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25. U.S. Observations and note on the Inter-American Commission on Human Rights, Petition on Mary and Carrie Dann (December 17, 2002)


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Observations of the Government of the United States to the Inter-American Commission on Human Rights Report No. 113/01 of October 15, 2001 concerning Case No. 11.140
(Mary and Carrie Dann)

The United States rejects the Commission's Report No. 113/01 of October 15, 2001, in its entirety. The United States respectfully requests that the Commission publish the following Response of the United States in the next Annual Report of the Commission, if Report No. 113/01 is published.

  1. Background

Summary. In its report the Commission concludes (Commission Report paragraph [hereinafter CRP] 146) that the processes established by the United States in 1946 to litigate Western Shoshone loss of aboriginal title did not
"conform with the norms and principles under the American Declaration applicable to the determination of indigenous property rights." The Commission's report is in error for several reasons: (1) the Danns' contentions regarding the alleged lack of due process in the Indian Claims Commission proceedings were fully and fairly litigated in United States Courts and should not be reconsidered here; (2) the Commission lacks jurisdiction to evaluate processes established under the 1946 Indian Claims Act since the Act predates U.S. ratification of the OAS Charter; and (3) the Commission erred in interpreting the principles of the American Declaration in light of Article XVIII of the not-yet-adopted OAS draft declaration on indigenous rights.

Western Shoshone Litigation. The lands involved in this case are part of a much larger area that was at issue in an action resolved by the Indian Claims Commission in 1977. That action was filed in 1951 on behalf of the Western Shoshone (which included the Danns) to recover damages for the loss of aboriginal title to lands in the Western United States, including Nevada and California. The Temoak Band of the Western Shoshone was recognized by the Indian Claims Commission as the tribal representative for the purpose of maintaining a claim on behalf of the Western Shoshone for the extinguishment of title to tribal lands in Nevada and California, including the lands at issue here. After the parties stipulated to a valuation date of July 1, 1872, the Commission determined the fair market value of the lands acquired from the Western Shoshone to be $21,550,000. Western Shoshone Identifiable Group v. United States, 29 Ind. Cl. Comm. 5 (1972).

Dann Intervention Request. The Western Shoshone Legal Defense and Education Association, which represented the Danns, subsequently moved to stay the Indian Claims Commission proceedings and present an amended claim. Specifically, the Association sought to delete from the claims lands to which it contended the Western Shoshone still retained aboriginal title. The Indian Claims Commission, viewing the dispute as an internal one among the Western Shoshone over litigation strategy, denied the untimely motion. Western Shoshone Legal Defense & Education Ass'n v. United States, 35 Ind. Cl. Comm. 457 (1975). The United States Court of Claims affirmed and the Supreme Court denied a petition for a writ of certiorari, 531 F.2d 495 (Ct. Cl.), cert. denied, 444 U.S. 573 (1979). In 1977, the Indian Claims Commission entered final judgment, awarding the Western Shoshone more than $26 million in compensation for extinguishment of aboriginal title. Western Shoshone Identifiable Group v. United States, 40 Ind. Cl. Comm. 305, 311, 453 (1977), aff'd, 593 F.2d 994 (1979), cert. denied, 444 U.S. 573 (1979).

Trespass Action. The United States later commenced a grazing trespass action against the Danns, alleging that the Danns were grazing livestock on certain public lands in Nevada without a federal permit, as required by regulations promulgated by the Secretary of the Interior under the Taylor Grazing Act. 43 U.S.C. 315 et seq. The Danns defended on the basis that they were Western Shoshone Indians and that the tribe was the beneficial owner of the lands at issue. The United States Supreme Court held that under section 22(a) of the Indian Claims Commission Act of 1946 the Commission's final judgement and award in the Western Shoshone litigation precluded the Danns from continuing to assert Western Shoshone aboriginal title, since the award had been placed in a trust fund account for the benefit of the Western Shoshone. United States v. Dann, 470 U.S. 39 (1985). The Supreme Court added: "The Danns also claim to possess individual as well as tribal aboriginal rights and that because only the latter were before the Indian Claims Commission, the 'final discharge' of Section 22(a) does not bar the Danns from raising individual title as a defense in this action. Though we have recognized that individual aboriginal rights may exist in certain circumstances in certain contexts, this contention has not been addressed by the lower courts, and, if open, should first be addressed below." 470 U.S. at 50. On remand, the United States Court of Appeals for the Ninth Circuit ruled that the Danns would be able to assert individual aboriginal title as a defense in the trespass action, to the extent that such rights were acquired prior to the withdrawal of the lands from public grazing in 1934 and continuously exercised since that time. Dann v. United States, 873 F.2d 1189, 1199-1200 (1989). Nonetheless, the Dann sisters subsequently withdrew their claims of individual aboriginal title as a defense in the trespass action. As a result, the U.S. federal courts have ordered that the Danns comply with the United States' grazing regulations.

Commission Report. The Inter-American Commission observed (CRP 146) "that it is not for this Tribunal in the circumstances of the present case to determine whether and to what extent the Danns may properly claim a subsisting right to property in the Western Shoshone ancestral lands" because "this issue involves complex issues of law and fact that are more appropriately left to the State for determination through those legal processes it may consider suitable for that purpose." Yet the Commission found, contrary to the findings of U.S. Courts, that (CRP 135-145) the Danns "were not effectively represented" in the Indian Claims Commission litigation involving the Western Shoshone ancestral lands. For this reason, the Inter-American Commission concludes (CRP 146) that the Western Shoshone Indian Claims Commission process violated Article II (right to equality before the law), XVIII (right to a fair trial), and XXIII (right to own property) of the American Declaration on the Rights and Duties of Man.

The Commission's decision is clearly in error.

II. The Danns' Contentions Regarding The Alleged Lack Of Due Process In The Indian Claims Commission Proceedings Have Already Been Fully And Fairly Litigated In U.S. Courts, So Those Contentions May Not Be Relitigated Here.

The "fourth instance" procedural rule provides that the Commission may not review the judgments issued by domestic courts acting within their competence and with due judicial guarantees. See Case 11.673, Santiago Marzioni (Argentina), Inter-Am. C.H.R. 86, para. 51, OEA/Ser. L/V/II.95, doc. 7 rev (1996). This well-established principle has been applied in both the Inter-American human rights system and the European human rights system. Further, the Commission may not second-guess decisions by national courts applying domestic law, unless the procedures followed by the court were in violation of international law. See, e.g., Villagran Morales Case, Preliminary Objections, Inter-Am. Ct. H.R., Judgment of Sept. 11, 1997, Ser. C, No. 32, paras. 17-18.

The instant decision by the Commission constitutes a classic violation of the "fourth instance" rule. Here, the Commission has advanced the same arguments that have been adjudicated, reviewed, and rejected by federal courts in accordance with U.S. federal law. Moreover, as demonstrated below, these procedures were in accord with the provisions of international law - contemporary or otherwise.

  1. The Land Claim At Issue Before The Indian Claims Commission Was A Collective Tribal Claim Of The Western Shoshone.

The fundamental error evidenced throughout the Commission decision is its factual assumption that the land claim at issue in the Indian Claims Commission litigation represented an aggregation of individual claims and not a collective tribal claim of the Western Shoshone. For example, the Commission finds (CRP 104) that "the Dann family has traditionally occupied and used a region broader than their individual ranch and that this constitutes a part of the Dann band land." On this basis the Commission concludes (CRP 140-141) that the Indian Claims Commission process was inconsistent with the provisions of the American Declaration since it did not provide "an effective opportunity to participate individually or as collectives" or require decisions on the basis of "mutual consent."

To the contrary, the claim that was the subject of the Indian Claims Commission proceedings was a collective tribal claim regarding all of the communal tribal lands, not an aggregation of related individual claims. Hence the Danns were not entitled to be individually represented in the Indian Claims Commission proceedings. The Inter-American Commission's assertion to the contrary serves only to undermine the firmly established principle under U.S. law that tribes, not individuals, have authority over communal tribal lands.

As the United States Court of Claims explained in 1976 with respect to the Danns' and other petitioners' attempt to intervene in the Western Shoshone litigation:

A claim under the Claims Commission Act is not an aggregation of individual claims but a group claim * * * * The suing claimant represents that group interest, and it is reasonable to say that at least prima facie the organized entity "recognized by the Secretary of Interior as having authority to represent such [claiming] tribe, band or group" should be the exclusive suing party. 531 F.2d at 503-504.

Similarly, the United States Court of Appeals for the Ninth Circuit subsequently held in the trespass action:

The Danns attack the fairness and constitutionality of these [Indian Claims Commission] rulings, but they overlook the fact that the interest they assert in tribal aboriginal title is not a direct property interest of their own. See F. Cohen, Handbook of Federal Indian Law 183-184 (1942). The Danns were simply part of a litigating group with regard to the claims proceeding, and litigation strategy was subject to group decision.

873 F.2d at 1195 (1989).

The Court further stressed that because the interest was tribal, the Danns had no specific rights to the land in question -

As individual tribal members occupying land under tribal aboriginal title, the Danns or their lineal ancestors could assert no rights excluding the tribe or its members from the land. And because the rights they assert are tribal, the Danns could just as easily lay claim to any of the 22 million acres of aboriginal Western Shoshone land in Nevada as they do to the tracts at issue in this case. The problem with the claim, as we have already pointed out, is that the Western Shoshone have been paid for that title, and it must be deemed extinguished. [Citations omitted]. 873 F.2d at 1196.

The United States courts further found in the trespass litigation that the Indian Claims litigation did not bar the Danns from asserting individual aboriginal title as a defense to the trespass action. 873 F.2d at 1201. Nonetheless, on remand before the U.S. District Court for the District of Nevada, the Danns withdrew all remaining claims to title based on individual aboriginal rights. The Danns explained (CRP 52) that they --

failed to pursue "individual aboriginal title" to the lands in question before domestic courts . . . because doing so would have separated them from the treaty-based Western Shoshone nation claim, . . . .

They further clarified (CRP 74) that -

it is the customary nature of land tenure generated by the Western Shoshone people as a whole over centuries, rather than the Danns own individual land use pattern, that forms the foundation of the land rights asserted by the Danns.

In short, the Danns had no right to participate individually in the Indian Claims Commission proceedings because the claim at issue was a collective claim of the Western Shoshone. Moreover, the Danns cannot now assert a right to individual aboriginal title as a defense to the trespass action because they abandoned that claim in United States courts, in other words, they never have exhausted domestic remedies.

  1. The United States Courts Determined That The Temoak Band Was The Appropriate Representative Party For Maintaining The Claim In The Indian Claims Commission On Behalf Of All Western Shoshone.

A second fundamental factual error committed by the Commission is the erroneous finding (CRP 141) that "it became clear at the time of the Danns' request to intervene that the collective interest in the Western Shoshone territory may not have been properly served through the proceedings pursued by the Temoak Band."

The Danns and other petitioners expressly sought to intervene in the Indian Claims Commission proceedings to challenge the Temoak Band's status as the representative party and to assert allegations that the Western Shoshone had been misled concerning the claim. 706 F.2d 722. The Court of Claims, however, affirmed the Indian Claims Commission's denial of the petition for intervention, finding the Temoak Band to be the appropriate representative of the entire Western Shoshone and the petitioner's allegations of fraud and collusion to be unfounded.

In denying the petition for intervention, the Court of Claims held that:

The fact is that at bottom all that appellants have demonstrated is that there is a dispute between an undetermined number of supporters of appellants and the organized entity, the Temoak Bands, over the proper strategy to follow in this litigation. 531 F.2d at 503.

The Court of Claims also squarely rejected the Inter-American Commission's assertion (CRP 137) that "the determination as to whether and to what extent Western Shoshone title may have been extinguished was not based upon a judicial evaluation of pertinent evidence, but rather was based upon the apparently arbitrary stipulations as between the U.S. government and the Temoak Band." The Court of Claims found that there had been a judicial evaluation of the pertinent evidence during the title phase of the litigation. The Court stated:

Appellants insist that the subject of title-extinction was never tried, going simply by the concurrent agreement of the parties. But evidence on that issue was contained in the materials presented at the 1957 trial and the Indian appellees asked generally for findings that the Shoshone lands had been taken; the Government consistently maintained that the Indians never owned the lands they claimed and therefore that the question of title-extinction never arose. The Commission made its own determination that the Shoshone lands were held by separate Shoshone entities and that Indian title to the area in question was extinguished by enroachment. 531 F.2d at 500.

The Inter-American Commission also suggests (CRP 137) that the stipulation regarding valuation reached by the parties to the Indian Claims Commission proceeding was "arbitrary." As the Court of Claims explained:

The parties, instead of having a further trial on the valuation date or dates, then agreed to stipulate that the Nevada lands should be valued as of July 1, 1872, and the [Indian Claims] Commission accepted this agreement as an implementation of its prior finding of extinguishment. This stipulation was not collusion but a proper application of the admonition that parties to such litigation should attempt to agree, if possible, upon one or a few valuation dates rather than undertake a burdensome individual computation of value as of the date of disposals of each separate tract. [Emphasis supplied.] 531 F.2d at 500.

In sum, the Inter-American Commission erred in assuming (CRP 142) that the Temoak Band did not properly serve the interests of the Western Shoshone. U.S. Courts fully examined this question and properly concluded that the Temoak Band was the proper representative of the Western Shoshone and that they had fully litigated their claim.

  1. The Danns Were Fully Apprised Of The Status Of The Indian Claims Act litigation.

Yet another factual error committed by the Commission is its assumption (CRP 136) that the Danns were not fully apprised of the litigation strategy that had been employed by the organized entity of the Western Shoshone group. The United States Court of Claims found after examining the record:

that there is no doubt whatever that appellants [including the Danns] were for a very long time quite aware of the position with respect to this Nevada land taken before the [Indian Claims] Commission by appellee Temoak Bands and its counsel. 531 F.2d at 498-499.

The Commission further errs in concluding (CRP 140) that "[t]here is also no evidence on the record that appropriate consultations were held within the Western Shoshone at the time that certain significant determinations were made." To the contrary, the United States Court of Claims expressly pointed out in its decision that the attorney for the Temoak Band reported that Western Shoshone General Council meetings occurred in 1947, three years before the Western Shoshone action was filed; in 1959, three years before the Indian Claims Commission issued its extinguishment finding; and in 1965, five years before the Indian Claims Commission issued its decision awarding $26,154,600 to the Western Shoshone. 599 F.2d at 499; see also 652 F.2d at 44.

In sum, there can be no doubt that the Danns were fully apprised of the litigation strategy employed by the organized entity representing the Western Shoshone.

  1. U.S. Courts Properly Denied The Danns' Request To Intervene In The Indian Claims Commission Proceedings.

Another fundamental factual error committed by the Commission is the finding (CRP 141) that the U.S. Courts "did not take measures to address the substance of [the request for intervention] but dismissed them based upon the expediency of the ICC proceeding."

As the United States Court of Claims emphasized, its orders denying intervention rested upon the unjustified tardiness of the request for intervention. The Danns did not attempt to intervene in the Indian Claims Commission process until 23 years after the litigation had been initiated. As the United States Court of Claims observed in denying the request for intervention:

the [petition to intervene] was first thrust upon the [Indian Claims] Commission and the Parties in 1974, some 23 years after this Western Shoshone claims was first made to the [Indian Claims] Commission in 1951, some 12 years after the Commission had decided (in 1962) that the United States had extinguished the claimant's title to the large area involved, eight years after the Commission had approved (in 1966) the parties' stipulation as to the valuation date of these lands, about one and one-half years after the Commission had determined (in October 1972) the actual value of the property, and about a month after the problem of offsets had been tried and submitted for disposition. 531 F.2d at 498.

The order denying intervention was not based upon any unwillingness to consider a representational dispute timely presented or to allow an Indian group to contend that it still retained title to ancestral lands. The Court of Claims explained the process as follows:

If there are circumstances in which the organized entity fails properly to represent the group, the normal method of redress is through the internal mechanism of the organized entity. And if there be cases in which the internal mechanism is clogged or unavailable then, at least, the members claiming to represent the majority interest are required to make their position formally known to the [Indian Claims] Commission and the other parties as soon as possible - and not after much work has been done, and years have passed, on the unchallenged assumption that the organized entity represents the group.

531 F.2d at 504; see also 593 F.2d at 997-999.

In light of the Court of Claims' determination that "no adequate excuse was offered for the long delay," (593 F.2d at 997; see also 531 F.2d at 498-499, 501-502 & n. 13), and the fact that any other litigant in U.S. federal courts would be subject to equivalent procedural requirements concerning timeliness, neither the United States courts procedural rulings nor the preclusive effect that Congress has assigned to the judgment of the Indian Claims Commission offends due process.

In short, the processes employed in the Western Shoshone Indian Claims Commission litigation did provide the due process guarantees required by the U.S. Constitution and reflected in the American Declaration on the Rights and Duties of Man. Indeed, as the Commission itself has acknowledged (CRP 138), those procedures provided the Danns with an even greater opportunity to press their claims than would be available to a non-Indian seeking compensation for the taking of their land. The Danns' contentions regarding the alleged lack of due process in the Indian Claims Commission proceedings were fully and fairly litigated in United States courts and they may not be reconsidered here. It was error for the Commission to assume otherwise.

III. The Processes Established Under The Indian Claims Act Of 1946 Did Not Violate Contemporary Norms Of International Law.

The Commission also erred (CRP 139) in "evaluating these processes" established by the Indian Claims Commission Act of 1946 in light of "contemporary international human rights norms, principles and standards." As discussed above, the Commission has committed fundamental factual errors in its evaluation of the processes in this case. Those erroneous findings led the Commission in turn to erroneously conclude that the processes violated Article 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, if those provisions are interpreted in light of "developments in the corpus juris gentium of international human rights law over time and in present-day conditions." In any event, the Commission should not have subjected those historical processes to contemporary norms of international law.

  1. The Commission Lacked Jurisdiction To Consider Events Related Solely To The Passage Of The 1946 Indian Claims Commission Act.

It is unclear on what basis the Commission has found jurisdiction over processes established under the Indian Claims Commission Act, which was signed into law on August 13, 1946. Indian Claims Commission Act, 60 Stat. 1049, 25 U.S.C. Sec. 70 a-v. The Commission contends (CRP 95) "that the events raised in the petitioner's claim occurred subsequent to the States ratification of the OAS Charter." However, the Indian Claims Commission Act only extends jurisdiction to the Indian Claims Commission for claims arising from the taking of the United States of aboriginal lands prior to August 13, 1946. The Commission would not have jurisdiction over events that resulted solely from the passage of that Act, since the Act predates U.S. ratification of the Charter itself. See Phosphates in Morocco, P.C.I.J. Ser. A/B, No. 74 p. 10 (1938).

  1. Utilization of Contemporary Norms Of International Law Would Violate The Principle of Inter-temporal Law.

Additionally, evaluation of the processes established under the 1946 Indian Claims Commission Act in light of contemporary international norms is an impermissible inter-temporal application of law. Under that principle,

it is not permissible to import into the legal evaluation of a previously existing situation, or of an old treaty, doctrines of modern law that did not exist or were not accepted at the time, and only resulted from the subsequent development or evolution of international law.

Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice, XXX BRIT. YB INT'L L. 5 (1953). See also H. Thirlway, The Law and Procedure of the International Court of Justice, 1960-1989, LX BRIT. YB INT'L L. 1, 128-129 (1989); The South West Africa Cases, I.C.J. REP. 4, 23 (1966).

In this case application of contemporary norms of international law to the Indian Claims Commission process would necessarily violate the principle of inter-temporal law. The Indian Claims Commission proceedings concerning the Western Shoshone were completed in 1977 and the Indian Claims Commission itself was dissolved on September 30, 1978. Indeed, the Inter-American Commission "commends the State" for the "development and implementation of the Indian Claims Commission process" and recognizes that "this process provided a more efficient solution to the sovereign immunity bar to Indian land claims under U.S. law and extended to indigenous communities certain benefits relating to claims to their ancestral lands that were not available to other citizens, such as extended limitation periods for claims." CRP 138.


  1. Article XVIII Of The Not-Yet-Adopted OAS Draft Declaration Does Not Reflect Contemporary Norms Of International Law.

Even more surprising is the Commission's determination that "aspects of Article XVIII" of the not-yet-adopted OAS draft declaration on indigenous rights "reflect general international legal principles developing out of and applicable inside and outside of the Inter-American system and to this extent are properly considered in interpreting and applying the provisions of the American Declaration in the context of indigenous peoples." CRP 129. Clearly, Article XVIII of the draft declaration does not reflect general international legal principles.

In 1999, the Inter-American Juridical Committee advised the OAS that "[i]nternational law does not recognize the indigenous person's right of ownership and use of lands as defined in this article." Observations and Recommendations of the Inter-American Juridical Committee on the "Proposed American Declaration on the Rights of Indigenous Populations," OAS Doc. RECIDIN/INF.1/99 (Jan. 29, 1999). The Commission makes no effort to reconcile its position with that of the Inter-American Juridical Committee.

Similarly the United States has consistently expressed its view that draft article XVIII does not reflect general international legal principles. For example, the United States advised the Commission in 1997 that -

Article XVIII, as drafted by the Commission, contains imprecise language in any attempt to address a wide variety of situations involving land ownership and use. As a result the provision goes significantly beyond existing international law and conflicts with U.S. domestic law in important respects.

Observations and Recommendations of the United States, OAS Doc. RECIDIN/INF.7/99 (Dec. 16, 1997).

Other OAS member States have expressed similar concerns with respect to draft Article XVIII. See Observations and Recommendations by Guatemala on the Proposed American Declaration on the Rights of Indigenous Populations, OAS Doc. RECIDIN/INF.8/99; Observations and Recommendations by Canada on the Proposed American Declaration on the Rights of Indigenous Populations, OAS Doc. RECIDIN/INF.5/99; Observations and Recommendations by Mexico on the Proposed American Declaration on the Rights of Indigenous Populations, OAS Doc. RECIDIN/INF.9/99.

In short, the United States rejects the application of substantive norms that may or may not emerge in a non-binding document to processes established by the United States in 1946. The OAS draft declaration is still in draft form after six years of negotiations because its terms, including Article XVIII, have not been agreed to by the Member States of the OAS.

IV. The American Declaration Is Not Legally Binding.

The Commission further errs in finding that the United States has violated provisions of the American Declaration. Any competence that the Commission has to consider individual complaints arises through the 1967 amendment of the OAS Charter which established the Commission as a "consultative organ" of the OAS and the 1979 Statute of the Inter-American Commission, approved by OAS resolution No. 447, October 1979, which authorizes the Commission to "examine communications," "address the government of any member state not a party to the Convention for information deemed pertinent," and to "make recommendations." The 1979 Statute in Article 20 further authorizes the Commission to pay particular attention to the observance of the human rights referred to in, inter alia, Articles II and XVIII of the American Declaration. This authorization, however, does not turn a non-binding document such as the American Declaration into a treaty that can be considered to be legally binding upon the United States.

  1. Conclusion

The United States takes vigorous exception to the conclusions, inter alia, in the Commission's report that: (a) the United States violated any provisions of the American Declaration on the Rights and Duties of Man, and (b) the United States has a legal obligation to comply with the American Declaration or the draft OAS declaration on indigenous rights. At all times during the events that gave rise to the petition herein, the United States acted in full compliance with its domestic and international legal obligations.



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