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Delgamuukw Trial Transcripts

[Proceedings of the Supreme Court of British Columbia 1990-04-17] British Columbia. Supreme Court Apr 17, 1990

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 24406  Submissions by Mr. Jackson  1 VANCOUVER, B.C.  2 April 17, 1990  3  4 THE REGISTRAR:  Order in court.  In the Supreme Court of British  5 Columbia, this 17th day of April, 1990, Delgamuukw  6 versus Her Majesty the Queen, at bar, my lord.  7 THE COURT:  Mr. Rush.  8 MR. RUSH:  Yes, my lord.  I indicated on Friday that I would  9 speak to your lordship about the timing of the  10 plaintiffs' argument.  11 THE COURT:  Yes.  12 MR. RUSH:  And on that question we've examined the options, and  13 we would like to propose that the plaintiffs be  14 allocated a further week for the purposes of  15 completing their argument, and we propose that that  16 follow the break in May, and we do think that it will  17 take a week, and we're -- we estimate that we're about  18 three and a half to four days behind now, so I don't  19 see any other way of making it up, my lord.  We've  20 examined evening sittings and Saturday sittings, and  21 all of those options seem not feasible.  So that's the  22 plaintiffs' proposal.  23 THE COURT:  Yes.  Mr. Plant.  24 MR. PLANT:  Well, my principal concern of course is whether  25 that's going to have an effect on the amount of time  26 that we have -- I guess both the week off, that we  27 were anxious to have consecutively the 15 days.  2 8 THE COURT:  Yes.  29 MR. PLANT:  I don't know that's something that needs to be  30 spoken to now.  I don't think my friend is saying he's  31 suggesting we give up one of our weeks.  32 THE COURT:  Well, he might suggest it, but not seriously.  33 MR. PLANT:  I do have one other observation, though, and that is  34 that by my reckoning plaintiffs need about eight more  35 days.  That is that up until now, working on the  36 assumption that the calculation I did this morning has  37 some accuracy, that they delivered a seven-volume  38 summary, and roughly speaking they're about two and a  39 half volumes into that after nine days of argument.  40 If you extrapolate from that, then my guestimate is  41 that they are really going to be needing seven or  42 eight more days rather than five, and I assume that my  43 friend is suggesting that we're going to be sitting  44 longer hours more consistently.  I just want to be  45 sure that the week estimate is realistic.  46 THE COURT:  Well, we can't do much about it if it isn't, can we.  47 MR. PLANT:  No.  And it would help us in our plans, but that's 24407  Submissions by Mr. Jackson  1 about all.  2 THE COURT:  You don't see any — or do you, Mr. Plant, see any  3 extension of the time that you might require?  4 MR. PLANT:  We're looking at that question, my lord, and as of  5 now I think we're okay, but obviously we're going to  6 have to respond to some interesting questions, as the  7 Cherokee removal, and whether Andrew Jackson was a  8 racist, and other issues that have been raised by the  9 plaintiffs which we had not thought were relevant to  10 this case.  We're having to examine those on a  11 day-to-day basis, but as of now we're okay, the 15-day  12 estimate is the one we're working on.  13 THE COURT:  All right.  Mr. Macaulay.  14 MR. MACAULAY:  I hoped to be in a position to say that we would  15 need less than our 15 days to make our argument, but  16 having regard to the extended character of the  17 Province's counter-claim, that doesn't seem too  18 likely.  Their interpretation of the history of this  19 province is an unusual one, it needs to be answered in  20 detail and with reference to many documents.  Most of  21 the documents they have referred to in their summary.  22 So we will -- we may need all of our 15 days, a great  23 deal of it, to deal with the counter-claim.  This  24 trial having gone on so long and the issues being so  25 important, it's -- in my respectful submission on the  26 question of cutting the plaintiffs off in an arbitrary  27 way, clearly they need another week, and they may need  28 three or four days after that.  So be it.  And the  29 plaintiffs, and I think it's extremely important to  30 all of the parties, particularly the plaintiffs, to  31 have every opportunity to make their fullest argument  32 possible.  33 THE COURT:  All right.  Well, thank you, Mr. Macaulay.  Well,  34 Mr. Rush, I don't have any difficulty with the extra  35 week that you're seeking, and I think we should make  36 that assumption.  I would assume though that it would  37 be in Vancouver for the simple logistical reason  38 there's going to be a gap in order to get the exhibits  39 to Vancouver, and if we don't carry on in Vancouver as  4 0 we planned, there would be even a further up-and-down  41 period to get documents to Vancouver and sort it out,  42 and while that may not be the most important thing in  43 the world, I have made substantial commitments that  44 are going to be awkward to be away from Vancouver  45 after this four-week period plus the additional down  46 week where I have to be away then as well, I can't be  47 away longer than that.  I also have to say that if it 24408  Submissions by Mr. Jackson  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  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  MR. RUSH:  THE COURT  MR. RUSH:  THE COURT  MR. RUSH:  was only an extra week for the plaintiffs and the  defendants were still within their time it would seem  to me we would still finish by June 30th at 4:00 p.m.  If the Defendants need more time as well, then we will  be into July, and I have to say that it may be that we  would have to set it for sometime later in July rather  than in the first two weeks.  I had made some  commitments in there that I would find very awkward to  rearrange, because so many other people are involved  and they've all made plans, and people have holidays  at that time.  So it seems to me that if we go beyond  June 30th it may be -- I wouldn't put this any higher  than a maybe -- then we would have to set it for the  last one or two weeks in July and maybe the first week  in August.  I'm sure that's inconvenient to everyone  here as well, and I hope it won't come to that, but I  see no escape.  I also think, in view of what happened  this morning, that we should try and plan to start at  the regular time next Monday, if that's convenient to  counsel, that is at either 9:00, 9:30 or 10:00  o'clock, whichever we settle on, rather than the late  start on Monday mornings, if that's -- I mean if  arrangements can be made.  I would think that those of  us who have later reservations could probably get them  changed.  All right, Mr. Rush.  Yes. Just to comment on your last point first,  whatever is convenient for the court to start on  Monday morning is certainly convenient for us.  :  I think we need the time, so we better use it.  Yes.  To respond to two points raised by Mr. Plant;  firstly, it is our intention to suggest to the court  that there be longer hours, the proposal of the week  was premised on our desire and hope that the case  could be completed on the 30th of June.  :  Yes.  So I don't dispute my friend's reckoning that  possibly eight more days would be more comfortable to  the plaintiffs, but our present feeling is that we  were going to try to do it in five with extended  hours.  Just on the point of venue, my lord, I would  ask your lordship to consider what submissions we've  made previously on the issue of venue.  I recognize  both the concern logistically of moving the court and  the exhibits to Vancouver and your lordship's  schedule.  Nonetheless, I do ask your lordship to  consider the fact of the necessity of the plaintiffs'  presence during the course of their argument, that one 24409  Submissions by Mr. Jackson  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  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  of the main motivations for locating in Smithers  during the course of the argument, and it is -- it  continues to be our wish that the plaintiffs' argument  be heard here.  THE COURT:  I understand all that, Mr. Rush, and we've been  through it, but I have noticed that there hasn't been  substantial attendance all of the time, and secondly,  there has been four solid weeks, or there will be four  solid weeks, and thirdly, I don't mind confessing to  some weakness.  I'm wearing out, and I think I'll be  more weak when we're finished than I am now, and when  we're finished at 4:30 or 4:00 o'clock June 30th you  people will be finished and I will have an enormous  job ahead of me.  I don't think I can keep up that  pace.  And you may speak to the matter again, if you  wish, but at the moment I would say if the plaintiffs  are going to be needing more time, I'm happy to  provide whatever reasonable amount of extra time you  need.  I don't think it will be here.  That's my  present view.  MR. RUSH:  Thank you.  THE COURT:  I also should report, it may be a bribe, somebody  left an Easter egg on my desk following the old  practise.  If it's a bribe, it's not enough, and if  it's not a bribe it's too much.  But I'm grateful  anyway.  All right, Mr. Jackson, you were on page 218,  I think.  MR. JACKSON:  Yes, my lord, depending on my voice, my lord, I  may be in need of your Easter egg.  THE COURT:  I'm sure I have the right to alienate it without  having a public meeting about it, Mr. Jackson.  I have  some Lifesavers if you need them.  MR. JACKSON:  Yes, my lord.  We were at page 218, and your  lordship will recall I had finished by very briefly  summarizing --  THE COURT:  Sorry, just before you start, Mr. Jackson.  (DISCUSSION WITH REPORTER)  MR. JACKSON:  My lord, on Thursday afternoon I had just  summarized the shifts in American policy from the  period of removal, which takes us through to the late  19th century, and how at that point treaty making was  brought to an end and American policy shifted to  assimilation model in which tribal holdings were  broken up, and how in the 1930's the policy shifted  again to one of retribalization, reinforcement of 24410  Submissions by Mr. Jackson  1 tribal government, and how in the 40's and 50's again  2 assimilation became the dominant theme leaning to the  3 large shift in the 1970's, in what is called the  4 self-determination era.  And what I want to do now, my  5 lord, is to turn to the jurisprudence, the American  6 jurisprudence in the Post-Marshall era, and I've  7 divided the material into two broad categories.  The  8 first deals with the Post-Marshall Jurisprudence on  9 Aboriginal Ownership and the proprietary interest in  10 lands and territory.  And the second part of the  11 material deals with the issue of aboriginal  12 jurisdiction.  And the first case to which I would  13 refer your lordship is Beecher and Weatherby in 1877,  14 and I say that, my lord, that Beecher and Weatherby is  15 of significance insofar as it forms part of the  16 jurisprudential chain culminating in the decision of  17 the United States Supreme Court in Tee-Hit-Ton in  18 1955.  And Tee-Hit-Ton itself is of great significance  19 insofar as it was one of the principal authorities  20 relied upon by Mr. Justice Judson in the Calder case.  21 A preliminary point before I deal with Beecher and  22 Weatherby and the cases that follow it, is that  23 reviewing these cases, my lord, particularly in terms  24 of the propositions which emerges from them, is  25 somewhat akin to the kind of enterprise which  26 sometimes is engaged on by parties in which a person  27 will give a message to the person next to them, it is  28 then passed on and comes back through a series of  29 retellings to the original hearer in a form which  30 bears very little relationship to the original  31 recitation, and I will be submitting that this  32 jurisprudential chain is somewhat akin to that.  The  33 final culmination of the recitation of principle we  34 say in Tee-Hit-Ton is absolutely no relationship to  35 the original formulation of the Marshall principles.  36 The facts in Beecher and Weatherby are set out in page  37 218, and they were as follows:  In 1846 an Act of  38 Congress authorized establishment of the State of  39 Wisconsin, and by this Act this was a common feature  40 of congressional acts authorizing establishment of new  41 states, promised to convey section 16 in every  42 township, in fee, to the State of Wisconsin to the use  43 of schools or educational purposes.  The State, having  44 acquired section 16s in fee in 1870 issued a patent to  45 a logging company to log the land on a particular  46 section 16.  After the logs were cut, the plaintiffs  47 asserted title to the logs by virtue of holding 24411  Submissions by Mr. Jackson  1 patents from the United States issued in 1872.  2 THE COURT:  Were the plaintiffs Indians?  3 A   No, my lord.  Neither the plaintiffs or the defendants  4 were Indians.  5 THE COURT:  Yes, all right.  6 MR. JACKSON:  In this sense, the facts have a familial ring to  7 them in the sense that there was logging involved and  8 the dispute was between people claiming title, neither  9 of whom were Indian.  The argument made by the holder  10 of the 1872 patent from the United States was that in  11 1846 the territory was subject to unextinguished  12 aboriginal title and the United States could not  13 therefore grant the land in fee to the State of  14 Wisconsin.  The case therefore raised the question of  15 the legal effect of Indian title on the power of the  16 federal government to make a grant in fee to lands  17 subject to that title.  Mr. Justice Field in  18 delivering the opinion of the court said this:  19  20 "It  is true, that for many years before Wisconsin  21 became a state, the (Menomonee Tribe) occupied  22 various portions of her territory, and roamed over  23 nearly the whole of it.  In 1825, the United  24 States undertook to settle by treaty the  25 boundaries of land claimed by different tribes  26 of Indians as between themselves and agreed to  27 recognize the boundaries thus established, the  28 tribes acknowledging the general controlling power  29 of the United States, and disclaiming all  30 dependence upon and connection with any other  31 power.  The land thus recognized as belonging to  32 the Menomonee tribe embraced the section in  33 controversy in this case... But the right which  34 the Indians held was only that of occupancy.  The  35 fee was in the United States, subject to that  36 right, and could be transferred by them whenever  37 they chose.  The grantee, it is true, would take  38 only the naked fee, and could not disturb the  39 occupancy of the Indians; that occupancy could  40 only be interfered with or determined by the  41 United States."  42  43 And we say, my lord, that to this point Mr. Justice  44 Fields' statement is a restatement of the principles  45 first enunciated by the U.S. Supreme Court in Fletcher  46 and Peck as to the legal co-existence of what in this  47 case is referred to as the "naked", what is in St. 24412  Submissions by Mr. Jackson  1 Catherine's Milling was referred to as the underlying  2 title and the Indian title.  Mr. Justice Field went on  3 to say:  4  5 "It is to be presumed that in this matter" --  6  7 That is in the determination of the Indian title:  8  9 "the United States would be governed by such  10 considerations of justice as would control a  11 Christian people in their treatment of an ignorant  12 and dependent race.  Be that as it may, the  13 propriety or justice of their action towards the  14 Indians with respect to their lands is a question  15 of governmental policy, and is not a matter open  16 to discussion in a controversy between third  17 parties, neither of whom derives title from the  18 Indians.  The right of the United States to  19 dispose of the fee of lands occupied by them" --  20  21 That's the Indians:  22  23 "has always been recognized by this court from the  24 foundation of the government.  It was so ruled in  25 Johnson v. Mcintosh."  26  27 This proposition, this passage was cited by Mr.  28 Justice Reed in Tee-Hit-Ton for the proposition that  29 extinguishment by the United States of Indian title is  30 a political and non-justiciable matter.  But it should  31 be pointed out, as we do, my lord, that Mr. Justice  32 Field in Beecher and Weatherby specifically limits his  33 comments regarding the justiciability of  34 extinguishment to disputes between third parties. He  35 does not say that in a suit brought by the Indians  36 themselves, they would be foreclosed from challenging  37 the propriety of an extinguishment.  We were referring  38 you back, my lord, in this regard to the statement by  39 Mr. Justice Chapman in Symonds, set out in the bottom  40 of page 220, in relation to the Marshall decisions:  41  42 "Although the courts of the United States, in suits  43 between their own subjects" --  44  45 Which of course is exactly the situation in Beecher  46 and Weatherby:  47 24413  Submissions by Mr. Jackson  1 "would not allow a grant to be impeached  2 under pretext that the native title has not been  3 extinguished, yet they would certainly not  4 hesitate to do so in a suit by one of the Native  5 Indians."  6  7 As we will see in looking at subsequent cases, in  8 particular Tee-Hit-Ton, Beecher has been cited as  9 authority to the proposition that the United States  10 has an unreviewable discretion as to how it  11 extinguishes Indian title.  In light of its citation  12 for that proposition, we say it is important,  13 following up your lordship's on-the-ground analysis,  14 to note by what method the Indian title was in fact in  15 this case extinguished, and what one finds, as the  16 next passage makes clear, is that the aboriginal  17 underlying title, the title of the Menomonee tribe was  18 extinguished in accordance with what we say are the  19 fundamental principles by treaty.  And there Mr.  20 Justice Field makes this very clear:  21  22 "The greater part of the State was, at the date of  23 the compact, (admitting Wisconsin into statehood)  24 occupied by different Tribes, and the grant of  25 sections in other portions would have been  26 comparatively of little value.  Congress  27 undoubtedly expected that at no distant date the  28 State would be settled by white people, and the  29 semi-barbarous condition of the Indian Tribes  30 would give place to the higher civilization of our  31 race; and it contemplated by its benefactions to  32 carry out in that State, as in other States, 'its  33 ancient and honoured policy' of devoting the  34 central section in every township for the  35 education of the people.  Accordingly, soon after  36 the admission of the State into the Union means  37 were taken for the extinguishment of the Indian  38 title.  In less than eight months afterwards the  39 principal Tribe, the Menomonees, by Treaty, ceded  40 to the United States all their lands in Wisconsin,  41 though permitted to remain on them for a period of  42 two years, and until the President should give  43 notice that they were wanted."  44  45 And as in St. Catherine's --  46 THE COURT:  Before you go on, from what is that a quotation, is  47 that from Beecher and Weatherby? 24414  Submissions by Mr. Jackson  1 MR. JACKSON:  That's from Beecher and Weatherby, my lord.  2 THE COURT:  All right, thank you.  3 MR. JACKSON:  And so we see that, as in St. Catherine's Milling  4 itself, Beecher and Weatherby is a case in which  5 Indian title was extinguished by consent through  6 treaty-making, and yet it is a case which has been  7 cited, as has St. Catherine's, for the proposition  8 that Indian title can be extinguished at the pleasure  9 of the sovereign unilaterally.  10 The second case to which I refer your lordship is  11 the case of Buttz and Northern Pacific Railroad, and  12 again, I would make the point I made last Thursday, my  13 lord, that these cases are not, to use the phrase of  14 my friend last Thursday, the plaintiffs cherry-picking  15 through the orchard of American jurisprudence.  I have  16 chosen these cases principally because they are cases  17 which crop up in the leading Canadian decisions, and  18 therefore they have been seen as cases which are  19 viewed by Canadian courts as ones which are important  20 in terms of looking at American jurisprudence.  21 THE COURT:  I have a problem about Beecher and Weatherby that  22 you can assist me with.  The patents in dispute in  23 Beecher and Weatherby were issued in 1872, and the  24 treaty was when?  25 MR. JACKSON:  The treaty was, I believe, my lord, way before  26 that.  I haven't made a note of that in the --  27 THE COURT:  All right.  Well then, what I'm wondering about is  28 whether or not the title having been extinguished by  29 the treaty, assuming -- well, I'm sorry, I don't know  30 if it's by the treaty or not, but did the Indians  31 remain in possession?  32 MR. JACKSON:  No, my lord.  My understanding is that under the  33 terms of the treaty the Indians were allowed to remain  34 in possession as the last cited passage makes clear,  35 until the lands were required, and under the terms of  36 the treaty they were then to move to a reservation.  37 THE COURT:  Well, it said until the President gave them notice.  38 MR. JACKSON:  Yes.  And by the time the patents were issued in  39 this case the Menomonees were no longer in possession  40 of the lands.  The argument, of course, was that  41 because of the type of the grant to Wisconsin, the  42 lands were held by Indian title, Wisconsin could not  43 obtain any rights to the lands because the United  44 States had no rights to give.  And what the court in  45 fact said was it's consistent with St. Catherine's  46 that the United States did in fact have rights to  47 grant to Wisconsin, those rights being the underlying 24415  Submissions by Mr. Jackson  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  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  THE COURT  MR.  THE  MR.  PLANT:  THE  MR.  THE  MR.  title, which is Wisconsin got the underlying title in  section 16s, and at such point as the Indian title was  extinguishable by treaty, the State of Wisconsin then  had the entire beneficial interest in the land and  could make a grant of those lands, as it did to a  patentee who took the title and the United States had  nothing left.  I'm having some trouble with the facts, because the  Act of Congress establishing the State of Wisconsin  was 1846, and the State having acquired section 16 in  1870, so the argument then comes along that the  patents were not issued until 1872.  And it may be  that if I sat down I could figure it out, but at the  moment I have a little bit of uncertainty as to  exactly what the contest was and what the -- well, you  don't know the date of the treaty?  JACKSON:  Well, we're just endeavouring to find that.  COURT:  All right.  Well, I found three references to treaties.  There's -- in the first passage cited by my friend,  there is a reference to an undertaking made by the  United States in 1825, that would be in the passage  cited --  Yes.  I see that.  -- by my friend.  That says they undertook to settle by treaty.  I  suppose that's the same thing.  That's right.  And then the last passage cited by my  friend, the last sentence says -- or the last two  sentences say:  "Accordingly, soon after the admission of the State  into the Union" --  Which would be 1846:  "means were taken for the extinguishment of the  Indian title.  In less than eight months  afterwards the principal Tribe, by  treaty, ceded the land."  And that -- that's the passage quoted on page 221 of  my friend's argument.  Now, in the report of the case  following that passage there are references to other  treaties in 1853 and 1854, but I haven't yet followed  the sequence.  JACKSON:  Those are the treaties, my lord, I understand the  COURT  PLANT  COURT  MR. PLANT 24416  Submissions by Mr. Jackson  1 ones in 1853, 1854 by which the Menomonees ceded their  2 lands.  So the sequence was the establishment of the  3 State of Wisconsin, the grant to the State of  4 Wisconsin of the section 16s in fee, and then some  5 years after that, the extinguishment of the Indian  6 title by treaty, and then subsequent to that the grant  7 of the patents.  8 THE COURT:  All right, thank you.  9 MR. JACKSON:  And that, my lord, is at page 442 of the report,  10 that's volume 11 tab 2 of our book of authorities.  11 THE COURT:  All right, thank you.  And your understanding is  12 that the Indians did leave the lands shortly after the  13 treaty?  14 MR. JACKSON:  Yes, my lord.  These were lands in the same way as  15 in St. Catherine's Milling, these were lands in which  16 the Indians no longer laid any claims based on  17 aboriginal title, having given them up by virtue of  18 the treaty process.  19 THE COURT:  Yes, all right.  20 MR. JACKSON:  The second case, my lord, is Buttz against  21 Northern Pacific Railroad in 1886, again a decision  22 written by Mr. Justice Field, and the facts here were  23 that the lands were in the territory of Dakota, a  24 railway company, Northern Pacific Railroad, asserted  25 title to the premises under a grant laid by an Act of  26 Congress in 1864.  The Defendants asserted that he  27 settled upon the premises in 1871 and had taken the  28 necessary steps to perfect a right of pre-emption  29 under the relative pre-emption law in the Territory.  30 The Congressional Act in 1864 establishing the  31 railroad was entitled "An Act Granting Lands to Aid in  32 the Construction of a Railroad and Telegraph Line from  33 Lake Superior to Puget Sound on the Pacific Coast by  34 the Northern Route".  By its third section this Act  35 provided that:  36  37 "There be and hereby is, granted to the Northern  38 Pacific Railroad Co. its successors and assigns  39 for the purpose of aiding in the construction of  40 said railroad and telegraph line...every alternate  41 section of public land, not mineral, designated by  42 odd numbers, to the amount of twenty alternate  43 sections per mile, on each side of said railroad  44 line, as said company may adopt, through the  45 Territories of the United States and ten alternate  46 sections of land per mile on each side of said  47 railroad whenever it passes through any State and 24417  Submissions by Mr. Jackson  1 whenever on the line thereof the United States  2 have full title, not reserved, sold, granted or  3 otherwise appropriated, and free from pre-emption  4 or other claims or rights."  5  6 At the time this Act was passed, the land in  7 controversy and other lands covered by the grant were  8 under the occupation of the Sisseton and Wahpeton  9 Bands of Dakota or the Sioux Indians.  In the grant to  10 the railroad company Congress was not unmindful of the  11 title of Indians to the lands granted, and the Act  12 stipulated, as did a number of the Acts passed at this  13 time, the Act stipulated for the extinguishment of the  14 Indian title by the United States as rapidly as might  15 be consistent with public policy and the welfare of  16 the Indians.  And you see, my lord, those words appear  17 again in Santa Fe Railroad Company, a case to which I  18 will shortly be returning.  After the passage of the  19 Act "the United States took steps, first to obtain  20 from the Indian the right to construct railroads,  21 wagon roads and telegraph lines across their lands,  22 and to make such other improvements upon them as the  23 interests of the government might require, and  24 afterwards to obtain a cession of their entire title."  25 My lord, this process bears some resemblance to the  26 process which I apprised your lordship of last week,  27 when in Upper Canada the government required the  28 Surveyor General of Upper Canada, Mr. Collins, to  29 purchase lands from the Missisauga Indians in order to  30 complete the communication from the Bay of Quinte to  31 Lake Huron, and in relation to the discussion we had  32 last week, in which my understanding of Ontario  33 geography, was demonstrated to be wilfully inadequate,  34 since then Mr. Rush has taken me to a map and has  35 showed me that in fact that purchase we talked about  36 last week, the Toronto purchase, starts from the Bay  37 of Quinte and goes along the shores of Lake Ontario to  38 a point close to Toronto, and then up to Lake Simcoe.  39 But my point here, my lord, is to make the point that  40 this process of acquiring the right-of-way was one  41 which is reflected in the provisions of this  42 Congressional Act.  And at page 224 we see that the  43 acquisition by the United States of the right to  44 construct railroads and telegraph lines was  45 accomplished through a treaty concluded between the  46 United States and the Indian tribes in 1867.  And the  47 extinguishment of the aboriginal title to the rest of 24418  Submissions by Mr. Jackson  1 their lands was accomplished through a further  2 agreement, the terms of which were first proposed by  3 the Indians in 1872, but this was not finally ratified  4 until some years later.  And my lord, you will see  5 that the first reference is to a treaty and the second  6 reference is to further agreements.  That reflects the  7 fact in 1871 congress had terminated the treaty-making  8 process, that didn't stop agreements further -- being  9 made further by congressional orders, but they were no  10 longer called treaties.  11 The Supreme Court held that the grant by the  12 United States to the railway company in 1864 passed a  13 fee to the company subject to the Indian title and  14 that under the terms of the statute the lands  15 hereafter were not subject to pre-emption by third  16 parties.  The court rejected the argument that land  17 subject to Indian title could not be the subject of a  18 grant.  And in the course of his judgment Mr. Justice  19 Field said:  20  21 "At the time the Act of July 2nd, 1864, was passed,  22 the title of the Indian Tribes was not  23 extinguished.  But that fact did not prevent the  24 grant of Congress from operating to pass the fee  25 of the land to the company.  The fee was in the  26 United States.  The Indians had merely a right of  27 occupancy, a right to use the lands subject to the  2 8 Dominion and control of the government.  The  29 grant conveyed the fee subject to this right of  30 occupancy.  The Railroad Company took the property  31 with this incumbrance.  The right of the Indians,  32 it is true, could not be interfered with or  33 determined except by the United States.  No  34 private individual could invade it, and the  35 manner, time, and conditions of its extinguishment  36 were matters solely for the consideration of the  37 government and are not open to contestation in the  38 judicial tribunals.  As we said in Beecher v.  39 Weatherby 'it is to be presumed that in this  40 matter the United States will be governed by  41 such considerations of justice as would control a  42 Christian people in their treatment of an ignorant  43 and dependent race...'"  44  45 And the quote goes on to recite the full passage I've  46 already given to your lordship in Beecher and  47 Weatherby. 24419  Submissions by Mr. Jackson  COURT:  At the start of that passage, Mr. Justice Field said  that the fee was in the United States subject to the  right of occupancy.  By what path or route do you say  the fee was in the United States?  JACKSON: Through the doctrine of discovery, my lord. These  cases build upon the platform of the original Marshall  principles that by virtue of the doctrine of discovery  the underlying fee in the lands vest in the  discovering nation, and according to the American  doctrine is subject to grant, subject to, however, the  right of the aboriginal peoples.  COURT:  Is there any discussion of that in the judgment, or  is that just a given?  JACKSON:  As I recall, there's -- there's a citation to  Johnson and Mcintosh --  COURT:  All right.  JACKSON: -- but by this point these principles, as it were,  are viewed as being well-established and well-grounded  as part of the common law.  COURT: But this land is -- is it west of the Mississippi or  east of the Mississippi?  JACKSON:  This is west of the Mississippi.  This is the  Dakotas.  COURT:  Is there any discussion in the judgment about the  breach of Royal Proclamation.  JACKSON:  No, my lord.  In relation to the Johnson and  Mcintosh there is a discussion --  COURT:  Yeah.  There is in Johnson but not in this case.  JACKSON:  He cites Johnson and Mcintosh but there's no  discussion of the Royal Proclamation.  COURT:  Thank you.  JACKSON:  By this time the Royal Proclamation in the United  States had sort of receded into the midst of distant  memory.  COURT:  It was replaced by statutes?  JACKSON:  Yes, my lord.  And you'll find at page 335, my  lord, in the first column of Buttz that Mr. Justice  Field starts off his judgment having said that the fee  was in the United States.  He cites Johnson and  Mcintosh and he cites the doctrine of discovery for  that proposition.  And immediately after citing  Johnson and Mcintosh, Mr. Justice Field cites another  one of the cases decided in the early days of the  Marshall court, which I've already referred your  lordship to, Clark and Smith for the proposition that:  "The ultimate fee (encumbered within the Indian  1  THE  2  3  4  5  MR.  6  7  8  9  10  11  12  THE  13  14  MR.  15  16  THE  17  MR.  18  19  20  THE  21  22  MR.  23  24  THE  25  26  MR.  27  28  THE  29  MR.  30  31  THE  32  MR.  33  34  35  THE  36  MR.  37  38  39  40  41  42  43  44  45  46  47 24420  Submissions by Mr. Jackson  1 right of occupancy) was in the Crown previous to  2 the Revolution, and in the States of the  3 Union afterwards, and subject to grant.  This  4 right of occupancy was protected by the political  5 power and respected by the courts until  6 extinguished, when the patentee took the  7 unencumbered fee."  8  9 And again, my lord, looking at the factual matrix of  10 Buttz, we see that this case, as in Beecher and  11 Weatherby, did not involve a dispute in which the  12 Indians sought to set up their title as against a  13 grantee of the underlying fee who was seeking to  14 dispossess them from their lands.  And recital of the  15 facts as I've given them to your lordship shows that  16 congress recognized its lawful obligations to obtain a  17 consensual surrender prior to construction taking  18 place and prior to its grantee in fact taking  19 possession and entering into actual occupation of the  20 territory.  In both the Buttz case and in Beecher and  21 Weatherby, we say, my lord, at the bottom of page 225  22 that the court's reliance on Johnson and Mcintosh for  23 the relative relationship between the underlying fee,  24 referred to as the native fee in Buttz -- in Beecher,  25 and the Indian title is well founded, but we say that  26 the further obiter remarks regarding the  27 non-justicability of the manner of extinguishment are  28 not supported by the Marshall judgments, nor, and this  29 is perhaps more significant, nor were they required or  30 relevant to any of the issues before the Supreme Court  31 in these two cases.  In both cases the issues were  32 ones as between parties competing for an interest in  33 lands to which the Indian title had already been  34 surrendered by consent.  The reference in the cases,  35 my lord, to this general language as to the  36 non-justicability of the -- of Indian title and the  37 presumption that the government will, in its dealings  38 with Indian people, be governed by such considerations  39 as a Christian nature would bring to bear upon an  40 ignorant and dependent race is, we say, referable to  41 one of the significant, if in fact probably the most  42 significant changes which took place in the way the  43 Indian tribes were characterized legally and in  44 general discourse in the late 19th century.  And I  45 refer you, my lord, at page 226 for what we say is the  46 explanation for Mr. Justice Fields' assertion as to  47 the non-justicability of extinguishment is to be found 24421  Submissions by Mr. Jackson  1 in the context of the major shifts which had been  2 taking place in the American Indian policy.  And those  3 are best reflected in the decision of the United  4 States Supreme Court in the Kagama case, United States  5 and Kagama in 1886, and that case arose out of a  6 previous decision of the U.S. Supreme Court in the  7 case of Ex parte Crow Dog.  And in Ex parte Crow Dog,  8 my lord, in 1883 the Supreme Court had taken the  9 position that in relation to an Indian charged with  10 the murder of another Indian on an Indian reservation,  11 that case was only amenable to the tribal court  12 system.  The federal courts had no jurisdiction over  13 intertribal crime, and the court in Ex parte Crow  14 Dog -- and I've set out passages from the judgment of  15 page 227, I'm not going to take your lordship to them,  16 but in the course of its judgment, in saying indeed  17 that the federal courts had no jurisdiction over this  18 case, the courts made certain references to the  19 character of Indian tribal justice as demonstrating  20 why in fact it would not be within the purview or  21 jurisdiction of federal courts, and the language  22 refers to the red man's revenge.  And what happened  23 following that decision was that congress acted to  24 deal with the fall out from that vacuum, so it  25 appeared, in the criminal justice system, and they  26 passed the Major Crimes Act of 1885, which subjected  27 intertribal crimes, crimes committed on a reservation  28 by Indians against other Indians, that was subjected  29 to federal jurisdiction in relation to certain major  30 crimes, murder for example, robbery, rape, and a  31 number of other crimes, major felonies, were subjected  32 to the jurisdiction of the federal courts.  And in  33 Kagama, what happened was that that jurisdiction was  34 challenged.  The Major Crimes Act was challenged by  35 Kagama following his prosecution and conviction under  36 the Major Crimes Act, and the Supreme Court in  37 upholding the Major Crimes Act as being within the  38 jurisdiction of congress in relation to Indians,  39 stated, and I've set out at the top of page 228 part  40 of their holdings, that Indian tribes were not foreign  41 nations, of course asserting what had already been  42 established in the Cherokee cases, and that within the  43 borders of the United States "the soil and the  44 people...are under the political control of the  45 Government of the United States, or of the State of  46 the Union".  From this point the court concluded that  47 Indians must be subject to the power of either one or 24422  Submissions by Mr. Jackson  1 the other, because, as the court says, "there exists  2 within the broad domain of sovereignty but these two".  3 And that is an argument, my lord, which is, as I  4 understand it, both the Province and the federal  5 government make as being applicable to this case, not  6 relying upon Kagama, but relying upon provisions of  7 the Canadian Constitution, that the Canadian  8 Constitution recognizes federal jurisdiction, and the  9 Canadian Constitution recognizes provincial  10 jurisdiction, but it says nothing about Indian  11 jurisdiction.  And therefore, the claims of the  12 plaintiffs asserting jurisdiction have no place within  13 Canadian confederation.  In 1886 the U.S. Supreme  14 Court took a similar view of the Constitutional  15 arrangements in the United States, but as we will  16 demonstrate to your lordship later, the call came back  17 to what we say is a more consistent position,  18 consistent with the original Marshall principles.  19 Because we say, my lord, at page 228 that the analysis  20 of the Supreme Court in Kagama in 1886, while it  21 referred to the Cherokee cases, including Cherokee  22 Nation and Worcester v. Georgia, ignored in fact Chief  23 Justice Marshall's unequivocable affirmation of the  24 inherent pre-existing rights of internal  25 self-government of Indian nations.  And the omission,  26 we say, is revealed in the following passage from Mr.  27 Justice Miller's judgment, and you will see, my lord,  28 he says:  29  30 "These Indian nations are wards of the nation."  31  32 And my lord, "are" should be underlined, this was  33 emphasis in the original one by Mr. Justice Miller:  34  35 "These Indian nations are the wards of the nation.  36 They are communities dependent on the United  37 States.  Dependent largely for their daily food.  38 Dependent for their political rights.  They owe no  39 allegiance to the States and receive from them no  40 protection.  Because of local ill feeling, the  41 people of the states where they are found are  42 often their deadliest enemies.  From their very  43 weakness and helplessness so largely due to the  44 force of dealing with the government with them and  45 the treaties in which it has been promised,  46 there arises the duty of protection and with it  47 the power.  This has always been recognized by the 24423  Submissions by Mr. Jackson  1 Executive and by Congress and by this Court  2 whenever the question has arisen...  3 The power of the General Government over these  4 remnants of a race once powerful, now weak and  5 diminished in numbers, is necessary to their  6 protection, as well as to the safety of those  7 among whom they dwell."  8  9 Now, my lord, we say this language stands in stark  10 contrast to the language of Chief Justice Marshall in  11 Worcester.  In that case, Chief Justice Marshall, in  12 articulating the duty of protection as an  13 international law obligation, which had been  14 domesticated in the context of particular treaties, he  15 said that the duty of protection did not strip the  16 protected nations of their "right of government".  17 This, we say, was turned on its head in Kagama as the  18 justification for what is known as plenary federal  19 power over Indian tribes.  And the extent to which  2 0 Kagama was a departure from the fundamental principles  21 of the Marshall decisions, is we say well described by  22 a recent American commentary.  23 THE COURT:  Before we get to that, did — I haven't looked at  24 it, but I don't recall you reading to me anything from  25 Chief Justice Marshall and any of his judgments which  26 dealt specifically with the overall application of the  27 criminal law.  I thought he talked as you quoted here,  28 right of government.  Did he talk about criminal law?  29 MR. JACKSON:  There was, my lord, inferentially in that in the  30 beginning of -- and I'm not sure whether it's  31 Cherokee -- it's the beginning of Worcester and  32 Georgia, there is a recitation of the effect of the  33 Georgia laws.  34 THE COURT:  Mm-hmm.  35 MR. JACKSON:  And one of the effects of the Georgia laws was  36 that for the Cherokees to try one of their members in  37 a Cherokee court and impose a death sentence, was  38 rendered by the Cherokee -- by the Georgia laws as an  39 act of murder because it dismantled the Cherokee  40 institutions.  So I think to that extent, in talking  41 about the rights of self-government even though that  42 wasn't an issue particularly before him, he envisaged  43 the right to self-government to be cast in very broad  44 terms, but specifically no, my lord, there was no  45 argument addressed in that case, that whatever might  46 be the rights of self-government in relation to other  47 matters, so far as the criminal law was concerned, 24424  Submissions by Mr. Jackson  1 there might be special considerations.  And I think,  2 my lord, the point was well taken, because if we  3 review the early treaties, there often was in those  4 early treaties, going back into the -- 17th century,  5 there was special clauses often regarding what would  6 happen if in fact a crime was committed, albeit within  7 the Indian country, against a British colonist, or  8 what would happen if an Indian committed a crime while  9 residing within the boundaries of the Colonies.  So I  10 right from the early point there was a recognition  11 that in relation to the criminal law special  12 considerations might be relevant.  13 THE COURT:  It seems to me you read me a passage from the early  14 days after the piece from Paris where in Canada it was  15 stated that if there was a crime of murder that it  16 would be tried in the ordinary course.  17 MR. JACKSON:  Yes, my lord.  Well, in fact, the — I think one  18 of the maritime treaties.  19 THE COURT:  I thought -- I think you gave me that in a section  20 dealing with Quebec, but I speak subject to your  21 better recollection.  22 MR. JACKSON:  Many of those treaties did in fact make very  23 special provision for the criminal law.  24 THE COURT:  I wonder if this goes as far as -- that you're  25 contending that it turned Marshall's principle on its  26 head.  I wonder if Marshall really was talking about  27 what he had talked about the right of government, he  28 was talking about the criminal law.  29 MR. JACKSON:  I think to the extent that Kagama, my lord, was  30 limited -- if Kagama was seen as being limited to  31 criminal jurisdiction, I would not be contending that  32 the case was as inconsistent as I say it is with  33 Marshall.  Kagama, however, has been seen in  34 subsequent cases as authorizing the very broad federal  35 plenary power in areas outside of the criminal law,  36 and it's for the broad propositions rather than its  37 application in the particular situation in Kagama,  38 which was the assertion of criminal jurisdiction, not  39 generally, but in relation to particular major crimes.  4 0 THE COURT:  All right.  41 MR. JACKSON:  The commentary I'm referring to, my lord, opines  42 this statement:  43  44 "The holding in Kagama... grossly overstated the  45 extent of federal power.  Because of the  46 historical military and political position of the  47 colonies, the Framers never conceived of 24425  Submissions by Mr. Jackson  1 exercising power over Indian nations, but instead  2 provided a framework in the constitution for  3 conducting relations with them as equal sovereign  4 nations.  5 In establishing a theory of inherent federal power  6 over internal Indian affairs, the Kagama court  7 misinterpreted the discovery doctrine, disregarded  8 Indian sovereignty, manipulated the federalism  9 concepts embodied in Worcester and the 1871 Act."  10  11 Which abolished treaty making:  12  13 "treated federal Indian policy as a  14 non-justiciable political matter, and relied on a  15 historically inaccurate characterization of the  16 Indian tribes as weak, helpless and diminished  17 dependent wards in need of protection.  The court  18 created a power in Congress over Indian nations  19 which was unlimited, unconstitutional and  2 0 unreviewable."  21  22 Now, my lord, we don't necessarily adopt all those  23 propositions, nor is it necessary for your lordship to  24 come to any determination as to whether or not Kagama  25 fits into that.  My point is simply to explain how it  26 was that in Beecher and Weatherby and in Buttz the  27 courts could add to the conclusions which were  28 necessary to their decision certain statements which  29 were not necessary to the decision which talks about a  30 very broad unreviewable position, discretion in  31 congress.  And while on this point, my lord, if I may  32 just make this comparative reference, the -- this  33 re-characterization of tribes as in fact being  34 helpless, dependent and therefore their being within  35 congressional or federal central authorities, the need  36 to in fact protect them, as it were, from themselves,  37 is, we say, reflective in the judgments of Chancellor  38 Boyd in St. Catherine's Millings, the judgment of Mr.  39 Justice Henry and Mr. Justice Tacherau, who also  40 re-characterized the nature of the tribes of Indian  41 nations in Canada, and in so doing we say  42 recharacterized the nature of their rights.  And this  43 is something which was not just limited to the United  44 States and to Canada in the last part of the 20th  45 century.  Last week, my lord, when I was dealing with  46 the Treaty of Waitangi, I referred your lordship to a  47 decision of the New Zealand High Court in 1877 at the 24426  Submissions by Mr. Jackson  1 same time roughly as we're talking about here in the  2 decision of Wi Parata, spelled W-I, P-A-R-A-T-A, and  3 The Bishop of Wellington.  And, my lord, in that case  4 Chief Justice Prendegast said something which your  5 lordship will readily see bears a close relationship  6 do what the court said in Kagama.  Chief Justice  7 Prendegast made this statement in relation to a claim  8 by the Maoris in relation to land which had been  9 granted to the Bishop of Wellington without their  10 title having been extinguished before.  And the court  11 in Wi Parata said "We can't hear your claim.  The  12 court cannot go behind the Crown grant", and in the  13 course of so concluding said:  14  15 "In the case of primitive barbarians, the Supreme  16 executive Government must acquit itself as best it  17 may, of its obligations to respect native  18 proprietory rights, and of necessity must be the  19 sole arbiter of its own justice.  Its acts in this  20 particular cannot be examined or called in  21 question by any tribunal, because there exist  22 no known principles whereon a regular adjudication  23 can be based."  24  25 And in that same case, my lord, in relation to the  26 Treaty of Waitangi, as I told your lordship, the court  27 concluded that the Treaty of Waitangi was a nullity  28 because, and in this sense presaging what his honour  29 Judge Patterson said about the Mic Macs in relation to  30 their treaty with the Crown:  31  32 "No body politic existed capable of making cession  33 of sovereignty, nor could the thing itself exist."  34  35 So we find, my lord, at this particular juncture in  36 history, the courts in Canada, in the United States  37 and in New Zealand taking a position that there is  38 with the federal executive, whoever is  39 constitutionally charged with responsibility in  40 relation to Indian affairs, a broad unreviewed  41 discretion which gives rise to statements that their  42 rights exist at the pleasure of the sovereign.  And we  43 say, therefore, that there is direct unity between the  44 way in which the Indian peoples are seen on these  45 hiararchy of civilization and the way in which their  46 rights are viewed.  And we say this explains why  47 certain statements are made at this juncture in 24427  Submissions by Mr. Jackson  1 history which seemed to be inconsistent with previous  2 statements made by the same courts in the era before.  3 THE COURT:  Is it convenient to adjourn?  4 MR. JACKSON:  Yes, my lord.  5 THE COURT:  All right, thank you.  6 THE REGISTRAR:  Order In court.  Court stand adjourned until  7 2:00.  8  9 (LUNCHEON RECESS TAKEN AT 12:30)  10  11 I hereby certify the foregoing to be  12 a true and accurate transcript of the  13 proceedings herein transcribed to the  14 best of my skill and ability  15  16  17  18    19 Graham D. Parker  20 Official Reporter  21 United Reporting Service Ltd.  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 2442?  Submissions by Mr. Jackson  1       (PROCEEDINGS RECONVENED PURSUANT TO LUNCHEON ADJOURNMENT)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Jackson, before you start, perhaps I could just  5 say to Mr. Prelypchan, I spoke to him on the plane  6 this morning about the difficulty I was having with  7 his disks.  And I can tell you, Mr. Prelypchan, the  8 problem was that I hadn't encountered the write  9 protect problem before.  This is a little clip in the  10 bottom of the disk.  And if you don't have it in the  11 right position it doesn't function.  And I don't think  12 it makes any difference whether the disks are high  13 density or low density.  14 MR. PRELYPCHAN:  But you are able to do it now with no problem?  15 THE COURT:  Yes.  And you can have your disks back, and I will  16 keep the originals.  17 MR. PRELYPCHAN:  I will leave it with your lordship.  18 THE COURT:  All right.  You have the first set.  19 MR. PRELYPCHAN:  I will just presume that the second set you  20 have will be sufficient?  21 THE COURT:  Yes.  I haven't tried them yet because they are low  22 density.  I haven't tried low density because that is  23 a new experience.  I have had no trouble with the  24 Plaintiff's disks, except that I am having trouble  25 because the content of each part is so long.  26 MR. JACKSON:  They are very high density.  27 THE COURT:  Intensity I think is more.  But that's a small  28 problem I can deal with.  I think now I have solved  29 the problem with the Provincial's disks.  3 0 MR. PRELYPCHAN:  Thank you.  31 THE COURT:  All right.  Thank you.  Mr. Jackson.  32 MR. JACKSON:  My lord, you had made the comment before we took  33 the lunch break that Kagama, given the facts and the  34 issue before the court, was one whose very special  35 issue of criminal jurisdiction was at stake.  And my  36 response to that was that the plenary doctrine, which  37 the case has been seen as authority for, was one which  38 was quickly applied outside of the criminal law area.  39 And you see the working through of the Federal plenary  40 power in the form of the General Allotment Act of  41 1887.  And I can just refer your lordship to page 209  42 where previously I have set out the general  43 prescription of the General Allotment Act of 1887  44 which had the effect of allotting tribal lands on an  45 individual basis and making them marketable.  4 6 THE COURT:  Yes.  47 MR. JACKSON:  And it also worked its way through in relation to 24429  Submissions by Mr. Jackson  1 the courts taking the position within the 20 years  2 after Kagama that, in fact, treaties previously made  3 prior to 1871, or agreements made after 1871 were  4 subject to federal abrogation.  And that is reflected  5 in the next case I want to refer your lordship to,  6 Lone Wolf v. Hitchcock in 1903.  And the facts there  7 are set out in the bottom of 230 and over to 231.  The  8 Medicine Lodge Treaty which was signed with the Kiowa  9 and Comanche Tribes in 1867 provided that heads of  10 family might select a tract of 320 acres from lands  11 held in common by the tribe which would then be in the  12 exclusive possession of that family so long as that  13 land was cultivated.  In another article the treaty  14 provided that no future treaty would be operative to  15 cede any lands held in common by the tribe, that is  16 those lands which had not been allotted, unless  17 executed and signed by at least three-quarters of the  18 male adult members.  In 1871, further treaty making  19 with the tribes was suspended.  And in 1900 an Act of  20 Congress was passed providing for allotments out of  21 tribal property and the giving of compensation for  22 surplus lands not allotted but taken by the United  23 States.  The Kagama claimed that the effect of the  24 1867 treaty was to vest in the tribe the land held in  25 common until they should divest themselves of it by  26 treaty negotiated and executed in the manner  27 stipulated and, since the consent principle, that is  28 that the agreement had to be signed by at least  29 three-quarters of the adult male members, had not been  30 complied with, the Act of 1890 were an abrogation of  31 their vested rights.  The Supreme Court while  32 recognizing that the 1890 -- it should be 1900.  I beg  33 your pardon, not 1890, 1900.  The Supreme Court while  34 recognizing that the 1900 legislation abrogated the  35 treaty provisions justified this by reference to the  36 broad plenary power as relected in Kagama.  And the  37 court said:  38  39 "The contention in effect ignores the status of  40 the contracting Indians and the relation of  41 dependency they bore and continued to bear...  42 Plenary authority over the tribal relations has  43 been exercised by Congress from the beginning, and  44 the power has always been deemed a political one,  45 not subject to be controlled by the judicial  46 department of the government...  47 The power exists to abrogate the provisions of an 24430  Submissions by Mr. Jackson  1 Indian treaty, though presumably such power will  2 be exercised only when such circumstances arise  3 which will not only justify the government in  4 disregarding the stipulations of the treaty but  5 may demand, in the interest of the country and the  6 Indians themselves, that it should do so.  When  7 therefore, treaties were entered between the  8 United States and the tribe of Indians it was  9 never doubted that the power to abrogate existed  10 in Congress and that in a contingency such power  11 might be availed or from considerations of  12 government policy, particularly if consitent with  13 perfect good faith towards the Indians."  14  15 And the court ended its judgment on this note:  16  17 "If injury was occasioned, which we do not wish to  18 be understood as implying, by the use made of  19 Congress of its power, relief must be sought by an  20 appeal to that body of redress and not to the  21 courts."  22  23 My lord, we say that the assertion in Lone Wolf and in  24 Kagama that from the very beginning Congress had a  25 broad fedary -- broad plenary power over tribal  26 relations is not supported by the Marshall cases.  And  27 if your lordship would think back to Worcester v.  28 Georgia, in that case the exclusive federal power was  29 formulated and affirmed in the context of a  30 federal-state competition for control over Indian  31 affairs.  And exclusive federal power in Worcester  32 was seen by Chief Justice Marshall as excluding the  33 jurisdiction of the State of Georgia not as  34 authorizing a complete federal plenary power over  35 Indian affairs and certainly not to permit the taking  36 of Cherokee lands by the federal government without  37 consent where it suited government purposes.  38 Lest it be thought, my lord, that during this  39 period the principle which we say is the hallmark of  40 the Marshall principles disappeared completely from  41 the legal horizon in the United States, I want to  42 refer your lordship to a case decided just two years  43 before Lone Wolf v. Hitchcock, Minnessota v.  44 Hitchcock.  That case was one in which the Supreme  45 Court asserted that the principle of consent was not  46 one which simply had been, as it were, excised from  47 the legal lexicon of aboriginal rights in the United 24431  Submissions by Mr. Jackson  1 States.  2 The facts in Minnessota v. Hitchcock are rather  3 complicated.  I have set them out in some detail on  4 pages 234 to 237.  They bear some resemblance to the  5 facts in Beecher v. Weatherby in that what was an  6 issue here was the effect of a grant by the federal  7 government to the state of Minnessota of its section  8 16 lands for educational purposes.  It was complicated  9 by a series of transactions with the Indian nations  10 concerned which contained also certain guarantees to  11 them that lands which they had surrendered up would be  12 the funds for the lands when they were sold would be  13 used for educational purposes.  14 The principle for which we say the case's  15 authority is set out is at page 236.  And one of the  16 issues in the case was whether or not the lands which  17 the Indians ended up with were a reservation or  18 whether they were unceded Indian lands held by  19 aboriginal title.  And what the court said, and I set  20 out at page 236, is:  21  22 "Whether this tract, which was known as the Red  23 Lake Indian Reservation, was properly called a  24 reservation, as the defendant contends, or unceded  25 Indian country, as the plaintiff insists, is a  26 matter of little moment.  Confessedly the fee of  27 the land was in the United States, subject to a  28 right of occcupancy held by the Indians."  29  30 And, of course, that is the common denominator of all  31 these cases.  32  33 "That fee the government might convey, and  34 whenever the Indian right of occcupancy was  35 terminated (if such termination was absolute and  36 Unconditional) the grantee of the fee would  37 acquire a perfect and unburdened title and right  38 of possession.  At the same time the Indians'  39 right of occcupancy has always been held to be  40 sacred: something not to be taken from him except  41 by his consent, and then upon such consideration  42 as should be agreed upon."  43  44 And the facts in this case, again as in Beecher v.  45 Weatherby and Buttz were ones in which an agreement or  46 treaty had been entered into for the surrender of  47 Indian land. 24432  Submissions by Mr. Jackson  1 THE COURT:  Is that the Supreme Court of the United States?  2 MR. JACKSON:  Yes, my lord.  These are all decisions of the  3 Supreme Court of the United States.  4 What is significant, we say, about Minnessota v.  5 Hitchcock is that in the passage I have cited there,  6 more than a passing resemblance is to be found between  7 that passage and the decisions both of the Privy  8 Council in the Star Chrome case and of Mr. Justice --  9 or Chief Justice Dickson in Guerin that the nature of  10 the Indian interest in land is the same whether or not  11 it is a reserve so designated as a result of some  12 legislative act or Executive Order, or whether it is  13 unceded Indian land held by aboriginal title.  We say,  14 of course, it is also of significance in that it  15 affirms that for Indian lands to be taken the doctrine  16 of consent as well as the need for compensation are  17 incidents of the taking.  And the final significance  18 is one of omission, perhaps, as we will see when we  19 deal with the U.S. Supreme Court decision in  20 Tee-Hit-Ton in tracing the chain of jurisprudence  21 which the Supreme Court in 1955 says is the chain of  22 jurisprudencial title, Minnessota v. Hitchcock is  23 nowhere to be mentioned.  It is not the only case  24 which is not mentioned in that decision, either.  25 The next case in this chain, my lord, is one which  26 has been referred to in almost all the recent Canadian  27 cases, the decision of the United States v. Sante Fe  28 Pacific Railroad Company.  It is a decision decided in  29 the early days of the Second World War in 1941.  And  30 exstensive passages from this judgment are to be found  31 in the judgments of Mr. Justice Judson in Calder, as  32 well as the judgments of Mr. Justice Hall.  And it is  33 also a case which is relied upon by Mr. Justice  34 Mahoney in Baker Lake.  And the case is one to which  35 we will be coming back to in some detail when we  36 address your lordship on the tests for extinguishment.  37 The case, in fact, presented a number of issues to  38 the court, some of which it was required to rule on,  39 most of which it was not required to rule on.  And as  40 in some of these other cases to which I have referred,  41 the propositions which we say were overture which were  42 not necessary for the decision in any way have been  43 used in support of the proposition that aboriginal  44 title can in fact be extinguished unilaterally.  45 The facts of the case are set out on page 238.  46 And they also bear some resemblance to the facts in  47 Buttz.  This legislation situation arose at around the 24433  Submissions by Mr. Jackson  1 same time during the great western drive when  2 railroads were the principal mechanism for opening up  3 the west in the United States, of course, as in  4 Canada.  5 The predecessor to the Sante Fe Railroad had been  6 granted certain lands in what is now the State of  7 Arizona by an Act of Congress in 1866.  Under section  8 2 of the Act it was provided that "the United States  9 shall extinguish, as rapidly as may be consistent with  10 public policy and the welfare of the Indians..." the  11 words in the statute for the Grand Pacific, Northern  12 Pacific Railroad as well, "...and only by their  13 voluntary cession, the Indian title to all lands  14 falling under the operation of this Act and required  15 in the donation to the road named in the Act".  A  16 Federal Executive Order of 1883 created, out of their  17 aboriginal territory, a reservation for the Indians of  18 the Walapai Tribe in Arizona.  The lands granted to  19 the railroad included both lands which fell within the  20 reservation and outside the reservation, but within  21 the original aboriginal territory of the tribe.  The  22 United States, as guardian of the Walapais pursuant to  23 its conception of its trust responsibilities to Indian  24 nations, brought suit to enjoin the Sante Fe Railroad  25 from interfering with the possession of the lands of  26 the Walapais.  The action was in two parts.  One in  27 relation to those lands within the reservation, and  28 those lands outside the reservations comprised the  29 second part of the action.  30 And one of the reasons why the case is important,  31 my lord, and why we will be coming back to it when we  32 deal with extinguishment, your lordship will readily  33 see that one of the arguments which was made in this  34 case by the Railroad was that the creation of a  35 reservation necessarily had the effect of  36 extinguishing all rights outside of the reservation.  37 And as we understand the Province's argument, that  38 bears some analogy to their argument that the policy  39 in British Columbia prior to confederation in creating  40 reserves had the necessary effect of extinguishing any  41 aboriginal title that might have existed outside of  42 the areas of the reserves.  And that's why from the  43 point of view of both the plaintiffs and the  44 defendants in this case Sante Fe is a case to which  45 your lordship will be referred again, more  46 specifically in relation to extinguishment.  47 The United States argued that aboriginal 24434  Submissions by Mr. Jackson  1 possession from time immemorial created a possessory  2 right legally enforceable against everyone except the  3 United States; that recognition of Indian possessory  4 rights by a prior sovereign is not essential to the  5 validity of such rights under the United States law;  6 that the Act of 1866 safeguarded whatever rights of  7 occcupancy the tribe enjoyed; that Indian title was  8 based in law on aboriginal occcupancy, whether or not  9 such occcupancy had been recognized by treaty, statute  10 or otherwise, and that in the absence of express  11 language to the contrary, a federal grant of public  12 lands did not constitute an extinguishment of Indian  13 occcupancy rights.  Counsel for the Railroad Company  14 argued that the 1866 Act conveyed full beneficial  15 ownership of the lands to the railroad and that the  16 Walapais had no legal rights to the lands because no  17 such rights had been legally recognized by Congress.  18 And in the course of his judgment, Mr. Justice  19 Douglas, writing for the court, dealt with a number of  20 issues relating to the proof of aboriginal title, its  21 legal enforceability, the need for congressional or  22 other executive recognition, and the issue of  23 extinguishment.  24 In terms of the first issue of proof, I will be  25 coming back to that later, my lord, because the test  26 suggested by Mr. Justice Douglas that aboriginal title  27 is based upon exclusive possession is the principal  28 source which Mr. Justice Mahoney relies upon in Baker  29 Lake in stating that as a matter of Canadian law also  30 aboriginal title is founded in part upon exclusive  31 possession.  And as I say, I will be coming back to  32 that.  33 In terms of legal enforceability, Mr. Justice  34 Douglas said this, on page 240 is the quote:  35  36 "Unquestionably it has been the policy of the  37 federal government from the beginning to respect  38 the Indian right of occcupancy which could only be  39 interfered with or determined by the United  40 States...As stated in Mitchel v. United States,  41 Indian 'right of occcupancy is considered as  42 sacred as the fee simple of the whites'.  Whatever  43 may have been the rights of the Walapais under  44 Spanish law, the Cramer case assumed lands within  45 the Mexican Cession were not excepted from the  46 policy to respect Indian right of occupancy.  47 Though the Cramer case involved the problem of 24435  Submissions by Mr. Jackson  1 individual Indian occcupancy, this court stated  2 that such occcupancy was not to be treated  3 differently from 'the original nomadic tribal  4 occcupancy'...   Certainly it would take plain and  5 unambiguous action to deprive the Walapais of the  6 benefits of that policy."  7  8 And the plain and unambiguous test, my lord, is  9 part of the land with which Mr. Justice Hall in Calder  10 saw as requiring a clear, plain, legislative  11 expression to extinguish aboriginal title.  You will  12 find in this case a number of sources of assertions  13 which come up later in Canadian cases.  The court  14 unequivocally in Sante Fe, building on what it had  15 said in its previous decision in Cramer, that some  16 form of federal requisition was not a prerequisite to  17 a claim based on aboriginal title.  The court said:  18  19 "Nor is it true, as respondent urges, that a  20 tribal claim to any particular lands must be based  21 upon a treaty, statute or other formal government  22 action.  As stated in the Cramer case, 'the fact  23 that such right of occcupancy finds no recognition  24 in any statute or other formal government action  25 is not conclusive'."  26  27 And, my lord, in Calder in the Court of Appeal the  28 judges there had, in fact, concluded that in the  29 absence of some express colonial recognition or  30 imperial recognition of aboriginal title pre-1871, the  31 Nishgas could not bring an action to enforce its  32 aboriginal title.  The U.S. jurisprudence is quite to  33 the contrary.  That may be one of the reasons why in  34 the Supreme Court judgment Mr. Justice Calder,  35 although he agreed in some respects with conclusions  36 of the Court of Appeal, he, in fact, did not endorse  37 that position that some form of express recognition of  38 rights is a legal prerequisite to their enforceability  39 in a Canadian court of law.  40 And we say at page 241 in this regard that a claim  41 based upon aboriginal title is not dependent upon some  42 form of governmental recognition.  That proposition is  43 one which we say is now foreclosed from discussion in  44 a Canadian context both by the decision in Calder and,  45 more specifically, by its unequivocal rejection by  46 Chief Justice Dickson in Guerin.  And the reference in  47 Guerin, my lord, in terms of these materials is page 24436  Submissions by Mr. Jackson  1 169 of these submissions.  I have set out the  2 particular passage in Guerin where Chief Justice  3 Dickson makes that statement.  4 The next point which Mr. Justice Douglas refers to  5 is the issue of extinguishment.  And this next  6 statement, my lord, is one which is relied upon by Mr.  7 Justice Judson in Calder.  This particular passage is  8 cited exactly in the way it is set out here by Mr.  9 Justice Judson in Calder.  10  11 "Extinguishment of Indian title based on  12 aboriginal possession is of course a different  13 matter.  The power of Congress in that regard is  14 supreme.  The manner, method and time of such  15 extinguishment raise political not justiciable  16 issues.  And Buttz is given as the authority for  17 that.  As stated by Chief Justice Marshall in  18 Johnson v. Mcintosh, 'the exclusive right of the  19 United States to extinguish Indian title has never  20 been doubted.  And whether it be done by treaty,  21 by the sword, by purchase, by the exercise of  22 complete dominion adverse to the right of  23 occcupancy, or otherwise, its justness is not open  24 to inquiry in the courts."  25  26 And that last phrase "by the exercise of complete  27 dominion adverse to the right of occcupancy" was the  28 particular proposition which Mr. Justice Judson cited  29 Sante Fe for, and is a proposition which he said was  30 the relevant legal proposition prevailing in Canadian  31 law.  32 My lord, in relation to this particular passage,  33 we say that Mr. Justice Douglas, even though he relies  34 upon Beecher v. Weatherby, if your lordship  35 compares -- I am not asking your lordship to do this  36 at this very moment.  But if your lordship goes back  37 to page 220 of these submissions where I have set out  38 the passage in Beecher v. Weatherby, your lordship  39 will see that the re-statement of the Beecher  40 proposition has been considerably expanded in terms of  41 what will bring about an extinguishment.  This is part  42 of my preliminary remarks, my lord, that the  43 re-statement in the re-telling takes on a rather  44 broadened colouration.  45 It is our submission in any event, my lord, that  46 the proposition that aboriginal title can be  47 extinguished "by the exercise of complete dominion 24437  Submissions by Mr. Jackson  1 adverse to the right of occcupancy" is a proposition  2 which we say is inconsistent with the fundamental  3 principles of the common law, is contrary to the  4 provisions of the Royal Proclamation and is one which  5 should be rejected by this court.  It is our further  6 submission that the proposition that the justness or  7 legality of extinguishment is not open to judicial  8 inquiry is also one which this court should reject.  9 And we say, and we will come back to this, that  10 subsequent decisions of the U.S. Supreme Court have  11 themselves repudiated that very broad proposition.  12 And we also say that in the Canadian context the  13 decision in Guerin is pro tanto a repudiation of this  14 non-justiciable argument.  15 Your lordship will recall last week I made the  16 point that in Guerin one of the arguments made by the  17 federal government was that it did, indeed, have  18 obligations towards the Musqueam Band in relation to  19 the surrender of their reserves.  And, indeed, they  20 were high obligations, but they were obligations of a  21 non-justiciable kind.  They were in the land which  22 Federal Crown trusts of a higher order which, while  23 they might give rise to political obligations, did not  24 sound in legal remedies.  And the Supreme Court of  25 Canada soundly rejected that proposition.  And it is a  26 proposition which, as I say, gained some currency in  27 the late 19th century in the United States.  And, as  28 we will demonstrate, has since been revisited.  And  29 the Supreme Court has made it clear that issues of  30 extinguishment are not beyond the ken of the court as  31 they were asserted to be some 40 years ago.  32 But in any event, my lord, we say that the broad  33 statements about the manner in which extinguishment  34 may be brought about other than by Indian consent is  35 overture in the context of Sante Fe.  Having made  36 these introductory statements, as it were, as to the  37 issues I've referred to, the great bulk of the  38 judgment in the Sante Fe decision is devoted by Mr.  39 Justice Douglas to an inquiry to find out whether, and  40 I've referred your lordship to the precise words,  41 there was "a clear and plain indication in the public  42 record" that Congress intended to extinguish  43 aboriginal rights, or whether there was "any plain  44 intent or agreement on the part of the Walapais to  45 abandon their ancestral lands".  46 And there was, in other words, no cognizance taken  47 of any possibility of extinguishment in any of the 2443?  Submissions by Mr. Jackson  1 other ways in which the Supreme Court seemed to  2 suggest it was possible to extinguish aboriginal  3 title.  And the reason why the rest of the judgment is  4 focused in that particular way, and again given the  5 language "a clear and plain indication in the public  6 record" to extinguish, your lordship can see why it  7 was relied upon in Mr. Justice Hall in Calder for his  8 view of extinguishment that only a clear and plain  9 record is extinguishment suffices.  The reason why it  10 was so focused is that the content or the context of  11 Sante Fe was reflected in the Act of 1866 which  12 imposed an obligation on the United States to  13 extinguish the aboriginal title of the Indians  14 provides that it should be done "only by their  15 voluntary cession".  And what we find, therefore, is  16 that Sante Fe is part of this chain of cases in which  17 on the ground what we find is an inquiry directed to  18 was there Indian consent clearly expressed to the  19 extinguishment or to the abandonment?  And yet the  20 case crops up as being authority for a much broader  21 proposition which appears to contravert the need for  22 Indian consent.  23 The next case, my lord.  24 MR. PLANT:  Perhaps I can just rise then if my friend is moving  25 on.  My friend on page 240 has an extract from the  26 judgment of the Supreme Court in Sante Fe.  The last  27 sentence of which is underlined, I can't find that yet  28 in the report.  29 MR. JACKSON:  It is on page 270, my lord, the top of the page.  30 I appreciate Mr. Plant's intervention there.  31 MR. PLANT:  Thank you.  32 THE COURT:  Thank you.  33 MR. JACKSON:  The next case, my lord, is in fact two cases.  It  34 is usually referred to as the Tillamooks litigation  35 which consists of Tillamooks 1 and Tillamooks 2.  The  36 American courts seem -- I don't know whether the  37 citing of this litigation is the precursor to the one  38 found in films in which films become referred to by  39 their numerical number.  But there are a number of  40 cases which I will be referring your lordship to in  41 which we have a first case and a second case.  And  42 they are referred that way in subsequent  43 jurisprudence.  44 But the Tillamooks litigation, together with the  45 next case I will be looking at, Tee-Hit-Ton, merits  46 close analysis insofar as it was to these cases that  47 the closest attention was devoted in the Supreme Court 24439  Submissions by Mr. Jackson  1 of Canada in Calder.  And Mr. Justice Judson, in  2 particular, relied upon the Tillamooks and the  3 Tee-Hit-Ton cases for the proposition, as we  4 understand the Provincial position in this case, it is  5 this position that aboriginal title is not a property  6 or proprietary right and may be extinguished without  7 any legally enforceable obligation to compensate.  In  8 relation to that second proposition, I am not sure if  9 the province does, in fact, say that.  It is certainly  10 its position that the interest is not a legally -- is  11 not a proprietary interest.  12 The Tillamooks litigation arose out of this fact  13 situation.  In 1855, the Tillamooks agreed to cede  14 certain of their lands in the Pacific Northwest in  15 what was then the Oregon Territory in return for  16 monetary compensation and a reservation.  That Treaty  17 was submitted to the Senate, but was never ratified.  18 In November 1855, shortly after that unratified  19 Treaty, an Executive Order created a reservation for  20 both the Tillamooks and other tribes.  Another  21 Executive Order reduced the the size of the  22 reservation in 1865, and in 1875 Congress enacted a  23 law approving the 1855 and 1865 Executive Orders and  24 withdrew further land from the reservation.  The  25 boundaries of the reservation were confirmed by  26 Congress in 1884, and henceforth no more land was  27 taken without paying compensation.  The issue,  28 therefore, was in relation to land withdrawn from the  29 reservation without compensation prior to this.  In  30 1935, Congress passed an Act granting the Court of  31 Claims jurisdiction to adjudicate cases involving "any  32 and all legal and equitable claims arising under or  33 growing out of the original Indian title, claim or  34 rights in ... the lands  ... occupied by the Indian  35 bands and tribes described".  And there were certain  36 unratified treaties mentioned, including this  37 particular treaty.  And the Tillamooks brought an  38 action under this jurisdictional Act for the 1855  39 surrender of their lands, as well as the reductions of  40 their reservation in 1865 and 1875.  41 And the Supreme Court in Tillamooks 1 held that  42 they were entitled to compensation for the  43 appropriation of their aboriginal lands.  Three  44 judgments were rendered by the court.  As your  45 lordship will be well aware, three judgments does not  46 signal well for subsequent principals of stare  47 desisis, and so it was to be in this case.  The Chief 24440  Submissions by Mr. Jackson  1 Justice of the Supreme Court, Chief Justice Vinson,  2 wrote the plurality judgment in which three other  3 distinguished judges concurred, including Mr. Justice  4 Frankfurter and Mr. Justice Douglas.  And the thrust  5 of Chief Justice Vinson's judgment was that the  6 involuntary extinguishment of Indian title gave the  7 Indians a legally enforceable claim for compensation.  8 And Chief Justice Vinson took the position that the  9 effect of the 1935 Act was to remove the  10 jurisdictional bar of sovereign immunity from suit of  11 the United States so as to allow the Court of Claims  12 to entertain the action.  And in his judgment he made  13 it clear that the Indians' right to compensation for  14 involuntary extinguishment of their aboriginal title  15 was a pre-existing right, not a right created by the  16 jurisdictional Act.  And he said:  17  18 "The Act removes the impediments of sovereign  19 immunity and lapse of time and provided for  20 judicial determination of the designated claims.  21 No new right or cause of action is created.  A  22 merely moral claim is not made a legal one.  The  23 cases are to be heard on their merits and decided  24 according to legal principle pertinent to the  25 issues which might be presented under the Act.  26 Accordingly their 1935 statute permits judicial  27 determination of the legal and equitable claims  28 arising out of original Indian title."  29  30 What the court in fact was saying, as I understand  31 that, my lord, is the court now has to determine  32 whether or not as a matter of legal or equitable  33 principle they have aboriginal title and whether or  34 not its expropriation without compensation gives rise  35 to a cause of action.  And in assessing whether or not  36 they had that title and what its instance might be,  37 Chief Justice Vinson refers back to Johnson v.  38 Mcintosh and the other Marshall decisions and  39 summarizes the effects of the discovery principles in  40 this way:  41  42 "It has long been held that by virtue of discovery  43 the title to lands occupied by Indian tribes  44 vested in the sovereign.  That title was deemed  45 subject to a right of occcupancy in favour of  46 Indian tribes, because of their original and  47 previous possession." 24441  Submissions by Mr. Jackson  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  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  Again affirming what Chief Justice Dickson was to  affirm in Guerin that these rights are pre-existing  rights.  As to the content of aboriginal title, Chief  Justice Vinson said, and I have set it out at the top  of page 246:  "As against any but the sovereign, original  Indian title was accorded the protect of complete  ownership."  He continues, however:  "Original Indian title was vulnerable to  affirmative action by the sovereign, which  possessed exclusive power to extinguish the right  of occcupancy at will.  Termination of the right  by sovereign action was complete and left the land  free and clear of Indian claims.  Third parties  could not question the justness of the methods  used to extinguish the right of occcupancy, nor  could Indians themselves prevent the taking of  tribal lands or forestall a determination of their  title. "  Now, my lord, the apparent approval reflected in  that particular passage, and that should be of the  power of Congress to extinguish aboriginal title "at  will".  And that, of course, is a proposition which we  understand both the provincial and federal government  take --  MR. PLANT:  Excuse me.  I'm sorry, another problem here.  That  word "determination" in the last line there, at my  reference to the case the word is "termination".  That's what the judge actually says.  MR. JACKSON:  Yes, my lord, I accept Mr. Plant's —  MR. PLANT:  And while I'm up, about four lines up where it says  "the justness of the methods used" should be "the  justness or fairness of the methods used".  THE COURT:  "Or fairness"?  MR. PLANT:  Yes.  THE COURT:  Well, while we are at it, is there an error in the  second line, too?  "Original Indian title" -- no, I'm  sorry.  It is the previous quote I think there is a  preposition up there, isn't there?  It doesn't matter,  go ahead.  MR. PLANT:  Yes.  In fact, what my friends have done is that  they have broken up one sentence into two.  The 24442  Submissions by Mr. Jackson  1 sentence at the top of the page --  2 MR. JACKSON:  Just continues on.  3 MR. PLANT:  — just continues on.  4 THE COURT:  All right.  5 MR. JACKSON:  My lord, back to page 246, the second paragraph  6 there.  7 THE COURT:  Yes.  8 MR. JACKSON:  I say that the apparent approval reflected in this  9 passage, and that should be of the power of Congress  10 to extinguish aboriginal title "at will" without  11 regard to the principal of Indian consent which we say  12 would be contrary to the principles of the Marshall  13 court, and also contrary to what the court said in  14 Minnessota v. Hitchcock which we say must be read in  15 light of the subsequent passages in Chief Justice  16 Vinson's judgment where he affirms that Indian consent  17 was not in fact rejected by the court in this case.  18 And you will see the cite at the bottom of page 246:  19  20 "Admitting the undoubted power of Congress to  21 extinguish original Indian title compels no  22 conclusion that compensation need not be paid ...  23 In our opinion taking original Indian title  24 without compensation and without consent does not  25 satisfy the 'high standards for fair dealing'  26 required of the United States in controlling  27 Indian affairs.  The Indians have more than a  28 merely moral claim for compensation."  29  30 THE COURT:  Well, he is getting that something more than a moral  31 claim from the legislation, congressional legislation  32 initially and the setting up of the Court of Claims,  33 is he not?  34 MR. JACKSON:  I don't think so, my lord.  Because if your  35 lordship will go back to page 245 where he is looking  36 at the Jurisdictional Act in terms of what rights the  37 Indians have here, he says the third line of that  38 quote:  39  40 "No new right or cause of action is created.  A  41 merely moral claim is not made a legal one."  42  43 In other words, there was previously a legal claim and  44 the effect of the Jurisdictional Act was to remove a  45 jurisdictional impediment of sovereign immunity.  And  46 I think his latest statement that the Indians have  47 more than "A merely moral claim" is meant to refer 24443  Submissions by Mr. Jackson  1 back to their rights to aboriginal title were not  2 originally moral, they were legal, and hence their  3 rights to compensation are --  4 THE COURT:  Well, he is talking there about "the Act does not  5 create a new right".  But didn't -- is it arguable  6 that the right arose out of the original statutory  7 authorities or direction to -- not to extinguish  8 title, but to resolve these problems?  And you gave me  9 that quotation quite some time ago as to getting these  10 problems resolved.  And you told me that there was a  11 statute that --  12 MR. JACKSON:  This statute was prior to the Indian Claims  13 Commission Act, my lord.  These are the Jurisdictional  14 Acts —  15 THE COURT:  I wonder if Chief Justice Vinson was talking about,  16 when he is saying "no new claim", is he saying no new  17 claim under the Court of Claims legislation?  18 MR. JACKSON:  No, my lord, I don't think he is.  Because this  19 case arose, as I say, out of a 1935 Jurisdictional Act  20 prior to when the Indian Claims Commission Act was in  21 fact passed by Congress.  22 THE COURT:  All right.  Thank you.  23 MR. JACKSON:  It is certainly my view that the juxtaposition of  24 the statements that they claim is not merely a moral  25 one refers to both the natures of their claim based  26 upon original Indian possession and also the nature of  27 their claim to compensation.  But I should point out,  28 my lord, that the interpretation which your lordship  29 has suggested is one which has been taken and was  30 taken in Tee-Hit-Ton of this particular statement.  31 THE COURT:  All right.  32 MR. JACKSON:  It is our view that Chief Justice Vinson's  33 statement at 245 is quite unequivocal in terms that  34 the effect of the legislation in 1935 was not to  35 create a legal right in the Indians, that their rights  36 were based upon pre-existing aboriginal possession  37 which gave them a title and gave them a right to  38 compensation, save and except for the jurisdictional  39 bar of sovereign immunity.  And that was, in fact, the  40 effect of the 1935 Act.  41 The next passage, my lord, I think perhaps  42 clarifies this somewhat.  The Chief Justice says that  43 if, in fact, no compensation was due for the  44 extinguishment of the Tillamooks' rights, and this is  45 the quote, this would:  46  47 "...ignore the plain import of traditional methods 24444  Submissions by Mr. Jackson  1 of extinguishing original Indian title.  The early  2 acquisitoin Indian lands in the main progressed by  3 a process of negotiation and treaty.  The first  4 treaties revealed the striking deference paid to  5 Indian claims ... It was usual policy not to  6 coerce the surrender of land without consent and  7 without compensation.  The great drive to open  8 Western lands in the 19th century, however  9 productive of sharp dealing, did not wholly  10 subvert the settled practice of negotiating  11 extinguishment of original Indian title ...  12 Something more than sovereign grace prompted the  13 obvious regard given to original Indian title."  14  15 And, my lord, we say that is significant as your  16 lordship has heard the term "sovereign grace" is one  17 which the province says is in the nature of the  18 recognition of aboriginal title.  It exists only, and  19 to the extent that it is recognized, as a result of  20 the exercise of sovereign grace, and that in the  21 context of British Columbia that existed only to the  22 extent of recognition of rights in relation to reserve  23 lands.  Chief Justice Vinson, we say, in this case  24 clearly stated that the recognition of aboriginal  25 title was something more than sovereign grace.  And  26 that something more, we say, is the original Marshall  27 principles that by virtue of the doctrine of discovery  28 aboriginal people were recognized as having under  29 fundamental principles of a common law a legal as well  30 as just claim to obtain possession and it was not a  31 moral claim.  In that sense, the Chief Justice  32 Vinson's statement that it was "Something more than  33 sovereign grace", that the effect of this legislation  34 was not to transfer a moral claim into a legal one is  35 fully consistent with the original Marshall  36 principles.  37 In Tillamooks 1, my lord, the United States had  38 argued that only where extinguishment was made of  39 Indian title which was recognized by a statute or a  40 treaty was there any legal obligation to compensate.  41 And they argue that in relation to what they called  42 unrecognized aboriginal title, that is where there was  43 absent any treaty or statute, no compensation was due.  44 Chief Justice Vinson rejected this distinction.  He  45 said:  46  47 "Furthermore, some cases speak of the unlimited 24445  Submissions by Mr. Jackson  1 power of Congress to deal with those Indian lands  2 which are held by what the petitioner would call  3 'recognized' title; yet it cannot be doubted that,  4 given the consent of the United States to be sued,  5 recovery may be had for an involuntary,  6 uncompensated taking of 'recognized'  title.  We  7 think the same rule applicable to a taking of  8 original Indian title."  9  10 And the court then cites Minnessota v. Hitchcock:  11  12 "Whether this tract...was properly called a  13 reservation... or unceded Indian country is a  14 matter of little moment... the Indians' right of  15 occcupancy has always been held to be sacred;  16 something not to be taken from him except by his  17 consent, and then upon such consideration as  18 should be agreed upon."  19  20 And we say, my lord, that the location of  21 Minnessota v. Hitchcock at this particular place in  22 the judgment makes it clear that the principle of  23 consent is one which is and remained a polar star star  24 in the jurisprudence.  This particular passage from  25 Chief Justice Vinson's judgment was cited extensively  26 by Mr. Justice Hall in Calder, my lord.  27 The Chief Justice concluded his judgment with an  28 important qualification on the nature and extent of  29 the federal plenary power as it relates to the  30 extinguishment of aboriginal title.  He said:  31  32 "The power of Congress for Indian affairs may be  33 of a plenary nature; but it is not absolute.  It  34 does not..."  35  36 And quoting from a previous decision of the United  37 States v. Creek Nation case:  38  39 "It does not "enable the United States to give the  40 tribal lands to others or to appropriate them to  41 its own purposes, without rendering, or assuming  42 an obligation to render, just compensation for  43 them."  44  45 THE COURT:  Of course that's a wholly different position than  46 that mentioned a moment ago requiring the consent of  47 the Indians. 24446  Submissions by Mr. Jackson  1 MR. JACKSON:  I agree, my lord.  I am not suggesting they are  2 interchangeable.  But what they do suggest is that the  3 very broad statement that extinguishment is  4 non-justiciable and gives rise only to redress to  5 Congress rather than to the courts is one which goes  6 too far.  I think the Chief Justice was saying there  7 that the power of Congress has limitations.  It may be  8 an exclusive power, but it is not an absolute power.  9 My lord, at page 249 there was an important dissent in  10 Tee-Hit-Ton -- sorry, in Tillamooks.  And its  11 significance is that it was authored by Mr. Justice  12 Reed who wrote the majority judgment in Tee-Hit-Ton.  13 And the reasoning in this dissent in fact resurfaces  14 as the majority reasoning in Tee-Hit-Ton.  And Mr.  15 Justice Reed drew and found important the distinction  16 which Chief Justice Vinson rejected between recognized  17 and unrecognized Indian title.  And he described the  18 difference in these terms --  19 THE COURT:  This is a quotation from Tillamooks 1?  20 MR. JACKSON:  This is a quotation from Tillamooks 1, dissenting  21 judgment of Mr. Justice Reed.  22 THE COURT:  Yes.  2 3    MR. JACKSON:  24 "The character of Indian occcupancy of tribal  25 lands is at least of two kinds: first, occcupancy  26 as aborigines until that occcupancy is interrupted  27 by governmental order; and, second, occcupancy  28 when by an act of Congress, they are given a  29 definite area as a place upon which to live.  When  30 Indians receive recognition of their right to  31 occupy lands by act of Congress, they have a right  32 of occcupancy which cannot be taken from them  33 without compensation.  But by the other type of  34 occcupancy, it may be called Indian title, the  35 Indians get no right to continue to occupy the  36 lands; and any interference with their occcupancy  37 by the United States has not heretofore given rise  38 to any right of compensation, legal or equitable."  39  40 And later on that same page Mr. Justice Reed expresses  41 this opinion:  42  43 "Indians who continue to occupy their aboriginal  44 homes, without definite recognition of their right  45 to do so are like paleface squatters on public  46 lands without compensable rights if they are  47 evicted." 24447  Submissions by Mr. Jackson  1  2 And, my lord, at the bottom of the page, and I should  3 say that that sentiment of Mr. Justice Reed in many  4 ways is the similar sentiment of Mr. Justice  5 Taschereau, Mr. Justice Henry in St. Catherine's  6 Millings.  Your lordship may recall that he said that  7 "a grant to others of Indian lands would not forestall  8 an action by those others against the Indians.  The  9 Indians would have no rights to protest their  10 eviction."  11 This passage also may be regarded, my lord, as the  12 source of the passage in the judgment of Mr. Justice  13 Tysoe in the Court of Appeal in Calder where he  14 concluded that as a result of the pre-Confederation  15 ordinances and proclamations, the so-called Calder 13  16 I think my friends refer to it as in their argument,  17 the 13 proclamations and ordinances, Mr. Justice Tysoe  18 concluded that:  19  20 "The Indians of the Colony of British Columbia  21 became in law trespassers on and liable to actions  22 of ejectment from lands in the Colony other than  23 those set aside as reserves for the use of  24 Indians."  25  26 And it is the plaintiff's submission that both the  27 statements of Mr. Justice Reed in Tillamooks 1 and Mr.  28 Justice Tysoe in Calder are contrary to fundamental  29 principles of justice and, in the words of Mr. Justice  30 Hall in Calder:  "represent a proposition which reason  31 itself repudiates".  32 We say, my lord, that the judgment of Mr. Justice  33 Reed is, with the greatest of respect, rife with  34 doctrinal distortions and inconsistencies and, as we  35 will submit in relation to his judgment in  36 Tee-Hit-Ton, flies in the face of the Marshall court  37 principles even though Mr. Justice Reed purports to  38 rely upon those judgments.  Thus, we say Mr. Justice  39 Reed in Tillamooks 1 quite erroneously asserts that  40 the distinction between recognized and unrecognized  41 title springs from the doctrine of discovery set out  42 in Johnson v. Mcintosh.  And, my lord, simply there is  43 nothing in Johnson v. Mcintosh that relates to this  44 distinction.  45 He goes on to say that "while Indians were  46 permitted to occupy these lands under their Indian  47 title, the conquering nations asserted the right to 24448  Submissions by Mr. Jackson  1 extinguish that Indian title without legal  2 responsibility to compensate the Indians for his  3 loss."  And the authority for this assertion, my lord,  4 is found in a footnote as the Treaty of Paris of 1783,  5 which "...confirmed the sovereignty of the United  6 States without reservation of Indian rights".  And, my  7 lord, you should add footnote 6 to that first  8 citation.  9 THE COURT:  At 91?  10 MR. JACKSON:  At the end.  It is footnote 6.  11 THE COURT:  Okay.  12 MR. JACKSON:  And, my lord, if you just consider that  13 proposition for a moment, what it totally ignores is  14 the doctrine of continuity which, of course, was the  15 express subject of pronouncement by the U.S. Supreme  16 Court in the Mitchel case, and the elementary  17 proposition that the British Crown could only convey  18 such proprietary rights as it possessed.  And as we  19 have already demonstrated, both the British Crown  20 authorities and referring to Lord Dorchester and the  21 American authorities in 1791, when addressing the  22 representatives of Indian nations, specifically  23 disavowed any pretension that the Treaty of Paris had  24 negatively affected the pre-existing rights of the  25 Indian nations.  And when we deal with Tee-Hit-Ton, my  26 lord, we will have more to say as to the quality of  27 Mr. Justice Reed's historical scholarship.  2 8 THE COURT:  Can we take the afternoon adjournment?  2 9 MR. JACKSON:  Yes, my lord.  30 THE COURT:  I thought if counsel find it convenient that we will  31 take the adjournment now.  And we will then go to  32 about quarter after four and take a short break, and  33 then go to 5:30 or something like that.  And then if  34 counsel are so disposed, we can come back for a couple  35 of hours this evening.  36 MR. JACKSON:  Well, my lord, I thought perhaps we will go to 5  37 or 5:30.  And then perhaps I can advise your lordship  38 accordingly.  39 THE COURT:  Yes, thank you.  40  41  42  43  44  45  46  47 24449  Submissions by Mr. Jackson  1 THE REGISTRAR:  Order in court.  Court stands adjourned for a  2 short recess.  3 (PROCEEDINGS ADJOURNED AT 3:00)  4  5  6  7 I hereby certify the foregoing to be  8 a true and accurate transcript of the  9 proceedings herein to the best of my  10 skill and ability.  11  12  13  14 LISA FRANKO, OFFICIAL REPORTER  15 UNITED REPORTING SERVICE LTD.  16  17  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 24450  Submissions by Mr. Jackson  1 (PROCEEDINGS RECONVENED AT 3:15 P.M.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Jackson.  5 MR. JACKSON:  Thank you, my lord.  6 My lord, as a result of the Tillamooks I case, the  7 case was sent back to the Court of Claims, and it  8 awarded the Tillamooks $3 million compensation with  9 interest from the date of taking.  And the date of  10 taking, of course, was some considerable time before.  11 The amount of the interest was some 17,000 -- sorry,  12 $17 million, and not surprisingly, the U.S. -- United  13 States Government appealed the award on the basis that  14 the court ought not to have awarded interest.  15 And at the Tillamooks II case, my lord --  16 THE COURT:  I'm sorry, I thought the first judgment was in the  17 Supreme Court in the United States?  18 MR. JACKSON:  It remanded the case back to the Court of Claims.  19 THE COURT:  Yes.  And the Court of Claims — oh, I see.  And the  20 Court of Claims gave interest?  21 MR. JACKSON:  That's right.  The Court of Claims said the  22 compensation is three million plus interest.  23 THE COURT:  Yes, all right.  24 MR. JACKSON:  Which, as I said, had a very enhancing effect on  25 the award.  26 THE COURT:  So the first judgment didn't deal with interest at  27 all.  2 8 MR. JACKSON:  No.  2 9 THE COURT:  No.  Thank you.  30 MR. JACKSON:  The United States, when the case wound its way  31 back up to the U.S. Supreme Court the second time as  32 to whether or not the Court of Claims was right in  33 awarding interest, placed before the court the  34 implications of such an interest award.  And what the  35 U.S. government did in its brief, my lord -- because  36 your lordship will recall that the Indian Claims  37 Commission Act had now been passed and it had  38 authorized the filing of a whole body of claims  39 without the need for special jurisdictional acts as  40 had characterized the Tillamooks I litigation.  41 And the United States government pointed out to  42 the Supreme Court that if this interest award was  43 sustained, the implications of such a ruling would be  44 that if all the claims presently then before the  45 Indian Claims Commission were subject to interest from  46 the date of taking, the United States would face a  47 potential total liability of some $9 billion.  Of 24451  Submissions by Mr. Jackson  1 course that's 1950 dollars, of which eight billion  2 would be interest.  3 THE COURT:  Wouldn't bother a Texas jury.  4 MR. JACKSON:  It bothered the United States government, my lord.  5 THE COURT:  Bothered Texas too.  6 MR. JACKSON:  In any event, my lord, the case went back to the  7 United States Supreme Court on the narrow issue  8 whether the Court of Claims erred in making the  9 interest -- the award subject to interest.  10 And the -- the Tillamooks II decision is very --  11 is a per curiam decision and it reversed the Court of  12 Claims on the issue of interest.  And at page 252, my  13 lord, I've set out the basis for that.  14 The court, after citing what is referred to as the  15 "traditional rule" that interest on claims against the  16 United States cannot be recovered in the absence of an  17 express provision to the contrary in the relevant  18 statute or contract, the only exception being a taking  19 under the Fifth Amendment.  And the Fifth Amendment,  20 my lord, provides that, "Private property shall not be  21 taken for public use without just compensation".  22 The court, basing itself upon its assessment of  23 the opinions in the Tillamooks I case concluded:  24  25 Looking at the former opinions in this case,  26 we find that none of them express the view that  27 recovery was grounded on a taking under the  28 Fifth Amendment.  And since the applicable  29 jurisdictional Act contains no provision  30 authorizing an award of interest, such an award  31 must be reversed.  32  33 And it's difficult to clearly articulate what the  34 U.S. Supreme Court was saying in the Tillamooks I  35 decision.  We know quite clearly they are saying that  36 interest can't be awarded.  The Tillamooks II case has  37 been seen by some judges as amounting to a reversal of  38 its position in the Tillamooks I case.  And that in  39 fact, in the Tillamooks I case, the court was really  40 saying that the liability depended upon the special  41 jurisdictional Act.  42 As I've suggested, my lord, if you look at Chief  43 Justice Vinson's judgments, he seemed not to be saying  44 that, but whatever the proper interpretation of  45 Tillamooks II is, what was very clear was that the  46 court found in the absence of an express direction to  47 pay interest, such interest was not to be awarded on 24452  Submissions by Mr. Jackson  1 these claims.  2 The next case, my lord, and you'll see in Calder  3 this issue of what Tillamooks II means, is the subject  4 of some debate between Mr. Justice Judson and Mr.  5 Justice Hall.  But in some ways, the debate about what  6 the court meant in Tillamooks II is overtaken by the  7 decision of the Supreme Court in the next judgment,  8 which it rendered on this issue of the nature of  9 aboriginal rights in 1955 in Tee-Hit-Ton.  10 And I say at page 254, my lord, that the judgment  11 of the Supreme Court of the -- in Tee-Hit-Ton which  12 was cited with approval by Mr. Justice Tysoe and Mr.  13 Justice McLean in their judgments in the Court of  14 Appeal in Calder and by Mr. Justice Judson in his  15 judgment in the Supreme Court of Canada in the same  16 case, has received the most criticism of any judgment  17 on aboriginal rights delivered by the U.S. Supreme  18 Court.  And it is our submission that this criticism  19 is justified and that the decision of Mr. Justice Reed  20 in Tee-Hit-Ton is so inconsistent with fundamental  21 principles that its findings should be completely  22 rejected by this court.  They are strong words, my  23 lord, and perhaps I will endeavour to explain why we  24 make that submission  25 But first, the background to the case which is  26 set out at the bottom of page 254:  27 The Tee-Hit-Ton Indians are a small band  28 belonging to the Tlingit Tribe of Alaskan Indians.  In  29 1947, Congress passed a joint resolution directing the  30 Secretary of the Interior to sell the right to cut  31 timber from the Tongass National Forest which was part  32 of the traditional territory of the Tee-Hit-Tons.  The  33 joint resolution authorized the sale "notwithstanding  34 any claim of possessory rights".  The resolution  35 defined "possessory rights" as "all rights, if any  36 should exist, which are based upon aboriginal  37 occupancy or title".  38 My lord, perhaps before I go any further, I  39 should just advise you and my friends, when I was  40 reviewing this material over the weekend, I found that  41 the citations which I had originally put in  42 Tee-Hit-Ton, which were to my -- my copy of the case,  43 when these materials were placed in our authorities,  44 the people compiling the authorities went to the only  45 available copy they had which was a lawyers' edition  46 which is a different edition.  And to save both you  47 and my friends the trouble of having to translate what 24453  Submissions by Mr. Jackson  1 I did, if I can find them, is I -- I had our secretary  2 redo these pages yesterday, so that what your lordship  3 has is exactly the text from pages 255 to 266, but you  4 have the alternative citation so that your lordship  5 will be able to find the citation in the book of  6 authorities which your lordship has.  7 THE COURT:  Do I delete my pages 255?  8 MR. JACKSON:  Take 255 to 266 out and substitute these.  9 THE COURT:  Fine.  And are these pages now different from your  10 disk?  11 MR. JACKSON:  No, my lord.  The disk — you haven't got the disk  12 for this yet.  13 THE COURT:  I see.  14 MR. JACKSON:  When you get the disk you'll have the amended  15 pages.  16 THE COURT:  I see.  I better start calling them diskettes is  17 what they are properly called.  Sometimes they can  18 both be very painful.  19 MR. JACKSON:  I'll start at the top of page 255, my lord.  20 The joint resolution authorized the sale  21 "notwithstanding any claim of possessory rights".  The  22 resolution defined "possessory rights" as "all rights,  23 if any should exist, which are based upon aboriginal  24 occupancy or title, whether claimed by native tribes,  25 native villages, native inhabitants, or other persons,  26 and which have not been confirmed by patent or court  27 decision or included within any reservation".  The  28 resolution also provided that all receipts from the  29 sale of timber should be maintained in a special  30 account until the timber and land rights were finally  31 determined.  And Section 3(b) of the resolution  32 specifically provided:  33  34 Nothing in this resolution shall be construed  35 as recognizing or denying the validity of any  36 claims of possessory rights to lands or timber  37 within the exterior boundaries of the Tongass  38 National Forest.  39  40 I suppose one might also refer to that, my lord, as a  41 without-prejudice clause, my lord.  42 Once the merchantable timber in the 350,000 acre  43 forest had been cut down, the Tee-Hit-Tons, relying  44 upon a previous decision of the U.S. Supreme Court to  45 which I will be later referring, a decision of the  46 Shoshone Tribe v. the United States, which had held  47 that aboriginal title included ownership in standing 24454  Submissions by Mr. Jackson  1 timber, the Tee-Hit-Tons sued for compensation arguing  2 that the sale of the timber constituted a compensable  3 taking by the United States of a portion of its  4 proprietary aboriginal interest in the land.  5 The claim was brought pursuant to the Indian  6 Claims Commission Act.  That -- my lord, while the  7 principal part of that Act was to permit claims  8 pre-1946 under a variety of heads -- which I'll be  9 going into later today or early tomorrow morning --  10 the statute also conferred a broad jurisdiction on the  11 Court of Claims to adjudicate claims arising after  12 1946, although for claims arising after 1946, the  13 claims were limited to a much narrower basis and they  14 were limited to claims in law or equity arising under  15 the Constitution, laws, treaties of the United States  16 and Executive Orders of the President.  And what was  17 before the court in Tee-Hit-Ton was whether the  18 aboriginal title of the Tee-Hit-Tons conferred any  19 legal or equitable rights to compensation as against  20 the United States.  21 The Tee-Hit-Tons claimed that the taking of the  22 timber from lands belonging to them by aboriginal  23 title did in fact constitute a taking, giving rise to  24 a claim for compensation under the Fifth Amendment.  25 And Mr. Justice Reed, writing for the majority of  26 the court this time, identified what he regarded as  27 the essential problem which -- central problem  28 presented to the Court for adjudication:  29  30 The problem presented is the nature of the  31 petitioner's interest in the land, if any.  32 Petitioner claims a "full proprietary  33 ownership" of the land; or in the alternative,  34 at least a "recognized" right to unrestricted  35 possession, occupation and use.  Either  36 ownership or recognized possession, petitioner  37 asserts, is compensable....  It is petitioner's  38 contention that its tribal predecessors have  39 continually claimed, occupied and used the land  40 from time immemorial; that when Russia took  41 Alaska, the Tlingits had a well-developed  42 social order which included a concept of  43 property ownership; that Russia while it  44 possessed Alaska in no manner interfered with  45 their claim to the land; that Congress has by  46 subsequent acts confirmed and recognized  47 petitioner's right to occupy the land 24455  Submissions by Mr. Jackson  1 permanently and therefore the sale of the  2 timber off such lands constitutes a taking pro  3 tanto of its asserted rights in the area.  4  5 Mr. Justice Reed described or characterized the  6 nature of the United States government's  defence to  7 the claim in the following way:  8  9 The government denies the petitioner has any  10 compensable interest.  It asserts that the  11 Tee-Hit-Ton's property interest, if any, is  12 merely that of the right to the use of the land  13 at the Government's will; that Congress has  14 never recognized any legal interest of  15 petitioner in the land and therefore without  16 such recognition no compensation is due the  17 petitioner for any taking by the United States.  18  19 And my lord, subject to the issue of compensation,  20 that characterization of the nature of the title of  21 the Indians seems to me, from reading provincial and  22 federal government's defence, to be an argument they  23 subscribe to.  24 Mr. Justice Reed reiterated, in his judgment, the  25 distinction between recognized and original Indian  26 title which he had asserted in dissent in the  27 Tillamooks I case:  28  29 Where the Congress by treaty or other agreement  30 has declared that thereafter Indians were to  31 hold the lands permanently, compensation must  32 be paid for subsequent taking.  33  34 However, Mr. Justice Reed, looking at the  35 resolution of Congress and the other relevant  36 Congressional record, concluded that nothing in that  37 record indicated "any intention by Congress to grant  38 to the Indians any permanent rights in the lands of  39 Alaska occupied by them by permission of Congress.  40 Rather, it clearly appears that what was intended was  41 merely to retain the status quo until further  42 Congressional or judicial action was taken".  And we  43 don't quarrel with that characterization of the  44 Congressional record, my lord.  45 In the absence of there being any Congressional  46 recognition of the Tee-Hit-Ton rights, Mr. Justice  47 Reed then turned to a consideration of their claim on 24456  Submissions by Mr. Jackson  1 the basis of their original Indian title.  And the  2 passage next set out sets out Mr. Justice Reed's  3 conception of the nature of aboriginal or Indian  4 title:  5  6 The nature of aboriginal Indian interest in  7 land and the various rights as between the  8 Indians and the United States dependent on such  9 interest are far from novel as concerns our  10 Indian inhabitants.  It is well settled that in  11 all the States of the Union the tribes who  12 inhabited the lands of the States held claim to  13 such lands after the coming of the white man,  14 under what is sometimes termed original Indian  15 title or permission from the whites to occupy.  16 That description means mere possession not  17 specifically recognized as ownership by  18 Congress.  After conquest they were permitted  19 to occupy portions of territory over which they  20 had previously exercised "sovereignty", as we  21 use that term.  This is not a property right  22 but amounts to a right of occupancy which the  23 sovereign grants and protects against intrusion  24 by third parties but which right of occupancy  25 may be terminated and such lands fully disposed  26 of by the sovereign itself without any legally  27 enforceable obligation to compensate the  28 Indians.  29  30 THE COURT:  Does he say what he refers to by this term  31 "conquest"?  32 MR. JACKSON:  My lord, that is the point I will next refer you  33 to.  34 THE COURT:  All right.  35 MR. JACKSON:  We say, my lord, that what we call a remarkable  36 redefinition of aboriginal title as "permission from  37 the whites to occupy" is linked to the parallel Mr.  38 Justice Reed drew in the first Tillamooks case where  39 he equated the position of Indians and "pale-faced  40 squatters on public lands".  41 In relation to your lordship's point as to the  42 authority for this proposition of Mr. Justice Reed, he  43 sought as authority for the proposition I've just set  44 out, he sought as the principal authority what he  45 called "the great case of Johnson v. Mcintosh".  We  46 say, my lord, that his citation to that case is  47 extremely selective; indeed -- and I use these words 24457  Submissions by Mr. Jackson  1 advisedly, my lord -- we say that his selection is so  2 limited that if counsel were to suggest to your  3 lordship that the passages cited by Mr. Justice Reed  4 represented the central tenets of "the great case of  5 Johnson v. Mcintosh", counsel could be accused of  6 misleading the Court.  7 There are two paragraphs cited.  The first one  8 contains the statement which your lordship also asked  9 a question about, where the Chief Justice said  10 "conquest gives a title which the courts of the  11 conqueror cannot deny".  And your lordship may recall  12 when I read that out from Johnson v. Mcintosh, your  13 lordship said, "Well, what conquest is he referring  14 to?"  And in the same way, your lordship's question,  15 "What conquest is Mr. Justice Reed referring to," he  16 gives us no clue at this stage of his judgment.  17 THE COURT:  Probably a reference to Campbell v. Hall, isn't it?  18 MR. JACKSON:  Campbell v. Hall is not cited, my lord.  19 THE COURT:  At least there was a conquest there.  20 MR. JACKSON:  Well, as we — we saw in Johnson v. Mcintosh, the  21 only way to make sense of the reference to conquest  22 there and the statements that territory was held by  23 the soldiers as far west as the Mississippi was by  24 reference to the conquest in relation to the French.  25 In Tee-Hit-Ton, it appears that Mr. Justice Reed -- in  26 a passage which I will later refer your lordship --  27 was not in fact talking about the conquest over the  28 French, but rather was actually talking about the  29 conquest over the Indians.  But anyway, that's the  30 first passage from Johnson v. Mcintosh which is a  31 passage where Chief Justice Marshall does talk about  32 the title of the conqueror.  33 The second passage -- and we say at 259, that in  34 relation to that particular passage, that nothing in  35 Johnson v. Mcintosh turned on conquest, and the theory  36 of conquest giving a title, excepting very limited  37 areas, was expressly repudiated by Chief Justice  38 Marshall in Worcester v. Georgia.  But the second  39 paragraph from Johnson v. Mcintosh, which is referred  40 to by Mr. Justice Reed, deals with the acquisition of  41 title to lands being no longer occupied by its ancient  42 inhabitants.  43 What is not contained in Mr. Justice Reed's  44 judgment is any reference to any other of the Marshall  45 Court decisions.  He doesn't refer to Worcester v.  46 Georgia, he doesn't refer to Mitchel.  And we say, my  47 lord, that in terms of the selection citation, even if 2445?  Submissions by Mr. Jackson  1 it were limited to Johnson v. Mcintosh, what Mr.  2 Justice Reed did not take into account what we have  3 said your lordship should be fully alive to, is the  4 fact that the jurisprudence of the Marshall Court went  5 through an evolution and Johnson v. Mcintosh cannot be  6 plucked out of the air as if it marked the end point  7 of that jurisprudence.  8 Also, nowhere in the judgment is there to be  9 found any reference to the unanimous court --  10 unanimous decision of the Court in Minnesota v.  11 Hitchcock, that Indian title "has always been held to  12 be sacred; something not to be taken from him except  13 by his consent".  And of course in Mitchel, where we  14 saw, my lord, the courts talking about the Indian  15 title being as sacred as the fee simple of the whites.  16 In further support of the proposition that Indian  17 title was not a proprietary interest and was not  18 compensable, Mr. Justice Reed cited two of the cases  19 we have previously dealt with in this chain.  He cited  20 Beecher v. Wetherby, and the passage relied upon is  21 set out at page 260.  And it is the -- includes the  22 proposition that:  23  24 ...the proprietary or justice of their [the  25 United States] action towards the Indians with  26 respect to their lands is a question of  27 governmental policy, and is not a matter open  28 to discussion in a controversy between third  29 parties, neither of whom derives title from the  30 Indians.  31  32 And as we had previously said in Beecher v.  33 Wetherby, the court did not say that the justice or  34 propriety could not be adjudicated in a contest  35 between the Indians and the United States.  In  36 Tee-Hit-Ton, the case was cited for exactly that  37 proposition, that it applied and in fact prevented the  38 Tee-Hit-Tons from suing the United States for  39 compensation for a taking of their lands.  The  40 citation to Santa Fe, my lord, is even more selective  41 than the references to Johnson v. Mcintosh.  And in  42 fact, there was only one passage in which Mr. Justice  43 Reed refers to Santa Fe, and it's the passage which is  44 set out at the bottom of page 260, which I've already  45 referred to your lordship, in which Mr. Justice  46 Douglas said that:  47 24459  Submissions by Mr. Jackson  1 The manner, method and time of such  2 extinguishment raises political, not  3 justiciable, issues.  4  5 My lord, we say the selective use of Santa Fe to  6 support the proposition that all aspects of  7 Congressional authority to extinguish aboriginal title  8 are unreviewable is quite extraordinary.  In that  9 case, my lord, the United States had brought suit as  10 guardian of the Walapai to enjoin the railroad's  11 interference with the tribe's enjoyment and possession  12 of its territory.  The railway company had defended on  13 the grounds that the tribe's aboriginal title had been  14 extinguished.  The central analysis of the case was  15 directed to judicial review of whether or not Congress  16 had expressed a clear and plain intention to  17 extinguish the Walapai's title by the creation of a  18 reservation and whether the Walapai's had expressed a  19 clear and plain intention to abandon their ancestral  20 lands.  Moreover, in the course of its decision, my  21 lord -- and I've set this out previously -- the  22 Supreme Court specifically stated that a tribal claim  23 to particular land did not have to be based on "a  24 treaty, statute or other formal government action".  25 Of course that's a proposition directly contrary to  26 the central thesis of Mr. Justice Reed in Tee-Hit-Ton,  27 that only recognized title gives rise to a proprietary  28 interest.  29 It's not surprising we say therefore, my lord,  30 that Mr. Justice Reed made no further reference to  31 Santa Fe because it would appear upon any proper  32 reading of Santa Fe, to directly, unequivocally,  33 reject the proposition that there is a distinction  34 between recognized and unrecognized title.  35 My lord, in relation to Tillamooks, the -- Mr.  36 Justice Reed took the position that in light of  37 Tillamooks II, the decision of Tillamooks I must be  38 viewed as based upon an expressed direction to pay  39 under the jurisdictional act, even though Chief  40 Justice Vinson in Tillamooks I having expressly  41 disavowed any such intention.  Having thus  42 distinguished Tillamooks I, Mr. Justice Reed  43 concluded:  44  45 This leaves unimpaired the rule derived from  46 Johnson v. Mcintosh that the taking by the  47 United States of unrecognized Indian title is 24460  Submissions by Mr. Jackson  1 not compensable under the Fifth Amendment.  2  3 This is true, not because an Indian or an  4 Indian tribe has no standing to sue or because  5 the United States has not consented to be sued  6 for the taking of original Indian title, but  7 because Indian occupation of land without  8 government recognition of ownership creates no  9 rights against taking or extinction by the  10 United States protected by the Fifth Amendment  11 or any other principle of law.  12  13 And it is our submission, my lord, that Mr.  14 Justice Reed's statement that Johnson v. Mcintosh is  15 authority for the proposition that the taking of  16 unrecognized aboriginal title is not compensable under  17 the Fifth Amendment is totally without foundation.  In  18 that case there was no issue regarding the  19 compensability of aboriginal title because, as your  20 lordship will remember, the land in question had been  21 ceded to the United States by treaty.  And we say that  22 Mr. Justice Reed, in relying upon Johnson v. Mcintosh  23 for that proposition, demonstrates a shocking and  24 selective reliance on precedent.  25 Mr. Justice Reed, in his judgment, acknowledged  26 that the authorities which he had previously cited;  27 Santa Fe, Beecher v. Wetherby and Johnson v. Mcintosh  28 itself, dealt largely with the Indians of the Plains  29 and east of the Mississippi.  He therefore addressed  30 the argument made by the Tee-Hit-Tons "that their  31 stage of civilization and their concept of ownership  32 of property takes them out of the rule applicable to  33 the Indians of the States".  34 The evidence of the Tee-Hit-Tons presented to the  35 Court of Claims in this case, my lord, was limited to  36 a single witness from a Chief of the tribe  37 supplemented by anthropological evidence.  The Chief's  38 evidence showed that at the time of the lawsuit the  39 Tee-Hit-Tons had been reduced to a total membership of  40 some 65.  The witness pointed out that the  41 Tee-Hit-Tons' claim of ownership was based on  42 possession and use.  Although the area claimed covered  43 some 350,000 acres, the witness pointed to only six  44 places in the area to show Indian use.  And this is  45 all taken from the judgment of Mr. Justice Reed, my  46 lord.  47 Quite clearly, the evidence before the court in 24461  Submissions by Mr. Jackson  1 Tee-Hit-Ton was of a wholly different order  2 qualitatively and quantitatively than that which has  3 been placed before your lordship.  4 And on the basis of admittedly very limited  5 evidence, Mr. Justice Reed found that the Court of  6 Claims had properly concluded that "the Tee-Hit-Tons  7 were in a hunting and fishing stage of civilization,  8 with shelters fitted to their environment, and claims  9 to the rights to use identified territory to those  10 activities as well as the gathering of wild products  11 of the earth.  And he concluded that this evidence  12 confirms the Court's conclusion that the petitioner's  13 use of its land was like the use of the nomadic tribes  14 of the States' Indians."  15 My lord, Mr. Justice Reed ended his judgment with  16 a statement which I think answers your lordship's  17 question about what conquest was he referring to.  He  18 said:  19  20 The line of cases adjudicating Indian rights on  21 American soil leads to the conclusion that  22 Indian occupancy not specifically recognized as  23 ownership by action authorized by Congress, may  24 be extinguished by the Government without  25 compensation.  Every American school boy knows  26 that the savage tribes of this continent were  27 deprived of their ancestral ranges by force  28 and that, even when the Indians ceded millions  29 of acres by treaty in return for blankets,  30 food and trinkets, it was not a sale but the  31 conquerors' will that deprived them of their  32 land...  33  34 In the light of the history of Indian relations  35 in this Nation, no other course would meet the  36 problem of the growth of the United States  37 except to make Congressional contributions for  38 Indian lands rather than to subject Government  39 to an obligation to pay the value when taken  40 with interest to the date of payment.  Our  41 conclusion does not uphold harshness as against  42 tenderness towards the Indians, but it leaves  43 with Congress, where it belongs, the policy of  44 Indian gratuities for the termination of Indian  45 occupancy of Government-owned land rather than  46 making compensation for its value a rigid  47 constitutional principle. 24462  Submissions by Mr. Jackson  1 My lord, that proposition and those concluding  2 remarks were cited with approval by Mr. Justice Judson  3 in Calder as having "equal application" to the  4 Nishga's claims, even though in that case there was no  5 claim to compensation.  As your lordship is aware, the  6 action was for bare declaration.  7 My lord, page 265, we set out our submissions in  8 relation to Tee-Hit-Ton, and we say that supported by  9 the weight of scholarly writing, that Mr. Justice  10 Reed's concluding paragraphs represent a distortion of  11 both legal principle and of history. Tee-Hit-Ton  12 amounts to a revival of an historically unfounded  13 conquest theory to legitimate judicial nullification  14 of Indian proprietary rights, justified by an appeal  15 to "manifest destiny".  16 We have previously cited in these materials, my  17 lord, the statement by Professor Felix Cohen, at a  18 time when he was an Associate Solicitor for the United  19 States Department of the Interior, where he said that  20 despite what "every American school boy is taught [and  21 this was before Tee-Hit-Ton] the historic fact is that  22 practically all of the real estate acquired by the  23 United States since 1776" -- and we would add, my  24 lord, for your lordship's own noting -- before 1776 as  25 well, was purchased not from Napoleon or any other  26 emperor or czar but from its original Indian owners.  27 And we have in our submissions --  28 THE COURT:  That clearly isn't right, is it?  29 MR. JACKSON:  No, my lord.  In terms of —  30 THE COURT:  Alaska is almost as big as the American west, less  31 Louisiana, isn't it?  Doesn't matter.  Alaska plus  32 Louisiana comes pretty close to --  33 MR. JACKSON:  I think we may be in a situation of parody here,  34 my lord.  35 THE COURT:  Pretty close.  36 MR. JACKSON:  But in terms of Louisiana, most of Louisiana was  37 in fact purchased from the Indian original owners  38 through treaties, my lord.  39 THE COURT:  Yes, I suppose that's right.  After acquiring  40 France's rights, the Americans did acquire the rest of  41 it -- then went through an extinguished title by  42 treaty, yes, quite right.  43 MR. JACKSON:  Yes, my lord.  And in fact, my lord, when we dealt  44 with the Baker Lake tests and some of the Indian  45 Claims Commissions Act, many of those artifact cases  46 arise from purchases in the -- in what was Louisiana.  4 7 THE COURT:  Yes. 24463  Submissions by Mr. Jackson  1 MR. JACKSON:  Our previous submissions have documented the  2 extent to which Professor Cohen's assertion is an  3 accurate description of historical reality.  And in  4 that sense we are talking about the acquisition by  5 purchase from Indian proprietors.  Yet eight years  6 later, after Professor Cohen's statement, the majority  7 of the Supreme Court of the United States can assert,  8 as a factual predicate to its finding that Indians  9 have no legal compensable rights to their land, that  10 "every American school boy knows that the savage  11 tribes of this continent were deprived of their  12 ancestral ranges by force".  And we say, my lord, no  13 less appalling than this distortion of the historical  14 reality is the court's justification for its finding  15 which subordinates the rule of law to political  16 expediency.  The necessity of the growth of the United  17 States is seen as an historical imperative and any  18 legal principle which might impede this advance of  19 civilization is to be rejected.  In this way, my lord,  20 Indian rights become transformed from rights "as  21 sacred as the fee simple" -- to use the words of Mr.  22 Justice Baldwin in Mitchel -- into -- to use the words  23 of Mr. Justice Reed -- "permission from the whites to  24 occupy"; treaties negotiated in accordance with Indian  25 and European diplomatic protocol are no more than  26 expressions of the "the sovereign's will" and mutual  27 covenants of alliance, assistance and protection are  28 no more than "gratuities".  And we say, my lord, that  29 Tee-Hit-Ton is a blatant example of power distorting  30 the face of justice.  And it is our submission that  31 Tee-Hit-Ton is inconsistent with fundamental  32 principles, that Mr. Justice Judson's reliance on the  33 case is misplaced and that this court should repudiate  34 both its reasoning and its conclusions in the context  35 of Canadian law.  36 My lord, at pages -- the bottom of page 266 and  37 pages 267 and 268, I have set out, using the  38 commentary of Professor Newton, a distinguished  39 American Indian rights scholar who has looked at the  40 reasons why the Supreme Court in Tee-Hit-Ton was  41 compelled to come to the conclusions it did.  And I  42 don't intend to go into it in any depth, my lord, I  43 leave it to your lordship to read, but there is just  44 two points I want to make:  45 One of them is that Professor Newton makes the  46 point, which I think is one which has merit, that the  47 effect of Tee-Hit-Ton was to say that you can't come 24464  Submissions by Mr. Jackson  1 to court and sue the United States under the Fifth  2 Amendment for compensation for a taking.  By this  3 time, of course, what was in place in the United  4 States was the Indian Claims Commission which  5 permitted actions for compensation, and the effect of  6 the Tee-Hit-Ton ruling was, in fact, to make the  7 Indian Claims Commission process the exclusive forum  8 for those claims, rather than permitting a parallel  9 route through the courts, with implications for very  10 significant and potentially crippling awards of  11 interest.  12 Also, my lord, what Professor Newton suggests is  13 that to the extent that the Indian Claims Commission  14 process was meant to be a final resolution of these  15 claims, the court's findings in Tee-Hit-Ton in  16 precluding any other extraneous route for  17 compensation, was consistent with the final  18 adjudication of these issues once and for all in a  19 particular forum set up by Congress.  20 In that way, my lord, we are not asking you to  21 re-characterize the case in any way, but it -- to my  22 mind, it makes sense of a judgment which otherwise  23 seems to be so inconsistent with fundamental  24 principles that one is left sort of scratching one's  25 head as to what could have forced the court to come to  26 that conclusion.  27 And you will see, my lord, that I make the point  28 that Tee-Hit-Ton in this way seems to fit into the  29 general thrust of Congressional Indian policy in the  30 1950's, in much the same way as the decision in Kagama  31 in 1886 fitted into the general thrust of the federal  32 government in relation to the allotment in general,  33 broad, federal power.  34 The next cases I wish to refer to, my lord, are  35 also a sequence of cases which are referred to as the  36 Oneida cases, Oneida I.  37 MR. PLANT:  Before my friend does that, there is just one minor  38 matter of correction that -- on page 259 of my  39 friend's submission with respect to Tee-Hit-Ton, the  40 bottom of the page he says, "Strikingly absent is any  41 reference to the judgments in Worcester."  Does your  42 lordship have that?  4 3    THE COURT:  Yes.  44 MR. PLANT:  Yes.  The reference to Worcester in Tee-Hit-Ton is  45 found on page 317 of the judgment at footnote two.  46 Turning on to page 260, where he says, "Nowhere  47 to be found in the judgment is any reference to the 24465  Submissions by Mr. Jackson  1 unanimous decision of the Court in Minnesota v.  2 Hitchcock," the reference to that case is at page 322  3 in footnote 15.  4 THE COURT:  Thank you.  5 MR. JACKSON:  My lord, my references to lack of references are  6 intended to be citations to propositions or  7 principles.  You will find in the footnotes a litany  8 of references to cases, my lord, with no discussion  9 and no recognition that those cases in any way detract  10 from or deviate from the propositions which are  11 asserted in the body of the text.  12 My lord, at the time of the decision of the  13 Supreme Court of Canada in Calder, Tee-Hit-Ton was the  14 most recent Supreme Court of United States decision  15 dealing with the nature of aboriginal title.  And at  16 page 269 you will see that I set out what Mr. Justice  17 Judson stated in relation to it as being "the last  18 word on the subject", as indeed at that point it was.  19 Since Calder, my lord, the Supreme Court of the  20 United States has rendered two other important  21 judgments which have addressed the nature of Indian  22 title in a manner which reaffirms, we say, the  23 original Marshall Court principles and which, we  24 further say, implicitly rejects Tee-Hit-Ton.  And the  25 first of these cases is Oneida I.  26 The Oneida litigation is part of what is referred  27 to as the Eastern Land Claims litigation.  And we say,  28 my lord, that there is a certain historical symmetry  29 involved in these cases, not only because they mark a  30 return to the original Marshall principles, but also  31 because the suit was brought by the Oneida Nation, one  32 of the six Nations of the Iroquois Confederacy.  In  33 their 1970 action the Oneidas alleged that from time  34 immemorial down to the time of the American  35 Revolution, they had owned and occupied some six  36 million acres of land in the State of New York.  In  37 the 1780's and 1790's, they had entered into various  38 treaties with the United States confirming the  39 Indians' right of possession of their lands.  And of  40 course one of those, my lord, was the Treaty of Fort  41 Stanwix.  The Oneidas' complaint further alleged that  42 in 1790, the treaties had been implemented by federal  43 statute, the Trade and Nonintercourse Act, forbidding  44 the conveyance of Indian lands without the consent of  45 the United States.  And in 1788, the Oneidas ceded  46 some five million acres to the State of New York,  47 retaining some 300,000 acres.  And later in 1795, 24466  Submissions by Mr. Jackson  1 100,000 acres of those lands were ceded again to the  2 State of New York.  And the Oneidas asserted that the  3 1795 cession was without the consent of the United  4 States and hence was legally ineffective to terminate  5 the Indians' right of possession under the treaties  6 and the applicable federal statutes.  It was also  7 alleged that the cession in 1795 was for an  8 unconscionable and inadequate price.  The tribe sued  9 for damages for the fair rental value of that part of  10 the land presently owned and occupied by the Counties  11 of Oneida and Madison, in upper New York, for a period  12 of two years.  13 So the litigation, my lord, was in the nature of a  14 test case, limited to these two years.  The amount of  15 land and the amount of compensation was not -- was not  16 large but it was intended to raise issues of some  17 considerable importance because there were other  18 examples of treaties of cession made by the eastern  19 states after the passage of the Trade and  20 Nonintercourse Act without the consent of the United  21 States, and hence in violation of that statute.  22 So the case was of some considerable importance  23 to the security of land title and the financial  24 implications of noncompliance with the Trade and  25 Nonintercourse Act.  26 The United States District Court, in which the  27 case was first dealt with, dismissed the complaint in  28 Oneida I on the ground that it failed to state a claim  29 arising under the laws of the United States (and  30 therefore should have been initiated in a State  31 Court).  This decision was affirmed by the Court of  32 Appeals for the Second Circuit.  The case went to the  33 Supreme Court which held unanimously that, for  34 jurisdictional purposes, the Oneidas' case stated a  35 claim for possession arising under federal law and  36 hence within the jurisdiction of the District Court.  37 And this question of a federal claim arising under  38 federal law, my lord, is one which our own Supreme  39 Court, in the Roberts case, has recently concluded --  40 gives rise to a similar kind of issue, that aboriginal  41 title is a matter of federal common-law.  Oneida, as  42 it were, anticipated that kind of judgment in the  43 American context.  44 But the Supreme Court, in determining the nature  45 of the possessory right alleged by the Oneidas, stated  46 at the passage set out at page 271:  47 24467  Submissions by Mr. Jackson  1 It very early became accepted doctrine in this  2 Court that although fee title to the lands  3 occupied by Indians when the colonists arrived  4 became vested in the sovereign - first the  5 discovering European nation and later the  6 original States and the United States - a right  7 of occupancy in the Indian tribes was  8 nevertheless recognized.  That right, sometimes  9 called Indian title and good against all but  10 the sovereign, could be terminated only by  11 sovereign act.  Once the United States was  12 recognized (sic) --  13  14 THE COURT:  "Organized".  "Organized".  15 MR. JACKSON:  "Organized", yes, my lord.  16  17 Once the United States was organized and the  18 constitution adopted, these tribal rights to  19 Indian lands became the exclusive province of  20 the federal law.  Indian title, recognized to  21 be only a right of occupancy, was  22 extinguishable only by the United States.  23  24 And later in this judgment, my lord, the court  25 cited the passage from Worcester v. Georgia.  This is  26 not a passage or reference, my lord, lodged in a  27 footnote, but in the body of the text in which Chief  28 Justice Marshall had spoken of the:  29  30 universal conviction that the Indian Nations  31 possessed a full right to the lands they  32 occupied, until that right should be  33 extinguished by the United States, with their  34 consent ... that within their boundary they  35 possess rights which no state could interfere;  36 and that they (sic) whole --  37  38 That should be:  39  40 -- the whole power of regulating the  41 intercourse with them, was vested in the United  42 States.  43  44 And we have previously submitted, my lord, and  45 its affirmation and recitation in a recent decision of  46 the Supreme Court makes it very clear that the  47 exclusive power of the United States to regulate 24468  Submissions by Mr. Jackson  1 relationships with Indian Nations is an exclusive  2 power in the sense that it precludes state  3 interference.  But this exclusive power, which  4 includes the power to extinguish Indian title, can and  5 must be exercised with Indian consent.  6 The court in Oneida I, my lord, in the course of  7 its judgment, affirmed its previous decision in Santa  8 Fe.  But in stark contrast to the court's judgment in  9 Tee-Hit-Ton, the court in Oneida I recites the passage  10 in Santa Fe omitted from the judgment in Tee-Hit-Ton,  11 to the effect that Indian title, to be protected, need  12 not be "based upon a treaty, statute, or other formal  13 government action".  14 And we say, my lord, in this regard, by  15 specifically reciting that passage in Santa Fe, the  16 Supreme Court in Oneida I has, by necessary  17 implication, rejected the distinction which it had  18 previously rejected in Tillamooks I, which draws a  19 distinction between unrecognized and recognized Indian  20 title.  21 My lord, before I get into Oneida II, would this  22 be a convenient place to take the break?  23 THE COURT:  Yes.  All right.  24 THE REGISTRAR:  Order in court.  Court stands adjourned for a  25 short recess.  26  2 7 (PROCEEDINGS ADJOURNED AT 4:10 P.M.)  28  29 I hereby certify the foregoing to be  30 a true and accurate transcript of the  31 proceedings herein transcribed to the  32 best of my skill and ability.  33  34  35  36  37 Toni Kerekes, O.R.  38 United Reporting Service Ltd.  39  40  41  42  43  44  45  46  47 24469  Submissions by Mr. Jackson  1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  2  3 THE COURT:  Mr. Jackson.  4 MR. JACKSON:  My lord.  Moving now, my lord, to Oneida II on  5 page 273.  As a result of its decision in --  6 THE COURT:  I gather Oneida I it was only decided that it was a  7 fair question to be argued in Federal Courts.  8 MR. JACKSON:  Yes, my lord.  Federal Court had jurisdiction to  9 hear the matter.  So it was remanded back to Federal  10 Court.  And that Court, my lord, trifurcated trial of  11 the issues.  It is not my word, my lord.  12 THE COURT:  No.  Its a dreadful word.  Goodness sakes.  13 MR. JACKSON:   That seems to be the consensus of counsel table  14 as well.  There you have it.  That's what they did.  15 In the first phase of the case, the Court found the  16 two New York Counties liable to the Oneidas for  17 possession of their land; in the second phase, it  18 awarded damages in the amount of some sixteen thousand  19 dollars plus interest and in the third phase, it held  20 that the State of New York, a third party defendant,  21 must indemnify the Counties for the damages owed to  22 the Oneida.  The Court of Appeal affirmed the District  23 Court's rulings with respect to liability and  24 indemnification.  And the Counties and the State  25 appealed to the U.S. Supreme Court, which recognizing  26 the importance of the Court of Appeal's decision in  27 relation to all Eastern land claims, granted  28 certiorari on the issue "to determine whether an  29 Indian tribe may have a live cause of action for a  30 violation of its possessory rights that occurred 175  31 years ago."  32 The Supreme Court, in a five-four majority  33 decision, affirmed the finding of liability and in  34 doing so traces the early history of the Iroquois and  35 of the passage of the Trade and Nonintercourse Act.  36 And I have set out, my lord, that early history at  37 page 274, 275.  It's a rather longer version of what I  38 have already --  39 THE COURT:  This is a quote from the Supreme Court of the United  40 States?  41 MR. JACKSON:  Yes, my lord.  It's a rather longer version of  42 what I have already explained to you.  So I don't  43 think it's necessary for me to --  44 THE COURT:  All right.  45 MR. JACKSON:  — go into it.  On page 275 the — and of course,  46 the essential issue was the fact that the Trade and  47 Nonintercourse Act had not been complied with. 24470  Submissions by Mr. Jackson  1 The Counties did not dispute the District Court's  2 finding that the 1795 conveyance did not comply with  3 the requirements of the Nonintercourse Act.  They  4 argued that the Oneidas did not have a Federal common  5 law cause of action for this violation and that if  6 such an action existed, it was pre-empted by the  7 Nonintercourse Act.  Additionally, they maintained  8 that any such cause of action was time-barred or  9 non-justiciable; that any cause of action had abated  10 and finally, that the United States had ratified the  11 conveyance.  12 The Supreme Court found that the courts below had  13 concluded that the Oneidas had a right to sue for  14 violation of the 1793 Act on two theories.  First, a  15 common law right of action for unlawful possession and  16 second, an implied statutory cause of action under the  17 Nonintercourse Act.  The Supreme Court in its judgment  18 did not deal with the second basis of liability, that  19 is the statutory basis of liability, finding that the  20 Indians' common law right was firmly established.  My  21 lord, in so finding and writing the decision of the  22 majority, Mr. Justice Powell provided the following  23 statement of the Court's view of Indian land rights as  24 a matter of Federal common law.  25  26 "By the time of the Revolutionary War, several  27 well-defined principles had been established  28 governing the nature of a tribe's interest in  29 its property and how those interests could be  30 conveyed.  It was accepted that Indian nations  31 held 'aboriginal title' to lands they had  32 inhabited from time immemorial.  The 'doctrine  33 of discovery' provided, however, that  34 discovering nations held fee title to these  35 lands, subject to the Indians' right of right  36 of occupancy and use.  As a consequence, no one  37 could purchase Indian land or otherwise  38 terminate aboriginal title without the consent  39 of the sovereign.  40  41 With the adoption of the Constitution, Indian  42 relations became the exclusive province of  43 federal law.  Oneida I (citing Worcester v.  44 Georgia)  From the first Indian claims  45 presented, this Court recognized the aboriginal  46 rights of the Indians to their lands.  The  47 Court spoke of the 'unquestioned' right of the 24471  Submissions by Mr. Jackson  1 Indians to the exclusive possession of their  2 lands, (Cherokee Nation v. Georgia) and stated  3 that the Indians' right of occupancy is 'as  4 sacred as the fee simple of the whites,'  5 (Mitchel v. United States).  This principle has  6 been reaffirmed consistently.  Thus, as we  7 concluded in Oneida I, 'the possessory right  8 claimed is a Federal right to the lands at  9 issue in this case.'.  10  11 Numerous decisions of this Court prior to  12 Oneida I recognized, at least implicitly, that  13 Indians have a Federal common-law right to sue  14 to enforce their aboriginal land rights.  In  15 Johnson v. Mcintosh, the Court declared invalid  16 two private purchases of Indian land that  17 occurred in 1773 and 1775 without the Crown's  18 consent.  Subsequently, in Marsh v. Brooks it  19 was held:  20  21 that an action of ejectment could be  22 maintained on an Indian right to occupancy  23 and use, is not open to question.  This is  24 a result of the decision in Johnson v.  25 Mcintosh.  26  27 More recently, the Court held that Indians have  28 a common-law right of action for an accounting  29 of 'all rents, issues and profits' against  30 trespasses on their lands.  Finally, the  31 Court's opinion in Oneida I implicitly assumed  32 that the Oneidas could bring a common-law  33 action to vindicate their aboriginal rights.  34 Citing United States v. Santa Fe, we noted that  35 the Indians' right of occupancy need not be  36 based on treaty, statute or other formal  37 government action.  We stated that 'absent  38 federal statutory guidance, the governing rule  39 of decision would be fashioned by the Federal  40 Court in the mode of the common law.'.  41  42 In keeping with these well-established  43 principles, we hold that the Oneidas can  44 maintain this action for violation of their  45 possessory rights based on Federal common law."  46  47 My lord, in Oneida I, the only reference made by the 24472  Submissions by Mr. Jackson  1 Court to Tee-Hit-Ton was in a footnote.  Much the same  2 way as my friends pointed out, the only reference made  3 to Worcester v. Georgia in Tee-Hit-Ton was to a  4 footnote.  And I should say a footnote which is not  5 terribly germane to any of the principles to  6 Worcester v. Georgia.  It is highly significant that  7 in Oneida II, in a judgment dealing with the Federal  8 common law of aboriginal title, no mention is made of  9 Mr. Justice Reed's judgment in Tee-Hit-Ton.  Instead,  10 the Supreme Court finds the roots of the common law to  11 be those established in the classic Marshall Court  12 decisions.  Moreover, in reiterating the passage from  13 the Santa Fe case on which the Court had relied in  14 Oneida I, the Supreme Court in Oneida II, as it were,  15 underlines its rejection that there is any validity in  16 the distinction asserted in Tee-Hit-Ton between  17 recognized and unrecognized title in relation to the  18 ability of an Indian Nation to vindicate their  19 aboriginal rights.  20 My lord, in at page 278.  In rejecting the two  21 Counties' argument of abatement - essentially that the  22 cause of action for violation of the 1793  23 Nonintercourse Act abated when the statute expired and  24 was replaced in 1796 with a new version - the Court  25 found that the pertinent provision of the 1793 Act and  26 all subsequent versions of the Nonintercourse Act  27 codified the restraint on alienation of Indian land to  28 anyone except the United States.  29 And it is our submission that this view of the  30 Nonintercourse Act, as a codification of common law  31 principles, conforms precisely to the position taken  32 by Mr. Justice Strong in St. Catherine's Milling and  33 Mr. Justice Hall in Calder that the Royal Proclamation  34 is a codification of common law principles.  And my  35 lord, as Mr. Rush has already submitted to you, the  36 American cases, not just the Oneida cases, but cases  37 of Mohegan Nation and Conneticut, which Mr. Rush  38 referred you, these cases on the application of the  39 Nonintercourse Act supports the plaintiffs' argument  40 that the Royal Proclamation should be given a  41 prospective geographical application, in light of the  42 mischief in which it was designed to remedy.  43 We will in fact be returning to the judgment in  44 Oneida II later in these submissions in relation to  45 the relevant principles or canons of construction  46 governing extinguishment of Indian rights.  This issue  47 arose in the Oneida litigation because the Counties 24473  Submissions by Mr. Jackson  1 contended that the United States had ratified the  2 unlawful 1795 conveyance and thus, in effect, had lent  3 federal imprimatur to the extinguishment of the Oneida  4 title.  In rejecting this argument, the Court stated,  5 is the passage we are coming back to:  6  7 "The canons of construction applicable in  8 Indian law are rooted in unique trust  9 relationship between the United States and the  10 Indians.  Thus, it is well established treaties  11 should be construed liberally in favour of the  12 Indians ... with ambiguous provisions  13 interpreted to their benefit ... The Court has  14 applied similar canons of construction in  15 nontreaty matters.  Most importantly, the Court  16 has held that Congressional intent to  17 extinguish Indian title must be 'plain and  18 unambiguous' and will not be 'lightly implied.'  19 Relying on the strong policy of the United  20 States 'from the beginning to respect the  21 Indian right of occupancy,' the Court concluded  22 that it 'certainly' would require 'plain and  23 unambiguous action to deprive the (Indians) of  24 the benefits of that policy.'.  25  26 In view of these principles, the treaties  27 relied upon by petitioners are not sufficient  28 to show that the United States ratified New  29 York's unlawful purchase of the Oneidas' land."  30  31 And as I say, my lord, we will be coming back to that  32 in terms of the argument of extinguishment.  33 My lord, in reaffirming that aboriginal title is a  34 legal right, not dependent on treaty, statute or other  35 formal government action, secondly, that aboriginal  36 title can be vindicated in a court of law, thirdly,  37 that the federal government had as a matter of federal  38 common law exclusive power to extinguish aboriginal  39 title, and fourthly, that there is a unique fiduciary  40 relationship between the United States and the  41 Indians, the majority judgment in Oneida II parallels  42 the judgment of Chief Justice Dickson in Guerin.  43 Guerin talked about fiduciary obligations as opposed  44 to trust obligations, but both of them characterized  45 it as unique or sui generis.  And we say, my lord,  46 that this parallelism should exist is not surprising  47 given that in both judgments the Courts traced the 24474  Submissions by Mr. Jackson  1 source of their findings to the Marshall Court  2 principles.  3 My lord, I would now turn to the second part of  4 our submissions on the Port-Marshall jurisprudence,  5 and this deals with the issue of what we have referred  6 to as aboriginal jurisdiction.  At page 280, we have  7 previously submitted that one of the fundamental  8 principles governing --  9 THE COURT:  Mr. Jackson, before you leave Oneida II, when  10 they -- when you summarized their findings about  11 federal number three, the federal government has  12 exclusive power to extinguish aboriginal title --  13 MR. JACKSON:  Yes, my lord.  14 THE COURT:  — did they deal with the question of with or  15 without consent?  16 MR. JACKSON:  No, my lord.  17 THE COURT:  With or without compensation?  18 MR. JACKSON:  No, my lord, they didn't.  In light of the fact  19 that of course in the -- in that case the question of  20 compensation was held to flow from the fact that the  21 Counties, given that they had never acquired any legal  22 title to the land, were in unlawful possession and  23 therefore the Court treated compensation as flowing  24 from a violation of unextinguished aboriginal title.  25 So by necessary implication, my lord, the Court found  26 a grantee of Indian lands to which title had not been  27 extinguished was in fact in trespass and in fact that  28 gave rise to compensation.  29 THE COURT:  Yes.  All right.  Thank you.  The County, of course,  30 never would have had power to extinguish.  31 MR. JACKSON:  No, my lord.  32 THE COURT:  All right.  Thank you.  33 MR. JACKSON:  As I said, my lord, at page 280 we have previously  34 submitted that one of the fundamental principles  35 governing the relationship between aboriginal peoples  36 and the Crown is the recognition of the jurisdiction  37 or power of self-government of Indian Nations and this  38 principle is reflected in the distinctive pattern of  39 treaty-making which we have given -- made extensive  40 submissions on.  41 It has been our further submission that this  42 principle ripened into a rule of the common law as  43 applicable to British colonies and that the concept of  44 Indian jurisdiction was recognized by the Marshall  45 Court in the clearest terms in Worcester v. Georgia.  46 The only limitations on Indian jurisdiction were those  47 that flowed from the doctrine of discovery, the first 24475  Submissions by Mr. Jackson  1 being that Indian Nations could not sell their land to  2 any authority other than the British Crown and  3 subsequently the United States and secondly, that they  4 could not enter into any intercourse with any other  5 nations.  Except for these limitations and subject -  6 and this is an important matter - subject to the terms  7 of specific treaties, Indian Nations could exercise  8 jurisdiction over their tribal members and in their  9 tribal territories.  And it was, of course, because  10 the Georgia Indian laws sought to assert jurisdiction  11 within Cherokee territory and over Cherokee tribal  12 members that the Supreme Court in Worcester v. Georgia  13 held those laws inconsistent with the laws, treaties  14 and Constitution of the United States.  15 Since Worcester, the concept of Indian  16 jurisdiction as articulated by Chief Justice Marshall  17 has been the subject of much litigation in the United  18 States, litigation which has taken place within the  19 structure of American federalism and the ebb and flow  20 of American Indian policy as we have described it.  21 The contemporary American jurisprudence of Indian  22 jurisdiction - which is referred, my lord, both in the  23 literature and the cases as 'inherent tribal  24 sovereignty' - is complex, confusing and often  25 contradictory.  Your lordship will be relieved to know  26 that it is not the plaintiffs' submission that this  27 body of law, developed in the crucible of American  28 constitutional and historical experience, should be  29 adopted pari passu by this Court as the legal  30 touchstone of the plaintiffs' claims to jurisdiction  31 over its territory.  32 The plaintiffs assert such jurisdiction as a  33 pre-existing common law right which is integrally  34 related to their ownership of their territory.  And,  35 my lord, we have sought in our summary of the  36 plaintiffs' evidence, to which my friends will be  37 referring you later this week and next week, to  38 demonstrate the nature of this integral relationship  39 between ownership and jurisdiction.  It is our  40 submission that this jurisdictional component of  41 aboriginal rights should be recognized by this Court  42 either as a pre-existing legal right parallelling the  43 pre-existing proprietary interest or, alternatively,  44 as an integral element of the sui generis nature of  45 aboriginal rights.  Conceptualizing jurisdiction and  46 ownership as constituent elements of a sui generis  47 aboriginal right corresponds more closely with the way 24476  Submissions by Mr. Jackson  1 in which the plaintiffs articulate, legitimate,  2 administer and transmit their rights, and we say  3 therefore, it most closely reflects the mode of  4 analysis set out in Amodu Tijani where the Privy  5 Council pointed to the need to engage in a 'study of  6 the history of the particular community and its  7 usages' in order to properly conceptualize the nature  8 of its title.  9 The American jurisprudence in dealing with the  10 concept of Indian jurisdiction has tended to view it  11 as parallelling Indian title to land although, my  12 lord, rarely are the two matters discussed in the  13 context of the same decision.  The references to the  14 American jurisprudence on the jurisdictional aspects  15 of aboriginal rights which follows, my lord, is  16 tendered not to provide this Court with the precise  17 contours of the plaintiffs' jurisdiction but to  18 demonstrate that Indian jurisdiction as a concept, as  19 a legal concept, is a pre-existing and continuing part  20 of the common law of aboriginal rights.  So, my lord,  21 we are not going to take you to American cases and say  22 this is what the Courts said the Navajos have by way  23 of jurisdiction, therefore we argue this is what the  24 Gitksan and Wet'suwet'en have.  This is what the Court  25 in another case said the Indians of Puget Sound have  26 in relation to jurisdiction, therefore pari passu this  27 is what the Canadian plaintiffs should have.  We are  28 making the statement, my lord, that the concept of  29 jurisdiction as a component of common law aboriginal  30 rights is a pre-existing right, it was recognized as  31 such by American Courts in the nineteenth century, not  32 as American law, but as part of the inheritance of  33 British colonial law and that it has been continued to  34 be refined and developed and that it is a concept  35 which this Court can adopt as part of the common law.  36 THE COURT:  Sometime no doubt you will give me some assistance  37 in how I carve that out of sections 91 and 92?  3 8    MR. JACKSON:  Yes, my lord.  3 9    THE COURT:  Thank you.  40 MR. JACKSON:  We have previously described, my lord - bottom  41 paragraph of page 282 - how some 50 years after Chief  42 Justice Marshall's judgment in Worcester v. Georgia  43 the U.S. Court in U.S. and Kagama following the  44 Congressional termination of treaty making,  45 reinterpreted the discovery doctrine to assert a  46 brought federal plenary power over Indian tribes.  47 Although since Kagama U.S. federal Indian policy has 24477  Submissions by Mr. Jackson  1 ebbed and flowed between termination and  2 self-determination, the plenary power of Congress has  3 remained very much in force.  What has changed,  4 however, is that the Supreme Court has significantly  5 modified its position on the justiciability of the  6 exercise of a Congressionally plenary power.  And we  7 previously recited how in Lone Wolf, in 1982, the  8 Court had ruled that 'the power of Congress has always  9 been deemed a political one, not subject to be  10 controlled by the judicial department.'.  11 And the reference there, my lord, should be to  12 these submissions page 231 instead of of 507.  13 THE COURT:  Instead of 507?  14 MR. JACKSON:  Yes, my lord.  It should be 231.  Thus, my lord,  15 to refer you to three such examples of the Court's  16 current position.  On page 283 I refer your lordship  17 to the Delaware Tribal Business Committee and Weeks  18 and to the United States and Sioux Nation and to  19 Oneida II itself where the Court has clearly stated  20 that issues of aboriginal rights, the question of  21 taking of aboriginal lands are matters which give rise  22 to justiciability and not are exclusively matters for  23 politicians and for Congress.  24 At page 284, my lord, I alert your lordship to the  25 fact that the principal area in which Indian  26 jurisdiction has been litigated has been in relation  27 to the assertion of State laws on Indian reservations  28 and the application of Indian jurisdiction to  29 non-Indians.  And it is important to understand the  30 context of this litigation because it is directly  31 related to developments in U.S. federal Indian policy.  32 As a result of the sale of "surplus" land during the  33 Allotment period from 1887 to the early 1930's, and  34 the sale of this land to non-Indian homesteaders, some  35 tribes now find themselves outnumbered within their  36 own reservation with non-Indian neighbours who have  37 taken up permanent residence.  And their numbers have  38 been augmented by white traders and in more recent  39 years by the holders of leases and licenses to develop  40 Indian lands and resources which the Tribes have  41 granted in order to build up capital and revenue to  42 finance tribal governments and social and economic  43 programs.  44 MR. PLANT:  I am not sure where the evidence is of this or  45 whether it's important that your lordship consider  46 these factual assertions as facts.  But there is no  47 reference given for that paragraph. 24478  Submissions by Mr. Jackson  1 THE COURT:  Do they appear in the judgments?  2 MR. JACKSON:  No, my lord.  Or they appear in some of the  3 judgments, but the principal references to that is an  4 article by Mason, which is in our book of authorities  5 which I can give my friends.  6 MR. PLANT:  I know the Mason, I have seen the reference in his  7 authorities.  8 MR. JACKSON:  And also, my lord, in a comment in the Harvard  9 Civil Rights and Civil Liberties Law Review, which I  10 set out at page 289, it's not a point of great moment,  11 but it explains, my lord, why so many of these cases  12 deal with the assertion of Indian jurisdiction over  13 non-Indians on reservations which would appear to be  14 rather paradoxical, particularly in a Canadian context  15 where in most cases very few non-Indians live on  16 Indian reserves.  In the United States, my lord, as I  17 say, because of this historical development in which  18 lands were sold off although remaining within the  19 general boundaries of a reservation you have these  20 sort of checkerboard arrangements in which Indian  21 people find themselves living alongside non-Indian  22 people.  23 THE COURT:  That's probably the situation as the Musqueam.  24 MR. JACKSON:  It's somewhat akin to the situation in urban  25 areas.  26 THE COURT:  I think their voting rights are kept separate.  27 MR. JACKSON:  Yes, my lord, and that checkerboard approach is  28 much more prevalent in the United States because of  29 the selling off of Indian lands to non-Indian people.  30 The cite to that, my lord, is in volume 15 of our book  31 of authorities.  32 THE COURT:  That's Mason?  33 MR. JACKSON:  Mason.  It's tab 22.  34 THE COURT:  Thank you.  35 MR. JACKSON:  My lord at page 284 we say that a review of some  36 of the leading cases on Indian jurisdiction reveals  37 the degree of continuity and change in the Marshall  38 Court's doctrine of tribal self-government.  In 1959,  39 in the decision of Williams v. Lee, a non-Indian who  40 was a licensed trader attempted to sue an Indian  41 customer in a State court to recover the purchase  42 price of goods sold to a customer on the Navajo  43 Reservation.  The Navajo Reservation, my lord, again  44 one has to realize that in contrast to the Musqueaum  45 Reserve, of which your lordship would be most  46 familiar, the Navajo Reservation straddles the States  47 of Nevada, New Mexico and Arizona.  And I believe has 24479  Submissions by Mr. Jackson  1 a territorial base larger than some of the Maritime  2 provinces.  It's an enormous reservation covering, you  3 know, many thousands of square miles.  The Supreme  4 Court in that case in an opinion written by Mr.  5 Justice Black held that the Navajo Tribal courts had  6 exclusive jurisdiction over the case.  And one of the  7 products of Indian jurisdiction in the United States  8 has been the development of a system of tribal courts.  9 In a passage which is much cited in later cases, Mr.  10 Justice Black stated:  11  12 "Despite bitter criticism -- "  13  14 THE COURT:  Does that quotation start with "Despite bitter  15 criticism and defiance -- "  16 MR. JACKSON:  Yes, my lord.  17 THE COURT:  Yes.  Thank you.  18 MR. JACKSON:  19  20 "Despite bitter criticism and the defiance of  21 Georgia which refused to obey this Court's  22 mandate in Worcester, the broad principles of  23 that decision came to be accepted as law.  Over  24 the years this Court has modified these  25 principles in cases where essential tribal  26 relations were not involved and where the  27 rights of Indians would not -- "  28  29 I think "would not be jeopardized"  30  31 "-- but the basic policy of Worcester has  32 remained."  33  34 Mr. Justice Black went on to hold to allow the State  35 court to exercise jurisdiction in derogation of the  36 tribal court's jurisdiction:  37  38 "... would undermine the authority of the  39 tribal courts over Reservation affairs and  40 hence would infringe on the right of the  41 Indians to govern themselves.  It is immaterial  42 that the respondent is not an Indian.  He was  43 on the Reservation and the transaction with an  44 Indian took place there... The cases in this  45 Court have consistently guarded the authority  46 of Indian governments over their Reservations."  47 24480  Submissions by Mr. Jackson  1 And again, my lord, these cases almost without  2 exception deal with Indian jurisdiction in relation to  3 reservations.  What your lordship should be aware of  4 is that in contrast to the position in British  5 Columbia and with the exception of Alaska prior to  6 1971 there are very few, if any, places left where  7 there is unextinguished aboriginal title.  The only  8 lands which are viewed as being the subject of Indian  9 rights in the United States are in relation to  10 reservations, because the process of treaty making and  11 the process of making claims where treaties weren't  12 made has in fact been completed through the Indian  13 claims commission process.  And of course, in the  14 Canadian context the treaty process has not been  15 completed in British Columbia and there has not been  16 any claims commission process paralleled in that of  17 the Indian claims commission.  18 Beginning in the 1970's the U.S. Supreme Court in  19 resolving disputes between states and tribes has  20 shifted its approach to what is referred to in the  21 American literature as the pre-emption analysis, which  22 bears no relationship to the pre-emption analysis  23 which your lordship will hear argument in relation to  24 British Columbia colonial law and policy  25 pre-confederation.  The shift can be traced and is  26 generally traced in the American jurisprudence to a  27 decision of the U.S. Supreme Court in 1973 in  28 McClanahan and the Arizona State Tax Commission.  In  29 McClanahan the Supreme Court unanimously held that the  30 State of Arizona could not impose an income tax on the  31 income of an Navajo on the reservation.  Mr. Justice  32 Thurgood Marshall, writing for the majority, instead  33 of simply ruling that the tax, imposed upon an Indian  34 in Indian country, interfered with the tribe's  35 self-government, he approached Indian jurisdiction in  36 a rather different way by pointing out that the  37 doctrine of tribal sovereignty had evolved since Chief  38 Justice John Marshall's day.  And the passage set out  39 at page 286, I think, my lord, faithfully and  40 accurately captures the shift in the Court's position.  41  42 "It would vastly oversimplify the problem to  43 say that nothing remains of the notion that  44 reservation Indians are a separate people from  45 State jurisdiction, and therefore State tax  46 legislation may not extend...  This is not to  47 say that the Indian sovereignty doctrine with 24481  Submissions by Mr. Jackson  1 its concomitant jurisdictional limit on the  2 reach of State law has remained static during  3 the 141 years since Worcester was decided.  Not  4 surprisingly, the doctrine has undergone  5 considerable evolution in response to changed  6 circumstances...  Notions of Indian sovereignty  7 have been adjusted to take account of the  8 States' legitimate interests in regulating the  9 affairs of non-Indians...  Finally, the trend  10 has been away from the idea of of inherent  11 Indian sovereignty as a bar to State  12 jurisdiction and toward reliance on federal  13 pre-emption...  The modern cases thus tend to  14 avoid reliance on platonic notions of Indian  15 sovereignty and to look instead to the  16 applicable treaties and statutes which define  17 the limits of State power...  The Indian  18 sovereignty doctrine is relevant, then, not  19 because it provides a definitive resolution of  20 the issues...  but because it provides a  21 backdrop against which the applicable treaties  22 and federal statutes must be read.  It must  23 always be remembered that the various Indian  24 tribes were once independent sovereign nations,  25 and their claim to sovereignty long predates  26 that of our own government."  27  28 My lord, using what is called this pre-emption  29 analysis which essentially involves balancing  30 competing tribal and State interests, the Court has  31 delivered a number of decisions which, because of the  32 different weight accorded these interests by different  33 majorities of the Court, can only be described and if  34 it has been described by scholarly writer's as  35 extremely fact-specific.  And the jurisprudence is  36 rather dizzying, my lord, when one gets into it.  I  37 have given several examples just by way of  38 illustration, my lord, in the case of California and  39 the Cabazon Band of Mission Indians, the Supreme Court  40 struck down an attempt by the State of California to  41 regulate tribal bingo and certain other gaming  42 enterprises that had been established to provide jobs  43 for Indians and to raise tribal funds for social  44 services.  And in so striking down the California law,  45 Mr. Justice White stated that the inquiry into whether  46 State authority was pre-empted by the operation of  47 federal law: 24482  Submissions by Mr. Jackson  1  2 "is to proceed in light of traditional notions  3 of Indian sovereignty and the congressional  4 goal of Indian self-government, including its  5 'overriding goal' of encouraging tribal  6 self-sufficiency and economic development."  7  8 And, my lord, in that case the Court referred to the  9 statement of President Reagan regarding tribal  10 self-government which I have set out previously in  11 these submissions at page 218.  12 THE COURT:  But did California seek to regulate bingo as an  13 enterprise or did it resort to its criminal law  14 jurisdiction?  15 MR. JACKSON:  As I recall that case, my lord, it was part of  16 an -- I suppose what we could call sort of strict  17 liability public welfare type regulatory statute which  18 required the filing with the State authorities of the  19 nature of the enterprise, getting certain permits from  20 the State, to conduct facilities.  It was that kind of  21 regulatory scheme, which in the course of which would  22 in fact impose certain kinds of penalties for  23 non-compliance with the statutes.  24 THE COURT:  Because I can see the same thing happening here if  25 the Province of British Columbia said we're going to  26 regulate gaming or gambling, I don't think it would  27 apply to a reserve or unless it was caught by Federal  28 criminal legislation.  29 MR. JACKSON:  That might well be the —  30 THE COURT:  I am not sure just where this gets me.  31 MR. JACKSON:  My lord, where this is intended to get you, as I  32 said, is not to the point where your lordship would be  33 applying the wording in the Cabazon case to Canada,  34 but that the notion, the concept of Indian  35 jurisdiction as a continuing part of the common law is  36 a continuing part of the common law in the United  37 States and our purpose in citing this case is in fact  38 to establish that proposition that while aboriginal  39 sovereignty, tribal sovereignty as it's defined in the  40 form of internal self-government, while it has changed  41 and evolved is in fact a continuing, a live concept in  42 the United States and therefore its incorporation or  43 its recognition as part of the common law subject to  44 your lordship's concern, appropriate concern regarding  45 section 91, section 92 is something your lordship can  46 affirm in Canada not as a borrowing from the United  47 States but rather as an affirmation of a principle 24483  Submissions by Mr. Jackson  1 which we say has always been part of the common law,  2 albeit hitherto unrecognized in any Canadian judgment.  3 And the purpose of citing these cases, my lord, and I  4 go on for a few more pages but not at very great  5 length, is to avoid any implication that we somehow  6 say well, this is what the law was in 1832, aboriginal  7 jurisdiction is there, just forget about everything  8 else that's happened in the 140, 160 years since then.  9 And I am trying to give your lordship the benefit of a  10 very compressed view of how aboriginal jurisdiction  11 has been developed in the United States, not as I say  12 that your lordship can borrow that and say that's what  13 exists as a matter of Canadian common law, but that  14 the concept exists and it will be the burden of the  15 plaintiffs, my lord, to describe for your lordship  16 what the sui generis nature of the plaintiffs'  17 jurisdiction looks like on the ground and it will be  18 the purpose of the plaintiffs to explain to your  19 lordship how your lordship can recognize that as part  20 of Canadian law within the context and contours of  21 Canadian Confederation.  My lord, at page 287, the  22 citation to Cabazon, California and Cabazon is 244 and  23 it should be at page 259, not 239.  2 4    THE COURT:  Thank you.  25 MR. JACKSON:  And by way of illustrating the facts specificity  26 of this case, my lord, there is a brief reference to a  27 case in which the Court held that a tribal tax on  28 cigarette sales to non-tribal members coming onto the  29 reservation for the purposes of raising tribal  30 revenues was in fact not immune from a parallel State  31 tax on the basis that that didn't interfere with  32 essential tribal relations.  So it is very difficult  33 to predict how the Court will rule.  It oftentimes  34 depends on whether or not the Court finds that there  35 are other means to raise tribal revenues through  36 natural resources and again the idea of these cases  37 being introduced is not to recommend to your lordship  38 that you adopt this complex and somewhat confusing  39 array of cases but that the concept has been well  40 worked in the United States.  One of the ways in which  41 the U.S. Supreme Court has modified the original  42 Worcester principles is particularly reflected in  43 tribal assertions of authority over non-Indians.  And  44 I refer your lordship at page 287 to the Oliphant  45 decision, a decision written by Mr. Justice Rehnquist  46 as he then was.  The issue is one which is close in  47 geography to us involved the Susquamish Tribal court 24484  Submissions by Mr. Jackson  1 and the small reservation of Port Madison in  2 Washington which sought to try two non-Indians under  3 its tribal code of offences with assaulting a tribal  4 officer, driving at high speed on the reservation and  5 damaging the tribal police vehicle.  And my lord,  6 there is a new page 288 which you should substitute.  7 It's necessitated by a problem in the citation.  8 THE COURT:  Thank you.  9 MR. JACKSON:  The Ninth Circuit Court of Appeals held the  10 jurisdiction of the tribal court to deal with these  11 matters, but the Supreme Court in majority judgment  12 ruled against the tribe's jurisdiction on the basis  13 that tribal criminal jurisdiction over a non-Indian  14 was lost upon the tribe's incorporation into the  15 United States.  Now, Mr. Justice Rehnquist  16 acknowledged that this limitation could not be found  17 in any specific treaties or congressional enactments  18 and in effect was a novel restriction on the original  19 jurisdiction of the tribe beyond the limitations  20 recognized in Worcester v. Georgia and he formulated  21 the new limitation in this way:  22  23 "But the tribes' retained powers are not such  24 that they are limited only by specific  25 restrictions in treaties or congressional  26 enactments... Indian tribes are prohibited from  27 exercising both those powers of autonomous  28 states that are expressly terminated by  29 Congress and those powers 'inconsistent with  30 their dependent status'"  31  32 And that phrase "inconsistent with their dependent  33 status" was a new limitation on tribal jurisdiction.  34 I point out the bottom of page 288 the Court cited no  35 authority for this third restriction beyond the two  36 original restrictions that they could not sell their  37 land to anybody but the United States and that they  38 could not have any dealing with anybody in the United  39 States.  And from the judgment of Mr. Justice  40 Rehnquist, what was of particular concern was the fact  41 that in this case tribal court criminal jurisdiction  42 was being exerted over non-Indians and that was felt  43 to be an unwarranted intrusion upon fundamental  44 principles of liberty.  45 My lord, my friend Mr. Rush has pointed out to me  46 despite my efforts to change the cite to make it  47 faithful to the original, the words in the middle of 24485  Submissions by Mr. Jackson  1 that quote "inconsistent with their dependent status"  2 should simply be "inconsistent with their status."  3 THE COURT:  All right.  4 MR. JACKSON:  Dependent status, these are left over from my  5 citation of Kagama, my lord, where that was the words  6 used there.  7 THE COURT:  All right.  8 MR. JACKSON:  Page 289, my lord, I note that in the same year as  9 the judgment in Oliphant the Supreme Court decided the  10 case of United States and Wheeler, and the issue in  11 Wheeler was whether a conviction in a Navajo tribal  12 court for a criminal prosecution barred a subsequent  13 prosecution in a federal court in respect to the same  14 incident.  It was a double jeopardy issue.  And to  15 dispose of that issue the Court had to determine  16 whether the Navajo tribe constituted a separate  17 sovereignty to the United States or merely exercised  18 powers delegated by the latter.  The Court held that  19 the Navajo tribe and the United States were separate  20 sovereigns for the purposes of the double jeopardy  21 argument and that the powers of the Navajos to punish  22 members of their tribe were attributes of their  23 residual internal jurisdiction and were not delegated  24 powers from the United States, although those powers  25 were subject to plenary federal authority.  And in  26 this important respect, my lord, the Supreme Court  27 seems to have revised its position in Kagama  28 consistent with the original Marshall position that  29 there was in the United States in fact a third order  30 of government.  You didn't simply have but the two  31 referred to in Kagama, the United States and the  32 separate States, you also had a third order of tribal  33 governments, albeit of a unique distinctive kind.  And  34 Mr. Justice Stewart, my lord, in describing the nature  35 of retained Indian jurisdiction, and I have set out  36 the quote at page 290.  It's a long quote:  37  38 "The powers of Indian tribes are, in general,  39 'inherent powers of a limited sovereignty  40 which has never been extinguished.'  Before the  41 coming of Europeans, the tribes were  42 self-governing, sovereign political  43 communities.  Like all sovereign bodies, they  44 then had the inherent power to prescribe laws  45 for their members and punish infractions of  46 those laws.  47 Indian tribes are, of course, no longer 24486  Submissions by Mr. Jackson  1 'possessed of the full attributes of  2 sovereignty.'  Their incorporation within the  3 territory of the United Statess, and their  4 acceptance of its protection, necessarily  5 divested them of some aspects of the  6 sovereignty of which they had previously  7 exercised.  By specific treaty provision they  8 yielded up other sovereign powers; by statute  9 in the exercise of its plenary control,  10 Congress has removed still others.  11 But our cases recognize that the Indian  12 tribes have not given up their full  13 sovereignty.  We have recently said: 'Indian  14 tribes are unique aggregations possessing  15 attributes of sovereignty over both their  16 members and their territory....'"  17  18 There is another passage, my lord, I wanted to refer  19 you to there.  The Court goes on to say, and your  20 lordship might want to insert this into your text:  21  22 "They are a good deal more than private  23 voluntary organizations."  24  25 And I have taken the liberty of inserting that, my  26 lord, because you hear from my friends as part of  27 their submissions that that is in fact the way you  28 should characterize the distinctive internal  29 governments of the plaintiffs, akin to a voluntary  30 organization which adopts certain rulings but those  31 rules do not betoken or bespeak anything which legally  32 could be referred to as an authority or a  33 jurisdiction.  And my lord, the quote goes on and I  34 will leave that to your lordship.  35 THE COURT:  Well, what do you say about the next paragraph?  36 "The sovereignty that the Indian tribes retain is of a  37 unique and limited character.  It exists only at the  38 sufferance of Congress".  39 MR. JACKSON:  Yes.  My lord, at page 291, I will read that to  40 your lordship:  41  42 "The sovereignty that Indian tribes retain is  43 of a unique and limited character.  It exists  44 only at the sufferance of Congress and is  45 subject to complete defeasance.  But until  46 Congress acts the tribes retain their existing  47 sovereign power.  In sum, Indian tribes still 24487  Submissions by Mr. Jackson  1 possess those aspects of sovereignty not  2 withdrawn by treaty or statute, or by  3 implication as a necessary result of their  4 dependent status."  5  6 I think that's where the dependent status crept in, my  7 lord.  And then there is a recitation of the nature of  8 the limitation.  9 And I say, my lord, at page 291 that the  10 description of Indian jurisdiction being "at  11 sufferance" is reminiscent of the way in which Mr.  12 Justice Reed described the nature of Indian title in  13 Tee-Hit-Ton.  And we say, my lord, that in the same  14 way as the Supreme Court in its subsequent decisions  15 in the Oneida litigation has returned to a position  16 more consistent with the original Marshall principles,  17 so the U.S. Supreme Court in cases subsequent to  18 Oliphant and Wheeler had been more protective of the  19 assertion of tribal civil jurisdiction over  20 non-Indians where that is related to the political  21 integrity or economic security of the tribe.  And I  22 refer your lordship to a subsequent decision in  23 Montana and the United States where the Court said,  24 after describing the nature of the limitations on  25 inherent tribal sovereignty as it's referred to:  26  27 "To be sure Indian tribes retain inherent  28 sovereign power to exercise some forms of civil  29 jurisdiction over non-Indians on their  30 reservations, even on non-Indian fee land.  A  31 tribe may regulate, through taxation,  32 licensing, or other means, the activities of  33 non-members who enter consensual relationships  34 with the tribe or its members, through  35 commercial dealing, contracts, leases or other  36 arrangements...  A tribe may also retain  37 inherent power to exercise civil authority  38 over the conduct of the non-Indians on fee  39 lands within its reservation when that conduct  40 threatens or has some direct effect on the  41 political integrity, the economic security, or  42 the health or welfare of the tribe."  43  44 And, my lord, I have set out on the facts of Montana  45 the Court found that the particular exercise in that  46 case did not so affect any of those matters.  And I  47 have set out some other cases where the Courts found 24488  Submissions by Mr. Jackson  1 that in fact tribal authority over non-Indians on  2 reservation lands did affect the important interests  3 of the tribe.  In a subsequent case of Kerr-McGee,  4 again involving the Navajo Nation, a non-Indian energy  5 company challenged the authority of the Navajo Tribe  6 to impose a severance tax in the absence of approval  7 by the Secretary of the Interior.  The Navajos had  8 never adopted an Indian Reorganization Act  9 constitution or any by-law which required the  10 Secretary's approval of tribal council actions.  The  11 significance of that, my lord, is that a number of --  12 a number in fact taken of the Indian tribes had in  13 fact adopted, as it were, as part of their  14 constitution tribal constitutions which built in a  15 requirement that in order to impose taxation, for  16 example, there had to be express permission or consent  17 of the Secretary of the Interior.  The Navajos had  18 never done that and therefore the decision was what  19 was their inherent rights to impose this tax.  The  20 Court, in upholding the tax, concluded that federal  21 approval of the tribal tax was not required by any  22 congressional enactment and characterized the tribe's  23 power to impose the taxes as one of the pre-existing  24 powers that were recognized in the enactment of the  25 Indian Reorganization Act itself.  In the course  26 of his judgment, Chief Justice Burger noted that the  27 federal government "is firmly committed to the goal of  28 promoting self-government" and that "the power to tax  29 members," that's tribal members, "and non-Indians  30 alike is surely an essential attribute of such  31 self-government."  And the cite should end at that  32 point, my lord.  Citing Profess -- President Reagan's  33 1983 statement on Indian policy, he also observed that  34 the Navajos "can gain independence from the federal  35 government only by financing their own police force,  36 schools and social programs."  37 And the last case to which I am going to refer  38 your lordship, my lord, was decided in the same year  39 as Kerr-McGee.  It's a very well-known case called  40 National Farmer's Union and the Crow Tribe of Indians  41 in Montana.  And it concerned the jurisdiction of the  42 the Crow Tribal Court over a suit filed in that court  43 by a tribal member seeking damages from a State school  44 district for injuries sustained on non-Indian lands  45 within the Crow Reservation.  This was a school built  46 on lands which had been alienated to the school  47 district.  It was within the reservation but it was -- 24489  Submissions by Mr. Jackson  1 the fee of the lands was not in the tribe.  The  2 Supreme Court upheld the jurisdiction of the tribal  3 court, declining to apply the Oliphant ruling to a  4 tribal court's civil jurisdiction over a non-Indian  5 defendant.  And in its judgment, the Court, while  6 acknowledging the plenary power of Congress to curtail  7 the retained inherent powers of Indian tribes, noted  8 that the principles the Courts had developed "provide  9 significant protection for the individual, territorial  10 and political rights of the Indian tribes."  11 On the particular issue of the extent of tribal  12 civil jurisdiction over non-Indians, the Court stated:  13  14 "Thus, we conclude that the answer to the  15 question whether a tribal court has the power  16 to exercise civil subject-matter  17 jurisdiction --  "  18  19 This was in relation to a tort matter.  20  21 "-- over non-Indians in a case of this kind is  22 not automatically foreclosed, as an extension  23 of Oliphant would require.  Rather, the  24 existence and extent of a tribal court's  25 jurisdiction will require a careful examination  26 of tribal sovereignty, the extent to which the  27 sovereignty has been altered, divested, or  28 diminished, as well as a detailed study of the  29 relevant statutes, Executive Branch policy as  30 embodied in treaties and elsewhere, and  31 administrative or judicial decisions.  32  33 We believe that examination should be conducted  34 in the first instance in the Tribal Court  35 itself.  Our cases have often recognized that  36 Congress is committed to a policy of supporting  37 tribal self-determination.  That policy favors  38 a rule that will provide the forum whose  39 jurisdiction is being challenged the first  40 opportunity to evaluate the factual and legal  41 bases for the challenge.  Moreover, the orderly  42 administration of justice in the federal court  43 will be served by allowing a full record to be  44 developed in the Tribal Court before either the  45 merits or any question concerning appropriate  46 relief is addressed.  The risks of the kind of  47 'procedural nightmare' that has allegedly 24490  Submissions by Mr. Jackson  1 developed in this case will be minimized if the  2 federal court stays its hand until after the  3 Tribal Court has had a full opportunity to  4 determine its own jurisdiction and to rectify  5 any errors it may have made.  Exhaustion of  6 tribal court remedies, moreover, will encourage  7 tribal courts to explain to the parties the  8 precise basis for accepting jurisdiction, and  9 will also provide other courts with the benefit  10 of their expertise in such matters in the event  11 of further judicial review."  12  13 My lord, the final point in making this section, my  14 lord, is by way of what I suppose is a personal  15 comment and it's in the context of a remarkable  16 seminar which was held late last year, my lord, at the  17 University of Manitoba law school in which the  18 Aboriginal Justice Inquiry in Manitoba under the  19 chairmanship of Mr. Justice Hamilton and Judge  20 Sinclair had a number of tribal court judges,  21 including the judge who entered actually a  22 multi-million dollar award as a result of the Court's  23 upholding the jurisdiction in National Farmer's Union,  24 who explained to an audience of distinct Canadian  25 judges and lawyers the way in which original tribal  26 jurisdiction in the United States, was very much an  27 alive part of the law of aboriginal rights.  And not  28 something which is based upon platonic ideas of tribal  29 sovereignty, but is in fact a living part of the law  30 which has evolved, has developed, but remains  31 something which is reflective of and responsive to the  32 original conception of aboriginal jurisdiction as  33 espoused in Worcester v. Georgia.  34 That is the end of that section, my lord, and what  35 I was going to turn to at this point is the elements  36 of proof of aboriginal rights.  And I am in your  37 lordship's hands in terms of the time.  One of the, as  38 I see the alternatives, my lord, is we could come back  39 this evening for awhile or we could start very early  4 0 tomorrow morning.  And I don't know what is preferable  41 to your lordship or what would be more convenient to  42 Madam Reporter and her colleagues.  43 THE COURT:  Well, I don't think we have a problem with the  44 reporters, because we have the extra reporter and in  45 view of what Mr. Rush said this morning I rather think  46 we should do both.  I think we should come back, say,  47 at 7 o'clock and go for an hour and a half or two 24491  Submissions by Mr. Jackson  1 hours.  2 MR. JACKSON:  That's acceptable to me, my lord.  3 THE COURT:  Anyone say nay?  All right.  And then what — do  4 counsel want to fix a time to start in the morning now  5 or do you want to leave it until later?  6 MR. JACKSON:  I would prefer to leave it to later to see how far  7 I get.  8 THE COURT:  All right.  Is 7 o'clock satisfactory?  All right.  9  10 (PROCEEDINGS ADJOURNED PURSUANT TO THE EVENING DINNER  11 RECESS)  12  13 I hereby certify the foregoing to be an  14 extract of the proceedings herein to the  15 best of my skill and ability.  16  17  18 Laara Yardley, Official Reporter,  19 United Reporting Service Ltd.  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 24492  Submissions by Mr. Jackson  1 (PROCEEDINGS RESUMED AT 7:00)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  I have spoken with the reporters, and my suggestion  5 is that we sit this evening in three segments of about  6 40 minutes each so that we change reporters every 40  7 minutes.  If that's convenient or -- and if we can't  8 use up all that time, that won't be the worst thing in  9 the world.  I would also like to suggest, to bring  10 some certainty to light, that perhaps we start at 9:30  11 in the morning and go say until 5:30 or 6:00 and then  12 perhaps not sit tomorrow evening, because I don't  13 think you can sit every evening, and then we sit again  14 on Thursday evening, and then maybe until 5:00 or so  15 on Friday.  Now, that's tentative, and I would be glad  16 to hear counsel if they want to deviate from that in  17 any way.  18 MR. JACKSON:  My lord, what I intended to do tonight was to try  19 and aim for a certain point in my materials, and if I  20 can reach that point prior to the expiry of that time  21 I'll advise your lordship.  22 THE COURT:  Yes, sure.  The times I have stated will be  2 3 maximums.  24 MR. JACKSON:  My lord, the next section of the argument which  25 has been handed to you is a section which deals with  26 the elements of proof of aboriginal rights, which  27 might be generically referred to as the Baker Lake  28 section, and in the book -- our book of materials at  29 volume 5 at tab 29 we have a version of a Baker Lake  30 in one with many reported versions, and the one I've  31 given your lordship is the one reported in the Western  32 Weekly Reports, which is the one to which we have  33 referenced the text.  34 THE COURT:  All right.  35 MR. JACKSON:  And if that could be inserted in your book of  36 materials.  37 THE COURT:  Where are you suggesting that I should  38 conveniently --  39 MR. JACKSON:  That, my lord, should be substitued for what is  4 0 now tab 2 9 of volume 5.  41 THE COURT:  Oh, all right, that's all right.  What is it again?  42 MR. JACKSON:  Volume 5, tab 29.  And you will be substituting  43 the Western Weekly Law Reports for --  44 THE COURT:  Shall I keep this handy?  45 MR. JACKSON:  It might be useful for your lordship.  As usual, I  46 have put in all the quotations in the body of the  47 text. 24493  Submissions by Mr. Jackson  1 THE COURT:  All right, thank you.  2 MR. JACKSON:  My lord, the leading Canadian authority on the  3 elements which the plaintiff must prove to establish  4 an aboriginal title cognizable at common law is  5 Hamlet of Baker Lake v. The Minister of Indian  6 Affairs affairs and Northern Development, in which  7 case the Inuit of Baker Lake sought a declaration that  8 the lands comprising their traditional territory were,  9 in the terms of the statement of claim, "subject to  10 the aboriginal right and title of the Inuit residing  11 in or near that area to hunt and fish thereon."  In  12 the course of his judgment, my lord, Mr. Justice  13 Mahoney sets out four elements of proof.  My lord, as  14 your lordship is aware, the so-called Baker Lake tests  15 were the subject of recent comment by our Court of  16 Appeal in Pasco and Canadian National Railway on an  17 interlocutory matter relating to whether the  18 plaintiffs could amend their statement of claim to  19 change the manner in which the plaintiffs were  20 described and the manner in which their representative  21 action was being maintained.  In the course of its  22 judgment in the Court of Appeal, the court there  23 referred to Baker Lake and the various elements of  24 proof with approval.  My lord, on a subsequent appeal  25 to the Supreme Court of Canada, the appeal of the  26 respondent railway company was dismissed on the basis  27 that the pleadings should have been allowed to be  28 amended, and there was an application made by the  29 Indian plaintiffs for a rehearing to determine certain  30 matters which were left unclear.  The Supreme Court  31 recently denied rehearing, and in the course of so  32 doing, and I have a copy of that judgment, my lord.  33 THE COURT:  I have it here.  34 MR. JACKSON:  Your lordship will see on page 2 that the Supreme  35 Court made the point that the only issue before the  36 courts on this appeal was whether the amendments to  37 the pleadings ought to be allowed, and the court ruled  38 that they ought to have been allowed and that any  39 other comments made by the Court of Appeal in relation  40 to the appropriate tests for aboriginal title,  41 particularly the issue of whether the plaintiffs had  42 to establish that they were members of a nation which  43 existed as at the time of the inception of the cause  44 in addition to the time of the assertion of  45 sovereignty, those considerations were all obiter and  46 ought not to be pronounced upon at such an early  47 interlocutory stage. 24494  Submissions by Mr. Jackson  1 My lord, our position in relation to Pasco and the  2 decision of the Court of Appeal is that the references  3 by the court to Baker Lake do not in any way preclude  4 your lordship from reviewing the Baker Lake tests in  5 order to determine whether or not they are consistent  6 with a purposive analysis of aboriginal rights.  And  7 we say, my lord, at page 297 that, at the bottom of  8 the page, it is our submission that certain elements  9 of the Baker Lake tests to certainly appear to adopt a  10 "frozen rights" approach to aboriginal rights are to  11 that extent inconsistent with such a purposive  12 analysis and ought not to be adopted by this court.  13 And as we go through the test, my lord, we will  14 identify particular points of which we say Mr. Justice  15 Mahoney's approach, as it has been interpreted, may be  16 so inconsistent.  Our position is not that your  17 lordship should start afresh, but in looking at Baker  18 Lake, you should do so with a view to consider whether  19 the tests as stated are complete or whether or not  20 they require some modification in light of what we say  21 as a purposive analysis.  22 The four elements of the tests, my lord, are set  23 out at page 298 as they appear in Mr. Justice  24 Mahoney's judgment.  The authority relied upon by Mr.  25 Justice Mahoney for those four elements in a  2 6 compendious way at the beginning of his judgment are  27 the decisions in Kruger and Manuel, the two Marshall  28 cases of Johnson and Mcintosh and Worcester and  29 Georgia and the Santa Fe Case.  Later in his judgment  30 his lordship makes reference to the use of American  31 authorities, and he states, my lord, and I've cited  32 this at the bottom of page 298:  33  34 "The value of early American decisions to a  35 determination of the common law of Canada as it  36 pertains to aboriginal rights is so well  37 established in Canadian courts, at all levels, as  38 not now to require rationalization.  With respect,  39 the American decisions seem considerably more  40 apposite than those Privy Council authorities  41 which deal with aboriginal societies in Africa and  42 Asia at the upper end of the scale suggested in  43 Re Southern Rhodesia.  Americans decisions as to  44 the existence of aboriginal title rendered since  45 creation of the Indian Claims Commission... must  46 be approached with considerable caution.  The  47 Commission, whose decisions are the subject of 24495  Submissions by Mr. Jackson  1 most recent American jurisprudence, is authorized,  2 inter alia, to determine "claims based upon fair  3 and honourable dealings that are not recognized  4 by any rule of law or equity, a jurisdiction well  5 beyond any that Parliament has yet delegated to  6 any Canadian tribunal."  7  8 Thereafter, Mr. Justice Mahoney does not refer to any  9 of the decisions rendered by the Indian Claims  10 Commission or the Court of Claims on appeal from the  11 Commission.  And since this body of jurisprudence  12 constitutes the most developed case law on the  13 question of proof of aboriginal title and in several  14 important respects rejects Mr. Justice Mahoney's  15 formulation of the tests, we say that it is necessary  16 to consider whether his lordship's dismissive remarks  17 are well-founded.  And it is our submission that  18 although this body of jurisprudence must indeed be  19 assessed in light of the particular jurisdiction of  20 the Commission and the nature of the claims presented  21 to it, the legal analysis contained in this body of  22 case law is of relevance to any Canadian formulation  23 of the tests for proof of aboriginal title and, with  24 respect, Mr. Justice Mahoney's blanket dismissal is  25 not well-founded.  26 THE COURT:  You mean his blanket dismissal of the American  27 recent jurisprudence?  28 MR. JACKSON:  Of the Indian Claims Commission jurisprudence, my  29 lord, yes.  In referring to the Claims Commission  30 jurisdiction, Mr. Justice Mahoney refers to one of the  31 five categories of claims which are within the Claims  32 Commission jurisdiction.  And I've set out at page 300  33 section 2 of the Indian Claims Commission Act of 1946,  34 which has four -- five categories on jurisdiction.  35 And you will see, my lord, that it's the fifth one to  36 which Mr. Justice Mahoney made reference:  37  38 "Claims based upon fair and honourable dealings  39 that are not recognized by any existing rule  40 of law or equity."  41  42 And if your lordship looks at paragraph 4, you will  43 see that it confers jurisdiction on the Commission  44 for:  45  46 "Claims arising from the taking by the United  47 States, whether as the result of a treaty or 24496  Submissions by Mr. Jackson  1 cession or otherwise, of lands owned or occupied  2 by the claimant without the payment of such lands  3 or compensation agreed to by the claimant."  4  5 And if your lordship looks at claims 1, 2, and 3, they  6 are also claims in the nature of claims arising in law  7 or equity, claims which would result where the  8 treaties were revised on the grounds of fraud, duress,  9 unconscionable consideration.  Claims, in other words,  10 which sound illegal, inequitable remedies.  And it is  11 our submission that the jurisprudence which hinges  12 upon these other sections is one to which this court  13 can advert and look at with a view to taking some  14 guidance.  15 And we say, my lord, at the bottom of page 300,  16 that the Court of Claims has taken the view that this  17 fourth head of claim, and I should say also claims 1,  18 2, and 3, that it confers on the Commission  19 jurisdiction to entertain pre-1946 claims based upon  20 aboriginal title as well as recognized title.  As we  21 have seen, my lord, that was a distinction drawn by  22 the court in Tee-Hit-Ton, a distinction which has  23 subsequently been rejected by the Supreme Court in its  24 most recent decisions in the Oneida litigation, but  25 the court has very clearly stated that the Indian  26 Claims jurisdiction is not limited to recognize title,  27 but paragraph 4 in conferring claims arising out of  28 the taking of lands owned or occupied includes lands  29 owned or occupied by what the Americans call original  30 Indian title.  That is title which has not been  31 confirmed by statute or a treaty or in some other act  32 of the executive.  33 The effect, therefore, we say, of paragraph 4 of  34 the Indian Claims Commission Act is to provide an  35 avenue for recovery of monetary compensation for the  36 pre-1946 taking of both recognized and unrecognized  37 aboriginal title, and in claims based upon paragraph  38 4, the commission has developed legal criteria for  39 establishing aboriginal title, and the Court of Claims  40 and the Supreme Court in reviewing the Commission's  41 decisions, have developed a body of jurisprudence in  42 which the Marshall cases are regularly cited, and we  43 say that this body of jurisprudence is entitled to  44 consideration in any Canadian determination of the  45 appropriate tests for proving aboriginal title.  The  46 fact that under paragraph 5 the Commission has a  47 broader jurisdiction to hear claims that are not 24497  Submissions by Mr. Jackson  1 recognized by any existing rule of law or equity is,  2 we say, no basis to reject the relevance of its  3 decisions under other paragraphs which are based upon  4 legal and equitable basis.  5 But we also say, my lord, that we are not asking  6 this court to slavishly follow the Claims Commission  7 jurisprudence, only to the extent that it throws light  8 on the purposes of analysis those decisions may  9 contribute to a principled Canadian jurisprudence.  It  10 is also important, and in this respect we agree with  11 Mr. Justice Mahoney, that in considering the Claims  12 Commission decisions, and I think this is a point  13 which from perusing my friend's arguments they would  14 agree with me, that it is important to realize that  15 the Claims Commission jurisprudence is based upon a  16 particular jurisdiction under which the Claims  17 Commission is limited in the relief it can provide.  18 And the only relief it can provide is the awarding of  19 monetary compensation.  The claims, in other words,  20 sound exclusively in damages.  It cannot make rulings  21 or declarations as to the continued existence of  22 rights, and that means that in certain areas,  23 particularly in relation to how the Commission  24 approaches the issue of extinguishment these decisions  25 have to be treated cautiously, having regard to a  26 purpose of analysis.  And the reason for that, my  27 lord, is that in any case coming before the Commission  28 the parties have to be ad idem on one point, often  29 it's the only point at which they are at ad idem, and  30 that is that there has been extinguishment, because if  31 there hasn't been an extinguishment then you have no  32 remedy for a taking without proper consideration, and  33 often times on the cases where the court is  34 determining has there been extinguishment, the issue  35 is not so much that has there been, the question often  36 times is when did it happen, and you usually find that  37 the Indian plaintiffs are arguing for one date and the  38 defendants are arguing for another date, principally  39 by reference to which will be the largest or lowest  40 monetary compensation resorting from the relevant  41 date, but many of the cases that is not an issue, and  42 the court has, in determining the issue before it, has  43 looked at other issues other than the question of  44 extinguishment.  So bearing in mind that it is a  45 distinctive jurisdiction and that it has its  46 limitations for Canadian purposes, it is nevertheless  47 one which is relevant to your lordship. 2449?  Submissions by Mr. Jackson  1 So with that preliminary point firmly in mind, I  2 want to look at the four elements of the Baker Lake  3 tests.  4 THE COURT:  Before you do that, Mr. Jackson, I've been troubled  5 by this for some time.  You keep talking about the  6 purposive analysis.  What is it that you say is to be  7 examined purposively?  I thought that when Chief  8 Justice Dixon used that happy phrase which has just  9 suddenly been -- has gained great currency, that he  10 was talking about the Charter, and to give the Charter  11 a purpose of analysis and a purposive operation in  12 application, but what is it you say should be examined  13 or analysed or applied in that special new particular  14 way.  15 MR. JACKSON:  My lord, what we say is the relevance of Chief  16 Justice Dixon's purposive analysis is that in looking  17 at the nature of aboriginal rights and in the -- and  18 the content of aboriginal rights, this court should  19 have regard to the reasons which gave rise to their  20 recognition, the ways in which that recognition is  21 designed to sustain and nourish the continued  22 existence of aboriginal nations.  23 THE COURT:  What is the source of the -- or the basis for saying  24 that they should be given a purposive analysis or  25 application?  2 6 MR. JACKSON:  My lord —  27 THE COURT:  We have lots of things, like with — we had the law  28 of libel and we had the law of various forms of action  29 which have now been discarded.  They weren't given a  30 purposive analysis significance.  Or do you say they  31 were; when they were found to have no purpose they  32 were discarded?  33 MR. JACKSON:  We say, my lord, in light of the fact that  34 aboriginal rights have been given constitutional  35 entrenchment, that this court -- that's a position  36 which the Court of Appeal in Sparrow(?) has also  37 affirmed in relation to aboriginal rights, that the  38 broad approach taken in relation to Charter rights as  39 rights are viewed of now having an integral entrenched  40 place in the Canadian Constitution, that approach is  41 no less appropriate in looking at rights entrenched in  42 Section 35, and --  43 THE COURT:  Isn't that a bootstraps argument?  44 MR. JACKSON:  In what way, my lord?  45 THE COURT:  Well, you're saying -- you're saying that because  46 they're entrenched in the Charter they should be given  47 a purposive analysis, but don't they have to be 24499  Submissions by Mr. Jackson  1 satisfied they exist before they are protected by the  2 Charter and therefore entitled to the purposive  3 analysis?  4 MR. JACKSON:  Well, certainly, my lord, the purposive analysis  5 is predicated in relation to other rights on the fact  6 of their existence by a reference to the fact that  7 they are affirmed in the Charter in the same way.  8 THE COURT:  They're not affirmed in the Charter, they're  9 preserved.  10 MR. JACKSON:  In the -- they're preserved, my lord, in the same  11 way --  12 THE COURT:  To the extent they exist they're preserved, or there  13 will be another argument, but that's one view of  14 Section 35.  15 MR. JACKSON:  Well, they're affirmed and recognized, my lord.  16 We're not saying that Section 35 brings into existence  17 that which has been extinguished or that which no  18 longer exists, but what we are saying is that in  19 looking at the nature of aboriginal title, in looking  20 at the test, for example, of extinguishment, in  21 looking at what is comprised in aboriginal title by  22 way of substantive content, your lordship should  23 approach aboriginal rights in the same way as the  24 courts have said we should look at other fundamental  25 rights in terms of looking at the historical origins,  26 the purposes for which they were designed to serve,  27 and their place in the overall legal system.  In that  28 sense, we say that aboriginal rights should be given  29 the same ruled approach which befits their status as  30 what we say the reflection of fundamental principles  31 of the common law, quite apart from the fact that they  32 are affirmed in Section 35.  33 THE COURT:  I would never have even been troubled by this except  34 for your attack on Mr. Justice Mahoney's treatment of  35 the claims process, and I -- what I've been troubled  36 by is it seems to me that perhaps what he was saying  37 is that that legislation should be given a purposive  38 analysis in construction, which isn't available here,  39 because one of the purposes was claims based upon fair  40 and honourable dealing, and there's a whole code here  41 set up to deal with the Court of -- I think it's  42 called the Court of Claims, is it?  43 MR. JACKSON:  Yes.  Indian Claims Commission is the first body.  44 THE COURT:  Yes.  And there's a code or a process that deal with  45 those and apply in Canadian law to that, we would say  46 that code should be given a purposive analysis.  47 MR. JACKSON:  In that regard, my lord, I'm at ad idem with Mr. 24500  Submissions by Mr. Jackson  1 Justice Mahoney to the extent what he was saying is  2 that you have to look at the Indian Claims Commission  3 Act with a view to the purposes and to the extent that  4 one of the sections was to confer on the court a  5 jurisdiction to recognize and compensate for claims  6 which are not compensible on any basis which exists  7 under current common law.  To that extent, Mr. Justice  8 Mahoney was on eminently sound ground, because to  9 apply tests for that kind of inquiry to an inquiry in  10 Canada where the rights we say have to be trenched in  11 common law, would in fact be applying American cases  12 to a situation quite different.  Our position is that  13 to the extent that these other heads of jurisdiction  14 are entirely analogous in terms of the court's initial  15 inquiry as to was there aboriginal title which is  16 subject to a remedy.  That particular part of the  17 purpose of the inquiry, we say, is one which is as  18 applicable in a Canadian context.  19 THE COURT:  What I'm really coming to is to make sure that I  20 understand it's the aboriginal rights that you say  21 should be given the purposive analysis and not Section  22 35 of the Charter, or do you say both?  23 MR. JACKSON:  We say both, my lord.  24 THE COURT:  So you get a double purposive approach to aboriginal  25 rights?  26 MR. JACKSON:  What we say, my lord, is to the extent that  27 aboriginal rights are a reflection of fundamental  28 purposes or a reflection of fundamental principles,  29 that they speak the same kind of critical inquiry as  30 would the appropriate four rights entrenched in the  31 Constitution by virtue of the fact they are  32 fundamental principles.  33 THE COURT:  You don't think the purposes of aboriginal rights  34 change over 150 years?  35 MR. JACKSON:  We say, my lord, that the essential purposes  36 remain the same, although they have been reinterpreted  37 at various points.  38 THE COURT:  That's why I have trouble with it.  I have no  39 trouble applying purposive analysis to a Charter or a  40 Statute, Legislation, but when you come to the  41 purposive approach to aboriginal rights, then I -- my  42 first thought is that they -- the purpose should  43 always be the same, and the next question is are they  44 always the same.  4 5 MR. JACKSON:  I think —  46 THE COURT:  I'm -- you're leading me into a tortuous approach to  47 this that I'm not sure -- 24501  Submissions by Mr. Jackson  1 MR. JACKSON:  I think your lordship may be assuming a much  2 larger critical attack on Justice Mahoney than what in  3 fact --  4 THE COURT:  Pat's a dear old friend of mine, but that doesn't  5 matter at this stage.  He was president of the Calgary  6 Stampeders, I was president of the Lions.  We've had  7 our fights in the past.  8 MR. JACKSON:  You will see, my lord, that the point where this  9 becomes an issue is to the extent that some  10 interpretations of Mr. Justice Mahoney's decision have  11 suggested that you look at aboriginal rights at the  12 point of assertion of soveriegnty.  At that point you  13 say what kinds of rights existed, and you, as it were,  14 say "Well, what were you doing, were you hunting and  15 fishing"?  Well then, those are the extent of the  16 rights which you can have as a matter of aboriginal  17 rights".  And we say, my lord, in relation to a  18 purposive analysis, that given that aboriginal rights  19 we say were recognized to ensure the continuation of  20 Indian nations, and to permit them being economically  21 self-sufficient to participate in the life of the  22 community as indigenous people with distinct societies  23 to freeze their economic modes of existence, as it  24 were, in some kind of capsule as of the date of the  25 assertion of sovereignty and to say that's all you can  2 6 do with the lands.  To the extent that you have  27 changed your practises, then you have, and this is the  28 Federal Government's position, abandon those rights,  29 because you are no longer using the land in the same  30 way, we say that is inconsistent with the purposive  31 analysis.  And that really is the main point.  32 There's another issue which comes up, my lord,  33 which again relates to this question of the assertion  34 of sovereignty as being the critical element and the  35 critical time point, and the issue is if after the  36 assertion of sovereignty Indian -- an Indian claimant,  37 an Indian plaintiff acquires land from another Indian  38 nation through either a peace settlement or through  39 hostilities, that land has been acquired after the  40 assertion of sovereignty.  On one reading of Baker  41 Lake, that subsequent land acquired after what may be  42 a hypothetical, so far as they're concerned, assertion  43 of sovereignty, through assigning of a peace treaty  44 between England and Spain or whatever, we say that to  45 freeze the land holdings as of the day of the  46 assertion of sovereignty is also inconsistent with the  47 purposive analysis, for reasons which I'll explain. 24502  Submissions by Mr. Jackson  1 That's the level, my lord, of which we say that  2 certain elements of the Baker Lake tests are  3 inconsistent with the purposive analysis in terms of  4 what we say are the purposes which the recognition of  5 aboriginal rights is designed to serve and the reasons  6 why it has been recognized by common law.  7 THE COURT:  Well, it may be that when you have finished dealing  8 with the four or five categories that Mr. Justice  9 Mahoney talked about, I will have a better grasp than  10 I now have of how you apply a purposive approach to a  11 right which is said over and over again has existed  12 from time immemorial, and I would be grateful for your  13 assistance on that.  14 MR. JACKSON:  There is a section of this material on which I  15 focus very specifically on that, and at the end of  16 that, my lord, you're still in doubt, my submission  17 will have failed.  18 THE COURT:  You'll have done your best.  19 MR. JACKSON:  The first element of the four-part test, my lord,  20 is what may be referred to as the Organized Society  21 element.  As expressed by Mr. Justice Mahoney, the  22 requirement that the plaintiffs and their ancestors  23 were members of an organized society.  And his  24 lordship derives this requirement from passages in Mr.  25 Justice Judson's judgment in Calder and Chief Justice  26 Marshall's judgment in Worcester and Georgia.  Both of  27 these passages have been cited on more than one  28 occasion, but because they are the critical link, I've  29 set them out again at page 303.  The particular  30 passage from Worcester and Georgia, your lordship will  31 find that at page 225 of Mr. Justice Mahoney's  32 judgment, and it is this passage:  33  34 "America, separated from Europe by a wide ocean,  35 was inhabited by a distinct people, divided into  36 separate nations, independent of each other and  37 of the rest of the world, having institutions of  38 their own and governing themselves by their own  39 laws."  40  41 And as I note there, my lord, that the underlining  42 which appears in Mr. Justice Maloney's judgment, he  43 himself notes, is the underlining which in turn was  44 made by Mr. Justice Hall in Calder.  The parallel  45 statement from Mr. Justice Judson's judgment in Calder  46 is also set out on page 303:  47 24503  Submissions by Mr. Jackson  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  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  "Although I think that it is clear that  Indian title in British Columbia cannot owe  its origin to the Proclamation of 1763, the  fact is that when the settlers came, the  Indians were there, organized in societies  and occupying the land as their forefathers  had done for centuries.  This is what  Indian title means and it does not help in  the solution of this problem to call it a  personal or usufructuary right.  What they  are asserting in this action is that they  had a right to continue to live on their  lands as their forefathers had done and  that this right has never been lawfully  extinguished."  My lord, you will find that passage in Mr. Justice  Mahoney's judgment at page 224.  In articulating the  rationale for this part of the test, that the  plaintiffs and their ancestors were members of an  organized society, Mr. Justice Mahoney refers  specifically to the passage in Re Southern Rhodesia,  which we have already set out, but again it bears  repetition what the Privy Council said:  "Some tribes are so low in the scale of social  organization that their usages and conceptions  of rights and duties are not to be reconciled  with the institutions or the legal ideas of  civilized society.... On the other hand, there  are indigenous peoples whose legal conceptions,  though differently developed, are hardly less  precise than their own."  THE COURT:  "Than our own".  MR. JACKSON:  "Than our own", yes.  And that is set out in  previous submissions, my lord, at page 189.  And the  reference in Baker Lake is at page 226.  Applying this test of organized society, Mr.  Justice Mahoney found that the Baker Lake Inuit met  the test, and his views are expressed in the following  passages:  It is apparent that the relative sophistication  of the organization of any society will be a  function of the needs of its members - the  demands they make of it.  While the existence 24504  Submissions by Mr. Jackson  1 of an organized society is a prerequisite to  2 the existence of an aboriginal title, there  3 appears no valid reason to demand proof of the  4 existence of a society more elaborately  5 structured than is necessary to demonstrate  6 that there existed among the aborigines a  7 recognition of the claimed rights, sufficiently  8 defined to permit their recognition by the  9 common law upon its advent in the territory.  10 The thrust of all the authorities is not that  11 the common law necessarily deprives aborigines  12 of their enjoyment of the land in any  13 particular but, rather, that it can give effect  14 only to those incidents of that enjoyment that  15 were, themselves, given effect, by the regime  16 that prevailed before."  17  18 And the authority for that is the Omodu Tijani case:  19  20 "The fact is that the aboriginal Inuit have an  21 organized society.  It was not a society with  22 very elaborate institutions, but it was a  23 society organized to exploit the resources  24 available on the barrens and essential to  25 sustain human life there.  That was about all  26 they could do:  Hunt and fish and survive.  The  27 aboriginal title asserted here encompasses only  28 the right to hunt and fish as their ancestors  2 9 did.  30 The organized society of the Caribou Eskimos,  31 such as it was, and it was sufficient to serve  32 them, did not change significantly from well  33 before England's assertion of sovereignty over  34 the barren lands until their settlement.  For  35 the most part, the ancestors of the individual  36 plaintiffs were members of that society; many  37 of them were themselves members of it.  That  38 their society has materially changed in recent  39 years is of no relevance."  40  41 My lord, I note the time.  This perhaps might be  42 appropriate.  43 THE COURT:  We'll adjourn just long enough to change reporters.  44  45  46  47 24505  Submissions by Mr. Jackson  1 (PROCEEDINGS ADJOURNED AT 7:40)  2  3 I hereby certify the foregoing to be  4 a true and accurate transcript of the  5 proceedings herein transcribed to the  6 best of my skill and ability  7  8  9  10    11 Graham D. Parker  12 Official Reporter  13 United Reporting Service Ltd.  14  15  16  17  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 24506  Submissions by Mr. Jackson  1 (PROCEEDINGS RESUMED PURSUANT TO ADJOURNMENT)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Jackson.  5 MR. JACKSON:  Page 305.  As Mr. Justice Mahoney points out in  6 the passage I have just cited, the only aboriginal  7 rights asserted by the Baker Lake Inuit was the right  8 to hunt and fish.  It is clear, however, that the  9 passages from Worcester v. Georgia and Calder were not  10 so limited.  The passage emphasized by Mr. Justice  11 Mahoney from Worcester - "having institutions of their  12 own, and governing themselves by their own laws" -  13 unambiguously addressed the pre-existing jurisdiction  14 of Indian nations.  As we have already seen, Chief  15 Justice Marshall in that case found that the Indian  16 nations had the right to internal self-government upon  17 which the State of Georgia could not intrude.  And as  18 for the passages from Calder - "the Indians were  19 there, organized in societies and occupying the land  20 as their forefathers had done for centuries" - it is  21 the Plaintiffs' submission that the way in which their  22 forefathers occupied their territories was in  23 accordance with an organized system in which both  24 proprietary rights and jurisdiction were vested in her  25 hereditary chiefs on behalf of House groups.  Mr.  26 Justice Mahoney, in citing Amodu Tijani, makes the  27 point that the common law gives effect to those  28 incidents that were themselves given effect by the  29 regime that prevailed before the assertion of Crown  30 sovereignty.  Subject to what we will have to say  31 about the implication of this in terms of "frozen  32 rights", it is the Plaintiffs' submission that prior  33 to the assertion of British sovereignty the land  34 tenure regime of the Gitksan and Wet'suwet'en is  35 capable of being delineated with great precision and  36 so dilineated it is properly characterized as one of  37 ownership and jurisdiction in the manner further  38 described in the Statement of Claim.  In neither  39 Calder nor Baker Lake was the Court called upon to  40 make any rulings regarding the jurisdictional  41 component.  42 My lord, there is a matter of what we say is great  43 significance which arises from the way in which Mr.  44 Justice Mahoney relates the rationale for the  45 requirement that the Plaintiffs and their ancestors  46 were members of an organized society with reference to  47 the Privy Council comments in Re Southern Rhodesia. 24507  Submissions by Mr. Jackson  1 From his Lordship's comments following the citation of  2 that case and his comments elsewhere in his judgment,  3 one to which I have already referred, that the  4 American cases "seem considerably more apposite than  5 those Privy Council authorities which deal with  6 aboriginal societies in Africa and Asia at the upper  7 end of the scale suggested in Re Southern Rhodesia",  8 an inference which comes from his lordship is that he  9 is of the view that aboriginal peoples in North  10 America fit within the lower end of the scale of  11 social organization on that sort of hierarchy.  The  12 concern expressed by the Privy Council was that for  13 those aboriginal peoples at the lower end of the  14 scale, the common law not impute to them rights  15 greater than those which they themselves recognized.  16 And we have previously made the point with reference  17 to the way it was used by Mr. Justice -- Chief Justice  18 Davey in Calder that that point, that citation in Re  19 Southern Rhodesia, if not given very careful  20 attention, is capable of reinforcing what we call  21 negative stereotypes.  And we say, my lord, that with  22 great respect to Mr. Justice Mahoney in describing the  23 nature of Inuit society is one which reduces it to the  24 right "to hunt and fish and survive", that does not  25 give full and proper respect for the nature of Inuit  26 society.  27 THE COURT:  But that's all he was asked to do.  28 MR. JACKSON:  My lord, I accept that proposition in that case.  29 The only issue before him was the right to hunt and to  30 fish.  31 My lord, in this case we have placed before this  32 Court a rich evidentiary record of the nature of the  33 Plaintiffs' organized society, not to enable this  34 Court to "grade" the Plaintiffs in any way on the Re  35 Southern Rhodesia scale, but to demonstrate that they  36 do not just "use and occupy" territory but that their  37 presence within that territory is impressed with their  38 history, their social structure, their changing  39 economic modes of production, consumption and trade,  40 all of which is underpinned by a system of proprietary  41 interests in particular territories and a system of  42 jurisdiction determining the management and  43 utilization of resources.  And we say it is that  44 ownership and jurisdiction which is the foundation of  45 their organized society.  46 And as your lordship points out, in Baker Lake Mr.  47 Justice Mahoney was not called upon to define the 2450?  Submissions by Mr. Jackson  1 nature of the Inuit rights in any more expansive way.  2 But in this case your lordship is.  And we say that it  3 is by reference to the nature of their organized  4 society that your lordship can properly define the  5 precise nature of their rights.  And, again, not in  6 any way to place them on a spectrum, but in terms of  7 what the court required in Amodu Tijanki, to  8 understand the nature of that organized society, the  9 nature of the rights which were recognized within that  10 society, and the nature of the rights which then can  11 be given effect to by the common law.  12 And, my lord, the description of the Inuit society  13 as one of hunting, fishing and surviving is related  14 very much to the evidence which was before the court  15 in Baker Lake which talked of aboriginal title in  16 terms of "use and occupation".  And, my lord, I have  17 set out at page 307 to 309 a brief extract from Mr.  18 Hugh Brody's evidence which makes the point that the  19 way in which social-scientific research was done in  20 the 1950s through to the 1980s itself went through an  21 evolution in which, depending upon how aboriginal  22 rights were conceptualized, so the scientific inquiry  23 changed.  And Mr. Brody describes how the initial  24 research he did was based upon an assumption that the  25 Inuit and other northern peoples would assimilate.  26 And, therefore, the question was doing research to see  27 how they could be best helped to do that and how in  28 the 1970s at that time when the Baker Lake case was  29 before the courts the focus of social-scientific  30 research, some of which was in fact placed before Mr.  31 Justice Mahoney in Baker Lake was on "use and  32 occupation", and that that research gave very  33 important clues as to the nature of aboriginal  34 societies in terms of the extent to which in fact they  35 has not abandoned their preferred economic modes of  36 production and consumption, the extent to which they  37 in fact were maintaining in an invigorated but  38 transformed way their life on the land.  39 And Mr. Brody goes on to say that the current  40 generation of social-scientific research has moved  41 beyond use and occupation and is looking at the ways  42 in which aboriginal societies organize themselves to  43 make decisions about resource use, about management of  44 resources in the context of institutions which, to our  45 eyes, are very difficult to see because they don't fit  46 in with what we are used to seeing by way of  47 institutions.  But that once analyzed properly, it is 24509  Submissions by Mr. Jackson  1 possible to, in fact, see those societies as societies  2 which have institutions of ownership and jurisdiction.  3 And Mr. Brody's evidence, my lord, is inserted at this  4 point in your legal argument not to suggest that  5 social-scientific research is the litmus test for what  6 legal rights should be.  Mr. Brody is a social  7 scientist, not a lawyer.  But what we say, my lord, at  8 the bottom of page 309 is that Mr. Brody's evidence  9 was tendered not to provide legal content to the  10 concepts of ownership and jurisdiction, but to show  11 that the way in which concepts such as "use and  12 occupation" continue stereotyped perceptions of the  13 nature of aboriginal societies and prevent us from  14 seeing those societies as our equals and  15 contemporaries.  16 And the evidence in this case, my lord, we say at  17 310 on the nature of the Plaintiffs' organized society  18 was tendered as a potent antidote to the detendency --  19 to the tendency in judicial pronouncements such as Mr.  20 Justice Mahoney which may be interpreted on some  21 analysis to --  22 THE COURT:  Well, do you say that's how you interpret it?  23 That's the way I should read Mr. Justice Mahoney's  24 judgment?  I must say, I didn't interpret that at all  25 when I read it.  26 MR. JACKSON:  My lord, to suggest that it is read that  27 aboriginal rights is limited to the rights that  28 existed at the time of contact and that the rights are  29 limited to use and occupation, we say that it is  30 confining as to the true content of aboriginal rights.  31 THE COURT:  Well, you say he is wrong, then?  32 MR. JACKSON:  No, my lord.  33 THE COURT:  Why not just say he is wrong, if that's the view,  34 instead of --  35 MR. JACKSON:  To the extent.  36 THE COURT:  -- analyzing why he is wrong.  37 MR. JACKSON:  To the extent, my lord, in that in that case all  38 he was asked to decide upon as to whether the Inuit  39 had a right to hunt and fish, it was not necessary for  40 him to go beyond that and to determine, as it were, ex  41 cathedra that their rights included half a dozen other  42 rights which were not necessary for any ruling.  But  43 what we say is the extent to which Baker Lake, my  44 lord, is relied upon to say that aboriginal title is  45 the right to use and occupy territory and no more,  46 that it cannot contain any other component, we say to  47 that extent Mr. Justice Mahoney's judgment ought not 24510  Submissions by Mr. Jackson  1 to be so limited.  So we are not in that sense, my  2 lord, saying that in the circumstances of that case  3 his lordship improperly confined aboriginal title  4 because he was not asked to give an expanded  5 definition.  But we do say that the judgment ought not  6 to be read as limiting rights to the way in which they  7 were defined in Baker Lake.  8 THE COURT:  Perhaps I'm just being overly protective, Mr.  9 Jackson.  But it just seems to me that if a judge  10 deals with a problem that's before him he is accused  11 of not going on and saying anything else.  And if he  12 goes on and says something else, he is accused of not  13 having kept himself within the proper bounds that he  14 is supposed to be within.  It seems to me that you are  15 going way beyond where you have to go to make the  16 submission you have to make.  And this goes back to  17 what I said on Friday, why do I have to worry about  18 why he is wrong?  Why do I have to worry about all of  19 these possibilities, these nuances of racism or  20 ethno-eccentricity and all of these things?  Why don't  21 we just deal with the legal problem we have?  22 MR. JACKSON:  Well, my lord, a point on this is that to the  23 extent the courts have defined aboriginal title in a  24 particular way which would appear to preclude the kind  25 of relief which --  2 6 THE COURT:  I don't see where he did that.  That's why I'm  27 having trouble with your submission.  28 MR. JACKSON:  Well, my lord —  29 THE COURT:  I don't see where there is any possible complaint  30 you could have with Mr. Justice Mahoney's judgment.  31 He found there were aboriginal rights to the extent  32 they were claimed.  How could you have any criticism?  33 MR. JACKSON:  Our criticism is to those who would use the  34 judgment to circumscribe the rights of the Plaintiff.  35 THE COURT:  You say that you are afraid that I will use his  36 judgment to reach a wrong conclusion?  37 MR. JACKSON:  No, my lord.  In light of the way in which Baker  38 Lake is used --  3 9 THE COURT:  Yes.  40 MR. JACKSON:  -- by the defendants in this indication and has  41 been used in other cases, we are alerting your  42 lordship to certain limitations of Baker Lake, both by  43 virtue of the nature of the rights asserted and the  44 nature of the relief sought, and urging upon your  45 lordship that in looking at the language it not be  46 viewed in a context inappropriate to the case and  47 applied, as it were, to say in this case the only 24511  Submissions by Mr. Jackson  1 kinds of aboriginal rights which can be asserted is a  2 matter of common law are rights to use an occupy  3 lands.  4 THE COURT:  Well, I haven't read the Defendants' argument on  5 this point yet, so maybe you are anticipating  6 something that is in their argument, are you?  7 MR. JACKSON:  Well, my lord, that is certainly an essential  8 thrust of the argument in that the rights, aboriginal  9 rights as a matter of common law, are rights to use  10 and occupy.  And that is the persistent theme of the  11 Defendants' position, my lord.  And to the extent that  12 Baker Lake on a literal wording seems to confirm that,  13 what we are saying, my lord, is that if you look at  14 the judgment both in terms of the light of the relief  15 sought, and in light of the evidence led in that case,  16 the case ought not to be viewed as precluding relief  17 which seeks to characterize the Plaintiffs'  18 utilization of resources as ownership, and which seeks  19 to characterize their authority in relation to the  20 territory as a jurisdiction.  21 THE COURT:  Well, I think I understand what you are saying, Mr.  22 Jackson.  I never would have read Baker Lake that way.  23 MR. JACKSON:  Well, my lord, then I am much relieved.  Perhaps  24 we have been guilty of too much abundant caution in  25 approaching it.  26 And at page 310, my lord, perhaps I come back to  27 the point of fairness to Mr. Justice Mahoney which,  28 more appropriately, I should have started with.  We  29 say that in using the language of ownership and  30 jurisdiction the Plaintiffs submit that this  31 conceptualization of aboriginal rights, while it may  32 appear as a new departure for social scientists and/or  33 Canadian courts, is an accurate reflection of those  34 fundamental principles which were built up through  35 centuries of treaty making and which are at the core  36 of the common law doctrine of aboriginal rights that  37 is reflected in Worcester v. Georgia.  Mr. Justice  38 Mahoney was correct in tracing the common law source  39 of aboriginal rights to Worcester v. Georgia and was  40 equally right in emphasizing the key words of "having  41 institutions of their own, and governing themselves by  42 their own laws".  He did not, however, draw from this  43 citation the necessary legal implications that  44 aboriginal rights encompasses rights which go far  45 beyond the right to "hunt and fish and survive".  To  46 be fair to Justice Mahoney in Baker Lake, no argument  47 was addressed to him that the rights of the Inuit 24512  Submissions by Mr. Jackson  1 extended beyond the right to hunt and fish in light of  2 the fact that the mining activity objected to was  3 alleged to directly interfere with Inuit hunting and  4 fishing.  The arguments in this case, of course, are  5 not so constrained, and it is submitted that this  6 Court ought not to be constrained by the approach of  7 Mr. Justice Mahoney.  8 My lord, this question of the existence of an  9 organized society has arisen before the Indian Claims  10 Commission.  Section 2 of that Act provides that the  11 Commission shall hear and determine claims which are  12 brought against the United States "on behalf of any  13 Indian tribe, band or other identifiable group of  14 American Indians residing within the territorial  15 limits of the United States of Alaska".  16 And in the second paragraph, my lord, we say that  17 as a matter of jurisdiction therefore, the  18 Commission's rulings have had to address the question  19 of whether a particular claimant consitutes a tribe or  20 an identifiable group of Indians.  But quite  21 independently of that question, the Commission has  22 also had to determine, as a substantive matter,  23 whether this identifiable group or tribe is the  24 successor in interest to the group or tribe which held  25 the land at the time that it was taken.  And thus the  26 Commission has had to determine first that land was  27 owned or occupied by an identifiable group of Indians  28 at the time of the alleged taking of the land and,  29 secondly, that the petitioners are a tribe or  30 identifiable group of Indians who are the successor in  31 interest to that land-holding -- land-owning Indian  32 entity.  And what this has involved is proof that the  33 petitioners include living members or descendants of  34 members of the identifiable group of Indians who held  35 the land at the time of the taking.  And thus  36 throughout there were two inquires.  37 My lord, the cases which I refer your lordship to  38 at pages 312 to 315 are all cases which deal with the  39 substantive issue of whether at the time of the taking  40 of the land there was an identifiable Indian  41 land-owning entity.  And what that entity has -- what  42 criteria that entity has to fulfill in order to be  43 accorded aboriginal title.  And the one case I am  44 going to refer you to specifically, my lord, is the  45 1966 case of the Mescalero Apache Tribe v. United  46 States.  The Mescalero Apaches claimed, among other  47 things, that the tribe and the various bands of which 24513  Submissions by Mr. Jackson  1 it was comprised aboriginally used or occupied to the  2 exclusion of others certain lands in what is now the  3 State of New Mexico.  The Plaintiffs contended that  4 these lands were taken by the United States without  5 any compensation.  6 At page 314, my lord, you will see that the United  7 States as part of its defense to the Mescalero's claim  8 contended that since there was no tribal organization  9 prior to American sovereignty, there could not have  10 been a tribal ownership of the claimed area giving  11 rise to a collective aboriginal title.  In rejecting  12 that argument, the Commission made the following  13 statement.  14  15 "This contention has been urged a number of times  16 in previous cases.  It has been held that the lack  17 of political cohesion, in itself, was no defense  18 when it was shown that among the autonomous  19 villages in a small area there existed an  20 identifiable group of American Indians with strong  21 ties of kinship and friendship, close cultural  22 ties, and also that there were areas of land used  23 in common by all the people of the group.  The  24 Commission in this case has found that the  25 character of the Mescalero Apache follow the  26 precepts in these cases.  Although not having an  27 overall political organization, they did form a  28 distinct ethnic group composed of people bonded  29 together by a common language, a common culture  30 and social organization, common customs, common  31 descent, interlocking kinship, inter-related  32 economic activities, and a consciousness derived  33 from these bands that they were one people.  The  34 solidarity of the Mescaleros received its most  35 concrete expression in the recognition of the  36 common right of all Mescalero people to  37 subsistence resources throughout the Mescalero" --  38  39 It should be region, my lord.  4 0    MR. PLANT:  Range.  41 MR. JACKSON:  42 Q   I'm sorry, range.  43 We say, my lord, at page 315 that the Commission's  44 definition of the Mecalero owe Apache as "a people"  45 corresponds closely to a definition of people which  46 has come to be accepted in international law, a point  47 to which these submissions will return.  More 24514  Submissions by Mr. Jackson  1 directly, of course, it's a conception of an organized  2 society capable of holding rights.  And we say that  3 this definition can be applied to the Gitksan and  4 Wet'suwet'en with the exception that their conceptions  5 of ownership do not give the same broad rights to all  6 Gitksan and Wet'suwet'en over all of the territories.  7 But this, of course, is a function of the  8 distinctiveness of the Gitksan and Wet'suwet'en system  9 as compared to that of the Mescalero Apache.  In this  10 regard the Mescalero Apache land regime of according  11 broad rights to all members of the band over the whole  12 area bears closer resemblance to the Inuit of -- Inuit  13 rights which were in issue in Baker Lake.  14 And the second case I refer your lordship to is  15 the Hualapai Tribe.  This, in fact, was the action  16 which preceded as a result of the decision of the U.S.  17 Supreme Court in Sante Fe.  I am content to leave that  18 to your lordship's own reading.  19 The second, and tomorrow, my lord, Mr. Grant will  20 be addressing you on the issue of the nature of the  21 Plaintiffs' organized society sufficient to meet the  22 first test in Baker Lake.  The second test in Baker  23 Lake is possession of a defined territory, as  24 expressed by Mr. Justice Mahoney that the organized  25 society occupied the specific territory over which  26 they assert the aboriginal title.  And, my lord,  27 although the language of use and occcupancy has been  28 often used in describing aboriginal title as the land  29 was used in Baker Lake, it is submitted that from the  30 Marshall cases down to the decision of the Supreme  31 Court of Canada in Guerin, it is clear that aboriginal  32 title as an interest in land is founded on aboriginal  33 possession.  34 And I have set out at page 316 over to 318, my  35 lord, a number of citations starting with Johnson v.  36 Mcintosh through to statements of Mr. Justice Hall in  37 Calder, and ending with a statement from Mr. Justice  38 Dickson in Guerin that:  39  40 "Indians have a legal right to occupy and  41 possess certain lands."  42  43 My lord, the case law establishes that in determining  44 whether aboriginal peoples can be said to possess  45 certain lands, reference is to be made to the way of  46 life of the particular society, its distinctive  47 economy and the resources available to it.  And this 24515  Submissions by Mr. Jackson  1 proposition can be traced back to the statement of Mr.  2 Justice Baldwin in Mitchel, a statement which Mr.  3 Justice Mahoney relies upon in Baker Lake.  And your  4 lordship will recall that statement perhaps.  5  6 "Indian possession or occupation was considered  7 with reference to their habits and modes of life;  8 their hunting grounds were as much in their actual  9 possession as the cleared fields of the  10 Whites; and their rights to its exclusive  11 enjoyment in their own way and for their own  12 purposes were as much respected, until they  13 abandoned them, made a cession to the government,  14 or an authorized sale to individuals."  15  16 And, my lord, in citing that passage in Baker Lake,  17 Mr. Justice Mahoney added to it his own comment which  18 is set out at the top of page 319.  19  20 "The nature, extent or degree of the aborigines'  21 physical presence on the land they occupied,  22 required by the law as an essential element of  23 their aboriginal title, is to be determined in  24 each case by a subjective test.  To the extent  25 human beings were capable of surviving on the  26 barren lands, the Inuit were there; to the extent  27 the barren lands lent themselves to human  28 occupation, the Inuit occupied them."  29  30 My lord, the next case to which I would refer you is  31 the decision of the U.S. Court of Claims which, in my  32 research, is the most exstensive discussion I have  33 found anywhere in the jurisprudence on the nature of  34 possession which is necessary to sustain a claim based  35 upon aboriginal title.  36 THE COURT:  Nature of possession?  37 MR. JACKSON:  Yes, my lord.  And I was going to read a  38 significant portion of it, so perhaps this might be an  39 appropriate point to take a short break, my lord, to  40 change --  41 THE COURT:  We have got another ten minutes to go.  You don't  42 play enough team sports, Mr. Jackson.  You could have  43 watched the clock more closely than I have.  44 MR. JACKSON:  In this case, my lord, it is a 1967 case.  The  45 United States had appealed from an interlocutory  46 decision of the Indian Claims Commission holding that  47 the Seminole Indians had established their 24516  Submissions by Mr. Jackson  1 aboriginal -- their Indian title to all of the present  2 State of Florida (with specific areas excepted) as of  3 the date of an 1823 treaty by which they ceded their  4 lands.  The Court of Claims in upholding the decision  5 exhaustively discussed the question of the nature of  6 Indian possession.  7 THE COURT:  What were they seeking to establish, their --  8 MR. JACKSON:  Aboriginal title to the —  9 THE COURT:  Present State of Florida?  10 MR. JACKSON:  The whole of the present State of Florida.  11 THE COURT:  And with that under one of the head of the Indian  12 Claims Commission?  13 MR. JACKSON:  Yes, my lord.  As I recall, as many of these cases  14 council in advising join every head of jurisdiction  15 under the Claims Commission, you often find that the  16 Claims Commission pleadings allege a cause of action  17 under one to five of the heads.  18 THE COURT:  Yes.  19 MR. JACKSON:  In this particular case, my lord, and I can check  20 for you --  21 THE COURT:  On page 300.  22 MR. JACKSON:  I believe that the case was brought under clause  23 four.  24 THE COURT:  All right.  25 MR. JACKSON:  But I can check that, my lord.  Most of these  26 cases were cases in which the principal allegation was  27 that the compensation paid was, in fact, not in fact  28 an appropriate compensation in light of the value of  29 the land.  30 MR. PLANT:  Would that be a two, four claim?  31 MR. JACKSON:  Yes, my lord, I believe it is a two, four claim  32 rather than a five claim.  33 MR. PLANT:  As opposed to an one, two or three claim?  34 MR. JACKSON:  I will check that from the —  35 THE COURT:  Thank you.  36 MR. JACKSON:  One of the problems with these cases, my lord, and  37 I have provided copies to my friends in the book of  38 authorities, but a lot of the Indian Claims Commission  39 cases, the Court of Claims cases are all reported in  40 regular, proper --  41 THE COURT:  Yes.  42 MR. JACKSON:  -- reported series.  The Indian Claims Commission,  43 until very recently, were available only on  44 microfiche.  And for the purposes of this case, my  45 lord, I had the microfiche photocopied from the  46 University of Washington and shipped to UBC.  And what  47 I have provided the court and my friends is a 24517  Submissions by Mr. Jackson  1 photocopy of a photocopy of a microfiche.  2 THE COURT:  Yes.  3 MR. JACKSON:  And because of the nature of the reproduction, we  4 have sort of black on white reproductions which are  5 difficult to read.  6 MR. PLANT:  Actually, I hate to interrupt, but I have answered  7 my own question.  At any rate, perhaps my friend can  8 look at this particular place in the judgment of the  9 Court of Claims in his brief of authorities, Volume  10 13, tab 9 which is where this judgment appears.  It  11 looks as though on page 378 that the claim in chief of  12 the claimants in this case was under section 2(3)  13 which was attempting to set aside treaties on the  14 grounds of fraud or duress.  And that's a footnote at  15 the bottom of the page.  16 MR. JACKSON:  Yes.  17 MR. PLANT:  Now, that's the only reference I've seen so far.  18 MR. JACKSON:  I think my friend may be right on that, but I will  19 check over the adjournment.  2 0 THE COURT:  Thank you.  21 MR. JACKSON:  The significant point, my lord, is that the claim  22 was not one which was founded on subsection 5, which  23 is that the claim is one not arising under any rule of  24 law or equity.  As I said, the first four claims are  25 all ones which give rise to a claim which is  26 predicated upon a legal or equitable base.  27 THE COURT:  Yes.  All right.  28 MR. JACKSON:  The Court, in determining what the nature of  29 Indian possession would be to sustain a claim, said  30 this:  31  32 "The concept of Indian title is a shorthand means  33 of expressing a right of occcupancy based upon  34 exclusive aboriginal possession.  Proof of such  35 possession rests in the "showing of actual,  36 exclusive and continuous use and occcupancy 'for a  37 long time' prior to the loss of land."  It is  38 claimed by the United States not only that the  39 Commission's findings failed to support the  40 conclusion that the Seminoles had such title, but  41 further, that the history of the Seminoles is such  42 that this conclusion could not have been reached.  43 The elements necessary to establish Indian title  44 provide the focus of discussion.  45 There can be little question that, in their  46 occupation of the land, the Seminoles held a  47 virtual "monopoly".  While expert witnesses 2451?  Submissions by Mr. Jackson  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  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  THE COURT:  MR. JACKSON:  concede the contemporaneous existence of other  Indians in Florida (remnants of original  inhabitants located primarily in the southern half  of the peninsula), these scattered groupings were  few and far between, and the record offers no  challenge --"  'No evidence".  "-- no evidence to suggest that the Seminole  dominion was ever challenged by these vestiges of  aboriginal cultures.  Instead, the pattern that  prevailed was one of cultural assimilation - the  Seminoles simply absorbing these "foreign"  elements into their own ranks.  We may take it as  an uncontradicted fact that, but for the different  European interests, the Seminoles enjoyed an  unrivaled position in the Florida peninsula.  Hence, the matter in issue turns not upon whether  the Seminoles were the exclusive occupants of  the land, but whether they availed themselves of  their exclusive position.  In short, was the  Seminoles use and occupancy of the land of an  extent sufficient to support a recognition of  Indian title encompassing virtually all of the  Florida peninsula?  The government urges several  factors which it insists compel a negative answer.  First, reference is made to the fact that, as  late as 1802, Seminole "occupancy", as reflected  by the village settlements, was limited both in  number and range of distribution.  It is pointed  out that permanent Seminole settlements were  confined almost exclusively to the northern half  of Florida;  moreover, the permanent settlements  do not appear, at this time, to exceed seventeen  in number.  In conjunction with this fact, the  government also stresses population figures, point  out that, up to 1814 (the year in which many "Red  Sticks"...",  These were Indians from further north,  "...joined the Seminoles), total Seminole  population did not exceed 2,500 individuals.  The  combination of these two factors is said to compel  but one conclusion, namely, that the Seminoles  neither did occupy, nor were they numerically 24519  Submissions by Mr. Jackson  1 capable of occupying, a territory as vast as all  2 of the Florida peninsula.  3 Had the Seminoles chosen to live by  4 food-raising alone, we would regard the "village"  5 evidence (stressed by the Government) as a  6 persuasive consideration in limiting the Seminoles  7 "title" to the land falling within the compass of  8 their permanent homesites, that is the northern  9 half of the peninsula.  Cultures that stake their  10 survival on a close union with the soil, as in the  11 case with primitive food-raising economies, would  12 not demand the vast tracts of land required for a  13 nomadic, hunting existence.  But the Seminoles -  14 as was the case with many other Indian groups -  15 survived not simply through farming, but by  16 food-gathering and hunting as well.  In other  17 words, Seminole land-use clearly encompassed more  18 than the soil actually "possessed".  Therefore  19 other aspects of the Seminole pattern of life  20 demand consideration.  21 Not only did these Indians wander in search of  22 food supplements, but as already indicated, the  23 appearance of the English in Florida spurred a  24 demand for hides that compelled the Seminoles to  25 make extensive use of the southern penisula.  On  26 this point, the records admits of no doubt.  It is  27 clear, from the Government's own evidence, that  28 the Seminoles' "hunting preserve" extended to the  29 Florida Keys.  Such exstensive penetration of the  30 penisula could be accomplished only by resort to  31 temporary encampments - a home away from home.  32 This, too, the record confirms.  Again, it is  33 worth empasizing that the Seminoles hunted not  34 only for subsistence, but also to sustain the  35 trade which the British had initiated and which  36 the Spanish, after them, were obliged to  37 continued.  Under such circumstances, the Indians  38 use of the land would not be minimal; moreover,  39 this trade could reasonably demand a use of the  40 land ranging well beyond the immediate environs of  41 permanent village sites."  42  43 I am just going to stop the -- go over the next  44 paragraph, my lord, which talks about the Seminoles  45 ocean-going voyages to Havana.  46  47 "Given these facts, which are not in the slightest 24520  Submissions by Mr. Jackson  1 way disputed - we believe that the Commission, as  2 the trier of fact, could reasonably have concluded  3 that Seminole "use and occcupancy" was adequate to  4 sustain a claim of original title to the Florida  5 peninsula.  The area acknowledged by the  6 Commission as being within Seminole dominion  7 constituted a definable territory occupied  8 exclusively by the Seminoles.  And since the "use  9 and occcupancy" essential to the recognition of  10 Indian title does not demand actual possession of  11 the land, but may derive through intermittent  12 contacts, the Commission's determination that the  13 Seminoles occupied all of Florida may not be  14 regarded as legally defective.  15 Nor does the Government's reference to "a  16 population thinness" compel a different result.  17 In stressing this consideration, the government  18 leans far too heavily in the direction of equating  19 "occcupancy" (or capacity to occupy) with actual  20 possession, whereas the key to Indian title lies  21 in evaluating the manner of land-use over a period  22 of time.  Physical control or dominion over the  23 land is the dispositive criteria.  Thus, when  24 consideration is given to the fact that the  25 Seminoles hunted throughout the southern  26 peninsula and that they also travelled this  27 country - much of which was covered by water -  28 and, further, that their emergence as a  29 distinct Indian group was achieved through the  30 amalgamation of many diverse elements, some of  31 which had always dwelled within the southern  32 peninsula - then, we believe, there exists a  33 reasonable basis for accepting the Commission's  34 determination that Seminole title embraced the  35 entire peninsula."  36  37 And, my lord, there is a second case which I'm going  38 to refer your lordship to after the break.  39 THE COURT:  All right.  40 MR. JACKSON:  Because it deals with some of the evidence very  41 similar to the evidence you've heard in this case.  42  43  44  45  46  47 24521  Submissions by Mr. Jackson  1 THE COURT:  All right.  We will take less than a ten-minute  2 adjournment.  3 THE REGISTRAR:  Order in court.  Court stands adjourned.  4 (PROCEEDINGS ADJOURNED AT 8:20)  5  6  7  8 I hereby certify the foregoing to be  9 a true and accurate transcript of the  10 proceedings herein to the best of my  11 skill and ability.  12  13  14    15 LISA FRANKO, OFFICIAL REPORTER  16 UNITED REPORTING SERVICE LTD.  17  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 24522  Submissions by Mr. Jackson  1 (PROCEEDINGS RECONVENED AT 8:30 P.M.)  2  3 THE REGISTRAR:  Order in court.  4 THE COURT:  Mr. Jackson.  5 MR. JACKSON:  Thank you, my lord.  6 The second case, my lord, which I want to refer  7 you to -- and again, it's one which I will take your  8 lordship in some depth because I think it does bear  9 directly on the evidence, the nature of the evidence  10 you've heard in this case.  It's the case referred to  11 at page 322, Clyde F. Thompson v. the United States.  12 This was a case, my lord, it was a consolidated claim  13 on behalf of all the Indians of California.  And at  14 page 322, the top of 323, the nature of the  15 consolidated case and why it was a consolidated case  16 is set out.  17 I want to start referring your lordship to the  18 passage in the last half of page 323 where the Claims  19 Commission identified what lands were held by  20 aboriginal title and proceeded upon this analysis:  21  22 We can proceed with our enquiry with the basic  23 fact, which nobody questions, that Indians  24 occupied and used California lands from time  25 immemorial and as the original inhabitants  26 thereof.  The native population is unknown, but  27 estimates range from a high of 700,000 to  28 260,000...  These Indians were not an  29 homogeneous group, but were made up of many  30 groups or tribelets which composed many  31 linguistic divisions or nationalities in  32 California.  It has been estimated by Dr.  33 Kroeber that there were five hundred or more  34 Indian groups in California about the time we  35 acquired California from Mexico in 1848.  These  36 tribelets occupied and used fairly well-defined  37 areas dependent in size upon the economic  38 resources of the particular area and the  39 population requirements of those living in it.  40 Of course the degree of use of lands varies  41 with the conditions, as Dr. Beals, a witness  42 for defendant, described:  43  44 And my lord, I would go now to page 324.  I would  45 refer all of this to your lordship.  I'm trying to  46 just take you to the most significant parts.  47 24523  Submissions by Mr. Jackson  1 The difference in use was caused, as the  2 above statements imply, by the variations in  3 climate, topography, elevation, soil,  4 vegetation, etc. all of which determine the  5 quantity of economic resources in the various  6 sections of the State.  It is not necessary  7 that the Indians prove that each of the 500 or  8 more tribelets occupied and used every acre of  9 the lands they claim; this was not and cannot  10 be done, as witnesses for the petitioners have  11 frankly admitted.  There is comparatively  12 little proof of actual occupation and use of  13 specific tribelet areas in California, and if  14 proof of such use is necessary, the petitioners  15 have failed in their proof; however, there is  16 proof by noted anthropologists, based upon  17 years of study of Indian culture, habitats and  18 ways of providing their subsistence, that the  19 Indian groups used and occupied the lands in  20 accordance with the Indian way of life.  It  21 must be borne in mind that in aboriginal times  22 these Indians obtained their subsistence from  23 the natural products of the soil and waters of  24 the areas they occupied.  Such an economy did  25 not require an intensive cultivation of the  26 soil for the Indians of necessity exploited the  27 places which provided the necessaries of life.  28 The resources the Indians relied upon for  29 subsistence were not uniformly distributed;  30 they were largely seasonal and in scattered  31 places, requiring travel of considerable  32 distances in their gathering, fishing and  33 hunting activities.  Game animals moved from  34 place to place in search of food and had to be  35 followed.  The importance of flora and fauna in  36 all regions of the state cannot be gainsaid,  37 and the search for such resources was  38 continuous and covered areas that were  39 unproductive as well as those that were,  40 because of the variations in the production of  41 the natural resources from year to year or even  42 from season to season in many years.  43  44 Furthermore, it is plain that because of the  45 uneven and rather sparse distribution of the  46 available natural resources in the State, large  47 areas of land were needed to provide 24524  Submissions by Mr. Jackson  1 subsistence.  The Indians' permanent and main  2 habitats were, in general, in locations which  3 provided the greatest abundance of natural  4 resources, but they were required, and  5 generally did, extend their searches over large  6 areas beyond their places of permanent  7 settlement.  The record is replete with proof  8 of temporary camps occupied by the Indians in  9 their seasonal gathering, fishing and hunting  10 operations which covered large areas in the  11 mountains, plains and deserts.  It is no doubt  12 true, as the Government contends, the higher  13 elevations in the mountains and some large  14 desert areas produce little of economic  15 importance to the Indians, but such places have  16 limited use and were part of the areas claimed  17 and defended where necessary by the tribelet  18 occupying it.  19  20 My lord, in the Indians of California  21 litigation --  22 THE COURT:  Is that the same case?  2 3    MR. JACKSON:  Yes, my lord.  2 4    THE COURT:  Yes.  25 MR. JACKSON:  It's usually referred to as the Indians of  26 California.  In that litigation, the government  27 introduced an ecological analysis of the natural  28 resources of California available to the Indians and  29 the way those resources affected land utilization.  30 And in light -- and I should say, my lord, that in  31 introducing the ecological evidence in this case, the  32 plaintiffs were not aware of this case, so it  33 wasn't -- that particular evidence was not intended to  34 reflect this.  But in light of the fact that evidence  35 of that kind was introduced in this case, it may be  36 interesting and useful to your lordship to note what  37 the Claims Commission said as to its relevance and  38 significance to the inquiry before it, as to the lands  39 and the extent of the lands claimed:  40  41 The primary value of the ecological approach to  42 the problem of land-use and occupancy by the  43 Indians of California lies in the paucity of  44 proof of actual use and occupancy of the lands,  45 as we understand the Government's position.  46 The proof of actual use is in the main based  47 upon anthropological studies and research. 24525  Submissions by Mr. Jackson  1 Proof of actual use by Indians of given areas  2 is of the most general character, and,  3 considering it in the aggregate, the areas  4 constitute but a relatively small part of the  5 total lands involved in this case...  We must,  6 as the anthropologists did, reason and assume  7 from our knowledge of the culture of these  8 aborigines that they lived and had their  9 permanent abodes in places best suited to their  10 economic life and which they exploited as the  11 primary source of their subsistence and at the  12 same time, at least in connection therewith,  13 they exploited the available resources in the  14 less productive territories surrounding or in  15 the vicinity of their settlements.  16  17 An ecologic analysis of the area here under  18 study involved the division of the territory  19 into a number of zones according to their  2 0 economic importance:  21  22 (1)  Those of intensive use - those  23 generally included the settlements or  24 surrounding territory consisting of about  25 one-fifth of a claimed area from which as  26 high as 80% of the subsistence was derived;  27 then follows; (2) zones of less intensive  28 use; (3) seasonal use; (4) infrequent use;  29 (5) the least use of any but, nevertheless  30 used for crossing, trailing or occasional  31 use of sacred places located therein, and  32 perhaps, on occasion, to defend the more  33 important areas...  34  35 We believe the study of the economic resources  36 of the state and their relationship to the  37 quantity of land required to support the  38 Indians in their way of life has value in  39 understanding the economic picture.  However,  40 we cannot accept the Government's thesis that  41 the resources of the state or any part thereof  42 can be determined mathematically by assigning a  43 large percentage of subsistence derived from a  44 small part of a given territory and reduced  45 percentages of subsistence in other areas of a  46 territory claimed by a particular tribelet.  47 The testimony and the ethnographic literature, 24526  Submissions by Mr. Jackson  1 of which there are volumes in evidence, show  2 that the Indian groups ranged throughout their  3 respective territories in their gathering,  4 hunting and fishing.  While these Indians were  5 never considered nomads, their exploitation of  6 the available resources in a given territory  7 required frequent and extended travelling  8 within territories claimed.  We believe it  9 unrealistic and contrary to the Indian mode of  10 life to restrict Indian territorial rights to  11 the lands which would simply provide adequate  12 subsistence and disallow their land claims to  13 the areas which were of secondary importance  14 or supplemental to the main sources of  15 supplies.  We suspect territorial expanse was  16 as much the desire of these primitive peoples  17 as it is characteristic of the White Man for  18 there is much ethnographic evidence that the  19 Indian groups in California moved about their  20 respective domains gathering wild foods as  21 they ripened or captured available wild game,  22 and during a normal season would visit and use  23 the whole territory to which they asserted  24 ownership as their exclusive places of abode.  25  26 We know of no decision by the courts or the  27 administrative offices of the Government which  28 limited Indian lands to those lands which  29 provided them with the common necessities of  30 life.  The requirements of the Indians were so  31 varied that they could only be obtained from a  32 large area for salt, edible seaweeds and  33 insects, flint and other important supplies  34 where in most cases not available in the  35 confined areas of valleys but obtainable from  36 desert areas.  37  38 The Claims Commission, my lord, we say, in this  39 passage, indicates that the ecological evidence was of  40 particular value because of the limited proof of  41 actual land use.  In this case, my lord, the  42 plaintiffs have provided a substantial evidentiary  43 record of resource harvesting throughout their  44 territories as revealed in the archaeological record,  45 oral histories, and the evidence of elders.  But in  46 addition, the ecological evidence which Mr. Grant  47 reviewed for you some two weeks ago, establishes the 24527  Submissions by Mr. Jackson  1 various ecological zones and the distribution of  2 resources within the plaintiffs' territories and shows  3 how this distribution is integrated into the  4 plaintiffs' resource harvesting and economic seasonal  5 round or cycle.  And it is submitted that as in the  6 Seminole and the Indians of California cases, this  7 court has a sufficient evidentiary basis upon which to  8 conclude at the legally relevant time the plaintiffs  9 were in possession of their territories.  10 My lord, the third element of the Baker Lake  11 tests is the element of exclusive possession:  That  12 the occupation was to the exclusion of the organized  13 societies.  14 And in Baker Lake, Mr. Justice Mahoney traced the  15 source of this third of the four requirements to a  16 passage in the Santa Fe case in which Mr. Justice  17 Douglas said:  18  19 Occupancy necessary to establish aboriginal  20 possession is a question of fact to be  21 determined as any other question of fact.  If  22 it were established as a fact that the lands in  23 question were, or were included in, the  24 ancestral home of the Walapais in the sense  25 that they constitute definable territory  26 occupied exclusively by the Walapais (as  27 distinguished from lands wandered over by many  28 tribes) --  29  30 And that is the contrast, my lord.  31  32 -- then the Walapais had "Indian title" which  33 unless extinguished survived the railroad grant  34 of 1866.  35  36 THE COURT:  So he is saying there, if you just wander over it,  37 that's not enough?  38 MR. JACKSON:  That seems to be the approach of Mr. Justice  39 Douglas, in the context that if you wander over it  40 along with many other Indian groups, then if that is  41 the pattern of utilization of resources then that is  42 not enough to establish an aboriginal title in those  43 groups.  44 In the context of Baker Lake, my lord, the  45 government defendant admitted that the Baker Lake  46 Inuit exclusively occupied the whole of the claimed  47 area.  But Mr. Justice Mahoney, in light of the 2452?  Submissions by Mr. Jackson  1 archaeological evidence which was presented to him,  2 took the position that even in the face of a  3 government admission, if the evidence did not support  4 that, then he could not make a finding.  5 THE COURT:  Right.  6 MR. JACKSON:  And he found that in relation to one of the  7 southerly parts of the Baker Lake area, the  8 archaeological evidence suggests intermittent  9 occupation on the one hand by the Inuit, and on the  10 other hand, by the Chipewyan Indians to the south, and  11 he viewed that as fitting into this character of  12 territory over which the Inuit and the Chipewyan  13 intermittently wandered and therefore neither could  14 have exclusive possession sufficient to satisfy this  15 test.  But in all other regards, there was no dispute  16 as to the exclusive occupation of the Baker Lake  17 Inuit.  18 The concept of exclusivity, my lord, is one which  19 has been well developed by the Indian Claims  20 Commission and the Court of Claims.  And in terms of a  21 purpose of analysis perhaps in the context of the  22 Indian Claims Commission, my lord, and also for the  23 purposes of determining aboriginal titles as a matter  24 of common-law, the decision of the Court of Claims in  25 Strong v. United States is one which your lordship may  26 wish to pay particular attention.  In explaining why  27 exclusive possession is regarded as an important  28 incident of aboriginal title, the Court of Claims said  29 this:  30  31 ... The obstacle facing the Indian claimants in  32 this litigation is the requirement of  33 "exclusiveness".  Generally, mixed and  34 non-exclusive use and occupancy of an area  35 precludes the establishment of any aboriginal  36 title by any of the users of the subject  37 property.  The purpose of this requirement is  38 fairly obvious.  In order to award compensation  39 to the Indians for the value of land ceded to  40 or taken by the government, it is essential  41 that the Commission first determine that the  42 land in question was truly "owned" by the  43 ancestors of the particular claimant or  44 claimants.  Certainly, one of the primary  45 characteristics of ownership is the desire and  46 ability to exclude others from the area over  47 which ownership is claimed.  Confronted with a 24529  Submissions by Mr. Jackson  1 similar issue recently the court stated in  2 United States v. Pueblo of San Ildefonso:  3  4 Implicit in the concept of ownership of  5 property is the right to exclude others.  6 Generally speaking, a true owner of land  7 exercises full dominion and control over  8 it; a true owner possesses the right to  9 expel intruders.  In order for an Indian  10 tribe to establish ownership of land by  11 so-called Indian title, it must show that  12 it used and occupied the land to the  13 exclusion of other Indian groups.  True  14 ownership of land by a tribe is called in  15 question where the historical record of the  16 region indicates that it was inhabited,  17 controlled or wandered over by many tribes  18 or groups.  19  20 And my lord, the court goes on to deal with  21 applying exclusiveness in the particular context of  22 the evidence facing it.  23 If your lordship would go to page 330, near the  24 top of the page, the third line:  25  26 Although normally no tribe will be deemed to  27 have proven aboriginal title when others used  28 and occupied the land in question, there is a  29 "built-in exception" to the "exclusivity"  30 requirement.  Actually, this "exception" merely  31 creates a method of analysis of "exclusivity"  32 in certain rare situations.  In the past, the  33 Court has held on several occasions that two or  34 more tribes or groups might inhabit an area in  35 "joint and amicable" possession without erasing  36 the "exclusive" nature of their use and  37 occupancy...  To qualify for treatment under  38 "joint and amicable" occupancy, the  39 relationship of the Indian groups must be  40 extremely close.  41  42 And my lord, the balance of 330 continues with an  43 analysis of several cases where the court defines what  44 the precise nature of that close relationship must be  45 in order for groups to have a joint and amicable  46 possession so that both would have aboriginal title.  47 And over at page 331, the court continues -- the 24530  Submissions by Mr. Jackson  1 court makes the point that in its decision in the  2 United States v. Pueblo of San Ildefonso -- rather,  3 this is a later case, my lord, which was referred to  4 in that case, in the United States v. Pueblo and San  5 Ildefonso, the Court of Claims made this statement  6 about this joint and amicable possession:  7  8 Iowa Tribes decision did not purport to set  9 down any rule that two or more tribes must  10 first conclusively prove that they are a single  11 or closely integrated entity before they can  12 claim joint ownership of land...  The complete  13 merger of two or more tribes into one is not a  14 prerequisite for claiming joint aboriginal  15 title.  16  17 In the San Ildefonso case, my lord, the land in  18 issue lay between two pueblos or villages of Santo  19 Domingo and San Felipe, and was used for pasturing  20 cattle, sheep and goats and had been the subject of a  21 Spanish grant to the two pueblos equally.  The land  22 had been used in common for a long time but was  23 subsequently included in a reservation exclusively for  24 one of the pueblos.  And the commission found that the  25 land was held under "joint aboriginal title" and that  26 the Santo Domingo pueblo was entitled to half of the  27 compensation.  28 My lord, the point at which this is an issue in  29 this case, we say, arises in the context of some of  30 the evidence which you have heard, and my friends, Mr.  31 Grant and Ms. Mandell, will be going into it in some  32 detail.  Evidence was led before you of certain areas  33 which were described as common areas, areas usually of  34 extreme productivity of a particular resource, which  35 were used by a number of house groups.  And what we  36 say is the extent that your lordship would see those  37 areas as being used and utilized by a number of house  38 groups, your lordship could find that those areas are  39 held in joint and amicable possession consistent with  40 the U.S. jurisprudence and sufficient to satisfy Mr.  41 Justice Mahoney's test of exclusiveness.  42 In terms of what is -- my lord, Mr. Rush has  43 brought to me a fact that the Strong case at page 328  44 has not been referenced.  It is Volume 12 tab 45.  4 5    THE COURT:  32 8?  46    MR. JACKSON:  328, the reference to Strong.  4 7    THE COURT:  Yes. 24531  Submissions by Mr. Jackson  1 MR. JACKSON:  It's Volume 12 tab 45.  And the San Ildefonso case  2 on page 331 is Volume 13 tab 7.  3 THE COURT:  Thank you.  4 MR. JACKSON:  My lord, the requirement of exclusivity has, as  5 most other things in the area of aboriginal rights,  6 been the subject of academic commentary, and I've set  7 out on page 332 some comments of Dr. -- Professor  8 Slattery, where he -- he makes the point that in  9 considering the context -- in considering this  10 requirement of exclusivity, it should be viewed in the  11 context of the sui generis nature of aboriginal title,  12 and it should be flexible rather than be a requirement  13 which has certain rigid parameters, and that is a  14 proposition which the plaintiffs agree.  It is also a  15 proposition, my lord, which the Court of Appeal in  16 Sparrow seems to have viewed with some favour.  17 At page 333 at the top, my lord, we note the fact  18 that in Sparrow, where an aboriginal right to fish was  19 asserted, the B.C. Court of Appeal in affirming that  20 right -- and I say there, my lord, "the Court stated".  21 To be more accurate, I think I should have said, "the  22 Court recited the evidence of Dr. Suttles, an  23 anthropologist."  From my reading of the case, my  24 lord, the court recited the evidence with approval,  25 but that I'll leave for your lordship's judgment.  But  26 that evidence, in talking about the Musqueam  27 aboriginal right to fish, described it in this way, my  28 lord:  29  30 As part of the Salish people, the Musqueam were  31 part of a regional social network covering a  32 much larger area, but as a tribe, were  33 themselves an organized social group with their  34 own name, territory and resources.  Between the  35 tribes there was a flow of people, wealth and  36 food.  No tribe was wholly self-sufficient or  37 occupied its territory to the complete  38 exclusion of others.  39  40 And my lord, that did not seem to be of concern  41 to the Court of Appeal in the sense that it was not  42 viewed as being a preclusion of their aboriginal right  43 to fish.  And we say that that suggests the -- the  44 exclusiveness is being viewed by the courts in the  45 context of not imposing a grid upon Indian  46 utilization, but looks at it in the context of the  47 particular society which -- which rights are in issue. 24532  Submissions by Mr. Jackson  1 It is our submission, my lord, that the  2 plaintiffs' evidence in this case does describe a  3 system which includes the concept of "exclusivity"  4 even as it is defined in the Strong and Ildefonso  5 cases.  As those judgments indicate, exclusivity in  6 the sense of having the right to exclude others, is  7 one of the principal hallmarks of ownership.  And my  8 lord, as your lordship heard evidence -- and we will  9 be referring your lordship again specifically to this  10 evidence -- Dr. Daly in his report sought to  11 articulate a cross cultural definition of ownership,  12 which incorporated the common-law but which was not  13 limited to the common-law, and one of the hallmarks of  14 that cross cultural definition included exclusivity  15 also as a principal component.  16 The passages we have recited from the Strong and  17 Ildefonso cases provide further support, we say, my  18 lord, for the plaintiffs' argument that although  19 aboriginal title has been described in much of the  20 case law as "use and occupancy" -- and indeed was  21 described in that way in these cases -- this is done  22 in large measure to distinguish it from the underlying  23 crown title.  And such description of Indian title as  24 "use and occupancy" should not be taken -- and this  25 was the gravamen of my comments in relation to Baker  26 Lake that it not be read this way -- such a  27 description of Indian use and occupation should not be  28 taken to deny the characterization of Indian title as  29 one of ownership.  In both the Strong and Ildefonso  30 cases, the Court of Claims identified the concept of  31 exclusiveness precisely because it is one of the  32 principal hallmarks of true ownership.  And just to  33 reiterate what the court said in Ildefonso:  34  35 Generally speaking, a true owner of land  36 exercises full dominion and control over it; a  37 true owner possesses the right to expel  38 intruders.  In order for an Indian tribe to  39 establish ownership of land by so-called Indian  40 title, it must show that it used and occupied  41 the land to the exclusion of other Indian  42 groups.  43  44 And it is our submission, my lord, that the  45 evidence presented by the plaintiffs in this case  46 demonstrates that the Gitksan and Wet'suwet'en  47 hereditary chiefs and their houses are "true owners" 24533  Submissions by Mr. Jackson  1 of their territories.  2 And my lord, that would be a convenient point.  3 That was the point at which I was striving to reach  4 this evening.  5 THE COURT:  Yes, all right.  I will look forward to hearing the  6 balance of your submission at 9:30 tomorrow morning.  7 MR. JACKSON:  Yes, my lord.  Thank you.  8 THE REGISTRAR:  Order in court.  Court stands adjourned until  9 9:30 tomorrow morning.  10  11 (PROCEEDINGS ADJOURNED AT 9:00 P.M.)  12  13  14 I hereby certify the foregoing to be  15 a true and accurate transcript of the  16 proceedings herein transcribed to the  17 best of my skill and ability.  18  19  20  21  22 Toni Kerekes, O.R.  23 United Reporting Service Ltd.  24  25  26  27  28  29  30  31  32  33  34  35  36  37  38  39  40  41  42  43  44  45  46  47


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