I wouldn't give five bucks for all Nevada with Utah thrown in, but you must admit the claim of the Western Shoshone tribe is pretty delicious:
It turns out, they insist, that 26 million acres of Nevada land is legally theirs.
The government, they therefore go on, has no right to uproot their sacred pine trees or install the MX missile system on their land, or do any of those other idiot things the government may confidently be expected to do.
The land has been theirs, they argue (now in court), for perhaps 400 generations.Indeed, some anthropologists are said to believe these Indians have been in one location longer than any other living human group.
Before going one word further, you are entitled to know why anybody should care who does what with any land out there, and I admit that if we care nothing for American law or American morals we need not bother with the Shoshone.
But here is what has happened:
The nation acquired this land from Mexico by treaty and then in 1863 signed a "peace and friendship" treaty with the Shoshones. Under that Ruby Valley Treaty the Shoshones yielded to the American state certain concessions:
American travelers had the right to travel safely through Shoshone lands.
The government had the right to establish Army outposts for the safety and comfort of travelers.
The land could be explored and mining could be done by whites, and ranches supporting the mining industry could be established.
Besides that, the treaty gave the American president the authority to designate a reservation on the land, and to require the Indians to move into it. But in fact no reservation was established and the Shoshone have in fact lived on their land until this very day.
Now then. Some years ago the idea arose that this Shoshone land had been "taken" by the government rather shabbily and that the Shoshone should be paid for that brutal taking.So claims were filed, and it was determined (though the Indians have never been paid) the government owes the Indians roughly $26 million.
But in the meantime -- in quite recent years -- it has dawned on the Indians that the government never took their land at all. It's still theirs. They concede the government took land for railroad right of way, Army outposts and the other specific things mentioned in the treaty, but the rest of the land -- the great bulk of the 26 million acres -- was never taken by the government at all, to this very day.
The Indians determined to fire their claims lawyer and not press (indeed, refuse to accept) the determined settlement.
Representatives of the government have long told the Indians they had no rights to the land, and many or most or all the Indians believed this, and when they believed it, they were interested in a claims settlement for cash.
But now that it has occurred to them the land may still be theirs, they would of course rather have the land than a cash settlement based on a dollar an acre.
There came a point, a few years ago, in which two Indian women were fined for letting their cattle graze without a permit on what government agents called public land.
The women argued the cattle were on Indian land, not public land, and the issue went to court.
The court held the Indians were guilty of trespass and that the government was right.
This decision was appealed to the Ninth Circuit Court. To the astonishment of some government agents, that court held that it was by no means obvious the United States held clear title to the land. (Obviously, you can't charge somebody with trespass on your land unless it's really yours; and even more obviously you can't charge someone with trespassing on his own land).
The Indians argued, in their court brief, that at no time has the American government acquired title to the Shoshone land, and that therefore the Shoshone Indians still have title to it as they have done for thousands of years.
The government has argued various ways, but to the general effect that whatever rights the Indians used to have, they gave them up at some point in the past century.
Now you might think that if the Indians were subject to such interferences as the establishment of mines, Army posts, rights of way and so forth, all at the whim of the government, then clearly this implied government authority over the land.
Authority, yes. But not necessarily ownership.
The law appears to be clear that Congress may take the title to land away from Indian tribes, and it has often done so. The Indians can lose title in various ways, by abandoning the land, by ceding it, by being conquered in war, etc.
But the law seems equally clear that if the Indians do not abandon or willingly cede their land, then only Congress has the authority to extinguish their title to it. There is also a good bit in the law to suggest very strongly indeed that if it is the intent of Congress to extinguish Indian title, then that act must be very plain, very specific.
If, for example, Congress authorizes various land management programs and if, under those programs, Indian lands are included and are in fact managed, you might infer the Indians do not have title to the managed land that some government agency has referred to as "public land."
But the courts seem to be clear on the matter, that inference is not good enough. The government taking of land from Indians has to be very clear and plain, nor merely inferred from later government actions.
The mere fact that the Indians, or some Indians, thought they had lost the land and had no title to it has no bearing on the reality of the title.
If I persuade you I own your land and you believe me, nothing has happened -- the title has not suddenly become mine merely because you think it's no longer yours.
But if the Indians think the land was taken by the state and accept payment for it, then they surrender whatever interest they may have had.
Now when all this got to the Court of Appeals, the court held that the Indians are not barred from maintaining they have title to the land merely because a claim for $26 million has been entered on their behalf before the Indian Claims Commission.
You cannot, in other words, say they have no title merely because they have entered a claim for cash payments for the land.
Second, the Court of Appeals declined to say who does, in fact, have title to the land the Indians say is theirs. The court sent the case back to the lower court to decide the question of title.
The land may, in fact, be United States land. But this cannot simply be assumed. The government must prove it has title to the land that the Indians say is theirs.
Now it has been a year since the lower court was told to decide the question of title. That court has not ruled.
The Indians and the Interior Department, at one point, both agreed to a committee that could negotiate the Shoshone claims. But then, before any settlement was approached, the Interior Department backed out.
Meanwhile it has become known that the government wants to install the MX missile system on the Shoshone lands.
Suppose the Shoshones were convinced their cause is hopeless and they accepted the $26 million for the land. They would then have a hard case indeed to prove that they had never given up their land.
But the Shoshones have asked for that claim to be stopped or at least have refused to accept the money.
They have, in fact, changed their minds. Once they were willing to take the money, or some of them were. They feel they were lied to and thought they had no other choice.
But now they have been told (by various lawyers who assert they are more interested in justice than in fat fees) they have the right to maintain their title in court.
Presumably the Indians are willing to settle for a reservation of 3 million acres and some cash, but since the government is not negotiating with them on this, it cannot be known what they will settle for.
No lawyer, I think, doubts that Congress could have extinguished the Indian title to these lands in the last century. But if Congress did not in fact do so, then (the Indian argument goes) the Indians still have that title.
Meanwhile, the government continues to act as if it had title to the "public lands" that the Indians say are theirs.
Joel Freedman made a documentary film of this business:
It is called "Broken Treaty" and it began a 27-film series on Indians at the American Film Institute at the Kennedy.
The more Freedman looked into the matter, the more indignant he got on behalf of the Indians.
I hope that the somewhat stupid-seeming agents of the government who appeared in this film are not altogether typical. And it is doubtful that all Indians have the dignity, the magnificent presence, of the Indians shown in this film.
In a desert country, you might think, it's wise not to tamper much with the natural growth. You would be especially cautious chopping down any native tree cover, suspecting the trees have something to do with rainfall. a(If you remove forests, you may change the rainfall).
But the government has already cleared a vast number (I have seen the figure of a million acres) of pines.
The seed of these pines are traditional food of the Indians from time immemorial, and the Indians resent their destruction. The effect on other animals who fed on pinon nuts (pine seeds) is not hard to imagine, either.
The land is cleared of pines presumably to make it attractive to ranchers. The idea is there is subterranean water, and farmers can move in and drill wells.
What happens to the underground water if it is greatly tapped should not be beyond the ability even of a bureaucrat to figure out. Quite apart from Indian rights, there is the question of how to use land in a semi-desert country, and my own suspicion is that the government is proceeding along with the brains of a duck.
Vast heavy chains are fixed between two tractors that move forward. The chain uproots the pines. Twenty-five acres an hour can be cleared in this way by two tractors.
Now there are people who like to have sweet sentiments about Indians, but I am not one of them.
But if the government declined to extinguish their title to the land, then I see no alternative -- the land is theirs.
The fact that the government could have done this and that does not mean the government in fact did it. If the government left this land to the Indians at a time the land was worth nothing, then clearly it is still theirs at a time it is worth something.
The stability of American law is more important, to me, than the Indians' pine nuts or the government's pronouncements through the throat of some yo-yo federal worker.
The land may or may not be the Indians' but the government (as the court has held) may not simply assume it is not the Indians'. It would be nice if the lower court, the United States District Court for the District of Nevada, would eventually get around to ruling on who owns the land.