SOUTH FORK, Nev. ? Under cover of darkness at the start of the Memorial Day weekend, armed Bureau of Land Management agents began confiscating cattle belonging to Chief Raymond Yowell of the Western Shoshone National Council and tribal member Myron Tybo.
A 6:30 a.m. telephone call May 24 from the chief Nevada brand inspector alerted Yowell that his cattle were being impounded. By the time he and other tribal members arrived at rangeland south of Elko, dozens of cows had been taken. Armed agents prevented them from entering the range where the roundup was taking place.
At the end of the day, 162 cows and calves bearing the brand of the Te-Moak Shoshone Livestock Association had been seized for transport to a BLM holding facility six hours away near Reno. They were sold at an Internet auction a week later to two unidentified California bidders for $27,444, a fraction of the $100,000 Yowell said they were worth.
“They just stole them,” Yowell, 72, said. “That’s the way I look at it. This was well planned for Memorial Day weekend so that we couldn’t do anything about it legally until after the holiday. That only left us three days to find an attorney before the auction.”
BLM contends Western Shoshone ranchers owe $2.5 million in unpaid grazing fees and seized the cattle for “trespassing” on public lands. Western Shoshone ranchers maintain the land belongs to them based on the 1863 Treaty of Ruby Valley and refuse to pay federal grazing fees.
Yowell eventually retained Glade Hall of Reno, who represents several non-Indian ranchers in disputes with BLM. Hall filed a temporary restraining order at 3:30 pm on May 30 to stop the cattle auction scheduled for the next morning, noting that his clients would suffer “irreparable harm” from the loss of their livelihood.
Hall argued that under the Fourth Amendment, BLM’s actions constituted an “unreasonable search and seizure.” He also asserted that the land from which the cattle were taken is still under Western Shoshone occupancy and title.
After the courts had closed that day, Glade learned that the judge assigned to the case had recused himself on grounds that there may be the “appearance of impropriety.” The case then went to U.S. District Judge Howard D. McKibben.
Just fifteen months earlier, the Western Shoshone National Council had filed a complaint of judicial misconduct against McKibben relating to lost court documents in a land rights case. Because of that, McKibben instructed Hall to ask if Yowell would object to McKibben handling the case.
But he cautioned that if Yowell objected, there would be no chance to win a restraining order because there was no time to present the matter to another judge before the 8 a.m. Internet auction.
Under those circumstances, Yowell did not raise any objections, and McKibben scheduled a 7:30 a.m. telephonic hearing to consider the merits of Hall’s arguments.
Just half an hour before the auction was set to begin, Hall was on a conference call with McKibben and five attorneys from the U.S. Justice Department familiar with the history of Western Shoshone litigation.
“I told the judge I had less than 24 hours to prepare a case and asked that we be granted additional time so that I could fairly represent my client,” Hall said.
But the motion was denied and the auction proceeded. Yowell lost 88 cows and 48 calves; Tybo lost 19 cows and seven calves.
Peter d’Errico, a law professor at the University of Massachusetts Amherst who has taught about the Western Shoshone case in his federal Indian law course, characterized the court’s actions as “very unusual.” The ordinary and reasonable procedure would be to grant a restraining order, he said.
“There’s nothing to be lost on the government’s side,” d’Errico said. “They already had the cattle, so what difference would it make to wait a few days?”
Hall said he was “outraged” by the way the government proceeded in the case.
“There’s discrimination in seizing cattle from Indian people compared to actions they’ve taken with non-Indians,” he said. “In two other cases where I represented non-Indian ranchers, they were given a series of escalating fines. BLM did not seize their cattle, and they were allowed to keep their resources. This is very bad public policy.”
On the day of the auction, some 30 non-Indian ranchers and American Indian protestors carried signs that read “BLM Cattle Rustlers” and “BLM Thieves” at the BLM livestock facility. They accused the agency of using heavy-handed tactics that were a direct assault on civil liberties and property rights of all Americans.
“Confiscating cows and violating people’s property rights goes against everything this country stands for,” said Ramona Hage-Morrison, whose family lost their herd to a BLM seizure in 1991. “They are taking people’s property and putting people out of business.”
Hankins, BLM district manager, said the BLM had the authority to act. “The Shoshones base their belief on the Treaty of Ruby Valley and don’t accept as valid the Supreme Court’s decision. But it is the position of the government that these are public lands. In our mind, there is not a question,” she said.
Hankins was referring to a 1985 Supreme Court case that held a transfer of funds from the Treasury to the Department of Interior constituted a “payment” to the Shoshone people, though it was never accepted by or distributed among the Western Shoshone.
Federal Indian law experts maintain that the issue of Shoshone land title was never addressed in the 1979 Supreme Court ruling.
“There have been 15 reported federal decisions on Western Shoshone land rights,” said Albuquerque, N.M. attorney Tom Luebben, who represents two of the seven Western Shoshone bands. “However, the status of Western Shoshone title was never actually litigated in any of those decisions.”
Meanwhile, the cattle are sold and gone.
Yowell said even if he wins the lawsuit he and other ranchers are filing against BLM, he can’t replace what was taken. His herd was bred from generations of stock that had survived the harsh, dry conditions of northern Nevada. They know where to find scarce water supplies and recognize edible plants in the region.
Yowell said he believes BLM took his cattle to intimidate Shoshone people and demonstrate that the federal government could do whatever it wants.
“Senator [Harry] Reid has been pushing for us to accept the Indian Claims Commission money so they can take title to the land and privatize it for mining corporations and companies who want the water rights. This is about intimidation,” he said.
Hall called BLM actions an “oppressive act by a federal agency to take away the right of Native Americans to earn a livelihood and pay for litigation to defend themselves.
“I really have a problem with the idea that they have to come in the middle of the night and round up cattle that belong in Indian people. Then they sell it seven days later on the Internet and get one-third of the value. This is abuse. It’s a superior power injuring the ability of Native Americans to get due process and conduct their fight fairly in the courts.”