Introduction Chapter

500 years of Indigenous Resistance


Upon taking judicial notice of the suppression and genocide of the native people caused by the prematurely assumed jurisdiction of the newcomer courts, and in accordance with the accompanying reasons for judgment, this native court declares:

  1. Court jurisdiction prima facie territorially is vested in the native courts and precluded from the newcomer courts; and
  2. That in the event the newcomer courts are unable to agree with and help to uphold this declaration of right, this court invites the newcomer courts to join with this court in referring the contested jurisdictional issue for independent and impartial third party court adjudication in the international arena; or, in the alternative
  3. That in the event the newcomer courts or their governments wish to submit evidence, law or argument to this native court so as to deny the premises, findings or law as expressed herein or in the accompanying reasons for judgment , they are welcome to do so upon notifying this court of that intent.


Humankind can, so easily as just doing it, choose to turn away from the Injustice Way of the past. And set its future course upon the Justice Way.

To this native court, as we hope and trust the newcomers' courts will learn to understand and respect, the Justice Way is one and the same as the Nature Way or the Native Way. It is the way of natural law.

Until recently when native people spoke of the Nature Way or the Native Way, there was hardly any basis for a communicative connection with the newcomers. The newcomers seemed unable to hear. It was rather like what Friedrich Wilhelm Nietzsche said: "No one can draw more out of things, books included, than he already knows. A man has no ears for that to which experience has given him no access."

When the newcomers began laying waste the forests of the new world, some natives could hear the sounds of the trees screaming in the face of the onslaught. But the newcomers could not hear. And if they were told, they dismissed the stories as fanciful. Yet science now discloses that plants do communicate and the medium appears to be sounds or chemicals beyond the normal reach of human sensory perception. We are told that when giraffes eat the leaves of acacia trees, the trees downwind produce chemicals that make their leaves inedible. Native medicine people could hear, sense or feel the resonances of dimensions of reality beyond the imagination of the newcomers, who dismissed their accounts as hallucinations or charlatanry. Yet since Einstein and Picasso, mathematicians, physicists, musicians and artists have ventured far beyond abstractionism and the theory of relativity - into quantum mechanics, unified field theory and hyper space - making some of the "wildest dreams" of the ancient magicians and prophets seems like simple foresight.

Science, education and knowledge have evolved to the point where humanity is on the brink of discovering what it already knew, before the alienation of Humankind from nature: there is a unity and a harmony that science no less than religion can suspect or feel even if not quite yet fully understand.

If that intuition can be translated into experience for modern Humankind, it will be in virtue of tapping into the collective unconscious that unites humanity at its genetic roots. It will entail a rediscovery of what seems few native people have never lost, but which was once common for all of humanity, before the sense of awe based upon respect was superseded by the conceit of the dominance of nature.

The native prophecies forecast this time. They also forecast that when this time did come Humankind and nature would be on the cusp of annihilation and despoliation.

Before the Europenean invasion of North America native society was true to its natural law principles. People, earth, sky and water were free and unpolluted. The jurisdiction of the native courts helped to maintain this condition; for the native courts oversaw the application in practice of the natural law principles.

In contrast with the prominence of the court function, the government function was relatively minor, except in time of war. In peacetime it was not thought necessary to survival in good health for native society to be very much engaged in the making of new and detailed laws. Rather, the harmonious application in practice of the old laws, the finite set of natural law principles, sufficed to maintain the balance.

After the Europenean invasion the policy and practice of some of the newcomers was to covet the earth, sky and water by eradicating, or at least transforming, native society. The aboriginal people became victims of genocide; and the earth, sky and water of genocide's companion: ecocide.

Since native society was held together by the court function, eradicating or transforming native society meant suppressing native society's court function. The specific way has been to substitute , prematurely and therefore illegally, the jurisdiction of the newcomers' own courts, and in a complementary and distracting way to foster native preoccupation with new governmental functions.

To this end, the newcomer governments and courts in the United States and Canada constitute and promote Indian governments that are federally organized, recognized and funded, to the virtual exclusion of the native courts in the traditional jurisdiction context.
These federally organized and recognized native governments function as the newcomers' agents in the application of federal law. That application is in many regions illegal, because premature, and of genocidal and ecological consequence.

By being premature, the territorial application of federal law can be contrary to natural law, international law and constitutional law. It depends upon whether the native people have consented. Purchase is, and ever since the Europenean invasion began has been, the specific legal means for ascertaining the consent.

Furthermore, the sufficiency of the consent - the evidence and deliberation of its existence - is itself governed by specific positive law.

In essence, territory is off-limits to newcomers until it has been purchased by the newcomers' governments from the natives. And purchase is a question of mixed fact and law...

Since the courts of the natives and the courts of newcomers equally are interested in the answer to the purchase question, each court system, including this court, equally is biased in addressing and resolving it. For this reason, the law is that this question can only be answered as to any given territory by an outsider - an independent and impartial third party court - one the existence of whose jurisdiction does not itself turn upon a prejudgment of the very issue in contention: which court system, native or newcomer, has jurisdiction?

The assumption by the newcomers' courts that they have the jurisdiction to decide the question of their own jurisdiction when in competition with the jurisdiction of the natives' courts is the means to the genocide and the ecocide. That assumption is how those crimes against humanity and nature are perfected in North America.

And because of the influence of the United Stated and Canada upon world affairs, the successful and consistent apprehension of those crimes in the global village will not occur unless and until those crimes are apprehended here, at home...

The time has come to the native courts, with respect, to remind the newcomers' courts of the natural law basis for all law, for the good of all natives and newcomers alike, and for the health of their shared environment ...

The simple point is that natural law, international law and constitutional law rights, once conceded, cannot easily be withdrawn by tyrants or substitute tyrants. The withdrawing, if it is to occur at all, can only be achieved by the people. the form of the withdrawing, can only be by way of formal international law convention and constitutional law repeal. This feature is common to native and newcomer law and government, and is probably a universal characteristic of democratic human organization ...

The issue of jurisdictional competence is so very central and important to this question because an erroneous assumption appears to have crept into and to have infected the North American judicial system, with disastrous consequences for the moral structure and physical integrity of North American society in general. Setting affairs right, now, depends upon examining that erroneous character of that assumption in light of existing natural, international and constitutional law, and correcting the identified mistake. This is the purpose, ultimately, of the present renewal of the long-suppressed jurisdiction of the native court system, as represented by these reasons for judgment.

Existing natural law, international law and constitutional law adequately should have tempered the newcomers' conduct toward both the native North Americans and the North American environment. Lamentably, the newcomers often have been and in some regions still are in breach of natural, international and constitutional law. When the newcomers systematically and in a coordinated fashion breach the natural, international and constitutional law in any given region, they do so by applying domestic rules of conduct that pretend to be law, but which are not really law, precisely because they conflict with the anterior and superior natural law, international law and constitutional law.

When this occurs the rule of law is in abeyance, overrun by mere policy and practice masquerading as law.To the extent that this anti-law domestic "law" is allowed to supercede the consensus of natural law, international law and constitutional law, the rule of law is negated, and the harmonious survival of Humankind in nature is jeopardized ...

It would be beneficial for all of humanity were the newcomers; society in North America now to address and correct its historic breach of the existing law. Society can do this by conforming to the existing law, or by due process repealing or amending the existing law. It can adopt a combination of both devices. But society cannot, legally, do this by having its courts rise above the existing law.

To do that strikes an unmistakable and undeniable posture of opportunism and lawlessness, of might being right; a posture that is so close to the heart of the society as to set a standard which negates the moral structure which makes and keeps the society a society. It is in this sense that Hume was being precise for legal purposes when he identified the true application of law under the system of third party adjudication as the "origin of civil government and society."

North American society leads humanity's evolutionary advance in the field of human and environmental rights, and neither genocide nor ecocide will be apprehended generally in the world so long as the leading exponents of its apprehension, the United States and Canada, continue to stonewall the issue at home. The addressing of this issue, in accordance with the rule of law, will signal a new beginning for humanity, a rational basis upon which to have hope for harmonious survival of Humankind in nature. With the passing of the genocide can pass from the history the ecological assault upon the planet, that excess which arises in consequence of the same immature, immoderate and uncontrolled attitude in human society as that which results in the genocide.

For these purposes the native people presently feel the need to re-institute,in practice, their original natural law right of jurisdiction, at least in regions where Indian treaties relinquishing that original right either have not yet been made or, if made, made invalidly, such as under fraud, duress or undue influence, or where there has been a failure of consideration ...

When that happens vis-à-vis North America, Humankind will have made an evolutionary advance of structural consequence. Human evolution has moved beyond genetic mutation. Its future lies in the evolution of human institutions. Preeminent among the institutions is the rule of law administered by third party adjudication: the pragmatic guarantor of justice as applied truth, of law as applied respect, and of order as dependably stabilized liberty.

The natives wish it to be well understood that by identifying the truth and seeking respect in this fashion they do not seek to dispossess the trespassing newcomers, whose governments and courts have in the past usurped the natives' original jurisdiction and thereby denied the natives' humanity.

The natives and their traditional courts accept the facts of history as being irreversibly albeit illegally accomplished, but nevertheless seek for the future a more balanced native and newcomer relationship, one that more faithfully conforms, in alternative ways, with the spirit of the law and justice which all too often has been breached. In contemplation is a viable and modern service economy, in place and in stead of illegally destroyed aboriginal economy, in circumstances where the new economy respects the integrity and the sanctity of the land, in perpetuity.

This native court turns now to the details of the international law and constitutional law ...

All we ask is that the newcomer judges recognize the possibility of their own complicity in genocide and, correspondingly, their own incapacity to sit in judgment of themselves.

They can not possibly adjudicate any aspect of the issue of native rights, without implicitly adjudicating their own accountability for the genocide that has resulted, and is resulting, from their complicity in elevating federal law and policy over the conflicting natural law, international law and constitutional law.

For this reason, the Order in Council (Great Britain) of 9 March 1704 is not only good law, but necessary to the integrity of the rule of law. Without third party adjudication , the rule of law itself will not only be a hoax, but be seen to be a hoax. This can not be allowed.

It must be opposed, not only for the native people but for all people, for all depend upon the integrity of the rule of law, upon its fidelity to justice as applied truth and law as applied respect and order based upon those two features under the system of third party adjudication...

When all that is relevant to the issue of native rights in North America that can be said, has been said, it is apparent that principle and practice have taken different roads. Principle has taken the high road, practice the low. And the crucial perception is not to allow the volume, the detail, the ingenious character of the fraud perpetrated by the practice to obscure the simple fact of the fraud. The fraudulent practice is not self-legitimizing. It is not evidence of the law, but of the breach of the law.

For 500 years, the consensus of natural law, international law and constitutional law has been straightforward and unvarying. The law, what it actually says, has remained true to itself, and to the human species and the environment that the law exists to serve. But what the newcomers have actually done, that is the opposite of what law says should have been done.

All along the law has said that because the natives were here first, and are humans, until territory has been purchased from them by the newcomers, the natives have the territorial jurisdiction.

In some regions, it is true, the newcomers' governments did make proper and valid written purchases, and can produce them to prove it.

But in many other regions the newcomers' governments simply allowed in the lawyers, the judges and the police before the purchase validly was completed. Thus the legal establishment acted as a unit - to perfect the greatest and most massive fraud in human history.

Like a finely tuned machine, the lawyers, judges and police successfully have thus held the law at bay in North America, equally in the United States and Canada and, so far at least, have been able to get away with it, not because they legally were capable of changing the law but rather illegally they abused their usurped jurisdiction to stonewall the law.

When the legal establishment prematurely, and therefore illegally, invaded any given region, the legal establishment immediately entrenched itself and consolidated its own position. The newcomer lawyers hung up their shingles and started doing land deals and certifying titles. They themselves lived in houses and raised families upon territory not yet purchased, as required by law, from the natives. When natives complained, to whom could they turn for legal redress? The judges were, and still are, elevated lawyers. Like the newcomer lawyers, the newcomer judges themselves, physically, and literally, were and are trespassers upon the yet unpurchased territory. So were, and are, the newcomer police.

If and when the natives complain, the mass of complains fall upon the lawyers' psychologically pre-programmed ears. If and when the natives turn to the common law remedy of self-help, the are arrested as trouble makers , and taken before judges who are in a profound conflict of interest. They end up stigmatized, trivialized and discredited as criminals.

No illustration could be clearer, plainer or more poignant than that remarked above as provided by the Supreme Court of Canada, which court itself physically and literally is situate upon territory that has never been purchased from the Algonquin speakers of the Ottawa Valley drainage basin. When the traditional government of the Algonquin nation challenged that trespass, in the course of applying to intervene in the reference regarding Quebec secession, on January 17, 1997 the Supreme Court of Canada denied that nation intervenor status. It did so on the basis of allowing and objection made by a federally organized, recognized and funded Indian Act government, located only on one small portion of the vast Algonquin traditional territory. The particular federally organized native government objected to the intervention of the traditional government which, in contrast, was not federally recognized. Indeed, the practical purpose of federal organization and recognition has been to preclude and to silence the traditional form of government. In sum, the federal government illegally placed both the Supreme Court of Canada and the objecting native puppet government upon the yet unpurchased territory of the hereditary government of the Algonquin Nation. Then, the two trespassing usurpers, the Court and its native collaborator, acted in concert so as to exclude the position of the traditional government. In this fashion the literal trespass of the Supreme Court of Canada upon yet unpurchased territory has been obscured. The transparently false illusion is that the Supreme Court of Canada might be independent and impartial with regard to the Mi'qmaq intervention which it did permit ...

In such a situation the newcomer society of the perpetrators is victimized along with the native society of the victims. As the slave owner is debased by the institution of slavery, so also is the society inflicting genocide itself inflicted.

In North America the corruption of the society thus begins at the top. The people at the bottom, the ordinary newcomers and natives, speak through the natural law, the international law and the constitutional law. The consensus of that law is a projection of their collective good will. But their voice is not heard - because the legal establishment at the top of the society will not listen to the law. The lawyers, judges and police have usurped jurisdiction, and they employ the usurped jurisdiction to stonewall the law.

The message reaches to every office, every boardroom, every schoolyard, every place of worship, everywhere : might is right.

This message corrupts. It eats at the heart and sinew of the society, of all the societies, newcomer and native alike, for even the native society is conscripted into aiding and abetting its own genocide.

If the newcomers' courts cannot agree upon the merits of these reasons, the disagreement between their contrary reasoning and this court reasoning must, under existing law, be submitted for third party adjudication in the international arena.

All that we therefore ask the newcomers' courts to do is not to set upon us and our people the newcomers' police, in place and instead of submitting the dispute, if any, between us as courts, to the third party adjudication of yet a third court system.

If, when objectively applying the rule of law as an independent and impartial outsider, the third party finds that this native court is wrong, we can live with that. We are prepared to abide by the rule of law, and ask only the same of the newcomers and their courts.

What we can no longer bear to live with, for the injustice of it is causing anguish that spells genocide and ecocide, is the denial of our right both of jurisdiction and third party adjudication to vindicate it.

Therefore, all that we ask the newcomers' courts in comity to do is recognize and affirm that at law natives have rights to arguably yet unceded territory, plus the right to third party adjudication of the question whether it is in fact ceded. We therefore invite the newcomers' courts: "Agree with this native court, or at least let an independent and impartial third party objectively decide our disagreement, in accordance with the rule of law."

Once that fair and just solution has been declared by both native and newcomer court systems, the people of both cultures and their politicians can move onward and upward toward agreeing upon the identity of the third party adjudicator for the promising millennium ahead. The era of the Native Way, the Nature Way, the Justice Way will have been reconstituted, for the good of all Humankind and its environment ...

The legal establishment if North America is in the profoundest possible conflict of interest. It has an interest in upholding the integrity of the rule of law. But it has a conflicting interest in evading accountability for its own complicity in genocide for derogating from the substance of the law.

When the North American judiciary of the newcomers permits the former interest to override the latter interest, on that day Humankind will have made an evolutionary advance of structural significance. That day will dawn when the newcomer judiciary listens to, and actually hears, the traditional native judiciary.

We have, therefore, attempted, by publishing these reasons for judgment, to allow the traditional native voice to be heard.

Introduction Chapter

Drafted by Bruce Clark after discussions with Mi'gmaq Nation, whose original and still unceded ancestral homeland is the entire drainage basin of the river, and includes the Gaspé Peninsula of Quebec and much of the northwest interior of New Brunswick, and which was formally adopted on 2 February 1997 by the sachems of chiefs of four of the leading native nations of the east.

Published in Justice in Paradise. Bruce Clark, 1999, reproduced with permission.
Graphic logo by Gord Hill

Bruce Clark, 1997 Bruce Clark