A legal opinion delivered by Bruce Clark, LL.B., M.A., Ph.D.at Listuguj in the Mi'qmaq countryon September 4, 1996
That attempt apparently was discontinued when the Law Society rejected the previous attempts by other judges to achieve the same reprehensible end, of silencing the bearer of unwelcome tidings, rather than face them honestly.
The idea that a lawyer can be in contempt of court for raising a point of law that he can substantiate, is itself an outrageous contempt of the rule of law.
How else can the truth come out, if it cannot be spoken in courts of law?
Justice, after all, is supposed to be the application of truth to affairs.
How can any lawyer, or any other citizen for that matter, keep silent, when they know that what is going on in the courts aids and abets the genocide of the aboriginal people? To maintain silence about the genocide, once you know that it exists and how it is perpetrated by the judges, is itself complicity in genocide.
This is the reason the Law Society refused to go along with judges' obscene attempt to cover up their crimes by silencing the raising of the law exposing them.
No, the judges of the Supreme Court of Canada did not make an innocent or honest mistake on August 21, 1996, when they handed down their decision in the Van der Peet, Smokehouse, Gladstone and Pamajewon cases. At that time, they knew they did not have jurisdiction in aboriginal rights matters.
They knew that the newcomers courts were in the habit of committing treason, fraud and complicity in genocide by assuming jurisdiction. They attempted to perfect those crimes by effectively reading aboriginal rights out of the law.
The attempt is impossible. Only a constitutional amendment can legally achieve what the judges illegally have attempted. By making the attempt, they have abused their power profoundly. They have turned the rule of law into a cruel and vicious hoax.
At the same time as the Supreme Court of Canada was handing down its decisions in the Van der Peet, Smokehouse, Gladstone and Pamajewon cases, the Toronto Globe & Mail prophetically ran a set of anagrams.
One these rearranged the letters in the phrase "Supreme Court of Canada," to read "Accursed paramount foe." As head of the beast that is committing genocide against the aboriginal people, in willful blindness to existing international and constitutional law, the anagram represents a fair and just assessment.
For as matters stand the Supreme Court of Canada is not only an enemy of the aboriginal people, but of all people who believe in the rule of law and the cause of justice.
Still the question remains, how can the aboriginal people defend themselves, when all these institutions for upholding the rule of law-academic, professional and judicial-seem to conspire to defeat the law and the integrity of the rule of law?
The Passamaquoddy Declaration of 27 August 1996, perhaps, lights the way. The Passamaquoddy nation has gone back to the map of the way provided by the Mohegan precedent and principle.
That nation has resolved to take its dispute with the State of Maine and the United States to its own court system, which means reviving the court system of the Wabanaki Confederacy. For purposes of international relations and third party adjudication, the Passamaquoddy tradition and customary law regards the confederacy as the appropriate forum.
The Passamaquoddy nation has made two extraordinarily important legal points.
First, there are native courts. They do exist, for all that have been suppressed. The idea that if there are no newcomer courts there would necessarily be a vacuum is an invalid assumption.
Second, the enforcement of the orders made by the native courts will benefit from if not require the cooperation under the rule of law of the courts of adjoining jurisdictions, whose citizens without that cooperation might otherwise destroy the rule of law by force.
In this sense, the approach taken by the Passamaquoddys is en route to putting the rule of law itself to the test. And the world's community of nations increasingly depends for its economic well-being and security upon the universal integrity of the rule of law.
Fifty years ago perhaps, the newcomers' governments and courts in North America would have been willing to crush the native people who had the courage to challenge their jurisdiction.
Perhaps today, and even more so in the tomorrows, the willingness to be seen crushing the resistance will be less present The Gustafsen Lake show trial, it can be hoped, is a last gasp of a corrupt regime, which will by its example demonstrate what ought never again be done by the newcomers' legal establishment.
In order to turn to the native courts, the Passamaquoddys have resolved by their Declaration of 27 August 1996 to repudiate the covenant chain of Atlantic coast treaties, from the Boston Treaty of 1725 to the Maine Settlement Treaty of 1980.
This is of interest to the Mi'qmaq and Maliseet nations in what is now called New Brunswick and Quebec.
The Mi'qmaqs and Maliseets are parties to the covenant chain up to but not including the Maine Settlement Treaty of 1980. And they are constituents of the Wabanaki confederacy.
The Passamaquoddys have ruled in their own court at the first level, subject at this stage to confirmation at the confederacy level, that the entire covenant chain was a fraud upon them. They repudiate it as such.
The basis for the repudiation begins with the 1704 ruling by Queen Anne that the crown governments in British North America were obliged in law directly to protect the aboriginal peoples' possession and jurisdiction; and that the local crown courts have no jurisdiction capable of being used indirectly to molest or disturb that possession and jurisdiction.
In 1725 the local governor promised to uphold that legal obligation, provided the aboriginal people contractually were to concede to the local crown courts the jurisdiction to act. The natives signed. Hardly was the ink dry, than the newcomer judges allowed the settlers onto the Indians' yet-unsurrendered lands, and then used the contracted-for jurisdiction to persecute the Indians who interfered with the settlers.
Similar treaties were signed in 1752, 1761-2 and 1779, and all ended the same way. As soon as court jurisdiction contractually was allowed by the natives to the newcomers, it was profoundly abused.
The Passamaquoddys have observed that not only in terms of aboriginal peoples' law, but equally in terms of the newcomers' own law, this is illegal.
The crown governor promised to uphold existing law, which he was constitutionally bound to do anyway, and therefore the contracts are void for failure of consideration.
Furthermore, the treaty contracts were signed under duress:-the governor threatened that if the Indians did not sign, their lands would be overrun by uncontrolled settlement.
And, the contracts fundamentally were breached:-the promised protection at the root of the them never materialized.
when the facts and law go before an independent and impartial third party court, the Passamaquoddys will win, if the rule of law exists.
This legal position will be expressed in defense of the aboriginal peoples' original jurisdiction and possession in the North American courts of the newcomers, and in the international courts of the world.
The question now is, who will stand with the Passamaquoddys. Indications are that the Mi'qmaqs at Listuguj are with them.
The injustice thrives in the dark. The newcomers' governments and courts have divided the aboriginal people.
They have scapegoated the truth-tellers and rewarded silence.
Band government systems have been set against traditional government systems. Indeed, bands have been financed to supplant traditional governments. And in the past, bands governments that have reverted to the traditional model have been punished economically. Why?
By definition, all the band governments have ever had are the restricted powers listed in the Indian Act. These do not include either the power of international relations or the court function.
Yet these two powers are the crucial ones for asserting the aboriginal and treaty rights in a way that breaks the strangle hold of the interpretive monopoly assumed by the newcomers' courts.
The traditional governments had, and still have, those greater powers, though suppressed. The band governments have the skills and technology to work with and through the traditional governments. Together, in mutual solidarity, the truth can be told for the benefit of the aboriginal people which both of those native governments exist to serve.
In contrast with the situation facing the Cherokees in the 1830s, when it seemed that there were no courts to which to turn as candidates for carrying out the crucial function of third party adjudication, today there are courts that do exist for this purpose. Not only has the court constituted by Queen Anne in 1704 never been repealed, but a range of additional alternatives exists, all of which can be resorted to.
For example, one of the several international alternatives yet to be tried includes the Vatican, the author of the papal bull Sublimus Deus, 1537, which so elegantly still stands as a bulwark against the illegal genocide in progress.
In recent years the lawyers and judges and police who as an institution have masterminded the genocide have taken, sanctimoniously and hypocritically, to prosecuting the religious community for abuses of jurisdiction over the native people. Yet the legal establishment which made those abuses possible and probable shirks accountability for its own crucial role.
The major churches that contributed to the more lamentable and illegal aspects of the European invasion have had the grace and courage and honesty to acknowledge their mistakes, publicly, and so to begin the process of atonement and healing.
The legal establishment sits on the sidelines, and judges the priests. Yet it is the infinitely more evil eminence noire, without whose complicity the wound that the religious community is working honestly to heal, would not exist. The legal establishment sits smugly and complacently, and seemingly securely, immune from prosecution for its crimes, because it has hijacked the rule of law.
This does not mean that the aboriginal people should give up on the capacity of the newcomers' judges to do what is right, in the end. When the aboriginal people are forced into the newcomers' courts, as will continue to happen for a time, until the jurisdiction issue can be straightened out, they can and should inform the newcomers' judges that they are making a terrible mistake.
Out of respect for those judges the very least the aboriginal people can and should do is inform them of the law, in the ignorance of which they will commit treason, fraud and complicity in genocide. The aboriginal people are entitled to assume that not all the newcomers' judges necessarily want to commit those crimes under the mask, as some obviously do want, of willful blindness to the law.
Eventually, whether it be in the newcomers courts in North America or in the international courts of the world, or both, the whole truth will not only be told, but listened to, and respected, and implemented.
It is in the telling of that truth that enlightenment will begin. And this is where the Mi'qmaq prophecy with which I began this talk may come into play.
The Mi'qmaqs and the other aboriginal people of the Atlantic Maritimes, including the Passamaquoddys, in ancient times traditionally grouped themselves as the Wabanaki confederacy.
The very word Wabanaki signifies the land of the dawn, which can also mean the place of light, or of enlightenment. The prophecy of the Mi'qmaq nation, of the ship bringing darkness followed by an enlightening and an awaking may refer to the destiny of the aboriginal people of Wabanaki confederacy.
History may be poised to unfold from here. Humankind and all its relations dearly need the end of the eclipse of justice in the new world.
Precedents and legislation recognizing and affirming that aboriginal rights are unlimited rights of absolute jurisdiction and possession subject only to the one restriction that if such rights are going to be relinquished it can be in favour of none other than the crown in Canada or in the United States to crown's successor the United States. The preclusion of crown jurisdiction pending purchase precludes crown court jurisdiction no less than other forms of jurisdiction: - see, especially, Mohegan Indians v. Connecticut (PC, 1704); R. v. Nadean and Le Compte (Athabaska Territory, 1788); R. v. Lamothe (Saskatchewan Territory, 1802); R. v Cadien (Quebec, 1838); Connelly v. Woolrich (Quebec, 1867 & 1869); St Catherine's Milling & Lumber Co. v. R. (SCC, 1887, per Gwynne J. re Restigouche grants).
Sublimus Deus, 1537.
Statute of Frauds, 1670.
An Act for Preventing Frauds, and Regulating Abuses in the Plantation Trade, 7 & 8 Wm. III, c. 22 (1696), s. 12.
Order in Council of 9 March 1704. In re Mohegan Indians v. Connecticut.
Order in Council of 31 July 1740. In re Mohegan Indians v. Connecticut.
Capitulation of New France, at Montreal, 1760, article 40.
Royal Proclamation of 1763, part 2 paragraphs 1 and 2 and part 4 paragraphs 1-6.
An Act for the Better Securing the Dependency of His Majesty's Dominions in "America" upon the Crown, and Parliament of "Great Britain", 6 Geo. III, c. 12 (1766), ss. and 2; Royal Regulation (Spain), 1772, a. 6.
Order in Council of 15 January 1773. In re Mohegan Indians v. Connecticut; Quebec Act 1774,ss.3 and 4.
Campbell v. Hall (1774), 98 ER 848, 895-9 (PC).
R.V. Nadeau and Le Compte (Athabaska Territory, 1788). See, Foster, "Forgotten Arguments: Aboriginal Title and Sovereignty in Canada Jurisdiction Act Cases." 1992 Manitoba Law Journal 343-89.
Marshall v. Clark, 1 Kent 77, 80-1 (CA, 1791).
Hughes v. Dougherty, 1 Yeat's 497, 498 (SC Penn., 1791).
Plumstead v. Rudebagh, 1 Yeat's 502, 504 (SC penn., 1791).
Weiser v. Moody, 2 Yeat's 127, 127-8. (SC Penn., 1796).
Sherer v. McFarland, 2 Yeat's 224, 225 (SC Penn., 1797).
R. V. Lamothe (Saskatchewan Territory, 1802). See Foster, "Forgotten Arguments." An Act for Extending the Jurisdiction of the Courts of Justice in the Provinces of Lower and Upper Canada to the Trial and Punishment of Persons Guilty of Crimes and Offences within Certain Parts of North America, 43 Geo. III, c. 138 (1803), a. 1.
Strother v. Cathey, 1 Morgan's 162, 168 (SC North Carolina, 1807).
Fletcher v. Peck, 6 Cranch's 87, 121 (USSC, 1810).
New Jersey v. Wilson, 7 Cranch's 164, 166 (USSC, 1812).
Thompson v. Johnson, 6 Binney's 68, 68 (SC Penn., 1813).
Meigs v. McLungs Lessee, 9 Cranch's 11, 17 (USSC, 1815).
An Act for Regulating the Fur Trade, and Establishing a Criminal and Civil Jurisdiction within Certain Parts of North America, 1 & 2 Geo. IV, c. 66 (1821), ss.4 and 5.
Johnson v. Mcintosh, 8 Wheaton's 543, 574, 592, 597 (USSC, 1823).
Danforth v. Wear, 9 Wheaton's 673, 675 (USSC, 1824).
Cornet v. Winton, 2 Yearger's 129, 130 (CA Tenn., 1826).
Lee v. Glover, 8 NYR 189, 189 (SC, 1828).
Cherokee Nation v. Georgia, 5 Peter's 1, 17, 48, 49, 55, 58, 71 (ussc, 1831).
United States v. Arredondo, 31 us 691, 712-13 (1832).
Worcester v. Georgia, 6 Peter's 515, 541, 544, 546, 549, 560, 581 (ussc, 1832).
Cameron v. Kyte (1835), 12 PR 678, 682 (PC).
Mitchel v. United States, 9 Peter's 711 (USSC, 1835).
Harris v. Doe, 4 Blackf. 412, 414 (SC Indiana, 1837).
R. v. Cadien (Quebec, 1838); Instructions to jury per Chief Justice James Reid. An Indian in the unceded Indian territory is one "over whom no jurisdiction could be maintained" by the non-native court system of Quebec. See, Foster, "Forgotten Arguments."
Clark v. Smith, 38 us 19, 201 (1839). Georgia v. Canatoo, 8 Washington National Intelligencer 24 (SC Georgia, 1843).
Stockton v. Williams, 1 Michigan Reports 546, 560 (SC, 1845).
Bown v. West (1846), 1 P & A 117, 118 (CA Upper Canada).
Ogden v. Lee, 6 Hill's 546, 548 (SC New York, 1846).
Montgomery v. Ives, 13 Smedes & M. 161, 171, 174-5, 177, 179 (Mississippi HC of E & A, 1849).
Stuart v. Bowman (1851), 2 LoR 369, 394.
Rowland v. Ladiga's Heirs, 21 Ala. Reports 9, 28 (Sc, 1852).
Sheldon v. Ranisay (1852), 9 UCQIs 105, 127, 133.
R. v. McCornick (1859), 18 UoQB 131, 133.
Constitution Act, 1867, ss. 56, 90, 91(24), 92(13)(14), 109, 129, 146.
Connelly v. Woolrich (186, 11 L0J 197, 205-7, (1869) RLos 253, 356-7 (CA).
Minter v. Shirley, 3 Miss. 376, 384 (SC, 1871).
Holden v. Joy, 84 us 211, 244 (1872). Wood v. Missouri, K. & T. Ry. Co., 2 Kansas Reports 248, 264 (so, 1873).
Leavenworth [etc.] Railroad Company v. United States, 2 Otto's 733 (usso, 1875); Order in Council (Canada) of 23 January 1875. In the matter of the power of disallowance; United States v. 43 Gallons of Whisky, 93 US 188, 196 (1876); Beecher v. Wetherby, 95 US 55, 67-8 (1877).
Church v. Fenton (1878), 28 UUCP 384, 388, 399, (1879) 4 OAR 159, 5 ScR 239.
Butz v. Northern Pacific Railroad, 119 US 55, 67-8 (1886).
St. Catherine's Milling & Lumber Co. V. R. (1886),13 OAR 148, 169.
St. Catherine's Milling & Lumber Co. V. R. (1887), 13 SCR 577, 608-10, 628, 631-2, 647 (see, especially, Owynne J. re Restigouche grants).
St Catherine's Milling & Lumber Co. v. R. (1888), 14 AS 46, 51,53,60 (PC).
AG Ont. v. Francis (1889), PAD, Irving Papers, u43, P 42, Item 9, at 13 (High Court of Ontario).
AG Ont v. AG Can. (1895), 25 SCR 434, 504, 535.
AG Ont. V. AG Can. (1894 ), AS 199, 205 (PC).
Ontario Mining Co v Seybold (19O3), AC 73, 79 (PC).
AG Can. v. AG Ont (1910), AC 637, 644, 646 (PC).
Doherty v. Girour (1915), 24 QKB 433, 436.
R.. V. Ontario & Minnesota Power Co. (1925), AS 196, 197 (vs).
R. v. McMaster (1926), Ex. 68, 73. Statute of Westminster, 1931, 5. 7(1). Lasterbrook V. R. (1932), 5 SSR 210, 217-18.
R. v. Wesley, [ 2 wwR337, 348, 351.
Convention for the Prevention and Punishment of the Crime of Genocide, 1948, articles 2(b), 2(e), 3(e), 4 and 6.
St Ann's Island Shooting & Fishing Club Ltd, v. R. (1950), SSR 211, 212-13.
R. v. George (1964), 2 OR 429, 433 (CA).
R. v. Sikyca (1964), 46 WwR 65, 66 (NMSA), 1964J SSR 642.
Brick Caftage Ltd. v. R. (1965), 1 Ex. 102, 105 (ID).
Calder v. ASPS (1973), scr 313, 320, 323, 379, 401, 402.
Constitution Act, 1982, ss. 25(a), 35(1), 38 & 52.
Law Society of Upper Canada v. Bruce Clark. Reasons for Judgment of Convocation. Unreported. June 19, 1996. Page 14:
"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." Part 1 - Click Here Part 2 - Click Here