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Seizing Native Americans' Land Was Rights Violation, Rules International
Commission
Jeffrey Allen, One World US
On the eve of the United Nation's Indigenous People Day on last Friday,
Native American rights organizations expressed hope that a recent ruling
by an international human rights body would strengthen efforts to
secure formal recognition of their claims to ancestral land.
In an unprecedented decision made late last month, the Inter-American
Commission on Human Rights ruled that the United States government had
violated the rights of Western Shoshone elders Mary and Carrie Dann in
its seizure of their property and improper handling of their rights to
tribal land in the state of Nevada.
"The Danns, and by extension the Western Shoshone tribe, and by
extension all Native Americans, do have rights to traditional lands, and
the United States has an affirmative duty to protect those rights," said
Deborah Schaaf, an attorney for the Indian Law Resource Center, which
represented the Danns in the case.
The dispute with the U.S. government began with the gradual
appropriation of Western Shoshone lands by settlers in the second half
of the nineteenth century. In 1951, a small group of Western
Shoshone--without the blessing of the tribe--sought compensation for the
loss of the territory from the Indian Claims Commission, a government
agency set up in 1946. The entire tribe was
subsequently awarded US$26 million in 1979.
However, the tribe, including the Dann sisters, argued that they never
agreed to relinquish their lands and most of them did not endorse the
application to the Indian Claims Commission. Therefore, a treaty signed
by the Western Shoshone and the federal government in 1863 granting the
tribe dominion over the land should still be valid.
"Tribes have not been treated fairly in terms of their right to land
which they acquired by treaty. The treaties were made by sovereign
governments, and unless they have been unmade by sovereign governments,
they are still in effect," said Gerald Reynolds of the First Nations
Development Institute.
The Danns claimed in court that the seizure of their land was illegal,
and that efforts to fine them for grazing horses on the land was a
violation of their fundamental right to property. Additionally, their
rights to a fair trial and equality before the law were denied during
litigation of the case in the U.S. judicial system.
After more than 16 years of domestic court battles, the Indian Law
Resource Center brought the Danns' case before the Inter-American
Commission on Human Rights, an independent organ of the Organization of
American States (OAS), of which the United States is a full member.
Schaaf believes the Commission's report, which recommends that the
government revise its laws to ensure the protection of indigenous
property rights, may have a profound effect on other Native American
tribes who now have standing to claim that their own rights were
violated.
However, Brian Tittemore, the lawyer who handled the case for the
Commission, stressed that the decision may ultimately have no practical
effect because the Commission cannot force the U.S. into compliance and
must rely only on the "shaming" power of its reports.
The U.S. is not off the hook, says Schaaf, pointing out that the
Commission found the nation's government in violation of three articles
of the American Declaration on the Rights and Duties of Man.
"The United States, like all other members of the OAS, is bound to
uphold the principles of human rights outlined in the American
Declaration on the Rights and Duties of Man. It isn't optional. It is
ridiculous, absurd, and simply not true to say that the U.S. is not
bound to uphold the findings of the Commission," said Schaaf.
From Indian Law Resource Center (NDN AIM list)
July 30, 2002
The Case of Mary and Carrie Dann v. The United States
Summary of the conclusions and recommendations of the Inter-American
Commission on Human Rights
In its preliminary report, made public by the Commission on July
29, 2002, the Commission made its findings, conclusions and recommendations
concerning the human rights complaint filed by Mary and Carrie Dann, Western
Shoshone Indians who filed a formal complaint in 1993 charging that the
United States was illegally depriving them and other Western Shoshones of
their lands, primarily in Nevada. The Commission's conclusions and
recommendations are as follows:
1. The Commission concludes that the United States in its treatment of the
Danns and their land rights has violated Articles II (right to equality
before the law), XVIII (right to a fair trial), and XXIII (right to property)
of the American Declaration on the Rights and Duties of Man. Para. 5.
2. The Commission decides in Para. 130 of the Report that there are detailed
international legal principles and norms that apply to indigenous peoples'
rights to land, based on the American Declaration, ILO Convention No. 169,
the draft UN Declaration on the Rights of Indigenous Peoples, the OAS draft
American Declaration on the Rights of Indigenous Peoples, and other sources.
3. The Indian Claims Commission process in the Western Shoshone claim did
not comply with international human rights norms. Para. 139.
4. Any determination of indigenous peoples' interests in land must be based
upon a process of fully informed and mutual consent on the part of the
indigenous community as a whole. Specifically: 1) Members must be fully and
accurately informed, and 2) Members must have an effective opportunity to
participate as individuals and as collectives. Para. 140.
5. The Western Shoshone claim in the Indian Claims Commission was pursued by
one band of Western Shoshones without a mandate (informed consent) from the
others, and this was not adequate to comply with international human rights
norms, that is, the principle that there be informed and mutual consent on
the part of the Western Shoshone community as a whole. Para. 141.
6. Therefore, the Danns' rights (and the rights of other Western Shoshones)
in their lands were not determined in an effective and fair process in
compliance with the norms and principles of international law. Para. 142.
(In other words, the claimed "extinguishment" of the Western Shoshones'
land title as a result of the Indian Claims Commission process was in fact a
violation of international human rights law.)
7. In regard to the United States' assertion of ownership of the land as
against the Danns, the Danns have not been afforded their right to equal
protection of the law under Article II of the American Declaration of the
Rights and Duties of Man. Para. 143. (In other words, the claim of the
United States that it owns title to the Western Shoshone lands used and
occupied by the Danns is a violation of human rights, because it
discriminates against the Danns and other Western Shoshones and deprives them
of rights that others enjoy.)
8. The requirements of the Fifth Amendment to the Constitution (property
shall not be taken by the government except for a public purpose, with due
process of law, and with fair market compensation), which apply generally to
takings of property by the United States, were not extended to the Danns, and
there was no proper justification for this discriminatory treatment. Para.
144.
9. Furthermore, no interest was awarded on the compensation by the Indian
Claims Commission, thus leaving the Western Shoshone uncompensated for the
cost of the alleged taking during the period between the alleged taking and
the award. Para. 144.
10. In regard to their claimed lands and the Western Shoshone claim in the
Indian Claims Commission, the Danns have not been afforded equal treatment
under the law. Para. 145.
11. The United States must make available a fair legal process to determine
the Danns' (and other Western Shoshone) land rights. Para. 146.
12. The United States has failed to ensure the Danns' right to property
under conditions of equality contrary to Articles II, XVIII, and XXIII of the
American Declaration of the Rights and Duties of Man.
Recommendations.
The Commission recommends that 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.
Notes
1. The cover letter dated July 26 from Ariel Dulitzky, In Charge of the
Executive Secretariate of the Commission, states that the Commission will, in
due course, issue its final report taking into account the response of the
United States and including the Commission's final conclusions and
recommendations.
2. The Commission does not attempt to determine what land rights the Danns
actually or legally have. That determination must be left to the United
States in the first instance pursuant to a process that complies with the
international human rights principles stated by the Commission and that
provides the Danns with a judicial remedy, that is, access to the courts.
3. The letter from Dultizky implies that the pending bill to distribute the
Western Shoshone claim award of the Indian Claims Commission may have an
adverse effect on the human rights of the Danns and other Western Shoshones.
This is one reason for the release of the report at this time.
U.S. violates Shoshone human rights
by: Valerie Taliman / Southwest Bureau Chief / Indian Country Today
WASHINGTON -- The United States government is violating international
human rights in its treatment of Western Shoshone elders Carrie and Mary
Dann, said a long-awaited report released July 29 by the Inter-American
Commission on Human Rights. It is the first time an international body
has formally recognized that the U.S. has violated the rights of
American Indians.
The report supports the Danns’ argument that the U.S. government used
illegitimate means to gain control of ancestral Shoshone lands and
questions the government’s handling of millions of acres of land under
the Indian Claims Commission.
The human rights charges came on the eve of a Senate Indian Affairs
Committee hearing Aug. 2 on S. 958, a bill sponsored by Sen. Harry Reid,
D-Nev., that would distribute some $138 million in a land claim
settlement to members of the Western Shoshone Nation. The Danns and
other traditional leaders oppose the payout, although a large majority
of voting members supported it in a recent referendum organized by
tribal allies of Sen. Reid.
"This report will have important implications for Indian nations all
over the country that have complained for years about losing their lands
as a result of fraudulent or high-handed claims in the Indian Claims
Commission," said Robert T. Coulter, executive director of the Indian
Law Resource Center, which brought the case before the Inter-American
Commission on the Danns’ behalf. "At last, there is a thorough, legal
decision concluding that these procedures are seriously wrong and that
they violate the most basic human rights of the Indian peoples
involved."
The human rights commission found that the claims process -- which the
U.S. says extinguished the Western Shoshone rights to most of their land
in Nevada -- was a flawed process that denied the Danns and other
Western Shoshones their human rights.
The commission concluded that the U.S. violated several articles of the
American Declaration on the Rights and Duties of Man, including the
right of equality before the law, the right to a fair trial and the
right to property.
The commission recommended that the government take steps to provide a
fair legal process to determine the Danns’ and other Western Shoshone
land rights.
The sisters, now in their 70s, have spent 30 years fighting for the
collective rights of their people to retain Native homelands and have
been subjected to threats, harassment, helicopter surveillance and raids
by federal agents to confiscate their livestock.
Carrie Dann insists the federal government has "terrorized" them for
years, causing daily mental stress and even physical assaults as the
sisters tried to block Bureau of Land Management agents from taking 269
horses in one particularly traumatic round-up. They have repeatedly
refused to pay federal grazing fees for their livestock on the grounds
that the land still belongs to the Western Shoshone Nation.
The Aug. 2 Senate hearing was to take up a controversial bill that would
distribute the money awarded by the Indian Claims Commission in the
Western Shoshone case though five tribal chairmen representing the
Western Shoshone Nation have publicly objected to Reid’s efforts to
distribute the money.
In a referendum organized by Te-Moak Tribal Council Chairman Felix Ike
in early June, 1647 tribal members voted in favor of the payout and 156
opposed it. The vote delighted the Western Shoshone Claims Distribution
Steering Committee, which supports the distribution. But chairman of
five Western Shoshone bands, including the four that make up the Te-Moak
Council, objected that the vote did not follow established procedures.
Some also questioned the role of Sen. Reid in organizing the referendum.
Questions about the wording of a previous vote were instrumental in
canceling a Senate hearing on S. 958 scheduled for March.
"It is very saddening that Senator Reid has decided to unapologetically
undermine Western Shoshone tribal sovereignty and governmental integrity
by supporting the legislative objectives of a few people comprising the
self-appointed Western Shoshone Claims Distribution Steering Committee
without regard to the strong opposition of virtually all Western
Shoshone tribal governments to S. 958," said Tom Luebben, attorney for
two of the Shoshone bands.
"The scheduled March 21 hearing was cancelled on less than a day’s
notice, although representatives of most Shoshone governments were in
Washington and prepared to testify. The hearing was apparently cancelled
because most of the witnesses were going to say things Senator Reid
doesn’t want to hear and doesn’t want in the record."
Many Western Shoshone bands and the Danns oppose the bill because of
concern that it would undermine their rights to their lands and compound
the human rights violations identified by the Inter-American Commission.
"Western Shoshone leaders have opposed distribution of the Indian Claims
Commission Award for 22 years. Reid is attempting to work around tribal
leaders representing the vast majority of Western Shoshone citizens,"
said Ian Zabarte, a longtime activist in defense of Shoshone lands.
"S. 958 does not provide for a land base necessary for the growth and
development of the Western Shoshone Nation as contemplated by the 1863
Treaty of Ruby Valley, ensuring instead that the current condition of
economic starvation continues on the tiny colonies and reservations."
This article can be found at http://IndianCountry.com/?1028293446
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