S.I.S.I.S.: One of the major Canadian "land-claims" cases is the Delgamuukw case [SCC File 23799]. It has now worked its way through the BC Court system, the appellants have left the BC Treaty Process, and the case is now before the Supreme Court of Canada. [The case was heard June 16-17. A decision is expected to take from six months to a year.] What do you make of this case?
Dr. Bruce Clark: Well, it's a fairly sophisticated fraud that's going on. In the hearing on September 12, 1995, I applied on behalf of one of the appellants to have the Court address the issue of Court jurisdiction. The reason being that the essence of the Native Sovereignty position is that until there's a treaty, the Indians were here first and they have jurisdiction. Therefore, until there is a treaty the non-Indians don't have jurisdiction and correspondingly, their Courts don't have jurisdiction. That point was settled for constitutional and international law purposes by a case in 1704. [Mohegan Indians v. Connecticut, in Smith, J. H., Appeals to the Privy Council, Columbia University Press 1950.]
What the Delgamuukw case is set up to do... the Indian appellants are asserting ownership and jurisdiction except for Court jurisdiction. And that's impossible - a contradiction in terms. If the non-native Courts have jurisdiction the only source for their jurisdiction is the non-native legislatures. If the non-native Courts have jurisdiction, by necessary implication the non-native legislatures had to have jurisdiction in order to invest it in the Courts. Therefore if the Courts have jurisdiction, the legislatures have jurisdiction and there is no such thing as Native Sovereignty. And if there's no such thing as Native Sovereignty... that's sort of the omnibus term that covers Native jurisdiction.
So essentially, what it boils down to is - you have these Indian appellants in Delgamuukw who maintain the pretense they're asserting jurisdiction but since they've accepted Court jurisdiction they're beat before they start. What they're doing is a major sell out of the concept of Native Sovereignty and jurisdiction. The appellants in Delgamuukw are essentially angling for a bargaining position and they hope, I think, that there would be some sort of reward - their lawyers in particular - for having sold native sovereignty down the river in this fashion.
S.I.S.I.S.: Some, perhaps most, of the participants in this case will be familiar to you. Stuart Rush, the lawyer representing the Gitksan appellants, his name appeared in the RCMP's tip files during the Gustafsen Lake trial. Not only was he apparently advising the police on legal matters but he was also frequently quoted extensively in the domestic media making disparaging remarks about your own legal position in support of native sovereignty. He also appeared to argue against native sovereignty opposite you on September 12, 1995, when you appeared for the Gitksan Hereditary Chief XSOGIMLAHXA in the Supreme Court of Canada. Just what was happening in court that day?
Clark: It was an application to the Supreme Court of Canada in the context of the Delgamuukw appeal itself for a preliminary ruling as to whether or not the Court could possibly have jurisdiction. So what I attempted to do was to place before the Court the 1704 precedent [Mohegan Indians v Connecticut] which precludes court jurisdiction. Having precluded court jurisdiction automatically establishes the counterpart - native jurisdiction - which is to say native sovereignty.
Stuart Rush scuttled that. He argued to the Court that his clients - the vast majority of the Indian appellants - didn't want to insult the Court by suggesting that it didn't have jurisdiction. So essentially on that day we have this unholy alliance between the supposed lawyer for the Indians, the Attorney-General for British Columbia [Bryan Williams QC was appointed Chief Justice of the BC Supreme Court after the case] and the Attorney-General for Canada who are all on the same team and all agreeing to scuttle native sovereignty by scuttling the objection to court jurisdiction.
So it was really a set-up and this event which just took place recently - arguing the Delgamuukw case - is the consequence of that set-up. The reason they would go on for eight hours on something as straight forward as this issue is a case of "the tangled web we weave when first we practice to deceive."
S.I.S.I.S.: The impression I gathered was that the Court was being invited to rule very broadly on the whole issue of native rights.
Clark: Yes, they're inviting the Court to be politicians. Essentially the deal they're trying to make with the judges is : "Look. We know that there's no treaty and therefore we know that the newcomers prematurely, that is illegally, have invaded the Indian Territories. But you're here. And so rather then embarrass you by insisting upon the letter of the law by saying you don't have jurisdiction we will concede that you do have jurisdiction. Therefore we will concede that all of these white people who are here and are really trespassing - sort of aren't trespassers. In return for this sell-out of the concept of native sovereignty, please politically say some things which put heat on the federal and provincial governments to negotiate with us a political settlement."
So essentially what they're persuading the Court to do - suborning the Court to do - is to sell the rule of law down the river and to become a politically expedient tribunal. This is from a native sovereigntist point of view anathema. And from the point of view of any citizen who believes in the integrity of the rule of law it is appalling.
S.I.S.I.S.: One of the other participants in this matter is Gordon Sebastian. Sebastian is a BC lawyer, a Gitksan political leader and was also a member of the Shuswap Liaison Group which was working with the RCMP to effectively obtain the surrender of the Ts'Peten Defenders during the 1995 siege of sacred burial and Sundance grounds. He was also brought in to the Provincial Court on September 18, 1995 to supposedly take over representation of two of your clients. You were subsequently attacked, assaulted and committed to a psychiatric hospital at the instigation of the presiding judge Nicholas Friesen. Your clients rejected Sebastian. Have you had dealings with him before?
Clark: No, only briefly that day in Court. Only to the extent of ascertaining upon which side of the fence he stands. There's no question he's part of the legal profession mafia in British Columbia that has hijacked the rule of law and is using it to profit by trashing it and victimizing native sovereignty.
S.I.S.I.S.: One of the other participants in the June 16-17th SCC Delgamuukw hearings was an R.C. Willms. He was representing an intervener - Repap Carnaby which is a BC forest products multi-national. [BC's then NDP Forests Minister Dan Miller was connected to this company and was on leave of absence from it while acting as Minister.] When we attended a hearing in the BC Court of Appeal a week later, lo and behold there was Mr. Willms representing the Province of British Columbia against traditional-sovereigntist Harold Pascal of the Lil'Wat Nation who is a client of yours. Is this a common practice?
Clark: This is a grotesque conflict of interest. But not only did Mr. Willms appear as counsel against Mr. Pascal, in the Gustafsen Lake trial he was brought in to address Shuswap elder Wolverine's objection to court jurisdiction. He was the ringer brought in to speak for the BC Attorney-General. [Wolverine was denied Clark - his counsel of choice - and was forced to argue against Willms unaided.]
So basically we have this one individual at the same time arguing for both the Attorney General of British Columbia and a forest industry multinational. A typical BC manoeuvre. A conflict of interest in any rational rule of law society which would preclude this sort of thing. British Columbia simply doesn't operate as a rational rule of law society.
S.I.S.I.S.: It should probably also be pointed out that Mr. Willms comes from Russel and DuMoulin. DuMoulin Howard Gervais is a national and international law partnership, bracketing the resource industry, of which BC's Chief Justice Allen McEachern is also a former senior partner.
You've mentioned the Gustafsen trial. Your clients were denied you as counsel of choice but you were allowed to testify as a witness called by Wolverine. However the 'colour of right' defence under the auspices of which you appeared was dismissed by trial judge Bruce Josephson in the concluding days of the trial. Is that correct?
Clark: Yes. And his reasons for judgement, his self-justification for doing this is the pretence that the native people at Gustafsen Lake were not relying upon existing law but were relying upon a political aspiration. In my view you cannot possibly conceive of a more gross judicial lie. I testified for two weeks as to what was in the minds of these people, their own documents, the statements issued by the people inside [the besieged Gustafsen Lake camp].
Repeatedly these individuals have identified specific statutes and pieces of legislation that exist and have existed for a long time. The idea that they're seeking to change the law in virtue of a political aspiration as the judge pretended... no rational and honest human being could occupy such a position.
S.I.S.I.S.: What is also noticeable about the submissions of the Crown as regards the upcoming sentencing is that we're right back to the allegations and terminology of terrorism. Sentencing precedents offered to the Court include horrific cases of sexual abuse. As deficient as the provisional defence team was, it did effectively discredit the concocted "terrorist" incidents alleged by the RCMP. Nevertheless, here we are again hearing these same flimsy fabricated "terrorist" allegations.
Clark: Well it's essentially like a lynch mob type of situation. The lynch mob stops in the street, reviews the evidence conclusively establishing that the intended lynch mob's victim couldn't possibly have committed the crime, nevertheless determines "Oh well, we're beyond that stage, we're going to go into denial on that issue, so lets get on with the hanging." I mean it simply isn't rational.
S.I.S.I.S.: You are in the process of assembling an appeal I gather?
S.I.S.I.S.: What sort of ground will this appeal cover?
Clark: The Notice of Appeal - the argument is only two pages long. It's so absolutely crystal clear. The Court does not have jurisdiction. Law was placed in front of it that demonstrated conclusively that this is the situation. The judge completely ignored that law and lied that the defendants' position was based on a political aspiration unsupported by existing law. And there it is.
S.I.S.I.S.: During the trial your clients and indeed traditional sovereigntists in general have for some time sought an independent, impartial third party tribunal. This involves the constitutional Canadian head of state Queen Elizabeth II. The Queen is on an official state visit right now. Perhaps this is a good time to ask you exactly how the Queen figures into land rights and sovereignty.
Clark: Well in constitutional theory the Queen is the fail-safe device that secures Canada's status as a rule of law society in this specific sense: where the governments federal and provincial hijack the rule of law the Queen is the constitutional law of last resort. In this particular situation with the native people, the federal and provincial governments have hijacked the rule of law. They have invaded prematurely the Indian territories. Then they have sent in their own courts to prevent the law that exposes this reality from coming out. Under the Canadian constitution, since 1704, the remedy for this situation has been an application to the Queen.
It was determined in 1704 [Mohegan Indians v Connecticut] that she is obliged to appoint an independent and impartial adjudicator in lieu of the courts of the offending governments. That's her obligation. The consequence of her not fulfilling her obligation is the continuing genocide of the native peoples. She is not doing her constitutional duty. She is acting upon the advice of the criminals, that is to say the federal and provincial governments. By acting upon their advice instead of doing her constitutional duty, she is aiding and abetting the genocide contrary to article 3 (e) of the Convention for the Prevention and Punishment of the Crime of Genocide 1948. That is not a difficult proposition of law to make out. To prosecute the Queen is, however, politically virtually impossible.
S.I.S.I.S.: Has she been contacted? Is she aware of this issue?
Clark: Yes. There was a petition to the Queen dated January 3, 1995 that was filed with her office, essentially following in the footsteps of the Mohegan Indians who did the same thing in 1704. That was turned aside by the Queen on the grounds that the alleged criminals, the federal and provincial governments, weren't consenting.
S.I.S.I.S.: As you probably know the celebrations of the explorer John Cabot's 1497 voyage are ongoing. In celebration of his landfall the Queen is quoted in the June 25th Vancouver Province newspaper as saying this "represented the geographical and intellectual beginning of modern North America..."
Clark: Indeed that's true. As is well known, in Newfoundland where Cabot landed the genocide of the Beothuk Indians occurred. So she's absolutely right. The pattern was set there. So far as the native peoples are concerned of course the pattern set was genocide.
S.I.S.I.S.: Your clients and other traditionalists continue to seek from Her Majesty the convening of this independent third party court. Is that right?
Clark: We've almost given up on that. The Queen has chosen sides. We asked, begged, pleaded and so on for her to do her constitutional duty. We fully informed her and her office on what that constitutional duty was. And in a condition of being fully informed, the Queen and her office decided to side with the criminals.
S.I.S.I.S.: With reference to an independent third party tribunal - a fundamental principle of natural justice in any case - what are some of the other venues that are possible?
Clark: The basic possibility is the identical instrument to that established in 1704. At that time Queen Anne in her Privy Council, established a standing commission for the adjudication of disputes between natives and newcomers over boundaries and jurisdiction. Now that committee is not staffed at present but being a standing committee it's immortal. There's been no constitutional amendment removing it. So all that's required is for the Queen freshly to commission a panel of judicial officers to sit upon it. Which is what she was requested to do and which she refused to do for reasons of political expediency acting upon the advice of the criminals as I've said. The alternative would be international arbitration.
S.I.S.I.S.: That also came up in the context of the Delgamuukw appeal. In an interview Gordon Sebastian said that if they didn't get results here they'd go to the World Court.
Clark: That's just stupid. It's part of the scam of lawyers like Sebastian. There is no access to the World Court. His threat is absolute posturing. Worse than posturing, it's misleading native people into thinking they have a viable remedy in the World Court.
S.I.S.I.S.: In fact you've already visited the World Court. Perhaps you can tell us about that.
Clark: Well, the World Court in the Hague, since the 1920s, has occupied the position that the native nations of the Americas do not have locus standi (standing) to commence cases in that court. The reason the court feels this way is that it feels the native nations are not 'states' within the meaning of the statute of the International Court of Justice. Now there really isn't a definition of the concept 'state' for the purposes of that statute, and for me it's a murky area. But the only way one could make the argument for access as a 'state' to that court would be upon the basis of the 1704 precedent in the Mohegan case. Which is precisely the precedent that people like Gordon Sebastian, Stuart Rush, Marvin Storrow, and the BC lawyers mafia have precluded from addressing.
S.I.S.I.S.: What I would associate with a nation or a state is a people with a common language, a common homeland, history, etc. Certainly indigenous nations would fulfill these categories wouldn't they?
Clark: They would. But that's essentially a political test. And that's part of the confusion. You see, what was decided in 1704 was that for 'juristic' purposes, that is for purposes of assessing court jurisdiction, the native nations are juristically sovereign. So in that sense they are a state. That's been resolved for three hundred or so years. The test that you've just described is the normal type of political test that one uses to ascertain the right to membership in the United Nations or in some of the political forums. And in a way the test that you've described is a red herring.
It sort of invites the Indians to prove things like you've described: common heritage and so forth, which they don't have to prove. The issue of statehood for juristic purposes is already settled and has been for some 300 years. They don't have to go into this business of parading language, culture and history before people that don't have jurisdiction.
S.I.S.I.S.: This seems to be something that happens time and time again. It seems always that the onus is on indigenous nations to prove the obscenely obvious proposition that they were here first.
Clark: Yes and that's the scam. Ever since 1535 and the Papal Bull Sublimus Deus, it's been settled in natural and international law that the fact the Indians were here first and since they're human beings they have original jurisdiction. The consequence of that is: us newcomers, the way we get jurisdiction is by acquisition from the original jurisdiction holders. And the process of acquisition is the treaty process. That's why the treaty process was created and why it's still around. It isn't window dressing. It exists for a solid legal reason with great historical depth.
S.I.S.I.S.: British Columbia purports to have just recently begun a treaty process leading to "modern day treaties." It is widely felt the process does not constitute proper treaty making since it is not a nation-to-nation process but involves the Province, a lower order of government negotiating with its own imposed agent - the DIA Band Council. Can you further elaborate the bogus nature of the BC Treaty Commission process?
Clark: It's patently fraudulent. Right now, the so-called BC Treaty process is premised upon the assumption the newcomers already have jurisdiction. What BC is negotiating is a relinquishment by the newcomers of some limited land rights and jurisdictional rights to the Indians. That's completely fraudulent. Since there hasn't been a treaty, the newcomers can't possibly have any jurisdiction.
S.I.S.I.S.: Yes, it seems that BC has turned the process on its head. White society purports to cede certain rights and titles to the Indigenous nations already legally in possession.
Clark: That's the great fraud. That's why the Royal Proclamation of 1763 rehearsed the fact that "Whereas Great Frauds and Abuses have been committed," then it went on to stipulate its provisions and sanctions. The process that the proclamation described of "Great Frauds and Abuses" classically is illustrated by what's going on in British Columbia.
S.I.S.I.S.: Dr. Clark, we know that despite the statements of Chief Justice Antonio Lamer of the Supreme Court of Canada that your submissions to the Court on September 12, 1995 were "the most preposterous and outrageous things I've ever heard," I gather you were granted the right to appear before the Court again. This may surprise some people since the demonization process by the bench, bar and media of yourself was so widespread. One would have thought you were forever excluded from the high court. However you are going back to this Court on behalf of the Mi'gmaq nation with regard to a test case on Quebec secession. What happened to persuade the Court to hear you again?
Clark: On September 12, 1995 the comment you've just identified was made by the Chief Justice. Now at that stage he and the Court had not looked at the law that I was attempting to put before them. I was making an application to attempt to put before them the law such as the 1704 Order in Council which precludes newcomer court jurisdiction. And they decided upon the basis of an a priori assumption that you've just identified that this was preposterous. And on that basis they refused to look at the law. Subsequently, on January 17, 1997, I again presented the same law or attempted to present the same law, but in the context of an application by the Mi'gmaq nation to intervene in the Reference Concerning Quebec Secession, for the specific purpose of informing the Court of the law establishing that vis a vis that portion of Quebec territory which remains unsurrendered Indian Territory, the Court has no jurisdiction to comment.
And I guess to some extent time heals the passion that was going on in September 1995 in relation to the Gustafsen Lake dispute. Things had calmed down. The lynch mob had gone home and had a good night's sleep, apparently the judges actually looked at the law to some extent and found: "My God, there's a prima facie case here." In consequence of that they invited me to place before the Court on behalf of the traditionalist Indians as contrasted with the Indian Act collaborators, the law substantiating native sovereignty.
S.I.S.I.S.: You were also vindicated by a ruling of the Upper Canada Law Society. Might that also have had an effect?
Clark: Without question. On September 12, 1995 after the Chief Justice made his disparaging comment about the preposterousness of the suggestion that the Court might not have jurisdiction, on August 14 the registrar of the SCC reported me to the Law Society of Upper Canada with a view to getting me disbarred for even having suggested this. Subsequently the Law Society held that my point of law was well taken, was certainly arguable, that the courts should address the law rather than stonewall it, and that in any event the allegation of genocide being conducted against the native peoples was valid - that everyone knows that genocide has and is occurring in this country.
S.I.S.I.S.: The decision of the Supreme Court of Canada on September 12, 1995, was that the issue of jurisdiction had not yet been dealt with by the courts below in British Columbia. They [the SCC] could not therefore deal with the issue and instructed you to return to BC, is that correct?
Clark: That's exactly right. The Supreme Court of Canada on September 12, 1995 confirmed that the Delgamuukw case was not relevant to the court jurisdiction issue. Now when I go back to BC such as in the Gustafsen Lake trial the judge and legal system there is wilfully blind to what the Supreme Court of Canada has said. The reasons cited by Justice Bruce Josephson [Gustafsen Lake trial judge BC Supreme Court] for his assumption that the Courts do have jurisdiction was that the issue was resolved in the Delgamuukw case. I placed before him the transcript of the Supreme Court of Canada ruling of September 12 stating the very opposite and he simply ignored it. He didn't cite it, he didn't refer to it, he just simply entered into a state of psychological denial. You can't get a more black and white situation than the September 12 ruling of the Supreme Court of Canada establishing that Delgamuukw is irrelevant to the court jurisdiction question. Regardless of that, the people at Gustafsen Lake are convicted on the basis of Delgamuukw.
S.I.S.I.S.: Didn't the same lawyers like Stuart Rush who argued against you in the Supreme Court of Canada that Delgamuukw didn't deal with court jurisdiction argue back in BC that Delgamuukw had dealt with the issue?
Clark: Yes they argued that. Privately, in the RCMP notes, dealing with Stuart Rush, it's interesting, one of the conditions Mr. Rush stipulated for working for the RCMP was that the RCMP not make it known he was giving them this advice. It's really so tawdry and sneaky and vicious in every respect.
S.I.S.I.S.: You've also been at work in the United States. In New York state there's been a lot of activity in the area of native rights regarding taxation. Can you tell us what the latest is there.
Clark: It's interesting. In New York I've been contacted fairly recently by descendants of the Mohegans who were originally involved in the 1704 case which established the principle of native sovereignty so far as it precludes court jurisdiction.
S.I.S.I.S.: That's the Mohegans v Connecticut case?
Clark: Yes. Actually the Mohegans' traditional territory was the Hudson River drainage basin. That was its central core. In consequence of the European invasion some of their nation or separate bands relocated to Connecticut and hence we have the precedent Mohegan Indians v Connecticut. Some stayed in what is now New York state and those are the ones for whom I'm now acting. Significant portions of New York remain unsurrendered Indian country including interestingly the statue of Liberty.
S.I.S.I.S.: Ellis Island?
Clark: Ellis Island. And that's being litigated in the Supreme Court of the United States on behalf of the Mohegans intervening in the US Supreme Court relative to Ellis Island and the statue of Liberty. Making the identical point, interestingly enough, for which I was assaulted and jailed for having made in British Columbia in Judge Friesen's hysterical court.
S.I.S.I.S.: So far then obviously the US courts have been somewhat better than the British Columbia courts?
Clark: Well to this point. For example the Supreme Court of New York is listening to me and receiving arguments from me pro hac vice - which means even though I'm not a member of the bar of the state of New York, the judges so far seem willing and interested in hearing the law upon which I've done my doctorate and upon which I've a measure of expertise. Contrasted of course in Canada where the judges will not listen to me and use, as an excuse, the fact the bar associations in some provinces will not grant me occasional appearance certificates. And the bar associations won't grant me occasional appearance certificates because they feel I'm being insulting to the judges by telling them they don't have jurisdiction. Basically it's just a conspiracy between the bench and bar to preclude the law from being heard by exorcising its messenger.
S.I.S.I.S.: We wanted to know where those American cases were at because I suspect that once the authorities grasp the significance of the challenge you pose, you may very well see the same sort of reaction develop.
Clark: Well it's very interesting and you're right, we will find out. It is conceivable that the United States, at least northeastern United States, the older portion of it may be a more mature rule of law society than British Columbia. It is conceivable they may not go into a hysterical mode but will actually address the law and apply it and if need be amend it. Without ignoring it. We don't know. Right now it looks much more promising than it does in British Columbia. So far at least the first reaction of the judges in New York has not been to shoot the messenger.
S.I.S.I.S.: Or worse. Death threats to "kill this Clark and smear the prick and everyone associated with him" were attributed to the Gustafsen Lake RCMP Commander Superintendent Len Olfert.
Clark: It's conceivable that the remark was made figuratively not literally.
S.I.S.I.S.: Let us hope so, but the trial also revealed that police had identified a number of "hardliners that may require killing". The words, actions and intentions of the authorities were and are distinctly sinister as regards the indigenous sovereignty struggle.
Clark: There's absolutely no question about sinister. They consciously and actively worked to stonewall the law.
S.I.S.I.S.: And kill 18 people on their own unceded Sundance grounds.
Clark: I think essentially they were indifferent to that. If that had not been an incident of them asserting their jurisdiction I don't know if they would have been unduly upset by it.
S.I.S.I.S.: Dr. Clark thank you for this. We will continue to follow these matters and we wish you well in the days to come.
For further information: On the Delgamuukw case: http://kafka.uvic.ca/~vipirg/SISIS/clark/scchoax.html Transcripts of the Sept. 12, 1995 appeal: http://kafka.uvic.ca/~vipirg/SISIS/clark/sep12scc.html Judge Josephson's reasons for judgment in the Gustafsen Lake trial: Colour of Right: http://kafka.uvic.ca/~vipirg/SISIS/court/reascol.html Jurisdiction: http://kafka.uvic.ca/~vipirg/SISIS/court/reas_jur.html Bruce Clark archives: http://kafka.uvic.ca/~vipirg/SISIS/clark/main.html
Bruce Clark Box 140, 39 Murray Road, Robinsonville, New Brunswick, Canada E0K 1E0 Fax: (506) 753-7310