REPORT Nº 75/02 *
AND CARRIE DANN
1. The petition in the present case was lodged with the Inter-American Commission on Human Rights (the "Commission”) against the United States of America (the "State" or the "United States") on April 2, 1993 by Messrs. Steven M. Tullberg and Robert T. Coulter of the Indian Law Resource Center (the “Petitioners”). The petition was presented on behalf of Mary and Carrie Dann, sisters and citizens of the United States (the “Dann sisters” or the “Danns”).
The petition and subsequent observations allege that Marie and
Carrie Dann are members of the Western Shoshone indigenous people who
live on a ranch in the rural community of Crescent Valley, Nevada.
According to the petition, their land and the land of the
indigenous band of which they are members, the Dann band, is part of
the ancestral territory of the Western Shoshone people and the Danns
and other members of the Western Shoshone are in current possession
and actual use of these lands. The Petitioners also contend that the State has interfered
with the Danns’ use and occupation of their ancestral lands by
purporting to have appropriated the lands as federal property through
an unfair procedure before the Indian Claims Commission (“ICC”),
by physically removing and threatening to remove the Danns’
livestock from the lands, and by permitting or acquiescing in gold
prospecting activities within Western Shoshone traditional territory.
Based upon these circumstances, the Petitioners allege that the State
is responsible for violations of Articles II, III, VI, XIV, XVIII and
XXIII of the American Declaration of the Rights and Duties of Man (the
3. The State denies that it has violated the Danns’ rights under the American Declaration. The State argues that the matters raised by the Petitioners do not involve human rights violations but rather involve lengthy litigation of land title and land use questions that have been and are still subject to careful consideration by all three branches of the United States government. In this regard, the State contends that the Danns have title, ownership and possession of the lands constituting their ranch in Nevada which had been patented to their father, that there has never been an effort by the State to remove the Danns from their ranch, and that as long as the Danns comply with the requirements of the Bureau of Land Management they are eligible for a permit to graze their livestock on public lands. As to the traditional Western Shoshone territory more generally, the State submits that the Danns and other Western Shoshone lost any interest in the lands in question in 1872 as a result of encroachment by non-Native Americans, and that this determination was properly made through fair proceedings before the ICC, a quasi-judicial body established by the United States for the very purpose of determining Indian land claims issues. Finally, the State argues that the ICC awarded the Western Shoshone $26,145,189.89 in compensation for the loss of their lands based upon 1872 land values, which has been held in trust by the Secretary of the Interior until a distribution plan has been agreed upon with the Western Shoshone.
In Report N° 99/99 adopted by the Commission on September 27,
1999 during its 104th regular period of sessions, the
Commission decided to admit the claims in the Petitioners’ petition
and to proceed with consideration of the merits of the complaint.
In the present report, having examined the evidence and
arguments presented on behalf of the parties to the proceedings, the
Commission concluded that the State has failed to ensure the Danns’
right to property under conditions of equality contrary to Articles
II, XVIII and XXIII of the American Declaration in connection with
their claims to property rights in the Western Shoshone ancestral
II. PROCEEDINGS BEFORE THE COMMISSION
A. Observations of the Parties
Upon receipt of the Petitioners’ petition, on April 7, 1993
the Commission decided to open a case pursuant to Article 34 of its
forwarded the pertinent parts of the petition to the
United States by letter of the same date and requested that the State
provided the Commission with information that it deemed pertinent
within 90 days of receipt.
By communication to the Commission dated August 27, 1993 the
State requested an extension of time until September 10, 1993 within
which to submit its reply to the petition.
The Commission, in a note dated September 7, 1993 granted the
On September 9, 1993 the United States transmitted to the
Commission its observations on the petition.
On September 22, 1993 the Commission forwarded the pertinent
parts of the State’s observations to the Petitioners with a request
for a response within 45 days. By
note to the Commission dated November 2, 1993 the Petitioners
requested an extension of time until December 14, 1993 within which to
respond to the State’s observations.
The Commission granted the Petitioners’ request on November
By notes dated December 2, 1993 and January 3, 1994 the
Petitioners forwarded to the Commission their response to the State’s
September 9, 1993 observations. The
Commission transmitted the pertinent parts of the Petitioners’
response to the State on January 6, 1994 with a request for
information within 30 days. In
a communication dated February 4, 1994 the State requested an
extension of time to March 3, 1994 to reply to the Petitioners’
response and on March 3, 1994 the State delivered to the Commission
additional observations on the petition and requested a further
extension of time to April 4, 1994 to complete its review of the
matter and provide an appropriate response.
By communication dated April 5, 1994, the State requested a
further extension of time to April 18, 1994 within which to respond to
the Petitioners’ response of December 22, 1993 and on April 18, 1994
the State forwarded to the Commission additional observations on the
Petitioners’ response. The Commission forwarded the pertinent parts of the State’s
communications to the Petitioners.
On May 4, 1994 the Petitioners requested an extension of time
within which to respond to the State’s observations, based upon
ongoing efforts by the Danns and the United States to resolve the
On October 10, 1996 the Commission convened a hearing on the
claims raised in the petition. Representatives of the Petitioners and the State attended the
hearing and made submissions as to the admissibility and merits of the
Danns’ claims. In
addition, by communication dated February 28, 1997 the United States
provided written responses to various issues raised during the course
of the hearing before the Commission. These written responses were
subsequently transmitted to the Petitioners by letter dated March 10,
In Report N° 99/99 approved by the Commission on September 27,
1999 during its 104th regular period of sessions, the
Commission decided to admit the claims in the Petitioners’ petition
and to proceed with consideration of the merits of the complaint.
In a communication dated March 23, 2000 and received by the
Commission on the same date, the Petitioners delivered to the
Commission a document entitled “Petitioners’ Brief on the Merits
of the Case.” The Commission transmitted the pertinent parts of this
communication to the State by note dated March 27, 2000 with a
response requested within 30 days.
By note dated May 9, 2000, the State requested an extension of
time of 45 days within which to file a response to the Petitioners’
supplemental Brief, and in a subsequent communication dated May 18,
2000 the Commission granted the State’s request.
As of the date of this report, the Commission has not received
any further observations from the State on the Petitioners’
B. Precautionary Measures
In a letter dated August 16, 1993, the Petitioners informed the
Commission that the State had published a notice on August 3, 1993
which stated that the United States Bureau of Land Management (“BLM”)
intended to impound all livestock on a portion of the Western Shoshone
ancestral lands, described as “the South Buckhorn, Geyser, Scott’s
Gulch, Thomas Creek, and Safford County Allotments in the Elko
District and portions of the Argenta and Carico Lake allotments in the
Battle Mountain District.” In their letter, the Petitioners
contended that the Danns had grazed their livestock on the land for
generations and that the United States probably intended to sell the
impounded livestock belonging to the Danns and the Western Shoshone
National Council. In
these circumstances, the Petitioners argued that this would be
devastating to the Danns and would further compound the wrongs that
had already been committed against them by the State.
On this basis, the Petitioners requested that the Commission
issue precautionary measures pursuant to Article 29(2) of the
Commission’s prior Regulations.
By communication dated September 7, 1993 the Commission
informed the United States of the communication by the Petitioners on
August 16, 1993. In its
communication, the Commission requested that the State stay its
intention to impound all livestock belonging to the Danns until the
case had been resolved.
Subsequently, by note dated February 27, 1998 the Petitioners
again requested that the Commission issue precautionary measures
pursuant to Article 29(2) of the Commission’s previous Regulations
to avoid immediate, grave and irreparable harm to the Danns.
The Petitioners stated that the BLM had again issued a series
of notices and orders on February 19, 1998 which declared that the
Danns and other Western Shoshone people were trespassing on lands,
ordered them to remove all livestock and property from the lands, and
threatened them with fines, imprisonment, impoundment or cattle and
confiscation of property if they failed to comply with the orders.
On this basis, and because this aggressive government action
was alleged to enhance the threat to the economic and cultural
survival of the Danns and other Western Shoshone, the Petitioners
contended that there was an urgent need for the Commission to issue
In a communication to the State dated March 6, 1998 the
Commission reiterated its previous request that the State stay any
action to impound or confiscate the Danns’ property pending the
Commission’s investigation of the alleged facts.
The Petitioners subsequently informed the Commission by letter
dated July 16, 1998 that despite the Commission’s reiteration of its
request to the State, the BLM had continued with its “trespass”
action against the Danns and other members of the Western Shoshone
nation. The Petitioners
indicated in particular that on April 2, 1998 the BLM issued
additional orders and decisions against the Danns that directed the
Danns to remove their livestock from part of the land in issue and to
pay a fine of $288,191.78 for alleged unauthorized grazing.
The Petitioners therefore reiterated their request that the
Commission issue precautionary measures against the State’s actions.
In a note dated August 5, 1998, the State responded to the
Commission’s March 6, 1998 communication by stating, inter
alia, that “out of respect for the Commission, the State
Department has initiated an interagency dialogue with the relevant
Federal agencies to consider further the Commission’s request.
In the meantime, however, the United States will not hold in
abeyance the normal operation of its law.”
By communication dated June 3, 1999 the Petitioners informed
the Commission that despite the Commission’s previous requests for
the State to stay its actions against the Danns, Federal officials
continued to pursue enforcement measures against the Danns and other
Western Shoshone. The
Petitioners also stated that in an effort to defend themselves against
these measures, the Danns appealed the BLM’s decisions against them
under the relevant domestic administrative procedure, and that on
December 18, 1998 the BLM ruled against them.
In addition, the Petitioners indicated that the Danns met with
BLM officials on January 28, 1999 where the Danns were invited to
submit a proposed interim measures agreement.
When the Danns subsequently submitted a proposal on March 28,
1999 the proposal is said to have been rejected through the
counter-offer by officials of terms that essentially restated the BLM’s
previous position, namely that the Western Shoshone no longer have
rights to their ancestral lands.
In their June 3, 1999 communication, the Petitioners further
indicated that only two days after the Danns received the BLM’s
response to their proposal, the BLM issued a “Notice of Intent to
Impound” in respect of “any unauthorized livestock grazing upon
public land” and that the Notice provided that any impoundment may
occur without further notice after five days of delivery of the Notice
within a twelve month period. Based
upon these events, the Petitioners requested that the Commission issue
precautionary measures to prevent the implementation of the State’s
intention to impound the Danns’ property.
The Commission, in a note dated June 28, 1999 forwarded the
pertinent parts of the Petitioners’ June 3, 1999 submission to the
State and requested pursuant to Article 29(2) of the Commission’s
prior Regulations that the State take precautionary measures to stay
its intention to impound the Danns’ livestock until the Commission
had an opportunity to fully investigate the claims raised in the
communication dated August 9, 2000 and received by the Commission on
August 10, 2000 the Petitioners submitted to the Commission a “Request
for Additional Precautionary Measures”.
According to the petitioners, two bills had recently been
introduced into the U.S. Congress, the Nevada Public Land Management
Act of 1999 (the "Nevada Public Land Bill") and the Western
Shoshone Claims Distribution Act (the "Distribution Bill").
According to the Petitioners, the Nevada Public Land Bill would
authorize the U.S. Secretary of the Interior to dispose of
"public" land in the State of Nevada by selling it in open
bidding to mining, ranching and other private interests.
The Distribution Bill would authorize the U.S. Secretary of the
Interior to make a per capita distribution of the funds awarded by the
ICC for the extinguishment of their rights in the Western Shoshone
ancestral lands. The
Petitioners claimed that this legislation, if enacted, would authorize
the disposal to private interests of land that included the land used
and occupied by the Danns, and would authorize the distribution of the
funds awarded by the ICC but never accepted by the Western Shoshone
people. The Petitioners
also suggested that there was a possibility that both of these bills
could be passed during the legislative session of Congress then in
progress. Further, the
Petitioners claimed that the proposed legislation would cause
irreparable harm to the Danns' ability to survive culturally,
physically, and economically and to their ability to pursue the very
claim set forth in their submissions to the Commission.
In a note dated August 18, 2000 the Commission transmitted the
pertinent parts of the Petitioners’ August 9, 2000 communication to
the State and, without prejudice to the possible adoption of
precautionary measures, requested that the State take whatever
measures it deemed necessary so that the Commission could receive
within 20 days information that the State considered pertinent to the
Petitioners’ request. By
communication dated October 19, 2000 to the State, the Commission
reiterated its August 18, 2000 request for information in respect of
the Petitioners’ request for additional precautionary measures, and
sought a response within 20 days.
The State, in a note dated December 4, 2000 provided the
Commission with a response to its communication of October 19, 2000 in
which the State indicated that the legislation referred to by the
Petitioners had been introduced in Congress but that no significant
action had been taken and none was expected during the session of
Congress then in progress. The
State also contended that, even if enacted, neither of the bills would
cause irreparable harm to the Dann sisters and therefore that their
request for precautionary measures had no basis in law or fact.
By communication dated December 11, 2000, the Commission
transmitted the pertinent parts of the State’s response to the
Petitioners with a response requested within 30 days.
Subsequently, in a letter dated January 11, 2001, the
Petitioners provided the Commission with observations respecting the
State’s December 4, 2000 response in which they asserted that the
State had failed to offer any meaningful response to their request for
precautionary measures and reiterated their request for the Commission
to call upon the State to suspend any action on the Nevada Public Land
Bill and the Distribution Bill.
C. Friendly Settlement
In its admissibility Report N° 99/99 of September 27, 1999 in
this matter, the Commission placed itself at the disposal of the
parties pursuant to Article 45(1) of the Commission’s prior
Regulations for the purpose of reaching a friendly settlement of the
By letter dated October 25, 1999 to the Commission, the
Petitioners reiterated their willingness to enter into a process of
friendly settlement with the United States under the Commission’s
auspices. The Petitioners
also indicated, however, that in the absence of agreement by the State
they would request that the Commission proceed to evaluate and issue a
decision on the merits of the petition.
In a note dated November 1, 1999 the Commission transmitted the
Petitioners’ October 25, 1999 communication to the State with a
response requested within 30 days.
In a letter dated June 15, 2000 and received by the Commission
on June 16, 2000 the Petitioners requested a hearing at the next
session of the Commission, or alternatively an informal conference
with the United States and a representative of the Commission to
explore any possibility of settlement.
By notes dated September 19, 2000 the Commission informed the
parties that the Commission had decided to grant the Petitioners’
request for an informal conference to explore the possibility of a
settlement in the matter and that the conference would be held on
October 6, 2000 at the Commission’s headquarters in Washington.
By communication dated October 3, 2000 the Petitioners
confirmed their attendance at the October 6, 2000 settlement meeting
in Washington and delivered a “Summary of Information Relevant to
Petitioners’ Position and Proposal” for the meeting. Also by
letter dated October 3, 2000 the State informed the Commission that
its preparations for the meeting, which included extensive
consultations with other agencies in the US government, was not yet
complete and requested a postponement of the meeting. The Commission
decided to proceed with the October 6, 2000 meeting, which was
presided over Commissioner Peter Laurie and which was attended by Ms.
Carrie Dann and her representatives Messrs. James Anaya, James Stroud
and Steven Tullberg. As
of the date of this report, the Commission had not received any
further solicitations from the parties to facilitate a friendly
settlement of the matter.
D. Amici Curiae
On December 9, 1997 attorney Thomas E. Luebben Esq. requested
permission to intervene in support of the Danns’ proceeding before
the Commission on behalf of the Yomba Shoshone Tribe, another tribe of
the Western Shoshone nation. Further, by letter dated March 17, 1998
the Petitioners requested that the Commission permit the Tomba
Shoshone Tribe to intervene in support of the Danns’ case as a
September 22, 1998 the Yomba Shoshone Tribe forwarded a brief to the
Commission which they claim supports the Danns’ position, and by
communication dated September 27, 1999 the representatives of the
Yomba tribe clarified that they wished their involvement in the
proceedings to be considered in the nature of an amicus
By letters dated September 24 and 27, 1999 the Ely Shoshone
Tribe similarly requested permission to intervene in the present
proceedings as amicus curiae,
and by communication dated September 24, 1999 the Petitioners informed
the Commission on behalf of the Danns that they consented to the
intervention of the Yomba and Ely Tribes as amici
In addition, by communication dated May 12, 2000 and received
by the Commission on May 22, 2000 the Western Shoshone National
Council delivered to the Commission an “Amicus Brief” supporting
the Danns’ position in the case, and subsequently confirmed by
letter dated July 31, 2000 that they sought to intervene in the
proceeding only as amicus curiae
but claimed to preserve the right to submit in the future an
appropriate petition regarding alleged human rights violations
specific to it and its citizens.
Similarly, in a letter dated July 19, 2001 Michael H. Blackeye,
Chairman of the Duckworth Shoshone Tribe, requested leave of the
Commission to intervene as amicus
curaie in the Danns’ proceeding and adopted the points set forth
and the arguments made in the brief of the Yomba Shoshone Tribe
submitted to the Commission in September 1999.
34. After having reviewed the requests for intervention set forth above and the related amici briefs, the Commission considered that they essentially reiterated arguments already presented by the Petitioners and accordingly did not require further processing in these proceedings.
III. POSITIONS OF THE PARTIES
of the Petitioners
In their initial petition and subsequent observations, the
Petitioners have contended that the State is responsible for
violations of the rights of Mary and Carrie Dann under Articles II
(right to equality before the law), III (right to religious freedom
and worship), VI (right to a family and to protection thereof), XIV
(right to work and to fair remuneration), XVIII (right to a fair
trial) and XXIII (right to property) of the American Declaration in
respect of their use and occupancy of the Western Shoshone ancestral
With respect to the factual circumstances of their claims, the
Petitioners state that the Danns are members of the Western Shoshone
aboriginal people who reside on a ranch in the rural community of
Crescent Valley, Nevada. According
to the petition, the Danns together with other members of their
extended family in the Dann band occupy, hunt, graze and otherwise use
lands (the “Dann lands”) that are within the larger ancestral
territory of the Western Shoshone people.
This ancestral territory is alleged to encompass not only the
ranch upon which the Danns live but rangelands and other property
principally in the state of Nevada (the “Western Shoshone ancestral
In this connection, the Petitioners indicate that relations
between the Western Shoshone and the United States government continue
to be regulated by the 1863 Treaty of Ruby Valley which was ratified
by the United States in 1866 and proclaimed on October 21, 1869,
and which constituted a peace treaty between the United
States and the Western Shoshone people.
The Petitioners contend that the Danns have used and occupied
the Western Shoshone ancestral lands since time immemorial and that
the family ranch is the Danns’ sole means of support, where all of
their needs are met by the sale of their livestock, goods and produce
to neighboring Western Shoshone and to non-Indians.
The Petitioners also claim that from 1863 to the present the
United States has steadily expropriated parts of the Western Shoshone
ancestral lands to the benefit of government and non-Indians, and that
without sufficient money, education and legal assistance the Western
Shoshone have traditionally been unable to mount effective opposition
to the government’s encroachment and erosion of their land base.
With respect to the Dann lands in particular, the Petitioners
claim that the use by the Danns and other Western Shoshone of these
lands was undisturbed and unchallenged until the early 1970’s when
the United States government through the Department of the Interior
began taking or threatening actions to impede the Danns and other
Western Shoshone from using and occupying lands that are within their
ancestral territory. In
this manner, the Petitioners say that the Danns are being wrongfully
dispossessed of their ancestral homelands including portions upon
which they depend for their living.
These State actions have included the initiation of trespass
actions against the Danns demanding that the Danns remove their
livestock from disputed lands and pay significant fines, and the
issuance of “Notices of Intent to Impound” in respect of “unauthorized
livestock grazing upon public land.” They have also included gold
prospecting within the traditional Western Shoshone ancestral lands
which is said to have been permitted or acquiesced in by State
officials. As part of this prospecting, mining companies are said to
have been digging the earth, pumping scarce water, and are poised to
take ownership or control of the area by operation of U.S. mining
legislation or land exchanges with the U.S. government.
The Petitioners claim that this mining activity has already
affected the Danns’ use of their ancestral lands and has
contaminated the ground water in and around Crescent Valley, and that
the activity threatens even greater damage as it extends closer to the
Further the Petitioners state that the Danns and other members
of the Western Shoshone have been impeded from their traditional
subsistence hunting by officials of the state of Nevada, who are said
to have relied upon the United States’ denial of Western Shoshone
title to ancestral land to refuse to accommodate traditional Western
Shoshone hunting practices. Rather,
State officials have sought out and arrested members of the Western
Shoshone people including members of the Dann band who do not comply
with the state hunting laws and regulations.
As examples of these activities, during the October 10, 1996
hearing before the Commission the Petitioners claimed that the United
States had impounded and sold the Danns’ livestock on two occasions,
161 horses in March 1992 and 269 horses in November 1992. The Petitioners also claimed that a mining company, Oro
Nevada Mining Company, was claiming some of the Western Shoshone
ancestral lands under a law that permits mining companies to acquire
land belonging to the U.S. government.
The company is also said to have issued a formal notice that it
would drill test holes in several areas on the Danns’ grazing lands
and that all of the range land used by the Danns was subject to actual
gold mining claims.
According to the Petitioners, in taking these actions the State
has relied upon a 1966 ruling by the ICC, a statutorily-based
administrative tribunal established by the State under the Indian
Claims Commission Act to determine aboriginal land claims.
In this ruling, which was subsequently upheld by the U.S. Court
of Claims, the ICC is said to have adopted an uncontested stipulation
that Western Shoshone title had been extinguished some time previously
through by acts of “gradual encroachment” by non-Indians.
It is on this basis that the Petitioners claim that the State
denies the continuing existence of Western Shoshone legal rights to
ancestral land. As
outlined below, however, the Petitioners contest the propriety and
validity of these proceedings, on the basis that the issue of whether
the Western Shoshone rights were truly extinguished was not actually
litigated by the ICC or by the US judiciary.
They also claim that Western Shoshone individuals and groups
were not permitted to intervene in the proceedings to contest the
presumed extinguishment of title and that the Western Shoshone people
have refused to accept the money awarded by the ICC.
Right to Property
The Petitioners contend that the State is responsible for
violations of the Danns’ right to property under Article XXIII of
the Declaration, by reason of the limitation that the State has placed
on the Danns’ occupation and use and of the Western Shoshone
ancestral lands. Article
XXIII of the Declaration provides as follows:
person has a right to own such private property as meets the essential
needs of decent living and helps to maintain the dignity of the
individual and of the home.
In particular, the Petitioners claim that the Danns and other
Western Shoshone people have properly laid claim to the Western
Shoshone ancestral lands through traditional patterns of use and
occupancy of those lands and its natural resources. The Petitioners refer to this as a “customary land tenure
system” and assert that this is a form of property that is
recognized as original or Indian title by the law of the United States
and other common law jurisdictions, as are “free standing” rights
to fish, hunt, gather, or otherwise use resources or have access to
In this context, and independent of the common law of domestic
jurisdictions, the Petitioners contend that the right to property
under Article XXIII of the Declaration, when considered in light of
the fundamental principle of non-discrimination, should be interpreted
to encompass those forms of landholding and resource use that derive
from the traditional land use and occupancy patterns of an indigenous
people such as the Danns. In
support of this contention the Petitioners cite the International
Labor Organization Convention (Nº 169) concerning Indigenous and
Article 14 of which provides as follows:
The rights of ownership and possession of the peoples concerned
over the lands which they traditionally occupy shall be recognised.
In addition, measures shall be taken in appropriate cases to
safeguard the right of the peoples concerned to use lands not
exclusively occupied by them, but to which they have traditionally had
access for their subsistence and traditional activities.
Particular attention shall be paid to the situation of nomadic
peoples and shifting cultivators in this respect.
Governments shall take steps as necessary to identify the lands
which the peoples concerned traditionally occupy, and to guarantee
effective protection of their rights of ownership and possession.
Adequate procedures shall be established within the national
legal system to resolve land claims by the peoples concerned.
The Petitioners similarly rely upon Article XVIII of the
proposed American Declaration on the Rights of Indigenous People
and Article 26 of the Draft United Nations Declaration on
the Rights of Indigenous Peoples,
both of which affirm that aboriginal peoples have the
right to full recognition of their laws, traditions and customs, land
tenure systems and institutions for the development and management of
resources, and the right to effective measures by states to prevent
any interference with, alienation of, or encroachment upon these
In the circumstances of Mary and Carrie Dann, the Petitioners
claim that they have established facts demonstrating the existence of
the Western Shoshone property rights on the basis of traditional use
and occupancy of land and that the Danns are the beneficiaries of
these rights as members of the Western Shoshone people. The Petitioners also contend that they have established facts
indicating that the State has interfered with those rights, including
through actions of federal and state government agencies that have
prevented the Danns and other Western Shoshone people from using and
occupying Western Shoshone ancestral lands according to traditional
patterns. On this basis, the Petitioners submit that the State has
violated the Danns’ right to property under Article XXIII of the
American Declaration as that right is properly interpreted and applied
in relation to aboriginal and other customary land tenure systems.
The Petitioners also point out in this respect that the State
has not disputed the history of traditional land tenure that is
alleged to give rise to Western Shoshone aboriginal title or that its
agents and those of the state of Nevada are engaged in acts that
impede the ability of the Danns to continue to occupy and use the
lands in question, but rather assert that Western Shoshone property
rights were extinguished as a result of statutorily-based claims
proceedings. The Petitioners dispute the propriety of this assertion,
however, on the ground that the Western Shoshone property rights have
not been extinguished even as a matter U.S. law and, moreover,
challenge the validity of this purported extinguishment itself as a
violation of the Danns’ fundamental human rights.
The Petitioners claim in particular that U.S. courts have never
ruled conclusively on the extinguishment of Western Shoshone property
rights but rather have disposed of the Danns domestic claims based
upon those courts’ interpretations of the Indian Claims Commission
Act in a manner which barred the Danns from asserting Western Shoshone
title in domestic judicial proceedings.
According to the Petitioners this conclusion may be drawn from
the judicial history of the Danns’ domestic judicial proceedings.
In this respect, the Petitioners point out that the U.S. Court
of Appeals for the Ninth Circuit, which was the highest U.S. court to
examine and rule on substantive Western Shoshone land rights, actually
concluded that Western Shoshone land rights “had not been
extinguished as a matter of law by application of the public lands
act, by creation of the Duck Valley Reservation, or by inclusion of
the disputed land in a grazing district and issuance of a grazing
permit pursuant to the Taylor Grazing Act.” While the U.S. Supreme
Court subsequently reversed that court’s finding, it did so not on
the basis of a finding of actual extinguishment of Western Shoshone
title, but rather on a statutory interpretation of the Indian Claims
Commission Act that barred the assertion of Western Shoshone title
because of the Indian Claims Commission monetary award for the
presumed extinguishment of Western Shoshone title in the collateral
In respect of the State’s contention that the Danns failed to
pursue “individual aboriginal title” to the lands in question
before domestic courts, the Petitioners explain that they have not
pursued such proceedings because doing so would have separated them
from the treaty-based Western Shoshone nation claim, the position that
would preserve the land and culture of the Western Shoshone people as
a whole. At base, they
argue that to pursue such a claim would undermine the aboriginal
rights and treaty-recognized basis of title that forms the essential
historical, cultural and political foundation for the Western Shoshone
and other indigenous nations and tribes.
Right to Equality under the Law
The Petitioners also challenge the State’s interference with
the Danns’ occupation and use of the Western Shoshone ancestral
lands as discriminatory contrary to Article II of the Declaration,
which protects the right to equality before the law.
particular, the Petitioners assert that the State is obliged to
protect the Danns’ aboriginal property rights and to accord those
rights the same degree of protection that it provides for the
protection of the property rights of non-Indians but has failed to do
The Petitioners assert several grounds for their claim of
first contend that the theory upon which the ICC determined the
extinguishment of Western Shoshone, namely “gradual encroachment”
by non-indigenous settlers, miners and others, constitutes a
nonconsensual and discriminatory transfer of property rights in land
away from indigenous people who continue in possession of their land
and in favor of non-indigenous interests.
They claim that this is a “lawless concept that simply
rewards trespassers and relieves the United States of its own legal
obligation to uphold Indian land rights.”
Petitioners support their arguments in part with the findings of a
seminar of experts convened by the United Nations that identified
property transfers of this nature as part of a larger pattern of
racial discrimination suffered by indigenous peoples.
The Petitioners identify as a further source of discrimination
the absence of substantive protections for indigenous property rights,
including those rights derived from Western Shoshone aboriginal title,
that are equal to the protections accorded to non-indigenous forms of
property. In particular,
they indicate that under U.S. law, including the Fifth Amendment to
the U.S. Constitution and other federal and state laws, the taking of
property by the government ordinarily requires a valid public purpose
and the entitlement of the owners to notice, a judicial hearing and
fair compensation based upon the fair market value of the property
Petitioners argue in contrast that the Western Shoshone ancestral
lands were taken in the absence of any of these prerequisites, a
circumstance that the Petitioners claim is consistent with the
discriminatory standards applied by the U.S. to indigenous peoples’
property in general as reflected in judicial decisions such as
Tee-Hit-Ton Indians v. United States.
In the Danns’
circumstances, the Petitioners claim to have stated facts that
indicate that no public purpose has been established for the purported
extinguishment of the Western Shoshone land title and that the 1979
monetary award that resulted from the ICC claims proceedings was
calculated on the basis of a valuation of the land as of July 1, 1872,
the presumed extinguishment date, and that no interest was calculated
into the award.
basis, the Petitioners contend that the Western Shoshone were not
provided with just compensation that is otherwise required for the
taking of non-indigenous property.
Also according to the Petitioners, discriminatory treatment of
indigenous property is further indicated by the facts relating to the
procedure by which the United States determined extinguishment of and
compensation for Western Shoshone ancestral lands, which the
Petitioners claim has failed to protect or support indigenous land
rights to the same extent as other property rights.
In the circumstances of the Danns and other members of the
Western Shoshone, the Petitioners contend that during the ICC
proceedings by which the State claims the Western Shoshone peoples’
rights were extinguished, only one small group was actually
represented before the ICC and subsequently before the U.S. Court of
Claims. They also claim
that other Western Shoshone, including the Danns, were not permitted
to intervene in the ICC proceedings. Moreover, those Western Shoshone
claimants who were represented before the ICC were prevented from
dismissing their lawyer when they decided that he was not acting in
their best interest.
The Petitioners contrast this situation to the requirements of
general U.S. property law, according to which property rights
ordinarily can only be extinguished or condemned through “careful,
rigorous proceedings in which all interested parties are entitled to
be heard through counsel of their own choosing.”
The Petitioners therefore complain that the U.S.
government is now attempting to hold the Danns and other Western
Shoshone people to the terms negotiated by a lawyer in a proceeding in
which they were denied the right to participate, in violation of the
international standard of equality under the law.
In support of their contention that this treatment constitutes
discrimination for the purposes of Article II of the Declaration, the
Petitioners cite decisions and proclamations of domestic and
international bodies. These
include a decision of the Australian High Court in which a majority of
that Court concluded that a legislative measure targeting native title
for legal extinguishment to the exclusion of non-indigenous property
rights was racially discriminatory and therefore invalid.
The Petitioners also cite statements by the UN Committee
on the Elimination of Racial Discrimination urging state parties to
the Convention on the Elimination of All Forms of Racial
Discrimination to “recognize and protect the rights of indigenous
peoples to own, develop, control, and use their communal lands,
territories and resources.”
They point to
one decision in particular under the Committee’s early warning and
urgent actions procedures, expressing concern over amendments to
Australia’s Native Title Act, which the Committee regarded as having
created legal certainty for governments and third parties at the
expense of indigenous title and as having failed to provide for
effective participation by indigenous communities in the formulation
of the legislative amendments.
In respect of the latter decision, the Petitioners argue
that the lack of procedural and substantive protections for the Danns
makes for an “equally compelling case of invidious discrimination
that requires immediate attention.”
Commission Member Professor Robert Goldman did not take part in the
discussion and voting on this case, pursuant to Article 17(2) of the
Commission's Rules of Procedure.
During its 109th
special session in December 2000, the Commission approved the Rules
of Procedure of the Inter-American Commission on Human Rights, which
replaced the Commission’s prior Regulations of April 8, 1980.
Pursuant to Article 78 of the Commission’s Rules of Procedure, the
Rules entered into force on May 1, 2001.
18 U.S. Stat.
Supplemental Brief on the Merits, dated March 2000, p. 8, n. 24, citing,
inter alia, F. Cohen,
Handbook of Federal Indian Law 442-443, 491 (1982 ed.);
United States ex rel. Hualapai Indians v. Santa Fe Pacific Railroad,
314 U.S. 339 (1941); R. v. Adams (1996) 110 C.C.C. (3d) 97 (S.C.C.)
(Can.); Amodu Tijani v. Secretary, Southern Nigeria, 2 A.C. 399
Labor Organization Convention (Nº 169 of 1989) concerning
Indigenous and Tribal Peoples in Independent Countries, entered into
force Sept. 1991.
American Declaration on the Rights of Indigenous People, approved by
the IACHR at its 1333rd sess. On Feb. 26, 1997,
OEA.Ser.L/V/II.95, doc. 7 rev., 1997, at 654-676.
Nations Declaration on the Rights of Indigenous Peoples, adopted by
the U.N. Sun-commission on Prevention of Discrimination and
Protection of Minorities, 26 August 1994, E/CN.4/Sub.2/1994/45, at
Supplemental Brief on the Merits, supra, p. 9, citing United States v. Dann, 706 F. 2d 919, 927-933 (9th
Cir. 1983), reversed on other grounds, 470 U.S. 39 (1985).
observations of January 25, 1995, pp. 6-7.
Article II of
the American Declaration reads: “All persons are equal before the
law and have the rights and duties established in this Declaration,
without distinction as to race, sex, language, creed or any other
petition of April 2, 1993, p. 21.
Supplemental Brief on the Merits, supra, p. 10, citing Report of the United Nations Seminar on the
Effects of Racism and Racial discrimination on the Relations Between
Indigenous Peoples and States, E/CN.4/1989/22, HR/PUB/89/5, at 5
petition of April 2, 1993, p. 21.
Indians v. United States, 348 U.S. 272, 281, 285 (1955) (stating, inter
alia, that no Supreme Court case “has ever held that taking of
Indian title or use by Congress required compensation,” because
“Indian occupation of land without [prior explicit] government
recognition of ownership crates no rights against or extinction by
the United States protected by the Fifth Amendment or any other
principle of law.”
petition dated April 2, 1993, pp. 16-17.
Supplemental Brief of the Merits, supra,
p. 13, n. 40, citing Mabo v. Queensland [Nº 1] (1988) 166 C.L.R.
citing CERD General Recommendation XXIII, on indigenous peoples,
adopted 18 August 1997, CERD/C51/Misc.13/Rev.4 (1997).
pp. 13-14, citing CERD Decision (2)54 on Australia: Australia,
CERD/C/54/Misc.40/Rev.2, para. 6 (18 March 1999); Additional
Information pursuant to Committee Decision: Australia CERD/C/347 (22