Monday, January 2, 2023

Inter-American Commission on Human Rights: RE: Mary and Carrie Dann Case 11.140 August 25, 2022

Inter-American Commission on Human Rights

FOLLOW-UP FACTSHEET OF REPORT No. 75/02 CASE 11.140

MARY AND CARRIE DANN

(United States)

 


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I.          Summary of Case

 

Victim (s): Mary and Carrie Dann

 

Petitioner (s): Julie Cavanaugh Bill

 

State: United States

 

Merits Report No.: lliJ)l.. published on December 27, 2002

 

Admissibility Report No.: 99/99. adopted on September 27, 1999

 

Themes: Domestic Effects / Collective Property on Lands. Territories and Natural Resources / Right to Equal Protection / Right to Property/ Right to a Fair Trial.

 

Facts: Mary and Carrie Dann are members of the Western Shoshone Indigenous people who live on a ranch in the rural community of Crescent Valley, Nevada. This case refers to the interference of the United States with Mary and Carrie Dann's use and occupation of their ancestral lands by purporting to have appropriated the lands as federal property through an unfair procedure before the Indian Claims Commission, by physically removing and threatening to remove the Danns' livestock from the lands. and by permitting or acquiescing in gold prospecting activities within Western Shoshone traditional territory.

 

Rights violated: The Commission concluded that the State 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.

 

II.         Recommendations

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.   


State of compliance in 2021: Pending compliance

 

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.         


State of compliance in 2021: Pending compliance


III.        Procedural Activity


1.         In March, 2007, the lACHR held a working meeting with the parties during its 127 th Period of Sessions regarding the follow-up of the recommendations issues in Merits Report No. 75/02.


2.         On October 1, 2018, the IACHR held a working meeting with the parties during its 169th Period of Sessions regarding the follow-up of the recommendations issues in Merits Report No. 75/02.

 

3.         In 2021, the IACHR requested updated information on compliance from the State on August 17 and the State presented said information on November 17.


4.         The IACHR requested updated information on compliance from the petitioners on August 17, 2021. The petitioners presented said information on November 10.

 

IV.        Analysis of the information presented

 

5.         The Commission considers that the information provided by the State in 2021 is irrelevant for updating the monitoring of the case, as it repeats the information presented in previous years without including information on measures adopted recently to comply with at least one of the recommendations. Given the lack of up-to-date information from the State on the level of compliance with the recommendations, the IACHR reiterates the analysis on compliance and the conclusions made in its 2020 Annual Report.

 


6.         The Commission considers that the information provided by the petitioners in 2021 replicates the requests and information provided in 2020, and thus the IACHR reiterates the analysis on compliance and the conclusions made in its 2020 Annual Report.

 

 

V.         Analysis of compliance with the recommendations

 

7.         With regards to the first recommendation, the State has continuously reiterated its position that the Western Shoshone land claims were appropriately resolved  by  the  Indian  Claims Commission (ICC) in 1962. During the working meeting held between the parties during the IACHR's 169 th Period of Sessions on October 1, 2018, the State expressed that the petitioners  did not appeal the  distribution of territories as decided by the ICC and further, that the ICC ordered the payment of compensation  in 1962. The State requested that the Commission close its follow-up of the recommendations issued in Merits Report No. 75/02. In its letter of September 11, 2019 to the Commission, the State reported that it had no additional observations with respect to developments on the case, and forwarded to the Commission  its  prior memorials in this cases, its presentations in the relevant hearings, and the  rest of its  relevant correspondence, reiterating its previous position.

 

8.         In 2018, the petitioners informed that the State has not taken any actions to comply with the recommendations set forth in Merits Report No. 75/02. The petitioners expressed that while the State continues to maintain its position that the Indian Claims Commission process and eventual distribution of compensation addressed the issues raised by the Dann's petition before the Commission, the IACHR addressed and rejected these arguments 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 molybdenum 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 the above-mentioned working meeting held in 2018, the petitioners expressed their concern that the State has and continues to prioritize mining and extractives 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. No updated information was received on this point in 2019.

 

9.         In 2020, the petitioners informed that they are unaware of any efforts the State has made to comply with the recommendations. They added that 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 longstanding and ongoing human rights violations identified by the Commission in its Report No. 75/02. Also in a letter dated September 13, the petitioners informed the Commission of several requests addressed to the US Congress in order to guarantee the right of free, prior and informed consultation in the context of the United States, Mexico and Canada Agreement (USMCA) approval. In their words, the systematic disregard for the human rights of Indigenous Peoples is blatantly discriminatory, unacceptable and must have been addressed before the agreement was approved. According to the petitioners even when the USMCA was promoted as a necessary update of the North American Free Trade Agreement (NAFTA), the main distinction is that the latter was approved thirteen years before the adoption of the UN Declaration on the Rights of Indigenous Peoples, so the signatories must comply with the minimum standards of free, prior and informed consent.

 

10.       The Commission notes with concern that since the publication of Merits Report No. 75/02, the State has not taken effective actions to provide Mary and Carrie Dann with a remedy, including the adoption of legislative or other measures to ensure respect for the Danns' right to property and that the State has continued to interfere with these lands, both directly and by permitting third party intrusions. Also, the Commission manifests its deep regret that Mary Dann passed away in 2005 without having received an effective remedy from the State for the human rights violations that she suffered. The IACHR further express its concern with the fact that the USMCA was approved without considering the opinion of the US Indigenous Peoples, and remarks the importance that free, prior and informed consultation has particularly in this kind of projects that may, directly or indirectly, impact their territories. Hence, the Commission call the State to strengthen the existing mechanisms in order to guarantee the material exercise of such right and to inform of the measures adopted. Based on this, the Commission finds that Recommendation 1 is pending compliance.

 

11.       Regarding the second recommendation, the State has continuously reiterated to the IACHR that it declines the recommendations of the Commission issued in Merits Report No. 75/ 02.7 Nonetheless, during the working meeting held on October 1, 2018, the State expressed that the process of reforming regulations and procedures had begun but noted that this process is a long and slow one. The State also informed that the Federal Government had begun various initiatives to protect the rights of Indigenous peoples, including informing State agencies about the principles contained in the United Nations Declaration on the Rights of Indigenous Peoples.

 

12.       In 2018, the petitioners informed that the State has not taken any actions to comply with the recommendations set forth in Merits Report No. 75/02. During the working meeting, the petitioners expressed their concern that the revisions of legislation, procedures and practices are not being undertaken with regards to inter-American and international human rights standards. The petitioners proposed to the State the possibility to organizing a workshop with members of Congress, the Department of the Interior and the Department of State about inter-American and international standards regarding Indigenous peoples. The petitioners also proposed the establishment of a national working group or commission to review Federal Indian law and policy in light of contemporary human rights standards and to issue recommendations regarding such topics as treaty rights, land rights, historical reparations and protection of spiritually­ significant areas. No updated information was received on this point in 2019.

 

13.       In 2020 the petitioners did not presented additional information about the compliance with this recommendation. However, they requested 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.

 

14.       The IACHR recalls that the American Declaration is recognized as constituting a source of legal obligation for OAS Member States, including in particular those States that are not parties to the American Convention on Human Rights.8 Pursuant to article 31(1) of the Vienna Convention on the Law of Treaties, Member States are required to apply good faith efforts comply with the recommendations of supervisory bodies such as the Inter-American Commission.9 Based on this, the Commission finds that Recommendation 2 is pending compliance.

 


VI.        Level of compliance of the case

 

15.       Based on the foregoing, the IACHR concludes that the compliance of the case is pending. Consequently, the Commission will continue to monitor compliance with Recommendations 1 and 2.

 

16.       The Commission calls the State to adopt the necessary measures to comply with the recommendations established in Merits Report No. 75/02 in consultation with the victims and their representatives.

 

VII.       Individual and structural results of the case

 

17.       Given that this case is pending compliance, there are no individual or structural results which have been informed by the parties.

 

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7 IACHR, 2017 Annual Report. Chapter II Section F; Status of compliance with the recommendationsof the IACHR and friendly settlements of the IACHR. para. 2135.

 

" IACtHR Adyjsozy Opinion OC-10/89 Interpretation of the Declaration of the Rights and Duties of Man within the Framework ofArtide 64 of the American Convention on Human Rights. July14, 1989, Ser. A No.10 (1989), paras. 35-45.

 

9 IACHR. Case 12.873. Merits Report No. 44/14. Edgar Tamayo Arias (United States). para. 214; IACHR. Case 12.626. Report No. 80/11. Jessica Lenahan (Gonzales) et al. (United States). paras.115-120; IACHR. Towards the Closure of Guantanamo. 2015, paras. 16-23; IACHR, Case 12.586. Report No. 78/11, John Doe et al (Canada). para. 129.

 

 


 January 4, 2021

TONATIERRA

Submission to Inter American Commission on Human Rights

Western Shoshone Case 11.140, Mary and Carrie Dann

 

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.

 

Full stop.

 

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

 

Study on treaties, agreements and other constructive arrangements between States and indigenous populations

 

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


 

 

 

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