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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-04-11] British Columbia. Supreme Court Apr 11, 1990

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 24197  Submissions by Mr. Jackson  1 April 11, 1990  2 Smithers, B.C.  3  4 THE REGISTRAR: Order in court. In the Supreme Court of British  5 Columbia, this 11th day of April, 1990, Delgamuukw  6 versus Her Majesty the Queen at bar, my lord.  7 THE COURT: Jackson.  8 MR. JACKSON:  My lord, you may recall that there were several  9 pages which were confused yesterday, they're page 430  10 and 431, and the confusion has been remedied, and if  11 they could be inserted into your binder.  We haven't  12 hole-punched them I'm afraid.  13 THE COURT:  Into Volume 2?  14 MR. JACKSON:  Into Volume 2, yes, my lord.  15 THE COURT:  All right.  16 MR. JACKSON:  The next materials, my lord, we've provided you  17 with a third binder, we're now in Volume 3, and this  18 material is under the general head of the  19 jurisprudence of aboriginal rights.  20 And I would advise your lordship that in the  21 material which I'll be covering in the next few days,  22 while I will be reviewing a number of the leading  23 cases, principally with a view to teasing out of them  24 what we say are the fundamental bedrock principles of  25 the common law, many of these cases will be revisited  26 by my friends in later submissions dealing  27 specifically with issues of extinguishment and the  28 tests for extinguishment, also in terms of the limits  29 of provincial competence to deal with extinguishment,  30 diminishment, or adverse effect on aboriginal rights.  31 And so I'm just advising your lordship that when I  32 refer to a case it may be, as I say, revisited in a  33 particular context later in the submissions.  34 The first case I wish to bring to your lordship's  35 attention is the case of Mohegan Indians v.  36 Connecticut.  And at page 1, my lord, we say that  37 although the jurisprudence of aboriginal rights is  38 usually traced to the decisions of the U.S. Supreme  39 Court in the first half of the nineteenth century, as  40 we have documented, the early colonial era had already  41 provided a substantial legacy of legal thought,  42 jurisprudential assumptions, and political experience  43 about the nature of the relationship between Indian  44 nations and the crown.  As a matter of historical  45 record, the first formal litigation of aboriginal  46 rights was initiated over a century before the  47 Marshall Court was called upon to render judgment and 2419?  Submissions by Mr. Jackson  1 was the first case to reach the Privy Council.  2 Mohegan Indians v. Connecticut has been referred to as  3 "the greatest cause ever heard at the Council Board",  4 and you'll note my comments, my lord, that in terms of  5 its length in adjudication this case bears, if it can  6 be believed, a resemblance to a speedy trial.  In  7 fact, the case spanned almost 70 years from its  8 initiation to the final determination by the Privy  9 Council.  10 The materials are unpublished in the sense of  11 their being available in any formal report.  The most  12 complete account, my lord, is found in the work of Mr.  13 Smith, Appeals to the Privy Council, which your  14 lordship can find in Volume 16 of our series 1,  15 articles and books, at tab 33.  16 THE COURT:  23?  17 MR. JACKSON:  33.  18 The case began in the early years of the 18th  19 century, in 1703, when Oweneco, the son of the great  20 Mohegan leader Uncas, petitioned the Queen in Council  21 claiming that colonial land grants by Connecticut  22 officials violated the Mohegans' aboriginal title.  23 And the dispute turned on the interpretation of a  24 series of treaties and agreements negotiated between  25 1640 and 1681.  26 At the bottom of the page I note that the Mohegans  27 maintained that the effect of the last of these grants  28 in 1681 was to grant the colony of Connecticut the  29 right of first purchase of the land.  The colony of  30 Connecticut, however, thought otherwise, and began  31 parcelling up the land to settlers.  And that was the  32 occasion about which the Mohegans petitioned the  33 crown.  34 The case was heard thereafter by several Royal  35 Commissions, the decision of the last of which was  36 affirmed by the Privy Council in 1773.  It's the third  37 commission to which I would draw your lordship's  38 particular attention.  It was convened in 1743 and the  39 numerous non-Indian tenants in possession of the  40 controverted lands were summoned to defend their  41 titles against the tribal title.  The tenants disputed  42 the jurisdiction of the commission to hear the case,  43 claiming that such royal intervention violated the  44 Connecticut Royal Charter and the laws of the colony.  45 In effect, they argued that the Mohegans were subject  46 to Connecticut laws and government and the resolution  47 of their land claim should take place in colonial 24199  Submissions by Mr. Jackson  1 courts rather than through Royal Commissions.  And we  2 say that this challenge presented for the first time  3 an imperially appointed commission the opportunity to  4 determine the legal status of Indian nations within  5 the British Empire.  6 And Commissioner Hoffmanden, writing for the  7 majority of the court in 1743, held, and I've set out  8 the text of his submission, and I'll just read to you  9 the first part of it:  10  11 "The Indians, though living amongst the king's  12 subjects in these countries, are a separate  13 and distinct people from them, they are treated  14 with as such, they have a policy of their own,  15 they make peace and war with any nation of  16 Indians when they think fit, without control  17 from the English.  It is apparent that the  18 crown looks upon them not as subjects, but as  19 a distinct people, for they are mentioned as  20 such throughout Queen Anne's and his present  21 Majesty's commissions by which we now sit.  And  22 it is as plain, in my conception, that the  23 crown looks upon the Indians as having, the  24 property of the soil of these countries; and  25 that their lands are not, by His Majesty's  26 grant of particular limits of them for a  27 colony, thereby impropriated in his subject  28 'til they have made fair and honest purchases  29 of the natives..."  30  31 And of course it's that particular statement, my  32 lord, which we bring to your particular attention.  33 At page 4 we say that it is our submission that  34 the judgment of the court of the commissioners is an  35 affirmation of the pre-existing proprietary rights of  36 the Mohegans; an acknowledgement that those rights can  37 only be acquired by the crown by purchase; and a  38 recognition of their jurisdiction over their affairs  39 as a distinct self-governing people notwithstanding a  40 treaty that, by consent, had brought them under the  41 protection of the crown.  42 The commissioners, having dealt then with the  43 merits of the case, having satisfied themselves that  44 they had jurisdiction, held in favour of the  45 land-owners on the -- the peoples who received the  46 grants from Connecticut, on the basis that the cession  47 by the Indians had in fact ceded up their lands, and 24200  Submissions by Mr. Jackson  1 it was that decision which was affirmed by the Privy  2 Council in 1773.  3 I wish now, my lord, to turn to the main body of  4 this material which we have referred to as the  5 Marshall decisions, which we say are the foundation  6 cases for the common law doctrine of aboriginal  7 rights.  And it is our submission that the decisions  8 of the U.S. Supreme Court in the first part of the  9 19th century, which we have generally referred to as  10 the Marshall decisions, building upon both British  11 colonial and American state practice, affirm common  12 law principles upon which the relative rights of  13 ownership and jurisdiction of colonial governments and  14 Indian nations are to be determined.  15 And at page 5 to 7 I have set out those  16 principles.  And they are, first, in relation to  17 rights of ownership --  18 THE COURT:  Are these different from the set of principles that  19 were in the very beginning of Volume 1?  20 MR. JACKSON:  No, my lord, this is a restatement.  If your  21 lordship has those, I'm happy to leave them with  22 you --  2 3    THE COURT:  Yes.  2 4    MR. JACKSON:  — and move to page 7.  25 At the bottom of page 7, my lord, we say that the  26 significance of the Marshall decisions in setting out  27 the common law foundations of aboriginal rights has  28 been well recognized in the Canadian case law.  And  29 that significance is perhaps best expressed in the  30 judgment of Mr. Justice Strong in his judgment in St.  31 Catherine's Milling where his lordship said:  32  33 "The American authorities, to which reference  34 has already been made consist...of several  35 decisions of the Supreme Court of the United  36 States, from which 3, Johnson v. Mcintosh,  37 Worcester v. the State of Georgia and Mitchell  38 v. United States, may be selected as leading  39 cases . "  40  41 And I will be dealing with those three cases in  42 some detail.  43 "The value and importance of these authorities  44 is not merely that they show that the same  45 doctrine as that already propounded regarding  46 the title of the Indians to unsurrendered lands  47 prevails in the United States, but, what is of 24201  Submissions by Mr. Jackson  1 vastly greater importance, they without  2 exception refer its origin to a date anterior  3 to the revolution and recognize it as a  4 continuance of the principles of law or policy  5 as to Indian titles then established by the  6 British government, and therefore identical  7 with those which have also continued to be  8 recognized and applied in British North  9 America."  10  11 And my lord, that statement in many ways explains  12 why the plaintiffs have taken your lordship on this  13 rather long historical train to the very foundation of  14 colonial establishments in North America, in order to  15 show the continuity in what we say are the fundamental  16 principles, a continuity which was not ended by the  17 American Revolution, nor was it disjointed and  18 bifurcated by the establishment of the United States  19 as distinct from British territories of North America.  20 A second preliminary point of considerable  21 importance is that the judgments of the Marshall  22 court, delivered over a period of 25 years, bear  23 witness to an evolution of the court's thinking on  24 aboriginal rights.  Enigmatic statements made in some  25 of the earlier judgments are subsequently clarified,  26 and in some cases, significantly modified in later  27 judgments.  Not surprisingly, in approaching extremely  28 complex issues of the legal relationship between  29 colonial and American governments and Indian nations,  30 the court felt it necessary to proceed cautiously.  In  31 the early decades of the 19th century, as in the last  32 decades of the 20th century, legal and constitutional  33 issues involving aboriginal rights were deeply meshed  34 with political considerations leading the court to  35 proceed cautiously at first.  But we say, my lord,  36 ultimately, in the great case of Worcester v. Georgia,  37 in the face of political intransigence, the court  38 confirmed the authority of the law in the definition  39 and affirmation of aboriginal rights.  40 We say, my lord, that the Canadian case law to  41 date has tended to cite from the decisions of the  42 Marshall court in a way which does not do justice to  43 the evolutionary nature of the court's thinking.  And  44 this —  45 THE COURT:  You mean the American court's thinking?  46 MR. JACKSON:  The American court's thinking.  And that is  47 reflected, my lord, in a number of the judgments to 24202  Submissions by Mr. Jackson  1 which we're referring you in which judges, who take  2 very different positions on the nature of aboriginal  3 rights, trace a common heritage to the Marshall  4 decisions.  And that's perhaps best reflected in the  5 judgments of Mr. Justice Judson and the judgment of  6 Mr. Justice Hall in Calder, both of whom rely upon the  7 Marshall decision.  8 This is not entirely the fault of judges, my lord.  9 Scholars for many years in looking at the Marshall  10 cases, particularly Canadian scholars, have tended to  11 see the Marshall cases as if they were  12 interchangeable.  And, indeed, in one of the leading  13 texts, "Native Rights in Canada", in its second  14 edition, the cases are cited, as it were,  15 indiscriminately.  And what we will endeavour to show,  16 my lord, is that the court's thinking evolved that one  17 cannot take a passage from Johnson v. Mcintosh, and  18 then take a passage from Worcester v. Georgia and, as  19 it were, interchange them as being the position of the  20 Marshall court.  21 We also at page 9 make the point, my lord, that  22 this is not a problem also limited to the Canadian  23 courts.  In our analysis of the later decisions of the  24 U.S. Supreme Court, we will show how in fact the  25 courts have in some cases ridden what we say is  26 roughshod over these fundamental principles.  And I  27 will be spending some considerable time looking at the  28 case in 1955 of Tee-Hit-Ton Indians v. United States,  29 where we say this revision of fundamental principles  30 reached its nadir.  31 On page 10, my lord, I make the point, and again  32 it's of significance, that the evolutionary nature of  33 the Marshall court's thinking has its counterpart in  34 the contemporary Canadian jurisprudence.  And starting  35 with the Calder case, the last 20 years have seen  36 Canadian courts grappling with issues of aboriginal  37 rights relating to their nature and content, their  38 source, the criteria for their proof, and their  39 continued existence or extinguishment.  And we say  40 that the modern era of Canadian jurisprudence is also  41 in an evolutionary phase.  42 That is a point, my lord, which, using the Court  43 of Appeal, very recently acknowledged in a judgment to  44 which I will be referring your lordship later.  45 It is our submission that with the benefit of an  46 evidentiary basis unprecedented in the jurisprudence  47 of aboriginal rights and with the benefit of a more 24203  Submissions by Mr. Jackson  1 extensive historical and legal analysis than that  2 hitherto laid before any Canadian court, your lordship  3 is in a position to render a judgment which  4 re-establishes and affirms those fundamental  5 principles which are essential, we say, to a just  6 resolution of the issues before this court.  7 As part of the legal and historical matrix of the  8 Marshall court decisions, it is necessary to track  9 some of the legal developments in the United States in  10 the years after the revolution, and the extent to  11 which they parallel the implementation of the Royal  12 Proclamation in the post-1763 period in what are now  13 Canadian territories.  14 And at page 10 to 12 I track some of that history  15 in a very abbreviated form, particularly the great  16 lesson learned by the Americans from the Imperial  17 experience, as to the need to place in a central  18 repository jurisdiction over the dealing with Indian  19 Affairs.  And that was reflected in an ambiguous form  20 in the original articles of Confederation and was  21 resolved unambiguously in the terms of the American  22 Constitution where there was lodged with the federal  23 government of the United States the exclusive power of  24 treaty making and also of conducting or regulating  25 commerce with the Indian tribes.  And so the American  26 Constitution, even though its provisions relating to  27 exclusive federal authority read differently in terms  28 of their language from section 9124 of our  29 Constitution, the underlying principle of central  30 authority was affirmed and has been and has remained a  31 central part of the American jurisprudence in the same  32 way as remained a central part of the Canadian  33 jurisprudence.  34 At page 12, my lord, the principle of consent,  35 which of course we have said is the centre piece of  36 the provisions, the Indian provisions, of the Royal  37 Proclamation, was early reflected in American law in  38 the North-west Territory Ordinance of 1789 which  39 stated:  40  41 "The utmost good faith shall always be observed  42 towards the Indians; their land and property  43 shall never be taken from them without their  44 consent; and in their property, rights and  45 liberty, they shall never be invaded or  46 disturbed, unless in just and lawful wars  47 authorized by Congress." 24204  Submissions by Mr. Jackson  1  2 And, my lord, I think you can see in that language  3 certain strains of the language of Vitoria in his  4 classical lectures at Salamanca and also in the papal  5 bull, sublimis deus, to which I referred your lordship  6 last week.  You also of course find in there the  7 policy and principles underlying the Royal  8 Proclamation.  9 At the bottom of page 12, soon after the adoption  10 of its new constitution, the First Congress of the  11 United States acted quickly in the exercise of its  12 exclusive federal jurisdiction to impose unequivocal  13 and universally applicable statutory restraints on  14 alienation of Indian land.  15 And at the top of page 13.  16 THE COURT:  What does the American Constitution say about Indian  17 rights?  18 MR. JACKSON:  It says, my lord, the provisions deal specifically  19 with the exclusive federal power to make treaties and  20 also give the federal government the exclusive power  21 to regulate commerce with the Indian tribes.  22 THE COURT:  All right.  23 MR. JACKSON:  Those two provisions have been read by the U.S.  24 Supreme Court to confer exclusive power in relation to  25 the regulation not just of commerce, but of all other  26 matters relating to Indian Affairs, including the  27 question of extinguishment of aboriginal title.  And  28 that's a point which becomes clear in the Marshall  29 cases.  I have set out the particular provisions of  30 the U.S. Constitution, my lord.  I will endeavour  31 that -- they should have been included in our list of  32 statutory materials.  I'll give you the reference to  33 that.  34 At the top of page 13, the first federal  35 legislation is referred to.  Mr. Rush has already  36 dealt with these provisions.  It, as you will see,  37 reflects the same idea as the Proclamation:  38  39 "That no sale of lands made by any Indians, or  40 any nation or tribe of Indians within the  41 United States, shall be valid to any person or  42 persons, or to any state, whether having the  43 right of pre-emption to such lands or not,  44 unless the same shall be made and duly executed  45 at some public treaty, held under the authority  46 of the United States."  47 24205  Submissions by Mr. Jackson  1 And at page 13 I also include the comments of  2 Henry Knox, who was President Washington's secretary  3 of war, who was acknowledged as having been the  4 architect of the Trade and Nonintercourse Act in which  5 he articulates the relationship of Congressional  6 policy in that act to the policy and principles  7 embodied in the Royal Proclamation.  8  9 "The Indians being the prior occupants, possess  10 the right of the soil.  It cannot be taken from  11 them unless by their free consent, or by the  12 right of conquest in case of a just war.  To  13 dispossess them on any other principle, would  14 be a gross violation of the fundamental laws of  15 nature, and of that distributive justice which  16 is the glory of a nation."  17  18 THE COURT:  Is Mr. Knox the author of that statement?  19 MR. JACKSON:  Yes, my lord.  2 0    THE COURT:  Yes.  Thank you.  21 MR. JACKSON:  A number of important legal issues have emerged in  22 recent years in litigation originating in the eastern  23 United States in which Indian tribes have challenged  24 the validity of land transfers executed in a number of  25 the eastern states, on the basis that the lands  26 involved were ceded by treaties made in the 1790's  27 with the states which had never been ratified by  28 federal treaty in clear violation of the Trade and  29 Intercourse Act.  30 And some of those issues, my lord, are ones which  31 are specific to American law and procedure, others  32 however have direct relevance to the issues before  33 this court.  Already Mr. Rush has referred your  34 lordship to the second Mohegans v. Connecticut case  35 when he laid before you the arguments which were  36 accepted in that court as to why the statutory  37 restriction on private sales of land applied not  38 simply to the states west of the Mississippi, but also  39 to the old original states.  The reverse argument, as  40 it were, of what was said in this case, that the  41 Proclamation has a geographical delimitation, that  42 argument was rejected by the U.S. courts in relation  43 to the Trade and Intercourse Act, and of course we are  44 asking your lordship to reject a similar geographical  45 delimitation in relation to the Royal Proclamation.  46 I want to now turn, my lord, to the first of the  47 Marshall decisions.  The case of Fletcher v. Peck, 24206  Submissions by Mr. Jackson  1 which came before the Marshall court in 1810.  One of  2 the things to note about Fletcher v. Peck, it's a  3 point which I will draw your lordship's attention also  4 in relation to Johnson v. Mcintosh, and to the first  5 case we'll be looking at in the Canadian jurisprudence  6 St. Catherine's Milling, is that these cases were  7 litigated in the absence of direct Indian  8 participation.  The issues arose as a result of  9 competing claims by other individuals either claiming  10 through an Indian grant or by virtue of an Indian  11 treaty, and the Indians themselves were not at the bar  12 of the court pleading their case.  13 The central or one of the central issues in  14 Fletcher v. Peck was whether the state of Georgia had  15 the power to convey a property interest in certain  16 western lands that were in the actual possession of  17 the Indians.  In 1795 the Georgia Legislature conveyed  18 the State's interest in these western lands in fee  19 simple to the Georgia company.  Allegations of bribery  20 and other corruption resulted in the voiding of the  21 contract by a subsequent legislature.  In spite of  22 this action, the interest in the lands successfully  23 changed hands, culminating in a conveyance from Peck  24 to Fletcher.  25 And legal scholars who have scanned the record  26 have come to the conclusion that this transaction and  27 the litigation that it produced were feigned in the  28 sense that they were -- the conveyance was drawn in  29 such a way as to require the court to clarify the  30 validity of title and who had the right to grant  31 patents in these western lands in a situation where  32 that clarification had not been forthcoming through  33 legislative acts.  34 The provisions of the contract of sale and the  35 pleadings of the parties were therefore drawn to  36 litigate all possible issues that lent ambiguity in  37 land titles under the original Georgia conveyance.  38 And, thus, one of the recitals, one of the provisions  39 of the deed, Peck in his deed to Fletcher covenanted  40 that "the State of Georgia aforesaid was, at the time  41 of the passing of the Act of the Legislature  42 thereof... legally seised in fee of the soil thereof,  43 subject only to the extinguishment of part of the  44 Indian title thereon".  45 And the parties in their arguments raised many of  46 the issues which continue to be raised and which are  47 before your lordship today as to the nature of the 24207  Submissions by Mr. Jackson  1 Indian title, the nature of the Indian interest, and  2 its relationship to the interest of the crown.  3 And, my lord, that was a complex difficult problem  4 in 1810.  It remains a complex and difficult problem  5 180 years later in 1990.  And one of the purposes of  6 this review of the jurisprudence, my lord, is to give  7 your lordship the basis upon which your lordship can  8 determine what that relationship is.  As you'll see,  9 many courts have grappled with it.  The results are  10 not of one piece.  We say that the relationship is one  11 which is dependent not only on law, it's dependent on  12 evidence and it's precisely because of that that we  13 have tried to place before your lordship all the  14 material necessary for a principle adjudication of  15 what was and remains an extremely complex issue.  16 Arguing for the land companies and for Mr. Peck,  17 John Quincy Adams, who was to become president of the  18 United States in the 1820's, while accepting the  19 proposition -- and I should say, my lord, in these  20 Marshall cases the lawyers acting on all sides read  21 something of a litany of who's who in America in the  22 early 19th century, and the critical and central role  23 played by lawyers in both the legal and political  24 firmament of the United States.  25 THE COURT:  As in this case.  2 6    MR. JACKSON:  Well —  27 Arguing for the land companies and for Mr. Peck,  28 John Quincy Adams, while accepting the proposition  29 that the Indian tribes were independent nations,  30 denied that the Indian title constituted a property  31 right such as to defeat a grant in fee simple by  32 Georgia.  33 And Mr. Adams inquired in his submissions:  34  35 "What is the Indian title?  It is a mere  36 occupancy for the purpose of hunting.  It is  37 not like our tenures; they have no idea of a  38 title to the soil itself.  It is overrun by  39 them, rather than inhabited.  It is not a true  40 and legal possession..."  41  42 I think you'll find the similar sentiments, the  43 idea that Indians don't have rights, they have a sort  44 of territorial roaming over the land, is reflected in  45 some ways in the view taken by Chief Justice Davey in  46 Calder, to which I'll be returning, in other words,  47 this concession has a train of history.  The idea of 2420?  Submissions by Mr. Jackson  1 Indian rights have having a certain limited quality  2 differently from real ownership, one which goes back a  3 long way, and of course we say it's one which goes  4 back to the original debate in Supulveda and Las Casas  5 in 1550.  6  7 "It is not a true and legal possession."  8  9 And he quotes "Vattel, Montesquieu" and the  10 "Smith's Wealth of Nations".  11  12 "It is a right not to be transferred but  13 extinguished.  It is a right regulated by  14 treaties, not by deeds of conveyance.  It  15 depends upon the law of nations, not upon  16 municipal right."  17  18 Of course Mr. Adams does not explain how the many  19 deeds to which I've taken your lordship came to exist  20 but this, of course, was advocacy.  21 My lord, at page 16 I make the point that Mr.  22 Adams, in relying upon Vattel, was relying upon a  23 cultural definition of land tenure which had become  24 prevalent in the law of nations in the 19th century  25 where everything was defined by reference to European  26 institutions.  And thus the writings of Vattel  27 describe Indians as shiftless bands of hunting peoples  28 roaming over the land, and in many ways the theories  29 of international law in the 19th century, not entirely  30 unlike theories of international law in the early days  31 of colonization, were in fact many ways  32 rationalizations of European aspirations and imperial  33 designs on lands, not only in North America, but of  34 course lands in other parts of the world, particularly  35 Africa.  36 This idea that somehow tribalism, the original  37 possession of aboriginal peoples, was not to be  38 accorded the true stature of the status of what  39 Europeans defined as ownership, was a theme which John  40 Quincy Adams had already elaborated on in 1802, and in  41 his famous "Oration on the Anniversary Festival of the  42 Pilgrims", he developed this theme:  43  44 "The Indian right of possession itself stands,  45 with regard to the greatest part of the  46 country, upon a questionable foundation.  Their  47 cultivated fields, their constructed 24209  Submissions by Mr. Jackson  1 habitations, the space of ample sufficiency for  2 their subsistence, and whatever they had  3 annexed to themselves by personal labour, was  4 undoubtedly by the laws of nature theirs.  But  5 what is the right of a huntsman...shall the  6 lordly savage not only disdain the virtues and  7 enjoyments of civilization himself, but shall  8 he control the civilization of a world?  Shall  9 he forbid the wilderness to blossom like the  10 rose?  Shall he forbid the oaks of the forest  11 to fall before the ax of industry and rise  12 again transformed into the habitations of ease  13 and elegance."  14  15 My lord, Dr. Daly in his opinion report referred  16 to the oration of John Quincy Adams.  He linked what  17 he referred to as its "common ethnocentric view of  18 non-agricultural land tenure" to statements made by  19 Joseph Trutch in 1865 where, as Chief Commissioner of  20 Lands for British Columbia, Mr. Trutch expressed a  21 very similar sentiment:  22  23 "The claims of Indians over tracts of lands, on  24 which they assume to exercise ownership, but of  25 which they make no real use, operate very  26 materially to prevent settlement and  27 cultivation."  28  29 And yesterday, my lord, I referred you to  30 dissimilar expressions of opinion made by colonial  31 officials in the Maritimes as justifying the  32 dispossession of Indians of the Mickmacks of even  33 those parts of the reserves which had been granted to  34 them.  35 At page 18, my lord --  36 MR. WILLMS:  My lord, I should point out that that was the  37 portion of Mr. Daly's evidence that was objected to as  38 being a legal analysis, that section of his report.  39 MR. JACKSON:  Well, my lord, it wasn't used by Mr. Daly and we  40 don't use it as legal analysis.  It is to demonstrate  41 the extent to which a particular world view can  42 transform Indians rights to something which, in the  43 provincial government's position, transformed them to  44 matters of sovereign grace which exist at the pleasure  45 of the crown.  46 At page 18, my lord, I note that counsel for Peck,  47 Mr. Adams, argued that the rights of the crown and its 24210  Submissions by Mr. Jackson  1 successor state, the state of Georgia, in the land was  2 one of absolute property, while Indian title gave no  3 right, but only a privilege.  4  5 "The rights of governments are allodial.  The  6 Crown of Great Britain granted lands to  7 individuals, even while the Indian claim  8 existed, and there has never been a question  9 respecting the validity of such grants.  When  10 that claim was extinguished, the grantee was  11 always admitted to have acquired a complete  12 title.  Indian title is a mere privilege which  13 does not affect the allodial right."  14  15 And in that passage, my lord, the province can no  16 doubt trace its -- one of the sources of its position.  17 That's why I say this case is significant to the  18 extent these issues were joined on the very first  19 occasion in which the U.S. Supreme Court was required  20 to adjudicate this issue.  21 Counsel for the plaintiff Fletcher, on the other  22 hand, argued that Georgia could not grant the fee  23 simple to the lands at issue for it had never been  24 seised in fee of them itself.  "They belonged to the  25 Crown of Great Britain, and at the revolution devolved  26 upon the United States, and not upon the State of  27 Georgia."  28 My lord, that in many ways is the issue which of  29 course was before the court in St. Catherine's, the  30 question of where the ultimate title lay, was it with  31 the federal government, or was it with the provincial  32 government at Confederation?  Again you see how these  33 issues have a -- their source in the American cases.  34 The plaintiff later elaborated upon the nature of  35 the crown's interest.  "It was only a right of  36 pre-emption which the Crown had."  37 Now, the decision of the Supreme Court in  38 Fletcher v. Peck is a very long decision and it dealt  39 with, for the most part, all the other issues which  40 were the subject of the litigation.  In fact, the  41 court reserves for almost the very last paragraph of  42 its judgment a statement in relation to aboriginal  43 rights, which is set out at page 19.  I say there on  44 the principal issue before the court, the judgment of  45 the court was in favour of Georgia on the basis that  46 the lands in question, under the terms of various  47 crown grants, Proclamations and treaties, lay within 24211  Submissions by Mr. Jackson  1 Georgia's state boundaries and were therefore within  2 her power to alienate -- in some ways paralleling the  3 position taken by St. Catherine's Milling that the  4 underlying title lay with the province and not the  5 federal government.  6 In relation to the issue of what were the rights  7 of the aboriginal peoples and their relationship to  8 the underlying title of the crown, Chief Justice  9 Marshall said:  10  11 "Some difficulty was produced by the language of  12 the covenant and of the pleadings.  It was  13 doubted whether a state can be seised in fee of  14 lands, subject to the Indian title, and whether  15 a decision that they were seised in fee, might  16 not be construed to amount to a decision that  17 their grantee might maintain an ejectment for  18 them, notwithstanding that title."  19  20 And this is what the court said in a very  21 elliptical statement:  22  23 "The majority of the court is of the opinion  24 that the nature of the Indian title, which is  25 certainly to be respected by all courts, until  26 it be legitimately extinguished, is not such as  27 to be absolutely repugnant to seisin in fee."  28  29 As I say, my lord, the statement is less than  30 self-evident, and Chief Justice Marshall had occasion  31 to elaborate at considerable length upon what exactly  32 is embedded in that compressed statement in Johnson  33 v. Mcintosh and in Worcester v. Georgia.  34 THE COURT:  I don't even know what it means "It is not such as  35 to be absolutely repugnant to seisin in fee".  Does he  36 mean that you could have both, or does he mean that  37 Indian title can be equated or is not repugnant itself  38 to seisin in fee?  39 MR. JACKSON:  My lord, scholars have pondered over exactly what  40 he meant, and if those were the last statements of  41 Chief Justice Marshall, I expect we'll still be  42 wondering what he meant.  4 3    THE COURT:  Yes.  44 MR. JACKSON:  It is our submission that what Chief Justice  45 Marshall was saying there, was that the titles exist  46 contemporaneously.  47 THE COURT:  You mean you can have a fee and an Indian title? 24212  Submissions by Mr. Jackson  1 MR. JACKSON:  Yes, my lord.  2 THE COURT:  That's what you say?  3 MR. JACKSON:  That's what we say, that in fact there is the  4 coincidence of aboriginal title and crown title.  What  5 also we say, and it's explained at the bottom of page  6 19, is that under Anglo-American common law, the owner  7 of a fee simple interest in land could utilize legal  8 procedures, such as the action for ejectment, to gain  9 actual possession.  And, my lord, we say that the  10 passage we cite from the Marshall decision quite  11 clearly shows that the court was not prepared to  12 countenance the grantee of a title from the state to  13 in fact eject the Indians from lands until their title  14 had been lawfully extinguished.  That, of course,  15 would have subverted the principle that only the  16 United States can extinguish aboriginal title and that  17 was beyond the powers of the state of Georgia as  18 reflected in the Nonintercourse Act.  19 And so what the court was saying was that these  20 rights are entitled to legal recognition.  The crown,  21 however, in the state of Georgia has a title, the  22 Indians also have a title, which enables them to  23 retain a legal right to possession.  Now, my lord, all  24 of that you'll see is drawn out and made explicit in  25 subsequent judgments.  26 The dissenting judgment of Mr. Justice Johnson in  27 this case focused greater scrutiny upon the relative  28 relationship between the crown rights and the  29 aboriginal rights.  And he took the position that the  30 tribal title was in fact incompatible with fee simple  31 ownership.  And at page 21, my lord, Justice Johnson  32 sets out his views of the relationship between  33 aboriginal title and crown title.  He says:  34  35 "Can, then, one nation be said to be seised of a  36 fee-simple in lands, the right of soil of which  37 is in another nation?  It is awkward to apply  38 the technical idea of a fee simple to the  39 interest of a nation, but I must consider an  40 absolute right of soil as an interest to them  41 and their heirs.  A fee-simple estate may be  42 held in reversion, but our law will not admit  43 the idea of its being limited after a  44 fee-simple.  In fact, if the Indian nations be  45 the absolute proprietors of their soil, no  46 other nation can be said to have the same  47 interest in it.  What, then, practically, is 24213  Submissions by Mr. Jackson  1 the interest of the states in the soil of the  2 Indians within their boundaries?  Unaffected  3 by particular treaties, it is nothing more  4 than what was assumed at the first settlement  5 of the country, to wit, a right of conquest or  6 of purchase, exclusively of all competitors  7 within certain defined limits.  All the  8 restrictions upon the right of soil in the  9 Indians, amount only to an exclusion of all  10 competitors from their markets and the  11 limitation upon their sovereignty amounts to  12 the right of governing every person within  13 their limits except themselves."  14  15 The judgment of Justice Johnson we say, my lord,  16 makes it clear that the concept of Indian  17 proprietorship of the soil is not the same thing as an  18 estate in land, as its commonly known in English law,  19 but embraces issues of what we say are jurisdiction.  20 However, the nature of the interest is inseparably  21 wedded to the question of land tenure.  And in his  22 judgment Justice Johnson recognized the full scope of  23 aboriginal rights as encompassing both concepts of  24 ownership and jurisdiction as established and  25 memorialized through the treaty process.  26 We'll come back to Justice Johnson's judgment  27 because in certain important elements, my lord, it  28 becomes the majority view of the Supreme Court in  29 Worcester v. Georgia, although again there are  30 modifications.  31 Before dealing with the second case, Johnson v.  32 Mcintosh, we refer your lordship to an opinion of the  33 Attorney-General of the United States in 1821, which  34 is referred to as the Seneca Lands opinion, which we  35 say is a further link in the conceptual legal chain of  36 aboriginal title.  And the Attorney-General speaking,  37 as it were, ex cathedra said in 1821:  38  39 "So long as a tribe exists and remains in  40 possession of its land, its title and  41 possession are sovereign and  42 exclusive... although the indian title continues  43 only during their possession, yet that  44 possession has been always held sacred, and  45 can never be disturbed but by their consent.  46  47 And so again you have the affirmation of the 24214  Submissions by Mr. Jackson  1 consent principle, and we say that this is reflected  2 in judgments of the U.S. Supreme Court afterwards.  We  3 don't hold up that opinion, my lord, as legal  4 authority binding on an American court, let alone  5 binding on your lordship, but simply as part of a  6 chain of historical continuity.  7 And on than point, my lord, and it's one which I  8 will come back to, I want to make it clear that in  9 referring your lordship to these American cases and  10 indeed in referring your lordship to all the American  11 cases, which in the course of our submissions we will  12 be looking at, we are not asking your lordship to  13 Americanize Canadian common law.  We are seeking to  14 demonstrate that in the American cases there are  15 fundamental principles which, as Mr. Justice Strong  16 stated in St. Catherine's Milling, trace a common  17 origin, and are, as it were, the heartbeat of the  18 common law.  And it's for that reason that we refer to  19 the American cases.  20 And I wish now to turn to Johnson v. Mcintosh  21 decided by the Supreme Court in 1823.  Johnson v.  22 Mcintosh is probably the case which has been most  23 frequently cited in subsequent cases, not only in  24 Canada, but in the United States and in other parts of  25 the Commonwealth.  In the case of the Crown v. White  26 and Bob, Mr. Justice Norris referred to it as one of  27 particular importance because:  28  29 "It was delivered at an early stage of  30 exploration of this continent when controversy  31 as to those rights was first becoming of  32 importance."  33  34 That, of course, is aboriginal rights.  35  36 " is to be remembered that it was  37 delivered only five years after the convention  38 of 1818 between Great Britain and the United  39 States ... providing that the north-west coast of  40 America should be free and open for a term of  41 ten years to the vessels, citizens, and  42 subjects of both powers, in order to avoid  43 disputes between the powers.  The rights of  44 Indians were naturally an incident of that  45 implementation of a common policy which was  46 perforce effective as applying to what is now  47 Vancouver Island and the territory of 24215  Submissions by Mr. Jackson  1 Washington and Oregon, all of which were then  2 Hudson's Bay territories.  For these reasons  3 and because the judgment in Johnson v. Mcintosh  4 was written at a time of active exploration and  5 exploitation of the west by the Americans, it  6 is of particular importance."  7  8 And in Calder, Johnson v. Mcintosh was quoted as  9 cited by both Mr. Justice Judson and Mr. Justice Hall,  10 Mr. Justice Hall characterizing the case as "the locus  11 classicus of the principles governing aboriginal  12 title".  13 My lord, the point I wish to make at this  14 juncture, it's the one which is set out at the bottom  15 of page 23 and 24, is that even though Johnson v.  16 Mcintosh has been hailed in these clarion terms, it  17 must be remembered, and as we will demonstrate to your  18 lordship, that some of the statements in Johnson v.  19 Mcintosh are subsequently repudiated and substantially  20 modified in Worcester v. Georgia.  And it has been  21 said by some scholars that in many ways Johnson v.  22 Mcintosh is one of the most misunderstood cases in  23 Anglo-American law.  24 And you'll see that in subsequent decisions, my  25 lord, courts -- and the case of Tee-Hit-Ton is  26 probably the clearest example of this, a passage from  27 one paragraph is plucked out of the air, juxtaposed  28 with the passage from another, and made into a shape  29 which we say bears very little relationship to the  30 original statements of Chief Justice Marshall.  31 Before getting to Johnson vs. Mcintosh and the  32 principles which Chief Justice Marshall set out  33 therein, it's necessary to have some background to the  34 case, and I've set that out at the bottom of page 24.  35 The controversy concerned tracts of lands that lay  36 within the Indian country created by the Royal  37 Proclamation and within the boundaries of the colony  38 of Virginia established by its Royal Charter of 1609.  39 In 1773 and 1775 a group of land speculators had  40 purchased these lands directly from the Illinois and  41 Pinkeshaw nations.  After the revolution, Virginia  42 ceded its interest in the western lands to the United  43 States and the Illinois and Pinkeshaw Indians  44 concluded a treaty with the United States in which  45 they ceded to the U.S. the lands previously granted to  46 the land speculators.  The United States sold part of  47 the ceded lands to the defendant Mcintosh, who was 24216  Submissions by Mr. Jackson  1 sued in an action for ejectment by the plaintiff,  2 Johnson, who was a successor-in-title to one of the  3 original 1775 purchasers.  4 Johnson v. Mcintosh is a case therefore in which  5 the Indian nations were not directly represented,  6 although in essence the dispute was one in which both  7 parties claimed rights derived from the same Indian  8 source:  the one party claiming title to lands under a  9 right of purchase from the Indians directly, that's  10 the 1775 grants, the other party claiming under a  11 grant resulting from a formal treaty of cession  12 between the United States and the Indian nations.  As  13 defined by Chief Justice Marshall, "the inquiry,  14 therefore, is, in a great measure, confined to the  15 power of Indians to give, and of private individuals  16 to receive, a title which can be sustained in the  17 courts of this country".  18 Johnson v. Mcintosh, my lord, is set out in Volume  19 11, tab 22.  These cases, my lord, if your lordship  20 would look at the original report, you'll see the  21 print is tiny.  I have set out in the body of my text,  22 as I have for all the cases we rely upon, the text and  23 again, subject to your lordship's wishes, I would use  24 the text here, both to save your and my friend's  25 eyesight.  They no doubt, to the extent they feel that  26 I'm taking the material out of context, can make those  27 submissions to you.  It is certainly my position that  28 I have not done so and, as I say, in going to the  29 material in my text, rather than the original  30 judgment, I'm seeking both to expedite matters and  31 save considerable strain on all our eyes.  32 My lord, in relation to this particular central  33 inquiry, as identified by Chief Justice Marshall on  34 the power of the Indians to give and of private  35 individuals to receive a title which can be sustained  36 in the courts of this country, the court held that the  37 title of the original land speculators could not be  38 sustained in the courts of the United States.  And one  39 of the principal reasons for that was that, under the  40 Royal Proclamation, British subjects were forbidden to  41 purchase lands from the Indians except with the prior  42 permission of the crown, and in this case, that  43 permission had never been granted nor had the purchase  44 been ratified by the crown.  45 And Mr. Rush has already taken you to certain  46 passages in Johnson v. Mcintosh where Chief Justice  47 Marshall set out his understanding of the legal affect 24217  Submissions by Mr. Jackson  1 of the Proclamation, and that was one of the primary  2 bases upon which the decision was rendered.  3 A second ground upon which the court said the  4 issue had to be determined in favour of the grantee  5 from the United States is one which has been hardly  6 recognized at all in subsequent cases.  And it relates  7 to the court's recognition of the Indian nations'  8 right to determine their own land tenures.  And I've  9 set out at page 26 the particular passage from Chief  10 Justice Marshall's decision which deals with this.  He  11 says:  12  13 "The title of the crown, whatever it might be,  14 could be acquired only by a conveyance from the  15 crown.  If an individual might extinguish the  16 Indian title for his own benefit, in other  17 words, might purchase it, still he could  18 acquire only that title.  Admitting their power  19 to change their laws or usages, so far as to  20 allow an individual to separate a portion of  21 their lands from common stock, and hold it in  22 severality, still it is a part of their  23 territory, and is held under them by a title  24 dependent on their laws.  The grant derives its  25 efficacy from their will; and, if they choose  26 to resume it, and make a different disposition  27 of the land, the courts of the United States  28 cannot interpose for the protection of the  29 title."  30  31 And, my lord, we say that in this passage the  32 Marshall court recognized that the rights adhering to  33 the Indian title derived from a distinct tenurial  34 system based upon original Indian jurisdiction.  What  35 the court, in effect, was saying in this passage is  36 that the Indian nations, acting within their own legal  37 prerogatives, had granted rights to land within their  38 territory.  At a later date they had made a cession of  39 those same lands to the United States without a  40 reservation of the prior rights, therefore, the prior  41 rights were annulled.  42 As I say, my lord, that proposition which we say  43 is a recognition by Chief Justice Marshall of a  44 pre-existing aboriginal system of ownership is one  45 which has not been cited for that proposition in  46 subsequent cases, but we do say that when we get to  47 Worcester v. Georgia your lordship will see how that 2421?  Submissions by Mr. Jackson  1 particular proposition is made into a much more -- a  2 much fuller statement about the pre-existing rights of  3 Indian nations to jurisdiction to internal  4 self-government, including determining the shape of  5 their land tenure.  6 THE COURT:  Well, how do you apply that to this case where the  7 plaintiffs' case has been that the houses rather than  8 the people, as it were, have title?  9 MR. JACKSON:  Well, my lord, Johnson v. Mcintosh did not go into  10 the basis upon which the particular land tenure system  11 of the Illinois Indians was constructed, but what that  12 proposition suggests is that in understanding the land  13 aboriginal rights, one looks at the pre-existing  14 system, and to the extent the pre-existing system is  15 one which organizes rights of ownership and  16 jurisdiction as adhering in houses, then that is the  17 system to which the common law gives effect.  18 THE COURT:  So you would equate for this purpose the individual  19 houses to the Pinkeshaws?  2 0 MR. JACKSON:  Yes, my lord.  21 THE COURT:  Yes.  All right.  22 MR. JACKSON:  There was no evidence in Johnson v. Mcintosh as to  23 the precise nature, so we don't know whether the  24 Pinkeshaws were organized as the Iroquois or as  25 according to the Gitksan or what the shape of their  26 distinctive system was.  2 7 THE COURT:  Thank you.  28 MR. JACKSON:  What Johnson v. Mcintosh is saying there, Chief  29 Justice Marshall is saying there, is they had power to  30 make grants, they had power to remake grants, without  31 reserving the prior ones.  32 The decision, however, in Johnson v. Mcintosh, the  33 judgment, ranges far beyond the resolution of the  34 narrow issue presented to the court, and it contains  35 an elaborate analysis of the rights of European  36 colonial governments in North America and their  37 relationship to the rights of aboriginal peoples.  And  38 it's this analysis which is the central part of its  39 subsequent citation in later cases.  And it's this  40 particular passage, my lord, which has to be placed in  41 the context also of what Chief Justice Marshall said  42 on the same subject a decade later in the Cherokee  43 cases.  44 And I've set out at page 27 the passage which I  45 should have committed to memory by now, but I haven't.  46 I'll read it to your lordship.  47 24219  Submissions by Mr. Jackson  1 "On the discovery of this immense continent, the  2 great nations of Europe were eager to  3 appropriate to themselves so much of it as they  4 could respectively acquire.  Its vast extent  5 offered an ample field to the ambition and  6 enterprise of all; and the character and  7 religion of its inhabitants afforded an apology  8 for considering them as a people over whom the  9 superior genius of Europe might claim an  10 ascendancy... but, as they were all in pursuit  11 of nearly the same object, it was necessary, in  12 order to avoid conflicting settlements, and  13 consequent war with each other, to establish a  14 principle which all should acknowledge as the  15 law by which the right of acquisition, which  16 they all asserted, should be regulated as  17 between themselves.  This principle was that  18 discovery gave title to the government by whose  19 subjects or by whose authority it was made,  20 against all other European governments, which  21 title might be consumated by possession.  22  23 The exclusion of all other Europeans  24 necessarily gave to the nation making the  25 discovery the sole right of acquiring the soil  26 from the natives and establishing settlements  27 upon it.  It was a right with which no  28 Europeans could interfere..."  29  30 It goes on my lord at page 28.  31  32 "In the establishment of these relations, the  33 rights of the original inhabitants were, in no  34 instance, entirely disregarded; but were  35 necessarily, to a considerable extent,  36 impaired."  37  38 And I've underlined the next passage, my lord.  39  40 "They were admitted to be the rightful  41 occupants of the soil, with a legal as well as  42 a just claim to retain possession of it, and to  43 use it according to their own discretion;"  44  45 One of the reasons I've underlined that passage,  46 my lord, is not only because it in our view affirms  47 that these are legal rights, but because this was the 24220  Submissions by Mr. Jackson  1 very passage which Chief Justice Dickson also  2 emphasized by underlining in citing this very passage  3 in his judgment in Guerin v. the Queen, a case of  4 course to which we will be returning.  5  6 "But their rights to complete sovereignty, as  7 independent nations were necessarily  8 diminished, and their power to dispose of the  9 soil at their own will, to whomsoever they  10 please, was denied by the original fundamental  11 principle that discovery gave exclusive title  12 to those who made it.  13  14 While the different nations of Europe respected  15 the right of the natives, as occupants, they  16 asserted the ultimate dominion to be in  17 themselves; and claimed and exercised, as a  18 consequence of this ultimate dominion, a power  19 to grant the soil, while yet in the possession  20 of the natives.  These grants have been  21 understood by all to convey a title to the  22 grantees, subject only to the Indian right of  23 occupancy...  24  25 The history of America, from its discovery to  26 the present day, proves, we think, the  27 universal recognition of these principles. "  28  29 The Chief Justice then reviewed Spanish, Dutch and  30 French colonial practice and analysed the early  31 British colonial charters.  And he concluded that  32 these charters were not limited to "a mere grant of  33 the powers of government", but purport to convey "the  34 soil as well as the right of dominion to the  35 grantees" .  36 And, my lord, the views of Chief Justice Marshall  37 in relation to the effects of the colonial charters is  38 the subject of much greater explication in Worcester  39 v. Georgia, and I'll be coming back to that point.  40 The judgment then traced the nature of the rights  41 which the United States acquired by treaty from  42 Britain.  43  44 "By the treaty which concluded the war of our  45 revolution, Great Britain relinquished all  4 6 claim, not only to the government but to the  47 'propriety and territorial rights of the United 24221  Submissions by Mr. Jackson  1 States', whose boundaries were fixed in the  2 second article.  By this treaty, the powers of  3 government, and the right to soil, which had  4 previously been in Great Britain, passed  5 definitely to these states."  6  7 "Definitively" I think that should be.  8  9 "We had before taken possession of them by  10 declaring independence; but neither the  11 declaration of independence nor the treaty  12 confirming it, could give us more than that  13 which we before possessed, or to which Great  14 Britain was before entitled.  It has never been  15 doubted, that either the United States, or the  16 several states had a clear title to all the  17 lands within the boundary lines described in  18 the treaty, subject only to the Indian right of  19 occupancy, and that the exclusive power to  20 extinguish that right was vested in that  21 government which might constitutionally  22 exercise it."  23  24 Which of course the United States was the United  25 States, and not the States.  26 Chief Justice Marshall then summarized what he saw  27 as the relative rights of the United States and the  28 aboriginal peoples:  29  30 "The United States then, have unequivocally  31 acceded to that great and broad rule by which  32 its civilized inhabitants now hold this  33 country.  They hold and assert in themselves,  34 the title by which it was acquired.  They  35 maintain as all others have maintained, that  36 discovery gave an exclusive right to  37 extinguish the Indian title of occupancy,  38 either by purchase or by conquest; and gave  39 also a right to such a degree of sovereignty  40 as the circumstances of the people would allow  41 them to exercise.  42  43 The power now possessed by the government of  44 the United States to grant lands, resided,  45 while we were colonies, in the crown, or its  46 grantees.  The validity of the title given by  47 either has never been questioned in our courts. 24222  Submissions by Mr. Jackson  1 It has been exercised uniformally over  2 territory in possession of the Indians.  The  3 existence of this power must negative the  4 existence of any right which may conflict with,  5 and control it.  An absolute title to lands  6 cannot exist, at the same time in different  7 persons, or in different governments.  An  8 absolute, must be an exclusive title, or at  9 least a title which excludes all others not  10 compatible with it.  All our institutions  11 recognize the absolute title of the crown,  12 subject only to the Indian right of occupancy,  13 and recognized the absolute title of the crown  14 to extinguish that right.  This is incompatible  15 with an absolute and complete title in the  16 Indians."  17  18 These passages have been repeatedly cited, my  19 lord, and it will be our submission that the way in  20 which judges in both the United States and Canada have  21 used them to characterize the relationship between the  22 crown's "absolute title", as it's referred to in  23 Johnson v. Mcintosh, and the "aboriginal title", has  24 oftentimes been misconceived.  These passages, I  25 should say, my lord, have been the subject of  26 extensive scholarly analysis and I'll be referring to  27 some of that.  28 It is our submission, my lord, that a careful  29 reading of Johnson v. Mcintosh shows that the  30 doctrines of discovery did not vest a complete title  31 to the lands of North America in the discovering  32 nation, but gave it the sole and exclusive rights of  33 acquiring the soil from the native people.  It was, as  34 Lord Dorchester in 1791 and the American Treaty  35 Commissioners in 1793 characterized the crown's  36 rights, a right of pre-emption.  Thus, we say,  37 properly understood, the doctrine of discovery is, as  38 Professor Berman has stated, "a distributional  39 principle by which the European nations determined  40 which of them possessed the exclusive right to  41 extinguish the Indian title by purchase or conquest".  42 And, as a distributional principle, it provided a  43 theory for the acquisition of property directed to the  44 European nations who had participated in its  45 formulation.  In Fletcher v. Peck, Justice Johnson, in  46 his dissenting judgment, had labelled the crown's  47 rights as a pre-emptive right in terms of the 24223  Submissions by Mr. Jackson  1 potential interest it created, but the court in  2 Johnson preferred to call the crown's interest a  3 "title".  But, in legal effect, discovery created a  4 potential interest consensual amongst the European  5 nations and created a monopoly to acquire tribal title  6 and possession.  Professor Henderson has put it this  7 way:  8  9 "Discovery, then, was a distributional  10 preference by which the Europeans agreed to  11 divide up entitlements to acquire tribal  12 lands...It was based on the time of the first  13 discovery of the new continent...All property  14 laws within a land tenure system reflect such  15 distributional preferences in society, and in  16 this regard Discovery is no different.  17  18 Discovery gave a 'title', Chief Justice  19 Marshall wrote in Mcintosh, 'to the government  20 whose subjects, or by whose authority it was  21 made, against all other European governments,  22 which title might be consummated by  23 possession'.  Again, it should be stressed that  24 'title' is used as a perfectable entitlement  25 rather than an already perfect title.  It was a  26 distributional preference the European nations  27 consensually agreed upon as they rejected the  28 previous papal distributional preference to the  29 territory of the New World based on the  30 propogation of Christianity to the natives."  31  32 My lord, if it's a convenient time for your  33 lordship to take a break --  34 THE COURT:  Yes.  All right.  35 MR. JACKSON:  Thank you.  36 THE REGISTRAR: Order in court. Court stands adjourned for a  37 short recess.  38  39 (PROCEEDINGS ADJOURNED FOR MORNING RECESS)  40  41 I hereby certify the foregoing to be  42 a true and accurate transcript of the  43 proceedings herein transcribed to the  44 best of my skill and ability.  45    46 Tanita S. French  47 Official Reporter 24224  Submissions by Mr. Jackson  1 THE REGISTRAR:  Order in court.  2 THE COURT:  Mr. Jackson.  3 MR. JACKSON:  We are at page 32.  I should, my lord, give you  4 the relevant citations for the scholary material I  5 referred to on page 30.  The article by Henderson is  6 found in volume 14, tab 14, and the article by  7 Professor Berman is in the same volume, tab 7.  8 THE COURT: Thank you.  9 MR. JACKSON:  I had made the point before the break, my lord,  10 that the doctrine of discovery was a distributional  11 principle binding as between European sovereigns, and  12 I say at page 32 that the doctrine of discovery was a  13 theory of acquisition that bound European nations, but  14 had only limited impact on the pre-existing rights of  15 the aboriginal people, and this is made explicit by  16 Chief Justice Marshall in his examination of the  17 historical cessions of North American territory  18 between the European Crowns.  And thus in examining  19 the 1763 Treaty of Paris he stated:  20  21 "This treaty expressly cedes and has always been  22 understood to cede, the whole country, on the  23 English side of the dividing line, between the  24 two nations, although a great and valuable part  25 of it was occupied by the Indians.  Great  26 Britain, on her part, surrendered to France all  27 her pretensions to the country west of the  28 Mississippi.  It has never been supposed that  29 she surrendered nothing, although she was not  30 in actual possession of a foot of land.  She  31 surrendered all right to acquire the land; and  32 any after attempt to purchase it from the  33 Indians would have been considered and treated  34 as an invasion of the territories of France."  35  36 And this passage clearly indicates discovery  37 conferred a right to acquire the land from the  38 Indians, an exclusive and contingent title of  39 property, dependent for its perfection upon subsequent  40 acquisition of the land from the Indians.  It is also  41 clear that the doctrine of discovery did not negate  42 aboriginal title, although plaintiffs readily concede  43 that the way in which aboriginal title was  44 characterized in Johnson and Macintosh is less than  4 5 fullsome.  46 And I would refer your lordship back to the  47 initial passage where he says: 24225  Submissions by Mr. Jackson  1  2 "In the establishment of these relations, the  3 rights of the original inhabitants were, in no  4 instance, entirely disregarded; but were  5 necessarily, to a considerable extent,  6 impaired.  They were admitted to be the  7 rightful occupants of the soil, with a legal as  8 well as a just claim to retain possession of  9 it, and to use it according to their own  10 discretion; but their rights to complete  11 sovereignty, as independent nations, were  12 necessarily diminished and their power to  13 dispose of the soil at their own will, to  14 whomsoever they please, was denied by the  15 original fundamental principle that discovery  16 gave exclusive title to those who made it."  17  18 My lord, what has to be kept in mind firmly in  19 Johnson and Macintosh is that the only diminishment,  20 the only impairment which Chief Justice Marshall  21 referred to, was the restraint on alienation to any  22 other than the discovery European nation.  And while  23 from the point of view of the European sovereign doing  24 the discovery, this was characterized as a limitation  25 on the sovereignty of the Indian Nations, as Professor  26 Henderson has pointed out, this limitation was not a  27 limitation of tribal title insofar as the tribe could  28 withhold its land from the holder of an entitlement to  29 purchase.  30 And you recall the words of the Royal  31 Proclamation, my lord, in terms of the lands which the  32 Indians are disposed to sell, a reflection of the  33 similar principle of consent to the acquisition of  34 lands by the European sovereign having the exclusive  35 right as between other European nations to perfect  36 their underlying title, the title made good by  37 discovery.  38 Chief Justice Marshall's use of such terms as  39 absolute title to describe the rights of the Crown and  40 subsequently the United States and the right of  41 occupancy to describe the rights of the Indian Nations  42 seems to indicate a hierarchy of land tenures.  A  43 careful reading of the judgment, we say, reveals that  44 whether the Indian interest is termed title, as it is  45 in some parts of the judgment, or right of occupancy,  46 it is a legal interest to which the Crown's title is  47 subject. 24226  Submissions by Mr. Jackson  1 Chief Justice Marshall's description of the  2 Crown's title as absolute, we say, is used to mean  3 ultimate or radical, in the sense of the Crown's  4 interest in the land acquired by the doctrine of  5 discovery.  In this way the Crown's title and the  6 aboriginal title exist together, the former being  7 subject to the latter.  8 And the Chief Justice in this sense restated and  9 elaborated upon what Fletcher and Peck had already  10 determined, and he referred to Fletcher and Peck and  11 summarized its conclusions in this way:  12  13 "This opinion conforms precisely to the  14 principle which has been supposed to be  15 recognized by all European governments, from  16 the first settlement of America.  The absolute  17 ultimate title has been considered as acquired  18 by discovery, subject only to the Indian title  19 of occupancy, which title the discoverers  20 possessed the exclusive right of acquiring.  21 Such a right is no more incompatible with a  22 seisin in fee, than a lease for years, and  23 might as effectually bar an ejectment.  24  25 In other words, the Indian interest is a legal  26 interest which until extinguishment would bar anyone  27 bringing an action for ejectment, even though they  2 8 have a grant from the Crown.  29 And, my lord, we say that this further development  30 of the relationship between aboriginal rights and  31 Crown rights is elaborated yet further still when  32 Chief Justice Marshall writes the judgment in the  33 Cherokee cases.  34 The Court in Johnson and Macintosh examined two  35 ways of perfecting the Crown's entitlement to acquire  36 the Indian title created by the doctrine of discovery.  37 One being conquest, and the other one being purchase.  38 Now, in the context of the fact situation before  39 the Court, the Court clearly validated purchase theory  40 rather than any conquest theory for both parties to  41 the litigation sought to trace their title through  42 purchase from the Indians, and the holding of the  43 court was that a purchase from an Indian nation  44 creating an interest under the tribal tenure system  45 could be annulled in a later treaty cession between  4 6 the Indian nation and the federal government.  47 However, the language used by Chief Justice 24227  Submissions by Mr. Jackson  1 Marshall in subsequent passages in the judgment has  2 created what has been called, by some of the learned  3 commentators, a judicial mythology of conquest, and  4 Johnson and Macintosh has been cited as authority for  5 the fact that America is acquired by conquest most  6 recently by U.S. Supreme Court in Tee-hit-on.  And we  7 say that these passages are also problematic in terms  8 of articulating a theory of aboriginal rights premised  9 upon fundamental principles, because insofar as they  10 suggest, that courts of law in fashioning a juris  11 prudence of aboriginal rights are involved in  12 ratifying and legitimating the process of  13 colonization, they do so even in the face of the clear  14 historical record and fundamental principles of  15 justice.  And the passage I am going to read to Your  16 Lordship is one again which has been much cited in  17 later cases.  The Chief Justice said.  18  19 "We will not enter into the controversy whether  20 agriculturalists, merchants, and manufacturers,  21 have a right, on abstract principles, to expell  22 hunters from the territory they possess, or to  23 contract their limits.  Conquest gives a title  24 which the courts of the conqueror cannot deny,  25 whatever the private and speculative opinions  26 of individuals may be, respecting the original  27 justice of the claim which has been  28 successfully asserted.  The British government,  29 which was then our government, and whose rights  30 have passed to the United States, asserted  31 title to all the lands occupied by Indians  32 within the chartered limits of the British  33 colonies.  It asserted also a limited  34 sovereignty over them, and the exclusive right  35 of extinguishing the title which occupancy gave  36 to them.  These claims have been maintained and  37 established as far west as the Mississippi by  38 the sword.  The title to a vast portion of the  39 lands we now hold originates in them.  It is  40 not for the courts of this country to question  41 the validity of this title, or to sustain which  42 is incompatible with it."  43  44 And, my friend informs me there is three dots now  45 before the next passage, my lord.  4 6    THE COURT:  Yes.  4 7    MR. JACKSON: 2422?  Submissions by Mr. Jackson  1  2 "... however extravagant the pretention of  3 converting the discovery of inhabited country  4 into conquest may appear, if the principle has  5 been asserted in the first instance, and  6 afterwards sustained; if a country has been  7 acquired and held under it; if the property of  8 the great mass of the community originates in  9 it, it becomes the law of the lands, and cannot  10 be questioned.  So too, with respect to the  11 concomitant principle, that the Indian  12 inhabitants are to be considered merely as  13 occupants, to be protected, indeed, while in  14 peace, in the possession of their lands, but to  15 be deemed incapable of transferring the  16 absolute title to others.  However, this  17 restriction may be opposed to natural right,  18 and to the usages of civilized nations, yet, if  19 it be indispensable to that system under which  20 the country has been settled, and be adapted to  21 the actual condition of the two people, it may,  22 perhaps, be supported by reason, and certainly  23 cannot be rejected by courts of justice."  24  25  2 6    THE COURT:  I don't know what he is talking about there about  27 conquest.  28 MR. JACKSON:  Well, my lord, I'll — your comment is a  29 perceptive one.  A number of people have wondered what  30 he meant when he talked about conquest.  And in fact  31 the conquest which he seems to be referring to about  32 maintaining the title of the crown as far west as the  33 Mississippi by the sword, it has been suggested that  34 the whole reference to conquest in this passage is so  35 ahistorical in terms of the actual acquisition of  36 lands by the Americans, that what he meant in this  37 passage was the conquest by the British of the French.  38 And that probably is the only way to make any sense of  39 this passage.  40 You will see, my lord, in the passage immediately  41 after this citation, I cite from the distinguished  42 American Indian rights scholar Felix Cohen, where he  43 notes what Chief Justice Marshall had to leave out of  44 his analysis if indeed he was attempting to convert  45 the acquisition of America into a conquest.  46 "Notwithstanding the prevailing mythology", Professor  47 Cohen tells us, "the historical fact is that 24229  Submissions by Mr. Jackson  1 practically all of the real estate acquired by the  2 United States since 1776 was purchased not from  3 Napolean or any other emperor or Czar, but from its  4 original Indians owners."  5 THE COURT:  Why do you limit that to 1776?  6 MR. JACKSON:  I do not so limit it, my lord.  In fact, as we  7 have attempted to show, the persistent, consistent  8 pattern and practise of the British prior to 1776 was  9 acquisition by purchase, although, of course, there  10 were periods where warfare prevailed.  I already  11 informed Your Lordship of what happened to Virginia  12 and ways in which lands were acquired by a combination  13 of purchase and conquest in Virginia.  And I make that  14 point at the bottom.  15 We have analyzed prior to 1776 that the western  16 expansion of the colonial governments was predicated  17 upon the principle of land cessions through treaty.  18 It is of particular significance, my lord, that in  19 Johnson and Macintosh there is no reference to any of  20 the treaties made between the British colonies and the  21 aboriginal peoples.  And one of the things which  22 Worcester and Georgia does, as it were, in this  23 evolutionary process of explaining the legal  24 relationships between aboriginal peoples and the  25 Crown, and subsequent the United States, is that what  26 Worcester and Georgia does for the building up of  27 these blocks of the common law is to insert into the  28 analysis the treaty process.  And so Worcester and  29 Georgia adds to Johnson and Macintosh this very  30 important overlay of treaty making, and that is why  31 that it is Worcester and Georgia that we get the  32 fullest statement of a doctrine of aboriginal rights,  33 which takes into account the history and the law, and  34 brings them together in a principle union.  35 And I say at page 37, the reference to conquest is  36 so ahistorical that several of the legal commentators  37 have pointed out that when the reference -- that the  38 reference to conquest in these passages is better  39 viewed as directed against the -- not the Indian  40 nations, but rather other European nations in the same  41 way as the distributional principle of discovery.  42 But in any event, my lord, whatever Chief Justice  43 Marshall may have been talking about when he talked  44 about conquest, it is clear that nothing turns on the  45 mythology of conquest in terms of the pre-existing  46 rights of the Indians.  Whether by virtue of discovery  47 or by virtue of conquest, we say that Johnson and 24230  Submissions by Mr. Jackson  1 Macintosh stands for the legal recognition of the  2 co-existing title of the Crown with that of the Indian  3 Nations and the exclusive right of the Crown to  4 acquire that Indian title.  5 The last point I want to make about Johnson and  6 Macintosh and Fletcher and Peck is that in both cases  7 the Supreme Court affirmed the right of the Crown and  8 United States thereafter to make grants of land still  9 in the possession of the Indians, such grants being  10 subject to the Indian title and not taking effect in  11 possession until the lands had been acquired with  12 Crown authorization.  And we have already described,  13 my lord, how this position stands in contrast to that  14 which was taken in Upper Canada in the  15 post-Proclamation period, which I addressed yesterday  16 afternoon, yesterday morning, I think, where lands in  17 possession of the Indians which had not been purchased  18 through treaty were considered by the executive  19 council of Upper Canada as being beyond their  20 jurisdiction to grant.  21 And the difference for the -- between the position  22 taken by the U.S. Supreme Court on this and the  23 position taken in Upper Canada is, I think, explained  24 in a decision again of the U.S. Supreme Court in 1839.  25 It's the decision of Clark and Smith, where Mr.  26 Justice Catron explained the American position in this  27 way.  And that can be found, my lord, in volume 11 of  28 our books of authorities at tab 7.  And Mr. Justice  29 Catron said that:  30  31 "In the colonial Charters, a great portion of  32 the individual grants by proprietary and Royal  33 governments, and a still greater portion by the  34 states of the union after the revolution were  35 made for lands within the Indian hunting  36 ground.  North Carolina and Virginia to a great  37 extent paid their officers and soldiers of the  38 Revolutionary War, by such grants; and  39 extinguished the arrears due the army by  40 similar means.  It was one of the great  41 resources that sustained the war, not only by  42 these states but others.  The ultimate fee  43 (encumbered with the Indian right of occupancy)  44 was in the Crown previous to the Revolution,  45 and in the States of the Union afterwards, and  46 subject to grant.  This right of occupancy was  47 protected by the political power, and respected 24231  Submissions by Mr. Jackson  1 by the courts until extinguished."  2  3 THE COURT:  When he states there, "and in the States of the  4 Union afterwards", does he mean the United States?  5 MR. JACKSON:  He means the individual states.  6 THE COURT:  He does?  7 MR. JACKSON:  Yes.  Because in Fletcher and Peck, my lord, the  8 Court had determined that the ultimate title in lands  9 after the revolution was in the individual states,  10 even though the exclusive power of negotiating with  11 the Indians for extinguishment of those rights was in  12 the United States, in that way exactly paralleling the  13 position taken by the Supreme Court -- by the courts  14 in St. Catherine Milling.  15 I wish now, my lord, to turn to the Cherokee  16 cases.  These cases are the decisions of the Supreme  17 Court in Cherokee Nation and Georgia and Worcester.  18 Before doing so, I want to make a number of  19 observations, my lord.  Fletcher and Peck and Johnson  20 and Macintosh, as I have said, did not involve  21 aboriginal peoples as either plaintiffs, which should  22 be, or defendants at the top of 39.  The Cherokee  23 case, however, presented the United States Supreme  24 Court with an actual controversy over the scope of  25 aboriginal rights to ownership and jurisdiction, in  26 which an Indian nation was directly involved.  And the  27 factual background to the Cherokee cases is of  28 cardinal significance not only to understand the legal  29 issues involved in the cases, but also because -- and  30 this is of crucial importance -- because the  31 background to the Cherokee cases speaks directly to  32 the federal government's position in this case on  33 extinguishment, diminution and abandonment of  34 aboriginal rights in the Gitksan and Wet'suwet'en  35 territories.  And I have referred Your Lordship, and  36 I'll read it again, the position of the federal  37 government as directed to the plaintiffs of this court  38 last December:  39  40 "With regard to abandonment, proof of aboriginal  41 rights requires continued traditional use and  42 occupation of the various parts of the claim  43 area.  Wherever evidence demonstrates that the  44 plaintiffs' traditional use and occupation of  45 an area has been discontinued for a significant  46 period of time or that their traditional way of  47 life has been altered so that traditional 24232  Submissions by Mr. Jackson  1 activities of use and occupation have been  2 largely replaced by non-traditional activities,  3 then aboriginal rights to that area are lost.  4 This lack of continued use can be considered as  5 an abandonment of the traditional use and  6 occupation necessary to establish aboriginal  7 rights."  8  9 And, my lord, that position is expanded in the  10 federal government's summary of argument at pages 45  11 to 46.  12 It is our submission, my lord, that the  13 affirmation of the aboriginal rights to ownership and  14 jurisdiction of the Cherokee nation by the Supreme  15 Court in the great case of Worcester and Georgia,  16 notwithstanding the dramatic changes that took place  17 in the traditional activities of the Cherokees in the  18 18th and 19th centuries, stands as the clearest  19 repudiation of the federal defendant's position.  20 And, my lord, in order to explain that, it is  21 necessary for me to go into some detail as to the  22 nature of the changes which the Cherokee nation went  23 through in the 18th -- 17th and 18th centuries.  24 THE COURT:  Mr. Jackson, let me go back just for one minute to  25 what we are talking about a moment ago.  You say that  26 Fletcher and Peck decide that the -- after the  27 revolution the lands were held by the states subject  28 to the Indians' right of occupation?  2 9 MR. JACKSON:  Yes, my lord.  30 THE COURT:  But with the federal government having the sole  31 right to acquire the lands.  32 MR. JACKSON:  To negotiate for the extinguishment of those  33 rights, yes.  34 THE COURT:  And upon extinguishing, that land remain within the  35 individual states?  36 MR. JACKSON:  Yes, my lord, free of the burden of the Indian  37 title.  38 THE COURT:  Uh-huh.  All right.  Thank you.  39 MR. WILLMS:  My lord, my friend's argument from pages 40 to 71  40 is primarily a recapitulation of McLoughlin, the  41 Cherokee Renascence in the New Republic, which is  42 Exhibit 1250-12 for Identification.  And I wonder if  43 my friend -- I mean, it's eminently readable whether  44 it's in a condensed version that my friend has  45 prepared here, or whether it's in the original  46 McLoughlin is eminently readable as well, and I wonder  47 if it's really necessary to go through 31 pages of 24233  Submissions by Mr. Jackson  1 McLoughlin describing the nature and character of the  2 Cherokee nation, its written constitution and all of  3 those kinds of things, the ultimate removal of the  4 Cherokee, whether that couldn't just be better left  5 for all of us to read.  6 THE COURT:  Well, I suppose Mr. Jackson's adopting this as his  7 argument.  8 MR. JACKSON:  Yes, my lord, and I have very good reasons to take  9 Your Lordship through it.  All of my argument, my  10 lord, I would hope, is eminently readable, and --  11 THE COURT:  Your friend says it is anyway.  12 MR. WILLMS:  This part.  13 MR. JACKSON:  I have good reasons, my lord, to take Your  14 Lordship to particular passages in this material.  As  15 I said, because it directly bears upon not only  16 understanding the issues which the Supreme Court of  17 the United States had to deal with --  18 THE COURT:  Yes.  19 MR. JACKSON:  — and the role of the court in the affirmation of  20 the rights of Indian Nations, but it directly bears  21 upon a principle defense of the federal defendant in  22 this case, that because of changes in the traditional  23 way of utilizing resources, changes in the traditional  24 method of life of the plaintiffs, their rights have  25 been lost.  And therefore I say this material is of  26 cardinal significance.  27 THE COURT:  How you use your time, Mr. Jackson, is your  28 decision.  29 MR. JACKSON:  Thank you, my lord.  30 My lord, at page 40, and I will just be  31 highlighting this material, I note that the Cherokees  32 were an Iroquoian people who centuries before the  33 English came to North America had been driven south  34 out of the Iroquoian area north of the Ohio River, and  35 by 1700 they had been established for several  36 centuries in the southern most part of the  37 Appalachians in what is and was to become the States  38 of West Virginia, the Carolinas, Kentucky, Tennessee,  39 Georgia and Alabama.  40 Their population at the time of contact was around  41 20,000 individuals, or about 4,000 families, and they  42 were organized in various towns and villages.  The  43 Cherokees in and around 1700 had lived a sedentary  44 life that was balanced between hunting, and I'm on  45 page 41, agriculture, military and ceremonial  4 6 activities, and every town had a communal garden in  47 which women, children, old men cultivated various 24234  Submissions by Mr. Jackson  1 kinds of crops.  2 At the bottom of page 41.  The hunting component  3 of their economy was done by the men in fall and  4 winter, again was deer, elk, moose, buffalo.  The  5 implements for hunting are set out at page 41.  They  6 were made from indigenous components.  7 Page 42, my lord, I note that the Cherokees had no  8 centralized political system in the 18th century.  9 Each town was self-sufficient and self-governed.  They  10 lived by well established unwritten customs.  Both men  11 and women could speak in town council meetings, which  12 chose and could demote the chiefs or headmen in each  13 town.  While town councils might act totally  14 independent to each other, national councils were  15 occasionally called in the 18th century to deal with  16 major problems of war, peace or trade alliance that  17 concerned all the towns.  No national or town  18 authorities were empowered to maintain a police or  19 court system; the councils exercised no coercive power  20 over individuals.  21 We see at the bottom of 42 that the nature of  22 Cherokee's organized society bears strong similarities  23 with that of the Gitksan and Wet'suwet'en.  Tribal  24 unity came in part from the common customs and  25 language, but was more derived from the clan kinship  26 system.  The Cherokees had seven matrilineal exogamous  27 clans to which all Cherokees belonged, and this  28 provided the basic cohesion and social infrastructure  29 of the nation.  Each clan had its own totemic name.  30 And the clan system governed marriages, provided  31 protection for members, regulated incest and homicide  32 and provided a matrilineal kinship system that ordered  33 family life and inheritance.  Members of all seven  34 clans inhabited each town, and thus clan unity  35 transcended town self-government and kinship united  36 all the towns.  Every town council had seven sides and  37 people seated themselves by clan at council meetings,  38 even though this separated wives from husbands and  39 children from fathers.  No one could marry someone of  40 his or her own clan.  41 So, my lord, you see that the arrangements, as it  42 were, institutional arrangements through the clan  43 system have some distinct parallels with the  44 plaintiffs.  45 Social order was maintained by clearly understood  46 and faithfully carried out responsibilities of  47 kinship, respect, honour and mutuality.  The Cherokees 24235  Submissions by Mr. Jackson  1 believed that there was also a distinct spiritual  2 order in the world that must -- had to be respected  3 and be sustained.  4 At the bottom of page 43, my lord, I make the  5 point -- Professor McLoughlin makes the point socially  6 unacceptable actions such as lying or stealing,  7 failing to respect the chiefs or one's elders,  8 refusing to grant hospitality, caused offenders to be  9 held up to scorn and ridicule.  And the evidence you  10 have heard, my lord, in this case shows the important  11 power of censure, the social condemnation removed from  12 coercive power of what we regard as the law, is an  13 important hallmark of Gitksan and Wet'suwet'en  14 maintenance of order.  15 At page 44 further down the page.  Although  16 Europeans, finding no written law, courts or police  17 system among the Cherokees, concluded that they had no  18 laws, the unwritten laws were clearly understood and  19 faithfully carried out.  The Cherokee belief system  20 imposed both a rigid personal morality and an intense  21 communal ethic.  It integrated their lives into a  22 clear, cohesive and meaningful order.  23 Similarly European observers often said that the  24 Cherokees had no religious systems because no  25 churches, shrines, idols or state-supported priesthood  26 were found.  But the Cherokees led a life that was  27 infused with spritual significance in every respect.  28 There was no secular area of life free from spiritual  2 9 meaning.  30 And, my lord, at page 45, again Justice McLoughlin  31 notes that the Cherokees maintained a regime of prayer  32 and rituals designed to renew their connection with  33 the spiritual record.  Again bearing clear parallels  34 to some of the evidence you have heard in this case.  35 At the bottom of page 45 Professor McLoughlin  36 traces the colonial relationships with Europeans in  37 and the Cherokees.  The Cherokees had first met  38 Europeans in 1540, when Hernando de Soto's expedition  39 passed through their territory in its search for the  40 seven cities of gold.  41 The Cherokees met other explorers in the 17th  42 century, and it was in the mid-1600's that they first  43 met the British who settled in Virginia.  But it was  44 not until the late 17th century that they came into  45 regular contact with the closer British settlements in  46 South Carolina.  When the Cherokees began to obtain  47 guns in large numbers from the English colonists, they 24236  Submissions by Mr. Jackson  1 inaugurated the first phase in the transformation of  2 their traditional way of life.  The transition from a  3 stable hunting, gathering, farming society with a  4 subsistence economy and an internally oriented  5 communal order to a mobile, free-trade market with  6 heavy reliance on European trade goods and alliances.  7 With guns the Cherokees could not only better support  8 their military strategies, but they could also kill  9 deer more easily, and with deer skins they could enter  10 regular trading relations with the English to the east  11 of them, the Spanish to the south, and the French to  12 the southwest.  By obtaining more guns, steel traps,  13 sharp knives and hatchets, the Cherokees enlarged  14 their participation in the fur-trade.  By 1725 it had  15 become the central feature of their lives.  16 And, my lord, at the bottom of page 46 Professor  17 McLoughlin notes the change which this brought about  18 in the traditional life of the Cherokees.  19 As the occupation of Cherokee men changed, so did  20 the lives of their families.  Women welcomed  21 manufactured goods that made their lives easier.  They  22 learned to use steel needles, scissors and threads  23 rather than bone needles, sinew and buckskin.  24 The next page, my lord.  With heavy steel axes,  25 Cherokee men built different styles of houses and  26 boats, and they developed a more intensive form of  27 agriculture, an increasing reliance upon domestic  28 livestock and a new diet.  29 At page 47 at the bottom Professor McLoughlin  30 again notes how regular contact with Europeans had  31 other effects upon Cherokee life as well, in  32 particular the extent to which disease, European  33 induced disease dealt a deadly toll to the Cherokees,  34 and in the mid-18th century half their population was  35 killed off by smallpox.  36 And again making somewhat of a parallel to what  37 Mr. Brody testified before you, the impotence of  38 traditional Cherokee doctors and priests to make sense  39 of what was happening to the Cherokee, led to a  40 waning, I think, of faith in the traditional healers  41 and medicine men of the Cherokee.  42 Professor McLoughlin at 48 also makes the point  43 that the introduction of European presence and trade  44 relation brought about some changes to the Cherokee  45 political organization.  Colonial governments wanted  46 to bargain with heads of state whose agreements would  47 bind the whole nation.  Finding that the Cherokees had 24237  Submissions by Mr. Jackson  1 no such national chief or political unity, the English  2 tried to create a King to unite them.  And in later  3 years the succession of chiefs were assumed by the  4 English to speak for the whole nation.  5 And, my lord, there is some remarkable English  6 portraits done by the leading portrait artists of the  7 day of groups of Cherokee chiefs taken to London to  8 meet the British King dressed up in their traditional  9 costumes.  10 By the middle of the 18th century the sharp  11 dealings by British traders led to increasing friction  12 between the Cherokees and the British colonial  13 authorities.  When the Seven Years War broke out in  14 1756, the Cherokees at first honoured their alliance  15 with England, but after several unprovoked assaults  16 upon them by Carolina frontiersmen many Cherokees  17 allied with the French.  An army of English  18 frontiersmen invaded Cherokee towns, burning the  19 houses and granaries, laying waste to crops and  20 slaughtering men, women and children.  Over a dozen of  21 the Cherokee lower middle towns nearest to the  22 Carolinas were destroyed in 1760.  23 My lord, previously in these submissions we have  24 shown how in the drawing of the boundary line between  25 colonial settlement and the Indian territory, treaties  26 were negotiated with the Cherokees to define that  27 line, and I note at page 49 particularly the treaties  28 of hard labour, and the Treaty of Lochaber.  29 You recall, my lord, the Treaty of Lochaber was a  30 treaty in which there is an explicit reference to an  31 amending formula that the boundary can only be changed  32 by mutual consent.  33 The compliance with the public treaty making  34 process reflected in those treaties stood in stark  35 contrast to the land cession made in 1775 when a group  36 of Kentucky settlers persuaded a handful of the  37 Cherokee chiefs to sell them for a cabin full of trade  38 goods, the whole upper half of their hunting ground.  39 A transaction in flagrant disregard of the provisions  40 of the Royal Proclamation.  And therefore we say at  41 page 49 it is not surprising that in light of the  42 respect which British authorities had shown for  43 Cherokee rights and its disregard by colonial  44 frontiersmen, that when the war of the American  45 Revolution broke out the Cherokees fought on the  46 British side.  The Cherokees became embroiled in  47 intensive hostilities and again dozens of the Indian 2423?  Submissions by Mr. Jackson  1 towns east of the Appalachians were subject to  2 devastation.  And in addition settlers in what became  3 Kentucky and Tennessee attacked Cherokee towns west of  4 the Appalachians.  Several thousand Cherokees became  5 homeless, fleeing to the southwest.  6 In 1777 the chiefs signed treaties with the  7 eastern states of the new American nation ceding over  8 8,000 more square miles.  This time the land ceded was  9 not only hunting grounds, but the sites of some of  10 their oldest towns, in which their people had lived  11 for centuries.  They were expelled from Virginia and  12 lost all but a tiny tract of South Carolina, their  13 territory in North Carolina and what is now Tennessee  14 was cut in half, and was a further large cession in  15 1783.  16 Many of the Cherokee chiefs were angered not only  17 by the fraudulent cession made in 1775, but also by  18 the quick peace signed with the American  19 revolutionaries by the same chiefs in 1777.  And a  20 number of these chiefs gathered together those of the  21 nation who were still willing to fight, and with the  22 displaced families from the eastern part of the nation  23 they moved to the far southwestern area of the nation  24 where they founded a series of new towns along the  25 Tennessee River in what is now Northern Alabama.  26 So you have here, my lord, a major migration, not  27 3,000 years ago, but 5,000 years ago after the  28 revolution in the late 18th century.  29 And these new townships which were established by  30 the Cherokees were called the lower towns partly  31 because so many of the Cherokees who moved there came  32 from the old lower towns in their former homelands in  33 South Carolina.  34 My lord, the Treaty of Versaille between Britain  35 and the New American Confederacy in 1783 made no  36 mention of the Cherokees or of the other Indian allies  37 of the British.  However, in 1785 the Continental  38 Congress made the first national treaty for the United  39 States with the Cherokee nation at Hopewell.  And the  40 terms of the Treaty of Hopewell are the subject of  41 extensive comments by Chief Justice Marshall in  42 Worcester and Georgia.  And at page 51 I set out  43 briefly that -- the terms of that treaty, in addition  44 to providing for peace, define the territorial limits  45 of the Cherokee nation in exchange for guarantee of  46 territorial integrity, the Cherokees acknowledge  47 themselves to be under the protection of the United 24239  Submissions by Mr. Jackson  1 States and agreed that the United States shall have  2 the sole and exclusive right of regulating the trade  3 with the Indians.  4 At page 52, my lord I make the point that the  5 Treaty of Hopewell proved to be a weak reed upon which  6 the Cherokee could secure protection of their  7 territory.  The inability of Congress after 1785 to  8 compel North Carolina to eject its citizens from farms  9 which they had established within the Cherokee  10 boundaries led to the resumption of hostilities.  And  11 after North Carolina had ceded its western lands in  12 what is now Tennessee to the federal government in  13 1790, the United States negotiated -- pursuant to its  14 exclusive treaty making power, negotiated a further  15 treaty to renew the peace in 1791.  This is the treaty  16 of Holston.  And again it's the subject of detailed  17 analysis in Worcester and Georgia.  And under that  18 treaty they agreed to yield up yet more lands in  19 eastern Tennessee in return for a guarantee from the  20 federal government that all their lands not herein  21 ceded would be protected.  22 Now, my lord, at this stage of the history of the  23 Cherokee nations, Professor McLoughlin sums up where  24 they were compared to 1700.  The nature of the changes  25 in their traditional society.  26  27 "Their population was barely 10,000;  28 three-fourths of the land had once considered  29 theirs was closed to them...; over half of  30 their towns were destroyed and ceded to the  31 United States; those who lived in those towns  32 had to move into what was left of the nation  33 and start over again.  Precisely how much  34 independence was left to them as a people was  35 unclear.  Although they continued to follow  36 their traditional patterns as much as possible,  37 they found it increasingly difficult to make a  38 living.  The fur trade upon which they had  39 depended for almost a century was now so small  40 that the hunters had to stay out longer and  41 travel further each winter to make a good  42 catch.  Their old hunting grounds were filling  43 up with white hunters and often with illegal  44 white squatters.  The federal government had  45 promised in 1719 to help them make a living as  4 6 herdsmen and farmers but the Cherokees knew  47 little about the kind of horse-and-plow farming 24240  Submissions by Mr. Jackson  1 needed to support a family, nor did Indian  2 wives know how to be farmers' wives.  The  3 Cherokees seemed unable, even in peace, to  4 regain the stability, harmony, and order they  5 had known in the past.  Nor were their  6 religious ceremonies any longer able to give  7 them a sense of control over their destiny.  8 They now lived on a different part of their  9 land from that of their will ancestors ..."  10  11 The next paragraph sets out the effect of  12 intrusion of whites into their territory.  13  14 "On the other hand, many whites had come to live  15 among them ... their children did not speak  16 Cherokee or know Cherokee customs.  The white  17 men and their foreign speaking European dressed  18 children, when grown, proved helpful in certain  19 ways.  They understood the language and customs  20 of whites and provided useful knowledge as well  21 as serving as interpreters for Cherokee  22 leaders.  However, many of the whites who fled  23 to Cherokee towns were outlaws, renegades,  24 bankrupts, and confidence men ... these white  25 men were not part of any clan; a few were  26 adopted into a clan, but not many.  White  27 husbands did not respect the Cherokee customs  28 regarding the right of of the wife to her own  29 be property, her right to her house and  30 children, her right to live in her own town  31 near her kin; they refused to accept the  32 matrilineal practise of inheritance ...  33 Life in 1794 was far different from life in  34 1694.  Confusion in their culture made it hard  35 for the older generation to fulfill their roles  36 as leaders, teachers and guides for the young.  37 So much that had been true for parents and  38 grandparents simply was not applicable to the  39 lives of the rising generations.  Cultural  40 persistence was powerful; most tried to retain  41 old patterns as best they could once peace was  42 attained.  But it seemed unlikely that they  43 could ever return wholly to the old ways.  A  44 new, and as yet unspecified, way of life had to  45 be found to fit their new circumstances.  46 Somehow they had to revitalize their culture by  47 combining old ways with new ways or by finding 24241  Submissions by Mr. Jackson  1 Cherokee versions of white ways."  2  3 Such was the situation the Cherokee faced, my  4 lord, at the end of the 18th century.  5 And without drawing direct parallels between the  6 Cherokees and the Gitksan and Wet'suwet'en any  7 particular point of their history, my lord, I think  8 Your Lordship can see certain things there which could  9 be applied to the position facing the  10 Gitksan-Wet'suwet'en at times in this century.  11 My lord, enter now the State of Georgia and the  12 gravamen of what led to the Cherokee cases.  Under the  13 Treaty of Holston the Cherokees retained some five  14 million acres of their territory within the borders of  15 the State of Georgia.  In 1802 Georgia ceded to the  16 United States all its western lands, and these were  17 ultimately to become the States of Alabama and  18 Mississippi.  The cession was conditioned, my lord,  19 upon the requirement that the United States, pursuant  20 to its exclusive power, would extinguish all Indian  21 claims to lands within the limits of Georgia, as soon  22 as it could be peacefully done and on reasonable  2 3 terms.  24 THE COURT:  Is that the five million acres?  25 MR. JACKSON:  Yes, my lord, the idea that the federal government  26 would enter into further treaties with the Cherokees  27 to acquire that land, extinguish the aboriginal title  28 of the Cherokees, that land would then belong to  29 Georgia.  30 However, my lord, you will see at pages 54 and 55,  31 that the Cherokees were reluctant to cede any more  32 lands following a cession which had been made in 1805  33 and 1806 of what in fact were the last of its hunting  34 lands.  This cession was characterized by some sharp  35 dealing, some fraud and bribery, and as a result of  36 the transaction some ten million acres of hunting  37 land -- I think it should be ten thousand actually --  38 were closed out as an economic and cultural activity  39 which had profound social and psychological  40 significance.  41 And Professor McLoughlin makes the point at page  42 55 that the loss of their hunting grounds for the  43 Cherokee was akin to a Roman Catholic losing the Latin  44 mass.  It was a matter of profound social,  45 psychological and economic importance.  46 But it reaffirmed in the Cherokee that they would give  47 up no more of their lands.  And this in fact led to 24242  Submissions by Mr. Jackson  1 the ultimate, eventual conflict between the Cherokees  2 and the State of Georgia.  3 But before we get to that conflict and its  4 immediate origins of the Cherokee cases, further  5 remarkable events took place in Cherokee country  6 between 1805 and the point at which the Supreme Court  7 of the United States was called upon to adjudicate  8 upon the rights of the Cherokees.  And those changes,  9 my lord, are what we say are changes which defy the  10 federal government's position that changes in  11 traditional patterns of economy of political culture  12 can in fact leave to the abandonment of rights.  And  13 the changes in Cherokee society between 1805 and the  14 point at which the Supreme Court was called upon to  15 determine their rights has been described by Professor  16 McLoughlin as a Renascence.  And its essence, at the  17 top of page 56, was the establishment of a distinct  18 national identity firmly grounded in economic  19 self-sufficiency and political self-determination.  20 And Professor McLoughlin talks about the nature of the  21 Cherokee Renascence in the early 19th century.  And he  22 says:  23  24 "Statistical measurements for economic growth  25 are available by the comparing the censuses of  26 1806, 1826 and 1835.  The Censuses reveal an  27 astonishing though incomplete picture of  28 advances in numerous aspects of Cherokee life -  29 in population, productivity, resources,  30 educational skills and enterprise.  In  31 addition, the codified laws of the nation from  32 1808 to 1827 revealed the rapid elaboration of  33 their executive, legislative, judicial and  34 administrative structure, especially after  35 1819, culminating in their constitution of  36 1827.  The number of schools and churches in  37 the nation grew rapidly after 1819  ... and  38 literacy increased.  In addition, less precise  39 but more dramatically indices are available  4 0 from the development of important new  41 institutions, such as the capital town of New  42 Echota, the first printed Cherokee printed book  43 of laws, and their bilingual newspaper.  44 Vistors to the nation in the 1820s wrote  45 admirally of their prosperity and good order,  46 making the Cherokees the prime example in the  47 public mind of Indian progress - 'the most 24243  Submissions by Mr. Jackson  1 civilized tribe in America'."  2  3 And, my lord, the most striking aspect of the  4 Cherokee Renascence was a series of eleven laws passed  5 between 1820 and 1823 that together constituted a  6 political revolution in the structure of Cherokee  7 government.  Under these laws the national council  8 created a bicameral legislature, a district and  9 superior court system, an elective system of  10 representation by geographical district, rather than  11 by town, and a salaried government bureaucracy.  These  12 laws represented a definite move by the Cherokee  13 leaders towards a replication of the American  14 political system, including overlaying many aspects of  15 Anglo-Saxon juris prudence on Cherokee customs.  16 And, my lord, at page 57 I've briefly described  17 the nature of the three tiered judicial system.  The  18 Cherokee advances in the administration of justice in  19 the 1820s, my lord, are being looked at today as ways  20 to reach an accomodation between traditional  21 aboriginal law ways and provisions which we regard as  22 the hallmark of the protection of individual rights.  23 So this was not only a progressive mood in the 1820s,  24 it is viewed through the eyes of our contemporaries as  25 something of a model.  26 At page 58, my lord, I set out some of the laws  27 which the Cherokees passed dealing with new economic  28 initiatives, dealing with new aspects of a market  29 economy which they integrated into the heart of their  30 traditional economy and in fact transformed it.  31 At page 58, the bottom, we note that while many of  32 the Cherokees' laws reflected those adapted by their  33 neighbouring states, their laws regarding land usage  34 were unlike those of white settlements, because of the  35 tribal ownership of all lands.  And these laws forbade  36 the sale of any Cherokee land or improvements on it to  37 whites, although the Cherokees could sell improvements  38 to each other.  39 You will see at page 59, my lord, another example  40 of quite dramatic traditional resource utilization.  41 Formerly the Cherokees, like most woodland Indians,  42 and you have heard evidence in this case also in  43 relation to the Gitksan and Wet'suwet'en, had  44 periodically burned off the underbrush in their woods  45 to improve the growth of new forage for deer and to  46 increase the yield of berries for human and animal  47 use.  But with the advent of elaborate private farms 24244  Submissions by Mr. Jackson  1 throughout the nation, this practise was abandoned.  2 In 1825 the council, the Cherokees forbade anyone to  3 set fires even in the most remote regions in order to  4 protect timber that was now more important than deer  5 or berries.  The council also laid claim to precious  6 minerals in the territory.  7 Of some significance, my lord, at page 59 were  8 changes in Cherokee laws relating to intestacy.  The  9 old laws were very much found upon the matrilineal  10 principle.  With the advent of whites into the area,  11 with the advent of personal property of considerable  12 extent overlaid upon the matrilineal system was free  13 patrilineal or matrilineal inheritance.  14 And you will see at page 59, at 60 the transition  15 to make wills, and the extent to which under those  16 wills individuals were seen as having the right to  17 transmit certain kinds of property to whomsoever they  18 wished became engrossed upon the traditional  19 matrilineal pattern without entirely displacing it.  20 At page 61, my lord, I note a further  21 revitalization of the Cherokees was -- came in the  22 1820s with the invention by Sequoyah of an easy way to  23 write the Cherokee language.  And the effect of this  24 was that the Cherokees were able to translate their  25 laws into their own language, and official documents  26 were available in both English and in Cherokee.  It  27 also led to remarkable events, my lord, with the  28 development of a Cherokee, the first indigenous  29 newspaper in North America, the "Cherokee Phoenix",  30 which started publication in 1828.  31 Describing the state of the Cherokees in 1824, and  32 Your Lordship will recall Professor McLoughlin's  33 rather sad account with the Cherokees in 1793.  In  34 1824 Professor McLoughlin says:  35  36 "The tangible signs of Cherokee achievement were  37 everywhere in 1824; their thriving capital at  38 New Echota with its handsome public buildings;  39 their well-dressed forceful leaders; their new  40 gristmills, sawmills, and turnpikes; their  41 educated young men who, however supercilious  42 toward 'the backward' or 'lower class'  43 Cherokees, provided proof that a Cherokee could  44 do all that a white man could.  Some of these  45 scholars had been to the American Boards  46 seminary in Connecticut; they could read Latin  47 and Greek and understand the white man's 24245  Submissions by Mr. Jackson  1 philosophy, history, theology and political  2 economy.  One of the graduates of the Cornwall  3 Academy would, in 1828, edit their bilingual  4 newspaper."  5  6 At page 62, my lord, at the bottom.  And here we  7 joined up with the aspirations of Georgia for the  8 acquisition of these lands pursuant to its contact  9 with the federal government in 1802.  In the 1820s the  10 Cherokees, however, continued to face and resist  11 pressure, particularly from Georgia, to give up their  12 lands in treaties of cession with the federal  13 government.  Shortly after John Quincy Adams'  14 inauguration as President in 1825, a Cherokee  15 delegation visited him hoping to convince him to make  16 some arrangements with the frontier states that would  17 stop them from hounding the Cherokees to give up more  18 lands.  They assured Adams that they could never be  19 persuaded to leave their homelands voluntarily.  "The  20 arts of civilized life had been successfully  21 introduced among them; they considered themselves  22 permanently settled and no inducement can prompt them  23 to abandon their habitations for a distant, wild and  24 strange clime." They inquired of Adams why is it  25 always the rights of the Indians that must yield, when  26 their rights were equally protected by the United  27 States Constitution?  28 In 1826, my lord, the Cherokee National Council  29 voted to call a convention to -- not accidentally --  30 to meet on the following 4th of July for the purpose  31 of adopting a constitution for the future government  32 of the nation.  And this constitution, my lord, was  33 based upon the American Constitution.  It was in fact  34 a Cherokee version of that constitution to suit  35 Cherokee needs.  And by Article 2, by Section 2 of  36 Article 1, it asserted the national sovereignty of the  37 Cherokee people and affirmed the traditional Cherokee  38 principles of communal ownership of land.  It divided  39 its government into three distinct departments,  40 executive, legislative and judicial departments.  41 Incorporated what in fact was Anglo-Saxon on Charter  42 of Rights, guaranteeing a jury trial, due process of  43 law, free exercise of religious worship, and freedom  44 from unreasonable searches and seizures.  45 The constitution, however, provoked a furor in the  46 neighbouring states, especially in Georgia, and  47 Georgia wanted these lands.  The Cherokees were in the 24246  Submissions by Mr. Jackson  1 process of asserting a fundamental constitution,  2 entrenching their rights in these lands.  And the  3 Cherokees, at page 65, I say, my lord, sent their  4 constitution to the President of the United States,  5 who indicated in the spring of 1828 that as far as he  6 was concerned it made no difference to the  7 relationship between the Cherokees and the United  8 States.  Georgia had hoped that the President would  9 take a strong stand denouncing the Cherokees for their  10 frontier to come up with a constitution of their own.  11 And when in October 1827 the Cherokees refused to  12 discuss with treaty commissioners either a land  13 cession in Georgia or permission for Georgia to build  14 canals through their nation, and when it became clear  15 that President Adams had no intention of doing  16 anything about the Cherokee Constitution, the State of  17 Georgia decided it was time to take matters into its  18 own hands.  19 And, my lord, that might be a convenient place to  20 stop.  21 THE COURT:  All right.  Thank you.  22 THE REGISTRAR:  Order in court.  Court stands adjourned until  23 2:00 o'clock.  24  2 5 (PROCEEDINGS ADJOURNED)  26  27 I HEREBY CERTIFY THE FOREGOING TO BE  28 A TRUE AND ACCURATE TRANSCRIPT OF THE  2 9 PROCEEDINGS HEREIN TO THE BEST OF MY  30 SKILL AND ABILITY.  31  32    33 LORI OXLEY  34 OFFICIAL REPORTER.  35 UNITED REPORTING SERVICE LTD.  36  37  38  39  40  41  42  43  44  45  46  47 24247  Submissions by Mr. Jackson  1 (PROCEEDINGS RESUMED PURSUANT TO A LUNCHEON ADJOURNMENT)  2  3 THE REGISTRAR:  Order in court.  4 MR. RUSH:  My lord, I prepared an index for volume 2 on the  5 Royal Proclamation.  I have handed up a copy to the  6 registrar.  7 THE COURT:  Yes, she's put it in my volume 2.  I am in no urgent  8 rush for it, Mr. Rush.  Will there be a disk for  9 volume 2?  10 MR. RUSH:  Yes, there will be.  Hopefully it will be available  11 tomorrow.  12 THE COURT:  Yes.  My programmer is going to do some work on  13 Saturday and that would be helpful.  14 MR. RUSH:  We will have it for you.  15 THE COURT:  Some mystery, I don't understand what -- oh, I  16 forget the word he uses but he tells me that it's  17 helpful to organize it in some particular way.  Mr.  18 Jackson, I was given Cherokee Residence New Republic.  19 Where does that belong?  20 MR. JACKSON:  I just wanted to inform your lordship my friend,  21 Mr. Willms, gave me the exhibit number earlier on but  22 it is Exhibit 1250 for ID. tab 12, and these pages  23 before your lordship, takes comfort perhaps because  24 there are only nine pages here, my lord, these were  25 the first nine pages which were omitted from tab 12.  26 THE COURT:  I see.  So they belong in the exhibit book.  27 MR. JACKSON:  Yes, my lord, the beginning of tab 12.  28 THE COURT:  Yes, all right.  So that it's put there, thank you.  29 All right, thank you.  30 MR. JACKSON:  My lord, we had got to the point when, in October  31 1827, the state of Georgia had determined it was time  32 to take matters into its own hands in the face of the  33 Cherokee refusal to remove themselves west and give up  34 their lands and their homeland.  In a series of  35 resolutions, bottom of page 65, Georgia insisted upon  36 the federal government fulfilling its obligations  37 under the 1802 Compact to extinguish Cherokee land  38 rights and stated if the Cherokees failed to cooperate  39 in this final effort to extinguish all their lands  40 within the boundaries of Georgia, the state would  41 exercise its sovereign power by taking possession of,  42 and extending our authority and laws over, the whole  43 of the lands in controversy.  Georgia said:  Let there  44 be no mistake:  The lands in question belong to  45 Georgia.  She must and will have them.  The Cherokees  46 sought to get presidential assistance against this  47 pressure from Georgia from President Adams. 2424?  Submissions by Mr. Jackson  1 Unfortunately for the Cherokees, Adams' presidency,  2 gave way to that of Andrew Jackson and President  3 Jackson had campaigned specifically on the issue that,  4 if elected, he would remove the eastern tribes west to  5 the Mississippi to make way for settlement.  And  6 immediately thereafter Jackson's presidency, Georgia  7 enacted its so-called Georgia Indian Laws, and under  8 the terms of those laws which were not to take effect  9 for two years in order to give the Cherokees time to  10 remove, the laws proposed and they asserted, at the  11 bottom of page 66, that "all laws of this state ...  12 are extended over" the territory claimed by Indians  13 within Georgia's boundaries.  That land was to be  14 surveyed within the next two years by the state of  15 Georgia, and divided into counties.  After the 1st day  16 of June, 1830, all Indians still residing in those  17 areas shall be liable and subject to such laws and  18 regulations as the legislature may hereafter describe.  19 When this happened, all laws, usages, customs made,  20 established and enforced in the said territory by the  21 said Cherokee Indians be, and the same are hereby on  22 and after June 1, 1830, declared null and void.  And  23 therefore on that date, Cherokee tribal existence in  24 the east would cease.  All the laws, the Constitution,  25 the court system, as well as the old unwritten customs  26 of the Cherokee Nation (such as tribal ownership of  27 land) would be null and void.  The Cherokees would  28 thenceforth be subject to the same laws as other  29 Georgians except that, being savages, heathens, and  30 people of colour, no Indian or descendant of an Indian  31 residing within the Creek or Cherokee Nations of  32 Indians shall be deemed a competent witness or party  33 to any suit in any court created by the constitution  34 or laws of this state to which a white man may be a  35 party.  36 And, my lord, a summary of the Georgia Laws can be  37 found in the beginning of Cherokee Nation and Georgia,  38 which is at tab -- volume 11 tab 5, and I have given  39 your lordship the page reference, page 27.  40 When the Cherokees protested this action,  41 President Jackson informed them that there was nothing  42 he could do for them, that he could not assert the  43 authority of the Federal Government against the  44 sovereign power of the State of Georgia; in fact, far  45 from being able to do anything for them, my lord.  As  4 6 I document on page 68, the bottom -- down to the  47 bottom and over to page 69, Andrew Jackson began his 24249  Submissions by Mr. Jackson  1 efforts to pass through congress a piece of  2 legislature, the Indian Removal Bill, which would  3 provide money to negotiate treaties to secure the  4 voluntary transfer of Indian lands in the east and the  5 removal of the Cherokees and the other eastern tribes  6 to the west of the Mississippi.  At page 69, and the  7 Cherokee Nation became the cause celebre in Jackson's  8 efforts to remove the eastern tribes to the west,  9 Jackson's support of Georgia's assertion of state  10 sovereignty over Indian land encouraged white settlers  11 to intrude into the Cherokee Nation.  The National  12 Councils repeated requests to the federal agents to  13 remove these intruders but with no response, and fate  14 then dealt Cherokees a cruel blow when gold was  15 discovered in several streams along the nation's  16 southeastern border, and there was a gold rush with  17 some 4,000 to 7,000 prospectors coming into their  18 territory.  In the absence of federal assistance the  19 Cherokees tried to eject settlers who were building  20 cabins, clearing land, and sowing crops.  This attempt  21 to defend their lands resulted in the assaults and the  22 murder of Cherokees.  It also led to Georgia creating  23 its own special police force to patrol the Cherokee  24 area.  Known as the Georgia Guard, it was essentially  25 a private security force under militia officers.  26 Jackson's Removal Bill, my lord, passed through  27 Congress in 1830, and Professor McLoughlin has  28 described what happened immediately after the  29 authorities of federal funds to sign removal treaties.  30  31 "Jackson signed the Bill on May 28th and three  32 days later Georgia asserted its authority over  33 192,000 acres of Creek land in that state and  34 4,600,000 acres of Cherokee land, including  35 their capital city of New Echota, the homes of  36 John Ross, Major Ridge, many other members of  37 the Council and 6 missionary stations  ...  38 Thereafter, as far as the Georgians were  39 concerned, the Cherokee Nation did not exist.  40 Its Council was forbidden to meet; all Cherokee  41 courts were closed; its laws and its police  42 were not allowed to function.  Three hundred  43 and twenty Georgia surveyors immediately  44 entered the nation to begin dividing it into  45 tracts of 160 acres each to be given away to  46 white citizens by lottery (the gold field  47 region was so valuable that lottery tracts here 24250  Submissions by Mr. Jackson  1 were limited to 40 acres).  Hundreds of white  2 Georgians followed surveyors into the region  3 (under the protection of the Georgia Guard,  4 eager to locate the best farms, plantations,  5 mill sites, missionary stations, ferries, and  6 taverns so that they could speculate how to  7 obtain them for themselves.  Although the  8 Georgia law stated that all Cherokees would be  9 given a tract of land, subsequent revisions  10 made it clear that they would get only the land  11 that no white citizen wanted.  Furthermore, as  12 experience with the reserve system had shown,  13 sooner or later most of the Cherokees would be  14 forced off or cheated out of whatever land they  15 received.  Having no right to defend themselves  16 in the Georgia courts, there was no way they  17 could defend their property.  Soon after the  18 lottery began handing out tracts in October  19 1830, Georgia's citizens were forcibly moving  20 Cherokees out of their homes and off of their  21 farms."  22  23 The National Council, my lord, of the Cherokee  24 Nation authorized John Ross, the principal chief of  25 the Cherokees, to hire white lawyers to assist them in  26 the increasing number of cases involving Cherokees  27 arrested by the Georgia Guard for interfering with  28 Georgia's authority or engaging in disputes with white  29 intruders.  These included William Wirt, John  30 Sergeant, who was later to run as vice-president.  31 Almost at once the Cherokees encountered difficulty  32 raising money to pay for these lawyers.  The  33 Cherokees' difficulty in raising funds was compounded  34 when the Secretary of War, John Eaton, decided that  35 after 1830 no Cherokee Nation existed in the east;  36 hence, there was no Cherokee Treasury to whom the  37 government could pay its share of the tribal annuity.  38 Eaton's solution was to divide the $6,666.66 dollars  39 in the annuity, the total of 14,400 Cherokees and to  40 issue instructions that each Cherokee that had a  41 family could apply to the federal agent for his 45  42 cent share.  According to McLoughlin, Eaton's decision  43 was an obvious form of harrassment designed to prevent  44 the Cherokees from effectively governing their nation  45 and bringing their test cases to court.  46 Now, the first opportunity for such a test case  47 occurred in the fall of 1830 when Georgia arrested a 24251  Submissions by Mr. Jackson  1 Cherokee named for the murder of another Cherokee.  He  2 was arrested by the Georgia Guard and tried and  3 condemned to death.  Wirt applied to the federal court  4 to free Tassell on a writ of error and the ground that  5 Georgia had no jurisdiction over a crime that, under  6 the terms of their treaties, was within the  7 self-governing rights of the Cherokee Nation.  Before  8 any federal court could make a ruling on this the  9 authorities in Georgia executed Tassell, making the  10 issue moot.  11 The second test case, my lord, was the next of the  12 Marshall decisions to which I will be referring, the  13 case of Cherokee Nation and Georgia.  And this case  14 was initiated by William Wirt in 1831 and in it the  15 Cherokees sought an injunction in the United States  16 Supreme Court to restrain the State of Georgia from  17 giving effect to its new laws attempting to exercise  18 jurisdiction within Cherokee territory.  The Cherokees  19 alleged that these laws would eradicate their culture,  20 language, government, institutions, laws and customs  21 and would deprive them of their property and that the  22 laws were in direct conflict with the solemn treaties  23 they had concluded with the United States.  My lord,  24 on March 3, a majority of the court ruled in Cherokee  25 Nation and Georgia that it had no jurisdiction to hear  26 the case.  27 And, my lord, I should point out this was a case  28 which went to the Supreme Court by virtue of its  29 original jurisdiction under the Constitution to  30 determine a controversy between a state and a foreign  31 state, and therefore the jurisdictional issue which  32 the Supreme Court was faced with was whether or not --  33 clearly Georgia was a state; the question was:  Was  34 the Cherokees a foreign state within the meaning of  35 the terms of the United States Constitution, Article  36 III.  And the majority of the court determined that  37 the Cherokees were not a foreign state and therefore  38 declined to hear the case.  Writing for the majority  39 of the court, Chief Justice Marshall acknowledged that  40 the Cherokees were a state within the meaning of the  41 Constitution and on that issue he held, and I will  42 just read part of the passage set out at the top of  43 page 73:  44  45 "So much of the argument as was intended to  46 prove the character of the Cherokees as a  47 State, as a distinct political society 24252  Submissions by Mr. Jackson  1 separated from others, capable of managing its  2 own affairs and governing itself, has, in the  3 opinion of a majority of the judges, been  4 completely successful."  5  6 In the next passage, my lord, the Chief Justice  7 gave his reasons as to why, however, the Cherokee  8 Nation were not a foreign state within the meaning of  9 the Constitution.  And on this point he said:  10  11 "Though the Indians are acknowledged to have an  12 unquestionable, heretofore, unquestioned right  13 to the lands they occupy until that right  14 shall be extinguished by a voluntary session  15 to our government, yet it may well be doubted  16 whether those tribes which reside within the  17 acknowledged boundaries of the United States  18 and, with strict accuracy..."  19  20 That should be:  21  22 "...can, with strict accuracy, be denominated  23 foreign nations.   They may more correctly,  24 perhaps, be denominated domestic dependent  25 nations.  They occupy a territory to which we  26 assert a title independent of their will,  27 which must take effect in point of possession  28 when their right of possession ceases.  29 Meanwhile they are in a state of pupilage.  30 Their relation to the United States resembles  31 that of a ward to his guardian."  32  33 And later on he went on to say:  34  35 "...They and their country are considered by  36 foreign nations as well as by ourselves, as  37 being so completely under the sovereignty and  38 dominion of the United States, that any attempt  39 to acquire their lands, or to form a political  40 connection with them, would be considered by  41 all as an invasion of our territory and an act  42 of hostility."  43  44 We say, my lord, at page 74 that this statement of  45 the court contained two different legal statements,  46 the first of which is a property statement, and the  47 passage underlined in the first paragraph of page 73 24253  Submissions by Mr. Jackson  1 affirms that the Indians have an unquestionable right  2 to the lands they occupy until that right is  3 extinguished by a voluntary session.  So already, my  4 lord, here the Marshall court is moving away from any  5 argument or interpretation of Johnson and Mcintosh  6 that unilaterally the United States can extinguish  7 aboriginal rights to land.  The title asserted by the  8 United States to Indian lands by virtue of the  9 doctrine of discovery did not vest it with present  10 possession of those lands.  The United States could  11 only take possession of Indian lands when the Indians'  12 own right of possession is extinguished by voluntary  13 session.  Until such extinguishment the Indians  14 enjoyed a legal right to the exclusive possession of  15 those lands.  16 The second statement on page 73 is a  17 jurisdictional statement and it's one upon with which  18 Chief Justice Marshall would expand and significantly  19 modify a year later in Worcester and Georgia.  But  20 right in the context of the court's earlier statement  21 about Cherokee statehood it is clear from Cherokee  22 Nation and Georgia that the only jurisdictional limit  23 on the Cherokee Nation is one again derived from the  24 doctrine of discovery and that is one which excludes  25 other foreign nations from entering into territorial  26 and political relations with them.  27 My lord, at page 75, I note that there was a  28 dissent in this case written by Justice Thompson in  29 which Justice Story joined, and they concluded that  30 the Cherokee Nation were indeed a foreign state.  And  31 I will take your lordship next to the bottom of page  32 76 where Justice Thompson addressed himself to the  33 relationship between propriety and jurisdictional  34 rights in his conception of a doctrine of aboriginal  35 rights.  And at the top of page 77 Justice Thompson  36 said --  37 THE COURT:  77?  38 MR. JACKSON:  Yes.  I have just moved over from page 76 to 77.  39  40 "And notwithstanding we do not recognize the  41 right of the Indians to transfer the absolute  42 title of their lands to any other than  43 ourselves..."  44  45 That of course is the exclusive principle, the  46 principle of exclusivity in terms of only conveying  47 lands to the discovery and sovereign. 24254  Submissions by Mr. Jackson  1  2 "...the right of occupancy is admitted to  3 remain in them, accompanied with the right to  4 self-government according to their customs; and  5 with the competency to act in a national  6 capacity, although placed under the protection  7 of the whites and owing a qualified subjection  8 so far as is requisite for public safety.  But  9 the principal is universally admitted, that  10 this occupancy belongs to them as a matter of  11 right, and not by mere indulgence.  They cannot  12 be disturbed in the enjoyment of it, or  13 deprived of it, without their free consent; or  14 unless a just and necessary war would sanction  15 their dispossession."  16  17 And, my lord, we say that that dissenting opinion  18 becomes the majority decision in Worcester and  19 Georgia.  I note, my lord, at the bottom of page 77 a  20 point which Professor Burke, a noted American Indian  21 Rights scholar, in his article on the Cherokee cases  22 has made part of the public domain that the dissent of  23 Justice Thompson and Story was one encouraged by Chief  24 Justice Marshall himself.  25 THE COURT:  I don't think I can act on that.  26 MR. JACKSON:  No, my lord.  I did provide for your lordship's  27 edification, but one thing I would point out to your  28 lordship is in the subsequent law report, it seemed  29 law reporters had more leeway in terms of what they  30 reported in those days.  In a subsequent volume, a  31 special volume on the Cherokee case as reported by Mr.  32 Peters, Justice Story, in commenting on the volume  33 which included all the material, the Cherokee Georgia  34 Laws, a legal opinion from Chancellor Kent on the  35 Cherokee claims, Justice Story noted the following:  36  37 "The publication would do a great deal of good,  38 the subject unites the moral sense of all New  39 England - It comes home to the religious  40 feelings of our people.  It touches their  41 sensibilities, and sinks to the very bottoms of  42 their sense of Justice - Depend on it there is  43 a depth of degradation in our national conduct,  44 which will irresistibly lead to better things."  45  46 And I think Justice Story was perhaps signalling the  47 case of Worcester and Georgia, because the issues 24255  Submissions by Mr. Jackson  1 which the court had sought to avoid in Cherokee  2 Nation and Georgia in 1831 came back to the court in  3 1832 in that case, and this time the Supreme Court  4 heard the case.  The background to the case, my lord,  5 briefly is that Samuel Worcester was a white  6 missionary who had left his previous tenure in Vermont  7 to preach Christianity amongst the Cherokees.  And he  8 had spoken out vigorously against the Removal Bill.  9 In 1830, the Secretary of War had curtailed all  10 grants, all federal grants, to the missionaries on the  11 basis that it was felt that they were encouraging the  12 Cherokees to remain in their homelands rather than  13 encouraging them to move across the Mississippi.  14 Georgia, in 1829, passed as part of its laws one which  15 required all white men, apparently women were exempted  16 from this, living within the area formerly claimed by  17 the Cherokees to obtain a licence by the state and  18 take an oath of allegiance to obey the laws of the  19 State of Georgia and Worcester and one of his  20 colleagues refused to take the oath.  21 Page 80, my lord, having so refused they were  22 prosecuted, they were found guilty and sentenced to  23 four years at hard labour in the Georgia penitentiary  24 and it was that conviction which gave rise to an  25 appeal to the Supreme Court which led to the judgment  26 in Worcester and Georgia.  At page 80 I note that the  27 lawyers for the appellants, the two missionaries,  28 argued the case on labourious grounds to raise before  29 the Supreme Court the constitutionality of the Georgia  30 laws.  I note at page 80, my lord, that Chief Justice  31 Marshall, in the remarkably small space of two weeks,  32 wrote the judgment for the majority of the court, and  33 of course your lordship will be comforted by the fact  34 that while we will be asking your lordship to make  35 findings of law paralleling in many ways the finding  36 of Chief Justice Marshall in Worcester and Georgia,  37 there is no parallel expectation that your lordship  38 will render judgment in so timely a fashion.  It is  39 remarkable, my lord, Chief Justice Marshall didn't  40 even have a computer.  But at page 81, my lord, it is  41 the plaintiff's submission that Worcester and Georgia  42 provides the clearest and most comprehensive judicial  43 articulation of the concept of aboriginal rights to be  44 found in the common law.  The ambiguities created by  45 the previous attempts by the court to formulate  46 principles for the adjudication of disputes involving  47 aboriginal rights were directly addressed and 24256  Submissions by Mr. Jackson  1 resolved.  It is submitted that the case stands as the  2 culmination of an evolving doctrine on aboriginal  3 rights and that it is properly regarded as the  4 judicial centrepiece of that law.  In his judgment,  5 Chief Justice Marshall examines in detail the doctrine  6 of discovery, the Crown charters, the system of Crown  7 property grants, British and American law and policy  8 regarding aboriginal land rights and the national  9 character and jurisdiction of Indian nations.  Most  10 importantly, the judgment also articulates the  11 principle of Indian consent to any changes in the  12 territorial integrity of Indian nations.  13 At the beginning of his judgment the Chief Justice  14 characterized the nature of the Georgia legislation.  15 And, my lord, the judgment can be found at volume --  16 no, I think I have -- it's volume 13, tab 60, and what  17 I have done, my lord, and again I will principally be  18 referring to the material in my text, but I have taken  19 the liberty of —  20 THE COURT:  Well, Mr. Jackson, are you going to be arguing  21 that -- well, put it another way.  Do you say that  22 that can stand alongside the judgments in Calder, for  23 example, which really said there could be  24 extinguishment of rights, the question being whether  25 they were?  26 MR. JACKSON:  Yes, my lord.  It is our position that the court  27 in Calder, in concluding that aboriginal rights can be  28 extinguished unilaterally, is not good law and is not  29 law your lordship should follow.  30 THE COURT:  Well, that's asking me to do a pretty brave thing,  31 isn't it?  32 MR. JACKSON:  My lord, we have a further submission.  33 THE COURT:  Surely you should make that argument in the Supreme  34 Court of Canada.  35 MR. JACKSON:  My lord, we say that the court in Calder was  36 addressed with the issue of why or why not  37 extinguishment could be done implicitly or explicitly.  38 No argument was addressed to the court in Calder that  39 Indian consent was a prerequisite to the  40 extinguishment of aboriginal title and we therefore  41 have a number of submissions on the proper test for  42 extinguishment, one of which is that consent is a  43 prerequisite, another of those submissions, an  44 alternative submission, is that only expressed  45 extinguishment can --  46 THE COURT:  I understand that dichotomy.  I am a little startled  47 by your proposition that I should disregard what seems 24257  Submissions by Mr. Jackson  1 to me to be a conclusion of the Supreme Court of  2 Canada.  3 MR. JACKSON:  My lord —  4 THE COURT:  And I think privy council before it.  5 MR. JACKSON:  My lord, we are in fact, particularly through our  6 arguments in relation to the Royal Proclamation,  7 saying that the principle of consent is a principle  8 which has special status.  That was not an argument  9 which was addressed in Calder.  Of course all the  10 judges in Calder felt the case could be dealt with  11 quite apart from the Royal Proclamation as a matter of  12 common law and therefore our submission is one --  13 which were not made in Calder, and therefore we say  14 were not determined by Calder.  15 THE COURT:  Well, I thought I was expected to follow the  16 judgment of the Supreme Court of Canada.  17 MR. JACKSON:  My lord, it will be our submission that, to the  18 extent that these arguments were not before the court,  19 that your lordship ought not to construe that judgment  20 as precluding your lordship from ruling on this  21 particular issue.  The Worcester and Georgia decision,  22 my lord, to the extent we are relying upon, it is not  23 only one which we say affirms as a matter of the  24 common law the principle of consent.  We are also  25 saying that the decision of Worcester and Georgia  26 affirms also as a principle of the common law that  27 aboriginal rights embraces a jurisdictional component,  28 and therefore Worcester and Georgia is important to  29 the plaintiff's argument on a variety of bases, the  30 principle of consent being one of them, but of course  31 the principle of consent we say is something which is  32 imbedded in the common law as it is imbedded in the  33 Royal Proclamation.  34 THE COURT:  Well, as I said this morning, you use up your time  35 any way you want.  You could reserve that position to  36 argue it in another court but, if you want to argue it  37 here, you are free to do so.  38 MR. JACKSON:  Thank you, my lord.  What I have done, my lord, is  39 to take the tiny text of Worcester and Georgia, and I  40 have put it through the photocopying machine and  41 enlarged it somewhat.  It is still nothing like the  42 normal scription but if your lordship would be aided  43 by that —  44 THE COURT:  Yes, all right.  45 MR. JACKSON:  So page 81, my lord:  46  47 "It has been said at the Bar that the acts of 2425?  Submissions by Mr. Jackson  1 the Legislature of Georgia seize on the whole  2 Cherokee country, parcel it out among the  3 neighbouring counties of the State, extend her  4 code over the whole country, abolish its  5 institutions and its laws, and annihilate its  6 political existence."  7  8 THE COURT:  Where did you find that?  9 MR. JACKSON:  This is the bottom of page 81, my lord.  10 THE COURT:  I am sorry, I was looking at the report.  Thank you.  11 Yes, thank you.  12 MR. JACKSON:  13  14 "If this be the general effect of the system,  15 let us inquire into the effect of the  16 particular statute and section on which the  17 indictment is founded...  The very passage of  18 this act is an assertion of jurisdiction over  19 the Cherokee Nation, and of the rights and  20 powers consequent on jurisdiction."  21  22 And it was in examining, my lord, the rightfulness of  23 this claim that the Chief Justice restated as his  24 first proposition the doctrine of discovery, restated  25 it in a way which makes it crystal clear that  26 discovery, as a foundation of title, only regulated  27 the rights of European nations.  And I am going to  28 read this passage, my lord, because this again is the  29 passage which is much cited in later decisions and  30 your lordship will see it recited in Calder.  31  32 "America, separated from Europe by a wide ocean,  33 was inhabited by a distinct people, divided  34 into separate nations, independent of each  35 other and of the rest of the world, having  36 institutions of their own, and governing  37 themselves by their own laws."  38  39 And you will see, my lord, that particular passage  40 becomes part of the foundation for Mr. Justice  41 Mahoney's statement in Baker Lake but one of the tests  42 of aboriginal rights is that the claimants, those who  43 would assert aboriginal rights have and our members of  44 an organized society.  Mr. Justice Mahoney takes the  45 root of that requirement from this passage from  46 Worcester and Georgia.  47 24259  Submissions by Mr. Jackson  1 "It is difficult to comprehend the proposition,  2 that the inhabitants of either quarter of the  3 globe could have rightful original claims of  4 dominion over the inhabitants of the other, or  5 over the lands they occupied; or that the  6 discovery of either by the other should give  7 the discoverer rights in the country  8 discovered, which annulled the pre-existing  9 rights of its ancient possessors.  10 After lying concealed for a series of ages, the  11 enterprise of Europe guided by nautical  12 science, conducted some of her adventurous sons  13 into this western world.  They found it in  14 possession of a people who had made small  15 progress in agriculture or manufacturers, and  16 whose general employment was war, hunting and  17 fishing."  18  19 And, my lord, just stopping there, Mr. Justice Hall in  20 Calder, while acclaiming the Chief Justice's judgment  21 in Worcester and Georgia, noted I think quite  22 appropriately that even Chief Justice Marshall in the  23 19th century had a limited vision of the real nature  24 of organized societies, but of course there was not  25 the same evidentiary foundation before him as your  26 lordship has.  27  28 "Did these adventurers, by sailing along the  29 coast and occasionally landing on it, acquire  30 for the several governments to whom they  31 belong, or by whom they were commissioned, a  32 rightful property in the soil from the Atlantic  33 to the Pacific, or rightful dominion over the  34 numerous people who occupied it?  Or has  35 nature, or the Great Creator of all things,  36 conferred these rights over hunters and  37 fishermen, on agriculturalists and  38 manufacturers?  39 But power, war, conquests, give rights, which,  40 after possession, are conceded by the world;  41 and which can never be contraverted by those on  42 whom they descend.  We proceed, then, to the  43 actual state of things, having glanced at their  44 origin, because..."  45  46 I think that's a reflection of your lordship's  47 comments yesterday, my lord: 24260  Submissions by Mr. Jackson  1  2 "...because holding it in our recollection might  3 shed some light on existing pretension.  4 The great maritime powers of Europe discovered  5 and visited different parts of this continent  6 at nearly the same times.  The object was too  7 immense for any one of them to grasp the whole,  8 and the claimants were too powerful to submit  9 to the exclusive or unreasonable pretensions of  10 any single potentate.  To avoid bloody  11 conflicts, which might terminate disastrously  12 to all, it was necessary for the nations of  13 Europe to establish some principle which all  14 would acknowledge, and which should decide  15 their respective rights as between themselves.  16 This principle, suggested by the actual state  17 of things, was that discovery gave title to the  18 government by whose subjects or by its  19 authority it was made, against other European  2 0 governments which title might be consummated by  21 possession."  22  23 And he cites the previous judgment in Johnson and  24 Mcintosh.  25  26 "This principle, acknowledged by all Europeans,  27 because it was the interest of all to  28 acknowledge it, gave to the nation making the  29 discovery, as its inevitable consequence, the  30 sole right of acquiring the soil and of making  31 settlements on it.  It was an exclusive  32 principle which shut out the right of  33 competition among those who had agreed to it;  34 not one which could annul the previous rights  35 of those who have not agreed to it.  It  36 regulated the right given by discovery among  37 the European discoverers, but could not affect  38 the rights of those already in possession,  39 either as aboriginal occupants, or as occupants  40 by virtue of a discovery made before the memory  41 of man.  It gave the exclusive right to  42 purchase, but did not found that right on a  43 denial of the right of the possessor to sell."  44  45 And we say that this passage establishes and  46 clarifies three points of fundamental importance.  47 First, that the principle of discovery bound only the 24261  Submissions by Mr. Jackson  1 European nations who had agreed to it; secondly, the  2 discovery did not prejudice the pre-existing rights of  3 aboriginal peoples; and thirdly, that the right  4 conferred upon European nations by discovery was the  5 exclusive right to purchase the rights of aboriginal  6 peoples.  It gave the right of pre-emption but did not  7 give an immediate right of beneficial ownership.  8 And page 84, my lord, I point out that the Chief  9 Justice, having held that the United States succeeded  10 to all the claims of Great Britain, both territorial  11 and political, proceeded to review the nature of  12 British claims in North America.  And I've set out for  13 your lordship at page 84 what he had said about this  14 in Johnson and Mcintosh.  And this is the passage your  15 lordship commented on as to what he might have meant:  16  17 The British Government ... asserted a title to  18 all the lands occupied by Indians ...  It  19 asserted also a limited sovereignty over them  20 ...  These claims have been maintained and  21 established as far west as the Mississippi by  22 the sword.  The title to a vast portion of the  23 lands we now hold originates in them, it is not  24 for the courts of this country to question the  25 validity of this title, or to sustain one which  26 is incompatible with it."  27  28 In Worcester and Georgia the Chief Justice makes  29 it very clear what exactly is the nature of the title  30 asserted by these royal charters.  And this is a  31 passage, my lord, which I read to your lordship at the  32 very beginning of my submissions last week.  I think  33 it bears repetition.  34  35 "Soon after Great Britain determined on planting  36 colonies in America, the King granted charters  37 to companies of his subjects ...  The first of  38 these charters was made before possession was  39 taken...  They purport, generally, to convey  40 the soil, from the Atlantic to the South Sea.  41 This soil was occupied by numerous and warlike  42 nations, equally willing and able to defend  43 their possession.  The extravagant and absurd  44 idea that the feeble settlements made on the  45 sea-coast or the companies under whom they were  46 made, acquired legitimate power by them to  47 govern the people, or occupy the lands from sea 24262  Submissions by Mr. Jackson  1 to sea, did not enter the mind of any man.  2 They were well understood to convey the title  3 which, according to the common law of European  4 sovereigns respecting America, they might  5 rightfully convey, and no more.  This was the  6 exclusive right of purchasing such lands as  7 the Natives were willing to sell.  The Crown  8 could not be understood to grant what the Crown  9 did not affect to claim, nor was it so  10 understood."  11  12 His lordship then goes on to deal with the question of  13 the power of conquest.  14  15 "The power of making war is conferred by these  16 charters of the colonies, but defensive war  17 alone seems to have been contemplated...  The  18 charter to Connecticut concludes a general  19 power to make defensive war with these terms:  20 'And upon just causes to invade and destroy the  21 natives or other enemies of the said  22 colony.'...  This power to repel invasion, and,  23 upon just cause, to invade and destroy the  24 natives, authorizes offensive as well as  25 defensive war, but only 'on just cause'...  26 These motives for planting the new colony are  27 incompatible with the lofty ideas of granting  28 the soil and all its inhabitants from sea to  29 sea.  They demonstrate the truth that these  30 grants asserted a title against Europeans  31 only, and were considered as blank paper so  32 far as the rights of the natives were  33 concerned.  Power of war is given only for  34 defence, not for conquest."  35  36 And in these passages, my lord, we say at the bottom  37 of page 85 that the Chief Justice was affirming the  38 propositions which Lord Dorchester and the American  39 Commissioners had stated as the foundations of British  40 and American law in 1791 and 1793, that the legal  41 effect of territorial arrangements which Britain and  42 America had made was as between themselves and did not  43 affect the pre-existing aboriginal rights of the  44 original inhabitants.  And we say it is also clear  45 from these passages that, to the extent that his  46 comments in Worcester and Georgia, Johnson and  47 Macintosh may have suggested a judicial mythology of 24263  Submissions by Mr. Jackson  1 conquest, a theory of conquest as the foundation of  2 British rights to land in North America was expressly  3 repudiated in his statements in Worcester and Georgia.  4 The Chief Justice next reviewed the evolving  5 development of relationships between European nations  6 and Indian nations particularly in terms of  7 interference with the latter's powers of  8 self-government.  And he said:  9  10 "Not well acquainted with the exact meaning of  11 words, nor supposing it to be material whether  12 they were called the subjects, or the children  13 of their father in Europe; lavish in  14 professions of duty and affection, in return  15 for the rich presents they received; so long as  16 their actual independence was untouched, and  17 their right to self government acknowledged,  18 they were willing to profess dependence on the  19 power which furnished supplies of which they  20 were in absolute need, and restrained dangerous  21 intruders from entering their country; and this  22 was probably the sense in which the term was  23 understood by them.  24 Certain it is, that our history furnishes no  25 example, from the first settlement of our  26 country of any attempt on the part of the Crown  27 to interfere with the internal affairs of the  28 Indians, farther than to keep out the agents of  29 foreign powers, who, as traders or otherwise,  30 might seduce them into foreign alliances."  31  32 The next passage is significant.  33  34 "The king purchased their lands when they were  35 willing to sell, at a price they were willing  36 to take; but never coerced a surrender of  37 them.  He also purchased their alliance and  38 dependence by subsidies; but never intruded  39 into the interior of their affairs, or  40 interfered with their self government, as far  41 as respected themselves only."  42  43 And, my lord, the Chief Justice then proceeded to cite  44 the Royal Proclamation, and he did so as a reflection  45 of the position of Great Britain with regard to the  46 rights of the Indians.  He also cited a statement of  47 Superintendent Stewart, that's John Stewart, the 24264  Submissions by Mr. Jackson  1 Superintendent of the southern colonies, delivered in  2 the year of the Proclamation that "whenever you shall  3 be pleased to surrender any of your territories to His  4 Majesty, it must be done, for the future, at a public  5 meeting of your nation, when the Governors of the  6 Provinces or the Superintendent shall be present and  7 obtain the consent of all your people".  8 These, my lord, are the common law principles  9 which Chief Justice Marshall saw as being entrenched  10 by the time of the revolution.  And in summarizing the  11 British Indian Policy, the Chief Justice said:  12  13 "Such was the policy of Great Britain towards  14 the Indian nations inhabiting the territory  15 from which he excluded all other Europeans;  16 such her claims, and such her practical  17 exposition of the charters she had granted; she  18 considered them as nations capable of  19 maintaining the relations of peace and war; of  20 governing themselves under her protection; and  21 she made treaties with them, the obligation of  22 which she acknowledged."  23  24 And the Chief Justice then proceeded to review the  25 course of treaty-making continued by the United States  26 after the revolution in the British tradition.  And it  27 was at this point that he addressed the specific terms  28 of the treaty of Hopewell, and he noted that it  29 acknowledged that the Cherokees were under the  30 protection of the United States of America and of no  31 other power.  32 My lord, you will recall how in Cherokee Nation  33 and Georgia, the Chief Justice had referred to the  34 Cherokees as "domestic dependent nations".  In  35 Worcester, he clarified the meaning of this concept:  36  37 "The third article (of the treaty of Hopewell)  38 acknowledges the Cherokee to be under the  39 protection of the United States and of no other  40 power.  This stipulation is found in Indian  41 treaties generally.  It was introduced into  42 their treaties with Great Britain:  and may  43 probably be found in those with other European  44 powers.  Its origin may be traced to the nature  45 of their connection with those powers; and its  46 true meaning is discerned in their relative  47 situation." 24265  Submissions by Mr. Jackson  1  2 We say this is significant, my lord, because we  3 say that one of the fundamental principles in the  4 common law is the protectorate relationship and the  5 protectorate obligation of the Crown consequent upon  6 the imposition of the doctrine of discovery and the  7 limitation on the Indian nations to sell or transfer  8 their rights to any other than the discovery nation,  9 fiduciary obligation which was affirmed by the Supreme  10 Court.  11  12 The general law of European sovereigns,  13 respecting their claims in America, limited the  14 intercourse of Indians, in a great degree, to  15 the particular potentate whose ultimate right  16 of domain was acknowledged by the others.  This  17 was the general state of things in times of  18 peace.  It was sometimes changed in war...  19 Goods, indispensable to their comfort, in the  20 shape of presents, were received from the same  21 hand.  What was of still more importance, the  22 strong hand of government was interposed to  23 restrain the disorderly and licentious from  24 intrusions into their country, from  25 encroachments on their lands and from those  26 acts of violence which were often attended by  27 reciprocal murder.  The Indians perceived in  28 this protection only what was beneficial to  29 themselves - an engagement to punish  30 aggressions on them.  It involved,  31 practically, no claim to their lands, no  32 dominion over their persons.  It merely bound  33 the nation to the British Crown as a dependent  34 ally, claiming the protection of a powerful  35 friend and neighbour, and receiving the  36 advantages of that protection, without  37 involving a surrender of their national  38 character.  39 This is the true meaning of the stipulation,  40 and is undoubtedly the sense in which it was  41 made."  42  43 And later in his judgment, the Chief Justice  44 specifically equated the concept of a protectorate  45 relationship to the Law of Nations.  46  47 "...the settled doctrine of the law of nations 24266  Submissions by Mr. Jackson  1 is that a weaker power does not surrender its  2 independence - its right to self government,  3 by associating with the stronger and taking  4 its protection.  A weak state, in order to  5 provide for its safety, may place itself under  6 the protection of one more powerful without  7 stripping itself of the right of government,  8 and ceasing to be a state.  Examples of this  9 kind are not wanting in Europe...  at the  10 present day more than one state may be  11 considered as holding its right of self  12 government under the guarantee and protection  13 of one or more allies."  14  15 We say this is of some importance in that the  16 Provincial Government's amended -- Further Amended  17 Statement of Defence, paragraph 39, the Provincial  18 Defendant pleads that the plaintiffs have acquiesced  19 in the Defendant's sovereign jurisdiction by seeking  20 and receiving, among other things, protection from  21 her.  If this could be construed as the case, we  22 submit that applying the principles of Worcester and  23 Georgia, the Gitksan and Wes'suwet'en acceptance of  24 protection from the Crown, could not be seen as a  25 matter of law as giving up or diminishing its right of  26 government or territorial ownership.  27 My lord, at page -- the bottom of page 89 and page  28 90, I refer to the Chief Justice's interpretation of  29 the provisions in the Treaty of Hopewell to a  30 guarantee of the Indians' hunting grounds.  And we  31 say, and my friend Mr. Rush has addressed you on this,  32 that hunting grounds when used in the Royal  33 Proclamation were used in a way as the Chief Justice  34 in Worcester and Georgia defines them.  And what he  35 says is:  36  37 "Hunting was at the time the principle  38 occupation of the Indians, and their land was  39 more used for that purpose than for any other.  40 It could not, however, be supposed that any  41 intention existed of restricting the full use  42 of the lands they reserved.  43 ...These terms had been used in their treaties  44 with Great Britain, and had never been  45 misunderstood.  They had never been supposed to  46 imply a right in the British government to take  47 their lands, or to interfere with their 24267  Submissions by Mr. Jackson  1 internal government."  2  3 And we say that's of importance, my lord, because  4 it is part of our submission that the Royal  5 Proclamation guarantees not simply lands for hunting,  6 it is not an attempt to freeze the beneficial interest  7 of Indian nations to a historical point in time.  We  8 say that the Royal Proclamation, in guaranteeing the  9 Indians' hunting grounds, was an affirmation of their  10 rights to internal self-government and we say that the  11 interpretation which is placed upon that term by the  12 Chief Justice in Worcester and Georgia is supporting  13 authority and is a principle interpretation of those  14 phrases.  There is also another clause which the Chief  15 Justice interprets in the Treaty of Hopewell which we  16 say throws further light on the pre-existing right of  17 jurisdiction of Indian nations.  18 The ninth article of the Treaty of Hopewell is set  19 out at the bottom of page 90, and it provides that the  20 United States shall have the sole and exclusive right  21 of regulating the trade with the Indians and managing  22 all their affairs as they think proper.  And I will  23 just refer your lordship to two parts of the next  24 citation where the Chief Justice says:  25  26 "To construe the expression 'managing all their  27 affairs' into a surrender of self-government,  28 would be, we think, a perversion of their  29 necessary meaning, and a departure from the  30 construction which has been uniformly put on  31 them."  32  33 And then at the bottom sentence of that site:  34  35 "...  It would convert a treaty of peace  36 covertly into an act annihilating the political  37 existence of one of the parties.  Had such a  38 result been intended, it would have been openly  3 9 avowed."  40  41 And I will be returning to that passage, my lord, when  42 considering the question of whether or not rights of  43 jurisdiction are affirmed or negated by the Canadian  44 treaties.  Addressing himself specifically to the 1791  45 Treaty of Holston, the Chief Justice stated:  46  47 "This Treaty, thus expliciting recognizing the 2426?  Submissions by Mr. Jackson  1 national character of the Cherokees, and their  2 right of self government, thus guaranteeing  3 their land; assuming the duty of protection,  4 and of course, pledging the faith of the United  5 States for that protection, has been frequently  6 renewed and is now in full force."  7  8 And then refers to the various congressional acts,  9 particularly the Trade and Intercourse Act, and makes  10 the point:  11  12 "All these acts, and especially that of 1802,  13 manifestly consider the several Indian nations  14 as distinct political communities, having  15 territorial boundaries, within which their  16 authority is exclusive, and having a right to  17 all the lands within those boundaries, which is  18 not only acknowledged, but guaranteed by the  19 United States."  20  21 Now, my lord, it has been said of Worcester and  22 Georgia that the principles which the Chief Justice  23 espoused there are principles derived from the  24 particular treaties signed with the Cherokee, and  25 therefore the decision on anything else is obiter.  26 My lord, as I have said, we are not citing  27 Worcester and Georgia or any other American case on  28 the basis that it is a precedent which your lordship  29 is bound to follow.  In any event, however, my lord,  30 what we say about Worcester and Georgia is that within  31 the structure of his judgment, he makes it very clear  32 that his interpretation of these particular treaties  33 are but examples of the general principles which he  34 says form the foundation for the relationship between  35 aboriginal nations and the Crown.  And that's why in  36 going through his judgment I first identified the  37 Chief Justice's location in those principles in the  38 practice of the Crown before the revolution, its  39 continuance after the revolution, and his then turning  40 to the treaties as specific illustrations of those  41 principles.  As to those principles, my lord, page 92,  42 we say that these principles recognize the Indians'  43 right of self-government, their jurisdiction, they  44 guarantee their pre-existing rights to lands within  45 their territorial boundaries, their ownership, and  46 recognize a protectorate relationship between Indian  47 nations and the Crown.  We say that these principles 24269  Submissions by Mr. Jackson  1 are the legal chain linking Chief Justice Marshall's  2 opinion in the same way as we submit these fundamental  3 principles are the chain linking pre- and  4 post-Proclamation law and practice in Canadian  5 territories, and are the principles upon which the  6 common law is forged.  7 The Chief Justice also cited other congressional  8 legislation which he interpreted to be consistent with  9 the recognition of both the political and territorial  10 integrity of the Cherokees, and his comments in this  11 regard are particularly relevant to the Federal  12 Government's statement of extinguishment, and he notes  13 that:  14  15 "In 1819, Congress passed an Act for promoting  16 those humane designs of civilizing..."  17  18 THE COURT:  Sorry, what is this 1819?  19 MR. JACKSON:  It is a congressional act, my lord.  20 THE COURT:  One of the intercourse acts.  21 MR. JACKSON:  No, I think —  22 THE COURT:  Or a different one.  23 MR. JACKSON:  It is another act which was designed to civilize  24 the Indians, my lord.  2 5 THE COURT:  Thank you.  26 MR. JACKSON:  I think it may actually have that title.  27  28 "In 1819, Congress passed an act for promoting  29 those humane designs of civilizing the  30 neighbouring Indians among which had long been  31 cherished by the executive.  It enacts, that,  32 for the purpose of providing against the  33 further decline and final extinction of the  34 Indian tribes adjoining to the frontier  35 settlements of the United States and for  36 introducing among them the habits and arts of  37 civilization, the president of the United  38 States shall be, and is hereby authorized, in  39 very case..."  40  41 THE COURT:  That means every case, does it?  42 MR. JACKSON:  Yes, my lord.  43  44 "...where he shall judge improvement in the  45 habits and condition of such Indians  46 practicable, and that the means of instruction  47 can be introduced with their own consent, to 24270  Submissions by Mr. Jackson  1 employ capable persons, of good moral  2 character, to instruct them in the mode of  3 agriculture suited to their situation; and for  4 teaching their children in reading, writing and  5 arithmetic...  "  6  7 The Chief Justice says:  8  9 "This act avowedly contemplates the preservation  10 the Indian nations as an object sought by the  11 United States, and proposes to effect this  12 object by civilizing and converting them from  13 hunters into agriculturalists.  Though the  14 Cherokees had already made considerable  15 progress in this improvement, it cannot be  16 doubted that the general words of the act  17 comprehend them.  Their advance in the 'habits  18 and arts of civilization' rather encouraged  19 preserverence in the laudable exertions still  20 further to ameliorate their condition.  This  21 act furnishes strong additional evidence of a  22 settled purpose to fix the Indians in their  23 country by giving them security at home."  24  25 And it is our submission that in this passage the  26 Chief Justice acknowledged explicitly the significant  27 changes the Cherokees had made in their traditional  28 economy and society and while, in ethnocentric terms,  29 he characterized this as an advance in the habits and  30 arts of civilization, he in no way suggested that  31 these changes constituted a basis for the negation or  32 diminution of Cherokee rights to their lands and their  33 rights to exercise jurisdiction within those lands.  34 Indeed, the guarantees of their territorial and  35 political integrity are seen by the Court as the  36 essential pre-conditions to encourage changes in the  37 Indian economy.  We say that quite clearly, Chief  38 Justice Marshall would have had no difficulty in  39 ridiculing and repudiating the Federal Defendant's  40 position in this case that by expanding and modifying  41 their economy by introducing significant elements of  42 the wage and industrial economy, the Gitksan and  43 Wes'suwet'en had in effect forever abandoned and  44 forfeited their rights to their homeland.  45 THE COURT:  Can we take the afternoon adjournment, Mr. Jackson,  46 please?  4 7    MR. JACKSON:  Yes, my lord. 24271  Proceedings  1 THE REGISTRAR:  Order in court.  Court stands adjourned for a  2 short recess.  3  4 (PROCEEDINGS ADJOURNED AT 3:00 p.m.)  5  6  7 I hereby certify the foregoing to be  8 a true and accurate transcript of the  9 proceedings herein, transcribed to  10 the best of my skill and ability.  11  12  13  14  15 TANNIS DEFOE, Official Reporter  16 United Reporting Service Ltd.  h2  17 Submissions by Mr. Jackson  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47 24272  Proceedings  1 (PROCEEDINGS RECONVENED PURSUANT TO RECESS)  2  3 THE REGISTRAR: Order in court.  4 MR. JACKSON:  My lord, just for your —  5 THE COURT:  I understand, Mr. Jackson, that you're anxious to  6 continue to five tonight.  7 MR. JACKSON:  Well, my lord, I won't continue late.  8 THE COURT:  Yes.  9 MR. JACKSON:  I have been asked to break at four to accommodate  10 the reporters, and I intend to do that, and I think at  11 that point I can advise your lordship just how late.  12 THE COURT:  All right.  Well, we'll break at four and we'll see  13 where we go from there.  You have somebody standing  14 by, have you, Miss French?  15 THE REPORTER:  Yes.  16 MR. WILLMS:  My lord, I wonder if after the break my friends  17 could also indicate where we are in the big picture.  18 I've heard rumours that we're up to two days behind,  19 suggestions of Saturday sitting.  We'd like to know as  20 soon as possible where my friends think they are.  21 MR. JACKSON:  It's a good question, my lord.  22 THE COURT:  All right.  We'll look forward to hearing from you  23 about that in due course.  24 MR. JACKSON:  Just one point of clarification, my lord, if  25 you've got Worcester v. Georgia, the report of a case  26 I gave to your lordship --  2 7 THE COURT:  Yes, I do.  28 MR. JACKSON:  Just so that your lordship isn't confused when you  29 in due course dip into these cases, the way these  30 cases are reported, the original reports, for example,  31 from Mr. Peters' reporting series, is a U.S. report  32 which is at the top of the page.  33 THE COURT:  Yes.  34 MR. JACKSON:  These particular reports are in what's called the  35 Lawyer Editions Reports, and so the citation is at the  36 bottom of the page.  And all the references to the  37 actual page numbers in my text where you have an  38 alternative cite, United States report and Lawyer's  39 Edition, the Lawyer Edition is at the bottom of the  40 page.  41 THE COURT:  At the bottom of the page I see 492.  42 MR. JACKSON:  That's the reference which you'll find in the  43 text.  44 THE COURT:  That's the page number?  4 5 MR. JACKSON:  Yes.  4 6 THE COURT:  All right.  Thank you.  47 MR. JACKSON:  My lord, I was at page 94.  And the Chief Justice, 24273  Proceedings  1 in reviewing in summary form the historical experience  2 of Britain and the United States, he said this:  3  4 "Indian Nations had always been considered as  5 distinct, independent political communities,  6 retaining their original natural rights, as the  7 undisputed possessors of the soil from time  8 immemorial, with the single exception of that  9 imposed by irrestisible power, which excluded  10 them from intercourse with any other European  11 potentate than the first discoverer of the  12 coast of the particular region claimed:  and  13 this was a restriction which European  14 potentates imposed on themselves, as well as on  15 the Indians.  The very term 'nation', so  16 generally applied to them, means 'a people  17 distinct from others'.  The Constitution, by  18 declaring treaties already made, as well as  19 those to be made, to be the supreme law of the  20 land, had adopted and sanctioned the previous  21 treaties with the Indian nations, and  22 consequently admits their rank among those  23 powers who are capable of making.  The words  24 'treaty' and 'nation' are words of our  25 language, selected in our diplomatic and  26 legislative proceedings, by ourselves, having  27 each a definite and well-understood meaning.  2 8                     We have applied them to Indians, as we have  29 applied them to the other nations of the earth.  30 They are applied to all in the same sense."  31  32 My lord, I might note with reference to what I  33 said yesterday, that section 35.3, of the  34 Constitution Act, 1982, in affirming existing treaty  35 rights, also acknowledges that future land claims  36 agreements are treaties for the purposes of  37 constitutional affirmation and protection, and they  38 too are part of the supreme law of the land.  And so,  39 my lord, section 35 in many ways takes us back to the  40 first formulation of a common law doctrine of  41 aboriginal rights in the same way as we say it takes  42 us back to the embodiment of those fundamental  43 principles in the Proclamation of 1763.  44 Chief Justice Marshall noted that Georgia herself  45 had, prior to the enactment of the Indian laws in  46 question, had concurred in this position:  47 24274  Proceedings  1 "Georgia herself has furnished conclusive  2 evidence that her former opinions on this  3 subject concurred with those entertained by her  4 sister states, and by the government of the  5 United States.  Various acts of her legislature  6 have been cited in the argument, including the  7 contract of cession made in the 1802, all  8 tending to prove her acquiescence in the  9 universal conviction that the Indian Nations,  10 possessed a full right to the lands they  11 occupied, until that right should be  12 extinguished by the United States, with their  13 consent;"  14  15 My lord, we say that it is this universal  16 conviction that aboriginal nations have aboriginal  17 rights to their territory encompassing ownership and  18 jurisdiction which cannot be extinguished except by  19 consent, to which our analysis of the pre-Proclamation  20 period has been directed.  It is this universal  21 conviction which we submit is the root of the common  22 law and is entrenched in the Royal Proclamation.  And  23 it is precisely because it is a universal conviction  24 that we say it applies prospectively both through the  25 Royal Proclamation and as a fundamental principle of  26 the common law to British Columbia.  27 And on the basis of this, my lord, the court  28 concluded that both the act of the state of Georgia  29 under which Worcester was prosecuted and the other  30 Georgia Indian laws were void as being repugnant to  31 the Constitution, laws, and treaties of the United  32 States.  33 Worcester v. Georgia in its recognition and  34 unequivocal affirmation of the aboriginal rights of  35 the Cherokees, should have been a major victory for  36 the Cherokees in their struggles for justice against  37 governments seeking to force them to give up their  38 territory.  Unfortunately, the efforts of the Supreme  39 Court to, in the words of Mr. Justice Chapman in the  40 New Zealand case of Simons, to which I will be  41 returning, in which the U.S. Supreme Court, threw its  42 protective decision over the plaintiff nation against  43 a gross attempt at spoliation, did not have its  44 intended effect.  Mr. Justice Story, after the court  45 handed down its decision, is recorded as having said  46 "The Court has done its duty.  Let the Nation do  47 theirs." 24275  Proceedings  1 Unfortunately in 1832 neither the United States  2 nor the state of Georgia saw their duty as respecting  3 the rights of the Cherokees.  The court delivered its  4 opinion on March the 3rd, 1832.  Two days later it  5 issued a special mandate to the Georgia court ordering  6 it to reverse its decision and to release the  7 missionaries.  The missionaries were not released and  8 a special messenger was sent to Georgia to obtain the  9 necessary official document showing that the state  10 court had refused to enter the Worcester mandate.  11 This messenger rushed back to Washington to get a  12 second degree from the court before the end of the  13 session, but the court rose before he arrived.  The  14 second writ could not then be obtained until the court  15 reconvened in January 1833.  16 They had short sessions, my lord in those days.  17 The second writ was never to be issued.  Between  18 March 1832 and January 1833 the duty to uphold  19 aboriginal rights became overshadowed by other  20 political considerations in the form of the spectre of  21 the southern states' nullification of federal laws.  22 South Carolina threatened to nullify a federal tariff  23 law and expected the other southern agricultural  24 states to follow suit, and in its action foreshadowed  25 the events, my lord, which were later to erupt in the  26 American Civil War.  27 And we say these events are of significance for a  28 number of reasons, the first one of which is that this  29 was not the first occasion in which the need to  30 accommodate federal state concerns overshadowed the  31 recognition of aboriginal rights.  32 And my friend, Mr. Rush, has already referred you  33 in his opening last Monday, and we will be coming back  34 in some detail, to the ways in which in the early  35 parts of this century when aboriginal peoples sought  36 to place before the courts the issue of whether or not  37 their rights were recognized as a matter of law, how  38 those efforts were bedevilled by the need on the part  39 of the federal and provincial governments to  40 accommodate their own respective interests and the way  41 in which aboriginal rights, as it were, fell between  42 the cracks.  43 The problem facing Jackson can be summarized in  44 this way, my lord, and I've set it out at page 98.  I  45 can give your lordship a brief resume.  Andrew Jackson  46 wished to enforce federal authority against South  47 Carolina, but how could he do that and not also assert 24276  Proceedings  1 federal authority against Georgia, in light of the  2 supreme court's decision.  If he asserted federal  3 authority against Georgia, he might drive Georgia into  4 the southern camp and precipitate the war which was  5 eventually to erupt in the 1860's.  6 Efforts therefore focused on the penitentiary at  7 Milledgeville in which the missionaries were  8 imprisoned, imploring them not to carry the writ back  9 to Worcester, not to carry the writ back to the  10 Supreme Court, not to force Andrew Jackson to make the  11 choice between the national interest, as it was  12 perceived by some, and the recognition of the Cherokee  13 rights.  After some consideration, Worcester decided  14 that he would not instruct his lawyers to go back to  15 the supreme court to enforce the original order, and  16 therefore the case never returned to the supreme  17 court, the missionaries were pardoned, and the  18 Cherokees were left to their fate.  19 And I have set out, my lord, what that fate was  20 and, having resolved the spectre of sudden  21 nullification, Jackson then turned his attention to  22 obtain a treaty from the Cherokees by which they would  23 voluntarily agree to move west of the Mississippi and  24 give up their lands to Georgia.  25 And the following account sets out that shameful  26 process.  At the bottom of page 99:  27  28 "Cass", (Jackson's secretary of war),  29 "threatened Ross", principal chief of the  30 Cherokee, "after the failure of individual  31 immigration, that the Government would treat  32 'with the whole or any portion of your people'.  33 He sent the Reverend J.F. Schermerhorn to  34 acquire part of Cherokee country from the small  35 educated tribal faction that had come to favour  36 removal.  This effort failed too, and Jackson  37 and Cass determined they would obtain a treaty  38 for the whole country or none of it.  39 Schermerhorn, meeting the expected opposition  40 from the bulk of the tribe, evolved a  41 'confidential plan'.  He arranged a meeting at  42 new Echota with the pro-removal faction and  43 wrote, 'We shall make a treaty with those who  44 attend, and rely upon it.  Currey, arranged  45 with the Georgia militia to arrest Ross in his  46 Tennessee home, and prevent him from coming to  47 Washington to protest Schermerhorn's plans. 24277  Proceedings  1 Ross was held in a Georgia jail for 12 days.  2 The militia also, with Schermerhorn's and  3 Currey's collaboration, seized the Cherokees  4 newspapers printing press to prevent the paper  5 from opposing Schermerhorn's treaty.  6  7 Virtually the entire Cherokee tribe stayed away  8 from new Echota; Schermerhorn made his treaty  9 with the few who were there.  Major W.M. Davis,  10 appointed before the ratification of the treaty  11 to enrol the tribe for removal, wrote the  12 secretary of war:  Sir, that paper, called a  13 treaty is no treaty at all, because not  14 sanctioned by the great body of the Cherokee  15 and made without their participation or assent.  16 I solemnly declare to you that upon its  17 reference to the Cherokee people it would be  18 instantly rejected by nine-tenths of them, and  19 I believe by nineteenth-twentieths of them.  20 They were not present at the conclusion of the  21 treaty more than 100 Cherokee voters and not  22 more than 300 including women and  23 children...Mr. Schermerhorn's apparent design  24 was to conceal the real number present and to  25 impose on the public and the government upon  26 this point. The delegation taken to Washington  27 by Mr. Schermerhorn had no more authority to  28 make a treaty than any other dozen Cherokee  29 accidentally picked out for the purpose.  30  31 Jackson closed his eyes to Schermerhorn's  32 methods and recommended that the Senate ratify  33 the treaty; it did so by one vote.  Jackson  34 rejected petitions signed by thousands of  35 Cherokees opposing the treaty, ordered Ross not  36 to come to Washington to oppose the treaty, and  37 refused to recognize the existing Cherokee  38 government.  He stated that a meeting of  39 thousands of tribal members in council to  40 oppose the treaty was 'in direct contradiction  41 to the plighted fate of their people.'"  42  43 Next page, my lord:  44  45 "Two years later in the spring of 1838 the army  46 rounded up 15,000 Cherokees who had refused to  47 remove in the time allotted under the New 2427?  Proceedings  1 Echota treaty.  They were seized as they worked  2 in their farms and fields, separated from their  3 possessions, and taken to military detention  4 camps.  They remained in captivity for months  5 while hundreds died from inadequate,  6 unaccustomed rations. The debilitation of  7 others contributed to deaths during the removal  8 march...  9  10 During the last scale Indians removal, 4,500  11 Cherokee Indians died.  President Van Buren,  12 (Andrew Jackson's successor), and secretary of  13 war Poinsett ignored the deaths.  They  14 congratulated themselves instead that removal  15 was at an end and that they had finally  16 permitted Chief Ross to lead the bulk of his  17 tribe west.  As Poinsett described the process,  18  19 The generous and enlightened policy...was ably  20 and judiciously carried into effect by the  21 general appointed...The reluctance of the  22 Indians to relinquish the land of their  23 birth...was entirely overcome ... Humanity, no  24 less than sound policy, dictated this course  25 towards these children of the forest.  26  27 The Commissioner of Indian affairs amplified:  28  29 A retrospect of the last eight months, in  30 reference to this numerous and more than  31 ordinarily enlightened tribe, cannot fail to be  32 refreshing to well-constituted minds...A large  33 mass of men have been conciliated, the hazard  34 of an infusion of blood had been put by, good  35 feeling has been preserved, and we have quietly  36 and gentle transported 18,000 friends to the  37 west bank of the Mississippi.  38  39 In Van Buren's words, 'the wise, humane and  40 undeviating policy of the government in the  41 most difficult of all our relations foreign or  42 domestic, has at length been justified to the  43 world in its near approach to a happy and  44 certain consummation.'  45  46 Instead of facing actual deaths, white policy  47 makers imagined Indian destruction as an 24279  Proceedings  1 abstracted and generalized process removed from  2 human control and human reality.  To face  3 responsibility for specific killing might have  4 led efforts to stop it; avoiding individual  5 deaths turned Indian removal into a theory of  6 genecide.  In Jackson's words,  7  8 Humanity has often wept over the fate of the  9 aborigines of this country, and Philanthropy  10 has been busily engaged in devising means to  11 avert it, but its progress has never for a  12 moment been arrested, and one by one have many  13 powerful tribes disappeared from the earth.  To  14 follow to the land the last of his race and to  15 tread on the grave of extinct nations excites  16 melancholy reflection. But true philanthropy  17 reconciles the minds to these vicissitudes as  18 it does to the extinction of one generation to  19 make room for another."  20  21 MR. WILLMS:  My lord, I just interrupt, that's another exhibit  22 that's been marked for identification and I just  23 wonder if my friend is, as with the other ones that  24 he's marked for identification, simply now going to  25 rely on this as a law review article because they  26 carry on in the argument purporting to make some  27 factual comparisons which are not supported by the  28 evidence at all.  And so I am concerned that my friend  29 is going away from what he said yesterday, I think, in  30 saying that's just a law review article, and if that's  31 all that he's citing this for, then the factual  32 comparison that my friend is now going to purport to  33 embark upon, has no basis in the evidence.  34 THE COURT:  Mr. Jackson?  35 MR. JACKSON:  My lord, it is our intention to address that and  36 other matters when we deal with the argument on the  37 role of these treatises.  That particular article, my  38 lord, is taken from a book by Professor Rogin, and it  39 is our submission that it is a treatment of a very  40 well established matter of history to which your  41 lordship can take judicial notice in the context of  42 understanding the aftermath of the Cherokee nation.  43 And the points to which I'm going to refer your  44 lordship are ones which are in evidence and which are  45 comparisons which we say are properly ones which we  46 can draw by way of argument.  And, in fact, I have set  47 them out at page 102 to 103, and your lordship will 24280  Proceedings  1 see the extent to which they require your lordship to  2 draw comparisons and the extent to which they require  3 your lordship to look at this particular passage in  4 the context of a well established historical fact.  5 THE COURT:  I don't know of any solution to this problem  6 frankly. I think it really comes into focus, which in  7 most cases is avoided, because it's been stressed so  8 heavily.  I think if you had summarized it there  9 wouldn't be any problem.  I don't see any legal  10 solution to this problem.  You have chosen to use this  11 history as a basis for illustration or comparison or  12 both, and I don't see anything wrong with that.  I'm  13 not sure where it gets us.  I think the legal question  14 is whether I am entitled to -- whether you are  15 entitled to place these matters before me as if they  16 were facts.  And of course that isn't before me.  I  17 think that's why in conventional litigation we don't  18 allow this sort of thing to be done because it just  19 expands litigation endlessly.  This isn't ordinary  20 litigation, and I don't think I'm going to be misled  21 or prejudiced into error on this ground alone.  It may  22 happen for other reasons, but I don't think the result  23 is going to be one that an appeal court would find was  24 a reversible error, as it is sometimes called, the  25 fact that I've heard all this, but I just, as I say, I  26 don't have an answer to your friend's objection.  I  27 don't know what it is.  28 MR. JACKSON:  My lord, perhaps we will endeavour to provide the  29 rejoinder which will comfort your lordship.  30 THE COURT: Well, it may be that I'll be in a position to deal  31 with it more precisely, with the objection, when I've  32 heard the argument.  At the moment, as far as I'm  33 concerned, it's no more proven than the fact that  34 Columbus discovered America.  I think he did, or part  35 of it, but it hasn't been proven.  I'm proceeding on  36 that basis or that assumption.  37 MR. JACKSON:  My lord, one of the reasons I did impose upon the  38 court in reading that passage is that, as your  39 lordship may well imagine, if I had summarized it in a  40 paragraph, I think your lordship and my friends  41 probably would have objected that my statements were  42 extravagant, inflammatory.  That was one of the  43 reasons why, my lord, I chose a text which is regarded  44 as being --  45 THE COURT:  That's one of the reasons we don't allow textbooks  46 in lawsuits because you can't rely on them.  There are  47 bad textbooks.  And we are not in a position to 24281  Proceedings  1 investigate which ones are good and which ones are  2 bad.  But I think we should carry on.  I think we have  3 a problem here, and I think everybody understands it,  4 and I haven't heard the answer to the problem, and  5 maybe hopefully I will.  6 MR. JACKSON:  Thank you, my lord.  7 THE COURT:  Let's rush on.  8 MR. JACKSON:  We say, my lord, at page 102, that the aftermath  9 of Worcester v. Georgia and the removal of the  10 Cherokees bears directly on the issues before this  11 court.  My lord, you have heard the evidence, although  12 of course that evidence does not come close to the  13 dispossession of the Cherokee, you've heard the  14 evidence of the way in which the Wet'suwet'en were  15 turned out of their homes and farms in the early part  16 of this country as those homes and farms were given  17 over to white settlers.  And we say that the attitudes  18 of Andrew Jackson and those who implemented Indian  19 removal are not so far --  2 0 THE COURT:  Mr. Jackson, I'm not going to condemn Andrew Jackson  21 in this lawsuit.  22 MR. JACKSON:  No, my lord, I'm —  23 THE COURT:  You can if you want, but I'm not going to.  24 MR. JACKSON:  I'm not asking you to do so.  25 THE COURT:  Well, it sounds like you are.  "The racist attitudes  2 6 of Andrew Jackson and those who implemented Indian  27 removal..."  You see that takes me right into the fact  28 that you are asking me now to accept as fact that  29 which hasn't been proven.  30 MR. JACKSON:  Well, my lord, we say that those attitudes, the  31 passage I read --  32 THE COURT:  See, this lawsuit isn't about whether Trutch was  33 racially prejudiced or President Jackson was racially  34 prejudiced.  They may have been.  That's not what this  35 lawsuit is about surely.  36 MR. JACKSON:  Well, my lord, we say that to the extent that  37 Joseph Trutch in his official communications to the  38 federal government, in his official statements as to  39 what British Columbia policy was in asserting that  40 British Columbia did not recognize aboriginal rights,  41 and what we say is the clear face of the record of  42 such recognition by his predecessor Governor Douglas.  43 THE COURT:  But shouldn't you surely point out the passages and  44 leave it to me to decide whether that proves racial  45 prejudice?  4 6 MR. JACKSON:  Yes, my lord.  47 THE COURT:  There may be all sort of extrinsic facts that I 24282  Proceedings  1 don't know about.  That's why we try to confine these  2 lawsuits to facts we can rely upon and to inferences  3 that can properly be drawn and inferences that need to  4 be drawn.  5 MR. JACKSON:  My lord, the next point I think is an inference  6 which needs to be drawn and which your lordship can  7 draw.  8 THE COURT:  Yes.  All right.  9 MR. JACKSON:  To argue, as the province of British Columbia  10 does, that the 45 square miles of reserve lands  11 represents the only lands to which the Gitksan and  12 Wet'suwet'en have aboriginal rights is, in effect, an  13 argument that they have been legally removed from the  14 balance of their ancient territories.  The province's  15 argument that the establishment of these tiny reserves  16 is the consummation of the liberal policy of article  17 13 of the terms of union and constitutes the extent to  18 which aboriginal rights are recognized in British  19 Columbia, is an argument which would give British  20 Columbia rights over the territories of the Gitksan  21 and Wet'suwet'en which the state of Georgia sought to  22 usurp over the Cherokee territories in 1830.  Those  23 rights in 1830, my lord, formed the basis upon which  24 the Cherokee nation had rebuilt its strength in the  25 early 19th century.  In the same way, the territories  26 of the Gitksan and the Wet'suwet'en have not only  27 formed the foundation of their distinctive culture and  28 economy, but provide the basis upon which their future  29 strength and survival depends.  30 It is our submission that aboriginal rights  31 defined in the manner of the plaintiffs' statement of  32 claim are the legal foundations to ensure that Andrew  33 Jackson's contemplation of the disappearance and  34 extinction of the Indian nations will never come to  35 pass in Canada.  And it is our submission that section  36 35 of the Constitution Act is designed to ensure that  37 the Canadian Confederation is built upon the vitality  38 and not the demise of the Indian nations.  39 My lord, the last of the five cases dealing with  40 aboriginal rights in which Chief Justice Marshall  41 participated, is the case of Mitchel v. United States.  42 The judgment in this case was, however, authored for  43 the court by Mr. Justice Baldwin.  44 And at 104 we say that the judgment of the court  45 in Mitchel is significant because the land in dispute  46 had, prior to its acquisition by the United States,  47 experienced a succession of colonial regimes and the 24283  Proceedings  1 court, in the course of its judgment, had occasion to  2 pronounce not only on the nature of aboriginal rights,  3 but also the legal effect on those rights of cession  4 of the territory from one European government to  5 another.  6 And the history of the case is set out at page 104  7 and 105 and, as your lordship knows, by the Treaty of  8 Paris, Great Britain acquired from France the east and  9 west Floridas.  She ceded these territories to Spain  10 in 1783, and in turn Spain ceded them to the United  11 States in 1819.  During the time of the Spanish  12 regime, the commercial House of Panton, Leslie &  13 Company, incurred heavy losses in its service to the  14 Crown, and as compensation for its losses, part of  15 which involved attacks on the store by some of the  16 Seminole Indians, the Seminoles expressed their  17 willingness to make a grant of their lands to the  18 company as compensation for losses.  The company made  19 an application to the governor-general of Louisiana  20 for leave to purchase from the Indians as much land as  21 would satisfy these claims, and this received  22 favourable consideration.  There was a deed of cession  23 made between the company and the Indians.  This deed  24 was confirmed in a great council of the Seminoles held  25 at Pensacola in the presence of the governor of west  26 Florida.  There was a further grant made in 1807 and  27 again the permission of the governor was given and the  28 grant also was made by way of a public council, again  29 at Pensacola.  30 Following the cession of the Floridas by Spain,  31 the United States contested the title of Mitchel, who  32 was the successor in title to the trading company.  33 The United States raised a number of arguments against  34 Mitchel's title, one of which was that "the claim, in  35 the present case, though of land within the  36 territorial limits of the Floridas, does not profess  37 to be founded on any original substantive grant made  38 by the King of Spain or his officers, but on cessions  39 made by Indians tribes, and on alleged ratifications  40 and confirmations the Spanish  41 authorities."  42 My lord, the unanimous opinion of the court, page  43 106, upheld the validity of the land titles derived  44 from the Indian grants, and in the course of so doing  45 addressed a number of issues which directly relate to  46 the subject matter of this litigation.  One of the  47 first issues dealt with by the court related to the 24284  Proceedings  1 relevant law determining the character of the rights  2 which a grantee could obtain from an Indian cession.  3 In response to the argument of the United States that  4 the grantees did not acquire a legal title to the  5 lands in question, the court noted that, as a court of  6 equity, its jurisdiction was to inquire into all  7 claims submitted to it, whether legal or equitable.  8 And the court continued:  9  10 "Whether, therefore, the title in the present  11 case partakes of the one character or the  12 other, it remains only for us to inquire  13 whether that of the petitioner is such in our  14 opinion that he has, either by the law of  15 nations, the stipulations of any treaty, the  16 laws, usages and customs of Spain, or the  17 province in which the land is  18 situated...acquired a right which would have  19 been valid if the territory had remained under  20 the dominion and in possession of Spain."  21  22 And we say, my lord, in this passage, Mr. Justice  23 Baldwin showed a willingness to contemplate the  24 application of other legal systems in addition to the  25 municipal law in adjudicating rival territorial  26 claims.  It's not as if Mr. Justice Baldwin said, U.S.  27 law is irrelevant, but in addressing what U.S. law  28 was, he showed what we say is an enlightened  29 willingness to look at all legal systems which are  30 legally relevant to the determination.  31 We will be suggesting to your lordship that  32 international law, for example, while it cannot  33 dictate to your lordship what the rule of decisions  34 should be for this case, is something of relevance to  35 your lordship's considerations.  36 The second principle identified by Mr. Justice  37 Baldwin is an important one, my lord, and it's one  38 upon which Canadian courts have been -- have focused.  39 It's referred to, and I previously referred to it, as  40 the principle of continuity.  And, as stated by Mr.  41 Justice Baldwin:  42  43 "That by the law of nations, the inhabitants,  44 citizens, or subjects of a conquered or ceded  45 country, territory or province, retained all  46 the rights of property which have not been  47 taken from them by the orders of the conqueror, 24285  Proceedings  1 or the laws of the sovereign who acquires it by  2 cession, and remain under their formal laws  3 until they shall be changed."  4  5 And the principle of continuity is one which the  6 supreme court had addressed just two years earlier in  7 a decision by Mr. -- by Chief Justice Marshall in  8 Percheman.  And at page 108 the Chief Justice talks  9 of:  10  11 "that sense of justice and of right which is  12 acknowledged and felt by the whole civilized  13 world would be outraged, if private property  14 should be generally confiscated, and private  15 rights unnulled..."  16  17 That should be "annulled".  18  19 "...on a change of sovereignty of the country."  20  21 And that is a principle, my lord, which is also  22 reflected in the Privy Council decision of Amodu  23 Tijani v. Southern Nigeria, and it's a principle which  24 was specifically affirmed in relation to the rights of  25 aboriginal peoples by Chief Justice Dickson in the  26 case of Guerin, and I have given you the citation on  27 page 108.  I should notice, my lord, that the citation  28 to Guerin you have at page 108 is not to the report  29 which is in our authorities.  That reference should be  30 to Supreme Court Reports 335 and 378.  31 There was a third principle identified by Mr.  32 Justice Baldwin, the familiar principles of Nemo dat  33 quod non habet, no one can give what they do not have.  34 As his lordship pointed out:  35  36 "That a treaty of cession was a deed or grant by  37 one sovereign to another, which transferred  38 nothing to which he had no right of property,  39 and only such right as he owned and could  40 convey to the grantee."  41  42 And it was there at page 109, my lord, and I've  43 said this on a number of occasions, this is exactly  44 the proposition in exactly those terms which Lord  45 Dorchester had addressed to the Indians in 1791, and  46 it's a principle which had already been affirmed in  47 unequivocal terms by Chief Justice Marshall in 24286  Proceedings  1 Worcester v. Georgia.  2 In considering "the nature and extent of the  3 Indian title" to the lands in dispute, Mr. Justice  4 Baldwin looked at both the laws of Great Britain and  5 of Spain.  And addressing himself first to British  6 law, and of course especial significance for your  7 lordship, he stated:  8  9 "As Florida was for 2 0 years under the dominion  10 of Great Britain, the laws of that country were  11 in force as the rule by which lands were held  12 and sold; it will be necessary to examine what  13 they were as applicable to the British  14 Provinces before the acquisition of the  15 Floridas by the Treaty of Peace in 1763.  One  16 uniform rule seems to have prevailed from their  17 first settlement as appears by their laws;"  18  19 This is the British, my lord.  20  21 "That friendly Indians were protected in the  22 possession of the lands they occupied, and  23 were considered as owning them by a perpetual  24 right of possession in the tribal nation  25 inhabiting them as their common property from  26 generation to generation, not as the right of  27 the individuals located on particular spots.  28  29 Subject to this right of possession, the  30 ultimate fee was in the Crown and its grantees  31 which could be granted by the Crown or  32 colonial legislatures while the lands remained  33 in possession of the Indians, though  34 possession could not be taken without their  35 consent."  36  37 My lord, Mr. Justice Baldwin is here stating what  38 he understands British law to be.  39  40 "Individuals could not purchase Indian lands  41 without permission or licence from the crown,  42 colonial governors, or according to the rules  43 prescribed by colonial laws; but such purchases  44 were valid with such licence, or in conformity  45 with the local laws; by this union of the  46 perpetual right of occupancy with the ultimate  47 fee, which passed from the crown by the 24287  Proceedings  1 licence, the title of the purchaser became  2 complete."  3  4 And Mr. Justice Baldwin continued with this, his  5 restatement, and we say a correct and accurate  6 restatement, of British law applicable to the colonies  7 regarding aboriginal rights with the following  8 statement as to the nature of the "perpetual right of  9 possession", which he identified as the rights of the  10 aboriginal peoples.  11  12 "Indian possession or occupation was considered  13 with reference to their habits and modes of  14 life; their hunting grounds were as much in  15 their actual possession as the cleared fields  16 of the whites; and their rights to its  17 exclusive enjoyment in their own way and for  18 their own purposes were as much respected,  19 until they abandoned them, made a cession to  20 the government, or an authorized sale to  21 individuals.  In either case, their right  22 became extinct, the lands could be granted  23 disencumbered of the right of occupancy, or  24 enjoyed in full domain by the purchasers from  25 the Indians.  Such was the tenure of Indians  26 lands by the laws of..."  27  28 And he recites the various colonial states and the  29 decision of courts in their construction.  30  31 "Such, too, was the view taken by this court of  32 Indians rights in the case of Johnson v.  33 Mcintosh which has received universal assent."  34  35 The merits of this case do not make it  36 necessary to inquire whether the Indians within  37 the United States had any other rights of soil  38 or jurisdiction.."  39  40 And, of course, in Worcester v. Georgia, my lord,  41 the court had inquired precisely as to that issue and  42 said that they had.  43  44 "it is enough to consider it as a settled  45 principle that their right of occupancy is  46 considered as sacred as the fee-simple of the  47 whites." 242?  Proceedings  1  2 And, my lord, at page 111, and I won't repeat  3 myself here, Mr. Justice Baldwin looked at the Royal  4 Proclamation as, in his way, in his view, affirming  5 these principles of law.  And the way he characterized  6 the Royal Proclamation in the passages I've set out at  7 111 we say is entirely consistent with the plaintiffs'  8 submission that the Proclamation was a restatement of  9 fundamental common law principles.  He says:  10  11 "The principles which had been established in  12 the colonies were adopted by the King in the  13 Proclamation of October 1763 and applied to the  14 provinces acquired by the Treaty of  15 the law which should govern the enjoyment and  16 transmission of Indian and vacant lands."  17  18 And there's a passage at the bottom of the page,  19 my lord, which both Mr. Rush and I have cited to you  20 previously which we would again commend to your  21 lordship's consideration.  22 Out of deference to the court reporter, my lord, I  23 would stop at this point.  24 THE COURT:  All right.  All right.  Thank you.  25 THE REGISTRAR: Order in court. This court stands adjourned for a  26 short recess.  27  2 8 (PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS)  29  30 I hereby certify the foregoing to be  31 a true and accurate transcript of the  32 proceedings herein transcribed to the  33 best of my skill and ability.  34  35    36 Tanita S. French  37 Official Reporter  38  39  40  41  42  43  44  45  46  47 24289  Submissions by Mr. Jackson  1  2 THE REGISTRAR:  Order in court.  3 THE COURT:  Mr. Jackson.  4 MR. JACKSON:  Thank you, my lord.  I just finished commending  5 Your Lordship to the passage at the bottom of 111 and  6 the top of page 112.  My lord, at page 112 we say that  7 it has been asserted in later cases and indeed most  8 recently by --  9 THE COURT:  I'm sorry, where are you please?  10 MR. JACKSON:  Top of 112.  11 THE COURT:  Oh, yes.  Thank you.  12 MR. JACKSON:  It has been asserted in later cases, most recently  13 in the Bear Island case, and it is a principle part of  14 both the provincial defendants' positions that the  15 British practise of protecting Indians lands and  16 negotiating treaties was "a policy borne of prudence  17 and benevolence and did not entail recognition of any  18 legal rights to the lands in question".  That's a  19 statement taken from one of the judgments in St.  20 Catherine's Milling which I will be dealing with  21 tomorrow morning.  22 Mr. Justice Baldwin -- and of course our position  23 is that that is wrong.  Mr. Justice Baldwin in  24 Mitchell we say quite specifically repudiated any such  25 interpretation of British practice:  26  27 "Such were the relations between the Indians and  28 Great Britain as established by the  29 Proclamation of 1763, and confirmed by  30 subsequent treaties between them from 1765 to  31 1779 during the period of her dominion over the  32 Floridas.  This liberality and kindness to  33 them, with respect for their rights of property  34 in their lands or hunting grounds, would seem  35 to have arisen more from a sense of justice,  36 then motives of mere policy when we consider  37 the position of Great Britain between the  38 Treaty of 1763 and the commencement of the  39 Revolution."  40  41 My lord, the next part of the judgment looks at  42 the way in which the Spanish authorities continue to  43 acknowledge property rights of the Indian Nations, and  44 summarizing that Spanish position, he does so at the  45 top of page 113:  46  47 "But Spain did not consider the Indian right to 24290  Submissions by Mr. Jackson  1 be that of mere occupancy and perpetual  2 possession, but a right of property in the  3 lands they held under the guarantee of  4 treaties, which were so highly respected, that  5 in the establishment of a military post by a  6 royal order, the site thereof was either  7 purchased from the Indians or occupied with  8 their permission,"  9  10 And of course, my lord, we have described similar  11 respect shown by British authorities in what is now  12 Canadian territories in the -- what is now the  13 Province of Ontario.  14 Summarizing the rights of the Indians during the  15 British and Spanish regime at the bottom of 113, Mr.  16 Justice Baldwin concluded:  17  18 "On these considerations, we are clearly of  19 opinion that the Indians who claimed the lands  20 in question had, under the Government of Great  21 Britain and Spain, a right of property in them  22 which could not be impaired without a violation  23 of the laws of both, and the sanctity of  24 repeated treaties; that these rights continued  25 till the time of the cession ... guaranteed by  26 the treaty and acts of Congress in relation to  27 the Floridas in perfect conformity with the  28 stipulations and faith unless the Indians had  29 previously made a binding transfer to the  30 parties under whom the petitioner claims them."  31  32 The remaining question there for the court was  33 whether the petitioners had become invested with the  34 right of the Indians, either in virtue of their deeds  35 or by the grant of the lawful authorities of the King,  36 pursuant -- and on this question, Mr. Justice Baldwin  37 concluded:  38  39 "The Proclamation of 1763 was undoubtedly the  40 law of the province till 1783; it gave direct  41 authority to the governors of Florida to grant  42 crown lands subject to only such conditions and  43 restrictions as they or the King might  44 prescribe.  These lands were of two  45 descriptions; such as had been ceded to the  46 King by the Indians, in which he had full  47 property and dominion, and passed his full 24291  Submissions by Mr. Jackson  1 property to the grantee; and those reserved and  2 secured to the Indians, in which their right  3 was perpetual possession, and his was the  4 ultimate reversion in fee, which passed by the  5 grant subject to the possessory rights.  The  6 proclamation also authorized the union of these  7 rights by a purchase from the Indians, and  8 taking possession with the leave and licence of  9 the crown in favour of an individual, or by the  10 governor at an Indian council, for and in the  11 name of the King."  12  13 I would commend the rest of that passage to Your  14 Lordship's consideration as well.  15 My lord, turning to page 116.  By way of  16 conclusion we say that as articulated by the Supreme  17 Court of United States in Mitchel, the respective  18 Indian and Crown grants to land were these.  The  19 Indians had both a right of property in their lands  20 and were considered as owning them by a perpetual  21 right of possession.  This possession was considered  22 with reference to their habits and modes of life.  23 Their rights to its exclusive enjoyment in their own  24 way and for their own purposes were as much respected,  25 until they abandoned them, made a cession to the  26 government, or an unauthorized sale to individuals.  27 The Crown had, subject to the Indian rights, a remote  28 ultimate fee, a very remote contingent interest which  29 entitled the Crown to acquire the Indian rights by  30 their voluntary sale or abandonment by the Indians.  31 The Indian rights of property were capable of  32 alienation either to the Crown or someone authorized  33 by the Crown.  A sale of land by the Indians, ratified  34 by the Crown, united the present Indian and the  35 contingent Crown rights, conveyed them to the  36 purchaser and so perfected his title.  It is submitted  37 that these views confirmed and developed those  38 advanced by Chief Justice Marshall in Worcester and  39 Georgia, and that they represent a concrete statement  40 of the law which should be applied by this court.  41 My lord, that concludes our consideration of the  42 Marshal decisions.  I wish now to turn to what I have  43 referenced as the New Zealand connection.  This is in  44 two parts, my lord.  First a consideration of the  45 decision of the New Zealand Supreme Court in 1847 in  46 the case of Symonds, and secondly a consideration of  47 the Treaty of Waitangi.  What I would propose to do, 24292  Submissions by Mr. Jackson  1 my lord, is to deal with the first of those this  2 evening, and deal with the second tomorrow morning.  3 My lord, at the bottom of page 116.  We have  4 previously submitted that the Marshall court judgments  5 are significant not as a statement of American law,  6 but as a restatement of the fundamental principles  7 governing the legal relationship between colonial  8 authorities and Indian Nations.  That these principles  9 have general application was affirmed in 1847 in the  10 context of colonial settlement in New Zealand in the  11 case of Symonds, a decision of the New Zealand Supreme  12 Court.  It is submitted that this case is of especial  13 importance in light of the fact that it was handed  14 down only two years before the beginning of colonial  15 settlement in British Columbia.  16 My lord, the importance of understanding  17 aboriginal rights in a comparative framework, in light  18 of the experience of other colonies, and especially  19 New Zealand, established in a similar timeframe at  20 British Columbia, has been recognized in the most  21 recent jurisprudence of the New Zealand Court of  22 Appeal.  President Cooke, in a decision handed down in  23 February of this year, is in fact the most recent  24 decision handed down by New Zealand's high court  25 observed, and, my lord, this is to be found -- of  26 course it is as yet an unreported decision in volume  27 10, Tab 2.  28  29 "More recently in Canada Indian rights have been  30 identified as pre-existing legal rights not  31 created by Royal Proclamation, statute or  32 executive order.  It has been recognized that,  33 in some circumstances at least, the Crown is  34 under a fiduciary duty to holders of such  35 rights in dealings relating to their  36 extinction.  The judgments of Guerin, cited  37 earlier, delivered by Dickson J., and Wilson  38 J., seemed likely to be found of major guidance  39 when such matters come finally to be decided in  40 New Zealand.  The approach of this court in the  41 Maori Council case to the principles of the  42 Treaty of Waitangi and the partnership and  43 fiduciary analogies there drawn are consistent  44 with them ... There are constitutional  45 differences between Canada and New Zealand, but  4 6 the Guerin judgments do not appear to turn on  47 these." 24293  Submissions by Mr. Jackson  1  2 And that is a significant part.  3  4 "Moreover, in interpreting New Zealand  5 parlimentary and common law it must be right  6 for New Zealand courts to lean against any  7 inference that in this democracy the rights of  8 the Maori people are less respected than the  9 rights of aboriginal peoples are in North  10                     America."  11  12 My lord, the -- I will have occasion to come back  13 to this judgment and a couple of other references.  I  14 might just say, my lord, that it was in this judgment  15 that President Cooke noted the evolutionary nature of  16 modern case law on aboriginal rights.  We say that the  17 New Zealand connection is of historical significance  18 not only as part of a comparative analysis of  19 aboriginal rights, but also in the particular context  20 of British Columbia.  And Mr. Rush in his submissions  21 to you has already put before Your Lordship the  22 comments of James Stephen, the Under Secretary of  23 State for the Colonies, who was involved in the  24 drafting of the renewal of the Hudson's Bay charter in  25 1838, and who was also instrumental in the formulation  26 of Maori policy in New Zealand at the same time.  27 The second historical point of connection is one  28 which relates to the form of conveyance used by James  29 Douglas in the treaties he negotiated with the native  30 people on Vancouver Island in the 1850's.  It was a  31 form of conveyance closely modeled on the form used by  32 the New Zealand company for obtaining cessions from  33 the Maoris.  34 Turning now, my lord, to the case of Symonds in  35 1847.  The underlying facts in this case bear a  36 remarkable similarity to Johnson and Macintosh.  And I  37 note down to the fact that one of the parties of this  38 dispute had the same name.  The New Zealand Mr.  39 Macintosh had effected a purchase of lands from the  40 Maori proprietors having obtained a certificate issued  41 by Governor Fitz Roy waiving the Crown's exclusive  42 right of acquiring the land from the natives.  The  43 Crown subsequently made a grant of the same land and  44 the issue was as between Mr. Macintosh and the Crown  45 grantee as to who had the better title.  46 Mr. Justice Chapman clearly and carefully  47 articulated the nature and source of what he called 24294  Submissions by Mr. Jackson  1 the principles of universal application to resolve  2 this dispute.  And Mr. Justice Chapman was  3 particularly careful in articulating these principles  4 for reasons which he set out in his judgment:  5  6 "As this question involves principles of  7 universal application to the respective  8 territorial rights of the Crown, the aboriginal  9 Natives and the European subjects of the Queen;  10 as moreover its decision may affect larger  11 interest than even this court is up to this  12 moment aware of, I think it is incumbent on us  13 to enunciate the principles upon which our  14 conclusion is based with more care and  15 particularity than would, under other  16 circumstances, be necessary.  17 The intercourse of civilized nations, and  18 especially of Great Britain, with the  19 aboriginal natives of America and other  20 countries, during the last two centuries, has  21 gradually led to the adoption and affirmation  22 by the colonial courts of certain established  23 principles of law applicable to such  24 intercourse.  Although these principles may at  25 times have been lost sight of, yet animated by  26 the humane spirit of modern times, our Colonial  27 Courts and the Courts of such of the United  28 States of America as have adopted the common  29 law of England, have invariably affirmed and  30 supported them; so that to this day, a line of  31 judicial decision, the current of legal  32 opinion, and above all the settled practice of  33 the colonial governments, have concurred to  34 clothe with certainty and precision what would  35 otherwise have remained vague and unsettled.  36 These principles are not the new creation or  37 invention of the colonial courts.  They flow  38 not from what an American writer has called the  39 'vice of judicial legislation', they are in  40 fact to be found among the earliest settled  41 principles of our law; and they are in part  42 deduced from those higher principles from  43 charters made in conformity with them,  44 acquiesced in even down to the charter to our  45 own colony; and from the letter of treaties  46 with native tribes wherein those principles  47 have been asserted and acted upon." 24295  Submissions by Mr. Jackson  1  2 Mr. Justice Chapman then recited the common law  3 principle, which he termed, "springing no doubt from  4 the feudal origin and nature of our tenures that the  5 King was the original proprietor of all the lands in  6 the Kingdom, and consequently the only legal source of  7 private title", and he continued:  8  9 "As a necessary corrolory from the doctrine,  10 'that the Queen is the exclusive source of  11 private title', colonial courts have invariably  12 held ... that they cannot give effect to any  13 title not derived from the Crown ...  14 It seems to flow from the very terms in  15 which the principle 'that The Queen is the only  16 source of title', is expressed, that no subject  17 can for himself acquire new lands by any means  18 whatsoever.  Any acquisition of territory by a  19 subject, by conquest, discovery, occupation, or  20 purchase from native tribes (however it may  21 entitle the subject, conquerer, discovered, or  22 purchaser, to gracious consideration from the  23 Crown) can confer no right on the subject.  24 Territories, therefore, acquired by the subject  25 in any way vest at once in the Crown.  To  26 state the Crown's right in the broadest way:  27 it enjoys the exclusive right of acquiring  28 newly found or conquered territory, and of  29 extinguishing the title of any aboriginal  30 inhabitants to be found there on ...  31 To say that such purchases (that is  32 purchases from the aboriginal inhabitants) are  33 absolutely nil and void, however, is obviously  34 going too far.  If care be taken to purchase  35 off the true owners, and to get in all  36 outstanding claims the purchases are good as  37 against the native seller, but not against the  3 8 Crown ..."  39  40 Now, Mr. Justice Chapman then addressed himself to  41 the nature of the native title.  And I should say, my  42 lord, that in stating those principles, they are  43 principles which are in themselves reflected, of  44 course, in the logs of the American colonies  45 prohibiting the purchase by private individuals from  46 the natives, except with the especial leave and  47 licence and authorization of the Crown. 24296  Submissions by Mr. Jackson  1 Mr. Justice Chapman then addressed himself to the  2 nature of the native title.  This is the passage which  3 we attached particular importance.  4  5 "The practice of extinguishing native titles by  6 fair purchases is certainly more than two  7 centuries old.  It has long been adopted by the  8 Government in our American colonies, and by  9 that of the United States.  It is now part of  10 the law of the land, and although the courts of  11 the United States in suits between their own  12 subjects, will not allow a grant to be  13 impeached under pretext that the native title  14 has not been extinguished, yet they would  15 certainly not hesitate to do so in a suit by  16 one of the native Indians."  17  18 And I'll be returning to that passage, my lord,  19 when we consider certain passages in the Supreme Court  20 of Canada in St. Catherine Millings case by Mr.  21 Justice Henry, and I will be comparing those  22 statements to the statements of Mr. Justice Chapman.  23  24 "In the case of Cherokee Nation and the State  25 of Georgia, the Supreme Court threw its  26 protective decision over the plaintiff nation,  27 against a gross attempt at spoliation; calling  28 to its aid, throughout every portion of its  29 judgment, the principles of the common law as  30 applied and adopted from the earliest times by  31 the colonial laws."  32  33 And I think, my lord, the reference Mr. Justice  34 Chapman is meaning there is Worcester and Georgia.  35  36 "Whatever may be the opinion of jurists is as to  37 the strength or weakness of native title,  38 whatever may have been the past vague notions  39 of the natives of this country, whatever may be  40 their present clearer and still growing  41 conception of their dominion over land, it  42 cannot be too solemnly asserted that it is  43 entitled to be respected, that it cannot be  44 extinguished (at least in times of peace)  45 otherwise than by the free consent of the  46 native occupiers."  47 24297  Submissions by Mr. Jackson  1 My lord, this may explain why the plaintiffs in  2 identifying fundamental principles have earmarked the  3 principle of consent as being a particular important  4 principle, even though, as Your Lordship has correctly  5 observed, it was not a principle addressed in Calder,  6 it is our submission that it has as great precedent  7 value, in terms of the history and previously the  8 precedents of colonial courts and the Marshall  9 decisions, that it is to be accorded the same status  10 by Your Lordship.  But that is a submission, of  11 course, which I will return, my lord.  My point here  12 is to identify that Mr. Justice Chapman in Symonds  13 identified it as being one of those fundamental  14 principles based upon long established and consistent  15 practice.  16  17 "But for their protection and for the sake of  18 humanity the government is bound to maintain,  19 and the courts to assert, the Queens exclusive  20 right to extinguish it."  21  22 And there, you see, my lord, the power to  23 extinguish is acknowledged, but its acknowledged in  24 the context that it can only be done with the free  25 consent of the native occupiers.  26  27 "It follows from what has been said, that  28 solemly guaranteeing the native title and  29 securing what is called the Queen's pre-emptive  30 right, the Treaty of Waitangi, confirmed by the  31 charter of the colony, does not assert either  32 in doctrine or in practice anything new and  33 unsettled.  34 ... The legal doctrine as to the exclusive  35 right of the Queen to extinguish the native  36 title, although it operates only as a restraint  37 upon the purchasing capacity of the Queen's  38 European subjects, leaving the natives to deal  39 among themselves, as freely as before the  40 commencement of our intercourse with them is no  41 doubt incompatible with that full and absolute  42 dominion over the lands which they occupy,  43 which we call an estate in fee.  But this  44 necessarily arises out of our peculiar  45 relations with native race, and out of our  46 obvious duty of protecting them, to as great an  47 extent as possible, from the evil consequences 2429?  Submissions by Mr. Jackson  1 of the intercourse to which we have introduced  2 them, or have imposed upon them.  To let in all  3 purchasers, and to protect and enforce every  4 private purchase would be virtually to  5 confiscate the lands of the natives in a very  6 short time.  The rule laid down is, under the  7 actual circumstances, the only one calculated  8 to give equal security to both races."  9  10 And what he is talking about here, my lord, is the  11 restriction on alienation to any other than the Crown.  12 The restriction and prohibition against private  13 purchases.  14  15 "Although may be apparently against what are  16 called abstract or speculative rights, yet it  17 is founded on the largest humanity; ..."  18  19 Just a few lines down, my lord.  20  21 "Technically, it contemplates the native  22 dominion over the soil as inferior to what we  23 call an estate in fee:"  24  25 And of course, my lord, an estate in fee allows  26 free alienation, so in that respect the restraint on  27 alienation is something less.  His Lordship continues:  28  29 "practically, it secures to them all the  30 enjoyments from the land which they had before  31 our intercourse, and as much more as the  32 opportunity of selling portions, useless to  33 themselves, afford.  From the protective  34 character of the  rule, then, it is entitled  35 respect on moral grounds, no less than to  36 judicial support on strictly legal grounds."  37 In order to enable the Court to arrive at a  38 correct conclusion upon this record, I think it  39 is not at all necessary to decide what estate  40 the Queen has in the land previous to  41 extinguishment of the native title."  42  43 At the bottom of the page --  44 THE COURT:  What is he talking about there?  What extinguishment  45 does he mean there?  46 MR. JACKSON:  What he is saying there, my lord, is that in light  47 of the fact -- as I understand this portion of his 24299  Submissions by Mr. Jackson  1 judgment, he is saying that it is not necessary in  2 order to characterize the precise nature of the  3 Crown's title prior to a purchase from, in this case,  4 the Maoris.  5 THE COURT:  All right.  You think he is talking about the  6 particular extinguishment that arose in this case?  7 MR. JACKSON:  No, my lord.  I think he is talking about general.  8 THE COURT: If it arose?  9 MR. JACKSON:  If it arose.  10 THE COURT:  It might have been -- previous to any  11 extinguishment?  12 MR. JACKSON:  Yes.  13 THE COURT:  All right.  14 MR. JACKSON:  That is my understanding of the tenor of this  15 passage.  16 THE COURT:  All right.  17 MR. JACKSON:  The bottom of the page.  18  19 "The assertion of the Queen's pre-emptive right  20 supposes only a modified dominion as residing  21 in the natives but it is also a principle of  22 our law that the freehold never can be in  23 abeyance; hence the full recognition of the  24 modified title of the natives and its most  25 careful protection, is not theoretically  26 inconsistent with the Queens seisin in fee as  27 against her European subjects.  This technical  28 seisin against all the world except the Natives  29 is the strongest ground where on the due  30 protection of their qualified dominion can be  31 based."  32  33 And the reference is there, my lord, references  34 there, my lord, are to the majority position of Chief  35 Justice Marshall in Fletcher and Peck applying these  36 principles to the case before him.  The later judge  37 held that the Crown's title, whatever it was or  38 whether it was an actual seisin in fee as against  39 European subjects or a mere possibility of seisin,  40 could not be waived by the governor as the certificate  41 which Mr. Macintosh held had reported to do.  There  42 was a further base for the actual ruling, and that was  43 under the specific terms of the New Zealand charter,  44 an interest inland could only be conveyed by letters  45 patent the public seal of the colony.  46 There was a concurring judgment of Chief Justice  47 Martin, and in that case Chief Justice Martin 24300  Submissions by Mr. Jackson  1 articulated as the general law of the British Colonial  2 Empire certain propositions, and he cited from  3 Chancellor Kent's commentaries on American law as  4 stating principles which are derived from the period  5 when the present states were colonies and dependencies  6 of Great Britain.  And one of those passages, my lord,  7 I have set out, it's Chancellor Kent's paraphrase, as  8 it were, though it's the most literal transliteration  9 of Johnson and Macintosh:  10  11 "The European nations which respectfully  12 establish colonies in America assumed the  13 ultimate dominion to be in themselves, and  14 claim the exclusive right to grant a title to  15 the soil, subject only to th Indian right of  16 occupancy.  The Natives were admitted to the  17 the rightful occupants of the soil, with a  18 legal as well as just claim to retain  19 possession of it and to use according to their  20 discretion, though not to dispose of the soil  21 at their own will, except to the government  22 claiming the right of pre-emption."  23  24 And in fact these passages from Kent's  25 commentaries are recited and restates both by the  26 majority judgment in St. Catherine Millings in the  27 Supreme Court, Judgment of Chief Justice Fournier, and  28 by the descenting judge Mr. Justice Strong.  29 It is our submission, my lord, that the decision  30 of the New Zealand Supreme Court in Symonds at that  31 time, that a leading decision in the British Empire on  32 aboriginal rights in affirming as principles of  33 universal application that native rights to land  34 cannot be extinguished otherwise than by the free  35 consent of the native occupiers correctly stated the  36 common law applicable to British Columbia at the  37 formation of the colony of Vancouver Island in 1848  38 and at the formation of the mainland colony in 1858.  39 My lord, subject to Your Lordship's wishes, I  40 would conclude at that point.  41 THE COURT:  Well, all right.  Before we adjourn, it did occur to  42 me that while I said before that I didn't see the  43 answer to Mr. Willms' objection, I wonder if I might  44 leave this thought with counsel, that perhaps the  45 answer to Mr. Willms' specific objection with relation  46 to the Cherokee case might be the findings or the  47 comments on facts that appear in the actual reports of 24301  Submissions by Mr. Jackson  1 those decisions, and that I could deal with that case  2 on the -- on those facts as stated assuming there to  3 be true.  It seems to me that it takes it beyond the  4 textbook stage, if I can put it that way.  If that  5 solves any part of the problem.  6 MR. WILLMS:  My lord, most of the problem from that one —  7 McLoughlin sets out two phases.  The first phase is  8 what leads up to the judgment, and some of that is  9 indeed contained.  Certainly the treaties, the  10 constitution, all of that, you can find that in the  11 judgment itself.  12 THE COURT:  Yes.  13 MR. WILLMS:  It's what follows, and that is the point that I  14 think my friend was using as the point of comparison,  15 where Andrew Jackson changes his hat, so-to-speak,  16 according to my friend.  17 THE COURT:  Well, comity alone precludes me from passing on the  18 morality of otherwise precedence of a friendly state,  19 but I see no reason why Mr. Jackson can't extract from  20 the report in the Worcester case the facts that are  21 stated and make his own submissions based upon those  22 facts.  And in doing so, I may add, adopting the  23 argument or the view that may coincidentally be found  24 in the textbook --  25 MR. WILLMS: The coincidental effect, my lord, follows the  26 judgment, and if all my friend wanted to do was take  27 the facts in the judgment and the fact of the judgment  28 and then make an argument based on that, that's one  29 thing.  3 0 THE COURT:  Yes.  31 MR. WILLMS:  But to then go into what he says were the political  32 manueverings in congress, which followed --  33 THE COURT:  Well, I am not really very impressed by political  34 maneuvering in congress any more than impressed by  35 political maneuvering in any other country.  I think  36 that there are reasons why people do things in the  37 political arena that are beyond scrutiny at this level  38 of the organization's society.  But I throw that out  39 merely for whatever thought counsel can give to it.  I  40 haven't studied recently the reports in the Cherokee  41 cases, and I don't know how much those facts are set  42 out, but I suspect --  43 MR. JACKSON:  Quite a significant part of it, my lord, yes.  44 THE COURT:  All right.  What time do you want to start in the  45 morning?  46 MR. JACKSON:  I think, my lord, I would prefer to start at the  4 7 normal time. 24302  Submissions by Mr. Jackson  1 THE COURT:  Yes , all right.  2 MR. JACKSON:  And subject to Madam Reporters, go a little bit  3 late.  I appreciate the Reporters would prefer to  4 start early, but it would be better for me to start at  5 10:00.  6 THE COURT:  Well, as long as it isn't expected that we'll have a  7 transcript at 10:00 o'clock in the morning, I'm sure.  8 MR. JACKSON:  Not from the plaintiffs' point of view.  9 THE COURT:  During the course of the day there will be one  10 available some time.  All right.  10:00 o'clock  11 tommorrow morning.  12  13 (PROCEEDINGS ADJOURNED TO APRIL 12, 1990 AT  14 10:00 A.M.)  15  16 I HEREBY CERTIFY THE FOREGOING TO BE  17 A TRUE AND ACCURATE TRANSCRIPT OF THE  18 PROCEEDINGS HEREIN TO THE BEST OF MY  19 SKILL AND ABILITY.  20  21    22 LORI OXLEY  23 OFFICIAL REPORTER  24 UNITED REPORTING SERVICE LTD.  25  26  27  28  29


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