Thanks to Paul Nellen <100445.3606@compuserve.com> in Germany for providing the text of the following letter about the Western Shoshone, which was sent by the European Parliament to the Secretary of the Department of the Interior, USA, in February, 1998.
Secretary of the Interior The Honorable Mr. Bruce Babbitt
U.S. Department of Interior
18th and C St, NW
Washington D.C. 20240 USA
Fax: 1-202-208-7251
Brussels, 24.2.1998 (24 February 1998)
Dear Mr. Babbitt,
We are writing to you in order to share our concerns regarding the struggle of the Western Shoshone Nation for justice within your country. According to information we received, the Bureau of Land Management (BLM) has again accused Western Shoshone ranchers of being in trespass by having grazed livestock on public lands without authorization. Consequently, the BLM has once again announced that it will confiscate Western Shoshone livestock, and has demanded payment of grazing fees of about one million $ US in total. The Shoshone settlements in question are Southfork, Wells, Odgers Ranch and the Dann Ranch. As you are probably aware, the case of Carrie and Mary Dann -both alternative Nobel prize winners- and the situation of the whole Western Shoshone Nation received considerable public attention in Europe during the years 1992 and 1993. Members of the European Parliament working on human rights issues dealt as well with this case during that time.
The topic was raised several times in meetings between US Parliamentarians and Members of the Europe Parliament within the framework of the Delegation for the Relations with the United States. Furthermore, Members of the European Parliament had first hand experience on the case through our former colleague Dr. Dieter Rogalla, then vice-president of the Legal Affaires Committee of the European Parliament. Dr. Rogalla visited the Western Shoshone in 1993 in order to personally study the situation regarding its human rights and legal implications and published his findings in a widespread report. In his report, he addresses legal inconsistencies in regard to U.S. court decision which concluded that the Western Shoshone had lost their land rights and resulting in the official assumption of United States agencies that Shoshone cattle is partly grazing on public lands which would oblige the Shoshone ranchers to pay grazing fees to the Bureau of Land Management (BLM).
On the basis of our analysis the legal aspects of the Western Shoshone case are as follows:
The territory of the Western Shoshone was officially defined in the Treaty of Ruby Valley which was concluded with the US government in 1863. According of the treaty, the territory includes 2/3 of the State of Nevada and small portions of California, Idaho and Utah. This treaty is not a treaty of cession but of peace and friendship, granting the United States safe passage through Shoshone Territory, allowing the establishment of mining and agricultural settlements, railway construction and the safe operation of mail and telegraph services within Western Shoshone Territory. The Shoshone furthermore agreed to eventually abandon their life as hunters and gatherers in order to become farmers and herdsmen on their lands. The treaty also refers to the possible creation of reservations but nowhere does it mention the cession and surrender of Shoshone land rights or an agreement that the Western Shoshone cannot make use of their lands anymore outside reservations oe in any other part of their defined territory.
Western Shoshone Territory today consists of reservations, communities without reservation status and ranches scattered over their vast territory. Therefore, the Western Shoshone Nation as a whole is not represented by Tribal Councils which can only speak for their specific reservations. Tribal Councils have been established by domestic US-law, the Indian Reorganization Act (IRA) of 1934, to replace the Tradition leadership of Indian Nations. However, with regard to the special situation of the Western Shoshone, the Western Shoshone National Council forms their elected representative body, where delegates of all communities, reservations and organisations can participate in the decision making process.(1)
In spite of the unchallenged validity of the Treaty of Ruby Valley, various U.S. domestic legislative acts unilaterally claimed that today almost 90% of Western Shoshone lands and resources gradually came under the control of the U.S, Department of Interior and its branches, such as the BLM, or the Department of Energy (the Nevada Test Site was established in 1951 on Western Shoshone Territory). However, these acts still did not cede property or treaty rights to the United States.
This legally inconsistent situation not only occurred among the Western Shoshone but also among other Indian Nations within US borders. Thus, in 1946 the Indian Claims Act was ratified to resolve Indian claims to lands taken by the USA. The Indian Claims Commission (ICC) was founded to handle these claims by compensation only and thus finally legalizing the loss of land and treaty rights.
In this context it as to be noted that due to their status as wards, Indian Nations had no free choice of legal representation. Instead, contracts with lawyers were arranged and controlled by the Bureau of Indian Affairs (BIA) until 1968. In this manner, the BIA in 1947 arranged a contract between a Washington law firm and only one of die Western Shoshone bands, namely the Temoak Band, in order to file a petition in the Indian Claims Commission to solve the issue of their land rights as guaranteed in the Treaty of Ruby Valley. With this contract, the Temoak Band became the sole representative of the Western Shoshone Nation, of which it only was a small portion. This procedure was never authorized by the Western Shoshone a whole who on the contrary tried to stop the lawsuit. Their effort to stop the proceedings and dismiss the Washington claims attorneys were denied by the Claims Commission and the U.S. Department of Interior itself.
However, as a result of the Temoak Petition to Indian Claims Commission, the Western Shoshone were meant to be compensated against their will for land they allegedly lost in 1872. For the valuation of the land the ICC and the claims attorneys stipulated a fictitious date of taking by "gradual encroachment" (1872). This Argument is disproved by the fact that 90% of Western Shoshone Territory is officially regard "public land" and is not in private non-indian hands. Despite these facts, in 1979, the Court of Claims awarded $26 Million U.S. for the taking of Western Shoshone land, but more than 80% of the Western Shoshone voted against accepting e money which still remains in the U,S. treasury. In December 1991, the 9th Circuit Court even ruled that the claims award, which the Shoshone never accepted, has also extinguished subsistence rights like the right to hunt, fish and gather.
On grounds of the findings by the Indian Claims Commission, whose procedure can certainly be regarded as questionable and subsequent rulings of U.S. Courts based on the ICC decisions, the BLM feels authorized to label Western Shoshone cattle ranching on their own lands as "unauthorized livestock grazing on public lands" and thus considers the payment of grazing fees a just obligation for Western Shoshone ranchers and herdsmen. However, the legal inconsistencies of the case elaborate further: In the course of the Claim proceedings another case o Western Shoshone land rights emerged. Mary and Carrie Dann, members of an extended Western Shoshone family called the Dann Band and Alternative Nobel Peace Prize Winners, have their ranch in Crescent Valley in the heart of Western Shoshone Territory. In 1973, they were approached by the BLM to apply for grazing permits and to pay grazing fees. They argued that their cattle is grazing on Western Shoshone land, yet they were sued for trespassing in 1974 - a case which is known as "USA vs. Dann".
In April 1980 the Federal District Court of Nevada ruled that the Dann still own the land when they were sued for trespass, but that they lost it in December 1979 due to the Claim award - which they never accepted. However, from now on it is presumed in the proceedings that the award extinguished Western Shoshone land rights.
When this case reached the Supreme Court, the Danns argued that the United States would lack proof that they legally obtained title to Western Shoshone lands - which even the Indian Claims Commission only could justify by assuming "gradual encroachment" on their lands. However, the 9 Circuit Court argued that "payment of the award established conclusively that a taking occurred" - thereby again ignoring the fact that the money still rest in the U.S. treasury . The court even ruled that the Danns are banned from raising the issue of the title to their lands . At the same time, the decision allows the Danns to graze only 21 head of cattle. According to a study on land use, already in the 1970s a ranch with less than 500 head of cattle could hardly exist in Nevada. Getting personally acquainted with the land rights- and treaty Situation in Western Shoshone Territory, Dr. Rogalla concluded that the Western Shoshone are in danger of losing their self sufficiency and subsistence, to become instead a people without a and base and thus dependent on welfare.
In the meantime, the case of the Western Shoshone also received international attention and has become widely kown within those United Nations bodies dealing with Indigenous issues and human rights. In his "Study on treaties, agreements and other constructive agreements between States and indigenous populations" (UN Document E/CN.4/Sub.2/1992/32), the Special Rapporteur, Dr. Miguel Alfonso Martinez, raised the issue of violations of Western Shoshone treaty rights and the proceedings of the Indian Claims Commission (first progress report). He subsequently concluded, "The Treaty of Ruby Valley (1863, 18 Stat. 689) between the Western Shoshone Nation and the United States continues to be abrogated by actions of the United States Bureau of Land Management". (Third progress report; UN Document E/CN.4/Sub.2/1996/23)
UN Special Rapporteur Erica-Irene Daes also referred to the case of the Western Shoshone in the framework of her "Preliminary working paper Indigenous Peoples and their relationship to land" UN Document E/CN-4/Sub, 1997/17, 20 June 1997). She analyses the case as follows, "A particular problem that has been repeatedly brought to the attention of the Commission on Human Rights and the Subcommission is the use or misuse of claim procedures to deprive indigenous peoples of their rights or their claimed rights to land resources. .... When such claims are taken to conclusion and award of compensation is made, the payment of the award effectively extinguishes the indigenous title to the land in question. This has occurred even in situations where the Indian nation or tribe is still in possession of the land. Thus, these "claims" processes are actually continuing to deprive Indians of their lands.
The problems created by fraudulent and improper claims are aggravated by de lack of proper legal procedures in the claim process. Processes such as that of the now defunct Indian Claims Commission in the United States did not ensure that claimants had proper authority to act for the tribe concerned. Procedures did not give the tribes concerned proper notice or opportunity to be heard. The Commission in more than one case permitted lawyers to act in direct opposition to their nominal client tribes and even permitted lawyers to carry on money compensation claims after the claimant tribes had dismissed the lawyer in an effort to stop the claim.
Although the Indian Claims Commission itself no longer exists, the cases that it handled and the problems it created continue. Some notable cases that remain unresolved are the Black Hills claim ... and the Western Shoshone case ... . In the latter case, some Western Shoshone are remained in possession of certain areas of the land supposedly taken by United States and are resisting government efforts to interfere with their use of the land."
Conclusion.
In light of the various investigations (conducted by Members the th European Parliament as well as by Unit Nations Special Rapporteurs) of the legal implications of confiscating Western Shoshone livestock and demand grazing fees from the owners of such cattle by the Bureau of Land Management one needs to conclude the following: Western Shoshone land rights are based on the Treaty of Ruby Valley concluded in 1863. The validity of Western Shoshone land and treaty rights as such has been confirmed by the Federal District Court of Nevada ruling of April 1980 according to which the Danns still owned their land when they were sued for trespassing by the BLM in December 1974. The only court argument for alleged loss of Western Shoshone title are the proceedings of the Indian Claims Commission which - as documented inter alia in two United Nations reports - amount to a miscarriage of justice. On the grounds of the findings of the Claims Commission, Mary and Carrie Dann have even been barred from ever raising again the issue of title to their lands.
Moreover, we have received information on further increase of conflict by the BLM: On February 19th, the Bureau of Land Management issued an "unauthorized use notice and order to remove", again accusing the Western Shoshone that they would be in trespass by grazing their cattle on so-called public lands and ordering them to remove their livestock. Furthermore, the BLM announced that "failure to comply with the notice may result in impoundment of unauthorized livestock". However, the BLM gave the Shoshone a five day deadline to present documentation why they do not consider themselves making unauthorized use of "public lands". On February 23, the Western Shoshone National Council along with members of several tribal councils presented such legal documentation to the BLM in Elko, Nevada. These documents included the Northwest Ordinance of 1787, the Treaty of Guadeloupe Hidalgo of 1848 (and in particular article 11), the Nevada Territorial Act of 1867 and the Treaty of Ruby Valley itself. Nevertheless, there might be an increasing danger of implementing BLM demands by force.
In light of this situation we would urge you to deal with the issue of Western Shoshone title to their lands by entering into negotiations with the legitimized successors of the Western Shoshone entity which signed the treaty 1863 on the basis of the continued validity of the Treaty of Ruby Valley. Such negotiations would certainly contribute to a just conflict solution between both parties instead of viewing the Bureau of Land Management as the appropriate agency of the Department of Interior to take action on the ground. The fact that the Western Shoshone never ceded or sold their land nor accepted compensation as imposed on them by the Indian Claims Commission needs to be officially accepted and implemented in the relationship between the Western Shoshone and federal agencies. Thus, we call for a halt on further BLM attempts to confiscate Western Shoshone livestock and demand grazing fees from Shoshone ranchers living in the Shoshone settlements of Southfork, Wells, Odgers Ranch and Dann Ranch.(2)
The interest and involvement of United Nations bodies clearly show that the case of the Western Shoshone raises a human rights issue. It would be appropriate, within the framework of the "International Decade for the World's Indigenous People" (1995-2004), to solve an issue relating to one of the principle concerns Indigenous peoples worldwide, namely landrights.
Undoubtedly, the United States of America as "the cradle of democracy" can provide a role model of conflict resolution between Indigenous peoples and nation states, by acknowledging existing treaty and land rights as in the case of the Western Shoshone.
We certainly hope to further communicate with your office on this matter.
Yours sincerely,
Nuala Ahern, MEP Hiltrud Breyer, MEP Delegation for Relations with the US Committee on the Environment
1) We are aware that the Tribal Councils of Duckwater, Temoak and Yomba withdrew from the Western Shoshone National Council. However, according to our information. The people of Yomba requested to be represented in the National Council regardless of the withdrawal of the Tribal Council and had their request granted. Although the Temoak Tribal Council did not return to the National Council, it nevertheless cooperates with this body.
2) We are aware of the fact that in the meantime the Duckwater and Yomba Tribal Councils are cooperating with the BLM due to continued pressure of this agency. However as can be clearly derived from the legal facts as explained above, such cooperation of single tribal councils does not solve the overall issue of continued land and treaty rights of the whole Western Shoshone Nation - and thus hardly can serve as a positive example of conflict resolution of this matter for the Southfork, Wells, Odgers Ranch and Dann Ranch communities or the Western Shoshone National Council as a whole.