Last week, this column criticized the United States’ ”Periodic Report” to the United Nations Committee on the Elimination of Racial Discrimination (”The United States’ fancy footwork on the Western Shoshone treaty,” Vol. 27, Iss. 3), and this week’s column continues to critique the U.S. Report to the CERD.
In Section 336 of the report, we find an explanation of Indian land title: ”At the time the United States was founded, Indian tribes held their land in ‘aboriginal title,’ which consisted of a right of use and occupancy.” What the authors of the report fail to explain is that the term ”aboriginal title” is a colonizing conception not specifically constructed by the U.S. Supreme Court and imaginatively projected onto Indian nations until the 1823 in the Supreme Court ruling Johnson & Graham’s Lessee v. M’Intosh. The basis of the concept of ”aboriginal title” in the Johnson ruling was the religiously racist notion of a ”discovery” by ”Christian people” of lands inhabited by ”natives, who were heathens,” and, the court added, ”savage” and ”uncivilized.”
The purpose of the conception of ”aboriginal title” in the Johnson ruling was to posit that political powers or countries of European origin, including the United States, asserted and possessed ”ultimate dominion” but that Indian nations possessed a right of ”mere occupancy.” The United States considered the ”occupancy” of Indian nations as being devoid of a political dominion capable of preventing European powers from claiming and overtaking Indian lands by granting those lands to others, even while the lands were still inhabited by and in the possession of the original inhabitants.
Without acknowledging that the sentence is premised on the Johnson ruling, the U.S. Report to the CERD goes on to say that ”[t]oday, federally recognized tribes hold virtually all their land in fee simple or in trust [with the United States as trustee holding legal title and the tribe exercising all rights to occupation or use]. In either case, tribal holdings of land are fully protected by law.” The U.S. report does not explain that the idea of the United States ”holding legal title” to the lands of ”Indian tribes” is predicated on the racist Christian discovery doctrine as expressed in the Johnson decision.
The explanation of ”aboriginal title” in the U.S. Report is a prelude to the United States’ explanation of the establishment of the Indian Claims Commission in 1946. It is by means of the proceedings of the ICC that the United States hopes to explain away Western Shoshone human rights issues that the CERD has raised with the U.S. government. ”The wording of the [Indian Claims Commission] act and its legislative history,” says the U.S. Report, ”make clear that only financial compensation was contemplated by Congress; the ICC had no authority to restore land rights that had been extinguished.”
But a question arises: How could the land rights of the Western Shoshone nation have been ”extinguished” if the Ruby Valley Treaty, as the United States suggests, really does have ”the force of federal law,” and if the lands within the treaty boundaries are ”fully protected by law”? The United States lamely attempts to skirt such sensible questions by claiming that the Ruby Valley Treaty never really recognized the Western Shoshone nation as having any land rights. It is a treaty with ”the force of federal law” behind it, but it doesn’t mean anything.
In an 18-page detailed summary of the Western Shoshone case, the U.S. Report explains how ”in 1974, the United States filed a judicial action for grazing trespass against the Dann sisters … In defense, they claimed that they owned the land on two grounds (i) the lands were the aboriginal lands of the Western Shoshone and should be recognized as still being owned by the Western Shoshone; and (ii) as individuals, they held aboriginal title to these lands.”
The issue, the U.S. Report stated, ”went all the way to the U.S. Supreme Court, which held in a 1985 decision that the Western Shoshone land title had been extinguished at the time that the United States paid the award for the land into the registry [1979].” This sentence contains a significant error. In 1979, the 9th Circuit Court of Appeals had stated unequivocally that ”during the litigation before the [Indian Claims Commission], the extinguishment question was not necessarily in issue, it was not actually litigated, and it has not been decided.” In its 1985 Dann ruling, the U.S. Supreme Court reiterated and never contradicted the 9th Circuit Court of Appeals’ statement that the extinguishment of Western Shoshone title ”was not actually litigated,” and ”has not been decided.”
In fact, in U.S. v. Dann, the Supreme Court said that it granted certiorari to resolve the question of whether the Western Shoshone had been paid when the U.S. government paid the Secretary of the Interior (i.e., when the U.S. government paid itself), on behalf of the Western Shoshones. When payment was made to the Secretary of the Interior did it thereby fulfill one aspect of Section 22(a), which is the finality provision of the Indian Claims Commission Act? Given that the narrow issue before the court was whether payment had been made to the Western Shoshone, the U.S. Supreme Court never ruled on the matter of whether Western Shoshone title had been ”extinguished.”
Clearly, the U.S. Report to the CERD demonstrates that the United States lacks respect for the fundamental human rights and treaty rights of the Western Shoshone people. Hopefully, the distinguished members of the CERD will take notice.
Steven Newcomb, Shawnee/Lenape, is the indigenous law research coordinator for the education department of the Sycuan Band of the Kumeyaay Nation, co-founder and co-director of the Indigenous Law Institute and a columnist for Indian Country Today.