Case Summary - April 7, 1998

· On March 6, 1998 the Inter-American Commission on Human Rights of the Organization of American States "reiterated its request to the United States Government to stay its action [impeding Western Shoshone land use] pending an investigation by the Commission" of the case. The Inter-American Commission is the organ mandated by the Charter of the OAS with the task of promoting the observance of human rights among OAS member states, including the United States. As a member of the OAS, the United States is legally bound to uphold the organization's human rights principles.

· The Commission's request to the United States was in response to a communication from Western Shoshone sisters Mary and Carrie Dann urging relief against notices and orders issued by the Bureau of Land Management (BLM) on February 19, 1998. By the notices and orders, the BLM repeats earlier assertions that the Danns and other Western Shoshone people are in trespass of lands; orders them to remove their livestock and property from the lands; and threatens them with fines, imprisonment, impoundment of cattle, and confiscation of property if they fail to comply with the order.

· The United States government has failed to comply with the request of the Inter-American Commission to stay the BLM's threatened actions. Instead, on April 6, 1998 the BLM issued another notice to the Danns. In this most recent notice the BLM threatens to take enforcement action against the Danns if they do not remove their livestock and cattle from the disputed land within fifteen days.

· The Inter-American Commission's recent request is the second such request made to the United States in relation to the Danns. The first was in 1993, just after the Dann sisters initiated proceedings against the United States before the Commission. The Danns filed a petition with the Commission to challenge the United States' failure to recognize their rights as Western Shoshone people to ancestral lands and to the enjoyment of their culture which is tied to the land. The Danns assert that the United States' actions which impede their use and enjoyment of Western Shoshone ancestral lands are in violation of relevant provisions of international human rights law, and that the mechanism by which the United States purports to have extinguished Western Shoshone land rights is invalid for its discriminatory character and failure to accord due process.

· In its various responses to the Inter-American Commission, the United States does not contest that the Danns are Western Shoshone Indians or that the lands in question are Western Shoshone ancestral lands. Rather, the United States denies altogether the continuing existence of Western Shoshone legal rights to ancestral lands, and it bases that denial on earlier proceedings before the U.S. Indian Claims Commissions (ICC). The United States characterizes the ICC proceedings as having conclusively established that Western Shoshone title to land and appurtenant rights were extinguished at same point in the past.

· The United States' legal position relies on the U.S. Supreme Court decision in United States v. Dann, in which the Court held that the Western Shoshone are statutorily banned from asserting aboriginal title to ancestral lands, as a result of the stipulated finding by the ICC that Western Shoshone title had been extinguished some time ago by actions of "gradual encroachment." The Court held that, under the relevant statute, the Western Shoshone became barred from asserting title when "payment" of the claim occurred, and the Court determined that such payment occurred when the government placed money in a U.S. Treasury account for the benefit of the Western Shoshone.

· In its ruling in United States v. Dann, the Supreme Court did not consider the extent to which gradual encroachment had actual occurred onto Western Shoshone lands, or that such gradual encroachment does not ordinarily suffice under U.S. law to extinguish Indian land rights. Nor did the Court take into account that numerous Western Shoshone had alleged fraud in the ICC proceedings and had attempted to withdraw the claim before the ICC when it became apparent that they could only receive money and not confirmation of land rights through those proceedings. The Supreme Court simply ignored such considerations in favor of an unmitigated application of the statutory bar of the Indian Claims Commission Act.

· Despite the United States' position, the Danns and other Western Shoshone people have continued to use Western Shoshone aboriginal lands in accordance with historical custom. The Western Shoshone never have consented to the taking of their aboriginal territory, the boundaries of which am described in the 1863 Treaty of Ruby Valley between the Western Bands of Shoshone and the United States. The Treaty allowed for certain specified uses of Western Shoshone lands by non-Indians, while leaving the Western Shoshone in peaceable enjoyment of their ancestral territory. Additionally, the Danns and other Western Shoshone have refused to accept the money awarded by the ICC, and that money has not been distributed out of the U.S. Treasury account, where it remains today.

· The Danns filed their petition with the Inter-American Commission on Human Rights in the hope of resolving the ongoing dispute with the United States. At stake is their way of life which is entirely dependent on the land and its resources. Earlier this year, the Yomba Band of Western Shoshone intervened in support of the Danns in the case before the Commission.

· For its part, the United States has challenged the admissibility of the case before the Inter-American Commission. The United States argues that the dispute is not a matter of human rights, even though numerous developments internationally, including statements by U.S. diplomats in United Nations forums, and the Commission's own jurisprudence clearly regard indigenous land issues as falling within the ambit of human rights.

· The Inter-American Commission issued its request for a stay of BLM action to the United States as an interim measure, to prevent irreparable harm from coming to the Danns while the Commission proceeds to consider the various issues raised by the case.