REPORT Nº 75/02 *

CASE 11.140

MARY AND CARRIE DANN

UNITED STATES

December 27, 2002

 

 

I.        SUMMARY

 

1.       The petition in the present case was lodged with the Inter-American Commission on Human Rights (the "Commission”) against the United States of America (the "State" or the "United States") on April 2, 1993 by Messrs. Steven M. Tullberg and Robert T. Coulter of the Indian Law Resource Center (the “Petitioners”).  The petition was presented on behalf of Mary and Carrie Dann, sisters and citizens of the United States (the “Dann sisters” or the “Danns”).

 

2.       The petition and subsequent observations allege that Marie and Carrie Dann are members of the Western Shoshone indigenous people who live on a ranch in the rural community of Crescent Valley, Nevada.  According to the petition, their land and the land of the indigenous band of which they are members, the Dann band, is part of the ancestral territory of the Western Shoshone people and the Danns and other members of the Western Shoshone are in current possession and actual use of these lands.  The Petitioners also contend that the State has interfered with the Danns’ use and occupation of their ancestral lands by purporting to have appropriated the lands as federal property through an unfair procedure before the Indian Claims Commission (“ICC”), by physically removing and threatening to remove the Danns’ livestock from the lands, and by permitting or acquiescing in gold prospecting activities within Western Shoshone traditional territory. Based upon these circumstances, the Petitioners allege that the State is responsible for violations of Articles II, III, VI, XIV, XVIII and XXIII of the American Declaration of the Rights and Duties of Man (the “American Declaration”).

 

3.       The State denies that it has violated the Danns’ rights under the American Declaration.  The State argues that the matters raised by the Petitioners do not involve human rights violations but rather involve lengthy litigation of land title and land use questions that have been and are still subject to careful consideration by all three branches of the United States government.  In this regard, the State contends that the Danns have title, ownership and possession of the lands constituting their ranch in Nevada which had been patented to their father, that there has never been an effort by the State to remove the Danns from their ranch, and that as long as the Danns comply with the requirements of the Bureau of Land Management they are eligible for a permit to graze their livestock on public lands.  As to the traditional Western Shoshone territory more generally, the State submits that the Danns and other Western Shoshone lost any interest in the lands in question in 1872 as a result of encroachment by non-Native Americans, and that this determination was properly made through fair proceedings before the ICC, a quasi-judicial body established by the United States for the very purpose of determining Indian land claims issues.  Finally, the State argues that the ICC awarded the Western Shoshone $26,145,189.89 in compensation for the loss of their lands based upon 1872 land values, which has been held in trust by the Secretary of the Interior until a distribution plan has been agreed upon with the Western Shoshone.

 

4.       In Report N° 99/99 adopted by the Commission on September 27, 1999 during its 104^th regular period of sessions, the Commission decided to admit the claims in the Petitioners’ petition and to proceed with consideration of the merits of the complaint.

 

5.       In the present report, having examined the evidence and arguments presented on behalf of the parties to the proceedings, the Commission concluded that the State has failed to ensure the Danns’ right to property under conditions of equality contrary to Articles II, XVIII and XXIII of the American Declaration in connection with their claims to property rights in the Western Shoshone ancestral lands.

 

II.       PROCEEDINGS BEFORE THE COMMISSION

 

A.      Observations of the Parties

 

6.       Upon receipt of the Petitioners’ petition, on April 7, 1993 the Commission decided to open a case pursuant to Article 34 of its prior Regulations, [1] forwarded the pertinent parts of the petition to the United States by letter of the same date and requested that the State provided the Commission with information that it deemed pertinent within 90 days of receipt.

 

7.       By communication to the Commission dated August 27, 1993 the State requested an extension of time until September 10, 1993 within which to submit its reply to the petition.  The Commission, in a note dated September 7, 1993 granted the State’s request.

 

8.       On September 9, 1993 the United States transmitted to the Commission its observations on the petition.  On September 22, 1993 the Commission forwarded the pertinent parts of the State’s observations to the Petitioners with a request for a response within 45 days.  By note to the Commission dated November 2, 1993 the Petitioners requested an extension of time until December 14, 1993 within which to respond to the State’s observations.  The Commission granted the Petitioners’ request on November 3, 1993.

 

9.       By notes dated December 2, 1993 and January 3, 1994 the Petitioners forwarded to the Commission their response to the State’s September 9, 1993 observations.  The Commission transmitted the pertinent parts of the Petitioners’ response to the State on January 6, 1994 with a request for information within 30 days.  In a communication dated February 4, 1994 the State requested an extension of time to March 3, 1994 to reply to the Petitioners’ response and on March 3, 1994 the State delivered to the Commission additional observations on the petition and requested a further extension of time to April 4, 1994 to complete its review of the matter and provide an appropriate response.  By communication dated April 5, 1994, the State requested a further extension of time to April 18, 1994 within which to respond to the Petitioners’ response of December 22, 1993 and on April 18, 1994 the State forwarded to the Commission additional observations on the Petitioners’ response.  The Commission forwarded the pertinent parts of the State’s communications to the Petitioners.  On May 4, 1994 the Petitioners requested an extension of time within which to respond to the State’s observations, based upon ongoing efforts by the Danns and the United States to resolve the case.

 

10.     On October 10, 1996 the Commission convened a hearing on the claims raised in the petition.  Representatives of the Petitioners and the State attended the hearing and made submissions as to the admissibility and merits of the Danns’ claims.  In addition, by communication dated February 28, 1997 the United States provided written responses to various issues raised during the course of the hearing before the Commission. These written responses were subsequently transmitted to the Petitioners by letter dated March 10, 1997.

 

11.     In Report N° 99/99 approved by the Commission on September 27, 1999 during its 104^th regular period of sessions, the Commission decided to admit the claims in the Petitioners’ petition and to proceed with consideration of the merits of the complaint.

 

12.     In a communication dated March 23, 2000 and received by the Commission on the same date, the Petitioners delivered to the Commission a document entitled “Petitioners’ Brief on the Merits of the Case.” The Commission transmitted the pertinent parts of this communication to the State by note dated March 27, 2000 with a response requested within 30 days.

 

13.     By note dated May 9, 2000, the State requested an extension of time of 45 days within which to file a response to the Petitioners’ supplemental Brief, and in a subsequent communication dated May 18, 2000 the Commission granted the State’s request.  As of the date of this report, the Commission has not received any further observations from the State on the Petitioners’ petition.

 

B.       Precautionary Measures

 

14.     In a letter dated August 16, 1993, the Petitioners informed the Commission that the State had published a notice on August 3, 1993 which stated that the United States Bureau of Land Management (“BLM”) intended to impound all livestock on a portion of the Western Shoshone ancestral lands, described as “the South Buckhorn, Geyser, Scott’s Gulch, Thomas Creek, and Safford County Allotments in the Elko District and portions of the Argenta and Carico Lake allotments in the Battle Mountain District.” In their letter, the Petitioners contended that the Danns had grazed their livestock on the land for generations and that the United States probably intended to sell the impounded livestock belonging to the Danns and the Western Shoshone National Council.  In these circumstances, the Petitioners argued that this would be devastating to the Danns and would further compound the wrongs that had already been committed against them by the State.  On this basis, the Petitioners requested that the Commission issue precautionary measures pursuant to Article 29(2) of the Commission’s prior Regulations.

 

15.     By communication dated September 7, 1993 the Commission informed the United States of the communication by the Petitioners on August 16, 1993.  In its communication, the Commission requested that the State stay its intention to impound all livestock belonging to the Danns until the case had been resolved.

 

16.     Subsequently, by note dated February 27, 1998 the Petitioners again requested that the Commission issue precautionary measures pursuant to Article 29(2) of the Commission’s previous Regulations to avoid immediate, grave and irreparable harm to the Danns.  The Petitioners stated that the BLM had again issued a series of notices and orders on February 19, 1998 which declared that the Danns and other Western Shoshone people were trespassing on lands, ordered them to remove all livestock and property from the lands, and threatened them with fines, imprisonment, impoundment or cattle and confiscation of property if they failed to comply with the orders.  On this basis, and because this aggressive government action was alleged to enhance the threat to the economic and cultural survival of the Danns and other Western Shoshone, the Petitioners contended that there was an urgent need for the Commission to issue precautionary measures.

 

17.     In a communication to the State dated March 6, 1998 the Commission reiterated its previous request that the State stay any action to impound or confiscate the Danns’ property pending the Commission’s investigation of the alleged facts. 

 

18.     The Petitioners subsequently informed the Commission by letter dated July 16, 1998 that despite the Commission’s reiteration of its request to the State, the BLM had continued with its “trespass” action against the Danns and other members of the Western Shoshone nation.  The Petitioners indicated in particular that on April 2, 1998 the BLM issued additional orders and decisions against the Danns that directed the Danns to remove their livestock from part of the land in issue and to pay a fine of $288,191.78 for alleged unauthorized grazing.  The Petitioners therefore reiterated their request that the Commission issue precautionary measures against the State’s actions.

 

19.     In a note dated August 5, 1998, the State responded to the Commission’s March 6, 1998 communication by stating, inter alia, that “out of respect for the Commission, the State Department has initiated an interagency dialogue with the relevant Federal agencies to consider further the Commission’s request.  In the meantime, however, the United States will not hold in abeyance the normal operation of its law.”

 

20.     By communication dated June 3, 1999 the Petitioners informed the Commission that despite the Commission’s previous requests for the State to stay its actions against the Danns, Federal officials continued to pursue enforcement measures against the Danns and other Western Shoshone.  The Petitioners also stated that in an effort to defend themselves against these measures, the Danns appealed the BLM’s decisions against them under the relevant domestic administrative procedure, and that on December 18, 1998 the BLM ruled against them.  In addition, the Petitioners indicated that the Danns met with BLM officials on January 28, 1999 where the Danns were invited to submit a proposed interim measures agreement.  When the Danns subsequently submitted a proposal on March 28, 1999 the proposal is said to have been rejected through the counter-offer by officials of terms that essentially restated the BLM’s previous position, namely that the Western Shoshone no longer have rights to their ancestral lands.

 

21.     In their June 3, 1999 communication, the Petitioners further indicated that only two days after the Danns received the BLM’s response to their proposal, the BLM issued a “Notice of Intent to Impound” in respect of “any unauthorized livestock grazing upon public land” and that the Notice provided that any impoundment may occur without further notice after five days of delivery of the Notice within a twelve month period.  Based upon these events, the Petitioners requested that the Commission issue precautionary measures to prevent the implementation of the State’s intention to impound the Danns’ property.

 

22.     The Commission, in a note dated June 28, 1999 forwarded the pertinent parts of the Petitioners’ June 3, 1999 submission to the State and requested pursuant to Article 29(2) of the Commission’s prior Regulations that the State take precautionary measures to stay its intention to impound the Danns’ livestock until the Commission had an opportunity to fully investigate the claims raised in the petition.

 

          23.     By communication dated August 9, 2000 and received by the Commission on August 10, 2000 the Petitioners submitted to the Commission a “Request for Additional Precautionary Measures”.  According to the petitioners, two bills had recently been introduced into the U.S. Congress, the Nevada Public Land Management Act of 1999 (the "Nevada Public Land Bill") and the Western Shoshone Claims Distribution Act (the "Distribution Bill").  According to the Petitioners, the Nevada Public Land Bill would authorize the U.S. Secretary of the Interior to dispose of "public" land in the State of Nevada by selling it in open bidding to mining, ranching and other private interests.  The Distribution Bill would authorize the U.S. Secretary of the Interior to make a per capita distribution of the funds awarded by the ICC for the extinguishment of their rights in the Western Shoshone ancestral lands.  The Petitioners claimed that this legislation, if enacted, would authorize the disposal to private interests of land that included the land used and occupied by the Danns, and would authorize the distribution of the funds awarded by the ICC but never accepted by the Western Shoshone people.  The Petitioners also suggested that there was a possibility that both of these bills could be passed during the legislative session of Congress then in progress.  Further, the Petitioners claimed that the proposed legislation would cause irreparable harm to the Danns' ability to survive culturally, physically, and economically and to their ability to pursue the very claim set forth in their submissions to the Commission.

 

24.     In a note dated August 18, 2000 the Commission transmitted the pertinent parts of the Petitioners’ August 9, 2000 communication to the State and, without prejudice to the possible adoption of precautionary measures, requested that the State take whatever measures it deemed necessary so that the Commission could receive within 20 days information that the State considered pertinent to the Petitioners’ request.  By communication dated October 19, 2000 to the State, the Commission reiterated its August 18, 2000 request for information in respect of the Petitioners’ request for additional precautionary measures, and sought a response within 20 days.

 

25.     The State, in a note dated December 4, 2000 provided the Commission with a response to its communication of October 19, 2000 in which the State indicated that the legislation referred to by the Petitioners had been introduced in Congress but that no significant action had been taken and none was expected during the session of Congress then in progress.  The State also contended that, even if enacted, neither of the bills would cause irreparable harm to the Dann sisters and therefore that their request for precautionary measures had no basis in law or fact.  By communication dated December 11, 2000, the Commission transmitted the pertinent parts of the State’s response to the Petitioners with a response requested within 30 days.  Subsequently, in a letter dated January 11, 2001, the Petitioners provided the Commission with observations respecting the State’s December 4, 2000 response in which they asserted that the State had failed to offer any meaningful response to their request for precautionary measures and reiterated their request for the Commission to call upon the State to suspend any action on the Nevada Public Land Bill and the Distribution Bill.

 

C.      Friendly Settlement

 

26.     In its admissibility Report N° 99/99 of September 27, 1999 in this matter, the Commission placed itself at the disposal of the parties pursuant to Article 45(1) of the Commission’s prior Regulations for the purpose of reaching a friendly settlement of the matter.

 

27.     By letter dated October 25, 1999 to the Commission, the Petitioners reiterated their willingness to enter into a process of friendly settlement with the United States under the Commission’s auspices.  The Petitioners also indicated, however, that in the absence of agreement by the State they would request that the Commission proceed to evaluate and issue a decision on the merits of the petition.  In a note dated November 1, 1999 the Commission transmitted the Petitioners’ October 25, 1999 communication to the State with a response requested within 30 days.

 

28.     In a letter dated June 15, 2000 and received by the Commission on June 16, 2000 the Petitioners requested a hearing at the next session of the Commission, or alternatively an informal conference with the United States and a representative of the Commission to explore any possibility of settlement.  By notes dated September 19, 2000 the Commission informed the parties that the Commission had decided to grant the Petitioners’ request for an informal conference to explore the possibility of a settlement in the matter and that the conference would be held on October 6, 2000 at the Commission’s headquarters in Washington.

 

29.     By communication dated October 3, 2000 the Petitioners confirmed their attendance at the October 6, 2000 settlement meeting in Washington and delivered a “Summary of Information Relevant to Petitioners’ Position and Proposal” for the meeting. Also by letter dated October 3, 2000 the State informed the Commission that its preparations for the meeting, which included extensive consultations with other agencies in the US government, was not yet complete and requested a postponement of the meeting. The Commission decided to proceed with the October 6, 2000 meeting, which was presided over Commissioner Peter Laurie and which was attended by Ms. Carrie Dann and her representatives Messrs. James Anaya, James Stroud and Steven Tullberg.  As of the date of this report, the Commission had not received any further solicitations from the parties to facilitate a friendly settlement of the matter.

 

D.      Amici Curiae

 

30.     On December 9, 1997 attorney Thomas E. Luebben Esq. requested permission to intervene in support of the Danns’ proceeding before the Commission on behalf of the Yomba Shoshone Tribe, another tribe of the Western Shoshone nation. Further, by letter dated March 17, 1998 the Petitioners requested that the Commission permit the Tomba Shoshone Tribe to intervene in support of the Danns’ case as a co-petitioner.  On September 22, 1998 the Yomba Shoshone Tribe forwarded a brief to the Commission which they claim supports the Danns’ position, and by communication dated September 27, 1999 the representatives of the Yomba tribe clarified that they wished their involvement in the proceedings to be considered in the nature of an amicus curiae.

 

31.     By letters dated September 24 and 27, 1999 the Ely Shoshone Tribe similarly requested permission to intervene in the present proceedings as amicus curiae, and by communication dated September 24, 1999 the Petitioners informed the Commission on behalf of the Danns that they consented to the intervention of the Yomba and Ely Tribes as amici curiae.

 

32.     In addition, by communication dated May 12, 2000 and received by the Commission on May 22, 2000 the Western Shoshone National Council delivered to the Commission an “Amicus Brief” supporting the Danns’ position in the case, and subsequently confirmed by letter dated July 31, 2000 that they sought to intervene in the proceeding only as amicus curiae but claimed to preserve the right to submit in the future an appropriate petition regarding alleged human rights violations specific to it and its citizens.

 

33.     Similarly, in a letter dated July 19, 2001 Michael H. Blackeye, Chairman of the Duckworth Shoshone Tribe, requested leave of the Commission to intervene as amicus curaie in the Danns’ proceeding and adopted the points set forth and the arguments made in the brief of the Yomba Shoshone Tribe submitted to the Commission in September 1999.

 

34.     After having reviewed the requests for intervention set forth above and the related amici briefs, the Commission considered that they essentially reiterated arguments already presented by the Petitioners and accordingly did not require further processing in these proceedings.

 

III.      POSITIONS OF THE PARTIES

 

A.       Position of the Petitioners

 

35.     In their initial petition and subsequent observations, the Petitioners have contended that the State is responsible for violations of the rights of Mary and Carrie Dann under Articles II (right to equality before the law), III (right to religious freedom and worship), VI (right to a family and to protection thereof), XIV (right to work and to fair remuneration), XVIII (right to a fair trial) and XXIII (right to property) of the American Declaration in respect of their use and occupancy of the Western Shoshone ancestral lands.

 

36.     With respect to the factual circumstances of their claims, the Petitioners state that the Danns are members of the Western Shoshone aboriginal people who reside on a ranch in the rural community of Crescent Valley, Nevada.  According to the petition, the Danns together with other members of their extended family in the Dann band occupy, hunt, graze and otherwise use lands (the “Dann lands”) that are within the larger ancestral territory of the Western Shoshone people.  This ancestral territory is alleged to encompass not only the ranch upon which the Danns live but rangelands and other property principally in the state of Nevada (the “Western Shoshone ancestral lands”).

 

37.     In this connection, the Petitioners indicate that relations between the Western Shoshone and the United States government continue to be regulated by the 1863 Treaty of Ruby Valley which was ratified by the United States in 1866 and proclaimed on October 21, 1869, [2] and which constituted a peace treaty between the United States and the Western Shoshone people.

 

38.     The Petitioners contend that the Danns have used and occupied the Western Shoshone ancestral lands since time immemorial and that the family ranch is the Danns’ sole means of support, where all of their needs are met by the sale of their livestock, goods and produce to neighboring Western Shoshone and to non-Indians.

 

39.     The Petitioners also claim that from 1863 to the present the United States has steadily expropriated parts of the Western Shoshone ancestral lands to the benefit of government and non-Indians, and that without sufficient money, education and legal assistance the Western Shoshone have traditionally been unable to mount effective opposition to the government’s encroachment and erosion of their land base.  With respect to the Dann lands in particular, the Petitioners claim that the use by the Danns and other Western Shoshone of these lands was undisturbed and unchallenged until the early 1970’s when the United States government through the Department of the Interior began taking or threatening actions to impede the Danns and other Western Shoshone from using and occupying lands that are within their ancestral territory.  In this manner, the Petitioners say that the Danns are being wrongfully dispossessed of their ancestral homelands including portions upon which they depend for their living.

 

40.     These State actions have included the initiation of trespass actions against the Danns demanding that the Danns remove their livestock from disputed lands and pay significant fines, and the issuance of “Notices of Intent to Impound” in respect of “unauthorized livestock grazing upon public land.” They have also included gold prospecting within the traditional Western Shoshone ancestral lands which is said to have been permitted or acquiesced in by State officials.  As part of this prospecting, mining companies are said to have been digging the earth, pumping scarce water, and are poised to take ownership or control of the area by operation of U.S. mining legislation or land exchanges with the U.S. government.  The Petitioners claim that this mining activity has already affected the Danns’ use of their ancestral lands and has contaminated the ground water in and around Crescent Valley, and that the activity threatens even greater damage as it extends closer to the Danns’ household.

 

41.     Further the Petitioners state that the Danns and other members of the Western Shoshone have been impeded from their traditional subsistence hunting by officials of the state of Nevada, who are said to have relied upon the United States’ denial of Western Shoshone title to ancestral land to refuse to accommodate traditional Western Shoshone hunting practices.  Rather, State officials have sought out and arrested members of the Western Shoshone people including members of the Dann band who do not comply with the state hunting laws and regulations.

 

42.     As examples of these activities, during the October 10, 1996 hearing before the Commission the Petitioners claimed that the United States had impounded and sold the Danns’ livestock on two occasions, 161 horses in March 1992 and 269 horses in November 1992.  The Petitioners also claimed that a mining company, Oro Nevada Mining Company, was claiming some of the Western Shoshone ancestral lands under a law that permits mining companies to acquire land belonging to the U.S. government.  The company is also said to have issued a formal notice that it would drill test holes in several areas on the Danns’ grazing lands and that all of the range land used by the Danns was subject to actual gold mining claims.

 

43.     According to the Petitioners, in taking these actions the State has relied upon a 1966 ruling by the ICC, a statutorily-based administrative tribunal established by the State under the Indian Claims Commission Act to determine aboriginal land claims.  In this ruling, which was subsequently upheld by the U.S. Court of Claims, the ICC is said to have adopted an uncontested stipulation that Western Shoshone title had been extinguished some time previously through by acts of “gradual encroachment” by non-Indians.  It is on this basis that the Petitioners claim that the State denies the continuing existence of Western Shoshone legal rights to ancestral land.  As outlined below, however, the Petitioners contest the propriety and validity of these proceedings, on the basis that the issue of whether the Western Shoshone rights were truly extinguished was not actually litigated by the ICC or by the US judiciary.  They also claim that Western Shoshone individuals and groups were not permitted to intervene in the proceedings to contest the presumed extinguishment of title and that the Western Shoshone people have refused to accept the money awarded by the ICC.

 

1.       Right to Property

 

44.     The Petitioners contend that the State is responsible for violations of the Danns’ right to property under Article XXIII of the Declaration, by reason of the limitation that the State has placed on the Danns’ occupation and use and of the Western Shoshone ancestral lands.  Article XXIII of the Declaration provides as follows:

 

Every 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.

 

45.     In particular, the Petitioners claim that the Danns and other Western Shoshone people have properly laid claim to the Western Shoshone ancestral lands through traditional patterns of use and occupancy of those lands and its natural resources.  The Petitioners refer to this as a “customary land tenure system” and assert that this is a form of property that is recognized as original or Indian title by the law of the United States and other common law jurisdictions, as are “free standing” rights to fish, hunt, gather, or otherwise use resources or have access to lands. [3]

 

46.     In this context, and independent of the common law of domestic jurisdictions, the Petitioners contend that the right to property under Article XXIII of the Declaration, when considered in light of the fundamental principle of non-discrimination, should be interpreted to encompass those forms of landholding and resource use that derive from the traditional land use and occupancy patterns of an indigenous people such as the Danns.  In support of this contention the Petitioners cite the International Labor Organization Convention (Nº 169) concerning Indigenous and Tribal Peoples, [4] Article 14 of which provides as follows:

 

1.         The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised.  In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities.  Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.

 

2.         Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession.

 

3.         Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned.

 

47.     The Petitioners similarly rely upon Article XVIII of the proposed American Declaration on the Rights of Indigenous People [5] and Article 26 of the Draft United Nations Declaration on the Rights of Indigenous Peoples, [6] both of which affirm that aboriginal peoples have the right to full recognition of their laws, traditions and customs, land tenure systems and institutions for the development and management of resources, and the right to effective measures by states to prevent any interference with, alienation of, or encroachment upon these rights.

 

48.     In the circumstances of Mary and Carrie Dann, the Petitioners claim that they have established facts demonstrating the existence of the Western Shoshone property rights on the basis of traditional use and occupancy of land and that the Danns are the beneficiaries of these rights as members of the Western Shoshone people.  The Petitioners also contend that they have established facts indicating that the State has interfered with those rights, including through actions of federal and state government agencies that have prevented the Danns and other Western Shoshone people from using and occupying Western Shoshone ancestral lands according to traditional patterns.  On this basis, the Petitioners submit that the State has violated the Danns’ right to property under Article XXIII of the American Declaration as that right is properly interpreted and applied in relation to aboriginal and other customary land tenure systems.

 

49.     The Petitioners also point out in this respect that the State has not disputed the history of traditional land tenure that is alleged to give rise to Western Shoshone aboriginal title or that its agents and those of the state of Nevada are engaged in acts that impede the ability of the Danns to continue to occupy and use the lands in question, but rather assert that Western Shoshone property rights were extinguished as a result of statutorily-based claims proceedings.  The Petitioners dispute the propriety of this assertion, however, on the ground that the Western Shoshone property rights have not been extinguished even as a matter U.S. law and, moreover, challenge the validity of this purported extinguishment itself as a violation of the Danns’ fundamental human rights.

 

50.     The Petitioners claim in particular that U.S. courts have never ruled conclusively on the extinguishment of Western Shoshone property rights but rather have disposed of the Danns domestic claims based upon those courts’ interpretations of the Indian Claims Commission Act in a manner which barred the Danns from asserting Western Shoshone title in domestic judicial proceedings.  According to the Petitioners this conclusion may be drawn from the judicial history of the Danns’ domestic judicial proceedings.

 

51.     In this respect, the Petitioners point out that the U.S. Court of Appeals for the Ninth Circuit, which was the highest U.S. court to examine and rule on substantive Western Shoshone land rights, actually concluded that Western Shoshone land rights “had not been extinguished as a matter of law by application of the public lands act, by creation of the Duck Valley Reservation, or by inclusion of the disputed land in a grazing district and issuance of a grazing permit pursuant to the Taylor Grazing Act.” While the U.S. Supreme Court subsequently reversed that court’s finding, it did so not on the basis of a finding of actual extinguishment of Western Shoshone title, but rather on a statutory interpretation of the Indian Claims Commission Act that barred the assertion of Western Shoshone title because of the Indian Claims Commission monetary award for the presumed extinguishment of Western Shoshone title in the collateral claims proceedings. [7]

 

52.     In respect of the State’s contention that the Danns failed to pursue “individual aboriginal title” to the lands in question before domestic courts, the Petitioners explain that they have not pursued such proceedings because doing so would have separated them from the treaty-based Western Shoshone nation claim, the position that would preserve the land and culture of the Western Shoshone people as a whole.  At base, they argue that to pursue such a claim would undermine the aboriginal rights and treaty-recognized basis of title that forms the essential historical, cultural and political foundation for the Western Shoshone and other indigenous nations and tribes. [8]

 

2.       Right to Equality under the Law

 

53.     The Petitioners also challenge the State’s interference with the Danns’ occupation and use of the Western Shoshone ancestral lands as discriminatory contrary to Article II of the Declaration, which protects the right to equality before the law. [9]   In particular, the Petitioners assert that the State is obliged to protect the Danns’ aboriginal property rights and to accord those rights the same degree of protection that it provides for the protection of the property rights of non-Indians but has failed to do so.

 

54.     The Petitioners assert several grounds for their claim of discrimination.  They first contend that the theory upon which the ICC determined the extinguishment of Western Shoshone, namely “gradual encroachment” by non-indigenous settlers, miners and others, constitutes a nonconsensual and discriminatory transfer of property rights in land away from indigenous people who continue in possession of their land and in favor of non-indigenous interests.  They claim that this is a “lawless concept that simply rewards trespassers and relieves the United States of its own legal obligation to uphold Indian land rights.” [10]   The Petitioners support their arguments in part with the findings of a seminar of experts convened by the United Nations that identified property transfers of this nature as part of a larger pattern of racial discrimination suffered by indigenous peoples. [11]

 

55.     The Petitioners identify as a further source of discrimination the absence of substantive protections for indigenous property rights, including those rights derived from Western Shoshone aboriginal title, that are equal to the protections accorded to non-indigenous forms of property.  In particular, they indicate that under U.S. law, including the Fifth Amendment to the U.S. Constitution and other federal and state laws, the taking of property by the government ordinarily requires a valid public purpose and the entitlement of the owners to notice, a judicial hearing and fair compensation based upon the fair market value of the property taken. [12]   The Petitioners argue in contrast that the Western Shoshone ancestral lands were taken in the absence of any of these prerequisites, a circumstance that the Petitioners claim is consistent with the discriminatory standards applied by the U.S. to indigenous peoples’ property in general as reflected in judicial decisions such as Tee-Hit-Ton Indians v. United States. [13]   In the Danns’ circumstances, the Petitioners claim to have stated facts that indicate that no public purpose has been established for the purported extinguishment of the Western Shoshone land title and that the 1979 monetary award that resulted from the ICC claims proceedings was calculated on the basis of a valuation of the land as of July 1, 1872, the presumed extinguishment date, and that no interest was calculated into the award. [14]   On this basis, the Petitioners contend that the Western Shoshone were not provided with just compensation that is otherwise required for the taking of non-indigenous property.

 

56.     Also according to the Petitioners, discriminatory treatment of indigenous property is further indicated by the facts relating to the procedure by which the United States determined extinguishment of and compensation for Western Shoshone ancestral lands, which the Petitioners claim has failed to protect or support indigenous land rights to the same extent as other property rights.  In the circumstances of the Danns and other members of the Western Shoshone, the Petitioners contend that during the ICC proceedings by which the State claims the Western Shoshone peoples’ rights were extinguished, only one small group was actually represented before the ICC and subsequently before the U.S. Court of Claims.  They also claim that other Western Shoshone, including the Danns, were not permitted to intervene in the ICC proceedings. Moreover, those Western Shoshone claimants who were represented before the ICC were prevented from dismissing their lawyer when they decided that he was not acting in their best interest.

 

57.     The Petitioners contrast this situation to the requirements of general U.S. property law, according to which property rights ordinarily can only be extinguished or condemned through “careful, rigorous proceedings in which all interested parties are entitled to be heard through counsel of their own choosing.” [15] The Petitioners therefore complain that the U.S. government is now attempting to hold the Danns and other Western Shoshone people to the terms negotiated by a lawyer in a proceeding in which they were denied the right to participate, in violation of the international standard of equality under the law.

 

58.     In support of their contention that this treatment constitutes discrimination for the purposes of Article II of the Declaration, the Petitioners cite decisions and proclamations of domestic and international bodies.  These include a decision of the Australian High Court in which a majority of that Court concluded that a legislative measure targeting native title for legal extinguishment to the exclusion of non-indigenous property rights was racially discriminatory and therefore invalid. [16] The Petitioners also cite statements by the UN Committee on the Elimination of Racial Discrimination urging state parties to the Convention on the Elimination of All Forms of Racial Discrimination to “recognize and protect the rights of indigenous peoples to own, develop, control, and use their communal lands, territories and resources.” [17]   They point to one decision in particular under the Committee’s early warning and urgent actions procedures, expressing concern over amendments to Australia’s Native Title Act, which the Committee regarded as having created legal certainty for governments and third parties at the expense of indigenous title and as having failed to provide for effective participation by indigenous communities in the formulation of the legislative amendments. [18] In respect of the latter decision, the Petitioners argue that the lack of procedural and substantive protections for the Danns makes for an “equally compelling case of invidious discrimination that requires immediate attention.”  

continued...

 

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