Outline of Western Shoshone
National Government's Finding of Facts against the United
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
"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
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
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
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
The foregoing points of evidence were never brought up in the
United States Supreme Court.
- 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
- 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."
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:
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.
- Shoshone Tribe vs. United States, 11 Ind. Cl. Comm.
- 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).
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
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