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.,



On December 23, 1998, Federal Defendants filed a Consolidated Reply Memorandum in Support of their Motion to Dismiss the Second Amended Complaint and to Dissolve or Modify the Preliminary Injunction. Plaintiffs received Defendants' Reply on January 5, 1999.

Defendants acknowledged their Reply raised the Quite Title Act as a new issue and indicated no objection if Plaintiffs desired to file a surreply. (Reply, 3n.)

On January 4, 1999, Defendant Oro Nevada filed a Joinder in Federal Defendants' Consolidated Reply. Plaintiffs received Defendant Oro Nevada's Joinder on January 8, 1999.

On January 12, 1999, United States Magistrate Judge Roger L. Hunt filed a Report and Recommendation (Report) pertaining to Defendants' Motions to Dismiss Plaintiffs' Second Amended Complaint and to Dissolve or Modify the Preliminary Injunction issued by this Court. The Report was entered and served on January 25, 1999; Plaintiffs received a copy on January 29.

On April 2, 1999, this Court granted Plaintiffs' Motion for Leave to File a Surreply.


1. Usufruct Rights Do Not Involve Quiet Title Act.

In response to Defendants' assertion that Plaintiffs must proceed under the Quiet Title Act, 28 U.S.C. § 2409a, Plaintiffs say that this is not an action to quiet title to real property as defined in that Act.

Plaintiffs assert aboriginal use rights -- as distinct from title to real property -- on ancestral Western Shoshone lands in an area defined in the 1863 Treaty of Ruby Valley. The pleadings have identified cattle grazing as a primary example of such rights because of its economic centrality to Plaintiffs' livelihood, but have not limited the assertion of rights to grazing nor to enclosures of parcels of land.

Plaintiffs' Second Amended Complaint listed a variety of aboriginal "uses and occupations" including:

... multiple forms of subsistence agriculture and silviculture; cultivation, conservation, and improvement of natural resources, including waters and lands; and breeding and raising of livestock; ...
... ceremonial and sacred occupation of specific springs and mountain areas for nurturing and harvesting of herbs, medicines and other plant life.... [Complaint, par's. 9, 10]

Plaintiffs' Opposition to Defendants' Motion to Dismiss cited substantial authority supporting this broad, multiple definition of individual aboriginal rights, as follows:

a. The Supreme Court in Cramer v. United States, 261 U.S. 219 (1923), a seminal case, included the following descriptions of individual aboriginal uses and occupations:

... reclaiming, cultivating and improving the soil [in a manner] definite and substantial in character and open to observation... ;... [being] engaged in agriculture or labor of any kind...; ... act[s] of dominion ... over, or ... claim or assertion of right to, ... lands beyond the limits of ... actual possessions....

b. In United States v. Santa Fe R.R., 314 U.S. 339 (1941), the Court spoke of individual aboriginal rights in terms of:

... lands "retained for Indian purposes"....

c. In United States v. Dann, 873 F.2d 1189 (9th Cir., 1989), the Ninth Circuit defined individual aboriginal rights as:

... occupancy, inclosure, or other actions....

The controlling cases have thus never restricted individual aboriginal rights to the terms of a quiet title action, which would require and be limited to articulation of specific land title claims. The cases cited in this Court's Order of September 10, 1998, allowing Plaintiffs to amend their Complaint to state individual rights with more particularity, are in accord with this principle.

By way of example, and to put the matter in context, the uses and occupations listed in Plaintiffs' Complaint could be expanded as follows to show what is meant by "Indian purposes," as these continue to be exercised, from time immemorial to the present:

Hunting: The right to hunt the following species, but not limited to these species: jackrabbits, all forms of squirrels, rock chucks, coots, chuck awallas, black birds, crows, porcupines, etc. In keeping with Western Shoshone law, the only factor for consideration is that they are available to hunt and not to hunt the species into extinction, but always to leave an abundant amount to keep the species for future generations.

Fishing: The right to fish for the following, including but not limited to: carp, minnows, crawdads, white fish, shiners, chubs, etc.

Foods: The right to gather traditional foods, including but not limited to the following: pinenuts, yomba, wild onions, wild garlic, sego, choke cherries, elder berries, buck berries, wild currants, tule roots, hawthorn berries, juniper berries, rose bush berries, service berries, and all forms of wild grass seeds, etc.

Herbs and Medicines: The right to gather all forms of herbs and medicinal plants and roots, including but not limited to: doza, pah-de-via, aanda-vich-quanah, greasewood, Indian tea, pine pitch, sagebrush, lesser sage, willows, etc.

Religion and Sacred Rights: The right to assemble and perform sacred and religious rites on Western Shoshone territory, including but not limited to the following: to visit, bathe, and pray at all hot springs; to pray and prepare on all high places; to get avi-vee, bishop, lesser sage, juniper, rabbit brush; to visit and hold religious ceremonies at Western Shoshone burials throughout the territory; etc.

Crafts: The right to gather all forms of material for crafts, including but not limited to the following: willows, tules, pine pitch, red willows, jackrabbit fur, rocks for grinding, sagebrush bark, buck brush bark, juniper bark, white chert, porcupine quills, etc.

Wood for Burning: The right to gather all forms of dead wood, including but not limited to: dead juniper, dead pine, dead mahogany, dead sagebrush, dead rabbitbrush, dead buck brush, dead aspen, etc.

Water: The right to use water, including rainwater, for religious rites, cleansing, drinking to sustain life, and for any other purpose.

Air: The right to breathe air to keep one's self alive.

Sun: The right to be in the rays of the sun for warmth and other purposes.

Space: The right to occupy space for one's body.

Customs: The right to engage in commerce with foreign nations and sharing all resources with other Western Shoshone in good and bad years.

None of these aboriginal rights of user and usufruct require a claim of real property title. The Quiet Title Act is therefore irrelevant and Defendants' unsupported assertion that individual aboriginal rights "is a claim to quiet title" (Reply, 4) is incorrect. None of the quiet title cases cited in Defendants' Reply involve individual aboriginal rights. Nothing in cases defining individual aboriginal rights cited in Plaintiffs' pleadings indicates that these rights involve "quiet title" issues.

2. Plaintiffs Raise Issues of Individual Rights to Provide a Basis for Individuals to Prosecute Such Actions.

Plaintiffs' action raises the existence of individual aboriginal rights to use, occupy, and enjoy natural resources. Plaintiffs have set forth this position with great particularity in previous filings and have provided substantial precedent in support thereof.

Plaintiffs' Complaint is clear that the purposes of this phase of the litigation are (1) to raise a variety of individual Western Shoshone uses and occupations as legally cognizable individual aboriginal rights; and (2) to provide a legal basis for individual Western Shoshone persons to come forward and present facts of their own actual individual uses.

Plaintiffs' Opposition to the Motion to Dismiss presented substantial authority on several bases to show that assertion of rights on behalf of a group is entirely appropriate without identification of each member's identity and particular fact situation. Defendants received ample and adequate pleading notice of the matters and issues raised in this action.

The federal rules require only a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a). The Rule 8 standard contains "a powerful presumption against rejecting pleadings for failure to state a claim." Auster Oil & Gas, Inc. v. Stream, 764 F.2d 381, 386 (5th Cir. 1985); see also Hall v. City of Santa Barbara, 833 F.2d 1270, 1274 (9th Cir. 1986) ("It is axiomatic that 'the motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted.'") (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1357, at 598 (1969)). Gilligan v. Jamco Development Corporation, et al., 108 F.3d 246, 248-249 (9th Cir., 1997).

The sufficiency of Plaintiffs' complaint is to be judged by a determination whether there could be any set of facts which would support the claims stated in the Complaint. (See Conley v. Gibson, 355 U.S. 41, 45-46 (1957).) The proper place for presentation of individual facts is in individual hearings which could proceed on the legal foundation established by a declaratory judgment in this action.

Plaintiffs' Complaint provides ample and adequate basis to sustain a declaratory judgment defining the nature and existence of cognizable Western Shoshone individual aboriginal rights. Defendants have shown nothing from which this Court might conclude "beyond doubt" that Plaintiffs "can prove no set of facts" to sustain their assertion of the existence of such rights. (See Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 746 (1976).)

3. This Court has Jurisdiction.

This Court has jurisdiction of these matters "arising under the laws of the United States." 28 U.S.C. § 1331, etc., as discussed in Plaintiffs' prior pleadings.

The United States has waived sovereign immunity under 5 U.S.C. §702, etc., to the extent necessary to protect Plaintiffs' aboriginal rights against United States agencies acting "under color of legal authority," as discussed in Plaintiffs' prior pleadings.

4. Defendant Oro Nevada May Not Assert Sovereign Immunity.

There is no "sovereign immunity" question for purposes of protection of Plaintiffs' use rights (nor for compensation for damages) against Defendant Oro Nevada. Defendant Oro Nevada's joinder in this issue is wholly irrelevant.

Furthermore, even if Plaintiffs' rights did involve title claims, it is clear they would survive a dismissal under the Quiet Title Act. In Block v. North Dakota, 461 U.S. 273 (1983), cited by the Federal Defendants, the Supreme Court explicitly held that the Quiet Title Act is not an adverse possession statute, and

... does not purpose to effectuate a transfer of title. ... A dismissal pursuant to [the Act] does not quiet title to the property in the United States. The title dispute remains unresolved. Nothing prevents the claimant from continuing to assert his title.... 461 U.S. at 291-291.


Plaintiffs' attempt to achieve a declaration of rights upon which individual fact situations could be prosecuted is an efficient and proper course of action in the circumstances. Dismissal would necessitate a succession of separate individual actions, each starting from scratch. Such a series would (1) present identical legal issues without assurance of uniformity of decision; (2) require duplicative hearings on matters common to all; and (3) prohibit consolidation of common issues where such exist. Avoidance of these drawbacks and inefficiencies were a major purpose of bringing the case in its current form.

Litigation of individual situations could go on for many years, regardless of whether they are presented on the basis of a declaratory judgment or in a series of original actions. Plaintiffs reiterate that an acceptable alternative would be for the parties to come together under the auspices of this Court to negotiate resolutions to these controversies, thereby avoiding the likelihood that individual cases will tie up the Court for years to come.

The injunction issued by this Court remains vital to Plaintiffs' ability to litigate the remaining issues. The scope of the injunction was not limited to assertions of "tribal rights," but encompassed Plaintiffs' entire Complaint, including the request for a declaratory judgment defining individual rights.

WHEREFORE Plaintiffs urge this Court to deny Defendants' Motion to Dismiss and Motion to Dissolve or Modify the Preliminary Injunction.

Dated: April , 1999

Respectfully Submitted,

Raymond D. Yowell, Chief
Allen Moss, Sub-Chief
Western Shoshone National Council
Indian Springs, NV 89018-210