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