Land Rights, Claims, and Western Shoshones: The Ideology of Loss and the Bureaucracy of Enforcement

Abstract

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.