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Richard O. Clemmer
University of Denver

Land Rights, Claims, and Western Shoshones: The Ideology of Loss and the Bureaucracy of Enforcement
This essay examines the shifting legal-political discourses surrounding the concepts claim, property, and rights with regard to the Western Shoshone. It argues that an ideology of loss structured the Indian Claims Commission (ICC) proceedings. These proceedings parted Native Americans from their land, often despite existing treaties affirming land rights. Far from settling historical claims, the ICC proceedings actually produced and transformed Native and non-Native histories and added a new bureaucratic facet to the colonial encounter. The discussion suggests that the attempted conquest of Native Americans is not a single fact accomplished in the past but is rather an ongoing process that is driven by the American political economy. Reference to the works of contemporary scholars, as well as to those of ancestral scholars Henry Sumner Maine, Karl Marx, Max Weber, and Antonio Gramsci elucidates how a dominant legal philosophy was put into place. This philosophy permitted the wielding of legal power and undermined Native Americans contestation of that power. Nevertheless, indigenous peoples such as the Western Shoshones, and the lawyers working with them, have found ways to use law to exert agency in the face of this bureaucratic forcecreating an at-times ambivalent or double-edged relationship with legal power. [land rights, Indian Claims Commission, Shoshones,
Native Americans, ideology of loss]

We were buckarooing up there, said my consultant. It was night. We spotted a campfire. We got up close and saw what it was: it was our old people, dressed like they used to in the old days, in skins, except they were skeletons. They were sitting around that camp fire playing the hand game. Well, the guy I was with, he was scared out of his wits. He took off on his horse and rode like the devil. But I wasnt scared. I knew it was our old people the ones thatd gone on. [Clemmer Field Notes July 11, 1989] This incident happened close to what is called the White Knife Quarry, on Western Shoshones ancestral lands. Spirits of the deceased are to be expected there: it has been used for at least ten thousand yearsfor quarrying chert (a white stone) for tools and weapons, as a burial place until at least the 1920s, and as a place where people went to gather the white chert for ceremonial use. But the quarry is no longer used for those purposes. Western Shoshones have not had access to it or surrounding areas for almost fifteen years. The area is now part of the expanded Carlin gold mine, a strip mine opened nearby in the 1960s and controlled by Newmont Mining Corporation
PoLAR: Political and Legal Anthropology Review, Vol. 32, Number 2, pps. 279311. ISSN 1081-6976, electronic ISSN 1555-2934. C 2009 by the American Anthropological Association. All rights reserved. DOI: 10.1111/j.1555-2934.2009.01044.x.

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since the 1980s. In the first six months of 2005, the sales of gold from its Nevada operations netted Newmont $11,951,000 (Newmont 2005:40). Western Shoshones received no royalties from these or any other gold sales. Shoshones formed the Shundahai [Prayer] Network and the Western Shoshone Defense Project to protest Newmonts mining activities and also government plans to locate a nuclear waste depository under Yucca Mountain, known as Snake Mountain to Shoshonesa place with rock prayer rings that transmit prayers to the Great Spirit and messages back to the people (Harney 2007). Shundahai Network sponsors a walk-and-run protest at Yucca Mountain annually. They also are protesting an open-pit Cortez Gold Mine, operated by Barrick Gold (formerly operated by Newmont), on Mount Tenabo, a peak with sacred sites, the highest peak in the Cortez Mountains of northern Nevada (Dann 2007). If these mines are on Western Shoshone ancestral lands, why do Shoshones not have access to them? And why have they never received any royalties? The answer is that these mining companiesBarrick, Newmont, and its predecessor, Carlin Gold negotiated the leases from the U.S. Bureau of Land Management (BLM). The BLM contends that it owns these lands. Yet according to another U.S. government entity the Indian Claims Commission (ICC)the Western Shoshone held legal title to this very land. And according to several court decisionsthe U.S. District Court in Reno, Nevada, and the Ninth Circuit Court of Appeals in San Francisco, CaliforniaWestern Shoshones still held that title as late as 1979 and maybe even 1982. How did it happen that mining companies got total control of land that should be under the stewardship of the Western Shoshone, through a lease with the BLM? Answering this question opens up a set of broader questions that reach far beyond the situation itself. In 1993, Dieter Rogalla, vice-president of the Legal Affairs Committee of the Depute au Parlement Europeen, visited the Western Shoshone and submitted a report noting legal inconsistencies with regard to legal decisions regarding their claims to land (Ahern and Breyer 1998). Based on that report and subsequent information, in 1998 the two delegates appointed for Relations with the United States by the Depute au Parlement Europeens Committee on the Environment wrote Secretary of the Interior Bruce Babbitt urging him to deal with the issue of Western Shoshone title to their lands by entering into negotiations with the legitimized successors of the Western Shoshone entity which signed the treaty 1863 on the basis of the continued validity of the Treaty of Ruby Valley (Ahern and Breyer 1998). Treaties are a genre of rights discourse (Gooding 1994:1197); the ICC neatly avoided this discourse. At issue, on the one hand, is how the law, as a cultural institution, promoted the essentialization of identity (Gooding 1994:1188). Contested meanings swirl around title, treaty, and successors of the Western Shoshone, as well as claim. On the other hand, to understand them, we are compelled to investigate the origins of an ideology of loss, and to examine how this ideology is contested by the kind of relationships with land expressed in the buckarooing anecdote above. This article thus has three central goals: First, to recount how the legal language surrounding claim, embedded in a 19th century legal philosophy of loss, was used to redefine and alter the meaning of

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claim as Western Shoshones understood and defined it. This alteration of meaning was created by actors within a social contextthe ICC proceedingsin which misrepresentation, duplicity, manipulation, and failure to communicate on the part of attorneys would ensue. In the name of arguing the Western Shoshone claim according to the ICCs rules, a story of law, as Jo Carrillo (2002:37) notes, took on the status of myth and embedded it in the force of ideology. A second purpose is to argue that Western Shoshones successfully contested the misrepresentation and duplicity as well as the legal reconstruction of claim and loss. They inserted wedges into the established relations of power and forced consideration of alternatives to the dominant discourse. The fact that they were ultimately barred from realizing a different outcome to the claim proceedings derives not from their having embraced the wrong definition of claim or pursued the wrong strategy. Rather, it derives from the hegemony of political-legal assumptions that blocked alternative definitions of claim and loss. The alternatives that Western Shoshones pursued would have threatened and ultimately deconstructed the legitimacy of the dominant political and economic power (a power that the legal discourse of Indian claims was in fact intended to mask). Here I am following Weissbourd and Mertz (1985:624) and others in regarding even the seemingly routine application of rules to facts as a creative moment. This creative momentactually in this case a number of creative moments entailed struggles among government representatives, Western Shoshone individuals, and Western Shoshone groups. This struggle pitted treaty rights and claims to them against the ICCs conceptualization of claim. It brought Western Shoshones into contestation with the reduction and essentialization of their social identity to government-recognized tribes, and it also promoted resistance to legal discourse that indexes only white speakers. Third, scant attention has been paid to how ideological power derived from 18thcentury Enlightenment philosophical residues influenced these stories of law and validated the unfettered extraction of wealth from land-based resources. Therefore, the third goal, closely tied to the first, is to access analytical tools that were being hammered out by pioneering social thinkers, at the very historical moments that legal philosophy and bureaucratic procedures for accomplishing this prejudicial settlement were being put in place. These social thinkers were Henry Sumner Maine, Karl Marx, Max Weber, and Antonio Gramsci. Their insights assist in understanding how legal practitioners contributed to the construction of a legal philosophy whose significance far outran any specific decisions they made. These older analytical tools can be used to forge a critique of what Weissbourd and Mertz (1985:656) describe as the way in which principles that derive from the decontextualized structure of language as a system for reference are used to regiment explanation.1 As Weissbourd and Mertz put it, the continuous use of the same terms for basic categories of law, i.e., persons, property, powers, and obligations, tends to conceal the dialectic rule and process through which changes in the law occur and fosters the illusion that the law is a static system of rules deductively applied. [1985:642]

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In fact, categories such as group, property, owners, and claim in the Western Shoshone case were used in very different ways: on the one hand, they were used to push a legal contest into a predecided outcome, aided by an ideology of lossand, on the other hand, they were used to contest that foreordained outcome. This third part of the article is therefore both a historical exposition and a theoretical critique. Here, then, is the Western Shoshones story: Western Shoshones and the Treaty of Ruby Valley All Shoshone call themselves some variation of num:, or num a, depending on dialect (Steward 1937:627); Western Shoshones refer to themselves as Newe2 (Western Shoshone Sacred Lands Association 1981). I use Western Shoshone because of its conventional familiarity to most readers. Western Shoshone are northern UtoAztekan-speakers who historically made their living by gathering, foraging, hunting, fishingand here and there a little farming. Aboriginal Western Shoshone social organization has been characterized as resembling a vast net stretching from southern Nevada and eastern California to southern Idaho and northern Utah, the people of each village being linked to those of villages on all sides by varied economic and social activities as well as by marriage (Steward 1937:630). Anthropologist Julian Steward (1938) and botanist Percy Train (Train et al. 1982[1957]), independently of each other, documented Western Shoshones continuing residence and use of their traditional land and its resources (Stewart 1978:98101), even in cases, in which Western Shoshones moved onto, or continued to live on the non-Indian settlers homesteads (Patterson 1982). Most now live in 18 government reservations and small colonies, half a dozen towns and cities, and on various trust allotments and homesteads in Utah, Nevada, and California (Stewart 1978:8184)including the 290,000-acre Duck Valley Reservation, established by presidential executive order in 1877 that straddles the Nevada-Idaho border. Approximately 280 Western Shoshones share this reservation with about 600 Northern Paiutes3 (Nevada Indian Commission 1971; Clemmer Field Notes1970, 1974 1989). In 1863 the U.S. government negotiated three treaties with Western Shoshone.4 All of these treaties were treaties of peace and friendship. They did not cede any land (Kappler 1904:850853, 859860; Clemmer and Steward 1986:526527) My focus is on one of these treaties, the Treaty of Ruby Valley, its relationship to the Western Shoshone land claim, and the role of attorneys in that relationship. Legal Representation and the Struggle over Western Shoshones Treaty and Property Rights Legal Representation: Milton Badt Born into a homesteader ranching-merchant family that settled near Wells, Nevada, in 1868, Elko attorney Milton Badt acquired an important early role in Western Shoshones efforts to regain land and enforce treaty rights in 1928 (Badt to Oddie 0510-28; 05-31-28; 06-11-28 in U.S. Senate 1934:1486214863).5 Badts opportunity

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to become acquainted with Shoshones came while going to school in the two-room schoolhouse in Wells. After earning his BA degree from the University of California in 1906 and his law degree from Hastings College of Law, he set up a law practice in Elko, Nevada (Marschall 2007). On September 16, 1932 Western Shoshones attended hearings along with Badt that the U.S. Senate subcommittee on Indian Affairs conducted in Elko.6 Badt outlined the Western Shoshone legal case. Badt centered his argument squarely in the Ruby Valley Treaty. He testified that Western Shoshones had never received one cent of the $100,000 in annuities promised in the Treaty as compensation for the inconvenience suffered by Shoshones because of roads, railroads, emigration, and stage lines coming through their land as well as mining and homesteading. He contended that Shoshones had agreed to cede their country to the United States only when the president established a reservation for them within their country, and that the reservation that was set asidethe Duck Valley Reservationwas outside of their country as described in the Treaty and therefore did not qualify as a reservation within the Treatys terms (U.S. Senate 1934:14851). Badt seemed to be arguing for recognition that Western Shoshones owned the entire Treaty areaas well as for a reservation consisting of all land that was not privately owned within the Treaty area. On October 10, 1932, nearly 100 Western Shoshones had met in General Council, entering into an agreement with Badt to represent them as counsel, attorney, and solicitor . . . to prosecute their claims against the United States and recover their rights under the Ruby Valley Treaty (U.S. Senate 1934:1485214853). Representatives came from Wells, Ely, Elko, Lamoille, Battle Mountain, and Ruby Valley, as well as other communities (U.S. Senate 1934:11848). Eight chiefs and principal men representing the Western Bands of the Shoshone Nation of Indians signed the contract. Another contract with the Western Shoshone in General Council was executed in 1936 (Barker 1974). Badt took the job on a commission basis; he would receive 10 percent of all recoveries (Crum 1994:103; Barker 1974). The recoveries clause indicates that Badt envisioned a restoration of land and rights as well as a monetary settlement, the latter probably for the $100,000 in treaty annuities that were never distributed.7 Badts contract with the chiefs and principal men was to run for ten years. When it was renewed in 1947, it was renewed not with the Western Shoshone General Council, but rather with the Te-Moak Bands Tribe. Therefore, it is instructive to determine just what this tribe was and how it was formed.

The Te-Moak Bands One of many ironies in the Western Shoshone case is the way that the Te-Moak Bands8 Tribal Government was formed. The Te-Moak Bands Tribe was a creation of the Bureau of Indian Affairs (BIA) and was only partially rooted in Western Shoshone socio-political organization. Comprising people descended from Watatekka Shoshone living to the immediate east and west of the Ruby Mountains (Clemmer 1991; Steward 1938:149150), the tribe was named for Temoke, one of several signatories to the Treaty of Ruby Valley whose descendants were well known and held influence in

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the area (Crum 1994:78). Some attention to just how this tribe was formed will reveal that the Te-Moak Bands represented only a fraction of Western Shoshones. According to the Indian Reorganization Act, U.S. government-recognized tribal governments had to be adopted (or rejected) by each tribe in a referendumtribe being defined by the U.S. Bureau of Indian Affairs. In 1936 when the referenda on the Indian Reorganization Act (IRA) as well as on the Te-Moak Bands Constitution were held, they were held only in Elko, where about 200 Shoshones lived on land held in trust for them by the U.S. government. In fact, other members of the Te-Moak Bands were also living on allotments in Ruby Valley and in scattered settlements along the Lamoille Creek, the South Fork of the Humboldt River and Bishop Creek near Deeth, and in Wells. They would later be incorporated into the Te-Moak Bands. Whether any of these folks voted on the referenda is unknown. We therefore also do not know, if they were in fact excluded from the vote, how their votes might have altered the outcome. The Lamoille and South Fork people acquired land assignments on ranch land that the government purchased to form a reservation for the needy and landless Shoshone families of the Te-Moak Bands (Indian Claims Commission 1977:323,333). When the South Fork Reservation was officially established in 1941, its residents were incorporated into the Te-Moak Bands Tribe. Western Shoshones living on small homestead allotments established under the General Allotment (Dawes) Act of 1887 in Ruby Valley were also incorporated into the Te-Moak Bands Tribe (see Cornell 1988:80; Clemmer 1995:87), without their consent and against their wishes (Clemmer Field Notes 1970). Members of the Elko community and the new South Fork reservation then approved a Te-Moak Bands Tribal Constitution setting up a Te-Moak Bands Business Council empowered to represent the Te-Moak Bands Tribe; make decisions for it; and most importantly, enter into legal agreements on its behalf (Rusco 1982). Alida Bowler, Superintendent of Indian Affairs for Nevada, wanted to form a Western Shoshone Tribe. The kernel of such a tribe already existed in the General Council that had entered into the agreement to pursue treaty rights with Badt. However, BIA functionaries in Washington, DC, vetoed the idea, asserting that the Western Shoshone, scattered over several communities were not a recognized tribe, even though they had been recognized in a treaty ratified by the Senate and proclaimed by the president (Rusco 1982:188189).9 Here are the important points: (1) The Te-Moak Bands represented only two small communities, a fraction of all Western Shoshones (Stewart 1978:98; Rusco 1982).10 (2) Western Shoshones were in the process of trying to establish a pan-Western Shoshone organization.11 The General Council, set up by Western Shoshones themselves, in contrast, had representation from at least six communities. (3) In establishing the Te-Moak Bands, and ignoring the already existing General Council, the BIA created an artificial opposition between the General Council, led by Muchach Temoke, and the Te-Moak Bands. This artificial opposition effectively encouraged competition between the two groups for legal representation of the Western Shoshone Indians. This competition would become salient by 1947, when Badts contract with the General Council and the eight headmen came up for renewal.

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In 1940, Ernest Wilkinson, an attorney who was well connected in Washington, D.C., became associated with the Badt law firm (Crum 1994:124; Barker 1974). Badt left his profession as a barrister in 1945 when he accepted an appointment to the Nevada Supreme Court. The Western Shoshone claim was now essentially in the hands of the Wilkinson law firm.12 In 1946, Congress passed the Indian Claims Commission Act, which required the commission to hear and determine . . . claims against the United States on behalf of any Indian tribe, band, or identifiable group of American Indians (U.S. Congress 1946:1050). The acts stipulations as to how claims could be filed were extremely loose. Any legally constituted political entity officially recognized by the U.S. government could file a claim on behalf of an identifiable group. Eventually, the commission defined all Western Shoshones as a single identifiable group. Although a subsequent amendment provided for 20 percent of any monetary judgment to be distributed to tribal organizations, Congresss original intent was to distribute money to individual Indians in order to encourage the progress of the Indians who desire to be rehabilitated at the white mans level in the white mans economy (Congressional Record 1946:53125317).13 The ICC subsequently decided that it did not have the authority to return land, although it could declare that Indian title to particular tracts had never been extinguished. Attorneys would get 10 percent of the award. Forbes, quoting a 1961 Indian Claims Commission statement (9 ICC 417 (1961)), reports that an amendment to the act in 1961 specified that once the award was made and the money was in the hands of the Indians, such payments shall finally dispose of all rights, claims, or demands which said petitioners or any of them . . . could have asserted with respect to said tract . . . and said petitioners, and each of them . . . shall be barred thereby from asserting any such rights, claims, or demands against defendant (the U.S. Government) . . . as aforesaid shall constitute a final determination of said claim, . . . the parties thereto waiving any right to appeal from or otherwise seek review of such determination. [Forbes 1967:45] Thus did the Claims Commission redefine claim as not a claim for land but rather as a claim for money (Forbes 1967:45; see also Orlando 1986:255; Rusco 1992:256; and note that Rusco 1991:356 also cites 25 U.S.C. 70u[a] (1976) on this point). Rights became not treaty rights but rather rights to monetary compensation for land lost, to be confirmed or denied in legal discourse. Just a few days after passage of the ICC, Wilkinson stated, If we prosecute the Western Shoshone case, we should do it on the theory of loss of immemorial possession (Crum 1994:125). Thus, Wilkinson had already conceded an important legal point, one on which many Western Shoshones would strongly disagree, before he even began arguing the case: that the land of the Newe had already been lost and could not be recovered. And yet Wilkinson repeatedly assured the Temoak Bands Council that the ICC proceedings would have no effect on present Western Shoshone title or possessory rights (Orlando 1986:266). Indeed, much of the land described as

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being within the boundaries covered in the Treaty had never been homesteaded, much of the land taken for mining had been mined and abandoned, and only $9,410.11 of the $100,000 of compensation promised in the Treaty for the inconvenience of building roads and railroads, mining, and homesteading had ever been paid (Indian Claims Commission 1977). The ICCs model of rationality, then, had created a double bind: it offered a loselose trade-off. Western Shoshones could accept a monetary settlement and concede their land-and-treaty rights, or they could give up any kind of compensation. In order to receive compensation, they had to accept a disadvantageous translation of the land-and-treaty-rights values into an argument based on commensurable loss. According to this translation, Western Shoshones had once had property rights that, before they were lost, had a monetary value in market economy terms. A dollar figure would be ascertained, thereby costing the Western Shoshones the right to assert any claims available under the treaty-rights model but at least this would give them the benefit of a monetary settlement. This benefit would be measurably better than the only other alternative provided by the Claims Commission: a decision that Western Shoshones had never had any rights to any land and therefore could expect no monetary settlement (which was the U.S. government attorneys standard argument in all the claims cases). Before considering how Western Shoshones contested this model of rationality, it is useful to ask whether or not this ideology of loss was an inevitable outcome of the encounter between indigenous peoples and colonizing nation-states, or whether this rationality of forfeiture might have only been the product of a kind of perverse, convoluted reasoning. In order to gain perspective on this question, it is appropriate to examine several then-current early commentaries on the state, bureaucracy, and property rights of indigenous peoples. These commentaries analyzed how contestations of hegemonic legal ideologies such as the ideology of loss proceeded within legal frameworks intended to enforce them. A Different History: Maine, Marx, Weber, Gramsciand Marshall It is laws, rules, regulations, procedures, protocols, principlesand, most importantly, legal philosophythat undergird the disjuncture between Western Shoshones understanding of property rights and the Claims Commissions and the Shoshones own attorneys approaches (which, as will be demonstrated, failed to acknowledge those property rights). Current scholars have laid the foundations for a full analysis of this disjuncture; as Sally Engle Merry (1992:357) notes, Colonialism pulled entire legal systems across national borders and imposed them on very different sociocultural systems. However, earlier scholarship also provided potential sources of critique and caution. We could begin with the work of a renowned anthropological ancestor, Henry Sumner Maine. By 1884, Maine was already arguing that Roman lawon which modern law and therefore colonial law was basedcould not adequately justify usurpation of land by colonizing European nations, especially when there was opposition or when boundaries were unclear (Maine 1970 [1884]:241; Pollock 1963:235). Maine argued, for example, that the legal principles

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characterizing village society in India could not, and should not, be replaced instantly and wholesale with British law. He noted that the Village Community of India is at once an organized patriarchal society and an assemblage of co-proprietors. The personal relations to each other of the men who compose it are indistinguishably confounded with their proprietary rights (Maine 1970 [1884]:252). He characterized the attempts of English functionaries to separate the two as some of the most formidable miscarriages of Anglo-Indian administration (1970 [1884]:252). Maine was critical of colonizing nations attempts to transform customary law . . . from a subtle, adaptable, and situational code to the system of fixed and formal rules (Merry 1992:365) represented in the old Roman principle of Occupancy [in] the acquisition of sovereign rights in newly discovered countries (Maine 1970 [1884]:239). This principle allowed, for example, the victor in a war to acquire the full rights of dominion, including usurpation of property, in the process of occupying the invaded country (1970 [1884]:2389). It assumed that ownership of property based in possession was part of the natural state of humankind. But Maine noted that in fact there was nothing natural about individuals possessing property.14 Maine contrasted ancient law recognizing collective property ownership and modern law privileging individualistic ownership. He further argued that this doctrine led to uncertainty on key points such as the extent of the territory acquired, and the nature of the acts which were necessary to complete the apprehension or assumption of sovereign possession (1970 [1884]:241). He demonstrated that when European (modern) law was imposed on a vast scale throughout the world between the sixteenth and nineteenth centuries, a kind of legal pluralism was created that could pit pre-colonial conceptualizations of personhood, property, labor, and obligations against legal regulations supporting a capitalist economy (see Merry 1992:363364). In his endnotes to Maines book, editor Frederick Pollock emphasizes and clarifies parts of Maines discussion (Pollack 1963:4357). Most importantly, the doctrine that occupancy produces ownership as a legal right is not universal in time or spacenor is the idea that everything ought to have an owner; and the assertion of ownership on the basis of occupancy depends upon the existence of no opposition (1963:435). Even if a colonial claim were made on the basis of the land actually being occupied, existing acknowledgment of indigenous ownership rights would even under the terms of the doctrine itselfcreate a problem for a colonial claim of occupancy. The 1863 Treaty of Ruby Valley did, in fact, acknowledge Western Shoshone occupancy and therefore possession of a large tract of land. It also affirmed that permission from the Western Shoshones would be necessary before others could enter that land and occupy it for particular purposes.15 However, no political-legal structure was put into place to support that ostensible empowerment. The Treatys promise was thus rendered invisible from the point of view of the dominant ideology, the ideology of loss. As we will see in the following section, Western Shoshones who referenced the Treaty wedged this empowerment back into the legal discourse surrounding claim by continuing to assert claims to property as opposed to claims to money for rights and property lost. In the Western Shoshone case, a great deal of land characterized

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as lost had in fact not even been occupied by others. How, then, did attorneys for the Western Shoshone come to argue that all Western Shoshone land had been takenthat is, occupied and therefore owned by some one else? They were able to do this because of a then-dominant legal philosophy setting forth the ideology of loss and calculable rules. In his now well-known essay of 18451846, The German Ideology, Marx asserted that an artificial separation is often created between ruling ideas and the ruling individuals who benefit from these ideas by philosophers (Marx 1972[18451846]:138139).16 One way in which philosophers achieve this separation is by producing a concept and tracing the development of the concept through history, so that it appears that it is the ideas rather than the people that rule societyand also rule history. The ideas are then associated with, and in effect changed into . . . a series of persons . . . the thinkers, the philosophers, the ideologists, who . . . are understood as the manufacturers of history (1972[1845 1846]:138139). The power and rule of actual, empirically documentable persons, says Marx, is masked by the sway of ideas (1972[18451846]:137). In this case, we are speaking of an ideology embedded in law. Antonio Gramsci made it clear that a specific ideology indeed is embedded in law. In his Prison Notebooks he noted: If every State tends to create and maintain a certain type of civilization and of citizen . . . , and to eliminate certain customs and attitudes and to disseminate others, then the Law will be its instrument for this purpose (together with the school system, and other institutions and activities) (Gramsci 2006[1971]:7185). He goes on to note that the State must be conceived of as an educator . . . an instrument of rationalisation . . . . The Law is the repressive and negative aspect of the entire positive, civilizing activity undertaken by the State (Gramsci 2006[1971]:7185; cf. Comaroff and Comaroff 1991:1823). The people in charge, then, can imagine that it is the framework given by ideas such as freedom or market, rather than social power, that directs their own actions (as well as those of others). Lawyers and government agencies would proceed as if the sway of ideas governed social relationships, property, and property transferand as if governments key role was to smooth the path of individuals toward initiating important production activities such as mining through calculable rules (cf. also Comaroff and Comaroff 1991:1823). As many anthropologists and social theorists have noted, these calculable rules are one of the most important elements shaping modern bureaucracies. They can in theory be applied uniformly and without regard to any persons or group of persons special needs. In particular, noted Max Weber, the seminal social theorist writing on this topic, only bureaucracy has established the foundations for the administration of a rational law conceptually systematized on the basis of statutes (2006 [1968]:58). In other words, the Bureau of Indian Affairs, on the one hand, and the Indian Claims Commission, on the other, provided what Weber called the impersonal and functional purposes and context through which the lawyers worked (2006[1968]:51). Despite the fact that the attorneys ostensibly represented the rights and interest of real, living people, they were able to bypass and ignore the wishes of those people simply by following calculable rules set down by the two bureaucracies that routed their actions in a particular direction.

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Weber noted that in his Germany of the time (18901920), the conception of the modern judge as an automaton into which legal documents and fees are stuffed at the top in order that it may spill forth the verdict at the bottom along with the reasons, read mechanically from codified paragraphs . . . is angrily rejected, but he added that nevertheless, a certain approximation to this type would precisely be implied by a consistent bureaucratization of justice (2006 [1968]:58). The verdicts of the Indian Claims Commission take remarkably similar forms; they all follow a certain formula. And in the cost-benefit calculation of commensuration, in the words of Wendy Espeland (1998:223), demands are made that may violate, even obliterate, other social boundaries that help order our lives and define us, such as the social boundaries that distinguish Western Shoshones who value land as a cultural resource from those in dominant society who value land as an economic resource. As C. Wright Mills observed, another important feature of bureaucracy serving the elite is that as much as it is an obstreperous and clumsy, hide-bound and snarled with procedure, . . . it survives changes of political administrations (Mills 1956:236). The Indian Claims Commission did this admirably; although the initial members appointed in 1946 had expired or retired, the ICC had never altered its procedures or its mission when it was finally dissolved in 1978. The Bureaus of Indian Affairs and Land Management also maintained policies formulated in the 1940s through the 1970s. It was the BIA and the BLM that engaged the gears of the legal machine that squelched attempts to counter the legal ideology of the doctrine of discovery, and that suppressed efforts to contest the production imperative for extracting gold. This legal ideology was developed by John Marshall, Chief Justice of the United States, in his several rulings regarding the Cherokee Nation in the 1820s and 30s (Fletcher v. Peck, 10 U.S. (6 Crn.) 87 (1810); Johnson and Grahams Lessee v. MIntosh, 21 U.S. (8 Wheat) 543 (1823); Cherokee Nation v. Georgia, 5 Pet. 1 (1831); and Worcester v. Georgia, 6 Pet. 515 (1832); see also Holden v. Joy, 17 Wall 211 (1872), and Cohen n.d. [1942]:28794, 610, 61415, 627; Price and Monroe 1983:53842). Thus when the Cherokee refused to cede their land, U.S. Government officials simply turned to leaders representing a fraction of the Cherokee Nation. Those leaders agreed to sign a treaty in 1835 authorizing the Nations removal and the subsequent Trail of Tears (Cornell 1988:48), so that gold miners and homesteaders could move in.17 These rulings established the concepts of the doctrine of discovery, and of aboriginal title based on occupation of land from time immemorial neither concept having precedent in European legal traditions; the rulings also set the stage for development of the ideology of loss (Deloria and Lytle 1984:2). Absent knowledge of the actual conceptualizations of land use and possession that governed in aboriginal North America, the legal philosophy emanating from the Supreme Court declared that the doctrine of discovery had given European powers the right to extinguish immemorial possession. A further component of aboriginal title was that the United States declared itself to have taken over the rights asserted at discovery from England, France, and Spain upon purchase or conveyance by treaty from those European powers rights that, Maine (1970[1884]) noted, were at the very least problematic.18 Thus was legal discourse bent to the purpose of legally colonizing

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tribal cultures, the hegemony of the law . . . seamless and endlessly unfolding across the horizon of the history of Native Americans (Gooding 1994:1194). This artificial conceptualization of aboriginal title also brought along with it an equally inapt concept of nation which encouraged the fiction that as nations, Indians had governments with leaders (e.g., chiefs) in the same way found in other nations with whom the United States had treaties (Deloria and Lytle 1984:9). Indian nations would then sign treaties that would deed over property to the United States in treaties of session that would effectively extinguish aboriginal title. The Treaty of Ruby Valley, however, was a Treaty of Peace and Friendship, not a Treaty of Cession (Kappler 1904:851853). Now it was just exactly this process that Maine targeted as being so problematic. In fact, possession could not be obtained simply by setting foot on a tract of land and occupying it, because it was usually impossible to determine just exactly what it (the tract of land) was. In particular, a tract of land could not be defined and occupied if there was opposition. Marshall tried to get around this sticking point by noting that the extinguishing of title had to be quite deliberate and unmistakable. But he also ruled that the Indian nation in question had no choice in the matter: if the discovering nation decided to extinguish, then the aboriginal occupiers had to go along with the process. Note that this is exactly the point on which Maine complained that Roman Law and therefore also English Common Law were inadequate. For example, by contrast with the United States, nearly all of India remained in the possession and ownership of the native inhabitants; the British ended up owning almost none of the subcontinent, even though they occupied and ruled it. Marshall and his fellow justices on the Supreme Court managed to declare the existence of a doctrine the doctrine of discovery that trumped both Roman law and English Common law.19 The doctrine of discovery, from an indigenous point of view, was a doctrine of loss in which the colonizer discovered faceless occupiers that were knocked down, again and again, like so many dominoes. The actual indigenous land-holders, in this legal ideology, were replaced by what Jo Carrillo (2002:37) calls a symbolic Indian an illusion, a fiction created from the documents of the colonizer. But Western Shoshones were not willing to allow themselves to be replaced by this symbolic Indian.

Contesting the Legal Frame Some Western Shoshones were drawing on their own normative order to resist . . . circumvent . . . and subvert . . . the dominant system (Merry 1992:358). In January 1947, a number of Shoshone leaders who had witnessed or been involved in the original thrust for recognition of land rights in the 1920s20 came together and decided to (1) oppose the hiring of the Wilson-Wilkinson team; (2) oppose the filing of a claim with the ICC because it would result in money, not land; (3) try to hire other attorneys; and (4) pursue land entitlement under the terms of the Treaty of Ruby Valley. These Western Shoshones obviously considered the original treaty to be a core and defining source for legal claims.21 It is clear from the testimony in 1932 and

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from later recitations at meetings that a substantial proportion of Western Shoshones interpreted the treaty as granting Western Shoshones continued collective ownership of their land. Western Shoshone jurisdiction over the land, then, could be asserted once the activities permitted under the treatymining, homesteading, etc.had been discontinued, and this jurisdiction could always be asserted over land that had never been used for purposes defined in the treaty. The position taken by the General Council of 1932 and the chiefs and principal men directly countered the ICCs ideology of loss.22 The ICCs new legal frame could not accommodate their position. However, a three-member claims committee formed by the Duck Valley Shoshone (a group later characterized as unrepresentative by other Western Shoshones)23 called a separate meeting in Elko on February 10, 1947. The BIAs agent to the Western Shoshone told the assembled people that the 1936 contract with Milton Badt had expired, and that the Western Shoshone now needed lawyers to represent them before the Indian Claims Commission. In addition, they would also now need a legal entity officially recognized by the U.S. government, such as the Te-Moak Bands, in order to contract with the lawyers to present the claim (Crum 1994:125126). Approximately 50 people attended. At the meeting, Indian agent Diehl urged the hiring of the Wilson-Wilkinson team. Diehl held sway. The Te-Moak Bands hired the Wilkinson firm to represent all Western Shoshones, even though the Te-Moak Bands at that time represented only two groups: the South Fork Community and the Elko Colony. For the first time, there was now a clear split not only in legal strategy with regard to land rights, but also between groups: those who favored the treaty strategy, as opposed to those who favored the Claims Commission strategy. In March 1947, the treaty people went to Washington, D.C., to meet with Wilkinson, in an attempt to persuade him to represent their position favoring return of land under the treaty provisions. They were unsuccessful. Upon their return, they instigated what would be the first of many alternative meetings at the Battle Mountain Indian Colony (Crum 1994:127). They organized a Te-Moak Tribe, which had no connection to the Te-Moak Bands and had no formal recognition from the state or federal governments. This Tribe was the successor to the General Council and the chiefs and headmen of 1932, and it would attempt to cut across the artificial reservation and tribal boundaries that had been created (Rusco 1992). Wilkinson knew that the Te-Moak Bands and the Duck Valley Shoshones constituted only a fraction of all Western Shoshonesundoubtedly less than a quarter of them (Crum 1994:127). It is not clear whether he knew about the counter-organizing efforts that were underway, but it is likely that he did. Between the end of March 1947 and June 1, 1947, Wilkinsons new clients, the Te-Moak Bands, sponsored three more claims meetings. Prior to the June 1 meeting, BIA agent Diehl visited various Shoshone communities and sent official notices to 34 different communities,24 inviting them to send delegates to the June meeting (Crum 1994:129). Over the following 18 years, those who went along with the Claims Commission (rather than attempting to enforce treaty rights and regain land) attended meetings called by the Claims attorneys. Those who wanted to pursue the original mandate to press for treaty

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rights held separate meetings. They spoke a different discourse from that of the ICC, rejecting the attempt to undermine their capacity to pursue what might be called legal pluralism both within an international legal framework (Merry 1992:262; Morris 1986) and within what would eventually become U.S. case law (Gooding 1994:1197 1198). People who attended one set of meetings rarely attended the others, although sometimes the treaty faction attended claims meetings, and then expressed their dissatisfaction and disagreement with how things were going by walking out. By 1958 Wilkinson had taken a junior partner, Robert Barker, in the claims cases. In 1959, their contract with the Te-Moak Bands was renewed (Agreement Amending and Extending Attorneys Contract with Wilkinson, Cragun, Wilkinson, Barker and Gormley Aug. 21, 1959), and Barker and Wilkinson began making their arguments before the ICC. Wilkinson and Barker argued that, aside from the Duck Valley Reservation, all the Western Shoshones lands had been taken as a result of gradual encroachment of White miners and homesteaders; railroads, and U.S. Government actions (Report of Claims Attorneys to Claims Committee of Western Shoshone Identifiable Group, June 26, 1974:2). Wilkinson never advanced the idea that not all of Western Shoshone lands had been taken. Between September 28 and October 1, 1965, claims attorney Robert Barker held four meetings with Shoshones in Austin, Ely, Owyhee, and Elko so that Western Shoshones could approve the attorneys request for a federal loan of $145,000. This loan would be payable when the final monetary award was made. Barker reported that a majority of the 236 Western Shoshones attending the meetings had voted to approve the loan. The Elko meeting had the heaviest attendance. Barker reported that some 60 persons did leave without voting, leaving 89 to vote. However, noted the Wilkinson report, even if all those persons had cast a no vote, the proposal would have been overwhelmingly approved by the Western Shoshone (Crum 1994:178179; Rusco 1992; Report to Western Shoshones on Claims Case No. 326, October 5, 1965). However, as political scientist Elmer Rusco (1992:347) has noted, the 236 votes represented a tiny fraction of the total Western Shoshone population. Also, as noted above, many opponents of Wilkinson and Barkers strategy boycotted Barkers meetings. And the Native Nevadan and the Nevada State Journal reported a total of 300 people at the Elko meeting, with about half walking out, thereby casting what one participant later called an Indian vote. In this account, 150 people remained at the meeting. But Carrie Dann wrote to the journal in response to its article, stating, I must contradict your reporter. The number of Indians who remained was about 45 (adults and children), far fewer than either Wilkinsons or the journalists figures (Forbes 1967:258). The Claims Case: First Legal Decision As Rusco (1992:347) pointed out, Wilkinson and Barker may have . . . realized the unrepresentative character of the Te-Moak Bands Tribal Council, but they also probably realized the strength of growing opposition. Barker set up what he called a special committee. Seven persons from six of the 18 Western Shoshone reservation and colony communities were selected to act on the special committee, and

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were approved by majority votes in meetings in four places (Barker 1978a). It is unclear whether they were nominated through some sort of community consensus or simply selected by Barker. In any case, the special committee fulfilled whatever decision-making protocols were necessary for the following 15 yearsuntil 1980 (Crum 1994:178)despite the fact that the Te-Moak Bands were the contractor of record.25 Formation of the committee ostensibly broadened the network of people included in information loops, and the number who could have input into the claims process. But the committee had no power to direct the actions of the attorneys. Therefore, the rigid bureaucratic rules governing the overall process limited any broadening effect. Mainly, formation of the committee obviated the necessity of holding general meetings at which the vocal opposition could turn up to pursue their oppositional agenda.26 In 1972 the Wilkinson firm, government attorneys, and Claims Commission agreed on a single date of taking of Western Shoshone land: July 1, 1872. The land would be valued according to land, timber, and mineral prices of 1872, the minerals being figured at a 12.5 percent royalty rate. In 1977, the Commission made its final rulinga net award of $26,145,189.89. Certain procedures were mandated during these final stages of the claims proceedings. The BIA was required both to hold meetings that would determine how the awards should be paid and to prepare a roll of all descendants of the group on whose behalf the lawsuit was filed. Accordingly, the BIA called a meeting with Western Shoshones in the Elko Armory in August 1973. Opponents turned up en masse. They urged Shoshones to refuse the claims money, argued for the priority of treaty provisions, challenged the right of the government to pay the prices of 100 years ago when it was just now seeking to quiet Indian title to the land, and questioned the legality of the Wilkinson firms claim to represent Western Shoshones (Crum 1994:179). At the same time, the BLM sued Mary and Carrie Dann for trespass, threatening to round up and confiscate their livestock that grazed on land described as their country in the 1863 Western Shoshone Treaty of Ruby Valley. This lawsuit initiated a series of court cases and rulings that alternately supported and denied the validity of the Danns position, and also alternately affirmed and denied that the ICC proceedings were a means of taking title to Western Shoshone lands for the first time (Clemmer 2004). Continued Struggle: Attempts to Amend the Claim Barkers special committee continued to operate, but it was in disarray. One member resigned. Another refused to travel to Western Shoshone communities for meetings. Yet another withheld his signature from documents produced by the attorneys for the Claims Committee to sign (Clemmer Field Notes June 26July 17, 1974). The opponents formed the Western Shoshone Legal Defense and Education Committee (WSLDEA) (later the Western Shoshone Sacred Lands Association) (WSSLA). In November 1976, attorneys for the WSLDEA were invited to make a presentation to the Te-Moak Bands Council. At the meetings conclusion, the Te-Moak Bands Council made a historic decision. It voted three to two to file a motion with the Claims Commission to stop the claims proceedings. The Temoak Bands, said the resolution,

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was never presented the opportunity to choose between including lands in the claim and attempting to assert title to said lands because it appears that substantial portions of the lands included in the claim may actually belong to the Western Shoshone (Resolution 76-TM-23 and Minutes of Te-Moak Bands Council Meeting Authorizing Motion to Stay ICC Proceedings. Nov. 10, 1976). Furthermore, the resolution argued that lands that were then under BLM jurisdiction might easily be administratively transferred to an entity representing all Western Shoshone (WSSLA 1981). More than two hundred people from four communities, including two communities without representation on the Temoak Bands Council, signed a petition in support of Temoak Business Council to Protect Western Shoshone Rights (Western Shoshones 1977). (The WSSLA gives the figure as 330 (1981:35).) The resolution was sent to attorney Robert Barker. Barker refused to honor it. The Te-Moak Bands cancelled the Wilkinson firms contract. The firm ignored that action, too (Barker 1978b). The Temoak Bands requested the ICC to stay the proceedings while new attorneys27 that it had hired filed an amended claim (which included a request for recognition of title to land that had not been homesteaded or acquired for settlements, roads, or railroads). But the ICC denied the motion for a stay (Sonosky, Chambers and Sachse 1977). The Western Shoshone Sacred Lands Association also tried to intervene in the Claims process, but the ICC rejected the petition (Inter-American Commission on Human Rights 2001:117, 118). The last procedure mandated by ICC rules was that a final public hearing of record be held at which any and all potential recipients of the awardin this case all Western Shoshoneswould formally approve the award and discuss procedures for dividing the award between tribal governments and individuals. The BIA set up the meeting in the Elko National Guard Armory for July 26, 1980. This event became a case of an indigenous group using the terms provided by the dominant colonizing nation to block the outcome anticipated by the ICC and the BIA (see Merry 1992:368). Speaker after speaker called for refusing the award and initiating procedures for getting their land returned. The Indian Claims Commission process is being used . . . to deprive us of our land rights, said Raymond Yowell. When this case was originated, it was only to assert our treaty rights, it was never intended by our tribal elders to terminate our treaty rights. Yet, this is exactly what is happening (WSSLA 1981: 20, 38). Speakers were limited to a few minutes each and, although several hundred people initially attended, many left as the meeting dragged on. The final vote was 67 against accepting the award and only 11 for it. Amazingly, in light of the lengthy history to the contrary, Congress respected this decision of record and refused to grant the Interior Department an extension to round up yea-sayers and reverse the decision. The lawyers, however, were paid their 10 percent $2.6 millionin 1981; the rest of the award was placed in a trust fund. From the governments viewpoint, Western Shoshones land rights and claims had been extinguished, because appropriation of the award to the trust fund constituted payment (Orlando 1986: 242243; 272273; see also U.S. v. Dann, 470 U.S. 39 (1985); U.S. v. Mary Dann and Carrie Dann Appeal 1989 (see Appendix)).

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However, Western Shoshones committed to treaty rights did not accept this interpretation and took further action to pursue legal means to affirm their rights. In January 1984 they formed the Western Shoshone National Council, with representation from nine of the twelve reservation and colony communities in Nevada where Shoshones live and also from the newly recognized Timbi-sha Shoshone Tribe from Death Valley, California; this council was supposed to negotiate a legislative resolution of land rights issues as well as the money claims (Luebben, Hughes, and Tomita 1985; Rusco 1992:350). The National Council sought and obtained official recognition from the Department of the Interiors Deputy Assistant Secretary for Indian Affairs because it was clear that the Western Shoshone National Council represents by far the majority interests of the Western Shoshone people (Fritz 1984). The National Councils attorneys even managed to get bills introduced into Congress that would have included land as well as money to settle the treaty-based claim. But the Ninth Circuit Court of Appeals quashed those legislative initiatives when it ruled in 1989 that payment of the ICC claim bars the Danns from asserting the tribal title to grazing rights just as it bars their asserting title to the lands (U.S. v. Mary Dann and Carrie Dann Appeal 1989 (see Appendix); Rusco 1992: 356).28 The Danns did not give up, however. In 1993, the Indian Law Resource Center brought a petition on their behalf to the Inter-American Commission on Human Rights, which ruled in 2001 that the United States had failed to ensure the Danns right to property . . . in connection with their claims to property rights in the Western Shoshones ancestral lands and recommended that it do so (Inter-American Commission on Human Rights 2001:147148). The Western Shoshone National Council also did not give up. It brought the case to international venues (e.g., to the Working Group of the Subcommission on Indigenous Populations of the UN Human Rights Council in Geneva (Clemmer Field Notes June 18 and July 13, 1989) and to the European Parliament (see Ahern and Breyer 1998). Many Western Shoshone consider their claim to be still legally alive as a treaty right. According to Elmer R. Rusco, Shoshones filed a lawsuit in U.S. District Court in Reno, Nevada, seeking to invalidate the 1977 ICC judgment, and to reinstate the claim legally on the basis of the treaty. The court transferred the case to the U.S. Court of Appeals for the Federal Circuit, which dismissed the case, asserting, among other things, that the Western Shoshone claim had already been adequately considered; it also asserted that too much time had passed since 1979, when the Court of Claims had ruled against the Te-Moak Bands efforts to reopen the case (U.S. Court of Appeals for the Federal Circuit 2008). Despite dogged persistence and surprising legal victories, the Western Shoshones have not succeeded in obtaining their core substantive goal in terms of continuing rights to land.29 In June 2004, Congress voted to distribute the Western Shoshone claims monies, now grown to $145 million, largely on the basis of a Western Shoshone Claims Steering Committee (Young 2004; U.S. Congress 2004), set up as the result of a Salt Lake City attorneys circulation of a petition favoring distribution among Western Shoshones in the 1990s (personal communication from Rusco to author 2003). Distribution of the funds began in 2007 (U.S. Court of Appeals for the Federal Circuit 2008).

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Discussion and Analysis: How Economic and Political Ideas Shape Assumptions, Rules, Bureaucratic Processes, and Laws Had the original legal argument from 1932 gone ahead in the form of a lawsuit,30 and had it not been folded into the boilerplate Indian Claims Commission claim format, Western Shoshones might well have had the power of deciding whether or not Newmont got a lease at White Knife Quarry. Even though the original treaty authorized mining, the Indian Claims Commission did, in fact, authorize payment of royalties on the dollar value of the ore that was extracted. At the very least, when the Carlin Gold Mine was opened in 1965, Shoshones should have gotten royalties on the dollar value extractedfrom 1965 until the claim was unilaterally declared settled by the courts in 1985. On the one hand, the attorneys involved in the case from the beginning utilized subterfuge, evasion, duplicity, manipulation, unilateral actions, and failure to communicate in order to avoid hearing or acting on the wishes of the clients whom they purportedly represented. Moreover, in hindsight, the decisions, nondecisions, and evasions that denied treaty and land rights (as well as Newmonts actions in mining in defiance of those rights) surely violate any number of provisions of the Declaration on the Rights of Indigenous Peoples passed by a 143 to 4 vote by the United Nations General Assembly in September 2007. On the other hand, apart from any choices made by the attorneys, the legal framework provided by the U.S. government itself created a difficult double-bind for Native Americans who wanted to retain their rights to ancestral land. The BIAs creation of the Te-Moak Bands Tribe permitted the attorneys to ignore the General Council that had originated the claim for treaty rights and, therefore, the claim itself. The kind of role the BIA played in setting up tribes and tribal councils has been documented for a number of communities (Clemmer 1978:3740, 5970; 1995:14465, 21021; Biolsi 1985, 1991, 1992). On the surface, these councils were supposed to be forums that endowed individuals with collective democracy with the empowerment ostensibly conveyed through voting and representation. Instead, tribal councils generally became mechanisms for implementing the agendas of dominant political and economic interests (Biolsi 1991:26; 1992:181). These interests were reflected in the ideology of loss that guided the ICC proceedings. The Te-Moak Bands Tribe was used to implement these agendas and to accept the ideology of loss for more than 30 years, until it was able to struggle out from under the dominant legal ideology imposed upon it. The dominant ideology contributing to land loss in this case derives from the legal philosophy that flourished during the period of Manifest Destiny in the 19th century. This legal philosophy provided the basis for the ideology of loss that underpinned the ICC proceedings and contradicted native understandings of what claim meant. It proceeds from the story of Native Americans destruction or their assimilation en masse (Gooding 1994:1194), on the premise that they had previously lost varying degrees of land, culture, sovereignty, language, and identity. In the cases in which land, culture, language, and identity were only partially lost, at least a limited degree of sovereignty should arguably have been permitted by the U.S. government. This

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limited sovereignty was nominally provided by the creation of tribes but those tribes could be used, as Biolsi (1991:26; 1992:181) notes, as mechanisms for implementing the agendas of dominant political and economic interests. The fictional Indian, created from the documents of the colonizer (Carrillo 2002:37) was trotted out again and again to rubber-stamp treaties and agreements of cession and removal whenever the real Indians balked, and finally as a disputant in the ICC proceedings. This legal philosophy, then, was used to hide displacement, dispossession, and arguably blatant theft behind the mask of appropriately adjudicated justice. The appearance of justice in these cases cloaked the states appropriation of law in service to Americas unprecedented economic growth. Carrillo (2002:3) writes that the legal narrative holding magic fixed by power, a symbolic text with a political function, was only one of the possible legal narratives produced by historical events and processes of the time period. Sociologist Wendy Espeland (1998:41) also aptly identifies the presence of different, competing rationalities in her study of the dispute involving the Yavapai Tribes opposition to a dam which the U.S. planned to build on their land. Just as Espeland describes in the Yavapai case, we see in the Western Shoshones case how the mediation of law, organizational bureaucracy, and ideology generated contradictory interpretations and competing and mutually contested rationalities. The ICC asserted a redefinition of claim that ultimately Western Shoshone did not accept. Thus the redefinition actually strengthened what Espeland (1998:142) would call contested (or perhaps contesting) rationalities, rationalities pitting a cost-benefit model of commensuration based on money against a set of cultural values prioritizing land and selfgovernment based on treaty-derived sovereignty. In cost-benefit analysis, all values are subsumed under a single value system that can be subjected to an ideal measure that demands expectations to be adjusted to fit it, and commensuration is used to create a relation between two attributes or dimensions where value is revealed in comparison (Espeland 1998:2227). Commensuration submerges disparate or even idiosyncratic values into standardized forms (Espeland 1998:227). In this case, however, Western Shoshones were able to accomplish an assertion of disparate values within the national legal system (Merry 1992:358, 368). This assertion countered the image of the conquered Indian that had lost land, ostensibly identity, and sovereignty, crushed by the forces of Manifest Destiny. Western Shoshones refused to be the fictional Indian (Carrillo 2002:37) who would finally be dispensed with, using a bureaucratic process which fixed the ideology of loss within the dominant legal narrative.

Conclusions Today scholars, along with the general public, are increasingly aware that Native American sacred places and traditional cultural properties are often located in places that are ostensibly privately or governmentally owned. We might be tempted to hear in this case a straightforward and timeless story of indigenous peoples opposition to a land grab by a powerful corporation, where the corporation was supported by

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a nation-state government. Until recently, the dominant historical account attributed Native American land loss in these areas primarily to treaties of cession negotiated in the early to mid-19th century and to the Dawes Allotment Act and its amendments in the late 19th and early 20th centurieswhich together removed nearly 100 million acres from reservations (Kickingbird and Ducheneaux 1973; Cornell 1988:5359, 83). But a number of scholars have now taken issue with the doctrine of discovery and the idea that colonizing governments automatically have the right to extinguish aboriginal title held by possession from time immemorial; these scholars have critiqued the use of these concepts both by U.S. courts and in ICC proceedings (Forbes 1965; Morris 1986; Orlando 1986; Ronaasen 1993; Carrillo 2002; Clemmer Field Notes 1974). This critique is part of a larger framework and socio-legal story of contested, colliding legal-historical rationalities and discourses at the interface of indigenous peoples and nation-states. Antonio Gramscis writings of the 1920s identify hegemony as a set of assumptions that can embed ideologies in value systems, institutions, and procedural rules that constitute a potent dominant cultural force and narrative. This dominant narrative generated a circular rational logic: Indians must be monetarily compensated for land lostand if they are in fact eligible for such compensation, then ipso facto, their land must have been lost. Clearly, attorneys working within the ICC framework were trying to construct a truth that the ICC would accept (Merry 1992:361). But Western Shoshones did not accept that truth. As my narrative demonstrates, this process actually resulted in contesting interpretations on the part of BIA officials, various groups of Western Shoshones (usually not speaking with one voice), and attorneys. For the Western Shoshone, the ICC proceedings did not settle claims or acknowledge the injustices of the past, but instead actually produced and transformed Native and non-Native histories. Mediating activities of attorneys both supported and contested the dominant narrative. My exploration of Western Shoshones attempts at resistance is intended to contribute to a growing body of studies of how indigenous groups use national legal systems to assert claims to land and sovereignty (Merry 1992:358, 368). This account thus balances an analysis of land loss through bureaucracy, ideology, and law with an account of indigenous peoples resistance, in part through the vehicles provided by law and lawyers.31 Thus, even though state law penetrates and restructures other normative orders . . . relations between state law and other normative orders [are] dialectic [and those] nonstate normative orders [can and do] resist and circumvent the penetration of nation-state law (Merry 1992:358). As recent developments in the anthropology of law have demonstrated (Merry 1992:358362), far from being a neutral instrument that distinguishes right from wrong and justice from injustice, law can embed a cultural ideology produced within particular historical moments. That ideology is then reinforced every time a particular law is enforced, but it is also contested every time implementation of the law is resisted. Thus, although legal philosophy can become hegemony, law is only a cultural institution, operating much the same as how culture operates generally (Gooding 1994:11881189), and actors in legal discourses create meanings that become embedded in cultural systems (Merry 1992:360).

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The ICC proceedings and the legal philosophy empowering it attempted to essentialize Western Shoshones as an identifiable group that lost their land rather than recognizing them as living human beings continuing to interact with their land. And yet Newe ideologies reflected in myth, ritual, kinship categories, and local group identities continue to animate the landscape with spirits, deities, and shades who require cooperative agreements between the Newe and natures spirits for successful activities of all kinds. As has also been described for many other Native American groups, for example the Yavapai (see Espeland 1998), land represents an incommensurable value not transmutable into money. The landscape is where Newe mythic history occurred, where important relationships between people and other dwellers of the environment are established, and where ancestors not only were buried but also continued to maintain a ghostly presence. The landscape is animated with spirits and sources of power. Newe culture overlays the landscape with power spots, sacred sites, and festival places as well as a series of seasonally available resources that were still important in the latter part of the 20th century, for example pine-nuts, rabbits, rock chucks and deer, willow used to make cradle boards, and white chert (stone) used for ceremonial purposes (Clemmer Field Notes June 21, 2426, 28 and July 6, 8, 9, 11, 12, 16, 1989; Hultkrantz 1986; Miller 1983). The voices of resistance that began in the 1920s to protect the land and its tangible and intangible resources continues with the voices of Corbin Harney,32 Mary Baker, Carrie Dann, and many others. It is a legacy that is now as much a part of Newe tradition as their ecological adaptations famously presented by Julian Steward (1938; see Clemmer et al. n.d.). The resilience and persistence of Newe (noted by Stewart 1978:80) who were supposed to become passive victims following the crush of emigrants, miners, the Pony Express, and railroads in the mid-19th century was matched by legal acumen, political organizing, and proactive advances aimed at the forces arrayed against them in the mid-20th century. For those Western Shoshones who opposed the ICC claim, and also for many who went along with it, land and the struggle to have their ties to it legally recognized as a treaty right signifies an affirmation of tradition and their right to maintain culture. Recently, Carrie Dann noted: No money could ever compensate taking the land from our native people. No race of people has ever sold their homeland. Where will our homeland be if we accept the money? Let us walk with dignity and honor and never as a people without a country. [Harney 2007] The struggle continues. Notes Most of the unpublished sources were supplied to me by the late Elmer R. Rusco, by the Western Shoshone National Council, or by several Western Shoshone consultants who must remain unnamed. Grateful acknowledgment is made of their assistance. Thanks also go to Alison Anthony, who received her MA from the Department

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of Anthropology at the University of Denver in 2003, for assistance with research reflected in this essay. 1. This insight fits into a large literature studying this kind of phenomenonwithin legal anthropology, linguistic anthropology, law and society studies, and legal theory. 2. For example, Newe Sogobia, roughly translated, means Mother Earth. It refers to Western Shoshones traditional homeland. John Wesley Powell (Powell and Ingalls, 1971 [1873]), the first to record ethnographic and linguistic data on Western Shoshones and Paiutes, in 1873 referred to them collectively as Numa. The term Numic replaced Shoshonean to refer to the cultures and languages of these peoples in the 1950s (cf. Lamb 1958). 3. The U.S. Census does not break out ethnicity for particular Indian reservations. This is the authors estimate, based on interviews with tribal members. More than 200 of those reckoned as Paiutes because they accepted the Paiute claims money are actually of mixed Paiute-Shoshone ancestry. About 40 people were Bruneau Shoshones (Clemmer Field Notes July 7, 1989). Total on-reservation population was 817 in 1970 (Nevada Indian Agency 1971:2), 877 in 1974 (U.S. Department of Commerce 1974:304) and 962 in 1980 (U.S. Census 1980 American Indian Population by Tribe for the United States, Regions, Divisions, and States 1980, tabulated by Alison Anthony). 4. Treaty of Box Elder with the Northwestern Shoshones in Utah and Idaho; Treaty of Tooele with the Goshute Shoshone of Utah and Nevada; and Treaty of Ruby Valley with the Western Bands in northeastern Nevada. For discussion of Western Shoshone ideology surrounding the Treaty of Ruby Valley see Clemmer (2006). 5. Letters from Badt to Tasker Oddie, May 10, 1928; May 31, 1928; and June 11, 1928. Tasker Oddie was the senator from Nevada, 19211933. 6. The hearings were part of its investigations resulting from the Meriam Report of 1928. The Secretary of the Interior commissioned the private Institute for Government Research to do a survey of social and economic conditions among American Indians. Known after its primary author, the head of the Institute, the report documented staggering degrees of poverty, ill health, poor education, and community disorganization, and criticized the governments allotment policy that had been intended to integrate Indians into the mainstream of American life (Cornell 1988:9091). 7. With interest at the rate of 3 percent per year, this would have amounted to more than $640,00010 percent of which would have been the equivalent, in terms of purchasing power, of the entire amount today. In the 1947 contract with the Wilkinson firm, the attorneys contingent fee was set even higherat between 7 and 10 percent of all sums or the value of all property recovered (United States Court of Claims Appeal No. 1-78, The Western Shoshone Identifiable Group, Represented by the Temoak Bands of Western Shoshone Indians v. The United States of America, Answer Brief of Appellant to Brief of their Former Counsel on Appeal from the Indian Claims Commission Docket No. 326-k. September 14,

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8. 9.

10.

11.

12. 13. 14.

15.

16. 17.

18.

1978, 13; August 1947 Contract between Temoak Bands and Ernest Wilkinson and Orville Wilson). That sum would have been even more than the 3 percent interest on the annuities that were never distributed. Tribal officials used the two spellings (Temoak and Te-Moak) interchangeably. The BIA also established a small Yomba reservation in the Reese River Valley and another along Duckwater Creek. Each of these was set up as a separate tribe with its own constitution and tribal council. Western Shoshones living on the Duck Valley Reservation were required to establish a joint tribal council with Northern Paiutes living there. (For discussion of the origins of this group and the reservation, see Clemmer 2009.) For example, in 1971 the estimated population of the TeMoak Bands Tribe was 500, with resident populations of 140 in Elko, 102 in South Fork, Nevada Indian Agency 1971:14). Resident populations in 1980 totaled about the same: 250 (Labor force = 183) (U.S. Census 1980 General, Family and Fertility Characteristics of American Indians on Identified American Indian Reservations 1980, tabulated by Alison Anthony). Total number of Western Shoshones in Nevada and California in 1980 was 3,641 (U.S. Census 1980 American Indian Population by Tribe for the United States, Regions, Divisions, and States 1980, tabulated by Alison Anthony). In 1936, Western Shoshones were still living in 18 small communities and extended family groups in their aboriginal territory, stretching from Wells, Nevada, in the east to Bishop, California, on the west (Stewart 1978:836). Badt officially turned his practice over to Orville Wilson, an Elko attorney, who, by default, became an associate of the Wilkinson firm. For a more extended discussion, see Ronaasen, Clemmer, and Rudden (1999). In fact, Ancient Law . . . knows next to nothing of Individuals. It is concerned not with Individuals, but with Families, not with single human beings, but groups (Maine 1970[1884]:250). Although Maine drew his support primarily from what he knew about India, it is obvious that collective property rights are the norm in many other societies as well. The treaty, then, was a constitutive rule, in the terms of legal philosopher Hart; it defined a social reality, and it can even be said that it was both a rule of obligation and one that conferred power to enforce a promisethe promise on the part of Shoshones to permit the intrusion of the American political economy, but also, on the part of the U.S. government, of collective property rights retained until certain other conditions were fulfilled (Weissbourd and Mertz 1985:634 635). Although officially coauthored with Friedrich Engels, it is now acknowledged that this piece was largely, if not completely, authored by Marx. By a combination of bribery, trickery, and intimidation (Debo 1940:5), the government also induced the other four large Native nations of the southeastern United States to leave their lands. In the case of the Western Shoshone, from Mexico, the successor nation to Spain (Answers to Interrogatories, United States District Court, District of Nevada. United States of America vs. Mary Dann and Carrie Dann, Civil R-74-60, BRT. Plaintiffs Answers to Interrogatories 1974).

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19. This result conflicted with Roman and English laws, which in accordance with the adage that possession is eleven points of the law (Cibber 1968[1697]), confirmed land-holders rights unless overruled by a deed held by someone else. 20. They included Muchach Temoke, son of Temoke, who had signed the treaty; Dewey Dann, Carrie and Mary Danns father; and several others. 21. In other words, what Herbert Hart considered a constitutive rule; that is, one that was socially creative/defining (Weissbourd and Mertz 1985:634). 22. As Gooding notes with regard to the Colville (1994:1194), this case is indeed one of what John Comaroff (1994:47) notes as the double consciousness[of the] inherently contradictory character of the colonial discourse of rights[ensuring that it gives rise to engagement] on both sides of the dialectic of domination and defiance. 23. In the 1970s Western Shoshones outside of Duck Valley pointed out that Duck Valley Shoshone had nothing to lose because they already had control of land sufficient for their needs; claims money would simply add to their economic well-being (Clemmer Field Notes 1975). 24. These probably included five small reservations in California as well as colonies and reservations in Nevada, and also reservations in Utah, Idaho, and Wyoming, where majority populations were Eastern, Northern and Northwestern Shoshones, Bannocks, and Paiutes. However, Northwestern and Goshute Shoshones were, in fact, Western Shoshones, and Western Shoshones might well have been living on the other reservations, and some certainly were doing so (Clemmer Field Notes July 2, 1989 and passim; Murphy and Murphy 1986). 25. Composition of the special committee remained the same during its entire existence. 26. Interestingly, the committee itself asked Western Shoshones if presently unrepresented communities should have representation in 1974 (Manning 1974). However, this did not lead to any additional efforts to broaden the actual representation on the committee. 27. The law firm was Sonosky, Chambers, and Sachse. With offices in Albuquerque, as well as Washington, D.C., this firm specialized in advocacy for Native Americans on issues such as gaming, water, and governmental matters. 28. This was the Ninth Circuit decision in the second of two Dann cases (Dann II, 706 F2d 53 (1983)). In the first case, the Ninth Circuit had found in 1982 that under the provisions of the Treaty of Ruby Valley, any loss of territory is only so large as the incursion requires, and the Shoshone retain the rest . . . . Thus the granting of homesteads by the government could work at most, an extinguishment of aboriginal title to the actual land granted and no more and that no extinguishment occurred when the Duck Valley Reservation was created (Rusco 1992:354). This opinion directly contradicted the assumption of gradual encroachment embraced by the Wilkinson firm. Unfortunately, in 1989, this same court certified Western Shoshone land as lost due to the ICCs payment of the claim. 29. The Western Shoshone National Council had filed an appeal from the ICC ruling with the Nevada District Court in 1995, challenging the United States assertion of plenary power on the basis of Johnson v. MIntosh, 21 U.S. (8 Wheat) 543

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(1823) The United States counter-sued in 1996. The Court dismissed the case. An appeal filed December 15, 1997 was dismissed by the Ninth Circuit without hearing arguments on December 19, 1997, claiming lack of jurisdiction (U.S. Court of Appeals for the Ninth Circuit 1997). 30. The Wilkinson firm did file a lawsuit in the U.S. Court of Claims on behalf of the Northwestern Shoshone using the Treaty of Box Elder as the basis for claiming monetary compensation for land taken. But the court ruled that establishment of the Fort Hall Reservation in 1867 constituted establishing a reservation within their territory and, although only about half of the Northwestern Shoshones were settled on it, the whole group had thereby complied with the clause in the treaty, requiring them to cease their roaming life. Because they had ceased their roaming life, said the court, they had come into a kind of default position essentially ceding all the land described in the 1863 Treaty of Box Elder. 31. The handful of lawyers such as Badt and those who brought the Dann lawsuits over a period of half a century joined Western Shoshone land rights advocates in their opposition to the dominant ideology and its bureaucratic manifestation. Their involvement is attributable to what Comaroff and Comaroff (1991:29) have described as social worlds in which social knowledge and experience situate themselves along a chain of consciousness . . . a continuum whose two extremes are the unseen [hegemony] and the seen [ideology], the submerged and the apprehended, the unrecognized and the cognized and what Maurice Godelier (1978:766) noted as members of the dominant group entertaining ideas that oppose [dominant ideas] and that they themselves oppose to the dominant group. Because these attorneys were involved in the social world of Western Shoshones in northeastern Nevada, Western Shoshones were able to draw them into collaboration with Western Shoshones attempts to contest the hegemony of loss created by the legal discourse of the Marshall Supreme Court of the 1830s. For example, whereas Robert Barker did not attend any of the important meetings held by his own Claim Committee, attended by hundreds of people in Elko, Ely, Austin, and Duck Valley, Jerry Kinghorn and Kathy OConnell from Salt Lake City, attorneys for the Danns, were present at every one (Clemmer Field Notes June 26July 17, 1974). 32. Deceased.

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Harney, Corbin 2007 Yucca Mountain Sacred Site. http://www.shundahai.org/yucca mt.html# indigenousa, accessed August 8, 2008. Hultkrantz, Ake 1986 Mythology and Religious Concepts. In Handbook of North American Indians, vol. 11. Great Basin. Warren DAzevedo, ed. Pp. 630640. Washington, D.C.: Smithsonian Institution. Indian Claims Commission 1977 Opinion: before the Indian Claims Commission. The Western Shoshone Identifiable Group v. The United States of America (decided August 15). 40 Ind. Cl. Comm. 305 (1977). Inter-American Commission on Human Rights 2001 Mary and Carrie Dann v. U.S., Case 11.140, Report No. 113/01, Inter-Am. C.H.R. Human Rights Library, University of Minnesota. http://www1.unm.humanrts/cases/113-10.html, accessed October 19, 2009. Kappler, Charles, compiler and ed. 1904 Indian Affairs. Laws and Treaties. Vol. 2, Treaties. Washington: Government Printing Office. Kickingbird, Kirke, and Karen Ducheneaux 1973 One Hundred Million Acres. New York: Macmillan Lamb, Sidney M. 1958 Linguistic Prehistory in the Great Basin. International Journal of American Linguistics 24(2):95100. Leubben, Hughes, and Tomita 1985 Letter from Luebben, Hughes, and Tomita (law firm) to Elwood Mose, Executive Director, State of Nevada Indian Commission, May 21. In authors possession. Maine, Henry Sumner 1970 [1884] Ancient Law. Its Connection with the Early History of Society and its Relation to Modern Ideas. Gloucester, MA: Peter Smith. Manning, Arthur T. 1974 Letter to Members of the Western Shoshones from Arthur T. Manning, Chairman Western Shoshone Claims Committee. Copy in authors possession. Marschall, John 2007 Milton Badt. Online Nevada Encyclopedia. http://www.onlinenevada.org/ milton_badt, accessed October 3, 2009. Marx, Karl 1972 [18451846] The German Ideology, Part I. In The Marx-Engels Reader. Robert C. Tucker, ed. Pp. 11064. New York: W. W. Norton. Merry, Sally Engle 1992 Anthropology, Law, and Transnational Processes. Annual Review of Anthropology 21:357379.

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Western Shoshone Claims Distribution Act. Public Law No. 108270. 118 Stat. 805. U.S. Department of Commerce 1974 Federal and State Indian Reservations and Indian Trust Areas. Washington: U.S. Government Printing Office. U.S. Senate 1934 Survey of Conditions of the Indians in the United States. Hearings Before a Subcommittee of the Committee on Indian Affairs, 72nd Congress, 1st Session, Part 28. Washington: U.S. Government Printing Office. U.S. Court of Appeals for the Federal Circuit 2007-5020 2008 Western Shoshone National Council and Timbisha Shoshone Tribe with South Fork Band, Winnemucca Indian Colony, Dann Band, Battle Mountain Band, Elko Band, and Te-Moak Tribe of Western Shoshone v. United States. Appealed from: United States Court of Federal Claims. Case No. 05-CV-558, Senior Judge Loren A. Smith. Decided May 22, 2008. U.S. Court of Appeals for the Ninth Circuit 1997 Appeal by Nye County and Western Shoshone National Council. DC#CV-S-95-232-LDG, Nevada No. 95-16599. Weber, Max 2006 [1968] Bureaucracy. In Anthropology of the State. Aradhana Sharma and Akhil Gupta, eds. Pp. 4970. Malden, MA: Blackwell. Weissbourd, Bernard, and Elizabeth Mertz 1985 Rule-Centrism Versus Legal Creativity: The Skewing of Legal Ideology Through Language. Law and Society Review 19(4):623 660. Western Shoshones 1977 Petition in support of Temoak Business Council to Protect Western Shoshone Rights [and] discharging Wilkinson, Cragun and Barker. Copies in authors possession. Western Shoshone Sacred Lands Association (WSSLA) 1980 Statement of Raymond Yowell. Transcript of Hearing of Record of the Bureau of Indian Affairs, With Regard to Distribution of the Western Shoshone Judgment Award Docket 326-K, July 26. In Dagmar Thorpes possession. 1981 Newe Sogobia: The Western Shoshone People and Lands. Battle Mountain, NV: Western Shoshone Sacred Lands Association. Young, Samantha 2004 House Approves Bill to Pay Western Shoshones for Land. LasVegas Review Journal.com, June 22. http.www.reviewjournal.com/lvrj_home 2004/Jun-22-Tue-2004/news/24153433.html, accessed October 2, 2009.

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The Danns first argument was an argument for possession (and against the trespass complaint by the BLM) based on collective, tribal land rights. Their second was an appeal based on the Danns individual rights as Western Shoshone persons (see also Orlando 1986; Rusco 1992). 1974: U.S. BLM files a trespass lawsuit in the U.S. District Court in Reno (Judge Bruce Thompson), claiming that Danns are trespassing on U.S. Government-owned land in running their livestock on Western Shoshone land affirmed in the Treaty. 1976: Thompson rules against the Government (and thus for the Danns, but without considering their argument, ruling only that the Government did not prove its case for ownership). Both parties appeal. 1978: U.S. Court of Appeals for the Ninth Circuit reverses Judge Thompson, remands case back to him. Dann I 572 F2d 222 (9th Cir. 1978). April, 1980: Judge Thompson rules that by virtue of the ICCs final decision in December 1979, the Danns tribal claim to Western Shoshone land was extinguished as of December 06, 1979. He authorizes the BLM to start collecting fees from that time forward but denied its efforts to collect back grazing fees. 1981: The Danns appeal to 9th Circuit. 1982: The Ninth Circuit hears the case. 1983: The Ninth Circuit decides against the Danns; the Danns appeal to the Supreme Court. Dann II, 706 F2d 53 (1983). 1985: The U.S. Supreme Court decides against the Danns, scolding Judge Thompson for fixing the date of taking of Western Shoshone land as 1979. They remand the case back to him. United States v. Dann, 470 U.S. 39 (1985). 1986: Thompson rules that the Danns tribal ownership was taken away in 1872 (based on the ICC decision) and issues an injunction against their using any land outside the boundaries of their Dawes Act allotment for grazing purposes. 1986: The Danns immediately appeal the decision, citing individual rights as Western Shoshone Indians. The case is heard by one judge, Canby, from the Ninth Circuit, sitting as a circuit judge. January, 1989: Canby issues his decision, echoes the Supreme Courts reversal and its remand back to Judge Thompson. The Danns appeal. U.S. v. Mary Dann and Carrie Dann Appeal (1989) Opinion. Appeal from the United States District Court for the District of Nevada, Bruce R. Thompson, District Judge Presiding. Argued and Submitted December 15, 1987 San Francisco, California. Filed January 11, 1989 Before: Betty B. Fletcher, Cecil F. Poole and William C. Canby, Jr., Circuit Judges. October, 1989: The U.S. Supreme Court denies a rehearing. U.S. v. Dann, 493 U.S. 890 (1989, cert. denied).

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2002: The Inter-American Commission on Human Rights found that the United States had violated the rights of the Danns, saying that the U.S. should 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. 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. Mary and Carrie Dann v. U.S, Case 11.140, Report No. 75/02, Inter-Am. C.H.R., Doc. 5 rev. 1, #173 (2002).