3.       Right to Cultural Integrity


59.     The Petitioners contend that the State’s actions in relation to the Dann land and the Western Shoshone ancestral land more broadly violate the Danns’ right to protection of cultural integrity, which they in turn claim is affirmed in the American Declaration through Article XXII (right to property), Article III (right to religious freedom), Article VI (right to family and protection thereof) and Article XIV (right to take part in the cultural life of the community).  The Petitioners state in particular that the Commission has recognized the free exercise of these rights as “essential to the enjoyment and perpetuation of the culture of indigenous peoples.” [19]


60.     In the circumstances of the Danns in particular, the Petitioners assert that the United States is actively attempting to deprive the Danns of their traditional lands.  As the Western Shoshone culture is dependent upon the land and the natural resources upon it, the Petitioners argue that the State’s actions are directly threatening the Danns’ enjoyment of Western Shoshone culture.  Among the acts that are said to threaten this deprivation are the issuance of civil and criminal penalty notices to the Danns for the use of their traditional lands, threats to confiscate the Danns’ livestock, impediments to the gathering of subsistence foods, limits to their access to sacred sites, and the permission of private mining concessions and harmful military activities on traditional Western Shoshone lands, which activities have threatened the environment and destroyed available resources.


61.     According to the Petitioners, these actions together with the State’s insistence that Western Shoshone title has been extinguished, threatens to destroy Western Shoshone culture in violation of the American Declaration, as informed in particular by Article 27 of the International Covenant on Civil and Political Rights.  Article 27 of the ICCPR states that “[i] in those States in which ethnic, religious, or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.” The Petitioners argue that the Commission itself has relied upon Article 27 of the ICCPR in affirming that international law protects minority groups, including indigenous peoples, in the enjoyment of all aspects of their diverse cultures and group identities, [20] and that for indigenous peoples in particular, the right to cultural integrity covers “the aspects linked to productive organization, which includes, among other things, the issue of ancestral and communal lands.” [21]   Also in this connection, the Petitioners cite general comments and decisions of the UN Human Rights Committee.  These include the Committee’s views in the case Ominayak, Chief of the Lubicon Lake Band of Cree v. Canada, in which it found Canada responsible for violating Article 27 of the ICCPR by allowing the provincial government of Alberta to grant leases for oil and gas exploration and for timber development within the ancestral territory of the Lubicon Lake Band.  According to the Committee, this natural resource development activity compounded historical inequities to “threaten the way of life and culture of the Lubicon Lake Band.”


62.     Based upon these submissions, the Petitioners contend that the State is responsible for violations of the Danns’ right to cultural integrity as protected through Articles III, VI, XIV and XXIII of the American Declaration.


4.       Right to Self Determination


63.     The Petitioners argue that the United States is also responsible for violations of the Danns’ right to self determination as prescribed under international law.  According to the Petitioners, the principle of self-determination means that “human beings, individually and collectively, have a right to be in control of their own destinies under conditions of equality.” [22] The Petitioners contend that the State is responsible for violations of this principle in two respects, by depriving the Danns of their land and resources and therefore their means of livelihood, and by excluding the Danns from participating in decisions that affect their lands and natural resources.


64.     In particular, the Petitioners argue that for indigenous peoples, the principle of self determination establishes a right to control their lands and natural resources and to be genuinely involved in all decision-making processes that affect them.  In support of this contention the Petitioners refer to statements by the UN Human Rights Committee respecting the situation of indigenous peoples in Canada in which the Committee has emphasized “that the right to self-determination requires, inter alia, that all peoples must be able to freely dispose of their natural wealth and resources and that they may not be deprived of their own means of subsistence.” [23]  


65.     In the case of the Danns, however, the Petitioners submit that the United States has actively interfered with the Danns’ enjoyment of their ancestral lands and is actively depriving the Danns and other Western Shoshone people of their means of subsistence by removing or attempting to remove their livestock from their traditional lands.  The Petitioners also argue that the United States has failed to adequately consult with the Danns and other Western Shoshone people regarding any decision affecting the enjoyment of their ancestral lands.  According to the Petitioners, the right to property affirmed in Article XXIII of the American Declaration would have little meaning for indigenous peoples if their property could be encumbered without due consultation, consideration, and in appropriate circumstances, just compensation by the state.  Without a full and fair opportunity to be heard and to genuinely influence the decisions affecting them, the Petitioners argue that the Danns and other Western Shoshone groups are unable to exercise their right to self-determination as guaranteed by international law. [24]


66.     Based upon these submissions, the Petitioners argue that the State has violated, in regard to the Danns and other Western Shoshone, their rights to consultation, the enjoyment of their social and economic development, and their very subsistence, and therefore their right to self-determination.


5.       Rights to Judicial Protection and Due Process of Law


67.     The Petitioners contend that the State has denied the Danns their rights to judicial protection and to due process of law as affirmed by Article XVIII of the American Declaration and numerous other international instruments.  The Petitioners argue that implicit in Article XVIII of the Declaration is the right to judicial procedures that accord with fundamental principles of fairness and due process of law.  In support of their position, they cite several determinations by this Commission and by the Inter-American Court to the effect that the right to judicial protection extends beyond free access to and exercise of judicial recourse, such that, for example, it is necessary for the intervening judicial body to issue a conclusion based upon the merits of the claim that establishes the validity or invalidity of the legal position giving rise to the judicial resource before the judicial recourse can be said to be effective. [25]


68.     In the circumstances of the present case, the Petitioners submit that the Danns and other Western Shoshone people who sought to assert continuing Western Shoshone title to land were denied participation or adequate representation in the proceedings before the Indian Claims Commission, proceedings which resulted in a determination that Western Shoshone title was extinguished without there having been an opportunity to litigate or contest the theory of extinguishment advanced by the United States.


69.     More particularly, the Petitioners indicate that during the 1950’s, 60’s and 70’s proceedings took place before the Indian Claims Commission respecting the determination of any claims that the Western Shoshone may have to their ancestral lands.  In these proceedings, the United States and the lawyer purporting to represent all of the Western Shoshone “conceded and formally stipulated” that the Western Shoshone land rights had been “extinguished” on July 1, 1872 under a theory of “gradual encroachment” by non-Native Americans.  The Danns claim not to have authorized or participated in these proceedings and were not entitled to intervene to challenge the stipulation by the Western Shoshone attorney.  The Petitioners also argue that nothing of significance occurred with respect to Western Shoshone land rights on July 1, 1872 and that the stipulation of this extinguishment date is pure fiction and, at base, only served to reach a compromise between the government’s desire to minimize any payment for the land and the attorney’s desire to maximize the payment and associated legal fees. [26]


70.     The ICC proceedings resulted in a final ruling on December 12, 1979 in which the ICC calculated an amount of compensation for the Western Shoshone people based upon a valuation of the property at the time previously stipulated, 1872.  The Petitioners contend further that the attorney litigating the matter before the ICC was indeed an adversary of the Danns and the other Western Shoshone he purported to represent, entered into the stipulation in 1966 without the authorization of the Western Shoshone, and was in actuality representing the interests of the United States and his own interests in obtaining “handsome attorneys fees.” [27]   They also argue that the attorney, the U.S. government and the U.S. courts misled the Western Shoshone concerning the effect of their judgments on Western Shoshone land rights. [28]


71.     In response to the State’s contention that “open council meetings” were held by the attorney to consult the other members of the Western Shoshone, the Petitioners argue that these meetings were not democratically fostered and controlled by the Western Shoshone people and moreover were held eight years after the 1957 hearing on the land title question and three years after the ICC ruling on the issue of the title extinguishment. [29]


72.     Other legal proceedings took place contemporaneously with and subsequent to the ICC ruling.  This included an action brought by the United States in 1974 against the Danns in the Federal Court in the State of Nevada claiming that it owned the lands at issue and seeking damages from the Danns for trespass and an injunction preventing the Danns from grazing their livestock on what the State considered to be public lands.  During the course of this litigation, the State argued that the Danns were bound by the stipulation reached between the United States and the lawyer in the ICC proceedings.  The Trial Court subsequently issued a ruling in April 1980, four months after the ICC ruling on compensation, concluding that Western Shoshone title to their ancestral lands had been extinguished on December 12, 1979 by the ICC final judgment.  On appeal, the Court of Appeals for the Ninth Circuit concluded that Western Shoshone title could not have been extinguished by the ICC proceedings, because even though the ICC had issued a final judgment, the Western Shoshone had not been paid the money awarded under the judgment.  On further appeal, however, the U.S. Supreme Court concluded that the Western Shoshone had been “paid” the money award from the ICC proceedings, and that this payment took place when the U.S. Congress appropriated the funds and placed them in a U.S. Treasury account controlled by the Secretary of the Interior.  The Petitioners note that the U.S. Supreme Court did not address their contentions regarding the propriety and fairness of the ICC proceedings or their outcome.  The matter was remanded back to the Federal Court, which ultimately adopted the stipulated 1872 extinguishment date for the purposes of disposing of the proceedings.


73.     In light of this judicial history, the Petitioners point out that the domestic courts ultimately disposed of proceedings regarding the Danns’ interests in the Western Shoshone ancestral lands without determining the actual existence of historical acts of extinguishment or considering allegations of fraud in the collateral claims proceedings. Rather, while the Ninth Circuit Court of Appeal decided in the trespass action initiated by the United States against the Danns that Western Shoshone title had not actually been extinguished, [30] the Supreme Court reversed this decision on other grounds and ruled that the Danns were barred as a result of the judgment of the ICC and subsequent money award by the Court of Claims from asserting such title. [31] The Petitioners argue that the Supreme Court’s ruling has prevented the Danns from asserting a defense of Western Shoshone aboriginal title against federal trespass actions and other impediments to their use and enjoyment of Western Shoshone ancestral lands, and have therefore deprived the Danns of adequate judicial protection.


74.     The Petitioners also contend in this regard that according to a decision of the Ninth Circuit Court of Appeals in the subsequent case of Western Shoshone National Council v. Molini, that Court extended the Supreme Court’s decision in Dann to preclude the Danns from asserting hunting and fishing rights as part of aboriginal title, despite the fact that the ICC process clearly did not address the extinguishment of all Western Shoshone aboriginal and treaty rights. [32]   Further, the Petitioners reject as insufficient any suggestion by the State that the “largely theoretical” remedy of possible judicial recognition of “individual aboriginal rights” as ineffective and inadequate.  The Petitioners emphasize in this regard that the Danns are among the Western Shoshone Indians who as a whole exist as an indigenous nation or people in the sense that they comprise a discrete community bonded by ethnographic, cultural and political factors.  Thus, it is the customary system of land tenure generated by the Western Shoshone people as a whole over centuries, rather than the Danns own individual land use patterns, that forms the foundation of the land rights asserted by the Danns.  On this basis, the Petitioners argue that “individual aboriginal rights” do not provide a basis for the Danns to assert use and occupancy rights that derive from Western Shoshone title.


75.     Accordingly, the Petitioners submit that the State has failed to provide the Danns with effective judicial remedies in violation of its international obligation to protect fundamental rights.


B.      Position of the State


76.     With respect to the merits of the Petitioners’ claims, the State denies that it has violated the Danns’ rights under the American Declaration.  Indeed, 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 connection, the State contends that the Danns’ title to the lands at issue has been extinguished by lengthy litigation in the United States’ courts, including the U.S. Supreme Court, and that compensation for the loss of title has been placed in a trust fund for the Danns and other members of the Western Shoshone people, pending development of a plan for the distribution of the funds.


77.     The State first challenges the Petitioners’ contention that they have been deprived of the ownership and use of lands in Nevada.  The State argues that the Danns have title, ownership and possession of the lands constituting their ranch in Nevada which had been patented to their father, and that there has never been an effort by the State to remove the Danns from their ranch. [33]   The State also indicates 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.


78.     The State claims in this regard that the Danns’ late father, Dewey Dann, settled in an area of Nevada, established a ranch on the land, and acquired title to the land from the United States through a patent to use the land for farming and ranching.  The State also maintains that it gave Mr. Dann a permit to graze his cattle on public lands until his death in the 1960’s which authorized him to graze 170 cattle and 10 horses on federally owned land near their ranch that was shared by other ranchers in the area.  The State claims that Mr. Dann complied with the permit and that it never interfered with the grazing of cattle by the Danns under the permit. [34] The State claims, however, that following their father’s death, the Dann sisters began to graze a greater number of cattle than permitted under their permit, and that this excessive grazing damaged the range and interfered with other ranchers’ uses of the public lands.  The State claims that the BLM attempted to resolve the matter administratively with the Danns, but that these efforts failed and thus required the BLM to take impoundment and other formal actions to end the unauthorized grazing. [35]  

79.     Also as part of the context of the Petitioners’ claims, the State alleges that there is in actuality no entity known as the “Western Shoshone Nation”, but rather that there are groups of Western Shoshone peoples that are recognized as tribes.  Through an established process, the United States recognizes certain Native American groups, or “tribes,” as sovereign nations, and as a consequence treats those tribes as having their own leadership or government and maintains government-to-government relations with them.  Western Shoshone bands or tribes with this recognized status include the Ely Shoshone Tribe of Nevada and the Te-moak Tribe of the Yamba Reservation, but according to the State does not include the Dann band. [36]


80.     With respect to the status of the lands at issue in this case more generally, the State confirmed that U.S. courts recognize the doctrine of aboriginal title that permits Native Americans as tribes, or in some cases as individuals, to use and occupy their traditional homelands. [37] In the present case, however, the State emphasized that the U.S. courts ultimately concluded that Western Shoshone title has been extinguished and barred by the ICC proceedings.  In addition, the United States recognizes that the Western Shoshone historically occupied an area that covers a large part of what is now the state of Nevada.  This land was ceded to the United States by Mexico in 1848 by the Treaty of Guadeloupe Hidalgo, subject to the occupancy by Native Americans, and in 1863, the United States signed the “Treaty of Ruby Valley” with the Western Shoshone.  Under the terms of that treaty, the United States and the Western Shoshone agreed to end hostilities and live amicably, and according to the State the treaty was not intended to acknowledge Shoshone title to lands covered by it. [38] Subsequent to this treaty, the United States claims that it began treating certain lands within the areas in question as public lands of the United States.


81.     The State also claims that in the 1800’s, more people in the United States began to move westward and settle new lands in the West, including the areas in the state of Nevada traditionally occupied by the Western Shoshone.  This was accomplished in part through the granting to settlers by the United States of patents if the settlers took up permanent residence, established a farm or ranch, and met certain other requirements.


82.     In light of this history, the State maintains that the Danns and other Western Shoshone lost any interest in the lands in question as a result of this encroachment by non-Native Americans, and that this determination was properly made through proceedings before the Indian Claims Commission, a quasi-judicial body established for the very purpose of determining Indian land claims issues.  According to the State, Congressional legislation establishing the ICC was necessary in part because the doctrine of sovereign immunity historically barred Indians from suing the federal government for the loss of ancestral lands.  The State clarified in this regard that according to the legislation that created the ICC, the Commission had jurisdiction to hear, among other claims, “claims arising from the taking by the United States, whether as the result of a treaty of cession or otherwise, of lands owned or occupied by the claimant without the payment for such lands of compensation agreed to by the claimant.” [39] According to the State, the term “otherwise” in this provision included takings of lands by gradual encroachment of settlers and mining.


83.     In this connection, the State, in response to question put to it by the Commission during the October 10, 1996 hearing in this matter, [40] clarified that under U.S. law, two methods exist by which the government obtains title to property through the exercise of sovereign powers: “direct condemnation” and “inverse condemnation.” In the former process, the State files a lawsuit to condemn the property of an individual to serve a public purpose, such as building a road.  In the latter process, some official action by the United States for a public purpose other than the filing of a lawsuit, for example the flooding of property in connection with the building and filling of a dam, results in depriving an individual of the use or his or her property.  In both of these instances, the United States awards just compensation. [41] According to the State, the ICC was specifically established to litigate and decide Indian claims on grounds that included inverse condemnations.  The State further indicated that the Commission would generally do so in three stages: determining whether the tribe possessed aboriginal or other title to the area and whether such interest had been extinguished; determining the value of the area at the date of taking; and offsetting any funds that had been expended by the United States for the tribe. [42]


84.     In the case of the Western Shoshone, the ICC effectively found an inverse condemnation based upon the settlement of the West.  This condemnation was effected for the public purpose of encouraging settlement and agricultural developments and constituted a deprivation of use of lands used by the Western Shoshone that required just compensation, which was ultimately awarded.


85.     On the issue of compensation, the State clarified that the amount awarded to the Western Shoshone was $26,145,189.89, based upon 1872 values of approximately 15 cents per acre plus loss of gold and other resources. [43] At the time of the ICC’s final judgment in August 1977, the ICC statute provided that the award would be deposited in the registry where it would earn interest until a distribution plan was agreed upon and approved by either the Department of the Interior, if reached within six months, or by Congress, if reached in more than six months.  At the time of the State’s September 1993 observations, no distribution plan had been developed.  According to the State, this was due to the lack of agreement to the plan among the various participants.  In the interim, the State indicates that the funds are being held in an interest bearing account and that once a distribution plan is approved, it will be presented to the United States Congress for approval, following which the award and interest will be distributed. [44]  


86.     By the same submissions, the State disputes the Petitioners’ contention that the proceedings before the ICC were a “sham” and that the Danns have been the subject of human rights violations because they personally have not had a full “trial” on the issue of whether the Western Shoshones still own the land which is now the present-day state of Nevada.  According to the State, the ICC process transpired as follows.  In 1951 the Temoak band of Western Shoshone filed a petition before the ICC seeking compensation for the taking of large areas of Western Shoshone land in California and Nevada.  In 1962 the ICC ruled that the Indians’ aboriginal title to the California property had been extinguished in March 1853 and that the amount of compensation could be established based upon that date.  It also ruled in 1962 that the Indians had continuously used and occupied 22 million acres of Nevada land until their way of life was disrupted and they were deprived of their lands by “gradual encroachment” by white settlers and others and the acquisition, disposition or taking of their lands by the United States for its use and benefit and that of its citizens.  During September and October 1965, counsel for the Temoak Bands held open council meetings at four locations in the Western Shoshone territory.  All of the Western Shoshone were given the opportunity to attend and vote to elect an 8-member claims committee, which used a loan from the U.S. government to hire an expert appraiser to provide testimony to the ICC regarding the valuation of the lands taken.  The vote to establish the committee and hire the expert appraiser was 219 in favor and 17 opposed.  The expert was subsequently hired and the testimony provided to the ICC.


87.     The State also contends that because the encroachment had been gradual, there was no specific historical, legal or administrative event to mark the extinguishment of Western Shoshone tribal aboriginal title to the lands in question.  Thus, in 1966 counsel for the Western Shoshone and the U.S. government agreed to stipulate that July 1, 1872 would be taken as the valuation date for the Shoshone lands in Nevada.  The ICC then began to determine the value of the land at the time it had been taken and after a valuation trial held that the Indians were entitled to approximately $26 million in compensation, including approximately $4.6 million in compensation for minerals that had been removed from the land prior to 1872.  In March 1974 the offset issues were tried and submitted to the ICC.  In April 1974 another Western Shoshone group, the Western Shoshone Legal Defense and Education Association, which included the Danns, attempted to intervene in the proceedings and argued that the tribe still had title to approximately 12 million acres of Nevada land, thereby contesting the ICC’s finding that this title had been extinguished. [45]


88.     The State further contends that regardless of whether there was a trial on the status of title to Western Shoshone ancestral lands, a final decision was reached by the ICC that the Western Shoshone had been deprived of their lands as of 1872.  The State also argues that the U.S. Supreme Court recognized this decision and on this basis prevented the Danns from relying upon the non-extinguishment of Western Shoshone land rights as a defense in the proceedings brought against them by the United States. [46]   The State argues that merely because the Danns disagree with the final decision of the ICC and believe it to be wrong does not mean that the decision is incorrect.


89.     With regard to the Petitioners’ complaints as to the Danns’ lack of representation before the ICC, the State claims that this issue was raised before and addressed by the ICC, and that the ICC legislation itself addressed who among the many Shoshone Indians was qualified to represent the interests of all of the Shoshone Indians.  In particular, the ICC Act provided for representation by a tribal organization recognized by the Secretary of the Interior where one existed unless fraud or collusion could be demonstrated, and that the Western Shoshones were represented by such an organization, namely the Temoak Band. [47]   As suggested above, the State claims that the Danns were kept fully apprised through regular meetings held with members of the tribe, including the Danns, and notes in this regard that the Court of Claims rejected any allegations of wrongdoing by the attorneys who represented the Temoak band based upon the absence of any concrete evidence supporting such allegations.  The State also argues that according to the U.S. Court of Claims, the ICC proceeding was not in the nature of a class action in which every individual interest need be addressed, but rather that the proceeding involved a group claim and that if there were allegations that the group had been improperly represented, “then at least, the members claiming to represent the majority interest are required to make their position formally known to the Commission and the other parties as soon as possible–and not after much work has been done, and years have passed.” [48]   The State further contends that while the ICC was not free to provide any compensation other than damages, it was free to find that the Shoshone title to the land had not been extinguished.  According to the State, however, the ICC found that the Indians no longer exercised sufficient occupancy and control over the lands in question to retain aboriginal title and that the U.S. government had asserted enough authority over the lands to constitute a direct extinguishment of any pre-existing rights. [49]


90.     Further, while the State recognizes that the Temoak Band itself subsequently dismissed their attorney, challenged the ICC’s extinguishment finding based upon an argument of collusion, and attempted to stay the proceedings on this basis, the ICC rejected this claim, and the Court of Claims affirmed, on the basis that the attorney had not misled the Indians as to the nature and scope of the ICC proceedings and that the claims of collusion were not adequately supported. [50]   The State also argued in this regard that although the Danns and other Western Shoshones were not able to contend before the ICC proceeding that the land “should be quieted” in the tribe’s name and that the tribe still owned the land, such a bar was not unique to claims by Native Americans at the time and that non-Native Americans bringing actions claiming an interference with their property faced the same dilemma.   While today the United States does permit actions to be brought against it to quiet title to lands, these claims are still subject to limitations and even then, lands of Native Americans are specifically exempted. [51]


91.     The State therefore argues that in effect, the Petitioners are seeking to have the Commission second-guess decisions made many years ago by their fellow Western Shoshone and their attorney in deciding to seek compensation rather than litigate land title rights, by the ICC in its handling of the matters, and by U.S. courts that endorsed the ICC decision. [52]


92.     A further argument proposed by the State asserts that the Danns could pursue a claim before domestic courts based upon “individual tribal aboriginal title.” The State notes in this regard that the U.S. Supreme Court in dispositively rejecting the Danns’ claims in 1985 indicated that the Danns might have been able to claim rights to some lands by asserting a theory of individual aboriginal rights, and that while the Danns initially pursued this course of action, in 1991 they voluntarily withdrew this claim. [53]


93.     Specifically with respect to the Petitioners’ allegation that the United States is responsible for a violation of the right to property under Article XXIII of the American Declaration, the State contends that this provision of the Declaration is concerned with the rights of an individual and not of a separate governmental entity such as an Indian tribe. [54] The State also argues more generally that the Declaration is based upon individual rights as opposed to those of groups such as the Western Shoshone and therefore does not provide a proper basis for the Petitioners’ complaints.


94.     To the extent that the Petitioners purport to rely upon the American Convention, the State emphasizes that the United States is not a party to the Convention and is therefore not bound by it, and that in any event the Convention, like the Declaration, is concerned with the rights of individuals and not entities such as Western Shoshone tribes. Similarly, to the extent that the Petitioners rely upon the Proposed American Declaration on the Rights of Indigenous People, the State argues that the Declaration has not been adopted, is and will continue to be the subject of government comments, is not binding, and therefore does not form a proper basis for the Petitioners’ complaints.  The State takes a like approach to the Petitioners’ reliance upon the ILO Convention (Nº 169) concerning Indigenous and Tribal Peoples in Independent Countries, which the United States also has not ratified.


IV.              ANALYSIS


A.                Application and Interpretation of the American Declaration of the Rights and Duties of Man


95.     The Petitioners claim that the State has violated the rights of the Danns under Articles I, XVIII, and XXVI of the American Declaration of the Rights and Duties of Man.  As the Commission concluded in its admissibility report in this matter, the Commission is competent to determine these allegations as against the United States.  The State is a Member of the Organization of American States that is not a party to the American Convention on Human Rights, as provided for in Article 20 of the Commission's Statute and Article 23 of the Commission's Rules of Procedure, and deposited its instrument of ratification of the OAS Charter on June 19, 1951. [55] The events raised in the Petitioners’ claim occurred subsequent to the State's ratification of the OAS Charter.  The Danns are natural persons, and the Petitioners are authorized under Article 23 of the Commission's Rules of Procedure to lodge the petition on behalf of the Danns.


96.     In addressing the allegations raised by the Petitioners in this case, the Commission also wishes to clarify that in interpreting and applying the Declaration, it is necessary to consider its provisions in the context of the international and inter-American human rights systems more broadly, in the light of developments in the field of international human rights law since the Declaration was first composed and with due regard to other relevant rules of international law applicable to member states against which complaints of violations of the Declaration are properly lodged. [56]   The Inter-American Court of Human Rights has likewise endorsed an interpretation of international human rights instruments that takes into account developments in the corpus juris gentium of international human rights law over time and in present-day conditions. [57]


97.     Developments in the corpus of international human rights law relevant to interpreting and applying the American Declaration may in turn be drawn from the provisions of other prevailing international and regional human rights instruments.  This includes in particular the American Convention on Human Rights which, in many instances, may be considered to represent an authoritative expression of the fundamental principles set forth in the American Declaration. [58]


98.     It is in light of these principles that the Commission will consider and apply the relevant provisions of the American Declaration in the present case.


B.       Pertinent Facts


99.     Before undertaking an analysis of applicable human rights norms and principles in the context of the Danns’ complaints, the Commission considers it instructive to set forth its findings as to the pertinent background facts in this matter.


1.       The Western Shoshone People and Mary and Carrie Dann


100.   According to the observations of both the Petitioners and the State in this matter, the Western Shoshone “people” or “nation” constitutes a collective of individuals of native descent who have traditionally occupied the vast and arid territory of approximately 24,000,000 acres that is now primarily the state of Nevada in the United States.  There appears to be no dispute between the parties as to the indigenous status of the Western Shoshone or of their historical occupation and use of this territory and its resources.  Moreover, the parties agree that at some point the Western Shoshone had title to this territory as their ancestral lands. [59]   Rather, in the Commission’s estimation, the point of contention in this case involves the question of whether any or all of those property rights subsist and the proper method of determining and respecting any such rights.


101.   Also according to the record in this matter, the Western Shoshone nation is comprised of numerous relatively decentralized bands or tribes, including the Temoak Shoshone Band, the Ely Shoshone Band, and the Yomba Shoshone Band.  Each band is comprised primarily of groups and individuals who have an extended family relationship and who have traditionally occupied the same area within the Western Shoshone ancestral territory.


102.   The Western Shoshone and the U.S. government are parties to an existing treaty, the Treaty of Ruby Valley of 1863. [60]   The Petitioners claim that under this treaty, the United States recognized certain Western territories as “Western Shoshone country” but granted the United States certain privileges such as building a railway to California, engaging in mining, and establishing mining towns and settlements.  Moreover, the Petitioners contend that an encroachment by the U.S. on Western Shoshone territory transpired in the late 19th and early 20th centuries and that this occurred in violation of the terms of the Treaty of Ruby Valley.


103.   In terms of the relation of the Western Shoshone to their ancestral lands, the Petitioners have contended the existence of a system of aboriginal land title that has historically been communal in nature and based upon land and resource use patterns. These patterns have been influenced by the fact that the Western Shoshone bands live in sparsely populated communities located far from each other in the vast territory and that in order to sustain themselves, bands have hunted, fished, and raised cattle and horses, and engaged in commerce with their neighbors.  The State has not specifically contested this characterization of the Western Shoshone’s traditional occupation and use of their ancestral lands.


104.   With respect to the Dann family in particular, the parties have indicated that the Danns live on a ranch on Dann band land close to the small rural community of Crescent Valley, Nevada, where they raise livestock.  Their ranch is the Danns’ sole means of support, as they raise their own food and all of their needs are met by the sale of livestock, goods and produce to neighboring Western Shoshone and to non-Indians.  The parties have also indicated that the Dann band is not among the federally-chartered Western Shoshone tribes with which the United States government maintains official relations.  There appears to be no dispute, however, that the Dann band, and the Dann sisters themselves, are considered a part of the Western Shoshone people who have traditionally occupied a particular region of the Western Shoshone ancestral territory, and as such share in the history and status of the Western Shoshone as an aboriginal people. [61] Similarly, the Petitioners have claimed, and the State has not contested, that the Dann family has traditionally occupied and used a region broader than their individual ranch and that this constitutes part of the Dann Band land.

2.       U.S. Domestic Process for Determining Indigenous Land Claims – the Indian Claims Commission


105.   As the possible subsistence of Western Shoshone rights in their ancestral lands lies at the heart of the dispute before it, the Commission considers it necessary to review the manner in which the State has purported to determine and accommodate those rights.


106.   The information before the Commission indicates that in 1946, the U.S. government created a specific administrative mechanism for determining and compensating Indian land claims, in the form of the Indian Claims Commission established under the Indian Claims Commission Act. [62] Authorities suggest that the ICC was created with two principal purposes, to provide a mechanism through which Congress could transfer its authority to determine the merits of Native American land claims in the face of the doctrine of sovereign immunity under U.S. law, and to dispose of those claims with finality. [63] The Commission was dissolved on September 30, 1978 pursuant to paragraph 70(v) of its statute.


107.   According to paragraph 70(a) of the ICC Act, the jurisdiction of the ICC extended only to claims accruing before August 13, 1946 and included the following authority:


The Commission shall hear and determine the following claims against the United States on behalf of any Indian tribe, band, or other identifiable group of American Indians residing within the territorial limits of the United States or Alaska: […] (4) claims arising from the taking by the United States, whether as the result of a treaty of cession or otherwise, of lands owned or occupied by the claimant without the payment for such lands of compensation agreed to by the claimant.


108.   Section 70(i) of the Act limited the presentation of claims to those filed by members of Indian tribes or tribal organizations registered by the Secretary of the Interior and paragraph 70(k) prescribed a limitation period for the presentation of claims, for a period of five years after August 13, 1946.  The legislation also provided that lawyers representing claimants before the ICC could receive as payment up to 10% of the award they received for their Indian clients.  According to the State, this provision was included in order to encourage lawyers to assist Indian clients. [64]


109.   Decisions of the ICC were open to judicial review by the U.S. Court of Claims by two means.  First, the ICC itself had the authority to refer to the Court of Claims for guidance on any “definite and distinct questions of law concerning which instructions are desired for the proper disposition of the claim.” [65] In addition, either party was entitled to appeal any determination by the Commission, whether final or interlocutory, to the Court of Claims within three months from the date of determination.  In these cases, the Court of Claims was empowered to determine whether the ICC’s findings of fact were supported by substantial evidence and whether the conclusions of law were valid and supported by the Commission’s findings of fact. [66] Finally, determinations of questions of law by the Court of Claims under the ICC Act were subject to review by the U.S. Supreme Court. [67]


110.   Upon final conclusion of each claim, the ICC was to submit its report to Congress.  The filing of this report had the effect of a final judgment of the Court of Claims and the ICC Act itself provided the authorization for the payment of those sums. [68]


111.   Finally, according to paragraph 70(u) of the ICC Act, the determination of a claim by the ICC forever discharges the United States and bars any other claims arising out of the matter involved in the controversy.


112.   The nature and breadth of the ICC’s jurisdiction was further developed through judicial interpretations of the ICC legislation.  In particular, it was established in the case of Osage Nation of Indians v. United States [69] that the ICC Act limited the relief that could be ordered by the ICC to that which was compensable in money and did not include recovery of land where that would be plausible. [70]


113.   The Commission notes that according to information on the record, publicists have over the years since its establishment and dissolution criticized the ICC on various grounds.  Among the subjects of these criticisms have been the fact that the ICC Act permitted an individual or small group of Indians to present a claim on behalf of a whole tribal group without requiring proof of the consent of that tribe, the absence of rules permitting the intervention of interested persons in the proceedings before the ICC, and the narrowing of the ICC jurisdiction to award only monetary compensation and accordingly to preclude claimants from recovering lands. [71]


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[19] Id., p. 14, citing IACHR, Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96, doc. 10 rev., April 24, 1997, at 103.

[20] Id., pp. 14-15, citing The Miskito Case, Case 7964 (Nicaragua), IACHR, Report on the Situation of a Segment of the Nicaraguan Population of Miskito Origin, OEA/Ser.L/VII.62, doc. 10 rev. 3, at 76-78, 81 (1983); The Yanomami Case, Case 7615 (Brazil), IACHR, OEA/Ser.L/V/II.66, doc. 10 rev. 1, at 24, 31 (1985); Ecuador Report, supra, at 103-4.  The Petitioners also rely upon Article VII of the Commission’s Proposed Declaration on the Rights of Indigenous Peoples, which links indigenous cultures to the use and enjoyment of lands.

[21] The Miskito case, supra, at 81.

[22] Petitioners’ Supplemental Brief on the Merits, supra, p. 16, citing ICCPR, Article 1(1), which provides that “[a]ll peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social, and cultural development.”

[23] Id., p. 17, citing Concluding Observations of the Human Rights Committee: Canada, CCPR/C/79/Add.105, para. 8 (April 7, 1999).

[24] Id., p. 18, citing, inter alia, International Labour Organization Convention Nº 169 on Indigenous and Tribal Peoples, Article 15.2 of which provides: “In cases in which the State retains the ownership of minerals or sub-surface resources or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands.”

[25] Id., at 21 citing, I/A Court H.R., Godinez Cruz Case, Judgment of January 20, 1989, (Ser. C), No, 5 (1989) at paras. 69-71; I/A Court H.R., Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 of the American Convention on Human Rights), Advisory Opinion OC-9/87 of Oct. 6, 1987, (Ser. A) Nº 9 (1987); I/A Court H.R., Fairen Garbi, Solis Corrales Case, Preliminary Objections, Judgment of June 26, 1987, (Ser. D) Nº 2 (1994), paras. 90-93.

[26] Petitioners’ petition of April 2, 1993, p. 15.

[27] Petitioners’ petition of April 2, 1993, p. 19.

[28] Petitioners’ petition of April 2, 1993, pp. 19-20.

[29] Petitioners’ response to the State’s Observations, dated December 22, 1993, p. 13, n. 6.

[30] United States v. Dann, 706 F.2d 919 (9th Cir. 1983), rev’d on other grounds, 470 U.S. 39 (1985).

[31] Id.

[32] Petitioners’ Supplemental Brief on the Merits, supra, p. 21, citing WSNC v. Molini, 951 F.2d 200 (9th Cir. 1991), cert. denied, 506 U.S. 822 (1992).

[33] The State has argued in this regard that although the Petitioners contend that their land is not of adequate size to support their ranching operation, “this is clearly not a basis for alleging a human rights violation.” State’s observations of July 14, 1997, p. 17.

[34] State’s Observations dated September 9, 1993, p. 7.

[35] Id., p. 1.

[36] State’s observations dated July 14, 1997, at 4.

[37] State’s observations dated September 9, 1993, p. 2.

[38] Id., p. 3.

[39] State’s observations dated July 14, 1997, at 10-11, citing 25 U.S.C. § 70a(4) (repealed).

[40] Three questions in particular were put to the State during the October 10, 1996 hearing before the Commission to which it subsequently replied: 1) what is the current status of the award to the Western Shoshones? 2) What procedure is there in United States law for a taking of property? What is the justification for the taking? 3) What is the status of the petitioners’ land now? What is the present situation?

[41] State’s observations dated February 28, 1997.

[42] State’s observations dated September 9, 1993, p. 4.

[43] State’s observations dated September 9, 1993, p. 6. 

[44] State’s observations dated September 9, 1993, p. 6.

[45] State’s observations dated September 9, 1993, at 4-5.

[46] State’s observations dated July 14, 1997, at 10.

[47] State’s observations dated September 9, 1993, p. 5.

[48] State’s observations dated September 9, 1993, p. 5-6, citing Western Shoshone Legal Defense and Education Association v. United States, 531 F.2d 495 at 504 (Ct. Cl.).

[49] Id.

[50] State’s observations dated September 9, 1993, at 5; State’s observations dated July 14, 1997, at 13, citing Western Shoshone Legal Defense and Educational Association v. United States, 35 Ind. Cl. Comm. 457 (1975), aff’d 531 F.2d 495 (Ct. Cl. 1976), cert. denied, 429 U.S. 885 (1976).

[51] State’s observations dated February 28, 1997.

[52] State’s observations dated April 18, 1994, p. 7.

[53] State’s observations dated September 9, 1993, p. 2.

[54] State’s observations dated July 14, 1997, at 4.

[55] Article 20 of the Statute of the IACHR provides that, in respect of those OAS member states that are not parties to the American Convention on Human Rights, the Commission may examine communications submitted to it and any other available information, to address the government of such states for information deemed pertinent by the Commission, and to make recommendations to such states, when it finds this appropriate, in order to bring about more effective observance of fundamental human rights. See also OAS Charter, Articles 3, 16, 51, 112, and 150 of the OAS Charter; I/A Court H.R., Advisory Opinion OC-10/89 Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, July 14, 1989, Ser. A Nº 10 (1989), paras. 35-45; I/A Comm. H.R., James Terry Roach and Jay Pinkerton v. United States, Case 9647, Res. 3/87, 22 September 1987, Annual Report 1986-87, paras. 46-49.

[56] See I/A Court H.R., Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-10/89 of July 14, 1989, Inter-Am.Ct.H.R. (Ser. A) Nº 10 (1989), para. 37 (pointing out that in determining the legal status of the American Declaration, it is appropriate to look to the inter-American system of today in the light of the evolution it has undergone since the adoption of the Declaration, rather than to examine the normative value and significance which that instrument was believed to have had in 1948). See also ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16 ad 31 stating that "an international instrument must be interpreted and applied within the overall framework of the juridical system in force at the time of the interpretation").

[57] Advisory Opinion OC-16/99, supra, para. 114, citing, inter alia, the decisions of the European Court of Human Rights in Tryer v. United Kingdom (1978), Marckx v. Belgium (1979), and Louizidou v. Turkey (1995).

[58] See IACHR, Report of the Situation of Human Rights of Asylum Seekers within the Canadian Refugee Determination System, Doc. OEA/Ser.L/V/II.106, Doc. 40 rev. (February 28, 2000), para. 38; IACHR, Garza v. United States, Case 12.275, Annual Report of the IACHR 2000, paras. 88, 89 (confirming that while the Commission clearly does not apply the American Convention in relation to member states that have yet to ratify that treaty, its provisions may well be relevant in informing an interpretation of the principles of the Declaration).

[59] See similarly U.S. v. Dann, 706 F.2d 919 at 923 (9th Cir. 1983) (confirming that in the proceedings before the U.S. federal courts, the U.S. did not dispute the fact that the Western Shoshone at one time held aboriginal title to the lands in question).

[60] Treaty of Ruby Valley 1863 (Treaty Between the United States of America and Western Bands of Shoshone Indians, ratified by the US in 1866, and proclaimed on October 21, 1869, 18 Stat. 689).

[61] The State has not, for example, suggested that the Danns would not be entitled to share in the distribution of funds awarded by the ICC to the Western Shoshone people in 1979.

[62] Indian Claims Commission Act, 60 Stat. 1055, 25 U.S.C. § 70a-v.

[63] US v. Dann, 470 U.S. 36 at 45. The doctrine of sovereign immunity under US law historically barred Indians from suing the federal government for the loss of ancestral lands unless Congress passed a law specifically permitting such claims. State’s observations dated July 14, 1997, pp. 10-11.

[64] ICC Act, supra, § 70(n). See also State’s observations dated September 9, 1993, p. 4.

[65] ICC Act, supra, § 70(s)(a).

[66] Id., § 70(s)(b).

[67] Id., § 70(s)(c).

[68] Id., § 70(t), (u).

[69] Osage Nation of Indians v. United States, 1 Ind. Cl. Comm. 54 (1948), rev’d on other grds, 119 Ct. Cl. 592 (1951), cert. Denied, 342 U.S. 89 (1951).

[70] Id.

[71] See e.g. Petra T. Shattuck and Jill Norgren, Partial Justice: Federal Indian Law in a Liberal Constitutional System, pp. 151-153; Caroline L. Orlando, Aboriginal Title Claims in the Indian Claims Commission: United States v. Dann and its Due Process Implications, 13 Envir. Aff. 215, 241 (1986).