The Inter-American Commission on
Human Rights Considers The Danns Case Against the
United States
By Steve Tullberg, Indian Law Resource Center
from Spring 1996 Newsletter
In 1993, the Indian Law Resource Center filed a
human rights complaint against the United States in
the Inter-American Commission on Human Rights on
behalf of Mary and Carrie Dann and their family, or
band. The case challenges the United States to reform
discriminatory legal doctrines that have denied basic
constitutional rights to Indian tribes for
generations. This case could prove to be a crucial
mechanism for helping the Western Shoshone in Nevada
acquire a decent land base. The case builds on the
long, unrelenting struggle of the Western Shoshone to
secure their land rights. The Dann complaint is
believed to be the first such human rights complaint
filed against the U.S. on behalf of American Indians
in the Inter-American Commission.
The circumstances of the Dann sisters -- and other
Western Shoshone -- are particularly shocking. In
1985, the federal government "extinguished"
Western Shoshone title to major areas of land in
Nevada, using procedures that would have been clearly
unconstitutional if they had been applied to anyone
other than an Indian tribe. The government's action
was based on the results of an Indian Claims
Commission proceeding that was clearly fraudulent. In
1951 a lawyer -- with the approval of the federal
government -- filed a claim that purported to be on
behalf of all Western Shoshone, asserting that
practically all the Western Shoshone lands had been
taken by the United States. The claim was false in two
main respects: the Shoshone land had never been taken
by anyone and had never been given up by the Western
Shoshone. Indeed, some Western Shoshone were still in
possession of and using portions of the land. The
claim was only for money damages, not for return of
the treaty-guaranteed Western Shoshone land that had
been "taken."
The Danns and some of the Western Shoshone tribes
tried for years to intervene or to stop the claim
after they discovered that it could extinguish their
rights to land. The courts refused to allow the
Western Shoshone to protect their land rights. In
spite of the obvious injustice to the Shoshone people,
the Claims Commission awarded about 15 cents per acre
for the land. The award has been refused by all the
Western Shoshone tribes. Nevertheless, when that money
was placed in the U.S. Treasury, the Danns lost the
grazing land that has been in their family for
generations -- though they had never had a day in
court to prove the validity of their title and had
never been allowed to intervene in the claim. The
Danns exhausted all possibilities for relief through
protracted litigation in the federal courts from the
1970's to the early 1990's.
The complaint filed before the Inter-American
Commission on Human Rights states that the actions of
the federal government in this case violate
universally-recognized human rights; the right to due
process, the right to equal protection of the laws and
the right to own property. Perhaps even more
fundamental, the complaint states that the rules
applied to take the Danns' land are racially
discriminatory and would deprive these Indians of
their way of life, their culture.
Non-Indians do not have to face the possibility
that the federal government will take away their
property without notice, without judicial hearing and
without fair compensation based on present fair market
value. In fact, non-Indians do not have to worry about
their land being taken at all unless it is for a
public purpose, such as a highway or public building.
United States law does not permit the federal
government to confiscate one person 's property for
the benefit of another. Unfortunately, this law,
founded upon the Fifth Amendment of the Constitution,
does not apply equally to Indians.
The Danns hope that their human rights case will
provoke a review of the federal government's actions
and policies in this case. The ultimate objective is a
fair resolution of Western Shoshone land rights.
WHAT IS THE INTER-AMERICAN COMMISSION ON HUMAN
RIGHTS?
The Inter-American Commission on Human Rights is a
body of the Organization of American States (OAS). It
has the authority to hear and investigate human rights
complaints against the member nations of the OAS,
including the United States. The Commission acts
primarily as a mediator attempting to find a friendly
settlement that is acceptable to both the complaining
party and the accused government. A public report will
be made only after the Commission decides that a
friendly settlement cannot be reached.
Through its work, the Commission upholds and
strengthens the international law of human rights.
Because national or "domestic" law is often
discriminatory and unfair, the development and
recognition of human rights at the international level
is extremely important to Indian nations and tribes.
There has been tremendous interest at the
international level, at both the United Nations and
the Organization of American States, in creating a new
body of human rights law that would encourage respect
for the rights of Indians of the Americas and other
indigenous peoples. International legal standards can
be a very important force for reforming national laws
and fostering more enlightened national policies.
THE RESPONSE OF THE UNITED STATES
The United States filed its response to the Dann
complaint in 1993 and 1994, arguing that the
Commission should not consider the Danns' complaint
for a variety of technical and procedural reasons. The
government's response even implied that the United
States is not bound by the international human rights
laws that the Commission applies. The government
argued that the issue of title to Western Shoshone
lands has been litigated and decided in the context of
the Indian Claims Commission case, and therefore
should not be further reviewed.
Actually, no court has ever considered or decided
the question of Western Shoshone title to the lands
described in the Treaty of Ruby Valley. One of the key
points of the Danns' complaint is that they and other
Western Shoshone have never had a "day in
court" to prove and defend their rights to the
Treaty of Ruby Valley territory. The U.S. government
has consistently misinformed the Commission about this
central fact.
THE FIRST HEARING IN THE HUMAN RIGHTS CASE
On October 10, 1996, the Commission conducted a
formal hearing in Washington, D.C. to hear the
position of the Danns and the United States. Carrie
Dann spoke eloquently to the Commission about her
band's long use and occupation of the Western Shoshone
lands and her years of work to stop the Indian Claims
Commission case and to defend the land of the Western
Shoshone Nation. Attorneys Steve Tullberg and Tim
Coulter of the Indian Law Resource Center presented
the legal arguments, focusing on the government's use
of discriminatory laws to extinguish Western Shoshone
land title without due process of law. On behalf of
the Danns, the Center also submitted maps showing how
the federal 1872 mining law has allowed companies to
claim almost all of the land that the Danns have long
relied upon for grazing.
The United States was represented by a team of
lawyers from the Department of Justice, Department of
the Interior and Department of State. The lead lawyer
for the government, Darla J. Zane, repeated the U.S.
position that Western Shoshone title had been
extinguished by the so-called "payment" of
the Indian Claims Commission award. She also tried to
degrade Western Shoshone land rights by using the old
racist concept that these Indians had just
"traveled across" this land.
The high point of the hearing came when Commission
members began to ask pointed question of the United
States: "What was the purpose for which the land
was taken?"; "How were the Western Shoshone
compensated for the land?" Members of the
Commission were visibly disturbed to hear that the
compensation was only about 15 cents per acre. It
became clear that the United States could not give
satisfactory answers to the Commission's questions,
and the United States was asked to submit answers in
writing.
At the close of the hearing, the Commission chair
indicated his desire to begin "friendly
settlement" talks between the government and the
Danns. Such talks, under the supervision of the
Commission and with the Commission's participation,
can be very useful in bringing about changes in
government policy or government action. Of course,
there can be no question of compromising Western
Shoshone Nation land rights. And there is no hope for
settlement until the United State government reverses
its present position and musters the political will to
achieve a just resolution of long-standing Western
Shoshone grievances.
Most recently, in March of this year, the United
States at last submitted its written answers to the
Commission. Nothing new or encouraging was said. The
Danns will respond before the end of April and will
request further action by the Commission.
THE NEED FOR NEW UNITED STATES POLICY THAT
UPHOLD INDIAN RIGHTS
The United States has consistently failed to honor,
ever since the 1863 Treaty of Ruby Valley, its solemn
commitments to the Western Shoshone people. The
question not answered is why the Clinton
Administration continues to follow the discriminatory
policies of all prior administrations. There is hope,
however, that the spotlight of international attention
might persuade the United States to adopt new policies
that will uphold the human rights of the Danns and of
all the Western Shoshone.
For more information about the case, contact the
Indian Law Resource Center at either 601 E. St, SE,
Washington, DC 20003 Ph: 202-547-2800 Fax:
202-547-2803 or 602 N. Ewing St., Helena, MT 59601
Tel: 406-449-2006 Fax: 406-449
return to Inter-American
Commission on Human Rights of the Organization of
American States
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