Chief Raymond Yowell of the Western Shoshone Nation, and Senator Henry Reid, D-Nev., share a common political goal. Both want to prevent Yucca Mountain, in the Western Shoshone homeland, from being used as a dumping site for 70,000 metric tons of radioactive wastes. Their concerns were sharply focused by President Bush’s Feb. 15 decision to recommend that Yucca Mountain be used as a repository where radioactive wastes will be shipped across the country for burial in a maze of underground storage tunnels up to 115 miles long.
However, on another issue ? the 1863 Treaty of Ruby Valley ? Chief Yowell and Senator Reid do not see eye to eye. Senator Reid is the sponsor of S. 958 which, if passed, would distribute some 128 million dollars to Western Shoshone Indians, supposedly for treaty lands taken over by “gradual encroachment.”
Yowell holds the view that the Western Shoshone lands were never “taken.” He therefore opposes S. 958. The disagreement is more than academic. According to a firm principle of international law, the long possession of territory by one nation excludes the claim of every other nation. Following this principle, the Western Shoshone Nation’s long possession of Newe Sogobia for thousands of years prior to the existence of the United States excludes the U.S. claim to that country. The Treaty of Ruby Valley recognizes this principle.
A treaty, within the constitutional framework of the United States, is “the supreme law of the land.” The Treaty of Ruby Valley, therefore, is a shield to protect and safeguard the homeland of the Western Shoshone.
The 1832 Supreme Court decision Worcester v. Georgia, said that a treaty between an Indian nation and the United States “involves no surrender” of its independence or its “national character.” By making the Treaty of Ruby Valley with the Western Shoshone, the United States government, through its diplomatic and legislative proceedings, recognized the Western Shoshone as a distinct and separate nation, occupying its own territory, with boundaries accurately described, within which Yucca Mountain is located.
When the Indian Claims Commission accepted an attorney-stipulated “finding” that the Western Shoshone homeland had been “taken” by “gradual encroachment,” the Commission did not adequately take into consideration the Treaty of Ruby Valley. The ICC was never able to explain, nor could it, how the Western Shoshone homeland could be protected by a solemn treaty duly ratified by the United States Senate as the supreme law of the land, and at the same time “taken” by “gradual encroachment.” S. 958 does not account for this contradiction.
That the Treaty of Ruby Valley is meant to be protective of the Western Shoshone Nation is also made clear by the 1787 Northwest Ordinance and the act to establish the Territory of Nevada. The Northwest Ordinance says that the Indians’ lands and property shall never be taken from them without their consent. Thus, the Nevada territorial act states that until the consent of the Indians is obtained, no Indian land, such as the Western Shoshone homeland, “is to be included within the territorial limits or jurisdiction of any State or Territory.”
According to the organic law of the United States, free consent is the only way for the Western Shoshone Nation to part with its land. A “gradual taking” by non-Western Shoshone is not legally permissible. Therefore, there is no valid foundation for S. 958.
Chief Yowell and the Western Shoshone National Council oppose the dumping of nuclear waste in their homeland, because such an act would violate Western Shoshone law, which regards the Earth as a sacred Mother.
Senator Reid opposes transporting radioactive nuclear waste across the highways of the United States because of the potential for terrorists to target the waste and wreak havoc upon the American public.
The Western Shoshone Nation holds a most powerful position to stop the dumping of nuclear waste in Yucca Mountain before it begins. However, to do so, the nation needs allies in high places. By teaming up with Chief Yowell, Senator Reid could set a most powerful precedent. He would become known historically as a leader who was willing to support the Western Shoshone people in their effort to maintain their sacred homeland for future generations, just as their ancestors maintained their sacred homeland for them.
By supporting the Treaty of Ruby Valley, which was ratified by the very same governmental body of which he is now a member ? the U.S. Senate ? Senator Reid could become the powerful ally of a small nation that wants to uphold the “homeland protection” of its treaty. By this path, part of Senator Reid’s legacy would be his courage and his vision.
The world community has been watching the case of the Western Shoshone Nation for quite some time. It will not go unnoticed if Senator Reid works to honor and uphold the solemn word of his predecessors embodied in the Treaty of Ruby Valley, while upholding the human rights of the Western Shoshone people. The potential of a win-win situation exists. Through such an alliance, the radioactive dump at Yucca Mountain could be stopped dead in its tracks, and the Western Shoshone Indians would be secure in their own sacred homeland.
Steven T. Newcomb (Shawnee/Delaware) is director of the Indigenous Law Institute, and a Visiting Professor in Legal Studies at UMass Amherst.
