There is a real court case pending, or sort of pending except for the fact the Clerk of the Supreme Court of the United States is blocking the Courthouse door to prevent the case from entering and being put in a file that will end up before the Justices and require a decision by them, supported by rational reasons for judgment. Its name is Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe and Gary Metallic v. Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States. And the issue it raises amounts to asking the nine Judges of the most powerful court in the world to answer the constitutional question of Constitutional Democracy v. Unconstitutional Empire in favor of constitutional democracy over unconstitutional empire.
Since that particular court is the imperial court of the empire the question is really asking them to do a coup amounting to a counter counter-revolution. The revolution was in 1776 when America started the fight that led to the 1789 Constitution of the United States of America which gave birth to Constitutional Democracy. The counter-revolution was in 1871 when the United States Congress enacted an Appropriations Act with a rider tacked on at the last minute abolishing the Indian tribal sovereignty. Till then it had sheltered under the protection of the commerce, defence and treaty clauses interpreted by the US Court’s constitutionally constitutive precedents with regard to the constitutional relationship between the United States and “Indian Tribes and foreign Nations” within the meaning of the Commerce Clause Article I, §8, ¶3, that says Congress is: To regulate Commerce with Indian Tribes and foreign Nations subject to the Protection of their Sovereignty and Possession under the Treaty Clause Article II, §2, ¶2 that delegates to the President the “Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur,” and also subject to the Defence Clauses Article I, §8, ¶1 says “The Congress shall have power to…provide for the common defense…” ¶11. “To declare War [and] ¶15. “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.
The counter-revolution was perfected when the courts of the United States and Canada decided not to permit anyone to challenge the legality of the abolition of the previously established constitutional right of Indian tribes and foreign Nations to an Answer from the Supreme Court of the United States pursuant to the Original Jurisdiction Clause Article III, §2, ¶2 saying “In all Cases affecting Ambassadors, other public Ministers and Consuls…the Supreme Court shall have original Jurisdiction.”
No Indian tribe’s sovereignty received the Court’s Protection after 1871 although the constitutional question of and answer by the US Supreme Court prior to 1871 settled that the Treaty and Defence Clauses preclude the assumption the Commerce Clause jurisdiction To regulate Commerce with Indian tribes and foreign Nations really means To exercise “plenary power” i.e., sovereignty over Indian tribes and foreign Nations.”
The court record for the entire set of court systems sitting in North America remained a blank slate from 1871 until in United States v. Lara, 541 US 193, 214, 227 (2004), Supreme Court Justice Clarence Thomas out of the blue said:
In 1871, Congress enacted a statute [Appropriations Act of 1871] that purported to prohibit entering into treaties with the ‘Indian nation[s] or tribe[s].’ 16 Stat. 566, codified at 25 USC §71. Although this Act is constitutionally suspect (the Constitution vests in the President both the power to make treaties, Art. II, §2, cl. 2…), it nevertheless reflects the view of the political branches that the tribes had become a purely domestic matter. To be sure, this does not quite suffice to demonstrate that the tribes lost their sovereignty…Federal Indian policy is, to say the least, schizophrenic.…I believe we must examine more critically our tribal sovereignty case law. Both the Court and the dissent, however, compound the confusion by failing to undertake the necessary rigorous constitutional analysis. I would begin by carefully following our assumptions to their logical conclusions and by identifying the potential sources of federal power to modify tribal sovereignty …I do, however, agree that this case raises important constitutional questions that the Court does not begin to answer. The Court utterly fails to find any provision of the Constitution that gives Congress enumerated power to alter tribal sovereignty…I would be willing to revisit the question.
From 1871 through to 2004 this conflict of laws between the constitutional and the ordinary law went unnoticed in so far as the courts of North America are concerned. Of course, the Indians noticed it as did the settlers led by the lawyers, judges and police in the land rush into the Indian territories inaugurated by the ordinary legislation. The legal establishment preceded the settlers in order to open the registry offices to record the government grants to the settlers of the Indians’ lands. The lawyers certified titles to the private property created by the land grants.
The Indians who noticed themselves in the way of the crops, cows, sheep and fences, of course, noticed the sudden absence of the constitutional protection formerly much promised by newcomer society from time out of mind. They knew the constitutions precluded entry of newcomers unto their land other than with their consent for the purpose of the mutually beneficial fur trade. The Indians were quite familiar with the newcomer government laws regulating this trade by prohibiting the newcomer traders selling alcohol or settling other than to the extent of fur trading posts agreeable to both cultures. Suddenly the fur trade was all but over and the lands were flooded with settlers.
Since the Indians had no money to speak of and since the Appropriations Act of 1871 and Indian Act of 1876 confiscated their lands and put in place of traditional Indian government, the government of the newcomers assisted by newcomer-created Indian band councils, the aboriginal government itself was confiscated along with the land it used to govern. Indians who went to lawyers were told they could either hang around town and beg or go to live on a reservation on some land the newcomer government could spare from settlement and live on handouts there. The aboriginal economy was dead as a means of survival. The lawyers were far too busy profiting from the conveyancing of Indian land to act on behalf of Indians to raise the constitutional question.
This went on the length and breadth of North America until 1972 when on February 11th five Indians came into my law office in Haileybury in northern Ontario, a town of three thousand people on the western shore of Lake Temiskaming. It’s a long narrow lake the center line of which defines the border between northern Ontario and northern Quebec. I’d been called to bar the year before and only just opened my office as a sole practitioner. The Indians were among my first clients. They hailed from Lake Temagami about forty five miles south west as the crow flies. Their lake was situate in the middle of the vast Temagami Forest Reserve of old growth white pines, sparkling rivers and crystal lakes. Their four thousand square mile ancestral homeland is about as close an approximation of the pre-Columbian natural order as exists in North America.
They complained to me that they’d just heard and read about an announcement by the government of Ontario that an 80 million dollar destination ski and summer holiday resort would be built on Maple Mountain, the 2nd highest elevation in Ontario and the crest of the height of land that defines the continental watershed between the waters flowing north to Hudson’s Bay from those flowing south to the Great Lakes St Lawrence drainage basin. What brought them out of the woodwork was the fact the resort was to be placed right at the highest point from the cave at which had emerged the mythic lynx and first people to inhabit the land exposed by the falling water level of the great flood.
Later anthropological and archeological research established a massive concentration of prehistoric rock pictographs throughout this region and unrivalled anywhere else. Similarly, linguistic analysis established this as the geographical centre of a dialectic chain of the Algonkian speaking linguistic family comprised of autonomous hunting bands organized in hereditary family fishing territories taking advantage of the finely networked riverine system that characterizes the northeastern North American woodlands. The waters were both the transportation highways and byways and the inexhaustible source of food complemented by hunting and gathering for variety. And, of course, some degree of quasi-cultivation in the sense of controlled burns that encouraged the important and reliable annual blueberry crops.
Adjacent bands were linked together to constitute the gene pool the minimum size of which has to be at least five hundred to avoid the complications of inbreeding. Also for political, commercial, religious and legal purposes were the aboriginal family, band, national and tribal entities closely linked and integrated by the water routes and intermarriage networks. Artifacts and natural products from one region in North America commonly turn up in the archeological record of the trade routes that the newcomers’ fur trade eventually was able to tap into and take advantage of, from the perspective of both cultures, at first, until the fur resource was depleted by over exploitation and the market collapsed as European fashion moved on from fur hats to the next fad and fashion. And then the settlement frontier leap-frogged the fur trade treaty frontier.
Quite early in my legal research prompted by the Indian clients from Bear Island in Lake Temagami I came across the rather famous Royal Proclamation of 1763. By no very great feat of scholarship I had learned by the summer of 1972 that it codified an agreement or consensus previously arrived at between all the European nations that had been involved in the great scramble to profit from “the discovery.” As early as 1493 the Catholic Church enacted ecclesiastical legislation that purported to bind Christian Europe as a matter of equity to respect Indian tribal sovereignty and exclusive possession to the extent of not just taking as if the right to do so were inherent, but instead to enter into treaties with the tribe, nation or band in occupation for the acquisition from it of the right to govern and possess.
Thus the papal bulla promulgated under reign of Pope Paul III and entitled Sublimis Dei of May 29, 1537 enacted:
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.
This principle of equity was adopted as the positive constitutional law of each of the great maritime powers of Europe that took part in the New World adventure: France, Netherlands, Portugal, Spain, Russia, United Kingdom. And in due course it was saved and continued by their successors in North America Canada and the United States. That is why each of the those italicized names is identified as a defendant in the Case of Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe and Gary Metallic v. Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States. That is the Case currently and criminally being stonewalled by William H. Suter, Clerk of the Supreme Court of the United States. It asks the constitutional question the answering of which by the Court will settle the matter Constitutional Democracy v. Unconstitutional Empire in favor of one or the other of those alternative modes of being.
In so far as British North America in particular is concerned, being the immediate predecessor to Canada and the United States of the preemptive right conferred by discovery to treat with the Indian aboriginal governments for the conveyance from them of their previously established jurisdiction and their Peoples’ corresponding possessory in the several hunting, fishing and gathering territories comprising the many ancestral homelands, as early as 1704 the Imperial Judicial Committee of the Privy Council (UK) in the reign of Queen Anne ruled, in the matter of Mohegan Indians v. Connecticut, that with regard to a constitutional question whether a newcomer government has yet acquired jurisdiction and power of disposition over real estate by treaty with the Indian government, that the Indian government is entitled to independent and impartial third-party adjudication.
The Mohegans petitioned Queen Anne in 1703 for appointment of such a third-party because they felt there was no point raising the constitutional question of Connecticut’s jurisdiction over a disputed tract in Connecticut’s court system, for the same reason Connecticut might be expected to be reticent to raise the question in the tribe’s court system. The Attorney General of the UK was commissioned to investigate the issue and in due course he recommended the commissioning of a Standing Committee of the Imperial Privy Council to serve as a trial level third-party adjudicator, subject to appeal ultimately to the Judicial Committee (UK) itself. This was adopted by the Queen and enacted into the colonial constitutional law by Royal Commission pursuant to the royal prerogative to legislate the colonial constitutional law, by means of this particular constitutional procedure. Connecticut repeatedly appealed over the course of the next seventy five years until, in 1775, the Judicial Committee of the Privy Council (UK), the Imperial Court of Last Resort affirmed the exclusive original jurisdiction as the independent and the impartial third-party adjudication of inter parties boundary disputes affecting competing sovereignties between crown governments, Indian tribes and/or foreign Nation or any combination thereof. The exclusive jurisdiction as third-party adjudicator of such disputes before 1789, as at 1789 devolved upon the Supreme Court of the United States pursuant to the constitution’s Original Jurisdiction Clause:
Article III, §2, ¶2 of the Constitution of the United States of America prevents any lapse of jurisdiction by saving and continuing the independent and impartial third-party jurisdiction formerly vested in the Judicial Committee in the Supreme Court of the United States. It enacts, “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
This is the Article of the constitution upon which Rick Vanguilder and Gary Metallic rely to invoke the Court’s third-party jurisdiction to answer the constitutional question of jurisdiction law alone of competing sovereignties between constitutional governments, Indian tribes and foreign Nations. The case of Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe and Gary Metallic v. Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States is currently left standing outside the Courthouse door by the Clerk of the Supreme Court Clerk’s chicanery. The legal consequence of the chicanery is that the US Supreme Court in consequence unconstitutionally is denied its right, jurisdiction and judicial duty to vindicate Constitutional Democracy in the case of Constitutional Democracy v. Unconstitutional Empire. Of record as: Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe and Gary Metallic v. Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States.
Gary and Rick attest in the US Supreme Court documents they are ambassadors and public ministers duly appointed in the tribal way to deal with the newcomer governments and Peoples by means of raising the constitutional question of the conflict between the constitutions of the named defendants, on the one hand, and on the other the Appropriations Act of 1871 and Indian Act of 1876.
Since those two ordinary statutes are the basis of the federal Indian law that ostensibly, although allegedly unconstitutionally, governs the relationship for legal purposes between natives and newcomers, therefore the constitutional question really means turning back the clock one hundred forty years to a time when it was well understood by everybody that newcomer jurisdiction and possession was contingent upon proof of purchase.
Specifically, by production and filing in court of a certified copy of the Indian Treaty duly registered in a land registry or land titles office and establishing proof of purchase. Such land records relative to New York and Massachusetts where the historical events relevant to the case of Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe and Gary Metallic v. Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States took place.
The land records were governed in each of those regions at all material times by one of two pieces of ordinary legislation enacted in compliance with the governing constitutional law. These are from New York and Massachusetts but the same law as identified there applies in all jurisdictions of the United States and Canada:
An Act concerning purchases of lands from the Indians, Stat. Prov. NY 1684, c. 9. Bee itt Enacted by this Gen’ll Assembly and by the authority of the same that from henceforward noe Purchase of Lands from the Indians shall be deemed a good Title without Leave first had and obtaineid from the Governor signified by a Warrant under his hand and Seale and entered on Record in the Secretaries office att New Yorke and Satisfaction for the said Purchase acknowlidged by the Indians from whome the Purchase was made is to bee Recorded likewise which Purchase soe made and prosecuted and entered on Record in the office aforesaid shall from that time be Vallid to all intents and purposes.
An Act to prevent and make void clandestine and illegal purchases of lands from the Indians, Stat. Prov. Mass. Bay 1701-02, c. 11. WHEREAS the government of the late colonys of the Massachusetts Bay and New Plymouth, to the intent the native Indians might not be injured or defeated of their just rights and possessions, or be imposed on and abused in selling and disposing of their lands, and thereby deprive themselves of such places as were suitable for their settlement and improvements, did, by an act and law named in the said colonys respectively many years since, inhibit and forbid all persons purchasing any land of the Indians without the licence and approbation of the general court, notwithstanding which, sundry persons for private lucre have presumed to make purchases of lands from the Indians, not having any license or approbation as aforesaid for the same, to the injury of the natives, and great disquiet and disturbance of many of the inhabitants of this province in the peaceable possession of their lands and inheritances lawfully acquired; therefore, for the vacating of such illegal purchases, and preventing of the like for the future,—Be it enacted and declared by the Lieutenant-Governor, Council and Representatives in General Court assembled, and by the authority of the same,
(1). That all deeds of bargain, sale, lease, release or quit-claim, titles and conveyances whatsoever, of any lands, tenements or hereditaments within this province, as well for term of years as forever, had, made, gotten, procured or obtained from any Indian or Indians by any person or persons whatsoever, at any time or times since the year of our Lord one thousand six hundred thirty-three, without the license or approbation of the respective general courts of the said late colonys in which such lands, tenements or hereditaments lay, and all deeds of bargain and sale, titles and conveyances whatsoever, of any lands, tenements or hereditaments within this province, that since the establishment of the present government have been or shall hereafter be had, made, gotten, obtained or procured from any Indian or Indians, by any person or persons whatsoever, without the licence, approbation and allowance of the great and general court or assembly of this province for the same, shall be deemed and adjudged in the law to be null, void and of none effect: provided, nevertheless,—…
(4). That if any person or persons whatsoever shall, after the publication of this act, presume to make any purchase or obtain any title from any Indian or Indians for any lands, tenements or hereditaments within this province, contrary to the true intent and meaning of this act, such person or persons so offending, and being thereof duly convicted in any of his majestie’s courts of record within this province, shall be punished by fine and imprisonment, at the discretion of the court where the conviction shall be, not exceeding double the value of the land so purchased, nor exceeding six months’ imprisonment.
(5). That all leases of land that shall at any time hereafter be made by any Indian or Indians for any term of years, shall be utterly void and of none effect, unless the same shall be made by and with licence first had and obtained from the court of general sessions of the peace in the county where such lands lye: provided nevertheless, that nothing in this act shall be taken, held or deemed in any wise to hinder, defeat or make void any bargain, sale or lease of land made by one Indian to another Indian or Indians.
Those two colonial statutes are the template for all the colonies and their successors — the States of the United States and the Provinces of Canada. All are based upon and in compliance with the colonial constitutional law eventually codified and reiterated by the first and only omnibus constitution applicable to all of British North America, superseding the same message previously expressed in the governor’s royal commissions and royal instructions for the governance of the several colonial governments, the Royal Proclamation of 1763. It enacted:
[Preamble] And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds—We do therefore, with the Advice of our Privy Council, declare it to be our Royal Will and Pleasure, that…
[1] no Governor or Commander in Chief…do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents…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.
[2] And We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three new Governments [Quebec, East Florida, West Florida], or within the Limits of the Territory granted to the Hudson’s Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as aforesaid [i.e., all of British North America howsoever politically organized].
[2] And We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved without our especial leave and Licence for that Purpose first obtained.
[3] 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.
[4] And whereas great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests, and to the great Dissatisfaction of the said Indians: In order, therefore, to prevent such Irregularities for the future, and to the end that the Indians may be convinced of our Justice and determined Resolution to remove all reasonable Cause of Discontent, We do, with the Advice of our Privy Council strictly enjoin and require that no private Person do presume to make any purchase from the said Indians of any Lands reserved to the said Indians, within those parts of our Colonies where We have thought proper to allow Settlement: but that, if at any Time any of the Said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony respectively within which they shall lie.
[5] And we do by the Advice of our Privy Council, declare and enjoin, that the Trade with the said Indians shall be free and open to all our Subjects whatever. provided that every Person who may incline to Trade with the said Indians do take out a Licence for carrying on such Trade from the Governor or Commander in Chief of any of our Colonies respectively where such Person shall reside. and also give Security to observe such Regulations as We shall at any Time think fit. by ourselves or by our Commissaries to be appointed for this Purpose, to direct and appoint for the Benefit of the said Trade:
[6] And we do hereby authorize, enjoin, and require the Governors and Commanders in Chief of all our Colonies respectively, as well those under Our immediate Government as those under the Government and Direction of Proprietaries, to grant such Licences without Fee or Reward, taking especial Care to insert therein a Condition, that such Licence shall be void, and the Security forfeited in case the Person to whom the same is granted shall refuse or neglect to observe such Regulations as We shall think proper to prescribe as aforesaid.
[7] 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.
The drafters of the Royal Proclamation of 1763 were quite superb at their job. They well understood the insidious political temptation under which the governors and the governments under them had to labor, so far from the mother country and exposed to the blandishments of the local gentry, land speculators, businessmen and settlers, all champing at the bit to get into constitutionally off-limits Indian territories. The proclamation heads off the lure of non-compliance in no uncertain terms, making it punishable without proof of guilty intent as “Misprision of Treason,” an absolute offence equivalent to a high contempt of court or treasonable act against the person of the monarch or counseling war upon the Crown’s dominions or home country.
Anyone doing any of the prohibited acts was to be hunted down and returned from the Indian territories if found there, to stand trial in whatever colony the crime had occurred in. This transportation for trial was, of course, necessary since the colonial courts had no jurisdiction in the Indian territories, since those territories remain under the exclusive jurisdiction of the original Indian tribal governments and courts. Until such time as the tribe should contract by Treaty agree to relinquish its territorial sovereignty and possession.
The proclamation anticipated “Pretence” and “Fraud” and “Abuse” in places both high and low in order to get at the Indians’ lands and resources without compliance with the constitutional law. That is why the breach of it was constituted a crime tantamount to treason but easier to prove than treason, since “Misprision” renders the “Treason” punishable upon mere proof of the prohibited act, whether it be an authorized grant of land patent by the Governor or Commander in Chief or the poorer farmer crossing the Treaty Frontier with a little herd of sheep to graze. The defence of ‘Who me?’ or ‘I got lost!’ or any such other thing going to the absence of criminal intent was not arguable.
That is very essence of the legal device of the Royal Proclamation. That rarely employed and peculiar kind of law is published and nailed up on every court house door and every political chamber. It is quite literally “proclaimed” throughout the land much in the same way as in pre-literate England a Town Crier would cry out the message all around each town and village before nailing it with its big red seal in some prominent public place, to remind all and sundry of the law of which all persons in the realm irrebutably are presumed by operation of law alone to have had actual notice.
This is law that section 109 of the Canadian constitution in 1867 saved and continued as the supreme law constitutionally protecting the Indian tribal sovereignty and possession pending treaty when it enacted that the constitutional delegation to the Provinces of Canada of jurisdiction over “Property and Civil Rights” is subject to the Indians’ previously established constitutional “Interest,” rather than the other way round. Thus in 1875 the Minister of Justice and Attorney General of Canada filed a Report in the Privy Council (Canada) recommending the Public Lands Act of British Columbia be disallowed on the ground of conflict with the Royal Proclamation of 1763 in so much as it purported to have dispositive power over Indian lands for which no Indian Treaty surrendering Indian sovereignty and possession had been registered. That is, the province was asserting original as opposed to derivative jurisdiction to grant lands within the geographical boundary of the province regardless of the Treaty Frontier. The Minister’s recommendation was adopted by the Privy Council by Minute in Council which then in turn was signed and sealed into law by the Governor General of Canada. The Report was as follows:
Canada Minute in Council 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 [enacts] “…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 [British North America] 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 [Minister of Justice for Canada], therefore, feels it incumbent upon him to recommend that this Act [the British Columbia Public Lands Act] be disallowed [as unconstitutional in virtue of purporting to apply to Hunting Grounds reserved for the Indians].
The Minute in Council was not, in fact, implemented. Instead, in a complete about face the government of Canada the following year chose instead to ignore section 109 of the constitution constituting that government subject to section 109. Rather than respect the proclamation the Prime Minister who at one time was also Superintendent of Indian Affairs led his colleagues into passing the Indian Act of 1876 which itself was modeled upon the American Appropriations Act of 1871.
The Indian Act provided that the only Indians with legal status are those individuals who are listed on the band lists maintained by the Department of Indian Affairs and Northern Development. Bands are defined as bodies politic incorporated pursuant to the Indian Act and exercising the municipal powers (dog bylaws, garbage collection and so on) authorized under that statute and approved by the Superintendent of Indian Affairs who has discretionary power to disallow any band council resolution.
As under the Appropriations Act of 1871 the Indian Act of 1876 introduced a regime of federal law profoundly in conflict with the previously established constitutional law.
This, of course, was and remains unquestionably unconstitutional. In rule of law theory all the Indian tribes had to do to protect their sovereignty and possession from this usurpation and dispossession was to deliver a Notice of Constitutional Question requiring the Court to answer by declaring the Appropriations Act of 1871 the Indian Act of 1876 null and void.
That is easier said than done. In complementary ordinary legislation it became a criminal offence for a lawyer to represent Indians without the consent in writing of the Superintendent. Not that any lawyers applied. The profession was too busy doing the land deals in consequence of the unconstitutional dismantling of the Treaty Frontier Wall. It is very hard for a lawyer to break ranks with his profession. Especially since the members of the bench are drawn from it.
Not only was it hard, but pragmatically it was impossible. The clerks of the courts who are appointed to office and subject to removal from office by the judges of each court were — and are — under permanent instructions to reject any document filed by or on behalf of an Indian tribe claiming constitutional protection for its sovereignty and possession. No Indian accused of a criminal offence could, or can, get heard in court to raise the constitutional defence of tribal sovereignty.
Prior to 1871 Indian tribal sovereignty was a commonly referenced topic in hundreds of recorded court cases. After 1871 there are no references. The previously established judicial confirmations of the constitutional law in every generation since 1789 suddenly stopped. The Indian tribal sovereignty court record from 1871 to 2004 is a blank slate.
This is not surprising given that access to the civil courts is barred by the court clerks who refuse to permit the filing of the constitutional question and of the criminal court judges who cannot see or hear the issue. The question is not a part of any court record or reasons for judgment because the legal profession and judiciary do not permit it.
Prior to 1871 everybody, and not only lawyers and judges, knew perfectly well the federal government has jurisdiction to regulate the Indian trade pursuant to the commerce clause subject to the treaty and defence clauses that protect the tribes from invasion, occupation, usurpation and dispossession “on any Pretence whatever.”
What the constitutions attempted to do but did not succeed in doing was to guard against the counter-revolution that eventually did overthrow Constitutional Democracy and replace it with Unconstitutional Empire. The counter-revolution was created and implemented from within the society rather than from the outside. The constitutions placed their People’s trust in the guardianship of the legal profession and the judicial branch of government.
Theirs was duty to implement the rule of law specifically by upholding the principle of the supremacy of the constitution upon which the existence of Constitutional Democracy entirely depends.
The framers of the constitutions, the same as the drafters of the Royal Proclamation of 1763, were not wet behind the ears. They knew of the proclivity of governments to exceed and abuse the powers entrusted to them and they sought to forestall the risk by putting the court system in the position of guardianship of the public trust to safeguard Constitutional Democracy. After all if you can’t trust the judges, who can you trust?
For the past forty years I have been persisting in trying to get into courts, on behalf of Indian tribal governments, the constitutional question of the conflict of laws between the constitutions’ amendment, commerce, defence, judicial oath respecting the supremacy of the constitution and treaty clauses and their interpretive precedents on the one hand, and on the other the federal Indian law introduced by the Appropriations Act of 1871 and the Indian Act of 1876.
In 1999 a judge convicted me of criminal contempt of court and in due course I was disbarred as a convicted criminal from practicing with regard to the law of Ontario, on the basis of the bare faced lie that every judge before whom I had raised the question carefully and patiently had addressed it and discounted it with cogent reasons for judgment. If that were true, there necessarily would be a court record to prove it. Not that the law of Ontario is relevant other than that it is one of the many bodies of law that unconstitutionally is applied in criminal willful blindness by the courts of the Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States.
The crimes go beyond mere ‘Misprision of Treason” and most importantly today consist in war and genocide, the prevention of which is the objective of the case of Constitutional Democracy v. Unconstitutional Empire carriage of which now has been picked up by the case of Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe and Gary Metallic v. Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States.
What that case does is present an answer to the same old constitutional question that the legal system of the Unconstitutional Empire of the responding nations, with the cooperation of the International Court of Justice, International Criminal Court, Human Rights Committee of the United Nations and Judicial Committee of the Privy Council (UK), have managed successfully to make invisible and unheard-able ever since 1871.
Suddenly, in 2004 US Supreme Court Justice Clarence Thomas took judicial notice, on his own motion, for the Court to address the manifestly unconstitutional status of the Appropriations Act of 1871 and the Indian Act of 1876 in the light of the Commerce, Treaty and Defence Clause precedents read as a set. This was the first time in 133 years that a North American judge opened his eyes to see the conflict and, therefore, the urgency of the Court answering the constitutional question of jurisdictional law alone of Indian tribal sovereignty.
He did this on his own initiative, since the system is set up to block litigants who raise the question from reaching the Judges. Out of the blue Justice Clarence Thomas of the Supreme Court of the United States in the Case of United States v. Lara, 541 US 193, 214, 227 (2004) said in compliance with the Judicial Oath Clause Article VI ¶3 :
In 1871, Congress enacted a statute [Appropriations Act of 1871] that purported to prohibit entering into treaties with the ‘Indian nation[s] or tribe[s].’ 16 Stat. 566, codified at 25 USC §71. Although this Act is constitutionally suspect (the Constitution vests in the President both the power to make treaties, Art. II, §2, cl. 2…), it nevertheless reflects the view of the political branches that the tribes had become a purely domestic matter. To be sure, this does not quite suffice to demonstrate that the tribes lost their sovereignty…Federal Indian policy is, to say the least, schizophrenic.…I believe we must examine more critically our tribal sovereignty case law. Both the Court and the dissent, however, compound the confusion by failing to undertake the necessary rigorous constitutional analysis. I would begin by carefully following our assumptions to their logical conclusions and by identifying the potential sources of federal power to modify tribal sovereignty …I do, however, agree that this case raises important constitutional questions that the Court does not begin to answer. The Court utterly fails to find any provision of the Constitution that gives Congress enumerated power to alter tribal sovereignty…I would be willing to revisit the question.
Well, the cat is out of the bag. No way does she want to be jammed back in there. William K. Suter, Clerk of the Supreme Court of the United States, is doing his level best to serve as the Honorable Cat Catcher to the Unconstitutional Empire. Suter has refused to let Gary and Rick file thec case of Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe and Gary Metallic v. Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States. Suter’s ground of refusal is, the federal legislation whose constitutionality itself is in question does not allow constitutional challenges to itself. And that is where the matter presently stands. To all intents and purposes the cat is back in the bag, notwithstanding Justice Thomas. The most recent of the very many painful attempts to escape the prison built and maintained by the judicial branch of the Unconstitutional Empire to contain and restrain the constitutional question is the following letter to each of the individual Justices of the Supreme Court of the United States: