Source: Application for Leave to Appeal,
R v. Ignace et al,
September 12, 1997, p. 5
At the Court of St. James. Present, The Queen's most Excellent Majesty in Council. Upon reading this day a Representation from the Lords Commissioners of Trade and Plantations dated this day on a Complaint made in the behalf of the Mohegan Indians in Connecticut Colony Relating to a Small Parcel of Land which that Nation of Indians reserved to Plant and Hunt in which they Granted for a very Small and Inconsiderable Value to the English at their first coming to Settle in that Country great part of their Lands.
And their Lordships humbly Offering that a Commission be Granted unto the Governor of the Massachusetts Bay and other Persons whose names are annexed to the said Representation, any five of whom to be a Quorum, the said Governor or the Lieutenant Governor of the Massachusetts Bay being one, for Erecting a Court within that Colony to do Justice in this matter, and that her Royal Letters Patent be Written to the Governor of the Massachusetts Bay and the Governor of the Conneticut Colony in that behalf. Her Majesty in Council approving the said Representation, is pleased to Order and it is hereby Ordered, That the Lords Commissioners do prepare the Drafts of Letters for Her Majesty's Signature to those Governors together with the Minutes of a Standing Commission to be prepared by Mr. Attorney General, as is provided by the said Representation. And Her Majesty is further pleased to Order that the said Commission and other necessary dispatches in this matter be past and Expedited at Her Majesty's Charge in favour of the said Indians accordingly.
A Complaint having been made to Us in the behalf of the Mohegan Indians in Conneticut in New England, In America, the Substance whereof is as follows;
That the Principal Sachems of those Indians, being Chief Proprietors of all the Lands in those parts; upon the coming of the English to Inhabit there, Recieved them in a Friendly manner, and permitted them peaceably to Plant and Settle great part of their Lands, which they Granted to them for a very Small and inconsiderable Value, reserving only to themselves a Small parcel of Land to plant & hunt in.
That the said Indians have ever since the coming of the English, entertained & Cultivated a firm friendship by League with the English of Connecticut, and have always assisted them when they have attacked their Enemies. That in Several Treaties between the said Mohegans and the people of Connecticut, it has been agreed that the said Indians should be protected in the possession of their said reserved Lands. That contrary to the said Treaties and to common Justice, the Colony of Connecticut have passed the Act by which they have taken from the said Indians that Small Tract fo Land which those Indians had reserved to themselves as aforesaid, which Land has been divided to the Governor & Several others. That the said Indians have often applyed to the Government there, but instead of finding a Redress have been ill used, That in Case they are not Speedily relieved, they will be necessitated to withdraw their Obedience from your Majesty, and Join with the Eastern of French Indians, which may be of fatal Consequence.
For your prevention whereof, they pray that your Majesty would be pleased to Grant a Commission to Several Persons, hereafter named, to enquire into the matter of Fact, and to determine thereupon, as shall appear to them to be just and reasonable.
But in Consideration that his Majesty King Charles the Second, by his Letters Patent in the year 1662, did Constitute a Corporation by the name of the Governor and Company of Connecticut in New England, and did Grant to them a large Tract of Land within the Boundaries of which lye the Lands, which these Indians had reserved as aforesaid, We Consulted Your Majesty's Attorney General thereupon, Who has reported to Us:
"That it doth not appear to him that the lands now Claimed by the Indians were intended to pass or could pass to the Corporation of the English Colony of Connecticut, or that it was intended to dispossess the Indians, who before and after the Grant were the owners and Possessors of the same, and that therefore what the Corporation hath done by their Act aforementioned, is an appparent injury to the Indians, And that your Majesty, notwithstanding the Powers Granted to that Corporation (there not being any words in the Grant to exclude your Majesty) may lawfully erect a Court within that Colony to do Justice in the matter, And in the Erecting of such Court may reserve an Appeal to your Majesty in Councill, and may command the Governor of that Corporation not to oppress those Indians or deprive them of their Right, But to do them Justice nothwithstanding the Act aforesaid, made in Connecticut, to their prejudice, such Act he is of opinion, is illegal and void."
Whereupon We humbly offer Our opinion, that your Royal Letter be writ to the Government of Connecticut and a Commission Granted according to the opinion of your Majesty's Attorney General, unto your Majesty's Governor of the Massachusetts Bay and other Persons whose names are hereunto Annexed, any five of whom to be a Quorum, & the Governor or Lieutenant Governor to be one. And Whereas the said Indians have not the use of money, whereby the Charge of such a Commission and other dispatches may be defrayed, and that your Majesty is pleased by presents or otherwise to Gratify such Indians as are under your Majesty's Dominion, We humbly offer that such Commission be past with the necessary dispatches at your Majesty's Charge, such may be a means to prevent their Defection to your Majesty's Enemies of Canada.
On perusal and Consideration of the Case annexed it doth not appear to me that the lands now claimed by the Indians were intended to pass or could pass to the Corporation of the English Colony of Connecticut or that it was intended to Dispossess the Indians who before and after the Grant were the owners and possessors of the same and therefore what he Corporation hath done by the Act mentioned in the Case is an apparent Injury to them and Her Majesty nothwithstanding the powers granted to that Corporation, there not being any words in the Grant to exclude Her Majesty, Her Majesty may Lawfully erect a Court within that Colony to do Justice in this matter and in the erecting of such Court may reserve an Appeal to Her Majesty in Council & may command the Governors of that Corporation not to oppress those Indians or deprive them of their right but to do them right notwithstanding the Act made by them to dispossess them which I am of opinion was illegal and void.
[S.I.S.I.S. note: This was the precedent relied upon in support of an independent, impartial third party tribunal instead of the Canadian domestic courts which are without lawful jurisdiction over Indians on unceded lands.]