Can We Really Call It A Victory?

A funny thing happened on the way to the latest government scam. It seems that when the Western Shoshone were asked to contribute their ideas on how to distribute the money the government wanted to “give” through the Indian Claims Commission judgment, they threw a monkey wrench into the whole operation.

Carrie Dann went to the United Nations about the Treaty of Ruby Valley of 1863 and got a response that the United States should, “freeze”, “desist” and “stop” all actions against the Western Shoshone. Invariably, since the formation of the Indian Claims Commission there continue to be Indians who are apprehensive of white men bearing gifts. They would warn in the tribal meetings, “If you take the money, you are selling the land”. The BIA representative present would respond, “If you take the money, you are not selling the land”. Here you have a government authority, who is supposedly our trustee, who is supposedly looking after our interests, telling the people, “Take the money, you are not selling the land”.

If they were not selling the land by taking the money, the tribe thought, then the government should not have a problem having the clause inserted into the Western Shoshone Claims Distribution Act:
“Receipt of a share of the funds under this subsection shall not alter any treaty rights or the final decisions of the Federal courts regarding those rights pursuant to the 1863 Treaty of Ruby Valley.”​

Suggesting this clause for insertion into Senate bill 958 apparently got Senator Harry Reid’s attention as he immediately asked, “Would you read that again, please?” After a few more questions from Senator Reid and Chairman Inouye, BIA assistant secretary McCaleb said: “Just one moment, Mr. Chairman. If I may, Mr. Chairman, this is Daisy West who is the resident expert on this subject.”

If you really want to know if the Indians are selling their land by taking the Indian Claims Commission judgment money, the direction the Senate hearings on this bill took from this point should be of interest to you. As you read between the lines keep in mind that #1, the Doctrine of Discovery says that the white man owns everything and #2 , when the Indian Claims Commission Act was passed in 1946, it said, “…payment of any claim…shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy”.

Ms. West: My name is Daisy West and I work in the Bureau of Indian Affairs Branch of Tribal Government Services. From the research that I have done on this, the Treaty of Ruby Valley is a treaty of peace and friendship, not a treaty that recognized aboriginal title or gave recognized title to land in Western Shoshone country. This is an issue that was addressed in a similar case in the 1930’s with the Treaty of Box Elder which is one of the five Shoshone treaties that was negotiated by Commissioner Doughty back in 1863. That case was originally brought under a special jurisdiction act and, in that case, the Supreme Court held that those treaties were not treaties of recognition of land. Since they were not when they went to the Indian Claims Commission, they could only determine aboriginal title. So the title was never given under the Treaty of Ruby Valley.

Chairman Inouye: Do you agree with the Secretary’s statement that the receipt of a share of the funds under this subsection shall not alter any treaty rights or the final decisions of the Federal courts regarding those rights pursuant to the 1863 Treaty of Ruby Valley?

Ms. West: I agree.

Chairman Inouye: Then you also agree with the statement of the Secretary that article V of the Treaty of Ruby Valley is not in effect?

Ms. West: Right now I’m not sure what article V says. I don’t have a copy of the treaty with me.

Chairman Inouye: It is on land.

Ms. West: And it describes the boundaries. My understanding is that according to the case that was in Northwestern Shoshone, that describes the land that was claimed by the Shoshone, so I’m sure that since it wasn’t a treaty of recognition, nothing would change that, that is what they claimed.

Chairman Inouye: Is it your position that the Treaty of Ruby Valley is still in force?

Ms. West: I would say that it is still in force.

Chairman Inouye: Why don’t you stay there and bring up the Secretary also.

Mr. McCaleb: I think what I’m trying to convey is that there is an impression that the Treaty of Ruby Valley under Section V retains some legal claim to land rights. The vote that was held seems to indicate it reserves those rights. The point I’m trying to make is our opinion, the opinion of the Department, that no land rights still reside in the treaty as a result of the court decisions.

Chairman Inouye: You speak of the referenda. I presume that the Department of the Interior was involved?

Mr. McCaleb: NO; WE WERE NOT.

Chairman Inouye: You did not supervise the referendum?

Mr. McCaleb: That’s correct.

Chairman Inouye: Were you notified of it?

Ms. West: We were aware of it occurring. We were notified of the date that it would occur.

Chairman Inouye: You were notified after the conclusion of the referendum?

Ms. West: We were notified first of the date it would be held which was June 3 and we were also notified of the results after the election count had been certified.

Chairman Inouye: When you were notified of the referendum, did you take steps to involve yourself?

Ms. West: No; I’m not sure what that means.

Chairman Inouye: To monitor the referendum?

Ms. West: No; no one attended from the Bureau of Indian Affairs [BIA] in their capacity as a Bureau official.

Chairman Inouye: Is that the usual practice?

Ms. West: We considered this an internal Shoshone matter, one they had not requested our assistance for.

Chairman Inouye: You stated that the results of the referenda were certified. Who certified them?

Ms. West: I’m thinking that it was the Western Shoshone Claims Committee.

Chairman Inouye: It’s not certified by the Department?

Ms. West: No.

Chairman Inouye: Mr. Secretary, do you have any views on the findings of the preliminary report of the Inter-American Commission?

Mr. McCaleb: Yes; I do, relative to their observation that there has been a violation of the rights of the Dann family. The position of the United States, as well as the Department, is the Commission’s report is in error for several reasons. No. 1, the Danns’ contentions 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 here. No. 2, the Commission lacks jurisdiction to evaluate the process established under the 1946 Indian Land Claims Commission Act since the act predates the U. S. ratification of the OAS Charter. Three, the Commission erred in interpreting the principles of the American Declaration in light of article 18 of the not yet adopted OAS draft Declaration of Indigenous Rights.

Chairman Inouye: so you find the preliminary report to be in error?

Mr. McCaleb: Correct.

Chairman Inouye: You do not concur with it?

Mr. McCaleb: Yes, sir: that’s correct.
Chairman Inouye: What is the history of negotiations of your department and the Western Shoshone with regard to the settlement of land rights? You have had negotiations?

Mr. McCaleb: Yes; as early as 1980 and several times over the 22 years intervening, including 1984 negotiations in which we actually provided $240,000 to assist in the negotiations, provide staff, and facilitated negotiations on the distribution and again in 1994 when Congress requested the Department of the Interior to reopen negotiations on the distribution. Along this process there have been numerous indications of popular support for the distribution of these funds on a per capita basis, the most recent being the election I made reference to earlier.
Chairman Inouye: But you have not reached a settlement yet?

Mr. McCaleb: there are members of the Western Shoshone Tribe that do not think there should be a distribution of the funds, they feel that additional distribution of the funds will somehow adversely affect their land claims but according to the vote they are in a substantial minority. For your edification, I have the results of that vote if you are interested in it. There were three issues. The first was on the acceptance of the payment and the vote was 647 for, 156 against. On the next issue, the limiting of the distribution to those members of the Western Shoshone Tribe who are a quarter or more blood quantum, 1,601 for, 1,906 against. On the third question, the use of the accounting funds for educational purposes, 1,024 for and 769 against.

Chairman Inouye: Thank you. Do you have any questions?

Senator Reid: I have a couple. Daisy, tell me what your job is at the Bureau?

Ms. West: My title is Tribal Relations Officer and I have several different functions. One is to prepare judgment fund distribution plans. In order to do that, I have to do historical research on the tribes and the claims and work with the tribes in developing the plan or, if necessary, in developing the draft legislation.

Senator Reid: How long have you been with the Bureau?

Ms. West: I’ve been with the Bureau since 1972.

Senator Reid: What is your educational background?

Ms. West: Most of my education in this area has occurred on the job. I graduated from high school and attended a number of classes that were preparing me for a future in accounting.

Senator Reid: Thank you. Mr. Secretary, what I’ve heard you say is that if this money is distributed, whatever claims that exist, valid or invalid, would not be extinguished as a result of these moneys being distributed. Is that right?

Mr. McCaleb: That’s correct.

The important thing to remember is that the Treaty of Ruby Valley is still in force but it is up to you to decide if the Supreme Court decision Johnson v. M’Intosh nullifies it. The government debate is between the Congress and the Interior Department. The Interior Department says go ahead and put the clause in because the Supreme Court rulings in history say the Indians don’t own anything—the white man owns everything. The Supreme Court decision in Johnson v. M’Intosh said as much. It ruled that the government’s title acquired by “discovery” is superior to that of the Indians. But Senator Reid and the Congress know that Johnson v. M’Intosh is white supremacist colonial law. Wrapping our heads around this warped mindset is necessary to understanding just how the system is rigged against the Indians. The government’s legal position is that we own it because we took it and now that we admit that there have been “wrongs” done in the past, we are willing to set up this panel of three cowboys to hear your grievances. Oh, and by the way, they can only recommend monetary settlements to congress. Oh, and the payment will be based on the value of the land at the time of taking. Interest? We will pay only six years interest from the time of taking. Anthropolgist, Nancy Oestreich Lurie, called as an expert witness to certify tribes as being genuine, later remarked, “Even where there is understanding that awards are based on lost lands, there is bitterness because often it is not understood that compensation is based on the appraised value of land at the time it was ceded and not on the wealth the land generated for the white man since then.” When a government’s jurisdiction is based on white supremacist colonial law, it can only be legitimized by passing more racist law. In 1940, the U.S. Congress passed a law called, “Limiting Jurisdiction of the Court of Claims in Indian Cases”. In this way, by the time the Indian Claims Commission Act was passed in 1946 all this twisted thinking was already in place. Twisted laws like the “offsets” clause which said the government could deduct any gratuities expended on the Indians in the past. Monroe E. Price, in his Law and the American Indian, wrote, “…in no other field of law…is a defendant permitted to set off against a valid judgment a gratuity given to the plaintiff. For example, a person defending against a tort claim of rape cannot offset the award by the value of the incidental pleasure his victim enjoyed as a result of the attack. It may be difficult for one to distinguish such a case from that of the United States’ treatment of Indians”. The Indian Claims Commission was devoid of due process of law because the system has been rigged. The result being, as Carrie Dann, waving her treaty, has been saying for the last thirty years, “We have never had a title argument.” Having “title” is having ownership and if the government can’t get it one way it will try another way.

When the Suzie Island in Lake Superior was returned to the Grand Portage Ojibwe People, and they were celebrating on the internet, native attorney, Barbara Bilek commented, “This is very cool! However, can we really call it a victory? Not so much when one realizes that tribes do not own trust land-the federal government does. We only have the right to occupy it. Refer to the Department of Interior, ‘The Indian land Record of Title is the official record of title documents and instruments affecting Indian land that require approval by the Secretary or other federal officials. The Division of Land Titles and Records (DLTR), and its eleven Land Titles and Records Offices (LTRO), are the official Federal offices-of- record for all documents affecting title to Indian lands, and for the determination, maintenance, and certified reporting of land title ownership and encumbrance on Indian trust and restricted lands.”’

If you visit the Interior Department’s Division of Land Titles and Records website you will find that they are very meticulous in their record keeping. The one prominent legal term they use is “chain-of-title”. If you buy a piece of land in the private sector, make sure you do it through a title company. Part of their service is title insurance which is a guarantee that their research gives you a “clear” title to your property. “Chain –of-title” is the history of how that piece of property has changed hands.

When Felix Ike, Willie Johnny and Nancy Stewart made their statements at the hearing of the Committee on Indian Affairs concerning the Western Shoshone Claims Distribution Act, they all mentioned land expansion of their reservations.

Now that the government is about to “give” the Indians of Nevada land, the question that should be asked is are they really “giving” anything or are they in fact taking everything? Perhaps the government’s goal now is to just get the Nevada Indians to sign something they can enter into their “chain-of-title” documents—something that shows the Indians happily recognizing federal ownership. A government that can make a treaty an then turn around and ignore it is the supreme forked-tongue devil. They say one thing but their laws say the opposite (Johnson v. M’Intosh/Doctrine of Discovery). Havard law Professor Austin Wakeman Scott (1886-1981) explained that the purpose of a trust is to, “separate the benefits of ownership from the burdens of ownership.”

Finally, here is one last thing that the Indians of Nevada have to consider before they sign anything that has to do with land. The author of Planet Earth, Jonathan Weiner wrote, “The images from Landsat multispectral Scanners (and new thematic mappers, which record and even broader range of the spectrum) are radioed to earth and assembled by computer which tints them in brilliant, artificial colors to make the various details stand out. More than 1 million Landsat images of earth now stored in a U.S. Geological Survey computer in Sioux Falls South Dakota…Landsat files in the supercomputer at Sioux Falls are the space age equivalent of treasure maps. For anyone canny enough to decipher them, they conceal clues to billions of dollar worth of buried ore. This fact has not escaped the attention of the big oil companies.”

The U.S. Geological Survey is a part of the Department of Interior, our trustee. Did you get a map? No? It is probably as with the Tee-Hit-Ton Indians of Alaska who had their timber sold by the government and clear cut. The Supreme Court ruled against any Indian compensation. In the 1955 majority opinion, Justice Stanley Reed wrote, “…It leaves with Congress, where it belongs, the policy of Indian gratuities for the termination of Indian occupancy of Government-owned land rather than making compensation for its value a rigid constitutional principle.”

(Photo courtesy of the U.S. Geological Survey)The remote sensing mineral map is of Cuprite, Nevada or better known as Goldfield, Nevada.
Steve Melendez
Northern Paiute
President of the American Indian Genocide Museum

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