What I have learned about the ideal nature of law I feel has been learned from living in native communities and from talking with native philosophers, and then from reconciling that with what I encountered in law school and in private practice as a lawyer over the past twenty years.
Native reality consists in cycles of time, where time compresses and ceases to be crucial. Non-native reality consists in the linear progression of time, where time is all important. The circle versus the line.
Since native philosophy is based upon the circle, thoughts end where they begin - at the level of human feeling that gives birth to the mental activity. From this perspective "law" also begins as a feeling, as do all mental constructs. The application of law ends as "justice", or as "injustice", depending upon the feeling that the completion of the particular law's cycle produces. Thus justice, like the law of operation of which it describes, is also a feeling.
Secondly, since law and justice are social institutions their recognition is collective. For native philosophers the social ethic that ties law and justice to a common social standard is respect. That is, value judgments are based upon the consistency of the conduct with the universal ideal of respect. Law that is consistent with respect produces harmony and the feeling of justice. Law that is inconsistent with respect produces disharmony and the feeling of injustice.
In the summer of 1990 I gave a lecture at St. Peter's Seminary in London Ontario Canada. I made a comment about the passage in Genesis where it is reported that God gave Man "dominion" over the earth. A seminarian interrupted me. "The term is no longer interpreted as dominion," he said, "but as stewardship." Discussion followed. The consensus of priests, professors and students upheld the man's correction of my point. Since then the Oblate Mission to Canada has issued a formal statement apologizing for its historic role in crushing native language use through its operation of residential schools. Similarly, the largest Protestant denomination has publicly atoned for its historic part in the religious onslaught against native culture.
Christ's message was to recognize the circle in all things. Resurrection follows death. God whose body we are invited to eat and whose blood we are invited to drink, is in man. By this metaphor God inheres in all things. The only real knowledge is the awareness that love is all there really is.
Native philosophers call these Christian ideas of stewardship and unity by a single English term: respect.
Non-natives seem to be groping toward a rediscovery of their philosophical roots. A reconciliation of the circle and the line may be dawning. The dark age since Christ's death, during which His message was interpreted to conform with the linear thought pattern may be coming to an end. Other indications exist: the being and becoming of existentialism; the recognition that language limits thought and philosophically restricts its horizons; the identification of the curvature of the universe; the realization that order exists in chaos and that matter may reduce to force fields; the ascendency of the political ideals of self-determination and liberty; the fact that the leader of the world's unstoppable war machine chooses publicly to pay homage to the rule of law as his master regarding the employment of that machine.
Native philosophers prophesize that the end of a great cycle is taking place. They say that the world will fundamentally appear changed. They do not say the change will necessarily be for the better. Only that it will be of cataclysmic significance.
Native philosophy has been the victim of an uninterrupted pogrom for as long as my country Canada has been in existence. Sir John A. Macdonald, our first Prime Minister, on January 3rd 1887 avowed that "the great aim of our legislation has been to do away with the tribal system and to assimilate Indian people in all respects with the other inhabitants of the Dominion, as speedily as they are fit for the change." His reference to "our" legislation contemplates legislation enacted from outside Canada, for Canada, by the imperial government of Great Britain.
The Canadian domestic legislation has been based upon a legal philosophy of disrespect for the original inhabitants. In contrast, the imperial legislation which defines the constitutional powers of Canadian governments has been based upon a legal philosophy of respect for the original inhabitants.
The more enlightened constitutional legislation exists for two reasons, the one practical and the other emotive. Practically, in the formative years, particularly of the 18th century, the natives constituted a powerful military presence in North America. Emotively, part of the European ideology of empire had a respect element. For these two complementary reasons the constitutional philosophy inceptively recognized that non-native governments and their institutions of law and order possessed no jurisdiction in and over territory until such time as the natives by treaty agreed.
Thus, the first general constitution for what is now called Canada in 1763 enacted "Whereas it is just and reasonable, and essential to our Interest, and the security of our Colonies, that the several Nations or Tribes of Indians with who 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."
That principle of law is the primary legal condition upon which Canada is founded. It has been respected and reiterated in every subsequent constitutional instrument. Furthermore, the leading judicial decisions on the nature of colonial constitutional government independently make the same point as a matter of the unwritten common law of the constitution.
Since this principle enjoys the status of constitutional law, the inconsistent domestic Canadian legislation, enacted and applied by the first Canadian Parliaments, is null and void. That is the point of constitutional law: to grant, but also to limit parliamentary powers.
I wish I had never learned to respect native culture and how Canada today is trashing the rule of law to eradicate its vestiges. For now my family and I are exiles from Canada. It is not that we could not go back physically. Rather, we find it too sad to remain part of a society that is still committed to writing the final chapter of the obscene book of anti-law begun by our first Prime Minister. Our sadness is not just for those few native people who still live lives based upon the indigenous philosophy, but for humanity, which has so much to learn from rediscovering its philosophical roots.
Mixed with our sadness is anger, at the hypocrisy of the Canadian political and judicial establishment, that continues to pursue Sir John A. Macdonald's racist program. As recently as 1974 the highest non-native court in Canada not only recognized Canada's apartheid system, but endorsed it. In the case of the Attorney General of Canada versus Canard the Supreme Court of Canada decided that discriminatory Canadian legislation is valid since, in this court's view, the law "creates a racial classification and refers to a racial group for whom it contemplates the possibility of special treatment."
That statement is and always has been constitutionally insupportable. The constitution of Canada has never contemplated such a racist philosophy. The whole point of our constitution has been to leave the Indians master in their own house, until they voluntarily choose to accept our laws in preference to their own.
According to our constitution until the Indians surrender their territory by treaty those territories, "not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds." The Canadian Parliament has never had legislative jurisdiction over such yet unceded Indian territory. All that the Canadian Parliament has is legislative jurisdiction over the Indians and the territories that have previously been surrendered. Thus, the Canadian Parliament can not legally enact racially discriminatory legislation in relation to unceded territory.
Furthermore for the same reason the Canadian Parliament has no jurisdiction, the Supreme Court of Canada has no jurisdiction. That court derives its juridical jurisdiction by legislative grant from the Canadian Parliament. The Canadian Parliament cannot create a juridical jurisdiction over territory over which the Parliament itself has no jurisdiction.
The point is straightforward: native liberty upon unceded territory is a constitutional right. This right can not be divested directly by the Canadian Parliament. A fortiori natives can not indirectly be divested by the non-native courts constituted by that Parliament.
That is the law.
The fact is that the law is broken daily by the non-native courts in the Province of British Columbia, the last remaining major repository of yet unceded Indian territory. Non-native courts make it a practice to grant injunctions pursuant to which natives are commonly arrested and imprisoned for trying to stand in the way of the logging equipment that is clear-cutting their yet unceded forests. It is commonplace for logging road construction to desecrate the natives' sacred sites. I have tried to draw the existing constitutional law to the attention of the non-native courts. The reaction of the judges has been baleful. They have refused to listen to the law and they have attacked me personally for not taking their no for a lawful answer.
My family and I are now in exile, in Europe, along with Tsemhu7qw and his wife Lahalus, in order to defend the rule of law. We have rational explanations as to why we place such store by the rule of law. But when all the intellectual analysis has been engaged, we know now that it is not upon intellect alone that the case for the rule of law rests. For it abides in our hearts. It is a feeling: that justice must be done. It is being massively and hypocritically thwarted in Canada by the very institutions that are supposed to serve as guardians of the rule of law. The feeling that injustice must be opposed is itself self-justifying.
We know that the so-called assimilation policy of Canada has not only been unconstitutional in an objective sense. It continues in moral terms to be horrifying. Power is masquerading as law. The pogrom of the native philosophy is reaching hysterical proportions in the halls of justice. It is as if the courts sense the truth crowding them, and have in response become wild-eyed.
The point of being here in Europe is that this is where it all began. The cycle can be completed here, because this is the only place that purports to have an international court capable of providing a remedy before it is too late. Academic institutions and religious institutions are simply not capable of stopping the holocaust. All they can do is bear witness, and try to bring solace and understanding after the event. Only the law can put out the fire.
My family and I feel very alone right at this moment. We are not at all sure how much longer we will be allowed to continue. For this reason, what follows is the strategy that is being pursued in the International Court of Justice. I have set it down in technical detail, and I realize that it may be difficult to absorb in that form. But still, there come when one must be specific, if the precise path to the remedy is to be delineated. If we are not able to complete this project our hope is that others who read what follows will.