Friday, October 21, 2011

Western Shoshones receive compensation more than 30 years later, but some are unhappy

In 1863, the Treaty of Ruby Valley was signed between leaders of the Western Shoshone and representatives of the federal government. The University of Idaho College of Law's 4th Annual International Law Symposium stated that the treaty "affirmed the boundaries of the Western Shoshone Nation and gave the U.S. limited access to and use of Western Shoshone lands for specified purposes." As noted by the Lahontan Valley News, "[t]he land in question comprises about two thirds of Nevada and millions of acres in California, Idaho and Utah."

On December 19, 1978, Congress set aside roughly $26 million to settle land claims with the Western Shoshone. In 2004, President Bush signed a law finally authorizing the distribution of the settlement, which by then had swollen to more than $180 million. And as reported by the Elko Daily Free Press, the first settlement payments were finally made earlier this year. As far as the federal government is concerned, the distribution of payments brings to an end a dispute that dates back to the Civil War.

At the time the treaty was signed, the legal mechanism was already in place to shift title from the Shoshones to the federal government. In Johnson v. McIntosh, 21 U.S. 543, 587 (1823), Chief Justice Marshall held that the Discovery Doctrine gave the federal government "an exclusive right to extinguish the Indian title of occupancy, either by purchase or conquest." In 1985, the Supreme Court held in U.S. v. Dann, 470 U.S. 39 (1985), that the federal government had extinguished the claims of the Western Shoshone to the lands described in the Ruby Valley Treaty when Congress placed funds in a U.S. Treasury trust fund. The Court affirmed the Indian Claims Council's award of more than $26 million as compensation for the extinguishment of aboriginal title to the land in the latter part of the 19th Century.

The Dann decision resulted from a challenge to the settlement by two Shoshone sisters. They were sued by the federal government for trespass for grazing their livestock on federal land. According to The New York Times, by 2003 the sisters had been fined in excess of $3 million for willful trespass. The sisters claimed that they had never given up title to their land and that because they had not received payment yet, their title was not extinguished. The Supreme Court disagreed and held that payment for the land was completed when the money was placed into the trust account.

While the federal government may consider the issue to be settled, there are still pockets of resistance within the Western Shoshone. Carrie Dann, the surviving Dann sister, stood up at a Bureau of Indian Affairs meeting in Elko, Nevada, last year and told the BIA representatives that they were "ripping off" future generations by substituting the payment for legal title to the land. The Western Shoshone Defense Project has stated that its mission is "[t]o affirm Newe (Western Shoshone) jurisdiction over Newe Segobia (Western Shoshone homelands) by protecting, preserving, and restoring Newe rights and lands for present and future generations based on cultural and spiritual traditions." Carrie Dann and the other opponents are worried that by accepting the settlement payments, they will be unable to challenge the government's claim to title in the future. As the Supreme Court made clear in 1985 however, the Western Shoshone's title to the land has been extinguished regardless of whether the payments are accepted.

After losing at the highest court in the United States, the Western Shoshone Defense Project took their fight to the international stage. Both the Inter-American Commission on Human Rights and the U.N. Committee for the Elimination of of Racial Discrimination found that the United States had violated international law by depriving the Western Shoshone of their rights. Both groups recommended that the United States government open a dialogue with the Western Shoshone and refrain from any further violations. The United States has ignored both findings.

The opponents of the settlement payments appear to represent a minority of Western Shoshone. The Lahontan Valley News reported in 2004 that a 2002 straw poll drew nearly 65% of eligible tribal voters and that 92% were in favor of accepting settlement payments. As of January 25 of this year, the Bureau of Indian Affairs reported that it had approved nearly 5,000 people to receive settlement payments. The BIA further reports that it intends to complete the distribution by the end of this year, finally bringing the 30-year-old distribution process to an end.


Namora said...

The poll showed that 92% of the 65% of eligible voters approved the settlements. Is it possible that the proportion of polled tribal members were not a random sampling? For example, perhaps those who did not answer the poll were more likely to oppose settlements for one demographic reason or another? This post reminds me of the support to give up collective rights in the union context where workers give up bargaining rights in exchange for short term benefits from the company.

KevinN said...

I didn't get the impression that the straw polls were directed at those members more likely to support accepting the distribution. Apparently there have been a number of straw polls taken over the last decade, but this was the only one I could find reported numbers for. All of the reports on the other straw polls simply state that there was a majority in favor of accepting the distribution. While there was some criticism of the wording of the ballot used in the straw poll, there was no evidence that the voters would have chosen otherwise. It presented two options, neither of which included a land deal. This criticism seems to ignore the fact that since the Supreme Court held that the land was no longer subject to aboriginal title however, there is no possibility of a land deal. To me, the options for the Western Shoshone did not seem to be options at all. Either you accept the payments being offered or you get nothing. You might still be able to argue that you have a right to the land if you do not accept payments, but the highest court in the country has already ruled against that argument.