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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
104th 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
104th 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.”
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* Commission Member Professor Robert
Goldman did not take part in the discussion and voting on this case,
pursuant to Article 17(2) of the Commission's Rules of Procedure. [1]
During its
109th special session in December 2000, the Commission approved
the Rules of Procedure of the Inter-American Commission on Human Rights,
which replaced the Commission’s prior Regulations of April 8, 1980.
Pursuant to Article 78 of the Commission’s Rules of Procedure, the Rules
entered into force on May 1, 2001. [2]
18 U.S. Stat.
689. [3]
Petitioners’
Supplemental Brief on the Merits, dated March 2000, p. 8, n. 24, citing, inter alia, F. Cohen, Handbook of Federal Indian
Law 442-443, 491 (1982 ed.); United States ex rel. Hualapai Indians
v. Santa Fe Pacific Railroad, 314 U.S. 339 (1941); R. v. Adams (1996) 110
C.C.C. (3d) 97 (S.C.C.) (Can.); Amodu Tijani v. Secretary, Southern
Nigeria, 2 A.C. 399 (P.C. 1921). [4]
International Labor
Organization Convention (Nº 169 of 1989) concerning Indigenous and Tribal
Peoples in Independent Countries, entered into force Sept. 1991. [5]
Proposed American
Declaration on the Rights of Indigenous People, approved by the IACHR at
its 1333rd sess. On Feb. 26, 1997, OEA.Ser.L/V/II.95, doc. 7
rev., 1997, at 654-676. [6]
Draft United Nations
Declaration on the Rights of Indigenous Peoples, adopted by the U.N.
Sun-commission on Prevention of Discrimination and Protection of
Minorities, 26 August 1994, E/CN.4/Sub.2/1994/45, at 105. [7]
Petitioners’
Supplemental Brief on the Merits, supra, p. 9, citing United States
v. Dann, 706 F. 2d 919, 927-933 (9th Cir. 1983), reversed on
other grounds, 470 U.S. 39 (1985). [8]
Petitioner’s
observations of January 25, 1995, pp. 6-7. [9]
Article II of the
American Declaration reads: “All persons are equal before the law and have
the rights and duties established in this Declaration, without distinction
as to race, sex, language, creed or any other factor.” [10]
Petitioners’ petition
of April 2, 1993, p. 21. [11]
Petitioners’
Supplemental Brief on the Merits, supra, p. 10, citing Report of the
United Nations Seminar on the Effects of Racism and Racial discrimination
on the Relations Between Indigenous Peoples and States, E/CN.4/1989/22,
HR/PUB/89/5, at 5 (1989). [12]
Petitioners’ petition
of April 2, 1993, p. 21. [13]
Tee-Hit-Ton Indians v.
United States, 348 U.S. 272, 281, 285 (1955) (stating, inter alia, that no Supreme Court
case “has ever held that taking of Indian title or use by Congress
required compensation,” because “Indian occupation of land without [prior
explicit] government recognition of ownership crates no rights against or
extinction by the United States protected by the Fifth Amendment or any
other principle of law.” [14]
Petitioners’ petition
dated April 2, 1993, pp. 16-17. [15]
Petitioners’
Supplemental Brief of the Merits, supra, p. 12. [16]
Id., p. 13, n. 40, citing Mabo v.
Queensland [Nº 1] (1988) 166 C.L.R. 186.
[17]
Id., citing CERD General
Recommendation XXIII, on indigenous peoples, adopted 18 August 1997,
CERD/C51/Misc.13/Rev.4 (1997). [18]
Id., pp. 13-14, citing CERD
Decision (2)54 on Australia: Australia, CERD/C/54/Misc.40/Rev.2, para. 6
(18 March 1999); Additional Information pursuant to Committee Decision:
Australia CERD/C/347 (22 January 1999).
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