NO.: CV-S-97-327-HDM (RLH)
WESTERN SHOSHONE NATIONAL COUNCIL
by its Chief, Raymond D. Yowell, and
CHIEF RAYMOND D. YOWELL as Representative of
the Class of Shoshone Persons,
UNITED STATES OF AMERICA;
Department of the Interior, Secretary BRUCE BABBITT,
JULIE FAULKNER, ROBERT LAIDLAW;
Bureau of Land Management, ANN J. MORGAN, HELEN HANKINS; and
ORO NEVADA RESOURCES, INC.; its parents,
affiliates, subsidiaries, successors, assigns, etc.,
On August 5, 1998, Plaintiffs received the Report and Recommendation (Report) of the U.S. Magistrate Judge, recommending that Defendants' Motion to Dismiss be granted.
Pursuant to Local Rule IB 3-1 and within the time requirement noticed in the Report -- "ten days after receipt" (Report, 16) -- Plaintiffs hereby file their Objections to the Report, for the following reasons:
1) The Report erroneously assumes that early Supreme Court dicta and doctrine are controlling on the issue of Western Shoshone national independence;
2) The Report erroneously equates assertion of a United States "trust" relationship with actual litigation and extinguishment of Western Shoshone title, conflates different types of individual aboriginal title and asserts without benefit of hearing and proof that the type of individual title asserted in Plaintiffs' Complaint was resolved in prior litigation;
3) The Report erroneously finds res judicata and collateral estoppel, despite the fact that litigation cited in the Report as grounds for such findings fails the tests of privity and representation as well as the test of identity of issues;
4) The Report erroneously fails and refuses to interpret the Treaty of Ruby Valley as it would have been understood by the Western Shoshone in 1863, limiting mining activity to a scale then recognized, and presumes that Defendant Oro Nevada, Inc., may avail itself of a statutory bar available, if at all, only to the United States;
5) The Report erroneously asserts that there are no issues of material fact to be resolved in this matter; and
6) The Report fails to follow the basic principles of decision for the purpose of a motion to dismiss under F.R.C.P. Rule 12(b)(6); all as set forth and discussed below.
The Report states that "There is no explanation given..." to support the assertion in Plaintiff's Complaint "... that the Western Shoshone National Council is the contemporary manifestation of the traditional and original government of the Western Shoshone people," (Report, 7) and that these and other assertions of Western Shoshone national status and a concomitant right to territorial integrity "fl[y] in the face of reality." (Report, 8)
The basis cited for these conclusions in the Report is "controlling precedent" from the United States Supreme Court, specifically, Cherokee Nation v. Georgia, 30 U.S. 1 (1831), and Seminole Nation v. United States, 316 U.S. 286 (1942).
The "reality" of the national status of the Western Shoshone National Council involves factual issues of traditional Western Shoshone leadership structures and practices. As such, the issue cannot be determined without hearing and consideration of evidence. It cannot be disposed of on the basis of "precedent" or judicial assertions about "reality." As a unanimous Supreme Court held:
... Rule 12(b)(6) does not countenance ... dismissals based on a judge's disbelief of a complaint's factual allegations. Neitzke v. Williams, 490 U.S. 319, 327 (1989)/
Rule 12(b)(6) requires the Court to:
... take the well-pleaded allegations of the complaint as true for the purpose of a motion to dismiss. City Of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 493 (1986).
Dismissal of Plaintiffs' Complaint under F.R.C.P. Rule 12(b)(6) where factual matters are at issue would be clearly erroneous and contrary to law. The Report errs both in presuming that there is "no dispute that [resolution of] this motion involves only legal issues" (Report, 7) and in failing to "take as true" Plaintiffs' allegations about the facts.
United States Supreme Court precedent is developing on the issue of independent "status" of American Indian nations. The Court's position on this issue is not static. More than 150 years ago, in the case cited in the Report. the Court stated that "...an Indian tribe or nation within the United States is not a foreign state in the sense of the constitution...." Cherokee Nation, supra, 30 U.S., at 19.
In 1997, in Idaho v. Coeur d'Alene Tribe, 117 S.Ct. 2028, the Court cast serious doubt on the general application of Cherokee Nation, holding that:
Since the plan of the convention [the Constitution] did not surrender Indian tribes' immunity for the benefit of the States, we reasoned that the States likewise did not surrender their immunity for the benefit of the tribes. Indian tribes, we therefore concluded, should be accorded the same status as foreign sovereigns, against whom States enjoy Eleventh Amendment immunity. 117 S.Ct., at 2034 (citing Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991))
In Blatchford, the Court stated:
... [I]t would be absurd to suggest that the tribes surrendered immunity in a convention to which they were not even parties. 501 U.S., at 782.
The jurisprudence and "reality" of American Indian "status" is thus neither so clear nor so certain as the Report asserts. Recent Supreme Court decisions on "status" depart markedly from the Court's earliest pronouncements.
The majority opinion in Cherokee Nation, supra, is the sole source of legal doctrine referenced in the Report antithetical to the national independence of the Western Shoshone People. Seminole Nation, supra, also cited in the Report, is itself based on Cherokee Nation and recites a string of citations each of which refers back to Cherokee. The Report makes no mention of the contradictory rulings in Idaho and Blatchford, supra.
In assessing the current viability of the Cherokee Nation line of decisions, it is also instructive to note that the Court was clearly discomforted with its original denial of native independence. In Johnson v. McIntosh, 21 U.S. 543 (1823), after writing that "Christian kings" could take lands "unknown to all Christian peoples," 21 U.S., at 576, Chief Justice Marshall stated that the doctrine was an "extravagant ... pretension" which "may be opposed to natural right and to the usages of civilized nations" and may only "perhaps, be supported by reason." 21 U.S., at 591.
The Report's uncritical and solitary reliance on Cherokee Nation is further problematic in light of the Court's decision the following year in Worcester v. Georgia, 31 U.S. 515 (1832), affirming the national status of unconquered American Indian peoples:
The very term "nation," so generally applied to them, means "a people distinct from others." The constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words "treaty" and "nation" are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense. 31 U.S., at 559-560.
Plaintiffs' allegations state a claim upon which relief can be granted under evolving Supreme Court decisions in the context of contemporary "usages of civilized nations" (international law discussed below), Neither the Report nor Defendants' Motion to Dismiss provide any basis for rejecting a priori Plaintiffs' allegations of Western Shoshone national status.
The Report fails to follow the rule that the Court must "... examine the complaint to determine if the allegations provide for relief on any possible theory." 5 Wright & Miller, Federal Practice and Procedure: Civil, s 1219. [cited in Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir., 1974)]. The recommendation of dismissal under F.R.C.P. Rule 12(b)(6) is therefore clearly erroneous and contrary to law.
The Report relies on findings and stipulations in Indian Claims Commission proceedings that Western Shoshone title was taken by "encroachment," Shoshone Tribe v. United States, 11 Ind. Cl. Comm, at 416 (1972) (Report, 13, et seq.):
[T]he Commission was unable to discover any formal extinguishment of Indians' legal title, only gradual encroachment by settlers and others.... Temoak Band v. United States, 593 F.2d 994, 996 (1979).
Plaintiffs' Complaint alleges that Western Shoshone ranchers have been grazing livestock for 14 years on lands to which the United States claims title, a period nearly twice as long as that which was stipulated by other parties in the Indian Claims Commission to support a finding of "taking" by "encroachment."
If, for the purposes of argument, Plaintiffs were to admit the legality of "taking by encroachment" as a principle under which title may be transferred between nations, there would be no basis for denying the effectivity of "reverse encroachment" by the Western Shoshone to re-take their ancestral lands.
If "title by encroachment" is a valid legal concept, it must work in both directions. Facts alleged in Plaintiffs' Complaint would thereby re-establish Western Shoshone title after purportedly losing it to the United States. "Encroachment" theories of the relationship between the Western Shoshone and the United States provide a legal foundation upon which relief can be granted on facts alleged in Plaintiffs' Complaint. The Report's recommendation of dismissal under F.R.C.P. Rule 12(b)(6) is therefore clearly erroneous and contrary to law.
Plaintiffs' Complaint references international covenants to which the United States is a party, to support allegations of Western Shoshone rights to territorial integrity. The Report states that it is not "appropriate" to apply international law where it conflicts with "controlling precedent," citing Tag v. Rogers, 267 F.2d 664 (D.C. Cir., 1959), cert den., 362 US 904 (1960) (Report, 9). The decision in Tag, however, does not subordinate international law to judicial "precedent."
The language of Tag is unambiguous:
Whatever force appellant's argument might have in a situation where there is no applicable treaty, statute, or constitutional provision, it has long been settled in the United States that the federal courts are bound to recognize any one of these there sources of law as superior to canons of international law. 267 F.2d, at 666.
The Report cites no "treaty, statute, or constitutional provision" to sustain its conclusion that Western Shoshone national status "flies in the face of reality." The Report's rejection is explicitly based on judicial "precedent," Tag does not hold that a Court may reject consideration of international law on this basis.
If the Report's reference to "precedent" be taken to refer indirectly to the Indian Claims Commission Act, the only statute relied upon in the claims cases cited in the Report, the language in Tag is once again dispositive in favor of Plaintiffs' Complaint:
"By the Constitution, laws made in pursuance thereof and treaties made under the authority of the United States are both declared to be the supreme law of the land, and no paramount authority is given to one over the other. ... In either case the last expression of the sovereign will must control." [quoting Chae Chan Ping v. U.S. (The Chinese Exclusion Case), 130 U.S. 581, 599-600 (1889)], 267 F.2d, at 668.
The International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976), a multilateral treaty to which the United States is a party, is "the last expression of the sovereign will" and therefore "must control" in relation to the 1946 Indian Claims Commission Act, Tag therefore supports the application of international law in the instant litigation as a legal basis upon which relief can be granted for Plaintiffs' Complaint.
The Covenant states:
All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. Article 1, sec. 1.
In no case may a people be deprived of its own means of subsistence. Article 1, sec. 2.
The United Nations Human Rights Committee, the international body charged with overseeing compliance, has specifically applied the Covenant to protect indigenous peoples' lands and ways of life against state action.
Other international documents referenced in Plaintiffs' Complaint evidence the existence of norms of customary international law which protect the Western Shoshone against actions by the United States tending to undermine and destroy their ways of life and territorial integrity. See Anaya, Indigenous Peoples in International Law (Oxford University, 1996).
A Supreme Court decision one year subsequent to the denial of certiorari in Tag casts further doubt on the Report's sweeping rejection of international law:
This Court has many times set its face against treaty interpretations that unduly restrict rights a treaty is adopted to protect. Kolovrat v. Oregon, 366 U.S. 187, 192 (1961).
Two years after Tag, the Court reached back to its earliest considerations of the question to state that:
The presence of ... highly charged international circumstances brings to mind the admonition of Mr. Chief Justice Marshall in The Charming Betsy, 2 Cranch 64, 118 (1804), that "an act of congress ought never to be construed to violate the law of nations if any other possible construction remains ...." McCulloch v. Sociedad Nacional, 372 US 10, 21 (1963).
As the Supreme Court in McCulloch recognized, the proper mode of resolving conflicts, if any, between statutes and treaties is closely affected by the actual circumstances of the particular conflict. Where, as in the instant litigation, the situation is "highly charged" as Plaintiffs' Complaint alleges, the Court may not reject consideration of international law a priori on a motion to dismiss under F.R.C.P. Rule 12(b)(6).
The state of the law since Tag has progressed to the point that "... settled international legal norms deny... the supremacy of domestic law over international obligations." Restatement (Third) of the Foreign Relations Law of the United States 115(1)(b) (1986).
The Report errs in its refusal to consider contemporary international obligations of the United States as a basis upon which relief can be granted for violations of Western Shoshone self-determination and territorial integrity and the recommendation for dismissal under F.R.C.P. Rule 12(b)(6) is therefore clearly erroneous and contrary to law.
Plaintiffs' Complaint alleges extant Western Shoshone title and seeks to protect this title in the instant litigation. The Report refuses to take Plaintiffs' allegations "as true," City Of Los Angeles, supra, and fails "to examine the complaint to determine if the allegations provide for relief on any possible theory." 5 Wright & Miller, Federal Practice and Procedure, supra.
The Report repeats the legal error argued in Defendants' Motion to Dismiss, conflating the United States' claim to have "extinguished" title with the question whether Western Shoshone title has ever been actually litigated. (Report, 9, et seq.)
The series of decisions cited in the Report culminating in United States v. Dann, 470 U.S. 39 (1985), clearly separates the "extinguishment" theory from actual litigation. The language of the Ninth Circuit decision following the Supreme Court opinion is instructive:
Having ruled the statutory bar [in § 22(a) of the Indian Claims Commission Act, ch. 959, 60 Stat. 1049, 1055 (1946)] inapplicable, we went on to hold that aboriginal title had not been extinguished as a matter of law....
The government asked the Supreme Court to review our ruling that the statutory bar did not apply because "payment" had not been made. The Supreme Court reversed our decision. ....
... rejecting our interpretation of the statutory bar.... United States v. Dann, 873 F.2d 1189, 1192-1193 (9th Cir., 1989).
Scholarly legal analysis supports the distinction between a purported "bar" and actual litigation:
The United States did not challenge the [Ninth Circuit] court's holding that there had never been any taking of Western Shoshone aboriginal title lands by the government. It sought review in the Supreme Court only on the question whether "payment" of the ICCA judgment had occurred within the meaning of Section 22 of the Act. The Supreme Court decided the narrow payment issue in favor of the government. Hughes, Indian Law, 18 N.M. Law Rev. 403, 425 (1988) (emphasis in original)
The quotation in the Supreme Court's Dann decision ["... the extinguishment question was not necessarily in issue, it was not actually litigated, and it has not been decided," 470 U.S., at 43-44, quoting 572 F.2d 222, 226-227] is an acknowledgment of the difference between actual litigation and the theory of "extinguishment."
The Report is thus in error in stating that the Supreme Court in Dann "was merely quoting the language of the Ninth Circuit decision which the Supreme Court was reversing." (Report, 9) It remains as true after the Supreme Court decision as before that Western Shoshone title issues have never been actually litigated.
The Supreme Court ruling in Dann was not that Western Shoshone title had been litigated and found wanting, but that the United States, as self-proclaimed "trustee" for the Western Shoshone, had supposedly "accepted payment" on their behalf for an "extinguishment" of their title. The Supreme Court relied on Seminole Nation v. United States, 316 U.S. 286 (1942), to support its decision:
The Court's reliance on the general rule in Seminole Nation is authority for our holding that the United States has made "payment" under § 22(a). 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...." 470 U.S., at 49.
As Seminole Nation v. United States acknowledges, this United States' assertion of "trusteeship" over American Indians is a unilateral imposition:
Under a humane and self-imposed policy..., it has charged itself with moral obligations of the highest responsibility and trust. 316 U.S., at 296.
Take away the self-proclaimed "humanity" and "morality" and the declaration of "responsibility and trust" becomes an obvious imposition of unconsented-to power. Any trespasser might wish to declare his trespass a "debt" and himself a "trustee" capable of discharging this "debt" by such sleight of hand. The Supreme Court's use of "trust" doctrine in conjunction with the provisions of the Indian Claims Commission Act was an attempt to preclude actual litigation of Western Shoshone title.
Plaintiffs seek resolution of claims against Western Shoshone title through actual litigation of the issues. Actual litigation would involve "the application of public land laws (including the homestead laws)[,] ... the Taylor Grazing Act ..., [and] the establishment of the Duck Valley Reservation," none of which were found by the Ninth Circuit to constitute a "taking" of Western Shoshone title. 873 F.2d, at 1192-1193.
Actual litigation would also require, as Plaintiffs' Complaint sets forth, application of The Northwest Ordinance, 1 Stat. 51 (July 13, 1787), and the Act to Organize the Territory of Nevada, 12 Stat. 210. (1861), These fundamental organic laws of the United States and Nevada explicitly except and protect the territorial integrity of American Indian nations, including the Western Shoshone.
Furthermore, actual litigation would involve application of the Indian Trade and Intercourse Act, 1 Stat. 138 (1790) and 25 U.S.C. 177 (1982), the Treaty of Guadalupe Hidalgo, 1848, and the Treaty of Ruby Valley, 1863, 18 Stat. 689, and would require factual inquiry into Western Shoshone history and territory, including group and individual land use practices, all as set forth in Plaintiffs' Complaint
None of the elements of actual litigation has occurred, which every court including the United States Supreme Court has acknowledged. Assertions to the contrary in the Report and Defendants' Motion to Dismiss are in error.
Actual litigation of Western Shoshone title would also require proceedings to be conducted in a court rather than an administrative commission. The Indian Claims Commission was not a "court" under Article III of the United States Constitution:
Indeed, the predecessor bills that eventually resulted in the Indian Claims Commission Act had dropped the word "court" in 1935, the date of the last Indian claims bill introduced with that word in it. ... The Commission was authorized to make its decisions without formal legal proceedings.... Washburn, Red Man's Land, White Man's Law 105-106 (University of Oklahoma, 1995 (2d. ed.))
The Indian Claims Commission was not authorized to hear and determine assertions of extant title, but only to award compensation for lost title. See Hughes, supra, 405-434. Whatever the outcome of an Indian Claims Commission proceeding, it cannot be said that such a proceeding constituted actual litigation of title.
The Report's conclusion that the issues raised in Plaintiffs' Complaint have been litigated and do not state a claim upon which relief can be granted is clearly erroneous and contrary to law.
Plaintiffs' Complaint alleges extant individual aboriginal title held by traditional Western Shoshone ranchers and others. The Report rejects these allegations, citing the Ninth Circuit's 1989 Dann decision for the proposition that such title has "been extinguished and compensation paid therefore." (Report, 12-13)
The Report ignores an explicit statement by the Ninth Circuit that at least one form of Western Shoshone individual aboriginal title was not at issue in or resolved by the Dann case:
There is no theoretical reason why individuals could not establish aboriginal title in much the same manner that a tribe does. An individual might be able to show that his or her lineal ancestors held and occupied, as individuals, a particular tract of land, to the exclusion of all others, from time immemorial, and that this title had never been extinguished....
Whether any such individual aboriginal title has existed or could exist, we need not decide, for it is clear that the Danns make no such individual claim to these lands from time immemorial. ... In their brief on this appeal, the Danns disavow any claim of individual possessory interests; they assert only tribal interests.... 873 F.2d, at 1196. (emphasis in original)
The Report fails to follow the rule that "[a] complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief." Tyler v. Cisneros, 136 F.3d 603, 607 (9th Cir., 1998). The Report also fails to carry out the Court's "duty to examine the complaint to determine if the allegations provide for relief on any possible theory." 5 Wright & Miller, Federal Practice and Procedure, supra.
Supreme Court and Ninth Circuit affirmations of the possibility of individual Western Shoshone aboriginal title provide ample ground for finding that Plaintiffs' Complaint states a claim upon which relief can be granted. Dismissal under F.R.C.P. Rule 12(b)(6) would deprive Plaintiffs' of the opportunity to prove their individual Western Shoshone aboriginal title and the recommendation for dismissal is clearly erroneous and contrary to law.
The Report correctly notes that res judicata arises "when a final judgment has been entered on the merits of a case...." (Report, 13) As discussed above, the decisions cited in the Report, culminating in United States v. Dann, 470 U.S. 39, do not go to the "merits" of Western Shoshone title, but only to the interpretation of a purported United States "trusteeship" over the Western Shoshone.
The Report asserts that Plaintiffs are in privity with the entire series of parties in Western Shoshone actions before the Indian Claims Commission and in the Dann cases, despite the fact that the Ninth Circuit has twice expressly refused "... to resolve the question ... [of] 'parties' to the ICC litigation by virtue of any representation of the Shoshone Tribes in the litigation." 572 F.2d, at 226, The Ninth Circuit 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.
In Dann I we found it unnecessary to decide whether the Danns were in privity with the claimants in the claim proceedings.... We again decline to decide the question of identity or privity of parties.... 706 F.2d, at 924, n. 3.
In deciding a Rule 12(b)(6) motion, the Court must "... take the well-pleaded allegations of the complaint as true for the purpose of a motion to dismiss." City Of Los Angeles, supra. Plaintiffs' assertions of lack of privity, especially as buttressed by repeated Ninth Circuit statements on the issue, must be taken as true for the purposes of deciding Defendants' Motion.
Resolution of the privity issue may properly occur only after a hearing in which evidence is presented of the relationships among Plaintiffs and the many and various other parties in this long history of litigation. Dismissal under F.R.C.P. Rule 12(b)(6) would preclude such a hearing and the recommendation therefore is clearly erroneous and contrary to law.
The Report erroneously finds collateral estoppel, contrary to allegations in Plaintiffs' Complaint (as discussed in sections above) that (1) issues raised in Plaintiffs' Complaint are not "identical to those involved in [any] prior action"; and (2) issues raised here have not been "actually litigated." On a further collateral estoppel test, the Report finds "the party [to be] precluded was fully represented" in prior actions, despite allegations to the contrary in Plaintiffs' Complaint. (Report, 14)
Plaintiffs are not required to set out in detail facts supporting allegations in their Complaint. This principle underscores the purposes of the rules for decision of motions under Rule 12(b)(6), requiring the Court to take "as true," City Of Los Angeles, supra, and to "construe favorably," Tyler, supra, Plaintiffs' allegations that they were not represented in prior proceedings.
Proper resolution of collateral estoppel issues requires an evidentiary hearing at which relevant fact situations such as the following may be presented and considered:
The Te-Moak Bands has never at any time included within its membership even a majority of all Western Shoshones. In fact, before the creation of the Western Shoshone National Council in 1984 there was no organization which could make that claim. ...[T]he Te-Moak Bands is only one of several governments organized under the Indian Reorganization Act.
[The attorneys for the Te-Moak Bands] may have realized the unrepresentative character of the Te-Moak Bands Tribal Council, because at various times they called several meetings open to all Western Shoshones at a number of locations within Western Shoshone country to approve actions they were taking and to elect a claims committee.... At these meetings, traditionalist Western Shoshones appeared and protested the claims process, usually walking out in protest before a vote could be taken. In consequence the total number of votes taken at all these meetings was only a small fraction of the total Western Shoshone population. Rusco, Historic Change in Western Shoshone Country: The Establishment of the Western Shoshone National Council and Traditionalist Land Claims, 16 American Indian Quarterly 337, 346-347 (1992).
In sharp contrast to the Report's findings of "privity" and "representation" among all the parties in the history of Western Shoshone litigation, this series of cases has been described as "bizarre and complex ... litigation, in which elaborate efforts by elements of the tribe to discharge the claims attorneys and stay the proceedings ... were repeatedly rebuffed...." Hughes, supra, 417, n. 96.
One crucial Claims Commission case demonstrates by its title alone the impossibility of sustaining the Report's conclusion of "privity" and "representation": Temoak Bands of Western Shoshone Indians v. United States and Western Shoshone Identifiable Group Represented by the Temoak Bands, 593 F.2d 994 (Ct. Cl.), cert den. 444 U.S. 973 (1979). That action has been described as "a phase of the case in which the Temoak Bands apparently ended up being aligned against themselves." Hughes, Id.
Of the tests set forth in the Report for finding res judicata and collateral estoppel, not a single one -- "final judgment," "identity or privity of parties," "actual litigation of the issues," "full representation of parties" -- can be resolved on the basis of the pleadings alone.
Ample ground exists in the historical and legal record to find that Plaintiffs' Complaint states a claim upon which relief can be granted within the meaning of F.R.C.P. Rule 12(b)(6). Dismissal of Plaintiffs' Complaint without evidence or hearing on the privity and estoppel issues would be grievous error and the Report's recommendation is clearly contrary to law.
Plaintiffs' Complaint alleges that the mining provisions of the Treaty of Ruby Valley are understood by the Western Shoshone to be limited to "visible deposits on a human scale" and not to permit large-scale industrial mining of the sort with which Defendant Oro Nevada, Inc., is associated.
The Report rejects these allegations with the comment that "[t]he source of this 'understanding' remains a mystery." (Report, 15)
Here, as before, the Report violates the basic principle of decision under F.R.C.P. Rule 12(b)(6), that the Court must "... take the well-pleaded allegations of the complaint as true...." City Of Los Angeles, supra.
There is an important additional ground for favoring Plaintiffs' allegations about the Treaty:
A cardinal rule in the interpretation of Indian treaties ...[is] that ambiguities are resolved in favor of the Indians.
A somewhat different, although related, rule of treaty interpretation is to the effect that, since the wording in treaties was designed to be understood by the Indians, who often could not read and were not learned in the technical language, doubtful clauses are resolved in a nontechnical way as the Indians would have understood the language. Cohen, Handbook of Federal Indian Law 37 (1942). (citations omitted)
A proper resolution of the meaning of the mining provisions of the Treaty is possible only after an evidentiary hearing on mining practices as understood by the Western Shoshone at the time of the Treaty. The Report's rcommendation thus violates both the principles of F.R.C.P. Rule 12(b)(6) and the rules of interpretation applicable to Indian treaties.
In fact, Plaintiffs' reading of the Treaty is not a "mystery." The historical record of mining in Nevada demonstrates a practical and reasonable basis for Plaintiffs' interpretation.
An evidentiary hearing would provide opportunity for this Court to consider the implications of the fact that Indians themselves were often the source of information about mine sites at the time of the Treaty:
...[I]n southern Utah in the winter of 1863-64 ... an Indian is said to have shown [William Hamblin] silver-bearing samples of rock. Hulse, Lincoln County, Nevada: 1864-1909 (University of Nevada Press, 1971) 6.
In 1866, the Nevada State Mineralogist reported:
On showing specimens of float rock to an old Indian, he told them that he knew where there was plenty more of the same kind, and led the party to the "Ely & Sanderson" lode. Hulse, at 13.
A hearing would permit introduction of evidence that the Indians' understanding of mining at the time of the Treaty, in terms of "visible deposits on a human scale," was shared by many non-Indians:
... Connor's California Volunteers of 1864 ... spent their leisure time, when they were not killing Indians, in locating mines ... [at] the very places where they camped, made a fire, noticed lead or silver sweating out of the hearth, "located" the ledge, and entered the record in a book.... Hulse, 7.
Under the "cardinal rule" of interpretation of Indian treaties, language which appears to authorize "all types of mining" (Report, 15) must be read as the Western Shoshone would have understood it. Dismissal of Plaintiffs' Complaint without hearing would preclude the presentation of evidence necessary to prove that large-scale, industrial, open-pit, cyanide heap leach mines such as those with which Defendant Oro Nevada, Inc., is associated were clearly not within the contemplation of the Western Shoshone at the time of the Treaty. and are therefore not permitted by the Treaty.
The Treaty provisions, properly interpreted, provide a basis upon which relief can be granted for Plaintiffs' Complaint. The Report violates rules of treaty interpretation and the rule of decision for motions under F.R.C.P. Rule 12(b)(6) and is therefore clearly erroneous and contrary to law.
Plaintiffs' Complaint alleges violations of Western Shoshone property rights by Defendant Oro Nevada, Inc. The Report presumes without discussion that Oro Nevada, Inc., is in the same position as the United States with regard to the statutory bar provisions of the Indian Claims Commission Act. This presumption is in error.
The bar provision, § 22, formerly codified as 25 U.S.C. § 70u (1976), runs only in favor of the United States. The Act makes no provision for claims against or discharges in favor of other parties. If, for purposes of argument, Plaintiffs were to admit the applicability of the statutory bar to their Complaint against the United States, their Complaint against Oro Nevada, Inc., would remain.
The Indian Claims Commission Act does not reach or affect actions against others than the United States. Furthermore:
... [T]he Supreme Court has squarely held that, as to claims against non-federal parties, "[t]here is no federal statute of limitations governing federal common-law actions by Indians to enforce property rights." County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 240 (1985). Hughes, supra, at 432, n. 206.
The common-law elements of Plaintiffs' Complaint against Defendant Oro Nevada, Inc., present ample basis upon which relief can be granted, wholly separate from the effect of a purported statutory bar. The Report's recommendation of dismissal of Plaintiffs' Complaint against Oro Nevada for failure to state a claim upon which relief may be granted is therefore clearly erroneous and contrary to law.
The basic test to determine whether a complaint warrants dismissal for "failure to state a claim upon which relief can be granted" originated in Conley v. Gibson, 355 U.S. 41 (1957):
In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. 355 U.S., at 45-46.
This has been held to mean that:
No matter how reasonably it may be surmised or predicted that a plaintiff will be unable to establish on a trial the claim stated in his complaint or to obtain any relief, he is, nevertheless, entitled to make the attempt unless it appears beyond doubt that he can prove no set of facts in support of his claim which would entitle him to any relief. Thomason v. Hospital T.V. Rentals, Inc., 272 F.2d 263, 266 (8th Cir., 1959).
The Ninth Circuit very recently reiterated these basic principles:
A complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. ... The complaint must be construed favorably to the plaintiff, and the court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from well-pleaded facts. Tyler v. Cisneros, 136 F.3d 603, 607 (9th Cir., 1998)
Under a motion to dismiss for "failure to state a claim upon which relief can be granted," the Court must
... examine the complaint to determine if the allegations provide for relief on any possible theory. 5 Wright & Miller, Federal Practice and Procedure: Civil, s 1219. [cited in Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir., 1974)].
The Report violates all rules for decision of motions under F.R.C.P. Rule 12(b)(6):
Plaintiffs' Complaint alleges unresolved factual issues. Rather than "tak[ing] ... as true" and "constru[ing] favorably" these allegations, the Report rejects them or presumes they raise no material issues of fact.
Plaintiffs' Complaint raises legal questions of first impression under existing and developing theories of law. Rather than "giv[ing] the plaintiff the benefit of every reasonable inference" and "examin[ing] the complaint to determine if the allegations provide for relief on any possible theory," the Report decides against Plaintiffs' allegations on the basis of misconstructions of law.
For the foregoing reasons and reasons set forth in Plaintiff's Opposition to Defendants' Motion to Dismiss, the Report and Recommendation is clearly erroneous and contrary to law and should be rejected and the case set for hearing on Plaintiffs' Complaint.
Dated: August 12, l998
Raymond D. Yowell, Chief
Allen Moss, Sub-Chief
Virginia Sanchez, Secretary of State & Treasurer
Western Shoshone National Council
Indian Springs, NV 89018-210