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WESTERN SHOSHONE LAND RIGHTS HISTORY  

The 1863 Treaty of Ruby Valley 

In 1863, the Western Bands of the Shoshone Nation entered into a Treaty of Peace with the United States. The treaty described the boundaries of Western Shoshone Country, comprising some 60 million acres extending from the Snake River in Idaho through Nevada into southern California. The Treaty did not cede title to any Shoshone lands, although it granted the U.S. certain rights-of-way, mining rights and the right to establish towns and ranches in support of mining. Additionally, the Treaty granted the President authority to establish permanent reservations for the Western Shoshones within their territory. Although the Treaty of Ruby Valley was ratified by Congress and remains in full force, no reservations were ever created under the Treaty. Western Shoshone title to their territory has never been legally extinguished. Nonetheless, and solely as a result of proceedings before the U.S. Indian Claims Commission, the Western Shoshone Nation has been deprived of virtually all of its lands. 

Indian Claims Commission Proceedings 

Western Shoshones retained counsel as early as 1932 to enforce the Treaty and their land rights. Nothing was done. Instead, in 1951, the Bureau of Indian Affairs (BIA) persuaded some Western Shoshones to file a claim before the Indian Claims Commission (ICC) seeking compensation for an alleged "taking"of all Shoshone lands. (Western Shoshone Identifiable Group v. U.S..) Throughout these proceedings (1951-1979), a large number of Western Shoshones protested that the Treaty is still in effect, that they still own and occupy the land, and that accepting compensation will amount to selling the land. Contrary to legal precedent, the claims attorneys insisted the Shoshones were wrong. Today, the Duckwater Shoshone Tribe, the Timbisha Shoshone Tribe, the Yomba Shoshone Tribe, and the Dann Western Shoshone Traditional Family correctly assert that they were never represented in, nor parties to, these proceedings. 

In 1962, the ICC held that Western Shoshones were "deprived of their lands" in the Nineteenth Century by "gradual encroachment of whites, settlers and others...." In the absence of a taking date, the attorneys stipulated July 1, 1872 as the "date of valuation" for purposes of compensation. In 1979, despite Shoshone attempts to stop the proceedings, the U.S. Court of Claims awarded less than $27 million - the 1872 value without interest - for a putative "taking". With interest since 1979, the Fund has grown to over $100 million. This Fund is being held by the Interior Secretary. 

Although the ICC lacked jurisdiction to adjudicate Indian title (jurisdiction was limited to awarding money damages for "ancient wrongs"), its decision ratified a presumption that a "taking" had somehow occurred. Those Shoshones who now seek a land settlement insist that the Shoshone Nation never understood or intended that the claim was for the taking of their lands, but only for damages for trespass and other wrongs committed by non-Indians.  

In 1974, the Western Shoshone Sacred Lands Association sought to broaden Shoshone representation in the ICC proceedings. It sought to exclude from the "taking" claim those lands not actually occupied by towns or white ranchers - some 16 million acres currently under Bureau of Land Management (BLM) and Forest Service control. Their request was summarily denied. The court noted in a footnote that the Shoshones could "postpone payment, in order to try out the issue of current title, ... [by] ask[ing] Congress to delay making the appropriation ... to pay the award."

In 1976, the nominal plaintiff in the case, the Temoak Bands Council, concluded that Western Shoshone title remained unextinguished and that action should be taken to stop the case before it was too late. The Temoak Council sought a stay pending a determination by the Interior Department Solicitor of the status of the Shoshone title, or an adjudication by a court with actual jurisdiction to determine the title. The Council also filed a separate quiet title action in federal district court in Washington, D.C.. The stay was denied, and after appeals were exhausted, the ICC case went to final judgment on December 12, 1979. The new action was dismissed. On appeal of the denial of the stay, the Court of Claims again directed the Shoshones to Congress: "If the Indians desire to avert the extinguishment of their land claims by final payment, they should go to Congress as recommended [in the earlier decision] .... The essential point of the matter is that the Temoakís true appeal is to legislative grace, not as of right to this court."

The Case of United States v. Dann 

Mary and Carrie Dann are Western Shoshones raising livestock on ancestral Shoshone lands in Crescent Valley, Nevada as contemplated by the Treaty of Ruby Valley. They are the leaders of a traditional Western Shoshone extended-family group. In 1974, the BLM sued the Danns for an injunction and trespass damages for grazing livestock on ìpublic domainî without a permit. In defense, the Danns asserted unextinguished Shoshone title and the Treaty. The case went before the U.S. District Court in Reno four times, the Ninth Circuit Court of Appeals three times, and the U.S. Supreme Court once. 

In 1974 the District Court held that the 1962 ICC finding of a taking by "gradual encroachment" was conclusive. In 1976, the Ninth Circuit reversed and remanded for a trial on the grounds that the ICC case was not yet final and not conclusive. The District Court waited several years, apparently for the ICC proceedings to become final, without granting a trial. In April 1980, the court held that Shoshone aboriginal title was good until extinguished by the final judgment in the ICC proceedings on December 12, 1979, five years after the U.S. sued for trespass. Both sides appealed.  

Immediately following the ICC award, the BIA began to develop a "judgment fund distribution plan" as required by the Indian Judgment Funds Distribution Act of 1973. When it became clear the BIA could not complete the plan within the statutory deadline, largely because of strong Western Shoshone opposition to accepting the judgment, the BIA asked the Senate Indian Committee for an extension. In view of the Dann appeal and uncertainty about the status of Shoshone title, the Committee rejected the BIA request. This put the judgment outside the purview of the 1973 Act. Congressional action is now required for distribution. 

In 1983 the Ninth Circuit reversed again, holding that Western Shoshone title was not extinguished by the ICC judgment because the money was never actually paid to the Shoshones. The Appeals Court also held that no other action by the Government prior to December 1979 could have extinguished title. The Government petitioned for Supreme Court review. 

The Government did not ask the Supreme Court to determine who owned the land. Instead, the Court was asked only to determine whether the Shoshones were "paid" within the meaning of the Indian Claims Commission Act. The Court held that the transfer of funds fromthe Treasury to the Interior Secretary on December 19, 1979 constituted "payment", whether or not the funds were ever accepted by or distributed to the Shoshones. The Court remanded for further proceedings without discussing whether the "payment" affected Shoshone title or justified the BLMís effort to eject the Danns. 

In September 1986 the District Court held that the Danns were "precluded from asserting Western Shoshone Indian title" as a result of the 1979 "[constructive] payment." Again, the "taking" and the title status were not actually litigated - the title was simply deemed "precluded." On cross-appeals, the Ninth Circuit affirmed, holding that "payment of the claims award establishes conclusively that a taking occurred." The court adopted July 1, 1872, the stipulated "valuation date," as the "most appropriate date" for the extinguishment. The court remanded, however, for a determination of whether the Danns held "individual aboriginal rights" established by actual use and occupancy prior to November 1934 when Nevada was closed to homesteading.  

At trial in June 1991 the Danns withdrew all defenses based on "individual aboriginal rights" on the grounds that Shoshone national land rights are the essential issue. They also restated their lack of faith in the fairness of the U.S. courts and their intention to continue occupying their ancestral lands. The court found them in trespass, but refused to grant the equitable (injunctive) relief sought by the Government or to levy penalties. The court limited the Governmentís remedies to the enforcement of applicable BLM grazing regulations, placing the Government in precisely its 1974 position when it initiated U.S. v. Dann. 

Current Status: Negotiations / Judgment Distribution 

Since 1980, several Western Shoshone Tribes and livestock associations have refused, along with the Danns, to pay federal grazing fees. Despite the Government's victory in the Supreme Court, Shoshones are grazing livestock on approximately 1,000,000 acres of "public domain" without permits, and are continuing their traditional hunting and gathering throughout their ancestral areas consistent with the Treaty and without regard to state law. 

Western Shoshone tribal governments and political organizations continue to believe that the Treaty of Ruby Valley guaranteed their land rights, and that they have been defrauded by the Government and the courts. When they tried to stop the ICC case and prevent it from "precluding" their title, they were told to go to Congress for relief. Neither Congress nor the Administration have responded. The Western Shoshones have a strong moral and international legal claim to a significant land base within their ancestral lands. The only way to accomplish this despite adverse U.S. court rulings is a negotiated, legislated land settlement. 

There have been two efforts to negotiate a settlement. In 1986 Western Shoshone delegations met several times with Interior Department representatives, including the Assistant Secretary for Indian Affairs, Ross Swimmer. Those negotiations ended when Mr. Swimmer announced that no Shoshone land would be returned. In January 1994 a large Western Shoshone delegation met with newly appointed Interior Secretary Bruce Babbitt to restart negotiations. At the urging of the Senate Committee on Indian Affairs and the Nevada Congressional delegation, Secretary Babbitt committed to form a federal team to negotiate a legislative proposal. Several meetings were held from 1994 - 1997. The Government's only proposal was to allow the Shoshones to purchase lands at fair market value from the BLM's land disposal list using the ICC judgment funds. In other words, the Shoshones could repurchase at current market value lands the Government acquired no earlier than 1979 for 15 cents an acre - the 1872 value. The Shoshones rejected this proposal and negotiations ended because the Government could not bring itself to make a fair or reasonable offer. 

The BLM continues to threaten the Danns, the Te-Moak Shoshone Tribe, the Yomba Shoshone Tribe and other Western Shoshone ranchers for payment of grazing fees. Since the Danns refuse to pay, the BLM has confiscated Dann livestock on two occasions. 

In May 1998 a group of individual Western Shoshones held two meetings, supported by the BIA, to organize an effort to get Congress to distribute the Docket 326-K Judgment Fund. Despite unequivocal opposition from the Temoak Bands Council and the Yomba Shoshone Tribe, and in direct violation of a 1994 Executive Memorandum and frequent public pronouncements of a policy of "government-to-government" relations with Indian Nations, the BIA is seeking distribution of the Fund with no land settlement.  

International Proceedings 

In 1993 the Danns filed a human rights complaint before the Inter-American Commission on Human Rights of the Organization of American States (Dann v. U.S.). The Yomba and Ely Shoshone Tribes intervened in this case as amicus curiae. The Complaint alleges U.S. failure to meet its obligations to protect Western Shoshone land rights, and challenges the U.S. to reform discriminatory legal doctrines that deny basic constitutional and human rights to indigenous American peoples.  

In response to the Danns' requests, the Commission issued "precautionary measures" against the U.S. on two separate occasions to halt BLM action against the Danns pending completion of the Commissionís investigation. (Copy attached.) The U.S. has never formally responded. On October 25, 1999 the Danns filed a request with the Commission to enter into a process of friendly settlement with the U.S.. The U.S. has not responded. 

Despite U.S. requests that the Commission declare the Danns' Complaint inadmissible, in September 1999 the Commission ruled the petition admissible. The Commission concluded that the Danns' claims state a prima facie human rights violation.  

On August 23, 1999 the Yomba Shoshone Tribe submitted a Request for Urgent Action to the Committee for the Elimination of Racial Discrimination (ìCERDî) under its urgent action / early warning procedure. The Ely Shoshone Tribe subsequently joined in this request. CERD was established by the International Convention on the Elimination of All Forms of Racial Discrimination, a United Nations treaty to which the U.S. is a party. The purpose of CERD is to monitor and review actions by states to fulfill their obligations under the Convention. 

The Request asserts that the rights of the Western Shoshones are being violated by the U.S. in a discriminatory fashion on the basis of their status as indigenous peoples. The Request asks that CERD direct the U.S. to halt actions threatening irreparable harm to the Western Shoshones and to enter negotiations with Western Shoshone leaders to resolve Western Shoshone land rights issues.

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