Three cases challenging the scope of the Clean Water Act will be argued Feb. 21 in U.S. Supreme Court

February 08, 2006 Justice Alito's Green Day
Tony Mauro, Legal Times

The first time he takes the bench later this month, new Supreme Court Justice Samuel Alito Jr. will face a baptism -- not by fire but by water.

Three cases challenging the scope of the Clean Water Act will be argued Feb. 21, testing themes of federalism and commerce clause power that were much at issue during Alito's confirmation hearings. The cases have environmentalists worried about how Alito and Chief Justice John Roberts Jr. will ultimately come down.

"These are probably the most important environmental cases in a decade and will be an enormous test of the two new justices," says Douglas Kendall of the Community Rights Counsel, which filed a brief in two of the cases.

Alito has plenty of reading to do; more than 50 briefs on the cases have flowed into the Court. After being sworn in officially at the Court, on Jan. 31 at a private ceremony, Alito settled into the chambers his predecessor, Justice Sandra Day O'Connor, vacated last month in anticipation of retirement. His staff is still in flux, but he has already picked up two O'Connor law clerks, Benjamin Horwich and Alexander Volokh. Late Friday, Alito announced he would adopt the Court's 1993 policy on recusals in cases involving close relatives who are lawyers -- in Alito's case, sister Rosemary, a partner at Kirkpatrick & Lockhart Nicholson Graham in Newark, N.J.

The environmental cases, more than any other coming soon, will spotlight issues that got Democrats upset during Alito's contentious hearings last month. In two of the cases, Rapanos v. United States and Carabell v. United States Army Corps of Engineers, the issue is whether, under the commerce clause, the Clean Water Act protects certain wetlands that are adjacent to tributaries of navigable waters covered by the law. In the third case, S.D. Warren Co. v. Maine Board of Environmental Protection, the justices will decide whether the mere fact that a river flows through a dam produces a "discharge" that triggers federal jurisdiction under the act.

In all three cases, the Bush administration is arguing for a broad view that would preserve a "landmark" law that is "a permissible exercise of Congress' power," in the words of Solicitor General Paul Clement, who will argue the cases himself.

In Rapanos and Carabell, the cases that have gotten the most attention on both sides, environmental groups say a loss would strip federal jurisdiction from between 50 percent and 99 percent of the waterways currently covered by the law -- a level not seen "since the McKinley administration," says Howard Fox of Earthjustice.

On the other side, conservative and business groups cast the dispute as a property rights battle against overriding federal regulation. "Agency bureaucrats are exploiting an ambiguity in the law to run roughshod over property owners," says Reed Hopper, the Pacific Legal Foundation lawyer who represents Michigan developer John Rapanos in his case. "The Clean Water Act authorizes federal regulation of navigable waters, not every wet spot in the nation."

DIGGING UP BONES

A sure sign of the importance of Alito and Roberts is that one anti-regulation brief, by the conservative Washington Legal Foundation, pointedly cites appeals court writings by both justices that support a narrow view of the commerce clause.

The brief reminds Alito and the rest of the Court of his 1996 dissent as a 3rd Circuit judge in United States v. Rybar, the so-called machine gun case, that Alito was repeatedly quizzed about at his hearing. Alito argued that Congress did not have authority to ban possession of machine guns, and the foundation hopes he will rule the same way on Clean Water Act coverage.

The WLF also cites Rancho Viejo v. Norton, the "hapless toad" case in which Roberts, as a D.C. Circuit judge, said congressional commerce power did not extend to protecting California's arroyo toad under the Endangered Species Act.

Mark Perry, a D.C. partner at Gibson, Dunn & Crutcher who wrote the foundation brief, declines to discuss specific justices but says the cases before the Court pose "starkly different visions of federal power."

Perry's brief may also be the first -- and only -- to invoke the animated movie "Finding Nemo." He cites a scene in which Nemo the fish is swirling down a dentist's drain. "Don't worry. All drains lead to the ocean," the character Gill says to reassure everyone that Nemo is safe. Perry accuses the government of adopting the same principle to justify regulating every conceivable body of water. "I was watching the movie with my two kids and I thought, that actually describes what's going on here," says Perry.

Rapanos has been trying for nearly 20 years to build a shopping center near Midland, Mich. His sites were deemed to be wetlands, but Rapanos -- arguing that the nearest navigable water is 20 miles away -- began construction without permits. The Environmental Protection Agency ordered him to halt the work and eventually brought criminal charges against him. After years of litigation, the 6th U.S. Circuit Court of Appeals ruled that any "hydrological connection" between his property and navigable waters was sufficient to establish Clean Water Act jurisdiction.

Similarly, June Carabell sought to build condominiums on forested wetlands in Macomb County, Mich. She applied for a fill permit, but the Army Corps of Engineers turned her down.

Rapanos claims the government's broad definition of the act's reach unconstitutionally disturbs the traditional "division of labor" that allows states to regulate "upstream" sources of pollution while the federal government takes care of larger navigable waters downstream.

STATE ACTIONS

But two-thirds of the states have joined briefs advising the Court that they want federal protection. Eliminating federal jurisdiction over the wetlands at issue would "pull the rug out from under state officials and leave a regulatory void that the states could not easily fill," says Kendall's brief on behalf of an association of state pollution-control administrators nationwide.

A similar plea from states did not persuade the Court in the 2000 case United States v. Morrison to uphold federal powers granted by the Violence Against Women Act, but Kendall thinks the federal role in helping prevent water pollution is more deeply rooted. Utah and Alaska joined a brief arguing against the federal role in Rapanos. v In the third Clean Water Act case, the S.D. Warren Co., owner of five hydroelectric dams on the Presumpscot River in Maine, challenges the need to obtain state licenses for the dams -- a process that is triggered if they produce a "discharge" under the Clean Water Act. The dams are already licensed by the Federal Energy Regulatory Commission.

The company, joined by business and power-industry groups, claims that the dams add nothing new to the water; thus they do not produce a discharge. In a brief for the Edison Electric Institute, Jeffrey Fisher of Davis Wright Tremaine says state regulation triggered by the federal law is "unnecessary and duplicative."

Environmental groups counter that hydroelectric dams do alter the water and have strong environmental effects.

"Dammed from stem to stern, the river has witnessed a profound decline in water quality and the consequent extirpation of its once prodigious sea-run fishery," states a brief filed by the American Rivers organization and a group called Friends of the Presumpscot River.

The brief's author, Georgetown University Law Center professor Richard Lazarus, added a historical note that may catch the justices' eye. Samuel Warren, who founded the company that built the dams, was the father of Samuel Warren Jr., the law partner of Louis Brandeis before Brandeis became a justice. Warren and Brandeis co-wrote the famous 1890 Harvard Law Review article that articulated a right to privacy.

How will Alito view the cases? His track record on environmental law was not mentioned prominently during his confirmation hearings, and a study by the Congressional Research Service concluded that his rulings were "based on straightforward readings of statutes and regulations, with little disposition to infer rights or duties not clearly stated." The CRS study found that Alito took the pro-environment side in half of the 20 cases he ruled on in which there was a clear environmental side.

But the study did point to other cases, including Rybar, in which Alito's positions indicated a narrow view of standing and commerce power -- touchstones for most environmental litigation.

Alito's biggest Clean Water Act ruling was Public Interest Research Group of New Jersey v. Magnesium Elektron Inc., a 1997 case in which Alito joined a 2-1 majority that found that neither the PIRG nor Friends of the Earth had standing to challenge the company's illegal discharges into a creek that leads to a river.

His rulings on the bench led major environmental groups to oppose Alito. "Judge Alito's record is more troubling than either Judge Roberts' or Harriet Miers'," Earthjustice concluded.

Just how the rest of the Court will react to Alito's commerce clause views is uncertain. While in the Rybar case, Alito said he was following the then recent Supreme Court precedent United States v. Lopez in rejecting congressional regulation of machine gun possession, the Court since then has sometimes taken a broader view of congressional power. In Gonzales v. Raich last June, the Court upheld federal regulation of medical marijuana against a commerce clause challenge. Soon after that ruling, the Court vacated and remanded back to the 9th Circuit the case of United States v. Stewart -- the only appeals court decision that agreed with the view of the machine gun law that Alito expressed in Rybar.

Western Shoshone urge probe of human rights violations

C Indian Country Today
January 27, 2006. All Rights Reserved
http://www.indiancountry.com

ELKO, Nev. - While the United States fails to respond to the United Nations inquiry into violations of human rights of Western Shoshone, supporters have surpassed an original goal of 10,000 signatures to maintain pressure on the government to answer for the harassment of Shoshone people.

''We've got a fight on our hands,'' Western Shoshone Carrie Dann told Indian Country Today, encouraging the United Nations to increase pressure on the United States to uphold the rights of indigenous peoples.

''This is supposed to be democracy?'' Dann asked and described the United States' manipulation of laws that affect American Indians.

''What is democracy? Is democracy destroying the rights of the indigenous people? We don't see any democracy where indigenous people are concerned.''

The United States missed a year-end deadline to answer questions from the U.N. Committee on the Elimination of Racial Discrimination concerning violations of Western Shoshone human rights and their right to ancestral lands.

The committee issued a list of 10 questions the government failed to answer by Dec. 31. The questions follow a request for urgent action, which, if accepted, would allow the committee to open an investigation into U.S. conduct regarding land issues and the treatment of indigenous people.

Julie Ann Fishel, land recognition program director for the Western Shoshone Defense Project, said Western Shoshone elders see pressure from the United Nations as the only solution; the petition reveals the support of the people.

''It tells the United States the Western Shoshone are not going away,'' Fishel told ICT. ''We will seek out every opportunity and forum to press this issue.''

Fishel said Western Shoshone rights are a fundamental human rights issue that affects all of civil society in the United States. Further, Western Shoshone hope pressure from the United Nations will increase awareness of indigenous rights as a mainstream issue.

Dann and Fishel were interviewed by telephone in Miami, where they are participating in the Seventh Tribal Sovereignty Symposium, ''Sovereignty and Sustainable Development of Indigenous Peoples.''

Siegfried Wiessner, professor of international law and constitutional law at the St. Thomas University School of Law in Miami, said the recognition of indigenous rights worldwide has made tremendous progress.

''There has been a remarkable resurgence of indigenous rights,'' Wiessner told ICT.

Indigenous rights of self-governance, recognition of autonomy and the execution of treaties are progressing worldwide. Indigenous peoples are transcending borders and coming together as never before to communicate, and the mass media is helping advance indigenous rights, he said.

''Indigenous people are coming together because this is the air they breathe, the land where they live.''

Western Shoshone plan to travel in a delegation to Geneva, Switzerland, in March to meet with UNCERD members and present their case and the petition.

The petition states that the U.S. government is violating the rights of the Western Shoshone to ancestral lands - rights recognized by the Treaty of Ruby Valley of 1863. The lands in question cover 60 million acres stretching across Nevada, Idaho, Utah and California.

The United States, without Western Shoshone consent, has allowed gold mining and military testing of nuclear, chemical and biological weapons on their ancestral lands. Further, Western Shoshone said they are denied fair resolution in U.S. courts.

The United States claims the lands are ''public'' lands and no longer belong to the Western Shoshone. The Bureau of Land Management has upheld impound notices for Western Shoshone livestock in Nevada and imposed heavy trespass fines. This was done while the United States was attempting to privatize large tracts of land for the expansion of multinational gold companies' mining operations.

Without voice or resolution in the United States, the Western Shoshone appealed to the United Nations demanding reform of U.S. laws that allow for the theft and destruction of indigenous lands.

Western Shoshone said the preservation of the cultural and spiritual integrity of their way of life is dependent on protection of the land. Currently, Western Shoshone are faced with the threat of a high-level nuclear waste dump on Yucca Mountain and open-pit gold mining at Mount Tenabo, both areas spiritually significant to Western Shoshone.

The WSDP petition is being carried out in partnership with Oxfam America. The Boston-based international development and relief agency, an affiliate of Oxfam International, delivers development programs and emergency relief services. Oxfam campaigns for change in global practices and policies that keep people in poverty.

''This is a critical land rights issue. The federal government needs to be held accountable for violating treaties with Indian nations, as the Inter-American Commission on Human Rights has clearly established,'' said Oxfam America's Laura Inouye, referring to an earlier decision by that body which found the BLM had violated Western Shoshone rights to due process, property rights and equality.

''A similar finding by UNCERD will help the Western Shoshone press their case for justice.''

To view the petition, go to http://ga0.org/campaign/shoshone_petition.

Please visit the Indian http://www.indiancountry.com
Country Today website for more articles related to this topic.

RIGHTS-US: Native Group Takes Land Dispute to UN
Haider Rizvi

UNITED NATIONS, Jan 26 (IPS) - Feeling cheated and betrayed by Washington for nearly 150 years, a Native American tribe is now looking to the United Nations for help in protecting its ancestral lands.

"Where else do we go?" Carrie Dann, a leader of the Shoshone people of the United States, told IPS in an interview about why her people have gone to the U.N. to demand justice.

Dann and other Shoshone leaders maintain that the U.S. government has used a series of illegal tactics to gain control of their ancestral lands, including seizures of livestock and the imposition of heavy trespass fines.

They charge the U.S. government with trying to sell or lease their land to big corporations involved in gold mining and other excavations in the area, which has disrupted not only their traditional way of life, but also caused enormous damage to the environment.

Last August, Shoshone elders filed a petition with the U.N. Committee on the Elimination of Racial Discrimination (CERD) calling for action against the U.S. government for claiming large parts of indigenous lands as federal property.

CERD was established under an international human rights treaty called the Convention on the Elimination of Racial Discrimination. It prohibits racial discrimination and defines it as a breach of international law.

The Shoshone lands cover about 60 million acres in the states of Nevada, Idaho, Utah and California. These lands, which are known to contain rich reservoirs of gold, also include a proposed national repository for radioactive waste.

The U.S. government argues that 90 percent is ''public'' or federally controlled lands.

The Shoshone people belong to the Numic branch of the larger Uto-Aztecan language family. In the past two centuries, they also have been identified as "Snake Indians", according to the Encyclopedia of North American Indians.

In their petition to the U.N., the Shoshone have argued that the U.S. government has no right to occupy or privatise their ancestral land because the treaty it had signed in 1863 does not allow Washington to do so.

The U.S. government maintains that the Shoshone people have lost their rights to ancestral lands, as identified in the treaty, due to "gradual encroachment" by non-Native Americans.

But this argument has failed to fully satisfy U.N. rights officials.

"Has the 1863 Treaty of the Ruby Valley been abrogated in whole or in part, and if so, following which process?" Mario Yatzis, chairman of the U.N. Committee, asked the U.S. envoy in Geneva in a letter sent last August.

In 2004, the U.S. government tried to resolve this issue by passing a law, known as the Western Shoshone Distribution Act, which allowed Washington to claim large swathes of indigenous lands by financially compensating the Shoshone people. However, the compensation to the tribes is based on the 1872 price for their land and minerals -- about 15 cents per acre.

Shoshone elders say the land is priceless because it is sacred and central to the survival of their traditions and belief system. Most Shoshone objected to the procedures that led to the passage of the controversial act, and refused to accept the money because they believe their ancestral lands are sacred.

"Our traditional laws tell us we are placed here as caretakers of the land," said Joe Kennedy, a Shoshone leader and one of the signatories of the petition.

"We will not stand idly by and allow the U.S. government to cement its hold on our ancestral land," he added.

Kennedy and others assert that there has never been a legally valid transfer, sale or cessation of land by Shoshone people.

In his letter, Yatzis also pressed the U.S. for an explanation of expanded mining and nuclear waste storage on Shoshone ancestral lands, and for "placing their land up for auction for privatisation".

The letter has a list of 10 questions, which are based on the Shoshone people' request for "urgent action". If accepted, the U.N. committee has the power to investigate the U.S. conduct.

In a similar inquiry, the Inter-American Commission on Human Rights issued a report in 2003 concluding that the U.S. government's claims to Western Shoshone land were illegal and contrary to international human rights law, and that it had used illegitimate means to assert ownership of the lands.

While the U.S. response to the U.N. body is still pending, Shoshone elders and their lawyers say they are planning to visit Geneva in March this year to present more than 11,000 signatures in support of their petition.

"There is no remedy in the U.S.," Julie Fishel, a Shoshone lawyer, told IPS. "They are dealing with the treaty by ignoring it. That's why were going to the U.N."

Both Fishel and Dann are cautiously optimistic that a number of non-Native groups have joined their campaign to regain control of the ancestral lands. One is the London-based Oxfam International, a leading humanitarian and development aid organisation.

"This is a critical issue," Oxfam America's Laura Inouye told IPS. "This isn't about (American) Indians. It's about everybody."

"This is about not allowing the U.S. government to place corporate interests before human rights and environmental concerns," she said of the petition. (END/2006)

Progress at the UN Working Group on
the Draft Declaration on the Rights of IP's

American Indian Law Alliance
[United Nations, Geneva] -
15 December 2005

Wednesday and Thursday, December 14 and 15, 2005, saw some forward movement in the process at the United Nations to find consensus on a useful and meaningful Declaration of Indigenous peoples' rights. In spite of efforts by some states to hinder the effective content of the document as reported earlier in the week, yesterday saw increased understanding between the Indigenous Caucus and a number of states including Mexico, Norway, Canada, and Denmark, among others.

Provisional Adoption

In addressing the Indigenous Caucus last night, Canadian and Danish representatives went so far as to say that they look forward to passage of a strong and effective Declaration by the General Assembly in 2006. This, they noted, is consistent with the 2nd Decade of the World's Indigenous Peoples and with the General Assembly affirmation earlier this year in which it committed "to continue making progress in the advancement of the human rights of the world's indigenous peoples at the local, national, regional and international levels" including "adoption of a final draft United Nations declaration on the rights of indigenous peoples." (General Assembly Resolution A/RES/60/1 24 October 2005, p. 127).

Over the past several days at the Working Group, Norway chaired numerous meetings with Indigenous peoples' representatives and states in order to find common ground and effective final language for the text of the Declaration. These meetings occurred both in and out of the formal plenary sessions with all delegations present. June Lorenzo of the American Indian Law Alliance and Devashish Roy, Chakma people, are to be particularly commended for much of the leg work involved in bringing these discussions to fruition.

This morning Ms. Guri Hestflatt of the Norwegian delegation presented the outcomes to the chairperson of the Working Group. In her statement she said that progress was "encouraging in both form and substance" and that all delegations "demonstrated considerable effort to reach consensus." As a result, ten preambular and ten operative paragraphs were presented as ready for provisional adoption. (Provisional adoption simply refers to agreement on the text while noting that none of the articles of the Declaration are considered adopted until the entire Declaration is accepted.) In addition to the 20 paragraphs now considered ready for provisional adoption, an additional 15 are "very close.". This would represent acceptance of more than half of the total 64 paragraphs that constitute the text of the Declaration.

Remaining Hurdles

However, major obstacles still remain. The difficult issue of the total package of paragraphs on self-determination have not been resolved. The United States, New Zealand and Australia continue to put forth substantial objections. In a complicated twist of legalese the United States has actually used circumstances surrounding national disasters as a reason to limit this critical right of Indigenous peoples. (One might ask if the Declaration's passage would have further reduced the inadequate response to Katrina - it seems like a hallow argument at best.) These states (US, NZ and Australia) are still insisting on language that would protect their "territorial integrity" and plenary power over Indigenous peoples.

Compelling arguments against the position of these few states have been presented and supported by Indigenous peoples and other states. A group of non-Indigenous human rights organizations made an excellent intervention yesterday in an attempt to hold states accountable for their positions:

"With the obvious imbalance of power between states and Indigenous peoples, it is not clear to us why this discussion is preoccupied with perceived threats to states, rather than the very grave and pervasive threats to Indigenous peoples.

"Indigenous representatives have expressed concern that the concepts of political unity and territorial integrity are already being used by some states to justify denial of Indigenous peoples' rights and repression of the defenders of those rights.

"As human rights organizations, we are concerned that the inclusion of a specific reference to the principles of political unity and territorial integrity in a Declaration on the Rights of Indigenous Peoples would at best, reinforce an unacceptable status quo and at worst may encourage even greater human rights violations against Indigenous peoples.

"Furthermore, the proposal of New Zealand, Australia and the United States for article 45bis is particularly concerning as it would allow states to invoke the concepts of political unity and territorial integrity to justify the denial of any and all rights in the Declaration, no matter how fundamental to the welfare and survival of Indigenous peoples." [Intervention of Amnesty International, International Federation of Human Rights Leagues, IWGIA, KAIROS: Canadian Ecumenical Justice Initiatives, Rights and Democracy, NCIV, Friends World Committee for Consultation (Quakers)]

The text of this intervention accurately reflects the principles upported by a majority of states and Indigenous representatives. Together we are working to agree on langauge that would preserve the riginal text on the right of self-determination. States that cannot support the total expression of human rights will hopefully find themselves increasingly isolated.

Treaty Provisions

Additionally, Willie Little Child presented revised articles on treaties (preambular paragraphs 6, 13, and Article 36) that had also been the subject of intensive negotiations. However, when presented to the Working Group, the United States again took the floor to state that they did not concur and would be introducing their own language on these paragraphs. Unfortunately, representatives of many North American Indigenous nations whose territories lie within the borders of the United States (especially large treaty nations like the Lakota and Haudenosaunee) did not participate in this aspect of the work.

Coming soon.

Although these essential elements remain to be tackled in the next session of the Working Group (January 30 - February 3, 2006), there are clear indications that progress is being made. The more text that is agreed to between states and Indigenous peoples' representatives, the less room there is for the Chairperson to introduce his own interpretation of a compromise. In this way, the strongest possible Declaration will be presented to the Commission on Human Rights, which represents the minimum standard for Indigenous peoples. The American Indian Law Alliance will prepare a final report, including the language of the text that has been proposed as well as some of the highlights of the debate prior to the January/February session.

American Indian Law Alliance
611 Broadway, Suite 632
New York, NY 10012 USA
212-477-9100 telephone
212-477-0004 facsimile
aila@ailanyc.org

Declaration on the Rights of the World's Indigenous Peoples

7 December 2005
United Nations
Geneva, Switzerland

Dear brothers, sisters and friends:

The American Indian Law Alliance delegation from the United Nations in Geneva sends you our greetings. We are here to move forward the eventual passage of the Declaration on the Rights of the World's Indigenous Peoples by the Commission on Human Rights and eventual adoption by the General Assembly.

We would optimistically suggest that progress is being made, especially on the critical issue of self-determination. Nonetheless, a few nations still seem committed to blocking the unqualified acceptance of this human right with respect to Indigenous peoples. Of course, two of these countries are the United States and Australia. Their positions and opposition are not unexpected. However, New Zealand has taken an increasingly hostile position towards Indigenous peoples and our right to self-determination. Without going into too much detail, yesterday (December 6, 2005), the representative of New Zealand stated from the floor of the United Nations that without inclusion of the concept of the territorial integrity of states (a serious impediment to the exercise of self-determination, taken out of the context in which it is generally accepted in international law) there would not be a principle of self-determination in the Declaration. Additionally, they are proposing that Article 31 (on self-government over internal affairs) be amended and moved to a position in the Declaration following Article 3 on self-determination. This too can be interpreted to bring the concept of internal autonomy into a position of significance equal to and/or potentially limiting Indigenous peoples right to self-determination.

These positions make the rights of Indigenous peoples less than the right of all other peoples. Without a change in New Zealand's position, the hopes for progress are seriously stifled.

There are no Maori people here at the United Nations. This means that the government of New Zealand is acting with impunity. They operate without accountability to the Indigenous peoples whose lands they occupy and whose treaties are at stake. We would therefore urge our brothers and sisters, in particular our Maori brothers and sisters, to seek out the government of New Zealand and ensure that this government is responsible and accountable for the positions they are taking and the risk they are presenting to the rights of Indigenous peoples everywhere.

American Indian Law Alliance
611 Broadway, Suite 632
New York, NY 10012
USA
Phone: (212)477-9100
Facsimile: (212-477-0004
Website: www.ailanyc.org  Email: aila@ailanyc.org

From: Kent Lebsock kent@ailanyc.org
Aug. 31, 2005
Executive Director
AMERICAN INDIAN LAW ALLIANCE
611 Broadway, Suite 632
New York, NY 10012

CERD Decision about the United States

The following deals specifically with a decision by CERD relative to United States discrimination against Indigenous peoples and is a critical step forward in international reaction to the American abuses both contemporary and historical. United Nations calls for U.S. accountability re. Western Shoshone.

United Nations calls for U.S. accountability

by: Brenda Norrell 
Indian Country Today,
Posted: August 29, 2005

GENEVA - A United Nations committee on racial discrimination has asked the United States to respond to the Western Shoshone appeal for urgent intervention, regarding the attack on their spiritual and cultural areas by the United States and mining corporations.

Mario Yutzis, chairman of the U.N. Committee for the Elimination of Racial Discrimination, issued a formal letter to the United States and questioned why Western Shoshone sacred land and treaty rights are not being honored.

The committee pressed the United States for an explanation of expanded mining and nuclear waste storage on Western Shoshone ancestral land, and for ''placing their land up for auction for privatization.''

Further, the committee questioned whether the Treaty of Ruby Valley of 1863 has been abrogated and the imposition of grazing fees, trespass and collection notices, horse and livestock impoundments and restrictions on hunting and fishing.

Western Shoshone said their lands cover approximately 60 million acres stretching across what is now referred to as the states of Nevada, Idaho, Utah and California. The United States claims about 90 percent of the land base is ''public'' or federally controlled lands.

Western Shoshone challenge the United States' assertion of ownership, stating that there has never been a legally valid transfer, sale or cession of land by the Western Shoshone.

The United States was asked to report to the U.N. committee on the arrests of Western Shoshone while using lands claimed as their ancestral lands. Further, the United States was asked how it deals with sacred lands and whether it ensures effective participation by indigenous communities in decisions affecting them.

The United States was asked to provide an explanation of the approval of expanded mining activities in the Mt. Tenabo area in Crescent Valley and the approval to store nuclear waste at Yucca Mountain.

''Both areas are of spiritual and cultural importance to the Western Shoshone and are sites where local creation stories originate,'' a Western Shoshone delegation, in Geneva Aug. 8 - 20, said in a statement.

Western Shoshone said the appeal for urgent intervention was taken to prevent further escalation of federal assaults on Western Shoshone people and their ancestral lands. The delegation was and presented the requests.

Chief Raymond Yowell of the Western Shoshone National Council was encouraged by the U.N. response.

''We are pleased that the United Nations committee is willing to look into this. We encourage the U.S. to respond in an honorable manner and to begin to work toward a solution on this long standing matter - for the benefit of all concerned.''

In the August letter, the U.N. committee noted with concern the allegation that Western Shoshone are being denied their traditional rights to land. Further, the committee questioned whether the subsequent use and occupation of these lands by others would cumulatively lead to irreparable harm:

''The committee, in particular, has received information concerning reinvigorated federal efforts to open a nationwide nuclear waste repository on Western Shoshone land; passage of controversial legislation allowing for distribution of compensation for the alleged extinguishment of Western Shoshone title over land; alleged legislative efforts to privatize Western Shoshone lands for transfer to multinational extractive industries and energy developers; and alleged seizures of Western Shoshone livestock and imposition of heavy trespass fines against Western Shoshone people.''

Further, the committee questioned the United States' assertion that the Western Shoshone people lost their rights to their ancestral lands, as identified in the 1863 treaty, as a result of ''gradual encroachment'' by non-American Indians.

The committee asked whether this violated the right of everyone, without discrimination, to own property alone as well as in association with others.

Another issue raised was whether Western Shoshone were involved and informed of the U.S. Indian Claim Commission decision regarding their ancestral lands.

The United States was asked for its response to Western Shoshone protests over compensation in the 2004 Western Shoshone Claims Distribution Act and whether the act was fair and adequate.

Another question raised concerned Western Shoshone's access to the judicial process to assert title to their land.

The committee's letter was issued on the final day of its 67th session, Aug. 19, after a private meeting with representatives from the United States. The United States was informed that the questions presented were based on the request from the Western Shoshone National Council, and by the Western people of the Timbisha Shoshone Tribe, Winnemucca Indian Colony and Yomba Shoshone Tribe.

In the letter, Yutzis said the committee appreciates the frank and open preliminary discussion, which took place Aug. 8 between representatives of the United States and the committee's Working Group on Early Warning and Urgent Action Procedure.

According to Yutzis, the United States assured the committee that reports on Western Shoshone issues, now far behind schedule (they were due in November 2003), are currently being prepared. However, the committee said it regrets that the United States has not agreed to submit the reports by a specific date.

The committee asked for a response to the questions by Dec. 31 for further examination at its next session, beginning Feb. 20, 2006 in Geneva.

-- C 1998 - 2005 Indian Country Today

August 23, 2005

Crescent Valley, Nevada (Newe Sogobia). On the final day of its 67th Session, August 19, 2005, the Chairman of the United Nations Committee for the Elimination of Racial Discrimination issued a formal letter and series of questions to the United States regarding the situation of the Western Shoshone. The letter was issued after a private meeting with representatives from the United States on August 15, 2005 based on requests by the Western Shoshone Nation* that the Committee act under its early warning and urgent action procedure to prevent further escalation of federal assaults on Western Shoshone people and their ancestral lands. A delegation of Western Shoshone traveled to Geneva August 8-20 to present the requests.

A full copy of the letter is attached to this release. Questions range from the U.S.' position on the Treaty of Ruby Valley, seizures of Western Shoshone livestock, efforts to privatize Western Shoshone land to benefit mining and energy industries and ongoing harassment of Western Shoshone people. The Committee asked specifically about United States approval of expanded mining activities in the Mount Tenabo area in Crescent Valley and the approval to store nuclear waste at Yucca Mountain. Both areas are of spiritual and cultural importance to the Western Shoshone and are sites where local creation stories originate.

The Committee has asked the United States to respond to the questions by December 31, 2005 for further examination at its next session beginning February 20, 2006 in Geneva Switzerland.

Upon receipt of the letter earlier today, Raymond Yowell, Chief of the Western Shoshone National Council stated:

"We are pleased that the United Nations Committee (CERD) is willing to look into this. We encourage the U.S. to respond in an honorable manner and to begin to work toward a solution on this long standing matter - for the benefit of all concerned."

Western Shoshone lands cover approximately 60 million acres stretching across what is now referred to as the states of Nevada, Idaho, Utah and California. The United States claims around 90% of the land base as "public" or federally-controlled lands. The Western Shoshone challenge the U.S. assertion of ownership stating that there has never been a legally valid transfer, sale or cession of land by the Western Shoshone to the United States.          THE LETTER .pdf

• Urgent Action under Early Warning Measures (Western Shoshone/United States) .pdf
• Request for Early Warning Measures and Urgent Procedures .pdf
• 2nd Request for Urgent Action under Early Warning Procedure to the Committee on the Elimination of Racial Discrimination of the United Nations .pdf

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