Raymond D. Yowell, Chief
Allen Moss, Sub-Chief
Virginia Sanchez, Secretary of State & Treasurer
Western Shoshone National Council
Indian Springs, NV 89018-210
UNITED STATES OF AMERICA, Plaintiff
NYE COUNTY , NEVADA, Defendant
WESTERN SHOSHONE NATIONAL
by its Chief, Raymond D. Yowell, and
CHIEF RAYMOND D. YOWELL
as Representative of the Class of Shoshone Persons,
Applicants for Intervention
The Western Shoshone have been situated within the territory at issue in this case since long before Christian Europeans arrived in the region. They are first in time within this territory, and therefore first in right:
From the moment a nation have taken possession of a territory in right of first occupier, and with the design to establish themselves there for the future, they have become the absolute and sole proprietors of it, to use it, and dispose of it as they think proper: provided, however, that they do not in anywise, encroach on the rights of other nations. Georg F. Martens, Summary of the Law of Nations, Founded on the Treaties and Customs of the Modern Nations of Europe 67-68 (William Cobbett, trans., 1986) (1795).
The Western Shoshone have an inherent, vested, absolute right to protect themselves by excluding all other nations from invading, usurping, or otherwise violating their land rights and territorial integrity.
At the time of the discovery of America, towards the close of the fifteenth century, the various tribes which then inhabited it maintained a claim to the exclusive possession and occupancy of the territory within their respective limits, as sovereign proprietors of the soil. They acknowledged no obedience, nor allegiance, nor subordination to any foreign nation whatsoever, and, as far as they have possessed the means, they have ever since constantly asserted this full right of dominion... Joseph Story, A Familiar Exposition of the Constitution of the United States 12-13 (1861).
These rights of Western Shoshone dominion are rooted in long-established principles of international law:
And as 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, any more than the things in the country. Emmerich de Vattel, The Law of Nations 164 (1758).
On July 13, 1787, the Continental Congress of the United States adopted as organic law for the government of territories beyond the boundaries of existing states The Northwest Ordinance, acknowledging the basic principles of territorial integrity of the indigenous nations of the 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 1848, these basic principles were included in the Treaty of Guadeloupe Hidalgo, which emphasizes that "special care shall be taken" against "those invasions (against the Indians) which the United States have solemnly obliged themselves to restrain." Treaty of Guadeloupe Hidalgo, 9 Stat. 922. The United States acknowledges that Western Shoshone rights to the territory in question clearly survived the transfer of claims from Mexico to the United States. See United States v. Santa Fe Pacific R.R., 314 U.S. 339 (1941).
In 1861, an Act to Organize the Territory of Nevada was passed by Congress, containing a further enunciation of the basic principles of international law applied to the pre-existing nations 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, 12 Stat. 210 (1861).
In 1957, Shoshone title to this land was raised before the Indian Claims Commission and in 1962 the Commission decided that the claimants held aboriginal title to 22,211,753 acres in Nevada. 11 Ind.Cl.Comm. 387, 413--14 (1957).
The Western Shoshone Nation have never given their free consent to allow their nationhood or territorial integrity of their lands to be taken from them or diminished. The 1863 Treaty of Ruby Valley between the Western Shoshone and the United States, 18 Stat. 689, is not a cession of land or a relinquishment of nationhood. This is acknowledged by the United States. See Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335 (1945).
There has never been any substantive judicial determination that Western Shoshone sovereignty recognized in the Treaty of Ruby Valley and including the lands in dispute in this action has been extinguished. As the United States Court of Appeals held:
... during the litigation before the (Indian Claims Commission), the extinguishment question was not necessarily in issue, it was not actually litigated, and it has not been decided. United States v. Dann, 572 F.2d 222, 226-227 (9th Cir., 1978), rev'd on other grounds, 470 U.S. 39 (1985).
The United States Supreme Court, reversing the Ninth Circuit in Dann on other grounds, ruled that Western Shoshone rights in their ancestral lands have been "extinguished" by reason of a "payment" made for a "taking," pursuant to an Indian Claims Commission award. United States v. Dann, 470 U.S. 39 (1985). No decision was made as to the substantive issues of land title:
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, owing $26 million to the Tribe, and a trustee for the Tribe responsible for ensuring that the money was put to productive use and ultimately distributed in a manner consistent with the best interests of the Tribe. In short, the Indian Claims Commission ordered the Government qua judgment debtor to pay $26 million to the Government qua trustee for the Tribe as the beneficiary. Once the money was deposited into the trust account, payment was effected. United States v. Dann, 470 U.S. 39, 49-50 (1985).
There has thus been no litigation or judicial determination of Intervenors' substantive territorial rights. The only court to have discussed substantive issues of title to the lands in question with regard to challenges to Western Shoshone sovereignty found such challenges inadequate as a matter of law for extinguishment of Western Shoshone title to these lands. See United States v. Dann, 706 F.2d 919, 927-933 (1983).
In 1966, a stipulation was agreed to by attorneys for the Temoak Band of Western Shoshone Indians and the United States in an Indian Claims Commission proceeding to determine a valuation date for the Nevada portion of Western Shoshone lands. See 29 Ind.Cl.Comm. 5 (1972). The stipulation did not state, nor did the Commission determine the fact of title extinguishment for any specific parcel of Western Shoshone lands. See Dann, 706 F.2d, at 924.
Although the Indian Claims Commission had held the Temoak Bands to have the right to maintain an action for and on behalf of the entire Western Shoshone Identifiable Group, this representation was never litigated. See 11 Ind.Cl.Comm. 387, 388. Furthermore, the Claims Commission made its own determination that Shoshone lands were held by separate Shoshone entities. See Western Shoshone Legal Defense And Education Association v. United States, 531 F.2d 495, 499 (1976).
The Western Shoshone National Council was not a party before the Indian Claims Commission, nor were a majority of Western Shoshone represented by any party to the Indian Claims Commission proceedings. See 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, 345-347, et seq. (1992).
It has long been clear under United States law that 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).
The question presented in United States v. Dann, 470 U.S. 39 (1985), was whether an appropriation of funds into a United States Treasury account pursuant to 31 U.S.C. s.724(a) constitutes "payment" under s. 22(a) of the Indian Claims Commission Act, 60 Stat. 1055. See Dann, 470 U.S., at 40-41. It was held in the affirmative.
The substantive question of Intervenors' title was not considered or decided in that case. The Supreme Court, 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," did not address this issue. Dann, 470 U.S., at 43-44, quoting United States v. Dann, 572 F.2d 222, 226-227 (1978).
The Supreme Court rested its decision in Dann on an interpretation of the Indian Claims Commission Act, making no determination as to the Ninth Circuit's holding that neither the doctrines of res judicata nor collateral estoppel are operative to bar a substantive examination of extinguishment of title to Western Shoshone ancestral lands. The Court also held that individual aboriginal rights may exist in Western Shoshone territory. Dann, 470 U.S., at 50. The Court of Appeals subsequently found such rights to exist in the litigants in that case. United States V. Dann, 873 F.2d 1189 (9th Cir., 1989), cert den, Dann v. U.S., 493 U.S. 890 (1989).
In the instant case, not involving any claim or demand for compensation under the Indian Claims Commission Act, 60 Stat. 1055, or otherwise, and raising squarely the issue of title only, the Supreme Court ruling in Dann is irrelevant and inapplicable.
Title to lands in question in this suit is raised as a matter of first impression. In accord with the fact that extinguishment of Western Shoshone title has not been in issue, not litigated, and not decided by any court, Intervenors have a right under Rule 24(a), Federal Rules of Civil Procedure, to join this litigation to protect their interests.
Insofar as members of the class represented by Intervenors hold individual title to the lands in question in this suit, Intervenors must be permitted to join this suit to protect these interests.
Payment alone does not guarantee that a title 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 title when in fact title (or part of it) may lie elsewhere, and title is not extinguished. Sometimes inadequately described lands are purportedly conveyed, and that fails to extinguish title:
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 A. James 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, have never been 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 (1983).
For this reason, there has been no determination of Intervenors' rights to the lands in question in this suit. Such rights remain outstanding. Intervention in this suit is an appropriate method for resolution of these issues.
It has been said that, "An Indian claim under the [Indian Claims Commission] 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 495, 503 (1976). If this be the case under the Act, then the Act is unconstitutional as a denial of due process and equal protection.
Section 10 of the Indian Claims Commission Act, 60 Stat. 1049, sets out a jurisdictional framework in which a class of persons ("tribe, band, or other identifiable group") may be represented by any individual or an organization authorized by the United States, without opportunity for any purported member of the class to challenge such representation:
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; but wherever any tribal organization exists, recognized by the Secretary of the Interior as having authority to represent such tribe, band, or group, such organization shall be accorded the exclusive privilege of representing such Indians, unless fraud, collusion, or laches on the part of such organization be shown to the satisfaction of the Commission. Id.
It has been held that:
The jurisdiction of the Commission is only over claims by the tribes, bands, or other identifiable groups of American Indians which have group rights. There is no grant of jurisdiction to hear claims on behalf of individual Indians. Fort Sill Apache Tribe v. United States, 477 F.2d 1360, 1365 (1973).
Whatever the merits of a law establishing special jurisdiction in a special tribunal to hear group claims, such legislation cannot deprive individuals of fundamental due process and equal protection of the laws. To read the Indian Claims Commission Act as permitting the exclusion of land title issues by persons not actually represented in a title extinguishment action would constitute a denial of due process and equal protection.
The United States Court of Claims, in considering a challenge to the adequacy and validity of representation of Western Shoshone interests by an organization authorized by the United States to proceed 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, at 499.
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 503.
This holding presumes the United States may authorize an organization ("organized entity") not only to "represent" a group of persons, but may also deny the indigenous processes of group decision-making and conflict-resolution, substituting therefore the "internal mechanisms" of the "organized entity." Such a power to define persons and groups is nowhere given to Congress or any other branch of the federal government under the Constitution of the United States.
In United States v. Dann, 470 U.S. 39 (1985), the United states Supreme Court stated that:
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, owing $26 million to the Tribe, and a trustee for the Tribe.... 470 U.S. 39, 49-50 (1985).
On this basis, the Court apparently held that, although no member of the Western Shoshone Nation has received any money and it will take an act of Congress to bring such payment, the substance of Western Shoshone land title, never actually extinguished by litigation, is precluded from consideration.
The notion of "trusteeship" by means of which the Supreme Court precluded hearing the substantive position of the Western Shoshone in Dann, Id., was first articulated by Chief Justice John Marshall obiter dictum in Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831):
Though the Indians are acknowledged to have an unquestionable, and, heretofore unquestioned right to the lands they occupy until that right shall be extinguished by a voluntary cession to our government, yet 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.
Marshall's dictum of United States "trusteeship" over American Indians was premised on a doctrine of "Christian supremacy" announced by the United States Supreme Court in Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823):
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.
These claims of United States power, as Chief Justice Marshall and the Court acknowledged, do not rest on the United States Constitution, but reflect and reiterate jurisdictional claims promulgated by fifteenth century popes and kings, based on a "Christian" /"heathen" distinction to regulate conflict among "Christian powers." See Steven T. 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).
However believable concepts of Christian supremacy, discovery, and trusteeship over "heathens" may have been to monarchs and popes of Christendom in centuries past, and however oft-quoted in subsequent opinions, Intervenors assert that these concepts are inadequate in the late-twentieth century as a legal basis for exercise of power by one nation over another. Doctrines of religious supremacy are not only anathema to the United States Constitution, see U.S. Const., First Amendment, but are everywhere anathema to peace and the peaceful resolution of conflict among peoples and nations.
The Western Shoshone National Council therefore clearly and unequivocally rejects the doctrines of Christian supremacy underlying the assertion of federal "trusteeship" over "Indian wards." The Council urges instead a reliance on the principles of territorial integrity and free consent, by which one nation respects the title and boundaries of another, and through which nations negotiate just resolutions of their acknowledged differences.
This suit provides the first occasion for litigation of title to the lands in question. As noted above, Intervenors' interests in these lands, while clearly acknowledged as a matter of history and law, have not been afforded an opportunity for litigation and judicial determination.
The ultimate resolution of this litigation may lead to conclusions of law and issues of first impression or mixed findings of fact and law as to title to the lands in dispute, which will implicate principles of stare decisis which could control any subsequent legal action by Intervenors. This is a sufficient basis for granting intervention of right under Rule 24(a), Federal Rules of Civil Procedure. See Oneida Indian Nation v. New York, 732 F.2d 261 (2d Cir., 1984).
The Western Shoshone National Council is the traditional government of the Western Shoshone people, being in existence for countless generations, continuously and unbroken from time immemorial to the present. The Council and its members assert a continuing inherent and exclusive right to decide how they live on their lands, in keeping with the Law of their own language, culture, and traditions, including rights to hunting, fishing, and other land use activities, without interference or encroachment by any other government.
United States law acknowledges individual and tribal rights even in situations where indigenous sovereignty has been ceded or terminated. See United States v. Dann, 470 U.S. 39 (1985), citing Cramer v. United States, 261 U.S. 219 (1923); Menominee Tribe v. United States, 391 U.S. 404 (1968).
Intervenors intend to continue to press for recognition of their ownership of the land in question in this suit, including but not limited to rights to hunt and fish on the lands in question and to work and manage the land in accordance with their own understandings of Nature. A determination of title by this Court as between the original parties will neither raise nor protect Intervenors' interests, and will work a practical impairment of their ability to protect these interests in subsequent actions.
The Declaratory Judgment Act, 28 U.S.C. s.2201, authorizes the court to declare the rights of litigants in a controversy involving parties having adverse legal interests.
In this case, the United States and Nye County, Nevada, each claim ownership of lands historically within the territory of the Western Shoshone Nation, to which the Intervenors retain unextinguished title, as argued above. Under these circumstances, declaratory judgment is appropriate to resolve issues of title to lands in question in this suit.
THEREFORE, based on the foregoing, Intervenors respectfully request this Court:
1. To enter an order granting Intervenors' motion to intervene as of right as a party to this action.
2. To grant Intervenors' motion for summary judgment.
Dated: June 30, 1995
Respectfully submitted, ________________________ Raymond D. Yowell, Chief Allen Moss, Sub-Chief Virginia Sanchez, Secretary of State & Treasurer Western Shoshone National Council Indian Springs, NV 89018-210 (702) 879-5203