I was a practicing lawyer for 28 years before being imprisoned in 1997 for 3 months for “criminal contempt of court.” In 1999 I was disbarred on the ground this particular conviction of a “crime” was so heinous, as to amount to “conduct unbecoming,” justifying that most extreme of available punishments.
I had asked the court to read a written application, advising the judge that if he were to proceed on the assumption he had jurisdiction, at least without addressing the constitutional law identified in the said application, that he would by operation of law alone have committed the constitutional crimes of “Misprisions of Treason and other felonies including Fraud” and arguably “genocide.” The written application explained the sources and definitions of these particular and peculiar jurisdictional crimes.
The judge refused to file the application and so it was never read by him or referred to. He cited me for criminal contempt of court and I was later disbarred for that crime solely upon the basis of my verbal accusation of jurisdictional crimes.
Definitions
- The documents containing the alleged crimes are the Royal Proclamation of 1763 and secondly the Convention for the Prevention and Punishment of the Crime of Genocide, 1948.
- Royal Proclamation of 1763 (Indian Part) (Excerpted)
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 — …no Governor or Commander in Chief…do presume upon any Pretence whatever to grant Warrants of Survey or pass any Patents for Lands…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 whatever 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.
…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 by the Governor or Commander in Chief of our Colony respectively within which they shall lie…
And we do further expressly conjoin and require all Officers whatever as well Military as those Employed in the Management and Direction of Indian Affairs within the Territories reserved as aforesaid for the use of the said 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 which they stand accused in order to take their Trial for the same. (Emphasis added)
Convention for the Prevention and Punishment of the Crime of Genocide, 1948 (Excerpted)
Article 2. In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
“Misprision” Explained
The 9th Chapter of Sir William Blackstone, Commentaries on the Laws of England, Book the Fourth, 16th Edition, London, 1825, is entitled “of Misprisions and Contempts affecting the King and Government:”
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 : and it is said a misprision is contained in every treason and felony whatsoever ; and that if the king so please, the offender may be proceeded against for the misprision only….Misprisions are generally divided into two sorts ; negative, which consist in the concealment of something which ought to be revealed ; and positive, which consist 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 the common law : in like manner as the knowledge of a plot against the state and not revealing it, was a capital crime at Florence and in other states of Italy. But it is now enacted by the statute 1& 2 Ph. & M. C. 10. that a bare concealment of treason shall only be held a misprision. This concealment becomes criminal, if the party apprized of the treason does not, as soon as may conveniently may be, reveal it to some judge of assize or justice of the peace….
Misprisions of felony is also the concealment of a felony which a man knows, but never assented to ; for if he assented, this makes him either principal or accessory. And the punishment of this, in public officer, by the statute Westm. 1. 3 Edw. I. c. 9., is imprisonment for a year and a day…
II. MISPRISIONS, which are merely positive, are generally contempts or high misdemesnors; of which
1. The first and principal 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. Other misprisions are, in general, such contempts of the executive magistrate, as demonstrate themselves by some arrogant and undutiful behaviour 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…Or, by disobeying the king’s lawful commands ; or proclamation,…
Synopsis of Misprision under the Royal Proclamation of 1763
Suppose a Governor or Commander in Chief should breach the first paragraph of the Indian Part of the proclamation by allowing surveys and grants of land. That is the paragraph that provides:
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 — …no Governor or Commander in Chief…do presume upon any Pretence whatever to grant Warrants of Survey or pass any Patents for Lands…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.
Such a supposed breach of the first paragraph would constitute a Treason and Fraud or Misprisions of Treason and Fraud, depending on whether done by mistake or by intentional malfeasance. If intentional it would be treason. If by accident or mistake it would be misprision of Treason. The same would apply to settlers upon Land not ceded to or purchased by the crown who do not satisfy the injunction to remove themselves from their trespass against Indian national Possession.
The governmental point of the proclamation was to give public notice to all persons in society of the 1st principle of justice and government in British North America. The cession or purchase from the Indians would have to be by invitation to the several Nations or Tribes of Indians given by the Governor or Commander in Chief. It is in this sense that the treaty process is completed on a Nation-to-Nation basis, as between jurisdictionally sovereign states.
“The several Nations or Tribes of Indians with whom We are connected and who live under our Protection” are the beneficial owners of the “Possession,” leaving the crown holding the bare title as trustee bound by the “Protection” trust. That trust is in favour of the Indian Nations or Tribes as its beneficiaries, and is asserted as against other European states.
The “Doctrine of Discovery” and Sublimus Dei, 1537
- This is known as the “doctrine of discovery,” the 1st principle of the nascent European “international” law proclaimed by the Vatican in the papal bull Sublimus Dei, 1537. It legislatively governed the European “discoverers” of the “new world:” Portugal, Spain, Holland, Great Britain, France and Russia. The Royal Proclamation of 1763 was the British reiteration of the principle. Sublimus Dei, 1537, enacted:
Pope Paul III
To all faithful Christians to whom this writing may come, health in Christ our Lord and the apostolic benediction.
The sublime God so loved the human race that He created man in such wise that he might participate, not only in the good that other creatures enjoy, but endowed him with capacity to attain to the inaccessible and invisible Supreme Good and behold it face to face; and since man, according to the testimony of the sacred scriptures, has been created to enjoy eternal life and happiness, which none may obtain save through faith in our Lord Jesus Christ, it is necessary that he should possess the nature and faculties enabling him to receive that faith; and that whoever is thus endowed should be capable of receiving that same faith. Nor is it credible that any one should possess so little understanding as to desire the faith and yet be destitute of the most necessary faculty to enable him to receive it. Hence Christ, who is the Truth itself, that has never failed and can never fail, said to the preachers of the faith whom He chose for that office ‘Go ye and teach all nations.’ He said all, without exception, for all are capable of receiving the doctrines of the faith.
The enemy of the human race, who opposes all good deeds in order to bring men to destruction, beholding and envying this, invented a means never before heard of, by which he might hinder the preaching of God’s word of Salvation to the people: he inspired his satellites who, to please him, have not hesitated to publish abroad that the Indians of the West and the South, and other people of whom We have recent knowledge should be treated as dumb brutes created for our service, pretending that they are incapable of receiving the Catholic Faith.
We, who, though unworthy, exercise on earth the power of our Lord and seek with all our might to bring those sheep of His flock who are outside into the fold committed to our charge, consider, however, that the Indians are truly men and that they are not only capable of understanding the Catholic Faith but, according to our information, they desire exceedingly to receive it. Desiring to provide ample remedy for these evils, We define and declare by these Our 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 or may be said to the contrary, the said Indians and all other people who may later be discovered by Christians, are by no means to be deprived of their liberty or the possession of their property, even though they be outside the faith of Jesus Christ; and that they may and should, freely and legitimately, enjoy their liberty and the possession of their property; nor should they be in any way enslaved; should the contrary happen, it shall be null and have no effect.
By virtue of Our apostolic authority We define and declare by these present letters, or by any translation thereof signed by any notary public and sealed with the seal of any ecclesiastical dignitary, which shall thus command the same obedience as the originals, that the said Indians and other peoples should be converted to the faith of Jesus Christ by preaching the word of God and by the example of good and holy living. (Emphasis added)
Qualification of the Author as an Expert Witness
From 1972 to the present time I have studied and practised the law bearing upon the topic of this article. I obtained an LL.B. Degree in 1969 from the University of Western Ontario and was called to the bar of the Province of Ontario in Canada in 1971. On February 11, 1972, I was retained by the Temagami Indian Band (now called the Temagami First Nation). The Province of Ontario had announced its intention to build an 80 million dollar destination ski resort at Maple Mountain approximately 100 miles north of North Bay, Ontario.
Maple Mountain is known as “Chee-bai-gin” in the indigenous Algonkian language of the Temagami Nation or Tribe of Indians within the meaning of the Royal Proclamation of 1763. It is the second highest elevation in Ontario. Chee-bai-gin translates as “where the spirits go.” When the great flood water receded at a time immemorial this place was the first to emerge in eastern Ontario. The first humans emerged from a lion’s cave at this site and from it spread out to occupy the land. Since then, upon death the spirit returns to the cave. In order to prevent the sacrilege of commercializing the region it was decided to make a land claim based upon the Royal Proclamation of 1763 “Possession” under the “Protection” of the crown.
In 1985 I returned to the University of Western Ontario to read for a Master of Arts Degree in North American constitutional history. Upon completion of it I went to Aberdeen University in Scotland where I obtained my Ph.D. in North American constitutional history and the international law of genocide. It became my legal opinion that the legal establishments of Canada and the United States were guilty of Treason and Fraud or Misprisions thereof, and thereby were committing ongoing genocide.
- My qualification as an expert witness entitled to give opinion evidence on the constitutional law is apparent from the judgment of the governors of the Law Society of Upper Canada (Ontario) dated 19th June 1996 on the first attempt to disbar me for insulting the legal profession and judiciary by accusing them of crimes:
Mr. Clark has devoted his career to the advancement of the cause of native rights in Canada. He has studied the subject at the graduate school level, and has obtained a Master of Arts degree in History and a Ph.D. in Jurisprudence as a result of his studies in the field of native rights.
For a period of seven years, Mr. Clark lived on a native reserve. He is the author of two academic texts on the subject of the rights of the indigenous people in Canada.
All of the particulars in the complaint relate to Mr. Clark’s relentless attempts to advance a single legal argument on his native clients’ behalf.
Although space does not permit a complete summary of Mr. Clark’s argument, it is based upon the proposition that certain native lands (or “hunting grounds”) have never been properly surrendered to the Crown. It follows, he contends, that the Canadian courts have no jurisdiction over indigenous people who reside on the unsurrendered lands. Mr. Clark argues that statues of Canada and the provinces do not apply to indigenous people who live on the unsurrendered lands, and that the affected indigenous people have a right of access to an independent and impartial third party court – to adjudicate the law…
Mr. Clark goes on to contend that the extraterritorial assumption by the non-native Canadian domestic courts, of jurisdiction over indigenous people living on hunting grounds prima facie constitutes “misprision of treason” and “misprision of fraud” within the meaning of paragraph 6, Part IV of the Royal Proclamation of 1763, which has never been repealed. He adds that the use of the legal term of art “misprision” in the order-in-council relieves his clients of the need to prove intent.
Finally, Mr. Clark argues, by usurping jurisdiction over indigenous people living on unsurrendered hunting grounds, the Canadian government, the legal establishment and the domestic courts are contributing to and are complicit in the genocide of indigenous people. (The term genocide is defined in the Concise Oxford Dictionary as the “extermination of a race”.)
As the hearing panel pointed out, and as mentioned above, it is this argument that is at the root of the complaint of professional misconduct that the panel and Convocation were called upon to deal with…
The discipline hearing panel accepted that Mr. Clark is remarkably knowledgeable in the area of native rights, and that the views that he espouses are honestly and sincerely held. It is accepted also that he believes that his comments and conduct as particularized in the complaint were intended to advance the cause of justice and the rule of law.The panel also observed in its report that “all of the members of the panel were impressed with the solicitor’s presentation, his thoughtful remarks to us, his commitment to his cause, and the obvious sincerity of his beliefs”. It acknowledged that Mr. Clark has made very significant family and financial sacrifices in pursuit of his quest for justice for his clients. The panel also recorded its belief that Mr. Clark has much to offer the legal profession …
In recommending that Mr. Clark’s right to practise law be terminated, the discipline hearing panel explained that it made its recommendation “very reluctantly”, and “primarily because of the finding that the solicitor is ungovernable”. It added that while some or most of the allegations would not in themselves justify the ultimate penalty of disbarment, the cumulative effect of them, coupled with the finding of ungovernability, left the panel T with little choice…
As mentioned above, the discipline hearing panel acknowledged that Mr. Clark’s argument (as summarized above) is at the root of the complaint of professional misconduct that the discipline hearing panel and Convocation have been called upon to adjudicate.
Mr. Clark’s argument is anything but frivolous. It is the product of intensive study, and reflects a belief that Mr. Clark sincerely holds.
It would be difficult to disagree with Mr. Clark’s assertion that the issue that his argument raises is “constitutionally critical”. Again, the discipline hearing panel found that Mr. Clark honestly believes that the comments and conduct particularized in the complaint — which are an outgrowth of his argument — were intended to advance the cause of justice and the rule of law.
The “genocide” of which Mr. Clark speaks is real, and has very nearly succeeded in destroying the Native Canadian community that flourished here when European settlers arrived. No one who has seen many of our modern First Nation communities can remain untouched by this reality.
Mr. Clark is not making the kind of arguments that fall to most of us daily in our courts; much of the ordinary work of lawyers relates to the interpretation of a will, the proper understanding of a contract, the ownership of a piece of land, or individual culpability for crime. The issue Mr. Clark raises is one of great significance for the entire people – and for all of us. His commitment to the argument and his conviction respecting its correctness cannot be questioned…
The nature of Mr. Clark’s argument is such that the persistent refusal of the courts — he states, without contradiction, that he has attempted to raise this argument some forty-one times — itself in part engenders his fixed and firm conclusion that his argument is correct. The issue has not been determined by any Court…
It is important to our decision that the use of what would in most other circumstances rightly be regarded as extravagant, disrespectful and discourteous language, in Mr. Clark’s case emanated directly from the legal argument that he was vigorously advancing on behalf of his clients. In attempting to resolve the tension between vigorous advocacy in the face of judicial resistance and the duty to treat the tribunal with courtesy and respect, much will depend on the context.
We are sympathetic, moreover, to Mr. Clark’s assertion that the courts have been unwilling to listen to his argument. Though he must accept part of the responsibility for this, it is apparent on the record that he has been prevented by the courts on a number of the occasions in issue from effectively presenting the argument summarized above. Our finding may well have been different if Mr. Clark, having been given a full opportunity to develop his argument, had persisted in attempting to argue a point after the court had ruled against him. Again, the Law Society must promote, rather than inhibit, the right and duty of advocates to protect their clients’ interests without unwarranted interference.
The lawyer’s duty to resolutely advance every argument the lawyer thinks will help the client’s case is of fundamental importance to the proper functioning of our judicial system. Failures to carry that duty are more prevalent within the system of justice and more harmful to that system than are overzealousness and failures to treat the courts with courtesy and respect. Where the duties do come into conflict, Convocation should be reluctant to find that overzealousness constitutes professional misconduct…
We also note that the advocacy in question here took place in the context of a serious argument on an issue of public importance. The Law Society’s concurrent jurisdiction to discipline lawyers for excesses in advocacy should be reserved for particularly serious and harmful violations.
It is necessary, in the light of the values expressed above, to examine the charges brought against Mr. Clark that deal with the question of improper advocacy.
We do not find his letters abusive or offensive. Nor do we find his statements intemperate or unsupported by the facts to sustain the argument. Indeed, throughout he has begged to be allowed to develop facts to sustain the argument. It is impossible to say there was no reasonable basis in evidence for the legal positions he asserted; he has always been prepared to make a thorough and comprehensive argument in each case. There is an entire absence of evidence that the documentation he delivered from a Native tribunal came from a “bogus court”; native tribunals are commonplace throughout Canada and there was simply no evidence about the composition or authority of this one. Though that documentation was intended to influence proceedings in relation to outstanding criminal charges, it was part of a legitimate argument relating to the jurisdiction of the Court before which Mr. Clark was appearing. Indeed, each of the statements alleged to be intemperate and unjustified flow logically and properly from the submissions he was making respecting jurisdiction…
Convocation considers the panel’s finding of ungovernability to be unsustainable in this case.
Mr. Clark cannot be considered to be ungovernable in the sense in which that term is usually used in discipline proceedings. Though not determinative, it is important that there was no evidence before either the panel or Convocation that he has been disciplined previously since his call to the bar in 1971, almost 25 years ago. The panel recognized that Mr. Clark has been of previous good character.
In the proceedings before the discipline hearing panel and in Convocation, Mr. Clark readily admitted the facts and documents on which the complaint was based. The panel made a point of mentioning in its report that all of the members of the panel were impressed by Mr. Clark’s presentation, his thoughtful remarks to the panel, his commitment to his cause, and the obvious sincerity of his beliefs. Convocation was similarly impressed.
The panel based its finding of ungovernability on the fact that Mr. Clark would not undertake to refrain from repeating the conduct that brought him before the Law Society. The panel attached to its report a letter from the Law Society’s counsel dated April 21, 1994 and Mr. Clark’s reply to that letter dated April 25, 1994. In his reply, Mr. Clark stated that though he had no intention of revisiting his clients’ “allegation of law” at the trial level in Canada, he was not prepared to undertake not to repeat the argument that he has been advancing in proceedings that were then pending in the Supreme Court of Canada. Nor was he willing to undertake not to repeat his argument in support of a petition that had been submitted to the Queen, or before “any other appellate or international tribunal that may have or may come to have jurisdiction over genocide”.
Particularly in light of our finding that Mr. Clark is not guilty of professional misconduct in respect of many of the particulars referred to in the complaint, we do not think that Mr. Clark’s refusal should make him vulnerable to a finding that he is not governable by the Law Society. Indeed, in our view, the Law Society has come quite close to asking Mr. Clark to refrain from making an argument that he believes to be both well founded in law and in the interest of his clients.
The solicitor is not ungovernable. He simply does not agree with the characterization of his conduct by counsel for the Law Society, nor that of the courts that have refused to rule on it, and he will not give up his argument at least until some court has ruled on it.
Native Liberty, Crown Sovereignty: The existing aboriginal right of self-government in Canada
One of the two peer reviewed books I have written (published by McGill-Queen’s University Press, in 1990) bears the title Native Liberty, Crown Sovereignty: The existing aboriginal right of self-government in Canada. Its thesis is that the word “liberty” in the papal bull Sublimus Dei, 1537, connotes that the “Possession” referenced in the Royal Proclamation of 1763 is coupled with the jurisdiction of national jurisdiction, or self-government, over the land possessed.
- Recall, the legislated native right in paragraph in Sublimus Dei, 1537, is as follows:
… notwithstanding whatever may have been or may be said to the contrary, the said Indians and all other people who may later be discovered by Christians, are by no means to be deprived of their liberty or the possession of their property, even though they be outside the faith of Jesus Christ; and that they may and should, freely and legitimately, enjoy their liberty and the possession of their property; nor should they be in any way enslaved; should the contrary happen, it shall be null and have no effect.
- The paragraph in the proclamation that carries the connotation of the liberty of self-government is the general 1st paragraph of the Indian Part, as follows:
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 — (Emphasis added)
The Indian Act, 1876
In 1876 a Canadian “Indian Act” was enacted by a federal law statute. It was intended to do away with old-style Indian land claims that old-style Indians wanted and needed to bring, to survive.
The Indian Act, 1876, was passed by the federal parliament of Canada in reaction to a federal executive government Order-in-council dated 1875. That Order-in-council in effect enforced the constitutional law that had governed Indian affairs since 1704 which itself backed the old-style Indian Way of securing the land against encroaching non-native “civilization.”
The 1875 Order-in-council was during the tenure of Telesphore Fournier as Minister of Justice and Attorney General of Canada. British Columbia had enacted a statute that declared all Crown lands were public lands available for disposition by the province. “Crown lands” were lands that included lands the bare title of which was held by the Crown, albeit “subject to” the Indian national jurisdiction and possession until a treaty of surrender should be contracted.
In sum, British Columbia in effect attempted to repeal the 1st paragraph of the Royal Proclamation of 1763, the paragraph reserving all lands for Indian national possession, until a Nation-to-Nation treaty should convey the Indian possession to the Crown, thereby permitting the Crown to re-convey the ceded land to settlers, free of the Indian national burden on title.
Fournier reported to the federal cabinet that the federal government was bound under the constitution of 1867 to disallow the provincial legislation on the ground it is impossible for provincial or federal legislation to modify the constitution other than by the procedure established in it for repeals. At the time, in 1875, the only way in which the Royal Proclamation could be modified was by statute of the Imperial Parliament of the United Kingdom.
- Fournier’s recommendation confirmed the constitutional nature of the Indian national liberty and possession by reference to the following historical instruments:
Order in Council (Canada) of 23 January 1875. The 40th article of the treaty of Capitulation of Montreal, dated 8th September 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.
Fournier’s opinion was signed by the Deputy Minister of Justice, the Minister of Justice, approved in Cabinet, and signed into law by the Governor General.
But it was never implemented. Instead, Fournier was appointed to the Supreme Court of Canada and was replaced as Minister of Justice and Attorney General by Edward Blake.
Blake was responsible for the Indian Act, 1876. That Act, the first of its kind, dropped the phrase “the several Nations or Tribes of Indians” and replaced it with the term Indian “bands.” “Bands” were defined as municipal government groups as opposed to sovereign or quasi-sovereign Nations. And “Indians” were re-defined as persons listed in a register of individuals regarded by the federal government as subject peoples.
Thus ostensibly the concept of Indian national groups disappeared and with it the prohibition against surveys and land grants of Indian lands that remained unceded or unpurchased by the Crown. The injunction ordering the removal of settlers from unceded Indian lands also disappeared. The provincial public lands act of British Columbia was allowed to take effect.
The Indian Act, 1876, unconstitutionally repealed the Royal Proclamation of 1763. A federal statute cannot replace a constitutional instrument. However, thereafter lawyers and judges did not look behind the Indian Acts to see the constitution that rendered those acts unconstitutional.
In the Indian Act, 1880, section 72 replaced the Indian national hereditary governments with an elective system. The “life chief” system that defined old-style Indian government was made illegal. In 1927 the Indian Act was further amended to make it a criminal offence for lawyers to raise funds to conduct “land claims.” Indian dances and ceremonies of the national governments were themselves made criminal offences.
All of these changes under the Indian Acts were unconstitutional, because not enacted by the Imperial Parliament of Great Britain. They were also criminal. The crimes were treason and fraud or misprisions of those crimes. The commission of those crimes by the legal establishment resulted in the on-going genocide of “several Nations or Tribes of Indians,” as such.
The federal government furthermore in the 1880s invented the Indian Residential School system. It operated for 100 years. Indian children were taken from their families at ages 4 to 16 and shipped far away from their homes to mass boarding schools. The Indian villages became silent of the sounds of Indian children. In these schools the Indian languages were forbidden and replaced by English or French. The intent was “to kill the Indian in the child.”
Their removal destroyed the Indian economy which was based on the family hunting territory system and raising their children in the Indian Way, permissive and speaking with the animal spirits. Mortality rates in these schools were much worse than in society at large. And the Indian culture that was destroyed was replaced by a servant culture. The children, released at age 18, had training in manual labour and the equivalent of a grade 5 education. The destroyed culture was not replaced so much as crushed, leaving a vacuum. That legacy continues to result in statistically high Indian incarceration and suicide rates today.
Each of these Indian Acts was unconstitutional and should have been stopped by the legal establishment. The opposite occurred: the whole illegal system was administered and enforced by the legal establishment.
Why Did the Lawyers Not Stop the Unconstitutional Genocide-in-Progress?
There was no money to be made acting for old-style Indians. The money to be made by lawyers was from land turn-overs. Each land transaction began with unconstitutional surveys and land grants and then re-selling occurred. A percentage was taken by the lawyers on each re-sale. The society wanted, perhaps needed, the Indian land. And the lawyers were members of the society. The Indians were put out sight in residential schools, out of sight and out of mind. They were “wild” and feelings of empathy and sympathy, of identification with the Indians as fellow human beings did not exist or were suppressed.
The point was, all the lawyers did this, and the judges were appointed from the class of lawyers. Whistle blowing was not thought of, until I pointed out the unconstitutionality of the process beginning in 1972. But when I did that I was perceived as a traitor to my class and hated for my efforts by my fellow lawyers and the judges.
Constitutional Supremacy
The rule of law is premised upon the realization that the constitution is the supreme law. Conflict between the constitution and the federal or provincial law has to be decided in favour of the paramountcy of the constitution. The only hope for the Indians out of this dilemma was independent and impartial third-party adjudication. That too was a constitutional right since 1705, but ignored.
In 1703 the case of the Mohegan Indians v. Connecticut established the principal of independent and impartial adjudication for Indian land claims throughout British North America. It began with a Royal Petition from the Mohegan Indians to Queen Anne. These old-style Indians complained that they had made a treaty with the Colony of Connecticut that Connecticut had misinterpreted as a total surrender of the entirety of the Mohegan land to the Colony. These Indians learned of this when farms started appearing on the portion of the land they themselves believed the treaty had not conveyed to the Colony.
The Mohegans did not want or need, they felt, to go to the Court of Connecticut in order to have the legal dispute settled amicably pursuant to the rule of law, which they had no trouble understanding. The disputed parcel had not been conveyed, they argued in the Petition. In its essence, the Mohegan case applied Sublimus Dei, 1537, to the legal remedy available to the Native Nations or Tribes as sovereign entities.
In 1703, Indian affairs in colonial constitutional law was under the royal prerogative. That meant all land law was made by the sitting monarch. According to the Indians further understanding, at the treaty-making the monarchs from the beginning of the European interest in the colonies had undertaken the trust duty of “Protection” of the Indians’ “Possession” of their “Hunting Grounds.” This was common knowledge throughout the Indian country, meaning the portion of the hunting grounds not yet ceded to or purchased by the Crown by Nation-to-Nation treaty remained inaccessible to the non-natives.
Queen Anne referred the Petition to Her advisory committee on Indian Affairs called the Board of Trade and Plantations which, in turn, referred the legal dispute to the Attorney General of Great Britain, Lord Northey, for his legal opinion. He opined that the Indian Petition had made out a prima facie (valid at first impression) case. A basic reading of the Petition and the surrounding negotiations satisfied Lord Northey that the land in dispute probably was unsurrendered and therefore unless Connecticut could prove otherwise, in court, the Petition to have the land given back to the Indians would have to be granted, meaning that the Crown would by Order-in-council compel the re-conveyance and the corresponding removal of the settlers illegally put upon the land by colonial land grants.
The sticking point of Lord Northey’s opinion was the identity of the “court” that would have the jurisdiction to adjudicate the legal dispute in the colony. The Mohegans argued that the Court of Connecticut was prima facie biased, being appointed by the General Court of Connecticut from a pool of lawyers practising Connecticut law-making. Connecticut argued that it had the only court in the colony and the Indians replied that they themselves had always had an Indian court or “Council-Fire” for adjudicating and settling boundary disputes between Indian Nation or Tribes and the legal dispute with Connecticut was no different in principle.
Lord Northey recommended that the solution to this impasse was for the Queen sitting in Her Privy Council to enact an Order-in-council appointing a set of adjudicators that was an independent and impartial third-party, to ascertain whether his prima facie position on the Indians’ legal right was correct, or not. The Order-in-council was issued in 1705.
Connecticut instructed its legal team to by-pass the third-party hearing, on the ground Lord Northey’s Legal opinion was not valid. The colony reserved its right to appear before the Judicial Committee of the Privy Council after the appeals, if any, had all been taken.
After several levels of appeal had been passed the case came back before Privy Council for final adjudication. In 1773 the Privy Council decided. Lord Northey’s opinion was affirmed as correct. The special independent and impartial third-party adjudicator was approved. The 1705 Order-in-council was approved. But in the interval of time-wasted getting to the Privy Council, the case was settled out-of-court.
Gustafsen Lake
In 1995 a group of 25 Indian men, women and children and non-native sympathizers occupied a sundance ceremony site beside a lake in northern British Columbia. No treaty exists relative to the region. At constitutional law it remains governed by the constitutional instruments mentioned and the precedents to be mentioned. Thus any disagreement as to jurisdiction was entitled to independent and impartial 3rd party adjudication.
- The earliest cases from the 18th century confirmed the reasoning of the motivation of the royal proclamation “Whereas it is just and reasonable and essential to our interest and the security of the our colonies:”
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.
- Similarly, the “Protection” obligation assumed by the proclamation was confirmed in the first modern constitution that supplemented the proclamation. The jurisdiction to protect was assigned to the newly created federal level of government by section 91(24) of the Constitution Act, 1867, which allotted to that level of government jurisdiction relative to “Indians, and lands reserved for the Indians;” Section 92(13) allotted to the provinces their jurisdiction relative to the possessory Interest of the Indians once the Indians should surrender that by treaty to the Crown. Section 90 gave to the federal government the duty to disallow attempts by the provinces to grant lands before the treaty of surrender relieved the lands of the Indians “Possession.” And section 109 reiterated that the provincial interest is “subject to” the Indian “Interest” in Possession pending the treaty of surrender.
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. (Emphasis added)
- In the same year as confederation in 1867 the Court of Appeal of Quebec confirmed the continuity of the Indian national liberty of self-government under the Indians own laws:
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.
- Two precedents at the close of the 19th century confirmed the continuity of the royal proclamation’s reservation of all unceded or unpurchased Indian land under Indian possession. Specifically, the proclamation’s prohibition of land grants by the Crown governments prior to treaty of surrender was itself confirmed by the highest court in the British Empire relative to the new Canadian confederation:
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.
In summary the Indian position at Gustafsen Lake was that they insisted upon independent and impartial third-party adjudication upon the basis of the 1705 Mohegan case, of their prima facie right of possession, under the protection of the federal government pursuant to section 91(24) of the Constitution Act, 1867, being superior to the provincial or any other “interest” within the meaning of section 109 of that constitution.
The Royal Proclamation of 1763 was not repealed prior to 1897 and there was no repeal of it since that time. It continues in full force and effect.
Supreme Court of Canada, September 12, 1995
On September 12, 1995, I appeared as counsel before the Supreme Court of Canada on another case in which I asked that Court to address the same constitutional law as that being relied upon by the Indians at Gustafsen Lake.
The Court declined to do that on the ground that the constitutional question had not been raised and addressed by the courts below and it wanted the benefit of the lower court judges’ reasoning on that topic. I pointed out in answer that in July of that same year I had been before the Court with 11 applications for leave to appeal on the same constitutional ground, namely that the courts below refused to address the constitutional question. I reminded the Court that I kept raising the same point of law and the lower courts kept ignoring it on the ground only the Supreme Court could address it. But when I got to the Supreme Court, in every case the Court refused to address the point because the lower courts had not done so.
- The transcript of the hearing in the Supreme Court reads as follows:
Chief Justice Lamer:…If you had decided to initiate or if you decide tomorrow morning to initiate in the Supreme Court of British Columbia an action for declaratory relief saying that the British Columbia courts have no jurisdiction, that is a different matter and you could be arguing to the judge that, well, this is an issue that has never been tried…There is no doubt that this is a constitutional issue.
Provincial Court of British Columbia, September 15, 1995
Three days later I did appear in British Columbia and raised the same point of constitutional law in the application. This was the same point of law that the Chief Justice three days earlier had agreed was a fresh point of law that no court had yet addressed; the same point of law that the governors of the Law Society on June 19th 1996 had said had never been addressed despite being raised some 40 times previously, and that I was entitled to keep raising until at least one judge finally addressed it.
On September 15, 1995, the presiding judge that I asked to address the same point of law, without reading the application or in any way addressing the constitutional question, cited me for criminal contempt of court for attempting to raise the same point of law. He said that every one of the some 40 judges before whom I had previously raised the point had addressed it. He did not identify any case in which this supposedly occurred. If it had occurred there necessarily would be a court record of it. No such record exists.
Nevertheless, a message has been sent to the legal profession that if any lawyer should raise the constitutional law in defence of the old-style Indians she or he also will be convicted and disbarred.
The genocide-in-progress of my former clients continues and the lawyers and judges continue with impunity to commit the crimes of Treason and Fraud against the supreme law of the constitution. And I remain criminalized and disbarred.
- UPDATE: Third paragraph from top added on 18 December 2015.
- FURTHER UP-DATE: conclusion re the application (added 22 December 2015; see the following paragraph)
My Gustafsen Lake clients on whose behalf I sought to file and have the judge read the application on September 15, 1995, never did get to present to the court system the legal argument that the application supported. Their argument was that the legal system of lawyers and judges were protecting the illegal—because criminally unconstitutional—land grant of grazing rights to an American ranching in the Gustafsen Lake region. Recall, grants of any land in Canada that are not surrendered by treaty to the Crown are “subject to” the Indian national right of “Possession” in relation to which the Indians constitutionally “should not be molested or disturbed.” The Gustafsen Lake region is not “ceded to or purchased by Us” within the meaning of the Royal Proclamation of 1763 and, correspondingly, under section 109 of the Constitution Act, 1867, is “subject to” the Indian “interest” over and above provincial title and the unconstitutional “grant” to the rancher, who was objecting to the Indian presence on “his” land. At all times the Indians constitutionally were under the “Protection” of the federal government under section 91(24) of the said constitution act in relation to their right to hold their sundance ceremony without interference. Instead they were submitted to a siege, including land mines and a 24 hour surveillance helicopter and were fired upon massively, then arrested and sentenced to jail by the provincial and federal authorities. The Indians’ constitutional defence was crushed when I was excluded from their defence and in fact was never addressed by the convicting and sentencing courts or the Supreme Court of Canada. Some of them, without lawyers, insisted upon their constitutional defence but their insistence was ignored and not mentioned by any of the judges and courts dealing with the charges of “trespass” and “mischief” against them. The Indian leader of their constitutional endeavour received a four year jail sentence. The constitutional defence of Indian possession under the Royal Proclamation of 1763 and the Constitution Act, 1867, was effectively killed and buried by the legal establishment, whose duty is to uphold the constitution against federal and provincial encroachment. This is dramatic proof of the crimes that the ignored application truthfully and justifiably alleged against the legal establishment. The constitutional question has never been addressed and now never will be. Yet there is no question of greater public importance.
Testimony of Hereditary Chief Gary Metallic, on behalf of the 7th District Gespegawagi Mi’gmaq (added 20 December 2015)
My life and times with Dr Bruce Clark in the struggle of acquiring Justice for the wrongs done to our people by the newcomers governments, and courts.
I was inspired to write my memoirs of my connection with Bruce Clark because of reading a recent an interesting news article in the APTN NEWS MEDIA where the Chief Justice of the Supreme Court is quoted that the alleged Genocide inflicted by canada towards the Indigenous Nations since the newcomers arrival is real, and did happen and still continues to this very day. Immediately after reading this historic headline quoting Canada’s highest ranking judge that Canada did indeed commit Genocide and still does today brought back distant memories of how this same Judicial institution had tried to silence Dr Bruce Clark, my dear friend, associate, and in my opinion one of the greatest indian activist native sovereignty lawyer that has genuinely argued for our continued native sovereignty and ownership of homelands. Throughout the decades Bruce Clark was the only Lawyer in canada who dared to cross the line and disavow his oath as an officer of the crown to bring harm and injury to the crown by actually alleging that canada and their supreme court were accomplices to these crimes against our peoples, for that boldness and conviction to acquire justice for the wrongs done to our Ancestors and accusing canada of inflicting Genocide and its judicial of aiding and abetting in it, Dr Clark would pay the ultimate price for uttering such an accusation at the seven supreme court judges in Ottawa. This was his death sentence to ever practice law in canada, they wanted his head on a plate, much like the christian version of how John the Baptist was beheaded for preaching the evils of the roman empire, and for them to repent. Although Dr Clark fortunately did not suffer the same fate as Jonh the Baptist, he might as well have because after canada, their RCMP, supreme court and canadian bar association were done with him, arrested and thrown in a mental institution to be evaluated if he was sane or not for accusing the supreme court judges in aiding and abetting in the Genocide with canada, his right to practice law was terminated, and no longer able to support his family, his named smeared in the litigation field where his supposedly learned colleagues would openly make jokes of he walked into the supreme court of canada and accused the seven judges in the complicity of genocide, and how he was dragged out by the RCMP. I remember responding to this certain lawyer colleague who was mocking Dr Clark when he accused the supreme court judges in their court and asked him to tell me exactly what was not true in Dr Clark’s allegations in the Genocide and that our native sovereignties and titles were not intact, he could not give me an answer, this lawyer was hired by our band council in the early nineties to handle constitutional cases that we were involved in the courts. This was about the same time that we first learned of Bruce Clark and his bold new approach in dealing with canada and its courts that native sovereignty was never abolished by them, and that their use of both the political and judicial fraud to abolish our Ancestral hereditary systems had no legal merit, this was exactly along the same lines that we the Mi’gmaq were operating under in reasserting our jurisdictions within our homelands.
We the Listuguj Mi’gmaq invited Dr Clark into our territory in the summer of 1993, we located him living with his wife in New York state, along the Hudson river in Mohican territory and asked him if would be our new legal counsel to advance our Independence and reassertion of our ancient jurisdiction within our territory, which he gladly accepted. It was at this period that we only learned of the entire story of he and his family had suffered because of his unwavering belief of how the canadian Political and Judicial together conspired outside of the Rule of Law to eradicate our peoples and steal our homelands. After he was dragged out of the Supreme Court and institutionalized, Dr Clark was to return to court to face obstruction charges with the certainty of being sentenced to imprisonment and therefore decided to find refuge in other countries, in europe, and United States I would suppose that any person under this duress and persecution from the state and judiciary would have done the same and seeing that his career as practicing lawyer was over in canada. Dr Clark and his wife Margaret basically lived as Paupers in whichever country and state they would end up at, their well being now at the hands of any sympathetic people who would help them to survive their ordeal. We provided Asylum to Dr Clark, his wife Margaret, and son David where they lived in a pleasant cozy cabin in the back woods of our territory; it was during this time in many of our get-togethers, Dr Clark shared the many unfortunate events of his life by refusing to repent before the courts for his allegations of their complicity in the Genocide of our Peoples. Because of the Judicials intent to silence him by having him disbarred, and no longer be able to practice law again in canada he lost everything, his house, property, cars, can we imagine their terrible ordeal of being homeless, having to go into exile to another country and separated from your children for years because if you stayed you would be imprisoned anyway, fortunately most of their children were old enough to take care of themselves, the eldest taking on the roles of parents, they clearly wanted to break his spirit and put him on his knees and repent for daring to accuse the Judicial that they were conspirators in the great political, judicial fraud used to steal our homelands throughout canada. Despite all their political and judicial might they did not succeed in breaking him or his spirit, Dr Clark refused to be silenced about the injustice and persecution done to indians since the arrival of the newcomers, he together with the continued and unwavering support especially from his wife Margaret, family, and close friends withstood canada’s and the Judicials Might to break his spirit and to forever silence him on the Genocide issue. He was determined to continue to be the voice of our people in their courts and to expose the judicial of how they used their judge-made law to collaborate with canada in the continued illegal takeover of our homelands. I, in my younger years, was always on the receiving end of a judges sentence, until I got older and wiser, and I never in my life would ever imagine that I could stand before a judge and tell him that what he was doing by using judge-made law versus the Rule of Law was illegal, but because of Dr Clark’s instilling within me that as a Hereditary Chief, I too played the role of judge of my people, just as our old Chiefs did in their time where they were often asked to settle problems among our peoples. I was convinced in my first appearance in the N.B. fishery case where I had to inform the judge that I too was a judge for my people and that he did not have the jurisdiction that I would suffer the same fate as Dr Clark and be thrown in jail or an institution, but it was not to be so, to my surprise the judge accepted my notice very calmly; but seeing that he was taken slightly aback by my notice to him, I realized that I and my people were the victims of that Genocide that Dr Clark spoke about, and just perhaps, there was that possibility that this N.B. Judge understood what I was saying to the court about what the newcomers did to our people and was reluctant to make me a victim of his court.
In my earlier statement, Dr Clark was our John the Baptist and preaching to all for decades who would take heed of the Genocide that was inflicted upon our peoples by the newcomers’ institutions with the same conviction as the Baptist, even if it meant losing everything that was dear to him, left penniless for decades, surviving from handouts from his friends, and now living on a very meager pension barely enough to pay rent, and has told me even barely enough to take his beloved wife Margaret out for dinner. He has because of perseverance outlasted and even perhaps outlived his persecutors, they failed despite all of their “Political and Judicial Might” to break his spirit and silence him forever. What happened to Dr Clark and his family and the needless suffering that they endured from these corrupt institutions is testimony, that “MightisnotRight” these four words by the way are Dr Clark’s email address, and words that he has lived by throughout his struggle with the Political and Judicial, words that forever stayed with me also when he first sent me his email, and will also stay with me through the rest of my Life.
The recent press release made by Canada’s top Supreme Court Chief Justice Beverley McLachlin that the attempted Cultural Genocide by canada towards the indians was real and did indeed happened and vindicates Dr Bruce Clark of what he was telling the lower and higher Courts in the last three decades, that the Genocide did indeed happen and that by their turning a blind eye to it made them accomplices. For three decades, Dr Clark was the only lawyer in canada (native or non native) to be brave enough to face the wrath of all these judges in their courts and accuse them of aiding and abetting in the continued genocide of our peoples by Canada, he is the only lawyer also in Canada that we know of that has been unjustly and cruelly punished by the State, Judicial, and the Bar for making these allegations in their courts. Chief Justice’s press release that the Cultural genocide did indeed occur should then absolve Dr Clark of any wrongdoing on his part during the past three decades, an apology and some kind of restitution be made to him and his family for suffering such a gross injustice for speaking the truth. He was only speaking the truth that the Chief Justice spoke about, that Canada did indeed attempt to inflict the Cultural Genocide on the indians. After all, in the decades when Dr Clark first presented the Genocide arguments in their courts, and up to the time of the Chief Justice’s press release finally admitting that the Genocide took place, all the judges from the lower courts right up to the Supreme court refused to entertain Dr Clark’s facts in their courts and called them frivolous coming from a disillusioned mad lawyer, when in fact his arguments were real and factual and that these judges were wrong and finally confirmed by the Chief Justice’s historical confirmation that supported Dr Clark’s Genocide argument. So the unusual and cruel punishment inflicted upon Dr Clark and his family during those decades that he brought his Genocide allegations into their courts is just swept under the rug absolving these judges, the RCMP, and the canada. I dare not think not, if Justice is to be “truly Blind” then the the state and Judicial must be held responsible for what they did to Dr Clark and his family, no one is above the Law and “Mightisnotright”. I think that I would not be delusional to say that the Supreme Court Justice that had boldly and bravely acknowledged not only the attempted Cultural Genocide that she identified, but also the Political and Economic Genocide, that she should also acknowledge that what the Judicial institutions did to Dr Bruce Clark in punishing him for raising the Genocide issue in their courts was wrong, and his good name must be restored after being smeared across the country for decades as being a indian activist lawyer gone mad, by their Judicial and enforcement institutions.
In conclusion, Dr Clark’s only crime in presenting his Genocide arguments in canada’s courts, and in the aiding and abetting of the Judicial by refusing to identify and stop the Genocide, was that he was a visionary way before his time, as validated by Chief Justice McLachlin’s acknowledgement that canada did indeed try to inflict Political, cultural, and economic Genocide on the indians. Unfortunately her historic comments came a decades too late for Dr Clark and his family. It is important for Dr Clark and his family to know that not all of canada’s society thought of him as a lawyer gone mad, rather he was just a mad lawyer for what canada and the its institutions were doing to our people, we the Mi’gmaq Nation, and I’m sure I speak for the rest of the many Nations throughout Canada, will forever be grateful for being the only canadian lawyer in canada throughout the decades in raising the Genocide issue in the newcomers’ courts, and for not letting canada and their judiciary off the hook during these decades. The punishment that you and your family endured over the decades from these institutions for your continued tenacity to make them accountable for the said genocide was not in vain, our people have witnessed the historic statement by the Supreme court justice validating that the Genocide was real, and that Canada was the culprit; yes, we expect more, but this will do for now my friend, the cracks within their Political and Judicial institutions are getting wider and bigger from the single stone chisel that you drove into their foundation decades ago.
In Peace and Friendship, we remain your friend, Hereditary Chief Gary Metallic, on behalf of the 7th District Gespegawagi Mi’gmaq.
contact: email, moc.liamtohnull@cillatemg.