Although the Western Shoshone peopleâ€™s concept of land ownership is rooted in their cultural and spiritual heritage, in terms of United States law, their land claim was formally codified in the 1863 Treaty of Ruby Valley.
The treaty maps out Western Shoshone territory: the swath of land stretching from the Snake River Valley in Idaho to Salt Lake Valley in Utah, throughout eastern and central Nevada, and to the Mojave Desert in the South.
And the treaty anticipated economic development and population changes as a result of White settlement. Article 4 states:
It is further agreed by the parties hereto, that the Shoshone Country may be explored and prospected for gold and silver, or other minerals; and when mines are discovered, they may be worked, and mining and agricultural settlements formed, and ranches established whenever they may be required. Mills may be erected and timber taken for their use, as also for building and other purposes in any part of the country claimed by said bands.
Finally, the treaty stipulated terms of compensation for damages as a result of encroachment by non-Native communities:
The United States, being aware of the inconvenience resulting to the Indians in consequence of the driving away and destruction of game along the routes traveled by white men, and by the formation of agricultural and mining settlements, are willing to fairly compensate them for the same.
Though the treaty enabled some exploitation of the land, legal advocates for the Western Shoshone say that it drew distinct limits. In its briefing paper for the March 2006 UN Human Rights Committee session, the Indian Law Resource Center stressed that the treaty "did not cede title to the lands, but merely gave to the US limited access and use for specified purposes."
But about a century after the signing of the treaty, the Indian Claims Commission, a quasi-judicial body established by the federal government to resolve land-claim disputes, redefined the ancestral title of the Western Shoshone, claiming that "gradual encroachment" had effectively nullified historical land claims.
The judiciary later crystallized the "gradual encroachment" argument in the legal battle between the Interior Department and the Dann family over their right to graze cattle on disputed territory. The Supreme Court acknowledged in its opinion that "the Danns claimed that the land has been in the possession of their family from time immemorial and that their aboriginal title to the land precluded the government from requiring grazing permits." However, the Court backed the rationale behind the Commissionâ€™s award of $26 million as "payment" for the supposed encroachment, and that the original title of the Western Shoshone had been "extinguished" once the award had been deposited in a federal account.
Activists in the Western Shoshone community insist that their land was never for the taking. In their view, despite the impingement of non-indigenous people, corporations and government entities, the Western Shoshone have continued to occupy their lands, engaging in traditional activities such as hunting, grazing livestock and fishing.
In a statement of protest by the Western Shoshone National Council, Chief Raymond Yowell wrote in 1998: "With the Treaty of 1863 being ratified by the Western Shoshone and the United States, there are only two ways that land can be acquired by either nation. One is by a declared war, and the second is by a treaty of land cession. Neither of these events has occurred."
Yowell argued that due to the Western Shoshone peopleâ€™s sovereignty as an indigenous group, "US courts have no jurisdiction over Western Shoshone citizens. Until the United States can produce a legal land title transfer, jurisdiction remains with the Western Shoshone Nation."