An example of the unfairness of federal law and the injustice of federal administrative action to Indian tribes is the recent treatment of the Timbisha Shoshone Tribe, a small tribe in Death Valley, California. Some years ago, the Timbisha Shoshone Tribe and other Western Shoshone tribes were awarded compensation by the Indian Claims Commission, and the money was placed in the U.S. Treasury in trust for the tribes. Then, in 2004, Congress passed an act taking all of the money away from the tribes and ordering the money to be distributed to individual Indians – not necessarily members of the tribes. Congress made up its own rules about who would get the money. The tribes were left with nothing out of the money they had been awarded. More than $140 million was simply taken from them without compensation and without due process of law.
With our help, the Timbisha Shoshone Tribe fought back by suing to stop the taking of the fund on the ground that taking the Tribe’s money without compensation or due process is a violation of the U.S. Constitution. We filed suit in 2010. Certainly, if this case involved the taking of money from anyone other than an Indian tribe, the taking would be barred by the Constitution. The federal government argued that because the money belonged to a tribe, Congress could take all the money and give it to others. Indeed, the federal government argues that it can take or dispose of all money and property belonging to any tribe, without any restriction at all and with no obligation to compensate the tribe. Obviously, this is unjust and discriminatory.
The federal government also argued that the Timbisha Shoshone Tribal Council could not sue the federal government unless the federal government itself recognized the Tribal Council. The Department of the Interior withdrew its recognition of the Tribal Council. Later, when the case was on appeal, the Department installed a new tribal government in complete violation of federal law and the Timbisha Shoshone Constitution. Interior Department lawyers then argued that the lawsuit could not go on because the Timbisha Tribal Council had been replaced by the Interior Department. The government lawyers argued in court that the Department of the Interior had the absolute authority to simply do away with any tribal government in order to prevent it from suing. Although this is not the law, the Court of Appeals accepted the argument and dismissed the case in 2012. Again, the absolute and legally uncontrolled power of the federal government was used to prevent a small Indian tribe from protecting itself and its resources. This could not happen to others – only to Indian tribes.
In 2014 The BIA conducted an “election” or referendum to adopt a new Timbisha constitution establishing new membership rules for the Tribe, and the BIA deliberately permitted many non-members to vote in that election. In this way, the BIA allowed non-members to vote themselves into the Tribe, without any effort by the BIA to comply with the long-recognized Tribal constitution.
Center lawyers represented the last lawfully elected council members in an administrative appeal challenging the BIA’s illegal election. That appeal was denied, but we are continuing to help the Tribe’s legitimate leadership to challenge the BIA’s takeover of the Tribe. We are making a demand for all the relevant BIA documents under the Freedom of Information Act, and we are assisting with an appeal by the Tribe in another federal lawsuit in the Ninth Circuit Court of Appeals challenging the Interior Department’s illegal actions in installing a new and unlawful Timbisha government.
This small tribe of mostly traditional Timbisha people has been deprived of almost everything by the federal government, and yet it fights on against the federal government’s unconstitutional “plenary power” and its illegal actions. We will continue to fight alongside them as long as necessary.