The Western Shoshone filed the following complaint of judicial misconduct on February 28, 2001, pursuant to 28 U.S.C. § 372(c)(1) and the rules of the 9th Circuit. The Clerk assigned it docket number 01-80042.

Complaint of Judicial Misconduct


Western Shoshone National Council and
Chief Raymond D. Yowell

Name of judge complained about:

Howard D. McKibben, District Court, Nevada

Docket Number:

CV-S-97-0327-HDM (RLH)

Background of Case:

On March 20, 1997, the Western Shoshone filed a complaint in federal district court against the United States and others, alleging invasions of Western Shoshone territorial integrity. The complaint asked for injunctive and declaratory relief and monetary damages. An amended complaint, filed in October 1997, clarified the inclusion of ranchers and ranching activity and the assertion of individual aboriginal rights.

On February 5, 1998, the U.S. filed a motion to dismiss. One day later, the Western Shoshone filed a motion for preliminary injunction, to stop a pattern of harassment by the Bureau of Land Management against Western Shoshone cattle ranchers. On June 2, 1998, the court adopted a recommendation from the magistrate judge that the Bureau of Land Management "be enjoined from impounding, confiscating, or forcibly removing" Western Shoshone livestock.

On September 10, 1998, the court adopted a portion of the magistrate's recommendation dismissing "claims based on aboriginal tribal title," but allowed the Western Shoshone "to amend the complaint to state claims based on individual aboriginal title with more particularity" and continued the injunction.

On October 5, 1998, a second amended complaint was filed, preserving the dismissed counts for appeal and stating with particularity that individual Western Shoshone persons "possess, reside on, occupy, and use exclusively as individuals and with members of their extended families various specific and discrete lands and places within ancestral territories of the Western Shoshone people."

On October 22, 1998, the U.S. again moved to dismiss and to dissolve or modify the injunction. On December 4, 1998, the Western Shoshone filed an opposition. On December 23, 1998, the U.S. filed a reply. On January 12, 1999, before the deadline for a Western Shoshone surreply, the magistrate recommended that the motion to dismiss be granted and the injunction dissolved. The recommendation acknowledged jurisdiction under two federal statutes, but found that the complaint did not provide sufficient information about individual persons, parcels of land, and ancestral activities to sustain an action for individual aboriginal rights.

On April 2, 1999, the court granted a Western Shoshone motion to file a surreply. In the surreply, the Western Shoshone argued that individual aboriginal rights are not restricted to the specificity requirements of a quiet title action. The surreply included an extensive listing of individual "uses and occupations" that the Western Shoshone continue to exercise within their ancestral territory as "from time immemorial."

On May 10, 1999, pending motions were argued in a telephonic hearing. Thereafter, the court adopted the recommendation of the magistrate judge that the complaint be dismissed without prejudice and the injunction dissolved.

On June 2, 1999, the Western Shoshone filed a notice of appeal on all issues-both tribal and individual-and a motion for stay of the order vacating the injunction. Defendants opposed the motion for a stay.

Misconduct Facts:

In April 2000, after ten months without word from the district court or the appeals court, the Western Shoshone inquired as to the status of the case. They discovered that a minimum of six filings and the last page of the docket sheet were missing from the district court.

On April 24, 2000, the Western Shoshone hand-delivered a letter to the court with a list of documents known to be missing. These included the following:

  1. Plaintiffs' Surreply to Defendants' Consolidated Reply, filed April 1999.
  2. Plaintiffs' Notice of Appeal, filed June 2, 1999.
  3. Plaintiffs' Certificate That No Transcript Is Ordered, filed June 2, 1999.
  4. Plaintiffs' Motion for Stay of Order Vacating Injunction and Sworn Statement in Support Thereof, filed June 2, 1999.
  5. Federal Defendants' Opposition to Plaintiffs' Motion for Stay of Order Vacating Injunction, filed June 21, 1999; and
  6. Plaintiffs' Reply to Federal Defendants' Opposition to Plaintiffs' Motion for Stay of Order Vacating Injunction, filed July 7, 1999.

File-stamped copies of documents originally filed by the Western Shoshone were provided to the court with the letter. The letter also stated that the loss of documents constituted a violation of Federal Rules of Civil Procedure Rule 79 and substantially interfered with the right to appeal and to obtain injunctive relief. Were it not for the fact that the Western Shoshone kept file-stamped copies of all pleadings, there would have been no proof that the appeal and motion for stay were timely filed.

On May 18, 2000, the district court issued a Minute Order acknowledging the loss of documents. In the same Minute Order, the court also denied the motion for stay. [A copy of the order is attached. (167k gif)]

The denial of the motion for stay occurred without benefit of having read the motion or the sworn supporting statement and without opportunity for argument. Complainants' motion for stay of the district court's order deserved to be considered on its merits. Instead, the motion was denied in the same order wherein the court acknowledged loss of the filing itself.

Astoundingly, the court thereafter lost the refiling of the notice of appeal. As the original time-stamped copies of the notice were still in their possession, the Western Shoshone were able to reinstate their appeal after this second mishandling of their filings. By some series of actions in the district court, both the first and second refilings came to be forwarded to the appeals court, resulting in duplicative appeals, one of which was subsequently dismissed.


The Western Shoshone evaluate the district court's loss of documents and prejudicial denial of their motion for stay against the background of related prior litigation. [See companion complaint of Judicial Misconduct against Lloyd D. George, District Court, Nevada (CV-S-95-00232-LDG (RJJ)); and Joseph T. Sneed, Edward Leavy, and Stephen S. Trott, Court of Appeals (95-16599)] The Western Shoshone National Council needs a fair and judicious review of all proceedings in both cases.

The Western Shoshone believe that the judge's actions have been prejudicial to the fair, effective, and expeditious administration of the business of the courts. They believe that the Nevada District Court [and the 9th Circuit] has failed to provide fair, effective, and expeditious means to litigate Western Shoshone rights.

The Western Shoshone request a review of this complaint in accordance with 28 U.S.C. § 372(c)(1) and the rules of this circuit governing complaints of judicial misconduct.

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