RUBY VALLEY, Nev. ? The protracted struggle of the Western Shoshone to preserve their homelands spans more than 140 years and includes five decades of costly court battles to prove that they still own and occupy the land.
Now their fight moves to Congress March 21 when the Senate Indian Affairs Committee hears testimony on a controversial bill that threatens to end the tribes’ legal claim to the land.
Senate Bill 958, sponsored by Sen. Harry Reid, D?Nev., is intended to distribute $128.8 million awarded to the “Western Shoshone identifiable group” by the Indian Claims Commission in 1979. It does not contain provisions for a land settlement.
Sen. Reid declined to make a fresh comment on the bill when called by ICT and referred to an earlier statement. “The Western Shoshone have waited long enough for the distribution of these funds,” said his June release.”The final distribution of this fund has lingered for more than 20 years, and the best interests of the tribe will not be served by a further delay in enacting this legislation.”
The problem is the majority of Western Shoshone people don’t want the money. They want their land.
The basis of their claim is an 1863 treaty that granted settlers certain rights?of?way when the U.S. government asked permission from the Western Shoshone Nation to pass through their homelands, mine for gold and silver and establish towns to support mining.
What is clear in the historical record is that the 1863 Treaty of Ruby Valley never ceded title to millions of acres of land in Nevada, Idaho, Utah and California. And despite decades of court battles and legal maneuvering, the question of title to the land has never been litigated.
Much controversy surrounds both the 1979 monetary judgment by the Indian Claims Commission (ICC) and a 1998 vote wherein a group of individual Western Shoshones worked with Reid to organize an effort to get Congress to distribute the ICC judgment fund.
Despite opposition from nearly all the Western Shoshone tribal governments, and in violation of a 1994 Executive Order on “government-to-government” relations with Indian nations, Reid’s bill seeks a per capita distribution of the judgment to those tribal members who will accept the money.
Attorneys representing Western Shoshone governments argue that the vote by an “identifiable group” of individuals to accept a monetary award is not the same thing as acceptance by the Western Shoshone as a nation or tribe.
Of more than 6,500 eligible tribal members, only 1,230 voted to accept payment of the ICC judgment and 53 voted against it. The vast majority, more than 5,200 Western Shoshone, didn’t attend the two meetings held in 1998 to conduct the vote.
“The Western Shoshone tribal future depends on getting an economically viable land base out of their ancestral territory,” said Tom Luebben, whose Albuquerque, N.M. law firm represents two of the nine Western Shoshone tribal governments. “They’ve tried desperately to salvage their land claim and the courts told them it was too late for justice and to go to Congress for help.
“The Interior Department has failed to negotiate a land settlement, and if Senator Reid’s bill is enacted, it will leave the Shoshones with no significant land base and disinherit future generations.”
Chief Raymond Yowell of the Western Shoshone National Council said the ICC lacked the authority to extinguish land title and that its jurisdiction was limited to awarding money damages for “ancient wrongs.”
“By what law did the United States acquire Western Shoshone territory?” he asks. “There have been 15 court decisions on this and federal district and appeals courts have decided several times that we still hold title to our territory and that the Claims Commission never litigated the issue of title.
“But we were blocked by the Supreme Court in its 1985 ruling in United States v. Dann when it decided that the claims award itself prevents us from defending our territorial title in court,” he said. “We have continually rejected the monetary award. It is our position that we will never accept an award for a taking that never occurred.”
According to the Indian Claims Commission in 1962, the land was taken by “gradual encroachment of whites, settlers and others.” No actual date of taking could be established, nor was the ICC able to identify the number of acres or specific areas where U.S. citizens encroached.
But attorneys who were later fired by the tribe stipulated July 1, 1872 as the “date of valuation” for purposes of compensation. The ICC’s decision was used to ratify a presumption that a “taking” had somehow occurred.
In 1979, despite Western Shoshone attempts to stop the proceedings, the U.S. Court of Claims awarded less than $27 million ? the 1872 value without interest ? to the tribe to be held in by the Interior Department. That amount has since grown to $128.8 million.
Legal scholar Milner S. Ball at the University of Georgia Law School observed, “The Supreme Court held a ‘payment’ had been effected, though the Indians received no money and opposed the conversion of their land. The trust doctrine was the device the Court struck upon for executing this maneuver.
“The United States was not only the judgment debtor to Indians, but was also trustee to the Indians. Therefore, the U.S. as debtor can pay itself as trustee, say this change in bookkeeping constitutes payment to Indians, and the Court will certify the fiction as reality.”
The Supreme Court’s decision “may be called a perversion of the trust doctrine because it eliminated the role of Congress, according to federal Indian law professor Peter d’Errico at the University of Massachusetts, Amherst, who sees an opportunity for an historical wrong to be made right.
“Congress retains the power to reinstitute the prior understanding of an Indian Claims Commission award, but Sen. Reid’s bill must be revised if it is to preserve Western Shoshone land rights,” he said.
As written, it contains a substantial deception and is unworthy of the Senate Committee on Indian Affairs. In the face of opposition from the Western Shoshone National Council, the bill should be rejected,” he said.
“The bill is an outright deception. The law is quite clear. Acceptance of an ICC ‘award’ extinguishes land rights. I suspect the language in the bill that claims that ‘accepting judgment funds shall not be construed as a waiver of existing treaty rights’ is political,” he said.
“It appears to have been crafted with an eye to deceiving Western Shoshones. It encourages them to believe that they can accept the claims ‘award’ without prejudice to their ongoing efforts to enforce the terms of 1863 treaty, and that’s simply not true.”
D’Errico said it is imperative for the Congress to deal honorably with Indian Nations under legal and ethical obligations of the U.S.
“If this bill passes, what rights will the Western Shoshone have left under the Treaty of Ruby Valley?” he asked. “The sponsors should enumerate those rights on the record.”
The solution to the long-standing struggle for the land is to enact legislation to convert the ICC judgment award to compensate the Western Shoshone for past wrongs and open the path to enforce Western Shoshone title to the land, he said.
Chief Yowell contends the most practical solution is a compromise that must be negotiated in good faith with his people who have spent decades and millions of dollars trying to achieve an agreement.
“The Western Shoshone will not consent to the distribution of the ICC monetary award as long as it is categorized as payment for our territory. The land is sacred; it is the church of the Western Shoshone people and cannot be sold.
“I hope the Senate Indian Affairs Committee will hear us out and wisely reject the bill. We’re still open to negotiations and we hope they are too.”