Procedural History of the Western Shoshone and Dann Land Claims
As reviewed in the Commission’s admissibility Report 99/99 in
the domestic procedural history concerning the Western
Shoshone ancestral lands and the Danns’ claims relating thereto
included a proceeding before the ICC commenced by Temoak Band of the
Western Shoshone and related appeals to the Court of Claims, as well as
separate proceedings brought by the U.S. government against the Danns in
the federal courts.
According to the information before the Commission, in 1951 the
Temoak Band on behalf of the “Western Shoshone Identifiable Group”
filed a claim with the ICC against the United States based upon the
United States having taken a vast expanse of Western Shoshone ancestral
territory in Nevada and California.
The claim alleged that from time to time the federal
government had extinguished the Western Shoshone’s title by
In 1962, the ICC found that the Western Shoshone Tribe had held
aboriginal title to a total of 24,396,403 acres in Nevada, and that
their title to most of this land was extinguished over an unspecified
period of time by gradual encroachment of both the federal government
and third parties. In 1966,
the Temoak claimants and the government agreed to stipulate an average
extinguishment date of July 1, 1872 in order to determine the amount of
compensation due, and the ICC agreed upon the date.
1977 the ICC completed the compensation phase of the proceeding and
awarded the Western Shoshone with $26 million in compensation.
This finding was based on the value of the property at the time
of the alleged extinguishment, $.10 to $.15 per acre, without interest.
In 1979 the Court of Claims affirmed this award on appeal.
117. In 1974, however, a group of Western Shoshone including the Danns attempted to intervene in the ICC process in order to remove a portion of the 24,000,000 acres of Western Shoshone property from the pending process. This included the lands that were the subject of the separate trespass action by the United States against the Danns in the federal courts. The interveners argued that any lands to which they claimed aboriginal title, including lands which they continued to occupy and use, should be excluded from the determination of the final award. The ICC rejected the intervention and that ruling was affirmed by the Court of Claims, which viewed the attempted intervention as an intra-tribal disagreement over the proper litigation strategy. 
In 1975 and 1976, the Temoak Band dismissed their attorney and
adopted a position similar to that of the Danns, namely that aboriginal
title to the lands in question had never been extinguished and that the
Band’s previous attorney had not presented them with the choice of
whether to include all of the ancestral lands in the claim or to assert
that title to a portion of the lands was not extinguished.
Accordingly, they attempted to stay the proceedings in the ICC
and before the Court of Claims to further address this issue.
However, the ICC denied the stay and entered a final judgment,
and on appeal the Court of Claims affirmed the ICC’s ruling on the
basis that it was too late for the Temoak Band to change their
In December 1979 the Clerk of the Court of Claims certified the
Commission’s award to the U.S. General Accounting Office, which
automatically appropriated the amount of the award and deposited it for
the tribe in an interest-bearing trust account in the Treasury of the
United States. According to
the most recent information before the Commission this award has not yet
been paid out, although a bill was introduced before Congress in
mid-2000 to authorize the Secretary of the Interior to make a per capita
distribution of the funds.
Outside of the process before the ICC, in 1974 the United States
brought an action in trespass in the federal courts against the Danns,
in relation to grazing that the Danns had undertaken without a permit in
the Northeast corner of Nevada. In
response to the action, the Danns argued that the land had been in their
possession and the possession of their ancestors since time immemorial
and that their aboriginal title in the property precluded the State from
requiring grazing permits.
The U.S. District Court rejected the Danns’ argument, on the
basis that the Danns’ aboriginal title in the property had been
extinguished by the collateral claims process before the ICC and that
the United States had acquired all twenty-two million acres of Western
Shoshone land through the estoppel effect of the ICC’s 1962 judgment.
On appeal, the Ninth Circuit Court of Appeals reversed the
District Court decision and remanded the matter back, on the basis that
the extinguishment issue had not been litigated or decided in the ICC
On remand, the District Court held in 1980 that aboriginal
title in the land in issue was extinguished when the final ICC award was
certified for payment,
and on further appeal the Ninth Circuit in a 1983 judgment
once again reversed the District Court, reiterating its previous holding
that the Dann band was not estopped from raising aboriginal title as a
defense because the issue of extinguishment of title had not actually
been litigated before the ICC.
Moreover, the Court held that the title of the Western
Shoshone had never been extinguished by prior application of public land
laws or by the creation of a Western Shoshone reservation because in the
Court’s view these actions did not evince a clear indication of
congressional intent to extinguish aboriginal title.
On further review by the U.S. Supreme Court, the Ninth Circuit
decision was reversed, on the basis that “payment” of the award
could be taken to have occurred when the monies were appropriated to the
U.S. Treasury and thus to have discharged all claims and demands
involving the Western Shoshone land claim.
On this basis, the U.S. Supreme Court determined that the Danns
were estopped from raising aboriginal title as a defense to the U.S.
The matter was once again remanded to the District Court and on
further appeal to the Ninth Circuit, it was finally decided by that
Court that the U.S. Supreme Court’s finding of preclusion was decisive
on precluding the issue of aboriginal title collectively and accordingly
accepted the ICC’s determination of July 1, 1872 as the appropriate
date for the extinguishment of Western Shoshone land rights.
In reaching this conclusion, the Court stated:
It is true that the taking was
not actually litigated…but
the payment of the claim award establishes conclusively that a taking
occurred. From the claims
litigation, we can only conclude that the taking occurred in the later
part of the nineteenth century.
C. Indigenous Peoples’ Human Rights
Principles and the American Declaration on the Rights and Duties of Man
124. As indicated above, in addressing complaints of violations of the American Declaration it is necessary for the Commission to consider those complaints in the context of the evolving rules and principles of human rights law in the Americas and in the international community more broadly, as reflected in treaties, custom and other sources of international law. Consistent with this approach, in determining the claims currently before it, the Commission considers that this broader corpus of international law includes the developing norms and principles governing the human rights of indigenous peoples. As the following analysis indicates, these norms and principles encompass distinct human rights considerations relating to the ownership, use and occupation by indigenous communities of their traditional lands. Considerations of this nature in turn controvert the State’s contention that the Danns’ complaint concerns only land title and land use disputes and does not implicate issues of human rights.
In particular, a review of pertinent treaties, legislation and
jurisprudence reveals the development over more than 80 years of
particular human rights norms and principles applicable to the
circumstances and treatment of indigenous peoples.
Central to these norms and principles is a recognition that
ensuring the full and effective enjoyment of human rights by indigenous
peoples requires consideration of their particular historical, cultural,
social and economic situation and experience.
In most instances, this has included identification of the need
for special measures by states to compensate for the exploitation and
discrimination to which these societies have been subjected at the hands
of the non-indigenous.
For its part, the Commission has since its establishment in 1959
recognized and promoted respect for the rights of indigenous peoples of
this Hemisphere. In the
Commission’s 1972 resolution on the problem of “Special Protection
for Indigenous Populations. Action
to combat racism and racial discrimination,” the Commission proclaimed
that “for historical reasons and because of moral and humanitarian
principles, special protection for indigenous populations constitutes a
sacred commitment of the states.”
This notion of
special protection has since been considered in numerous country and
individual reports adopted by the Commission and, as will be discussed
further below, has been recognized and applied in the context of
numerous rights and freedoms under both the American Declaration of the
Rights and Duties of Man and the American Convention on Human Rights,
including the right to life, the right to humane treatment, the right to
judicial protection and to a fair trial, and the right to property.
127. In acknowledging and giving effect to particular protections in the context of human rights of indigenous populations, the Commission has proceeded in tandem with developments in international human rights law more broadly. Special measures for securing indigenous human rights have been recognized and applied in other international and domestic spheres, including most predominantly the Inter-American Court of Human Rights,  the International Labor Organization,  the United Nations through its Human Rights Committee  and Committee to Eradicate All Forms of Discrimination,  and the domestic legal systems of many states. 
Perhaps most fundamentally, the Commission and other
international authorities have recognized the collective aspect of
indigenous rights, in the sense of rights that are realized in part or
in whole through their guarantee to groups or organizations of people.
recognition has extended to acknowledgement of a particular connection
between communities of indigenous peoples and the lands and resources
that they have traditionally occupied and used, the preservation of
which is fundamental to the effective realization of the human rights of
indigenous peoples more generally and therefore warrants special
measures of protection. The
Commission has observed, for example, that continued utilization of
traditional collective systems for the control and use of territory are
in many instances essential to the individual and collective well-being,
and indeed the survival of, indigenous peoples and that control over the
land refers both its capacity for providing the resources which sustain
life, and to the geographic space necessary for the cultural and social
reproduction of the group.
The Inter-American Court of Human Rights has similarly
recognized that for indigenous communities the relation with the land is
not merely a question of possession and production but has a material
and spiritual element that must be fully enjoyed to preserve their
cultural legacy and pass it on to future generations.
The development of these principles in the inter-American system
has culminated in the drafting of Article XVIII of the Draft American
Declaration on the Rights of Indigenous Peoples,
which provides for the protection of traditional forms of
ownership and cultural survival and rights to land, territories and
resources. While this
provision, like the remainder of the Draft Declaration, has not yet been
approved by the OAS General Assembly and therefore does not in itself
have the effect of a final Declaration, the Commission considers that
the basic principles reflected in many of the provisions of the
Declaration, including aspects of Article XVIII, reflect general
international legal principles developing out of and applicable inside
and outside of the inter-American system and to this extent are properly
considered in interpreting and applying the provisions of the American
Declaration in the context of indigenous peoples.
130. Of particular relevance to the present case, the Commission considers that general international legal principles applicable in the context of indigenous human rights to include:
131. Based upon the foregoing analysis, the Commission is of the view that the provisions of the American Declaration should be interpreted and applied in the context of indigenous petitioners with due regard to the particular principles of international human rights law governing the individual and collective interests of indigenous peoples.  Particularly pertinent provisions of the Declaration in this respect include Article II (the right to equality under the law), Article XVIII (the right to a fair trial), and Article XXIII (the right to property). As outlined above, this approach includes the taking of special measures to ensure recognition of the particular and collective interest that indigenous people have in the occupation and use of their traditional lands and resources and their right not to be deprived of this interest except with fully informed consent, under conditions of equality, and with fair compensation. The Commission wishes to emphasize that by interpreting the American Declaration so as to safeguard the integrity, livelihood and culture of indigenous peoples through the effective protection of their individual and collective human rights, the Commission is respecting the very purposes underlying the Declaration which, as expressed in its Preamble, include recognition that “[s]ince culture is the highest social and historical expression of that spiritual development, it is the duty of man to preserve, practice and foster culture by every means within his power.”
132. The Commission will therefore interpret and apply the provisions of the American Declaration to the Petitioners’ claims of violations of the American Declaration in light of above principles.
International Human Rights Norms and Principles in the Circumstances of
Mary and Carrie Dann
Among the provisions of the American Declaration which are
alleged to have been violated by the State in the present case are
Articles II, XVIII and XXIII, which read as follows:
II. Right to equality before the law
persons are equal before the law and have the rights and duties
established in this Declaration, without distinction as to race, sex,
language, creed or any other factor.
Article XVIII – Right to a fair trial
person may resort to the courts to ensure respect for his legal rights.
There should likewise be available to him a simple, brief
procedure whereby the courts will protect him from acts of authority
that, to his prejudice, violate any fundamental constitutional rights.
Article XXIII – Right to property
person has a right to own such private property as meets the essential
needs of decent living and helps to maintain the dignity of the
individual and of the home.
As noted above, the Commission has accepted based upon the
observations of the parties that the Western Shoshone are an indigenous
people who are acknowledged as historically having had ownership, use
and occupation of the Western Shoshone ancestral lands.
In addition, the Dann sisters are accepted as members of the
Western Shoshone people. Accordingly,
their claims in the present case, relating as they do to their potential
interests in the Western Shoshone ancestral lands, should be determined
in the context of the foregoing principles of indigenous human rights
In the context of the procedural history in the Dann case
outlined above, two factual issues of particular significance to the
issues raised in this case appear to be the subject of conflicting
submissions by the parties and require determination by the Commission
based upon the record before it.
First, the Petitioners contend that the Danns did not authorize
or participate in the ICC claim submitted by the Temoak Band before the
ICC, and that when they and several other bands subsequently sought to
intervene in the proceedings, they were unsuccessful.
The State submits conversely that throughout the proceedings
before the ICC the Western Shoshone were kept fully apprised through
regular meetings held with members of the tribe.
The only such meetings specifically referred to by the State,
however, were meetings convened by the attorney for the Temoak Band in
1965, 14 years after the ICC proceedings commenced and 3 years after the
ICC issued its extinguishment finding.
In the absence of evidence to the contrary the Commission accepts
that the Danns did not play a full or effective role in retaining,
authorizing or instructing the Western Shoshone claimants in the ICC
In addition, there appears to be some conflict between the
parties’ positions as to whether the subsistence of Western Shoshone
title to all or part of its ancestral territory was the subject of
litigation and determination by the ICC. Based upon the record before it, the Commission finds that
the determination as to whether and to what extent Western Shoshone
title may have been extinguished was not based upon a judicial
evaluation of pertinent evidence, but rather was based upon apparently
arbitrary stipulations as between the U.S. government and the Temoak
Band regarding the extent and timing of the loss of indigenous title to
the entirety of the Western Shoshone ancestral lands.
In reaching this conclusion, the Commission has considered in
particular the 1983 judgment of the U.S. Court of Appeals for the Ninth
Circuit in which that Court concluded on the evidence available that
Western Shoshone title had not been extinguished.
respect, the Ninth Circuit was the only judicial body to review the
substance of the ICC’s finding of “extinguishment” of Western
Shoshone title, but its findings were reversed by the U.S. Supreme Court
without consideration of the merits of the Ninth Circuit’s findings on
this point. This
effectively left the issue of title to Western Shoshone lands without
definitive substantive adjudication by the U.S. courts.
In evaluating the Petitioners’ claims in light of these
evidentiary findings, the Commission first wishes to expressly recognize
and acknowledge that the State, through the development and
implementation of the Indian Claims Commission process, has taken
significant measures to recognize and account for the historic
deprivations suffered by indigenous communities living within the United
States and commends the State for this initiative.
As both the Petitioners and the State have recognized, this
process provided a more efficient solution to the sovereign immunity bar
to Indian land claims under U.S. law and extended to indigenous
communities certain benefits relating to claims to their ancestral lands
that were not available to other citizens, such as extended limitation
periods for claims.
Upon evaluating these processes in the facts as disclosed by the
record in this case, however, the Commission concludes that these
processes were not sufficient to comply with contemporary international
human rights norms, principles and standards that govern the
determination of indigenous property interests.
The Commission first considers that Articles XVIII and XXIII of
the American Declaration specially oblige a member state to ensure that
any determination of the extent to which indigenous claimants maintain
interests in the lands to which they have traditionally held title and
have occupied and used is based upon a process of fully informed and
mutual consent on the part of the indigenous community as a whole.
This requires at a minimum that all of the members of the
community are fully and accurately informed of the nature and
consequences of the process and provided with an effective opportunity
to participate individually or as collectives.
In the case of the Danns, however, the record indicates that the
land claim issue was pursued by one band of the Western Shoshone people
which no apparent mandate from the other Western Shoshone bands or
members. There is also no
evidence on the record that appropriate consultations were held within
the Western Shoshone at the time that certain significant determinations
were made. This includes in particular the ICC’s finding that the
entirety of the Western Shoshone interest in their ancestral lands,
which interests affect the Danns, was extinguished at some point in the
To the contrary, despite the fact that it became clear at the
time of the Danns’ request to intervene that the collective interest
in the Western Shoshone territory may not have been properly served
through the proceedings pursued by the Temoak Band, the courts
ultimately did not take measures to address the substance of these
objections but rather dismissed them based upon the expediency of the
ICC processes. In the
Commission’s opinion and in the context of the present case, this was
not sufficient in order for the State to fulfill its particular
obligation to ensure that the status of the Western Shoshone traditional
lands was determined through a process of informed and mutual consent on
the part of the Western Shoshone people as a whole.
The insufficiency of this process was augmented by the fact that,
on the evidence, the issue of extinguishment was not litigated before or
determined by the ICC, in that the ICC did not conduct an independent
review of historical and other evidence to determine as a matter of fact
whether the Western Shoshone properly claimed title to all or some of
their traditional lands. Rather,
the ICC determination was based upon an agreement between the State and
the purported Western Shoshone representatives as to the extent and
timing of the extinguishment. In
light of the contentions by the Danns that they have continued to occupy
and use at least portions of the Western Shoshone ancestral lands, and
in light of the findings by the Ninth Circuit Court of Appeals as to the
merits of the ICC’s extinguishment finding, it cannot be said that the
Danns’ claims to property rights in the Western Shoshone ancestral
lands were determined through an effective and fair process in
compliance with the norms and principles under Articles XVIII and XXIII
of the American Declaration.
Further, the Commission concludes that to the extent the State
has asserted as against the Danns title in the property in issue based
upon the ICC proceedings, the Danns have not been afforded their right
to equal protection of the law under Article II of the American
Declaration. The notion of
equality before the law set forth in the Declaration relates to the
application of substantive rights and to the protection to be given to
them in the case of acts by the State or others.
Further, Article II, while not prohibiting all distinctions
in treatment in the enjoyment of protected rights and freedoms, requires
at base that any permissible distinctions be based upon objective and
reasonable justification, that they further a legitimate objective,
regard being had to the principles which normally prevail in democratic
societies, and that the means are reasonable and proportionate to the
The record before the Commission indicates that under prevailing
common law in the United States, including the Fifth Amendment to the
U.S. Constitution, the taking of property by the government ordinarily
requires a valid public purpose and the entitlement of owners to notice,
just compensation, and judicial review.
In the present case, however, the Commission cannot find
that the same prerequisites have been extended to the Danns in regard to
the determination of their property claims to the Western Shoshone
ancestral lands, and no proper justification for the distinction in
their treatment has been established by the State.
In particular, as concluded above, any property rights that the
Danns may have asserted to the Western Shoshone ancestral lands were
held by the ICC to have been “extinguished” through proceedings in
which the Danns were not effectively represented and where the
circumstances of this alleged extinguishment were never actually
litigated nor the merits of the finding finally reviewed by the courts.
And while compensation for this extinguishment was awarded by the
ICC, the value of compensation was calculated based upon an average
extinguishment date that does not on the record appear to bear any
relevant connection to the issue of whether and to what extent all or
part of Western Shoshone title in their traditional lands, including
that of the Danns, may no longer subsist.
Further, the Commission understands that the amount of
compensation awarded for the alleged encroachment upon Western Shoshone
ancestral lands did not include an award of interest from the date of
the alleged extinguishment to the date of the ICC decision, thus leaving
the Western Shoshone uncompensated for the cost of the alleged taking of
their property during this period.
All of these circumstances suggest that the Danns have not been
afforded equal treatment under the law respecting the determination of
their property interests in the Western Shoshone ancestral lands,
contrary to Article II of the Declaration. While the State has suggested that the extinguishment of
Western Shoshone title was justified by the need to encourage settlement
and agricultural developments in the western United States, the
Commission does not consider that this can justify the broad manner in
which the State has purported to extinguish indigenous claims, including
those of the Danns, in the entirety of the Western Shoshone territory.
In the Commission’s view, this is particularly apparent in
light of evidence that the Danns and other Western Shoshone have at
least until recently continued to occupy and use regions of the
territory that the State now claims as its own.
PROCEEDINGS SUBSEQUENT TO REPORT 113/01
On October 15, 2001 the Commission adopted Report 113/01 pursuant
to Article 43 of its Rules of Procedure, setting forth its analysis of
the record, findings and recommendations in this matter.
Report 113/01 was transmitted to the State on October 19, 2001
with a request that the State provide information as to the measures it
had taken to comply with the recommendations set forth in the report
within a period of two months, in accordance with Article 43(2) of the
By communication dated December 17, 2001 and received by the
Commission on December 19, 2001 the State delivered a response to the
Commission’s request for information, in which it rejected the
Commission’s report in its entirety and asserted that Mary and Carrie
Dann had been accorded the right to equality before the law, the right
to a fair trial, and the right to own property.
Prior to discussing the State’s objections in further detail,
the Commission emphasizes that the purpose of transmitting a preliminary
merits report to the state concerned in accordance with Article 43(2) of
the Commission’s Rules of Procedure is to receive information as to
what measures have been adopted to comply with the Commission’s
At this stage
of the process, the parties have had a full opportunity to argue their
positions, the admissibility and merits phases of the process are
completed, and the Commission has rendered its decision. Therefore,
while a state may provide its views on the factual and legal conclusions
reached by the Commission in its preliminary report, it is not for a
State at this point, as the United States has done in the present case,
to reiterate its previous arguments, or to raise new arguments,
concerning the admissibility or merits of the complaint before the
Commission, nor is the Commission obliged to consider any such
submissions prior to adopting its final report on the matter.
In light of the significance of the legal issues raised in this
case, however, and without detracting from the fundamental procedural
considerations noted above, the Commission has decided to summarize and
provide observations on certain aspects of the State’s response.
The United States made four principal arguments in rejecting the
conclusions and recommendations in the Commission’s report. It first
contended that the Danns’ complaints regarding the alleged lack of due
process in the Indian Claims Commission proceedings were fully and
fairly litigated in the United States courts and should not be
reconsidered by the Commission. Second, the State argued that the
Commission lacked jurisdiction to evaluate processes established under
the 1946 Indian Claims Act since the Act predated the U.S. ratification
of the OAS Charter. Third, the State claimed that the Commission erred
in interpreting the principles of the American Declaration in light of
Article XVIII of the OAS draft Declaration on the Rights of Indigenous
Peoples, which had not yet been adopted by the political organs of the
OAS. Finally, the State rejected the Commission’s findings on the
basis that the American Declaration is not a legally binding instrument
and therefore cannot be the object of violations by the United States.
In elaborating upon the arguments in its response, the United
State provided an overview of the history of litigation in US domestic
courts pertaining to the Western Shoshone lands. According to the State,
this included in particular the action filed in 1951 on behalf of the
Western Shoshone with the Indian Claims Commission to recover damages
for the loss of aboriginal title to lands in the Western United States,
including Nevada and California. The State notes that this litigation
was completed in 1977, after the Indian Claims Commission had determined
the fair market value of the lands acquired from the Western Shoshone to
be $21,550,000.00 based upon a July 1, 1872 valuation date stipulated by
the parties. The State also acknowledged that the Western Shoshone Legal
Defense and Education Association, representing Mary and Carrie Dann,
subsequently moved to stay the Indian Claims Commission proceedings and
presented an amended claim in which it sought to delete from the claims
lands to which it contended the Western Shoshone still retained
aboriginal title. The State asserts that the Indian Claims Commission,
viewing this dispute as an “internal one among the Western Shoshone
over litigation strategy,” denied the motion, a decision that was
subsequently maintained on appeal to the US Court of Claims and
ultimately to the US Supreme Court through denial of a petition for a
writ of certiorari.
The State also refers to the trespass action commenced by the
United States government against the Danns in 1974 alleging that they
were grazing livestock on certain public lands in Nevada without a
permit as required by regulations promulgated by the Secretary of the
Interior under the Taylor Grazing Act. The United States notes in
particular that according to the US Supreme Court, the finality under
section 22(a) of the 1946 Indian Claims Commission Act of the ICC’s
judgment and award in the Western Shoshone litigation precluded the
Danns from continuing to assert aboriginal title, since the award had
been placed in a trust fund account for the benefit of members of the
Western Shoshone. The Supreme Court also observed that only tribal, but
not individual, aboriginal rights were precluded by the Indian Claims
Commission proceedings, although the Court declined to address the issue
of individual aboriginal title further since it had not been addressed
by the lower courts. On remand, the US Court of Appeals for the Ninth
Circuit ruled that the Danns would be able to assert individual
aboriginal title as a defense in the trespass action to the extent that
such rights were acquired prior to the withdrawal of the lands from the
public grazing legislation in 1934 and continuously exercised since that
time. However, the Danns subsequently withdrew their claims of
individual aboriginal title as a defense in the trespass action, and as
a result the US federal courts have ordered the Danns to comply with the
United States’ grazing regulations.
In disputing the findings in the Commission’s report, the State
first contends that the Commission has violated the ”fourth instance”
procedural rule by advancing the same arguments that have been
adjudicated, reviewed and rejected by federal courts in the above
litigation in accordance with US federal law and, in the State’s view,
the provisions of international law, contemporary or otherwise.
In this connection, the State identifies as a “fundamental
error” throughout the Commission’s decision its factual assumption
that the land at issue in the Indian Claims Commission litigation
represented an aggregation of individual claims and not a collective
tribal claim of the Western Shoshone. The State asserts that the claim
before the Indian Claims Commission was in fact a collective tribal
claim regarding all of the communal tribal lands and not an aggregation
of related individual claims, a characteristic recognized by the US
Court of Claims and by the “firmly established principle” under US
law that tribes, not individuals, have authority over communal tribunal
land. As a consequence, the Danns were not entitled to be individually
represented in the Indian Land Claims proceeding.
The State also contends that the Commission committed a
fundamental factual error by concluding that at the time of the Danns’
request to intervene, the collective interest in the Western Shoshone
territory may not have been properly served through the proceedings
pursued by the Temoak Band. Rather, the State argues that US Court of
Claims properly concluded that the Temoak Band was the appropriate
representative of the entire Western Shoshone and that the allegations
of fraud and collusion levied by the Danns and other petitioners against
the Temoak Band were unfounded. The State notes in particular that the
US Court of Claims viewed the dispute by the Danns and other petitioners
raised in their application to intervene as a dispute “over the proper
strategy to follow in this litigation.” The State observes in this
regard that the US Court of Claims also held that during the title phase
of the proceeding before the Indian Claims Commission there had been a
judicial evaluation of the pertinent evidence pertaining to the issue of
extinguishment of Western Shoshone title, whereby the Indian Claims
Commission made its own determination that the Western Shoshone lands
were held by separate Shoshone entities and that Indian title to the
area was extinguished by encroachment. The US Court of Claims considered
in particular that it was proper for the parties to agree to stipulate
that the Nevada lands be valued as of July 1, 1872 rather than having a
further “burdensome” trial of the dates of disposals of each
Based upon these findings by the US Court of Claims, the State
argues that the Commission erred in finding that the Temoak band did not
properly serve the interests of the Western Shoshone, but rather that
the US courts fully examined this question and properly concluded that
the Temoak Band was the proper representative of the Western Shoshone
and that they had fully litigated their claim.
Another factual error that the United States alleges on the part
of the Commission is the finding that the Danns were not fully apprised
of the litigation strategy that had been employed by the organized
entity of the Western Shoshone group. The State points in this regard to
a finding by the US Court of Claims that the Danns were for a very long
time quite aware of the position with respect to the Nevada land taken
before the Indian Claims Commission by the Temoak Band and its counsel.
The State also points to findings in the same US Court of Claims
decision that the attorney for the Temoak Band reported that Western
Shoshone General Council meetings occurred in 1947, three years before
the ICC action was filed, in 1959, three years before the ICC issued its
extinguishment finding, and in 1965, five years before the ICC issued
its decision awarding $26,154,600 to the Western Shoshone, and therefore
that the Commission erred in finding that there was no evidence on the
record that appropriate consultations were held within the Western
Shoshone at the time that certain significant determinations were made.
Further, the State disputes the Commission’s finding that the
US courts did not take the measures necessary to address the substance
of the Danns’ request for intervention but dismissed them based upon
the expediency of the ICC proceedings. The State relies in this regard
upon the US Court of Claims’ denial of the intervention based upon the
“unjustified tardiness of the request for intervention”, which
occurred 23 years after the litigation was initiated. The State
therefore contends that in light of the Court of Claims’ determination
that no adequate excuse was offered for the long delay, and the fact
that any other litigant in US federal courts would be subject to
equivalent procedural requirements concerning timeliness, neither the
United States Courts procedural ruling nor the preclusive effect of that
Congress has assigned to the judgment of the Indian Claims Commission
offends due process. The State therefore maintains that the processes
employed in the Western Shoshone Indian Claims Commission litigation did
provide due process guarantees required by the US Constitution and
reflected in the American Declaration, and indeed afforded them an even
greater opportunity to press their claims than would be available to a
non-Indian seeking compensation for the taking of their land, as the
Commission in part recognized.
In its response to the Commissions’ report, the United States
also contended that the processes established under the Indian Claims
Act of 1946 did not violate contemporary norms of international law. The
State first argues that the Commission lacked jurisdiction over events
that resulted solely from the passage of the Indian Claims Commission
Act, since that statute only extended jurisdiction to the Indian Claims
Commission for claims arising from the taking of aboriginal lands prior
to August 13, 1946, while the United States did not ratify the OAS
Charter until after the Indian Claims Commission Act was signed into law
on August 13, 1946.
The State further complains that the evaluation of the processes
established under the 1946 Indian Claims Commission Act in light of
contemporary international norms is an impermissible inter-temporal
application of law, according to which the State claims that “it is
not permissible to import into the legal evaluation of a previously
existing situation, or of an old treaty, doctrines of modern law that
did not exist and were not accepted at the time, and only resulted from
the subsequent development or evolution of international law.”
In the State’s
view, the Commission has violated the principle of inter-temporal law
because the Indian Claims Proceedings concerning the Western Shoshone
were completed in 1977 and the Indian Claims Commission itself was
dissolved on September 30, 1978.
The State’s second objection to the Commission’s legal
approach challenges the Commission’s conclusion that aspects of
Article XVIII of the OAS draft Declaration on the Rights of Indigenous
Peoples reflect general international legal principles developing out of
and applicable inside and outside of the inter-American system and could
therefore be relied upon in interpreting and applying the provisions of
the American Declaration in the context of indigenous peoples. In
support of its position that Article XVIII of the draft declaration does
not reflect general international legal principles, the State cites the
1999 advice of the Inter-American Juridical Committee that “[i]nternational
law does not recognize the indigenous person’s right of ownership and
use of lands as defined in this article,”
and objects that the Commission makes no effort to reconcile
its position with that of the Inter-American Juridical Committee.
The State also relies upon its own previously-expressed view, and
that of other OAS member states, that draft Article XVIII does not
reflect general international legal principles.
therefore rejects what it characterizes as the application of
substantive norms that may or may not emerge in a non-binding document
that has not yet been agreed to by member states of the OAS to processes
established by the United States in 1946. The State adds that it is not
relevant to analyze whether the United States violated general norms of
international law since the Commission is not an international tribunal,
and further objects that treaties cited by the Commission, including the
International Covenant on Civil and Political Rights and the Convention
on the Elimination of Racial Discrimination, are not binding upon the
United States to the disputed situation since they were ratified long
after the litigation in question was completed.
The Commission has the following brief observations in respect of
the State’s objections to the conclusions and recommendations in the
Commission’s preliminary merits report in this matter. Beginning with
the State’s final objection relating to the legal status of the
American Declaration, the State claims that the Commission erred in
finding that the United States has violated provisions of the American
Declaration because the Commission’s competence, as defined through
the 1967 amendment of the OAS Charter and the 1979 Statute of the
Inter-American Commission approved by OAS Resolution No. 447, October
1979, “does not turn a non-binding document such as the American
Declaration into a treaty that can be considered to be legally binding
upon the United States.”
The State’s observations fail to consider, however, the
well-established and long-standing jurisprudence and practice of the
inter-American system according to which the American Declaration is
recognized as constituting a source of legal obligation for OAS members
states, including in particular those states that are not parties to the
American Convention on Human Rights.
These obligations are considered to flow from the human
rights obligations of member states under the OAS Charter,
which member states have agreed are contained in and defined
by the American Declaration,
as well as from the customary legal status of the rights
protected under many of the Declaration’s core provisions.
As a source of legal obligation, therefore, it is
appropriate for the Commission to consider and, where substantiated,
find violations of that instrument attributable to a member state of the
OAS, including the United States.
The Commission also observes that many of the State’s
objections relate to the extent to which and manner in which the
Commission evaluated issues, facts and evidence that, according to the
State, had already been the subject of consideration and determination
by the domestic courts. What the State must recognize in this
connection, however, is that the Commission has an independent
obligation to evaluate the facts and circumstances of a complaint as
elucidated by the parties in light of the principles and standards under
the American Declaration. This includes such matters as the adequacy of
the procedures through which the petitioners’ property interests in
the Western Shoshone ancestral land were purported to be determined.
While proceedings or determinations at the domestic level on
similar issues can be considered by the Commission as part of the
circumstances of a complaint, they are not determinative of the
Commission’s own evaluation of the facts and issues in a petition
before it. This is
particularly significant in cases such as the present, where neither the
courts not the state itself regarded the matters raised in the case as
human rights issues, but rather as questions regarding land title and
land use. The Commission hastens to add in this connection that,
contrary to what the State appears to contend in its response, the
domestic courts did not reach consistent or clear decisions on certain
central aspects of the petitioners’ complaints relating to the Western
Shoshone ancestral land, including particularly the question of whether
the alleged extinguishment of indigenous title in the land had ever been
litigated before domestic authorities as well as whether the Danns’
due process rights were properly respected in the domestic process.
therefore not only appropriate, but crucial, for the Commission to reach
conclusions on these matters, in light of the significant implications
of this aspect of the circumstances of the complaint upon the State’s
obligations under Articles II, XVIII and XXIII of the American
Declaration in connection with indigenous property interests.
Specifically with regard to the adequacy of the Danns’
participation in the process by which title to the Western Shoshone
ancestral lands was purported to be determined, the Commission considers
it important to emphasize, as it noted in its decision on the merits,
that the collective interests of indigenous peoples in their ancestral
lands is not to be asserted to the exclusion of the participation of
individual members in the process. To the contrary, the Commission has
found that any determination of the extent to which indigenous peoples
may maintain interests in the lands to which they have traditionally
held title and have occupied and used must be based upon a process of
fully informed and mutual consent on the part of the indigenous
community as a whole. And as the Commission concluded on the
circumstances of this case, the process by which the property interests
of the Western Shoshone were determined proved defective in this
respect. That only proof of fraud or collusion could impugn the Temoak
Band’s presumed representation of the entire Western Shoshone people,
and that Western Shoshone General Council meetings occurred on only
three occasions during the 18 year period between 1947 and 1965, fails
to discharge the State’s obligation to demonstrate that the outcome of
the ICC process resulted from the fully informed and mutual consent of
the Western Shoshone people as a whole.
166. The State’s objections to the Commission’s
competence, relating both to the fourth instance formula and its
jurisdiction ratione temporis concerning the 1946 Indian Claims Commission Act,
were not raised by the State before or in response to the Commission’s
admissibility report, in which the Commission concluded that it had
competence to consider the Petitioners’ complaints,
and the Petitioners have had no notice of or opportunity to
respond to these new allegations. Consequently, it is not open to the
State to raise these objections at this stage of the process. In any
event, the Commission considers that the fourth instance formula has no
application in this case. According to the fourth instance formula, the
Commission in principle will not review the judgments issued by the
domestic courts acting within their competence and with due judicial
guarantees. The fourth instance formula does not, however, preclude the
Commission from considering a case where the Petitioner’s allegations
entail a possible violation of any of the rights set forth in
instruments of the inter-American human rights system.
In the present case, the Petitioners have alleged, and the
Commission in fact found, discrete violations of the principles and
standards under the American Declaration of the Rights and Duties of Man
based upon its evaluation of the facts and evidence as presented by the
parties in the proceeding before it, and therefore the fourth instance
formula does not apply. Moreover, the notion that the Commission is
precluded from addressing an issue merely because the domestic courts of
a member state may have addressed the same matter is plainly
inconsistent with the exhaustion of domestic remedies requirement and
must be rejected on this ground as well. Concerning the fact that the
Indian Claims Commission Act was promulgated in 1946, it is well
established that a state remains responsible for any violations of a
human rights instrument that pre-dated its ratification or accession to
the instrument, to the extent that those violations continue to have
effects or are not manifested until after the date of ratification.
In the present case, the facts as determined by the
Commission clearly indicate that the Indian Claims Commission Act
applied to and had effects upon the Petitioners well after the United
States’ ratification of the OAS Charter in 1951, and indeed continue
to do so, and consequently the State properly remains responsible for
the effects of the application of that legislation upon the petitioners
to the extent they are inconsistent with the petitioners’ rights under
the American Declaration.
As for the alleged impermissible inter-temporal application of
law, the State’s submissions in this regard rely upon the mistaken
premise that the Commission is addressing a “previously existing
situation” in evaluating the Danns’ complaint.
While it may be the case that the ICC process itself took place
more than 30 years ago, the Petitioners’ complaints concerning
indigenous title to the property, including alleged improprieties in the
ICC process, remained the subject of controversy and continued to effect
the Petitioners’ interests at the time their petition was lodged and
continue to do so. Moreover, the American Declaration, as an embodiment
of existing and evolving human rights obligations of member states under
the OAS Charter, is not to be interpreted and applied as the law that
existed at the time of the Declaration’s adoption but rather in light
of ongoing developments in the rights protected under those instruments.
Consequently, it is appropriate to evaluate the Petitioners’
complaints in light of developments in the corpus of international human
rights law more broadly since the American Declaration was first
To the extent that the Danns remain the victims of an
on-going violation of their rights under Articles II and XXIII of the
Declaration, then, the State is obliged to resolve the situation in
light of its contemporary obligations under international human rights
law and not those applicable at the time when the ICC process took
place, to the extent that the law may have evolved.
The State’s criticisms of the Commission’s reference to the
draft Inter-American Declaration on the Rights of Indigenous Peoples and
of contemporary international human rights standards to the Danns’
situation, like its objections to the Commission’s jurisdiction, are
untimely and not properly the subject of argument at this stage of the
process, particularly since the basis of these objections were clearly
in issue during the processing of the complaint before the Commission.
As the Commission observed in its preliminary merits report, however,
the provisions of the draft Indigenous Declaration are properly
considered in interpreting and applying the provisions of the American
Declaration in the context of indigenous peoples to the extent that the
basic principles reflected in provisions of the draft Declaration,
including aspects of Article XVIII, reflect general international legal
principles developing out of and applicable inside and outside of the
Based upon the State’s response, the Commission must conclude
that no measures have been taken to comply with the Commission’s
recommendations. On this basis, and having considered the State's
observations, the Commission has decided to ratify its conclusions and
reiterate its recommendations, as set forth below.
170. The Commission, based upon the foregoing considerations of fact and law, and in light of the response of the State to Report 113/01, hereby ratifies the following conclusions.
The Commission wishes to emphasize that it is not for this body
in the circumstances of the present case to determine whether and to
what extent the Danns may properly claim a subsisting right to property
in the Western Shoshone ancestral lands. This issue involves complex
issues of law and fact that are more appropriately left to the State for
determination through those legal processes it may consider suitable for
that purpose. These
processes must, however, conform with the norms and principles under the
American Declaration applicable to the determination of indigenous
property rights as elucidated in this report.
This requires in particular that the Danns be afforded resort to
the courts for the protection of their property rights, in conditions of
equality and in a manner that considers both the collective and
individual nature of the property rights that the Danns may claim in the
Western Shoshone ancestral lands. The
process must also allow for the Danns’ full and informed participation
in the determination of their claims to property rights in the Western
Shoshone ancestral lands.
Based upon the foregoing analysis, the Commission hereby
concludes that the State has failed to ensure the Danns’ right to
property under conditions of equality contrary to Articles II, XVIII and
XXIII of the American Declaration in connection with their claims to
property rights in the Western Shoshone ancestral lands.
In accordance with the analysis and conclusions in the present
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES THE FOLLOWING
RECOMMENDATIONS TO THE UNITED STATES:
1. Provide Mary and Carrie Dann with an effective remedy, which includes adopting the legislative or other measures necessary to ensure respect for the Danns’ right to property in accordance with Articles II, XVIII and XXIII of the American Declaration in connection with their claims to property rights in the Western Shoshone ancestral lands.
2. Review its laws, procedures and practices to ensure that the property rights of indigenous persons are determined in accordance with the rights established in the American Declaration, including Articles II, XVIII and XXIII of the Declaration.
By communication dated October 30, 2002, the Commission
transmitted this report, adopted as Report Nº 53/02 pursuant to Article
45(1) of the Commission’s Rules of Procedure, to the State and to the
Petitioners in accordance with Rule 45(2) of the Commission’s Rules
and requested information within 30 days as to measures adopted by the
State to implement the Commission’s recommendations.
In a note dated November 27, 2002 and received by the Commission
on the same date, the State responded to the Commission’s October 30,
2002 request for information. In
its communication, the State reiterated the arguments contained in its
response to the Commission’s preliminary merits report in this matter,
namely that the United States rejected the Commission’s findings in
their entirety because: (i) the Danns’ contentions regarding alleged
lack of due process in the Indian Claims Commission proceedings were
fully and fairly litigated in the United States courts and should not be
relitigated before the Commission; (ii) the Commission lacks
jurisdiction to evaluate processes established under the 1946 Indian
Claims Commission Act since the Act predates U.S. ratification of the
OAS Charter; and (iii) the Commission erred in interpreting the
principles of the American Declaration in light of Article XVIII of the
OAS draft declaration on indigenous rights.
In its response, the United States also reiterated its position
that the Danns’ claim “is, fundamentally, not a human rights claim,
but an attempt by two individual Indians to reopen the question of
collective Western Shoshone tribal property rights to land - a question
that has been litigated to finality in the U.S. courts.” Based upon
these submissions, the United States stated that it “respectfully
declines to take any further actions to comply with the Commission’s
Also by communication dated November 27, 2002 and received by the
Commission on that date, the Petitioners provided a response to the
Commission’s October 30, 2002 request for information. In their
response, the Petitioners asserted that the United States had failed to
comply with the Commission’s recommendations. They referred in this
regard to United States’ communications to the Commission and to the
public in which the State has explicitly rejected the Commission’s
findings. These communications include the testimony of Neal McCaleb, US
Assistant Secretary for Indian Affairs, at an August 2, 2002 hearing of
the US Senate Indian Affairs Committee in which Mr. McCaleb is alleged
to have stated that the Commission’s preliminary report was “in
error” and should not be considered relevant to that Committee’s
consideration of the Western Shoshone Claims Distribution Act.
The Petitioners also claim that representatives of the United
States have responded to repeated overtures by counsel for the
Petitioners to engage in discussions to resolve the issues in the case
by reiterating that the United States does not agree with the Commission’s
conclusions and that it is not bound to uphold the human rights
principles outlined in the American Declaration of the Rights and Duties
179. Further, the Petitioners contend that the United States has, since the Commission’s preliminary report was issued, taken actions that further infringe on the human rights of the Danns that are the subject of the Commission’s conclusions and recommendations. These actions are said to include the seizure and confiscation on September 22, 2002 by the US Bureau of Land Management and 40 armed federal agents of approximately 225 head of cattle from the Danns’ ancestral land, which were subsequently auctioned off to the highest bidder several days later. These events took place despite an October 2, 2002 request by the Commission for the United States to comply with the Commission’s June 28, 1999 precautionary measures by returning the said livestock to the Danns and refraining from impounding any additional livestock belonging to the Danns until the procedure before the Commission was complete, including implementation of any final recommendations that the Commission might adopt in the matter. The Petitioners also refer to further actions taken by the US Congress to enact the Western Shoshone Claims Distribution Act, which would authorize a per capita distribution of the funds awarded by the Indian Claims Commission as payment for Western Shoshone ancestral lands, notwithstanding the findings in the Commission’s report.
Finally, the Petitioners assert that it is not too late for the
United States to take remedial congressional action or other measures to
implement both of the recommendations contained in the Commission’s
report. In particular, they state that although the Western Shoshone
Claims Distribution Act passed the Senate on November 7, 2002, the bill
did not become law because the House of Representatives adjourned
without taking any action on the legislation. Although Senators
supporting the bill have publicly pledged to reintroduce it after the
new congress convenes in January, the Petitioners and other Western
Shoshone have proposed that Congress enact legislation mandating
negotiations between the Western Shoshone and the United States to
identify and protect Western Shoshone lands sufficient to ensure their
economic and cultural prosperity, and have suggested that Congress
convene hearings to review the Indian Claims Commission proceedings and
other US laws, procedures and practices that may not comply with
international human rights protections.
181. In light of the information received from the parties,
including the Petitioners’ indication that domestic legislative and
other mechanisms remain available for the State to give effect to the
Commission’s recommendations, the Commission in conformity with
Article 45(3) of its Rules of Procedure decides to ratify the
conclusions and reiterate the recommendations in this Report, to make
this Report public, and to include it in its Annual Report to the
General Assembly of the Organization of American States. The Commission,
according to the norms contained in the instruments which govern its
mandate, will continue evaluating the measures adopted by the United
States with respect to the above recommendations until they have been
complied with by the United States.
Done on the 27th day of the month of December, 2002. (Signed): Juan E. Méndez, President; Marta Altolaguirre, First Vicepresident; José Zalaquett, Second Vicepresident; Julio Prado Vallejo, Clare K. Roberts and Susana Villarán, Commissioners.
Mary and Carrie Dann v. United States, Case 11.140, Report Nº 99/99,
Annual Report of the IACHR 1999, p. 286.
Shoshone Tribe v.
US, 11 I.C.C. 387 (1962). See
also US v. Dann, 706 F.2d 919 (1983).
Shoshone Tribe v.
US, 11 I.C.C. 387 (1962).
Shoshone Tribe v.
US, 11 I.C.C. at 413-14, 416; Temoak Band v. US, 593 F.2d at 996.
Legal Defense & Education Ass’n v. United States, 531 F.2d 495
(Ct. Cl. 1976), cert. denied, 429 U.S. 885 (1976). See also US v. Dann, 706 F.2d 919 (1983) at 922-923.
Temoak Band v.
US, 593 F.2d at 996-999 (Ct. Cl.).
U.S. v. Dann
(Dann I), 572 F.2d at 23.
U.S. v. Dann, 572
F.2d 222 at 226 (9th Cir. 1978).
US v. Dann (Dann
II), 706 F.2d at 923.
US v. Dann, 706
F.2d 919 (9th Cir. 1983).
U.S. v. Dann, 470
U.S. v. Dann, 873
F.2d 1189, 1199 (9th Cir. 1989).
IACHR, The Human Rights Situation of the Indigenous People in the
Americas, OEA/Ser.L/V/II.108, Doc. 62 (October 20, 2000), pp. 21-25.
IACHR, Yanomami Case, Report 12/85, Annual Report of the IACHR
1984-85, para. 8.
e.g. Yanomami Case, supra;
IACHR, Report on the Situation of Human Rights of a Segment of the
Nicaraguan Population of Miskito Origin, OEA/Ser.L/V/II.62, Doc. 10
rev. 3 (29 November 1983); IACHR, Second and Third Reports on the
Human Rights Situation in Colombia 1993, 1999; Proposed American
Declaration on the Rights of Indigenous Peoples, approved by the
IACHR, 95th regular session, February 26, 1997, Annual
Report of the IACHR 1997, Chapter II.
I/A Court H.R.,
Case of Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of
August 31, 2001 (Merits).
e.g. ILO Convention (Nº 169) concerning Indigenous and Tribal
Peoples in Independent Countries.
e.g. UNHRC, General Comment 23, ICCPR Article 27, U.N. Doc.
HRI/GEN/1/Rev.1 at 38 (1994), para. 7.
e.g. CERD General Recommendation XXIII(51) concerning Indigenous
Peoples (August 18, 1997).
For a compilation
of domestic legislation governing the rights of indigenous peoples in
numerous OAS member states, see IACHR, Authorities and Precedents in
International and Domestic Law for the Proposed American Declaration
on the Rights of Indigenous Peoples, OEA/Ser.L/V/II.110 Doc. 22 (1
IACHR, The Human Rights Situation of Indigenous Peoples in the
Americas 2000, OEA/Ser.L/V/II/108, Doc. 62 (October 20, 2000), p. 125;
Yanomami Case, supra.
(recognizing the collective rights of the Yanomami people in Brazil to
the delimitation and demarcation of Yanomami territory and
recommending that the Brazilian government take steps to demarcate
those lands together with measures of a collective nature relating to
the education, health and social integration of the Yanomami people). See
also ILO Convention (Nº 169), supra,
Art. 13 (providing that “[i]n applying the provisions of this Part
of the Convention governments shall respect the special importance for
the cultures and spiritual values of the peoples concerned of their
relationship with the lands or territories, or both as applicable,
which they occupy or otherwise use, and in particular the collective
aspects of this relationship.”).
IACHR, Report on
the Situation of Human Rights in Ecuador, OAS.Ser.L/V/II.96.Doc.10 rev
1, April 24, 1997, p. 115.
Awas Tingni Case, supra,
Declaration of the Rights of Indigenous Peoples, supra, prepared pursuant to GA Resolution 1022/89, November 18,
1989, para. 13. For a historical overview of the development of the
Draft Declaration, see IACHR, The Human Rights Situation of the
Indigenous People in the Americas 2000, supra,
e.g. Draft Inter-American
Indigenous Declaration, supra, Art. XVIII(1); IACHR, Report on the Situation of Human Rights
in Ecuador (1977) (observing that for indigenous peoples the “continued
utilization of traditional systems for the control and use of
territory are essential to their survival, as well as to their
individual and collective well-being.” In this connection, Article
27 of the ICCPR, an instrument to which the United States is a party,
protects the right of persons belonging to “ethnic, linguistic or
religious minorities…in conformity with other members of their
group, to enjoy their own culture, to profess and practice their own
religion [and] to use their own language.”
In its General Comment 23 on Article 27 of the ICCPR the UN
Human Rights Committee observed that “culture manifests itself in
many forms, including a particular way of life associated with the use
of land resources, especially in the case of indigenous people.”
According to the Committee, securing the cultural rights of an
indigenous people may include such traditional activities as fishing
or hunting and the right to live in reserves protected by law.
ICCPR, General Comments 23, supra,
para. 7. See similarly UNHRC, Ominayak v. Canada, March 26, 1990
(finding Canada responsible for violations of Article 27 of the ICCPR,
based upon historical inequities suffered by the Lubicon Lake Band in
northern Alberta and the expropriation by the provisional government
of the territory of the Lubicon Lake Band for the benefit of private
UN Committee on the Elimination of All Forms of Racism has similarly
recognized that the “land rights of indigenous peoples are unique
and encompass a tradition and cultural identification of the
indigenous peoples with their lands that has been generally
recognized,” CERD decision 2(54) on Australia, para. 4. In this
decision, the Committee criticized amendments to Australia’s Native
Title Act as incompatible with Australia’s obligations under the
Race Convention, particularly Articles 2 and 5, due in part to the
inclusion of provisions that extinguish or impair the exercise of
indigenous title rights and interests in order to create legal
certainty for governments and third parties at the expense of
indigenous title. Article 5(c) of the Race Convention in particular
calls upon State Parties to “recognize and protect the rights of
indigenous peoples to own, develop, control and use their common
lands, territories and resources.”
Inter-American Indigenous Declaration, supra, Art. XVIII(2). See similarly CERD General Recommendation
XXIII (51) concerning Indigenous Peoples (August 18, 1997) (calling
upon states parties to the Race Convention to “recognize and protect
the rights of indigenous peoples to own, develop, control and use
their communal lands, territories and resources.”); ILO Convention
(Nº 169), supra, Art. 14(1) (providing that "[t]he rights of ownership
and possession of the peoples concerned over the lands which they
traditionally occupy shall be recognized. In addition, measures shall
be taken in appropriate cases to safeguard the right of the peoples
concerned to use lands not exclusively occupied by them, but to which
they have traditionally had access for their subsistence and
traditional activities. Particular attention shall be paid to the
situation of nomadic peoples and shifting cultivators in this respect.
“); Art. 15(1) (stating that “[t]he rights of the peoples
concerned to the natural resources pertaining to their lands shall be
specially safeguarded. These rights include the right of these peoples
to participate in the use, management and conservation of these
Inter-American Indigenous Declaration, supra, Art. XVIII(3)(i), (ii). See similarly ICCPR, General Comments
23, supra, para. 7
(recognizing that the enjoyment of cultural rights, including those
associated with the use of land resources, “may require positive
legal measures to ensure the effective participation of members of
minority communities in decisions which affect them emphasizing the
importance.”; CERD General Recommendation XXIII (51), supra
(calling upon states to return indigenous
lands and territories traditionally owned or otherwise
inhabited or used by them where they have been deprived of those lands
and territories without their free and informed consent); ILO
Convention (Nº 169), supra,
Art. 15(2) (providing that
cases in which the State retains the ownership of mineral or
subsurface 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 programs for the exploration or exploitation of such
resources pertaining to their lands. The peoples concerned shall
wherever possible participate in the benefits of such activities, and
shall receive fair compensation for any damages which they may sustain
as a result of such activities.
this connection, the Inter-American Court of Human Rights has recently
pronounced upon the obligation of states under Article 21 (the right
to property) of the American Convention to provide effective
procedures for delimiting, demarcating and recognizing title to
indigenous communal lands. See Awas Tingni Case, supra,
American Convention on Human Rights, Art. 23(2) (providing that “[n]o
one shall be deprived of his property except upon payment of just
compensation, for reasons of public utility or social interest, and in
the cases and according to the forms established by law.”).
Inter-American Court of Human Rights has similarly employed an
evolutive approach to the interpretation of international human rights
instruments in interpreting the right to property under Article 21 of
the American Convention on Human Rights to encompass the rights of
members of indigenous communities in the framework of communal
property. Awas Tingni Case, supra, paras. 148, 149.
United States v.
Dann, 706 F. 2d 919 (9th Cir., 1983), rev’d on other
grounds 470 U.S. 39 (1985)) (concluding in respect of the ICC
extinguishment finding that “the extinguishment was not denied by
the government, and the fact of the taking was never actually
litigated. Because an average ‘taking date’ was stipulated, the
Commission did not determine the facts of taking for any individual
parcel of the vast aboriginal holdings of the Western Shoshone,” and
upholding the District Court’s decision in respect of the lands
claimed by the Danns that “aboriginal title had not been
extinguished as a matter of law by application of the public land
laws, by creation of the Duck Valley Reservation, or by inclusion of
the disputed lands in a grazing district and issuance of a grazing
permit pursuant to the Taylor Grazing Act.” ).
Canada Report, supra,
para. 96, citing “Draft Declaration and Accompanying Report”;
IACHR, Report Nº 51/96,
Annual Report of the IACHR 1996, p. 550, paras. 177-178.
Ferrer-Mazorra et al. v. United States, Case 9903, Annual Report of
the IACHR 2000, para. 238.
See e.g. U.S.
Const., Fifth Amendment (providing in part that “'nor shall private
property be taken for public use, without just compensation.”); City
of Cincinnati v. Vester, 281 U.S. 439 (1930).
Article 43(2) of
the Commission’s Rules of Procedure provides: “If [the Commission]
establishes one or more violations, it shall prepare a preliminary
report with the proposals and
recommendations it deems pertinent and shall transmit it to the State
in question. In so doing, it shall set a deadline by
which the State in question must report on the measures adopted to
comply with the recommendations. The State shall not be authorized
to publish the report until the Commission adopts a decision in this
respect.” [emphasis added]
Response dated December 17, 2001, p. 13, citing
Sir Gerald Fitzmaurice, The Law
and Procedure of the International Court of Justice, XXX Brit,
Y. B. Int’l L. 5 (1953); H. Thirlway, The
Law and Procedure of the International Court of Justice, 1960-1989,
LX Brit. Y.B. Int’l L. 1, 128-9 (1989); The South West Africa
Cases, I.C.J. Rep. 4, 23 (1966).
response dated December 17, 2001, p. 14, citing Observations and
Recommendations of the Inter-American Juridical Committee on the “proposed
American Declaration on the Rights of Indigenous Populations,” OAS
Doc. RECIDIN/INF.1/99 (January 29, 1999).
response dated December 17, 2001, p. 14, citing Observations and
Recommendations of the United States, Dec. 16, 1997, OAS Doc.
RECIDIN/INF.7/99; Observations and Recommendations by Guatemala on the
Proposed American Declaration on the Rights of Indigenous Populations,
OAS Doc. RECIDIN/INF.8/99; Observations and Recommendations by Canada
on the Proposed American Declaration on the Rights of Indigenous
Populations, OAS Doc. RECIDIN/INF.5/99; Observations and
Recommendations by Mexico on the Proposed American Declaration on the
Rights of Indigenous Populations, OAS Doc. RECIDIN/INF.9/99.
response dated December 17, 2001. p. 15.
I/A Court H.R., Advisory Opinion OC-10/89 "Interpretation of the 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; James
Terry Roach and Jay Pinkerton v. United States, Case 9647, Res.
3/87, 22 September 1987, Annual Report of the IACHR 1986-87, paras.
46-49. For examples of decisions in which the Commission has found
violations of the American Declaration in respect of OAS member states
that are not parties to the American Convention on Human Rights, see
Case 1742 (Cuba), May 1975, Annual Report of the IACHR 1975; Maclean
v. Suriname, Case 10.116, Resolution Nº 18/89, Annual Report of
the IACHR 1988-1989; Michael Edwards et al. v. The Bahamas, Case 12.067, Report Nº
48/01, Annual Report of the IACHR 2000; Garza
v. United States, Case 12.243, Report Nº 52/01, Annual Report of
the IACHR 2000.
Charter of the
Organization of American States, Arts. 3, 16, 51, 112, 150.
e.g. OAS General Assembly Resolution 314, AG/RES. 314 (VII-O/77),
June 22, 1977 (charging the Inter-American Commission with the
preparation of a study to “set forth their obligations to carry out
the commitments assumed in the American Declaration of the Rights and
Duties of Man”); OAS
General Assembly Resolution 371, AG/RES (VIII-O/78), July 1, 1978
(reaffirming its commitment to “promoting the observance of the
American Declaration of the Rights and Duties of Man.”); OAS General
Assembly Resolution 370, AG/RES. 370 (VIII-O/78), July 1, 1978
(referring to the “international commitments” of OAS member states
to respect the rights recognized in the American Declaration of the
Rights and Duties of Man).
Report Nº 19/02, Lares-Reyes et
al. (United States), February 27, 2002, para. 46.
The US Court of
Appeals for the Ninth Circuit, for example, indicated in three
judgments that the question of extinguishment of title had never been
litigated before the Indian Claims Commission, and the US Supreme
Court never ultimately decided the question, having relied instead
upon the payment of the ICC’s award into a trust fund as having
discharged all claims and demands involving the Western Shoshone land
claim. US v. Dann, 572 F.2d 222, 226 (9th Cir. 1978); US v.
Dann, 706 F.2d 919, 922 (9th Cir. 1983); US v. Dann, 470
U.S. 39 (1985); US v. Dann, 873 F2d 1189, 1199 (9th Cir.
1989). By disposing of the Danns’ objections to the US trespass
action based upon the payment of monies in trust, the US Supreme Court
likewise did not address the issue as to whether the Danns’ due
process protections were properly respected throughout the Indian
Report Nº 99/99, Mary and Carrie Dann (United States), Annual Report
of the IACHR 1999.
I/A Comm. H.R., Santiago Marzioni, Report Nº 39/96, Case 11.673
(Argentina), October 15, 1996, Annual
Report 1996, p. 76, paras. 48-52. See
also I/A Comm. H.R.,
Clifton Wright, Case 9260 (Jamaica), September 16, 1988, Annual
Report 1987-88, p. 154.
According to the
jurisprudence of the Inter-American Court and Commission and that of
other international human rights tribunals, human rights instruments
may properly be applied in respect of acts that arose prior to the
ratification of those instruments but which are continuing in nature
and whose effects persist after the instruments’ entry into force. See e.g. I/A Court
H.R., Blake Case, Preliminary Objections, Judgment of July 2, 1996,
Series C Nº 27, paras. 33-34 and 46; IACHR, João Canuto de Oliveira
v. Brazil, Report Nº 24/98, Annual Report of the IACHR 1997, paras.
13-18. See similarly Eur.
Court H.R., Papamichalopoulos et al. v. Greece, June 24, 1993, Series
A Nº 260-B, pp. 69-70, 46.
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, July 14, 1989, Inter-Am. Ct.
H.R. (Ser. A)
Nº 10 (1989), para. 37, citing 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
I/A Court H.R., Advisory Opinion OC-16/99, The
Right to Information on Consular Assistance in the Framework of the
Guarantees of Due Process of Law, October 1, 1999, Ser. A Nº 16,
para. 114, citing, inter alia,
the decisions of the European Court of Human Rights in Tyrer v. United
Kingdom, Judgment of April 25, 1978, Ser. A
Nº 26, pp. 15-16, para. 31; Marckx v. Belgium, Judgment of June 13,
1979, Ser. A Nº 31, p. 19, para. 41, and Loizidou,
Preliminary Objections, supra,
See supra, para. 129.
See similarly Awas Tingni Case, supra,
separate concurring opinion of Judge Sergio García Ramírez, para. 9.
dated July 26, 2002, the Commission provided the Petitioners with a
copy of its preliminary merits Report Nº 113/01 and the State’s
response to that report. This
action was taken because the Commission had received information that
officials with the US Bureau of Land Management in Nevada had
published the United States’ December 17, 2001 response to the
Commission’s confidential merits report containing direct quotations
from the Commission’s report, and because the Indian Affairs
Committee of the US Senate had scheduled an August 2, 2002 hearing on
the Western Shoshone Claims Distribution Act notwithstanding
deficiencies identified by the Commission in its report concerning the
Indian Claims Commission process.