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* * *
ACTION ALERT *
* *
March,
2002
Your Help Is
Needed
To Ensure Western Shoshone Representation
at Upcoming Senate Hearing
Call
or Fax the Senate Indian Affairs Committee
Monday March 11th-Friday March 18th!
|
Dear Friends and Supporters of the Western
Shoshone Nation,
A Hearing before the Senate Committee on Indian
Affairs on S 958 The Western Shoshone Claims
Distribution Act, has been scheduled for 10AM March 21
in Washington DC. We are asking all of our supporters
and concerned Americans to contact the Senate Indian
Affairs Committee Chairman Daniel Inouye and
Vice-Chairman Ben Nighthorse Campbell and respectfully
request that Carrie Dann, Western Shoshone elder and
spokeswoman for the Dann Band of the Western Shoshone
Nation, be invited to testify at this hearing.
This proposed legislation threatens to finalize
extinguishment of Western Shoshone land title by
distributing over $130 million dollars in a one time
cash payment to individual Shoshone. This payment was
the result of the discriminatory Indian Claims
Commission proceedings which denied the Western
Shoshone due process and ignored the evidence of
existing Shoshone land title. As a result of the US
denial to recognize Western Shoshone land rights, the
Western Shoshone Nation is threatened with the
imminent confiscation of its horses and cows,
continued nuclear weapons testing at the Nevada Test
Site, transport and storage of the nations high level
nuclear waste at Yucca Mountain, and the continued
destruction of cultural sites and water resources by
multinational mining interests. Senator Reid of Nevada
is promoting the bill and is making every effort to
see that Western Shoshone opposed to the bill are not
invited to the hearing, especially Carrie Dann,
Western Shoshone elder and outspoken defender of
Western Shoshone rights.
Carrie Dann, Western Shoshone elder has been
involved in Western Shoshone land issues since the
1950's. Carrie and her sister Mary carried this issue
all the way to U.S. Supreme Court who ruled against
them based on the proceedings the Indian Claims
Commission, the very issue at stake before this Senate
hearing! Carrie Dann has been honored by the U.S.
Congress with the receipt of the Ellis Island Medal of
Honor. The Ellis Island Medal of Honor was created in
1986 to honor the many ancestral groups who through
struggle, sacrifice and success, helped build this
great nation. In 1993 Carrie and her sister Mary
received the international Right Livelihood Award for
"their exemplary courage and perseverance in
asserting the rights of indigenous peoples to their
land." The Right Livelihood Award, widely know as
the "Alternative Nobel Prize", was
established in 1980 to honor and support to those
offering practical and exemplary answers to the
crucial problems facing the world today. In light of
these honors and out of respect for her life's work,
it is essential that the Senate Indian Affairs
Committee have the benefit of Carrie Dann's testimony
at the hearing on March 21st and her participation in
related meetings in regard to the proposed
legislation.
Senators Inouye and Campbell
can be reached by phone through
the Capitol switchboard at (202) 224-3121or
directly at : |
Senator Daniel Inouye
Phone 202-224-3934
Fax: 202-224-6747 |
Senator Ben Nighthorse Campbell
Phone 202-224-5852
Fax 202-224-1933 |
| The Indian Affairs Committee
is at phone 202-224-2251 |
Western Shoshone leaders can be heard on
national radio show Monday March 11th. Please Tune In!
Carrie Dann and Chief Raymond Yowell of the
Western Shoshone National Council will appear with U.
Mass Professor Peter d'Errico on the Nationally
syndicated Native American radio talk show Native
America Calling (http://www.airos.org/)
hosted by Harlan McKosato at 10AM Pacific Time, Monday
March 11th. Please tune in and join the discussion.
Native America Calling is carried by many NPR and
community radio stations across the country. Check
their web site at www.nativecalling.org to find a
station near you, or listen to the broadcast over the
web.
We have included an upcoming Indian Country Today
editorial about the Western Shoshone Claims to provide
further information on the issues at stake during this
hearing. Further information can be obtained by
calling the Western Shoshone Defense Project at
775-468-0230 email wsdp@igc.org or consulting the
following webpages:
Thanks for all your help!!!
Christopher Sewall
Program Director, Western Shoshone Defense Project
INDIAN COUNTRY TODAY EDITORIAL
If Nevada's Senator Reid has his way, the final
curtain may soon fall in the long, sad saga of Western
Shoshone land rights. In defiance of long-standing
Congressional policy, Reid's S.958 will distribute
every cent of the Western Shoshone Judgment Fund on a
per capita basis. The distribution will not benefit
Western Shoshone tribal governments in any way. It
will disinherit all future generations. And, it will
cast a final pall of shame on the Indian Claims
Commission, the United States Court of Federal Claims
and the Article III constitutional courts that
adjudicated the Western Shoshone claims and the
notorious case of U.S. v. Dann.
The Indian Claims Commission Act was passed on
August 13, 1946 amidst pious pronouncements that it
would at long last provide a remedy for "ancient
wrongs" done to America's indigenous peoples. The
Commission had broad jurisdiction to award money
judgments for Indian claims, but it could not return
land, even when the Indian title was unextinguished.
In fact, it was an integral part of then dominant
federal policies of termination and assimilation, and
it became a giant engine of extinguishment of hundreds
of millions of acres of otherwise good Indian title
outside existing reservation boundaries. After making
274 awards totaling $818,000,000, most without
interest from an often fictional Nineteenth Century
"date of taking," Congress terminated the
Claims Commission in 1978 and transferred its
remaining caseload to the Court of Claims, where some
dockets still remain unfinished. While the awards
totaled nearly $1 billion, that sum was a small
fraction of the actual value at the time of the awards
of the lost Indian assets.
The U.S. Supreme Court decided in U. S. v. Santa
Fe Pacific Railroad in 1941 that aboriginal Indian
title can be extinguished in only two ways - by act of
Congress or by voluntary cession. Nonetheless, the
Claims court (now the United States Court of Federal
Claims) and the attorneys who represented Indian
plaintiffs and the U.S. before those judicial forums
proceeded to destroy the priceless doctrine of
aboriginal Indian title with stipulated findings of
extinguishment based on "events" that were
utterly inconsistent with the Constitution and the
rule of Santa Fe. The Claims Commission found that
"by gradual encroachment of whites, settlers and
others, ...the [Western Shoshones] were deprived of
their lands." Never mind how trespasses and
treaty violations by individual whites could possibly
have given the Government title, especially since the
Shoshones ceded no land in the 1863 Treaty of Ruby
Valley. In the Gila River case, the Claims Court
actually said that although nothing had happened that
could constitute a taking, "in a fit of
absentmindedness [by the U.S. trustee], the deed was
somehow done." This is not law. It is racism and
political expediency cloaked in the false majesty of
law.
A major problem with proceedings under the Claims
Commission Act was that they didn't provide minimum
standards of constitutional due process of law. Claims
attorneys, who in the final analysis purported to
represent eight individuals responsible to no
community or tribal government, were allowed to
litigate on behalf of the "Western Shoshone
Identifiable Group," an as yet unidentified
plaintiff apparently intended to encompass all Western
Shoshones and federally-recognized Shoshone tribal
governments. A nominal tribal plaintiff, the Temoak
Bands Council, was not allowed to control the case or
the attorneys. When the Temoak Council fired the
claims attorneys, the Interior Department approved an
extension of their attorney contract to allow the
lawyers time to take the case to final judgment and
obtain their contingent fee, over the objections of
their supposed client. In 1979 the claims attorneys
obtained fifteen cents an acre (the 1872 value),
without interest, for sixteen million acres of
otherwise unextinguished Shoshone Indian title land
worth billions today. The lawyers claimed victory. The
Shoshones' government trustee somehow got the land. A
great many Shoshones are understandably convinced that
they actually lost. The courts have treated this
disastrous outcome as binding on all Western Shoshone
tribal governments and individuals, virtually none of
whom were parties or had legally sufficient notice of
the proceedings. In the absence of a land settlement,
Western Shoshone tribal governments have unanimously
opposed a naked money distribution for nearly 25
years, and some have turned to the United Nations and
the Inter-American Commission on Human Rights for
relief.
Followed from beginning to end, through over
fifteen reported court decisions, the Western Shoshone
land litigation literally does not make sense, except
in terms of the political imperative that Indians must
lose their lands. It can't be reconciled with
Anglo-American property law. Lewis Carroll wrote this
script. It is an Alice in Wonderland World where
racism is enshrined as law. I advise curious lawyers
and law students that the only thing to understand
about this litigation is that even the best legal
scholars can't understand it.
The Western Shoshone judgment fund has been held
by the Interior Department since its award in 1979. No
Western Shoshone has ever received a penny.
Nonetheless, the U.S. Supreme Court held in 1985 that
when the U.S. handed a check from its left hand, as
judgment debtor, to its right hand, as judgment
creditor and trustee, the Western Shoshones were paid.
The Ninth Circuit Court of Appeals subsequently held
that this "payment" precludes the Shoshones
from asserting title, even as a defense by Shoshones
in actual possession since time immemorial to trespass
claims brought by the U.S., as in U.S. v. Dann.
The Claims Court twice advised Shoshones who
attempted to prevent the loss of their land by
intervening or seeking a stay that their remedy was in
Congress, not the courts. While Senator Reid's money
distribution "remedy" will make the
fictional payment a reality, it will do nothing to
provide a land base and a future for the Western
Shoshones. It will, however, allow the Government to
announce that the matter has been resolved.
Rather than providing an example of "that
distributive justice which is the glory of a
nation" (President Washington's Secretary of War,
Henry Knox, describing the federal government's
solicitude for Indian land rights), the proceedings of
the Claims Commission and the Claims Court in many
Indian land cases, most notably Western Shoshone
Identifiable Group v. U.S., illustrate a profound
glitch in the American character. We claim to be the
finest example in human history of a political system
that provides justice and equality for all. However,
almost without exception, when the Government and the
courts have been faced with the prospect of
acknowledging original Indian ownership of substantial
tracts of land, and the equality of Indian title under
the Constitution, they have blanched and shamelessly
resorted to the exercise of raw political and judicial
power in the absence of any principled and reasoned
basis in law for the Indians' loss of their homelands.
The white man continues to covet Indian land and
racist and politically expedient "doctrines"
of law continue to poison American jurisprudence.
Thomas E. Luebben, Director of Litigation
Native Lands Institute
Partner Luebben, Johnson & Young
|
|
INDIAN COUNTRY TODAY EDITORIAL
If Nevada's Senator Reid has his way, the final
curtain may soon fall in the long, sad saga of Western
Shoshone land rights. In defiance of long-standing
Congressional policy, Reid's S.958 will distribute
every cent of the Western Shoshone Judgment Fund on a
per capita basis. The distribution will not benefit
Western Shoshone tribal governments in any way. It
will disinherit all future generations. And, it will
cast a final pall of shame on the Indian Claims
Commission, the United States Court of Federal Claims
and the Article III constitutional courts that
adjudicated the Western Shoshone claims and the
notorious case of U.S. v. Dann.
The Indian Claims Commission Act was passed on
August 13, 1946 amidst pious pronouncements that it
would at long last provide a remedy for "ancient
wrongs" done to America's indigenous peoples. The
Commission had broad jurisdiction to award money
judgments for Indian claims, but it could not return
land, even when the Indian title was unextinguished.
In fact, it was an integral part of then dominant
federal policies of termination and assimilation, and
it became a giant engine of extinguishment of hundreds
of millions of acres of otherwise good Indian title
outside existing reservation boundaries. After making
274 awards totaling $818,000,000, most without
interest from an often fictional Nineteenth Century
"date of taking," Congress terminated the
Claims Commission in 1978 and transferred its
remaining caseload to the Court of Claims, where some
dockets still remain unfinished. While the awards
totaled nearly $1 billion, that sum was a small
fraction of the actual value at the time of the awards
of the lost Indian assets.
The U.S. Supreme Court decided in U. S. v. Santa
Fe Pacific Railroad in 1941 that aboriginal Indian
title can be extinguished in only two ways - by act of
Congress or by voluntary cession. Nonetheless, the
Claims court (now the United States Court of Federal
Claims) and the attorneys who represented Indian
plaintiffs and the U.S. before those judicial forums
proceeded to destroy the priceless doctrine of
aboriginal Indian title with stipulated findings of
extinguishment based on "events" that were
utterly inconsistent with the Constitution and the
rule of Santa Fe. The Claims Commission found that
"by gradual encroachment of whites, settlers and
others, ...the [Western Shoshones] were deprived of
their lands." Never mind how trespasses and
treaty violations by individual whites could possibly
have given the Government title, especially since the
Shoshones ceded no land in the 1863 Treaty of Ruby
Valley. In the Gila River case, the Claims Court
actually said that although nothing had happened that
could constitute a taking, "in a fit of
absentmindedness [by the U.S. trustee], the deed was
somehow done." This is not law. It is racism and
political expediency cloaked in the false majesty of
law.
A major problem with proceedings under the Claims
Commission Act was that they didn't provide minimum
standards of constitutional due process of law. Claims
attorneys, who in the final analysis purported to
represent eight individuals responsible to no
community or tribal government, were allowed to
litigate on behalf of the "Western Shoshone
Identifiable Group," an as yet unidentified
plaintiff apparently intended to encompass all Western
Shoshones and federally-recognized Shoshone tribal
governments. A nominal tribal plaintiff, the Temoak
Bands Council, was not allowed to control the case or
the attorneys. When the Temoak Council fired the
claims attorneys, the Interior Department approved an
extension of their attorney contract to allow the
lawyers time to take the case to final judgment and
obtain their contingent fee, over the objections of
their supposed client. In 1979 the claims attorneys
obtained fifteen cents an acre (the 1872 value),
without interest, for sixteen million acres of
otherwise unextinguished Shoshone Indian title land
worth billions today. The lawyers claimed victory. The
Shoshones' government trustee somehow got the land. A
great many Shoshones are understandably convinced that
they actually lost. The courts have treated this
disastrous outcome as binding on all Western Shoshone
tribal governments and individuals, virtually none of
whom were parties or had legally sufficient notice of
the proceedings. In the absence of a land settlement,
Western Shoshone tribal governments have unanimously
opposed a naked money distribution for nearly 25
years, and some have turned to the United Nations and
the Inter-American Commission on Human Rights for
relief.
Followed from beginning to end, through over
fifteen reported court decisions, the Western Shoshone
land litigation literally does not make sense, except
in terms of the political imperative that Indians must
lose their lands. It can't be reconciled with
Anglo-American property law. Lewis Carroll wrote this
script. It is an Alice in Wonderland World where
racism is enshrined as law. I advise curious lawyers
and law students that the only thing to understand
about this litigation is that even the best legal
scholars can't understand it.
The Western Shoshone judgment fund has been held
by the Interior Department since its award in 1979. No
Western Shoshone has ever received a penny.
Nonetheless, the U.S. Supreme Court held in 1985 that
when the U.S. handed a check from its left hand, as
judgment debtor, to its right hand, as judgment
creditor and trustee, the Western Shoshones were paid.
The Ninth Circuit Court of Appeals subsequently held
that this "payment" precludes the Shoshones
from asserting title, even as a defense by Shoshones
in actual possession since time immemorial to trespass
claims brought by the U.S., as in U.S. v. Dann.
The Claims Court twice advised Shoshones who
attempted to prevent the loss of their land by
intervening or seeking a stay that their remedy was in
Congress, not the courts. While Senator Reid's money
distribution "remedy" will make the
fictional payment a reality, it will do nothing to
provide a land base and a future for the Western
Shoshones. It will, however, allow the Government to
announce that the matter has been resolved.
Rather than providing an example of "that
distributive justice which is the glory of a
nation" (President Washington's Secretary of War,
Henry Knox, describing the federal government's
solicitude for Indian land rights), the proceedings of
the Claims Commission and the Claims Court in many
Indian land cases, most notably Western Shoshone
Identifiable Group v. U.S., illustrate a profound
glitch in the American character. We claim to be the
finest example in human history of a political system
that provides justice and equality for all. However,
almost without exception, when the Government and the
courts have been faced with the prospect of
acknowledging original Indian ownership of substantial
tracts of land, and the equality of Indian title under
the Constitution, they have blanched and shamelessly
resorted to the exercise of raw political and judicial
power in the absence of any principled and reasoned
basis in law for the Indians' loss of their homelands.
The white man continues to covet Indian land and
racist and politically expedient "doctrines"
of law continue to poison American jurisprudence.
Thomas E. Luebben, Director of Litigation
Native Lands Institute
Partner Luebben, Johnson & Young
For additional information concerning Western
Shoshone issues contact the Western Shoshone Defense
Project, P.O. Box 211308, Crescent Valley, Nevada
89821 ph: 775-468-0230, fax: 775-468-0237 email: wsdp@igc.org
and consult the following web pages:
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