1. Abstract The Indian part of the Royal Proclamation of 1763 (Revised Statutes Canada 1985, Appendix II, No. 1) consolidates previously established British North American common law. For constitutional law purposes, the proclamation recognizes and affirms two territorial jurisdictions, pursuant to the British Crown’s claim of continental sovereignty. First, is the continuity of the territorial jurisdiction of the “several Nations or Tribes.” Under the proclamation, all land presumptively is occupied and claimed by them. Correspondingly, the proclamation “reserved” all land for them. Second, is the territorial jurisdiction of non-native governments. It is derivative; that is, it comes into existence relative to any land that is “ceded to, or purchased by” non-native governments by international treaty, whereby the Indian Nations or Tribes surrender their previously established jurisdiction, in exchange for contractual undertakings by the non-native governments. Whereas civil court jurisdiction relative to boundary disputes between aboriginal and newcomer governments exists in the nature of consensual arbitration; criminal court jurisdiction does not exist until the Indian national or tribal jurisdiction has been surrendered by treaty. The burden of proving such a treaty is upon the Crown Prosecution Service of the non-native government contemplating the prosecution of an Indian, for commission of a non-native crime upon unsurrendered territory.
Contents Paragraphs
A: Basic Facts and Law ………………………….2-14
B: The Attempt at Genocide……………………..15-27
C: Duty to Consult……………………………….28-38
D: Section 88……………………………………..39-43
E: Fur Trade in Indian Territory………………….44-47
E: Conclusion…………………………………….48-53
F: Documentary Evidence
G: Appendix
A: Basic Facts and Law
2. The relevant excerpted portions of the 1st, 3rd and 5th paragraphs of the said Indian part of the proclamation follow:
1st paragraph
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 no Governor or Commander in Chief in any of Our Colonies of Quebec, East Florida, or West Florida, do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands beyond the Bounds of their respective Governments, as described in their Commissions; … 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.
3rd paragraph
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.
5th paragraph
And We do further expressly enjoin 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 Treasons, Misprisions of Treason, Murders, or other Felonies or Misdemeanours, 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 Tryal for the same.
3. The aforesaid 5th paragraph by necessary implication enacts that an Indian who ostensibly commits a non-native crime within the Indian territory is not subject to the jurisdiction of any non-native court. In the 1st place, a non-native court would be trespassing were it to presume to sit in judgment of any person, within the Indian territory. In the second place, the only persons subject to arrest and trial are persons who commit a crime upon surrendered territory and flee to the Indian territory to escape justice. They can be apprehended within the Indian territory and taken out so as to stand trial in the surrendered territory where the crime was committed.
4. The proclamation was issued by the King pursuant to the royal prerogative to legislate for discovered overseas dominions and still has the force and effect of a constitutional statute of the United Kingdom, the same as the Constitution Act, 1867.
Constitution Act, 1982, s. 25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
a. any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763;
St. Catherine’s Milling and Lumber Company v. R., (1887), 13 S.C.R. 577, 601, 628, 635. (Per Ritchie, CJ) [601] … under the British North America Act [i.e., Constitution Act, 1867], the Province of Ontario has a clear title to all unpatented lands within its boundaries as part of the Provincial public property, subject only to the Indian right of occupancy, and absolute when the Indian right of occupancy is extinguished. (Per Strong, J.) [628] It [the said proclamation] is a legislative act, applying directly to the lands now in question, assuring to the Indians the right and title to possess and enjoy these lands until they thought fit of their own free will to cede or surrender them to the crown, and declaring that, until surrender, the lands should be reserved to them as their hunting grounds, and being still in full force and vigour when the British North America Act was passed, it operated at that time as an express legislative appropriation of the land now in dispute for the use and benefit of the Indians by the designation of “lands reserved to the Indians.” [635] …it was a legislative ordinance of equivalent force with a statute, and consequently could only have been repealed by an act emanating from some competent legislative authority; but no such act can be referred to.
5. Before the Canada Act 1982, “an act emanating from some competent legislative authority” would have to have been a statute of the United Kingdom. Since 1982, such an act would have to be a constitutional amendment repealing the Royal Proclamation of 1763 pursuant to the amendment formula expressed in the Constitution Act, 1982, which itself was brought into being as a schedule to the Canada Act. Correspondingly, the domestic statute the Indian Act is not competent to repeal the said proclamation by being inconsistent with it. Neither could a subsequent proclamation repeal it.
Mitchel v. U.S., 34 U.S. (9 pet.) 711, 749 (1835). This brings into practical operation another principle of law settled and declared in the case of Campbell v. Hall that the proclamation of 1763, which was the law of the provinces ceded by the treaty of 1763, was binding on the King himself, and that a right or exemption, once granted by one proclamation, could not be annulled by a subsequent. Cowp. 213.
6. Section 109 of the Constitution Act, 1867, enacts:
All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same.
7. There are two authoritative precedents that are definitive both to the proclamation and section 109:
St. Catherine’s Milling and Lumber Company Ltd. v. The Queen, (1888), 14 AC 46, 52-53, 54, 55, 58, 59, 60 (JCPC). [52-53] Of the territory thus ceded to the Crown, an area of not less than 32,000 square miles is situated within the boundaries of the Province of Ontario; and, with respect to that area, a controversy has arisen between the Dominion and Ontario, each of them maintaining that the legal effect of extinguishing the Indian title has been to transmit to itself the entire beneficial interest of the lands, as now vested in the Crown, freed from encumbrance of any kind, save the qualified privilege of hunting and fishing mentioned in the treaty….Although the present case relates exclusively to the right of the Government of Canada to dispose of the timber in question to the appellant company, yet its decision necessarily involves the determination of the larger question between that government and the province of Ontario with respect to the legal consequences of the treaty of 1873.
[54] Whilst there have been changes in the administrative authority, there has been no change since the year 1763 in the character of the interest which its Indian inhabitants had in the lands surrendered by the treaty.
[55] It appears to them [their Lordships] to be sufficient for the purposes of this case that there has been all along vested in the Crown a substantial and paramount estate, underlying the Indian title, which became a plenum dominium whenever that title was surrendered or otherwise extinguished.
[58] The Crown has all along had a present proprietary estate in the land, upon which the Indian title was a mere burden. The ceded territory was at the time of the union, land vested in the Crown, subject to “an interest other than that of the Province in the same,” within the meaning of sect. 109; and must now belong to Ontario in terms of that clause,…
[59] The fact that the power of legislating for Indians, and for lands which are reserved for their use, has been entrusted to the Parliament of the Dominion is not in the least degree inconsistent with the right of the Provinces to a beneficial interest in these lands, available to them as a source of revenue whenever the estate of the Crown is disencumbered of the Indian title.
[60] By the treaty of 1873 the Indian inhabitants ceded and released the territory in dispute, in order that it might be opened up for settlement, immigration, and such other purpose as to Her Majesty might seem fit, “to the Government of the Dominion of Canada,” for the Queen and Her successors forever….
The treaty leaves the Indians no right whatever to the timber growing upon the lands which they gave up, which is now fully vested in the Crown, all revenues derivable from the sale of such portions of it as are situate within the boundaries of Ontario being the property of that Province.
AG Canada v. AG Ontario: (Re Indian Claims), [1897] AC 199, 205, 206, 210-11 (JCPC). [205] The effect of the treaties was, that, whilst the title to the lands ceded continued to be vested in the Crown, all beneficial interest in them, together with the right to dispose of them, and to appropriate their proceeds, passed to the Government of the Province,…
[206] The beneficial interest in the territories ceded by the Indians under the treaties of 1850 became vested, by virtue of s. 109, in the Province of Ontario.
[210-11] On the other hand, “an interest other than that of the province in the same” appears to them [their Lordships] to denote some right or interest in a third-party, independent of and capable of being vindicated in competition with the beneficial interest of the old province.
8. The Crown is in a fiduciary relationship with the Indian Nations or Tribes or bands.
Dominion of Canada v. Province of Ontario, [1910] AC 637, 646 (PC). The Dominion Government were indeed, on behalf of the Crown, guardians of the Indian interest and empowered to take a surrender of it and to give equivalents in return, but in so doing they were not under any special duty to the province.
Guerin v. The Queen, [1984] 2 SCR 335, 376. The fiduciary relationship between the Crown and the Indians has its roots in the concept of aboriginal, native or Indian title. The fact that Indian Bands have a certain interest in lands does not, however, in itself give rise to a fiduciary relationship between the Indians and the Crown. The conclusion that the Crown is a fiduciary depends upon the further proposition that the Indian interest in the land is inalienable except upon surrender to the Crown.
An Indian Band is prohibited from directly transferring its interest to a third party. Any sale or lease of land can only be carried out after a surrender has taken place, with the Crown then acting on the Band’s behalf. The Crown first took this responsibility upon itself in the Royal Proclamation of 1763. It is still recognized in the surrender provisions of the Indian Act. The surrender requirement, and the responsibility it entails, are the source of a distinct fiduciary obligation owed by the Crown to the Indians….
9. The burden of proof is always on the Crown from the outset, to prove the land has been “ceded to, or purchased by Us,” in the absence of which proof the land irrebuttably is presumed still to be “reserved for them, or any of them,” without regard to which Nation or Tribe comes forward to claim standing to sue and, in the result, the land constitutionally can not be granted and occupied failing discharge of that burden of proof. That is, the crown cannot evade the reserved status of the land, so as to dispose of and occupy reserved land as if there had been a cession or purchase, if it can not prove the cession or purchase.
10. In 1874 British Columbia enacted a Crown Lands Act that regarded all crown land as if it were public land available for disposition, even though the land is part of the continental reserve for the Nations or Tribes of Indians, not being “ceded to, or purchased by Us.” In a report to the Canadian Privy Council, Attorney General Télésphore Fournier recommended disallowance (document “1”) under section 90 of the Constitution Act, 1867, on the ground of conflict with the proclamation and section 109. The report was approved in a Minute in Council dated 23rd January 1875 and endorsed by the Governor General.
Section 90. The following Provisions of this Act respecting the Parliament of Canada, namely, — the Provisions relating to Appropriation and Tax Bills, the Recommendation of Money Votes, the Assent to Bills, the Disallowance of Acts, and the Signification of Pleasure on Bills reserved, — shall extend and apply to the Legislatures of the several Provinces as if those Provisions were here re-enacted and made applicable in Terms to the respective Provinces and the Legislatures thereof, with the Substitution of the Lieutenant Governor of the Province for the Governor General, of the Governor General for the Queen and for a Secretary of State, of One Year for Two Years, and of the Province for Canada. [Emphasis added]
11. British Columbia then made a proposal to Canada to resolve the Indian problem by establishing a commission to investigate and “set apart” provincial Crown lands as “reserves” for Indian use. This led directly to the Indian Act, 1876. The Acting Minster of Interior Affairs in a report dated 5th November 1875 recommended approval of the provincial plan, which was done by the Canadian Privy Council pursuant to Minute in Council dated 10th November 1875 (document “2”). This entailed leaving the originally disallowed Crown Lands Act to its operation, i.e., reviving it. Attorney General Fournier was elevated to the Supreme Court and was replaced in office by Attorney General Edward Blake. Blake reported under letter dated 6th May 1876 to the Governor General (document “3”) explaining that “Great inconvenience and confusion might result from its disallowance.” As recommended, on second thought the Governor General did leave the statute to its operation. Treaties were not made thereafter in mainland British Columbia. There was no need, since all Crown land was thereafter unconstitutionally prima facie regarded as public land available for disposition. It was as if the common law, the Royal Proclamation of 1763 and the proviso in section 109 duly had been repealed, or had never existed.
12. This evasion of the common law, the proclamation and section 109 is the reason for the absence of Indian treaties in mainland British Columbia and, from all that appears, accounts for the same absence in New Brunswick, Nova Scotia, Quebec and the Ottawa River drainage basin in Ontario.
13. The fact that some Indian territories have been invaded and occupied prematurely, because Canada reneged upon its fiduciary obligation of “Protection” within the meaning of the 1st paragraph of the proclamation, by neglecting to persist with the federal jurisdiction under section 90 of the Constitution Act, 1867, to disallow the offending provincial lands legislation, is not the equivalent of a legal repeal of the proclamation.
14. But it has significant political and psychological consequences. The political consequence is that the yet unceded, and unpurchased Indian territories have a substantial population of settlers squatting on Indian land, contrary to the express and explicit injunction against that practice under the 3rd paragraph of the proclamation. A population of that size needs a court system in place.
B: The Attempt at Genocide
15. Furthermore, the judiciary by now is used to adjudicating in the Indian territories. The judges do not, psychologically, welcome the constitutional argument that they, albeit inadvertently, by their unconstitutional exercise of jurisdiction, such as over the Indian school children of the residential school century, or, more recently, the 60s scoop of Indian children put up for adoption, have aided and abetted Canada’s attempted genocide of the “several Nations or Tribes of Indians.” Lawyers who point out the arguable judicial complicity in genocide run the risk of citation for contempt of court and disbarment, and hence it has not, with one rare exception been pointed out, and I have in fact been convicted of criminal contempt of court and disbarred for trying to point it out.
16. The Six Nations Indians by the 1880s had had experience in Canada’s domestic court system, and apparently felt there was scant prospect of independent and impartial justice. Therefore, they applied for direct access to the Judicial Committee of the Privy Council as 3rd party adjudicator in the first instance, as successfully had been done by the Mohegans in the leading 18th century case of Mohegan Indians v. Connecticut, which began in 1704 and ended in 1773. See, Joseph H. Smith, Appeals to the Privy Council from the American Plantations, Columbia University Press, 1950. The Six Nations’ application came before Sir John A. Macdonald, the first Prime Minister of Canada, 1867–1873, and again 1878–1891. He sent a Memorandum to the Privy Council of Canada (document “4”), which defeated the Six Nations’ request. See, 60 Victoria, Sessional Papers Volume 16 (No. 20B) Page 37, 3rd January 1887. Macdonald reported:
1. It is extremely inexpedient to deal with the Indian bands in the Dominion (except those inhabiting the territories acquired from the Hudson’s Bay Company) as being in any way separate nations. They are governed by Canadian statutes, and for any wrongs or grievances have the right of recourse to the legal tribunals of the country as fully and readily as their white fellow subjects, which right they do not hesitate to exercise.
2. As Indians are inveterate grumblers, if it were once known that this application had been granted there would be no end of similar demands by other bands, a refusal of which would cause much discontent. It would be difficult, if not impossible to make another tribe understand why it should not receive the same consideration as the Six Nations, and great consequent jealousies and heart-burnings ensue.
5. The introduction of a new practice of submitting Indian claims in the first instance to the Judicial Committee would operate as a complete change in the manner in which the races have hitherto been dealt with, and would establish a distinction between them and the other inhabitants of Canada. This is very objectionable, as the great aim of our legislation has been to do away with the tribal system and assimilate the Indian people in all respects with the other inhabitants of the Dominion, as speedily as they are fit for the change. [Emphasis added.]
17. In point of constitutional law as confirmed by the Royal Proclamation of 1763, Macdonald is wrong that the Indians are not conceded the status of “Nations or Tribes,” the two being synonymous with separate states;1 whose independence, far from being “governed by Canadian statutes,” is epitomized by the whole beneficial interest in possession and self government, pending treaty of cession thereof. In other words, the “great aim” of the Indian Act, and Canadian legislation in general, at all material times, has been to renege on the Crown’s fiduciary undertaking of “Protection.” Genocide is the reasonably foreseeable and probable consequence. Genocide has been the Canadian solution to its Indian problem.
18. A person equitably is estopped from benefitting from his own wrongdoing. Having taken and taking advantage of the federal government’s evasion of the Royal Proclamation of 1763 by enacting laws in the Indian Act that diminished the tribal system, the Crown can not rely upon any weakness in the tribal system attributable to the “cultural genocide” that caused it. See, Sean Fine, The Globe and Mail, Friday, May 29, 2015, “Chief Justice says Canada attempted ‘cultural genocide’ on aboriginals.” (This report upon the speech is referenced in part “E: Documentary Evidence” as document number “5”.)
19. The original and authoritative common law precedent for Canada is Connolly v. Woolrich, (1867), 11 LCJ 197, 205, 207 (SC Quebec). In it Monk, J., held:
[205]…will it be contended that the territorial rights, political organization such as it was, or the laws of the Indian tribes, were abrogated—that they ceased to exist when these two European nations began to trade with the aboriginal occupants? In my opinion, it is beyond controversy that they did not—that so far from being abolished, they were not even modified in the slightest degree in regard to the civil rights of the natives. As bearing upon this point, I cannot do better than to cite the decision of a learned and august tribunal—the Supreme Court of the United States. In the celebrated case of Worcester against the State of Georgia, (6th Peters Reports, pages 515-542), Chief Justice Marshall—perhaps one of the greatest lawyers of our times—in delivering the judgment of the Court, said:…
[207] Certain it is, that our history furnishes no example, from the first settlement of our country, of any attempt on the part of the crown to interfere with the internal affairs of the Indians, farther than to keep out the agents of foreign powers, who, as traders or otherwise, might seduce them into foreign alliances. The king purchased their lands when they were willing to sell, at a price they were willing to take; but never coerced a surrender of them. He also purchased their alliance and dependence by subsidies; but never intruded into the interior of their affairs, or interfered with their self government, so far as respected themselves only.
Though speaking more particularly of Indian lands and territories, yet the opinion of the Court as to the maintenance of the laws of the Aborigines, is manifest throughout. The principles laid down in this judgment, (and Mr. Justice Story as a Member of the Court concurred in this decision), admit of no doubt. [Emphasis added]
Connolly v. Woolrich, [1869] 1 rl(os) 253, 357 (ca Quebec) (per Badgely, ja). Even the United States are careful to acquire the Indian title, either by purchase or by other conventional means, before occupancy can be allowed, or public grants made….It was held in the case of Brook vs. Brook above referred to, that the forms entering into the contract of marriage are regulated by the lex loci contractus, and applying the rule to this case, the form of the marriage of William Connolly [a non-native] and Suzanne [a native] would therefore be the [native] customs and usages of the Cree country in 1803.
20. The “maintenance of the laws of the Aborigines” in the constitutional common law signifies the continuity of the laws and by implication the legal standing to object to the assumption of court jurisdiction. For a full statement of the North American constitutional common law see APPENDIX OF 18TH AND 19TH CENTURY AMERICAN CASES.
21. The common law constitutional law became codified in a legislated constitution for British North America, which still subsists as such for Canada, in the form of the Indian part of the Royal Proclamation of 1763.
22. When Canada was created as a federation with two tiers of government, a set of checks and balances was constituted as between the federal and provincial levels. The common law provisions of Connolly v. Woolrich and the legislated provisions of the proclamation were carried forward in the Constitution Act, 1867.
23. In the allotment of powers, the jurisdiction and duty of “Protection” within the meaning of the 1st paragraph of the Indian part of the proclamation was assigned to the federal government, as was the capacity to contract by treaty with the Indian Nations or Tribes for the Indians’ constitutional right not to be “molested or disturbed” in the “Possession.” This was achieved by section 91(24) of the Constitution Act, 1867. It assigned jurisdiction to the federal government relative to “Indians, and Lands reserved for the Indians.”
24. In the light of the proclamation’s constitutional duty of “Protection,” section 91(24) legislatively was intended to act as a shield not a sword, the better to safeguard the Nations’ or Tribes’ right not to be “molested or disturbed,” within the meaning of the 1st paragraph of the Indian part of the proclamation:
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 no Governor or Commander in Chief in any of Our Colonies of Quebec, East Florida, or West Florida, do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands beyond the Bounds of their respective Governments, as described in their Commissions; as also, that no Governor or Commander in Chief in any of Our other Colonies or Plantations in America, do presume, for the present, and until Our further Pleasure be known, to grant Warrants of Survey, or pass Patents for any Lands beyond the Heads or Sources of any of the Rivers which fall into the Atlantick Ocean from the West and North-West, 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. [Emphasis added]
25. When a treaty is contracted by the federal level of government, the Indians’ beneficial interest in possession and local government jurisdiction flows through to the provincial level of government, in virtue of section 109. It enacts:
s. 109. All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same. [Emphasis added]
26. Once the provincial government is equipped with the beneficial interest in possession and the right of jurisdiction over the land ceded, or sold by treaty, the federal government constitutionally can and does purchase land from the province to create smaller Indian Act reservations, for bands, out of the surrendered territory, by order-in-council. Or the Indian Act reservations may be contracted for in the treaty itself, and confirmed by order-in-council.
27. Section 25(a) of the Constitution Act, 1982, recognizes the continuing force and effect of the proclamation and its terms:
s. 25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763;…
C: Duty to Consult
28. There is recently invented case law that is per incuriam but which, standing alone, appears to establish that the only interest of the Indians in unceded, or unpurchased land reserved under the proclamation, is the “right to be consulted” about the proposed use of the land by the province, or in some instances by its 3rd party grantees.
29. John Burke, Osborn’s Concise Law Dictionary, 6th edition, Sweet and Maxwell, London, 1976, defines per incuriam, stare decisis, precedent and ratio decidendi as follows:
per incuriam [Through want of care.] A decision of the court which is mistaken. A decision of the court is not a binding precedent if given per incuriam; i.e., without the court’s attention having been drawn to the relevant authorities, or statutes.
stare decisis The “sacred principal” of English law by which precedents are authoritative and binding, and must be followed.
precedent A judgement or decision of a court of law cited as an authority for deciding a similar set of facts; a case which serves as an authority for the legal principal embodied in its decision. The common law has developed by broadening from precedent to precedent.
A case is only an authority for what it actually decides….
An original precedent is one which creates and applies a new rule;… An authoritative precedent is one which is binding and must be followed….
ratio decidendi [The reason (or ground) of a judicial decision.] It is the ratio decidendi of a case which makes the decision a precedent for the future.
30. Since the right to be consulted conflicts with the beneficial interest in possession and jurisdiction held under the authoritative precedents, the doctrine of stare decisis dictates that the law settled prior to the invention of the duty to consult governs, rather than the other way around.
31. The two cases (St. Catherine’s 1888 and Re Indian Claims 1897) cited and quoted above are the authoritative precedents. The ratio decidendi of each is the legal consequence of an Indian treaty; and therefor the character of the Indian interest being surrendered, and the priority of it in relation to the interest of the province, pending treaty of cession or purchase. They were decided in the Judicial Committee of the Privy Council, on appeal from the Supreme Court of Canada.
32. Their ratio decidendi cannot be overturned in the absence of a constitutional amendment repealing the Indian part of the Royal Proclamation of 1763; the proviso to section 109 of the Constitution Act, 1867; section 25(a) and the adjective “existing” in section 35(1) of the Constitution Act, 1982.
33. The “duty to consult” was the ratio decidendi in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511. It was held, at paragraph 25, that it is a constitutional duty under section 35(1) of the Constitution Act, 1982. Yet it was never mentioned in the constitutional common law or in the Royal Proclamation or in either of the definitive precedents, St. Catherine’s 1888 and Re Indian Claims 1897, dealing with section 109 of the Constitution Act, 1867. Neither was it mentioned in Connolly v. Woolrich 1867 nor in the many common law cases in America dealing with the doctrine of discovery and the proclamation.
34. Section 35(1) of the Constitution Act, 1982, enacts: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” [Emphasis added]
35. The “duty to consult” did not “exist” until 2004 when Haida Nation made it the reason for the Court’s decision. Therefore, it is it not justifiable as an “existing” aboriginal right under section 35(1), dated 1982.
36. The law other than Haida Nation identified above in paragraph 32 authentically did exist as at 1982, and so genuinely is constitutional under section 35(1).
37. The duty to consult, and the injunction against settlement in the 3rd paragraph of the Indian part of the proclamation, can not both be valid. It is too profound a conflict for reconciliation. The duty to consult in effect implicitly condones the unconstitutional breach of the proclamation’s 3rd paragraph:
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.
38. The first call upon the honour, and fiduciary duty, of the crown is allegiance to the proclamation and section 109.
D: Section 88
39. Section 88 of the Indian Act has no application to territory that “has not been ceded to, or purchased by Us” within the meaning of the 1st paragraph of the proclamation. If it were to be applied “the several Nations or Tribes of Indians” would be “molested or disturbed in the Possession.” That would be unconstitutional by reason of conflict with the constitutional common law, paragraphs 1, 3 and 5 of the Royal Proclamation of 1763, the proviso in section 109 of the Constitution Act, 1867, and sections 25(a) and 35(1) of the Constitution Act, 1982.
Indian Act, section 88. Subject to the terms of any treaty and any other Act of Parliament, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that those laws are inconsistent with this Act or the First Nations Fiscal Management Act, or with any order, rule, regulation or law of a band made under those Acts, and except to the extent that those provincial laws make provision for any matter for which provision is made by or under those Acts.
40. Section 88 of the Indian Act uses that statute as sword rather than a shield. This is contrary to the proclamation’s constitutional declaration that the Nations or Tribes are under the “Protection” of the Crown.
41. No part of the Indian part of the proclamation has been repealed, as witness the conjunction of sections 25(a) and 35(1) of the Constitution Act, 1982.
a. Section 25(a). The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763;…
Section 35(1). The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
42. Ostensibly, the Indians’ right under the proclamation not to be “molested or disturbed in the Possession” (i.e., their beneficial interest of possession and self government) was repealed by section 88. But it is only ostensibly: for the Indian Act is a domestic law statute, while the Indians’ “Protection” under the proclamation and the “subject to” proviso in section 109 is constitutional.
43. In the absence of a constitutional amendment directly repealing the Indian part of the proclamation and deleting section 109’s proviso, there is no option to using section 91(24) as a shield, not a sword, to make the “Protection” real. The Indian “Interest” still consists in being what it was when section 109 was enacted in 1867: the said beneficial right of possession of, and jurisdiction over the land. For if the Indian Act as a sword were given effect, the proviso in section 109 would refer to an “Interest” in nothing whatsoever, rather than an interest in provincial “Lands” as that section states.
E: Fur Trade in Indian Territory
44. The 5th paragraph of the Indian part of the proclamation permitted non-native law enforcement in the established colonies to pursue fugitives from the colonies into the Indian territory, to arrest them, and to transport them back to the colony where the crime was committed to stand trial there.
45. By 1821 the competition in the fur trade between the Hudson’s Bay Company and the North West Company of Montreal had resulted in a lawless frontier, damaging to the trade but also causing “great injury to the native Indians.”
46. As remedy for this mischief generally, and in the interest of protecting the Indians, section 5 of 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 (U.K.) (1821) was enacted. It extended the jurisdiction of the courts of Lower and Upper Canada into the Hudson’s Bay Company’s chartered region, for the apprehension and trial of non-natives who committed crimes in the Indian territories therein, whereas previously non-native crimes there had no remedy.
47. Being a statute of the United Kingdom, this had constitutional force so as to amend of the 5th paragraph of the Indian part of the proclamation by extending court jurisdiction into the Indian territories for crimes by non-natives.
F: Conclusion
48. Under the constitutional common law and the Indian part of the Royal Proclamation of 1763 the Indians retain two things from the pre-contact epoch. These are their possession of, and their self government on their land. These preclude non-native court jurisdiction upon unceded Indian territory.
49. The Crown claimed no more than the bare title to the same land “subject to” the said Indian “Interest.” In return, the Indians received “Protection” based upon the Crown’s undertaking of a fiduciary obligation.
50. The Crown, represented by the federal government, reneged upon this obligation, first with regard to the possession. In 1875 that government declined to exercise its power of disallowance of the premature provincial occupation and disposition of the land before it has been acquired by treaty. It declined because “Great inconvenience and confusion might result” from disallowance of the provincial legislation designed to occupy and dispose of all land within the provincial boundaries.
51. Secondly, in 1951 the revised Indian Act by section 87 (currently section 88) reneged upon the Indians’ right of self government on unceded or unpurchased land. That statute enacted that provincial laws of general application, which is to say all the laws that apply to non-natives, shall apply to Indians on such land.
52. Canada should perform disallowance under section 90 of the Constitution Act, 1867, relative to provincial crown lands legislation, for the “Protection” of the Indians; so as to restore the Indians to their possession and self government, which is to say their beneficial “Interest” in possession and jurisdiction within the meaning of section 109 of the Constitution Act, 1867.
53. Pending a constitutional amendment, the courts should restore the supremacy of the constitution upon which Canada is premised as a constitutional democracy under the rule of law, by declining to assume criminal jurisdiction over Indians in the unceded Indian territories.
G: Documentary Evidence
1. Minute in Council dated 23rd January 1875, approving a report of the Minster of Justice and Attorney General Télésphore Fournier, dated 19th January 1875, recommending disallowance of a British Columbia Crown Lands Act, on the ground of a conflict with the Royal Proclamation of 1763 and section 109 of the Constitution Act, 1867. Endorsed by the Governor General. Re paragraph 10 of the Article.
2. Minute in Council dated 10th November 1875, approving a report of the Acting Minster of the Interior, dated 5th November 1875, concurring with British Columbia’s plan to establish a commission to recommend reserves to be set apart out of Crown lands in British Columbia. Endorsed by the Governor General. Re paragraph 11 of the Article.
3. Report of Attorney General Edward Blake to the Governor General concerning the aforesaid British Columbia Crown Lands Act not being disallowed but rather “left to its operation.” Dated 6th May 1876. “Great inconvenience and confusion might result from its disallowance.” Re paragraph 11 of the Article.
4. Memorandum to the Privy Council of Canada. 3rd January 1887. Sir John A. Macdonald. “…the great aim of our legislation has been to do away with the tribal system and assimilate the Indian people in all respects…” Re paragraph 16 of the Article.
5. Report regarding a speech of the Chief Justice of Canada. 29th May 2015. The Globe & Mail, under the headline “Chief Justice says Canada attempted ‘cultural genocide’ on aboriginals.” Re paragraph 18 of the Article.
APPENDIX OF 18TH AND 19TH CENTURY AMERICAN CASES
Marshall v. Clark, 1 Kentucky r. 77, 80-81 (1791). The old claim of the crown, by the treaty of 1763, extended to, and was limited by the Mississippi including the land in dispute, which gave a right to the crown as against other European nations, and fixed the limits of titles to be derived from that source to the citizens of Virginia. The dormant title of the Indian tribes remained to be extinguished by government, either by purchase or conquest, and when that was done, it inured to the benefit of the citizens who had previously acquired a title from the crown, and did not authorize a new grant of the lands as waste and unappropriated. This being the case at the time of revolution, when the commonwealth succeed[ed] to the royal rights…in the opinion of the court, the Indian title did not impede either the power of the legislature to grant the land to officers and soldiers, or to the location of the lands on treasury warrants, the grantee in either case must risk the event of the Indian claim, and yield to it if finally established, or have the benefit of a former or future extinction thereof.
Weiser v. Moody, 2 Yeat’s 127, 127-8 (Penn. sc) (1796). We are no enemies to bona fide improvements, restricted within rational limits. But these were never deemed to extend beyond the lands purchased from the Indians. Such a system would be wild, as well as highly impolitic, and would tend to deluge the country in blood, by provoking the savage nations to hostilities.…The court declared their opinion to the jury, that if the late proprietaries, or their officers, knew that the lands surveyed for Conrad Weiser, lay out of the then Indian purchases, and granted them under full knowledge thereof, the patent would enure for the benefit of the grantee, when the lands came afterwards to be purchased from the Indians; and the proprietaries could not pass the title to a stranger.…[But] it cannot be presumed that the proprietary officers knew the lands surveyed for Conrad Weiser to be without the limits of their purchases [from the Indians].…If the King is deceived in his grant, it will be avoided. Any contract or deed will be vitiated by a legatio falsi sive suppressio veri.
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.
Johnson v. McIntosh, 8 Wheat. 543, 574, 585, 588, 591, 592, 596 (1823). [The different nations of Europe] claimed and exercised, as a consequence of their ultimate dominion, a power to grant the soil, while yet in the possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy.…They were admitted to be the rightful occupants of the soil, with a legal as well as a just claim to retain possession of it, according to their own discretion.… While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in the possession of the natives. These grants have been well understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy.…It has never been doubted, that either the United States, or the several States, had a clear title to all the lands within the boundary lines described in the treaty, subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right, was vested in that government which might constitutionally exercise it.…All our institutions recognize the absolute title of the crown, subject only to the Indian right of occupancy.…[T]he Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession their lands, but to be incapable of transferring the absolute fee to others.…[T]he Indian title, which, although entitled to the respect of all Courts until it should be extinguished, was declared not to be absolutely repugnant to a seisin in fee on the part of the State. …The title, subject only to the right of occupancy by the Indians, was admitted to be in the king, as was his right to that title. The lands, then, to which this proclamation referred, were lands which the king had had a right to grant, or to reserve for the Indians.
Danforth v. Wear, 9 Wheat. 673, 675, 677 (1824). As to lands surveyed within the Indian boundary, this Court has never, hesitated to consider all such surveys and grants as wholly void…[although it was argued that the State grant] was only suspended by the Indian title, and attached legally and effectually to the soil, as soon as the interposing title of the Indians was removed…the inviolability of the Indian territory is fully recognized.
Cornet v. Winton, 2 Yerger Tenn. ca 129, 149 (1826). …the Indian nation was no party to this grant; its usufructory title was not thereby affected. North Carolina had no right to take it from the Indians for Stuart’s benefit, without their consent; this consent they have not given, and therefore no right to prosecute this action to recover the possession of the land has ever vested in Stuart; hence he must fail upon the weakness of his own title.
Cherokee Nation v. State of Georgia, 5 Pet. 1, 17, 49, 76 (1831). Though the Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government; yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.…While the different nations of Europe respected the rights of the natives as occupants they asserted the ultimate dominion to be in themselves; and claimed and exercised as a consequence of this ultimate dominion, a power to grant the soil, while yet in the possession of the natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy.…They have not stipulated to part with that right (of occupancy); and until they do, their right to the mines stands upon the same footing as the use and enjoyment of any other part of their territory.
Worcester v. Georgia, 6 Pet. 515, 583 (1832). Except by compact we have not even claimed a right of way through the Indian lands.
Mitchell v. United States, 9 Peter’s 711, 745, 746, 749, 755 (1835). We come now to consider the nature and extent of the Indian title…Indian possession or occupation was considered with the reference to their habits and modes of life; their hunting grounds were as much in their actual possession as the cleared fields of the whites; and their right to its exclusive enjoyment in their own way, and for their own purposes, were as much respected, until they abandoned them, made a cession to the government, or an authorized sale to individuals…One uniform rule seems to have prevailed…by their laws; that friendly Indians were protected in the possession of the lands they occupied, and were considered as owning them by a perpetual right of possession in the tribe or nation inhabiting them, as their common property, from generation to generation, not as the right of the individuals located on particular spots. Subject to this right of possession, the ultimate fee was in the crown and its grantees, which could be granted by the crown or colonial legislatures while the lands remained in the possession of the Indians, though possession could not be taken without their consent. Individuals could not purchase Indian lands without permission or licence from the crown, colonial governors, or according to the rules prescribed by colonial laws; but such purchases were valid with such licence, or in conformity with the local laws; and by this union of the perpetual right of occupancy with the ultimate fee, which passed from the crown by the licence, the title of the purchaser became complete.…The King waived all rights accruing by conquest or cession, and thus most solemnly acknowledged that the Indians had rights of property they could cede or reserve, and that the boundaries of his territorial rights should be such, and such only, as were stipulated by these treaties. This brings into practical operation another principle of law settled and declared in the case of Campbell v. Hall, that the proclamation of 1763, which was the law of the provinces ceded by treaty of 1763, was binding on the king himself, and that a right once granted by a proclamation could not be annulled by a subsequent.…[L]and were of two descriptions: such as had been ceded to the king by the Indians, in which he had full property and dominion, and passed in full property to the grantee; and those reserved and secured to the Indians, in which their right was perpetual possession, and his the ultimate reversion in fee, which passed by the grant, subject to the possessory right… This proclamation was also the law of all the North American colonies in relation to crown lands.
New Orleans v. Armas, 9 Pet. 224, 236 (1835). [I]t is a principle applicable to every grant, that it cannot affect pre-existing title.
New Orleans v. United States, 35 us 662, 730 (1836). It would be a dangerous doctrine to consider the issuing of a grant as conclusive evidence of right in the power which issued it. On its face it is conclusive, and cannot be controverted; but if the thing granted was not in the grantor, no right passes to the grantee.
United States v. Fernandez, 35 us 303, 305 (1836). Nor does there appear to have been any restriction on the powers of the governor to make grants of land under Spain, other than those imposed upon the governors of Great Britain: both made grants without regard to the land being in the possession of the Indians: they were valid to pass the right of the crown, subject to their right of occupancy:…
Clark v. Williams, 36 Mass. r. 499, 500, 501 (1837). The object of this statute manifestly was, to secure the Indians from being deceived and imposed upon, and to enable the government to avail themselves of the full benefit of the crown grant of the lands to themselves and their grantees, by giving them the exclusive privilege of extinguishing and acquiring the Indians’ right of occupancy…[W]e think it manifest, that this law was made for the personal relief and protection of the Indians, and it is to be limited in its operation. It is to be used as a shield, not as a sword.
Godfrey v. Beardsley, 2 McLean 412, 416 (Ind.) (1841). The Indian right is that of occupancy; and, until this right shall be extinguished by purchase, no possession can be taken. It is also admitted, that a mere reservation of the Indian right to a certain part, within the described boundaries, leaves the right reserved, as it stood before the cession.
Balliot v. Bauman, 5 Penn. 150, 154, 155 (1843). A patent is not operative against the rights of a third person existing before the issuing of the patent. He may show that his right is better than the one who obtained the patent and for that purpose may inquire into the prior title of the patentee.…[and] show his own equitable title is better. The patent conveys the full legal title of the state.
Brown v. Wenham, 10 Metcalf 496, 498 (Mass. sc)(1843). The provincial St.13 Wm 3, (1701,) entitled “an act to prevent and make void clandestine and illegal purchases of lands from the Indians,” rendered void, as the foundation of title, all deeds made by Indians, without the license or approbation of the legislature, after the year 1633. [“St.13 Wm 3, (1701,)” is an alternative citation for An Act to prevent and make void clandestine and illegal purchases of lands from the Indians, Stat. Prov. Mass. Bay 1701-02, c. 11.]
Coleman v. Tish-Ho-Mah, Smedes & m. 40, 48 (Miss. hcea) (1844). Theirs was a right to retain possession, and to use it according to their own discretion, though not to dispose of the soil except to the government. That claimed the ultimate dominion, and the exclusive right to grant the soil, subject to the Indian right of occupancy.
Ogden v. Lee, 6 Hill’s 546, 548, 549 (nysc) (1844). The European governments whose people discovered and made settlements in North America, claimed the sovereignty of the country, and the ultimate title, but not the immediate right of possession, to all lands within their respective limits. Upon the principle laid down by Vattel, (B. 1, & 81, 209,) they might have asserted a larger right; for the natives lived by fishing and hunting, without converting to the purposes of agriculture any considerable portion of the of the vast tracts of the country over which they wandered. But the Europeans pursued the more just and politic course of acquiring the Indian title by purchase. The claim which they set up and asserted amounted to little more than a right of preemption, or the right of purchasing from the Indians all the lands within the bounds of their respective discoveries, to the exclusion of all other nations. It is true that the British crown granted charters and issued patents for large tracts of land before the Indian right had been extinguished; and these instruments purported to convey the property in fee. It was so of the grant made by Charles the second to his brother the duke of York in 1664, which included all the territory now constituting the states of New-York and New-Jersey. But these grants were not intended to convey, and the grantees never pretended that they has acquired an absolute fee in the land. They neither took nor claimed any thing more than the ultimate fee, or the right of dominion after the Indian title should be extinguished. And so far as the state of New-York is concerned, I am happy to say, that beyond what may have been acquired by conquest in lawful war, the Indians have never been deprived of a single foot of land without their voluntary consent. Their title by occupancy has been uniformly acknowledged, both by the colonial and state governments, from the first settlement of the country down to the present day; and it cannot now be successfully questioned in the judicial tribunals.
Stockton v. Williams, 1 Mich. r. 546, 560 (sc) (1845). The power of the government to grant the soil while in the possession of the Indians, and subject to their right of occupancy, is a proposition which has long since been settled by a series of decisions of authority.
Fellows v. Lee, 5 Denio 628 (nyce) (1846).…the Indian title to lands is an absolute fee, and that the pre-emption right conceded to Massachusetts, was simply a right to acquire by purchase from the Indians their ownership of the soil, whenever they should chose to sell it.
Bown v. West, (1846), 1 e&a 117, 118 (Upper Canada). The government, we know, always made it their care to protect the Indians, so far as they could, in the enjoyment of their property, and to guard them against being imposed upon and dispossessed by the white inhabitants…we cannot be supposed to be ignorant of the general policy of the government, in regard to the Indians, so far as has been manifest from time by orders of council and proclamations, of which all people were expected and required to take notice.
Montgomery v. Ives, 13 Smedes & m. 161, 174-5 (Miss. hcea) (1849). Let us refer to the proclamation of George iii… “that 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 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.” It then goes on to declare, that no governor, in any of the said provinces, shall presume, “upon any pretence whatever, to grant warrants of survey, or pass any patents for lands, beyond the bounds of their respective governments, as described by their commissions.” It farther declares, “that, for the present, all the lands not included within the limits of said new governments, shall be reserved to under the sovereignty, protection and dominion of the crown, and forbids all purchases and settlements beyond those limits without special leave and license first obtained.” It goes on still farther to declare a principle which seems to have been adhered to ever since, “that no private person do make purchase of any land from any Indians, but that the same shall be purchased only for the government, in the name of the sovereign, at some public meeting of the Indians.” This principle, the offspring of a just and enlightened policy, became incorporated into the intercourse of England, with the Indian tribes, and has been adopted and pursued by our own government, in all its transactions with them.…On this part of the proclamation of 1763, the Supreme Court of the United States say, “This reservation is a suspension of the powers of the royal governor, within the territory reserved.” Fletcher v. Peck, 6 Cranch, 142. It is because of this suspension, which existed at the date of this grant, that we think it has no intrinsic validity. It is an established principle in our jurisprudence, that a grant of land on which the Indian title has not been extinguished, is void. Danforth v. Wear, 9 Wheat. 676.
Breaux v. Johns, 4 Louisiana r. 141, 143 (1849). These grants convey a title to the grantees, subject only to the Indian right of occupancy.
Gaines v. Nicholson, 9 How. 356, 365 (1850). No previous grant of Congress could be paramount, according to the rights of occupancy which this government has always conceded to the Indian tribes within her jurisdiction. [The reservation] was so much carved out of the Territory ceded, and remained to the Indian occupant, as he never parted with it. He holds, strictly speaking, not under the treaty of cession, but under his original title, confirmed by the government in the act of agreeing to the reservation.
Marsh v. Brooks, 49 us 223, 232 (1850).…Indian title consisted of the usufruct and right of occupancy and enjoyment; and, so long as it continued, was superior to and excluded those claiming the reserved lands by patents made subsequent to the ratification of the treaty; they could not disturb the occupants under the Indian title. That an action of ejectment could be maintained on an Indian right to occupancy and use, is not open to question.
People v. Dibble, 18 Barbour’s nyscr 412, 418 (1854). The object of the law, with various other laws of the state, was to protect the indians to quiet them and render them secure.
Scott v. Sandford, 19 How. 393, 403, 404, 405, 407, 420, 426, 432, 435, 449, 450, 452, 460, 483, 484, 485, 501, 506, 508, 509, 513, 520 (1857). [403] The question is simply this: can a negro, whose ancestors were imported into this country and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such entitled to all the rights and privileges, and immunities guaranteed by that instrument to the citizen?…The situation of this population was altogether unlike that of the Indian race. The latter, it is true, formed no part of the colonial communities, and never amalgamated with them in social connections or government. But although they were uncivilized, they were yet a free and independent people, associated together in nations or tribes, and governed by their own laws. Many of these political communities were situated in territories to which the white race claimed the ultimate right of dominion. But that claim was acknowledged to be [404] subject to the right of the Indians to occupy it as long as they thought proper, and neither the English nor colonial Governments claimed or exercised any dominion over the tribe or nation by whom it was occupied, nor claimed the right to the possession of the territory, until the tribe or nation consented to cede it. These Indian governments were regarded and treated as foreign Governments as much as if an ocean had separated the red man from the white; and their freedom has constantly been acknowledged, from the time of the first immigrants to the English colonies to the present day, by the different Governments which succeeded to each other. Treaties have been negotiated with them, and these Indian political communities have always been treated as foreigners not living under our Government. It is true that the course of events has brought the Indian tribes within the limits of the United States under the subjection of the white race; and it has been found necessary, for their sake as well as our own, to regard them as in a state of pupilage, and to legislate to a certain extent over the territory they occupy. But they may, without doubt, like the subjects of any foreign Government, be naturalized by the authority of Congress, and become citizens of a State, and of the United States; and if an individual should leave his nation or tribe, and take up abode among the white population, he would be entitled to all the rights and privileges which would belong to any emigrant from any other foreign people…[405] It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power; to those who formed this sovereignty and framed the Constitution. The duty of the Court is to interpret the instrument they have framed, with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.…[407] It is difficult at this day to realize the state of public opinion in relation to that unfortunate race [Africans], which prevailed in the civilized and enlightened portions or the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted. But the public history of every European nations displays it in a manner too plain to be mistaken. They had for more than a century before been regarded as beings of an inferior order, and altogether unfit with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect:…[420] Congress might…have authorized the naturalization of Indians, because they were aliens and foreigners. But, in their untutored and savage state, no one would have thought of admitting them as citizens in a civilized community. And, moreover, the atrocities they have recently committed, when they were allies of Great Britain in the Revolutionary war, were yet fresh in the recollection of the people of the United States, and they were even guarding themselves against the threatened renewal of Indian hostilities. No one would have supposed then that any Indian would ask for, or was capable of enjoying, the privileges of an American citizen, and the word was not used with any particular reference to them. Neither was it used with any reference to the African race imported into or born in this country; because Congress had no power to naturalize them, and therefore no there was no necessity for using particular words to exclude them.…[426] No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race [African slaves], in the civilized nations of Europe or in this country, should induce this court to give to the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. Such an argument would be altogether inadmissible in any tribunal called upon to interpret it. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it must be construed now as it was understood at the time of its adoption.…Any other rule would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day. This court was not created by the Constitution for such purposes. Higher and graver trusts have been confided to it, and it must not falter in the path of duty.…And upon a careful consideration of the subject, Dred Scott was not a citizen of Missouri within the meaning of the Constitution of the United States, and not entitled as such to sue in its courts;…[432] The act of Congress, upon which the plaintiff relies, declares that slavery and involuntary servitude, except for punishment for crime, shall be forever prohibited in all the part of the territory ceded by France, under the name Louisiana,…and the difficulty which meets us at the threshold of this part of the enquiry is, whether Congress was authorized to pass this law under any of the powers granted to it by the Constitution; for if the authority was not given by that instrument, it is the duty of this court to declare it void and inoperative, and incapable of conferring freedom upon any one who is held as a slave under any one of the United States…[435]…this Government was to be carefully limited in its powers, to exercise no authority beyond those expressly granted by the Constitution, or necessarily to be implied from the language of the instrument, and the objects it was intended to accomplish;…[449] It has no power of any kind beyond it; and it cannot, when it enters a Territory of the United States, put off its character, and assume discretionary or despotic powers, which the Constitution denied to it…[450]…and the Federal Government can exercise no right power over his person or property beyond what the instrument confers, nor lawfully deny any right which it has reserved…And no laws or usages of other nations, or reasoning of statesmen or jurists upon the relations of master and slave, can enlarge the powers of the Government, or take from the citizens the rights they have reserved. [452] Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding or owning property of this kind in the territory of the United States north of the line mentioned, is not warranted by the Constitution, and is therefore void;…[460] Every State or nation possesses an exclusive sovereignty and jurisdiction within her own territory; and, her laws affect and bind all property and persons residing within it…And it is equally true, that no State or nation can affect or bind out of its territory, or persons not residing within it.…[480]…to change or to abolish a fundamental principle of the society, must be the act of the society itself—of the sovereignty; and that none other can admit to the participation of that high attribute. [483]…each nation should be left in the peaceable enjoyment of that liberty which she inherits from nature…power or weakness does not make any difference. A small republic is no less sovereign than the most powerful kingdom…[484]and no one nation is entitled to dictate a form of government or religion, or a course of internal policy, to another. [485] Sovereignty, independence, and a perfect right of self-government, can signify nothing less than a superiority to and exemption from all claims of extraneous power, however expressly they may be asserted, and render all attempts to enforce such claims merely attempts at usurpation. [501] But the recognition of a plenary power in Congress to dispose of the public domain, or to organize a Government over it, does not imply a corresponding authority to determine the internal policy, or to adjust the domestic relations, or the persons who may lawfully inhabit the territory in which it is situated.…[506] This [the inflation of federal plenary jurisdiction] proceeds from a radical error, which lies at the foundation of much of this discussion. It is, that the Federal Government may lawfully do whatever is not directly prohibited by the Constitution. This would have been a fundamental error, if not amendments to the Constitution had been made. But the final expression of
the will of the people of the States, in the 10th amendment, is, that the powers of the Federal Government are limited to grants of the Constitution. [508] In Pollard’s Lessee v. Hagan, (3 How., 212,) the court say; “The United States have no constitutional capacity to exercise municipal [509] jurisdiction, sovereignty, or eminent domain, within the limits of a State or elsewhere, except in cases where it is delegated, and the court denies the faculty of the Federal Government to add to its powers by treaty or compact.” [513]…a power to make rules and regulations respecting the public domain does not confer a municipal sovereignty over persons and things upon it. [520] The King of Great Britain, by his proclamation of 1763, virtually claimed that the country west of the mountains had been conquered from France, and ceded to the Crown of Great Britain by the treaty of Paris of that year, and he says: “We reserve it under our sovereignty, protection and dominion, for the use of the Indians.” This country was conquered from the Crown of Great Britain, and surrendered to the United States by the treaty of peace of 1783.
Fellows v. Denniston, 23 ny 420, 423, 428, 431 (ca) (1861). The nature of the aboriginal title, and that of the State within which the lands lie, has been so often defined by judicial determination that no time need now be spent on it. (Johnson v. McIntosh, 8 Wheat., 543; Fellows v. Ellsworth, 6 Hill, 546; S.C., 5 Denio, 528.) The Indian nation, in a collective or national capacity, has the right of occupancy of the land, but no power to sell or in any way dispose of it to others, except to the State, or to persons authorized by it to purchase; and the government of the State has the ultimate right of the soil, or title in fee simple, subject to the Indian right of occupancy. The right to purchase the Indian claim, or, in the language usually employed, to extinguish the Indian title, thus existing in the State or in its grantees, is usually called the right of preemption.…If the purchaser acquires no right to interfere with the Indian occupancy, the subject of his purchase is limited to the title of the grantees under the State of Massachusetts; and he acquires nothing more. This, we have seen, is the right of preemption, and perhaps it embraces also a technical fee; but, as it does not embrace the Indian right of occupancy, but expressly excludes it, and that is the only right which the Indians had, it is clear that they are not prejudiced by the tax or by any sale which may take place pursuant to it. The title of the grantees under Massachusetts to these lands, before the extinguishment of the Indian title, subject as it was to the right of possession remaining in the Indians for an indefinite period, was not liable to taxation and sale under the general laws of the State relative to the assessment of taxes.… Each of the three Constitutions successively adopted by the people of the State has contained a provision like that in the first Constitution, which was in these words: “No contracts or purchases for the sale of lands made since the 14th day of October, a.d. 1775, or which may be hereafter made with or of the said Indians, within the limits of this State, shall be binding on the said Indians, or be deemed valid, unless made either under the authority and with the consent of the Legislature of this State.”
United States v. Foster, 2 Bissell’s 377, 377 (Wisc. Cir. Ct.) (1870). It may be doubted whether this reservation can be sold by the United States in the present condition of the title, even by act of Congress, without the consent of the Indians themselves, but it is certain that it cannot be without an express law; and if the precedents which have always existed in such cases should be followed, it cannot, and ought not to be sold by the Government, until the rights of the Indians are purchased, and with their free consent.
Minter v. Shirley, 3 Miss. 376, 381, 382 (1871). The right to acquire and extinguish their title pertained exclusively to the United States, therefore purchases, made from them separately, or as tribes, were null and void.…The several acts of congress, in reference to the survey and sale of the public lands, distinctly keep in view the fact “that the Indian title must first have been extinguished, and acquired by the United States, before individual right to any part of the soil can be derived and vested.”
Holden v. Joy, 84 us 211, 244 (1872). Obviously this principle regulated the right conceded by discovery among the discoverers, but it did not affect the rights of those already in possession, either as aboriginal occupants or as occupants by virtue of a more ancient discovery. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell.…Unmistakably their title was absolute, subject only to the preemption right of purchase acquired by the United States as the successors of Great Britain, and the right also on their part as successors of the discoverer to prohibit the sale of the land to any other governments or their subjects, and to exclude all other governments from any interference in their affairs.
- Worcester v. Georgia, 31 US (6 Pet.) 515, 581, 583 (1832) (M’Lean, J). [581] What is a treaty? The answer is it is a compact formed between two nations or communities having the right of self-government.
Is it essential that each party shall possess the same attributes of sovereignty, to give force to the treaty? This will not be pretended, for, on this ground, very few valid treaties could be formed. The only requisite is that each of the contracting parties shall possess the right of self-government and the power to perform the stipulations of the treaty….
It must be admitted that the Indians sustain a peculiar relation to the United States. They do not constitute, as was decided at the last term, a foreign State so as to claim the right to sue in the Supreme Court of the United States; and yet, having the right of self-government, they, in some sense, form a State. In the management of their internal concerns, they are dependent on no power. They punish offences under their own laws, and, in doing so, they are responsible to no earthly tribunal. They make war and form treaties of peace. The exercise of these and other powers gives to them a distinct character as a people, and constitutes them, in some respects, a state, although they may not be admitted to possess the right of soil.
[583] In the executive, legislative, and judicial branches of our government, we have admitted, by the most solemn sanctions, the existence of the Indians as a separate and distinct people, and as being vested with rights which constitute them a State, or separate community—not a foreign, but a domestic community—not as belonging to the Confederacy, but as existing within it, and, of necessity, bearing to it a peculiar relation…. Except by compact we have not even claimed a right of way through the Indian lands.