Western Shoshone Self Determination
and the Doctrine of Discovery
Inter
American Commission on Human Rights
Organization
of American States
Western
Shoshone Nation v. United States of America
Re: Mary
and Cary Dann, Case 11.140
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
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
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?
The US-Mexico
international border is today a fully functioning instrument of empire. It is
simultaneously a 2,000-mile-long scar and an open wound. The border is a
militarized monument to white supremacy formulated and made necessary by the
racist ideology of American Manifest Destiny, both in its historical expression
which was the motivation for the war with Mexico in 1846, and its present
contemporary “Festering Destiny” extrapolation in the form of the “Trump Wall”
border project. The pathological racist tenets of Manifest Destiny, both past
and present, are rooted in the false narrative of cultural supremacy of
Christendom, whose geopolitical context of “America” has been informed,
normalized, and institutionalized by the Doctrine of Discovery. The historical
meme of collective cognition being Christopher Columbus and the date of October
12, 1492 (Gregorian).
The US government had announced its intention to recognize the independence of
the Spanish-American colonies in 1822, Spain did not recognize Mexico's
independence until the Santa María–Calatrava Treaty of December 28, 1836. This
was the first case in which the Spanish monarchy acknowledged the independence
of a state that had been erected within the limits of her former colonial
empire in the New World."
Under
the terms of the Santa María–Calatrava Treaty of December 28, 1836 the
dominions of Mexico were to be comprised of the former Viceroyalty of New
Spain, the captaincy-general of Yucatan, the commandancies of the eastern and
the western interior provinces, lower and upper California, along with the
annexed territories and adjacent islands.
The source of the original purported territorial claim by the
Viceroyalty of New Spain in Mexico which was transferred to the Mexico was the
royal charters given to Columbus by the monarchy of Spain in 1492 and affirmed
from the pinnacle of the imperial structure of Christendom (the Vatican) by
Pope Alexander VI via the Papal Bull Inter Caetera of 1493.
As
recently as 2016, the Indigenous Peoples of Mexico have called upon the Vatican
State and Pope Francis to repudiate the Doctrine of Discovery and revoke the
Papal Bull Inter Caetera of Pope Alexander VI 1493 as the basis for the legal
concept of "original property of the nation", under which the current
government of the Republic of Mexico presumes to make delivery of the
territories of the Original Nations of Indigenous Peoples to national and
international industries for resource extraction, mining and neo-extractivism
in general in violation of the right of Free, Prior and Informed Consent
(FPIC).
#WhiteSupremacyAndTheDoctrineOfDiscovery
DISMANTLING
the
Doctrine of Discovery
