[The following piece was sent to us by a reader. Reproduced with permission of the author.]

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

by Bruce Clark, LL.B., M.A., Ph.D.

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. Georgia[1] 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 precedent[2] 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: Vol.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 of 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 Jűrgen 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.

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[1] 6 Peter’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).

[2] Fletcher v. Peck, 6 Cranch’s 87. 142-3 (1810): “The majority of the Court is of opinion that the nature of the Indian title, which is certainly to be respected by all courts, until it has been legitimately extinguished, is not such as to be absolutely repugnant to seisin in fee on the part of the state.”