An Identification of the Conflicted Relationship between the Indigenous Nations and the Legal Profession in North America

An Indian goes into a law office and says, “Since my traditional government never agreed by any treaty to be governed by your government, why does your legal system apply your government’s laws to me on my indigenous nation’s unceded national territory?”

If he lives in Canada, the Indian is likely to be aware of the fact that the original constitution for all of British North America (the Royal Proclamation of 1763) reiterated the stipulation that the first principle of all land occupancy and jurisdiction law is, “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.”

If he lives in the USA, he may be aware that the original and authoritative and therefore binding (including upon the Supreme Court itself) Supreme Court precedent Worcester v. GeorgiaPeter’s 515. Adopted and applied as to Canada not only by Section 109 of the Constitution Act as settled by the Judicial Committee of the Privy Council (gb) in Attorney General of Ontario v. Attorney General of Canada: In re Indian Claims, [1897] ac 199, but explicitly by the Superior Court of Quebec in Connolly v. Woolrich in the very year of the Canadian Confederation: (1867), 11 lcj 197, 205-07 (sc Quebec); affirmed (1869), rlos 356-7 (ca Quebec). in 1832 recognized and affirmed that this constitutional right to “Protection” against (as opposed to competition from) newcomer government jurisdiction and its constituents’ occupation continued, as the first principle of the new American constitution after Independence. The Court said, “What is a treaty? The answer is, it is a compact between two nations or communities, having the right of self government.… Except by compact we have not even claimed a right of way through the Indian lands.”

Article ii, Section 2, Paragraph 2, Clause 1 of the US constitution allots to the President the exclusive jurisdiction to contract treaties. Crucially, the original precedents interpreted that clause as implicitly incorporating the previously-established law regarding the constitutional reconciliation of territorial sovereignty rights of the indigenous and newcomer nations.

In consequence, the US government no less than the government of Canada is required to obtain the consent of the Indian nations’ before assuming jurisdiction to invade, occupy and govern the yet unceded Indian national territories. Canada’s constitution also has a treaty clause and, even more explicitly, its Section 109 stipulates that the crown’s constitutional interest is “subject to” the indigenous national interest unless and until a treaty has been contracted relinquishing it.

This North American legal reality is not an “absolute truth” such as claimed by religions as the basis for everything but, relative at least to the parameters of the rule of law, it is “the constitutional truth.” As such, it is the structural foundation for civil society and government based upon the rule of law and is binding upon those whose job in society it is to uphold the rule of law for the purpose of achieving legal justice, i.e., the application of truth to affairs. That job is performed by the legal profession which provides for the lawyers and the judges who themselves are subject, as opposed to being above the rule of law.

As the US Supreme Court stated in 1810 in its first precedentFletcher 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.” in the aboriginal rights field, the indigenous constitutional interest “is certainly to be respected by all courts.” In spite of this, the legal profession and judges knowingly elected to lie to the native and newcomer public and, more importantly, to itself rather than to uphold this constitutional truth. The profession chose political opportunism over the rule of law and, by doing so, the lawyers and judges collectively replaced emancipated constitutional democracy with paternalistic judicial oligarchy.

The political pressure to do this was identified as early as 1791 by the Chief Justice of Upper Canada John Elmsley in his “Report to the Executive Council of Upper Canada dated October 22, 1798:

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 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.

Instead of making sure that the Indian beneficiaries of that constitutional trust obligation fully are informed before making treaties ceding their sovereign jurisdiction and possession, the Chief Justice’s concern was that others would do the informing and that in the result the crown governments would have a hard time buying up the Indian land at pittance prices. By the 1870s, the indigenous nations had learned the lesson that the Chief Justice was concerned they not learn.

Faced with the prospect that the Indians might not “sell” at ridiculously low prices the “Protection” duty of the crown and its law officers knowingly and intentionally was corrupted by the judiciary, not necessarily for the direct benefit of any individual judge or lawyer, but rather in the service of the newcomer public’s interest in stealing the Indians’ possession and usurping their jurisdiction.

Specifically, in the 1870s the governments of both the USA and Canada dealt with this threat by invading, occupying and governing the yet unceded indigenous national territories under the auspices of their own legislation, regardless of the absence of treaties. The legal profession and judges permitted and led the invasion

The breach recommended by the Chief Justice in 1791—of the fiduciary obligation of “Protection”—was enlarged in the 1870s into omnibus war and genocide, which thereafter became the perfect crime, precisely because it was supported by the legal profession’s suppression of the constitutional law. Since the 1870s, it has been impossible to persuade the North American judiciary to address the constitutional truth. The issue itself has been buried, though the law pertinent to it has never been repealed in a constitutionally legal fashion.

In my essay “Judicial Culpability for War and Genocide in the Age of American Empire,” Global Jurist: 8: Iss. 3(Frontiers), Article6 (2008), I have identified the stages by which this judicial abandonment of the truth standard in favour of judicially-backed political opportunism—the big lie—is the basis for the unconstitutional war and genocide upon which the empire of the “free world” is based.

Among other things the essay illustrates the weight of the burden of judicial lie by the example of the criminalization and disbarment of me, personally, for persisting over a thirty-year period in raising in North American courts the above-mentioned constitutional enactments and precedents. In my situation, the lie was that the law I raised was addressed every time I raised it which, if true, would be evidenced by court records.

This is the background that determines the legal relationship between constituents of the traditional indigenous nations who would, if allowed, resist the war and genocide upon the basis of the consensus of law as between their own law and the constitutional law of the newcomers’ society.

As an institutional class the legal profession in North America labours under a conflict of interest and, even for those few lawyers who might be inclined to defend the truth standard, the futility of repeating the conduct for which I was, and still am being, persecuted. Even the most knowledgeable and empathic lawyer knows from professional experience that the legal system is above the law, in as much as it has the last word on legality. Even if the lawyer is aware of the constitutional and international law that supports the sole authority of the ancestral law, the lawyer will feel bound to say the law does not matter given the legal system’s prior suppression of its existence.

The strategy rationally dictated by this point of view is to sue or threaten to sue the government in the government’s court system, while being careful not to impugn the court system itself. Upon this basis one asks the court to exercise its (unchallenged) judicial discretion by recognizing:

   1. a judge-made “right to be consulted” in relation to development (as opposed to the constitutional and international law right of veto that exists by virtue of the indigenous national right to withhold treaty consent to development);
   2. a “right to money damages” (as opposed to the constitutional and international law right to reparations for war and genocide against another nation); and/or,
   3. a “right to a primitive practice” (as opposed to the constitutional and international law right to sole possession and exclusive jurisdiction pending proof by the government of a treaty consenting to relinquishment.)

Genocide continues in consequence of the lawyers’ and judges’ institutional and profound conflict of interest with justice—based upon the truth, the whole truth and nothing but the truth—which the rule of law in idealistic theory exists to serve.

They will not address the constitutional question that exposes their own culpability for war and genocide as against indigenous and foreign nations whose values deeply conflict with, and pose an ideological threat to, theirs.

The strategic choice presented by the lawyer, if any choice is identified at all, is as between a no chance court case based upon the consensus of ancestral, constitutional and international law, versus a good chance of something for going along with the fraud, war and genocide.

The lawyer (if interested in accepting Indian work at all) will have a promotional tactic, the client’s approval of which shall be the marching order to appeal to the court’s ego as dispenser of fairness. Thus is pleaded the court’s “fiduciary relationship” with Indians—the modern term for the great white father relationship—the hallmark of the exploitation and abuses.

For some persons of indigenous ancestry the judicial receptivity to the right to be consulted, money damages and practicing the occasional hunting or fishing technique as did their ancestors, is a bird in the hand. For such as these many lawyers exist who are ready, willing and able to get whatever is on offer.

For those Indigenous people who nevertheless still want to pursue the constitutional and international law, I can only suggest they consider the conclusion of my recent essay. The gist of it is to resort to international judicial opinion to persuade the North American judiciary to do its duty: to uphold the truth standard and the principle of constitutional democracy under the rule of law, at home.

There is no legal point to be served in troubling to draft declarations and petitions to the government. The government knows and has heard it all before. Its whole policy as against Indian and foreign nations is to lie and to wear down resistance to the lie by the unconstitutional and mortal use of force. There is no possibility of negotiations in good faith relative to treaties regarding territory that the government has already invaded, occupied and governed in bad faith.

Good faith presumes truth is of determinative relevance to the framework for the negotiations and unless and until the legal profession reforms itself, truth will remain irrelevant.

The old style Indians knew and warned of the threat that the demise of the truth standard constitutes to the continuity of life on earth. Their predictions are coming to pass not only with respect to the environment but with regard to the rampancy of the self-destructive greed and the fraud that feeds it in the economic realm.

The theme that the continuity of all life depends upon the integrity and paramountcy of the truth standard in human affairs—the ultimate indigenous truth being the interconnectedness and interdependency of all things—was reiterated in the modern sociological arena by J?rgen Habermas’ Legitimation Crisis (1975).

The current conjunction of global economic and environmental crises will not likely be resolved unless a structural approach that goes to the root of the catastrophe is identified and addressed, by the authors of the problem: the North American legal profession and judiciary. They must be persuaded to place themselves under the rule of law, if reform is to be other than cosmetic and futile.

Those Indians who want genuine justice rather than money damages in exchange for continued injustice have no alternative but to keep bringing actions based upon the constitutional truth. Since lawyers will not aid in this, they can only do this pro se.

5 comments on this article so far ...

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  1. Bob McCafferty said on January 10th, 2009 at 6:27am #

    Hello Bruce,
    Send me and e-mail at ten.dtpnull@acitoib as Elizabeth and I have a audio show on the internet. It is called “Subterranean Homesick News”. It is on Monday thru Thursday on Send me and e-mail.
    P.S. Keep up the good work, and keep the faith.

  2. Gary Metallic,Mig`maq Hereditary Chief said on January 10th, 2009 at 1:01pm #

    Bruce, glad to see you are still writing about Canadas pretended jurisdiction and that our sovereignty and jurisdiction still exists within our unceded territories, for your info I was asked by the Traditional Algonquins of Barriere Lake who were kicked out of their community several years ago by the indian act council to help them in their notice of no judicial jurisdiction by the Quebec courts within their unceded territory. They were arrested last year for setting up a blockade to protest clearcutting along their traplines, I had met them last summer in Washington D.C during the Longest Walk event that we attended and shared with them our countering the Quebec court system with our native courts. Their case was scheduled last monday and I went to Manawaki to speak in front of the judge to explain to him the notice of no jurisdiction served prior last nov,3rd,2007, as we had done in our local provincial courts in the nineties, I informed the judge that while this notice may be new to him in his court in Manawaki we had served prior notices in my territory to the quebec court. I cited several arguments as to why he didnt have jurisdiction on unceded indian lands, (Royal Proclaimation, formation of our Confederated Native Court and judgement rendered by that court and served to both registrars of Canada and Quebec courts and U.S. ). The judge was quite defensive about his jurisdiction and said if there was no quebec jurisdiction who would prosecute crimes within indian territory, we notified him that the Algonquins were reviving their traditional political institutions and were also in the process of forming their courts where they will also be hearing this case and rendering judgment which will be sent to the quebec court. It gave me great satisfaction to help them in asserting their sovereignty that day, and for once they saw exactly how strong their assertions were in applying that jurisdiction using the legal arguments we used in the confederated native court judgement. They had expected to be handed down jail sentences as usual, the judge remanded the case to Aug,31st, for a reschuduling date, and also said that this matter be somehow resolved with the political parties, so I have been telling other nations that we have to assert our jurisdictions and counter the newcomers courts to stop their pretended jurisdictions upon our unceded territories, we are currently working at adding new member nations to sign on as judges within the Confederated Native Court, the good thing about this case was that it was on Algonquin territory and there was already a Algonquin judge which was William Commanda. The work that was done in the nineties on native sovereignty within our territory is only now being recognized and understood by our people and other nations, perhaps we were a little ahead of our times, but im glad that we did what we did, thank you, I would like very much to communicate by phone or email about our work together, my email is; moc.liamtohnull@cillatemg and my home number is 603-864-8760, I currently live in Newhampshire, but I travel back and forth to the rez, I will be in Montreal tomorrow for the next few days, maybe we cam meet if you live near there, Gary Metallic

  3. James Craven said on January 11th, 2009 at 6:29am #

    Dr Clark is exactly correct and there is more to the story.

    At the infamous Wannsee Conference on January 20, 1942 when 15 top Nazis met on the “Final Solution to the Jewish Problem”, of the 15 attendees, 8 held doctorates and 9 of the 15 were lawyers. They met not only to plan the mechanics and logistics of genocide, they met also to plan the legal rationales for and notions of “sovereignty” to do genocide.

    What makes a group of people a nation is a matter of international law and facts on the ground; it is not a matter of recognition or non-recognition by any other nations. No nation can summarily declare as “sui generis” (of a special type or a sort of First Nation but not with complete sovereignty) for purposes of its own convenience and attempts to eliminate it. The DIA Tribal Councils in Canada and the BIA Tribal Councils in the U.S. have the same status under international law as did the Vichy Government of Nazi-occupied France. All nations, under international law, have the right not to be exterminated or forcibly assimilated and also the derivative and necessary rights to all that is necessary to prevent such: independence, self-determination, sovereignty.

    Another irony is that from the Nazis own mouths and writings, their major inspiration for genocide (scope, depth, methods, ways of gaining mass acceptance, methods of cover-up, legal legitimacy) came from Hitler’s reading of the Wild West novels of Karl May on the extermination of Indians in the U.S. and Canada along with the Eugenics movements and laws in Canada and the U.S. The 1928 Alberta Sterilization Act, the 1933 B.C. Race Hygiene Law, and the Sterilization laws in 27 U.S. States were cited by the Nazis explicitly as the inspiration for their own 1933 Race Hygiene Law and 1935 Nuremberg Race Laws.

    The evidence is all here for Dr. Clark’s allegations and more all of which has been presented to the Canadian Government in the case of the Crown v Bella Yellowhorn and in various venues with no rebuttal ever by the Canadian Government.

    Jim Craven/Omahkohkiaayo i’poyi
    Professor of Economics and Geography
    Member, Blackfoot Nation

  4. Gary Metallic,Mig`maq Hereditary Chief said on January 11th, 2009 at 2:39pm #

    To James Craven, My Name is Gary Metallic and I am one of the Traditional Hereditary Life Chiefs of the Migmaq Nation, I have read your Blackfoot indictment of U.S and Canada on Genocide, I can understand why there was no rebuttal from either party, how do you counter something that you have created and used Internationally to convict others and yet you committed the same crime but exonerated yourself by creating domestic man made law to evade the crime. However painful this issue of Genocide may be for the loyal Canadian or American person, it has to be identified and dealt with, and we give thanks to the Creator for sending people like Dr Clark and you for writing about it so that eventually some day justice will prevail for our peoples. Todays generation of nonnatives from Canada and the U.S. will argue that the sins of their ancestors for the illegal taking of our lands and resources dont apply to them because they were not there when it happened is a weak excuse not to deal with the injustice. Our elders say that, surely these non indians must love and respect their ancestors that had passed on and if they really stopped and looked at the historical illegal taking of our lands and resources by them, they should also know that stealing is a sin according to their religous beliefs. They further say that regardless if you stole or murdered someone today or two hundred years ago, it is still a crime under their laws and their God, so they ask why cant they see according to their laws and God in order for their ancestors to have peace, there has to be restitution, only then these founding fathers of these countries will be able to rest in peace. The Elders also say that this guilt has been on the shoulders of many generations that have passed with no end in sight, and that this a terrible burden for any nation to carry, like an open wound that refuses to heal, as their Pope announced during his visit to Canada in regards to the plight of the Aboriginal people in self determination, and the restoration of their lands and resources. I had commented on your tribunal and left my email, but if you for some reason do not have it, it is: moc.liamtohnull@cillatemg, Gary Metallic, Migmaq Nation

  5. James Craven said on January 12th, 2009 at 6:33am #

    Dear Gary,

    I was out near where you are at a conference on the Indian Residential School system at the invitation of Dr. Roland Chrisjohn some time ago. As I noted when out there, if you find any of my work has any merit or use, please take it and use it as you wish.

    I have had my email shut down where I work as I am on sick leave. But I have more to send you directly not on my website.

    In the case of The Crown v Bella Yellowhorn, whose pro se defense I assisted (no lawyer in Alberta would touch the case because even those who believed in our arguments were afraid of never practicing law again in Alberta), we were up against two Constitutional lawyers and two to three criminal lawyers and the trial lasted over more than 6 months with delays. I will send you the case file and I also have a transcript of the trial.

    Our only weapons now are the truth; the courage to tell the truth; our refusal to be bought, intimidated, co-opted or bow down. And we have another weapon also: it is the Canadian and U.S. Governments that are the law breakers not us. They are breaking their own laws in addition to international law and laws against genocide and many other crimes; and their naked hubris and hypocrisy, while they dare to lecture the world about human rights, we will spit back in their faces as Wolverine and I did in China when the Canadian Ambassador refused to stay to hear our presentation at a Conference on Indigenous Affairs held by both the Canadian Government and Chinese Academy of Social Sciences (Wolverine and I were the only Indigenous persons and we were invited by the Chinese Academy of Social Sciences.) The paper I presented is available at my website.

    Ni Kso Ko Wa (We are all related)

    Omahkohkiaayo i’poyi