Community Development Institute
PO Box 24009
Phoenix, AZ 85074
January 4, 2021
To: Inter American Commission on Human Rights
Organization of American
Attention: Mario Lopez-Garelli, Office of the Executive Secretary
Re: Mary and Cary Dann, Case 11.140
Follow up on compliance with recommendations
Dear Assistant Secretary Lopez-Garelli,
In our letter of September 22, 2020 to your office we submitted a record of developments relevant to the August 18, 2020 request by the IACHR to the US State Department under Secretary Mike Pompeo for follow up information about compliance of the US government pertinent to the findings of violations of the rights of Indigenous Peoples as established in the case of the Western Shoshone (Mary and Carrie Dann - 11.140).
Included in the communique from the IACHR to the US government was a request for information regarding actions to inform State agencies regarding the UN Declaration on the Rights of Indigenous Peoples (2007):
“Also inform whether there has been progress in the Federal Government's initiatives to protect the rights of Indigenous peoples, including the actions to inform State agencies about the principles contained in the United Nations Declaration on the Rights of Indigenous Peoples.”
On September 3, 2020 on behalf of the US Department of State, Mr. Bradley A. Freden Deputy Permanent Representative, responded to the request from the Inter-American Commission on Human Rights Organization of American States as follows:
“The United States has no further observations about developments related to these 28 cases and respectfully refers the Commission to our previous substantive filings in these cases, relevant hearing presentations, and other relevant U.S. correspondence.”
Also on August 18, 2020 the IACHR made a formal request for information to the legal representative of the Western Shoshone Defense Project regarding compliance with recommendations by the US government in the case. On September 11, 2020 the response to the IACHR by Ms. Julie Cavanaugh-Bill on behalf of the Western Shoshone Defense Project stated:
“With respect to our observations on the United States' compliance with the Commission's recommendations in the Case Report, unfortunately, we are still unaware of any efforts the State Party has made to comply with the recommendations. We again adopt the requests made in our previous correspondence. Since the filing of those observations, the United States has continued to take no action on the recommendations and has continued to allow destructive resource extraction activities on the ancestral land of the Western Shoshone with no attempt to sit down and resolve the long standing and ongoing human rights violations identified in the Commission's Report and in the United Nations CERD Decision 1 (68). We respectfully repeat the request for additional intervention by the Commission to conduct an on-site visit and to recommend a training workshop for public officials on the international human rights of Indigenous Peoples.”
Although the deadline for submissions to be considered for inclusion in the IACHR 2020 Annual Report has passed, as an organization of Indigenous Peoples whose fundamental human rights are being systematically violated in consequence of the failure to comply by US government to specific recommendations referenced the Western Shoshone case, we submit the following information of context and substance for your consideration in the annual report for 2021:
On September 13, 2020 our organization referenced the lack of good faith and lack of substantive action regarding the IACHR recommendations in the Western Shoshone case on the part of the US government in our intervention to the Tom Lantos Human Rights Commission (TLHRC) House Committee on Foreign Affairs. We specifically called into question the failure to recognize, respect, and provide guarantees for protection of the rights of Indigenous Peoples as articulated in the UN Declaration on the Rights of Indigenous Peoples in the newly established US-Mexico-Canada Agreement (USMCA) on international trade.
submissions to the Tom Lantos Human Rights Commission provided documented
evidence relevant to the systematic violation of the right of Indigenous Peoples to Free, Prior,
and Informed Consent under the recently adopted USMCA, and the
systematic violation of the Human Rights of Indigenous Peoples as Migrant
Workers with families with special measures of protection guaranteed by International Labor Organization Convention 169. This point is clearly relevant to the request by the IACHR for
information regarding developments regarding public policies and “actions to inform State agencies about the
principles contained in the United Nations Declaration on the Rights of
Indigenous Peoples” in particular because the newly adopted USMCA
includes in Chapter 32, Section A – Exceptions, the provisions of Article 32.5: Indigenous
Peoples Rights. The USMCA entered into force in all member states on July 1, 2020.
The IACHR began the official proceedings on Western Shoshone case on April 7, 1993, which was 14 years before the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) was adopted by the UN General Assembly on September 13, 2007. The US government voted against approval of UNDRIP at the UN. The IACHR did include reference to the draft version of UNDRIP in its final report on the case in 2002, along with reference to international recognition of traditional land use and tenure systems of the Indigenous Peoples under Convention 169 of the International Labor Organization. However, the principles and standards of UNDRIP, as they now apply in substance and context, were not yet available as a definitive instrument international human rights law for the purposes of evaluating the violation of Western Shoshone territorial rights and Human Rights before the IACHR as Indigenous Peoples, equal to all other peoples.
The time has come to re-evaluate the methodologies and procedures of remedy for violations of the Human Rights of the Original Nations of Indigenous Peoples of Abya Yala [Americas] in a contemporary context of International Law, considered in the light of the fundamental principle of non-discrimination, bringing to bear effective measures that address the need to repudiate and dismantle the legaloid tenets of the Doctrine of Discovery of Christendom that systematically shrouds the 528 years of continued colonization and genocide under the successor state regimes of the Americas.
The legal position of the US government in the Western Shoshone case before the IACHR is a narrative of racial supremacy and animus towards the Indigenous Peoples that pretends to argue that the “gradual encroachment” of US settler state constituents over Western Shoshone traditional territories is a legal justification for dispossession and environmental destruction. “Encroachment” is not a valid legal theory, it is only an excuse, in this case a bad excuse. Besides the fact that encroachment presumes a recognized right of possession over what is being encroached upon, in this case Western Shoshone Territories affirmed in the 1863 Treaty of Ruby Valley, the action of encroachment never eliminates this preceding underlying interest. Encroachment of the settler state domestic system of fee simple patent of private individual property interests only subverts the underlying and persisting Indigenous title and rights or imposes upon it in the form of a subsequent (in time) set of interests.
The “gradual encroachment” theory in the Western Shoshone case by the US government is the evil twin of the theory of “laches” that the state of New York used against the Onondaga Nation when it attempted to correct a similar territorial issue of international import before the US Supreme Court in 2016. Both theories contemplate an extended a period of time, one forwards and the other backwards, and officialize this version of settler state history, ignoring and subverting the historical evidence of the territorial responsibilities and rights of the Original Nations of Indigenous Peoples of the territories in question. These cases are classic narratives of description of the jurisprudence of the Forked Tongue Folk when it comes to Indigenous Peoples, where law is practiced but justice is never delivered.
Historically, just as the Haudenosaunee Confederacy saw the arrival and departure of the Dutch and the French in their territories, the Shoshone Nation also saw the coming and going of Spain and Mexico. New York was originally called New Amsterdam by these folks, and Nevada is a term that originates in the Spanish geography of the Empire of New Spain which the Republic of Mexico integrated into the formation of the Republic of Mexico in 1821.
In the Western Shoshone case, the United States claims that the title to the land in question was ceded to the United States by Mexico in 1848, subject to occupancy by the Native Americans.
Before proceeding further, clarifications are required, contemporary principles of international justice and non-discrimination must be established:
All subsequent arguments by the US government in the Western Shoshone case presume that the legal validity of the “title to the land in question” ceded to the US by the Treaty of Guadalupe Hidalgo (1848) with Mexico is unquestioned, has never been questioned, and never will be questioned in a venue of jurisdiction where the principle of justice is the law that governs the rules. Not just the law of the rulers.
United Nations Commission on Human Rights
Sub Commission on Prevention of Discrimination and Protection of Minorities
HUMAN RIGHTS OF INDIGENOUS PEOPLES
“The concept of the ‘rule of law’ began to traverse a long path, today in a new phase, towards transformation into ‘the law of the rulers’.
Final report by Miguel Alfonso Martínez, Special Rapporteur
22 June 1999
The United States maintains that the 1863 Treaty of Ruby Valley with the United States and the Western Shoshone is an agreement to end hostilities between them and live amicably. The United States claims that subsequent to the treaty with the Western Shoshone it treated certain lands within the area at issue as lands of the United States.
The “treatment” of Shoshone ancestral territories by inscription into the public land patent system of the US real estate system of dominion originates in the Common Law of England, exemplified by the enclosures of the crown. According to this claim, the process is identified in the Western Shoshone case as “inverse condemnation” via the gradual encroachment of settler state constituents encouraged to move into the territory by the US government.
This line of argument has been upheld in the US courts by decisions that affirm extinguishment of Shoshone land title by the inverse condemnation of gradual encroachment, and the claim that the Treaty of Ruby Valley “was not intended to acknowledge Shoshone title to lands covered by it.”
In terms of the proceedings within the US Indian Claims Commission’s case regarding the Shoshone territories referenced in the 1863 Treaty of Ruby Valley, the fraudulent claim of extinguishment in 1872 is compounded by the attempts of the US government to hide the racist and discriminatory nature of the bureaucratic dispossession of Indigenous Peoples from their ancestral homelands in the Indian Claims Commission proceedings. Against these forces of extinguishment, expropriation and exploitation, the Dann sisters, Mary and Carrie, gave their entire lives in full force of battle as indigenous women of the Western Shoshone Nation. Mary Dann passed away in 2005 and Carrie Dann has now joined her sister in the Spirit World in January of 2021.
The IACHR issued a report in 2002 condemning the United States for violating the Dann sisters' human rights, rejecting the United States' argument that its denial of continuing Western Shoshone rights was in accordance with U.S. law. The IACHR also noted the inadequacy of the historical rationale for the presumed taking of Western Shoshone land and also cited the United States' failure to apply the same just compensation standard ordinarily applied for the taking of property interests under U.S. law to the Western Shoshone.
Yet in none of these proceedings and determinations has the legal issue which is the contextual core of the dispute been raised that could clarify the fundamental question:
Specifically what is the legal foundation for the claim that the government of Mexico in 1848 had authorization to transfer valid land title and jurisdiction, in this case over Western Shoshone territory, to the US government?
Why and how is the inadequacy of this historical rationale still being normalized and ignored, even within the mechanisms of protection for Human Rights of Indigenous Peoples within the IACHR system?
In a working meeting in 2018 with the IACHR regarding the case the Western Shoshone petitioners informed the commission that the US government has not taken any actions to comply with the recommendations set forth in Merits Report No. 75/02. The petitioners also highlighted that the State has continued to allow destructive resource extraction activities to occur on the ancestral lands of the Western Shoshone Indigenous people, including continued mining and exploration at Mt. Tenabo/Horse Canyon, threatened mine exploration currently underway at Tosawibi Quarry, threatened oil and gas leasing underway at Ruby Valley, threatened molybdemon mining at Mt. Hope, and low-level nuclear waste at Yucca Mountain, which are having detrimental environmental effects including putting in danger the water supply of the Western Shoshone.
During working meeting held in 2018, the petitioners expressed their concern that the State has and continues to prioritize mining and extractive projects over the rights of the Western Shoshone Indigenous people. The petitioners reiterated their request that the IACHR conduct an on-site visit to Shoshone Territory to meet with traditional and tribal leaders. Further, they expressed their interest in opening a dialogue with the State to advance in the implementation of the recommendations issued by the IACHR in Merits Report No. 75/02.
This request to consider dialogue on the issues with officials of the US government was reiterated in the 2020 in the message by the Western Shoshone Defense Project to the Inter American Commission on Human Rights calling for additional follow up intervention by the Commission, including an on-site visit to the Western Shoshone Nation and workshops for public officials on the international human rights of Indigenous Peoples.
To this end, in complement, solidarity and commitment we now submit the following information of relevant context and substance for your due consideration in the case of Mary and Cary Dann (11.140):
On November 20, 2020 the Tom Lantos Human Rights Commission (TLHRC) of the House Committee on Foreign Affairs conducted a virtual hearing on Human Rights of Indigenous Peoples in the Americas. In the follow up submission by our organization to this virtual hearing of the TLHRC we stated:
“The commission is to be commended for addressing the overarching theme of Human Rights of Indigenous Peoples in a continental context, which is not only appropriate but necessary in order to achieve a comprehensive historical understanding and analysis of the systemic nature of human rights violations against Indigenous Peoples which persist in the continent.
“It is our understanding that the TLHRC addressed the issue of human rights of Indigenous Peoples in Latin America some ten years ago. During the virtual hearing on the 2oth of November, the substance of the testimonies during the virtual hearing echoed a common denominator of dispossession, discrimination, dehumanization, colonization and genocide that has been normalized in the Americas since October 12, 1492. That the “Latin American” chapter in this history has been reviewed by the TLHC is significant in the defense of internationally recognized human rights norms, but the issues of human rights violations against Indigenous Peoples in the Americas is not limited to the Roman Civil Law successor states of Latin America. The Anglo-American successor states on the continent, whose origin derives from the English Common Law of Christendom, must also come under review in the context of internationally recognized human rights principles and norms as enshrined in the Universal Declaration of Human Rights, and other relevant human rights instruments such as the UN Declaration on the Rights of Indigenous Peoples (2007).
A comprehensive historical understanding and analysis of the systematic human rights violations against Indigenous Peoples in the Americas [North-Central-South] must necessarily integrate a critical position in regard to the nefarious and racist Doctrine of Discovery of Christendom (October 12, 1492) which continues to be normalized by the successor states across the continent.
As we have now engaged the Tom Lantos Human Rights Commission in a public dialogue intended to promote the recognition, respect and guarantees for the Human Rights of Indigenous Peoples, we submit this report to the IACHR mindful of the lack of substantive response by the US government to your request of August 18, 2020 to the US Department of State regarding the case of our dear Shoshone relatives, Mary and Carrie Dann.
We submit here these principles for consideration in the Western Shoshone case going forward with the intent to connect principle with action, recognition with mutual respect, and humanity with the Territorial Integrity of Mother Earth.
Tupac Enrique Acosta
Continental Commission Abya Yala