CONFEDERATED TRIBES o/ tlte

GOSHUTE RESERVATION P.O. BOX 61 04

IBAPAH, UTAH 84034 PHONE (435) 234-1138

FAX (435) 234-1162

February 26, 2019

Assemblymen John Ellison Nevada Assembly District 33 John.Ell ison@asm.state. n v. us

Sent via email

RE: A Good Cause to Vote NO on AB30 a nd ABSl

Dear Assemblyman Ellison:

With much respect, our Tribes ask that you vote against AB30 and AB5 l . The language in the bills sound attractive, deceptively so. But behind the language is another side that would help lay ruin to one of Nevada's great cultural and historic treasures, a National Historic Property called Swamp Cedars.

You see, we have been fighting the good fight to protect this special place. The Southern Nevada Water Authority (SNW A) aims to drain it- and water from other senior right holders- in order to pipe the water 310 miles to Las Vegas. Last summer, the State Engineer denied all of SNW A' s groundwater applications but approved their monitoring and mitigation plan- one that the White Pine County District Court previously rejected due to serious and deceptive flaws. It was a sham. And now in their latest plan, SNW A would not mitigate impacts on Swamp Cedars until every last cedar tree was dead. And they would be the sole decision-makers as to when and how to mitigate.

We believe this is very wrong. Wrong because, as the site of the largest Indian massacre in United States history (and two more that followed), it is a place to be protected. Wrong because Swamp Cedars is holy to us. It is a place where we pay our respects to our ancestors and where we go to pray and hold spiritual gatherings. The Nevada State Engineer agreed it was wrong. He denied certain water rights because it' s in the public interest preserve Swamp Cedars in perpetuity, rather than draining its medicinal waters and killing the sacred trees-both of which we use in our traditional ceremonies.

AB30 and AB5 l would undo efforts to protect Swamp Cedars. The bills would pave a new way for SNWA' s groundwater project while making rural Nevadans suffer. We' d be left high and dry.

Please vote NO on AB30 and ABS I . Thank you for your time and consideration.

Rupert Steele, Chairman

Generally

CONFEDERATED TRIBES of the

GOSHUTE RESERVATION HC 61, Box 6104

lbapah, Utah 84034 435-234-1138 (office)

435-234-1162 (fax)

TALKING POINTS ON WATER

1. Indian Water Rights have long been established under the Winters doctrine. 1

2. Under Winters, Indian Tribes are entitled to sufficient water "to satisfy the future, as well as the present, needs of the Indian Reservations" and the United States reserved at least enough water to "irrigate all the practicably irrigable acreage on the reservations (PIA)."2

INTRODUCTION

It is well established federal and state case law, which is consistent with federal

Indian water rights settlements, that Indian tribal water rights include groundwater as well

as above-ground water.

ANALYSIS

The Winters doctrine is well settled.

The Winters doctrine, as contained in Winters v. United States, 426 U.S. 128 (1908)

provides that where water is necessary to accomplish the purposes of a federal reservation,

the United States impliedly reserves such water concomitantly with the reservation of land.

See, e.g ., United States v. New Mexico, 438 U.S.696, 702 (1978); Arizona v. California, 373 U.S.

1 See Winters v. United States, 207 U.S. 564 (1 908). z Arizona v. California, 373 U.S. 546, 600-601 (1963).

546, 599-600 (1963); Colville Confederated Tribes v. Walton, 64 7 F.2d 42, 46-4 7 (9th Cir.

1981). The doctrine has been clarified and reaffirmed by numerous federal and state

appellate decisions over more than a century, and it is now firmly entrenched and well

settled Jaw.

The foundational Winters case involved the Fort Belknap Indian Reservation's right

to use water from the Milk River. See Winters, 207 U.S. at 566. The United States contended

that the entire flow of the river was necessary to accomplish the reservation's purpose of

serving as "a permanent homeland and abiding place" for its Indian residents. Id. at 565,

567. Accordingly, when upstream parties began diverting water from the river, the United

States sued to enjoin those parties from interfering with the federal water right. Id. at 567.

The defendants argued that (1) they had acquired valid, state law rights to the river's

waters after the creation of the reservation but before the Indians began using the water in

question; (2) their rights were senior and superior to any Indian rights; (3) other water

was available within the reservation to meet the Indians' needs; and ( 4) a ruling

recognizing the asserted federal right would render the defendants' lands valueless and

destroy communities of "thousands of people." Id. at 568-70.

The Supreme Court rejected all of the Winters defendants' arguments. It noted that

the United States, in establishing the reservation, intended to facilitate its Indian residents'

transition "to become a pastoral and civilized people." Id. at 576. The Court further

recognized that to become "a pastoral ... people," the reservation's Indians would need to

take up agriculture on lands that "were arid, and, without irrigation, were practically

valueless." Id. Finally, the Court noted that the United States' authority to reserve water, in

addition to land, and to exempt that water from state water laws "could not be ... denied."

Id. at 577.

The Supreme Court accordingly held that (1) the Indians of the Fort Belknap

Reservation had rights to the water of the Milk River to the extent necessary to irrigate

their reservation; and (2) that water was reserved and held by the United States as of the

date of the reservation's establishment "for a use which would be necessarily continued

through years." Id. at 576-77. This holding- that the United States' reservation of land

includes the contemporaneous reservation of water necessary to accomplish the purposes

of the reservation - gave rise to what is now known as the Winters doctrine.

The Supreme Court reaffirmed the Winters doctrine decades later in Arizona v.

California, a case that involved the adjudication of water rights in the Colorado River. Over

numerous objections by the State of Arizona, the Court upheld a special master's ruling "as

a matter of fact and law that when the United States created [Indian] reservations or added

to them, it reserved not only land but also the use of enough water from the Colorado to

irrigate the irrigable portions of the reserved lands." Arizona, 373 U.S. at 595-96. The Court

found it "impossible to believe" that the United States would create Indian reservations

"unaware ... that water from the river would be essential to the life of the Indian people .... "

Id. at 599. It held that "the United States did reserve the water rights for the Indians

effective as of the time the Indian Reservations were created" and that "the water was

intended to satisfy the [reservations'] future as well as the present needs." Id. at 600.

Arizona thus clarified and reaffirmed that the establishment of an Indian reservation

immediately gives rise to a fully vested right to the water necessary to satisfy the

reservation's current and future needs.

Since Arizona, a number of decisions from the Supreme Court, this Court, and

various state and lower federal courts have applied and further clarified key aspects of the

Winters doctrine. Based on this case law, it is now understood that Winters rights are (1)

federal rights that are not subject to state law; (2) permanently set aside and fully vested at

the time a reservation is established; and (3) intended to accommodate changing use over

time and cannot be lost through non use.

"For every Indian person who died there, a swamp cedar tree grew in their place:· -Tribal elder from Duckwater Shoshone Tribe

.. Swamp Cedars is the sire of the largest known Indian massacre in the United States. Worse, there were three. " - Dr. Monte Sanford. CTGR Environmental Advisor

SWAMP CEDARS MASSACRE SITE

(BAHSAHWAHBEE)

September 19. 2016

Offered By:

CONFEDERATED TRIBES o/ tlte

GOSHUTE RESERVATION P.O. BOX 6104

IBAPAH, UTAH 84034 PHONE (435) 234-1138

FAX (435) 234-1162

TABLE OF CONTENTS

Vicinity Map of Swamp Cedars

Aerial Map of Swamp Cedars

Photos of s~amp Cedars

Immediate C hallenges and Needs

Part 1. The Three Massacres

Summar)

I. Massacre of I 859

11 . Massacre of 1863

111 . Massacre of 1897

Part 2. Cultural Significance of Swamp Cedars

Summary

I. Histor) and Context

11. s~amp Cedars Toda)

111. Protection Efforts To-Date

JV. Swamp Cedars National Monument

Part 3. The Dakota Pipeline: A Comparison

I. Side-by-Side Comparison

II. A Way Forward

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US Map Source SOS/ates com

Nevada Counties

0 Bahsahwahbee TCP Boundary

50 0 50 100 150

Eureka

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Elko

White Pine

BAHSAHWAHBEE

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Vici ni ty map of Swamp Cedars Massacre Site (Bahsahwahbee).

Confederated Tribes of the Coshute Reservation S11111111G1y and Status Qf S/\'WA Pipeline Project

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Swamp Cedars demarcated in red in Spring Valle). White Pine County. evada. The Spring Valley Wind Energy Facility demarcated in the orange rectangle. Top of map is approximately north . Schell Creek Range is to the left. Snake Range to the right. Great Basin National Park is part of the Snake Range slightly to the south .

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Goshute Tribal elder and spiritual leader Rupert Steele using spring water, cedar leaves. and an eagle feather as part of ceremonial activity upon enter the Swamp Cedars.

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Goshute Tribal elder Rupert Steele giving a ceremonial blessing in Goshute language at Swamp Cedars (top). Spring at Swamp Cedars (bottom).

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Springs and spring-fed meadows in the swamp cedar groves at Swamp Cedars.

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IMMEDIATE CHALLENGES AND NEEDS

What would the Federal government do if New York City pursued plans to drain,

desecrate and irrevocably ruin Arlington National Cemetery or Sleepy Hollow Cemetery?

Would they approve that project? What would the world do if Israel had plans to drain

and destroy Vatican City by pumping its holiness elsewhere?

The Tribes are now asking the same questions about Swamp Cedars. Why have

both the State and Federal governments approved Las Vegas to do desecrate and erase an

Indian massacre site and ceremonial grounds?

Swamp Cedars is located in Spring Valley, Nevada. toward the north end of

SNWA ·s Pipeline Project. In the Nevada State Engineer' s (NSE) 20 12 Spring Valley

Ruling, he granted 61.127 afa to SNWA. Expert witnesses in 2011 testified that the first

thing to van ish from Spring Val ley would be the swamp cedar trees. the wholly sacred

trees to Newe people. Next to vanish: the springs ("the milk of mother Earth"). An expert

witness for SNWA called that vanishing act "ecological succession." To Tribal people

who have gathered and prayed. sang and sounded their drums, held ceremonies and

buried their ancestors at Swamp Cedars, they call it an intentional act of "cultural

genocide" and ··desecration:·

We ·ve seen a recent stand against this type of erasure of Indian cultural legacy in

the mass Indian gathering- "the Water Protectors··-who took a stand against the Dakota

Access Pipeline. What Tribal people no"' face with the SNWA Pipeline is arguably far

worse. SNWA ·s Project. if allowed to move forward . wou ld destroy the Tribes· Vatican

C ity, which rests out amongst the swamp cedar trees in Spring Valley.

The Tribes have three urgent needs:

1. Obtain a National Monument designation for Swamp Cedars;

2. Prevent construction and operation of the SNW A Pipeline Project;

3. Expedite the Swamp Cedars (Bahsahwahbee) Traditional Cultural

Property listing on the National Register of Historic Places.

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Part 1

The Three Massacres

Confederated Tribes of the Goshute Reservation Su111111G1J' and Status qf S\'WA Pipeline Project

SUMMARY

Three "silent massacres" at Swamp Cedars in 1859, 1863 and 1897 decimated

CTGR 's Newe ancestors. Three different massacres in one ceremonial gathering area.

The first massacre in 1859 was the largest known Indian massacre within the continental

United States. These si lent massacres have remained virtually unknown to the public.

However, the BLM was aware of them. but stil l approved the SNWA Pipeline Project to

desecrate Swamp Cedars (Bahsahwahbee). It is time now to bring these massacres into

the spotlight and ensure that Swamp Cedars is protected in perpetuity.

Bahsahwahbee is utterly unique and meaningful to the cultural and spiritual

identity of the Newe. The spiritual integrity of Bahsahwahbee remains strong with the

Tribes. Virginia Sanchez of the Duckwater Shoshone Tribe offered the following:

I heard thi s story from my mother: You do not touch that area. The spirits

of the people that died being massacred, they were not soldiers. It was the

soldiers that killed them. Their spirits are yet there. And it's connected to

the ,,.. ater and the swamp cedars. 1 f the spirit and resources die, [they] are

changed dramatically [and] we cannot preserve our culture. And we as

tribal people cannot live with that.

I. MASSACRE OF 1859

Some 525-700 Newe people were killed in the massacre of 1859. one of the

largest massacres of Indians by the United States government in American history.

United States Army General Albert S. Johnston (from Camp Floyd. near Fairfield,

Utah) sent four companies of sold iers into Spring Valley for an unprovoked attack on a

large Indian gathering, comprised of Goshutes. Shoshone and Pocatello Indians.

Johnston·s troops surrounded the Indian encampment at night. "'As da)' was breaking. an

o ld Indian chief started a fire in front of his tepee . .. when a soldier shot him without

orders ... As .Johnston and hi s soldiers attacked the Indian camp. Elijah Wilson watched

and recorded the details.

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This was the worst .. . I ever saw. It lasted about two hours, and during

that short period of time, every Indian, squaw. and papoose. and every dog

was killed.

Wilson stated that at least ''350 warriors'' were massacred. in addition to women

and children (squaws and papooses). Wilson did not report how many women and

children he estimated in the Indian camp. but a conservative ratio of warriors (men) to

women and children varies from 2:3 (Yontoket-Tolowa Massacre) to 1 :2 (Wounded Knee

Massacre). which aligns with other American Indian massacres of the era. 1

II. MASSACRE OF 1863

The United States policy against the Newe remained violent. Orders by Colonel

Patrick Conner of the California Volunteer Infantry were a prime example. He ·'ordered

hi s troops to hunt down the Newe and kill them indiscriminately."2

[L]eave their bodies thus exposed as an example of what evil doers may

expect ... [Y]ou will also destroy every male Indian whom you may

encounter . .. This course may seem harsh and severe. but I desire that the

order may be rigidly enforced, as I am satisfied that in the end it will prove

most merciful.3

On May I, 1863, Captain S. P. Smith, leading Company K of the Second

California Cavalry Volunteers, proceeded to persecute Indians indiscriminately. On May

3. 1863, they attacked Indians in their sleep at Duck Creek. and 24 Indian people were

massacred. Two escaped into the Schell Creek Range. Smith and Company K camped

1 J. orton, 1979. Genocide in orthwestern Californ ia: When Our Worlds Cried: and R. Thornton. 1990. American Indian Holocaust and Survival: a Population Histol") Since 1492. 2 Crum. p. 23. 3

Lener from P. Edw. Connor. Colonel Third lnfantl) California Volunteers, C. District. From Fort Rub). September 29, 1862. To Maj. Edward McGarry. In : U.S. Department of War. The War o f the Rebellion. vol. L, pt. 2, pp. 143-144 [Chap. LXI I).

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near the ·'scene of the massacre'' until the next day. On May 4 th five Goshutes came to the

Indian camp and the Cavalry killed all five Goshutes.

Next, they entered Spring Valley where there was an Indian gathering.

At sunrise on May 6. 1863, Captain Smith and Company K attacked an Indian

gathering at Bahsahwahbee. Historical reports described the massacre:

Here they [Cavalry] surprised another Indian camp in a cedar swamp.

south of the present Cleveland ranch. The cavalry charged down upon the

hostile band. but were brought to a halt by the swampy character of the

ground. Many horses were mired. but some floundered through. and the

consequent confusion. with temporary delay. enabled most of the Indians

to escape. Twenty-three [Indians] were found dead .. .. From the scene of

the last encounter the command returned to Fort Rub) ... with the report

that through its efforts fifty-two Gosh-Utes had been permanently

converted to a peace policy.

Oral hi stor) from a member of the Tribes validated the massacre. stating: ··A long

time ago the Gosiutes in Spring Valley were having a circle dance ... [when] some

soldiers, led by some Nevada Indians. led them to their camp in Spring Valley. Everyone

was killed . ... The soldiers went back to Elko and after the massacre the Gosiutes went

to the camp and found everyone dead.""4 Even the women and children were murdered.

While Angel's military records reported that 23 Indian people were massacred at

Bahsahwahbee, other reports based on tribal elder oral histories identify that the Cavalry

massacred '·everyone·· or ··most of them:·5

The Newe were not only systematical!) sought after and kil led, but they were also

victims of religious violence or persecution. Jn part. this was because the Newe gathered

into larger groups at those special times-most notably at Bahsalrn1ahbee were the spring

and autumn sacred Circle Dances. A Newe tribal elder provided further details in an oral

history statement:

4 C. I. Malouf. 1940. A Stud) of the Gosiute Indians of Utah . 5 R.M. Robison and G.J . Robison. 2006. Our Swallow Heritage: The Histol) of George Swallow· s Daughters. \ 'olume Ill. p. 12.

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The region [Bahsahwahbee] was a gathering place for sacred ceremonies .

. . Because so many Newe gathered there at certain times of the year, the

US Cavalry and vigilantes took the opportunity to " Flock Shoot"' Newe

during their ceremonies.

III. MASSACRE OF 1897

The massacre of 1897 was from "'a self-appointed militia that followed them

[Shoshones] to the Swamp Cedars [Bahsahwahbee] and massacred all those camped

there except for two ten year old girls.''6 Those two surv ivors of the massacre were

Laurene Mamie Swallow and Annie Jack. Said one tribal elder. .. the camp was not a war

camp ... there were children in the camp; it was a gathering camp not a war camp.''

Another tribal elder made a similar statement about the massacre: "They killed

everybody, pregnant women. cut them open, burned the babies and chopped them up.

The men cut off the penises and put them in their mouths . .. [Newe] went down after the

cavalry left and saw what happened:·

One tribal elder stated that ' ·Goshute and Shoshone people were gathered at

Swamp Cedars in Spring Valley ... celebrating the five day harvest dance when the

so ldiers approached their encampment and killed the women and children, the men were

all out hunting except the old grandfathers who stayed behind with the women and

children.'· The tribal elder continued: "When the men came back from their hunt, they

found everyone dead ... and witnessed terrible and horrifying scenes. The soldiers raped

the women and after raping them stuck sticks in their privates, cut off the penis's of the

old men and stuck them in their mouths."

These gruesome acts still generate painful feelings for many Newe. And those acts

are part of what generates the strong feeling about and significance for Bahsahwahbee.

6 Robison and Robison. p. 14.

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Part 2

Cultural Significance of Swamp Cedars

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SUMMARY

The Tribes go to S\.\amp Cedars to remember, mourn, and pay homage to their

ancestors who were killed . According to ewe tradition, a swamp cedar tree grew in the

place of each Indian person that was killed during the massacres. and thus the swamp

cedars are the spiritual embodiment of their ancestors. In addition, the Tribes use Swamp

Cedars as a place for cultural and religious practices: spring water and swamp cedar trees

are used to gain spiritual po"' er, connect and communicate with ancestors, perform

ceremonies. and pass down traditional knowledge.

l. HISTORY AND CONTEXT

Swamp Cedars has always been a sacred gathering place. Tribes from different

regions came to Swamp Cedars for ceremonies. us ing the spring water as a vital part to

those ceremonies. Shamans and medicine men sang and performed water ceremonies for

five days at Swamp Cedars before tribes pursued major hunts such as antelope drives.

II. SW AMP CEDARS TODAY

In present day . Swamp Cedars is a place where the Tribes commemorate and

communicate "'ith ancestors, hold various spiritual/religious practices. and carry o ut

other cultural traditions. Religious or spiritual practices are a central part of Tribal

identity and culture. Rituals and ceremonies are performed in order to give thanks. cure

and docto r ailments. connect with spirits, and acquire power and strength. Many of these

spiritual activities require and utilize water from the springs at Bahsahwahbee.

A Goshute tribal elder Steele identified that acquiring power at Bahsahwahbee

comes in man) ways for him. He stated :

I went out to the Swamp Cedars. and ... I grabbed a little cedar and

thanked the cedar. I smoked myself"' ith that clump of cedar to cleanse

myself before go ing in there ... I sa"' an eagle up in sk). soaring above

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me and 1 said 'thank you eagle-thank you for looking over me.' But I

know that was my ancestors looking over me. I said some prayers. I was

filled with so much power ... Swamp Cedars is a very powerful place.

As Steele explained, " If you take away the cedar trees, we are not whole as people.

If you take away the water. a part of us dies and we cannot be whole again. If any part of

Swamp Cedars goes away. a part of us dies and we can never get that part of us back.··

Ill. PROTECTION EFFORTS TO DATE

In addition to the legal challenges opposing SNWA Pipeline Project. the Tribes

have pursued a series of efforts to protect Sv. amp Cedars. The) are:

I. National Register of Historic Places-designation as a Traditional Cultural

Property. Following the National Park Service. the Tribes have pursued thi s

designation prior to seeking to obtain a National Monument designation.

2. Area of Critical Environmental Concern (ACEC)-the BLM has designated a

small portion of Sv.amp Cedars as an ACEC. but still permined the SNWA

pipeline project. The Tribes submined a request to the BLM requesting an

expansion of the Swamp Cedars ACEC.

3. Indian Sacred Site-the Tribes sent a request to the BLM requesting that the)

recognize Swamp Cedars as an Indian Sacred Site pursuant to Executive Order

13007.

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IV. SW AMP CEDARS NATIONAL MONUMENT

The Tribes need assistance from BIA to get the attention of President Obama for a

Swamp Cedars National Monument. While the efforts above ( 1-3) are helpful, none

permanently protect Swamp Cedars. The National Monument designation would. And it

can be done by Presidential proclamation under the Antiquities Act.

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Part 3

The Dakota Pipeline: A Comparison

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I. SIDE-BY-SIDE COMPARISON

DAKOTA PIPELINE

Sacred Land

• Burial grounds

• Cultural/historical sites

• National Register eligible

• Likely archaeological sites

Private Lands

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SNW A PIPELINE

Sacred Land

• Burial grounds

• Memorializes three major massacres

• Ceremonial and spiritual gathering place

• Special healing power in spring water

• ··The milk of Mother Earth''

• Sacred swamp cedar trees

• Embodiment of ancestors

• Eagles: eyes of the ancestors

• National Register eligible

• Traditional Cultural Property

• Archaeological District

Public and Private Land

• BLM + SNWA +Other private

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II. A WAY FORWARD

The Tribes hope that it wi ll not be necessary for a similar Standing Rock Sioux­

Dakota Pipeline protest to protect Swamp Cedars in Nevada. Already, a coalition of

Tribes from Utah and Nevada oppose the SNWA Pipeline Project. But we need the

Federal government to hear us now and to take action that wil l protect Swamp Cedars.

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