* Department of Legal Studies, University of Massachusetts, Amherst
For identification purposes only. This testimony reflects only the views of Professor d'Errico and is not an official position of the Department or the University.
I have been involved with federal Indian law as an attorney and professor for more than 30 years. I have been studying the Western Shoshone situation since 1995, when the Western Shoshone National Council attempted to intervene in U.S. v. Nye County, 920 F. Supp. 1108, a case involving questions of title to lands located within territory designated by the 1863 Treaty of Ruby Valley.
After denial of their petition for intervention in Nye County [See 133 F.3d 930, 1997 U.S. App. LEXIS 36030, 1997 WL 804210 (9th Cir. (Nev.).], the Western Shoshone initiated actions seeking injunctive and compensatory relief for violations of Western Shoshone territorial integrity, pursuant to the Treaty of Ruby Valley [Dist. Ct. (Nev.) No.: CV-S-97-327-HDM (RLH) (1997), 9th Cir. No. 00-15928 (2000)]. A preliminary injunction was issued, but the actions were eventually dismissed by the District Court. An appeal was subsequently withdrawn, after the Western Shoshone became concerned about the Court's loss of several documents.
I have established a Web site on this history of Western Shoshone National Council litigation: http://nativeweb.org/pages/legal/shoshone/index.html
This bill, S. 958, contains a substantial deception and is unworthy of the Senate Committee on Indian Affairs. In the face of opposition from the Western Shoshone National Council, the bill should be rejected.
If the intention of this bill were to provide some form of compensation to the Western Shoshone while preserving their rights to prospective assertion and enforcement of the 1863 Treaty of Ruby Valley, that intention would require a wholesale revision of the bill.
Section 2 (9) of the bill states as follows:
Receipt of a share of the judgment funds under this section shall not be construed as a waiver of any existing treaty rights pursuant to the '1863 Treaty of Ruby Valley', inclusive of all Articles I through VIII....
This section flies in the face of the Indian Claims Commission Act itself, which stated that
The payment of any claim ... shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy. § 22(a), 60 Stat. 1055, 25 U.S.C. § 70u(a) (1976 ed.).
As any student of the history of the Western Shoshone knows, the core of the 'controversy' involved here is a dispute over title to lands designated in the 1863 Treaty of Ruby Valley. S. 958 provides in express terms for "distribution of the funds awarded to the Western Shoshone identifiable group under Indian Claims Commission Docket Numbers 326-A-1, 326-A-3, 326-K." The assertion in Section 2(9) that purports to protect "any existing treaty rights" is therefore legally meaningless. The necessary effect of the bill would be to discharge treaty rights.
I suspect that the purpose of Section 2(9) is political. It appears to have been crafted with an eye to deceiving Western Shoshone persons, who have thereby been encouraged to believe that they can accept the claims 'award' without prejudice to their ongoing efforts to enforce the terms of the 1863 Treaty. Such a purpose is contrary to the ethical and legal obligations of the United States-stated repeatedly in statute and court decision over the whole course of federal Indian law-to deal honorably with the Indigenous Nations.
When all is said and done, there is simply no way for the Congress to simultaneously discharge and preserve the treaty rights of the Western Shoshone.
A legal analysis, as provided above, indicates that passage of this bill will necessarily negate the existence of any rights pursuant to the Treaty of Ruby Valley.
It may be argued, however, that Section 2(9) of S. 958 is not a deception. In response to such an argument, it must be asked: "What rights pursuant to the 1863 Treaty of Ruby Valley will be existing after passage of this bill?"
It is only fair that the sponsors provide a specific enumeration of treaty rights that will remain after passage and that this information be publicly provided in the record prior to any decision by the Senate Committee on Indian Affairs to approve this bill.
If the intention of this bill were to provide some form of compensation to the Western Shoshone while preserving their rights to prospective assertion and enforcement of the 1863 Treaty of Ruby Valley, that intention would require a wholesale revision of the bill as follows:
In Dann, the Supreme Court ruled that
. . . "payment" occurs under § 22(a) when funds are placed by the United States into an account in the Treasury of the United States for the Tribe.... Id., at 44-45.
Case law prior to the Dann ruling was "that payment does not occur until a final plan of distribution has been approved by Congress." Id., at 45. This was the clear ruling of the Court of Appeals for the Ninth Circuit in U.S. v. Dann, 706 F.2d 919 (1983), and of the Court of Claims in two earlier phases of the Western Shoshone litigation, Western Shoshone Legal Defense and Education Ass'n v. U.S., 531 F.2d 495 (Ct.Cl. 1976), and Temoak Band of Western Shoshone Indians v. U.S., 593 F.2d 994 (Ct.Cl), cert denied, 444 U.S. 973 (1979).
It is important to understand that the Supreme Court's reversal of the prior understanding of the role of Congress in approving a distribution plan rested on its interpretation of the so-called 'trust' responsibility exercised by the United States in relation to the Western Shoshone:
The final award of the Indian Claims Commission placed the Government in a dual role with respect to the Tribe: the Government was at once a judgment debtor, owing $26 million to the Tribe, and a trustee for the Tribe responsible for ensuring that the money was put to productive use and ultimately distributed in a manner consistent with the best interests of the Tribe. In short, the Indian Claims Commission ordered the Government qua debtor to pay $26 million to the Government qua trustee for the Tribe as the beneficiary. U.S. v. Dann, 470 U.S. at 49-50.
The Dann decision carried the notion of federal 'trusteeship' over Indians to the point of absurdity. Under the terms of the Dann decision, an accounting maneuver in the U.S. Treasury displaced the historical role of Congress to provide for a final examination of the appropriateness of an Indian Claims Commission award. This is not trust, but the violation of trust.
Another scholar has described the Dann decision as embodying a 'fiction':
... the Court held a "payment" had been effected, although the Indians received no money and opposed the conversion of their land. The trust doctrine was the device the Court struck upon for executing this maneuver. The United States was not only the judgment debtor to Indians, the Court said, but was also trustee to the Indians. Therefore the United States as debtor can pay itself as trustee, say this change in bookkeeping constitutes payment to Indians, and the Court will certify the fiction as a reality. Milner Ball, "Constitution, Court, Indian Tribes," 1987 American Bar Foundation Research Journal 1, 65 (1987).
Congress nevertheless retains the power to reinstitute the prior understanding of an Indian Claims Commission 'award.' An appropriate revision of S. 958, as outlined above, would accomplish this end.
If the intention of this Committee is to preserve Western Shoshone treaty rights, it must explicitly re-establish the original understanding of the significance of a distribution plan and also not enact such a plan for the Western Shoshone. S. 958 does not and cannot in its present form accomplish such an intention.
The Western Shoshone have long fought to preserve their treaty rights. The history of the Indian Claims Commission proceedings in Dockets 326-A-1, 326-A-3, 326-K and related litigation demonstrates an increasingly clear purpose on the part of the Western Shoshone to contest the notion that their ancestral lands were 'taken' by the United States. They assert present title to their territory. Their rejection of the notion of a 'taking' is coupled with their refusal of the Claims Commission 'award.'
Until the Supreme Court decision in Dann, the way was clear for litigation of the Western Shoshone position. The Court of Appeals for the Ninth Circuit held that Western Shoshone title was not extinguished by the Claims Commission or by operation of other laws:
... the title issue in this case was neither actually litigated nor actually decided in the proceedings before the [Indian Claims Commission]. U.S. v. Dann, 572 F.2d 222, 226 (1978). [Reiterated in U.S. v. Dann, 706 F. 2d 919 (9th Cir. 1983).]
The Supreme Court did not controvert this key holding, but simply foreclosed any actual litigation by ruling that title had been extinguished automatically by 'payment,' as described above, using a perversion of the 'trust' doctrine.
The Senate Committee on Indian Affairs is uniquely in a position to reject the Supreme Court's cynical, fictitious version of 'trusteeship' and extinguishment. The Committee may do this by enacting specific legislation to return the law of Indian Claims Commission 'awards' to its prior status, wherein Congress held a paramount position as arbiter for distribution plans.
It is as true now as it was when the Indian Claims Commission Act was introduced to Congress, that "No Indian claim is ever forgotten until it is heard and decided." House Report No. 1466, December 20, 1945, U.S.Code Cong. Service, 79th Congress, 2d Session (1946).
If the law were returned to its status prior to the Supreme Court's ruling in Dann, the way would be clear for Western Shoshone rights under the Treaty of Ruby Valley to be heard and decided for the first time.
The Supreme Court has erected a barrier to actual hearing and decision of Western Shoshone treaty rights. S. 958 in its present form would confirm that barrier and compound that wrong by a shameful deception.
The first step toward the goal of protecting Western Shoshone treaty rights is rejection of S. 958.
Thank you.