[Marxism] Fw: Natives not bound by laws of Canada, lawyer argues
JCraven at clark.edu
Sun Apr 25 15:35:11 MDT 2004
Natives not bound by laws of Canada, lawyer argues
An Ottawa lawyer is challenging the authority of Canadian governments to
apply laws to native people.
The Ottawa Citizen
April 25, 2004
It's an issue that has been debated for years in native and legal
academic circles but hasn't been answered by Canadian courts, say
aboriginal law experts.
But it looks like the question will have to be answered soon, after
lawyer Michael Swinwood, on behalf of two natives in North Bay charged
with fraud, filed a constitutional challenge to the Crown's right to
apply the Criminal Code, or any other law, to aboriginal people, and a
judge agreed to hear it.
Mr. Swinwood says aboriginal people never ceded sovereignty to British
or Canadian governments in accordance with recognized international
standards such as conquest or purchase.
To have jurisdiction over people who occupied land first, according to
law, sovereignty must be properly handed over, Mr. Swinwood says in
documents filed in court. It wasn't, so Canadian governments have no
right to enforce their laws on natives, the documents say.
"The federal government lacks proper legislative authority in the
territory it is alleged these illegal acts took place," Mr. Swinwood
argues. "No treaty has been entered into ... therefore the federal
government has no jurisdiction in the territory where these acts are
Mr. Swinwood will ask a judge to "nullify the application" of Canadian
laws against natives because, he says, according to the current state of
the law, Canada's laws have "no force or effect as against these Indian
persons or any other Indian person."
Earlier this year in North Bay, Mr. Swinwood convinced Ontario Superior
Court Justice J.S. O'Neill, himself an expert in native law, to hear the
challenge and order the government to pay for it.
Judge O'Neill found Mr. Swinwood raised "important" legal questions that
need answering and ordered the provincial government to give Mr.
Swinwood $35,000 in order to argue the case properly.
If Mr. Swinwood's first argument fails, he has another, darker
allegation that he says strips the Crown of its ability to apply its
laws to natives.
According to his application documents: "The legislature of Canada and
Her majesty the Queen deprive themselves of legislative authority by
being complicit in the crime of genocide against the Indian Nation ...
and have acted and continue to act contrary to their international
obligations codified in the convention for the prevention and punishment
of the crime of genocide."
Response Jim C:
This is precisely what we have been arguing in Court in Alberta since
2001 and what we will be arguing in the Alberta Court of Appeals--as a
prelude to the Canadian Supreme Court--on May 13th (although we may have
to request a continuance as I just got the transcripts from the last
happening in court in Lethbridge.
Some Premises in the Alberta Court Case
Premise 1: Treaties are covenants between sovereign nations and only
sovereign nations can ratify and keep treaty terms (Vienna Convention on
Treaties, Articles 27 and 29);
Premise 2: No nation may summarily and legitimately deny to another
nation any of the same rights, principles and legal authorities that it
asserts for itself to assert, defend and legitimate its own existence
and derivative rights to sovereignty, freedom and self-determination
(International Covenant on Civil and Political Rights; International
Covenant on Economic, Social and Cultural Rights; UN Charter)
Premise 3: Each treating nation is recognizing--or at least not calling
into question--the existence, sovereignty, government, systems of
selecting members of government--and authority to bind whole populations
to terms of the treaty--of the other treating partner when forming and
ratifying a treaty;
Premise 4: No treaty is valid that contains within it, terms effectively
abolishing the other treating partner as a sovereign nation--as national
sovereignty, freedom, independence and self-determination are requisite
to having legal authority and standing to ratify and keep treaties and
Premise 5: No nation may legally or legitimately contrive or invoke
domestic laws to circumvent or breach treaty terms once ratified (
international canons of treaty construction on supremacy clauses
designed to make treaty terms complied with and binding and not
breachable through ruses and contrived domestic laws);
Premise 6: The existence or non-existence of any group of people is
strictly determined by facts on the ground and tests under international
law and is in no way dependent upon recognition or non-recognition of
existence by any other nation or entity; were it not so, one nation
could simply abolish or exterminate another through redefinition and
Premise 7: Calculated breaches of treaty terms by one or more treating
partners make a given treaty null and void;
Premise 8: No treaty may be considered legitimate without full, free and
fully-informed consent on all aspects of the treaty on the part of the
treating partners and without all treating partners being free of fraud,
duress, unconscionability, threats and calculated deception;
Premise 9: No person may be deprived of nationality without legal cause
nor may any person have nationality assigned without voluntary, free and
informed consent of the person;
Premise 10: No nation may assert national laws/sovereignty to commit
genocide or other breaches international law since domestic actions
often have spillover effects on other nations as well as on human beings
with fundamental rights under international law; for the same reasons
that provincial laws trump municipal laws (to preserve cohesion and
integrity of a whole province), and federal laws trump provincial laws
(to preserve the cohesion and integrity of a federal union and system),
so international law trumps federal law (to preserve the cohesion and
integrity of a global community of nations and peoples).
Premise 11: No need to cover-up what is clean only what is dirty; acts
of cover-up may be used to legally infer and establish mens rea
(criminal intent), existence of conspiracies and awareness of probable
or inexorable effects of given policies, common plans and actions; court
procedures and protocols may be used and are often used as instruments
of genocide and cover-up of genocide;
Premise 12: As court systems and evolving law (statutes, administrative
codes, case law and precedents) are often used to set up, carry out and
cover-up genocide, they are also used to ratify and legitimate genocide
such that they become tautological and abrogate or impeach themselves as
legal instruments available to those who set them up and have been
charged with genocide; e.g. would a Jew going to a nazi court expect
anything else but that nazi laws and precedents had been consciously set
up not only to facilitate and cover-up genocide, but to ratify and
legitimate it when challenged?
Premise 13: No government or entities set up by an illegal, occupying
and genocidal power may ever be taken to be legal and legitimate
representatives or legitimate governments of the occupied peoples and
victims; for the same reasons under law and reason that the puppet Vichy
Government set up by nazi occupation forces in France could have never
been considered a legal and legitimate representative of the people of
France, the Tribal Councils set up under the Indian Act can never be
legally or legitimately taken to be representatives of the Blackfoot
People and Nation;
Premise 14: The Indian Act and Treaty 7 are internally contradictory and
self-impeaching: they set up supposed special powers for the
"protections" of a delinated and special group (Indians) not set up for
other groups, yet also set up powers from which this targeted group need
protection for their continued existence and survival;
Premise 15: Intentions of persons or groups of persons may be legally
inferred and established from the highly probable--or inexorable--and
foreseeable effects (by a reasonable and prudent person free of bias,
malice or conflict of interest) of given policies, laws and actions
without necessary resort to tape recordings, insider documents,
informants etc giving actual utterances revealing intentions;
NOT YOUR AVERAGE LICENSE PLATE...
By Lisa Doerksen
Lethbridge Herald Friday, January 23, 2004
A Piikani reserve woman who believes she is not bound by Canadian law is
fighting for the right to drive in the province without registering her
Bella Yellowhorn has launched a constitutional challenge of the Indian
Act and Treaty 7 in an effort to be recognized as part of a sovereign
"I am a member of the sovereign Blackfoot Nation", said Yellowhorn. "I
do not have to abide by the Canadian status laws and all they charge us
Yellowhorn claims she is one of a growing number of natives who have
rejected their status Indian cards from the government and are using
their own Blackfoot Nation cards.
Yellowhorn and her representation--James Craven, a professor at
Clark's[sic] College in Washington--will argue their position this
morning in Lethbridge provincial court.
Prosecutor Kurt Sandstrom, a specialist in constitutional and aboriginal
law, is handling the case for the Crown.
The issue stems back to May 1, 2001 when Yellowhorn was pulled over in
Lethbridge for not having proper registration for her vehicle.
Yellowhorn had outfitted her van with a homemade Blackfoot Nation
"This is traditional Blackfoot Nation territory", she said. "This is my
homeland and I feel I have the right to use my own license plate in my
If her case is successful, Yellowhorn wants to be able to use her own
license plate on all ancestral Blackfoot lands, which encompasses most
of southern Alberta, stretching into Montana, Saskatchewan and B.C.
Craven, however, says the issue goes far beyond license plates.
"What this is about is genocide, pure and simple," he said. "It's about
the right to be a free nation, free people. We have a right to remain as
a nation and not be exterminated."
Craven,, who also goes by his Blackfoot name Omahkohkiaayo-i'poyi, said
he plans to shed light on the Indian Act's purpose of forcing
assimilation of Indians into Canadian life--what he calls genocide of
the Blackfoot culture.
"If a (Blackfoot Indian) chooses also to be a Canadian that's fine but
you can't force it on us," he said. "We're forcing Canada to look at
itself and what's being done to Indians across the country."
Craven said he'll take the issue to the Supreme Court of Canada or even
the International Court in Hague or the United Nations if necessary.
The Lethbridge Herald
Saturday A, Saturday, January 24, 2004, p.a3
[By Lisa Doerksen Lethbridge Herald Forcing Blackfoot Nations[sic]
Natives to have Canadian insurance on their vehicles is akin to asking
foreign travellers to buy Canadian insurance to visit here, says a
By Lisa Doerksen
Forcing Blackfoot Nations[sic] natives to have Canadian insurance on
their vehicles is akin to asking foreign travellers to buy Canadian
insurance to visit here, says a professor helping a native woman fight a
charge of driving a motor vehicle without insurance.
"It's no different than a motorist from Montana driving onto Canadian
lands," said James Craven, a professor at Washington's Clark College, on
behalf of Bella Yellowhorn Friday at the Lethbridge provincial
courthouse. "They're not required to have Canadian insurance as long as
they have some kind of insurance."
The issue stems back to May 1, 2001 when Yellowhorn, a Piikani reserve
resident, was pulled over in Lethbridge for not having proper
registration for her vehicle. Yellowhorn had outfitted her van with a
homemade Blackfoot Nation licence plate.
She was later convicted of a charge of not having proper registration
and the insurance charge went to trial this week.
Yellowhorn claimed in court she had insurance but could not prove it
because she was unable to obtain documents from her van when it was
seized and also could not locate the Fort Macleod office she purchased
the insurance from.
Prosecutor Eric Brooks, who is handling the criminal prosecution
regarding the charge, noted the onus is on the accused to provide proof
of insurance and Yellowhorn was allowed several adjournments to give her
time to gather the information.
Judge Ron Jacobson will hand down his decision on Feb. 9.
Yellowhorn said if the case is successful, she wants to be able to use
her own licence plate on all ancestral Blackfoot lands, which
encompasses most of southern Alberta, stretching into Montana,
Saskatchewan and B.C.
In addition to fighting the charge, Craven has launched a constitutional
challenge of the Indian Act and Treaty 7 in an effort to have the
Blackfoot people recognized as a sovereign nation.
Craven told the court Friday the Blackfoot people meet all the tests for
a nation under international law, including a stable population,
identifiable land and their own identifiable governance.
The Indian Act, he said, is little more than a document designed to
force the assimilation of natives into Canadian culture--something he
calls genocide of the Blackfoot culture.
"Bella believes that as a matter of her own personal survival she cannot
and will not obey any of the (conditions) of the Indian Act," said
He argued the Indian Act allows activity prohibited under international
genocide laws, pointing to issues such as residential schools and the
high rate of suicide on the reserve.
However, Crown prosecutor Kurt Sandstrom argued that many of the issues
raised by Craven have little to do with the matter before the court--a
provincial statute requiring proper insurance to drive in Alberta.
Alberta's provincial court is not the right place to launch arguments
based on international law, said Sandstrom, a specialist in
constitutional and aboriginal law handling the constitutional challenge.
"This court does not have the authority to impose a remedy under the
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