United States v. Mary Dann and Carrie Dann

In 1974, the United States filed this trespass action against Mary Dann and Carrie Dann, alleging that the Danns were grazing their livestock on nine sections of public land without a permit, in violation of the Taylor Grazing Act, 43 U.S.C. § 315 et seq. (1976), and the regulations issued pursuant to .it, 43 C.F.R. pt. 4100 (1981). The Danns defended primarily on the ground that they were Western Shoshone Indians and that they, along with others of that group, still retained aboriginal title to the land in issue. Aboriginal title is a right of occupancy arising from exclusive aboriginal possession of land, and it is valid against all parties until it is “extinguished” by the United States. See Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 587 , 5 L.Ed. 681 (1823); Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 669 , 94 S.Ct. 772, 778 , 39 L.Ed.2d 73 (1974).

The government countered this defense with the arguments that any title that the Western Shoshone ever had to the land in question had been extinguished, and that this fact had been conclusively established in proceedings brought before the Indian Claims Commission (ICC or Commission) on behalf of the Western…