clemmerr_2009_land rights, claims and western shoshones

November 2009 Page 279

Richard O. ClemmerUniversity of Denver

Land Rights, Claims, and Western Shoshones: The Ideologyof Loss and the Bureaucracy of Enforcement

This essay examines the shifting legal-political discourses surrounding the concepts“claim,” “property,” and “rights” with regard to the Western Shoshone. It arguesthat an “ideology of loss” structured the Indian Claims Commission (ICC) pro-ceedings. These proceedings parted Native Americans from their land, often despiteexisting treaties affirming land rights. Far from “settling” historical claims, the ICCproceedings actually produced and transformed Native and non-Native histories andadded a new bureaucratic facet to the colonial encounter. The discussion suggeststhat the attempted conquest of Native Americans is not a single fact accomplishedin the past but is rather an ongoing process that is driven by the American politicaleconomy. Reference to the works of contemporary scholars, as well as to those ofancestral scholars Henry Sumner Maine, Karl Marx, Max Weber, and Antonio Gram-sci elucidates how a dominant legal philosophy was put into place. This philosophypermitted the wielding of legal power and undermined Native Americans’ contesta-tion of that power. Nevertheless, indigenous peoples such as the Western Shoshones,and the lawyers working with them, have found ways to use law to exert agency inthe face of this bureaucratic force—creating an at-times ambivalent or double-edgedrelationship with legal power. [land rights, Indian Claims Commission, Shoshones,Native Americans, “ideology of loss”]

“We were buckarooing up there,” said my consultant. “It was night. Wespotted a campfire. We got up close and saw what it was: it was our oldpeople, dressed like they used to in the old days, in skins, except theywere skeletons. They were sitting around that camp fire playing the handgame. Well, the guy I was with, he was scared out of his wits. He tookoff on his horse and rode like the devil. But I wasn’t scared. I knew it wasour old people – the ones that’d gone on.” [Clemmer Field Notes July 11,1989]

This incident happened close to what is called the White Knife Quarry, on WesternShoshones’ ancestral lands. Spirits of the deceased are to be expected there: it hasbeen used for at least ten thousand years–for quarrying chert (a white stone) for toolsand weapons, as a burial place until at least the 1920s, and as a place where peoplewent to gather the white chert for ceremonial use. But the quarry is no longer used forthose purposes. Western Shoshones have not had access to it or surrounding areas foralmost fifteen years. The area is now part of the expanded Carlin gold mine, a stripmine opened nearby in the 1960s and controlled by Newmont Mining Corporation

PoLAR: Political and Legal Anthropology Review, Vol. 32, Number 2, pps. 279–311. ISSN1081-6976, electronic ISSN 1555-2934. C© 2009 by the American Anthropological Association.All rights reserved. DOI: 10.1111/j.1555-2934.2009.01044.x.

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since the 1980s. In the first six months of 2005, the sales of gold from its Nevadaoperations netted Newmont $11,951,000 (Newmont 2005:40). Western Shoshonesreceived no royalties from these or any other gold sales. Shoshones formed theShundahai [Prayer] Network and the Western Shoshone Defense Project to protestNewmont’s mining activities and also government plans to locate a nuclear wastedepository under Yucca Mountain, known as Snake Mountain to Shoshones–“a placewith rock prayer rings that transmit prayers to the Great Spirit and messages back tothe people” (Harney 2007). Shundahai Network sponsors a “walk-and-run” protestat Yucca Mountain annually. They also are protesting an open-pit Cortez Gold Mine,operated by Barrick Gold (formerly operated by Newmont), on Mount Tenabo, “apeak with sacred sites, the highest peak in the Cortez Mountains of northern Nevada”(Dann 2007).

If these mines are on Western Shoshone ancestral lands, why do Shoshones not haveaccess to them? And why have they never received any royalties? The answer isthat these mining companies–Barrick, Newmont, and its predecessor, Carlin Gold–negotiated the leases from the U.S. Bureau of Land Management (BLM). The BLMcontends that it owns these lands. Yet according to another U.S. government entity–the Indian Claims Commission (ICC)–the Western Shoshone held legal title to thisvery land. And according to several court decisions–the U.S. District Court in Reno,Nevada, and the Ninth Circuit Court of Appeals in San Francisco, California–WesternShoshones still held that title as late as 1979 and maybe even 1982. How did it happenthat mining companies got total control of land that should be under the stewardshipof the Western Shoshone, through a lease with the BLM?

Answering this question opens up a set of broader questions that reach far beyond thesituation itself. In 1993, Dieter Rogalla, vice-president of the Legal Affairs Committeeof the Depute au Parlement Europeen, visited the Western Shoshone and submitteda report noting “legal inconsistencies” with regard to legal decisions regarding theirclaims to land (Ahern and Breyer 1998). Based on that report and subsequent infor-mation, in 1998 the two delegates appointed for Relations with the United States bythe Depute au Parlement Europeen’s Committee on the Environment wrote Secretaryof the Interior Bruce Babbitt urging him to “deal with the issue of Western Shoshonetitle to their lands by entering into negotiations with the legitimized successors of theWestern Shoshone entity which signed the treaty 1863 on the basis of the continuedvalidity of the Treaty of Ruby Valley” (Ahern and Breyer 1998). Treaties are a genreof rights discourse (Gooding 1994:1197); the ICC neatly avoided this discourse. Atissue, on the one hand, is how the law, as a cultural institution, promoted the essen-tialization of identity (Gooding 1994:1188). Contested meanings swirl around “title,”“treaty,” and “successors of the Western Shoshone,” as well as “claim.” On the otherhand, to understand them, we are compelled to investigate the origins of an “ideologyof loss,” and to examine how this ideology is contested by the kind of relationshipswith land expressed in the “buckarooing” anecdote above.

This article thus has three central goals:

First, to recount how the legal language surrounding “claim,” embedded in a 19th-century legal philosophy of “loss,” was used to redefine and alter the meaning of


“claim” as Western Shoshones understood and defined it. This alteration of mean-ing was created by actors within a social context–the ICC proceedings–in whichmisrepresentation, duplicity, manipulation, and failure to communicate on the partof attorneys would ensue. In the name of “arguing” the Western Shoshone “claim”according to the ICC’s rules, a story of law, as Jo Carrillo (2002:37) notes, took on“the status of myth” and embedded it in “the force of ideology.”

A second purpose is to argue that Western Shoshones successfully contested the mis-representation and duplicity as well as the legal reconstruction of “claim” and “loss.”They inserted wedges into the established relations of power and forced considerationof alternatives to the dominant discourse. The fact that they were ultimately barredfrom realizing a different outcome to the “claim” proceedings derives not from theirhaving embraced the “wrong” definition of “claim” or pursued the “wrong” strategy.Rather, it derives from the hegemony of political-legal assumptions that blocked al-ternative definitions of “claim” and “loss.” The alternatives that Western Shoshonespursued would have threatened and ultimately deconstructed the legitimacy of thedominant political and economic power (a power that the legal discourse of “Indianclaims” was in fact intended to mask). Here I am following Weissbourd and Mertz(1985:624) and others in regarding “even the seemingly routine ‘application’ of rulesto facts as a ‘creative moment.’” This creative moment–actually in this case a numberof “creative moments”– entailed struggles among government representatives, West-ern Shoshone individuals, and Western Shoshone groups. This struggle pitted “treatyrights” and claims to them against the ICC’s conceptualization of “claim.” It broughtWestern Shoshones into contestation with the reduction and essentialization of theirsocial identity to government-recognized “tribes,” and it also promoted resistance tolegal discourse that indexes only white speakers.

Third, scant attention has been paid to how ideological power derived from 18th-century “Enlightenment” philosophical residues influenced these “stories of law” andvalidated the unfettered extraction of wealth from land-based resources. Therefore,the third goal, closely tied to the first, is to access analytical tools that were beinghammered out by pioneering social thinkers, at the very historical moments that legalphilosophy and bureaucratic procedures for accomplishing this prejudicial settlementwere being put in place. These social thinkers were Henry Sumner Maine, Karl Marx,Max Weber, and Antonio Gramsci. Their insights assist in understanding how legalpractitioners contributed to the construction of a legal philosophy whose significancefar outran any specific decisions they made.

These older analytical tools can be used to forge a critique of what Weissbourdand Mertz (1985:656) describe as the way in which “principles that derive fromthe decontextualized structure of language as a system for reference” are used to“regiment explanation.”1 As Weissbourd and Mertz put it,

the continuous use of the same terms for basic categories of law, i.e.,persons, property, powers, and obligations, tends to conceal the dialecticrule and process through which changes in the law occur and fostersthe illusion that the law is a static system of rules deductively applied.[1985:642]

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In fact, categories such as “group,” “property,” “owners,” and “claim” in the WesternShoshone case were used in very different ways: on the one hand, they were used topush a legal contest into a predecided outcome, aided by an “ideology of loss”–and,on the other hand, they were used to contest that foreordained outcome. This thirdpart of the article is therefore both a historical exposition and a theoretical critique.

Here, then, is the Western Shoshones’ story:

Western Shoshones and the Treaty of Ruby Valley

All Shoshone call themselves some variation of num:, or numa, depending on di-alect (Steward 1937:627); Western Shoshones refer to themselves as Newe2 (WesternShoshone Sacred Lands Association 1981). I use “Western Shoshone” because ofits conventional familiarity to most readers. Western Shoshone are northern Uto-Aztekan-speakers who historically made their living by gathering, foraging, hunting,fishing–and here and there a little farming. Aboriginal Western Shoshone social orga-nization has been characterized as resembling a “vast net” stretching from southernNevada and eastern California to southern Idaho and northern Utah, “the peopleof each village being linked to those of villages on all sides by varied economicand social activities as well as by marriage” (Steward 1937:630). AnthropologistJulian Steward (1938) and botanist Percy Train (Train et al. 1982[1957]), indepen-dently of each other, documented Western Shoshones’ continuing residence and useof their traditional land and its resources (Stewart 1978:98–101), even in cases, inwhich Western Shoshones moved onto, or continued to live on the non-Indian set-tlers’ homesteads (Patterson 1982). Most now live in 18 government reservationsand small colonies, half a dozen towns and cities, and on various trust allotmentsand homesteads in Utah, Nevada, and California (Stewart 1978:81–84)–including the290,000-acre Duck Valley Reservation, established by presidential executive order in1877 that straddles the Nevada-Idaho border. Approximately 280 Western Shoshonesshare this reservation with about 600 Northern Paiutes3 (Nevada Indian Commission1971; Clemmer Field Notes1970, 1974 1989).

In 1863 the U.S. government negotiated three treaties with Western Shoshone.4 Allof these treaties were treaties of peace and friendship. They did not cede any land(Kappler 1904:850–853, 859–860; Clemmer and Steward 1986:526–527) My focusis on one of these treaties, the Treaty of Ruby Valley, its relationship to the WesternShoshone land claim, and the role of attorneys in that relationship.

Legal Representation and the Struggle over Western Shoshones’ Treatyand Property Rights

Legal Representation: Milton Badt

Born into a homesteader ranching-merchant family that settled near Wells, Nevada,in 1868, Elko attorney Milton Badt acquired an important early role in WesternShoshones’ efforts to regain land and enforce treaty rights in 1928 (Badt to Oddie 05-10-28; 05-31-28; 06-11-28 in U.S. Senate 1934:14862–14863).5 Badt’s opportunity


to become acquainted with Shoshones came while going to school in the two-roomschoolhouse in Wells. After earning his BA degree from the University of Californiain 1906 and his law degree from Hastings College of Law, he set up a law practicein Elko, Nevada (Marschall 2007). On September 16, 1932 Western Shoshones at-tended hearings along with Badt that the U.S. Senate subcommittee on Indian Affairsconducted in Elko.6 Badt outlined the Western Shoshone legal case. Badt centeredhis argument squarely in the Ruby Valley Treaty. He testified that Western Shoshoneshad never received “one cent” of the $100,000 in annuities promised in the Treaty ascompensation for the “inconvenience” suffered by Shoshones because of roads, rail-roads, emigration, and stage lines coming through their land – as well as mining andhomesteading. He contended that Shoshones had agreed to cede “their country” to theUnited States only when the president established a reservation for them within “theircountry,” and that the reservation that was set aside–the Duck Valley Reservation–wasoutside of “their country” as described in the Treaty and therefore did not qualify as areservation within the Treaty’s terms (U.S. Senate 1934:14851). Badt seemed to be ar-guing for recognition that Western Shoshones owned the entire Treaty area–as well asfor a reservation consisting of all land that was not privately owned within the Treatyarea.

On October 10, 1932, nearly 100 Western Shoshones had met in General Council,entering into an agreement with Badt to represent them as “counsel, attorney, andsolicitor . . . to prosecute their claims against the United States” and “recover theirrights” under the Ruby Valley Treaty (U.S. Senate 1934:14852–14853). Represen-tatives came from Wells, Ely, Elko, Lamoille, Battle Mountain, and Ruby Valley,as well as other communities (U.S. Senate 1934:11848). Eight “chiefs and principalmen” representing the “Western Bands of the Shoshone Nation of Indians” signedthe contract. Another contract with the Western Shoshone in General Council wasexecuted in 1936 (Barker 1974). Badt took the job on a commission basis; he wouldreceive “10 percent of all recoveries” (Crum 1994:103; Barker 1974). The “recover-ies” clause indicates that Badt envisioned a restoration of land and rights as well asa monetary settlement, the latter probably for the $100,000 in treaty annuities thatwere never distributed.7 Badt’s contract with the chiefs and principal men was to runfor ten years. When it was renewed in 1947, it was renewed not with the WesternShoshone General Council, but rather with the “Te-Moak Bands Tribe.” Therefore,it is instructive to determine just what this “tribe” was and how it was formed.

The Te-Moak Bands

One of many ironies in the Western Shoshone case is the way that the Te-Moak Bands8

Tribal Government was formed. The “Te-Moak Bands Tribe” was a creation of theBureau of Indian Affairs (BIA) and was only partially rooted in Western Shoshonesocio-political organization. Comprising people descended from Watatekka Shoshoneliving to the immediate east and west of the Ruby Mountains (Clemmer 1991; Steward1938:149–150), the tribe was named for Temoke, one of several signatories to theTreaty of Ruby Valley whose descendants were “well known” and held influence in


the area (Crum 1994:78). Some attention to just how this “tribe” was formed willreveal that the “Te-Moak Bands” represented only a fraction of Western Shoshones.

According to the Indian Reorganization Act, U.S. government-recognized tribal gov-ernments had to be adopted (or rejected) by each “tribe” in a referendum–“tribe”being defined by the U.S. Bureau of Indian Affairs. In 1936 when the referenda onthe Indian Reorganization Act (IRA) as well as on the Te-Moak Bands Constitutionwere held, they were held only in Elko, where about 200 Shoshones lived on landheld in trust for them by the U.S. government. In fact, other members of the Te-MoakBands were also living on allotments in Ruby Valley and in scattered settlementsalong the Lamoille Creek, the South Fork of the Humboldt River and Bishop Creeknear Deeth, and in Wells. They would later be incorporated into the “Te-Moak Bands.”Whether any of these folks voted on the referenda is unknown. We therefore also donot know, if they were in fact excluded from the vote, how their votes might havealtered the outcome.

The Lamoille and South Fork people acquired land assignments on ranch land thatthe government purchased to form a reservation “for the needy and landless Shoshonefamilies” of the Te-Moak Bands (Indian Claims Commission 1977:323,333). Whenthe South Fork Reservation was officially established in 1941, its residents wereincorporated into the Te-Moak Bands Tribe. Western Shoshones living on smallhomestead allotments established under the General Allotment (“Dawes”) Act of1887 in Ruby Valley were also incorporated into the Te-Moak Bands Tribe (seeCornell 1988:80; Clemmer 1995:87), without their consent and against their wishes(Clemmer Field Notes 1970). Members of the Elko community and the new SouthFork reservation then approved a “Te-Moak Bands Tribal Constitution” setting up aTe-Moak Bands Business Council empowered to represent the Te-Moak Bands Tribe;make decisions for it; and most importantly, enter into legal agreements on its behalf(Rusco 1982). Alida Bowler, Superintendent of Indian Affairs for Nevada, wanted toform a “Western Shoshone Tribe.” The kernel of such a tribe already existed in the“General Council” that had entered into the agreement to pursue treaty rights withBadt. However, BIA functionaries in Washington, DC, vetoed the idea, asserting thatthe Western Shoshone, “scattered over several communities” were not a “recognizedtribe,” even though they had been recognized in a treaty ratified by the Senateand proclaimed by the president (Rusco 1982:188–189).9 Here are the importantpoints: (1) The Te-Moak Bands represented only two small communities, a fractionof all Western Shoshones (Stewart 1978:98; Rusco 1982).10 (2) Western Shoshoneswere in the process of trying to establish a pan-Western Shoshone organization.11

The General Council, set up by Western Shoshones themselves, in contrast, hadrepresentation from at least six communities. (3) In establishing the Te-Moak Bands,and ignoring the already existing General Council, the BIA created an artificialopposition between the General Council, led by Muchach Temoke, and the Te-MoakBands. This artificial opposition effectively encouraged competition between the twogroups for legal representation of the Western Shoshone Indians. This competitionwould become salient by 1947, when Badt’s contract with the General Council andthe eight headmen came up for renewal.


The Indian Claims Commission

In 1940, Ernest Wilkinson, an attorney who was well connected in Washington, D.C.,became associated with the Badt law firm (Crum 1994:124; Barker 1974). Badt lefthis profession as a barrister in 1945 when he accepted an appointment to the NevadaSupreme Court. The Western Shoshone claim was now essentially in the hands of theWilkinson law firm.12 In 1946, Congress passed the Indian Claims Commission Act,which required the commission “to hear and determine . . . claims against the UnitedStates on behalf of any Indian tribe, band, or identifiable group of American Indians”(U.S. Congress 1946:1050). The act’s stipulations as to how claims could be filedwere extremely loose. Any legally constituted political entity officially recognizedby the U.S. government could file a claim on behalf of an “identifiable group.”Eventually, the commission defined all Western Shoshones as a single “identifiablegroup.” Although a subsequent amendment provided for 20 percent of any monetaryjudgment to be distributed to tribal organizations, Congress’s original intent was todistribute money to individual Indians in order to encourage the “progress of theIndians who desire to be rehabilitated at the white man’s level in the white man’seconomy” (Congressional Record 1946:5312–5317).13

The ICC subsequently decided that it did not have the authority to return land, althoughit could declare that Indian title to particular tracts had never been extinguished.Attorneys would get 10 percent of the award. Forbes, quoting a 1961 Indian ClaimsCommission statement (9 ICC 417 (1961)), reports that an amendment to the act in1961 specified that once the award was made and the money was in the hands of theIndians, such payments

shall finally dispose of all rights, claims, or demands which said petition-ers or any of them . . . could have asserted with respect to said tract . . . andsaid petitioners, and each of them . . . shall be barred thereby from as-serting any such rights, claims, or demands against defendant (the U.S.Government) . . . as aforesaid shall constitute a final determination of saidclaim, . . . the parties thereto waiving any right to appeal from or otherwiseseek review of such determination. [Forbes 1967:45]

Thus did the Claims Commission redefine “claim” as not a claim for land but rather asa claim for money (Forbes 1967:45; see also Orlando 1986:255; Rusco 1992:256; andnote that Rusco 1991:356 also cites 25 U.S.C. 70u[a] (1976) on this point). “Rights”became not treaty rights but rather rights to monetary compensation for land lost, tobe confirmed or denied in legal discourse.

Just a few days after passage of the ICC, Wilkinson stated, “If we prosecute theWestern Shoshone case, we should do it on the theory of loss of immemorial posses-sion” (Crum 1994:125). Thus, Wilkinson had already conceded an important legalpoint, one on which many Western Shoshones would strongly disagree, before heeven began arguing the case: that the land of the Newe had already been “lost” andcould not be recovered. And yet Wilkinson repeatedly assured the Temoak BandsCouncil that the ICC proceedings would have no effect on present Western Shoshonetitle or possessory rights (Orlando 1986:266). Indeed, much of the land described as


being within the boundaries covered in the Treaty had never been homesteaded, muchof the land taken for mining had been mined and abandoned, and only $9,410.11 ofthe $100,000 of compensation promised in the Treaty for the “inconvenience” ofbuilding roads and railroads, mining, and homesteading had ever been paid (IndianClaims Commission 1977).

The ICC’s model of rationality, then, had created a double bind: it offered a lose-lose trade-off. Western Shoshones could accept a monetary settlement and concedetheir land-and-treaty rights, or they could give up any kind of compensation. Inorder to receive compensation, they had to accept a disadvantageous translation ofthe land-and-treaty-rights values into an argument based on commensurable “loss.”According to this translation, Western Shoshones had once had property rights that,before they were lost, had a monetary value in market economy terms. A dollar figurewould be ascertained, thereby costing the Western Shoshones the right to assert anyclaims available under the treaty-rights model – but at least this would give themthe benefit of a monetary settlement. This benefit would be measurably “better”than the only other alternative provided by the Claims Commission: a decision thatWestern Shoshones had never had any rights to any land and therefore could expect nomonetary settlement (which was the U.S. government attorneys’ standard argumentin all the claims cases).

Before considering how Western Shoshones contested this model of “rationality,” itis useful to ask whether or not this “ideology of loss” was an inevitable outcome ofthe encounter between indigenous peoples and colonizing nation-states, or whetherthis “rationality” of forfeiture might have only been the product of a kind of perverse,convoluted reasoning. In order to gain perspective on this question, it is appropriateto examine several then-current early commentaries on the state, bureaucracy, andproperty rights of indigenous peoples. These commentaries analyzed how contesta-tions of hegemonic legal ideologies such as the “ideology of loss” proceeded withinlegal frameworks intended to enforce them.

A Different History: Maine, Marx, Weber, Gramsci–and Marshall

It is laws, rules, regulations, procedures, protocols, principles—and, most impor-tantly, legal philosophy–that undergird the disjuncture between Western Shoshones’understanding of property rights and the Claims Commission’s and the Shoshones’own attorneys’ approaches (which, as will be demonstrated, failed to acknowledgethose property rights). Current scholars have laid the foundations for a full analy-sis of this disjuncture; as Sally Engle Merry (1992:357) notes, “Colonialism pulledentire legal systems across national borders and imposed them on very different so-ciocultural systems.” However, earlier scholarship also provided potential sources ofcritique and caution. We could begin with the work of a renowned anthropologicalancestor, Henry Sumner Maine. By 1884, Maine was already arguing that “Romanlaw”–on which “modern law” and therefore colonial law was based–could not ade-quately justify usurpation of land by colonizing European nations, especially whenthere was opposition or when boundaries were unclear (Maine 1970 [1884]:241;Pollock 1963:235). Maine argued, for example, that the legal principles


characterizing village society in India could not, and should not, be replaced in-stantly and wholesale with British law. He noted that “the Village Community ofIndia is at once an organized patriarchal society and an assemblage of co-proprietors.The personal relations to each other of the men who compose it are indistinguishablyconfounded with their proprietary rights” (Maine 1970 [1884]:252). He character-ized the “attempts of English functionaries to separate the two” as “some of the mostformidable miscarriages of Anglo-Indian administration” (1970 [1884]:252).

Maine was critical of colonizing nations’ attempts to transform “ ‘customary law’ . . .

from a subtle, adaptable, and situational code to the system of fixed and formalrules” (Merry 1992:365) represented in the old “Roman principle of Occupancy[in] the acquisition of sovereign rights in newly discovered countries” (Maine 1970[1884]:239). This principle allowed, for example, the victor in a war to acquire “thefull rights of dominion,” including usurpation of property, in the process of occupyingthe invaded country (1970 [1884]:238–9). It assumed that ownership of propertybased in possession was part of the “natural” state of humankind. But Maine notedthat in fact there was nothing “natural” about individuals possessing property.14 Mainecontrasted “ancient” law recognizing collective property ownership and “modern”law privileging “individualistic” ownership. He further argued that this doctrine led touncertainty on key points such as the extent of the territory acquired, and the natureof the acts which were necessary to complete the “apprehension or assumptionof sovereign possession” (1970 [1884]:241). He demonstrated that when European(“modern”) law was imposed “on a vast scale” throughout the world between thesixteenth and nineteenth centuries, a kind of legal pluralism was created that couldpit pre-colonial conceptualizations of personhood, property, labor, and obligationsagainst legal regulations supporting a capitalist economy (see Merry 1992:363–364).

In his endnotes to Maine’s book, editor Frederick Pollock emphasizes and clarifiesparts of Maine’s discussion (Pollack 1963:435–7). Most importantly, the “doctrinethat occupancy produces ownership” as a “legal right” is not universal in time orspace–nor is the idea that everything ought to have an owner; and the assertion ofownership on the basis of occupancy depends upon the existence of “no opposition”(1963:435). Even if a colonial claim were made on the basis of the land actuallybeing occupied, existing acknowledgment of indigenous ownership rights would –even under the terms of the doctrine itself–create a problem for a colonial claim of“occupancy.”

The 1863 Treaty of Ruby Valley did, in fact, acknowledge Western Shoshone occu-pancy and therefore possession of a large tract of land. It also affirmed that permissionfrom the Western Shoshones would be necessary before others could enter that landand occupy it for particular purposes.15 However, no political-legal structure was putinto place to support that ostensible empowerment. The Treaty’s promise was thusrendered invisible from the point of view of the dominant ideology, the “ideology ofloss.” As we will see in the following section, Western Shoshones who referenced theTreaty wedged this empowerment back into the legal discourse surrounding “claim”by continuing to assert claims to property as opposed to claims to money for rightsand property “lost.” In the Western Shoshone case, a great deal of land characterized


as “lost” had in fact not even been occupied by others. How, then, did attorneys for theWestern Shoshone come to argue that all Western Shoshone land had been taken–thatis, occupied and therefore owned by some one else?

They were able to do this because of a then-dominant legal philosophy setting forth theideology of loss and “calculable rules.” In his now well-known essay of 1845–1846,“The German Ideology,” Marx asserted that an artificial separation is often createdbetween “ruling ideas” and the “ruling individuals” who benefit from these ideas byphilosophers (Marx 1972[1845–1846]:138–139).16 One way in which philosophersachieve this separation is by producing a concept and tracing the development of theconcept through history, so that it appears that it is the ideas rather than the peoplethat “rule” society–and also rule history. The ideas are then associated with, andin effect “changed into . . . a series of persons . . . the ‘thinkers,’ the ‘philosophers,’the ideologists, who . . . are understood as the manufacturers of history” (1972[1845–1846]:138–139). The power and rule of actual, empirically documentable persons,says Marx, is masked by the “sway” of “ideas” (1972[1845–1846]:137).

In this case, we are speaking of an ideology embedded in law. Antonio Gramsci madeit clear that a specific ideology indeed is embedded in law. In his Prison Notebookshe noted: “If every State tends to create and maintain a certain type of civilizationand of citizen . . . , and to eliminate certain customs and attitudes and to disseminateothers, then the Law will be its instrument for this purpose (together with the schoolsystem, and other institutions and activities)” (Gramsci 2006[1971]:71–85). He goeson to note that “the State must be conceived of as an ‘educator’ . . . an instrumentof ‘rationalisation’ . . . . The Law is the repressive and negative aspect of the entirepositive, civilizing activity undertaken by the State” (Gramsci 2006[1971]:71–85;cf. Comaroff and Comaroff 1991:18–23). The people in charge, then, can imaginethat it is the framework given by ideas such as “freedom” or “market,” rather thansocial power, that directs their own actions (as well as those of others). Lawyersand government agencies would proceed as if the “sway of ideas” governed socialrelationships, property, and property transfer–and as if government’s key role was tosmooth the path of individuals toward initiating important production activities suchas mining through “calculable rules” (cf. also Comaroff and Comaroff 1991:18–23).

As many anthropologists and social theorists have noted, these calculable rules areone of the most important elements shaping modern bureaucracies. They can in theorybe applied uniformly and without regard to any person’s or group of persons’ specialneeds. “In particular,” noted Max Weber, the seminal social theorist writing on thistopic, “only bureaucracy has established the foundations for the administration of arational law conceptually systematized on the basis of ‘statutes’” (2006 [1968]:58).In other words, the Bureau of Indian Affairs, on the one hand, and the Indian ClaimsCommission, on the other, provided what Weber called the “impersonal and func-tional” purposes and context through which the lawyers worked (2006[1968]:51).Despite the fact that the attorneys ostensibly represented the rights and interest ofreal, living people, they were able to bypass and ignore the wishes of those peoplesimply by following calculable rules set down by the two bureaucracies that routedtheir actions in a particular direction.


Weber noted that in his Germany of the time (1890–1920), “the conception of themodern judge as an automaton into which legal documents and fees are stuffed at thetop in order that it may spill forth the verdict at the bottom along with the reasons,read mechanically from codified paragraphs . . . is angrily rejected,” but he addedthat nevertheless, “a certain approximation to this type would precisely be impliedby a consistent bureaucratization of justice” (2006 [1968]:58). The verdicts of theIndian Claims Commission take remarkably similar forms; they all follow a certainformula. And in the cost-benefit calculation of commensuration, in the words ofWendy Espeland (1998:223), demands are made that “may violate, even obliterate,other social boundaries that help order our lives and define us,” such as the socialboundaries that distinguish Western Shoshones who value land as a cultural resourcefrom those in dominant society who value land as an economic resource.

As C. Wright Mills observed, another important feature of bureaucracy serving theelite is that as much as it is an “obstreperous and clumsy, hide-bound and snarledwith procedure, . . . it survives changes of political administrations” (Mills 1956:236).The Indian Claims Commission did this admirably; although the initial membersappointed in 1946 had expired or retired, the ICC had never altered its proceduresor its mission when it was finally dissolved in 1978. The Bureaus of Indian Affairsand Land Management also maintained policies formulated in the 1940s through the1970s. It was the BIA and the BLM that engaged the gears of the legal machine thatsquelched attempts to counter the legal ideology of the doctrine of discovery, and thatsuppressed efforts to contest the production imperative for extracting gold.

This legal ideology was developed by John Marshall, Chief Justice of the UnitedStates, in his several rulings regarding the Cherokee Nation in the 1820s and 30s(Fletcher v. Peck, 10 U.S. (6 Crn.) 87 (1810); Johnson and Graham’s Lessee v.M’Intosh, 21 U.S. (8 Wheat) 543 (1823); Cherokee Nation v. Georgia, 5 Pet. 1(1831); and Worcester v. Georgia, 6 Pet. 515 (1832); see also Holden v. Joy, 17 Wall211 (1872), and Cohen n.d. [1942]:287–94, 610, 614–15, 627; Price and Monroe1983:538–42). Thus when the Cherokee refused to cede their land, U.S. Governmentofficials simply turned to leaders representing a fraction of the Cherokee Nation.Those leaders agreed to sign a treaty in 1835 authorizing the Nation’s removal and thesubsequent “Trail of Tears” (Cornell 1988:48), so that gold miners and homesteaderscould move in.17 These rulings established the concepts of the “doctrine of discovery,”and of “aboriginal title” based on occupation of land from “time immemorial” –neither concept having precedent in European legal traditions; the rulings also set thestage for development of the “ideology of loss” (Deloria and Lytle 1984:2). Absentknowledge of the actual conceptualizations of land use and possession that governedin aboriginal North America, the legal philosophy emanating from the Supreme Courtdeclared that the “doctrine of discovery” had given European powers the right toextinguish “immemorial possession.” A further component of “aboriginal title” wasthat the United States declared itself to have taken over the rights asserted at discoveryfrom England, France, and Spain upon purchase or conveyance by treaty from thoseEuropean powers – rights that, Maine (1970[1884]) noted, were at the very leastproblematic.18 Thus was legal discourse bent to the purpose of “legally” colonizing


tribal cultures, “the hegemony of the law . . . seamless and endlessly unfolding acrossthe horizon of the history of Native Americans” (Gooding 1994:1194).

This artificial conceptualization of aboriginal title also brought along with it anequally inapt concept of “nation” – which encouraged the fiction that as “nations,”Indians had “governments” with “leaders” (e.g., “chiefs”) in the same way found inother nations with whom the United States had treaties (Deloria and Lytle 1984:9).“Indian nations” would then sign treaties that would deed over property to the UnitedStates in “treaties of session” that would effectively extinguish aboriginal title. TheTreaty of Ruby Valley, however, was a “Treaty of Peace and Friendship,” not a “Treatyof Cession” (Kappler 1904:851–853).

Now it was just exactly this process that Maine targeted as being so problematic. Infact, possession could not be obtained simply by setting foot on a tract of land and“occupying” it, because it was usually impossible to determine just exactly what “it”(the tract of land) was. In particular, a tract of land could not be defined and occupiedif there was opposition. Marshall tried to get around this sticking point by noting thatthe extinguishing of title had to be quite deliberate and unmistakable. But he also ruledthat the Indian nation in question had no choice in the matter: if the “discovering”nation decided to extinguish, then the aboriginal occupiers had to go along with theprocess. Note that this is exactly the point on which Maine complained that RomanLaw – and therefore also English Common Law – were inadequate. For example, bycontrast with the United States, nearly all of India remained in the possession andownership of the native inhabitants; the British ended up owning almost none of thesubcontinent, even though they “occupied” and ruled it.

Marshall and his fellow justices on the Supreme Court managed to declare theexistence of a “doctrine” –the doctrine of discovery– that trumped both Romanlaw and English Common law.19 The doctrine of discovery, from an indigenouspoint of view, was a doctrine of loss in which the colonizer “discovered” faceless“occupiers” that were knocked down, again and again, like so many dominoes. Theactual indigenous land-holders, in this legal ideology, were replaced by what JoCarrillo (2002:37) calls a “symbolic Indian” – an illusion, a “fiction created fromthe documents of the colonizer.” But Western Shoshones were not willing to allowthemselves to be replaced by this symbolic Indian.

Contesting the Legal Frame

Some Western Shoshones were drawing on their own normative order to “re-sist . . . circumvent . . . and subvert . . . the dominant system” (Merry 1992:358). InJanuary 1947, a number of Shoshone leaders who had witnessed or been involved inthe original thrust for recognition of land rights in the 1920s20 came together and de-cided to (1) oppose the hiring of the Wilson-Wilkinson team; (2) oppose the filing ofa claim with the ICC because it would result in money, not land; (3) try to hire otherattorneys; and (4) pursue land entitlement under the terms of the Treaty of RubyValley. These Western Shoshones obviously considered the original treaty to be acore and defining source for legal claims.21 It is clear from the testimony in 1932 and


from later recitations at meetings that a substantial proportion of Western Shoshonesinterpreted the treaty as granting Western Shoshones continued collective ownershipof their land. Western Shoshone jurisdiction over the land, then, could be assertedonce the activities permitted under the treaty–mining, homesteading, etc.–had beendiscontinued, and this jurisdiction could always be asserted over land that had neverbeen used for purposes defined in the treaty.

The position taken by the General Council of 1932 and the “chiefs and principalmen” directly countered the ICC’s ideology of loss.22 The ICC’s new legal framecould not accommodate their position. However, a three-member claims committeeformed by the Duck Valley Shoshone (a group later characterized as unrepresentativeby other Western Shoshones)23 called a separate meeting in Elko on February 10,1947. The BIA’s agent to the Western Shoshone told the assembled people that the1936 contract with Milton Badt had expired, and that the Western Shoshone nowneeded lawyers to represent them before the Indian Claims Commission. In addition,they would also now need a legal entity officially recognized by the U.S. government,such as the Te-Moak Bands, in order to contract with the lawyers to present the claim(Crum 1994:125–126). Approximately 50 people attended. At the meeting, Indianagent Diehl urged the hiring of the Wilson-Wilkinson team. Diehl held sway. TheTe-Moak Bands hired the Wilkinson firm to represent all Western Shoshones, eventhough the Te-Moak Bands at that time represented only two groups: the South ForkCommunity and the Elko Colony.

For the first time, there was now a clear split not only in legal strategy with regardto land rights, but also between groups: those who favored the “treaty” strategy, asopposed to those who favored the “Claims Commission” strategy. In March 1947,the “treaty” people went to Washington, D.C., to meet with Wilkinson, in an attemptto persuade him to represent their position favoring return of land under the treatyprovisions. They were unsuccessful. Upon their return, they instigated what wouldbe the first of many alternative meetings at the Battle Mountain Indian Colony(Crum 1994:127). They organized a “Te-Moak Tribe,” which had no connectionto the Te-Moak Bands and had no formal recognition from the state or federalgovernments. This “Tribe” was the successor to the General Council and the “chiefsand headmen” of 1932, and it would attempt to cut across the artificial reservationand tribal boundaries that had been created (Rusco 1992).

Wilkinson knew that the Te-Moak Bands and the Duck Valley Shoshones constitutedonly a fraction of all Western Shoshones–undoubtedly less than a quarter of them(Crum 1994:127). It is not clear whether he knew about the counter-organizingefforts that were underway, but it is likely that he did. Between the end of March1947 and June 1, 1947, Wilkinson’s new clients, the Te-Moak Bands, sponsoredthree more claims meetings. Prior to the June 1 meeting, BIA agent Diehl visitedvarious Shoshone communities and sent official notices to 34 different communities,24

inviting them to send delegates to the June meeting (Crum 1994:129). Over thefollowing 18 years, those who went along with the Claims Commission (rather thanattempting to enforce treaty rights and regain land) attended meetings called by theClaims attorneys. Those who wanted to pursue the original mandate to press for treaty


rights held separate meetings. They spoke a different discourse from that of the ICC,rejecting the attempt to undermine their capacity to pursue what might be called legalpluralism – both within an international legal framework (Merry 1992:262; Morris1986) and within what would eventually become U.S. case law (Gooding 1994:1197–1198). People who attended one set of meetings rarely attended the others, althoughsometimes the “treaty faction” attended claims meetings, and then expressed theirdissatisfaction and disagreement with how things were going by walking out.

By 1958 Wilkinson had taken a junior partner, Robert Barker, in the claims cases. In1959, their contract with the Te-Moak Bands was renewed (Agreement Amendingand Extending Attorneys’ Contract with Wilkinson, Cragun, Wilkinson, Barker andGormley Aug. 21, 1959), and Barker and Wilkinson began making their argumentsbefore the ICC. Wilkinson and Barker argued that, aside from the Duck ValleyReservation, all the Western Shoshones’ “lands had been taken as a result of gradualencroachment of White miners and homesteaders; railroads, and U.S. Governmentactions” (Report of Claims Attorneys to Claims Committee of Western ShoshoneIdentifiable Group, June 26, 1974:2). Wilkinson never advanced the idea that not allof Western Shoshone lands had been “taken.” Between September 28 and October 1,1965, claims attorney Robert Barker held four meetings with Shoshones in Austin,Ely, Owyhee, and Elko so that Western Shoshones could approve the attorneys’request for a federal loan of $145,000. This loan would be payable when the finalmonetary award was made. Barker reported that a majority of the 236 WesternShoshones attending the meetings had voted to approve the loan. The Elko meetinghad the heaviest attendance. Barker reported that “some 60 persons did leave withoutvoting,” leaving 89 to vote. “However,” noted the Wilkinson report, “even if all thosepersons had cast a no vote, the proposal would have been overwhelmingly approvedby the Western Shoshone” (Crum 1994:178–179; Rusco 1992; Report to WesternShoshones on Claims Case No. 326, October 5, 1965).

However, as political scientist Elmer Rusco (1992:347) has noted, the 236 votesrepresented a tiny fraction of the total Western Shoshone population. Also, as notedabove, many opponents of Wilkinson and Barker’s strategy boycotted Barker’s meet-ings. And the Native Nevadan and the Nevada State Journal reported a total of 300people at the Elko meeting, with about half walking out, thereby casting what oneparticipant later called “an Indian vote.” In this account, 150 people remained at themeeting. But Carrie Dann wrote to the journal in response to its article, stating, “Imust contradict your reporter. The number of Indians who remained was about 45(adults and children),” far fewer than either Wilkinson’s or the journalist’s figures(Forbes 1967:258).

The Claims Case: First Legal Decision

As Rusco (1992:347) pointed out, Wilkinson and Barker “may have . . . realized theunrepresentative character of the Te-Moak Bands Tribal Council,” but they alsoprobably realized the strength of growing opposition. Barker set up what he calleda “special committee.” Seven persons from six of the 18 Western Shoshone reserva-tion and colony communities were “selected to act on the special committee,” and


were approved by majority votes in meetings in four places (Barker 1978a). It isunclear whether they were nominated through some sort of community consensusor simply selected by Barker. In any case, the special committee fulfilled whateverdecision-making protocols were necessary for the following 15 years–until 1980(Crum 1994:178)–despite the fact that the Te-Moak Bands were the contractor ofrecord.25 Formation of the committee ostensibly broadened the network of peopleincluded in information loops, and the number who could have input into the claimsprocess. But the committee had no power to direct the actions of the attorneys. There-fore, the rigid bureaucratic rules governing the overall process limited any broadeningeffect. Mainly, formation of the committee obviated the necessity of holding generalmeetings at which the vocal opposition could turn up to pursue their oppositionalagenda.26

In 1972 the Wilkinson firm, government attorneys, and Claims Commission agreedon a single “date of taking” of Western Shoshone land: July 1, 1872. The land wouldbe valued according to land, timber, and mineral prices of 1872, the minerals beingfigured at a 12.5 percent royalty rate. In 1977, the Commission made its final ruling–anet award of $26,145,189.89.

Certain procedures were mandated during these final stages of the claims proceedings.The BIA was required both to hold meetings that would determine how the awardsshould be paid and to prepare a roll of all descendants of the group on whose behalfthe lawsuit was filed. Accordingly, the BIA called a meeting with Western Shoshonesin the Elko Armory in August 1973. Opponents turned up en masse. They urgedShoshones to refuse the claims money, argued for the priority of treaty provisions,challenged the right of the government to pay the prices of 100 years ago when itwas just now seeking to quiet Indian title to the land, and questioned the legality ofthe Wilkinson firm’s claim to represent Western Shoshones (Crum 1994:179). At thesame time, the BLM sued Mary and Carrie Dann for trespass, threatening to roundup and confiscate their livestock that grazed on land described as “their country” inthe 1863 Western Shoshone Treaty of Ruby Valley. This lawsuit initiated a seriesof court cases and rulings that alternately supported and denied the validity of theDanns’ position, and also alternately affirmed and denied that the ICC proceedingswere a means of taking title to Western Shoshone lands for the first time (Clemmer2004).

Continued Struggle: Attempts to Amend the Claim

Barker’s special committee continued to operate, but it was in disarray. One memberresigned. Another refused to travel to Western Shoshone communities for meetings.Yet another withheld his signature from documents produced by the attorneys forthe Claims Committee to sign (Clemmer Field Notes June 26–July 17, 1974). Theopponents formed the Western Shoshone Legal Defense and Education Committee(WSLDEA) (later the Western Shoshone Sacred Lands Association) (WSSLA). InNovember 1976, attorneys for the WSLDEA were invited to make a presentationto the Te-Moak Bands Council. At the meeting’s conclusion, the Te-Moak BandsCouncil made a historic decision. It voted three to two to file a motion with the ClaimsCommission to stop the claims proceedings. “The Temoak Bands,” said the resolution,


“was never presented the opportunity to choose between including lands in the claimand attempting to assert title to said lands” because “it appears that substantial portionsof the lands included in the claim may actually belong to the Western Shoshone”(Resolution 76-TM-23 and Minutes of Te-Moak Bands Council Meeting AuthorizingMotion to Stay ICC Proceedings. Nov. 10, 1976). Furthermore, the resolution arguedthat lands that were then under BLM jurisdiction might easily be administrativelytransferred to an entity representing all Western Shoshone (WSSLA 1981). Morethan two hundred people from four communities, including two communities withoutrepresentation on the Temoak Bands Council, signed a petition “in support of TemoakBusiness Council to Protect Western Shoshone Rights” (Western Shoshones 1977).(The WSSLA gives the figure as 330 (1981:35).) The resolution was sent to attorneyRobert Barker.

Barker refused to honor it. The Te-Moak Bands cancelled the Wilkinson firm’scontract. The firm ignored that action, too (Barker 1978b). The Temoak Bandsrequested the ICC to stay the proceedings while new attorneys27 that it had hiredfiled an amended claim (which included a request for recognition of title to landthat had not been homesteaded or acquired for settlements, roads, or railroads). Butthe ICC denied the motion for a stay (Sonosky, Chambers and Sachse 1977). TheWestern Shoshone Sacred Lands Association also tried to intervene in the Claimsprocess, but the ICC rejected the petition (Inter-American Commission on HumanRights 2001:117, 118).

The last procedure mandated by ICC rules was that a final public hearing of recordbe held at which any and all potential recipients of the award–in this case all WesternShoshones–would formally approve the award and discuss procedures for dividingthe award between tribal governments and individuals. The BIA set up the meetingin the Elko National Guard Armory for July 26, 1980. This event became a case ofan indigenous group using the terms provided by the dominant colonizing nation toblock the outcome anticipated by the ICC and the BIA (see Merry 1992:368). Speakerafter speaker called for refusing the award and initiating procedures for getting theirland returned. “The Indian Claims Commission process is being used . . . to depriveus of our land rights,” said Raymond Yowell. “When this case was originated, it wasonly to assert our treaty rights, it was never intended by our tribal elders to terminateour treaty rights. Yet, this is exactly what is happening” (WSSLA 1981: 20, 38).Speakers were limited to a few minutes each and, although several hundred peopleinitially attended, many left as the meeting dragged on. The final vote was 67 againstaccepting the award and only 11 for it.

Amazingly, in light of the lengthy history to the contrary, Congress respected thisdecision of record and refused to grant the Interior Department an extension toround up yea-sayers and reverse the decision. The lawyers, however, were paid their10 percent– $2.6 million–in 1981; the rest of the award was placed in a trust fund.From the government’s viewpoint, Western Shoshones’ land rights and claims hadbeen extinguished, because appropriation of the award to the trust fund constituted“payment” (Orlando 1986: 242–243; 272–273; see also U.S. v. Dann, 470 U.S. 39(1985); U.S. v. Mary Dann and Carrie Dann Appeal 1989 (see Appendix)).


However, Western Shoshones committed to treaty rights did not accept this inter-pretation and took further action to pursue legal means to affirm their rights. InJanuary 1984 they formed the Western Shoshone National Council, with representa-tion from nine of the twelve reservation and colony communities in Nevada whereShoshones live and also from the newly recognized Timbi-sha Shoshone Tribe fromDeath Valley, California; this council was supposed to negotiate a legislative res-olution of land rights issues as well as the money claims (Luebben, Hughes, andTomita 1985; Rusco 1992:350). The National Council sought and obtained offi-cial recognition from the Department of the Interior’s Deputy Assistant Secretaryfor Indian Affairs because it was “clear that the Western Shoshone National Coun-cil represents by far the majority interests of the Western Shoshone people” (Fritz1984). The National Council’s attorneys even managed to get bills introduced intoCongress that would have included land as well as money to settle the treaty-basedclaim. But the Ninth Circuit Court of Appeals quashed those legislative initiativeswhen it ruled in 1989 that payment of the ICC claim “bars the Danns from assert-ing the tribal title to grazing rights just as it bars their asserting title to the lands”(U.S. v. Mary Dann and Carrie Dann Appeal 1989 (see Appendix); Rusco 1992:356).28

The Danns did not give up, however. In 1993, the Indian Law Resource Center broughta petition on their behalf to the Inter-American Commission on Human Rights, whichruled in 2001 that the United States had “failed to ensure the Danns’ right to prop-erty . . . in connection with their claims to property rights in the Western Shoshonesancestral lands” and recommended that it do so (Inter-American Commission onHuman Rights 2001:147–148).

The Western Shoshone National Council also did not give up. It brought the case tointernational venues (e.g., to the Working Group of the Subcommission on IndigenousPopulations of the UN Human Rights Council in Geneva (Clemmer Field NotesJune 18 and July 13, 1989) and to the European Parliament (see Ahern and Breyer1998). Many Western Shoshone consider their claim to be still legally alive as a treatyright. According to Elmer R. Rusco, Shoshones filed a lawsuit in U.S. District Courtin Reno, Nevada, seeking to invalidate the 1977 ICC judgment, and to reinstate theclaim legally on the basis of the treaty. The court transferred the case to the U.S. Courtof Appeals for the Federal Circuit, which dismissed the case, asserting, among otherthings, that the Western Shoshone claim had already been adequately considered; italso asserted that too much time had passed since 1979, when the Court of Claimshad ruled against the Te-Moak Bands’ efforts to reopen the case (U.S. Court ofAppeals for the Federal Circuit 2008). Despite dogged persistence and surprisinglegal victories, the Western Shoshones have not succeeded in obtaining their coresubstantive goal in terms of continuing rights to land.29 In June 2004, Congress votedto distribute the Western Shoshone claims monies, now grown to $145 million, largelyon the basis of a “Western Shoshone Claims Steering Committee” (Young 2004; U.S.Congress 2004), set up as the result of a Salt Lake City attorney’s circulation ofa petition favoring distribution among Western Shoshones in the 1990s (personalcommunication from Rusco to author 2003). Distribution of the funds began in 2007(U.S. Court of Appeals for the Federal Circuit 2008).


Discussion and Analysis: How Economic and Political Ideas ShapeAssumptions, Rules, Bureaucratic Processes, and Laws

Had the original legal argument from 1932 gone ahead in the form of a lawsuit,30

and had it not been folded into the boilerplate Indian Claims Commission claimformat, Western Shoshones might well have had the power of deciding whether ornot Newmont got a lease at White Knife Quarry. Even though the original treatyauthorized mining, the Indian Claims Commission did, in fact, authorize payment ofroyalties on the dollar value of the ore that was extracted. At the very least, when theCarlin Gold Mine was opened in 1965, Shoshones should have gotten royalties onthe dollar value extracted–from 1965 until the claim was unilaterally declared settledby the courts in 1985.

On the one hand, the attorneys involved in the case from the beginning utilizedsubterfuge, evasion, duplicity, manipulation, unilateral actions, and failure to com-municate in order to avoid hearing or acting on the wishes of the clients whom theypurportedly represented. Moreover, in hindsight, the decisions, nondecisions, andevasions that denied treaty and land rights (as well as Newmont’s actions in miningin defiance of those rights) surely violate any number of provisions of the Declarationon the Rights of Indigenous Peoples passed by a 143 to 4 vote by the United NationsGeneral Assembly in September 2007.

On the other hand, apart from any choices made by the attorneys, the legal frame-work provided by the U.S. government itself created a difficult double-bind for NativeAmericans who wanted to retain their rights to ancestral land. The BIA’s creation ofthe Te-Moak Bands Tribe permitted the attorneys to ignore the General Council thathad originated the claim for treaty rights and, therefore, the claim itself. The kind ofrole the BIA played in setting up “tribes” and “tribal councils” has been documentedfor a number of communities (Clemmer 1978:37–40, 59–70; 1995:144–65, 210–21;Biolsi 1985, 1991, 1992). On the surface, these councils were supposed to be fo-rums that endowed individuals with collective democracy – with the empowermentostensibly conveyed through voting and representation. Instead, tribal councils gen-erally became mechanisms for implementing the agendas of dominant political andeconomic interests (Biolsi 1991:26; 1992:181). These interests were reflected in the“ideology of loss” that guided the ICC proceedings. The Te-Moak Bands Tribe wasused to implement these agendas and to accept the “ideology of loss” for more than30 years, until it was able to struggle out from under the dominant legal ideologyimposed upon it.

The dominant ideology contributing to land loss in this case derives from the legal phi-losophy that flourished during the period of “Manifest Destiny” in the 19th century.This legal philosophy provided the basis for the “ideology of loss” that underpinnedthe ICC proceedings and contradicted native understandings of what “claim” meant.It proceeds from the story of “Native Americans’ destruction or their assimilation enmasse” (Gooding 1994:1194), on the premise that they had previously lost varyingdegrees of land, culture, sovereignty, language, and identity. In the cases in whichland, culture, language, and identity were only partially lost, at least a limited degreeof sovereignty should arguably have been permitted by the U.S. government. This


limited sovereignty was nominally provided by the creation of “tribes” – but thosetribes could be used, as Biolsi (1991:26; 1992:181) notes, as mechanisms for im-plementing the agendas of dominant political and economic interests. The fictionalIndian, “created from the documents of the colonizer” (Carrillo 2002:37) was trottedout again and again to rubber-stamp treaties and agreements of cession and removalwhenever the real Indians balked, and finally as a disputant in the ICC proceed-ings. This legal philosophy, then, was used to hide displacement, dispossession, andarguably blatant theft behind the mask of “appropriately adjudicated” justice. Theappearance of justice in these cases cloaked the state’s appropriation of law in serviceto America’s unprecedented economic growth.

Carrillo (2002:3) writes that the legal narrative holding “magic” “fixed by power,”a “symbolic text with a political function,” was only one of the possible legal nar-ratives produced by historical events and processes of the time period. SociologistWendy Espeland (1998:41) also aptly identifies the presence of different, competingrationalities in her study of the dispute involving the Yavapai Tribe’s opposition toa dam which the U.S. planned to build on their land. Just as Espeland describes inthe Yavapai case, we see in the Western Shoshones’ case how the mediation of law,organizational bureaucracy, and ideology generated contradictory interpretations andcompeting and mutually contested rationalities. The ICC asserted a redefinition of“claim” that ultimately Western Shoshone did not accept. Thus the redefinition ac-tually strengthened what Espeland (1998:1–42) would call “contested” (or perhaps“contesting”) rationalities, rationalities pitting a cost-benefit model of “commensu-ration” based on money against a set of cultural values prioritizing land and self-government based on treaty-derived sovereignty. In cost-benefit analysis, all valuesare subsumed under a single value system that can be subjected to an “ideal measure”that demands expectations to be adjusted to fit it, and “commensuration” is usedto create a “relation between two attributes or dimensions where value is revealedin comparison” (Espeland 1998:22–27). Commensuration submerges “disparate oreven idiosyncratic values” into standardized forms (Espeland 1998:22–7). In thiscase, however, Western Shoshones were able to accomplish an assertion of disparatevalues within the national legal system (Merry 1992:358, 368). This assertion coun-tered the image of the conquered Indian that had “lost” land, ostensibly identity, andsovereignty, crushed by the forces of “Manifest Destiny.” Western Shoshones refusedto be the “fictional Indian” (Carrillo 2002:37) who would finally be dispensed with,using a bureaucratic process which fixed the “ideology of loss” within the dominantlegal narrative.

Conclusions

Today scholars, along with the general public, are increasingly aware that NativeAmerican sacred places and traditional cultural properties are often located in placesthat are ostensibly privately or governmentally owned. We might be tempted to hearin this case a straightforward and timeless story of indigenous peoples’ oppositionto a land grab by a powerful corporation, where the corporation was supported by


a nation-state government. Until recently, the dominant historical account attributedNative American land loss in these areas primarily to treaties of cession negotiatedin the early to mid-19th century and to the Dawes Allotment Act and its amendmentsin the late 19th and early 20th centuries–which together removed nearly 100 millionacres from reservations (Kickingbird and Ducheneaux 1973; Cornell 1988:53–59,83). But a number of scholars have now taken issue with the “doctrine of discovery”and the idea that colonizing governments automatically have the right to extinguish“aboriginal title” held by “possession from time immemorial;” these scholars havecritiqued the use of these concepts both by U.S. courts and in ICC proceedings(Forbes 1965; Morris 1986; Orlando 1986; Ronaasen 1993; Carrillo 2002; ClemmerField Notes 1974). This critique is part of a larger framework and socio-legal storyof contested, colliding legal-historical rationalities and discourses at the interface ofindigenous peoples and nation-states.

Antonio Gramsci’s writings of the 1920s identify hegemony as a set of assumptionsthat can embed ideologies in value systems, institutions, and procedural rules thatconstitute a potent dominant cultural force and narrative. This dominant narrativegenerated a circular “rational” logic: Indians must be monetarily compensated forland lost–and if they are in fact eligible for such compensation, then ipso facto,their land must have been lost. Clearly, attorneys working within the ICC frameworkwere trying to construct a “truth” that the ICC would accept (Merry 1992:361). ButWestern Shoshones did not accept that “truth.” As my narrative demonstrates, thisprocess actually resulted in contesting interpretations on the part of BIA officials,various groups of Western Shoshones (usually not speaking with one voice), andattorneys. For the Western Shoshone, the ICC proceedings did not “settle” claims oracknowledge the injustices of the past, but instead actually produced and transformedNative and non-Native histories. Mediating activities of attorneys both supported andcontested the dominant narrative. My exploration of Western Shoshones’ attempts atresistance is intended to contribute to a growing body of studies of how indigenousgroups use national legal systems to assert claims to land and sovereignty (Merry1992:358, 368). This account thus balances an analysis of land loss through bureau-cracy, ideology, and law with an account of indigenous people’s resistance, in partthrough the vehicles provided by law and lawyers.31 Thus, even though “state lawpenetrates and restructures other normative orders . . . relations between state law andother normative orders” [are] dialectic [and those] nonstate normative orders [can anddo] “resist and circumvent” the penetration of nation-state law (Merry 1992:358).

As recent developments in the anthropology of law have demonstrated (Merry1992:358–362), far from being a neutral instrument that distinguishes right fromwrong and justice from injustice, law can embed a cultural ideology produced withinparticular historical moments. That ideology is then reinforced every time a particularlaw is enforced, but it is also contested every time implementation of the law is re-sisted. Thus, although legal philosophy can become hegemony, law is only a culturalinstitution, operating much the same as how culture operates generally (Gooding1994:1188–1189), and actors in legal discourses create meanings that become em-bedded in cultural systems (Merry 1992:360).


The ICC proceedings and the legal philosophy empowering it attempted to essential-ize Western Shoshones as an “identifiable group” that “lost” their land rather thanrecognizing them as living human beings continuing to interact with their land. Andyet Newe ideologies reflected in myth, ritual, kinship categories, and local groupidentities continue to animate the landscape with spirits, deities, and shades whorequire cooperative agreements between the Newe and nature’s spirits for successfulactivities of all kinds. As has also been described for many other Native Americangroups, for example the Yavapai (see Espeland 1998), land represents an incommen-surable value not transmutable into money. The landscape is where Newe mythichistory occurred, where important relationships between people and other dwellersof the environment are established, and where ancestors not only were buried but alsocontinued to maintain a ghostly presence. The landscape is animated with spirits andsources of power. Newe culture overlays the landscape with power spots, sacred sites,and festival places – as well as a series of seasonally available resources that werestill important in the latter part of the 20th century, for example pine-nuts, rabbits,rock chucks and deer, willow used to make cradle boards, and white chert (stone)used for ceremonial purposes (Clemmer Field Notes June 21, 24–26, 28 and July 6,8, 9, 11, 12, 16, 1989; Hultkrantz 1986; Miller 1983).

The voices of resistance that began in the 1920s to protect the land and its tangibleand intangible resources continues with the voices of Corbin Harney,32 Mary Baker,Carrie Dann, and many others. It is a legacy that is now as much a part of Newetradition as their ecological adaptations famously presented by Julian Steward (1938;see Clemmer et al. n.d.). The resilience and persistence of Newe (noted by Stewart1978:80) who were “supposed” to become passive victims following the crush ofemigrants, miners, the Pony Express, and railroads in the mid-19th century wasmatched by legal acumen, political organizing, and proactive advances aimed at theforces arrayed against them in the mid-20th century. For those Western Shoshoneswho opposed the ICC claim, and also for many who went along with it, land andthe struggle to have their ties to it legally recognized as a treaty right signifies anaffirmation of tradition and their right to maintain culture.

Recently, Carrie Dann noted:

No money could ever compensate taking the land from our native people.No race of people has ever sold their homeland. Where will our homelandbe if we accept the money? Let us walk with dignity and honor and neveras a people without a country. [Harney 2007]

The struggle continues.

Notes

Most of the unpublished sources were supplied to me by the late Elmer R. Rusco, bythe Western Shoshone National Council, or by several Western Shoshone consultantswho must remain unnamed. Grateful acknowledgment is made of their assistance.Thanks also go to Alison Anthony, who received her MA from the Department


of Anthropology at the University of Denver in 2003, for assistance with researchreflected in this essay.

1. This insight fits into a large literature studying this kind of phenomenon–withinlegal anthropology, linguistic anthropology, law and society studies, and legaltheory.

2. For example, Newe Sogobia, roughly translated, means Mother Earth. It refersto Western Shoshones’ traditional homeland. John Wesley Powell (Powell andIngalls, 1971 [1873]), the first to record ethnographic and linguistic data onWestern Shoshones and Paiutes, in 1873 referred to them collectively as Numa.The term Numic replaced Shoshonean to refer to the cultures and languages ofthese peoples in the 1950s (cf. Lamb 1958).

3. The U.S. Census does not break out ethnicity for particular Indian reservations.This is the author’s estimate, based on interviews with tribal members. Morethan 200 of those reckoned as “Paiutes” because they accepted the Paiute claimsmoney are actually of mixed Paiute-Shoshone ancestry. About 40 people were“Bruneau Shoshones” (Clemmer Field Notes July 7, 1989). Total on-reservationpopulation was 817 in 1970 (Nevada Indian Agency 1971:2), 877 in 1974 (U.S.Department of Commerce 1974:304) and 962 in 1980 (U.S. Census 1980 Amer-ican Indian Population by Tribe for the United States, Regions, Divisions, andStates 1980, tabulated by Alison Anthony).

4. Treaty of Box Elder with the “Northwestern Shoshones” in Utah and Idaho;Treaty of Tooele with the Goshute Shoshone of Utah and Nevada; and Treaty ofRuby Valley with the “Western Bands” in northeastern Nevada. For discussion ofWestern Shoshone ideology surrounding the Treaty of Ruby Valley see Clemmer(2006).

5. Letters from Badt to Tasker Oddie, May 10, 1928; May 31, 1928; and June 11,1928. Tasker Oddie was the senator from Nevada, 1921–1933.

6. The hearings were part of its investigations resulting from the “Meriam” Reportof 1928. The Secretary of the Interior commissioned the private Institute forGovernment Research to do a survey of social and economic conditions amongAmerican Indians. Known after its primary author, the head of the Institute, thereport documented “staggering” degrees of poverty, ill health, poor education,and community disorganization, and criticized the government’s “allotment” pol-icy that had been intended to integrate Indians into the mainstream of Americanlife (Cornell 1988:90–91).

7. With interest at the rate of 3 percent per year, this would have amounted to morethan $640,000–10 percent of which would have been the equivalent, in termsof purchasing power, of the entire amount today. In the 1947 contract with theWilkinson firm, the attorneys’ contingent fee was set even higher–at between 7and 10 percent of all sums “or the value of all property recovered” (United StatesCourt of Claims Appeal No. 1-78, The Western Shoshone Identifiable Group,Represented by the Temoak Bands of Western Shoshone Indians v. The UnitedStates of America, Answer Brief of Appellant to Brief of their Former Counsel onAppeal from the Indian Claims Commission Docket No. 326-k. September 14,


1978, 13; August 1947 Contract between Temoak Bands and Ernest Wilkinsonand Orville Wilson). That sum would have been even more than the 3 percentinterest on the annuities that were never distributed.

8. Tribal officials used the two spellings (Temoak and Te-Moak) interchangeably.9. The BIA also established a small Yomba reservation in the Reese River Valley

and another along Duckwater Creek. Each of these was set up as a separate“tribe” with its own constitution and tribal council. Western Shoshones living onthe Duck Valley Reservation were required to establish a joint tribal council withNorthern Paiutes living there. (For discussion of the origins of this group and thereservation, see Clemmer 2009.)

10. For example, in 1971 the estimated population of the TeMoak Bands Tribe was500, with resident populations of 140 in Elko, 102 in South Fork, Nevada IndianAgency 1971:14). Resident populations in 1980 totaled about the same: 250(Labor force = 183) (U.S. Census 1980 General, Family and Fertility Charac-teristics of American Indians on Identified American Indian Reservations 1980,tabulated by Alison Anthony). Total number of Western Shoshones in Nevadaand California in 1980 was 3,641 (U.S. Census 1980 American Indian Populationby Tribe for the United States, Regions, Divisions, and States 1980, tabulated byAlison Anthony).

11. In 1936, Western Shoshones were still living in 18 small communities and ex-tended family groups in their aboriginal territory, stretching from Wells, Nevada,in the east to Bishop, California, on the west (Stewart 1978:83–6).

12. Badt officially turned his practice over to Orville Wilson, an Elko attorney, who,by default, became an associate of the Wilkinson firm.

13. For a more extended discussion, see Ronaasen, Clemmer, and Rudden (1999).14. In fact, “Ancient Law . . . knows next to nothing of Individuals. It is concerned not

with Individuals, but with Families, not with single human beings, but groups”(Maine 1970[1884]:250). Although Maine drew his support primarily from whathe knew about India, it is obvious that collective property rights are the norm inmany other societies as well.

15. The treaty, then, was a “constitutive rule,” in the terms of legal philosopher Hart;it defined a social reality, and it can even be said that it was both a rule ofobligation and one that conferred power to enforce a promise–the promise on thepart of Shoshones to permit the intrusion of the American political economy, butalso, on the part of the U.S. government, of collective property rights retaineduntil certain other conditions were fulfilled (Weissbourd and Mertz 1985:634–635).

16. Although officially coauthored with Friedrich Engels, it is now acknowledgedthat this piece was largely, if not completely, authored by Marx.

17. “By a combination of bribery, trickery, and intimidation” (Debo 1940:5), thegovernment also induced the other four large Native nations of the southeasternUnited States to leave their lands.

18. In the case of the Western Shoshone, from Mexico, the successor nation to Spain(Answers to Interrogatories, United States District Court, District of Nevada.United States of America vs. Mary Dann and Carrie Dann, Civil R-74-60, BRT.Plaintiff’s Answers to Interrogatories 1974).


19. This result conflicted with Roman and English laws, which in accordance withthe adage that “possession is eleven points of the law” (Cibber 1968[1697]),confirmed land-holders’ rights unless overruled by a deed held by someone else.

20. They included Muchach Temoke, son of Temoke, who had signed the treaty;Dewey Dann, Carrie and Mary Dann’s father; and several others.

21. In other words, what Herbert Hart considered a “constitutive rule”; that is, onethat was “socially creative/defining” (Weissbourd and Mertz 1985:634).

22. As Gooding notes with regard to the Colville (1994:1194), this case is indeedone of what John Comaroff (1994:47) notes as the “double consciousness[of the]inherently contradictory character of the colonial discourse of rights[ensuringthat it gives rise to engagement] on both sides of the dialectic of domination anddefiance.”

23. In the 1970s Western Shoshones outside of Duck Valley pointed out that DuckValley Shoshone had nothing to lose because they already had control of landsufficient for their needs; claims money would simply add to their economicwell-being (Clemmer Field Notes 1975).

24. These probably included five small reservations in California as well ascolonies and reservations in Nevada, and also reservations in Utah, Idaho, andWyoming, where majority populations were Eastern, Northern and Northwest-ern Shoshones, Bannocks, and Paiutes. However, Northwestern and GoshuteShoshones were, in fact, Western Shoshones, and Western Shoshones might wellhave been living on the other reservations, and some certainly were doing so(Clemmer Field Notes July 2, 1989 and passim; Murphy and Murphy 1986).

25. Composition of the “special committee” remained the same during its entireexistence.

26. Interestingly, the committee itself asked Western Shoshones if presently un-represented communities should have representation in 1974 (Manning 1974).However, this did not lead to any additional efforts to broaden the actual repre-sentation on the committee.

27. The law firm was Sonosky, Chambers, and Sachse. With offices in Albuquerque,as well as Washington, D.C., this firm specialized in advocacy for Native Amer-icans on issues such as gaming, water, and governmental matters.

28. This was the Ninth Circuit decision in the second of two Dann cases (DannII, 706 F2d 53 (1983)). In the first case, the Ninth Circuit had found in 1982that under the provisions of the Treaty of Ruby Valley, “any loss of territoryis only so large as the incursion requires, and the Shoshone retain the rest . . . .Thus the granting of homesteads by the government could work at most, anextinguishment of aboriginal title to the actual land granted and no more” andthat “no extinguishment occurred when the Duck Valley Reservation was created”(Rusco 1992:354). This opinion directly contradicted the assumption of “gradualencroachment” embraced by the Wilkinson firm. Unfortunately, in 1989, thissame court certified Western Shoshone land as lost due to the ICC’s payment ofthe claim.

29. The Western Shoshone National Council had filed an appeal from the ICC rulingwith the Nevada District Court in 1995, challenging the United States’ assertionof plenary power on the basis of Johnson v. M’Intosh, 21 U.S. (8 Wheat) 543


(1823) The United States counter-sued in 1996. The Court dismissed the case.An appeal filed December 15, 1997 was dismissed by the Ninth Circuit withouthearing arguments on December 19, 1997, claiming lack of jurisdiction (U.S.Court of Appeals for the Ninth Circuit 1997).

30. The Wilkinson firm did file a lawsuit in the U.S. Court of Claims on behalf of theNorthwestern Shoshone using the Treaty of Box Elder as the basis for claimingmonetary compensation for land taken. But the court ruled that establishment ofthe Fort Hall Reservation in 1867 constituted establishing a reservation withintheir territory and, although only about half of the Northwestern Shoshones weresettled on it, the whole group had thereby complied with the clause in the treaty,requiring them to cease their roaming life. Because they had ceased their roaminglife, said the court, they had come into a kind of default position essentially cedingall the land described in the 1863 Treaty of Box Elder.

31. The handful of lawyers such as Badt and those who brought the Dann lawsuitsover a period of half a century joined Western Shoshone land rights advocatesin their opposition to the dominant ideology and its bureaucratic manifestation.Their involvement is attributable to what Comaroff and Comaroff (1991:29)have described as social worlds in which “social knowledge and experiencesituate themselves along a chain of consciousness . . . a continuum whose twoextremes are the unseen [hegemony] and the seen [ideology], the submergedand the apprehended, the unrecognized and the cognized” and what MauriceGodelier (1978:766) noted as members of the dominant group entertaining ideas“that oppose [dominant ideas] and that they themselves oppose to the dominantgroup.” Because these attorneys were involved in the social world of WesternShoshones in northeastern Nevada, Western Shoshones were able to draw theminto collaboration with Western Shoshones’ attempts to contest the hegemonyof “loss” created by the legal discourse of the Marshall Supreme Court of the1830s. For example, whereas Robert Barker did not attend any of the importantmeetings held by his own Claim Committee, attended by hundreds of people inElko, Ely, Austin, and Duck Valley, Jerry Kinghorn and Kathy O’Connell fromSalt Lake City, attorneys for the Danns, were present at every one (ClemmerField Notes June 26–July 17, 1974).

32. Deceased.

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Appendix: Dann Legal Chronology

The Danns’ first argument was an argument for possession (and against the trespasscomplaint by the BLM) based on collective, tribal land rights. Their second was anappeal based on the Danns’ individual rights as Western Shoshone persons (see alsoOrlando 1986; Rusco 1992).

1974: U.S. BLM files a trespass lawsuit in the U.S. District Court in Reno (JudgeBruce Thompson), claiming that Danns are trespassing on U.S. Government-ownedland in running their livestock on Western Shoshone land affirmed in the Treaty.

1976: Thompson rules against the Government (and thus for the Danns, but withoutconsidering their argument, ruling only that the Government did not prove its casefor ownership). Both parties appeal.

1978: U.S. Court of Appeals for the Ninth Circuit reverses Judge Thompson, remandscase back to him. Dann I 572 F2d 222 (9th Cir. 1978).

April, 1980: Judge Thompson rules that by virtue of the ICC’s final decision inDecember 1979, the Danns’ tribal claim to Western Shoshone land was extinguishedas of December 06, 1979. He authorizes the BLM to start collecting fees from thattime forward but denied its efforts to collect back grazing fees.

1981: The Danns appeal to 9th Circuit.

1982: The Ninth Circuit hears the case.

1983: The Ninth Circuit decides against the Danns; the Danns appeal to the SupremeCourt. Dann II, 706 F2d 53 (1983).

1985: The U.S. Supreme Court decides against the Danns, scolding Judge Thompsonfor fixing the date of taking of Western Shoshone land as 1979. They remand the caseback to him. United States v. Dann, 470 U.S. 39 (1985).

1986: Thompson rules that the Danns’ tribal ownership was taken away in 1872(based on the ICC decision) and issues an injunction against their using any landoutside the boundaries of their Dawes Act allotment for grazing purposes.

1986: The Danns immediately appeal the decision, citing individual rights as WesternShoshone Indians. The case is heard by one judge, Canby, from the Ninth Circuit,sitting as a circuit judge.

January, 1989: Canby issues his decision, echoes the Supreme Court’s reversal andits remand back to Judge Thompson. The Danns appeal. U.S. v. Mary Dann andCarrie Dann Appeal (1989) Opinion. Appeal from the United States District Courtfor the District of Nevada, Bruce R. Thompson, District Judge Presiding. Argued andSubmitted December 15, 1987 – San Francisco, California. Filed January 11, 1989Before: Betty B. Fletcher, Cecil F. Poole and William C. Canby, Jr., Circuit Judges.

October, 1989: The U.S. Supreme Court denies a rehearing. U.S. v. Dann, 493 U.S.890 (1989, cert. denied).


2002: The Inter-American Commission on Human Rights found that the United Stateshad violated the rights of the Danns, saying that the U.S. should

1. Provide Mary and Carrie Dann with an effective remedy, which includes adopt-ing 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 Ameri-can Declaration in connection with their claims to property rights in the WesternShoshone ancestral lands.

2. Review its laws, procedures and practices to ensure that the property rights ofindigenous persons are determined in accordance with the rights establishedin the American Declaration, including Articles II, XVIII and XXIII of theDeclaration.

Mary and Carrie Dann v. U.S, Case 11.140, Report No. 75/02, Inter-Am. C.H.R.,Doc. 5 rev. 1, #173 (2002).

clemmerr_2009_land rights, claims and western shoshones

Documents

salt lake

white knife

duck valley

indian reorganization

government

mary elizabeth

temoak business

north american