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by Thomas E. Leubben
Late last year, Prime Minister Bob Hawke revived discussion on the topic of negotiating a Treaty or 'compact' between Aboriginal Australia and Australia. Such an agreement would provide abase in international law for the recognition of Aboriginal rights, including land rights.
At this formative stage of the dialogue over legal recognition of Aboriginal rights, it may be instructive to take a comparative look at the history and present status of the land rights struggle of another indigenous people. In this article, Thomas E. Leubben, examines the 35 year battle of the Western Shoshone Indians for their ancestral lands and sovereignty over these lands.
'Defeat seems out of place in the vast emptness of Crescent Valley, Nevada'. So began a network television story about Mary and Carrie Dann, two Western Shoshone Indian ranchers, on the day they went before the United States Supreme Court to defend themselves in a trespass case filed against them by the United States Government. In effect, the Danns are defending Western Shoshone indian title to 30,000,000 acres of Western United States. The ancestral lands of the Western Shoshone Nation run from the Snake River in Idaho all the way through Nevada into Southern California.
Felix S.Cohen, a United States Government Solicitor who is widely recognized as the first scholar of federal Indian law in the United States, wrote in 1947 that original Indian title is recognized and protected under American law. He also noted that Indian title to certain portions of the Western United States remains (1947) unextinguished. Nonetheless, after winning twice in the Federal Court of Appeals, the Dann sisters lost 9 to 0 in the Supreme Court. What went wrong?
What went wrong was the Indian Claims Commission Act of 1946. Intended by Congress to be remedial legislation providing a forum for the adjudication of centuries old wrongs against Native Americans, including land takings, the Indian Claims Commission Act has become an engine of destruction to otherwise valid aboriginal titles and a means for the United States to quiet title in itself to more than one hundred million acres of Native American land at 19th century prices.
In 1863 the United States entered into a solemn treaty of peace and friendship with some of the many independent, extended family bands that then comprised the Western Shoshone Nation. The Treaty did not cede any Shoshone lands to the United States. Instead, it provided safe passage for whites (rights of way) through Shoshone country. This provided the United States, which was engaged in a civil war with the Confederate States of the American South, access to gold in California needed to finance the war. Incidentally, the Treaty allowed whites to establish mines, and ranches in support thereof, in Shoshone country in case minerals were discovered there. In general, however, the Federal Government wished the Shoshones to remain self-sufficient in their own country by continuing their traditional hunter-gatherer lifestyle or by becoming herdsman.
In 1946, partly in recognition of the contribution of Native Americans on the Battlefields of WW II, Congress established the Indian Claims Commission (ICC) to adjudicate claims against the United States for money damages for a wide variety of wrongs done to Indian Tribes, including the taking of lands without payment. In 1947 the Bureau of Indian Affairs, an agency of the Federal Government responsible for carrying out federal programs benefitting Indians and for implementing the fiduciary duties of the Government as Indian trustee, told the Western Shoshones that the Government took their land (at an unspecified date) and they should file a claim for compensation in the ICC. Out of several independent Western Shoshone tribal governments one accepted that advice and hired claims attorneys who filed such a claim. There was always a lot of confusion among the Shoshones about what the claim was for. Many Shoshones understood the claim was for wrongs done to the Indians, such as rape of women by whitemen, the driving away of game and the extermination of the beaver for their pelts; not compensation for the land itself. Many Shoshones, perhaps a majority, opposed the claim altogether because they were afraid it meant selling the land they still used and occupied, and because taking money for the land would be a grave violation of their native religion. They protested that the 1863 Treaty was still valid and that their lands were never taken. The claims attorneys and the BIA always assured them, however, that the claim was for ancient wrongs and would not affect any current land titles.
The claim was filed in 1951. In a 1962 interlocutory decision, the ICC found that all Western Shoshone lands were taken by gradual encroachment of white settlers and unspecified acts of the Federal Government inconsistent with continued Shoshone ownership. In fact, ranches, mines and a few towns were established by whitemen in the vast expanse of the Great Basin Desert which is Shoshone country, leaving the vast majority of Shoshone lands vacant and unoccupied. Limited occupancy of Shoshone land by white people is consistent with the terms of the Treaty, but overreaching by the Federal Government to claim ownership of all Shoshone lands is not.
The Supreme Court has held that aboriginal title can be lost in only three ways: 1) an Act of Congress evidencing a clear intent to extinguish title to specified lands, 2) official Indian abandonment or cession (Indians cede land by treaty or ask for and receive a reservation smaller than or different from their aboriginal title lands) or 3) conquest by the United States in a just and lawful war. United States v. Santa Fe Pacific R. Co.[1942] USSC 12; , 314 U.S. 339 (1941).
The ICC was unable to establish a date of taking for the Shoshone lands because there was no event which legally extinguished title; in fact , the Government literally forgot to steal it. Since the ICC provided no date upon which the land could be appraised for the purpose of determining compensation, the attorneys in the case stipulated a valuation date of July 1, 1872.
In 1976 the Temoak tribe of Western Shoshone Indians, the original and only claimant in the ICC case, concluded that the Western Shoshone Nation still owned its aboriginal lands and that the ICC case posed a serious threat to the integrity of the title. The Tribe terminated its claims attorneys and asked the United States Interior Department Solicitor, as counsel for the United States as Indian trustee, to advise them whether aboriginal title was unextinguished. The Interior Department never answered. The case proceeded to judgment despite the termination of the Tribe's contract with its claims attorneys.
On December 6, 1979, the United States Court of Claims, to which the case was transferred when the ICC was abolished in 1978, rendered a final judgment in the case for less than $27 million. This amount included $9 million for the land itself, $12.5 million for mineral (subsurface) rights and $4.6 million for the value of minerals removed prior to July 1, 1872, the date of valuation. The judgment did not include interest which the money would have earned for the Western Shoshones had it been paid in 1872. This is because the United States Supreme Court has held that the Fifth Amendment to the United States Constitution does not apply to aboriginal title. Tee-Hit Ton Indians v. United States, [1955] USSC 24; 348 U.S. 272 (1955). The Fifth Amendment requires just compensation for land takings by the Government pursuant to its power of eminant domain. Nor did the judgment include any adjustment for the devastating effects of inflation during the 107 years between the date of valuation and the date of compensation. The value of the land in 1979 exceeded $2 billion
On December 19, 1979, the Secretary of the Interior Department received a check from the Treasury Department in the amount of the judgment. The secretary, purporting to act as trustee for the Shoshones, established a trust account to hold the money for the Shoshones. The Shoshones refused distribution of the money on a per capita basis as provided by statute, and a new Act of Congress is now required to release the money. The interest-bearing account has grown to more than $50 million.
Mary and Carrie Dann are Western Shoshones who raise livestock, as contemplated by the Treaty on Shoshone ancestral land in Central Nevada. In 1974 the United States sued the Dann sisters for trespass, seeking damages and an injunction against further grazing on lands claimed by the Govemment.
The Dann sisters, who head a traditional Western Shoshone extended family band, defended on grounds that Shoshone aboriginal title remains unextinguished, and the 1863 Treaty protects Shoshone land rights and is still in full force and effect. The Government stipulated the continuing validity of the Treaty, but claimed extinguishment of title as of 1872 as a result of the res judicata and collateral estoppel effect of the 1962 ICC decision. The district court agreed, but was reversed on appeal in 1976 on the grounds that since the ICC proceedings were not yet final, res judicata and collateral estoppel could not apply. United States v. Dann (Dann 1)[1978] USCA9 290; , 572 F.2d 222 (9th Cit. 1979).
On remand, the district court delayed trial on the issue of title until the December 6, 1979 final judgment of the court of claims. Following the 1979 judgment, the district court held that the judgment itself extinguished aboriginal title. It denied the Government trespass damages, saying that the land belonged to the Shoshones until the judgment, but enjoined further grazing because title passed to the United States on the date of judgment.
The appeals court reversed a second time on the basis that since the Interior Secretary was holding the money, and an Act of Congress would be required to distribute the fund, no paymentt had occurred which would trigger the discharge provision of the Indian Claims Commission Act.[1] The appeals court also held that the general application of the United States public land laws did not extinguish Indian title.
When the Government sought review in the United States Supreme Court it did not ask the Court to decidewhether Shoshone title was extinguished. Instead, the Court was asked to determine whether the Shoshones were paid for the land. The Supreme Court unanimously reversed, holding that the trafer of funds to the Interior Secretary as trustee constituted constructive payment of the Shoshones and triggered the discharge provision of the ICCA. The Court remanded for further proceedings, but provided no guidance to the lower courts as to a final resolution, other than to note that the Danns also claimed "individual [as opposed to tribal] aboriginal title."
At the outset of the lawsuit the Government claimed that it owned the land. On appeal in Dann II, however, it changed its position. It now claims that the Western Shoshonesare simply precluded from asserting tribal title because of the payment and discharge. Practically speaking, this means the Shoshones lost their land rights in 1979 when they were paid. The Government wants to avoid any adjudication of whether or when title was actually extinguished, however, because that might mean that the Shoshones are owed the value of the land as of 1979, instead of 1872. This could amount to $3 billion or more instead of the $26 million awarded.
In the summer of 1986 the Government claimed the Dams livestock were causing irreparable harm to the rangelands and sought a preliminary injunction terminating their grazing operations.[2] The Government claimed that the Danns assertion of tribal title of the Western Shoshone Nation was precluded by the constructive payment, and that the Danns could not have established indiviual aboriginal title on the basis of actual use and possession because the public land laws requiring grazing permits were in effect beginning in 1934.
The district court held the the Treaty of Ruby Valley is still in full force and effect, but the Dann sisters are only entitled to the grazing rights they had established as individuals by actual use and possession prior to the 1979 judgement. Consistent with the Government's position, the court did not hold that the tribal title was ever extinguished; its assertion is simply precluded. As of this date, both sides have appealed (Dann III).
Since 1980, three other Western Shoshone communities have refused, along with the Dann Band, to pay grazing fees to the Federal Government. Despite the Government's apparent victory in the Supreme Court, the Shoshones are defiantly grazing approximately 5,000 head of livestock on approximately 3,000,000 acres of land claimed by the Government, and are continuing their traditional hunting and gathering activities throughout their ancestral homeland.
The potential significance of the Govemment's inability to make the Shoshone title completely disappear has surfaced in connection with increasingly well-attended anti-nuclear protests at the United States' nuclear weapon test site at Yucca Flats, Nevada. The Test site was created by Executive Orders withdrawing the area from unappropriated public domain in1953. Executive Orders are ineffective to extinguish Indian title, and the Site is within the area of the Treaty of Ruby Valley. The Western Shoshone National Council issued entry permits to protesters who were arrested and charged by the State of Nevada with criminal trespass for entering the Nevada Test Site without Federal Government authorization. To convict, the District Attorney must prove that the Government owns the land. Since the protesters are non-Indians who were not paid for the land in 1979, and the State of Nevada does not receive the benefit of the discharge, the protesters are not precluded from asserting Western Shoshone title as a defense to the criminal trespass charge. Because several hundred protesters have been arrested and the demonstrations are growing in magnitude month-by-month, the still-not-dead Shoshone title may yet prove to be a problem for the Government.
The fundamental problem for the United States Government is that it is simply unwilling to accept the fact that it has not legally extinguished or acquired the Indian title. Once its existence has been formally recognised, land title in Anglo-American law is a persistent concept. The Government seems to be relying on the notion that it can suppress the Shoshone title long enough to claim the vacant land without a formal adjudication or conveyance. This might work if no one noticed. The Shoshone title is accumulating a growing and diverse constituency, however, and sleight-of-hand may prove to be an insufficient strategy.
Western Shoshone also contend that their aboriginal hunting, fishing, and gathering rights remain unextinguished. The State of Nevada, apparently relying on the same erroneous assumptions as the Federal Government, that the 1863 Treaty is meaningless and the Shoshones somehow lost their land title and all other aboriginal rights, has frequently prosecuted Shoshones for failure to obtain State hunting licences and abide by State-established hunting seasons. Most of the arrests have been for taking deer, which are a traditional subsistence food for the Shoshone people.
In 1986 the Western Shoshone National Council sued the Nevada Attorney General and Nevada game officials to enjoin the unlawful prosecutions. This lawsuit represents a major step forward because it is the first time the Shoshones have been able to -take the offensive in asserting their land rights. The Indians contend that whatever the effect of the constructive payment of the judgment in the ICC case on their underlying land title, it did not affect their subsistence rights because it did not specifically include compensation for those rights. The Shoshones are also relying on the most recent district court ruling in the Dann case that rights actually exercised by Shoshones both before and after the 1979 payment (possessry rights) are not precluded or lost as a result of the payment.
In December 1987 the State stipulated to a preliminary injunction which prohibits enforcement of its game laws against Shoshones within Shoshone traditional territory, including more than half of Nevada. The Stipulation also recognizes the right of the Western Shoshone Nation to regulate hunting and fishing pursuant to its laws. Shoshones must carry identification cards and report any deer they take to the Western Shoshone Game Commission, which then reports totals to the State for game management purposes.
The Western Shoshones traditionally did not have a central government. The Western Shoshone National Council was organized in 1984 and recognized by the Federal Government for the purpose of conducting negotiations for a legislative agreement resolving Western Shoshone land rights issues. It includes representatives from each of the otherwise independent Western Shoshone tribal governments and non-govemmental Shoshone political organizations. As a necessary result of the Stipulation in the hunting case, the Western Shoshone National Council has undertaken national governmental functions. The hitherto inchoate sovereignty of the Western Shoshone Nation has been made into legally-recognized and significant political authority.
Although the Stipulation only provides a preliminary injunction pending litigation of the continuing existence of Western Shoshone subsistence rights, the Western Shoshone National Council believes that if the working relationship established between the Shoshones and the State proves successful, the State may agree to a permanent injunction. The injunction may also help force the Federal Government to abandon its position that the Western Shoshones retain no aboriginal or treaty land rights whatsoever.
The Western Shoshone believe that something like a new treaty with the United States must be negotiated and enacted by Congress to resolve their land rights and money claims against the Government Congress must act to provide for the distribution or disposition of the $26 million judgment fund (now grown to over $50 million with interest) in any event.
The incentive for the Government is its inability to conclusively quiet Western Shoshone aboriginal title in its favor after 35 years of litigation and 14 reported case decisions. A degree of embarrassment about its shameless efforts to defraud the Shoshon people and leave them landless and dependent should also be a factor but apparently isn't.
With the encouragement of the Congressional delegation from the State of Nevada and the Senate Select Committee on Indian affairs, The Interior Department agreed in 1985 to negotiate. Although several formal meetings have taken place, negotiations are stalled because of the Govemment's refusal to acknowledge that the Shoshones still have any aboriginal or treaty land rights, and the Shoshones' unwillingness at this stage of negotiations to take a formal position on how much land they should ultimately have.
The negotiation objectives of the Western Shoshone National Council have been stated as follows:
1) To maximise the Western Shoshone land base, including mineral rights.
2) To obtain confirmation of water rights adequate to serve Western Shoshone lands.
3) To confirm aboriginal hunting, fishing and gathering rights (subsistence) throughout Western Shoshone ancestral territory.
4) To obtain equitable compensation for trespass damages to Western Shoshone lands, including an accounting of monies collected by the United States from leasing, grazing and commercial activities on Shoshone lands.
[1] 25 U.S.C. S70u. Payment of claim after final determination; adverse determination as bar to further claims.
The payment of any claim, after its determination in accordance with this chapter, shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy.
[2] By 1986. after twelve years of inconclusive litigation, the Dann herd had grown to an estimated 2000 head of cattle and horses.
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1988/22.html