Outline of Western Shoshone National Government's Finding of Facts against the United States

Raymond Yowell, Western Shoshone National Council Chief - January 1998



 
The Western Shoshone Nation precedes the United States as a peoples and as a nation upon the North American continent.  The Western Shoshone have been on this continent continuously from time immemorial.  The Western Shoshone, as an indigenous nation, should not litigate the land issue in United States court, but should be dealt with on the nation to nation level, through the president and the State Department.

In 1863, the Western Shoshone government and the United States government entered into a treaty of peace and friendship.  The treaty did not cede Western Shoshone territory to the United States.

Article VI, Paragraph 2 of the United States Constitution states:
"This Constitution and the laws of the United States which shall be made in pursuance thereof and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby.  Anything in the Constitution or Laws of any state to the contrary notwithstanding."

Treaties are made only between independent nations.  Upon the ratification of the treaty by the Western Shoshone government and the United States government, all future contacts and interaction became international.  In 1984, and again in 1986, Unites States federal courts have verified that the 1863 treaty between the Western Shoshone government and the United States government is in full force and effect.

Article VI of the Treaty states that "the said bands agree that whenever the President of the United States shall deem it expedient for them [the Western Shoshone] to abandon the roaming life, which they now lead, and become herdsmen or agriculturists" they would do so.  A number of Western Shoshone have become "herdsmen or agriculturists" and are engaged in this livelihood today.  The Western Shoshone have complied with this provision of the 1863 Treaty of Ruby Valley, to the present

The territorial title of the Western Shoshone has never been litigated in the United States federal courts. The United States Court of Appeals, Ninth Circuit, has so ruled.  The United States Supreme Court did not overturn this ruling.  This remained the status of the Western Shoshone territorial title until the United States and Nye County (of the state of Nevada) engaged each other in a title dispute in the United States federal court.

In the lawsuit United States vs. Nye County, Nevada, the United States cited as its acquisition authority for "taking" Western Shoshone territory, the 1848 Treaty of Guadalupe Hidalgo.  Indians are mentioned only in Article 11 of this treaty.  There are several points raised by the Western Shoshone Nation concerning this Treaty, and these are in the first sentence of Article 11, which states:  "Considering that a great part of the territories which, by present Treaty, are to be comprehended for the future within the limits of the United States, is now occupied by savage tribes."   Two words stand out in this sentence.  First, the word "comprehended" is not clear in its use in the Treaty.  Definition by dictionary is stated as:  to grasp the meaning of - understand - to take in - embrace.  The Western Shoshone hereby puts the following definition on the word as used in the Treaty - the territories - are "thought" to be - or understood to be - for the future within the limits of the United States..."  The second word in the first sentence is "occupied."  Again this word is a strong indication of the status of the territories in 1848.  Definition by dictionary is:  to take a hold, possession of.  This word therefore reveals the fact that the "territories" were in the possession of "savage tribes."  This is a clear statement that the Mexican government did not extinguish the Indian title in the territories, and, therefore, since the Western Shoshone were one of the "savage tribes" in the territories, their land title was not extinguished.  An additional point is that there is no legal land description in the Treaty.  Given the facts and points raised by the Western Shoshone in the 1848 Treaty of Guadalupe Hidalgo, there is no "taking" of Western Shoshone land title by this Treaty.  A further point is, if the United States acquired Western Shoshone territory by the 1848 Guadalupe Hidalgo Treaty, then why did the United States ask in the 1863 Treaty of Peace and Friendship between the Western Shoshone and the United States permission of the Western Shoshone to pass through their territory?  Since land title dispute United States vs. Nye County, Nevada ignored Western Shoshone territorial land title, the Western Shoshone Government was forced to intervene.

By intervening in the lawsuit between the United States and Nye County, the Western Shoshone Government is not bringing a claim against the United States.  Therefore the bar referred to by the United States Supreme Court in US v Dann does not apply (Sec. 22 ICC).  The Western Shoshone are adamant in holding the United States accountable to its own due process of law, as required under the United States Constitution.

The Supreme Court of the United States "deemed" Western Shoshone territorial title was extinguished when the United States Department of the Interior Secretary accepted the monetary award of the Indian Claims commission, as the "trustee" for the Western Shoshone Nation.  The Western Shoshone question under what authority did the US Secretary of the Interior take this action.  How did he become the "trustee" for the Western Shoshone Nation?  How can the United Stated become the trustee of a nation of people, a nation that has a treaty with the United States, which (as is stated above) is in full force and effect as determined by the United States' own federal court.  The Western Shoshone Government challenges the so-called "trusteeship" of the United States over Indian nations, and particularly over the Western Shoshone Nation.  The Western Shoshone government requests the United States law under which the trusteeship was made.  The Western Shoshone government's research has not found such a law.  If the United States cannot produce this law, then the United States Department of the Interior is outside of its authority in acting as a trustee for the Western Shoshone Nation, and in accepting the monetary award from the U.S. Indian Claims Commission.  It is the position of the Western Shoshone government that the United States Department of the Interior's acceptance of the United States Indian Claims Commission monetary award was illegal and that it therefore has no effect on the ownership and territorial rights of the Western Shoshone Nation.

In 1980, the Western Shoshone rejected the ICC award.  A distribution plan was not effected in the time US laws provided.  The ICC was given 6 months to make a plan for monetary distribution, and an additional three months if necessary - 9 months in total.  In normal US law, when a law's requirements are not met, the law dies.  How is this law different in the ICC monetary award, as it applies to the Western Shoshone?

    The United States Supreme Court ruled in United States vs. Dann in 1985, that the Danns could not defend because the tribal land title had been extinguished by "gradual encroachment" as "found" in the Indian Claims Commission.  Several points must be addressed here to reveal the United States' inventive maneuvers.

  • Foremost was that the lawyers for the Te-moak Tribal Council would not be paid unless they could prove that the Western Shoshone territory had been taken by the United States.  The United States Indian Claims Commission (ICC) was supposedly established to compensate Indian Peoples for lands taken but never paid for.  It was not given the authority to extinguish land title.  Lawyers were to be paid with a percentage of the claims award.  Therefore the motivation for the lawyers to only pursue a monetary award was their own self-interest, not the interest of their clients.  They never discussed alternatives, even after they found no event having taken place from which they could determine a date of "taking."  After failing to find such an event, the attorneys made no effort to inform their clients, the Temoak Tribal Council - or any other Western Shoshone entity - to ask what the Western Shoshone people wanted to do about this.  They never questioned whether to continue to pursue only a monetary claim, or whether to withdraw the claim from the ICC altogether.  Since the attorneys made no objection based on their inability to find a "taking" date, the ICC process continued, and no attempt to correct the error was made.  By continuing the process, a date was agreed on by the claims lawyers and the United States without Western Shoshone input:  July 1, 1872.  This date later began to be referred too as the date of "taking" by the United States.  The ICC thus erroneously set the date that the Western Shoshone title is purported to have been extinguished.  Furthermore, the Western Shoshone Government questions whether the claims lawyers had the power of attorney to act for the Western Shoshone.  How can they have power of attorney over a nation that has a treaty with the United States?
  • In 1977, the Te-moak Tribal Council, and the Western Shoshone original government joined in firing the ICC lawyers.  In spite of their firing of the ICC lawyers, the Bureau of Indian Affairs repeatedly renewed their contracts, until the ICC monetary award was made from the United States Treasury to the Secretary of the Interior.  By accepting the monetary award from the ICC, the Interior Secretary influenced the court case United States vs. Dann, that was working its way up through the United States federal courts.  This later provided a way out for the United States in the Dann case, and allowed the Supreme Court to render a decision "that the Western Shoshone had been paid for their land title when the Interior Secretary accepted the monetary award form the Indian Claims Commission."
The foregoing points of evidence were never brought up in the United States Supreme Court.

A further question that the Western Shoshone government raises is:  is there a precedent in United States history where citizens of the United States lost land for the United States by appearing in another nation's court?  For instance, in a Canadian or Mexican court?  Or anywhere else?  If there is no such precedent, then how can Western Shoshone citizens lose land to the United States in a foreign United States court?  Because of the international relationship between the United States and the Western Shoshone, US courts have no jurisdiction over Western Shoshone citizens.  Until the United States can produce a legal land title transfer, jurisdiction remains with the Western Shoshone Nation.

The United States Indian Claims Commission gave no specifics as to the number of United States citizens doing this so-called encroaching.  Was it 1 US citizen, 10 US citizens, 100 US citizens, 1000 US citizens, 5000 US citizens?  Just how many US citizens are required to effect the so-called "taking" of Western Shoshone land by US citizens coming into the Western Shoshone territory?  Also, no specific Western Shoshone land areas were identified nor legal descriptions thereof given, as to exactly where each US citizen encroached.  Additionally, there were no numbers of acres, sections or townships exhibited that were supposedly encroached upon by US citizens.  What percentage of Western Shoshone land must be supposedly encroached on by US citizens to effect the "gradual encroachment" supposedly "found" in the United States Indian Claims Commission?  The Western Shoshone government does not understand how this kind of supposedly legal proceeding can end up with a decision that so-called "gradual encroachment by US citizens" can be justified under United States law, when no legal statute exists to allow this, when no due process of law has occurred, and when no requirements are revealed as to exactly what is entailed to effect the so-called "gradual encroachment" by US citizens in Western Shoshone territory.

As a statement of fact, today in the state of Nevada, where the majority of Western Shoshone land lies, only 14% of the land is in private ownership.  This is for the whole state of Nevada, and this takes into account the Reno and Las Vegas areas where most of the private lands are concentrated, and most of the population lives.  Western Shoshone lands lie in the least settled area of the state.  While 14% is itself an inflated figure, we use it to show the outrageousness and ridiculousness of the ICC "finding" that Western Shoshone land was "taken" by this process.  It would appear that even if this process was legal, that at least 51% of Western Shoshone territory would have to have been encroached on to effect the so-called "taking" for the United States by its citizens.

The Western Shoshone government questions the legality of this process under United States laws, beginning with a look as to whether due process of US law has been complied with throughout the whole Western Shoshone land claims process.

With the Treaty of 1863 being ratified by the Western Shoshone and the United States, there are only two ways that land can be acquired by either nation.  One is by a declared war, and the second is by a treaty of land cession.  Neither of these events have occurred.  The document referred to by the United States and Oro Nevada attorneys is without merit, because due process of United States law has not been followed.  The documents the Western Shoshone make reference to are the following:

  • Shoshone Tribe vs. United States, 11 Ind. Cl. Comm.  387,416 (1962)
  • Western Shoshone Identifiable Group vs. United States, 40 Ind. Cl. Comm. 318 (1977)
  • Temoak Bands of Western Shoshone Indians vs. United States, 219 Ct. Cl. 346,593 F. 2D 994 (1979)
  • United States vs. Mary and Carrie Dann, Cvil. No. R. 74-60 (Jan 5, 1977)
  • United States vs. Dann, 573 F. 2D 222 (9th Cir. 1978)
  • United States vs. Mary and Carrie Dann, Cvil No. R-74-60 (April 25, 1980)
  • United States vs. Dann, 706 F. 2D 919 (9th cir. 1983)
  • United States vs. Dann 470 U.S. 39, 50 (1985)
  • Western Shoshone National Council vs. Molini, 951 F.2D 200 (9th Cir. 1991).
All of these cited cases are moot and void because the United States did not follow due process of their laws.  United States law has one main underpinning, and that underpinning is "due Process of law."  The first law the United States passed in relation to "Indians" is the 1787 Northwest Ordinance, in which the United States stated:  "Indian land will not be taken from them without their consent."  This law has specific meaning to the Western Shoshone land rights issue.  The 1861 Nevada Territorial Act makes pointed reference to this law, and states that no Indian land will be included in the Territory of Nevada without the Indians' consent.  A large portion of Western Shoshone territory lies in the present state of Nevada.  The Western Shoshone Government has researched this subject, and has not found documentation that this law was complied with, either from the beginning of the Nevada territorial creation or later in the creation of the state.  Therefore it is the position of the Western Shoshone government that the United States has not complied with the due process requirement under the United States law, to acquire Western Shoshone land.  This lack of due process therefore nullifies both the Nevada Territorial Act and the Act to Establish the State of Nevada.

The Western Shoshone Government insists on the rule of law in its dealings with the United States.  The United States is supposed to be a nation ruled by the laws it passes, and due process is the main underpinning to this system of lawful rule.  Without adherence to due process, the laws of the United States become meaningless.

The Western Shoshone government puts forward the words written by William Penn in his essays first published in the National Intelegencer, in 1829.  "But who are the men that impose so fearful an alternative?  And what is the government that hesitates to redeem its pledge?  Is it some rotten aesthetic depotism, sinking under the crimes and corruptions of bygone centuries, feeling no responsibility, and regarding no law of morality or religion?  Not so.  It is a government, which sprung into existence with the declaration ‘that all men are created equal; that they are endowed by their creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness,’  from a government thus established, this flagrant wrong is apprehended;  and from a people, who boast that they are the freest and the most enlightened community on earth;  who insist on the right of every community too govern itself; and who abjure the very idea of foreign dictation."  These words are still applicable today, although he made these remarks just before the removal of the Cherokee Nation from their homeland, and put on the long march to Oklahoma.  That journey became known as the "Trail of Tears," as a great many of the people perished along the way.

Concerning Western Shoshone land rights, all that the Western Shoshone Nation is pursuing against the United States is that due process of United States law be followed to the letter.

Since its formalization in 1982, the Western Shoshone government been open for real, meaningful dialogue with the United States Government on the Western Shoshone land issue, and it continues to hold to this policy to this date.
 

Background on Western Shoshone Issues