[S.I.S.I.S. note: The following letter by Native rights lawyer Dr. Bruce Clark to Harvey T. Strosberg, treasurer of the Law Society of Upper Canada, was written in response to Strosberg's article "Supporting the need for Aboriginal legal expertise," which appeared in the March/April 1998 edition of the Ontario Lawyers Gazette, published by the Law Society of Upper Canada.]
October 1, 1998
Dear Mr. Treasurer:
I have read the above-mentioned article. In it you say "Case Law regarding Aboriginal rights, while currently in its infancy, will continue to grow and evolve in meaning and definition," a viewpoint which reiterates the attitude occupied by the Supreme Court of Canada in 1990s, as typified by the line of decisions, running from Van der Peet to Delgamuukw.
In truth the said case law is voluminous in both Canada and the United States, and indeed in the latter country it has been estimated by constitutional law scholars that fully 1/4 of the formative constitutional law decisions of the Supreme Court have related to that topic, so structurally fundamental has it been to the evolution of constitutional law relative to civil rights and land law throughout North America.
The constitutive cases establish in simple, clear and plain terms that the onus of proof is upon the Canadian and American governments to establish an Indian treaty purchasing a given disputed territory, (1) before an independent and impartial third-party tribunal as distinct from a court or agency of those governments, (2) failing which the territory is reserved for Indian use in general, (3) and the premature (prior to treaty) application of federal law to such territory prima facie constitutes fraud (4) and arguably complicity in genocide. (5) Unconstitutionally, both Canada and the United States criminally preempt, with the knowing complicity of their courts, the said law from consideration, specifically by applying federal law to unpurchased Indian territory in willful blindness to the constitutional law, thereby committing the crimes sanctioning the breach of the constitutional law.
Full particulars of some at least of the hundreds of secondary cases, and of the few determinative constitutive legislative instruments running from the papal legislation Sublimus Deus of 1535 to and including the Constitution Act of 1982, may be found in pending Discipline File No.D110/98 in the matter of Law Society of Upper Canada v. Bruce Clark, pursuant to which the society is seeking my disbarment for "scandalizing" the courts and the legal profession in virtue of "unbecoming" conduct, namely, my expression on behalf of native clients, who are victims of the said crimes, of the above legal opinion in courts of law and written publications, in an attempt on their behalf to apprehend the said crimes and, in the process, to rehabilitate justice as the application under the rule of law of truth to affairs.
While your statement, Mr. Strosberg, that the case law "is in its infancy" is profoundly wrong and misleading, your statement that the case law "will continue to grow" is profoundly perceptive. The legal establishment in Canada, led by the Supreme Court and professional leaders such as you, systematically and methodically are engaged in a process of fomenting litigation and proselytizing legal education legal education based upon the fraudulent premise that there is a clean slate upon which to write an alternative definition of the law, on a case by case basis, in criminal wilful blindness to the existing law that indicts the legal establishment, and which it is your purpose to suppress, to the prejudice not only of native victims but also to the trashing of the rule of law.
For these reasons your article cloyingly is offensive when it disingenuously, self-righteously and self-servingly concludes:
"The Law Society has committed itself at long last to work in earnest with Aboriginal peoples to investigate the best ways to promote positive change, and to invest in new partnerships and ventures with Aboriginal peoples through the legal system and education. We trust that the profession will join and support us in this vital initiative."The sentiment there expressed puts one in mind of the function of the "big lie" in countries with a history of genocide. As the Law Society itself held on June 19, 1996 in relation to an earlier attempt to disbar me:
"The genocide of which Mr. Clark speaks is real, and has very nearly succeeded in destroying the Native Canadian community that flourished here when European settlers arrived...We are sympathetic, moreover, to Mr. Clark's assertion that the courts have been unwilling to listen to his argument."The New York Times "International Section" of January 13, 1996 had an article entitled "Berlin Journal: Exoneration Still Eludes An Anti-Nazi Crusader." It concerned Carl von Ossietzky who won the 1935 Nobel Peace Prize. He was convicted and imprisoned for opposing as unconstitutional some of the practices introduced into Germany's domestic legal system by the Third Reich, spent time in jail, and died of mistreatment in 1938. The article noted:
"The German judicial system has never faced the facts of its role in the Nazi period....The judiciary considers itself a nonpolitical branch of the Government and has never looked self-critically at what it did in the service of an unjust regime..."In sum, your article brings to mind a traditional Indian aphorism: Beware the wolf who smiles.
Very truly yours,
cc: The Editors, Ontario Lawyers Gazette.
(2) St. Catherine's Milling and Lumber Co. v. The Queen (1888), 14 AC 46, 51, 53, 54, 55, 60 (JCPC): "...the Indian inhabitants have been precluded from entering into any transaction with a subject for the sale or transfer of their interest in land, and have only been permitted to surrender their rights to the Crown by a formal contract, duly ratified in a meeting with their chiefs or head men convened for that purpose. Whilst there have been changes in the administrative authority, there has been no change since the year 1763 in the character of the interest which its Indian inhabitants had in the lands surrendered by the treaty. The ceded territory was at the time of the union, land vested in the Crown, subject to an interest other than that of the Province in the same, within the meaning of sect. 109 [of the Constitution Act, 1867];...The treaty leaves the Indians with no right whatever to the timber upon the lands which they gave up, which is now fully vested in the Crown. The legal consequences of the treaty...opened up [the land] for settlement, immigration, and such other purpose as to Her Majesty might seem fit...[It] involved the sale or transfer of their interest in land...[It was] a formal contract...the interest which its Indian inhabitants had in the lands [was] surrendered by the treaty [in order that the land might be] opened up for settlement...there has been all along vested in the Crown a substantial and paramount estate underlying the Indian title, which became a plenum dominion [full or plenary jurisdiction] whenver that title was surrendered or otherwise extinguished...[In sum the] legal consequences of the treaty [were that] the treaty left the Indians no right whatsoever to the timber...which is now fully vested in the Crown.
(3) Mohegan Indians v. Connecticut 1704, In Joseph Smith, "Appeals to the Privy Council from the American Plantations", New York, Columbia University Press, 1950, 417-25, 461-63.
(4) Royal Proclamation of 1763: "the several Nations or Tribes of Indians with whom We are connected and who live under our Protection should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as not having been ceded to or purchased by Us are reserved to them or any of them as their Hunting Grounds."
Mitchel v. United States, 9 Pet. 711, 745, 746, 749, 755 (SC 1835): "[The Indians have] a perpetual right of possession...[which] could not be taken without their consent..[because] The King waived all rights accruing by conquest or cession, and thus most solemnly acknowledged that the Indians had rights of property they could cede or reserve, and that the boundaries of his territorial and proprietary rights should be such, and such only as were stipulated by these treaties. This brings into practical operation another principle of law settled and declared in the case of Campbell v. Hall [(1774), 98 ER 1045 (JCPC)], that the proclamation of 1763, which was the law of the provinces ceded by the treaty of 1763, was binding upon the king himself, and that a right once granted by a proclamation could not be annulled by a subesequent. It cannot be necessary to inquire whether these rights secured by a treaty approved by a king are less sacred than under his voluntary proclamation...The proclamation of 1763 was undoubtedly the law of the province till 1783; it gave direct authority to the Governors of Florida to grant crown lands, subject only to such conditions and restrictions as they or the King might prescribe. These lands were of two descriptions: such as had been ceded to the king by the Indians, in which he had full property and dominion, and passed in full property to the grantee; and those reserved and secured to the Indians, in which their right was perpetual possession, and his the ultimate reversion in fee, which passed by the grant, subject to the possessory right...This proclamation was also the law of all the North American colonies in relation to crown lands."
(5) Royal Proclamation of 1763, supra Montgomery v. Ives, 13 Smedes & M 161, 171, 174-5, 177, 179 (MSNC of E&A 1849): "...This proclamation...goes on to declare, that no governor, in any of the said provinces, shall presume, 'upon any pretence whatever, to grant warrants of survey, or pass any patents for lands...' It further declares...and forbids 'all purchases and settlements beyond those limits'...It goes on still farther to declare a principle which seems to have been adhered to ever since, 'that no private person do make any purchase of any land from any Indians, but that the same shall be purchased only for the government, in the name of the sovereign, at some public meeting of the Indians.' This principle, the offspring of a just and enlightened policy, became incorporated into the intercourse of England, with the Indian tribes, and has been adopted and pursued by our own government, in all its transactions with them...Unless we hold that the extension of the limits of Florida, by the commission to her governor, which took place some years before this relinquishment by the Indians, abrogate the provision in the proclamation against grants of land to which the Indian title had not been extinguished, to the extent of the new bounds, we must hold that the grant to Campbell in 1772, had in itself no intrinsic validity, because the lands were not subject to be granted, until their title was relinquished. On this part of the proclamation of 1763, the Supreme Court of the United States say, 'This reservation is a suspension of the powers of the royal governor, within the territory reserved.'"
Fletcher v. Peck, 6 Cranch, 142. "It is because of this suspension , which existed at the date of this grant, that we think it has no intrinsic validity. It is an established principle in our jurisprudence, that a grant of land on which the Indian title has not been extinguished, is void." Danforth v. Wear, 9 Wheat. 676. "...when the prohibition on the governor of West Florida, to grant lands beyond the limits of his province as then fixed, is established in 1763, it becomes incumbent on those claiming under this grant, to show that the prohibition has been removed...the British grant did not of itself confer a valid title on the grantee...I concur in holding that the grant from the British governor of West Florida, dated 11th February, 1772, to the ancestor of the plaintiffs below, was invalid for want of power in the governor to make it. This result seems to follow, whether the land in dispute was or was not, at the date of the grant, within the limits of West Florida."
(6) Convention for the Prevention and Punishment of the Crime of Genocide, 1948. Article 2. In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (b) Causing serious bodily or mental harm to members of the group; Article 3. The following acts shall be punishable: (e) Complicity in genocide. Article 4. Persons committing genocide or any of the other acts enumerated in Article 3 shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals. Proxmire Act. PL 100-606.
Law Society of Upper Canada: http://www.lsuc.on.ca/
Harvey Strosberg: firstname.lastname@example.org
From the Law Society of Upper Canada motto: "Upholding the independence, integrity and honour of the legal profession for the purpose of advancing the cause of justice and the rule of law."
"Kill this Clark and smear the prick and everyone with him."
"You have created the appearance of an outrageous abuse of judicial power...an arrogant and hateful tyrant determined to humiliate Indians and
destroy the professional and personal reputation and the livelihood of
their lawyer. Do you expect Indian peoples to believe they can receive
justice in your court? And where will Indians obtain independent,
courageous and effective counsel to represent them in your courts?"