A letter to Senator Inouye concerning the plight of the Western Shoshone

Posted: September 25, 2002 - 11:30am EST
by: Charles Wilkinson / Distinguished University Professor / Moses Lasky Professor of Law / University of Colorado at Boulder

Dear Senator Inouye and Members of the Senate Indian Affairs Committee:

Re: Western Shoshone Distribution Act (S. 958) and the Timbisha Shoshone Homeland Act

I am aware that the Senate Indian Affairs Committee is considering legislation to authorize final payment and distribution of an Indian Claims Commission (ICC) award to the Western Shoshone (S. 958). I am also aware that the Inter-American Commission on Human Rights has issued a report finding that the United States has failed to meet its obligations under international human rights law to recognize and protect Western Shoshone land rights -- rights that are further jeopardized by S. 958.

The proposed Western Shoshone Distribution Act to distribute the Indian Claims Commission award amid controversy and disagreement among both elected tribal and traditional Western Shoshone leadership, will not resolve the long-standing land rights issues of the Western Shoshone in Nevada. Certainly, it will not redress the harms caused by the ICC proceedings so clearly recounted in the report of the Inter-American Commission on Human Rights. In my opinion, distribution of the Indian Claims Commission award will likely exacerbate conflicts among the Western Shoshone communities and between the Western Shoshone and the federal government.

I write to the committee to propose an alternate course of action that has been successfully implemented under circumstances very similar to the situation faced by the Western Shoshone of Nevada. In 2000, Congress passed the pathbreaking Timbisha Shoshone Homeland Act.  I recommend that Congress now approve legislation that will mandate negotiation of the Western Shoshone claims to secure an adequate land base for the Western Shoshone people using the Timbisha Shoshone Homeland Act as a model. Congress should take no action to distribute the ICC award unless such action is specifically provided for in the negotiations. The process must be a government-to-government negotiation between sovereign entities, and the composition of the federal negotiating team should reflect the high priority of the United States government to address both tribal and federal interests. The federal and Western Shoshone teams should jointly undertake a study to determine the lands appropriate as a land base for the Western Shoshone. Funds necessary to undertake these activities should be appropriated.

This is the right policy, and one that is consistent with the Inter-American Commission’s findings. Perhaps most important, in my opinion it is the only course of action that will result in a permanent, fair resolution of the issues that have plagued both the Western Shoshone and federally government for decades.

I make this recommendation based primarily on my experience as an impartial facilitator in negotiations between the National Park Service (and other federal agencies) and the Timbisha Shoshone Tribe to provide a permanent land base within the Timbisha Shoshone’s aboriginal homeland in Death Valley, California. (I was also involved in the negotiations between tribes and the departments of Interior and Commerce over the application of the Endangered Species Act in Indian country.) These negotiations were based on the government-to-government process outlined above and resulted in a comprehensive agreement that was set forth in the Timbisha Shoshone Homeland Act. This legislation and the process in leading to its enactment two years ago provide an important model for Congress to consider in this case. It is summarized below.

Timbisha Shoshone Homeland Act

The Timbisha Shoshone were dispossessed of their ancestral lands in 1933 when President Hoover created the Death Valley National Monument. Some tribal members left Death Valley, but those who remained lived as virtual squatters in the national park. In October, 1994, Congress inserted a provision in the California Desert Protection Act requiring the Department of the Interior to study the tribe’s ancestral lands within and outside Death Valley National Park with the purpose of identifying lands "suitable for a reservation." The department was given one year to conduct the study and prepare and submit a report to Congress, and it was instructed to do in consultation with the tribe.

The first phase of implementation was not successful. Three agencies, the National Park Service (NPS), the Bureau of Land Management (BLM), and the Bureau of Indian Affairs. (BIA) from the Department of the Interior and the National Forest Service (USFS) from the Department of Agriculture began to meet with the tribe in May, 1995. But after nine months of "study," at least five major meetings between the tribe and a host of government officials, and three drafts of the study report, talks broke down with deep hostility and distrust among all parties at the table.

Although I was not involved in this phase of the process, it seems clear in retrospect that the provision in the Desert Protection Act did not create a process designed to accomplish the stated goals of the Congressional mandate. The federal agencies did not see resolution of the Timbisha Shoshone’s need for a homeland as a real priority. They initially sought only to undertake a consultation process, rather than a negotiation process in which issues are resolved by mutual agreement between equal parties. This did not work, and the intent of Congress to create a homeland for the Timbisha Shoshone and resolve years of conflict with the federal government was frustrated.

The ultimate success of the process in Death Valley demonstrates how sovereign entities can come together as equals in bilateral negotiations and reach agreement without either party sacrificing its vital interests. In the second round of talks, the process has the attention and commitment of high-level policy makers in the relevant federal agencies, and this was reflected in the composition of the federal negotiating team. The parties agreed to a framework that, among other provisions, acknowledged their special political relationship as sovereign entities and specified that their negotiations were intended to lead to a specific, formal proposal for achieving a Timbisha homeland. The framework also set forth the interests and principles each party would work to fulfill. Procedural agreements were reached which provided safety and predictability to all parties. The parties invited the participation of an independent facilitator.

It was apparent when I joined the second round of negotiations that both the Timbisha and federal negotiating teams started with great apprehension and distrust. Yet they were able to agree on substantial lands both within and outside Death Valley National Park as a homeland for the Timbisha, and, among other things, to acknowledge that the interests of both the Tribe and the National Park Service were served by "recognizing their coexistence on the same land and by establishing partnerships for compatible land uses."

This comprehensive agreement was reached when the government approached the Timbisha as an equal and began negotiations in good faith. It was not easy. The agreement was hammered out through a process of compromise by representatives of policy makers and by people who will have to live with the agreement as they implement it from day to day. As a result, over 65 years of conflict between the Timbisha Shoshone and the federal government have been resolved.

I hope the Senate Indian Affairs Committee will reject S. 958 and move forward with legislation to mandate a process of negotiation similar to that outlined above for the Western Shoshone. Thank you for the opportunity to provide this statement for the record. I would be happy to answer any questions from the Committee or to provide additional information about the Timbisha Shoshone Homeland Act.

Sincerely, Charles Wilkinson (Distinguished University Professor, Moses Lasky Professor of Law, University of Colorado at Boulder.)

September 6, 2002