“The Western Shoshone Nation is very thankful to the Committee members for their decision affirming U.S. discrimination and destructive policies do not go on unaccounted for. Truth is what it is – that can never change. We pray for the healing of our peoples, the land and the harassment and destruction to stop. While others are allowed the freedom of religion, we are kept from the very same right. The Newe (people) use this ancestral land for sacred ceremonies. The federal agencies prevent our access to some of these important areas. Our ancestors’ burials are being dug up and placed into local museums’ basement storage areas because of surge of gold mines and nuclear developments. This is an outrage to our people!” – Judy Rojo, Western Shoshone.

“This battle has been going on for quite some time, but we’ve seen a dramatic increase in the federal government and the companies’ rush to finalize what they consider a settlement in order to get a hold of our lands for activities that are contaminating our water and our air. Again, we are very pleased that our rights are finally being taken seriously and we look forward to positive actions being taken by the U.S.” – Steven Brady, Western Shoshone.

“We are Shoshone delegates speaking for a Nation threatened by extinction. The mines are polluting our waters, destroying hot springs and exploding sacred mountains—our burials along with them–attempting to erase our signature on the land. We are coerced and threatened by mining and Federal agencies when we seek to continue spiritual prayers for traditional food or medicine on Shoshone land. We have endured murder of our Newe people for centuries, as chronicled in military records, but now we are asked to endure a more painful death from the U.S. governmental agencies —a separation from land and spiritual renewal. We thank our past leaders for their persistence and courage and the CERD for this monumental step.” – Bernice Lalo, Western Shoshone.

ELKO, Nev. – Just outside the chasm of North America’s biggest open-pit gold mine there is an immense oasis in the middle of the Nevada desert. It is an idyllic and isolated spot where migratory birds often alight for a stopover. But hardly anything is natural about it.

This is water pumped from the ground by Barrick Gold of Toronto to keep its vast Goldstrike mine from flooding, as the gold company, the world’s third largest, carves a canyon 1,600 feet below the level of northern Nevada’s aquifer.

Nearly 10 million gallons a day draining away in the driest state in the nation – and the fastest growing one, propelled by the demographic rocket of Las Vegas – is just one of the many strange byproducts of Nevada’s tangled love affair with gold.

An extensive review of government documents and court records, and scores of interviews with scientists and present and former mine industry workers and regulators, show that an absence of federal guidelines, of the sort that are commonplace for coal or oil, allowed gold wide latitude to operate here in the rural fastness of the desert, perhaps more than any other American industry.

The costs – to Nevada, its neighbors and even to the rest of the country – are only now coming into focus as diminishing ores foreshadow gold mining’s eventual demise and a more urbanized West begins to express concerns over water shortages and mining’s other legacies.

Barrick says the effects of its pumping will last at most a few decades. But government scientists estimate it could take 200 years or more to replenish the groundwater that it and neighboring mine companies have removed, with little public attention or debate, as they meet soaring consumer demand for jewelry and gold’s price tops $500 an ounce.

Goldstrike, meantime, may have only 10 years left, Barrick says, and most of the state’s 20 or so other major mines are not expected to last much longer. When they are gone, the vast pits they leave behind will create a deficit in the aquifer equivalent to 20 to 25 years of the total flow of Nevada’s longest river, the Humboldt, according to state figures tallied by independent scientists. That is three times as much water as New York City stores in its entire upstate reservoir system. “When they stop pumping, what you’re going to hear is a huge sucking sound,” said Robert Glennon, a law professor at the University of Arizona who has written on water issues in the West. “The impact on the Humboldt River will be catastrophic.”

That is not all. Nevada’s gold mines will bequeath more toxic mercury waste in their mountainous rock piles than any other industry, about 86 percent of the nation’s total in 2003, according to the most recent figures from the Environmental Protection Agency. They already generate more than 3 percent of the airborne mercury pollution, the agency says, equivalent to 25 or more average coal-fired power plants.

At the same time, as of May, according to state figures, about $200 million in cleanup costs were simple promises to pay from the corporate miners of a notoriously boom-and-bust industry. Along with the modern superscale mining methods that were largely devised here beginning in the 1980′s, such trade-offs have helped make Nevada the third-largest gold producer in the world, behind South Africa and Australia.

But mining experts, legal scholars and historians say that prosperity was also built on the basis of a law drafted in the age of the horse and buggy – the General Mining Law of 1872 – which declares mining the best use of public land, gives miners access to that land for bargain-basement prices, and makes no mention of a cleanup.

Mining industry officials vigorously defend the statute and say that the absence of federal guidelines – far from making things less strict – gave rise to an even tighter regulatory framework because other laws filled the breach, from endangered species protection to air and water rules.

“We just can’t see a way to write a mining law that would appropriately regulate all of these different things and work any better,” said Carol Raulston, a spokeswoman for the National Mining Association, the industry’s trade group.

But here in Nevada, where four-fifths of the nation’s gold is produced, the vacuum of antiquated law has been gold’s defining feature and the handmaiden to its rise, current and former regulators say, allowing for special treatment of a favorite-son industry on a landscape of bleak extremes that few big environmental groups have risen to defend.

“If you look at the gold industry today, most of it is Nevada, and Nevada is mostly not prized by environmentalists,” said John D. Leshy, who was the top lawyer for the Department of the Interior in the Clinton administration. “Nevada is being written off as a sacrifice area for gold.”

In an ever-more urban West, the day of reckoning is fast approaching, people like Mr. Leshy say. The new West, embodied by postindustrial Las Vegas, will inherit the landscape that gold leaves behind.

The glittering, energy-guzzling city is already probing north to satisfy its water needs, with a $2 billion pipeline that will be the biggest groundwater project in American history if approved and built over the next 15 years.

Water experts say the scientific studies for the plan are only now likely to reveal just how Nevada’s aquifer system really works, and how it was affected by the mines.

But, they warn, the 383 billion gallons of water pumped so far from the Goldstrike mine alone – enough to fill one of the midsize Finger Lakes of upstate New York – may have already imposed its stamp on the region’s future.

Mercury’s Taint Tied to Mines

Michael DuBois, an analyst with the Idaho State Department of Environmental Quality, was assigned this year to figure out why the Salmon Falls Creek Reservoir, on the Nevada border, had mercury levels 10 times higher than any body of water ever tested in the state.

The more Mr. DuBois and other scientists looked, the more they became convinced that airborne mercury, which has been linked to impaired neurological development in fetuses, infants and children, was coming north from Nevada’s gold mines. “There are things crossing state lines here that don’t know anything about political boundaries,” he said this summer on a visit to the reservoir, where prominent warning signs had been posted about consumption of fish.

In November, under pressure from Idaho, Nevada said it would begin regulating mercury from the mines, which had been operating under a voluntary system since 2001. “We were moving in this direction anyway, but we ramped it up,” said Colleen Cripps, a deputy administrator at the Nevada Division of Environmental Protection.

But how the huge mercury output from the mines was missed or barely regulated for so long is just as big an issue for neighboring states that may have to live with the consequences for many years to come.

Mercury persists in the environment, as it accumulates in the tissues of fish and birds that pick it up from water sources. Nobody knows just how much has come from the mines over time because the Environmental Protection Agency did not even require it to be reported until 1998.

Before then, simple reassurances were regulation enough. In a 1997 agency report on mercury, gold was left off the list as a source because, the report’s authors said, an “industry representative” had told them mercury was not a problem.

State officials insist that the voluntary efforts worked, and that the four companies taking part in the plan, including Barrick, cut emissions by 82 percent. But gaps in Nevada’s patchwork regulation persisted.

In 2001, Barrick built a $330 million “roaster,” which heats ore for gold extraction and in the process also frees other metals, like mercury. But because it built the machine on private land, no state or federal law required an analysis of the environmental impact.

The roaster was subsequently identified by the E.P.A. as a main mercury source. The mine, the agency says, now accounts for about 1 percent of the nation’s total airborne mercury output.

Barrick’s vice president for the environment, Richie D. Haddock, said that the location of the roaster was driven by proximity to the pit, and by the fact that the land beneath contained no valuable ore. The roaster, he added, was also built with the most modern technology. There was no effort to avoid scrutiny, he said.

But no scrutiny was the effect, and such regulatory gaps have become part of doing business, numerous legal scholars and present and former regulators say.

“The fact that the 1872 mining law had no environmental provisions was significant, because it means that those rules had to emerge from other places,” said James McElfish, a senior lawyer at the Environmental Law Institute, a nonpartisan research group in Washington that advocates sustainable development and environmental protection. “The upshot of this is that it’s a process of experimentation and diffuse authority and no one is really leading the way.”

Industry officials, while acknowledging that gold mines have emitted significant levels of mercury, say that where the mercury actually came to earth is a much harder question. What has been found in places like Salmon Falls Creek, they say, could just as easily have come from a coal-burning plant in China, or a natural source.

But local regulators like Mr. DuBois and Michael L. Abbott, an advisory scientist at the Idaho National Laboratory, part of the Department of Energy, are not convinced. After studying the wind patterns and deposition rates this summer and fall near Salmon Falls Creek, Mr. Abbott said he believed that mercury from Nevada’s gold mines was still coming north.

“Where do they think it’s going to go,” Mr. Abbott said, “outer space?”

Uncertain Prospects for Water

Large-scale open-pit mining takes a lot of water, millions of gallons, mostly to dilute the cyanide that miners use to soak their ore and separate its microscopic bits of gold. Even so, mines like Goldstrike pump out so much water that company officials say they can use only a relatively small amount – less than 10 percent of what is displaced.

About half the rest goes into settling ponds where it is expected to sink back into the aquifer, company records show. About one quarter is used for irrigation. About 6 percent is sent to “sand dune drainage/evaporation.”

The rest has engorged the Humboldt River since the 1980′s. Though Barrick has not discharged any of its water to the river since 1999, other mines remain in full pump and drain mode.

That pumping could change both the quantity and quality of the groundwater, and even the shape of the aquifer, said Glenn Miller, a professor of environmental science at the University of Nevada, Reno. “I think it may never be quite the same hydrologic system,” he said. “There is simply no data to suggest that these changes aren’t going to be permanent.”

Officials at Barrick strongly disagree. Mr. Haddock, the environmental vice president, said in a written response that geological faults would confine the effects of de-watering near the mine.

Barrick, he said, has tried to make Goldstrike a model for its mines around the world. “A great deal of Barrick’s culture developed at Goldstrike,” he wrote, “and we try to export that culture throughout the company,” which is set to take over Placer Dome and become the No. 1 gold miner.

Permanent impacts are not supposed to happen under a strict interpretation of the state water law, said Professor Glennon at the University of Arizona.

An exception was made for gold. In the 1980′s as mine pumping surged, the state decided that modern mining, however different in its scale and scope, was still just a “temporary” use of water, as it had been in the days of the prospector and his mule.

“The policy, if there was a policy, is that Nevada has always been a mining state, and as long as we could keep the impact within reason, it should be allowed,” said Peter G. Morros, who made many of those decisions as the state engineer – Nevada’s top water resource officer – from 1981 to 1990.

But the real story of gold’s impact on Nevada’s waters will emerge only in coming decades when the pumps are turned off, scientists say. That is when the 40-odd pits – from monsters like Goldstrike’s Betze-Post to smaller mines like Newmont’s Lone Tree – will start to fill with water that the mine companies no longer displace.

The lakes will store an estimated 500 billion gallons or more, according to estimates by Dr. Miller at the University of Nevada and other scientists. The Betze-Post, the center of Barrick’s operations, is expected to become the largest artificial lake located wholly in the state, holding about 114 billion gallons – or more than 100 times the size of the Central Park reservoir in New York.

The result will be, if not the biggest water storage project in the West, then certainly the strangest. Some of the lakes are expected to be poisonous, laced with arsenic and selenium. Others may have metal and acid concentrations toxic to fish but safe for humans. Some will be relatively benign.

Mining companies say the water quality in the aquifer will dictate the outcome, not mining.

One thing is certain: in the hot desert sun, the water will constantly evaporate. And for every gallon of evaporation, the lakes will draw another gallon from the aquifer beneath them. Most will take decades, if not centuries, to fill. They will be like huge desert sponges, sucking from the aquifer eternally.

The Betze-Post pit, which Barrick expects to lose 74,000 gallons of water every hour to evaporation, will have good water quality, said Mr. Haddock, the environmental vice president, because of the aquifer’s purity and the high volume of limestone that will act as a buffering agent.

Other scientists say it is not that simple.

The mine pits will fill with water that filters through surrounding rock, much of it disturbed by mining and thus potentially prone to acid generation. Rock with sulfide in it, once it contacts air and water, produces sulfuric acid.

“After the pits fill, after complete recovery, there is a possibility that water could be affected by acid drainage,” said Russell W. Plume, a hydrologist at the United States Geological Survey, a federal government research agency.

In the meantime, Nevada law is already trying to come to grips with the postmine landscape. One pit mine, called Sleeper, which was operated until 1996 by a company called Amax Gold and is now closed, is already filling with water and losing about 257 million gallons a year to evaporation.

That lost water has to be accounted for somewhere in the state’s water ledgers, said Hugh Ricci, the state engineer. The same will hold true for every other pit lake.

In Sleeper’s case, because Nevada rules require water allocations for beneficial uses only, Mr. Ricci’s predecessor came up with a novel legal interpretation. He declared that the pit lake would be used for recreation, and that its evaporation would therefore be a “recreational use.”

Millions of People, Inches of Rain

By 2020, Las Vegas, the go-go city of the sands, is expected to have three million people living in an area that gets perhaps four inches of rain a year.

Some ecologists and water experts have argued for years that big desert cities, whether Phoenix or Las Vegas, will one day face their comeuppance as water becomes too costly or scarce, and that all the region’s cities will one day need to tap the West’s rural water. But the stakes for Nevada, planners and legal scholars say, could be even higher because of what happened under gold’s regime. Then the consequences of the water no one wanted may come back.

“There will a redivision of water from rural to urban use,” said Hal Rothman, a professor of history at the University of Nevada, Las Vegas. “The question is not whether that’s going to happen – it’s the terms under which it’s going to happen.”

By then, the mines around Elko are likely to be played out. The Las Vegas pipeline, assuming it is built, will be drawing the first of up to 58 billion gallons a year – enough for 20 percent of the city’s projected population.

Those two pincer trends – urbanization from one side, mine closure from the other – raise the greatest uncertainties for tiny Elko, a town of just 16,000, that may be the nation’s last gold boomtown.

“If the basin is drained, then this becomes like the Owens Valley in California,” said Warren Russell, an Elko County Commissioner. The Owens Valley, near Death Valley National Park, was drained in the 1930′s – the incident made famous by the movie “Chinatown” – as Los Angeles locked in water resources.

For now, Las Vegas water officials say they have no designs on any water farther north than their pipeline, which will end 100 miles or so south of Elko. But everyone cautions that a return of the drought that gripped the region in recent years – or a victory in court by the Western Shoshone Indians, who claim vast tracts of Nevada that they say were stolen in the 1800′s – could change every calculation.

The general manager of the Las Vegas-based Southern Nevada Water Authority, Patricia Mulroy, said in an interview that her motto was never to say never – to rule out tapping the waters of northern Nevada would be folly.

The state and the region should be looking at mine country now, she said, and thinking about storage and prevention of evaporation. “We need a viable place to store that water,” she said. “Having said that, we’re not talking to any mining company.”

Mr. Ricci, the state engineer, said water transfers from mine country would require a new application, like the one Las Vegas is going through now, but none have been filed.

Many mine companies, meanwhile, have followed Barrick’s lead in buying ranch lands across the state – most of which have water rights that could one day be sold, though a spokesman for Barrick said the company had no intention of going into the water business from the 110,000 acres it currently owns.

But Dean A. Rhoads, a rancher and state senator who lives near the Goldstrike mine, has been watching closely. He counts at least 20 ranches – some of them tens of thousands of acres – that have gone into mining company hands.

Water pipelines, legal experts say, can be laid across private land in Nevada without the fuss of an environmental impact statement, just like Barrick’s ore-roaster.

“Water, and what happens next in these rural areas, is the most crucial issue that I’ve faced in 25 years in the legislature,” said Mr. Rhoads, a Republican. “A lot of my neighbors are shaking in their boots.”

Copyright 2005The New York Times Company

Mary Dann will be sorely missed but she will never be forgotten.

Service arrangements are being determined by the family.

The guilty pleas and removal of the horses ends a nearly two year long ordeal initiated by federal actions under the Bush Administration in an apparent attempt to silence treaty and land rights assertions being made by the Western Shoshone Nation to millions of acres of land throughout Central Nevada, parts of Idaho, Utah and California. The U.S. claims the land to be “public” land and has been conducting military style seizures and ongoing surveillance of both Shoshone and non-Indian ranchers.

The Western Shoshone have been engaged in a decades long dispute asserting their rights to the land base under the 1863 Treaty of Ruby Valley and their ancestral connections to the land which they continue to use and occupy. The land base, sacred to the Western Shoshone, is also the third largest gold producing area in the world and temporary home to nomadic multinational mining interests including Barrick, Newmont, Placer Dome and Kennecott. The seizures of Western Shoshone animals began occurring just six months after Interior officials, Stephen Griles and William Myers – both closely tied to mining interests – met to discuss the Western Shoshone “situation”.

Upon news of the guilty pleas, Western Shoshone grandmother Carrie Dann stated: “It’s about time. But also, there are still doubts in my mind as to the working of the BLM and the State of Nevada with this kind of person. He represented to us his close relationship with both government units and his prior dealings with them in what he claimed as a wild horse sanctuary. It’s good that he admitted to the wrongdoing, now it’s time the U.S. admit to its own wrongdoing with regard to its treatment of the Western Shoshone Nation, its people and all living things on this land. The horses were doing just fine out here living free on the range, they would have never been in this bad situation in the first place if the United States government had acted honorably and in compliance with its own laws.”

Despite the recent passage of a forced legislative measure claiming to payoff the Western Shoshone for a portion of the land base, the Nation maintains its firm position on the title issue. “The federal government cannot unilaterally sell out a Nation’s homeland. We are still here and we will continue to assert our rights by way of our ancestors and under the Treaty of Ruby Valley. Our connection with the land was given to us by the Creator, not the U.S. – the U.S. cannot take what it did not give. We will use our rights to protect the land. Our title is still intact – we repeat: Western Shoshone Land is Not For Sale.” Stated Raymond Yowell, Chief of the Western Shoshone National Council.

Western Shoshone Defense Project
P.O. Box 211308
Crescent Valley, NV 89821
(775) 468-0230
Fax: (775) 468-0237
www.wsdp.org

The United States government signed the Treaty of Ruby Valley with the Western Shoshone Nation in 1863. According to Article 6 of the U.S. Constitution, the treaty is the supreme law of the land. But the United States government does not view the treaty this way. If they do not want to follow their own laws, that the constitution is the supreme law of the land, then this country is not a democracy. A democracy would be following the laws of the land.

I have said this a thousand times, I am not taking money for this land. This land has no value, there is no price for it. In Western Shoshone culture, the earth is our mother. We can not sell it. Taking our land is a not only a cultural genocide, it is also a spiritual genocide. The United States is attempting to steal our religion and our cultural.

I ask the United States today to show me how they received title to the land. The sole legal theory stated by the Indian Claims Commission (ICC) was that the Western Shoshone land title was extinguished through “gradual encroachment” by non-indigenous miners and settlers. However, such legal theory is no where found in American law. The only issue decided by the Supreme Court was whether the Western Shoshone had been paid, not who has title to the land. We have never had a court hear the issue of who has title to the land. The ICC was not a court. The United States did not give us the land, nor did they sell us the land. The land is ours. The United States can not show how they obtained title to the land.

The government continues to steal our cattle and horses. But I ask them, if they have clear title to the land, why do they come in the night like a thief to take my horses and cattle – why do they make sneak attacks – why do they attempt to take my livestock with no media attention? If the land title is clearly theirs – why do they act like thieves?

Why does the United States want this land? So they can sell it to large inter-national corporate interests, including mining companies, so they can test more nuclear weapons, so they can write the Indians off? The United States should not be allowed to steal the land so they can test more weapons that kill people. In fact, weapons that kill all life, including the plants and the animals. The United States also should not be allowed to steal the land so they can sell it to companies in order to obtain more gold and in the process ruin the water and kill the plant and animal life. This should not be allowed.

Today, the government has attempted to steal our mother earth – but this will not stop our fight to keep our land. We will not stand by to watch the United States steal our religion. We will not stand for the United States to commit spiritual genocide. For today what happens to us, tomorrow will happen to you. Although George W. Bush, Sen. Reid, and Rep. Gibbons believe that they can now sell this land to private interests, we will fight to stop it. This bill changes nothing. We are here to protect our mother earth. That is our responsibility. Our obligation will not be deterred by thieves.

Statement by Carrie Dann
on George W. Bush signing into “law” HR 884
July 7, 2004

For more on the signing of the bill see this news story:

http://www.elkodaily.com/articles/2004/07/07/news/local/news2.txt

Last week, the House Resources Committee held meetings and heard testimony on the Western Shoshone Distribution Bill, H.R. 884. If the bill passes committee vote, it will go to the floor for a full House vote. The bill, which has the strong support of the Nevada congressional delegation, would approve the direct distribution of federal funds to the Western Shoshone tribal members. It would force settlement of two long-standing land claims filed by the Te-Moak Bands of the Western Shoshone.

Attempts to force such a settlement to the ancient Shoshone land claim have been defeated before, but bills continue to be introduced and lobbied. This one is sponsored by Sen. Harry Reid, D-Nev., as S. 618 in the Senate Committee on Indian Affairs, and by Representative Jim Gibbons in the House Committee on Resources.

The Interior Department contends, along with the Nevada congressmen and willing Shoshones, that the vast majority of the tribal members in question support the distribution. And, indeed, Felix Ike, chairman of the Te-Moak tribe testified that over 2,500 enrolled members or some 65 percent of the population of nearly 3,700 identified as having 1/4 or more Western Shoshone blood, voted for the distribution of the trust funds.

It is understandable that many Western Shoshones are tired of the decades-long claims process and would rather move on. A Supreme Court decision against the case is the ultimate step, they say. They would use the money for economic development, chairman Ike said, and while no one can dispute that such is needed, its per capita distribution is unlikely to achieve the intended results. Additionally, the Te-Moak Council asserts that Ike acted outside his constitutional authority by both holding an illegitimate referendum and in testifying before Congress without its consent. (The letter advising Congress on this matter and signed by a majority of the Te-Moak Council is published in this issue.) Many now wonder aloud, what’s in it for Ike?

Most impartial observers will see that the issue is not at all clear cut. There are several recognized Western Shoshone governments. The majority of these councils, as governments, do not agree with the settlement. There is no mistaking that many Western Shoshone, perhaps even a majority, do not agree with the settlement. These Western Shoshones contend that the land is theirs by inheritance and quite effectively challenge the federal government to prove just how and when their people or tribal nation ever relinquished it. As Raymond Yowell, chief of the Western Shoshone National Council, said at the House hearing, “By what law did the United States acquire the lands of the Western Shoshone?” We also wonder how any American Indian would agree to relinquish lands and resources worth billions, for the trivial compensation offered by the government.

The manner of the recent vote is controversial. Many challenge it for having been held in only one community, publicized only there by a single newspaper ad. Apparently, too, that first referendum ballot indicated, wrongly, that acceptance of the claim money would not affect Western Shoshone land rights. But it does.

The contention plays hardest on the ground, where several Western Shoshone ranchers have dug in and battled the Bureau of Land Management for over 20 years. The past year has seen the seizure, confiscation and forced selling of much of their cattle and horses, actions that wreaked financial havoc on the ranchers, including the elderly sisters, Mary and Carrie Dann. According to recent alerts, “Helicopters and ongoing Department of Interior surveillance (armed rangers) continue to harass community members and their livestock.” The concern of the Western Shoshone activists is that, with distribution of the settlement clearing Indian title, the federal government will “turn around and auction the lands and waters off to large corporations – mining, energy and military contractors.” (Western Shoshone Defense Project)

To complicate (or perhaps clarify) matters further, conflict of interest questions are trailing Nevada Senator Harry Reid like flies on cowpie. A recent Los Angeles Times article paints a portrait of a senator deeply influenced by lobbyists, mostly members of his own family, working for major interests, real estate and resource industries, in Nevada. Fair or not, the sense of something amiss pervades his methods. The whole of Nevada seems riddled with this problem. Once, the mere appearance of conflict of interest was cause for shame and consternation; these days, actual conflict of interest is often simply ignored, even accepted as normal by a fat-cat media ruled by a fat-cat corporate-congressional alliance.

The issue is deeply cultural and historical – the land is sacred to the Shoshone – but the issue is also fully economic. It is about tribal private property, clearly demarcated, being stolen. There are many natural resources to be extracted on and under Shoshone lands worth billions of dollars. The desert setting and low population density also makes it attractive to all manner of massive exploitation, including highly toxic gold mining and even more toxic nuclear weapons testing (add now potential nuclear waste storage).

The Western Shoshone opponents point to their 1863 Treaty of Ruby Valley, which recognizes Western Shoshone homelands. But the U.S. chose to ignore that promise and has managed the area as federal lands. It ushered in the wildcats while squeezing the Indian jurisdictions and disregarding treaty rights. For many years, prior to any court or congressional settlement, the federal and state governments treated Western Shoshone lands as “public” lands, always assuming that Indians would disappear. Increasingly, urban sprawl, mining, military testing have been managed under the assumption that the land had transferred title, that Western Shoshones had no say over it, or any claim whatsoever to the wealth emerging from their ancestral tribal properties and lands, wrested away from them with impunity by raw power and greed, to the great and growing benefit of non-Indian squatters.

Serious property and money is involved. Placer Dome, a gold mining enterprise now estimates that their recent “discovery” in Crescent Valley, home of the Dann sisters, will produce over $1 billion in gold. The Placer Dome operation is just one of numerous major gold mining operations on Western Shoshone lands. Dome’s President and CEO Jay Taylor praised his company’s foresight in a “strategy of gaining large land positions in known gold camps.” He is right there, but what of the Western Shoshones, who had already “gained and held” those large land positions?

Then there is Bechtel, Nev., which straddles governmental and private sectors. Bechtel constructed several of the large gold mines in the area. It manages the Nevada Test Site as well as the counter-terrorism facility that conducts nuclear, biological and chemical weapons construction and testing. Bechtel has the contract for high level nuclear waste storage at Yucca Mountain, a site sacred to the Western Shoshone. All this happens on Western Shoshone lands, a most valuable piece of real state and resource base that provides some two-thirds of all the gold produced in the U.S. Of course, no compensation accrues to the Native people whose lands and properties have been thus confiscated.

The Dann sisters’ case recently won a victory at the Inter-American Commission on Human Rights, which found the Indian Claims Commission process that justifies the taking of their lands as “illegitimate.” We agree with this decision, and applaud any and all efforts to gain justice for the Western Shoshone Indian people. We urge the media to witness the cattle and horse raids, where good reporting and video documentation is entirely necessary. There has been enough stealing from Indians. From confiscated lands and properties that are worth so much, political and economic justice must prevail.

Whether accepted by none, or one, or all Western Shoshones, who have a right to a proper referendum process and a proper negotiation over their political and economic rights, the manner of this imposition remains an example of America at its worst.

a need to bear
witness to something other than my own
invisible certainties.

I know what to expect from isotopes -
the irradiation of apples,
the push to keep surface crisp -
it’s a matter of economics. They say

radiation is what cured
my brother’s cancer. The strange
nature of fission – catalyst,
cure, food preservative.
Distinctions mutate.

2.
It takes us half the day to change
deserts. The beige of Eastern Washington
becomes the brown of Oregon,
Nevada’s gold.

We exhaust conversation near Winnemucca,
make do instead with country music
turned too low to distinguish between songs.

Outside the truck
the gutted center sunbathes.

Sagebrush everywhere,
not even the sky can stunt the magnitude.

Landscape swallow our truck,
digests us
breaks us down into its cells
until we lose ourselves
in the hum of dust and sun.

3.
Sand knows the secret of self-preservation
how to avoid the accumulation of atoms.

A naked persistence
overlooked long enough to anchor
slowly
in pockets of mineral and shade.

I will lie in wait for prophets,
distract them from the isotopic visions,
let the lizards exfoliate the surface of my skin.

Despite the excavation,
the weight of water in my veins,
I will spread
into the expanse of basalt until edges
no longer exist

In January, as reported in Indian Country Today, the Indigenous Law Institute issued a report on behalf of the Western Shoshone National Council, documenting that the Indian Claims Commission (ICC) never filed a final report with Congress in the Western Shoshone case, docket 326-K. Despite a final report being mandated by Congress in the 1946 Indian Claims Commission Act, the ICC was not able to file such a report in the Western Shoshone case because the case was still on appeal to the Court of Claims when the ICC went out of existence in September of 1978.

Since the ICC no longer exists, no final report will ever be submitted to Congress in the Western Shoshone case. This is extremely important because according to the Court of Claims, finality in any given case consists of three ingredients: 1. the ICC’s final report to Congress upon completion of the case; 2. the Congressional appropriation of the monies owed to the Indians in question; 3. the distribution to the Indians of the monies appropriated. The Ninth Circuit Court of Appeals and the Supreme Court both agreed with the Court of Claims: the ICC’s final report to Congress is legally mandated by the ICC Act.

Not long after completing our report, I forwarded a copy to the office of Mr. Robert Abbey, State Director, Bureau of Land Management in the State of Nevada. Mr. Abbey is the person who has headed up a number of actions against the Western Shoshone. Some of the actions he has personally overseen include last year’s confiscation (what the Western Shoshones call theft) of cattle belonging to Chief Raymond Yowell and Mr. Myron Tybo, the confiscation of cattle belonging to Mary and Carrie Dann, and, most recently, the forced removal of Western Shoshone horses from Western Shoshone lands adjacent to the Dann ranch.

Just the other day I had the opportunity to briefly interview Mr. Abbey by telephone about the Indigenous Law Institute Report. When I asked Mr. Abbey what he makes of our report, he responded, “I don’t make anything of it.” He said that our report had been sent on to the Solicitor’s Office in the Department of the Interior, but that he hadn’t heard anything back. When I asked him if he had specifically requested a legal opinion from the Solicitor’s office, Mr. Abbey said that he hadn’t. He also made it clear that he does not intend to request any opinion from the Solicitor’s office.

When I challenged Mr. Abbey about the main point of the ILI report, which is that finality has not been reached in the Western Shoshone case, Mr. Abbey told me, “I believe that finality has been reached in this case.” Given his admission that he would not be requesting a legal opinion from the Solicitor’s office, I asked him if his position on finality was based on his own personal opinion, or on solid legal advice. He said that it was his own personal opinion.

I then said, “Why don’t you request a finding from the Solicitor’s office so that you’ll know whether or not your opinion is correct?” He made it abundantly clear that he had no intention of doing so, but that I could request a legal opinion from the Solicitor’s office.

I then asked him how in the world he could believe that finality had been reached in the Western Shoshone case when the Court of Claims, the Ninth Circuit Court of Appeals, and even the Supreme Court were so clear on this point: an ICC final report to Congress is one of the three ingredients of finality. “How can finality have been reached when there is no final report to Congress?,” I asked. Mr. Abbey’s only response was, “Speak to our attorneys.”

On Feb. 25, Congressman Jim Gibbons of Nevada introduced H.R. 884, which if passed, would distribute some $138 million dollars to the Western Shoshone Indians, supposedly for lands that were taken from them by gradual encroachment. I recently put in a call to Congressman Gibbon’s office and spoke to Ms. Sandra Keil, his point person on the bill.

I explained to Ms. Keil that finality has not been reached in the Western Shoshone case, pursuant to the Indian Claims Commission Act, and that, therefore, there is no valid statutory basis for H.R. 884, or for any such bill that would distribute the monies sitting in Docket 326-K. Her response was fascinating: “That’s the beautiful thing about being a congressperson,” she said. “You can introduce a bill, and as long as it passes both houses of Congress, and is signed off on by the President, the bill supercedes everything that preceded it.”

What Ms. Keil fails to realize is that you cannot supercede the Indian Claims Commission Act and at the same time have the Act serve as the basis for the payment. In other words, if the ICC Act is the statutory basis for a monetary distribution in the first place, how can you supercede the ICC Act and still have it serve as the basis for a monetary distribution to the Western Shoshones?

It is unfortunate that the terms of the Indian Claims Commission Act, specifically the statutory requirement that the ICC file a final report with Congress, is of no interest to Congressman Gibbon’s staff person. Let’s hope Congressman Gibbons himself has more interest in following the letter of the law.

The United States claims to be a nation of laws. But in light of my conversations with Mr. Abbey and Congressman Gibbons’ staff person, what is this principle, other than an empty slogan? Clearly, if such conversations and decades of federal actions toward the Western Shoshone are any indication, the United States is a nation of laws only so long as the laws do not get in the way of what the United States wants to do.

Given the willingness of the federal government to utterly disregard the terms of the ICC Act, and the 1863 Treaty of Ruby Valley (which, according to the U.S. Constitution, is the supreme law of the land), it is evident that the U.S. wants to arbitrarily pick and choose which laws it is a nation of.

Steven Newcomb, Shawnee and Lenape, is director of the Indigenous Law Institute, and Indigenous Research Coordinator at D-Q University at Sycuan on the reservation of the Sycuan Band of the Kumeyaay Nation. He is a columnist for Indian Country Today.