3.       Procedural History of the Western Shoshone and Dann Land Claims

114.   As reviewed in the Commission’s admissibility Report 99/99 in this matter, [72] the domestic procedural history concerning the Western Shoshone ancestral lands and the Danns’ claims relating thereto included a proceeding before the ICC commenced by Temoak Band of the Western Shoshone and related appeals to the Court of Claims, as well as separate proceedings brought by the U.S. government against the Danns in the federal courts.

115.   According to the information before the Commission, in 1951 the Temoak Band on behalf of the “Western Shoshone Identifiable Group” filed a claim with the ICC against the United States based upon the United States having taken a vast expanse of Western Shoshone ancestral territory in Nevada and California. [73] The claim alleged that from time to time the federal government had extinguished the Western Shoshone’s title by confiscation. [74]  

116.   In 1962, the ICC found that the Western Shoshone Tribe had held aboriginal title to a total of 24,396,403 acres in Nevada, and that their title to most of this land was extinguished over an unspecified period of time by gradual encroachment of both the federal government and third parties.  In 1966, the Temoak claimants and the government agreed to stipulate an average extinguishment date of July 1, 1872 in order to determine the amount of compensation due, and the ICC agreed upon the date. [75]   Subsequently in 1977 the ICC completed the compensation phase of the proceeding and awarded the Western Shoshone with $26 million in compensation.  This finding was based on the value of the property at the time of the alleged extinguishment, $.10 to $.15 per acre, without interest.  In 1979 the Court of Claims affirmed this award on appeal.

117.   In 1974, however, a group of Western Shoshone including the Danns attempted to intervene in the ICC process in order to remove a portion of the 24,000,000 acres of Western Shoshone property from the pending process.  This included the lands that were the subject of the separate trespass action by the United States against the Danns in the federal courts.  The interveners argued that any lands to which they claimed aboriginal title, including lands which they continued to occupy and use, should be excluded from the determination of the final award.  The ICC rejected the intervention and that ruling was affirmed by the Court of Claims, which viewed the attempted intervention as an intra-tribal disagreement over the proper litigation strategy. [76]  

118.   In 1975 and 1976, the Temoak Band dismissed their attorney and adopted a position similar to that of the Danns, namely that aboriginal title to the lands in question had never been extinguished and that the Band’s previous attorney had not presented them with the choice of whether to include all of the ancestral lands in the claim or to assert that title to a portion of the lands was not extinguished.  Accordingly, they attempted to stay the proceedings in the ICC and before the Court of Claims to further address this issue.  However, the ICC denied the stay and entered a final judgment, and on appeal the Court of Claims affirmed the ICC’s ruling on the basis that it was too late for the Temoak Band to change their litigation strategy. [77]

119.   In December 1979 the Clerk of the Court of Claims certified the Commission’s award to the U.S. General Accounting Office, which automatically appropriated the amount of the award and deposited it for the tribe in an interest-bearing trust account in the Treasury of the United States.  According to the most recent information before the Commission this award has not yet been paid out, although a bill was introduced before Congress in mid-2000 to authorize the Secretary of the Interior to make a per capita distribution of the funds.

120.   Outside of the process before the ICC, in 1974 the United States brought an action in trespass in the federal courts against the Danns, in relation to grazing that the Danns had undertaken without a permit in the Northeast corner of Nevada.  In response to the action, the Danns argued that the land had been in their possession and the possession of their ancestors since time immemorial and that their aboriginal title in the property precluded the State from requiring grazing permits.

121.   The U.S. District Court rejected the Danns’ argument, on the basis that the Danns’ aboriginal title in the property had been extinguished by the collateral claims process before the ICC and that the United States had acquired all twenty-two million acres of Western Shoshone land through the estoppel effect of the ICC’s 1962 judgment. [78] On appeal, the Ninth Circuit Court of Appeals reversed the District Court decision and remanded the matter back, on the basis that the extinguishment issue had not been litigated or decided in the ICC proceedings. [79] On remand, the District Court held in 1980 that aboriginal title in the land in issue was extinguished when the final ICC award was certified for payment, [80] and on further appeal the Ninth Circuit in a 1983 judgment once again reversed the District Court, reiterating its previous holding that the Dann band was not estopped from raising aboriginal title as a defense because the issue of extinguishment of title had not actually been litigated before the ICC. [81] Moreover, the Court held that the title of the Western Shoshone had never been extinguished by prior application of public land laws or by the creation of a Western Shoshone reservation because in the Court’s view these actions did not evince a clear indication of congressional intent to extinguish aboriginal title. [82]

122.   On further review by the U.S. Supreme Court, the Ninth Circuit decision was reversed, on the basis that “payment” of the award could be taken to have occurred when the monies were appropriated to the U.S. Treasury and thus to have discharged all claims and demands involving the Western Shoshone land claim.  On this basis, the U.S. Supreme Court determined that the Danns were estopped from raising aboriginal title as a defense to the U.S. trespass action. [83]

123.   The matter was once again remanded to the District Court and on further appeal to the Ninth Circuit, it was finally decided by that Court that the U.S. Supreme Court’s finding of preclusion was decisive on precluding the issue of aboriginal title collectively and accordingly accepted the ICC’s determination of July 1, 1872 as the appropriate date for the extinguishment of Western Shoshone land rights.  In reaching this conclusion, the Court stated:

It is true that the taking was not actually litigated…but the payment of the claim award establishes conclusively that a taking occurred.  From the claims litigation, we can only conclude that the taking occurred in the later part of the nineteenth century. [84] [emphasis added]

C.      Indigenous Peoples’ Human Rights Principles and the American Declaration on the Rights and Duties of Man

124.   As indicated above, in addressing complaints of violations of the American Declaration it is necessary for the Commission to consider those complaints in the context of the evolving rules and principles of human rights law in the Americas and in the international community more broadly, as reflected in treaties, custom and other sources of international law.  Consistent with this approach, in determining the claims currently before it, the Commission considers that this broader corpus of international law includes the developing norms and principles governing the human rights of indigenous peoples.  As the following analysis indicates, these norms and principles encompass distinct human rights considerations relating to the ownership, use and occupation by indigenous communities of their traditional lands.  Considerations of this nature in turn controvert the State’s contention that the Danns’ complaint concerns only land title and land use disputes and does not implicate issues of human rights.

125.   In particular, a review of pertinent treaties, legislation and jurisprudence reveals the development over more than 80 years of particular human rights norms and principles applicable to the circumstances and treatment of indigenous peoples. [85] Central to these norms and principles is a recognition that ensuring the full and effective enjoyment of human rights by indigenous peoples requires consideration of their particular historical, cultural, social and economic situation and experience.  In most instances, this has included identification of the need for special measures by states to compensate for the exploitation and discrimination to which these societies have been subjected at the hands of the non-indigenous.

126.   For its part, the Commission has since its establishment in 1959 recognized and promoted respect for the rights of indigenous peoples of this Hemisphere.  In the Commission’s 1972 resolution on the problem of “Special Protection for Indigenous Populations.  Action to combat racism and racial discrimination,” the Commission proclaimed that “for historical reasons and because of moral and humanitarian principles, special protection for indigenous populations constitutes a sacred commitment of the states.” [86]   This notion of special protection has since been considered in numerous country and individual reports adopted by the Commission and, as will be discussed further below, has been recognized and applied in the context of numerous rights and freedoms under both the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights, including the right to life, the right to humane treatment, the right to judicial protection and to a fair trial, and the right to property. [87]  

127.   In acknowledging and giving effect to particular protections in the context of human rights of indigenous populations, the Commission has proceeded in tandem with developments in international human rights law more broadly.  Special measures for securing indigenous human rights have been recognized and applied in other international and domestic spheres, including most predominantly the Inter-American Court of Human Rights, [88] the International Labor Organization, [89] the United Nations through its Human Rights Committee [90] and Committee to Eradicate All Forms of Discrimination, [91] and the domestic legal systems of many states. [92]  

128.   Perhaps most fundamentally, the Commission and other international authorities have recognized the collective aspect of indigenous rights, in the sense of rights that are realized in part or in whole through their guarantee to groups or organizations of people. [93]   And this recognition has extended to acknowledgement of a particular connection between communities of indigenous peoples and the lands and resources that they have traditionally occupied and used, the preservation of which is fundamental to the effective realization of the human rights of indigenous peoples more generally and therefore warrants special measures of protection.  The Commission has observed, for example, that continued utilization of traditional collective systems for the control and use of territory are in many instances essential to the individual and collective well-being, and indeed the survival of, indigenous peoples and that control over the land refers both its capacity for providing the resources which sustain life, and to the geographic space necessary for the cultural and social reproduction of the group. [94] The Inter-American Court of Human Rights has similarly recognized that for indigenous communities the relation with the land is not merely a question of possession and production but has a material and spiritual element that must be fully enjoyed to preserve their cultural legacy and pass it on to future generations. [95]

129.   The development of these principles in the inter-American system has culminated in the drafting of Article XVIII of the Draft American Declaration on the Rights of Indigenous Peoples, [96] which provides for the protection of traditional forms of ownership and cultural survival and rights to land, territories and resources.  While this provision, like the remainder of the Draft Declaration, has not yet been approved by the OAS General Assembly and therefore does not in itself have the effect of a final Declaration, the Commission considers that the basic principles reflected in many of the provisions of the Declaration, including aspects of Article XVIII, reflect general international legal principles developing out of and applicable inside and outside of the inter-American system and to this extent are properly considered in interpreting and applying the provisions of the American Declaration in the context of indigenous peoples.

130.   Of particular relevance to the present case, the Commission considers that general international legal principles applicable in the context of indigenous human rights to include:

•          the right of indigenous peoples to legal recognition of their varied and specific forms and modalities of their control, ownership, use and enjoyment of territories and property; [97]

•          the recognition of their property and ownership rights with respect to lands, territories and resources they have historically occupied; [98] and

•          where property and user rights of indigenous peoples arise from rights existing prior to the creation of a state, recognition by that state of the permanent and inalienable title of indigenous peoples relative thereto and to have such title changed only by mutual consent between the state and respective indigenous peoples when they have full knowledge and appreciation of the nature or attributes of such property. [99] This also implies the right to fair compensation in the event that such property and user rights are irrevocably lost. [100]

131.   Based upon the foregoing analysis, the Commission is of the view that the provisions of the American Declaration should be interpreted and applied in the context of indigenous petitioners with due regard to the particular principles of international human rights law governing the individual and collective interests of indigenous peoples. [101] Particularly pertinent provisions of the Declaration in this respect include Article II (the right to equality under the law), Article XVIII (the right to a fair trial), and Article XXIII (the right to property).  As outlined above, this approach includes the taking of special measures to ensure recognition of the particular and collective interest that indigenous people have in the occupation and use of their traditional lands and resources and their right not to be deprived of this interest except with fully informed consent, under conditions of equality, and with fair compensation.  The Commission wishes to emphasize that by interpreting the American Declaration so as to safeguard the integrity, livelihood and culture of indigenous peoples through the effective protection of their individual and collective human rights, the Commission is respecting the very purposes underlying the Declaration which, as expressed in its Preamble, include recognition that “[s]ince culture is the highest social and historical expression of that spiritual development, it is the duty of man to preserve, practice and foster culture by every means within his power.”

132.   The Commission will therefore interpret and apply the provisions of the American Declaration to the Petitioners’ claims of violations of the American Declaration in light of above principles.

D.       Application of International Human Rights Norms and Principles in the Circumstances of Mary and Carrie Dann

133.   Among the provisions of the American Declaration which are alleged to have been violated by the State in the present case are Articles II, XVIII and XXIII, which read as follows:

Article II. Right to equality before the law

All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor.

Article XVIII – Right to a fair trial

Every person may resort to the courts to ensure respect for his legal rights.  There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights. 

Article XXIII – Right to property

Every person has a right to own such private property as meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home.

134.   As noted above, the Commission has accepted based upon the observations of the parties that the Western Shoshone are an indigenous people who are acknowledged as historically having had ownership, use and occupation of the Western Shoshone ancestral lands.  In addition, the Dann sisters are accepted as members of the Western Shoshone people.  Accordingly, their claims in the present case, relating as they do to their potential interests in the Western Shoshone ancestral lands, should be determined in the context of the foregoing principles of indigenous human rights law.

135.   In the context of the procedural history in the Dann case outlined above, two factual issues of particular significance to the issues raised in this case appear to be the subject of conflicting submissions by the parties and require determination by the Commission based upon the record before it.

136.   First, the Petitioners contend that the Danns did not authorize or participate in the ICC claim submitted by the Temoak Band before the ICC, and that when they and several other bands subsequently sought to intervene in the proceedings, they were unsuccessful.  The State submits conversely that throughout the proceedings before the ICC the Western Shoshone were kept fully apprised through regular meetings held with members of the tribe.  The only such meetings specifically referred to by the State, however, were meetings convened by the attorney for the Temoak Band in 1965, 14 years after the ICC proceedings commenced and 3 years after the ICC issued its extinguishment finding.  In the absence of evidence to the contrary the Commission accepts that the Danns did not play a full or effective role in retaining, authorizing or instructing the Western Shoshone claimants in the ICC process.

137.   In addition, there appears to be some conflict between the parties’ positions as to whether the subsistence of Western Shoshone title to all or part of its ancestral territory was the subject of litigation and determination by the ICC.  Based upon the record before it, the Commission finds that the determination as to whether and to what extent Western Shoshone title may have been extinguished was not based upon a judicial evaluation of pertinent evidence, but rather was based upon apparently arbitrary stipulations as between the U.S. government and the Temoak Band regarding the extent and timing of the loss of indigenous title to the entirety of the Western Shoshone ancestral lands.  In reaching this conclusion, the Commission has considered in particular the 1983 judgment of the U.S. Court of Appeals for the Ninth Circuit in which that Court concluded on the evidence available that Western Shoshone title had not been extinguished. [102]   In this respect, the Ninth Circuit was the only judicial body to review the substance of the ICC’s finding of “extinguishment” of Western Shoshone title, but its findings were reversed by the U.S. Supreme Court without consideration of the merits of the Ninth Circuit’s findings on this point.  This effectively left the issue of title to Western Shoshone lands without definitive substantive adjudication by the U.S. courts. 

138.   In evaluating the Petitioners’ claims in light of these evidentiary findings, the Commission first wishes to expressly recognize and acknowledge that the State, through the development and implementation of the Indian Claims Commission process, has taken significant measures to recognize and account for the historic deprivations suffered by indigenous communities living within the United States and commends the State for this initiative.  As both the Petitioners and the State have recognized, this process provided a more efficient solution to the sovereign immunity bar to Indian land claims under U.S. law and extended to indigenous communities certain benefits relating to claims to their ancestral lands that were not available to other citizens, such as extended limitation periods for claims.

139.   Upon evaluating these processes in the facts as disclosed by the record in this case, however, the Commission concludes that these processes were not sufficient to comply with contemporary international human rights norms, principles and standards that govern the determination of indigenous property interests.

140.   The Commission first considers that Articles XVIII and XXIII of the American Declaration specially oblige a member state to ensure that any determination of the extent to which indigenous claimants maintain interests in the lands to which they have traditionally held title and have occupied and used is based upon a process of fully informed and mutual consent on the part of the indigenous community as a whole.  This requires at a minimum that all of the members of the community are fully and accurately informed of the nature and consequences of the process and provided with an effective opportunity to participate individually or as collectives.  In the case of the Danns, however, the record indicates that the land claim issue was pursued by one band of the Western Shoshone people which no apparent mandate from the other Western Shoshone bands or members.  There is also no evidence on the record that appropriate consultations were held within the Western Shoshone at the time that certain significant determinations were made.  This includes in particular the ICC’s finding that the entirety of the Western Shoshone interest in their ancestral lands, which interests affect the Danns, was extinguished at some point in the past.

141.   To the contrary, despite the fact that it became clear at the time of the Danns’ request to intervene that the collective interest in the Western Shoshone territory may not have been properly served through the proceedings pursued by the Temoak Band, the courts ultimately did not take measures to address the substance of these objections but rather dismissed them based upon the expediency of the ICC processes.  In the Commission’s opinion and in the context of the present case, this was not sufficient in order for the State to fulfill its particular obligation to ensure that the status of the Western Shoshone traditional lands was determined through a process of informed and mutual consent on the part of the Western Shoshone people as a whole.

142.   The insufficiency of this process was augmented by the fact that, on the evidence, the issue of extinguishment was not litigated before or determined by the ICC, in that the ICC did not conduct an independent review of historical and other evidence to determine as a matter of fact whether the Western Shoshone properly claimed title to all or some of their traditional lands.  Rather, the ICC determination was based upon an agreement between the State and the purported Western Shoshone representatives as to the extent and timing of the extinguishment.  In light of the contentions by the Danns that they have continued to occupy and use at least portions of the Western Shoshone ancestral lands, and in light of the findings by the Ninth Circuit Court of Appeals as to the merits of the ICC’s extinguishment finding, it cannot be said that the Danns’ claims to property rights in the Western Shoshone ancestral lands were determined through an effective and fair process in compliance with the norms and principles under Articles XVIII and XXIII of the American Declaration. 

143.   Further, the Commission concludes that to the extent the State has asserted as against the Danns title in the property in issue based upon the ICC proceedings, the Danns have not been afforded their right to equal protection of the law under Article II of the American Declaration.  The notion of equality before the law set forth in the Declaration relates to the application of substantive rights and to the protection to be given to them in the case of acts by the State or others. [103] Further, Article II, while not prohibiting all distinctions in treatment in the enjoyment of protected rights and freedoms, requires at base that any permissible distinctions be based upon objective and reasonable justification, that they further a legitimate objective, regard being had to the principles which normally prevail in democratic societies, and that the means are reasonable and proportionate to the end sought. [104]  

144.   The record before the Commission indicates that under prevailing common law in the United States, including the Fifth Amendment to the U.S. Constitution, the taking of property by the government ordinarily requires a valid public purpose and the entitlement of owners to notice, just compensation, and judicial review. [105] In the present case, however, the Commission cannot find that the same prerequisites have been extended to the Danns in regard to the determination of their property claims to the Western Shoshone ancestral lands, and no proper justification for the distinction in their treatment has been established by the State.  In particular, as concluded above, any property rights that the Danns may have asserted to the Western Shoshone ancestral lands were held by the ICC to have been “extinguished” through proceedings in which the Danns were not effectively represented and where the circumstances of this alleged extinguishment were never actually litigated nor the merits of the finding finally reviewed by the courts.  And while compensation for this extinguishment was awarded by the ICC, the value of compensation was calculated based upon an average extinguishment date that does not on the record appear to bear any relevant connection to the issue of whether and to what extent all or part of Western Shoshone title in their traditional lands, including that of the Danns, may no longer subsist.  Further, the Commission understands that the amount of compensation awarded for the alleged encroachment upon Western Shoshone ancestral lands did not include an award of interest from the date of the alleged extinguishment to the date of the ICC decision, thus leaving the Western Shoshone uncompensated for the cost of the alleged taking of their property during this period.

145.   All of these circumstances suggest that the Danns have not been afforded equal treatment under the law respecting the determination of their property interests in the Western Shoshone ancestral lands, contrary to Article II of the Declaration.  While the State has suggested that the extinguishment of Western Shoshone title was justified by the need to encourage settlement and agricultural developments in the western United States, the Commission does not consider that this can justify the broad manner in which the State has purported to extinguish indigenous claims, including those of the Danns, in the entirety of the Western Shoshone territory.  In the Commission’s view, this is particularly apparent in light of evidence that the Danns and other Western Shoshone have at least until recently continued to occupy and use regions of the territory that the State now claims as its own.

V.      PROCEEDINGS SUBSEQUENT TO REPORT 113/01

146.   On October 15, 2001 the Commission adopted Report 113/01 pursuant to Article 43 of its Rules of Procedure, setting forth its analysis of the record, findings and recommendations in this matter.

147.   Report 113/01 was transmitted to the State on October 19, 2001 with a request that the State provide information as to the measures it had taken to comply with the recommendations set forth in the report within a period of two months, in accordance with Article 43(2) of the Commission’s Rules.

148.   By communication dated December 17, 2001 and received by the Commission on December 19, 2001 the State delivered a response to the Commission’s request for information, in which it rejected the Commission’s report in its entirety and asserted that Mary and Carrie Dann had been accorded the right to equality before the law, the right to a fair trial, and the right to own property.

149.   Prior to discussing the State’s objections in further detail, the Commission emphasizes that the purpose of transmitting a preliminary merits report to the state concerned in accordance with Article 43(2) of the Commission’s Rules of Procedure is to receive information as to what measures have been adopted to comply with the Commission’s recommendations. [106]   At this stage of the process, the parties have had a full opportunity to argue their positions, the admissibility and merits phases of the process are completed, and the Commission has rendered its decision. Therefore, while a state may provide its views on the factual and legal conclusions reached by the Commission in its preliminary report, it is not for a State at this point, as the United States has done in the present case, to reiterate its previous arguments, or to raise new arguments, concerning the admissibility or merits of the complaint before the Commission, nor is the Commission obliged to consider any such submissions prior to adopting its final report on the matter.

150.   In light of the significance of the legal issues raised in this case, however, and without detracting from the fundamental procedural considerations noted above, the Commission has decided to summarize and provide observations on certain aspects of the State’s response.  The United States made four principal arguments in rejecting the conclusions and recommendations in the Commission’s report. It first contended that the Danns’ complaints regarding the alleged lack of due process in the Indian Claims Commission proceedings were fully and fairly litigated in the United States courts and should not be reconsidered by the Commission. Second, the State argued that the Commission lacked jurisdiction to evaluate processes established under the 1946 Indian Claims Act since the Act predated the U.S. ratification of the OAS Charter. Third, the State claimed that the Commission erred in interpreting the principles of the American Declaration in light of Article XVIII of the OAS draft Declaration on the Rights of Indigenous Peoples, which had not yet been adopted by the political organs of the OAS. Finally, the State rejected the Commission’s findings on the basis that the American Declaration is not a legally binding instrument and therefore cannot be the object of violations by the United States.

151.   In elaborating upon the arguments in its response, the United State provided an overview of the history of litigation in US domestic courts pertaining to the Western Shoshone lands. According to the State, this included in particular the action filed in 1951 on behalf of the Western Shoshone with the Indian Claims Commission to recover damages for the loss of aboriginal title to lands in the Western United States, including Nevada and California. The State notes that this litigation was completed in 1977, after the Indian Claims Commission had determined the fair market value of the lands acquired from the Western Shoshone to be $21,550,000.00 based upon a July 1, 1872 valuation date stipulated by the parties. The State also acknowledged that the Western Shoshone Legal Defense and Education Association, representing Mary and Carrie Dann, subsequently moved to stay the Indian Claims Commission proceedings and presented an amended claim in which it sought to delete from the claims lands to which it contended the Western Shoshone still retained aboriginal title. The State asserts that the Indian Claims Commission, viewing this dispute as an “internal one among the Western Shoshone over litigation strategy,” denied the motion, a decision that was subsequently maintained on appeal to the US Court of Claims and ultimately to the US Supreme Court through denial of a petition for a writ of certiorari.

152.   The State also refers to the trespass action commenced by the United States government against the Danns in 1974 alleging that they were grazing livestock on certain public lands in Nevada without a permit as required by regulations promulgated by the Secretary of the Interior under the Taylor Grazing Act. The United States notes in particular that according to the US Supreme Court, the finality under section 22(a) of the 1946 Indian Claims Commission Act of the ICC’s judgment and award in the Western Shoshone litigation precluded the Danns from continuing to assert aboriginal title, since the award had been placed in a trust fund account for the benefit of members of the Western Shoshone. The Supreme Court also observed that only tribal, but not individual, aboriginal rights were precluded by the Indian Claims Commission proceedings, although the Court declined to address the issue of individual aboriginal title further since it had not been addressed by the lower courts. On remand, the US Court of Appeals for the Ninth Circuit ruled that the Danns would be able to assert individual aboriginal title as a defense in the trespass action to the extent that such rights were acquired prior to the withdrawal of the lands from the public grazing legislation in 1934 and continuously exercised since that time. However, the Danns subsequently withdrew their claims of individual aboriginal title as a defense in the trespass action, and as a result the US federal courts have ordered the Danns to comply with the United States’ grazing regulations.

153.   In disputing the findings in the Commission’s report, the State first contends that the Commission has violated the ”fourth instance” procedural rule by advancing the same arguments that have been adjudicated, reviewed and rejected by federal courts in the above litigation in accordance with US federal law and, in the State’s view, the provisions of international law, contemporary or otherwise.

154.   In this connection, the State identifies as a “fundamental error” throughout the Commission’s decision its factual assumption that the land at issue in the Indian Claims Commission litigation represented an aggregation of individual claims and not a collective tribal claim of the Western Shoshone. The State asserts that the claim before the Indian Claims Commission was in fact a collective tribal claim regarding all of the communal tribal lands and not an aggregation of related individual claims, a characteristic recognized by the US Court of Claims and by the “firmly established principle” under US law that tribes, not individuals, have authority over communal tribunal land. As a consequence, the Danns were not entitled to be individually represented in the Indian Land Claims proceeding.

155.   The State also contends that the Commission committed a fundamental factual error by concluding that at the time of the Danns’ request to intervene, the collective interest in the Western Shoshone territory may not have been properly served through the proceedings pursued by the Temoak Band. Rather, the State argues that US Court of Claims properly concluded that the Temoak Band was the appropriate representative of the entire Western Shoshone and that the allegations of fraud and collusion levied by the Danns and other petitioners against the Temoak Band were unfounded. The State notes in particular that the US Court of Claims viewed the dispute by the Danns and other petitioners raised in their application to intervene as a dispute “over the proper strategy to follow in this litigation.” The State observes in this regard that the US Court of Claims also held that during the title phase of the proceeding before the Indian Claims Commission there had been a judicial evaluation of the pertinent evidence pertaining to the issue of extinguishment of Western Shoshone title, whereby the Indian Claims Commission made its own determination that the Western Shoshone lands were held by separate Shoshone entities and that Indian title to the area was extinguished by encroachment. The US Court of Claims considered in particular that it was proper for the parties to agree to stipulate that the Nevada lands be valued as of July 1, 1872 rather than having a further “burdensome” trial of the dates of disposals of each separate tract.

156.   Based upon these findings by the US Court of Claims, the State argues that the Commission erred in finding that the Temoak band did not properly serve the interests of the Western Shoshone, but rather that the US courts fully examined this question and properly concluded that the Temoak Band was the proper representative of the Western Shoshone and that they had fully litigated their claim.

157.   Another factual error that the United States alleges on the part of the Commission is the finding that the Danns were not fully apprised of the litigation strategy that had been employed by the organized entity of the Western Shoshone group. The State points in this regard to a finding by the US Court of Claims that the Danns were for a very long time quite aware of the position with respect to the Nevada land taken before the Indian Claims Commission by the Temoak Band and its counsel. The State also points to findings in the same US Court of Claims decision that the attorney for the Temoak Band reported that Western Shoshone General Council meetings occurred in 1947, three years before the ICC action was filed, in 1959, three years before the ICC issued its extinguishment finding, and in 1965, five years before the ICC issued its decision awarding $26,154,600 to the Western Shoshone, and therefore that the Commission erred in finding that there was no evidence on the record that appropriate consultations were held within the Western Shoshone at the time that certain significant determinations were made.

158.   Further, the State disputes the Commission’s finding that the US courts did not take the measures necessary to address the substance of the Danns’ request for intervention but dismissed them based upon the expediency of the ICC proceedings. The State relies in this regard upon the US Court of Claims’ denial of the intervention based upon the “unjustified tardiness of the request for intervention”, which occurred 23 years after the litigation was initiated. The State therefore contends that in light of the Court of Claims’ determination that no adequate excuse was offered for the long delay, and the fact that any other litigant in US federal courts would be subject to equivalent procedural requirements concerning timeliness, neither the United States Courts procedural ruling nor the preclusive effect of that Congress has assigned to the judgment of the Indian Claims Commission offends due process. The State therefore maintains that the processes employed in the Western Shoshone Indian Claims Commission litigation did provide due process guarantees required by the US Constitution and reflected in the American Declaration, and indeed afforded them an even greater opportunity to press their claims than would be available to a non-Indian seeking compensation for the taking of their land, as the Commission in part recognized.

159.   In its response to the Commissions’ report, the United States also contended that the processes established under the Indian Claims Act of 1946 did not violate contemporary norms of international law. The State first argues that the Commission lacked jurisdiction over events that resulted solely from the passage of the Indian Claims Commission Act, since that statute only extended jurisdiction to the Indian Claims Commission for claims arising from the taking of aboriginal lands prior to August 13, 1946, while the United States did not ratify the OAS Charter until after the Indian Claims Commission Act was signed into law on August 13, 1946.

160.   The State further complains that the evaluation of the processes established under the 1946 Indian Claims Commission Act in light of contemporary international norms is an impermissible inter-temporal application of law, according to which the State claims that “it is not permissible to import into the legal evaluation of a previously existing situation, or of an old treaty, doctrines of modern law that did not exist and were not accepted at the time, and only resulted from the subsequent development or evolution of international law.” [107]   In the State’s view, the Commission has violated the principle of inter-temporal law because the Indian Claims Proceedings concerning the Western Shoshone were completed in 1977 and the Indian Claims Commission itself was dissolved on September 30, 1978.

161.   The State’s second objection to the Commission’s legal approach challenges the Commission’s conclusion that aspects of Article XVIII of the OAS draft Declaration on the Rights of Indigenous Peoples reflect general international legal principles developing out of and applicable inside and outside of the inter-American system and could therefore be relied upon in interpreting and applying the provisions of the American Declaration in the context of indigenous peoples. In support of its position that Article XVIII of the draft declaration does not reflect general international legal principles, the State cites the 1999 advice of the Inter-American Juridical Committee that “[i]nternational law does not recognize the indigenous person’s right of ownership and use of lands as defined in this article,” [108] and objects that the Commission makes no effort to reconcile its position with that of the Inter-American Juridical Committee.

162.   The State also relies upon its own previously-expressed view, and that of other OAS member states, that draft Article XVIII does not reflect general international legal principles. [109]   The State therefore rejects what it characterizes as the application of substantive norms that may or may not emerge in a non-binding document that has not yet been agreed to by member states of the OAS to processes established by the United States in 1946. The State adds that it is not relevant to analyze whether the United States violated general norms of international law since the Commission is not an international tribunal, and further objects that treaties cited by the Commission, including the International Covenant on Civil and Political Rights and the Convention on the Elimination of Racial Discrimination, are not binding upon the United States to the disputed situation since they were ratified long after the litigation in question was completed. 

163.   The Commission has the following brief observations in respect of the State’s objections to the conclusions and recommendations in the Commission’s preliminary merits report in this matter. Beginning with the State’s final objection relating to the legal status of the American Declaration, the State claims that the Commission erred in finding that the United States has violated provisions of the American Declaration because the Commission’s competence, as defined through the 1967 amendment of the OAS Charter and the 1979 Statute of the Inter-American Commission approved by OAS Resolution No. 447, October 1979, “does not turn a non-binding document such as the American Declaration into a treaty that can be considered to be legally binding upon the United States.” [110] The State’s observations fail to consider, however, the well-established and long-standing jurisprudence and practice of the inter-American system according to which the American Declaration is recognized as constituting a source of legal obligation for OAS members states, including in particular those states that are not parties to the American Convention on Human Rights. [111] These obligations are considered to flow from the human rights obligations of member states under the OAS Charter, [112] which member states have agreed are contained in and defined by the American Declaration, [113] as well as from the customary legal status of the rights protected under many of the Declaration’s core provisions. [114] As a source of legal obligation, therefore, it is appropriate for the Commission to consider and, where substantiated, find violations of that instrument attributable to a member state of the OAS, including the United States.

164.   The Commission also observes that many of the State’s objections relate to the extent to which and manner in which the Commission evaluated issues, facts and evidence that, according to the State, had already been the subject of consideration and determination by the domestic courts. What the State must recognize in this connection, however, is that the Commission has an independent obligation to evaluate the facts and circumstances of a complaint as elucidated by the parties in light of the principles and standards under the American Declaration. This includes such matters as the adequacy of the procedures through which the petitioners’ property interests in the Western Shoshone ancestral land were purported to be determined.  While proceedings or determinations at the domestic level on similar issues can be considered by the Commission as part of the circumstances of a complaint, they are not determinative of the Commission’s own evaluation of the facts and issues in a petition before it.  This is particularly significant in cases such as the present, where neither the courts not the state itself regarded the matters raised in the case as human rights issues, but rather as questions regarding land title and land use. The Commission hastens to add in this connection that, contrary to what the State appears to contend in its response, the domestic courts did not reach consistent or clear decisions on certain central aspects of the petitioners’ complaints relating to the Western Shoshone ancestral land, including particularly the question of whether the alleged extinguishment of indigenous title in the land had ever been litigated before domestic authorities as well as whether the Danns’ due process rights were properly respected in the domestic process. [115]   It was therefore not only appropriate, but crucial, for the Commission to reach conclusions on these matters, in light of the significant implications of this aspect of the circumstances of the complaint upon the State’s obligations under Articles II, XVIII and XXIII of the American Declaration in connection with indigenous property interests.

165.   Specifically with regard to the adequacy of the Danns’ participation in the process by which title to the Western Shoshone ancestral lands was purported to be determined, the Commission considers it important to emphasize, as it noted in its decision on the merits, that the collective interests of indigenous peoples in their ancestral lands is not to be asserted to the exclusion of the participation of individual members in the process. To the contrary, the Commission has found that any determination of the extent to which indigenous peoples may maintain interests in the lands to which they have traditionally held title and have occupied and used must be based upon a process of fully informed and mutual consent on the part of the indigenous community as a whole. And as the Commission concluded on the circumstances of this case, the process by which the property interests of the Western Shoshone were determined proved defective in this respect. That only proof of fraud or collusion could impugn the Temoak Band’s presumed representation of the entire Western Shoshone people, and that Western Shoshone General Council meetings occurred on only three occasions during the 18 year period between 1947 and 1965, fails to discharge the State’s obligation to demonstrate that the outcome of the ICC process resulted from the fully informed and mutual consent of the Western Shoshone people as a whole.

166.   The State’s objections to the Commission’s competence, relating both to the fourth instance formula and its jurisdiction ratione temporis concerning the 1946 Indian Claims Commission Act, were not raised by the State before or in response to the Commission’s admissibility report, in which the Commission concluded that it had competence to consider the Petitioners’ complaints, [116] and the Petitioners have had no notice of or opportunity to respond to these new allegations. Consequently, it is not open to the State to raise these objections at this stage of the process. In any event, the Commission considers that the fourth instance formula has no application in this case. According to the fourth instance formula, the Commission in principle will not review the judgments issued by the domestic courts acting within their competence and with due judicial guarantees. The fourth instance formula does not, however, preclude the Commission from considering a case where the Petitioner’s allegations entail a possible violation of any of the rights set forth in instruments of the inter-American human rights system. [117] In the present case, the Petitioners have alleged, and the Commission in fact found, discrete violations of the principles and standards under the American Declaration of the Rights and Duties of Man based upon its evaluation of the facts and evidence as presented by the parties in the proceeding before it, and therefore the fourth instance formula does not apply. Moreover, the notion that the Commission is precluded from addressing an issue merely because the domestic courts of a member state may have addressed the same matter is plainly inconsistent with the exhaustion of domestic remedies requirement and must be rejected on this ground as well. Concerning the fact that the Indian Claims Commission Act was promulgated in 1946, it is well established that a state remains responsible for any violations of a human rights instrument that pre-dated its ratification or accession to the instrument, to the extent that those violations continue to have effects or are not manifested until after the date of ratification. [118]   In the present case, the facts as determined by the Commission clearly indicate that the Indian Claims Commission Act applied to and had effects upon the Petitioners well after the United States’ ratification of the OAS Charter in 1951, and indeed continue to do so, and consequently the State properly remains responsible for the effects of the application of that legislation upon the petitioners to the extent they are inconsistent with the petitioners’ rights under the American Declaration.

167.   As for the alleged impermissible inter-temporal application of law, the State’s submissions in this regard rely upon the mistaken premise that the Commission is addressing a “previously existing situation” in evaluating the Danns’ complaint.  While it may be the case that the ICC process itself took place more than 30 years ago, the Petitioners’ complaints concerning indigenous title to the property, including alleged improprieties in the ICC process, remained the subject of controversy and continued to effect the Petitioners’ interests at the time their petition was lodged and continue to do so. Moreover, the American Declaration, as an embodiment of existing and evolving human rights obligations of member states under the OAS Charter, is not to be interpreted and applied as the law that existed at the time of the Declaration’s adoption but rather in light of ongoing developments in the rights protected under those instruments. [119] Consequently, it is appropriate to evaluate the Petitioners’ complaints in light of developments in the corpus of international human rights law more broadly since the American Declaration was first composed. [120] To the extent that the Danns remain the victims of an on-going violation of their rights under Articles II and XXIII of the Declaration, then, the State is obliged to resolve the situation in light of its contemporary obligations under international human rights law and not those applicable at the time when the ICC process took place, to the extent that the law may have evolved.

168.   The State’s criticisms of the Commission’s reference to the draft Inter-American Declaration on the Rights of Indigenous Peoples and of contemporary international human rights standards to the Danns’ situation, like its objections to the Commission’s jurisdiction, are untimely and not properly the subject of argument at this stage of the process, particularly since the basis of these objections were clearly in issue during the processing of the complaint before the Commission. As the Commission observed in its preliminary merits report, however, the provisions of the draft Indigenous Declaration are properly considered in interpreting and applying the provisions of the American Declaration in the context of indigenous peoples to the extent that the basic principles reflected in provisions of the draft Declaration, including aspects of Article XVIII, reflect general international legal principles developing out of and applicable inside and outside of the inter-American system. [121]

169.   Based upon the State’s response, the Commission must conclude that no measures have been taken to comply with the Commission’s recommendations. On this basis, and having considered the State's observations, the Commission has decided to ratify its conclusions and reiterate its recommendations, as set forth below.

VI.      CONCLUSIONS

170.   The Commission, based upon the foregoing considerations of fact and law, and in light of the response of the State to Report 113/01, hereby ratifies the following conclusions.

171.   The Commission wishes to emphasize that it is not for this body in the circumstances of the present case to determine whether and to what extent the Danns may properly claim a subsisting right to property in the Western Shoshone ancestral lands. This issue involves complex issues of law and fact that are more appropriately left to the State for determination through those legal processes it may consider suitable for that purpose.  These processes must, however, conform with the norms and principles under the American Declaration applicable to the determination of indigenous property rights as elucidated in this report.  This requires in particular that the Danns be afforded resort to the courts for the protection of their property rights, in conditions of equality and in a manner that considers both the collective and individual nature of the property rights that the Danns may claim in the Western Shoshone ancestral lands.  The process must also allow for the Danns’ full and informed participation in the determination of their claims to property rights in the Western Shoshone ancestral lands.

172.   Based upon the foregoing analysis, the Commission hereby concludes that the State has failed to ensure the Danns’ right to property under conditions of equality contrary to Articles II, XVIII and XXIII of the American Declaration in connection with their claims to property rights in the Western Shoshone ancestral lands.

VII.     RECOMMENDATIONS

173.   In accordance with the analysis and conclusions in the present report,

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES THE FOLLOWING RECOMMENDATIONS TO THE UNITED STATES: 

1.       Provide Mary and Carrie Dann with an effective remedy, which includes adopting the legislative or other measures necessary to ensure respect for the Danns’ right to property in accordance with Articles II, XVIII and XXIII of the American Declaration in connection with their claims to property rights in the Western Shoshone ancestral lands.

2.       Review its laws, procedures and practices to ensure that the property rights of indigenous persons are determined in accordance with the rights established in the American Declaration, including Articles II, XVIII and XXIII of the Declaration. 

VIII.    PUBLICATION

174.   By communication dated October 30, 2002, the Commission transmitted this report, adopted as Report Nº 53/02 pursuant to Article 45(1) of the Commission’s Rules of Procedure, to the State and to the Petitioners in accordance with Rule 45(2) of the Commission’s Rules and requested information within 30 days as to measures adopted by the State to implement the Commission’s recommendations. [122]

175.   In a note dated November 27, 2002 and received by the Commission on the same date, the State responded to the Commission’s October 30, 2002 request for information.  In its communication, the State reiterated the arguments contained in its response to the Commission’s preliminary merits report in this matter, namely that the United States rejected the Commission’s findings in their entirety because: (i) the Danns’ contentions regarding alleged lack of due process in the Indian Claims Commission proceedings were fully and fairly litigated in the United States courts and should not be relitigated before the Commission; (ii) the Commission lacks jurisdiction to evaluate processes established under the 1946 Indian Claims Commission Act since the Act predates U.S. ratification of the OAS Charter; and (iii) the Commission erred in interpreting the principles of the American Declaration in light of Article XVIII of the OAS draft declaration on indigenous rights.

176.   In its response, the United States also reiterated its position that the Danns’ claim “is, fundamentally, not a human rights claim, but an attempt by two individual Indians to reopen the question of collective Western Shoshone tribal property rights to land - a question that has been litigated to finality in the U.S. courts.” Based upon these submissions, the United States stated that it “respectfully declines to take any further actions to comply with the Commission’s recommendations.” 

177.   Also by communication dated November 27, 2002 and received by the Commission on that date, the Petitioners provided a response to the Commission’s October 30, 2002 request for information. In their response, the Petitioners asserted that the United States had failed to comply with the Commission’s recommendations. They referred in this regard to United States’ communications to the Commission and to the public in which the State has explicitly rejected the Commission’s findings. These communications include the testimony of Neal McCaleb, US Assistant Secretary for Indian Affairs, at an August 2, 2002 hearing of the US Senate Indian Affairs Committee in which Mr. McCaleb is alleged to have stated that the Commission’s preliminary report was “in error” and should not be considered relevant to that Committee’s consideration of the Western Shoshone Claims Distribution Act.

178.   The Petitioners also claim that representatives of the United States have responded to repeated overtures by counsel for the Petitioners to engage in discussions to resolve the issues in the case by reiterating that the United States does not agree with the Commission’s conclusions and that it is not bound to uphold the human rights principles outlined in the American Declaration of the Rights and Duties of Man.

179.   Further, the Petitioners contend that the United States has, since the Commission’s preliminary report was issued, taken actions that further infringe on the human rights of the Danns that are the subject of the Commission’s conclusions and recommendations. These actions are said to include the seizure and confiscation on September 22, 2002 by the US Bureau of Land Management and 40 armed federal agents of approximately 225 head of cattle from the Danns’ ancestral land, which were subsequently auctioned off to the highest bidder several days later. These events took place despite an October 2, 2002 request by the Commission for the United States to comply with the Commission’s June 28, 1999 precautionary measures by returning the said livestock to the Danns and refraining from impounding any additional livestock belonging to the Danns until the procedure before the Commission was complete, including implementation of any final recommendations that the Commission might adopt in the matter. The Petitioners also refer to further actions taken by the US Congress to enact the Western Shoshone Claims Distribution Act, which would authorize a per capita distribution of the funds awarded by the Indian Claims Commission as payment for Western Shoshone ancestral lands, notwithstanding the findings in the Commission’s report.

180.   Finally, the Petitioners assert that it is not too late for the United States to take remedial congressional action or other measures to implement both of the recommendations contained in the Commission’s report. In particular, they state that although the Western Shoshone Claims Distribution Act passed the Senate on November 7, 2002, the bill did not become law because the House of Representatives adjourned without taking any action on the legislation. Although Senators supporting the bill have publicly pledged to reintroduce it after the new congress convenes in January, the Petitioners and other Western Shoshone have proposed that Congress enact legislation mandating negotiations between the Western Shoshone and the United States to identify and protect Western Shoshone lands sufficient to ensure their economic and cultural prosperity, and have suggested that Congress convene hearings to review the Indian Claims Commission proceedings and other US laws, procedures and practices that may not comply with international human rights protections.

181.   In light of the information received from the parties, including the Petitioners’ indication that domestic legislative and other mechanisms remain available for the State to give effect to the Commission’s recommendations, the Commission in conformity with Article 45(3) of its Rules of Procedure decides to ratify the conclusions and reiterate the recommendations in this Report, to make this Report public, and to include it in its Annual Report to the General Assembly of the Organization of American States. The Commission, according to the norms contained in the instruments which govern its mandate, will continue evaluating the measures adopted by the United States with respect to the above recommendations until they have been complied with by the United States.

Done on the 27^th day of the month of December, 2002. (Signed): Juan E. Méndez, President; Marta Altolaguirre, First Vicepresident; José Zalaquett, Second Vicepresident; Julio Prado Vallejo, Clare K. Roberts and Susana Villarán, Commissioners.

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