(PASSAMAQUODDY COURT, ST. CROIX RIVER, MAINE, UNITED STATES AND NEW BRUNSWICK, CANADA)

(MI'GMAQ COURT, CHALEUR BAY/RESTIGOUCHE RIVER, QUEBEC AND NEW BRUNSWICK, CANADA)

(ALGONQUIN COURT, OTTAWA AND LOWER ST. LAWRENCE RIVERS, QUEBEC AND ONTARIO, CANADA)

IN THE MATTER OF court jurisdiction under natural law in and over the unceded Indian territories of the Hudson, St. Croix, Chaleur Bay, Ottawa and lower St. Lawrence River Drainage Basins and Estuaries;

AND IN THE MATTER OF court jurisdiction under international and constitutional law's confirmation of natural law pursuant to Magna Carta, 1215, Sublimus Deus, 1537, Statute of Frauds, 1670, Mohegan Indians v. Connecticut, 1704, Cherokee Nation v. Georgia, 1831, Regina v. Cadien, 1838, and the Convention for the Prevention and Punishment of the Crime of Genocide, 1948.

Between:

MOHEGAN COURT, PASSAMAQUODDY COURT, MI'GMAQ COURT AND ALGONQUIN COURT

                                                         Native Courts

SUPREME COURT OF THE UNITED STATES AND SUPREME COURT OF CANADA

                                                         Newcomer Courts

UPON TAKING judicial notice of the suppression and genocide of the native people caused by the prematurely assumed jurisdiction of the newcomer courts, and in accordance with the accompanying reasons for judgment, this native court declares:

1. Court jurisdiction prima facie territorially is vested in the native courts and precluded from the newcomer courts; and

2. That in the event the newcomer courts are unable to agree with and help to uphold this declaration of right, this court invites the newcomer courts to join with this court in referring the contested jurisdictional issue for independent and impartial third party court adjudication in the international arena; or, in the alternative

3. That in the event the newcomer courts or their governments wish to submit evidence, law or argument to this native court so as to deny the premises, findings or law as expressed herein or in the accompanying reasons for judgment, they are welcome to do so upon notifying this court of that intent.

February 2, 1997.

"Sachem Ron Roberts"                          "Gary Metallic Sr."
Sachem Judge, Mohegan                          Sagamaq Judge, Mi'gmaq

"John Stevens"                                "William Commanda"
Sagamore Judge, Passamaquoddy                  Ogima Judge, Algonquin

Court Addresses:

1. Registrar (USA Territories), c/o Mohegan Court, Box 32, Granville, New York 12832 USA Telephone (518) 642-2751 Fax (518) 642-3201; and/or

2: Registrar (Canada Region), c/o Box 140, 39 Murray Road, Robinsonville, New Brunswick, Canada e0k 1e0 Telephone (506) 753-7310 Fax (506) 753-7315.

To this native court, as we hope and trust the newcomers' courts will learn to understand and respect, the Justice Way is one and the same as the Nature Way or the Native Way. It is the way of natural law.

Until recently when native people spoke of the Nature Way or the Native Way, there was hardly any basis for a communicative connection with the newcomers. The newcomers seemed unable to hear. It was rather like what Friedrich Wilhelm Nietzsche said:

No one can draw more out of things, books included, than he already knows. A man has no ears for that to which experience has given him no access.

Science, education and knowledge have evolved to the point where humanity is on the brink of discovering what it already knew, before the alienation of humankind from nature: there is a unity and a harmony that science no less than religion can suspect or feel even if not quite yet fully understand.

If that intuition can be translated into experience for modern humankind, it will be in virtue of tapping into the collective unconscious that unites humanity at its genetic roots. It will entail a rediscovery of what some few native people have never lost, but which was once common for all of humanity, before the sense of awe based upon respect was superseded by the conceit of the dominance of nature.

The native prophecies forecast this time. They also forecast that when this time did come humankind and nature would be on the cusp of annihilation and despoliation.

Before the European invasion of North America native society was true to its natural law principles. People, earth, sky and water were free and unpolluted. The jurisdiction of the native courts helped to maintain this condition; for the native courts oversaw the application in practice of the natural law principles.

In contrast with the prominence of the court function the government function was relatively minor, except in time of war. In peacetime it was not thought necessary to survival in good health for native society to be very much engaged in the making of new and detailed laws. Rather, the harmonious application in practice of the old laws, the finite set of natural law principles, sufficed to maintain the balance.

After the European invasion the policy and practice of some of the newcomers was to covet the earth, sky and water by eradicating, or at least transforming, native society. The aboriginal people became victims of genocide; and the earth, sky and water of genocide's companion: ecocide.

Since native society was held together by the court function, eradicating or transforming native society meant suppressing native society's court function. The specific way has been to substitute, prematurely and therefore illegally, the jurisdiction of the newcomers' own courts, and in a complementary and distracting way to foster native preoccupation with new governmental functions.

To this end, the newcomer governments and courts in the United States and Canada constitute and promote Indian governments that are federally organized, recognized and funded, to the virtual exclusion of the native courts in the traditional jurisdiction context. These federally organized and recognized native governments function as the newcomers' agents in the application of federal law. That application is in many regions illegal, because premature, and of genocidal and ecological consequence.

By being premature, the territorial application of federal law can be contrary to natural law, international law and constitutional law. It depends upon whether the native people have consented. Purchase is, and ever since the European invasion began has been, the specific legal means for ascertaining the consent.

Furthermore, the sufficiency of the consent-the evidence and deliberation of its existence-is itself governed by specific positive law.

In essence, territory is off-limits to newcomers until it has been purchased by the newcomers' governments from the natives. And purchase is a question of mixed fact and law.

This court finds, based upon judicial notice, there has been no such purchase relative to the territories encompassed by the Ottawa, St. Lawrence and Hudson River drainage systems, Manhattan Island aside. And certainly there has been no third party adjudication of this issue.

The axis geographically described by the Ottawa, St. Lawrence and Hudson River drainage systems marks the riverine highway system that united the Algonkian-speaking linguistic family of north eastern North America, including what became known as the Mohegans, the Passamaquoddies, the Mi'gmaqs and the Algonquins. To the west lie the territories of the Iroquois-speakers. Of the Algonkian family of native nations, the Mohegans represent the southern reach, the Algonquins the northern and the Passamaquoddies and Mi'gmaqs the central and eastern. Together they are a natural collective entity of affiliated people, united not only by language but by genetics, history, culture and shared institutions for dispute resolution-the council fire system-such as represented by this native court.

The territories of each of the confederated native courts speaking collectively and in solidarity by means of these reasons for judgment remain unceded. So far as known to the oral history and personal knowledge, which together define this court's experience and understanding, there has been no purchase.

The New Brunswick region of the Passamaquoddy territory has not even arguably been ceded by the Passamaquoddies. As for their Maine region, the Maine Settlement purchase of 1980 was induced by fraud, duress and undue influence. The Passamaquoddies were coerced into signing by the fraudulent misrepresentation that they were not entitled to third party adjudication, but rather were at the mercy of their jurisdictional adversaries: the governments and courts of the newcomers. For this reason the Maine Settlement is unenforceable against objecting natives.

The Mi'gmaqs, Gespegewaqi District, which takes in the Restigouche River/Chaleur Bay drainage basin in what is now the Gaspe region of Quebec and the northern region of New Brunswick, were coerced in 1779 into signing a peace and friendship treaty that does not even purport to be a purchase. And that signing was done under the newcomers' threat that 10 Mi'gmaqs being held hostage literally would be murdered if the signing were not done. That treaty therefor also is not relevant to the jurisdiction issue raised and addressed in these reasons for judgment.

There is no purchase even arguably referable to either the Hudson River drainage basin of the Mohegans or to the Ottawa and St. Lawrence River drainage basin of the Algonquins.

Since the courts of the natives and the courts of the newcomers equally are interested in the answer to the purchase question, each court system, including this court, equally is biased in addressing and resolving it. For this reason, the law is that this question can only be answered as to any given territory by an outsider-an independent and impartial third party court-one the existence of whose jurisdiction does not itself turn upon a prejudgment of the very issue in contention: which court system, native or newcomer, has jurisdiction?

The assumption by the newcomers' courts that they have the jurisdiction to decide the question of their own jurisdiction when in competition with the jurisdiction of the natives' courts, is the means to the genocide and the ecocide. That assumption is how those crimes against humanity and nature are perfected, in North America.

And because of the influence of the United States and Canada upon world affairs, the successful and consistent apprehension of those crimes in the global village will not occur unless and until those crimes are apprehended here, at home.

By this route we arrive at the actual identity of the natural law principles. 1st and greatest, because all others depend upon it for their continuity and integrity, is this principle of third party adjudication.

In native society those performing the court function often, but not always, were hereditary personages. If a particular eldest child of the arbitrating family were not inclined or predisposed well to implement the function, alternative persons could and would be substituted.

But always adjudication was implemented with the advice, guidance and wisdom of the elders, those in whom was reposed the sacred trust of civilization: the continuity of the genealogical information, history, traditions and values. The carrying out of this court function was not meant to be profitable. It was a burden, a responsibility, a duty, and a privilege.

The crucial feature was that the person doing the deciding not be interested, in the sense of either advantaged or disadvantaged by the resolution of the issue in dispute. Sometimes there were issues that transcended whole communities. For this reason, among others such as social and economic reasons, communities were associated. The so-called Indian confederacies served this function, both as courts of appeal from individual community resolutions, as well as in the capacity of courts of first instance relative to disputes that efficiently could not be approached at the community level. Great councils met, at which the wisdom of the communities was pooled, and applied.

Even though native people have experienced an inconsistency between principle and practice at the hands of the newcomers, we understand that the legal heritage of the newcomers is the same as ours on the 1st principle of natural law: third party adjudication. We are informed that in Roman Law it was said nemo potest esse simul actor et judex (no one can be at once suitor and judge). Reputedly, the philosopher David Hume stated in reference to the principle of third party adjudication: "Here then is the origin of civil government and society." We concur.

This then is the 1st principle of natural law: third party adjudication. And what is natural law?-the law that is both anterior and superior to all other forms of law, a set of legal principles rooted in the nature and reason of humankind. This is the law to which the suppressed native North Americans' courts hold true.

The time has come for the native courts, with respect, to remind the newcomers' courts of the natural law basis for all law, for the good of all natives and newcomers alike, and for the health of their shared environment.

It is not necessary to achieve this purpose that this court oppose any native government that is carrying out modern governmental functions, for there is no conflict between this court's ancient jurisdiction and the functions of modern native governments. Modern native governments by definition do not assert, never asserted, and could not in terms of their own constitutions ever have asserted, the ancient court traditional function. From the outset of their organization, recognition and funding by the newcomers' governments, the modern federally recognized native governments have been motivated and funded to steer native society away from exercising its traditional court function vis-à-vis yet unceded native territory. From the outset, the suppression of the native court function has been the excuse used to pretend there was judicial vacuum into which the newcomers rushed to fill the need for adjudication. From the outset, as the alternative to continuing the more direct form of genocide by wholesale outright killing, this judicial usurpation by the newcomers' courts has been the modus operandi of the genocide in North America.

For this reason the jurisdiction of this native court supplements and complements, but does not intend to compete with the modern native governmental function. To the extent that the jurisdiction of this native court competes or conflicts with any other jurisdiction, it is with the usurped jurisdiction of the newcomers' courts, and then relative only to territory that has not been purchased by the newcomers from the natives in accordance with natural law, international law and constitutional law.

Since natural law is at the root of all law the primary mandate of this court, when exercising its jurisdiction, is to implement the 4 principles of natural law relative to territory that has not, in its view, or in the view of the independent and impartial third party adjudicator under the 1st principle of natural law, been ceded to the newcomer governments in accordance with the following 3 principles of natural law.

The 2nd great principle of natural law is that truth is the summit of being, and justice is the application of truth to affairs.

3rd, respect is the imperative of being, and law worthy of the name is the application of respect to affairs.

4th, law begets liberty if but only if the law is based upon the 1st, 2nd and 3rd principles:-if, but only if, the system of third party adjudication implements justice as applied truth and law as applied respect. Otherwise, law begets nothing more than the illusion of order, but which inherently is unstable. Inevitably it leads to disorder, for life without liberty is offensive to the human condition and will, eventually, be rebelled against.

This is what the rule of law means, at least to the native people organized in their traditional native courts.

All of these principles of natural law as traditionally implemented by the native courts are mirrored in the newcomers' international law and constitutional law, which binds the newcomers' courts. But before engaging the details of the substantive provisions of that international law and constitutional law, it is absolutely crucial to comprehend exactly the specific legal sense in which the newcomers' courts are indeed well and truly bound.

So far as we are aware, no jurist has expressed this status with greater legal precision than E. V. Dicey, in a lecture given to the Harvard School of Law, published in 1920. He stated:

Judge-made law is subject to certain limitations. It can not openly declare a new principle of law: it must always take the form of a deduction from some legal principle whereof the validity is admitted, or the application or interpretation of some statutory enactment. It can not override statutory law. The courts may, by a process of interpretation, indirectly limit or possibly extend the operation of a statute, but they can not set a statute aside. Nor have they in England ever adopted the doctrine which exists, one is told, in Scotland, that a statute may be obsolete by disuse. It can not from its very nature override any established principle of judge-made law.

Law that by intent is definitive of the character of the social contract upon which the society is premised, is, once declared for the first time, thereafter continuous. It continues until the people of the society or of the group of societies as a whole, change it, by due process. The change process does not number among its legitimate mechanisms judicial departure from, or willful blindness to, the established law.

This process of fundamental and constitutive change is not left up to panels called judges. Their's is to apply previously established law, once it has been established. If they are first upon the scene of any given issue, judges can declare constitutive law, such as by recognizing certain principles, which is the essential mechanism of the common law. But thereafter, once the law has for the first time been ascertained, whether by originating statute or common law declaration, the constitutive natural law, international law and constitutional law is not subject to judicial change. Only statutory repeal is competent to that sort of profound change; judicial activism is not. Even less, are judicial assumptions made in a condition of unawareness of the previously established constitutive law.

This point of jurisdictional competence was settled, in terms of the Anglo-American legal tradition, by the original and authoritative precedent of Campbell v. Hall (1774), 98 er 848. In this, Lord Mansfield, speaking for the imperial Privy Council of Great Britain, held that once the king by exercise of the royal prerogative has conceded constitutive rights or liberties, such as in that case pursuant to the Royal Proclamation of 7 October 1763, thereafter the royal prerogative is exhausted upon the conceded issue. If at any future time the conceded rights or liberties are to be repealed or altered in a profound particular (as contrasted with merely regulated or extended in a more cosmetic sense) the repeal or alteration can only be by way of international convention or statutory constitutional enactment.

In the Anglo-American legal tradition the newcomers' court function traces its root to that same royal prerogative as was held in Campbell v. Hall inherently to be limited to recognizing existing law, but not to repealing previously established law. The kings' courts were created pursuant to the prerogative to administer laws, not to substitute themselves for the people as lawmakers. As Campbell v. Hall makes apparent, even the king himself could not directly take back the native rights conceded under the Royal Proclamation of 1763.

All the more so is it impossible for the king's courts to achieve indirectly that which the king could not achieve directly. And what applies to the king's courts applies to any and all other courts, for the limitation is inherent in the court function.

If it were not so limited courts would be rulers of the people, making their own law, rather than servants of the people administering the peoples' law.

The simple point is that natural law, international law and constitutional law rights, once conceded, cannot easily be withdrawn by tyrants or substitute tyrants. The withdrawing, if it is to occur at all, can only be achieved by the people. The form of the withdrawal can only be by way of formal international law convention and constitutional law repeal. This feature is common to native and newcomer law and government, and is probably a universal characteristic of democratic human social organization.

The familiar example of this process is the American Revolution that ended the first British Empire. The American colonists felt that constitutive rights and liberties were guaranteed them under previously established natural law, international law and constitutional law. They reasoned that the king and his courts were departing from that previously established law, and that this departure forfeited the jurisdiction of that king and those courts. The issue was taken to the people, who apparently supported it by the Declaration of Independence, which acknowledged the forfeiture, and made the former subject colonies into independent sovereign states. Great Britain acknowledged this by the Peace of Paris.

A war was necessary to perfect the change vis-à-vis America, because at that time there was no tribunal established to carry out the function of third party adjudicator as between Great Britain and the Continental Congress of the associated states, which is to say as between the people of the British Isles and the people of Great Britain in America. The rule of law had not, apparently, at that juncture in world history evolved a judicial institution capable independently and impartially of resolving the disagreement by peaceable judgment in lieu of war. History repeated itself with the American Civil War.

Today, Canada is facing the same kind of challenge: that posed by the prospect of Quebec secession, and the reassertion of yet unceded native sovereignty. No states are threatening to secede from the United States, but the issue of native sovereignty remains vital there no less than in Canada.

The question, therefore, becomes whether the rule of law and its administrators sufficiently have matured in the interval since the Civil War to allow reason to supplant force majeure as the resolution mechanism.

The issue of jurisdictional competence is so very central and important to this question because an erroneous assumption appears to have crept into and to have infected the North American judicial system, with disastrous consequences for the moral structure and physical integrity of North American society in general. Setting affairs right, now, depends upon examining that erroneous character of that assumption in light of existing natural, international and constitutional law, and correcting the identified mistake. This is the purpose, ultimately, of the present renewal of the long-suppressed jurisdiction of the native court system, as represented by these reasons for judgment.

Existing natural law, international law and constitutional law more adequately should have tempered the newcomers' conduct toward both the native North Americans and the North American environment. Lamentably, the newcomers often have been and in some regions still are in breach of natural, international and constitutional law. When the newcomers systematically and in a coordinated fashion breach the natural, international and constitutional law in any given region, they do so by applying domestic rules of conduct that pretend to be law, but which are not really law, precisely because they conflict with the anterior and superior natural law, international law and constitutional law.

When this occurs the rule of law is in abeyance, overrun by mere policy and practice masquerading as law. To the extent that this anti-law domestic "law" is allowed to supersede the consensus of natural law, international law and constitutional law, the rule of law is negated, and the harmonious survival of humankind in nature is jeopardized.

A right is that which the law permits one human or a group of humans to do, and which obliges others not to interfere with the doing. The most basic right in natural law is the natural concomitant of the 3rd principle of natural law: respect is the imperative of being, and law worthy of the name is the application of respect to affairs. Thus, the basic right of those humans first on territory is the right to be respected by subsequent newcomers, in terms of the first occupants' original jurisdiction and possession.

The counterbalancing obligation upon the newcomers is to respect the first right, specifically by not assuming original jurisdiction and possession. Newcomers legally can derive all or a portion of the original right, by purchase. But they cannot, legally, have the original right simply by assuming in policy and practice that the first humans are not vested with it. To do so would be to deny the humanity of those first humans, which breaks the 3rd principle of natural law. Again, respect is the imperative of being, and law worthy of the name is the application of respect to affairs.

It would be beneficial for all of humanity were the newcomers' society in North America now to address and correct its historic breach of the existing law. Society can do this by conforming to the existing law, or by due process repealing or amending the existing law. It can adopt a combination of both devices. But society cannot, legally, do this by having its courts rise above the existing law.

To do that strikes an unmistakable and undeniable posture of opportunism and lawlessness, of might being right; a posture that is so close to the heart of the society as to set a standard which negates the moral structure which makes and keeps the society a society. It is in this sense that Hume was being precise for legal purposes when he identified the true application of law under the system of third party adjudication as "the origin of civil government and society."

North American society leads humanity's evolutionary advance in the field of human and environmental rights, and neither genocide nor ecocide will be apprehended generally in the world so long as the leading exponents of its apprehension, the United States and Canada, continue to stonewall the issue at home. The addressing of this issue, in accordance with the rule of law, will signal a new beginning for humanity, a rational basis upon which to have hope for the harmonious survival of humankind in nature. With the passing of the genocide can pass from history the ecological assault upon the planet, that excess which arises in consequence of the same immature, immoderate and uncontrolled attitude in human society as that which results in the genocide.

For these purposes the native people presently feel the need to reinstitute, in practice, their original natural law right of jurisdiction, at least in regions where Indian treaties relinquishing that original right either have not yet been made or, if made, made invalidly, such as under fraud, duress or undue influence, or where there has been a failure of consideration.

Specifically, the natives upon the remaining unpurchased lands propose to exercise their inherent and never-surrendered right of court jurisdiction, so as to declare the nature of existing law, and to order the repair of its breach in various ways. Most importantly, they expect and will invite the courts of the newcomers to show comity, reciprocally by assisting with the enforcement of such native court judgments, as against the newcomer courts' own people, the newcomers.

It is conceivable that the newcomers' courts on this continent may disagree with these reasons for judgment that existing law precludes their assumption of jurisdiction relative to territory that has not been purchased by the newcomers from the natives.

But it is not open to the newcomers' courts to pretend to abrogate unto themselves the third party jurisdiction function. The newcomers' courts are not third parties. They are interested parties. If the rule of law is to function at all, it will only be in virtue of both the newcomers' and the natives' courts submitting the impasse for third party adjudication.

When that happens vis-à-vis North America, humankind will have made an evolutionary advance of structural consequence. Human evolution has moved beyond genetic mutation. Its future lies in the evolution of human institutions. Preeminent among these institutions is the rule of law administered by third party adjudication: the pragmatic guarantor of justice as applied truth, of law as applied respect, and of order as dependably stabilized liberty.

The natives wish it to be well understood that by identifying the truth and seeking respect in this fashion they do not seek to dispossess the trespassing newcomers, whose governments and courts have in the past usurped the natives' original jurisdiction and thereby denied the natives' humanity.

The natives and their traditional courts accept the facts of history as being irreversibly albeit illegally accomplished, but nevertheless seek for the future a more balanced native and newcomer relationship, one that more faithfully conforms, in alternative ways, with the spirit of the law and justice which all too often has been breached. In contemplation is a viable and modern service economy, in place and in stead of the illegally destroyed aboriginal economy, in circumstances where the new economy respects the integrity and the sanctity of the land, in perpetuity.

This native court turns now to the details of the international law and constitutional law.

In the Anglo-American legal tradition which applies in North America, in 1215 Magna Carta settled that no person is above the law, not even the king, and therefore none other. Judges are "persons" for this purpose. And just because theirs is the function of interpreting the law, judges are not placed above the law. They can not change the law simply by making it conform to their sentimental inclinations. That was Dicey's point, as it was the point of Campbell v. Hall, and it has a deep historical root. Magna Carta represented nothing more than a restatement of the natural law principle of respect, from which principle grows the axiom that all men are created equal. And for all that human societies keep forgetting this root of their existence, they also keep reinventing it; Magna Carta and the American Revolution being but two, albeit preeminent, examples.

The natural law principle of law as applied respect came to be applied to North America in the form of international and constitutional law with the enactment in 1537 of the papal bull Sublimus Deus. Based upon recognizing the human status of the native people, this statute had two counterbalanced features. It recognized and affirmed the natives' legal interest in possession, and also their liberty or jurisdiction to govern themselves. Thus, it enacted:

We...consider, however, that the Indians are truly men...we define and declare by these letters, or by any translation thereof signed by any notary public and sealed with the seal of any ecclesiastical dignitary, to which the same credit shall be given as to the originals, that notwithstanding whatever may have been said to the contrary, the said Indians...are by no means to be deprived of their liberty or the possession of their property...; and that they may and should, freely and legitimately, enjoy their liberty and possession of their property; nor should they be in any way enslaved; should the contrary happen, it shall be null and of no effect.

Of the two recognized attributes, possessory and jurisdictional autonomy, the Order in Council (Great Britain) dated 9 March 1704 in the matter of Mohegan Indians v. Connecticut concerned the latter. Henceforth under the consensus of international law and constitutional law the native nations have been confirmed as juristically sovereign in relation to arguably yet unpurchased territory. Juristic sovereignty is gauged and measured by the existence of the right to third party adjudication, which is what the order in council confirmed to the natives. That confirmation arose as follows.

In the aftermath of the European invasion of the Hudson River valley, for safety and survival some of the Mohegans were dispersed to various places. Some went to what is now Connecticut. Others went to what is now Massachusetts and later to Wisconsin. Others scattered throughout North America. Some remained in the Hudson River valley, but entered an era of suppression and underground existence. The Sachem Judge of the Mohegan Court that is a constituent of the Confederate Native Court endorsing these reasons for judgment, is of the Hudson River Mohegans who never left the New York homeland.

The part of the Mohegan nation that emigrated to Connecticut made a treaty with that state when it was still a colony in the 1690s. The Mohegans in Connecticut interpreted that treaty as a trust deed given by them for the purpose of ensuring that the territory be held in trust and protected against newcomer settlements. In contrast, Connecticut interpreted the same transaction as being intended to give it a free hand in opening the territory up for settlement and development. The natives were not content with leaving the adjudication to the court of Connecticut, and the newcomers were not content with leaving the adjudication to the native court.

The Mohegans then applied to Queen Anne in Council to confirm their right to third party adjudication. Connecticut objected, on the ground that the newcomer court of Connecticut was capable of carrying out the third party adjudicator function. The natives countered that the Connecticut court could not possibly be seen to be independent and impartial in a matter so close to its own territorial jurisdiction and therefore, in a sense, its own existence. Queen Anne in Council agreed with the natives.

In consequence, the Queen by the above mentioned order in council constituted a special international law and constitutional law court as the third party adjudicator. At the time, the Queen had jurisdiction in terms of international law and constitutional law to create new law of structural consequence. Hence, when the 1704 order in council was enacted it literally became the equivalent in significance and weight as the papal bull Sublimus Deus, 1537 and the Statute of Frauds, 1670. The Order in Council (Great Britain), 1704 became the third cornerstone of the rule of law edifice governing old world and new world relations.

It enacted:

Upon reading this day a Representation from the Lords Commrs 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 Commn 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 Govr 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 Connecticut Colony in that behalf. Her Majesty in Councill approving the said Representation, is pleased to Order and it is hereby Ordered, That the said 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. [emphasis added]

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 the Corporation hath done by the Act mentioned in the Case [in which "Act" Connecticut legislatively purported to exercise jurisdiction over the land claimed by the Indians] is an apparent Injury to them and Her Majesty notwithstanding 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. [emphasis added]

The essence of this 1704 legislation is that it not only recognized and affirmed the remedy for enforcement of respect for native rights as against newcomer rights as being third party adjudication, but it also recognized and affirmed that Connecticut possessed no legislative jurisdiction to derogate from either the right or the remedy. As for that remedy of third party adjudication, precisely because Connecticut and the Mohegan nation mutually were independent and autonomous states for juristic purposes, neither state could be compelled to accept the jurisdiction of the courts of either in a dispute involving both.

Nor could the natives' jurisdictional competitor enact laws that could possibly derogate unilaterally from the internationally and constitutionally recognized autonomy of the natives. Thus, the 1704 legislation had not one or two, but three crucial features. It not only recognized and affirmed the native right and, in addition, the complementary remedy of independent and impartial third party adjudication to protect that right, but it also recognized and affirmed that the newcomer government had no jurisdiction to legislate in derogation of this legal status quo. Reconsider carefully, in this light, the confirmation of these principles by the last clause in the quoted passage:

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. [emphasis added]

Most importantly, what the newcomers' governments are incapable of doing directly by legislation, their courts are incapable of doing indirectly by judicial activism. Just as native governmental jurisdiction upon yet unpurchased land precludes the assumption of federal legislative jurisdiction, so also the native court jurisdiction and the complementary right of third party court adjudication preclude the assumption of newcomer court jurisdiction.

The principles confirmed for international law and constitutional law purposes by the Order in Council (Great Britain) of 9 March 1704 in the matter of Mohegan Indians v. Connecticut was itself reconfirmed by the Privy Council, the highest court in the British Empire, by subsequent Order in Council (Great Britain) of 15 January 1773 in the matter of Mohegan Indians v. Connecticut.

The Boston Treaty, 1725 illustrates how, if at all, the newcomers' courts legally could acquire jurisdiction. This treaty, which was of the peace and friendship variety rather than a purchase, and which was made between the Crown and several of the New England native nations, specifically contained clauses relative to the court jurisdiction issue. On the 15th day of December 1725 at Boston, Governor William Drummer of the Massachusetts Bay Colony and the participating native nations exchanged promises. Those natives promised to:

Erase and for bear all Acts of Hostility, Injuries and discords towards all the subjects of Great Britain and not offer the least hurt, violence or molestation to them or any of them in their persons or Estates, But will hence forward hold and maintain a firm and Constant Amity and Friendship with all the English, and will never confederate or combine with any other nation to their prejudice....

That His Majesty's Subjects the English Shall and may peaceably and quietly enter upon Improve and forever enjoy all and singular their Rights of God and former Settlements properties and possessions within the Eastern parts of the said province of the Massachusetts Bay together with all Islands, inletts Shoars Beaches and Fishery within the same without any molestation or claims by us or any other Indian and be in no ways molested interrupted or disturbed therein.

Saving unto the Penobscots, Naridwalk and other Tribes within his Majesty's province aforesaid and their natural Descendants respectively all their lands, Liberties and properties not by them convey'd or sold to or possessed by any of the English Subjects as aforesaid. As also the privilege of fishing, hunting and fowling as formerly.

If any Controversy or difference at any time hereafter happen to arise between any of the English and Indians for any reall or supposed wrong or injury done on either side no private Revenge shall be taken for the same but proper application shall be made to His Majesty's Government upon the place for Remedy or induse there of in a due course of Justice. We submitting ourselves to be ruled and governed by His Majesty's Laws and desiring to have the benefit of the same.

But it was not just the possession of their respective lands that reciprocally was secured to the natives and to the newcomers. As can be seen, the natives were assured of all their unsold "lands, Liberties and properties." The continuity of their jurisdiction, no less than of their possession, was guaranteed the natives, free from newcomer usurpation, the same as the newcomers were assured of their jurisdiction as well as their possession relative to lands that had been purchased. The natives continued to govern and adjudicate for themselves upon their unsold territory, just as the newcomers would govern and adjudicate for themselves upon the purchased territory. In the event of conflict, private revenge was precluded. And as to whether a given territory had in fact been sold and purchased, that was to be "ruled and governed by His Majesty's Laws," which is to say in accordance with the principle of third party adjudication as settled by the Order in Council (Great Britain) of 9 March 1704 in the matter of Mohegan Indians v. Connecticut.

The Governor signed a separate confirmation of the natives' promises, also on the 15th of December 1725. In this, he reciprocally promised:

That the said Indians shall Peaceably Enjoy all their Lands & Properties which have not been by them Conveyed and Sold unto, or possessed by the English & be no ways Molested or Disturbed in their planting or Improvement. And further that there be allowed them the free Liberty and Privilege of Hunting Fishing & Fowling as formerly.

And whereas it is the full Resolution of this Government that the Indians shall have no Injustice done them respecting their lands...therefore assure them that the several Claims or Titles (or so many of them as can be then had or obtained) of the English to the Lands in that part of this Province shall be produced at that Ratification of the present Treaty by a Committee to be appointed by this Court in their present Session, and Care be taken as far as possible to make out the same to the satisfaction of the Indians and to distinguish & ascertain what Lands belong to the English in Order to the effectual prevention of any Contention or Misunderstanding on that Head for the future.

These fundamental principles were all reconfirmed by the Royal Proclamation of 1763, of which constitutional instrument the Supreme Court of the United States in Mitchel v. United States, 9 Peter's 711, 745, 746, 749, 755 (1835) said:

[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 subsequent. 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.

Marshall v. Clark, 1 Kentucky 77, 80-1 (Court of Appeal, 1791) held:

The dormant title of the Indian tribes remained to be extinguished by government, either by purchase or by conquest, and when that was done it enured to the benefit of the citizens who had previously acquired a title from the crown, and did not authorize a new grant of the lands as waste and unappropriated...the Indian title did not impede either the power of the legislature to grant the land to the officers and soldiers, or the location of the lands on treasury warrants, the grantee in either case must risk the event of the Indian claim, and yield to it if finally established, or have the benefit of a former or future extinction thereof.

The settlement on this [unpurchased] land was against the law. It was an offense which tended to involve the country in blood.

In 1761, the soil belonged to the aborigines.

We are no enemies to bona fide improvements, restricted within rational limits. But these were never deemed to extend beyond the lands purchased from the Indians. Such a system would be wild, as well as highly impolitic, and would tend to deluge the country in blood, by provoking the savage nations to hostilities....[If a grant to a third party was made] with full knowledge [of the unsurrendered Indian possession]...The patent would enure to the benefit of the grantee, when the lands afterwards came to be purchased from the Indians.

[The colonial governments] bought the land from the natives, and gave them valuable considerations therefor. Herein they evinced a strong sense of moral honesty, as well as sound extended policy.

[The Indian interest] is certainly to be respected by all courts.

Every requisite to the formation of a contract is found in the proceedings between the then colony of New Jersey and the Indians.

[Grants] for lands not purchased of the Indians, and which the proprietaries [William Penn] did not know at the time of granting to be within the Indian limits, pass no rights.

The treaty is the contract of both parties.

[The Indians] were admitted to be the rightful occupants of the soil, with a legal as well as a just claim to retain possession of it, and to use it to their own discretion. [The Indian interest] is certainly to be respected by all courts. [Regarding the Royal Proclamation of 1763] The authority of this proclamation, so far as it respects this continent, has never been denied.

As to lands surveyed within the Indian boundary, this Court has never hesitated to consider all such surveys and grants as wholly void.

[The proposition] that the Indians were mere savage beasts without rights of any kind, have long since been exploded, as the result of avarice, fraud and rapacity; and that those who have acted upon them are at this day deemed by the people of the United States more savage and cruel than those they have despoiled...[The Indians have] acknowledged rights...which the courts of justice are bound to regard...And what is this Indian title?...the right to use and occupy it within their own territorial limits, unmolested by our citizens.

...if it be Indian property in land, it is protected by our constitution and laws.

[The Indians have] an unquestionable, and heretofore unquestioned right to the lands they occupy....Indians have absolute rights of occupancy to their lands as sacred as the fee simple, absolute of the whites....this occupancy belongs to them as a matter of right, and not by mere indulgence. They cannot be disturbed in the enjoyment of it, or deprived of it, without their free consent, or unless a just and necessary war should sanction their disposition....These grants [to third parties prior to treaty] have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy....The treaties made with this [Indian] nation purport to secure it certain rights. These are not gratuitous obligations assumed on part of the United States. They are obligations paid by the Indians by cession of part of their territory...a contract....The contract is made by way of treaty.

[Discovery] could not affect the rights of those already in possession...It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell...They [the first crown grants] purport, generally, to convey the soil, from the Atlantic to the south sea. This soil was occupied by numerous and warlike tribes, equally willing to defend their possessions. The extravagant and absurd idea, that the feeble settlements on the sea coast, or the companies under whom they were made, acquired legitimate power by them to govern the people, or occupy the lands from sea to sea, did not enter the mind of any man. They were well understood to convey the title which, according to the common law of European sovereigns respecting America, they might rightfully convey, and no more. This was the exclusive right of purchasing such lands as the natives were willing to sell. The crown could not be understood to grant what the crown did not affect to claim; nor was it so understood...These motives for planting the new colony are incompatible with the lofty ideas of granting the soil and all the inhabitants from sea to sea. They demonstrate the truth, that these grants asserted a title against Europeans only, and were blank pieces of paper so far as the rights of the natives were concerned....The Indian nations possessed a full right to the lands they occupied, until that right should be extinguished by the United States, with their consent....Instead of rousing their resentment, by asserting claims to their lands, or to dominion over their persons, their alliance was sought by flattering professions, and purchased by rich presents. The English, the French, the Spaniards, were equally competitors for their friendship and their aid...it is the King's order to all his governors and subjects to treat the Indians with justice and humanity, and to forebear all encroachments on the territories allotted to them...Far from asserting any right of dominion over them, Congress resolved, `that the securing and preserving the friendship of the Indian nations appears to be a subject of the utmost moment to these colonies.'...Have the numerous treaties which have been formed with them...been nothing more than an idle pageantry?...Except by compact we have not even claimed a right of way through Indian lands....What is a treaty? The answer is, it is a compact formed between two nations or communities, having the right of self government.

This treaty...is obligatory as public law, but also partakes of the character of a contract.

The colonial charters, a great portion of the individual grants by proprietary and royal governments, and still a greater portion by the States of this Union after the Revolution, were made for lands within the Indian hunting grounds. North Carolina, and Virginia, to a great extent, paid their officers and soldiers of the revolutionary war, by such grants; and extinguished the arrears due the army by similar means. It was one of the great resources that sustained the war, not only by these states but others. The ultimate fee (encumbered with the Indian right of occupancy) was in the crown previous to the Revolution, and in the states of the union afterwards, and subject to grant.

Great Britain never took one foot of their land by force: she chose rather to adopt a more enlarged and liberal policy...private property is sacred...Great Britain, greatly to the praise of her justice and humanity, chose to respect them in that light. Their rights must be respected.

Here then were two parties capable of contracting; the one having the legal title and ultimate right to the land which was the subject of the contract; the other having the right of possession or occupancy, which has always been respected.

The European governments whose people discovered and made settlements in North America, claimed the sovereignty and of the country, and the ultimate title, but not the immediate right of possession, to all lands within their respective limits....It is true, that the British crown granted charters and issued patents for large tracts of land before the Indian right had been extinguished; and these instruments purported to convey the property in fee....But these grants were not intended to convey, and the grantees never pretended that they had acquired an absolute fee in the land. They neither took nor claimed any thing more than the ultimate fee, or the right of dominion after the Indian title should be extinguished.

The government, we know, always made it their care to protect the Indians, so far as they could, in the enjoyment of their property, and to guard against them being imposed upon and dispossessed by the white inhabitants...we cannot be supposed to be ignorant of the general policy of the government, in regard to the Indians, so far as has been manifest from time to time by orders of council and proclamations, of which all people were expected and required to take notice.

After the war of 1756, by the treaty concluded in 1763, Spain ceded to Great Britain, Florida Fort St. Augustin, the Bay of Pensacola, and all that she possessed on the continent of North America, to the east or south-east of the river Mississippi. At the same time, France also ceded to Great Britain the whole of New France, and all of that portion of the province of Louisiana, lying upon the east side of the Mississippi river, except the island of New Orleans. Great Britain, by these concessions, became the owner, subject to the Indian right of occupancy of all the land between the Mississippi river and the Atlantic ocean....[emphasis added]

Let us refer to the proclamation of George iii, already referred to, as having been made on the 7th of October, 1763. 5 Hall Law Journal, 405; 1 Lourie, State Papers, 30. By that proclamation, four distinct and separate governments were created and established within the countries and islands, then recently ceded and confirmed to Great Britain by the treaty of Paris. These were Quebec, East Florida, West Florida, and Granada. The limits of each of these were practically defined. We have no concern with any of them but West Florida, and of this, it is enough to say, that its northern boundary was fixed at latitude 31º north. This proclamation then goes on to declare, among other things, "that 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 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."

It then 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, beyond the bounds of their respective governments, as described by their commissions." It further declares, "that, for the present, all the lands not included within the limits of said new governments, shall be reserved under the sovereignty, protection and dominion of the crown, and forbids all purchases and settlements beyond those limits, without special leave and licence first obtained." 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.

The Indian title to the country in which this tract of land lies, was not then extinguished. In point of fact, it was not extinguished until May 1777, when the Choctaws relinquished their title to it, by a treaty at Mobile with the British superintendent of Indian affairs....

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.

In the war between the French and the Natchez tribe of Indians, which terminated about the year 1730, in the extinction of that tribe, the Choctaws were the allies of the French, and gave them very efficient aid. It is probable from the fact of the treaty made by the British with them at Mobile, in 1777, before mentioned, that they succeeded to and occupied the hunting grounds of the Natchez, in virtue of the conquest. They do not appear to have been ceded to any one. 1 Martin's Hist. Louisiana, 280-287; 1 Monette, 274. Be this as it may, 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.

The Indians have an interest in the soil...and the Government of the United States has never assumed to deprive them of that right except by contract founded on sufficient consideration.

There is nothing here but the mere execution of a deed in a manner that could bind no one but himself....It is not proved or shewn how, or in what manner [the Indian chief Theyandenega or Captain Joseph] Brant had or could have had such authority [from the Indian community to sell] mentioned.

[Until] acquired by purchase from the aboriginal tribe to which it had belonged [land was not available for disposition by the crown government to third parties.]

....will it be contended that the territorial rights, political organization such as it was, or the laws of the Indian tribes, were abrogated-that they ceased to exist when these two European nations began to trade with the aboriginal occupants? In my opinion, it is beyond controversy that they did not-that so far from being abolished, they were not even modified in the slightest degree in regard to the civil rights of the natives. As bearing upon this point, I cannot do better than to cite the decision of a learned and august tribunal-the Supreme Court of the United States. In the celebrated case of Worcester against the State of Georgia, (6th Peters Reports, pages 515-542), Chief Justice Marshall-perhaps one of the greatest lawyers of our times-in delivering the judgment of the Court, said:

America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws. It is difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered, which annulled the pre-existing rights of its ancient possessors.

After lying concealed for a series of ages, the enterprise of Europe, guided by nautical science, conducted some of her adventurous sons into this western world. They found it in the possession of a people who had made small progress in agriculture or manufactures, and whose general employment was war, hunting and fishing.

Did these adventurers, by sailing along the coast, and occasionally landing on it, acquire for the several governments to whom they belonged, or by whom they were commissioned, a rightful property in the soil, from the Atlantic to the Pacific; or rightful dominion over the numerous people who occupied it? Or has nature, or the Creator of all things, conferred these rights over hunters and fishermen, on agriculturalists and manufacturers?

But power, war, conquest, give rights, which, after possession, are conceded by the world; and that can never be controverted by those on whom they descend. We proceed, then, to the actual state of things, having glanced at their origin, because holding it in our recollection might shed some light on existing pretensions.

The great maritime powers of Europe discovered and visited different parts of this continent at nearly the same time. The object was too immense for any of them to grasp the whole; and the claimants too powerful to submit to the exclusive or unreasonable pretensions of any single potentate. To avoid bloody conflicts, which might terminate disastrously to all, it was necessary for the nations of Europe to establish some principle which all would acknowledge, and which should decide their respective rights as between themselves. This principle, suggested by the actual state of things, was, "that discovery gave title to the government by whose subjects or by whose authority it was made, against all other European governments, which title might be consummated by possession." Johnson vs. McIntosh, 8 Wheaton's Rep., 543.

This principle, acknowledged by all Europeans, because it was in the interest of all to acknowledge it, gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlements on it. It was an exclusive principle which shut out the right of competition among those who had agreed to it; not one which could annul the previous rights of those who had not agreed to it. It regulated the right given by discovery among the European discoverers, but could not affect the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell.

The relation between the Europeans and the natives was determined in each case by the particular government which asserted and could maintain this pre-emptive privilege in the particular place. The United States succeeded to all, the claims of Great Britain, both territorial and political; but no attempt so far as is known, has been made to enlarge them. So far as they existed merely in theory, or were in their nature only exclusive of the claims of other European nations, they still retain their original character, and remain dormant. So far as they have been practically exerted, they exist; are asserted by the one, and admitted by the other.

Soon after Great Britain determined upon planting colonies in America, the king granted charters to companies of his subjects who associated for the purpose of carrying the views of the crown into effect, and of enriching themselves. The first of these charters was made before possession was taken of any part of the country. They purport, generally, to convey the soil, from the Atlantic to the South Sea. This soil was occupied by numerous and warlike nations, equally willing and able to defend their possessions. The extravagant and absurd idea, that the feeble settlements made on the sea coast, or the companies under whom they were made, acquired legitimate power by them to govern the people or occupy the lands from sea to sea, did not enter the mind of any man. They were well understood to convey the title which, according to the common law of European sovereigns respecting America, they might rightfully convey, and no more. This was the right of purchasing such lands as the natives were willing to sell. The crown could not be understood to grant what the crown did not affect to claim; nor was it so understood.

Certain it is, that our history furnishes no example, from the first settlement of our country, of any attempt on the part of the crown to interfere with the internal affairs of the Indians, farther than to keep out the agents of foreign powers, who, as traders or otherwise, might seduce them into foreign alliances. The king purchased their lands when they were willing to sell, at a price they were willing to take; but never coerced a surrender of them. He also purchased their alliance and dependence by subsidies; but never intruded into the interior of their affairs, or interfered with their self government, so far as respected themselves only.

Though speaking more particularly of Indian lands and territories, yet the opinion of the Court as to the maintenance of the laws of the Aborigines, is manifest throughout. The principles laid down in this judgment, (and Mr. Justice Story as a member of the Court concurred in this decision), admit of no doubt.

The Court of Appeal for Quebec confirmed the above judgment, and added the following:

It is true that conquest gives a title which the courts of the conqueror cannot deny, whatever may be the speculative opinion of individuals, respecting the original justice of the claim which has been successfully asserted. But although this title is acquired and maintained by force; humanity, resting on public opinion, has prescribed rules and limits, by which it may be governed, and hence it is very unusual, even in case of conquest, to do more than displace the former Sovereign, and assume dominion over the conquered country, as in the instance of this country, and its cession by France.

The modern usage of nations would be violated, if private property should be confiscated and private rights annulled.-Therefore the relations of the people to their ancient sovereign or government are dissolved, but their relations to each other, and their customs and usages remain undisturbed.

If this is the actual result of conquest, and if its limits are restricted in this matter, it is manifest, that the more exclusive right of trading in furs with the inhabitants of the licenced country, does not interfere with the local or national customs of those people.

Even the United States are careful to acquire the Indian title, either by purchase or by other conventional means, before occupancy can be allowed, or public grants made.

....the government never regarded the absolute title to the soil as resting in the United States, as the proprietors in fee, until ceded by the Indians. Nor did they undertake to dispose of them by grants until the acquisition of the Indian title.

Their title was absolute, subject only to the preemptive right of purchase acquired by the United States as the successors to Great Britain.

It will generally be conceded that the Indians have the power by treaty to sell.

...the nature of the Indian title, which is certainly to be respected until legitimately extinguished, was not such as to be absolutely repugnant to seisin in fee on the part of the State.

This right could only be extinguished by voluntary surrender to the government. [emphasis added]

....the right of the Indians to their occupancy is as sacred as the fee simple of United States to the fee, but it is only a right of occupancy.

The British Crown has invariably waived its right by conquest over the all the lands in the Province until the extinguishment of what the Crown has been pleased to recognize as the Indian title, by a treaty of surrender of the nature of that produced in this case; until such extinguishment the Crown has never granted any of such lands....Indian lands were not subject to the provisions of the Acts relating to the sale of and management of the public lands...As early as 1837 was passed the Act 7 Wm. iv ch. 118, entitled "An Act to provide for the disposal of the public lands in this Province"...This Act did not affect the lands vested in Her Majesty in which the Indians were interested...This term or designation `Public Lands,' as applied to those lands the proceeds of which constituted part of the public revenue of the Province, has ever since been maintained in various Acts of the Legislature, viz., 2 Vic. ch. 15; 4 & 5 Vic. ch. 159, and 23 Vic. ch. 2.

[The Indians] were the rightful occupants of the soil, with a legal as well as a just claim to retain possession of it, and to use it according to their own discretion. In a certain sense they were permitted to exercise rights of sovereignty over it. They might sell or transfer it to the sovereign who discovered it.

These rules of policy being shown to have been well established and acted upon, and the title of the Indians to their unsurrendered lands to have been recognized by the crown to the extent already mentioned, it may be of little importance to enquire into the reasons on which it is based. But as these reasons are not without some bearing on the present question, as I shall hereafter shew, I will shortly refer to what appears to have led to the adoption of the system of dealing with the territorial rights of the Indians. To ascribe it to moral grounds, to motives of humane consideration for the aborigines, would be to attribute it feelings which perhaps had little weight in the age in which it took its rise. Its true origin was, I take it, experience of the great impolicy of the opposite mode of dealing with the Indians which had been practiced by some of the Provincial Governments of the older colonies and which had led to frequent frontier wars, involving great sacrifices of life and property and requiring an expenditure of money which proved most burdensome to the colonies. That the more liberal treatment accorded to the Indians by this system of protecting them in the enjoyment of their hunting grounds and prohibiting settlement on lands which they had not surrendered...was successful in its results, is attested by the historical fact that from the memorable year of 1763, when Detroit was besieged and all the Indian tribes were in revolt, down to the date of confederation, Indian wars and massacres entirely ceased in the British possessions in North America, although powerful Indian nations still continued for some time after the former date to inhabit those territories. That this peaceful conduct of the Indians is in a great measure to be attributed to the recognition of their rights to lands unsurrendered by them, and to the guarantee of their protection in the possession and enjoyment of such lands given by the crown in the proclamation of October, 1763, hereafter to be more fully noticed, is a well known fact of Canadian history which cannot be controverted. The Indian nations from that time became and have since continued to be the firm and faithful allies of the crown and rendered it important military services in two wars-the war of the Revolution and that of 1812...In the first settlement of the country to assert sovereignty and to put that assertion into operation would have caused war, and it is necessary to treat with the Indians from time to time in order to facilitate settlement.

To summarize...at the date of confederation the Indians, by the constant usage of the crown, were considered to possess a certain proprietary interest in the unsurrendered lands which they occupied as hunting grounds; that this usage had either ripened into a rule of the common law as applicable to the American Colonies, or that such a rule had been derived from the law of nations and had in this way been imported into the Colonial law as applied to Indian Nations;...

...it [the Royal Proclamation of 1763] gives legislative expression and force to what I have heretofore treated as depending on a regulation of policy, or at most on rules of unwritten law and official practice, namely, the right of the Indians to enjoy, by virtue of a recognized title, their lands not surrendered or ceded to the crown....[B]eing a legislative act having the force of a statute it has never, in my opinion, been repealed, but has, so far as it regulates the rights of the Indians in their unsurrendered lands remained in force to the present day.

Whilst claiming a right to acquire and dispose of the soil, the discoverers recognized a right of occupancy or usufructory right in the natives. They accordingly made grants of lands occupied by the Indians, and these grants were held to convey a title to the grantees, subject only to the Indian right of occupancy...This right of occupancy was protected by the political power and respected by the courts until extinguished; when the patentee took the unencumbered fee.

A formal treaty is a contract....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. [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.

I think that for this or a like purpose this band of Indians should be considered as standing in the same position as any other high contracting power or government, and it is a proposition of law that if an agent exceed his authority the principal is not bound. For this reason I think both the instructions and the contract must be seen in such a case.

[The legal effect of the Robinson-Huron Treaty of 1850 was that by it] these lands were acquired by the Crown with a view to settlement, for developing mineral deposits, and for the purpose of applying the timber to purposes of utility....[The courts] would with the consent of the Crown and of all our governments strain to their utmost limit all ordinary rules of construction or principles of law-the governing motive being that in all questions between Her Majesty and "Her faithful Indian allies" there must be on her part, and on the part of those who represent her, not good faith, but more, there must be not only justice, but generosity.

The beneficial interest in the territories ceded by the Indians under the treaties became vested, by virtue of s. 109 [of the Canadian Constitution], in the Province of Ontario....The effect of the treaties was, that, whilst the title to the lands ceded continued to be vested in the Crown, all beneficial interest in them, together with the right to dispose of them, and to appropriate their proceeds, passed to the Government of the Province.

"An interest other than that of the province in the same" [within the meaning of section 109] appears to them [their Lordships] to denote some right or interest in a third-party, independent of and capable of being vindicated in competition with the beneficial interest of the old province.

Attorney General of Canada v. Attorney General of Ontario, [1910] Appeal Cases 637, 644, 646 (Privy Council) held:

[The treaty's] effect was to extinguish by consent the Indian interest over a large tract of land....Dominion Government were indeed, on behalf of the Crown, guardians of the Indian interest

In the year 1888 this Board decided in St. Catherine's Milling & Lumber Co. v. The Queen that by force of the surrender of 1873 the beneficial interest in the lands in Ontario comprised in that surrender was transmitted to that Province..

....cet intérêt bénéficiaire des Sauvages dans les terres réservés.

[An Indian treaty is] a sale or transfer of their interest in land....a formal contract.

....the lease was ineffective and void at law...for non-compliance with the peremptory requirements of the proclamation which have the force of statute.

[The effect of Indian treaties is] that the lands are released from the overlying Indian interest....[Indian treaties are] formal agreements.

The treaty does not refer to the Proclamation in terms but historical implication impels the conclusion that what was surrendered and conveyed to the Crown by the treaty were the rights granted to them by the Proclamation to and in respect of the lands described in the treaty as being intended to be conveyed. What was preserved and confirmed to them were those same rights to and in respect of the lands reserved by the treaty and without any limitation as to time thereon.

Canada has treated all Indians across Canada, including those living on lands claimed by the Hudson Bay Company, as having an interest in the lands that required a treaty to effect its surrender.

[Indians have] a possessory right in lands. [Crown title is] subject to the Indians' possessory rights....The Indian possessory right could only be extinguished by a formal contract.

[The St. Catherine's Case held as to lands where the proclamation applied that] the Indian title was a mere burden upon that title [of the crown] which, following the cession of the lands under the treaty, was extinguished.

[part ii-"General Government Part"]

[paragraph 1] And whereas it will greatly contribute to the speedy settling of our said new Governments that our loving subjects should be informed of our Paternal care for the security of the Liberties and Properties of those who are and shall become Inhabitants thereof We have thought fit to publish and declare by this Our Proclamation that We have in the Letters Patent under our Great Seal of Great Britain by which the said Governments are constituted given express Power and Direction to our Governors of our Said Colonies respectively that so soon as the state and circumstances of the said Colonies will admit thereof they shall with the Advice and Consent of our Council summon and call General Assemblies within the said Governments respectively in such Manner and Form as is used and directed in those Colonies and Provinces in America which are under our immediate Government; And We have also given Power to the said Governors with the consent of our Said Councils and the Representatives of the People so to be summoned as aforesaid to make constitute and ordain Laws Statutes and Ordinances for the Public Peace Welfare and Good Government of our said Colonies and of the People and Inhabitants thereof as near as may be agreeable to the Laws of England and under such Regulations and Restrictions as are used in other Colonies [e.g. Connecticut as under the 1704 order in council]; and in the mean Time and until such Assemblies can be called as aforesaid all Persons Inhabiting in or resorting to our said Colonies may confide in our Royal Protection for the Enjoyment of the Benefit of the Laws of our Realm of England; for which Purpose We have given Power under our Great Seal to the Governors of said Colonies respectively to erect and constitute Courts of Judicature and public Justice within our Said Colonies for hearing and determining all Causes, as well Criminal as Civil according to Law and Equity and as near as may be agreeable to the Laws of England with Liberty to all Persons who may think themselves aggrieved by the Sentences of such Courts in all Civil Cases to appeal under the usual Limitations and Restrictions to Us in our Privy Council.

[paragraph 2] We have also thought fit with the advice of our Privy Council as aforesaid to give unto the Governors and Councils of our said Three new Colonies upon the Continent full Power and Authority to settle and agree with the Inhabitants of our said new Colonies or with any other Persons who shall resort thereto, for such Lands, Tenements and Hereditaments as are now or hereafter shall be in Our Power to dispose of; and them to grant to any such Person or Persons upon such Terms and under such other Conditions as shall appear to us to be necessary and expedient for the Advantage of the Grantees and the Improvement of our said Colonies.

[Part iv-"Indian Part"]

[paragraph 1] And 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 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.--We do therefore with the Advice of our Privy Council declare it to be our Royal Will and Pleasure that no Governor or Commander in Chief in any of our Colonies of Quebec East Florida or West Florida do presume upon any Pretence whatever to grant Warrants of Survey or pass any Patents for Lands beyond the Bounds of their respective Governments as described in their Commissions; as also that no Governor or Commander in Chief in any of our other Colonies or Plantations in America do presume for the present and until our further Pleasure be known to grant Warrants of Survey or pass Patents for any Lands beyond the Heads or Sources of any of the Rivers which fall into the Atlantic Ocean from the West and North West or upon any Lands whatever which not having been ceded to or purchased by Us as aforesaid are reserved to the said Indians or any of them.

[paragraph 3] And We do further strictly enjoin and require all Persons whatever [including judges] who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above described or upon any other Lands which not having been ceded to or purchased by Us are still reserved to the said Indians as aforesaid forthwith to remove themselves from such Settlements.

[paragraph 4] And whereas Great Frauds and Abuses have been committed in purchasing Lands of the Indians to the great Prejudice of our Interests and to the great Dissatisfaction of the said Indians; In order therefore to prevent such Irregularities for the future and to the end that the Indians may be convinced of our Justice and determined Resolution to remove all reasonable Cause of Discontent We do with the Advice of our Privy Council strictly enjoin and require that...if at any Time any of the said Indians should be inclined to dispose of the said Lands the same shall be Purchased only for Us in our Name at some public Meeting or Assembly of the said Indians to be held for that Purpose...

[paragraph 5] And we do by the Advice of our Privy Council declare and enjoin that the Trade with the said Indians shall be free and open to all our Subjects whatever provided that every Person who may incline to Trade with the said Indians do take out a Licence for carrying on such Trade...

[paragraph 6] And we do further expressly enjoin and require all Officers whatever as well Military as those employed in the Management and Direction of Indian Affairs within the Territories reserved for the Indians to seize and apprehend all Persons whatever who standing charged with Treason Misprisions of Treason Murders or other Felonies or Misdemeanors shall fly from Justice and take Refuge in the said Territory and to send them under a proper guard to the Colony where the Crime was committed of they stand accused in order to take their Trial for the same.

With reference to the court jurisdiction issue the clause "such Regulations and Restrictions as are used in other Colonies" means the Order in Council (Great Britain) of 9 March 1704 in the matter of Mohegan Indians v. Connecticut. There was no regulation or restriction pertaining to court jurisdiction that was more important or so well known, in 1763.

Similarly, with reference to the land granting issue the clause "such Lands, Tenements and Hereditaments as are now or hereafter shall be in Our Power to dispose of" has meaning if but only if one acknowledges two distinct constitutional categories for land. Some land is "now" within the dispositive jurisdiction of the newcomer governments. Some is not so "now," but may become so "hereafter." The contingency upon which land passes from the "hereafter" category into the "now" category is the making of the "Purchase," as to which the proclamation is also express.

To be valid the "Purchase" must be voluntary and arrived at in consequence of a public meeting of the selling community:

...if at any Time any of the said Indians should be inclined to dispose of the said Lands the same shall be Purchased only for Us in our Name at some public Meeting or Assembly of the said Indians to be held for that Purpose...[emphasis added]

Beyond that border the Indians "should not be molested or disturbed." To restrict free trade would be to molest or disturb. The newcomer governments could dictate to their own citizens the need for a licence to trade with the Indians, but those governments had no jurisdiction to dictate to the Indians.

It must always be stressed that this applies only to Indians upon territory that has not been purchased. Once the purchase has been made, the Indians generally will have accepted the jurisdiction of the newcomers' governments and courts. That is the customary contractual intent and effect of most treaties. It is only in relation to "such Parts of Our Dominions and Territories as not having been ceded to or purchased by Us" that the Indians "should not be molested or disturbed." The right of "free and open" trade is secured to Indians only in reference to such unpurchased lands.

The question will occur, and it should occur, as to why so many Indians were anxious to enter into treaties. By the same token it may be asked why so many tribes and nations seek federal government recognition. Why would so many of the native nations have relinquished their inherent natural law right of exclusive jurisdiction and possession, including the constitutionally confirmed right of free trade?

The answer is that the newcomers' governments did not, and generally do not, in actual practice respect the natural law, international law and constitutional law that binds them. The rule of law has proven, so far at least, to be a cruel hoax for the native people.

In 1871 the United States Congress enacted an Appropriations Act, one of the clauses of which said that there would be no more treaties made with the Indians. Thereafter the United States has acted unilaterally. The previously established natural law, international law and constitutional law was not, and could not possibly have been, repealed or amended by the introduction of this policy.

Nevertheless, although the policy was inconsistent with the previously established natural law, international law and constitutional law, it was consistent with the actual practice. Regardless of the law, the fact is that the newcomers' governments and courts simply occupied the unpurchased Indian territories, illegally.

Leading the invasion were the lawyers, judges and police. By 1871 the practice was endemic throughout North America. Federal law, as contrasted with natural law, international law and constitutional law, simply took up an entirely different direction.

In Canada (as recorded in Return to the House of Commons dated May 2, 1887) the first Prime Minister of the country, Sir John A. Macdonald, aptly put it this way:

The great aim of our [federal] legislation has been to do away with the tribal system and assimilate the Indian people in all respects with the other inhabitants of the Dominion, as speedily as they are fit for the change.

The federal law includes the criminal law. In consequence those natives who, in reliance upon their natural law, international law and constitutional law rights, broke the conflicting federal law were, and generally still are, processed as criminals. In short, the application of the federal criminal law of the United States and Canada by the lawyers, judges and police who themselves had no jurisdiction became, and remains, the means of stealing and defrauding the natives of their natural law, international law and constitutional law rights of jurisdiction, possession and free trade.

The Royal Proclamation of 1763 foresaw and attempted to forestall this fraudulent process, specifically by creating the crime of "Misprision of Treason."Thus, as we have seen the 6th paragraph of the proclamation enacted:

And we do further expressly enjoin and require all Officers whatever as well Military as those employed in the Management and Direction of Indian Affairs within the Territories reserved for the Indians to seize and apprehend all Persons whatever who standing charged with Treason Misprisions of Treason Murders or other Felonies or Misdemeanors shall fly from Justice and take Refuge in the said Territory and to send them under a proper guard to the Colony where the Crime was committed of they stand accused in order to take their Trial for the same. [emphasis added]

There is no state of mind defence to the crime of "Misprision of Treason" resulting from governmental or court usurpation of the natives' jurisdiction, possession or free trade rights. Thus, Blackstones Commentaries (iv: 74, 119, 121) published in 1825 defines misprision of treason as follows:

The third general division of crimes consists of such as more especially affect the supreme executive power, or the king and his government; which amount either to a total renunciation of that allegiance, or at the least to a criminal neglect of that duty, which is due from every subject to his sovereign....Every offence therefore more immediately affecting the royal person, his crown, or dignity, is in some degree a breach of this duty of allegiance, whether natural or innate, or local or and acquired by residence: and these may be distinguished into four kinds; 1. Treason. 2. Felonies injurious to the king's prerogative. 3. Praemunire. 4. Other misprisions and contempts.

Treason, proditio, in its very name (which is borrowed from the French) imports a betraying, treachery, or breach of faith. It therefore happens only between allies, saith the Mirror: for treason is indeed a general appellation, made by use of the law, to denote not only offences against the king and government, but also that accumulation of guilt which arises whenever a superior reposes a confidence in a subject or inferior, between whom and himself there subsists a natural, a civil, or even a spiritual relation, and the inferior so abuses that confidence, so forgets the obligations of duty, subjection, and allegiance, as to destroy the life of any such superior or lord.....

The fourth species of offences, more immediately against the king and government, are entitled misprisions and contempts.

Misprisions (a term derived from the old French, mespris, a neglect or contempt) are, in the acceptation of our law, generally understood to be all such high offences as are under the degree of capital, but nearly bordering thereon:...Misprisions are generally divided into two sorts; negative, which consist in the concealment of something which ought to be revealed; and positive, which consists in the commission of something which ought not to be done.

I. Of the first, or negative kind, is what is called misprision of treason; consisting in the bare knowledge and concealment of treason, without any degree of assent thereto: for any assent makes the party a principal traitor; as indeed the concealment, which was construed aiding and abetting, did at common law:...

II. Misprisions, which are merely positive, are generally denominated contempts or high misdemeanors; of which

1. The first and principle is the mal-administration of such high officers, as are in public trust and employment. This is usually punished by the method of parliamentary impeachment: wherein such penalties, short of death, are inflicted, as to the wisdom of the house of peers shall seem proper; consisting usually of banishment, imprisonment, fines, or perpetual disability. Hitherto also may be referred the offence of imbezzling the public money, called among the Romans peculatus, which the Julian law punished with death in a magistrate, and with deportation, or banishment, in a private person. With us it is not a capital crime, but subjects the committer of it to a discretionary fine and imprisonment. Other misprisions are, in general, such contempts of the executive magistrate, as demonstrate themselves by some arrogant and undutiful behavior towards the king and government. These are

2. Contempts against the king's prerogative. As, by refusing to assist him for the good of the public; either in his councils, by advice, if called upon; or in his wars, by personal service for defence of the realm, against a rebellion or invasion....Or, by disobeying the king's lawful commands; whether by writs issuing out of his courts of justice, or by summons to attend his privy council, or by letters from the king to a subject commanding him to return from beyond the seas,...or by his writ of ne exeat regnum, or proclamation, commanding the subject to stay at home. Disobedience to any of these commands is a high misprision and contempt;...[emphasis added].

The purpose of this native court is not at this time, or at any other time, to try the newcomer governments and courts for misprision of treason. If that issue were to be tried at all it could only be tried in the courts of the United States and Canada, since treason is a state crime triable only by the state against which it is committed. Since the judges of the newcomer courts are the alleged perpetrators of the misprision, that crime for all practical purposes is perfect, in the sense of being beyond prosecution. This native court has no jurisdiction to apply the newcomers' law concerning treason. And, in the native legal view, there has been a gross breach of the natural law of respect, not treason in particular.

The purpose of this native court in pointing out the existence of the crime of misprision of treason is, rather, to focus attention on the natural law, international law and constitutional law as it stood in 1763 when the Royal Proclamation was enacted. The proclamation not only reiterated the principles of Sublimus Deus, 1537 and the Order in Council (Great Britain) of 1704, but it added to the law a criminal sanction for breach, namely the threat of prosecution for misprision of treason. Since 1763 the law regarding treason appears to have changed. The United States Constitution defines treason as war or its equivalent against the United States, and Canada's Criminal Code achieves the same result for that country. Treason in the sense contemplated by the proclamation appears to have passed on.

From this perspective, the greater practical significance of the 6th paragraph of the proclamation's Indian part is the reference to criminal process in the yet unpurchased Indian territories. The only exception to the preclusion of newcomer court jurisdiction from those territories contemplated by the proclamation is the jurisdiction to apprehend persons who commit crimes outside and then become fugitives within those territories. Because that status exists under constitutional law it is not within the jurisdiction of either the federal Congress of the United States or the federal Parliament of Canada to alter that law. If they could, those federal governments could repeal their own constitutions, which is a contradiction in terms. This is the significance of the confirmation noted above following the American Revolution of the pre-revolution law. This is the significance of Dicey and the nature of the judicial power in the Anglo-American legal tradition.

At the same approximate time as the Unites States Congress resolved not to make any more Indian treaties, which to say to set policy against the law, the Canadian government recognized and affirmed its obligation under the Canadian constitution to disallow provincial legislation permitting land grants of yet unpurchased Indian territory contrary to the proclamation's injunction. Thus the Order in Council (Canada) of 23 January 1875 admitted:

It is sufficient for the present purposes, to ascertain the policy of England in relation to the acquisition of the Indian territorial rights, and how entirely that policy has been followed to the present time, except in the instance of British Columbia....the [British Columbia] Act is objectionable, as tending to deal with Lands which are assumed to be the absolute property of the Province, an assumption which completely ignores,-as applicable to the Indians of British Columbia,-the honour and good faith with which the Crown has in all other cases, since its sovereignty of the territories in North America dealt with their various Indian tribes.

The undersigned would also refer to the B.N.A. Act 1867 [the Canadian Constitution] Sec. 109, applicable to British Columbia, which enacts in effect that, all lands belonging to the Province, shall belong to the Province "subject to any trust existing in respect thereof, and to any interest other than that of the Province in the same."

That which has been ordinarily spoken of as the "Indian Title" must, of necessity, consist in some species of interest in the lands of British Columbia. If it is conceded, that they have not a freehold in the soil but that they have an usufruct,-a right of occupation, or possession of the same for their own use, then it would seem that these Lands of British Columbia are subject, if not to a "trust existing in respect thereof," at least to "an Interest other than that of the Province alone."

The undersigned, therefore, feels it incumbent upon him to recommend that this Act be disallowed,...[Endorsed by the Minister of Justice, Deputy Minister of Justice and the Governor General of Canada and adopted by the Cabinet.]

To further this process of elevating federal policy over natural law, international law and constitutional law, the federal governments of both the United States and Canada eventually began reorganizing, recognizing, funding and promoting native governments that would compete with and supplant the natives' traditional governments. Since this policy was applied on the unpurchased territories it was, and remains, quite illegal. For example, in Canada The Indian Act, 1880, s. 72 enacted:

Whenever the Governor in Council deems it advisable for the good government of a band to introduce the system of chiefs, he may by Order in Council provide that the chiefs of any band of Indians shall be elected, as hereinafter provided, at such time and place as the Superintendent-General may direct;...Provided always, that all life chiefs [i.e., the traditional system] now living shall continue to hold the rank of chief until death or resignation, or until their removal by the Governor for dishonesty, intemperance, immorality or incompetency: Provided also, that in the event of His Excellency ordering that the chiefs of a band shall be elected, then and in such case the life chiefs shall not exercise the powers of chiefs unless elected under such order to the exercise of such powers. [emphasis added]

Whoever induces, incites or stirs up any three or more Indians, non-treaty Indians or half-breeds apparently acting in concert,-
(a.) To make any request or demand of any agent or servant of the Government in a riotous, routous, disorderly or threatening manner, or in any manner calculated to cause a breach of the peace; or
(b.) To do an act calculated to cause a breach of the peace,-

Is guilty of a misdemeanor, and shall be liable to be imprisoned for any term not exceeding two years, with or without hard labor.

s. 3. Every Indian or other person who engages in or assists in celebrating the Indian festival known as the `Potlatch' or in the Indian dance known as the `Tamanawas' [i.e. the sundance] is guilty of a misdemeanor, and shall be liable to imprisonment for a term of not more than six months nor less than two months in any gaol or other place of confinement; and any Indian or other person who encourages, either directly or indirectly, an Indian or Indians to get up such a festival or dance, or to celebrate the same is guilty of a like offence, and shall be liable to the same punishment.

The said Act is amended by inserting the following section immediately after section one hundred and forty nine thereof:-

"149a. Every person who, without the consent of the Superintendent General expressed in writing, receives, obtains, solicits or requests from any Indian any payment or contribution or promise of any payment or contribution for the purpose of raising a fund or providing money for the prosecution of any claim which the tribe or band of Indians to which such Indian belongs, or of which he is a member, has or is represented to have for the recovery of any claim or money for the benefit of the said tribe or band, shall be guilty of an offence and liable upon summary conviction for each such offence to a penalty not exceeding two hundred dollars and not less than fifty dollars or to imprisonment for any term not exceeding two months.

When the natives objected as at Wounded Knee in the 1890s and then a century later again at Wounded Knee, as at Gustafsen Lake in 1995, they were overwhelmed by brute force and treated as if they were the criminals.

The Royal Regulation (Spain), 1772, s. 6 provides:

With the nations that remain quiet or neutral there will be maintained the best treatment and communication, overlooking some of their faults and lesser excesses, and endeavouring to induce them by good example to admit missionaries and to submit to my authority;...In no case shall the Indians arrested be sent into servitude as has illegally been done in the past; instead they will be treated and assisted as prescribed for prisoners of war.

In the Direction from the Lords of Trade to Sir William Johnson, Superintendent of Indians Affairs for the Northern District of North America, July 10, 1764 the Colonial Secretary advised:

....a steady and uniform attachment to, and love of Justice and Equity is one of their [the Indians] first principles of Government.

This did not become more so when the Convention for the Prevention and Punishment of the Crime of Genocide, 1948 was enacted. But the fact of the genocide in North America did become more focused. The convention, the terms of which fully have been adopted though not respected by the United States and Canada, provides [emphasis added]:

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:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

Article 3. The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(d) Attempt to commit genocide;
(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.

Article 6. Persons charged with genocide or any of the other acts enumerated in Article 3 shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such other international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.

All we ask is that the newcomer judges recognize the possibility of their own complicity in genocide and, correspondingly, their own incapacity to sit in judgment of themselves.

They can not possibly adjudicate any aspect of the issue of native rights, without implicitly adjudicating their own accountability for the genocide that has resulted, and is resulting, from their complicity in elevating federal law and policy over the conflicting natural law, international law and constitutional law.

For this reason, the Order in Council (Great Britain) of 9 March 1704 is not only good law, but necessary to the integrity of the rule of law. Without third party adjudication, the rule of law itself will not only be a hoax, but be seen to be a hoax. That can not be allowed.

It must be opposed, not only for the native people but for all people, for all depend upon the integrity of the rule of law, upon its fidelity to justice as applied truth and law as applied respect and order based upon those two features under the system of third party adjudication.

Power does corrupt, usurped power above all, as recent events illustrate. Bruce Clark, an Ontario lawyer, returned to university after 12 years specializing in aboriginal rights law. He completed a masters degree in legal history and a doctorate in international and constitutional law bearing upon the court jurisdiction issue. While reading for his doctorate, in Scotland, he came across the above mentioned Order in Council (Great Britain) of 9 March 1704 in the matter of Mohegan Indians v. Connecticut. Then he returned to North America in 1989, intent upon bringing the law going to court jurisdiction to the newcomers' courts' attention.

Rather than address the law the judges so far have stonewalled it. Instead of addressing it they have sought to ostracize, stigmatize and even to criminalize Dr Clark for his attempts.

Thus, in the Nevada case of US v. Dan a native person was charged with the crime of endangering officers of the law. He had poured gasoline over himself and tried to light it by way of protesting the presence of the officers sent to yet unpurchased desert to round up wild horses. His feeling was that if the horses could not be free, he would not be free, but dead. No one exercising power would listen to him. The officers were endangered, but his defence was that the natural law, international law and constitutional law nevertheless justified his conduct, and that the court no less than the officers was engaged in greater