STORY about Indigenous posted on November 12, 2015 by Kerry Coast
Occupiers’ Justice, Canada’s Broken Constitution, and Ongoing Genocide
With Letter from Life Chief Gary Metallic of the 7th District, Gespegawagi Tribal Council
![Gary Metallic, 2013. “Indian act band councils …are the created regimes of the Federal government, which eradicated our Hereditary Life systems. …when they [feds and Bands] sit at the table negotiating for our lands and resources, they are actually one party negotiating with itself.” Pic + quote – willinolanspeaks.com.](../../sites/mediacoop.ca/files2/mc/imagecache/bigimg/gary_metallic_wabanaki_confederacy_lodge2013.jpg "Gary Metallic, 2013. “Indian act band councils …are the created regimes of the Federal government, which eradicated our Hereditary Life systems. …when they [feds and Bands] sit at the table negotiating for our lands and resources, they are actually one party negotiating with itself.” Pic + quote – willinolanspeaks.com.")
Gary Metallic, 2013. “Indian act band councils …are the created regimes of the Federal government, which eradicated our Hereditary Life systems. …when they [feds and Bands] sit at the table negotiating for our lands and resources, they are actually one party negotiating with itself.” Pic + quote – willinolanspeaks.com.
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Canada and Israel equally practice occupiers’ justice. Both occupy land in contravention of their constitutions. When Israel was constitutionally established by international law fiat it was on condition that its land base would be counterbalanced by the complementary land base of the Palestinian State. Relying upon the international law doctrine of effective occupation Israel now occupies more than its allotted share, and blocks the creation of the Palestinian State, aided and abetted by other occupiers—Canada, the United States, Australia and New Zealand—each constitution respects the land rights of their respective indigenous populations while ignoring them in practice.
The ongoing genocide of indigenous peoples including the Palestinians is in breach of article 2(b) of the Convention for the Prevention and Punishment of the Crime of Genocide, 1948. That article indicts the intentional infliction of “serious bodily or mental harm” by one country against ethnic or national groups. There is no exception for genocide caused by the complicity of the legal establishment: the lawyers and courts. Their job is to uphold the supremacy of the constitutional law and above all to prevent and punish genocide. This article focuses on Canada and submits it must repair its own broken constitution in order as a matter of domestic policy to establish itself as a constitutional democracy. As a matter of foreign policy, Canada must stop supporting its stonewalling of the Palestinian State for fear of offending Israel.
Otherwise Canada will remain in complicity of the genocide attributable to occupiers’ justice both at home and abroad.
The constitution is broken and cannot be repaired without being amended. The alternative is to give the land unconstitutionally taken without the informed consent of the indigenous peoples back to them. This will not happen because it is not a human trait for countries knowingly to commit national suicide. Europeans and others from around the world who have helped to build what Canada is today cannot and will not return to their places of origin.
The constitution must be amended to provide for this fundamental truth. That is the beginning of the task of Truth and Reconciliation. Stonewalling the truth and letting the lie fester—as it is doing—delays the day of reconciliation and the ongoing genocide attributable to the lie. Some land and some money will have to change hands but not so much that the country itself is broken. By its example in ending the era of the broken constitution Canada can help others in the world do the same, including Israel.
Mr Justice Clarence Thomas put it this way in a dissenting judgement in the case of Lara v. US, 541 US 197, 214-227 (2004):
In my view, the tribes either are or are not separate sovereigns, and our federal Indian law cases untenably hold both positions simultaneously.…
In 1871, Congress enacted a statute that purported to prohibit entering into treaties with the “Indian nation[s] or tribe[s].” 16 Stat. 566, codified at 25 USC §71. Although this Act is constitutionally suspect (the Constitution vests in the President both the power to make treaties, Art. ii, §2, cl. 2, and to recognize foreign governments, Art. ii, §3; see, e.g., United States v. Pink, 315 US 203, 228-230 (1942)), it nevertheless reflects the view of the political branches that the tribes had become a purely domestic matter. To be sure, this does not quite suffice to demonstrate that the tribes lost their sovereignty. …Federal Indian policy is, to say the least, schizophrenic.
And this confusion continues to infuse federal Indian law and our cases. ((note 4):…this is precisely the confusion that I have identified and that I hope the Court begins to resolve.)
… I believe we must examine more critically our tribal sovereignty case law. Both the Court and the dissent, however, compound the confusion by failing to undertake the necessary rigorous constitutional analysis. I would begin by carefully following our assumptions to their logical conclusions and by identifying the potential sources of federal power to modify tribal sovereignty.…
I do, however, agree that this case raises important constitutional questions that the Court does not begin to answer. The Court utterly fails to find any provision of the Constitution that gives Congress enumerated power to alter tribal sovereignty…and I would be willing to revisit the question.…
The Federal Government cannot simultaneously claim power to regulate virtually every aspect of the tribes through ordinary domestic legislation and also maintain the tribes possess anything resembling “sovereignty.” The Court should admit that it has failed in its quest to find a source of congressional power to adjust tribal sovereignty. Such an acknowledgement might allow the Court to ask the logically antecedent question whether Congress (as opposed to the President) has this power. A cogent answer would serve as the foundation for the analysis of the sovereignty issues posed by this case. We might find that the Federal Government cannot regulate the tribes through ordinary domestic legislation and simultaneously maintain that the tribes are sovereigns in any meaningful sense. But until we begin to analyze these questions honestly and rigorously, the confusion that I have identified will continue to haunt our cases.
The era when the tribes were “separate sovereigns” is the cornerstone of the law that has been ignored in practice (in both the USA and Canada), to the juncture at which the amended constitution must recognize and affirm the indigenous peoples are sovereign Canadians—like all others in this single state of equals. The heritage of the tribes must never be forgotten and their gift to Canada acknowledged and reflected in the security they share for the future in local self government with increased land bases and some lump sum heritage fund.
This constitutional amendment elevates article 1 of the Universal Declaration of Human Rights to constitutional status: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” For “human beings” one may provide the word “Canadians.”
Proof of the alleged genocide requires establishment of the mens rea or guilty intent, or wilful indifference to the effect, behind a given act. Such mental state of mind is to be presumed—as a matter of criminal law alone—when the genocidal consequence of the guilty act or actus reus is “reasonably foreseeable and probable,” and ongoing.
The book Dying to Please You: Indigenous Suicide in Contemporary Canadaby Roland D. Chrisjohn and Shaunessy M. McKay, Theytus Books, 2015, accounts for the statistically extreme rates of indigenous suicides attributable to the ongoing denial of constitutional land rights (sovereignty, jurisdiction and possession) under the auspices of assimilation and mind manipulation. The book deals in separate parts with suicides reasonably and probably attributable to causes that are shared in common between native and non-native society, and those suicides that are reasonably and probably unique to causes experienced by native but not by non-native society. For the mid-life range suicides range between 5 and 10 times more likely to happen in native society.
When comparison is made with similar statistical evidence in the period 1933 to 1945 in Nazi Germany the range of difference is between 10 and 50 times more likely to happen in Jewish than non-Jewish society. Psychological and sociological factors reasonably and probably relate to the inferiority propaganda and treatment accorded the ethnic and national subjects of suicides attributable to the intolerable pressure of membership in a group being subjected to “serious bodily or mental harm” within the meaning of article 2(b) of the genocide convention.
Membership in a group that is a target of genocide reasonably and probably induces a measurable statistic of self killing.
I lived on Indian reservations in Canada for 12 years and witnessed human misery and several deaths attributable to the fact that the legal profession willfully blinds itself to the reasonably foreseeable and probable consequence of blindsiding the constitution. For another 28 years I read for a master’s degree and a doctorate in jurisprudence and litigated some 40 cases in the USA and Canada. Each postgraduate thesis focused upon North American constitutional history and the international law of genocide.
The consequence was that in not a single case—including several that went to the Supreme Courts of the USA and Canada but were denied the privilege to appeal—was the broken nature of the constitution addressed or the fact of the ongoing nature of the genocide-in-progress faced. Instead, I was convicted of criminal contempt of court and disbarred for my supposed crime of having “hectored” the courts with a lie. The “lie” was that on each of the some 40 times I had raised the accusation it had not been addressed. If that were true there would be a record of the addressing, yet no such record exists. Not once. This fact was also ignored by the convicting courts and disbarring tribunal.
In the crucial formative years the constitutional law warranting aboriginal indigenous sovereignty, jurisdiction and possession was enacted by the Royal Proclamation of 1763, the first constitution of what is now Canada. It provided that all land of British North America inclusive of what is now the USA and Canada was subject to such sovereignty. The only way in which a settler government might acquire sovereignty and the jurisdiction to govern and possess any land whatsoever was by purchase from the aboriginal people assembled in their traditional governmental councils for this express and explicit purpose.
Settlers were enjoined to remove themselves from land settled in the absence of a previous treaty of purchase of the land from the indigenous tribe claiming it.
The aboriginals themselves were declared to be under the protection of the crown; in a trust relationship. The crown took upon itself the constitutional duty of explaining the effect and obtaining a fair price for the sovereignty being transferred. This fiduciary relationship repeatedly has been affirmed by the courts. But even so, it was broken from the start as the histories of the several treaties makes apparent. In all cases the stipend paid for the relinquishment of sovereignty was a pittance that scandalously undervalued the gift. In most treaties the effect was not explained and force was used or threatened.
John Elmsley, Chief Justice of Upper Canada, in his “Report to the Executive Council of Upper Canada dated October 22, 1798, PAC, RG1, E1, v46, State Book ‘B’, pp. 210-14, said:
It is no secret to any person at all acquainted with the present state of Indian Affairs that the aborigines of this Part of His Majesty’s American Dominions are beginning to appreciate their lands not so much by the use which they themselves, as by the value at which they are estimated by those who purchase them, and either cultivate them, or dispose of them in their natural state. It is equally notorious, that if the Indians wanted penetration to make the discovery, there are a great many persons of European origin who have attached themselves to the several Tribes which surround us, and will not fail to inform them that the value of any article depends as much upon its importance to the purchaser, as on its usefulness to the present possessors.
But if this were doubtful now, when the lands purchased from the Indians are distributed among His Majesty’s Subjects at a Fee hardly exceeding the prime cost of them, it cannot possibly remain so when the Indians discover as they unquestionably will, that the purchases made from them are to be converted into a source of Revenue to ourselves—slow as their progress is towards civilization they are perfectly apprised of the value of money and of its use in maintaining them in those habits of indolence and intemperance to which most of them are more or less inclined.
In order to therefore to exercise that foresight which our Indian neighbours are beginning to learn, and in which it certainly cannot be our interest to promote their improvement, we submit for your Honour’s consideration the propriety of suspending the promulgation of the plan which has been laid down for us until we can make a purchase sufficiently large to secure for us the means of extending the population and encreasing the strength of the Provinces so far as to enable us before our stock is exhausted to dictate instead of soliciting the terms on which future acquisitions are to be made.
The Chief Justice’s Report in 1798 recommended that the trustee trick the beneficiaries of the trust relationship into selling their sovereignty for substantially less than it was worth, manifestly in breach of the trust. Yet at the same time throughout the 18th and 19th centuries in the decided cases the lawyers and judgements consistently confirmed the constitutionally binding effect—upon the legal establishment—of the terms of the Royal Proclamation:
Marshall v. Clark, 1 Kentucky R. 77, 80-81 (1791). The old claim of the crown, by the treaty of 1763, extended to, and was limited by the Mississippi including the land in dispute, which gave a right to the crown as against other European nations, and fixed the limits of titles to be derived from that source to the citizens of Virginia. The dormant title of the Indian tribes remained to be extinguished by government, either by purchase or conquest, and when that was done, it inured 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. This being the case at the time of revolution, when the commonwealth succeed[ed] to the royal rights…in the opinion of the court, the Indian title did not impede either the power of the legislature to grant the land to officers and soldiers, or to 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.
Weiser v. Moody, 2 Yeat’s 127, 127-8 (Penn. SC) (1796). 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.…The court declared their opinion to the jury, that if the late proprietaries, or their officers, knew that the lands surveyed for Conrad Weiser, lay out of the then Indian purchases, and granted them under full knowledge thereof, the patent would enure for the benefit of the grantee, when the lands came afterwards to be purchased from the Indians; and the proprietaries could not pass the title to a stranger.…[But] it cannot be presumed that the proprietary officers knew the lands surveyed for Conrad Weiser to be without the limits of their purchases [from the Indians].…If the King is deceived in his grant, it will be avoided. Any contract or deed will be vitiated by a legatio falsi sive suppressio veri.
Sherer v. McFarland, 2 Yeat’s 124, 225, 226 (Penn. SCR) (1797). We are no enemies to bona fide improvements, restricted within rational limits. But these were never deemed to extend beyond land purchased from the Indians. Such as 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.…It must be admitted, that the lords of the soil had the exclusive right of disposing of their lands in their own mode.
Fletcher v. Peck, 6 Cranch’s 87, 142-3 (1810). The majority of the Court is of opinion that the nature of the Indian title, which is certainly to be respected by all courts, until it has been legitimately extinguished, is not such as to be absolutely repugnant to seisin in fee on the part of the state.
Johnson v. McIntosh, 8 Wheat. 543, 574, 585, 588, 591, 592, 596 (1823). [The different nations of Europe] claimed and exercised, as a consequence of their ultimate dominion, a power to grant the soil, while yet in the possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy.…They were admitted to be the rightful occupants of the soil, with a legal as well as a just claim to retain possession of it, according to their own discretion.… While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in the possession of the natives. These grants have been well understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy.…It has never been doubted, that either the United States, or the several States, had a clear title to all the lands within the boundary lines described in the treaty, subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right, was vested in that government which might constitutionally exercise it.…All our institutions recognize the absolute title of the crown, subject only to the Indian right of occupancy.…[T]he Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession their lands, but to be incapable of transferring the absolute fee to others.…[T]he Indian title, which, although entitled to the respect of all Courts until it should be extinguished, was declared not to be absolutely repugnant to a seisin in fee on the part of the State. …The title, subject only to the right of occupancy by the Indians, was admitted to be in the king, as was his right to that title. The lands, then, to which this proclamation referred, were lands which the king had had a right to grant, or to reserve for the Indians.
Danforth v. Wear, 9 Wheat. 673, 675, 677 (1824). As to lands surveyed within the Indian boundary, this Court has never, hesitated to consider all such surveys and grants as wholly void…[although it was argued that the State grant] was only suspended by the Indian title, and attached legally and effectually to the soil, as soon as the interposing title of the Indians was removed…the inviolability of the Indian territory is fully recognized.
Cornet v. Winton, 2 Yerger Tenn. CA 129, 149 (1826). …the Indian nation was no party to this grant; its usufructory title was not thereby affected. North Carolina had no right to take it from the Indians for Stuart’s benefit, without their consent; this consent they have not given, and therefore no right to prosecute this action to recover the possession of the land has ever vested in Stuart; hence he must fail upon the weakness of his own title.
Cherokee Nation v. State of Georgia, 5 Pet. 1, 17, 49, 76 (1831). Though the Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government; yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.…While the different nations of Europe respected the rights of the natives as occupants they asserted the ultimate dominion to be in themselves; and claimed and exercised as a consequence of this ultimate dominion, a power to grant the soil, while yet in the possession of the natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy.…They have not stipulated to part with that right (of occupancy); and until they do, their right to the mines stands upon the same footing as the use and enjoyment of any other part of their territory.
Worcester v. Georgia, 6 Pet. 515, 542, 544, 545, 546, 552, 553, 559, 560, 583 (1832).…discovery gave title to the government by whose subjects or by whose authority it was made, against all other European governments.…This principle…gave…the sole right of acquiring the soil and making settlements on 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 Europeans and the natives was determined in each case by the particular government which asserted and could maintain this preemptive 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 with respect to the word “hunting grounds.” Hunting was at that time the principle occupation of the Indians, and their land was more used for that purpose than for any other. It could not, however, be supposed, that any intention existed of restricting the full use of the lands they reserved. To the United States, it could be matter of no concern, whether their whole territory was devoted to hunting grounds, or whether an occasional village, an occasional corn field, interrupted and gave some variety to the scene. These terms had been used in their treaties with Great Britain and had never been misunderstood. They had never been supposed to imply a right in the British government to take their lands, or to interfere with their internal government…This was the exclusive right of the purchasing such lands as the natives were willing to sell.…These grants asserted a title against Europeans only, and were considered as blank pieces of paper so far as the rights of the natives were concerned.…The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region claimed; and this was a restriction which those European potentates imposed on themselves, as well as on the Indians…the Indian nations possessed a full right to the lands they occupied…Except by compact we have not even claimed a right of way through the Indian lands.
Mitchell v. United States, 9 Peter’s 711, 745, 746, 749, 755 (1835). We come now to consider the nature and extent of the Indian title…Indian possession or occupation was considered with the reference to their habits and modes of life; their hunting grounds were as much in their actual possession as the cleared fields of the whites; and their right to its exclusive enjoyment in their own way, and for their own purposes, were as much respected, until they abandoned them, made a cession to the government, or an authorized sale to individuals…One uniform rule seems to have prevailed…by their laws; that friendly Indians were protected in the possession of the lands they occupied, and were considered as owning them by a perpetual right of possession in the tribe or nation inhabiting them, as their common property, from generation to generation, not as the right of the individuals located on particular spots. Subject to this right of possession, the ultimate fee was in the crown and its grantees, which could be granted by the crown or colonial legislatures while the lands remained in the possession of the Indians, though possession could not be taken without their consent. Individuals could not purchase Indian lands without permission or licence from the crown, colonial governors, or according to the rules prescribed by colonial laws; but such purchases were valid with such licence, or in conformity with the local laws; and by this union of the perpetual right of occupancy with the ultimate fee, which passed from the crown by the licence, the title of the purchaser became complete.…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 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, that the proclamation of 1763, which was the law of the provinces ceded by treaty of 1763, was binding on the king himself, and that a right once granted by a proclamation could not be annulled by a subsequent.…[L]and 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.
New Orleans v. Armas, 9 Pet. 224, 236 (1835). [I]t is a principle applicable to every grant, that it cannot affect pre-existing title.
Cameron v. Kyte, (1835), 12 ER678, 682 (JCPC). If a Governor had, by virtue of that appointment, the whole sovereignty of the Colony delegated to him as a Viceroy, and represented the King in the government of that Colony, there would be good reason to content that an act of sovereignty done by him would be valid and obligatory upon the subject living within his government, provided the act would be valid if done by the Sovereign himself…But if the Governor be an officer, merely with a limited authority from the Crown, his assumption of an act of sovereign power, out of the limits of the authority so given to him, would be purely void, and the Courts of the Colony over which he presided could not give it any legal effect. We think the office of the Governor is of the latter description, for no authority or dictum has been cited before us to show that a Governor can be considered as having the delegation of the whole Royal power, in any colony, as between him and the subject, when it is not expressly given by his commission. And we are not aware that any commission to colonial governors conveys such an extensive authority…
New Orleans v. United States, 35 US 662, 730 (1836). It would be a dangerous doctrine to consider the issuing of a grant as conclusive evidence of right in the power which issued it. On its face it is conclusive, and cannot be controverted; but if the thing granted was not in the grantor, no right passes to the grantee.
United States v. Fernandez, 35 US 303, 305 (1836). Nor does there appear to have been any restriction on the powers of the governor to make grants of land under Spain, other than those imposed upon the governors of Great Britain: both made grants without regard to the land being in the possession of the Indians: they were valid to pass the right of the crown, subject to their right of occupancy:…
Clark v. Williams, 36 Mass. R. 499, 500, 501 (1837). The object of this statute manifestly was, to secure the Indians from being deceived and imposed upon, and to enable the government to avail themselves of the full benefit of the crown grant of the lands to themselves and their grantees, by giving them the exclusive privilege of extinguishing and acquiring the Indians’ right of occupancy…[W]e think it manifest, that this law was made for the personal relief and protection of the Indians, and it is to be limited in its operation. It is to be used as a shield, not as a sword.
Godfrey v. Beardsley, 2 McLean 412, 416 (Ind.) (1841). The Indian right is that of occupancy; and, until this right shall be extinguished by purchase, no possession can be taken. It is also admitted, that a mere reservation of the Indian right to a certain part, within the described boundaries, leaves the right reserved, as it stood before the cession.
Balliot v. Bauman, 5 Penn. 150, 154, 155 (1843). A patent is not operative against the rights of a third person existing before the issuing of the patent. He may show that his right is better than the one who obtained the patent and for that purpose may inquire into the prior title of the patentee.…[and] show his own equitable title is better. The patent conveys the full legal title of the state.
Brown v. Wenham, 10 Metcalf 496, 498 (Mass. SC)(1843). The provincial St.13 Wm 3, (1701,) entitled “an act to prevent and make void clandestine and illegal purchases of lands from the Indians,” rendered void, as the foundation of title, all deeds made by Indians, without the license or approbation of the legislature, after the year 1633. [“St.13 Wm 3, (1701,)” is an alternative citation for An Act to prevent and make void clandestine and illegal purchases of lands from the Indians, Stat. Prov. Mass. Bay 1701-02, c. 11.]
Coleman v. Tish-Ho-Mah, Smedes & M. 40, 48 (Miss. HCEA) (1844). Theirs was a right to retain possession, and to use it according to their own discretion, though not to dispose of the soil except to the government. That claimed the ultimate dominion, and the exclusive right to grant the soil, subject to the Indian right of occupancy.
Ogden v. Lee, 6 Hill’s 546, 548, 549 (NYSC) (1844). The European governments whose people discovered and made settlements in North America, claimed the sovereignty of the country, and the ultimate title, but not the immediate right of possession, to all lands within their respective limits. Upon the principle laid down by Vattel, (B. 1, & 81, 209,) they might have asserted a larger right; for the natives lived by fishing and hunting, without converting to the purposes of agriculture any considerable portion of the of the vast tracts of the country over which they wandered. But the Europeans pursued the more just and politic course of acquiring the Indian title by purchase. The claim which they set up and asserted amounted to little more than a right of preemption, or the right of purchasing from the Indians all the lands within the bounds of their respective discoveries, to the exclusion of all other nations. 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. It was so of the grant made by Charles the second to his brother the duke of York in 1664, which included all the territory now constituting the states of New-York and New-Jersey. But these grants were not intended to convey, and the grantees never pretended that they has 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. And so far as the state of New-York is concerned, I am happy to say, that beyond what may have been acquired by conquest in lawful war, the Indians have never been deprived of a single foot of land without their voluntary consent. Their title by occupancy has been uniformly acknowledged, both by the colonial and state governments, from the first settlement of the country down to the present day; and it cannot now be successfully questioned in the judicial tribunals.
Stockton v. Williams, 1 Mich. R. 546, 560 (SC) (1845). The power of the government to grant the soil while in the possession of the Indians, and subject to their right of occupancy, is a proposition which has long since been settled by a series of decisions of authority.
Fellows v. Lee, 5 Denio 628 (NYCE) (1846).…the Indian title to lands is an absolute fee, and that the pre-emption right conceded to Massachusetts, was simply a right to acquire by purchase from the Indians their ownership of the soil, whenever they should chose to sell it.
Bown v. West, (1846), 1 E&A 117, 118 (Upper Canada). 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 them against 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 by orders of council and proclamations, of which all people were expected and required to take notice.
Montgomery v. Ives, 13 Smedes & M. 161, 174-5 (Miss. HCEA) (1849). Let us refer to the proclamation of George iii… “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 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 farther declares, “that, for the present, all the lands not included within the limits of said new governments, shall be reserved to under the sovereignty, protection and dominion of the crown, and forbids all purchases and settlements beyond those limits without special leave and license 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 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.…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.
Breaux v. Johns, 4 Louisiana R. 141, 143 (1849). These grants convey a title to the grantees, subject only to the Indian right of occupancy.
Gaines v. Nicholson, 9 How. 356, 365 (1850). No previous grant of Congress could be paramount, according to the rights of occupancy which this government has always conceded to the Indian tribes within her jurisdiction. [The reservation] was so much carved out of the Territory ceded, and remained to the Indian occupant, as he never parted with it. He holds, strictly speaking, not under the treaty of cession, but under his original title, confirmed by the government in the act of agreeing to the reservation.
Marsh v. Brooks, 49 US 223, 232 (1850).…Indian title consisted of the usufruct and right of occupancy and enjoyment; and, so long as it continued, was superior to and excluded those claiming the reserved lands by patents made subsequent to the ratification of the treaty; they could not disturb the occupants under the Indian title. That an action of ejectment could be maintained on an Indian right to occupancy and use, is not open to question.
People v. Dibble, 18 Barbour’s NYSCR 412, 418 (1854). The object of the law, with various other laws of the state, was to protect the indians to quiet them and render them secure.
Scott v. Sandford, 19 How. 393, 403, 404, 405, 407, 420, 426, 432, 435, 449, 450, 452, 460, 483, 484, 485, 501, 506, 508, 509, 513, 520 (1857). The question is simply this: can a negro, whose ancestors were imported into this country and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such entitled to all the rights and privileges, and immunities guaranteed by that instrument to the citizen?…The situation of this population was altogether unlike that of the Indian race. The latter, it is true, formed no part of the colonial communities, and never amalgamated with them in social connections or government. But although they were uncivilized, they were yet a free and independent people, associated together in nations or tribes, and governed by their own laws. Many of these political communities were situated in territories to which the white race claimed the ultimate right of dominion. But that claim was acknowledged to be [404] subject to the right of the Indians to occupy it as long as they thought proper, and neither the English nor colonial Governments claimed or exercised any dominion over the tribe or nation by whom it was occupied, nor claimed the right to the possession of the territory, until the tribe or nation consented to cede it. These Indian governments were regarded and treated as foreign Governments as much as if an ocean had separated the red man from the white; and their freedom has constantly been acknowledged, from the time of the first immigrants to the English colonies to the present day, by the different Governments which succeeded to each other. Treaties have been negotiated with them, and these Indian political communities have always been treated as foreigners not living under our Government. It is true that the course of events has brought the Indian tribes within the limits of the United States under the subjection of the white race; and it has been found necessary, for their sake as well as our own, to regard them as in a state of pupilage, and to legislate to a certain extent over the territory they occupy. But they may, without doubt, like the subjects of any foreign Government, be naturalized by the authority of Congress, and become citizens of a State, and of the United States; and if an individual should leave his nation or tribe, and take up abode among the white population, he would be entitled to all the rights and privileges which would belong to any emigrant from any other foreign people…[405] It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed this sovereignty and framed the Constitution. The duty of the Court is to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.…[407] It is difficult at this day to realize the state of public opinion in relation to that unfortunate race [Africans], which prevailed in the civilized and enlightened portions or the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. But the public history of every European nations displays it in a manner too plain to be mistaken. They had for more than a century before been regarded as beings of an inferior order, and altogether unfit with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect:…[420] Congress might…have authorized the naturalization of Indians, because they were aliens and foreigners. But, in their untutored and savage state, no one would have thought of admitting them as citizens in a civilized community. And, moreover, the atrocities they have recently committed, when they were allies of Great Britain in the Revolutionary war, were yet fresh in the recollection of the people of the United States, and they were even guarding themselves against the threatened renewal of Indian hostilities. No one would have supposed then that any Indian would ask for, or was capable of enjoying, the privileges of an American citizen, and the word was not used with any particular reference to them. Neither was it used with any reference to the African race imported into or born in this country; because Congress had no power to naturalize them, and therefore no there was no necessity for using particular words to exclude them.…[426] No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race [African slaves], in the civilized nations of Europe or in this country, should induce this court to give to the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called upon to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption.…Any other rule would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty.…And upon a careful consideration of the subject, Dred Scott was not a citizen of Missouri within the meaning of the Constitution of the United States, and not entitled as such to sue in its courts;…[432] The act of Congress, upon which the plaintiff relies, declares that slavery and involuntary servitude, except for punishment for crime, shall be forever prohibited in all the part of the territory ceded by France, under the name Louisiana,…and the difficulty which meets us at the threshold of this part of the enquiry is, whether Congress was authorized to pass this law under any of the powers granted to it by the Constitution; for if the authority was not given by that instrument, it is the duty of this court to declare it void and inoperative, and incapable of conferring freedom upon any one who is held as a slave under any one of the United States…[435]…this Government was to be carefully limited in its powers, to exercise no authority beyond those expressly granted by the Constitution, or necessarily to be implied from the language of the instrument, and the objects it was intended to accomplish;…[449] It has no power of any kind beyond it; and it cannot, when it enters a Territory of the United States, put off its character, and assume discretionary or despotic powers, which the Constitution denied to it…[450]…and the Federal Government can exercise no right power over his person or property beyond what the instrument confers, nor lawfully deny any right which it has reserved…And no laws or usages of other nations, or reasoning of statesmen or jurists upon the relations of master and slave, can enlarge the powers of the Government, or take from the citizens the rights they have reserved. [452] Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding or owning property of this kind in the territory of the United States north of the line mentioned, is not warranted by the Constitution, and is therefore void;…[460] Every State or nation possesses an exclusive sovereignty and jurisdiction within her own territory; and, her laws affect and bind all property and persons residing within it…And it is equally true, that no State or nation can affect or bind out of its territory, or persons not residing within it.…[480]…to change or to abolish a fundamental principle of the society, must be the act of the society itself—of the sovereignty; and that none other can admit to the participation of that high attribute. [483]…each nation should be left in the peaceable enjoyment of that liberty which she inherits from nature…power or weakness does not make any difference. A small republic is no less sovereign than the most powerful kingdom…[484]and no one nation is entitled to dictate a form of government or religion, or a course of internal policy, to another. [485] Sovereignty, independence, and a perfect right of self-government, can signify nothing less than a superiority to and exemption from all claims of extraneous power, however expressly they may be asserted, and render all attempts to enforce such claims merely attempts at usurpation. [501] But the recognition of a plenary power in Congress to dispose of the public domain, or to organize a Government over it, does not imply a corresponding authority to determine the internal policy, or to adjust the domestic relations, or the persons who may lawfully inhabit the territory in which it is situated.…[506] This [the inflation of federal plenary jurisdiction] proceeds from a radical error, which lies at the foundation of much of this discussion. It is, that the Federal Government may lawfully do whatever is not directly prohibited by the Constitution. This would have been a fundamental error, if not amendments to the Constitution had been made. But the final expression of the will of the people of the States, in the 10th amendment, is, that the powers of the Federal Government are limited to grants of the Constitution. [508] In Pollard’s Lessee v. Hagan, (3 How., 212,) the court say; “The United States have no constitutional capacity to exercise municipal [509] jurisdiction, sovereignty, or eminent domain, within the limits of a State or elsewhere, except in cases where it is delegated, and the court denies the faculty of the Federal Government to add to its powers by treaty or compact.” [513]…a power to make rules and regulations respecting the public domain does not confer a municipal sovereignty over persons and things upon it. [520] The King of Great Britain, by his proclamation of 1763, virtually claimed that the country west of the mountains had been conquered from France, and ceded to the Crown of Great Britain by the treaty of Paris of that year, and he says: “We reserve it under our sovereignty, protection and dominion, for the use of the Indians.” This country was conquered from the Crown of Great Britain, and surrendered to the United States by the treaty of peace of 1783.
Fellows v. Denniston, 23 NY 420, 423, 428, 431 (CA)(1861). The nature of the aboriginal title, and that of the State within which the lands lie, has been so often defined by judicial determination that no time need now be spent on it. (Johnson v. McIntosh, 8 Wheat., 543; Fellows v. Ellsworth,6 Hill, 546; S.C., 5 Denio, 528.) The Indian nation, in a collective or national capacity, has the right of occupancy of the land, but no power to sell or in any way dispose of it to others, except to the State, or to persons authorized by it to purchase; and the government of the State has the ultimate right of the soil, or title in fee simple, subject to the Indian right of occupancy. The right to purchase the Indian claim, or, in the language usually employed, to extinguish the Indian title, thus existing in the State or in its grantees, is usually called the right of preemption.…If the purchaser acquires no right to interfere with the Indian occupancy, the subject of his purchase is limited to the title of the grantees under the State of Massachusetts; and he acquires nothing more. This, we have seen, is the right of preemption, and perhaps it embraces also a technical fee; but, as it does not embrace the Indian right of occupancy, but expressly excludes it, and that is the only right which the Indians had, it is clear that they are not prejudiced by the tax or by any sale which may take place pursuant to it. The title of the grantees under Massachusetts to these lands, before the extinguishment of the Indian title, subject as it was to the right of possession remaining in the Indians for an indefinite period, was not liable to taxation and sale under the general laws of the State relative to the assessment of taxes.… Each of the three Constitutions successively adopted by the people of the State has contained a provision like that in the first Constitution, which was in these words: “No contracts or purchases for the sale of lands made since the 14th day of October, a.d. 1775, or which may be hereafter made with or of the said Indians, within the limits of this State, shall be binding on the said Indians, or be deemed valid, unless made either under the authority and with the consent of the Legislature of this State.”
Constitution Act (Canada), 1867, s. 90.…Disallowance of Acts,…shall extend and apply to the Legislatures of the several Provinces…s. 91(24)…the exclusive Legislative authority of the Parliament of Canada extends to…Indians, and lands reserved for the Indians. S. 92(13). In each Province the Legislature may exclusively make Laws in relation to Property and Civil Rights within the Province. S. 109. All Lands…shall belong to the several Provinces…subject to…any Interest other than that of the Province in the same. S. 129. Except as otherwise provided by this Act, all Laws in force…at the Union, shall continue in Ontario…as if the Union had not been made. S. 132. The Parliament and Government of Canada shall have all Powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries.
Connolly v. Woolrich, (1867), 11 LCJ 197, 205-07 (SC Quebec), affirmed (1869), RLOS 356-7 (CA Quebec)…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 learned and august tribunal—the Supreme Court of the United States. In the celebrated case of Worcester against the State of Georgia, (6th Peters Reports, pages 515-542), Chief Justice Marshall—perhaps one of the greatest lawyers of our times—in delivering the judgment of the Court, said:
America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws. It is difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered, which annulled the pre-existing rights of its ancient possessors.
After lying concealed for a series of ages, the enterprise of Europe, guided by nautical science, conducted some of her adventurous sons into this western world. They found it in the possession of a people who had made small progress in agriculture or manufactures, and whose general employment was war, hunting and fishing.
Did these adventurers, by sailing along the coast, and occasionally landing on it, acquire for the several governments to whom they belonged, or by whom they were commissioned, a rightful property in the soil, from the Atlantic to the Pacific; or rightful dominion over the numerous people who occupied it? Or has nature, or the Creator of all things, conferred these rights over hunters and fishermen, on agriculturalists and manufacturers?
But power, war, conquest give rights, which after possession, are conceded by the world; and that can never be controverted by those on whom they descend. We proceed, then, to the actual state of things, having glanced at their origin, because holding it in our recollection might shed some light on existing pretensions.
The great maritime powers of Europe discovered and visited different parts of this continent at nearly the same time. The object was too immense for any of them to grasp the whole; and the claimants too powerful to submit to the exclusive or unreasonable pretensions of any single potentate. To avoid bloody conflicts, which might terminate disastrously for 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 that 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 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 preemptive 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 claim; nor was it so understood.********
Certainly it is, that our history furnishes no example, from the first settlement of our country, of any attempt on the part of the crown to interfere with the internal affairs of the Indians, farther than to keep out the agents of foreign powers, who, as traders or otherwise, might seduce them into foreign alliances. The king purchased their lands when they were willing to sell, at a price they were willing to take; but never coerced a surrender of them. He also purchased their alliance and dependence by subsidies; but never intruded into the interior of their affairs, or interfered with their self government, so far as respected themselves only.
Though speaking more particularly of Indian lands and territories, yet the opinion of the Court as to the maintenance of the laws of the Aborigines, is manifest throughout. The principles laid down in this judgment, (and Mr. Justice Story as a Member of the Court concurred in this decision), admit of no doubt.
Connolly v. Woolrich, (1869), RLOS 356-7 (CA Quebec). 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.
United States v. Foster, 2 Bissell’s 377, 377 (Wisc. Cir. Ct.) (1870). It may be doubted whether this reservation can be sold by the United States in the present condition of the title, even by act of Congress, without the consent of the Indians themselves, but it is certain that it cannot be without an express law; and if the precedents which have always existed in such cases should be followed, it cannot, and ought not to be sold by the Government, until the rights of the Indians are purchased, and with their free consent.
Minter v. Shirley,3 Miss. 376, 381, 382 (1871). The right to acquire and extinguish their title pertained exclusively to the United States, therefore purchases, made from them separately, or as tribes, were null and void.…The several acts of congress, in reference to the survey and sale of the public lands, distinctly keep in view the fact “that the Indian title must first have been extinguished, and acquired by the United States, before individual right to any part of the soil can be derived and vested.”
Holden v. Joy, 84 US 211, 244 (1872). Obviously this principle regulated the right conceded by discovery among the discoverers, but it did not affect the rights of those already in possession, either as aboriginal occupants or as occupants by virtue of a more ancient discovery. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell.…Unmistakably their title was absolute, subject only to the preemption right of purchase acquired by the United States as the successors of Great Britain, and the right also on their part as successors of the discoverer to prohibit the sale of the land to any other governments or their subjects, and to exclude all other governments from any interference in their affairs.
St. Catherines Milling and Lumber Company Ltd. v. The Queen, (1888), 14 AC 46, 53-55, 60 (JCPC). Whilst there have been changes in the administrative authority, there has been no change since the year 1763 in the character of the interest surrendered by the treaty. The ceded territory was at the time of the Union land vested in the Crown, subject to “an interest other than that of the Province in the same” within the meaning of sect. 109;…the [treaty’s] legal consequences …opened up for settlement, immigration, and such other purpose as to Her Majesty might seem fit…there has been all along vested in the Crown a substantial and paramount estate underlying the Indian title, which became a plenum dominium [plenary jurisdiction] whenever that title was surrendered or otherwise extinguished.
AG Ontario v. AG Canada: In re Indian Claims, [1897] AC 199, 210-11 (JCPC). The beneficial interest in the territories ceded by the Indians under the treaties became vested, by virtue of s. 109, in the Province of Ontario.…The effect of the treaties was, that, whilst the title to the lands continued to be vested in the Crown, all beneficial interest in them, together with the right to dispose of them, and to appropriate their proceeds, passed to the Government of the Province.
“An interest other than that of the province in the same” appears to them [their Lordships] to denote some right or interest in a third-party, independent of and capable of being vindicated when in competition with the beneficial interest of the old province.
That case of In re Indian Claims in 1897 is the last case decided by the Judicial Committee of the Privy Council when it still was the highest court of appeal, the court of last resort, relative to what is now Canada. It correctly summarized the law as it had stood throughout the 18th and 19th centuries. In a nutshell it confirmed that—pending the purchase of the land from the Indian tribe claiming it—all land in Canada remains “subject to” aboriginal indigenous sovereignty, jurisdiction and possession regardless of a grant of such land by a provincial or federal authority.
In 1949 Canada enacted a Supreme Court Act that made the Canadian Supreme Court the court of last resort instead of the Judicial Committee of the Privy Council. From 1949 to the present time the Supreme Court of Canada has refused to grant leave to appeal to any case relying upon the constitution as previously settled by the Judicial Committee of the Privy Council.
It is this policy and practice wilfully of ignoring the previously settled constitutional law, in favour of treating provincial land grants under the several Public Lands Acts and the federal counterparts as if those grants were or could possibly be other than “subject to” indigenous sovereignty, jurisdiction and possession. It is this policy and practice that broke the Canadian constitution. All the lawyers doing land deals from that time on knew, or certainly in the beginning had to have known, that the whole edifice of land grants, to which the legal profession certified titles as good and marketable in actual possession, was and remains in utter abrogation of the rule of law and Canada’s status as a constitutional democracy.
The permanent archive of the Truth and Reconciliation Commission recently inaugurated at Winnipeg contains the detailed proof of the genocidal effect of that policy and practice. Once the legal establishment—the lawyers and the judges—closed ranks against the constitution, as it was and still is written, the kidnapping of several generations of indigenous children became a necessity. The only solution to the broken constitution was perceived to be to “take the Indian out of the children,” lest the children grow up to remember and seek to revive the un-repealed previously established constitution.
That is the crucial truth that the Truth and Reconciliation Commission overlooked. It is a tribute to the dead hand of the legal profession upon the rule of law and the quintessential doctrine of constitutional supremacy. Since I was the only lawyer in 118 years to have resurrected the case for constitutional supremacy and the consequence of genocide attributable to the wilful ignoring of the rule of law by its guardians, I had to be criminalized and disbarred, or else the law had to be addressed.
The Trudeau government that took office on November 4th 2015 has no greater task than that of mending the broken constitution, ending the dark era of occupiers’ justice and establishing Canada as a constitutional democracy under the rule of law. The genocide must be admitted so that reconciliation based upon the whole truth can occur. It must show that there can be no “perfect crime” in a constitutional democracy under the rule of law even when—especially when—the legal establishment itself is the criminal. The burden above all falls upon the Ministers of Justice, Indigenous and Northern Affairs and Foreign Affairs.
In 1875, the year before the Indian Act, 1876, reneged upon indigenous sovereignty, jurisdiction and possession, the then Minister of Justice got it right in a report to Cabinet that was approved and signed by the Governor General. The clock has to be turned back so Canada can go ahead with a cleaned slate.
If Canada does not amend the constitution and apologize for the genocide by the legal establishment, a future generation of Indian children grown to adulthood will, at last, have successfully to prosecute the country’s legal profession for its essential role in the ongoing genocide.
Order in Council (Canada) of 23 January 1875. The 40tharticle of the treaty of Capitulation of Montreal, dated 8thSeptember 1760, is to the effect that:
The Savages or Indian allies of His Most Christian Majesty shall be maintained in the lands they inhabit if they choose to remain there.
The Proclamation of King George iii 1763…such parts of our dominions and territories, as not having been purchased by Us, are reserved to them, or any of them as their hunting grounds;…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…And we do further strictly enjoin and require all persons whatsoever, who may 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 reserved to the said Indians as aforesaid, forthwith to remove themselves from such settlements…
The Undersigned would also refer to the BNA Act 1867 Sec. 109, applicable to British Columbia, which enacts 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 the Province in the same.”…
The Undersigned, therefore, feels it incumbent upon him to recommend that this Act [the Public Lands Act of British Columbia] be disallowed.
Signed by the Deputy Minister of Justice, the Minister of Justice, approved in Cabinet and signed into law by the Governor General.
Future accountability is not the point. The point, whether it be put down to principled conservatism or honest liberalism, is that ending the era of occupiers’ justice by mending the broken constitution and establishing Canada, in its maturity, as a genuine constitutional democracy, is an end in itself. Good will flow from that for untold future generations. It is right for them, then, and for ourselves today that we achieve this now in this generation. In this Parliament’s time.
The genocide that is ongoing is the angst that causes “serious bodily or mental harm” within the meaning of article 2(b) of the genocide convention. TheRoyal Proclamation is known and the lie of living within a Canada that pretends it is superseded is an injustice that drives the indigenous suicide rates. Having the force of a constitutional statute applied by generations of original and authoritative precedents the proclamation remains of full force and effect until it is repealed by a subsequent constitutional statute. More recent decisions of the Supreme Court—since 1949—to the contrary are per incuriam [through want of care]. A subsequent decision that not only breaches stare decisis but contravenes an entrenched first principle of constitutional government and commits genocide is null and void. There is truth in law and this is it. Upon the basis of it there will be reconciliation.
Bruce Clark, Ph.D. in jurisprudence, is an Indigenous rights activist and author of Native Liberty, Crown Sovereignty and Justice in Paradise.Read other articles by Bruce, or visit Bruce's website.
November 2015
The Right Honourable Justin Trudeau,
Prime Minister of Canada.
SUBJECT: Self-government negotiations and comprehensive land claim settlements between Canada and the Colonial Indian Act Mi’kmaq Band Councils are illegal due to a major conflict of interest and flawed consultation process.
Dear Mr. Prime Minister,
Second notice is hereby served to Canada whom you represent, that our 7th District, Gespegawagi, Hereditary Tribal Council and its families whom we represent, will in no way be legally bound by any agreements that are finalized and signed regarding Indian Act associated Mi’kmaq self-government, and the comprehensive land claims process.
We the 7th District, Gespegawagi, Hereditary Tribal Council question the validity and legitimacy of the self-government and comprehensive land claims processes for these reasons; and as stated in our original notice to Canada dated, June 30, 2010 Canada and its federally created Band Councils under the Indian Act, are for legal purposes one federal body. How then can Canada negotiate with itself in extinguishing our Aboriginal titles to our ancestral lands? Who represents our Aboriginal land titles guaranteed under the Royal Proclamation of 1763? For all legal purposes, it cannot be the Indian Act Band councils because they were only created in the late 1800’s, and being an extension of Canada, they are in a profound conflict of interest. It is well established in universal judicial law that no one can be “suitor or judge” at the same time, or “judge and jury”, in the case of Canada and the Indian Act Band Councils being the only parties negotiating between themselves in their self-government and land claims processes, this is clearly the case.
Proper redress to eliminate the profound conflict of interest that exists between your government and your Band Councils in the self-government and comprehensive land claim processes is to recognize and include our original life hereditary governing system, who were the legitimate governing systems before European contact, and original negotiators, and signers of our peace and friendship Treaties.
Canada continues to promote the political genocide policies that were enacted through the Indian Act in 1876 to continue to oppress and suppress the traditional Life Hereditary Tribal systems by only recognizing the Mi’gmaq Indian Act elected Chiefs and Councils as the legitimate Indigenous Mi’kmaq governments of Atlantic Canada.
In 1880, Section 72 of the Indian Act was enacted to illegally eradicate our traditional Life Hereditary Tribal systems, here the act states:
“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 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.”
Also recorded in return to the House of Commons dated May 2, 1887, Canada’s first Prime Minister John A MacDonald aptly put it this way: “The great aim of our legislation has been to do away with the Tribal system and assimilate the Indian people in all respects with the other inhabitants of the Dominion as speedily as they are fit for the change.”
The great aim of federal legislation that John A MacDonald quoted in 1887, to eliminate our Life Hereditary Tribal systems failed. Our life Hereditary Tribal systems throughout our 7th District’s survived Canada’s intended genocide legislation to eradicate our original governing systems: Under the convention for the prevention and punishment of the crime of genocide, enacted in 1948, the destructive legislation known as the Indian Act, and further enacted Section 72, in 1880 to eradicate our traditional Life Hereditary Tribal system are considered Genocide.
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.
Our still sovereign Life Hereditary Tribal government is very concerned by the non-recognition of your government of our Life Hereditary Tribal system, and how your government continues to apply the Genocide policies enacted in the 1800’s that did away with our Life Hereditary Tribal systems. What is also disturbing is your government’s view that the federally created Indian Act Band Councils are an evolution from our once Life Hereditary systems. For the record, as facts stated by our Life Hereditary government in how Canada in the 1800’s enacted their racist and genocide policies, clearly shows that there was no evolution that took place, the creation of these acts were designed to eliminate a race of people. John A MacDonald, the founding father and his government at the time were guilty of Political, Cultural and Economic Genocide.
Our allegations of Genocide committed by John A MacDonald’s government in the 1800’s, and still used and promoted by your current government is further supported by Chief Justice McLachlin, the highest ranking Canadian official in her video presentation on May 28, 2015, where she publicly stated:THAT CANADA ATTEMPTED “CULTURAL GENOCIDE” ON ABORIGINALS;
Also in an article published on February 9, 2015, titled: Paul Martin: Indigenous thought belongs in the classroom; the former Liberal Prime Minister is quoted as saying, “Canada is fraught with examples of a culturally genocidal dismissal of First Nations values and sense of worth, a policy of unconscionable discrimination that continues apace.”
In order to bring legitimacy and transparency to the inherent right of self-government and comprehensive land claim negotiations, Canada must end its historical and current legislation that inflicts political, cultural, and economic genocide, and deal with the original inhabitants of this country as equal partners. The current self-government and comprehensive land claims negotiations and settlements have also been scrutinized and criticized by the UN office of the Special Rapporteur on the Rights of Indigenous Peoples.
In the Special Rapporteurs (2004 Report) Canada was cited for using underhanded tactics in demanding Aboriginal parties to “release” Certain Rights, and leads to deep concerns that this may only be another semantic term for the older “extinguishment” policy despite denials by Canada.
The UN Rapporteur adds, in addition to adequate lands and resources, Aboriginal Peoples also require certainty and predictability concerning the non-extinguishment of their inherent Rights to their lands and resources.
Sadly, your government ignored the concerns cited by the UN Special Rapporteurs Report (2004), about the underhanded tactics of Canada demanding Aboriginal parties to release forever “Certain Rights”, and extinguishment of land title; Canada still continues to demand extinguishment of certain rights in the current comprehensive land claims with their Indian Act Band Councils. Our Life Hereditary, 7th District Tribal Government’s position on Canada’s comprehensive land claims policy requiring extinguishment of rights or title to our lands and resources is “No Extinguishment”. Our position is that any negotiations regarding the comprehensive land claim settlements remains the same as stated to your government in our original notice to Prime Minister Harper dated June 3, 2010. There must be no inclusion or requirements of extinguishment of title, further we negotiate as equal partners in the co-management, and protection of our lands and natural resources, and this relationship is one of co-existence not Colonial Domination as what now exists in the self-government and comprehensive land claim settlement negotiations.
The report on Canada’s treatment of its Indigenous Peoples distributed on July 4, 2014, the Special Rapporteur James Anaya states in the modern treaty and other claims process in paragraph 61:
Despite their positive aspects, these treaty and other claims processes have been mired in difficulties. As a result of their difficulties, many First Nations (Indian Act Band Councils) have all but given up on them.
Paragraph 62:
Many negotiations under these procedures have been ongoing for many years, in some cases decades, with no foreseeable end. An overarching concern is that the government appears to view the overall interests of Canadians as adverse to Aboriginal interest, rather than encompassing them. In the comprehensive land claims processes, the government minimized or refuses to recognize Aboriginal Rights, often insisting on the extinguishment or non-assertion of Aboriginal Rights and Title and favors monetary compensation over the right to, or return of, lands. Canada still insists in extinguishment of Aboriginal Rights and Title even though the UN Special Rapporteurs Report of 2004, he had deep concerns about Canada using underhanded tactics of using money as compensation, rather than recognizing our Aboriginal Rights and return of our land. There can be no doubt that Canada’s underhanded tactics of favoring total extinguishment of our Aboriginal Rights and land titles seen by our people as colonial domination, rather than co-existence.
Paragraph 63:
The Special Rapporteur cites that government also tends to treat litigation and negotiation as mutually exclusive options, instead of complementary avenues towards a mutual goal in which negotiations may proceed on some issues while the parties seek assistance from the courts concerning intractable disagreement. Furthermore, the government’s stated objective of “full and final certainty” with respect to Rights, burdens the negotiation process with the almost impossible requirement of being totally comprehensive and anticipating all future circumstances. The federal government has acknowledged that it is out of step with the provinces on this point and is reportedly contemplating changing course to allow interim or partial agreements, which is a hopeful sign.
We wholeheartedly agree that your government and provinces are out of step with the Rapporteurs concerns in how these self-government and comprehensive negotiations have been adversarial to Aboriginal Rights. And hopeful that your new Government and the Provinces will change course to allow for broader options in reaching just settlements, with also changes in ensuring that the deep conflict of interest that exists in these comprehensive land claims processes, between the Federal government and their Federally legislated Indian Act Band Councils being the only recognized parties negotiating for our Aboriginal Rights and Titles to our Ancestral Territories.
Further on Paragraph 64:
The Special Rapporteur’s concern about the cost for all parties involved are enormous, the outstanding loans to First Nations from Canada in support of their participation in the comprehensive land claims negotiations total in excess of 700 million dollars. These loans remain owing even if a government party discontinues negotiations. Mr. Prime Minister, the comprehensive land claims negotiations in our territory have been going on for over a decade and share the UN Special Rapporteurs 2014 report, where he states that many of these negotiations have been ongoing for many years, in some cases decades, with no foreseeable end and our view, very little to show for to justify the millions spent in our negotiation process.
Finally, in Paragraph 6:
The Special Rapporteur’s concern that an impact of the delay in Treaty and Claims negotiations is the growing conflict and uncertainty over resource development on lands, subject to on-going claims. It is understandable that First Nations who see the lands and resources over which they are negotiating being turned to open-pit mines, or drowned by a dam would begin to question the utility of the process. For example, four Indigenous Nations in the Treaty 8 territory in British Columbia have been in treaty land entitlement negotiations for a decade, for “so long that there are almost no available lands left for the First Nations to select.”
We the Mi’gmaq of the Gespegawagi Peninsula traditional Life Hereditary Tribal government have the same concerns as the UN Rapporteur in ongoing resource extraction, exploration, logging, issuing of permits by Quebec in land grants to corporations or groups while all of crown lands throughout our peninsula are under land claim. If this resource extraction and exploration continues, we have very little land left as what the Treaty 8 First Nations are faced with in British Columbia. The Province of Quebec, in collaboration with the Indian Act Band Councils and Corporate entities continue to exploit and extract our natural resources without our free and prior consent and proper consultations. As the U.N. Rapporteur states, and most First Nations who have been in negotiations in the comprehensive land claims for decades, consultation only occurs when governments, and the corporations have already went ahead with projects long before we are involved.
In the conclusions and recommendations, the Rapporteur states that Canada was one of the first countries in the modern era to extend constitutional protection to Indigenous Peoples Rights. This constitutional protection has provided a strong foundation for advancing Indigenous Peoples Rights over the last 30 years, especially through the courts. We totally agree with the Rapporteurs statement that the 1982 Constitution Act signed by the Liberal government and your father as the Prime Minister of Canada provided a strong foundation for advancing Indigenous Peoples Rights over the last 30 years, and yes, especially through the courts. But the Rapporteur further states, that despite positive steps, daunting challenges remain. Canada faces a continuing crisis when it comes to the situation of Indigenous peoples of this country. The well-being gap between Aboriginal and non-aboriginal people in Canada has not narrowed over the last several years, treaty and aboriginal claims remain persistently unresolved, Indigenous women and girls remain vulnerable to abuse, and overall, there appear to be high levels of distrust among Indigenous Peoples towards government at both federal and provincial levels and with their (Indian Act Band Councils). Again we agree with the Rapporteurs statement of the deteriorating relationship between Indigenous Peoples and the Government of Canada, with our opinion that much of this mistrust and division was caused by the Conservative Harper Government from their adversary policies.
In the self-government, partnership and participation, the Rapporteur states that any existing legal barriers to the effective exercise of Indigenous self-government, including those in the Indian Act, should be removed, and effective measures should be taken to build Indigenous Governance capacity. Canada should continue to engage in, and adequately fund, meaningful negotiations to transfer Governance responsibilities to the First Nations.
Mr. Prime Minister, we totally agree with the Special Rapporteurs recommendations that any existing legal barriers to the effective exercise of Indigenous self-governance, including those in the Indian Acts should be removed, and effective measures taken to build Indigenous Governance capacity with our Original Tribal Hereditary Governing systems, and not with your Indian Act created Band Councils to eliminate the deep conflict which exist in you current Self Government and Comprehensive land claims negotiations We were disappointed that the UN Special Rapporteurs office has not taken a more broader view, rather than a narrow one where he seems to accept that the only legitimate or credible Indigenous governments are the Indian Act Band Councils. For the record; while we agree with many of the UN Special Rapporteurs findings of abuse, poverty, human right violations by your government, culturally, politically and economically and the recommendations that he sees need to be acted upon by your government, he has failed to recognize and condemn that most of these violations were also committed by the Indian Act Band Councils. Much of the poverty, abuse and human rights violations have been existent for decades throughout our Eastern Maritime Mi’gmaq Districts. Numerous complaints were filed by our people about their Indian Act political representatives misspending their allocated band funds,, paying themselves outrageous salaries, and human rights abuses of our people who have publicly voiced their dissent.
It is only in recent years that Canada has finally realized that the complaints of our people about these abuses were legitimate and have taken some meaningful action in curbing or stopping these abuses by the Indian Act Band Councils. For decades the Indian Act Band Councils enjoyed immunity from the human rights laws applying on Indian Reservations until Canadian legislation was created so that our people are now protected, and don’t have to live in fear to express their dissent.
Also the legislation on these Band Councils to show transparency on how they spend band support funding has been long awaited by our people, because of the decades of misspending and financial abuse of our monies by these elected officials. We are aware that Assembly of First Nations leadership and Indian Act Chief and Councils vehemently oppose the Transparency Act, stating that it is a discriminatory and intrusive legislation that only adds more burden on them. This argument by the Band Councils are not supported by our people, but welcomed Mr. Prime Minister, it is our sincere hope that you will continue your “father’s legacy in building a just society for Indigenous Peoples and ordinary Canadians, when he and his government enacted the Constitution Act of 1982. The Constitution states that section 35, “Recognizes and affirms” the “exiting” Aboriginal and Treaty Rights in Canada. These Aboriginal Rights protect the activities, practice, or traditions that are integral to the Distinct cultures of the Aboriginal peoples. The Treaty Rights protect and enforce agreements between the Crown and the Aboriginal Peoples. Section 35 also provides protection of Aboriginal Title which protects the use of land for traditional practices.
In section 35 where the clause states, “the Treaty Rights protect and enforce agreements between the Crown and Aboriginal Peoples.” This clause affirms our historical legal argument that these Treaties were negotiated, and signed by our Original Ancestral Life Hereditary Traditional Chiefs during the 1700’s, and not by the Indian Act systems that were only created in 1876.
Mr. Prime Minister, you have been elected as the new Prime Minister representing all Canadians in this last historic election, as can be seen that the majority of Canadians shared your vision that change is needed in all areas of government policy. What is especially intriguing to our Hereditary systems is your bold campaign promise of your government establishing a renewed nation to nation relationship that respects rights and honors our Treaties. This was indeed a bold statement and campaign promise to make by especially any candidate running for the office of Prime Minister because of the possibility that Canadian voters may not have shared that same view and commitment that you made. But to our surprise, the majority of Canadian voters shared your vision of creating a just society for all races in Canada, even establishing a renewed relationship with all Aboriginal People of Canada.
In conclusion, Mr. Prime Minister, we are looking forward as the Life Hereditary Tribal Government in renewing and re-establishing our historical relationship as one that existed with the British Crown, “Nation to Nation” and with your present Government that will respect our Aboriginal and Treaty Rights established during the 1700 hundreds. It is our anticipation that your promises of a renewed relationship with our Original Peoples and your Government becomes a reality and not just another broken campaign promise.
Yours, we remain, in Peace and Friendship,
Life Hereditary Chief Gary Metallic Sr.
Representing 7th District, Gespegawagi Tribal Council
And their families.
This article was originally posted on November 8, 2015, at dissidentvoice.org.
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Comments
Government of both side
Government of both side should negotiate their words for resolving the issue. Effective law must be amended for the growth of the native areas. Give justice!