The Western Shoshone Government (Western Shoshone National Council) authorizes Chief Raymond D. Yowell to present testimony in opposition to the Distribution Bill for Indian Claims Commission Docket 326K {S. 958}. The Western Shoshone Government is the entity that entered into the 1863 Treaty of Peace and Friendship with the United States.
Docket 326K came into being in 1951, when the Western Shoshone Te-Moak Bands Council (a creation of the United States 1934 Indian Reorganization Act), under pressure from the Bureau of Indian Affairs, filed a claim against the United States. The Western Shoshone Government opposed and protested against the filing of the claim from inception, stating that the United States has not extinguished Western Shoshone territorial title.
The Western Shoshone Government attempted to stay Docket 326K proceedings, but was rebuffed by the Commission and the Court of Claims. Commission proceedings came to finality in 1979, with certification of a $26 million award. The Western Shoshone rejected the award and continue to assert title to their territory.
The Western Shoshone rely on the following laws and treaties to support their territorial title: The 1787 Northwest Ordinance, The 1834 Trade and Intercourse Act, The 1841 Preemption Act, The 1848 Treaty of Guadalupe Hidalgo, The 1861 Nevada Territorial Act, and The 1863 Ruby Valley Treaty of Peace and Friendship between the Western Shoshone and the United States.
It is the opinion of the Western Shoshone Government that at the dates and times when motions for a stay of the Claims proceedings were made, the United States could not produce evidence of the extinguishment of Western Shoshone territorial title. It is the opinion of the Western Shoshone Government that at the present time the United States still cannot produce evidence of the extinguishment of Western Shoshone territorial title.
In the course of litigation between 1974 and 1985, various federal courts have concluded that Western Shoshone title has never been actually litigated. The U.S. Supreme Court ruled in U.S. v. Dann, 470 U.S. 39 (1985), that litigation of the title is blocked by the fact that the Claims Commission has certified an award in the Te-Moak Bands proceedings. This ruling was made despite the fact that the Western Shoshone have rejected the award and no award monies have been transferred to or expended for the benefit of the Western Shoshone.
The Supreme Court decision in the Dann case rests on an assumption that the United States is acting as a "trustee" for the Western Shoshone. The Western Shoshone have never consented to such an arrangement and the actual behavior of the United States in avoiding litigation of title has harmed rather than helped the Western Shoshone.
Federal courts have acknowledged that the Western Shoshone retain the right to speak to Congress to protect Western Shoshone territorial title. The Indian Claims Commission Act itself is clear that Congress has a role to play in regard to the submission and approval of a final plan of distribution of the award.
The Western Shoshone Government therefore requests, in the cause of justice and due process of law, that this Committee not approve the Western Shoshone distribution bill {S. 958}, but reject it. This matter can only be addressed on a Nation to Nation basis between the Western Shoshone and the United States at the highest level, via the U.S. State Department and the U.S. President.
My name is Raymond D. Yowell. I will be presenting written testimony on behalf of the Western Shoshone Government against the proposed Distribution Bill on Docket 326K {S. 958}. I hold the governmental office of Chief for the Western Shoshone Government (Western Shoshone National Council) and am authorized by my government to present this opposition testimony to your committee.
The Western Shoshone Government has existed from time immemorial and is the entity that entered into the 1863 Treaty of Peace and Friendship made in Ruby Valley, Western Shoshone Territory (Newe Sogobia), with the United States.
Some information on Docket 326K will be appropriate to provide this Committee with the basis for the Western Shoshone Government's opposition to the Distribution Bill. Docket 326K came into being in 1951, when the Western Shoshone Te-Moak Bands Council (a creation of the United States 1934 Indian Reorganization Act), under heavy pressure from the Bureau of Indian Affairs, were forced to file a claim with the U.S. Indian Claims Commission against the United States. The Te-Moak Council was also pressured by Bureau of Indian Affairs personnel into hiring the Washington, D.C., law firm of Wilkinson, Cragun, and Barker to be the attorneys to file and handle the claim from that point on.
The Western Shoshone Government opposed and protested against the filing of the claim, stating that the United States had not extinguished Western Shoshone territorial title; therefore, it was not necessary to file the claim. The claim was filed anyway. From that time on, the Western Shoshone Governments' opposition was manifested at all subsequent meetings held in Western Shoshone Territory by the law firm of Wilkinson, Cragun, and Barker.
In 1974, the Western Shoshone Government, through the Western Shoshone Legal Defense and Education Association, filed a motion to stay the proceedings in the U.S. Indian Claims Commission until Western Shoshone territorial title could be determined in a regular court proceeding. The U.S. Indian Claims Commission rejected the motion to stay its proceedings, stating that only the Te-Moak Tribal Council could bring forth this type of questioning.
The Western Shoshone Government then appealed to the U.S. Court of Claims. The Court of Claims also rejected the motion to stay the proceedings. The following is a portion of the opinion issued by the Court of Claims:
[I]t is far too late ... to upset the applecart after the fruit has been so carefully collected and piled ... . Western Shoshone Legal Defense & Ed. Ass'n v. U.S., 531 F.2d 495, 504 (1976).
In rendering this decision, the U.S. Court of Claims was obviously not concerned about justice and due process of law, but only about reaching closure in the case on the basis of what had occurred to that date. Interestingly enough, the Court of Claims also stated that if the Western Shoshone Government wants "to postpone payment, in order to try out the issue of current title, it can, of course, ask Congress to delay making the appropriation and direction which will be necessary to pay the award." Id., at 503 n. 16. We will return to this point later.
In 1977, the Te-Moak Tribal Council fired the law firm of Wilkinson, Cragun, and Barker and joined together with the Western Shoshone Government to file another motion to stay the proceedings in the U.S. Indian Claims Commission until Western Shoshone territorial title could be determined. Once again, the U.S. Indian Claims Commission rejected the motion to stay its proceedings. Once again, the Court of Claims seconded the rejection. And, once again, the Court was more interested in keeping the case moving than in finding out what really was the status of Western Shoshone territorial title. This time, instead of speaking about applecarts, the Court said, "far too much water had gone under the bridge." The Temoak Band of Western Shoshone Indians v. The United States and the Western Shoshone Identifiable Group Represented by the Temoak Bands of Western Indians, 593 F.2d 994, 996 ((1979).
As you can see from the name of this last case, the U.S. Court of Claims put the Te-Moak Tribal Council on both sides of the lawsuit, as plaintiff and defendant. Remember, earlier in this testimony it was stated that when the Western Shoshone Government first brought a motion to the U.S. Court of Claims, the Court of Claims stated that only the Te-Moak Tribal Council could file such motions. Now that the Te-Moak Tribal Council had also brought a motion to stay the proceedings, the United States Bureau of Indian Affairs pretended to continue to represent the Te-Moak Tribal Council. The Bureau did this via a renewed contract with Wilkinson, Cragun, and Barker, despite the fact that the Te-Moak Council had fired this firm. This practice continued until the U.S. Indian Claims Commission finalized Docket 326K and the monetary award was certified, at which point the law firm was paid 10% of the award. Under what provision of United States law is this legal? How could the Te-Moak Band sue itself?
The Te-Moak Tribal Council and the Western Shoshone Government appealed the Court of Claims rejection of a stay to the United States Supreme Court, which refused to hear the case. Thus ended the first united Western Shoshone effort to have its territorial title determined.
On November 28, 1979, the proceedings in the U.S. Indian Claims Commission came to finality and some twenty-six (26) million dollars was awarded in Docket 326K. On December 6, 1979, the U.S. Treasury transferred this dollar amount to the Department of the Interior and the Interior Secretary, purportedly acting as "trustee" for the Western Shoshone, accepted the monetary transfer. The law firm of Wilkinson, Cragun, and Barker were given more than two million dollars from the award and were not heard from again by the Western Shoshone.
In July 1980, the hearing of record—the last phase in the Indian Claims Commission process—was held in Elko, Nevada. At this hearing, the Western Shoshone asked the U.S. hearing officer, "Under what U.S. law did the United States legally acquire Western Shoshone Territory?" The hearing officer did not have an answer to the question. Because the hearing officer did not have an answer to the question, the Western Shoshone rejected the monetary award from the U.S. Indian Claims Commission. From the day of the hearing of record (now 22 years ago) to this day, the Western Shoshone Government has continued to ask this question of the United States. To date, the United States has yet to give an answer to the question.
The U.S. Indian Claims Commission Act did not give the Commission authority to extinguish the territorial title of Indian Nations, but only to award compensation for title previously extinguished. The U.S. Court of Claims had the mandate under the United States Constitution to see to it that true justice and due process of law were followed in Claims Commission rulings. If there were a question from either party on the progress of a proceeding, the Court must base its decision on U.S. law. To reject a motion questioning the process of a case, without an investigation of the facts to determine if there is merit to the motion, is not justice and due process of law. The Court of Claims should have granted the Western Shoshone motions to stay the proceedings and sought evidence that either supported or denied the continuing existence of Western Shoshone territorial title.
It is the opinion of the Western Shoshone Government that at the dates and times when motions for a stay of the Claims proceedings were made, the United States could not produce evidence of the extinguishment of Western Shoshone territorial title. It is the opinion of the Western Shoshone Government that at the present time, today, when we are opposing the distribution of Docket 326K, the United States still cannot produce evidence of the extinguishment of Western Shoshone territorial title. That title has simply never been litigated and remains unextinguished.
This testimony will show that at a later date, after the Claims Commission monetary award had been made, the United States Supreme Court would use the fact of the award itself as a mechanism for blocking the trial of Western Shoshone territorial title.
Listed below, in order of passage by the U.S. Government, are the U.S. laws the Western Shoshone referred to when they rejected the monetary award from I.C.C. Docket 326K:
The 1787 Northwest Ordinance (still in effect) states in part that: "The utmost good faith shall always be observed towards the Indians; their land and property shall never be taken from them without their consent; ... laws founded in justice and humanity shall, from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them."
The 1834 Trade and Intercourse Act (still in effect, as codified in various sections of the U.S. Code) restricts the authority of U.S. citizens to make land transactions with Indian Nations. Section 11 specifically prohibits "any person" from making "a settlement on any lands belonging, secured, or granted by treaty with the United States to any Indian tribe." Section 12 provides that "no purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribes of Indians, shall be of any validity in law or equity, unless the same is made by treaty or convention entered into pursuant to the Constitution."
The 1841 Preemption Act (repealed in 1891) tried to legalize squatters on lands not owned by the United States. This act was not used in Western Shoshone Territory.
The 1848 Treaty of Guadalupe Hidalgo between the United States and the Republic of Mexico. The Treaty contains no legal land descriptions and there is no legal land survey of the territory purportedly conveyed by Mexico to the United States, as required under international law. To the contrary, the leading words of Article 11 throw doubt on just what is being conveyed: "Considering that a great part of the territories which, by the present treaty, are to be comprehended [i.e., thought to be] for the future [i.e., not in this treaty] within the limits of the United States, is now occupied [i.e., in total control] by savage tribes...." The Western Shoshone are one of these "savage tribes" referred to in the treaty. The Western Shoshone Government, in its research, has not found documentation that Mexico had legally acquired the Indian Nations' territories in whatever areas are being referred to prior to the date of this treaty. How could Mexico convey to the United States what it did not have?
The 1861 Nevada Territorial Act. In enacting that legislation, the U.S. Congress referred to the 1787 Northwest Ordinance and stipulated that Indian lands "shall be excepted out of the boundaries, and constitute no part of the territory of Nevada." The territory of Nevada did not include "rights of persons or property pertaining to the Indians in said territory, so long as such rights shall remain unextinguished by treaty with the United States and such Indians." In connection with this, the Western Shoshone have not found a treaty of extinguishment or any other transactions of Western Shoshone territorial land rights to have been conducted with the United States to form the territory of Nevada.
The 1863 Ruby Valley Treaty of Peace and Friendship between the Western Shoshone and the United States. This is the only governmental contact between the two nations. The Treaty did not cede Western Shoshone Territory to the United States. Treaties are only made between independent nations. By treating with the Western Shoshone, the United States recognized it as an independent nation. The power for the United States to enter into treaties with other nations is authorized in Article 6 of the U.S. 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, any thing in the Constitution or Laws of any state to the contrary notwithstanding." Federal courts, in 1984 and again in 1986, have verified and affirmed that the 1863 Treaty between the Western Shoshone Government and the United States is in full force and effect. [U.S. v. Mary Dann and Carrie Dann, D. Nevada, #C-R-74-60 BRT (1986); 873 F.2d 1189 (9th Cir. 1989)]
The United States contends that its Indian Claims Commission "found" that Western Shoshone territorial title was extinguished through "gradual encroachment" of its citizens onto Western Shoshone territory. As pointed out earlier, according to United States law, only the United States Government can engage in land transactions with the Indian Nations (U.S. Trade and Intercourse Act of 1834). Therefore, "encroachment" by individual citizens cannot deprive the Western Shoshone of legal title to their territories.
Furthermore, when the Indian Claims Commission made its "finding" that "gradual encroachment" was how Western Shoshone territorial title was "taken," the Commission gave no specifics as to the number of citizens involved in the so-called encroachment. How many U.S. citizens does it take? Was it one U.S. citizen? 10 U.S. citizens? 100 U.S. citizens? 1,000 U.S. citizens? 5,000 U.S. citizens? Additionally, the Commission gave no specifics as to the number of acres of Western Shoshone land allegedly encroached upon. The Commission did not reveal legal land descriptions or legal land surveys where the so-called encroachment occurred. As a matter of record, the U.S. Indian Claims Commission was unable to identify any specific land areas where U.S. citizens supposedly "encroached" upon Western Shoshone territory. There was no number of acres, sections, townships, or other land measures exhibited by the U.S. Indian Claims Commission. It would seem that even if a "gradual encroachment" process were legal, at least 51% of Western Shoshone territory would have to be encroached upon to effect a so-called "taking" for the United States by its citizens.
Today, some 129 years after the "valuation date" set by the U.S. Indian Claims Commission (1872, later referred to as the "date of taking"), only about 14% of the entire State of Nevada is in private ownership. (Private ownership is referred to here because U.S. citizens can only own land privately.) This figure includes the Reno and Las Vegas areas, where most of the private lands are concentrated. Western Shoshone territory encompasses the least settled areas of Nevada. While 14% in itself is therefore an inflated figure in regard to Western Shoshone territory, it may be used to show the outrageous and outright unsubstantiated "finding" of the U.S. Indian Claims Commission that "encroachment" ever occurred. The Western Shoshone Government does not understand how can the Indian Claims Commission, under the laws previously cited and in a supposedly legal and factual proceeding along with the U.S. Court of Claims, have rendered a "finding" of such deficiency and incompetence.
The 1787 Northwest Ordinance, Article 3, also states: "the Indians property, rights, and liberty... never shall be invaded or disturbed, unless in just an lawful wars authorized by Congress..."
If the United States contends that it acquired Western Shoshone territory by war, then the United States must provide documentation that this happened, including the date war was declared, the date and location of the final battle, the terms of surrender, and the name or names of Western Shoshone war chief or war chiefs who signed the surrender terms. The Western Shoshone Government has found no documentation that conquest by war ever happened.
In 1974, the United States brought a lawsuit in U.S. federal District Court, Nevada, against two Western Shoshone sisters, Mary and Carrie Dann, for purportedly grazing cattle on so-called "public land" without a grazing permit from the Bureau of Land Management. The Western Shoshone sisters defended themselves on the basis that Western Shoshone territorial title was never extinguished by the United States and, therefore, the U.S. Bureau of Land Management had no authority over the land in question. In 1976, the District Court issued a ruling in this case, that, because of the filing of the claim in the U.S. Indian Claims Commission against the United States by the Te-Moak Tribal Council, Western Shoshone territorial title had been taken by the United States. The Dann sisters appealed this ruling to the U.S. 9th Circuit Court of Appeals.
In 1978, the Court of Appeals reversed the Nevada District Court and sent the case back. In its reversal, the 9th Circuit stated that the District Court could not refuse to decide the title issue, because the question of Western Shoshone territorial title had not been litigated before the Indian Claims Commission and, additionally, the Commission had not arrived at a conclusion on the Te-Moak Tribal Council claim. After remand, the District Court made no move to hear the case. During this time, the Western Shoshone found correspondence from the U.S. Department of Justice to the District Court judge stating that he could wait until the Claims Commission made its ruling on the Te-Moak Tribal Council claim. The judge did this and waited until after December 6, 1979, when the Indian Claims Commission certified the award in Docket 326K. The judge then ruled that Western Shoshone territorial title had been "taken" on that date and that before 1979 Western Shoshone title had not been extinguished. The Dann sisters appealed the ruling back to the 9th Circuit Court of appeals, again asserting that the U.S. Indian Claims Commission could not extinguish Indian Nations' territorial title.
In 1983, the 9th Circuit issued its ruling on this appeal [U.S. v. Dann, 706 F.2d 919 (1983)], stating (1) that Western Shoshone territorial title "was never actually litigated" in the Indian Claims Commission proceedings on the Te-Moak Council claim and that therefore no judicial determination had been made on the title question [Id., 924]; and (2) that although the Claims Commission monetary award was certified, extinguishment of title had not occurred by "payment" because "no monies have actually passed into the hands of the Western Shoshone ... nor been used for their benefit" [Id., 926]. (As stated earlier in this testimony, the Western Shoshone rejected the award in July 1980.) The Court of Appeals also stated, in an echo of the 1976 Court of Claims decision, that "Congress ... retains significant control over the claims process until the distribution scheme is actually put into effect" [Id.]
The United States appealed the 9th Circuit ruling to the U.S. Supreme Court. During this time, a Western Shoshone delegation visited with the U.S. Justice Department attorney who would be presenting the U.S. appeal. The Western Shoshone delegation convinced the attorney that the appeal should not be made; that instead the United States and the Western Shoshone should hold high-level talks to arrive at a compatible solution to the Western Shoshone territorial title issue. After this visit, the attorney refused to put forth the appeal to the Supreme Court. The Justice Department went ahead and found another attorney to file the appeal and to argue against the Western Shoshone in U.S. v. Dann, 470 U.S. 39 (1985) anyway.
Also during this time, the Western Shoshone Government, after some strong lobbying of U.S. Government officials, entered into negotiations with the United States. Five negotiation sessions were held in 1984 and 1985, with very little progress towards an agreement on Western Shoshone land rights. In 1985, the United States ceased talks after the Supreme Court ruled in U.S. v. Dann that there was no basis for further negotiations because Western Shoshone territorial title had been extinguished by the Indian Claims Commission certification of the monetary award.
Notice that the Supreme Court overturned only one part of the Court of Appeals ruling, namely the ruling that "payment" of the Indian Claims Commission monetary award had not been made. The Supreme Court said nothing about the 9th Circuit ruling that Western Shoshone territorial title had not actually been litigated in the Indian Claims Commission. It is the position of the Western Shoshone Government that, since the Supreme Court did not overturn the 9th Circuit ruling that Western Shoshone territorial title was never litigated, then that ruling and Western Shoshone title stands to this day.
The U.S. Supreme Court decision in U.S. v. Dann is that "payment" (in exchange for title to the land) was made by the United States to the Western Shoshone at the moment when the Claims Commission certified its award. Here is how the Court stated its decision:
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.
Never mind that the United States thus has a glaring conflict of interest in relation to the Western Shoshone. Never mind that the Western Shoshone have never consented to the purported "trusteeship" by the U.S. over the Western Shoshone. And never mind that the Western Shoshone are the best judge of their "best interests" and not the United States.
Furthermore, let us suppose for the moment that the U.S. had a "trustee" relationship to the Western Shoshone in this case. It is inconceivable that the Secretary of Interior could not have known of the lawsuit, U.S. vs. Dann, making its way up through the federal court system. From 1974 on, and understanding that Western Shoshone territorial title had never been litigated, the proper action for the Secretary of Interior to take as a "trustee" for the Western Shoshone would have been to refrain from accepting a monetary award from the Indian Claims Commission until Western Shoshone territorial title had actually been determined. Moreover, the proper actions of a "trustee" in the earlier Western Shoshone appeals to the Court of Claims would have been to acknowledge the fact that the Te-Moak Tribal Council wanted to stay the Claims Commission proceedings. Instead, the purported "trustee" took the side of the lawyers who had been fired by the Te-Moak Council and argued against the Western Shoshone in their own name!
The U.S. Interior Secretary's actions, rather than protecting the "best interests" of the Western Shoshone, undermined the Western Shoshone position throughout the challenges to the Claims Commission proceedings and in U.S. vs. Dann. By these actions, the United States has tried to find a way out from determining Western Shoshone territorial title and has certainly violated any duty of "trust" that it may claim to have.
The claim that the federal government is the Indians’ trustee and may therefore unilaterally impose an "award" on the Western Shoshone without their consent, for a "taking" of land that never occurred, is based on a most bizarre and racist anomaly in United States law.
The basis for the trustee concept in federal Indian law was first articulated in 1823 by the Supreme Court in Johnson & Graham’s Lessee v. McIntosh, 21 U.S. (8 Wheat.) 543, through an argument known as the "right of discovery." Chief John Marshall, who drafted the Court’s opinion, wrote
... discovery gave title to the government, by whose subjects, or by whose authority it was made, against all other European governments." 21 U.S., 573.
Marshall based the Court’s opinion on the ancient law of Christendom. The Court cited the 1496 Cabot charter:
In this first effort made by the English government to acquire territory on this continent, we perceive a complete recognition of the principle [of discovery] which has been mentioned. The right of discovery given by this commission is confined to countries "then unknown to Christian people"; and of these countries Cabot was empowered to take possession, notwithstanding the occupancy of the natives, who were heathens, and at the same time admitting the prior title of any Christian people who may have made a previous discovery. 21 U.S., 576.
Marshall concluded from this Christian principle:
While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised as a consequence of this ultimate dominion, a power to convey the soil, while yet in possession of the natives. 21 U.S., 574.
Further historical inquiry reveals that the "right of discovery" and the United States’ claim to an ultimate trusteeship dominion over "heathen" Indians is traced to the Papal bull Romanus Pontifex of 1455 and the bull Inter Caetera of 1493. The first, issued by Pope Nicholas V to King Alfonso V of Portugal, instructed the king to "invade, search out, capture, vanquish, and subdue all Saracens and pagans whatsoever, and other enemies of Christ," and to "reduce them" to "perpetual slavery," and to take over all their possessions and property. The second, issued by Pope Alexander VI to the Spanish monarchs, instructed them to "subjugate ... barbarous nations" and bring them to the Catholic faith and Christian religion for the benefit "of the Christian Empire," and to take over any lands "not actually possessed by any Christian Prince." (Francis G. Davenport, ed., European Treaties bearing on the History of the United States and its Dependencies to 1648 (1917) at 23; John Boyd Thacher, Christopher Columbus, Vol. II, (1903) at 141, 149).
The United States’ claim to be the trustee of the Western Shoshone is thus predicated upon Christendom’s ancient religious and racist bigotry against non-Christian Indians. It is in violation of the Constitutional separation of church and state and international human rights standards.
As one scholar has stated:
When the federal government and the Supreme Court use Christianity as a criterion for determining the political and legal status of Indian nations, and then use that criterion as the rationale for unilaterally assuming coercive non-constitutional legislative power over native nations and their lands, where is the supposed separation of church and state? Because Johnson’s discovery-as-conquest and Indian title occupancy stem from a judicial pretension based on religious prejudice, those doctrines, as well as the pretension itself, should have no place in United States law. Steven T. Newcomb, "The Evidence of Christian Nationalism in Federal Indian Law: The Doctrine of Discovery, Johnson v. McIntosh, and Plenary Power," New York University Review of Law and Social Change, Vol. XX, No. 2, 1993, at 337.
Professor Milner S. Ball, University of Georgia Law School, in his study of the Western Shoshone litigation described above, stated:
[T]he [Supreme] 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. "Constitution, Court, Indian Tribes," 1987 American Bar Foundation Research Journal 1, 65 (1987).
In the opinion of the Western Shoshone Government, the above is the most accurate description in the English language about what the U.S. Supreme Court did in U.S. vs. Dann. We agree with Professor Ball that these actions amount to a "consistent arrogation of power" and not the actions of a concerned "trustee" [Id., 59].
The Western Shoshone Government is cognizant of the way United States law is supposed to be upheld. Due process of law is the main underpin that upholds United States laws. This means that the rule of law must follow an orderly process from case to case and law to law. Failure to implement in an orderly way United States laws would render the due process provisions of the United States Constitution useless and moot. This Committee needs no reminder of this process, but the Western Shoshone point this process out so that there cannot be a misunderstanding that due process of U.S. law certainly was not followed in all phases of the Western Shoshone territorial title issue.
Congressional representatives from the State of Nevada are using as reason for introducing this Western Shoshone monetary distribution bill from Indian Claims Commission Docket 326K {S. 958} that a number of Western Shoshone people want the money distributed. Numbers of Western Shoshone people, however, cannot legitimize what is illegal to begin with. As put forth clearly in this testimony, due process of U.S. law has not been followed in the Western Shoshone cases, thereby making the whole U.S. Indian Claims Commission process without force and effect as to extinguishing Western Shoshone territorial title.
There is a saying, "How many wrongs does it take to make a right?" The answer is, a wrong can never become right. As stated by Western Shoshone citizen Tommy Watson in the Western Shoshone documentary film, Broken Treaty at Battle Mountain, "a law that is illegal at it’s inception can never be made right." No matter how many wrongs are piled on the scale of justice, the scale will never tip in favor of right. What is illegal to begin with cannot be made legal. The Western Shoshone Government insists that the rule of United States law be followed to the letter to find a solution to the Western Shoshone territorial title issue.
As pointed out earlier in this testimony, the courts have stated that the Western Shoshone retain the right to speak to Congress to protect Western Shoshone territorial title. The Court of Claims said this in 1976. The 9th Circuit stated it again in 1983. The Indian Claims Commission Act itself is clear that Congress still has a role to play in regard to the submission and approval of a final plan of distribution of the award. Even the Supreme Court did not deny that.
It is the knowledge and understanding of the Western Shoshone Government that when all of the aforementioned U.S. laws were passed, the U.S. Congressional members of those times who made these laws did so with the full knowledge and expectation that they would be implemented and carried out to the letter of the act. As in times of old, congressional representatives who pass laws today also do so with the knowledge and expectation that these laws will be complied with and carried out to the letter of the act.
Because of the continuing failure of the United States Government to provide legal documented evidence on its purported acquisition of Western Shoshone Territory, the most practical way to achieve a solution is for the Western Shoshone High Government Officials and the United States via its Executive branch, to engage in sincere and honest discussions on the issue. During these discussions, as agreement is reached from both sides on specific elements, such agreement will be documented and signed.
These agreements would be on the following, but not limited to these points:
1. The retention of Western Shoshone Territorial areas, including all resources, for exclusive use by the Western Shoshone.
2. Discussion of conditions for United States use of Western Shoshone Territorial areas, including all resources.
3. The right by Western Shoshone to hunt, fish, gather and travel in Western Shoshone Territory.
4. The right by Western Shoshone to hold religious ceremonies including visits to burial and sacred sites anywhere in Western Shoshone Territory.
5. Discussion of royalties for present and future United States mineral and geothermal use in Western Shoshone Territory.
6. Discussion on conversion of the I.C.C. docket 326K to an award for past damages inflicted on the Western Shoshone by the United States.
In conclusion, Mr. Chairman, in 1992 this same matter of I.C.C. Docket 326K was introduced in the House of Representatives. After hearing the opposition testimony from the Western Shoshone, the House Committee wisely rejected the bill. This Committee must also reject this bill.
The Western Shoshone will not consent to the distribution of the I.C.C. monetary award as long as it is categorized as payment for Western Shoshone Territory. The land is sacred and is the church of the Western Shoshone and cannot be sold.
As put forth in the elements listed above, the Western Shoshone can enter into binding, documented, signed agreements for the use of Western Shoshone Territory by the United States Government. The two nations must maintain and nurture the friendly relations they began in the 1863 Treaty of Ruby Valley.
Thank you, Mr. Chairman and Committee Members.