American Indian Heritage Month: Commemoration vs. Exploitation
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United States v. Dann

The U.S. Supreme Court decision in United States v. Mary and Carrie Dann is one event in a complex, ongoing land battle between the western Shoshone tribes and the federal government.

In the late 1600s, at the time of first contact between the western Shoshones and Europeans, the western Shoshones, a seasonally nomadic people, controlled over 60 million acres of land stretching from the Snake River in southern Idaho, through the Great Basin of Nevada, to Death Valley in California. The traditional lands of the western Shoshones are arid and rugged, consisting of many mountain ranges separated by deep, narrow valleys. Because most of the land is too dry and alkaline for farming, early European-American immigrants passed through the region and settled instead in the fertile valleys of California and Oregon.

The Shoshones were largely left alone to continue their traditional way of life until the 1840s. At that time, westward immigration, spurred in part by the discovery of gold in western Nevada's Comstock, caused a marked increase of European-American incursions into Shoshone territory. Construction of the first coast-to-coast railroad and telegraph networks caused further disruptions. Some Shoshone responded to these invasions by conducting "hostilities and depredations" on wagon trains, postal workers, and telegraph lines. The 1863 treaty between the United States and the western Shoshones, known as the Treaty of Ruby Valley, was designed to end these conflicts and ensure "the safety of all travellers passing peaceably" through western Shoshone territory in exchange for a $5,000 annuity. Upon signing the treaty, the Shoshone were given $5,000 worth of provisions and clothing; this was the only annuity the tribe ever received.

Additional concessions contained in the treaty permit the establishment of U.S. military posts, as well as private mining, ranching and timber operations, within Shoshone territory. Even so, over the years, Shoshone territory remained sparsely populated. The small increase in European-American residents did not much disrupt the traditional lifestyle of the Shoshone, who, having turned from a subsistence lifestyle to cattle ranching, continued to occupy their traditional homeland, where they lived much as they always had. Today, although dense population centers have developed around Salt Lake City and Las Vegas, most of the Great Basin remains sparsely populated with an average population density of just one or two people per square mile.

Despite its small population, the commercial and military significance of the Great Basin has increased over time. The area is mineral rich; 64 percent of the gold extracted annually in the United States—almost 10 percent of the gold produced annually worldwide—is found there. In addition to its mineral wealth, the isolation and emptiness of the Great Basin are a source of military value. Due to the region's low population density, clear air, and general absence of private land ownership, the U.S. government has located a number of military bases and weapons ranges, as well as the proposed Yucca Mountain nuclear waste repository, in the Great Basin.

The ongoing legal conflict between the U.S. government and the western Shoshones in general and Shoshone ranchers Carrie and Mary Dann, in particular, began with a case brought before the Indian Claims Commission (ICC) in 1951.

The Indian Claims Commission was established by Congress to settle the outstanding claims of Indian tribes. The Commission's goal was to extinguish tribal claims by paying tribes for land that had been taken without compensation. Attorneys representing the Te-Moak tribe brought the ICC case on behalf of all western Shoshones. The ICC case was a source of conflict from its inception, largely because the Te-Moak tribe consists of just four of the more than fourteen bands that constitute the western Shoshone nation. Unrepresented bands argued that the Te-Moak attorneys did not have the authority to act on their behalf. Yet the ICC recognized the attorneys as representing the entire western Shoshone Tribe.

Although the attorneys (who under a contingent fee agreement were entitled to 10 percent of the tribe's recovery) told tribal members that the purpose of the ICC action was to reach an agreement for back annuity payments, some tribal elders feared that the action would result in a loss of tribal lands. Subsequent attempts by the Te-Moak to fire their attorneys and stay the proceedings were denied by the ICC. Attempts by other Shoshone individuals and bands to intervene in the action were also denied.

In 1966, the Te-Moak attorneys stipulated to July 1, 1872, as the valuation date for nearly 24 million acres of western Shoshone lands in the state of Nevada. By this stipulation, the attorneys and the government agreed that the western Shoshones had lost title to their aboriginal lands as of July 1, 1872, through gradual European-American encroachment and set the 1872 value of the land as appropriate compensation for its loss. The stipulation ignored the fact that in 1966 many western Shoshones were still in actual possession of their traditional land. In addition, the agreement contradicted the holding in Johnson v. McIntosh and the prohibition contained in the Non-Intercourse Acts against the transfer of tribally controlled land to non-Indians without prior government approval. The stipulation violated basic tenets of federal Indian law as well as the government's fiduciary duty to preserve and manage tribal resources.

In 1974, while the ICC case was still pending, the federal government brought a trespass action against the Dann sisters for grazing their livestock on federal land without a permit. This trespass action was the genesis of the U.S. Supreme Court case of United States v. Dann. The Danns, who had been grazing their cattle for thirty years on the land in question without a permit, responded that the western Shoshone tribe held aboriginal title to the land and, as tribal members, they were entitled to use the lands under tribal—not federal—law. The government argued that the issue of aboriginal title had already been decided by the ICC and so was not available to the Danns as a defense. The district court found in the government's favor.

The Danns appealed the case to the Ninth Circuit Court of Appeals, which reversed, holding that the ICC decision could not have decided the question of extinguishment of aboriginal title. The court reasoned that it was not within the ICC's jurisdiction to extinguish title to land and, further, the ICC had not yet issued a final decision in the case. The Ninth Circuit then sent the case back to the federal district court in Nevada on remand.

While the remanded case was pending in district court, the ICC issued a decision awarding $26 million to the western Shoshone tribe as compensation for loss of its aboriginal lands. According to the subsequent district court decision, the ICC award acted to extinguish the tribe's aboriginal title, thus barring the Danns' defense. The Danns again appealed to the Ninth Circuit, which once again reversed. The court held that since the tribe had not yet accepted payment of the award, the Danns could still raise the issue of extinguishment as a defense.

The government appealed this decision to the U.S. Supreme Court, which ruled against the Danns on the grounds that (1) Congress intended the decisions of the ICC to be final and (2) once the $26 million ICC award was appropriated into a Treasury account for the benefit of the tribe, payment had occurred. This 1985 decision arguably effected a judicial extinguishment of the western Shoshones' aboriginal title.

After the ICC award, many western Shoshone feared that distribution of the money would extinguish any remaining claim they might have to their traditional lands. For this reason, the tribe refused to accept a payout of the money in the Treasury account. By 2004, interest had increased the prospective award to more than $145 million, or roughly $30,000 per eligible tribal member. As the amount of money in the fund grew, so did pressure from many Shoshone for a distribution. By the time President George W. Bush signed the Western Shoshone Distribution Act on July 7, 2004, the tribe was deeply divided over the issue. While the Danns and other "traditionals" refuse to accept their individual shares, many others believe that the money is at least some compensation for the lands the Tribe has lost.

Despite the Supreme Court ruling, the Danns have continued to graze their livestock on rangelands managed by the Bureau of Land Management (BLM). In response, the BLM has assessed $3 million in grazing fees, penalties, and interest against the Danns. Since 1992, the agency has attempted to coerce the Danns' compliance with BLM regulations through threats, court action, and occasional roundups. In 2002, forty federal agents with guns, ATVs, and helicopters rounded up about 230 of the sisters' cattle. The animals were auctioned off for $60,000—much less than the cost of the roundup and auction—and many of the purchasers were Dann sympathizers who immediately returned the animals to the sisters.

In the years since the government's 1974 trespass action, the Danns' cause has been widely publicized and has received widespread international recognition and support. Having exhausted the remedies available to them in the U.S. courts, the Danns have taken their case to the tribunals of the Organization of American States and the United Nations, where they have received favorable decisions. Although these international decisions are not binding on the federal government, they put the United States in an embarrassing position by publicly censuring the government for its treatment of the western Shoshones. It remains to be seen what effect these decisions will have on U.S. Indian policy, the western Shoshones, and the Danns.

Amy Propps

Further Reading
United States Treaty with the Western Shoshoni Oct. 1, 1863. 18 Stat. 689.; United States v. Dann 470 U.S. 39 (1985).; United States v. Dann 572 F.2d 222 (9th Cir. 1978). United States v. Mary and Carrie Dann Dec. 27, 2002. Case 11.140, Report No. 75/02. I/A Court H.R. Doc. 5, rev. 1 at 860.; Ragsdale, John W., Jr. 2004. "Individual Aboriginal Rights." Michigan Journal of Race and Law (Spring): 323.

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