United States on trial

A judicial panel of the United Nations has issued a ruling supporting the Western Shoshone against the United States government.

The ruling called on the United States to freeze disputed land issues in their tracks and enter into negotiations with the tribes instead of continuing to rely on a half-century old Indian Claims Commission decision.

What that ruling means is uncertain, particularly since the only way to enforce it is to rely on the government to fulfill its obligations under international law.

“It’s groundbreaking in terms of the relief that this committee granted,” said Reno attorney Robert Hager, who argued the case in Switzerland before the United Nations Committee on the Elimination of Racial Discrimination.Hager represented Western Shoshone National Council, the Timbisha Shoshone Tribe (in the Death Valley region), the Winnemucca Indian Colony and the Yomba Shoshone in California.

The U.S. government didn’t participate in the case, telling the committee that the fast-track procedure the U.N. committee used was not appropriate and that the committee was not the proper forum for the case.

The case had its roots in the arrival of whites in the West, but its more recent origins date back to the post-World War II years when the U.S. Congress, made uncomfortable by analogies between the Third Reich’s treatment of the Jews and U.S. treatment of Native Americans, established the Indian Claims Commission. The commission was supposed to go back through history and satisfy the injustices that tribes had endured through U.S. history. Over a period of 33 years, it dispensed a half-billion dollars in settlements.

The Western Shoshone Nation entered its claim based on the Ruby Valley Treaty signed on Oct. 1, 1863, which recognized the boundaries of Nation territory—60 million acres in four states—and limited non-tribal use of that territory. The Claims Commission, in a process that the Shoshone said failed to provide due process of law, recognized that the way of life of the tribe had been disrupted by “the acquisition, disposition or taking of their lands by the United States” and provided compensation for the tribe’s loss of land instead of returning the land.

More than once, the United States has tried to pay the award to tribal members, most recently through a bill sponsored by U.S. Sen. Harry Reid, but it has met resistance from members of the tribe, some of whom declined to cash the checks. Some of the land is now heavily developed by non-native people, but a lot of it is not.

The U.N. panel chose to handle the case on an expedited basis, over the objections of the U.S. government, because it believed that some of the land was threatened by “transfer to multinational extractive industries and energy developers … reinvigorated federal efforts to open a nuclear waste repository at the Yucca Mountain; the alleged use of explosives and open pit gold mining activities on Mont [Mount] Tenabo and Horse Canyon; and the alleged issuance of geothermal energy leases at, or near, host springs, and the processing of further applications to that end.” Another reason for the fast-track process, the panel said, was the “conduct and/or planning of all such activities without consultation with and despite protests of the Western Shoshone people.” It also expressed concern about renewed nuclear testing on the disputed land.

The Associated Press in Geneva reported that the U.N. body had “said it had evidence the U.S. government was working with industry to ride roughshod over the rights of an American Indian tribe,” but that’s not what the decision said. It reported such allegations and, in the absence of a defense by the U.S. government, acted on the assumption that the allegations were true.

The decision read, “Under its early warning and urgent action procedure, the Committee considered the situation of the Western Shoshone indigenous peoples in the United States and urged the State party [the United States] to take immediate action to initiate a dialogue with the representatives of the Western Shoshone peoples; to freeze any plans to privatize Western Shoshone ancestral lands for transfer to multinational extractive industries and energy developer[s]; and to desist from all activities or plans concerning the ancestral lands of Western Shoshone or in relation to their natural resources, which were being carried out without consultation with and despite protests of the Western Shoshone peoples.”

International law is a nebulous concept that often seems to be applied only against small nations by large ones. Those large nations have a history of ignoring findings against themselves while insisting on rigid enforcement of rulings that favor them. The U.S. government, for instance, refused to abide by a 1986 World Court ruling that said the United States acted illegally by trying to overthrow the government of Nicaragua (as in the tribal case, the United States said the Court lacked jurisdiction). But the United States was quick to turn to the World Court in 1979 for an order for the release of U.S. embassy employees held by Iran.

In this case, Hager says, “The United States is a party to the agreement … guaranteeing the protection of human rights. … And so, having made the promise to be bound by the human rights rules that are enforced by the decisions of those organizations, we would hope that the United States would fulfill its obligation, make good on its promise.”