Guest Column By Thomas E. Luebben
Copyright © 2002 Luebben
If Nevada's Senator Reid has his way, the final curtain may soon fall in the long, sad saga of Western Shoshone land rights. In defiance of long-standing Congressional policy, Reid's S. 958 will distribute every cent of the Western Shoshone Judgment Fund on a per capita basis. The distribution will not benefit Western Shoshone tribal governments in any way. It will disinherit all future generations. And, it will cast a final pall of shame on the Indian Claims Commission, the United States Court of Federal Claims and the Article III constitutional courts that adjudicated the Western Shoshone claims and the notorious case of U.S. v. Dann.
The Indian Claims Commission Act was passed on Aug. 13, 1946 amidst pious pronouncements that it would at long last provide a remedy for "ancient wrongs" done to America's indigenous peoples. The Commission had broad jurisdiction to award money judgments for Indian claims, but it could not return land, even when the Indian title was unextinguished. In fact, it was an integral part of then dominant federal policies of termination and assimilation, and it became a giant engine of extinguishment of hundreds of millions of acres of otherwise good Indian title outside existing reservation boundaries. After the body made 274 awards totaling $818,000,000, most without interest from an often fictional nineteenth century "date of taking," Congress terminated the Claims Commission in 1978 and transferred its remaining caseload to the Court of Claims, where some dockets still remain unfinished. While the awards totaled nearly $1 billion, that sum was a small fraction of the actual value at the time of the awards of the lost Indian assets.
The U.S. Supreme Court decided in U. S. v. Santa Fe Pacific Railroad in 1941 that aboriginal Indian title can be extinguished in only two ways -- by act of Congress or by voluntary cession. Nonetheless, the Claims court (now the United States Court of Federal Claims) and the attorneys who represented Indian plaintiffs and the U.S. before those judicial forums proceeded to destroy the priceless doctrine of aboriginal Indian title with stipulated findings of extinguishment based on "events" that were utterly inconsistent with the Constitution and the rule of Santa Fe. The Claims Commission found that "by gradual encroachment of whites, settlers and others ... the [Western Shoshones] were deprived of their lands." Never mind how trespasses and treaty violations by individual whites could possibly have given the Government title, especially since the Shoshones ceded no land in the 1863 Treaty of Ruby Valley. In the Gila River case, the Claims Court actually said that although nothing had happened that could constitute a taking, "in a fit of absentmindedness [by the U.S. trustee], the deed was somehow done." This is not law. It is racism and political expediency cloaked in the false majesty of law.
A major problem with proceedings under the Claims Commission Act was that they didn't provide minimum standards of constitutional due process of law. Claims attorneys, who in the final analysis purported to represent eight individuals responsible to no community or tribal government, were allowed to litigate on behalf of the "Western Shoshone Identifiable Group," an as yet unidentified plaintiff apparently intended to encompass all Western Shoshones and federally recognized Shoshone tribal governments. A nominal tribal plaintiff, the Te-Moak Bands Council, was not allowed to control the case or the attorneys. When the Te-Moak Council fired the claims attorneys, the Interior Department approved an extension of their attorney contract to allow the lawyers time to take the case to final judgment and obtain their contingent fee, over the objections of their supposed client.
In 1979 the claims attorneys obtained 15 cents an acre (the 1872 value), without interest, for 16 million acres of otherwise unextinguished Shoshone Indian title land worth billions today. The lawyers claimed victory. The Shoshones' government trustee somehow got the land. A great many Shoshones are understandably convinced that they actually lost. The courts have treated this disastrous outcome as binding on all Western Shoshone tribal governments and individuals, virtually none of whom were parties or had legally sufficient notice of the proceedings. In the absence of a land settlement, Western Shoshone tribal governments have unanimously opposed a naked money distribution for nearly 25 years, and some have turned to the United Nations and the Inter-American Commission on Human Rights for relief.
Followed from beginning to end, through over 15 reported court decisions, the Western Shoshone land litigation literally does not make sense, except in terms of the political imperative that Indians must lose their lands. It can't be reconciled with Anglo-American property law. Lewis Carroll wrote this script. It is an Alice in Wonderland World where racism is enshrined as law. I advise curious lawyers and law students that the only thing to understand about this litigation is that even the best legal scholars can't understand it.
The Western Shoshone judgment fund has been held by the Interior Department since its award in 1979. No Western Shoshone has ever received a penny. Nonetheless, the U.S. Supreme Court held in 1985 that when the U.S. handed a check from its left hand, as judgment debtor, to its right hand, as judgment creditor and trustee, the Western Shoshones were paid. The 9th Circuit Court of Appeals subsequently held that this "payment" precludes the Shoshones from asserting title, even as a defense by Shoshones in actual possession since time immemorial to trespass claims brought by the U.S., as in U.S. v. Dann.
The Claims Court twice advised Shoshones who attempted to prevent the loss of their land by intervening or seeking a stay that their remedy was in Congress, not the courts. While Senator Reid's money distribution "remedy" will make the fictional payment a reality, it will do nothing to provide a land base and a future for the Western Shoshones. It will, however, allow the Government to announce that the matter has been resolved.
Rather than providing an example of "that distributive justice which is the glory of a nation" (President Washington's Secretary of War, Henry Knox, describing the federal government's solicitude for Indian land rights), the proceedings of the Claims Commission and the Claims Court in many Indian land cases, most notably Western Shoshone Identifiable Group v. U.S., illustrate a profound glitch in the American character. We claim to be the finest example in human history of a political system that provides justice and equality for all. However, almost without exception, when the government and the courts have been faced with the prospect of acknowledging original Indian ownership of substantial tracts of land, and the equality of Indian title under the Constitution, they have blanched and shamelessly resorted to the exercise of raw political and judicial power in the absence of any principled and reasoned basis in law for the Indians' loss of their homelands. The white man continues to covet Indian land, and racist and politically expedient "doctrines" of law continue to poison American jurisprudence.
Thomas E. Luebben is Director of Litigation for the Native Lands Institute and a partner in the Albuquerque, N. Mex. Law firm of Luebben, Johnson & Young. Mr. Luebben can be reached by e-mail email@example.com.