Newcomb: The United States' fancy footwork on the Western Shoshone treaty
In April, the U.S. government issued a ''Periodic Report'' to the United Nations Committee on the Elimination of Racial Discrimination. The report explained in what ways and to what extent the U.S. government has worked toward eliminating racial discrimination in all areas of the society of the United States, in keeping with the ''International Convention on the Elimination of All Forms of Racial Discrimination.''
For their part, the traditional Western Shoshone of the Great Basin region (now known as Nevada) had been patiently waiting to see how the U.S. report would address Western Shoshone treaty and land rights issues.
In March 2006, the CERD, in response to Western Shoshone human rights complaints, had issued an ''Early Warning and Urgent Action Procedure'' which called on the federal government to respect and protect the human rights of the Western Shoshone peoples.
The CERD urged the United States ''to 'freeze,' 'desist' and 'stop' actions being taken or threatened to be taken against'' the peoples of the Western Shoshone Nation.
The United States' April response to the CERD covers a wide array of issues, but it also specifically addressed the Western Shoshone. What the United States had to say in its report regarding Indian treaties and treaty interpretation is of particular significance. Here's an excerpt from the U.S. report:
''Treaties. During its first hundred years of existence, the United States dealt with Indian tribes concerning land occupancy and property rights through federal treaties and legislation. Although treaty making between the federal government and the Indian tribes ended in 1871, the treaties retain their full force and effect even today because they are the legal equivalent of treaties with foreign governments and have the full force of federal law.''
Given that the Treaty of Ruby Valley between the United States and the Western Shoshone Nation was made and signed in 1863, eight years prior to 1871, we can read the above language of the U.S. report to the CERD as suggesting that the Western Shoshone treaty with the United States ''retains ... full force and effect even today because ... [it is] the legal equivalent of treaties with foreign governments ... [and has] the full force of federal law.'' Sounds good, right?
Well, there's more good news. The U.S. report to the CERD also stated that ''treaties with Indian tribes,'' such as the Western Shoshone treaty, ''are subject to special canons of construction that tend to favor Indian interests.'' And the U.S. report further said that ''Indian treaties are interpreted, to the extent that such original construction is relevant, as they would have been understood by the Indians at the time of their signing, as opposed to by the federal authors of the treaties; and where the treaty is ambiguous as to its interpretation, the Court will interpret it to favor the Indians specifically because it was not written by them in their language.'' (Emphasis added.)
The attentive reader will notice that the above text from the U.S. report to the CERD states categorically and as the statement of a fact that ''Indian treaties are interpreted ... as they have been understood by the Indians at the time of their signing.'' However, the United States has skillfully added one critical caveat or reservation. Such an ''original construction'' of an Indian treaty must be ''relevant.'' Does the U.S. report mean ''relevant'' to the Western Shoshones or to the United States? And who is to decide? The report does not say and thus we are left in the dark.
In a special ''Annex II'' to its report, entitled ''Background on Matter Raised by Certain Western Shoshone Descendents,'' the U.S. government explained how the 1863 Western Shoshone Treaty of Ruby Valley has been interpreted by the United States, while leaving out an explanation of how the Western Shoshone understood the treaty at the time of its signing.
''The Treaty of Ruby Valley,'' the report stated, ''was not designed to address permanent land rights between the parties. The boundaries specified in Article V of the Treaty were intended to delimit and recognize the area claimed and roamed by the nomadic bands within which the provisions of the treaty were to be applicable.'' Notice that this is only an interpretation of the treaty from the perspective of the United States. Also notice the slur directed toward the Western Shoshone by referring to them as ''nomadic bands'' that ''claimed and roamed'' their lands. Article VI of the treaty also refers to their way of life as a ''roaming life.''
Elsewhere, the report claims that ''Article V [of the Ruby Valley Treaty] was neither written nor intended to cede that territory to the Western Shoshone bands, nor reserve it in any way for their permanent use and occupancy.'' This is very slick work on the part of the authors of the U.S. report.
By framing the issue in this manner, the United States creates the inaccurate perception that the land referred to in Article V of the Ruby Valley treaty already rightfully belonged to the United States at the time the treaty was made, and the United States had not intended ''to cede'' any of ''that territory to the Western Shoshone bands.''
Importantly, in its report to the CERD, the United States avoids accurately explaining how the Western Shoshones understood the Ruby Valley Treaty at the time they signed it. Instead, the United States points out how, in 1945, in the case Northwestern Band of Shoshone Indians v. United States, the U.S. Supreme Court held ''that the 1863 Shoshone treaties, including the Treaty of Ruby Valley, were not intended to confirm or acknowledge title in the Indians for any land, nor were they interpreted as such by the Government of the United States.''
This mention of what was ''intended'' by the Shoshone treaties, including the 1863 Ruby Valley treaty, refers, of course, only to what the Supreme Court claimed was the intention of the United States. It rather conveniently avoids the issue of what the Western Shoshone Nation ''intended'' by making a treaty with the United States to begin with.
Steven Newcomb is the indigenous law research coordinator for Kumeyaay Community College and the Education Department of the Sycuan Band of the Kumeyaay Nation. He is co-founder and co-director of the Indigenous Law Institute, a fellow with the American Indian Policy and Media Initiative, and a columnist with Indian Country Today.