UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA, Plaintiff-Appellee,

vs.

NYE COUNTY, NEVADA, Defendant

and

WESTERN SHOSHONE NATIONAL COUNCIL
by its Chief, Raymond D. Yowell, and
CHIEF RAYMOND D. YOWELL
as Representative of the Class of Shoshone Persons,
Defendants-Appellants

Raymond D. Yowell, Chief,and as Representative of the Class of Western Shoshone Persons, Pro Se
Western Shoshone National Council
Indian Springs, NV 89018-210
(702) 879-5203


No. 95-16599
ON APPEAL FROM DC# CV-S-95-232-LDG, Nevada (Las Vegas)


REPLY BRIEF OF APPELLANTS

TABLE OF AUTHORITIES

SUMMARY OF ARGUMENT

The core of the United States' opposition to the motion by the Western Shoshone National Council and the class of Western Shoshone persons (hereinafter, Western Shoshone) to intervene in this action is an assertion, in a variety of forms, of "plenary federal power" over the Western Shoshone people and their territory.

Citing Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823), The United States argues that "Indian aboriginal title can only be extinguished by or with the consent of the United States," and that any Western Shoshone interest in the lands in dispute herein "would be adequately represented by the United States." [Brief for the Federal Appellee, 7, 23, et seq.]

The United States relies on decisions in the Dann litigation, especially United States v. Dann, 470 U.S. 39 (1985), and United States v. Dann, 873 F.2d 1189 (9th Cir., 1989), cert. den., 493 U.S. 890 (1989), to argue that "the statutory bar enacted by Congress when it established the Indian Claims Commission precludes" Western Shoshone intervention to protect their territorial integrity. [Brief, 17, 23]

The United States relies on Western Shoshone Legal Defense And Education Association v. United States, 531 F.2d 495 (1976), to argue that "matters related to adequate representation and due process that the Council and the Chief put before this Court were finally resolved" by the Indian Claims Commission. [Brief, 18]

The United States' assertion of "plenary power" and "trusteeship" over the Western Shoshone people and their territory rests on a fundamentally unacceptable foundation: an historical arrogation of power by the federal government under the banner of Christian nationalism. Johnson v. McIntosh, supra, is explicitly grounded in Papal decrees and theories of divine-right sovereignty of "Christian people" over "heathens." 21 U.S. (8 Wheat.), at 576-7.

Western Shoshone argue that the principle enunciated in Johnson and carried forward through case law as the foundation for federal power over native peoples of this continent is nowhere sanctioned in the United States Constitution and is wholly contradictory to basic principles of human rights.

Western Shoshone raise new and undecided challenges to the power of Congress to enact any legislation arrogating to itself or to a commission the power to define the national existence and identity of a people. This is far more than a challenge to the "adequacy of representation" issues raised in Western Shoshone Legal Defense And Education Association, supra. Western Shoshone here dispute the power of the federal government to create an entity in the name of the Shoshone people and to deal with that entity as if it were dealing with the Shoshone people.

Federal case law itself makes clear that the interests of the United States as purported "trustee" for Indian lands, are not identical to or necessarily congruent with the interests of the Indians. See Choctaw Nation v. United States, 119 U.S. 1, 28 (1886) (The United States may adopt "such policy as its own public interests may dictate."); Cherokee Nation v. Hitchcock, 187 U.S. 294, 308 (1902) (The United States is "not concerned ... whether the act ... is or is not ... calculated to operate beneficially to the interests of the Cherokees."); compare Lone Wolf v. Hitchcock, 187 U.S. 553, 568 (1903) ("We must presume" that the violation of the treaty by the United States was in "perfect good faith.")

The Western Shoshone National Council and the class of Western Shoshone persons assert a continuous and unbroken existence on their territory from time immemorial, with rights to territorial integrity in the face of aggression from any source, including a self-styled federal "trustee." These rights are manifest in the Treaty of Ruby Valley, 18 Stat. 689 (1863), a "treaty of peace and friendship" whose provisions cover the lands in dispute in this action.

Western Shoshone assert an independent interest in the lands in question in this action, an interest not protected by and indeed adverse to the interest of the United States, including with regard to the claims made by Defendant Nye County, Nevada.

ARGUMENT

The foundation cases of federal Indian law are explicitly and implicitly grounded in principles of Christian nationalism decreed by Popes and Kings in the fifteenth century:

The right of discovery given by this commission (to the Cabots) is confined to countries "then unknown to all Christian people;" and of these countries Cabot was empowered to take possession in the name of the King of England, thus asserting a right to take possession, notwithstanding the occupancy of the natives, who were heathens, and at the same time admitting the prior title of any Christian people.... The United States ... have unequivocally acceded to that ... rule.... Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 576-7, 587 (1823).

Henry Wheaton, reporter for the Johnson Court, later elaborated the concept of Christian nationalism:

... [T]he heathen nations of the other quarters of the globe were the lawful spoil and prey of their civilized conquerors, and as between the Christian powers themselves, the Sovereign Pontiff was the supreme arbiter of conflicting claims. ... It thus became a maxim of policy and of law, that the right of the native Indians was subordinate to that of the first Christian discoverer.... Henry Wheaton, Elements of International Law 219, 220 (1855).

Justice Joseph Story also independently discussed the laws of Christendom as the basis for the Court's opinion in Johnson:

... [I]nfidels, heathens, and savages ... were not allowed to possess the prerogatives belonging to absolute, sovereign and independent nations. 1 Joseph Story, Commentaries on the Constitution of the United States 134 (1833).

Later cases tended to omit explicit reference to Christian doctrines, in keeping with a general understanding that the government of the United States was separate from any establishment of religion. Some explicit references and acknowledgments did occur. For example, regarding federal interference with "occupancy of the Indians":

... [I]t is to be presumed that in this matter the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race." Beecher v. Weatherby, 95 U.S. 517, 525 (1877).

And as recently as 1946, Justice Reed argued against monetary compensation for a federal taking of Indian lands on the ground that:

...[D]iscovery by Christian nations gave them sovereignty over and title to the lands discovered. United States v. Alcea Band of Tillamooks, 329 U.S. 40, 58 (1946). (dissent)

The history of federal Indian law is clear: assertions of federal power over the original inhabitants of this continent are an extension of Christian claims to world supremacy. The holding in Johnson is "might makes right" and "finders keepers," or, more specifically, "Christian might makes Christian right," and "Christian finders Christian keepers." This doctrine has never been repudiated. It is the continuing basis for all aspects of federal Indian law. It is referred to by the United States as "well-settled" [Brief, 7].

Western Shoshone challenge this doctrine, regardless of how "well-settled" it may appear. Slavery and racial segregation were considered "well-settled" law, and were nonetheless subject to challenge as fundamentally incompatible with the Constitution and the principles of respect for human rights. Similarly, Western Shoshone argue that the joinder of Christian doctrine with secular power which constitutes federal Indian law to this day is an unacceptable violation of their human rights and territorial integrity as a people.

The foundation of federal power asserted by the Supreme Court in Dann, supra, and manifested in the operation of the Indian Claims Commission involves a fundamental violation of the humanity and territorial integrity of the Western Shoshone people. As such, it must be considered null and void and of no effect. It certainly cannot bar the just resolution of conflicts over land among the Western Shoshone and their neighbors.

To argue that the Indian people may not challenge the theoretical framework set forth by Marshall in the Johnson ruling is to say that they must simply acquiesce in a one hundred-and-seventy-year -old precedent predicated on the belief that the first Christian discoverer (or its legal successor) has a divine right to subjugate the heathens who were discovered. It is to contend that Indian nations ought to learn to accept a judicial pretention based on religious and cultural prejudice that asserts that their rights to complete sovereignty and to territorial integrity may be impaired, diminished, denied, or displaced simply because they were not Christian people at the time of European arrival to the Americas. It is to accept the preposterous idea that federal Indian law will forever rest on the foundation of a subjugating Christian ideology. Steven T. Newcomb, The Evidence of Christian Nationalism in Federal Indian Law: The Doctrine of Discovery, Johnson v. McIntosh, and Plenary Power, XX N.Y.U. Rev. of Law & Social Change 303, 336 (1993).

Further examination of federal Indian law reveals that there is no basis in the Constitution of the United States for the "plenary power" and "trusteeship" arrogated by the federal government over Indian peoples.

Examination of the text of the Constitution, the intentions of the Framers, contemporary notions about sovereignty, the records of the Continental Congress, and contemporary treaties with Native American Nations makes it clear that the Constitution has never granted to the United States a plenary power over Native Americans. Mark Savage, Native Americans and the Constitution: The Original Understanding, 16 Am. Ind. L. Rev. 57, 116 (1991).

The Constitution simply does not validate the judicial doctrines of Christian nationalism. Neither the treaty powers nor the power "to regulate commerce ... with the Indian tribes" Art. I, sec. 8, cl. 3, United States Constitution, provide a justification for a religious subjugation of Indian peoples.

It is to be noted that the very concept of "plenary power" is derived from medieval canon law, in a context furthest removed from democracy:

It was within the Church that the idea of Monarchical Omnicompetence first began to appear. It appeared in the shape of a plenitudo potestatis attributed to the Pope. The first to elaborate (the) idea ... was Innocent III. (pope, 1198-1216) Otto Gierke, Political Theories of the Middle Age 36 and n. (Frederic William Maitland, trans., 1900, 1959)

The oft-quoted (though not often understood) dictum of Chief Justice John Marshall in Cherokee Nation v. Georgia, 30 U.S. (5 Pet) 1, 17 (1831), suggests that the Indians "are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian." This "ward-guardian" relationship also reflects concepts developed within the medieval Christian church. Maitland states that the legists and canonists under Pope Innocent IV (pontificate, 1243-1254) developed the idea that the relation between a legal body and its creators "may best be compared to that between pupillus and tutor." Frederic William Maitland, "Introduction," Otto Gierke, Political Theories of the Middle Age xx (1959).

In United States v. Kagama, 118 U.S. 375 (1886), the Supreme Court was unable to find Constitutional footing for the "trustee" and "wardship" relation as the framework and justification of federal power over Indians. The Court nevertheless affirmed these Christian concepts embodied in Congressional legislation challenged in that case. As one commentator notes:

The [Kagama] Court found that Congress had full power to enact the statute even though the express terms of the Constitution failed to afford it such authority. ... [T]he Court promulgated what can be called the "it-must-be-somewhere doctrine (of Constitutional interpretation). Comment, Federal Plenary Power in Indian Affairs After Weeks and Sioux Nation, 131 U. Pa. L. Rev. 235, 247 (1982).

The edifice of federal Indian law, including the Indian Claims Commission and the Supreme Court's conjuring in Dann, supra, of a bar to actual litigation of Shoshone rights to territorial integrity, demonstrates what one scholar has called a "consistent arrogation of power." Milner S. Ball, Constitution, Court, Indian Tribes, 1987 Am. B. Found. Res. J. 1, 59 (1987).

Because we say we have a government of laws and not men, we hold our government to be limited and to have no unlimited power. If the federal government nevertheless exercises unrestrained power over Indian nations, then what we say is not true, and we have a different kind of government than we think we have. And if our government is different in fact in relation to Native Americans, perhaps it is not what we believe it is in relation to other Americans, including ourselves. The Court is regarded as the institution of restraint and a protector of rights. If the Court restrains neither Congress nor itself in taking away tribal rights, then we are confronted by a fundamental contradiction between our political rhetoric and our political realities. This is another way of raising the issue ... about whether we have a means and a language for confronting and overcoming original injustice. Id., 61.

Ball adds, with regard to the Supreme Court's ruling in Dann:

...[T]he Court held a "payment" had been effected, although the Indians received no money and opposed the conversion of their land. The trust doctrine was the device the Court struck upon for executing this maneuver. The United States was not only the judgment debtor to Indians, the Court said, but was also trustee to the Indians. Therefore the United States as debtor can pay itself as trustee, say this change in bookkeeping constitutes payment to Indians, and the Court will certify the fiction as a reality. Id., 65.

The essential "fictions" of "plenary federal power" and "trusteeship" over Indians are pervasive and continuing. They inform every line of the United States' argument in this case. They rest on a fundamentally inadmissible promulgation of religious doctrine in secular law. The Western Shoshone National Council and the class of Western Shoshone persons challenge these fictions on their face and as applied in this case, as incompatible with the separation of church and state embodied in the Constitution of the United States and in universal principles of human rights.

The Western Shoshone National Council and the class of Western Shoshone persons assert a continuous and unbroken existence on their territory from time immemorial, with rights to territorial integrity in the face of aggression from any source, including a self-styled federal "trustee." These rights are manifest in the Treaty of Ruby Valley, 18 Stat. 689 (1863), a "treaty of peace and friendship" whose provisions cover the lands in dispute in this action.

Western Shoshone assert an independent interest in the lands in question in this action, an interest not protected by and indeed adverse to the interest of the United States. In an important sense, Western Shoshone share certain common perspectives with Defendant Nye County regarding the unconstitutionality of federal power over the lands in question in this action.

Western Shoshone move to intervene as of right in this action between the United States and Nye County, Nevada, to protect their interests against both parties and to maintain an independent position with regard to claims made by Defendant Nye County, Nevada.

CONCLUSION

THEREFORE, based on the foregoing, the Western Shoshone National Council and the class of Western Shoshone persons respectfully request this Court:

To enter an order reversing the District Court's denial of Applicants' Motion to Intervene as of right as a party to this action, and granting said motion.

Dated: February 21, 1996

Respectfully submitted,

________________________
Raymond D. Yowell, Chief,
and as Representative of the Class of Western Shoshone Persons,
Western Shoshone National Council
Indian Springs, NV 89018-210
(702) 879-5203


Go to Index
Go to Table of Authorities
Go to Motion to Intervene, Memo [29k]

This WWW page was constructed by Peter d'Errico.