Right to Cultural Integrity
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.”
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.
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,
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.”
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.”
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
Right to Self Determination
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.”
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.
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.”
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.
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
Rights to Judicial Protection and Due Process of Law
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.
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
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.
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.”
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.
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
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.
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,
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
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.
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.
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.
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.
of the State
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.
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.
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.  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. 
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.
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
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.
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.
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.
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.”
According to the State, the term “otherwise” in this
provision included takings of lands by gradual encroachment of settlers
In this connection, the State, in response to question put to it
by the Commission during the October 10, 1996 hearing in this matter,
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.
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.
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.
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
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.
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. 
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.
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
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.
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.”
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.
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
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
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
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.
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.
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
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
and Interpretation of the American Declaration of the Rights and Duties
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.
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.
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
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
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
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.
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.
The Western Shoshone People and Mary and Carrie Dann
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.
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.
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.
The Western Shoshone and the U.S. government are parties to an
existing treaty, the Treaty of Ruby Valley of 1863.
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.
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.
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.
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
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.
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
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.
The Commission was dissolved on September 30, 1978 pursuant
to paragraph 70(v) of its statute.
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:
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.
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.
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
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.
Finally, determinations of questions of law by the Court of
Claims under the ICC Act were subject to review by the U.S. Supreme
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.
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
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
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.
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. 
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.
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,
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.
The Miskito case, supra,
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.”
Id., p. 17,
citing Concluding Observations of the Human Rights Committee: Canada,
CCPR/C/79/Add.105, para. 8 (April 7, 1999).
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
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,
Nº 2 (1994), paras. 90-93.
Petitioners’ petition of April 2, 1993, p. 15.
Petitioners’ petition of April 2, 1993, p. 19.
Petitioners’ petition of April 2, 1993, pp. 19-20.
Petitioners’ response to the State’s Observations,
dated December 22, 1993, p. 13, n. 6.
United States v. Dann, 706 F.2d 919 (9th Cir.
1983), rev’d on other grounds, 470 U.S. 39 (1985).
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).
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,
State’s Observations dated September 9, 1993, p. 7.
Id., p. 1.
State’s observations dated July 14, 1997, at 4.
State’s observations dated September 9, 1993, p. 2.
Id., p. 3.
State’s observations dated July 14, 1997, at 10-11,
citing 25 U.S.C. § 70a(4) (repealed).
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
State’s observations dated February 28, 1997.
State’s observations dated September 9, 1993, p. 4.
State’s observations dated September 9, 1993, p. 6.
State’s observations dated September 9, 1993, p. 6.
State’s observations dated September 9, 1993, at 4-5.
State’s observations dated July 14, 1997, at 10.
State’s observations dated September 9, 1993, p. 5.
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.).
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).
State’s observations dated February 28, 1997.
State’s observations dated April 18, 1994, p. 7.
State’s observations dated September 9, 1993, p. 2.
State’s observations dated July 14, 1997, at 4.
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.
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").
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
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).
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).
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).
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.
Indian Claims Commission Act, 60 Stat. 1055, 25 U.S.C. §
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.
ICC Act, supra,
§ 70(n). See also State’s observations dated September 9, 1993, p. 4.
ICC Act, supra,
Id., § 70(t), (u).
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).
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).