(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.
MOHEGAN COURT, PASSAMAQUODDY COURT, MI'GMAQ COURT AND ALGONQUIN COURT
SUPREME COURT OF THE UNITED STATES AND SUPREME COURT OF CANADA
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
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.When the newcomers began laying waste the forests of the new world some natives could hear the sounds of the trees screaming in the face of the onslaught. But the newcomers could not hear. And if they were told, they dismissed the stories as fanciful. Yet science now discloses that plants do communicate and the medium appears to be sounds or chemicals beyond the normal reach of human sensory perception. We are told that when giraffes eat the leaves of acacia trees, the trees downwind produce chemicals that make their leaves inedible. Native medicine people could hear, sense or feel the resonances of dimensions of reality beyond the imagination of the newcomers, who dismissed their accounts as hallucinations or charlatanry. Yet since Einstein and Picasso, mathematicians, physicists, musicians and artists have ventured far beyond abstractionism and the theory of relativity-into quantum mechanics, unified field theory and hyperspace-making some of the "wildest dreams" of the ancient magicians and prophets seem like simple foresight.
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.Dicey's legal point, with which this native court agrees, is that when addressing established natural law, international law and constitutional law, the judges of all courts of law are bound to respect and to apply the previously ascertained constitutive 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 these two recognized attributes, possessory and jurisdictional autonomy, in 1670 the Statute of Frauds concerned the former. Henceforth, in order for any purchase of a possessory interest in land to be valid, the purchase must be in writing, bear a precise geographical description of the territory purchased, and be signed by the parties to the transaction. This is the reason that, to be valid, purchases of native territory must be so. It is a matter of formal no less than of substantive validity.
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.
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]The substance of the "Representation" that the 1704 order thusly adopted and made into international and constitutional law provided:
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 preliminary observation to be made concerning this 1704 legislation is that at the time it was made the Queen in Council possessed jurisdiction, under the then existing international law and constitutional law, to recognize and affirm native rights that were definitive of the newcomers' counterbalancing rights.
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]That passage arguably is the most important single passage in the recorded history of the legal relationship between natives and newcomers. In the same breath it not only recognizes and affirms the natives' right and the natives' remedy, but also the incapacity of the newcomers unilaterally by legislation or court process to derogate from either that right or that remedy. The summation it presents of the international and constitutional law explains why the federal governments of the United States and Canada are not, and never have been, legislatively competent to interfere with the jurisdiction of the natives upon yet unpurchased territory.
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....The present relevance of the Boston Treaty, 1725 is the evidence that it provides of the understanding of the law at the time when the law was still freshly minted and daily resorted to. First, the high contracting parties to the treaty accepted the rule of law in preference to force majeur between their respective nations. Then, the newcomers were confirmed in the security of the lands they had purchased. And the natives were confirmed in the security of the lands that they had not sold.
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.Plainly, the burden was upon the English to produce the deeds whereby a given tract of land had ceased being reserved to the natives and thereby had become open to the newcomers. This, of course, did no more than to reiterate the principle of the Statute of Frauds, 1670. No conveyance affecting any interest in land is valid or enforceable except to the extent the conveyance is evidenced by a contract in writing that describes the land with legal precision and that has been signed by the parties to the transaction.
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.The principles reiterated by the Royal Proclamation of 1763 continued to apply to the United States after the American Revolution and the Peace of Paris and the adopting of the new American Constitution, no less than before those events, and no less than in Canada where the Royal Proclamation never, even arguably, lapsed in consequence of any revolution. The North American case law in the formative years, when the die was cast regarding continuity, is clear and plain.
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.Hughes v. Dougherty, 1 Yeat's 497, 498 (Supreme Court of Pennsylvania, 1791) held:
The settlement on this [unpurchased] land was against the law. It was an offense which tended to involve the country in blood.Plumstead v. Rudebagh, 1 Yeat's 502, 504 (Supreme Court of Pennsylvania, 1791) held:
In 1761, the soil belonged to the aborigines.Weiser v. Moody, 2 Yeat's 127, 127-8. (Supreme Court of Pennsylvania, 1796) held:
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.Sherer v. McFarland, 2 Yeat's 224, 225 (Supreme Court of Pennsylvania, 1797) held:
[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.Fletcher v. Peck, 6 Cranch's 87, 121 (United States Supreme Court, 1810) held:
[The Indian interest] is certainly to be respected by all courts.New Jersey v. Wilson, 7 Cranch's 164, 166 (United States Supreme Court, 1812) held:
Every requisite to the formation of a contract is found in the proceedings between the then colony of New Jersey and the Indians.Thompson v. Johnson, 6 Binney's 68, 68 (Supreme Court of Pennsylvania, 1813) held:
[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.Meigs v. McLungs Lessee, 9 Cranch's 11, 17 (United States Supreme Court, 1815) held:
The treaty is the contract of both parties.Johnson v. McIntosh, 8 Wheaton's 543, 574, 592, 597 (United States Supreme Court, 1823) held:
[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.Danforth v. Wear, 9 Wheaton's 673, 675 (United States Supreme Court, 1824) held:
As to lands surveyed within the Indian boundary, this Court has never hesitated to consider all such surveys and grants as wholly void.Cornet v. Winton, 2 Yerger's 129, 130 (Court of Appeal for Tennessee, 1826) held:
[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.Lee v. Glover, 8 nyr 189, 189 (Supreme Court of New York, 1828) held:
...if it be Indian property in land, it is protected by our constitution and laws.Cherokee Nation v. Georgia, 5 Peter's 1, 17, 48, 49, 55, 58, 71 (United States Supreme Court, 1831) held:
[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.Worcester v. Georgia, 6 Peter's 515, 541, 544, 546, 549, 560, 581 (United States Supreme Court, 1832) held:
[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.Harris v. Doe, 4 Blackf. 412, 414 (Supreme Court of Indiana, 1837) held:
This treaty...is obligatory as public law, but also partakes of the character of a contract.Clark v. Smith, 38 us 195, 201 (United States Supreme Court, 1839) held:
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.Georgia v. Canatoo, 8 Washington National Intelligencer 24 (Supreme Court of Georgia, 1843) held:
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.Stockton v. Williams, 1 Michigan Reports 546, 560 (Supreme Court, 1845) held:
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.Ogden v. Lee, 6 Hill's 546, 548 (Supreme Court of New York, 1846) held:
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.Bown v. West (1846), 1 e & a 117, 118 (Court of Appeal for Upper Canada) held:
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.Montgomery v. Ives, 13 Smedes & M. 161, 171, 174-5, 177, 179 (Mississippi High Court of Errors and Appeals, 1849) held:
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]Rowland v. Ladiga's Heirs, 21 Alabama Reports 9, 28 (Supreme Court of Alabama, 1852) held:
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.Sheldon v. Ramsay (1852), 9 Upper Canada Queen's Bench Reports 105, 127, 133 held:
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.Regina v. McCormick (1859), 18 Upper Canada Queen's Bench Reports 131, 133 held:
[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.]Connelly v. Woolrich (1867), 11 Lower Canada Jurist 197, 205-7 (Quebec); affirmed (1869) Revue Legal os 253 (Court of Appeal), 356-7 [emphasis the Court's] held:
....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:Minter v. Shirley, 3 Mississippi Reports 376, 384 (Supreme Court, 1871) held: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.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.
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.
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.Holden v. Joy, 84 us 211, 244 (1872) held:
Their title was absolute, subject only to the preemptive right of purchase acquired by the United States as the successors to Great Britain.Wood v. Missouri, K. & T. Ry. Co., 2 Kansas Reports 248, 264 (Supreme Court, 1873) held:
It will generally be conceded that the Indians have the power by treaty to sell.Leavenworth, Lawrence, and Galveston Railroad Company v. United States, 2 Otto's 733 (United States Supreme Court, 1875). [Held, Field j dissenting, that a congressional grant of land for railroad purposes was void ab initio vis-à-vis any yet unsurrendered Indian lands in its path. Field j said the grant could take effect subject to the Indian interest and would fall into possession whenever the Indians should sell their interest to the government. Field J. said]:
...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.United States v. 43 Gallons of Whisky, 93 us 188, 196 (1876) held:
This right could only be extinguished by voluntary surrender to the government. [emphasis added]Beecher v. Wetherby, 95 us 55, 67-8 (1877) held:
....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.Church v. Fenton (1878), 28 Upper Canada Common Pleas 384, 388, 399 held:
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.St. Catherine's Milling & Lumber Co. v. The Queen (1886), 13 Ontario Appeal Reports 148, 169 held:
[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.St. Catherine's Milling & Lumber Co. v. The Queen (1887), 13 Supreme Court of Canada Reports 577, 608-10 held:
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.Butz v. Northern Pacific Railroad, 119 us 55, 67-8 (1886) held:
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.St. Catherine's Milling & Lumber Co. v. The Queen (1888), 14 Appeal Cases 46, 51, 53, 60 (Privy Council) held:
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.Attorney General of Ontario v. Francis (1889), Public Archives of Ontario, Irving Papers, Box 43, File 42, Item 9, at 13 (High Court of Ontario) held:
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.Attorney General of Ontario v. Attorney General of Canada (1895), 25 Supreme Court of Canada Reports 434, 504, 535 held:
[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.Attorney General of Ontario v. Attorney General of Canada,  Appeal Cases 199, 205, 210-11 (Privy Council) held:
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.Ontario Mining Co. v. Seybold,  Appeal Cases 73, 79 (Privy Council) held: It was decided by this board in the St. Catherine's Milling Co.'s Case that prior to the treaty the province of Ontario had a proprietary interest in the land, under the provisions of s. 109 of the British North America Act, 1867, subject to the burden of the Indian usufructory title, and upon the extinguishment of that title by the surrender the province acquired the full beneficial interest.
"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,  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 interestr. v. Ontario & Minnesota Power Co.,  Appeal Cases 196, 197 (Privy Council) held:
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..Doherty v. Giroux (1915), 24 Quebec Queen's Bench Reports 433, 436 referred to:
....cet intérêt bénéficiaire des Sauvages dans les terres réservés.r. v. McMaster,  Exchequer Court of Canada Reports 68, 73 held:
[An Indian treaty is] a sale or transfer of their interest in land....a formal contract.Easterbrook v. r.,  5 Supreme Court of Canada Reports 210, 217-18 held:
....the lease was ineffective and void at law...for non-compliance with the peremptory requirements of the proclamation which have the force of statute.r. v. Wesley,  2 Western Weekly Reports 337, 348, 351 (Court of Appeal for Alberta) held:
[The effect of Indian treaties is] that the lands are released from the overlying Indian interest....[Indian treaties are] formal agreements.r. v. George,  2 Ontario Reports 429, 433 (Court of Appeal) held:
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.r. v. Sikyea (1964), 46 Western Weekly Reports 65, 66 (North West Territories Court of Appeal), aff'd  Supreme Court of Canada Reports 642 held:
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.Brick Cartage Ltd. v. r.,  1 Exchequer Court of Canada Reports 102, 105 (Trial Division) held:
[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.Calder v. Attorney General of British Columbia,  Supreme Court of Canada Reports 313, 320 held:
[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.The simple point is that the principle of respect that constitutes the basis of natural law was incorporated into international law by Sublimus Deus, 1537. Then the constitutional law reinforced the principle by the Order in Council (Great Britain), 1704. Sublimus Deus, 1537 recognized and affirmed the natives' right-"liberty and possession"-which is to say jurisdiction over, and possession of, unpurchased territory. The Order in Council (Great Britain), 1704 recognized and affirmed the natives' remedy: third party adjudication. The Statue of Frauds, 1670 made apparent that to be valid the purchase must be include a precise legal description of the land conveyed and be in writing and signed by both parties. The Royal Proclamation of 1763, to the continuity of whose principles the above noted judicial decisions bear witness, confirmed that since the native right was held communally the authorization to sell must be made by the selling native community in public council. Summarizing and reiterating these principles, the proclamation enacted:
The proclamation is straightforward. Because the Indians were here first, all territory in North America begins, for legal purposes, with the legal status "reserved" as Indian territory. Upon it, the Indians can not, legally, be "molested or disturbed" upon "any Pretence whatever." In the general government part of the proclamation the concession of court jurisdiction to the new colonies expressly is held to be subject to "such Regulations and Restrictions as are used in other Colonies," and the concession land granting jurisdiction to the all colonies expressly applies only to "such Lands, Tenements and Hereditaments as are now or hereafter shall be in Our Power to dispose of."
[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]The proclamation also confirmed that "the Trade with the said Indians shall be free and open..." That reference to the "said Indians" refers back to the Indians who still occupy territory that has not been purchased. It is specifically upon such territory that the Indians "should not be molested or disturbed." Concomitantly, the trade with the Indians of such territory shall be `free and open'. There can be no restrictions upon trade placed upon the Indians by the newcomer governments, precisely because the newcomers' governments' jurisdiction stops at the border of the unpurchased Indian territory.
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.In these circumstances it was idealistic for the native nations to insist upon their rights under natural law, international law and constitutional. The lawyers, judges and police of the United States and Canada had no ears for that law. All they were prepared to hear, and to enforce, was the conflicting and therefor illegal federal law.
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]The term "misprision" is the essential control device by which the imperial government of Great Britain sought constitutionally to apprehend the tendency of the colonial governments and courts toward stealing the natives' lands by chicanery. Misprision signifies an absolute crime; meaning a crime with reference to which it is not necessary for the prosecution to establish a guilty intent in order to obtain a conviction. The mere doing of the prohibited act, in this case the molesting or disturbing of the Indians in relation to unpurchased territory, completes the crime.
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.There could not be a more classic example of the crime of "Misprision of Treason," within the meaning of paragraph 6 of the Indian part of the Royal Proclamation of 1763, than land grants by newcomer governments made "upon any Pretence whatever." Or, equally, of newcomer courts assuming jurisdiction over the question of whether a given tract of disputed territory validly had been purchased from the natives by the newcomers, rather than leaving the contest to third party adjudication as required by the Order in Council (Great Britain) of 9 March 1704 read in conjunction with the proclamation's reference in the court jurisdiction context to "such Regulations and Restrictions as are used in other Colonies."
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.Regardless of its own admission of constitutional responsibility to protect the Indians upon yet unpurchased territory specifically by disallowing offending provincial legislation, in 1876, the year following this admission, the federal Parliament of Canada enacted the Indian Act, which implemented the same policy as signaled by Congress's Appropriations Act, 1871. Thus in 1876 began the federal legislation aiding and abetting the illegal provincial land legislation that the federal government in 1875 had acknowledged itself constitutionally bound to disallow. The United States began applying the Major Crimes Act, and Canada the Criminal Code, against Indians in the yet unpurchased Indian territories.
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]Similarly, An Act further to amend "The Indian Act, 1880," sc 1884, c. 27, s. 1 provided:
Whoever induces, incites or stirs up any three or more Indians, non-treaty Indians or half-breeds apparently acting in concert,-Similarly, An Act to amend the Indian Act, sc 1926-27, c. 32, s. 6 enacted:
(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:-The government of Canada not only moved to outlaw the natives' traditional governments by fostering competing native governments with more controlled powers, but it employed the new native governments in the harassment of the old native governments. It made continuing in the old ways a crime, and it made the raising of the law precluding this a crime. In this way the criminal law became a criminal weapon. The same process, with different labels and sequences of events, occurred in the United States.
"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.But when the natives object to the injustice, and attempt the common law remedy of self-help to apprehend it, they are treated as criminals, not, as they should be, as prisoners of an unjust war upon them.
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.That is true, and always has been true. Because this is so, the injustice of the stealing of the native land under the auspices of illegal federal law applied by usurping newcomer courts, in the face of the natural law, international law and constitutional law precluding the theft and usurpation, continues to be of genocidal consequence. It is not an unrelated coincidence that native suicide rates and all of the other indicators of social breakdown are so high. It is the consequence of the omnipresent and omniscient injustice inflicted upon a people whose first principle is a "love of Justice and Equity." All along the injustice has been of genocidal consequence.
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:There is no doubt in the minds of the judges of this native court that as "public officials" the judges of the newcomers' courts in the past have been indifferent to the fact of their own complicity in genocide. This native court does not, however, pretend to put the newcomer courts on trial for this crime. The intent of this court is not the "Punishment" but rather the "Prevention" of genocide.
(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:
(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 crimes that he was trying to apprehend. The federal court agreed at first to hear Dr Clark amicus curiae on the law. But when at the outset of the trial he used the term "complicity in genocide" with reference to the court's own assumption of jurisdiction, the federal judge immediately terminated Dr Clark's amicus curiae status, and declined to address the jurisdiction issue on its merits. The 9th Circuit Court of Appeals in San Francisco refused to entertain an appeal on the jurisdiction issue.
The Quebec case of Pilot v. Sept-Isles and Maliotenam Band Council involved an application to reconsider a Supreme Court of Canada denial of leave to appeal against an injunction that had been affirmed in the Quebec Court of Appeal. The ground for the application was that a previous application was incomplete and inadequate since it should have been, but was not, considered in conjunction with a set of related applications from other regions of Canada, all going to the same patently important constitutional question: whether the natives have the right of third party adjudication in relation to legal disputes over the status of land as Indian territory, and whether the assumption of jurisdiction by the Supreme Court and other domestic crown courts is prima facie extraterritorial, treasonable, fraudulent and, arguably, complicitous in crimes related to genocide.
The fact situation in this Pilot case arose as follows. The government of Quebec wanted to build a hydro-electric dam. The federally recognized and promoted Indian Act band council agreed with the proposal. A faction of native traditionalists disagreed, and contended that neither the government of Quebec nor the Indian Act band council had any jurisdiction. There is no treaty of purchase. The traditionalists blockaded construction. With the support of the government of Canada, the band council took the traditionalists to the newcomers' court system, for an injunction to stop the blockade protest. The traditionalists objected to the assumption of jurisdiction, but no attention was paid to their objection. The traditionalists breached the injunction and in consequence were prosecuted as criminals. Again they objected to jurisdiction; and again no attention was paid to their objection.
On May 2, 1995 the Supreme Court of Canada declined to address the matter on the ground that no issue of importance was raised.
The Ontario case of Friday v. Attorney General of Ontario v. Bear Island Foundation involved an application to reconsider a Supreme Court of Canada judgment-on the same ground as with respect to the aforesaid Quebec region application; plus the fact that the crucial issue of juridical jurisdiction was not addressed due to a fraudulent conspiracy of silence by all persons that argued the appeal. As in the Quebec matter, at no stage in the proceedings was the law constituted by the tendered constitutional legislation and precedents addressed.
The factual background was as follows. Ever since the first trickle of entry of newcomers into their native land in the 1870s, the Temagami Indians, primarily resident at Bear Island in northern Ontario, had been protesting the absence of any treaty permitting this. Ever since the 1870s the federal government had agreed with them that they had been omitted from the Robinson-Huron Treaty of 1850, the document under which the provincial government justified its forcible taking of possession of the land and its assumption of jurisdiction. Negotiations between the provincial government on its own behalf, and the federal government on the Temagami Indians' behalf, dragged on for a century. In the late 1960s and early 1970s, Ontario began to threaten the natives with eviction from their homes on Bear Island and with prosecutions for cutting firewood with which to warm themselves in winter. Alarmed, the Temagamis again turned to the federal government. In 1971 the federal government "solved" the immediately threatened problem of provincial evictions, by "purchasing" Bear Island from the provincial government, and then by unilaterally enacting an order in council that the island henceforth was an Indian "reserve." The federal government assured the Temagamis that it was still working on the larger issue of no treaty. In 1973 Ontario planned an $80 million ski resort on the Temagamis' sacred mountain. In response, the natives filed a land caution in the Land Titles Office. In 1978 Ontario sued the natives for a declaration that their aboriginal rights were extinguished. The Temagamis counterpleaded their unrelinquished "native sovereignty." The Supreme Court of Ontario, Court of Appeal for Ontario and Supreme Court of Canada held that the Temagamis' "acceptance" of Bear Island as a "reserve" constituted an "adhesion" to the Robinson-Huron Treaty of 1850. The only evidence of "acceptance" was the negative evidence that the Temagamis did not en masse at any time vacate their homes on Bear Island and leave the region. There was no bilateral contract; nothing in writing; nothing signed; no public meeting of the natives to discuss a proposed land cession; no communal resolution to cede. There was never an offer made, which could even have been debated.
The Supreme Court of Canada treated the extinguishment issue in the Bear Island case as question of pure fact; and expressly and explicitly disavowed any analysis of the underlying law, because on appeal the natives' argument was itself restricted to facts. That is, at the appeal levels the natives' plea of native sovereignty was not pressed. The applicant sought a review of the Supreme Court of Canada decision on 2 grounds. First, the newcomers' courts had no jurisdiction. That is, Ontario sued in the wrong court system. Ontario should have sued in court system constituted by Queen Anne for such extinguishment issue disputes between natives and newcomers and their governments. The Mohegan case establishing this point of jurisdictional law was not discovered until after the trial and none of the judges were apprised of it at any stage. They should be.
Second, by neglecting to address the law concerning extinguishment the Supreme Court of Canada left itself unaware that an "adhesion" is legally impossible on the facts as given. In short, the litigation should have been referred to the constitutionally proper court system; and that system should address the law concerning the mandatory preconditions to extinguishment, before presuming to adjudicate the legal significance of the facts.
On July 6, 1995 the Supreme Court of Canada declined to address the matter on the ground that no issue of importance was raised.
The four Ontario cases of Friday v. Attorney General of Ontario v. Bear Island Foundation, Friday v. Wendaban Stewardship Authority and Ontario v. Mathias (1), Friday v. Wendaban Stewardship Authority and Ontario v. Mathias (2) and Bruce Clark v. Regina (1) involved a joint application for leave to appeal to the Supreme Court of Canada against a denial of an extension of time to appeal against a denial of counsel, an injunction, and a conviction for its breach in the set of 4 related files-on the same ground as with respect to the aforesaid Quebec region appeal; plus the fact that the order under appeal was not granted in good faith, but, rather, in order to aid and abet the crown and its Indian collaborators in maintaining the aforesaid conspiracy of silence in respect of the said juridical jurisdiction issue. Again the constitutional legislation and precedents speaking to the point of law were not addressed in any of the courts below, each of which simply treated the point of law itself as if it had not been made. There was no overt rejection of the law constituted by the constitutional legislation and precedents. The scenario in the courts here, rather, was as if there was a time warp that placed the law set before the courts outside the judges' ken of sight and hearing. The point of law was treated as if not present at any time in the courtroom.
On July 6, 1995 the Supreme Court of Canada declined to address the matter on the ground that no issue of importance was raised.
The Ontario case of Bruce Clark v. Regina (2) involved an application for leave to appeal to the Supreme Court of Canada against a confirmation of a conviction for assault officer registered against the Indians' lawyer, Bruce Clark, for taking a common law self-help step that his clients had jurisdiction themselves to take but did instruct him to take on their behalf as their agent-on the same ground as with respect to the aforesaid Quebec region appeal; plus the fact that the order under appeal was not granted in good faith, but, rather, in virtue of judicial willful blindness to the legislative words and precedents that substantiate the aforesaid joint and several submission regarding juridical jurisdiction, which willful blindness aids and abets the crown and its Indian collaborators in maintaining the aforesaid conspiracy of silence in respect of the said juridical jurisdiction issue. Again, at every stage of the proceedings the point of law was treated as if invisible, never raised, not present for discussion purposes.
The facts were that native clients of Dr Clark instructed him to seize and secure a document being held but concealed by a non-native researcher. The concealment helped the Indian Act native government but prejudiced the traditionalists for whom Dr Clark was acting as legal counsel. The document was located in the researcher's house, which itself was situate upon yet unpurchased Indian territory. Dr Clark asked the police to help him seize and secure the document for court purposes, before it could be destroyed. He advised the police that the document was crucial to establishing their own complicity in the ongoing crime of genocide against the native traditionalists. The police refused to help, and informed Dr Clark that if he placed his foot across the researcher's property line he would be arrested for trespass. For the express and explained purpose of setting up a test case relative to the jurisdiction issue, Dr Clark placed his foot where prohibited, and immediately was arrested, as understood and intended. Rather than charge him with trespass, the police charged him with assault police. For the purpose of ensuring the test case, Dr Clark took no objection to the charge, other than raising the jurisdiction issue. When the jurisdiction issue was ignored by the trial judge Dr Clark was convicted of the assault.
On July 6, 1995 the Supreme Court of Canada declined to address the matter on the ground that no issue of importance was raised.
The British Columbia case of Pascal and Saul v. Regina involved an application for leave to appeal to the Supreme Court of Canada against convictions for breach of an injunction and hunting offenses-on the same juridical jurisdiction ground as with respect to the aforesaid Quebec and Ontario region applications. Again the point of law was held at bay. But this time by a different device. For the first time the courts involved recognized the fact that the point of law had in fact been raised. And they dealt with it, overtly, after a fashion. They held that the identical point of law had already been raised in the case of Delgamuukw v. Attorney General of British Columbia. They held that the Supreme Court of British Columbia and the Court of Appeal for British Columbia in the Delgamuukw case, after a careful consideration of all relevant legal authorities, had rejected the point of law on its merits. Counsel for the natives, Bruce Clark, challenged the prosecuting attorney to point to the place in the report of the decisions of the Delgamuukw case where this supposedly occurred. This was not done. There is no such place. The judges in the courts below also did not point to such place. They just said the place existed, and decided upon the basis of that supposed existence.
The two cases of British Columbia case of Pascal v. International Forest Products Limited and secondly Franklin v. International Forest Products Limited v. Pascal involved a joint application for leave to appeal to the Supreme Court of Canada against dismissals of applications for leave to appeal against an injunction-on the same juridical jurisdiction ground as above. Again the point of law was not addressed, upon the rationale that the Delgamuukw case supposedly had already resolved it.
The Alberta case of Stevens v. Stoney Band (1) involved an application for leave to appeal to the Supreme Court of Canada against a dismissal of a motion for a stay of execution of an injunction-on the same juridical jurisdiction ground as above. In this Alberta case, rather than adopt the British Columbia court position that cited Delgamuukw to preempt the point of law, the Alberta courts adopted the style of willful blindness preferred in the Quebec and Ontario courts. That is, the point of law itself simply became invisible once again. It was not discussed. It was not debated. It was just treated as non-existent, as the court proceedings marched on around and past it.
The Alberta case of Stevens v. Stoney Band (2) involved an application for leave to appeal to the Supreme Court of Canada against a dismissal of an appeal against an injunction-on the same juridical jurisdiction ground as above. The same thing happened: the point of law itself was ignored.
The facts were that a federally recognized Indian Act band council sought and obtained an injunction to prevent the harvesting of timber except under authority of the Indian Act. The Stevens family insisted on the right to harvest under traditional law, and objected to the assumption of jurisdiction by the band council. No treaty was pleaded or proved, and so for the purposes of the case the land was unceded native land. On such land the federal government has no jurisdiction and therefore the Indian Act band council elected under that act has no jurisdiction, for the same reason the newcomers' court to which the Indian Act band council turned has no jurisdiction.
The British Columbia case of George v. Her Majesty the Queen and the Ontario cases of Friday v. Her Majesty the Queen and Shaukeens v. Her Majesty the Queen involved several applications for leave to appeal to the Supreme Court of Canada against dismissals of appeals from trial judgments striking out, as "scandalous, frivolous, vexatious or disclosing no reasonable cause of action," the statements of claim filed in the Federal Court of Canada seeking declaratory relief as delivered by the native clients of the same Bruce Clark. The said statements of claim cited the federal government's ultimate responsibility for the genocidal damages resulting from the usurpation of juridical jurisdiction such as portrayed above. Not a single judge of the Federal Court (Trial Division) or the Federal Court of Appeal addressed the constitutional legislation and precedents upon which that allegation was based. Every such judge treated the allegation itself as self-evidently "scandalous." The fact that it was not the allegation, but, rather, the conduct of the legal establishment that was scandalous, was not allowed to be discussed. Regardless of the objective truth of the allegation, which the judges refused to consider, the issue was preempted from consideration because of the damage to the reputation of the legal establishment that would be done if the allegation were permitted the time and attention in court to be vindicated.
The cases of Margaret Clark v. Her Majesty the Queen and Bruce Clark v. Her Majesty the Queen involved, first, an application by Bruce Clark for leave to appeal against a dismissal of his appeal from a trial judgment striking out as "scandalous, frivolous, vexatious or disclosing no reasonable cause of action" his statement of claim for damages uniquely incurred by him in consequence of his attempts to apprehend the genocidal damages to the Indians as described above-on the same juridical jurisdiction ground as above. The second application was by his wife Margaret Clark, for leave to appeal against a dismissal of her appeal against an assessment of income tax, the imposition of which tax is alleged to be criminally illegal as being in aid of and a consequence of the genocidal usurpation of juridical jurisdiction portrayed above. The essence of both of applications was that the federal government is making billions of dollars annually collecting severance taxes and income taxes on unceded native land, and that this is the reason the federal government so massively and patently is in breach of its constitutionally reposed trust obligation to protect the natives upon such land from being molested or disturbed. Again, the courts refused to address the issue, simply by calling the raising of it scandalous.
As can be seen several of those applications for leave to appeal to the Supreme Court of Canada had arisen when the Supreme Court of British Columbia and the Court of Appeal for British Columbia held that the case of Delgamuukw v. Attorney General of British Columbia supposedly had addressed and resolved the jurisdictional point of law. That conclusion had been disputed by Dr Clark on behalf of the native traditionalists on the ground the court jurisdiction point of law had not been raised in the Delgamuukw case. In the lower courts the attorneys' general of British Columbia and Canada informed the judges that the Delgamuukw case had addressed and resolved the issue. Later, when one of the Delgamuukw appellants therefore sought to have the constitutional question of court jurisdiction addressed in the Supreme Court of Canada appeal in that case, the same attorneys general did a 180º about-face, and asserted that the lower courts in Delgamuukw had not even so much as touched upon the court jurisdiction issue.
This matter arose in the Supreme Court of Canada when, in the summer of 1995, legal counsel Bruce Clark was also retained as counsel by one of the appellants in the said Delgamuukw case. Leave to appeal had already been granted in the Supreme Court of Canada in that case. Clark's brief was to raise the same jurisdictional point of law as that for which leave to appeal had been denied, as unimportant, in all the other cases. For this purpose he made an application to state the jurisdictional issue as a constitutional question.
On September 12, 1995 the application to state the constitutional question was denied, on the ground that the point of law had not been raised in the courts below in the Delgamuukw case, and so could not be raised for the first time on the appeal in the Supreme Court of Canada.
In sum, by the summer/fall of 1995 it was apparent that when natives raise the court jurisdiction issue it will not be addressed by newcomer courts, no matter how it is raised. No procedural stone has been left unturned. When they try to appeal this judicial willful blindness, the Supreme Court of Canada treats the issue as not important, and denies leave to appeal. When leave is already obtained, as in the Delgamuukw case, the Supreme Court of Canada will not address the issue because the issue was not vetted in the courts below. But the Supreme Court of Canada knows that the issue is never going to be vetted by the courts below it. It had just seen the evidence of this.
Between the refusals in July and September by the Supreme Court to address the jurisdiction issue, the Registrar of the Supreme Court reported Bruce Clark to the bar association, in an attempt to have him disbarred for having insulted the court by raising the point of law. In fact, some 23 other complaints were made by or on behalf of the several judges before whom Clark had raised the point. Rather than address the law publicly, the judges worked behind the scenes to secure the disbarment of Clark for raising the law, in effect to silence the messenger in order to evade the issue.
On June 19, 1996 the bar association ruled (a) that the genocide is a fact and (b) that the judges should have addressed the law. The attempt by the judges to have Clark disbarred failed.
On January 17, 1997 the Supreme Court of Canada agreed to hear the point of law argued by Dr Clark on behalf of the Mi'gmaq Nation, but refused to hear it argued on behalf of the Algonquin Nation. The only difference was that an Indian Act band opposed the Algonquin traditionalists' application, but no Indian Act band opposed the Mi'gmaq application. The context is the constitutional reference concerning the legal right, if any, of Quebec to secede from the Canadian union. The traditional natives' point is that the Court has no jurisdiction to address the question vis-à-vis that portion Quebec that is still unpurchased Indian territory.
In reaction to the above noted pattern of unconscionable judicial stonewalling of the legal issue, and in reaction to the ongoing genocide that continues because of that stonewalling, some native traditionalists of the appellants and others occupied an armed but nevertheless defensive position at Gustafsen Lake in northern British Columbia. On August 25, 1995 they sent out from their redoute-under-police-siege a single demand that read as follows:
The Sundancers at Gustafsen Lake have one demand: that the petition dated January 3, 1995 be addressed publicly by an independent and impartial third party tribunal, one that is neither Canadian nor Indian, such as the special constitutional court established by Queen Anne at the request of the Mohegan Indians to which court the petition is addressed: (a) is the popular assumption that the Canadian courts and police have jurisdiction legal? (b) or is that assumption criminally treasonable, fraudulent and complicitous in the genocide of the aboriginal peoples of Canada as alleged in the petition?Rather than allow that question of law as requested to go for resolution to the constitutionally designated independent and impartial third party tribunal in accordance with the rule of law, the natives' resistance was overcome by the police. Accordingly, the Gustafsen Lake demonstrators are now facing trial in the Supreme Court of British Columbia. By way of ensuring that their point of law would not be raised and defended by the natives' legal counsel Bruce Clark, the only lawyer ready, willing and able to do so, the British Columbia Law Society, which is to say the union that represents the lawyers who themselves are criminally assuming jurisdiction in British Columbia, denied an occasional appearance certificate allowing Bruce Clark to act on the issue of law in British Columbia. Rather than listen to Bruce Clark's application that he nevertheless be permitted to address the court amicus curiae on the point of law, on behalf of his pro bono clients, the arrested Gustafsen Lake accused persons, a judge of the Provincial Court of British Columbia sent Dr Clark in police custody to a psychiatric hospital for the criminally insane, for assessment for "mental disorder", for raising the point of law.
That judge and the members of the Law Society and Legal Aid Society and the police then steered the native clients to British Columbia lawyers labouring under a profound conflict of interest with the issue, a conflict that effectively preempts the point of law, and charged Bruce Clark with criminal contempt of court, and with assault police for symbolically resisting arrest on this charge.
When the traditionalist British Columbia native Harold Pascal, who had just heard the Supreme Court of Canada hold that the Delgamuukw case was irrelevant to the court jurisdiction issue, returned to British Columbia from Ottawa after the September 12th hearing in 1995, he was informed on March 28, 1996 by another judge, in a case in which Mr Pascal was charged with driving without a licence, that the Delgamuukw case had resolved the court jurisdiction issue, the very issue the Supreme Court of Canada had just on September 12, 1995 ruled the Delgamuukw case did not address and did not resolve.
In order to apprehend the crime of complicity in genocide by the newcomers' legal establishment, several of the native participants in the Gustafsen Lake armed Indian standoff previously had sought third party adjudication. That is, on January 3, 1995 they had petitioned Queen Elizabeth-for essentially the same relief as granted by Queen Anne to the Mohegans in similar circumstances in 1704.
This constitutional remedy of third party adjudication as constitutively provided by Queen Anne for the protection of the native right is alleged by the native traditionalists to be the preeminent "existing aboriginal right;" indeed, it is the aboriginal right without which no other serious and weighty aboriginal rights have genuine hope; for without third party adjudication the newcomers' courts will decide in the newcomers' favour. Since the third party court had already been constituted in response to the 1704 petition, the 1995 petition did not ask the present Queen, Elizabeth, to exercise a creative legislative function. All that the 1995 petition asked was that Queen Elizabeth exercise an administrative function-to appoint a fresh panel of independent and impartial judges to sit upon the existing third party court-in order to address the dispute whether the land was still under native jurisdiction, or had been purchased and so fell under newcomer jurisdiction. The corollary question raised by the 1995 petition was whether the premature assumption of jurisdiction by the newcomer courts constitutes misprision of treason and fraud and complicity in genocide.
The government of Canada instructed Queen Elizabeth not to act upon the 1995 petition, thus suborning her into complicity in the continuity of said crimes. Indeed, the police admitted to Dr Clark that their instructions from their superiors were not that the native traditionalists were wrong on the law, but, rather, that regardless, there was no way Canada would permit access to an independent and impartial third party court ever to address the law.
To assist in this stonewalling process the police engaged in what they are recorded as admitting to be a conscious "smear and misinformation campaign."
Part of the smear and misinformation campaign included distribution of a Canadian Security and Intelligence Service report that Dr Clark had been paid 5 million dollars by the Bulgarian government to destabilize North America by raising the jurisdiction issue. There is no evidence whatsoever to substantiate that report, and this court is satisfied that it is insupportable and incredible. It is conceivable, although not proven, that the false report was part of the acknowledged smear and misinformation campaign, and may have contributed to the Queen's reticence to do her constitutional duty in reference to the right of third party adjudication.
Although obliged by constitutional law to act, Queen Elizabeth followed the constitutional convention of not acting relative Canadian affairs without the consent of the Canadian government. The Queen refused to respond to the petition dated January 3, 1995. By this means policy and practice was permitted to override contrary law. The rule of law was proven to be a hoax. The Queen, whose essential justification for being head of state is to uphold the rule of law and constitutional integrity, was made a party to the travesty.
In these circumstances, it is naive and disingenuous to pretend that any North American court constituted by and for the newcomers' society can possibly be independent and impartial with respect to the jurisdiction issue, upon which issue turns the judges' own culpability for complicity in genocide contrary to the Convention for the Prevention and Punishment of the Crime of Genocide, 1948.
The only ray of light and hope, so far, has been the decision of Judge Bolan of the Ontario Court (General Division). On October 18, 1996 in the matter of Regina v. Verna Friday Mr Justice Bolan declined to conduct a criminal trial against the accused native woman. As grounds, he said that he had acted as a lawyer in a region adjacent to territory alleged to be unpurchased Indian territory. Secondly, he held that the nature of the jurisdiction issue, its connection to the crime of genocide, precluded justice being seen to be done if any judge accused of that crime were to conduct the trial. All Ontario judges are accused of that crime, because virtually every part of Canada is either on unpurchased Indian territory, or adjacent to it.
The case of Regina v. Verna Friday arose when the accused and other traditionalists entered Indian government offices in order to seize documents for court purposes. The documents indicated that the Indian government was collaborating with the police to conceal, from the courts, evidence of the fraud of the Attorney General of Ontario and the police. The police refused to assist with securing the evidence, in favour of working with the collaborating natives and the courts to conceal it. Judge Bolan, to his credit, and the salvation of the integrity of the rule of law, declined to try the case.
There are no judicial decisions dealing directly with the court jurisdiction issue since that which culminated in the Order in Council (Great Britain) of 9 March 1704 in the matter of Mohegan Indians v. Connecticut. There is nothing even remotely arguably amounting to a repeal of the previously established natural law, international law and constitutional law.
Only two case in North America even touched upon the court jurisdiction issue since 1704. The above noted case of Cherokee Nation v. Georgia, 5 Peter's 1 (United States Supreme Court, 1831) dealt with the question whether the Supreme Court itself could stand in the shoes of the Privy Council, so as to be the third party adjudicator. The Cherokees argued in the affirmative. They did not want to be in the Georgia courts any more than had the Mohegans wanted to be in the Connecticut courts. But the American Revolution had intervened, so as seemingly to have cut off access to the British Privy Council. Article 3 section 2 of the American Constitution allows the US Supreme Court to be the court of first instance, much like the Standing Commission Court constituted for state versus state and Indian versus state boundary and jurisdiction disputes in the 1700s.
In the Cherokee case the Supreme Court held that while it could function as the third party adjudicator vis-à-vis state versus state disputes, it could not similarly do so relative to Indian versus state boundary and jurisdiction disputes. The Supreme Court was wise. It is not independent and impartial relative to Indian versus state boundary and jurisdiction disputes. Its own jurisdiction and therefore the culpability of its judges for complicity in genocide is directly in issue in Indian versus state boundary and jurisdiction disputes. By deciding that it did not have first instance jurisdiction, the Supreme Court did not decide that the newcomer courts below it do have that jurisdiction. All that it decided was the question it was asked to decide: does the Supreme Court itself have that jurisdiction as a court of first instance.
The only other case to have touched upon the jurisdiction issue, so far as in known at this time, has been the unreported Quebec decision in Regina v. Cadien in 1838. In this, Sir James Reid instructed a criminal jury that if it should find that the accused were an Indian, and if it appeared that the crime occurred upon unpurchased Indian territory, then the jury could not have jurisdiction.
When all that is relevant to the issue of native rights in North America that can be said, has been said, it is apparent that principle and practice have taken different roads. Principle has taken the high road, practice the low. And the crucial perception is not to allow the volume, the detail, the ingenious character of the fraud perpetrated by the practice to obscure the simple fact of the fraud. The fraudulent practice is not self-legitimizing. It is not evidence of the law, but of the breach of the law.
For 500 years, the consensus of natural law, international law and constitutional law has been straightforward and unvarying. The law, what it actually says, has remained true to itself, and to the human species and the environment that the law exists to serve. But what the newcomers have actually done, that is the opposite of what the law says should have been done.
All along the law has said that because the natives were here first, and are humans. Until territory has been purchased from them by the newcomers, the natives have the territorial jurisdiction.
In some regions, it is true, the newcomers' governments did make proper and valid written purchases, and can produce them to prove it.
But in many other regions the newcomers' governments simply allowed in the lawyers, the judges and the police before the purchase validly was completed. Thus the legal establishment acted as a unit-to perfect the greatest and most massive fraud in human history.
Like a finely tuned machine the lawyers, judges and police successfully have thus held the law at bay in North America, equally in the United States and Canada and, so far at least, have been able to get away with it, not because they legally were capable of changing the law, but rather because illegally they abused their usurped jurisdiction to stonewall the law.
When the legal establishment prematurely, and therefore illegally, invaded any given region, the legal establishment immediately entrenched itself and consolidated its own position. The newcomer lawyers hung up their shingles and started doing land deals and certifying titles. They themselves lived in houses and raised families upon territory not yet purchased, as required by law, from the natives. When natives complained, to whom could they turn for legal redress? The judges were, and still are, elevated lawyers. Like the newcomer lawyers, the newcomer judges themselves, physically, and literally, were and are trespassers upon the yet unpurchased territory. So were, and are, the newcomer police.
If and when the natives complain, the mass of complaints fall upon the lawyers' psychologically pre-programmed ears. If and when the natives turn to the common law remedy of self-help, they are arrested as trouble makers, and taken before judges who are in a profound conflict of interest. They end up stigmatized, trivialized and discredited as criminals.
No illustration could be clearer, plainer or more poignant than that remarked above as provided by the Supreme Court of Canada, which court itself physically and literally is situate upon territory that has never been purchased from the Algonquin speakers of the Ottawa Valley drainage basin. When the traditional government of the Algonquin nation challenged that trespass, in the course of applying to intervene in the reference regarding Quebec secession, on January 17, 1997 the Supreme Court of Canada denied that nation intervenor status. It did so on the basis of allowing an objection made by a federally organized, recognized and funded Indian Act government, located only on one small portion of the vast Algonquin traditional territory. The particular federally organized native government objected to the intervention of the traditional government which, in contrast, was not federally recognized. Indeed, the practical purpose of federal organization and recognition has been to preclude and to silence the traditional form of government. In sum, the federal government illegally placed both the Supreme Court of Canada and the objecting native puppet government upon the yet unpurchased territory of the hereditary government of the Algonquin Nation. Then, the two trespassing usurpers, the Court and its native collaborator, acted in concert so as to exclude the position of the traditional government. In this fashion the literal trespass of the Supreme Court of Canada upon yet unpurchased native territory has been obscured. The transparently false illusion is that the Supreme Court of Canada might be independent and impartial with regard to the Mi'gmaq intervention which it did permit.
The consequence is that each of the 4 founding principles of natural law that constitute the basis of international law and constitutional law are negated. The newcomer court system in North America, from top to bottom, is not and can not possibly be an independent and impartial third party adjudicator.
By pretending to be, the truth is preempted and therefore justice as applied truth is precluded. The net result is that law as applied respect, in this situation meaning respect for the humanity of the natives, is also precluded. The "law and order" that results is law and order without truth and respect, which is injustice and tyranny, the antithesis of liberty. The consequence is genocide and ecocide.
In such a situation the newcomer society of the perpetrators is victimized along with the native society of the victims. As the slave owner is debased by the institution of slavery, so also is the society inflicting genocide itself inflicted.
In North America the corruption of the society thus begins at the top. The people at the bottom, the ordinary newcomers and natives, speak through the natural law, the international law and the constitutional law. The consensus of that law is a projection of their collective good will. But their voice is not heard-because the legal establishment at the top of the society will not listen to the law. The lawyers, judges and police have usurped jurisdiction, and they employ the usurped jurisdiction to stonewall the law.
The message reaches to every office, every boardroom, every schoolyard, every place of worship, everywhere: might is right.
This message corrupts. It eats at the heart and sinew of the society, of all the societies, newcomer and native alike, for even the native society is conscripted into aiding and abetting its own genocide.
If the newcomers' courts cannot agree upon the merits of these reasons, the disagreement between their contrary reasoning and this court reasoning must, under existing law, be submitted for third party adjudication in the international arena.
All that we therefore ask the newcomers' courts to do is not to set upon us and our people the newcomers' police, in place and in stead of submitting the dispute, if any, between us as courts, to the third part adjudication of yet a third court system.
If, when objectively applying the rule of law as an independent and impartial outsider, the third party finds that this native court is wrong, we can live with that. We are prepared to abide by the rule of law, and ask only the same of the newcomers and their courts.
What we can no longer bear to live with, for the injustice of it is causing anguish that spells genocide and ecocide, is the denial of our right both of jurisdiction and third party adjudication to vindicate it.
Therefore, all that we ask the newcomers' courts in comity to do is recognize and affirm that at law natives have rights to arguably yet unceded territory, plus the right to third party adjudication of the question whether it is in fact ceded. We therefore invite the newcomers' courts: "Agree with this native court, or at least let an independent and impartial third party objectively decide our disagreement, in accordance with the rule of law."
Once that fair and just solution has been declared by both native and newcomer court systems, the people of both cultures and their politicians can move onward and upward toward agreeing upon the identity of the third party adjudicator for the promising millennium ahead. The era of the Native Way, the Nature Way, the Justice Way will have been reconstituted, for the good of all humankind and its environment.
Eventually the question will occur whether, as an alternative to respecting natural law, international law and constitutional law as it presently exists, that law can and should be repealed. In anticipation, this native court has at this time only to repeat that any repeal is a matter for the people by international convention and constitutional amendment.
Taking the last mentioned form of law, constitutional law, the question will be:-could the United States and Canadian constitutions, legally, be amended so as to increase the newcomers' original claim of sovereignty? Recall, the claim by newcomers to sovereignty inceptively was restricted to what the United States Supreme Court in the 1832 case of Worcester v. Georgia termed the preemptive right to purchase:
[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...This was the exclusive right of purchasing such lands as the natives were willing to sell....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....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.In fact, as we have seen, there has never been legislative constitutional amendment to increase the original claim of the preemptive right of purchase to the greater right of eminent domain and American Congressional or Canadian Parliamentary omnipotence. But could there be such a constitutional amendment?
The answer depends upon whether constitutional law is valid if unilaterally it departs from natural law and international law in a fundamental particular. Could, for example, the constitutional law of any country validly be amended so as to permit in future the genocide of any group?
The natural law and international law precluding genocide is based upon the identical principles as those which underlie the constitutional law perception that the newcomers' claim of sovereignty originally and inherently is limited to the preemptive right of purchase. To embrace the concept that the constitutions of the United States and Canada could provide for the compulsory taking of previously unpurchased territory, a constitutional amendment would be the equivalent in law an amendment expressly authorizing genocide.
This equation between compulsory taking and genocide is literal and not merely metaphorical. Since native culture is autochthonous, which is to say springing from the land itself, the compulsory taking of the land necessarily constitutes the taking of the culture. The taking of the culture necessarily imposes "serious bodily or mental harm" within the meaning of article 2(b) of the Convention for the Prevention and Punishment of the Crime of Genocide, 1948.
Arguably, pre-War Germany might have amended the German constitution to legalize the holocaust, prior to 1948. However, it is not arguable that any country could do so subsequent to 1948. Today it universally is accepted that constitutional law is invalid to the extent that it departs from natural law and international law in a profound and fundamental particular. This is true even as to countries that may not have ratified the Convention for the Prevention and Punishment of the Crime of Genocide, 1948.
Thus we witness in the world today ad hoc courts prosecuting genocide relative to such countries as Bosnia-Herzegovina and Rwanda. A fortiori, it would not be credible to argue that countries such as Canada and the United States, which have ratified the convention, could amend their constitutions so as to permit genocide.
This is the reason that third party adjudication genuinely is, as natural law holds and Hume has said, "the origin of civil government and society." The constitutions can not directly be amended to permit genocide.
But, as the Law Society of Upper Canada in the case of Law Society v. Clark on June 19, 1996 held:-"genocide against the aboriginal people is a fact." Since that fact does exist, and this native court does take judicial notice of that fact based upon the oral history and personal knowledge of its native judges, in the absence of constitutional amendment permitting the genocide the genocide can exist only in consequence of the complementary fact that the legal establishment of North America does not prevent the genocide by implementing the law precluding it.
The genocide in North America has existed and will continue to exist, if at all, not because of any direct constitutional amendment but, rather, because the constitution indirectly has been suspended by those in society in whom is reposed the sacred trust to uphold the constitution: the lawyers, judges and police.
The newcomers' legal establishment in North America is guilty of "complicity in genocide" within the meaning of article 3(e) of the Convention for the Prevention and Punishment of the Crime of Genocide, 1948. That crime will continue to exist as a fact not only in North America, but by extension elsewhere in the world, unless and until the usurped monopoly of the North American legal establishment over unpurchased Indian territory is broken. Genocide will remain a fact until the natives' natural law, international law and constitutional law right to third party adjudication is respected.
The legal establishment of North America is in the profoundest possible conflict of interest. It has an interest in upholding the integrity of the rule of law. But it has a conflicting interest in evading accountability for its own complicity in genocide for derogating from the substance of the law.
When the North American judiciary of the newcomers permits the former interest to override the latter interest, on that day humankind will have made an evolutionary advance of structural significance. That day will dawn when the newcomer judiciary listens to, and actually hears, the traditional native judiciary.
We have, therefore, attempted, by publishing these reasons for judgment, to allow the traditional native voice to be heard.
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