Search results

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 force—creating an at‐times ambivalent or double‐edged relationship with legal power.

By "historic Western Shoshone identities," I refer to those I found in a short but intensive and productive six-week field season in summer of 1989. I call these identities historic, rather than contemporary, because they do not seem to be products of contemporary political conditions. Rather, they seem to either have arisen or persisted during the historic period, ca. 1880 to the present. Some might call this the "reservation period," but since less than 40% of the Western Shoshone population was living on reservations until well into the 1970s, that designation is somewhat inappropriate. These identities were aboriginal, but that is not the point I wish to stress. Steward (1938: 248) flatly denied these identities had any significance. My purpose, then, is to ascertain why they persisted during a period in which they would be expected to disappear, or why they became more important when, if Steward was right, they had not been so aboriginally.

The aboriginal native leadership pattern, then, was headmanship, rather than chieftainship. In the central and western portions of the Great Basin, political issues less often involved matters of how to retain and protect strategic resources, than how to find them. Great Basin headmen who retained the position developed reputations for being knowledgeable and successful; competence was more critical than inheritance in determining leadership. This was so even in the band societies that existed in some regions, in which chiefs did exercise authority over some decisions, rather than guiding merely through suasion. Yet, in the bands the authority of chiefs and their counsels was noncoercive and was restricted to the periods during which the bands were convened. Families usually were free to leave bands or camps, moving on and attaching to a new camp following a collective fishing venture, a successful antelope drive, or "a pleasant round dance" (Jorgensen 1980:220; cf. Bunte and Franklin 1987:11). The southern and eastern Ute and eastern Shoshone groups had band-level political organization with single leaders, sometimes assisted by councils. Among the Northern Paiute, Southern Paiute, and Western Shoshone groups, leadership under a single headman developed only where resources permitted long-term residence over several generations and favored some collective ownership of resources (Jorgensen 1980:316- 317, 488-489; Eggan 1980; Stewart 1980).