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Bruce Clark, LL.B., M.A. (Constitutional Legal History), Ph.D. (Comparative Law Jurisprudence) Barrister & Solicitor (Ontario, Canada) 67 Clark Road, Unionville, NY 10988-0279 USA December 11, 1995Verna Friday
In his letter to you dated November 18 1995 the prosecuting attorney has threatened you and libelled me. You, he threatened with a trial before a court system that refuses to look at the legislative words that both preclude its jurisdiction and indict the judges for treason, fraud and genocide. Me, he falsely branded "a fugitive from justice." He said: "You may not be aware but your lawyer, Mr. Clark, is presently a fugitive from justice arising out of an arrest warrant being issued in British Columbia. Media reports have him living in Holland. It is the Crown's intention to request the Court to proceed with this trial whether you are represented by counsel or not. You should perhaps with this knowledge make arrangements to retain other counsel for this trial."
He would recommend that you retain other counsel. By retaining other counsel you would relinquish the one defence that is crucial to you and the survival of a part of your people's society: those who culture is itself dependent upon their independence from non-native jurisdictional interference and manipulation. The legislative words that establish that independence do so by establishing that the newcomers' court system has no jurisdiction over lands that have yet to be purchased from the Indians. Those words also establish that the newcomers' courts' premature assumption of jurisdiction constitutes treason, fraud and complicity in genocide on the part of the prosecuting attorneys and judges doing the assuming.
That no other lawyers are ready, willing and able to advance that particular defence on your behalf is not surprising. As a result of raising that defence on behalf of other indigenous people in various court cases I have been hounded out of my law practice, falsely criminalized and driven into exile. Based upon that experience any other counsel will advise you that the defence of Indian independence is a non-starter, not necessarily because unsound in law, but because, regardless of its legal validity the judges will not hear of it. No prosecuting attorney or judge has identified, or even pretended to identify, a legal basis for disputing your defence. The legislative words upon which the defence is based are clear and plain. In consequence, instead of addressing the words that they know they can not rebut and that indict them for serious crimes, without exception the prosecuting attorneys and judges have simply evaded the jurisdiction issue itself. For years the evasion took the form of saying that some other court in some other context should address the issue, leaving the present court free to act as if the objection to jurisdiction had not been raised before it in particular. As the pressure of my clients' co-ordinated applications increasingly restricted the ambit for such evasion, the prosecuting attorneys and judges turned their attention to silencing me.
Your feeling of personal violation at the injustice of this is justified. The particular legislative words to which the said court system willfully is being blind define the correct legal relationship between natives and newcomers in the Americas. The blindsided words are the first words in history to be premised upon the now commonplace philosophy that human identity and human rights are mutually constitutive. By defining your fundamental right as an indigenous person the blindsided words recognize and affirm your humanity. Correspondingly, the court system's willful blindness to them treats your humanity as a matter of no importance. Of course your feeling of being violated is justified. You have been, and are being, violated to the core of your being: diminished, violated, negated as a human. And there is no more insidious or vicious form of assault than denying the humanity of the victim. It destroys from within more cruelly than does the bullet or the noose from without.
Judicial willful blindness diminishes the humanity of all people - whether they are like you a victim, like the crown attorneys and the judges the attackers or, like most people in the Americas, bystanders. For the rule of law is a product of the same philosophy as that linking human rights and human identity. It is the sum of all the linkages. The court system's willful blindness to the words that define the rights and therefore the human identity of the indigenous people, negates the principle upon which all rights and therefore the definition of what it means to be a human being depends generally. The court system's willful blindness destroys the rule of law, the basis for society and, since mankind is a social animal, by doing so it destroys the attackers no less than their victims.
The philosophy not only linking but rendering fundamental human rights, human identity and the rule of law mutually constitutive is a consequence of the discovery of the Americas by Europeans. The first philosophical reaction to the discovery was the enactment in 1493 of the papal bull Inter Cetera. This legal instrument legislatively provided that the two-legged creatures found inhabiting the new world though human in form were for legal purposes animals, without souls and hence without legal rights as against the discoverers. Setting aside for the moment the offensiveness of the legal position thusly substantively occupied by Inter Cetera, you will realize that by this enactment humankind had taken a step of profound consequence to its own evolutionary progress as a thinking social animal.
Throughout human history prior to this time and one suspects throughout prehistory as well, the spectacle of debating the humanity of indigenous populations was unprecedented. Humankind had been ebbing and flowing across the face of the earth with disregard for the issue whether the encountered indigenous populations were human, as contrasted with something inferior. Newcomers exterminated, expelled or ghettoized natives because they had the power to do so, without troubling themselves to excuse or justify the process in legal terms.
The interjection in 1493 of the question going to the humanity of the natives was therefore an innovation of profound significance. In virtue of it Homo Sapiens as a social as well as an intellectual being forever revised the definition of what it means to be human: - a human being by definition became that type of animal that has fundamental legal rights that other humans must respect.
The concept of rights and corresponding obligations has ever since been constitutive to our understanding of human identity.
Inter Cetera was repealed and replaced by the papal bull Sublimus Deus, 1537. In this, the indigenous peoples of the Americas were proclaimed to be human with souls and, in consequence, seized of the legal rights of jurisdiction over and possession of territory not yet purchased from them by the newcomers. Sublimus Deus concluded with the declaration that any enactment or activity that is in breach of this founding aboriginal right is null and void and of no effect for legal purposes.
This enactment is the primary source of aboriginal rights everywhere in the Americas. From inception it has bound all Europeans and their several governments in terms of settled international law. Furthermore, since those governments subsequently authored the several constitutions of the new countries of the Americas, those constitutions all reiterate the founding law. Ever since the enactment of Sublimus Deus existing law has remained straightforward: no purchase equals no non-native jurisdiction or possession.
The second constitutive event legislatively occurred in 1704. In that year it was explicitly recognized and affirmed that the courts of the newcomers have no jurisdiction to decide whether a purchase has, in fact, validly occurred. Instead, that jurisdiction is vested in an independent and impartial third party.
The 1704 recognition and affirmation of the natives' due process right of access to a court system outside of the court system constituted by the newcomers was precipitated by the Mohegan Indians, in consequence of a legal dispute with Connecticut over whether a particular treaty was a valid purchase, capable as such of having extinguished the Mohegans' previously established aboriginal right of property and jurisdiction. Queen Anne agreed with the Mohegans' submission that the General Court of Connecticut could not possibly, consistent with the rule of law, have jurisdiction over the purchase issue.
To have conceded the colonial court that jurisdiction would have allowed the newcomers in effect to be suitors and judges in the same cause. And no principle is jurisprudentially more basic, certain and essential to the very existence of human civilization based on the rule of law than nemo potest esse simul actor et judex (no one can be both suitor and judge).
By constitutional Order in Council dated 9 July 1704 Queen Anne therefore created a special permanent court to adjudicate, as independent and impartial third party, the purchase issue whenever it should arise between natives and newcomers.
The General Court of Connecticut instructed legal counsel to appear at the first sittings of this special court. Counsel's instructions were to object to the special court's jurisdiction on the constitutional ground that only the General Court as the court of original jurisdiction in Connecticut was competent to try the purchase question. The objection was overruled. Thus, the Mohegans were held to be juristically sovereign, in the sense that until the purchase question was resolved in favour of the newcomers the General Court's jurisdiction was constitutionally extraterritorial.
The absurd idea that the General Court could assume jurisdiction for the purpose of deciding the very question of fact upon which its jurisdiction depends was rejected. To have allowed the General Court's jurisdictional objection would have been to prejudge the issue of purchase. That would have made a hoax of the rule of law, for it would have negated the rule of law sine qua non principle: nemo potest esse simul actor et judex (no one can be at the same time suitor and judge). In light of this, consider now the "leading" (albeit jurisdictionally void) Canadian case of Delgamuukw v. Attorney General of British Columbia, in which the Chief Justice of British Columbia based his decision upon the observation that aboriginally the natives' lives were "nasty, brutish and short," thus resurrecting the racist ideology embraced by Inter Cetera but repealed by Sublimus Deus. Or the other "leading" (and equally jurisdictionally void) case of Attorney General of Ontario v. Bear Island Foundation in which the trial judge, affirmed on appeal, based his decision upon the blatantly racist perception that it was "inconceivable" that King George III intended by the Royal Proclamation of 1763 to require the crown to "purchase" the Indians' lands before settling newcomers upon them, supposedly because Europeans did not consider Indians to be "equal to themselves." That 1763 proclamation employs clear and plain words to do precisely what the Chief Justice and the trial judge deemed "inconceivable." It expressly and explicitly enacted that the Indians "should not be molested or disturbed upon any Lands whatever which, not having been ceded to or purchased by Us, are reserved to them." Prior to such purchase it expressly and explicitly enjoined land grants "upon any Pretence whatever" and ordered the removal of "Settlements" made upon yet unpurchased lands. It expressly and explicitly allowed the newcomers to set up courts with jurisdiction over lands that had been purchased, but equally expressly and explicitly enacted that vis-a-vis the yet unpurchased lands of the Indians the newcomers' police and courts could only arrest and try non-native fugitives who committed crimes on purchased lands and then fled to the unpurchased lands for jurisdictional sanctuary. It would have made no sense to stipulate that the newcomers' courts had exceptional jurisdiction to apprehend and try fugitives resorting to the unpurchased lands if those courts had general jurisdiction in any event. In short, what the Chief Justice and the trial judge deemed "inconceivable" because Indians were to them "not equal" beings was precisely what the proclamation expressly and explicitly not only did do but did so in terms so utterly clear and plain as to boggle the mind that the judges could so blatantly have willfully blinded themselves. Such is the power of racism, and the influence of institutionalized conflict of interest. If the 1704 legislation did not already constitutionally exist Canada would, in the long range interest of salvaging the rule of law, be bound to amend the constitution to insert an equivalent principle. The existence of the 1704 law is necessary to save us from ourselves.
Consider, as well, the particular circumstances of the 1850 treaty that supposedly extinguished the aboriginal rights of your people. In the late 1840's the constitutionally responsible rulers and officials of Canada (West) granted mining licenses to locations on the north coast of Lake Huron, a region in respect of which there had been no purchase of the Indian title. The Indians resident there attended en masse in the presence of a lawyer named Alan Macdonnell, and ordered the miners to leave. The constitutionally responsible rulers and officials who had granted the mining licenses appointed the mine managers magistrates, and sent in the troops to arrest the Indians and their lawyer on charges of criminal riot. At law, the mining grants were void, being in breach of the Royal Proclamation's constitutional injunction. The officials who made the grants were guilty of "Misprisions of Treason and Fraud, as were the trespassing magistrates they appointed to enforce the grants in virtue of an assumed and extraterritorial jurisdiction. The law that the illegal magistrates applied was ultra vires vis-a-vis the Indian territory where the Indian protest had occurred, in as much as the application manifestly breached the proclamation's express and explicit constitutional injunction that the Indians "should not be molested or disturbed in the Possession." To stay out of the Whiteman's jail the Indians dismissed their lawyer and signed the 1850 treaty, relinquishing their 1537 right of jurisdiction and possession. The treaty was thus executed upon the basis of judicial fraud, duress and undue influence upon the basis of an assumption of jurisdiction that was itself prima facie treasonable and fraudulent. As soon as the "Purchase" was signed the criminal charges were dropped.
In 1991 the Supreme Court of Canada held, confirming the trial judge in the Bear Island case that, even though your ancestors had not signed the treaty, by accepting annual payment charged to it and a reserve your people implicitly became adhered to the treaty. Thus, your aboriginal rights were thought to be extinguished by an adhesion to a treaty that is itself void and unenforceable, because the law voiding the treaty was not addressed by the courts that held that the adhesion had occurred. An adhesion to an instrument that is void is itself a nullity. That has been one aspect of your several unaddressed motions which, but for the fact that the legislative words that void the treaty happen also to indict the judges, generally, for what may well be the greatest most massive crime against humanity in human history, would long before now have been addressed rather than evaded. The treaty point they might be willing to let you have. After all, it is just one treaty among many. The necessarily incidental indictment of the judges themselves is the stickler.
The third constitutive event transpired in 1763. In that year the Royal Proclamation (quoted above) was promulgated by an Order in Council of the same constitutional forces as the 1704 Order in Council. As noted, the 1537 concept of "Purchase" expressly and explicitly was confirmed as the basis for the newcomers' acquisition of jurisdiction and possession over territory in the new world. As the jurisdiction of the courts constituted by the newcomers was confirmed in relation to the lands that had, [[in]] fact, duly been purchased. To that extent the Royal Proclamation of 1763 was not constitutive of aboriginal rights. It merely confirmed the previously established law that exists regardless of the proclamation. The only new thing that the proclamation introduced, its constitutive element, concerns the sanctions referable to the breach of the said previously established law.
The proclamation constitutively enacted that crown government rulers and officials who assume jurisdiction in the Indian country prior to purchase are automatically guilty of the crimes "Misprisions of Treason and Fraud."
For all that "Misprisions" is an unfamiliar concept today, it was central to the legal reality of the years immediately leading up to the American Revolution. In spite of the vindication of their 1537 right of jurisdiction and possession in the special constitutional court created in 1704, the Mohegans found it impossible to enforce the court order confirming their aboriginal rights. The law was on their side, but the power was on the side of the colonists, who simply ignored the law. The 1763 instrument sought to secure the military alliance of the Indian nations, like the Mohegans but even more so of the interior of British North America, by reassuring them in the strongest possible terms of the crown's better "Protection."
In the future of the Indian right under the rule of law, against the colonists' illegal encroachments upon the yet unpurchased Indian lands, was to be protected legislatively holding the crown's rulers and officials responsible, in the sense of being subject to the criminal law sanctions for treason and fraud, for the settlers' encroachments. The proclamation deemed the colonial rulers and officials guilty, without proof of mens rea (guilty mind), of "Misprisions" for complicity in the encroachments, whether the complicity be actual entry themselves, or the authorization by grant or court order of the entry of others. By this device King George in his Privy Council (Great Britain) enacted, in essence, the enemies of my Indian allies are my enemies, and the countenancing of any encroachment upon the Indians' lands, regardless of the "Pretence" chosen, was tantamount to an attack upon constitutional government: to wit, "Treason" and "Fraud."
The proclamation's employment of the specific term of legal art "Misprisions" arguably was the decisive factor precipitating the American Revolution. By using that word Great Britain signified that rulers and officials [[-]] people such as George Washington and their judicial appointees, many of whom held extensive land speculation interests in the then unpurchased Ohio Valley [[-]] were by operation of law guilty of Treason and Fraud. Rather than bend to this imposition of what was perceived as British tyranny, the colonial rulers and officials leaders led the settlers to the freedom to take the Indians' land without the taint of criminal law sanctions. The success of the American Revolution, culminating in the British relinquishment by the 1783 Peace of Paris of its former claim of the exclusive right to purchase whatever lands the Indians should be willing to sell, and in the Constitution of 1789 that omits the crimes of "Misprision of Treason and Fraud", effectively repealed those crimes vis-a vis the United States. Those crimes have never been repealed in Canada.
Similarly, the Revolution and new Constitution effectively repealed the "American" Indians' due process right of access to the special constitutional court established in 1704. That right has never been repealed in Canada.
The fourth and final date of constitutive relevance is 1948, the year of the Convention [[for the Prevention]] and Punishment of the Crime of Genocide. It precludes by rendering criminal the systematic attempt to dehumanize any identifiable human group. Articles 2(b), 3(e) and 4 explicitly deem the imposition by "constitutionally responsible rulers and officials" of "serious bodily harm" as being "complicity in genocide."
The judge before whom you are brought for arraignment is legally obligated first to address the legislative words constitutively employed in 1537, 1704, 1763 and 1948. Those words preclude his jurisdiction, and render its ultra vires exercise criminal. He is legally obliged either to dismiss the charges at the outset or, alternatively, to adjourn them until such time as the 1704 constitutional court has addressed and resolved the underlying and pivotal issue of purchase.