of Western Shoshone territorial integrity and self-determination.

IV. Indian Claims Commission Violated the Treaty of Ruby Valley and International Law

The Indian Claims Commission Act permitted the Indian Claims Commission to recognize "any member" of the Western Shoshone Nation as the "official representative" of the Nation, authorized to stipulate a "taking" of Western Shoshone land rights and to accept compensation for such "taking":

Any claim within the provisions of this chapter may be presented to the Commission by any member of an Indian tribe, band, or other identifiable group of Indians as the representative of all its members.... 60 Stat. 1049, §10.

Pursuant to this provision, the Claims Commission "recognized" a small group of Western Shoshone individuals -- the "Temoak Band" -- to "represent" the Western Shoshone Nation. Such authorization was a violation of governmental relations established between the United States and the Western Shoshone government in the 1863 Treaty of Ruby Valley.

The Indian Claims Commission was allegedly established to compensate Indian peoples for lands taken but never paid for. The Claims Commission was not given authority to extinguish Indian land rights. Congress did not intend to "compound the old wrongs done to Indians ... by creating a device for inverse condemnation of ... tribal land...." Hughes, Indian Law, 18 N. M. Law Rev. 403, 417 (1988). Such "inverse condemnation" was in fact what occurred in the Indian Claims Commission handling of Western Shoshone land rights:

In Shoshone Tribe v. United States [11 Ind. Cl. Comm. 387, 416 (1962)], ... the parties stipulated [a "taking" date] ... although no act even arguably constituting a legal taking occurred on that date. 18 N. M. Law Rev., at 419-420.

The United States Court of Claims, in considering a challenge to the purported "representation" of Western Shoshone interests before the Indian Claims Commission, acknowledged:

... [I]ndividual members of the Petitioner Association (appellant Western Shoshone Legal Defense and Education Association), and their predecessors on numerous occasions over the past thirty-nine years have resisted any legal action jeopardizing the rights and interests of the Western Shoshone Indians in their tribal lands and have made repeated protests, against the inclusion of such lands in the Claim filed in the above captioned proceeding to the officers of the Temoak Bands of Western Shoshone Indians, the Claims attorneys retained by said organization ... and to representatives of The United States of America. Western Shoshone Legal Defense And Education Association v. United States, 531 F.2d 495, 499 (Ct. Cl. 1976).

The Court then held:

If there are circumstances in which the organized entity fails properly to represent the group, the normal method of redress is through the internal mechanism of the organized entity. 531 F.2d, at 504.

This holding presumed the validity of the Commission's designation of someone ("organized entity") to "represent" the Western Shoshone Nation and to replace the indigenous decision-making and conflict-resolution processes of the Western Shoshone Nation with "internal mechanisms" of the "organized entity" "recognized by the Commission.

The position of the Western Shoshone is similar to that of the Miccosukee Seminole in Osceola v. Kuykendall, No. 76-492 (D.D.C. March 11, 1977) (three-judge court), aff'd, No. 78-1440 (D.C. Cir., October 16, 1979), app. dism'd., 434 U.S. 914, October 31, 1977, who contended that the Indian Claims Commission Act was unconstitutional because it enabled parties claiming to represent the Seminole Nation to seek compensation for extinguishment of Seminole rights to lands still occupied by the Seminole:

The three-judge court dismissed the complaint, holding that the "plaintiff's right of possession and occupancy will not be affected" by the judgment in the Seminole ICCA case, and that until the plaintiff could demonstrate a palpable threat to his right of occupancy by the United States he had failed to present a concrete controversy over which the judicial power could be exercised. 18 N.M. Law Rev. at 421.

Plaintiffs in the current case have alleged "palpable threat" by the United States and Oro Nevada Resources, Inc. to Western Shoshone land rights in their ancestral territory. These allegations are sufficient to sustain jurisdiction of this Court to inquire into the circumstances whereof Plaintiffs complain.

The Treaty of Ruby Valley is evidence of an international agreement between the Western Shoshone Nation and the United States. The designation of an entity other than the original government to "represent" the Western Shoshone Nation, whether done by the Indian Claims Commission alone or in consort with the Secretary of the Interior, constituted a violation of Western Shoshone rights to self-determination.

The status of the original government of the Western Shoshone as a self-determining people is protected by the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976):

All peoples have the right of self-determination. By virtue of that right they freely determine their political status....
... In no case may a people be deprived of its own means of subsistence. Id., Article 1.

The International Court of Justice has held that a nation encapsulated in an established state has the right to "determine [its] future political status by [its] own freely expressed will. " Western Sahara Case, 1975 ICJ REP. 12, 36, par. 70.

International law prohibits any organ of the United States government from interfering with Western Shoshone self-determination. The attempt by the United States to enforce a "taking" of Western Shoshone land stipulated by purported "representative members" of the Western Shoshone Nation is a gross and unacceptable invasion of Western Shoshone territory and self-determination.

Further, the Indian Claims Commission process for "representation" of the Western Shoshone Nation by "any member" of the Nation constitutes a denial of due process and equal protection to all members of the Western Shoshone Nation not actually represented by the officially-designated "representative."

It is clear that the Indian Claims Commission Act violates ordinary due process and equal protection standards:

An Indian claim under the Act is unlike a class suit in that there is no necessity that the position of each individual member of the group be represented. Western Shoshone Legal Defense And Education Association v. United States, 531 F.2d, at 504.

Thus, under the procedure of the Indian Claims Commission, the claims of "any member" of the Western Shoshone Nation were made to stand for the rights of all others, with no provision for the free consent of those others. This is a clear deprivation of rights on a basis of a racial and national distinction, contrary to the International Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 195, entered into force Jan. 4, 1969. The Convention guarantees

... the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
(a) The right to equal treatment before the tribunals and all other organs administering justice.... Id., Article 5, par. (a).

The Western Shoshone National Council was not a party before the Indian Claims Commission, nor were a majority of Western Shoshone persons ever actually represented by any party to the Indian Claims Commission proceedings. See Rusco, Historic Change in Western Shoshone Country: The Establishment of the Western Shoshone National Council and Traditionalist Land Claims, 16 American Indian Quarterly 337, 345-347, et seq. (1992).

The Ninth Circuit discussed this fact in United States v. Dann, 572 F.2d 222 (9th Cir. 1978), and noted:

Some difficult issues are presented in deciding the identity of parties ... in the context of tribal litigation before the Commission. [citations omitted]. 572 F.2d, at 226, n.1.

The Ninth Circuit declined on that occasion and in a subsequent case to resolve issues of privity of parties in the context of Western Shoshone land rights. See United States v. Dann, 706 F.2d 919, 924, n.3 (9th Cir. 1983). The Court reasoned that it need not resolve this issue in those cases because it had given the Claims Commission award "no collateral estoppel or res judicata effect." Id. If the award later be "deemed"3 to have such effect, the question of identity of parties becomes of crucial importance. It has never been decided.

A stipulation is not binding upon persons not parties to the stipulation, nor upon those whose status as parties was expressly withheld and who did not participate in or agree to the stipulation. See Kneeland v. Luce, 141 U.S. 437 (1891). It is elemental due process that a party is not bound by a judgment rendered in its absence. See Restatement (Second) of Judgments, Ch. 4 (1982).

The theory that payment may be "deemed" to have been made to the Temoak Band thus does not suffice to transfer Western Shoshone land rights to the United States. Even if actual payment had occurred -- which has never been held to be the case -- payment alone does not guarantee that a land right gets conveyed to one party and extinguished as to another. Thus for example payment could be made to one who purports to be the holder of the entire land right when in fact that right (or part of it) may lie elsewhere, and that right is not extinguished. Sometimes inadequately described lands are purportedly conveyed, and that fails to extinguish land rights:

A purported conveyance is not one in fact unless it contains a description from which a competent person can locate the land intended to be conveyed and can distinguish it from all other land. 4 Casner, American Law Of Property, sec. 18.34 (1952).

Such is the case with Western Shoshone lands. The "facts" of the so-called "taking" of Western Shoshone lands, which would include the boundaries of the lands so taken, were never determined:

Because an average "taking date" was stipulated, the Commission did not determine the facts of taking for any individual parcel of the vast aboriginal holdings of the Western Shoshone. United States v. Dann, 706 F.2d 919, 924 (9th Cir., 1983).

Plaintiffs have outstanding issues regarding rights to lands claimed by Defendants Bureau of Land Management and Oro Nevada Resources, Inc. The facts regarding these land rights issues have never been litigated, let alone determined in any of the cases cited by Defendants in their Motion to Dismiss.

The attempted preclusion of land rights litigation by persons not actually represented in a rights extinguishment action constitutes a denial of due process and equal protection. Defendants have presented neither allegation nor argument that the Plaintiffs herein were in privity with any party to the Indian Claims proceedings. Substantial ground exists to the contrary, such that a hearing on the Complaint in this matter would show Plaintiffs not bound by the decisions of the Indian Claims Commission regarding "claims" and "awards" purportedly made by and for the Temoak Band. The cases cited by Defendants do not have collateral estoppel, res judicata, or other effect to bar Plaintiffs from presenting the merits of their land rights.

V. Conclusion

The Western Shoshone government is and has been open for real, meaningful dialogue with the United States government on Western Shoshone land issues. The United States has sought to avoid such dialogue, relying instead on judicially-created fictions of religious supremacy that violate fundamental principles of international law and the Treaty of Ruby Valley.

It is the position of the Western Shoshone government that the United States Department of the Interior's acceptance of a United States Indian Claims Commission monetary award has no effect on land rights of the Western Shoshone Nation. The alleged United States "trusteeship" over the Western Shoshone has no foundation in fact and is contrary to international law.

Plaintiffs seek injunctive and declaratory relief against the United States and Oro Nevada Resources, Inc., and injunctive and declaratory relief as well as monetary damages against Oro Nevada Resources, Inc., and named United States officials who in their individual capacity have violated the territorial integrity of the Western Shoshone Nation.

Defendant United States asserts "sovereign immunity" from suit. See Federal Defendants' Memorandum in Support of Motion to Dismiss, 17. The United States Supreme Court has clearly determined the propriety of equitable relief under 28 U.S.C. §1331 in circumstances similar to this case, where due process and equal protection violations are alleged:

... Traditionally, ... "it is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution...." [citation omitted] Davis v. Passman, 442 U.S. 228, 241, et seq. (1979).

The Treaty of Ruby Valley and the international treaties referenced above are incorporated into the "supreme Law of the Land" by Article VI of the United States Constitution. These, too, become the basis for "rights safeguarded by the Constitution."

Federal Defendant's claim of "sovereign immunity" is also waived by statute, where, as here, Plaintiffs allege injury by official agency action "under color of legal authority":

An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States. 5 U.S.C. §702.

In the absence of a judicial remedy for violations of the Treaty of Ruby Valley and vindication of Western Shoshone rights under international law, the relationship between the Western Shoshone Nation and the United States will revert to the status quo ante the Treaty. This would constitute a severe disruption of peaceful relations between these two nations agreed to in 1863.

Plaintiffs urge this Court to deny Defendants' Motion to Dismiss and to grant the Plaintiffs their day in court to present facts in support of Western Shoshone land rights, territorial integrity, and self-determination as stated in their Complaint.

Dated: April 23, l998

Respectfully Submitted,

Raymond D. Yowell, Chief
Allen Moss, Sub-Chief
Virginia Sanchez, Secretary of State & Treasurer
Western Shoshone National Council
Indian Springs, NV 89018


1 G. Bogert, Law of Trusts and Trustees (2d rev. ed. 1982); A. Scott, Law of Trusts (3d ed. 1967); Stone, Some Legal Problems Involved in the Transmission of Funds, 21 Colum. L. Rev. 507 (1921); Uniform Fiduciaries Act (1978). 470 U.S., at 48, n.11.

2 Cf. 873 F.2d, at 1196: "... title ... must be deemed extinguished."

3 See note 2.

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