Newcomb: Examining the Oral Arguments in Dann

Steven Newcomb
2/29/08

The Internet is amazing. I came across the audio (along with a written transcript) of the 1984 oral arguments in the case U.S. v. Dann. By listening to the audio recording, we are able to experience the arguments made 24 years ago before the Rehnquist Supreme Court regarding the issue of Western Shoshone land rights.

Robert McConnell, Assistant U.S. Attorney General, argued on behalf of the United States, which was suing Mary and Carrie Dann for allegedly trespassing on "public lands" (Western Shoshone lands) by grazing their livestock without a permit from the Bureau of Land Management. McConnell opened by saying: "Mr. Chief Justice, and may it please the Court, this case comes before this Court on writ of certiorari to the Ninth Circuit Court of Appeals. It concerns the finality effect of Section 22(a) of the Indian Claims Commission Act."

McConnell continued: "Section 22(a) states that payment of a claim in accordance with the Act shall be [a] full discharge of the United States of all claims and demands touching any of the matters involved in the controversy."

McConnell went on to explain that the 9th Circuit Court of Appeals had "determined that payment had not taken place in accordance with Section 22(a). We [the United States] believe that that decision was in error and should be reversed."

Eventually, Justice Blackman asked McConnell, "Are we spinning our wheels here?" McConnell responded by saying, "No, I don't believe so, Mr. Justice Blackman. What we have here is the finality provisions of 22(a), and specifically if, as we believe, 22(a) has been satisfied, payment has taken place, then the respondents [the Dann sisters] are precluded from using a claim of title, Western Shoshone title as a defense in the action stated here, the ejectment action brought by the [U.S.] government."

So, let's stop right here and reflect on what McConnell said. Notice, for example, his use of the plural when he refers to "the finality provisions of 22(a)." Although this obviously means more than one provision, McConnell only specifies the provision of payment. What is the other provision of Section 22(a)? It is the reporting provision.

The beginning of Section 22(a) states: "When the report of the [Indian Claims] Commission ... has been filed with Congress, such report shall have the effect of a final judgment of the Court of Claims, and there is authorized to be appropriated such sums as are necessary to pay the final determination of the Commission." The word "when" may be interpreted to mean "in the event that." Thus, it may be rewritten as: "In the event that the report of the Commission ... has been filed with Congress, such report shall" be treated the same as if it were a judgment by the Court of Claims.

Thus, when McConnell referenced the "provisions" of Section 22(a), he was referencing both the commission's required report to Congress and the payment provision. Yet McConnell very cleverly never mentioned to the court the language of the first provision.

The reason why McConnell neglected to specify the first provision of Section 22(a) is really quite simple: The Indian Claims Commission failed to file a report with Congress in the Western Shoshone case before the commission was disbanded by Congress in 1978. The Western Shoshone case was then transferred to the Court of Claims, but U.S. Attorney General McConnell stated to the court that "this transfer" had no "bearing upon the question presented" to the Supreme Court.

In light of the failure of the Indian Claims Commission to file a report with Congress in the Western Shoshone case, let's reexamine McConnell's statement to the court: "... if, as we believe, 22(a) has been satisfied, payment has taken place, then the respondents [the Dann sisters] are precluded from using a claim of title, Western Shoshone title as a defense." But in order for Section 22(a) to have "satisfied," both provisions of 22(a) had to have been completed. Only if that happened would the Danns be precluded "from using a claim of title, Western Shoshone title as a defense." Thus, according to the U.S.'s own position, fulfillment of only one of the two provisions of 22(a) would not be sufficient to bar the Danns from asserting title to Western Shoshone lands.

Our evidence that the reporting provision of Section 22(a) was never "satisfied" is the Indian Claims Commission's 1979 Final Report of all its work. A graph is found in that report showing all the dockets that the ICC had completed from 1946-1978. The graph also lists 19 cases never reported to Congress, and one of these is Docket 326-K, the Western Shoshone case. Thus, the question arises: "Why did U.S. Assistant Attorney General McConnell not reveal to the Supreme Court that the reporting provision of Section 22(a) had never been "satisfied" by the commission?

To avoid bringing this pertinent piece of information to the Court's attention, McConnell kept the court's attention exclusively on the payment provision of Section 22(a). But by using the plural term "provisions," McConnell was obviously aware of the fact that both a report to Congress and payment had to occur before finality could be reached by the commission and by the U.S. government.

Unfortunately, the attorneys for the Danns also failed to focus the court's attention on the fact that one of the two provisions of Section 22(a) had never been carried out. Thus, the court, without all the facts, ruled against the Danns in keeping with the U.S. government's argument, premised on a partial disclosure of Section 22(a) of the Indian Claims Commission Act. Nonetheless, because of the lack of a final report, to this day the United States has not achieved finality in the Western Shoshone case despite its many and persistent deceptions to the contrary.

Steven Newcomb, Shawnee/Lenape, is the indigenous law research coordinator at the Education Department of the Sycuan Band of the Kumeyaay Nation, co-founder and co-director of the Indigenous Law Institute, and author of the book Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008).

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