You could assemble any group of eighth graders, present them with the facts
in the Western Shoshone case, and they would easily determine that for
justice to be served, Shoshone land rights must be respected. They could do
what the U.S. Indian Claims Commission Courts, the U.S. Congress, and the
President could not do: Identify an obvious swindle and denounce it.
Children would see the injustice being perpetrated here.

You could take any group of adults who are not U.S. citizens: people from
Asia or Europe or Africa, and present them with the fact pattern here, and
they would quickly determine what is just, and what is unjust. The facts
are that clear. Anyone can understand them. A just resolution would not be
hard to arrive at.

In 1863, the Shoshone Nation had undisputed ownership of a vast area of
land encompassing parts of Utah, Idaho, California and a lot of Nevada.
They signed a treaty, the Treaty of Ruby Valley, in which they gave up no
land or other resource rights but did allow other people passage over their
lands. They have never agreed to sell or otherwise diminish their rights to
this land. The treaty, which did nothing to diminish these rights, is
called the Treaty of Ruby Valley, the supreme law of the land.

In 1872 absolutely nothing happened to change this. No Shoshone leaders, or
even non-leaders, ever met with U.S representatives to talk about the
transfer of title of this land, comprising 60 million acres. United States
people, in their rush to get to California, never approached the Shoshone
to obtain land rights or natural resources rights. What happened in 1872
was, in every important way, a non-event. The Shoshone started the year
will full ownership, and ended the year with full ownership of their
traditional lands. No one seriously disputes these facts.

The United States Congress gave considerable thought to the eventual
extermination of Indian nations as nations during the 1940s. The treatment
of the Indians was one of the blights on the American record, and there was
a lot of leftover business resulting from the blatant theft of Indian
lands. In 1946 Congress established the Indian Claims Commission so it
could “settle” these land claims to its own satisfaction and to pave the
way for its developing “termination” policy. It was to be, for Indians, a
legal final solution. Termination would end the legal existence of Indian
nations. But first, to give at least a legal veneer to the proceedings, the
Indians would be compensated. Not at fair market prices, but at the alleged
value of the land at the time the U.S took (stole) it, mostly pennies per
acre.

The ICC rules were one-sided, to say the least. In no case was land to be
returned, no matter how egregious the conditions of acquisition. It was not
anticipated that new land thefts would be perpetrated, but in America the
possibility always exists. In 1973 the ICC addressed the Shoshone case,
finding that “gradual encroachment,” which we could assume was illegal,
gave the United States title to the land. The Shoshone were awarded $27
million in compensation, which the Shoshone have refused. The money has
been kept in the bank until now. It has grown so that today each Shoshone
stands to receive around $30,000. The land has produced billions in
resources and mining companies have been very influential in urging
Congress, and President Bush, to pass legislation forcing payment on the
Shoshone and ending the conflict in favor of the people who took the land
illegally in the first place. The Commission expired in 1978. Cases that
were not settled by that time were transferred to the Court of Claims.

In 1982 the Court of Claims found that the ICC had no evidence the Shoshone
land had ever been transferred into anyone else’s hands but then launched
into language that urged that no one who mattered (the Western Shoshone
obviously didn’t) wanted anything other than a date set designating when
Shoshone lands had been “acquired” and a money award offered and accepted.
Land rights, or any other rights, for the Shoshone were not to be
considered. The Court had made up its mind about the outcome before it ever
heard the case. Call it the Kangaroo Claims Court. The eighth graders would
have found in favor of the Shoshone. In the current environment, when this
case found its way into the political arena, the Western Shoshone found
themselves in Bush country. Indians versus mining corporations. It’s a no
brainer.

Despite the growing political influence of the Indian nations – much of it
the result of dramatic gains in gaming revenues – the effort to publicize
and support Western Shoshone rights in this case was disappointing. In the
late 1960s and early 1970s there was a lot of energy in the Indian country
around the need for unity and for differing groups to support each other.
When the early Europeans arrived, they found a land of many distinct and
separate nations, each with its own antagonisms, each insular. They used
this disunity to great advantage. Imagine if all the Indians had been
united as one people in 1619. Of course, at the time, there was no category
of people who acknowledged themselves as “Indians.” Eventually Europeans
came to call all the nations by that name, but it wasn’t until late in the
19th century that the Indians embraced the term. It was done under the most
oppressive of conditions. Rounded up on reservations, forcibly removed from
their families, packed in trains in scenes not unlike those of the Jewish
roundups during World War II, Indian children were transported hundreds of
miles from home. There, in the dark bowels of the Indian boarding schools,
their hair was cut and they were forbidden to speak their own languages or
practice their nation’s religion. Punished for being who they were, they
realized they were in this together. In the eyes of their oppressors, they
were Indians – the other. In those boarding school prisons a new identity
was adopted. There, for the first time, the tribes were united. There were
no Lakota or Arapaho or Oneida there. They had become, at last, Indians.

Indian unity is as important today as it has ever been. The American system
of justice did not do the honorable thing in the Western Shoshone case.
When a case such as this one comes up we must understand: We are all
Western Shoshone.

John C. Mohawk Ph.D., columnist for Indian Country Today, is an author and
professor in the Center for the Americas at the State University of New
York at Buffalo.