@prefix ns0: . @prefix edm: . @prefix dcterms: . @prefix dc: . @prefix skos: . ns0:identifierAIP "3baf7844-04e2-4936-a726-c1455336c7d8"@en ; edm:dataProvider "CONTENTdm"@en ; dcterms:isPartOf "Delgamuukw Trial Transcripts"@en ; dcterms:creator "British Columbia. Supreme Court"@en ; dcterms:issued "2013"@en ; dcterms:created "1990-04-11"@en ; dcterms:description "In the Supreme Court of British Columbia, between: Delgamuukw, also known as Albert Tait, suing on his own behalf and on behalf of all the members of the House of Delgamuukw, and others, plaintiffs, and Her Majesty the Queen in right of the Province of British Columbia and the Attorney General of Canada, defendants: proceedings at trial."@en, ""@en ; edm:aggregatedCHO "https://open.library.ubc.ca/collections/delgamuukw/items/1.0018507/source.json"@en ; dc:format "application/pdf"@en ; skos:note " 24197 Submissions by Mr. Jackson 1 April 11, 1990 2 Smithers, B.C. 3 4 THE REGISTRAR: Order in court. In the Supreme Court of British 5 Columbia, this 11th day of April, 1990, Delgamuukw 6 versus Her Majesty the Queen at bar, my lord. 7 THE COURT: Jackson. 8 MR. JACKSON: My lord, you may recall that there were several 9 pages which were confused yesterday, they're page 430 10 and 431, and the confusion has been remedied, and if 11 they could be inserted into your binder. We haven't 12 hole-punched them I'm afraid. 13 THE COURT: Into Volume 2? 14 MR. JACKSON: Into Volume 2, yes, my lord. 15 THE COURT: All right. 16 MR. JACKSON: The next materials, my lord, we've provided you 17 with a third binder, we're now in Volume 3, and this 18 material is under the general head of the 19 jurisprudence of aboriginal rights. 20 And I would advise your lordship that in the 21 material which I'll be covering in the next few days, 22 while I will be reviewing a number of the leading 23 cases, principally with a view to teasing out of them 24 what we say are the fundamental bedrock principles of 25 the common law, many of these cases will be revisited 26 by my friends in later submissions dealing 27 specifically with issues of extinguishment and the 28 tests for extinguishment, also in terms of the limits 29 of provincial competence to deal with extinguishment, 30 diminishment, or adverse effect on aboriginal rights. 31 And so I'm just advising your lordship that when I 32 refer to a case it may be, as I say, revisited in a 33 particular context later in the submissions. 34 The first case I wish to bring to your lordship's 35 attention is the case of Mohegan Indians v. 36 Connecticut. And at page 1, my lord, we say that 37 although the jurisprudence of aboriginal rights is 38 usually traced to the decisions of the U.S. Supreme 39 Court in the first half of the nineteenth century, as 40 we have documented, the early colonial era had already 41 provided a substantial legacy of legal thought, 42 jurisprudential assumptions, and political experience 43 about the nature of the relationship between Indian 44 nations and the crown. As a matter of historical 45 record, the first formal litigation of aboriginal 46 rights was initiated over a century before the 47 Marshall Court was called upon to render judgment and 2419? Submissions by Mr. Jackson 1 was the first case to reach the Privy Council. 2 Mohegan Indians v. Connecticut has been referred to as 3 \"the greatest cause ever heard at the Council Board\", 4 and you'll note my comments, my lord, that in terms of 5 its length in adjudication this case bears, if it can 6 be believed, a resemblance to a speedy trial. In 7 fact, the case spanned almost 70 years from its 8 initiation to the final determination by the Privy 9 Council. 10 The materials are unpublished in the sense of 11 their being available in any formal report. The most 12 complete account, my lord, is found in the work of Mr. 13 Smith, Appeals to the Privy Council, which your 14 lordship can find in Volume 16 of our series 1, 15 articles and books, at tab 33. 16 THE COURT: 23? 17 MR. JACKSON: 33. 18 The case began in the early years of the 18th 19 century, in 1703, when Oweneco, the son of the great 20 Mohegan leader Uncas, petitioned the Queen in Council 21 claiming that colonial land grants by Connecticut 22 officials violated the Mohegans' aboriginal title. 23 And the dispute turned on the interpretation of a 24 series of treaties and agreements negotiated between 25 1640 and 1681. 26 At the bottom of the page I note that the Mohegans 27 maintained that the effect of the last of these grants 28 in 1681 was to grant the colony of Connecticut the 29 right of first purchase of the land. The colony of 30 Connecticut, however, thought otherwise, and began 31 parcelling up the land to settlers. And that was the 32 occasion about which the Mohegans petitioned the 33 crown. 34 The case was heard thereafter by several Royal 35 Commissions, the decision of the last of which was 36 affirmed by the Privy Council in 1773. It's the third 37 commission to which I would draw your lordship's 38 particular attention. It was convened in 1743 and the 39 numerous non-Indian tenants in possession of the 40 controverted lands were summoned to defend their 41 titles against the tribal title. The tenants disputed 42 the jurisdiction of the commission to hear the case, 43 claiming that such royal intervention violated the 44 Connecticut Royal Charter and the laws of the colony. 45 In effect, they argued that the Mohegans were subject 46 to Connecticut laws and government and the resolution 47 of their land claim should take place in colonial 24199 Submissions by Mr. Jackson 1 courts rather than through Royal Commissions. And we 2 say that this challenge presented for the first time 3 an imperially appointed commission the opportunity to 4 determine the legal status of Indian nations within 5 the British Empire. 6 And Commissioner Hoffmanden, writing for the 7 majority of the court in 1743, held, and I've set out 8 the text of his submission, and I'll just read to you 9 the first part of it: 10 11 \"The Indians, though living amongst the king's 12 subjects in these countries, are a separate 13 and distinct people from them, they are treated 14 with as such, they have a policy of their own, 15 they make peace and war with any nation of 16 Indians when they think fit, without control 17 from the English. It is apparent that the 18 crown looks upon them not as subjects, but as 19 a distinct people, for they are mentioned as 20 such throughout Queen Anne's and his present 21 Majesty's commissions by which we now sit. And 22 it is as plain, in my conception, that the 23 crown looks upon the Indians as having, the 24 property of the soil of these countries; and 25 that their lands are not, by His Majesty's 26 grant of particular limits of them for a 27 colony, thereby impropriated in his subject 28 'til they have made fair and honest purchases 29 of the natives...\" 30 31 And of course it's that particular statement, my 32 lord, which we bring to your particular attention. 33 At page 4 we say that it is our submission that 34 the judgment of the court of the commissioners is an 35 affirmation of the pre-existing proprietary rights of 36 the Mohegans; an acknowledgement that those rights can 37 only be acquired by the crown by purchase; and a 38 recognition of their jurisdiction over their affairs 39 as a distinct self-governing people notwithstanding a 40 treaty that, by consent, had brought them under the 41 protection of the crown. 42 The commissioners, having dealt then with the 43 merits of the case, having satisfied themselves that 44 they had jurisdiction, held in favour of the 45 land-owners on the -- the peoples who received the 46 grants from Connecticut, on the basis that the cession 47 by the Indians had in fact ceded up their lands, and 24200 Submissions by Mr. Jackson 1 it was that decision which was affirmed by the Privy 2 Council in 1773. 3 I wish now, my lord, to turn to the main body of 4 this material which we have referred to as the 5 Marshall decisions, which we say are the foundation 6 cases for the common law doctrine of aboriginal 7 rights. And it is our submission that the decisions 8 of the U.S. Supreme Court in the first part of the 9 19th century, which we have generally referred to as 10 the Marshall decisions, building upon both British 11 colonial and American state practice, affirm common 12 law principles upon which the relative rights of 13 ownership and jurisdiction of colonial governments and 14 Indian nations are to be determined. 15 And at page 5 to 7 I have set out those 16 principles. And they are, first, in relation to 17 rights of ownership -- 18 THE COURT: Are these different from the set of principles that 19 were in the very beginning of Volume 1? 20 MR. JACKSON: No, my lord, this is a restatement. If your 21 lordship has those, I'm happy to leave them with 22 you -- 2 3 THE COURT: Yes. 2 4 MR. JACKSON: — and move to page 7. 25 At the bottom of page 7, my lord, we say that the 26 significance of the Marshall decisions in setting out 27 the common law foundations of aboriginal rights has 28 been well recognized in the Canadian case law. And 29 that significance is perhaps best expressed in the 30 judgment of Mr. Justice Strong in his judgment in St. 31 Catherine's Milling where his lordship said: 32 33 \"The American authorities, to which reference 34 has already been made consist...of several 35 decisions of the Supreme Court of the United 36 States, from which 3, Johnson v. Mcintosh, 37 Worcester v. the State of Georgia and Mitchell 38 v. United States, may be selected as leading 39 cases . \" 40 41 And I will be dealing with those three cases in 42 some detail. 43 \"The value and importance of these authorities 44 is not merely that they show that the same 45 doctrine as that already propounded regarding 46 the title of the Indians to unsurrendered lands 47 prevails in the United States, but, what is of 24201 Submissions by Mr. Jackson 1 vastly greater importance, they without 2 exception refer its origin to a date anterior 3 to the revolution and recognize it as a 4 continuance of the principles of law or policy 5 as to Indian titles then established by the 6 British government, and therefore identical 7 with those which have also continued to be 8 recognized and applied in British North 9 America.\" 10 11 And my lord, that statement in many ways explains 12 why the plaintiffs have taken your lordship on this 13 rather long historical train to the very foundation of 14 colonial establishments in North America, in order to 15 show the continuity in what we say are the fundamental 16 principles, a continuity which was not ended by the 17 American Revolution, nor was it disjointed and 18 bifurcated by the establishment of the United States 19 as distinct from British territories of North America. 20 A second preliminary point of considerable 21 importance is that the judgments of the Marshall 22 court, delivered over a period of 25 years, bear 23 witness to an evolution of the court's thinking on 24 aboriginal rights. Enigmatic statements made in some 25 of the earlier judgments are subsequently clarified, 26 and in some cases, significantly modified in later 27 judgments. Not surprisingly, in approaching extremely 28 complex issues of the legal relationship between 29 colonial and American governments and Indian nations, 30 the court felt it necessary to proceed cautiously. In 31 the early decades of the 19th century, as in the last 32 decades of the 20th century, legal and constitutional 33 issues involving aboriginal rights were deeply meshed 34 with political considerations leading the court to 35 proceed cautiously at first. But we say, my lord, 36 ultimately, in the great case of Worcester v. Georgia, 37 in the face of political intransigence, the court 38 confirmed the authority of the law in the definition 39 and affirmation of aboriginal rights. 40 We say, my lord, that the Canadian case law to 41 date has tended to cite from the decisions of the 42 Marshall court in a way which does not do justice to 43 the evolutionary nature of the court's thinking. And 44 this — 45 THE COURT: You mean the American court's thinking? 46 MR. JACKSON: The American court's thinking. And that is 47 reflected, my lord, in a number of the judgments to 24202 Submissions by Mr. Jackson 1 which we're referring you in which judges, who take 2 very different positions on the nature of aboriginal 3 rights, trace a common heritage to the Marshall 4 decisions. And that's perhaps best reflected in the 5 judgments of Mr. Justice Judson and the judgment of 6 Mr. Justice Hall in Calder, both of whom rely upon the 7 Marshall decision. 8 This is not entirely the fault of judges, my lord. 9 Scholars for many years in looking at the Marshall 10 cases, particularly Canadian scholars, have tended to 11 see the Marshall cases as if they were 12 interchangeable. And, indeed, in one of the leading 13 texts, \"Native Rights in Canada\", in its second 14 edition, the cases are cited, as it were, 15 indiscriminately. And what we will endeavour to show, 16 my lord, is that the court's thinking evolved that one 17 cannot take a passage from Johnson v. Mcintosh, and 18 then take a passage from Worcester v. Georgia and, as 19 it were, interchange them as being the position of the 20 Marshall court. 21 We also at page 9 make the point, my lord, that 22 this is not a problem also limited to the Canadian 23 courts. In our analysis of the later decisions of the 24 U.S. Supreme Court, we will show how in fact the 25 courts have in some cases ridden what we say is 26 roughshod over these fundamental principles. And I 27 will be spending some considerable time looking at the 28 case in 1955 of Tee-Hit-Ton Indians v. United States, 29 where we say this revision of fundamental principles 30 reached its nadir. 31 On page 10, my lord, I make the point, and again 32 it's of significance, that the evolutionary nature of 33 the Marshall court's thinking has its counterpart in 34 the contemporary Canadian jurisprudence. And starting 35 with the Calder case, the last 20 years have seen 36 Canadian courts grappling with issues of aboriginal 37 rights relating to their nature and content, their 38 source, the criteria for their proof, and their 39 continued existence or extinguishment. And we say 40 that the modern era of Canadian jurisprudence is also 41 in an evolutionary phase. 42 That is a point, my lord, which, using the Court 43 of Appeal, very recently acknowledged in a judgment to 44 which I will be referring your lordship later. 45 It is our submission that with the benefit of an 46 evidentiary basis unprecedented in the jurisprudence 47 of aboriginal rights and with the benefit of a more 24203 Submissions by Mr. Jackson 1 extensive historical and legal analysis than that 2 hitherto laid before any Canadian court, your lordship 3 is in a position to render a judgment which 4 re-establishes and affirms those fundamental 5 principles which are essential, we say, to a just 6 resolution of the issues before this court. 7 As part of the legal and historical matrix of the 8 Marshall court decisions, it is necessary to track 9 some of the legal developments in the United States in 10 the years after the revolution, and the extent to 11 which they parallel the implementation of the Royal 12 Proclamation in the post-1763 period in what are now 13 Canadian territories. 14 And at page 10 to 12 I track some of that history 15 in a very abbreviated form, particularly the great 16 lesson learned by the Americans from the Imperial 17 experience, as to the need to place in a central 18 repository jurisdiction over the dealing with Indian 19 Affairs. And that was reflected in an ambiguous form 20 in the original articles of Confederation and was 21 resolved unambiguously in the terms of the American 22 Constitution where there was lodged with the federal 23 government of the United States the exclusive power of 24 treaty making and also of conducting or regulating 25 commerce with the Indian tribes. And so the American 26 Constitution, even though its provisions relating to 27 exclusive federal authority read differently in terms 28 of their language from section 9124 of our 29 Constitution, the underlying principle of central 30 authority was affirmed and has been and has remained a 31 central part of the American jurisprudence in the same 32 way as remained a central part of the Canadian 33 jurisprudence. 34 At page 12, my lord, the principle of consent, 35 which of course we have said is the centre piece of 36 the provisions, the Indian provisions, of the Royal 37 Proclamation, was early reflected in American law in 38 the North-west Territory Ordinance of 1789 which 39 stated: 40 41 \"The utmost good faith shall always be observed 42 towards the Indians; their land and property 43 shall never be taken from them without their 44 consent; and in their property, rights and 45 liberty, they shall never be invaded or 46 disturbed, unless in just and lawful wars 47 authorized by Congress.\" 24204 Submissions by Mr. Jackson 1 2 And, my lord, I think you can see in that language 3 certain strains of the language of Vitoria in his 4 classical lectures at Salamanca and also in the papal 5 bull, sublimis deus, to which I referred your lordship 6 last week. You also of course find in there the 7 policy and principles underlying the Royal 8 Proclamation. 9 At the bottom of page 12, soon after the adoption 10 of its new constitution, the First Congress of the 11 United States acted quickly in the exercise of its 12 exclusive federal jurisdiction to impose unequivocal 13 and universally applicable statutory restraints on 14 alienation of Indian land. 15 And at the top of page 13. 16 THE COURT: What does the American Constitution say about Indian 17 rights? 18 MR. JACKSON: It says, my lord, the provisions deal specifically 19 with the exclusive federal power to make treaties and 20 also give the federal government the exclusive power 21 to regulate commerce with the Indian tribes. 22 THE COURT: All right. 23 MR. JACKSON: Those two provisions have been read by the U.S. 24 Supreme Court to confer exclusive power in relation to 25 the regulation not just of commerce, but of all other 26 matters relating to Indian Affairs, including the 27 question of extinguishment of aboriginal title. And 28 that's a point which becomes clear in the Marshall 29 cases. I have set out the particular provisions of 30 the U.S. Constitution, my lord. I will endeavour 31 that -- they should have been included in our list of 32 statutory materials. I'll give you the reference to 33 that. 34 At the top of page 13, the first federal 35 legislation is referred to. Mr. Rush has already 36 dealt with these provisions. It, as you will see, 37 reflects the same idea as the Proclamation: 38 39 \"That no sale of lands made by any Indians, or 40 any nation or tribe of Indians within the 41 United States, shall be valid to any person or 42 persons, or to any state, whether having the 43 right of pre-emption to such lands or not, 44 unless the same shall be made and duly executed 45 at some public treaty, held under the authority 46 of the United States.\" 47 24205 Submissions by Mr. Jackson 1 And at page 13 I also include the comments of 2 Henry Knox, who was President Washington's secretary 3 of war, who was acknowledged as having been the 4 architect of the Trade and Nonintercourse Act in which 5 he articulates the relationship of Congressional 6 policy in that act to the policy and principles 7 embodied in the Royal Proclamation. 8 9 \"The Indians being the prior occupants, possess 10 the right of the soil. It cannot be taken from 11 them unless by their free consent, or by the 12 right of conquest in case of a just war. To 13 dispossess them on any other principle, would 14 be a gross violation of the fundamental laws of 15 nature, and of that distributive justice which 16 is the glory of a nation.\" 17 18 THE COURT: Is Mr. Knox the author of that statement? 19 MR. JACKSON: Yes, my lord. 2 0 THE COURT: Yes. Thank you. 21 MR. JACKSON: A number of important legal issues have emerged in 22 recent years in litigation originating in the eastern 23 United States in which Indian tribes have challenged 24 the validity of land transfers executed in a number of 25 the eastern states, on the basis that the lands 26 involved were ceded by treaties made in the 1790's 27 with the states which had never been ratified by 28 federal treaty in clear violation of the Trade and 29 Intercourse Act. 30 And some of those issues, my lord, are ones which 31 are specific to American law and procedure, others 32 however have direct relevance to the issues before 33 this court. Already Mr. Rush has referred your 34 lordship to the second Mohegans v. Connecticut case 35 when he laid before you the arguments which were 36 accepted in that court as to why the statutory 37 restriction on private sales of land applied not 38 simply to the states west of the Mississippi, but also 39 to the old original states. The reverse argument, as 40 it were, of what was said in this case, that the 41 Proclamation has a geographical delimitation, that 42 argument was rejected by the U.S. courts in relation 43 to the Trade and Intercourse Act, and of course we are 44 asking your lordship to reject a similar geographical 45 delimitation in relation to the Royal Proclamation. 46 I want to now turn, my lord, to the first of the 47 Marshall decisions. The case of Fletcher v. Peck, 24206 Submissions by Mr. Jackson 1 which came before the Marshall court in 1810. One of 2 the things to note about Fletcher v. Peck, it's a 3 point which I will draw your lordship's attention also 4 in relation to Johnson v. Mcintosh, and to the first 5 case we'll be looking at in the Canadian jurisprudence 6 St. Catherine's Milling, is that these cases were 7 litigated in the absence of direct Indian 8 participation. The issues arose as a result of 9 competing claims by other individuals either claiming 10 through an Indian grant or by virtue of an Indian 11 treaty, and the Indians themselves were not at the bar 12 of the court pleading their case. 13 The central or one of the central issues in 14 Fletcher v. Peck was whether the state of Georgia had 15 the power to convey a property interest in certain 16 western lands that were in the actual possession of 17 the Indians. In 1795 the Georgia Legislature conveyed 18 the State's interest in these western lands in fee 19 simple to the Georgia company. Allegations of bribery 20 and other corruption resulted in the voiding of the 21 contract by a subsequent legislature. In spite of 22 this action, the interest in the lands successfully 23 changed hands, culminating in a conveyance from Peck 24 to Fletcher. 25 And legal scholars who have scanned the record 26 have come to the conclusion that this transaction and 27 the litigation that it produced were feigned in the 28 sense that they were -- the conveyance was drawn in 29 such a way as to require the court to clarify the 30 validity of title and who had the right to grant 31 patents in these western lands in a situation where 32 that clarification had not been forthcoming through 33 legislative acts. 34 The provisions of the contract of sale and the 35 pleadings of the parties were therefore drawn to 36 litigate all possible issues that lent ambiguity in 37 land titles under the original Georgia conveyance. 38 And, thus, one of the recitals, one of the provisions 39 of the deed, Peck in his deed to Fletcher covenanted 40 that \"the State of Georgia aforesaid was, at the time 41 of the passing of the Act of the Legislature 42 thereof... legally seised in fee of the soil thereof, 43 subject only to the extinguishment of part of the 44 Indian title thereon\". 45 And the parties in their arguments raised many of 46 the issues which continue to be raised and which are 47 before your lordship today as to the nature of the 24207 Submissions by Mr. Jackson 1 Indian title, the nature of the Indian interest, and 2 its relationship to the interest of the crown. 3 And, my lord, that was a complex difficult problem 4 in 1810. It remains a complex and difficult problem 5 180 years later in 1990. And one of the purposes of 6 this review of the jurisprudence, my lord, is to give 7 your lordship the basis upon which your lordship can 8 determine what that relationship is. As you'll see, 9 many courts have grappled with it. The results are 10 not of one piece. We say that the relationship is one 11 which is dependent not only on law, it's dependent on 12 evidence and it's precisely because of that that we 13 have tried to place before your lordship all the 14 material necessary for a principle adjudication of 15 what was and remains an extremely complex issue. 16 Arguing for the land companies and for Mr. Peck, 17 John Quincy Adams, who was to become president of the 18 United States in the 1820's, while accepting the 19 proposition -- and I should say, my lord, in these 20 Marshall cases the lawyers acting on all sides read 21 something of a litany of who's who in America in the 22 early 19th century, and the critical and central role 23 played by lawyers in both the legal and political 24 firmament of the United States. 25 THE COURT: As in this case. 2 6 MR. JACKSON: Well — 27 Arguing for the land companies and for Mr. Peck, 28 John Quincy Adams, while accepting the proposition 29 that the Indian tribes were independent nations, 30 denied that the Indian title constituted a property 31 right such as to defeat a grant in fee simple by 32 Georgia. 33 And Mr. Adams inquired in his submissions: 34 35 \"What is the Indian title? It is a mere 36 occupancy for the purpose of hunting. It is 37 not like our tenures; they have no idea of a 38 title to the soil itself. It is overrun by 39 them, rather than inhabited. It is not a true 40 and legal possession...\" 41 42 I think you'll find the similar sentiments, the 43 idea that Indians don't have rights, they have a sort 44 of territorial roaming over the land, is reflected in 45 some ways in the view taken by Chief Justice Davey in 46 Calder, to which I'll be returning, in other words, 47 this concession has a train of history. The idea of 2420? Submissions by Mr. Jackson 1 Indian rights have having a certain limited quality 2 differently from real ownership, one which goes back a 3 long way, and of course we say it's one which goes 4 back to the original debate in Supulveda and Las Casas 5 in 1550. 6 7 \"It is not a true and legal possession.\" 8 9 And he quotes \"Vattel, Montesquieu\" and the 10 \"Smith's Wealth of Nations\". 11 12 \"It is a right not to be transferred but 13 extinguished. It is a right regulated by 14 treaties, not by deeds of conveyance. It 15 depends upon the law of nations, not upon 16 municipal right.\" 17 18 Of course Mr. Adams does not explain how the many 19 deeds to which I've taken your lordship came to exist 20 but this, of course, was advocacy. 21 My lord, at page 16 I make the point that Mr. 22 Adams, in relying upon Vattel, was relying upon a 23 cultural definition of land tenure which had become 24 prevalent in the law of nations in the 19th century 25 where everything was defined by reference to European 26 institutions. And thus the writings of Vattel 27 describe Indians as shiftless bands of hunting peoples 28 roaming over the land, and in many ways the theories 29 of international law in the 19th century, not entirely 30 unlike theories of international law in the early days 31 of colonization, were in fact many ways 32 rationalizations of European aspirations and imperial 33 designs on lands, not only in North America, but of 34 course lands in other parts of the world, particularly 35 Africa. 36 This idea that somehow tribalism, the original 37 possession of aboriginal peoples, was not to be 38 accorded the true stature of the status of what 39 Europeans defined as ownership, was a theme which John 40 Quincy Adams had already elaborated on in 1802, and in 41 his famous \"Oration on the Anniversary Festival of the 42 Pilgrims\", he developed this theme: 43 44 \"The Indian right of possession itself stands, 45 with regard to the greatest part of the 46 country, upon a questionable foundation. Their 47 cultivated fields, their constructed 24209 Submissions by Mr. Jackson 1 habitations, the space of ample sufficiency for 2 their subsistence, and whatever they had 3 annexed to themselves by personal labour, was 4 undoubtedly by the laws of nature theirs. But 5 what is the right of a huntsman...shall the 6 lordly savage not only disdain the virtues and 7 enjoyments of civilization himself, but shall 8 he control the civilization of a world? Shall 9 he forbid the wilderness to blossom like the 10 rose? Shall he forbid the oaks of the forest 11 to fall before the ax of industry and rise 12 again transformed into the habitations of ease 13 and elegance.\" 14 15 My lord, Dr. Daly in his opinion report referred 16 to the oration of John Quincy Adams. He linked what 17 he referred to as its \"common ethnocentric view of 18 non-agricultural land tenure\" to statements made by 19 Joseph Trutch in 1865 where, as Chief Commissioner of 20 Lands for British Columbia, Mr. Trutch expressed a 21 very similar sentiment: 22 23 \"The claims of Indians over tracts of lands, on 24 which they assume to exercise ownership, but of 25 which they make no real use, operate very 26 materially to prevent settlement and 27 cultivation.\" 28 29 And yesterday, my lord, I referred you to 30 dissimilar expressions of opinion made by colonial 31 officials in the Maritimes as justifying the 32 dispossession of Indians of the Mickmacks of even 33 those parts of the reserves which had been granted to 34 them. 35 At page 18, my lord -- 36 MR. WILLMS: My lord, I should point out that that was the 37 portion of Mr. Daly's evidence that was objected to as 38 being a legal analysis, that section of his report. 39 MR. JACKSON: Well, my lord, it wasn't used by Mr. Daly and we 40 don't use it as legal analysis. It is to demonstrate 41 the extent to which a particular world view can 42 transform Indians rights to something which, in the 43 provincial government's position, transformed them to 44 matters of sovereign grace which exist at the pleasure 45 of the crown. 46 At page 18, my lord, I note that counsel for Peck, 47 Mr. Adams, argued that the rights of the crown and its 24210 Submissions by Mr. Jackson 1 successor state, the state of Georgia, in the land was 2 one of absolute property, while Indian title gave no 3 right, but only a privilege. 4 5 \"The rights of governments are allodial. The 6 Crown of Great Britain granted lands to 7 individuals, even while the Indian claim 8 existed, and there has never been a question 9 respecting the validity of such grants. When 10 that claim was extinguished, the grantee was 11 always admitted to have acquired a complete 12 title. Indian title is a mere privilege which 13 does not affect the allodial right.\" 14 15 And in that passage, my lord, the province can no 16 doubt trace its -- one of the sources of its position. 17 That's why I say this case is significant to the 18 extent these issues were joined on the very first 19 occasion in which the U.S. Supreme Court was required 20 to adjudicate this issue. 21 Counsel for the plaintiff Fletcher, on the other 22 hand, argued that Georgia could not grant the fee 23 simple to the lands at issue for it had never been 24 seised in fee of them itself. \"They belonged to the 25 Crown of Great Britain, and at the revolution devolved 26 upon the United States, and not upon the State of 27 Georgia.\" 28 My lord, that in many ways is the issue which of 29 course was before the court in St. Catherine's, the 30 question of where the ultimate title lay, was it with 31 the federal government, or was it with the provincial 32 government at Confederation? Again you see how these 33 issues have a -- their source in the American cases. 34 The plaintiff later elaborated upon the nature of 35 the crown's interest. \"It was only a right of 36 pre-emption which the Crown had.\" 37 Now, the decision of the Supreme Court in 38 Fletcher v. Peck is a very long decision and it dealt 39 with, for the most part, all the other issues which 40 were the subject of the litigation. In fact, the 41 court reserves for almost the very last paragraph of 42 its judgment a statement in relation to aboriginal 43 rights, which is set out at page 19. I say there on 44 the principal issue before the court, the judgment of 45 the court was in favour of Georgia on the basis that 46 the lands in question, under the terms of various 47 crown grants, Proclamations and treaties, lay within 24211 Submissions by Mr. Jackson 1 Georgia's state boundaries and were therefore within 2 her power to alienate -- in some ways paralleling the 3 position taken by St. Catherine's Milling that the 4 underlying title lay with the province and not the 5 federal government. 6 In relation to the issue of what were the rights 7 of the aboriginal peoples and their relationship to 8 the underlying title of the crown, Chief Justice 9 Marshall said: 10 11 \"Some difficulty was produced by the language of 12 the covenant and of the pleadings. It was 13 doubted whether a state can be seised in fee of 14 lands, subject to the Indian title, and whether 15 a decision that they were seised in fee, might 16 not be construed to amount to a decision that 17 their grantee might maintain an ejectment for 18 them, notwithstanding that title.\" 19 20 And this is what the court said in a very 21 elliptical statement: 22 23 \"The majority of the court is of the opinion 24 that the nature of the Indian title, which is 25 certainly to be respected by all courts, until 26 it be legitimately extinguished, is not such as 27 to be absolutely repugnant to seisin in fee.\" 28 29 As I say, my lord, the statement is less than 30 self-evident, and Chief Justice Marshall had occasion 31 to elaborate at considerable length upon what exactly 32 is embedded in that compressed statement in Johnson 33 v. Mcintosh and in Worcester v. Georgia. 34 THE COURT: I don't even know what it means \"It is not such as 35 to be absolutely repugnant to seisin in fee\". Does he 36 mean that you could have both, or does he mean that 37 Indian title can be equated or is not repugnant itself 38 to seisin in fee? 39 MR. JACKSON: My lord, scholars have pondered over exactly what 40 he meant, and if those were the last statements of 41 Chief Justice Marshall, I expect we'll still be 42 wondering what he meant. 4 3 THE COURT: Yes. 44 MR. JACKSON: It is our submission that what Chief Justice 45 Marshall was saying there, was that the titles exist 46 contemporaneously. 47 THE COURT: You mean you can have a fee and an Indian title? 24212 Submissions by Mr. Jackson 1 MR. JACKSON: Yes, my lord. 2 THE COURT: That's what you say? 3 MR. JACKSON: That's what we say, that in fact there is the 4 coincidence of aboriginal title and crown title. What 5 also we say, and it's explained at the bottom of page 6 19, is that under Anglo-American common law, the owner 7 of a fee simple interest in land could utilize legal 8 procedures, such as the action for ejectment, to gain 9 actual possession. And, my lord, we say that the 10 passage we cite from the Marshall decision quite 11 clearly shows that the court was not prepared to 12 countenance the grantee of a title from the state to 13 in fact eject the Indians from lands until their title 14 had been lawfully extinguished. That, of course, 15 would have subverted the principle that only the 16 United States can extinguish aboriginal title and that 17 was beyond the powers of the state of Georgia as 18 reflected in the Nonintercourse Act. 19 And so what the court was saying was that these 20 rights are entitled to legal recognition. The crown, 21 however, in the state of Georgia has a title, the 22 Indians also have a title, which enables them to 23 retain a legal right to possession. Now, my lord, all 24 of that you'll see is drawn out and made explicit in 25 subsequent judgments. 26 The dissenting judgment of Mr. Justice Johnson in 27 this case focused greater scrutiny upon the relative 28 relationship between the crown rights and the 29 aboriginal rights. And he took the position that the 30 tribal title was in fact incompatible with fee simple 31 ownership. And at page 21, my lord, Justice Johnson 32 sets out his views of the relationship between 33 aboriginal title and crown title. He says: 34 35 \"Can, then, one nation be said to be seised of a 36 fee-simple in lands, the right of soil of which 37 is in another nation? It is awkward to apply 38 the technical idea of a fee simple to the 39 interest of a nation, but I must consider an 40 absolute right of soil as an interest to them 41 and their heirs. A fee-simple estate may be 42 held in reversion, but our law will not admit 43 the idea of its being limited after a 44 fee-simple. In fact, if the Indian nations be 45 the absolute proprietors of their soil, no 46 other nation can be said to have the same 47 interest in it. What, then, practically, is 24213 Submissions by Mr. Jackson 1 the interest of the states in the soil of the 2 Indians within their boundaries? Unaffected 3 by particular treaties, it is nothing more 4 than what was assumed at the first settlement 5 of the country, to wit, a right of conquest or 6 of purchase, exclusively of all competitors 7 within certain defined limits. All the 8 restrictions upon the right of soil in the 9 Indians, amount only to an exclusion of all 10 competitors from their markets and the 11 limitation upon their sovereignty amounts to 12 the right of governing every person within 13 their limits except themselves.\" 14 15 The judgment of Justice Johnson we say, my lord, 16 makes it clear that the concept of Indian 17 proprietorship of the soil is not the same thing as an 18 estate in land, as its commonly known in English law, 19 but embraces issues of what we say are jurisdiction. 20 However, the nature of the interest is inseparably 21 wedded to the question of land tenure. And in his 22 judgment Justice Johnson recognized the full scope of 23 aboriginal rights as encompassing both concepts of 24 ownership and jurisdiction as established and 25 memorialized through the treaty process. 26 We'll come back to Justice Johnson's judgment 27 because in certain important elements, my lord, it 28 becomes the majority view of the Supreme Court in 29 Worcester v. Georgia, although again there are 30 modifications. 31 Before dealing with the second case, Johnson v. 32 Mcintosh, we refer your lordship to an opinion of the 33 Attorney-General of the United States in 1821, which 34 is referred to as the Seneca Lands opinion, which we 35 say is a further link in the conceptual legal chain of 36 aboriginal title. And the Attorney-General speaking, 37 as it were, ex cathedra said in 1821: 38 39 \"So long as a tribe exists and remains in 40 possession of its land, its title and 41 possession are sovereign and 42 exclusive... although the indian title continues 43 only during their possession, yet that 44 possession has been always held sacred, and 45 can never be disturbed but by their consent. 46 47 And so again you have the affirmation of the 24214 Submissions by Mr. Jackson 1 consent principle, and we say that this is reflected 2 in judgments of the U.S. Supreme Court afterwards. We 3 don't hold up that opinion, my lord, as legal 4 authority binding on an American court, let alone 5 binding on your lordship, but simply as part of a 6 chain of historical continuity. 7 And on than point, my lord, and it's one which I 8 will come back to, I want to make it clear that in 9 referring your lordship to these American cases and 10 indeed in referring your lordship to all the American 11 cases, which in the course of our submissions we will 12 be looking at, we are not asking your lordship to 13 Americanize Canadian common law. We are seeking to 14 demonstrate that in the American cases there are 15 fundamental principles which, as Mr. Justice Strong 16 stated in St. Catherine's Milling, trace a common 17 origin, and are, as it were, the heartbeat of the 18 common law. And it's for that reason that we refer to 19 the American cases. 20 And I wish now to turn to Johnson v. Mcintosh 21 decided by the Supreme Court in 1823. Johnson v. 22 Mcintosh is probably the case which has been most 23 frequently cited in subsequent cases, not only in 24 Canada, but in the United States and in other parts of 25 the Commonwealth. In the case of the Crown v. White 26 and Bob, Mr. Justice Norris referred to it as one of 27 particular importance because: 28 29 \"It was delivered at an early stage of 30 exploration of this continent when controversy 31 as to those rights was first becoming of 32 importance.\" 33 34 That, of course, is aboriginal rights. 35 36 \"Further...it is to be remembered that it was 37 delivered only five years after the convention 38 of 1818 between Great Britain and the United 39 States ... providing that the north-west coast of 40 America should be free and open for a term of 41 ten years to the vessels, citizens, and 42 subjects of both powers, in order to avoid 43 disputes between the powers. The rights of 44 Indians were naturally an incident of that 45 implementation of a common policy which was 46 perforce effective as applying to what is now 47 Vancouver Island and the territory of 24215 Submissions by Mr. Jackson 1 Washington and Oregon, all of which were then 2 Hudson's Bay territories. For these reasons 3 and because the judgment in Johnson v. Mcintosh 4 was written at a time of active exploration and 5 exploitation of the west by the Americans, it 6 is of particular importance.\" 7 8 And in Calder, Johnson v. Mcintosh was quoted as 9 cited by both Mr. Justice Judson and Mr. Justice Hall, 10 Mr. Justice Hall characterizing the case as \"the locus 11 classicus of the principles governing aboriginal 12 title\". 13 My lord, the point I wish to make at this 14 juncture, it's the one which is set out at the bottom 15 of page 23 and 24, is that even though Johnson v. 16 Mcintosh has been hailed in these clarion terms, it 17 must be remembered, and as we will demonstrate to your 18 lordship, that some of the statements in Johnson v. 19 Mcintosh are subsequently repudiated and substantially 20 modified in Worcester v. Georgia. And it has been 21 said by some scholars that in many ways Johnson v. 22 Mcintosh is one of the most misunderstood cases in 23 Anglo-American law. 24 And you'll see that in subsequent decisions, my 25 lord, courts -- and the case of Tee-Hit-Ton is 26 probably the clearest example of this, a passage from 27 one paragraph is plucked out of the air, juxtaposed 28 with the passage from another, and made into a shape 29 which we say bears very little relationship to the 30 original statements of Chief Justice Marshall. 31 Before getting to Johnson vs. Mcintosh and the 32 principles which Chief Justice Marshall set out 33 therein, it's necessary to have some background to the 34 case, and I've set that out at the bottom of page 24. 35 The controversy concerned tracts of lands that lay 36 within the Indian country created by the Royal 37 Proclamation and within the boundaries of the colony 38 of Virginia established by its Royal Charter of 1609. 39 In 1773 and 1775 a group of land speculators had 40 purchased these lands directly from the Illinois and 41 Pinkeshaw nations. After the revolution, Virginia 42 ceded its interest in the western lands to the United 43 States and the Illinois and Pinkeshaw Indians 44 concluded a treaty with the United States in which 45 they ceded to the U.S. the lands previously granted to 46 the land speculators. The United States sold part of 47 the ceded lands to the defendant Mcintosh, who was 24216 Submissions by Mr. Jackson 1 sued in an action for ejectment by the plaintiff, 2 Johnson, who was a successor-in-title to one of the 3 original 1775 purchasers. 4 Johnson v. Mcintosh is a case therefore in which 5 the Indian nations were not directly represented, 6 although in essence the dispute was one in which both 7 parties claimed rights derived from the same Indian 8 source: the one party claiming title to lands under a 9 right of purchase from the Indians directly, that's 10 the 1775 grants, the other party claiming under a 11 grant resulting from a formal treaty of cession 12 between the United States and the Indian nations. As 13 defined by Chief Justice Marshall, \"the inquiry, 14 therefore, is, in a great measure, confined to the 15 power of Indians to give, and of private individuals 16 to receive, a title which can be sustained in the 17 courts of this country\". 18 Johnson v. Mcintosh, my lord, is set out in Volume 19 11, tab 22. These cases, my lord, if your lordship 20 would look at the original report, you'll see the 21 print is tiny. I have set out in the body of my text, 22 as I have for all the cases we rely upon, the text and 23 again, subject to your lordship's wishes, I would use 24 the text here, both to save your and my friend's 25 eyesight. They no doubt, to the extent they feel that 26 I'm taking the material out of context, can make those 27 submissions to you. It is certainly my position that 28 I have not done so and, as I say, in going to the 29 material in my text, rather than the original 30 judgment, I'm seeking both to expedite matters and 31 save considerable strain on all our eyes. 32 My lord, in relation to this particular central 33 inquiry, as identified by Chief Justice Marshall on 34 the power of the Indians to give and of private 35 individuals to receive a title which can be sustained 36 in the courts of this country, the court held that the 37 title of the original land speculators could not be 38 sustained in the courts of the United States. And one 39 of the principal reasons for that was that, under the 40 Royal Proclamation, British subjects were forbidden to 41 purchase lands from the Indians except with the prior 42 permission of the crown, and in this case, that 43 permission had never been granted nor had the purchase 44 been ratified by the crown. 45 And Mr. Rush has already taken you to certain 46 passages in Johnson v. Mcintosh where Chief Justice 47 Marshall set out his understanding of the legal affect 24217 Submissions by Mr. Jackson 1 of the Proclamation, and that was one of the primary 2 bases upon which the decision was rendered. 3 A second ground upon which the court said the 4 issue had to be determined in favour of the grantee 5 from the United States is one which has been hardly 6 recognized at all in subsequent cases. And it relates 7 to the court's recognition of the Indian nations' 8 right to determine their own land tenures. And I've 9 set out at page 26 the particular passage from Chief 10 Justice Marshall's decision which deals with this. He 11 says: 12 13 \"The title of the crown, whatever it might be, 14 could be acquired only by a conveyance from the 15 crown. If an individual might extinguish the 16 Indian title for his own benefit, in other 17 words, might purchase it, still he could 18 acquire only that title. Admitting their power 19 to change their laws or usages, so far as to 20 allow an individual to separate a portion of 21 their lands from common stock, and hold it in 22 severality, still it is a part of their 23 territory, and is held under them by a title 24 dependent on their laws. The grant derives its 25 efficacy from their will; and, if they choose 26 to resume it, and make a different disposition 27 of the land, the courts of the United States 28 cannot interpose for the protection of the 29 title.\" 30 31 And, my lord, we say that in this passage the 32 Marshall court recognized that the rights adhering to 33 the Indian title derived from a distinct tenurial 34 system based upon original Indian jurisdiction. What 35 the court, in effect, was saying in this passage is 36 that the Indian nations, acting within their own legal 37 prerogatives, had granted rights to land within their 38 territory. At a later date they had made a cession of 39 those same lands to the United States without a 40 reservation of the prior rights, therefore, the prior 41 rights were annulled. 42 As I say, my lord, that proposition which we say 43 is a recognition by Chief Justice Marshall of a 44 pre-existing aboriginal system of ownership is one 45 which has not been cited for that proposition in 46 subsequent cases, but we do say that when we get to 47 Worcester v. Georgia your lordship will see how that 2421? Submissions by Mr. Jackson 1 particular proposition is made into a much more -- a 2 much fuller statement about the pre-existing rights of 3 Indian nations to jurisdiction to internal 4 self-government, including determining the shape of 5 their land tenure. 6 THE COURT: Well, how do you apply that to this case where the 7 plaintiffs' case has been that the houses rather than 8 the people, as it were, have title? 9 MR. JACKSON: Well, my lord, Johnson v. Mcintosh did not go into 10 the basis upon which the particular land tenure system 11 of the Illinois Indians was constructed, but what that 12 proposition suggests is that in understanding the land 13 aboriginal rights, one looks at the pre-existing 14 system, and to the extent the pre-existing system is 15 one which organizes rights of ownership and 16 jurisdiction as adhering in houses, then that is the 17 system to which the common law gives effect. 18 THE COURT: So you would equate for this purpose the individual 19 houses to the Pinkeshaws? 2 0 MR. JACKSON: Yes, my lord. 21 THE COURT: Yes. All right. 22 MR. JACKSON: There was no evidence in Johnson v. Mcintosh as to 23 the precise nature, so we don't know whether the 24 Pinkeshaws were organized as the Iroquois or as 25 according to the Gitksan or what the shape of their 26 distinctive system was. 2 7 THE COURT: Thank you. 28 MR. JACKSON: What Johnson v. Mcintosh is saying there, Chief 29 Justice Marshall is saying there, is they had power to 30 make grants, they had power to remake grants, without 31 reserving the prior ones. 32 The decision, however, in Johnson v. Mcintosh, the 33 judgment, ranges far beyond the resolution of the 34 narrow issue presented to the court, and it contains 35 an elaborate analysis of the rights of European 36 colonial governments in North America and their 37 relationship to the rights of aboriginal peoples. And 38 it's this analysis which is the central part of its 39 subsequent citation in later cases. And it's this 40 particular passage, my lord, which has to be placed in 41 the context also of what Chief Justice Marshall said 42 on the same subject a decade later in the Cherokee 43 cases. 44 And I've set out at page 27 the passage which I 45 should have committed to memory by now, but I haven't. 46 I'll read it to your lordship. 47 24219 Submissions by Mr. Jackson 1 \"On the discovery of this immense continent, the 2 great nations of Europe were eager to 3 appropriate to themselves so much of it as they 4 could respectively acquire. Its vast extent 5 offered an ample field to the ambition and 6 enterprise of all; and the character and 7 religion of its inhabitants afforded an apology 8 for considering them as a people over whom the 9 superior genius of Europe might claim an 10 ascendancy... but, as they were all in pursuit 11 of nearly the same object, it was necessary, in 12 order to avoid conflicting settlements, and 13 consequent war with each other, to establish a 14 principle which all should acknowledge as the 15 law by which the right of acquisition, which 16 they all asserted, should be regulated as 17 between themselves. This principle was that 18 discovery gave title to the government by whose 19 subjects or by whose authority it was made, 20 against all other European governments, which 21 title might be consumated by possession. 22 23 The exclusion of all other Europeans 24 necessarily gave to the nation making the 25 discovery the sole right of acquiring the soil 26 from the natives and establishing settlements 27 upon it. It was a right with which no 28 Europeans could interfere...\" 29 30 It goes on my lord at page 28. 31 32 \"In the establishment of these relations, the 33 rights of the original inhabitants were, in no 34 instance, entirely disregarded; but were 35 necessarily, to a considerable extent, 36 impaired.\" 37 38 And I've underlined the next passage, my lord. 39 40 \"They were admitted to be the rightful 41 occupants of the soil, with a legal as well as 42 a just claim to retain possession of it, and to 43 use it according to their own discretion;\" 44 45 One of the reasons I've underlined that passage, 46 my lord, is not only because it in our view affirms 47 that these are legal rights, but because this was the 24220 Submissions by Mr. Jackson 1 very passage which Chief Justice Dickson also 2 emphasized by underlining in citing this very passage 3 in his judgment in Guerin v. the Queen, a case of 4 course to which we will be returning. 5 6 \"But their rights to complete sovereignty, as 7 independent nations were necessarily 8 diminished, and their power to dispose of the 9 soil at their own will, to whomsoever they 10 please, was denied by the original fundamental 11 principle that discovery gave exclusive title 12 to those who made it. 13 14 While the different nations of Europe respected 15 the right of the natives, as occupants, they 16 asserted the ultimate dominion to be in 17 themselves; and claimed and exercised, as a 18 consequence of this ultimate dominion, a power 19 to grant the soil, while yet in the possession 20 of the natives. These grants have been 21 understood by all to convey a title to the 22 grantees, subject only to the Indian right of 23 occupancy... 24 25 The history of America, from its discovery to 26 the present day, proves, we think, the 27 universal recognition of these principles. \" 28 29 The Chief Justice then reviewed Spanish, Dutch and 30 French colonial practice and analysed the early 31 British colonial charters. And he concluded that 32 these charters were not limited to \"a mere grant of 33 the powers of government\", but purport to convey \"the 34 soil as well as the right of dominion to the 35 grantees\" . 36 And, my lord, the views of Chief Justice Marshall 37 in relation to the effects of the colonial charters is 38 the subject of much greater explication in Worcester 39 v. Georgia, and I'll be coming back to that point. 40 The judgment then traced the nature of the rights 41 which the United States acquired by treaty from 42 Britain. 43 44 \"By the treaty which concluded the war of our 45 revolution, Great Britain relinquished all 4 6 claim, not only to the government but to the 47 'propriety and territorial rights of the United 24221 Submissions by Mr. Jackson 1 States', whose boundaries were fixed in the 2 second article. By this treaty, the powers of 3 government, and the right to soil, which had 4 previously been in Great Britain, passed 5 definitely to these states.\" 6 7 \"Definitively\" I think that should be. 8 9 \"We had before taken possession of them by 10 declaring independence; but neither the 11 declaration of independence nor the treaty 12 confirming it, could give us more than that 13 which we before possessed, or to which Great 14 Britain was before entitled. It has never been 15 doubted, that either the United States, or the 16 several states had a clear title to all the 17 lands within the boundary lines described in 18 the treaty, subject only to the Indian right of 19 occupancy, and that the exclusive power to 20 extinguish that right was vested in that 21 government which might constitutionally 22 exercise it.\" 23 24 Which of course the United States was the United 25 States, and not the States. 26 Chief Justice Marshall then summarized what he saw 27 as the relative rights of the United States and the 28 aboriginal peoples: 29 30 \"The United States then, have unequivocally 31 acceded to that great and broad rule by which 32 its civilized inhabitants now hold this 33 country. They hold and assert in themselves, 34 the title by which it was acquired. They 35 maintain as all others have maintained, that 36 discovery gave an exclusive right to 37 extinguish the Indian title of occupancy, 38 either by purchase or by conquest; and gave 39 also a right to such a degree of sovereignty 40 as the circumstances of the people would allow 41 them to exercise. 42 43 The power now possessed by the government of 44 the United States to grant lands, resided, 45 while we were colonies, in the crown, or its 46 grantees. The validity of the title given by 47 either has never been questioned in our courts. 24222 Submissions by Mr. Jackson 1 It has been exercised uniformally over 2 territory in possession of the Indians. The 3 existence of this power must negative the 4 existence of any right which may conflict with, 5 and control it. An absolute title to lands 6 cannot exist, at the same time in different 7 persons, or in different governments. An 8 absolute, must be an exclusive title, or at 9 least a title which excludes all others not 10 compatible with it. All our institutions 11 recognize the absolute title of the crown, 12 subject only to the Indian right of occupancy, 13 and recognized the absolute title of the crown 14 to extinguish that right. This is incompatible 15 with an absolute and complete title in the 16 Indians.\" 17 18 These passages have been repeatedly cited, my 19 lord, and it will be our submission that the way in 20 which judges in both the United States and Canada have 21 used them to characterize the relationship between the 22 crown's \"absolute title\", as it's referred to in 23 Johnson v. Mcintosh, and the \"aboriginal title\", has 24 oftentimes been misconceived. These passages, I 25 should say, my lord, have been the subject of 26 extensive scholarly analysis and I'll be referring to 27 some of that. 28 It is our submission, my lord, that a careful 29 reading of Johnson v. Mcintosh shows that the 30 doctrines of discovery did not vest a complete title 31 to the lands of North America in the discovering 32 nation, but gave it the sole and exclusive rights of 33 acquiring the soil from the native people. It was, as 34 Lord Dorchester in 1791 and the American Treaty 35 Commissioners in 1793 characterized the crown's 36 rights, a right of pre-emption. Thus, we say, 37 properly understood, the doctrine of discovery is, as 38 Professor Berman has stated, \"a distributional 39 principle by which the European nations determined 40 which of them possessed the exclusive right to 41 extinguish the Indian title by purchase or conquest\". 42 And, as a distributional principle, it provided a 43 theory for the acquisition of property directed to the 44 European nations who had participated in its 45 formulation. In Fletcher v. Peck, Justice Johnson, in 46 his dissenting judgment, had labelled the crown's 47 rights as a pre-emptive right in terms of the 24223 Submissions by Mr. Jackson 1 potential interest it created, but the court in 2 Johnson preferred to call the crown's interest a 3 \"title\". But, in legal effect, discovery created a 4 potential interest consensual amongst the European 5 nations and created a monopoly to acquire tribal title 6 and possession. Professor Henderson has put it this 7 way: 8 9 \"Discovery, then, was a distributional 10 preference by which the Europeans agreed to 11 divide up entitlements to acquire tribal 12 lands...It was based on the time of the first 13 discovery of the new continent...All property 14 laws within a land tenure system reflect such 15 distributional preferences in society, and in 16 this regard Discovery is no different. 17 18 Discovery gave a 'title', Chief Justice 19 Marshall wrote in Mcintosh, 'to the government 20 whose subjects, or by whose authority it was 21 made, against all other European governments, 22 which title might be consummated by 23 possession'. Again, it should be stressed that 24 'title' is used as a perfectable entitlement 25 rather than an already perfect title. It was a 26 distributional preference the European nations 27 consensually agreed upon as they rejected the 28 previous papal distributional preference to the 29 territory of the New World based on the 30 propogation of Christianity to the natives.\" 31 32 My lord, if it's a convenient time for your 33 lordship to take a break -- 34 THE COURT: Yes. All right. 35 MR. JACKSON: Thank you. 36 THE REGISTRAR: Order in court. Court stands adjourned for a 37 short recess. 38 39 (PROCEEDINGS ADJOURNED FOR MORNING RECESS) 40 41 I hereby certify the foregoing to be 42 a true and accurate transcript of the 43 proceedings herein transcribed to the 44 best of my skill and ability. 45 46 Tanita S. French 47 Official Reporter 24224 Submissions by Mr. Jackson 1 THE REGISTRAR: Order in court. 2 THE COURT: Mr. Jackson. 3 MR. JACKSON: We are at page 32. I should, my lord, give you 4 the relevant citations for the scholary material I 5 referred to on page 30. The article by Henderson is 6 found in volume 14, tab 14, and the article by 7 Professor Berman is in the same volume, tab 7. 8 THE COURT: Thank you. 9 MR. JACKSON: I had made the point before the break, my lord, 10 that the doctrine of discovery was a distributional 11 principle binding as between European sovereigns, and 12 I say at page 32 that the doctrine of discovery was a 13 theory of acquisition that bound European nations, but 14 had only limited impact on the pre-existing rights of 15 the aboriginal people, and this is made explicit by 16 Chief Justice Marshall in his examination of the 17 historical cessions of North American territory 18 between the European Crowns. And thus in examining 19 the 1763 Treaty of Paris he stated: 20 21 \"This treaty expressly cedes and has always been 22 understood to cede, the whole country, on the 23 English side of the dividing line, between the 24 two nations, although a great and valuable part 25 of it was occupied by the Indians. Great 26 Britain, on her part, surrendered to France all 27 her pretensions to the country west of the 28 Mississippi. It has never been supposed that 29 she surrendered nothing, although she was not 30 in actual possession of a foot of land. She 31 surrendered all right to acquire the land; and 32 any after attempt to purchase it from the 33 Indians would have been considered and treated 34 as an invasion of the territories of France.\" 35 36 And this passage clearly indicates discovery 37 conferred a right to acquire the land from the 38 Indians, an exclusive and contingent title of 39 property, dependent for its perfection upon subsequent 40 acquisition of the land from the Indians. It is also 41 clear that the doctrine of discovery did not negate 42 aboriginal title, although plaintiffs readily concede 43 that the way in which aboriginal title was 44 characterized in Johnson and Macintosh is less than 4 5 fullsome. 46 And I would refer your lordship back to the 47 initial passage where he says: 24225 Submissions by Mr. Jackson 1 2 \"In the establishment of these relations, the 3 rights of the original inhabitants were, in no 4 instance, entirely disregarded; but were 5 necessarily, to a considerable extent, 6 impaired. They were admitted to be the 7 rightful occupants of the soil, with a legal as 8 well as a just claim to retain possession of 9 it, and to use it according to their own 10 discretion; but their rights to complete 11 sovereignty, as independent nations, were 12 necessarily diminished and their power to 13 dispose of the soil at their own will, to 14 whomsoever they please, was denied by the 15 original fundamental principle that discovery 16 gave exclusive title to those who made it.\" 17 18 My lord, what has to be kept in mind firmly in 19 Johnson and Macintosh is that the only diminishment, 20 the only impairment which Chief Justice Marshall 21 referred to, was the restraint on alienation to any 22 other than the discovery European nation. And while 23 from the point of view of the European sovereign doing 24 the discovery, this was characterized as a limitation 25 on the sovereignty of the Indian Nations, as Professor 26 Henderson has pointed out, this limitation was not a 27 limitation of tribal title insofar as the tribe could 28 withhold its land from the holder of an entitlement to 29 purchase. 30 And you recall the words of the Royal 31 Proclamation, my lord, in terms of the lands which the 32 Indians are disposed to sell, a reflection of the 33 similar principle of consent to the acquisition of 34 lands by the European sovereign having the exclusive 35 right as between other European nations to perfect 36 their underlying title, the title made good by 37 discovery. 38 Chief Justice Marshall's use of such terms as 39 absolute title to describe the rights of the Crown and 40 subsequently the United States and the right of 41 occupancy to describe the rights of the Indian Nations 42 seems to indicate a hierarchy of land tenures. A 43 careful reading of the judgment, we say, reveals that 44 whether the Indian interest is termed title, as it is 45 in some parts of the judgment, or right of occupancy, 46 it is a legal interest to which the Crown's title is 47 subject. 24226 Submissions by Mr. Jackson 1 Chief Justice Marshall's description of the 2 Crown's title as absolute, we say, is used to mean 3 ultimate or radical, in the sense of the Crown's 4 interest in the land acquired by the doctrine of 5 discovery. In this way the Crown's title and the 6 aboriginal title exist together, the former being 7 subject to the latter. 8 And the Chief Justice in this sense restated and 9 elaborated upon what Fletcher and Peck had already 10 determined, and he referred to Fletcher and Peck and 11 summarized its conclusions in this way: 12 13 \"This opinion conforms precisely to the 14 principle which has been supposed to be 15 recognized by all European governments, from 16 the first settlement of America. The absolute 17 ultimate title has been considered as acquired 18 by discovery, subject only to the Indian title 19 of occupancy, which title the discoverers 20 possessed the exclusive right of acquiring. 21 Such a right is no more incompatible with a 22 seisin in fee, than a lease for years, and 23 might as effectually bar an ejectment. 24 25 In other words, the Indian interest is a legal 26 interest which until extinguishment would bar anyone 27 bringing an action for ejectment, even though they 2 8 have a grant from the Crown. 29 And, my lord, we say that this further development 30 of the relationship between aboriginal rights and 31 Crown rights is elaborated yet further still when 32 Chief Justice Marshall writes the judgment in the 33 Cherokee cases. 34 The Court in Johnson and Macintosh examined two 35 ways of perfecting the Crown's entitlement to acquire 36 the Indian title created by the doctrine of discovery. 37 One being conquest, and the other one being purchase. 38 Now, in the context of the fact situation before 39 the Court, the Court clearly validated purchase theory 40 rather than any conquest theory for both parties to 41 the litigation sought to trace their title through 42 purchase from the Indians, and the holding of the 43 court was that a purchase from an Indian nation 44 creating an interest under the tribal tenure system 45 could be annulled in a later treaty cession between 4 6 the Indian nation and the federal government. 47 However, the language used by Chief Justice 24227 Submissions by Mr. Jackson 1 Marshall in subsequent passages in the judgment has 2 created what has been called, by some of the learned 3 commentators, a judicial mythology of conquest, and 4 Johnson and Macintosh has been cited as authority for 5 the fact that America is acquired by conquest most 6 recently by U.S. Supreme Court in Tee-hit-on. And we 7 say that these passages are also problematic in terms 8 of articulating a theory of aboriginal rights premised 9 upon fundamental principles, because insofar as they 10 suggest, that courts of law in fashioning a juris 11 prudence of aboriginal rights are involved in 12 ratifying and legitimating the process of 13 colonization, they do so even in the face of the clear 14 historical record and fundamental principles of 15 justice. And the passage I am going to read to Your 16 Lordship is one again which has been much cited in 17 later cases. The Chief Justice said. 18 19 \"We will not enter into the controversy whether 20 agriculturalists, merchants, and manufacturers, 21 have a right, on abstract principles, to expell 22 hunters from the territory they possess, or to 23 contract their limits. Conquest gives a title 24 which the courts of the conqueror cannot deny, 25 whatever the private and speculative opinions 26 of individuals may be, respecting the original 27 justice of the claim which has been 28 successfully asserted. The British government, 29 which was then our government, and whose rights 30 have passed to the United States, asserted 31 title to all the lands occupied by Indians 32 within the chartered limits of the British 33 colonies. It asserted also a limited 34 sovereignty over them, and the exclusive right 35 of extinguishing the title which occupancy gave 36 to them. These claims have been maintained and 37 established as far west as the Mississippi by 38 the sword. The title to a vast portion of the 39 lands we now hold originates in them. It is 40 not for the courts of this country to question 41 the validity of this title, or to sustain which 42 is incompatible with it.\" 43 44 And, my friend informs me there is three dots now 45 before the next passage, my lord. 4 6 THE COURT: Yes. 4 7 MR. JACKSON: 2422? Submissions by Mr. Jackson 1 2 \"... however extravagant the pretention of 3 converting the discovery of inhabited country 4 into conquest may appear, if the principle has 5 been asserted in the first instance, and 6 afterwards sustained; if a country has been 7 acquired and held under it; if the property of 8 the great mass of the community originates in 9 it, it becomes the law of the lands, and cannot 10 be questioned. So too, with respect to the 11 concomitant principle, that the Indian 12 inhabitants are to be considered merely as 13 occupants, to be protected, indeed, while in 14 peace, in the possession of their lands, but to 15 be deemed incapable of transferring the 16 absolute title to others. However, this 17 restriction may be opposed to natural right, 18 and to the usages of civilized nations, yet, if 19 it be indispensable to that system under which 20 the country has been settled, and be adapted to 21 the actual condition of the two people, it may, 22 perhaps, be supported by reason, and certainly 23 cannot be rejected by courts of justice.\" 24 25 2 6 THE COURT: I don't know what he is talking about there about 27 conquest. 28 MR. JACKSON: Well, my lord, I'll — your comment is a 29 perceptive one. A number of people have wondered what 30 he meant when he talked about conquest. And in fact 31 the conquest which he seems to be referring to about 32 maintaining the title of the crown as far west as the 33 Mississippi by the sword, it has been suggested that 34 the whole reference to conquest in this passage is so 35 ahistorical in terms of the actual acquisition of 36 lands by the Americans, that what he meant in this 37 passage was the conquest by the British of the French. 38 And that probably is the only way to make any sense of 39 this passage. 40 You will see, my lord, in the passage immediately 41 after this citation, I cite from the distinguished 42 American Indian rights scholar Felix Cohen, where he 43 notes what Chief Justice Marshall had to leave out of 44 his analysis if indeed he was attempting to convert 45 the acquisition of America into a conquest. 46 \"Notwithstanding the prevailing mythology\", Professor 47 Cohen tells us, \"the historical fact is that 24229 Submissions by Mr. Jackson 1 practically all of the real estate acquired by the 2 United States since 1776 was purchased not from 3 Napolean or any other emperor or Czar, but from its 4 original Indians owners.\" 5 THE COURT: Why do you limit that to 1776? 6 MR. JACKSON: I do not so limit it, my lord. In fact, as we 7 have attempted to show, the persistent, consistent 8 pattern and practise of the British prior to 1776 was 9 acquisition by purchase, although, of course, there 10 were periods where warfare prevailed. I already 11 informed Your Lordship of what happened to Virginia 12 and ways in which lands were acquired by a combination 13 of purchase and conquest in Virginia. And I make that 14 point at the bottom. 15 We have analyzed prior to 1776 that the western 16 expansion of the colonial governments was predicated 17 upon the principle of land cessions through treaty. 18 It is of particular significance, my lord, that in 19 Johnson and Macintosh there is no reference to any of 20 the treaties made between the British colonies and the 21 aboriginal peoples. And one of the things which 22 Worcester and Georgia does, as it were, in this 23 evolutionary process of explaining the legal 24 relationships between aboriginal peoples and the 25 Crown, and subsequent the United States, is that what 26 Worcester and Georgia does for the building up of 27 these blocks of the common law is to insert into the 28 analysis the treaty process. And so Worcester and 29 Georgia adds to Johnson and Macintosh this very 30 important overlay of treaty making, and that is why 31 that it is Worcester and Georgia that we get the 32 fullest statement of a doctrine of aboriginal rights, 33 which takes into account the history and the law, and 34 brings them together in a principle union. 35 And I say at page 37, the reference to conquest is 36 so ahistorical that several of the legal commentators 37 have pointed out that when the reference -- that the 38 reference to conquest in these passages is better 39 viewed as directed against the -- not the Indian 40 nations, but rather other European nations in the same 41 way as the distributional principle of discovery. 42 But in any event, my lord, whatever Chief Justice 43 Marshall may have been talking about when he talked 44 about conquest, it is clear that nothing turns on the 45 mythology of conquest in terms of the pre-existing 46 rights of the Indians. Whether by virtue of discovery 47 or by virtue of conquest, we say that Johnson and 24230 Submissions by Mr. Jackson 1 Macintosh stands for the legal recognition of the 2 co-existing title of the Crown with that of the Indian 3 Nations and the exclusive right of the Crown to 4 acquire that Indian title. 5 The last point I want to make about Johnson and 6 Macintosh and Fletcher and Peck is that in both cases 7 the Supreme Court affirmed the right of the Crown and 8 United States thereafter to make grants of land still 9 in the possession of the Indians, such grants being 10 subject to the Indian title and not taking effect in 11 possession until the lands had been acquired with 12 Crown authorization. And we have already described, 13 my lord, how this position stands in contrast to that 14 which was taken in Upper Canada in the 15 post-Proclamation period, which I addressed yesterday 16 afternoon, yesterday morning, I think, where lands in 17 possession of the Indians which had not been purchased 18 through treaty were considered by the executive 19 council of Upper Canada as being beyond their 20 jurisdiction to grant. 21 And the difference for the -- between the position 22 taken by the U.S. Supreme Court on this and the 23 position taken in Upper Canada is, I think, explained 24 in a decision again of the U.S. Supreme Court in 1839. 25 It's the decision of Clark and Smith, where Mr. 26 Justice Catron explained the American position in this 27 way. And that can be found, my lord, in volume 11 of 28 our books of authorities at tab 7. And Mr. Justice 29 Catron said that: 30 31 \"In the colonial Charters, a great portion of 32 the individual grants by proprietary and Royal 33 governments, and a still greater portion by the 34 states of the union after the revolution were 35 made for lands within the Indian hunting 36 ground. North Carolina and Virginia to a great 37 extent paid their officers and soldiers of the 38 Revolutionary War, by such grants; and 39 extinguished the arrears due the army by 40 similar means. It was one of the great 41 resources that sustained the war, not only by 42 these states but others. The ultimate fee 43 (encumbered with the Indian right of occupancy) 44 was in the Crown previous to the Revolution, 45 and in the States of the Union afterwards, and 46 subject to grant. This right of occupancy was 47 protected by the political power, and respected 24231 Submissions by Mr. Jackson 1 by the courts until extinguished.\" 2 3 THE COURT: When he states there, \"and in the States of the 4 Union afterwards\", does he mean the United States? 5 MR. JACKSON: He means the individual states. 6 THE COURT: He does? 7 MR. JACKSON: Yes. Because in Fletcher and Peck, my lord, the 8 Court had determined that the ultimate title in lands 9 after the revolution was in the individual states, 10 even though the exclusive power of negotiating with 11 the Indians for extinguishment of those rights was in 12 the United States, in that way exactly paralleling the 13 position taken by the Supreme Court -- by the courts 14 in St. Catherine Milling. 15 I wish now, my lord, to turn to the Cherokee 16 cases. These cases are the decisions of the Supreme 17 Court in Cherokee Nation and Georgia and Worcester. 18 Before doing so, I want to make a number of 19 observations, my lord. Fletcher and Peck and Johnson 20 and Macintosh, as I have said, did not involve 21 aboriginal peoples as either plaintiffs, which should 22 be, or defendants at the top of 39. The Cherokee 23 case, however, presented the United States Supreme 24 Court with an actual controversy over the scope of 25 aboriginal rights to ownership and jurisdiction, in 26 which an Indian nation was directly involved. And the 27 factual background to the Cherokee cases is of 28 cardinal significance not only to understand the legal 29 issues involved in the cases, but also because -- and 30 this is of crucial importance -- because the 31 background to the Cherokee cases speaks directly to 32 the federal government's position in this case on 33 extinguishment, diminution and abandonment of 34 aboriginal rights in the Gitksan and Wet'suwet'en 35 territories. And I have referred Your Lordship, and 36 I'll read it again, the position of the federal 37 government as directed to the plaintiffs of this court 38 last December: 39 40 \"With regard to abandonment, proof of aboriginal 41 rights requires continued traditional use and 42 occupation of the various parts of the claim 43 area. Wherever evidence demonstrates that the 44 plaintiffs' traditional use and occupation of 45 an area has been discontinued for a significant 46 period of time or that their traditional way of 47 life has been altered so that traditional 24232 Submissions by Mr. Jackson 1 activities of use and occupation have been 2 largely replaced by non-traditional activities, 3 then aboriginal rights to that area are lost. 4 This lack of continued use can be considered as 5 an abandonment of the traditional use and 6 occupation necessary to establish aboriginal 7 rights.\" 8 9 And, my lord, that position is expanded in the 10 federal government's summary of argument at pages 45 11 to 46. 12 It is our submission, my lord, that the 13 affirmation of the aboriginal rights to ownership and 14 jurisdiction of the Cherokee nation by the Supreme 15 Court in the great case of Worcester and Georgia, 16 notwithstanding the dramatic changes that took place 17 in the traditional activities of the Cherokees in the 18 18th and 19th centuries, stands as the clearest 19 repudiation of the federal defendant's position. 20 And, my lord, in order to explain that, it is 21 necessary for me to go into some detail as to the 22 nature of the changes which the Cherokee nation went 23 through in the 18th -- 17th and 18th centuries. 24 THE COURT: Mr. Jackson, let me go back just for one minute to 25 what we are talking about a moment ago. You say that 26 Fletcher and Peck decide that the -- after the 27 revolution the lands were held by the states subject 28 to the Indians' right of occupation? 2 9 MR. JACKSON: Yes, my lord. 30 THE COURT: But with the federal government having the sole 31 right to acquire the lands. 32 MR. JACKSON: To negotiate for the extinguishment of those 33 rights, yes. 34 THE COURT: And upon extinguishing, that land remain within the 35 individual states? 36 MR. JACKSON: Yes, my lord, free of the burden of the Indian 37 title. 38 THE COURT: Uh-huh. All right. Thank you. 39 MR. WILLMS: My lord, my friend's argument from pages 40 to 71 40 is primarily a recapitulation of McLoughlin, the 41 Cherokee Renascence in the New Republic, which is 42 Exhibit 1250-12 for Identification. And I wonder if 43 my friend -- I mean, it's eminently readable whether 44 it's in a condensed version that my friend has 45 prepared here, or whether it's in the original 46 McLoughlin is eminently readable as well, and I wonder 47 if it's really necessary to go through 31 pages of 24233 Submissions by Mr. Jackson 1 McLoughlin describing the nature and character of the 2 Cherokee nation, its written constitution and all of 3 those kinds of things, the ultimate removal of the 4 Cherokee, whether that couldn't just be better left 5 for all of us to read. 6 THE COURT: Well, I suppose Mr. Jackson's adopting this as his 7 argument. 8 MR. JACKSON: Yes, my lord, and I have very good reasons to take 9 Your Lordship through it. All of my argument, my 10 lord, I would hope, is eminently readable, and -- 11 THE COURT: Your friend says it is anyway. 12 MR. WILLMS: This part. 13 MR. JACKSON: I have good reasons, my lord, to take Your 14 Lordship to particular passages in this material. As 15 I said, because it directly bears upon not only 16 understanding the issues which the Supreme Court of 17 the United States had to deal with -- 18 THE COURT: Yes. 19 MR. JACKSON: — and the role of the court in the affirmation of 20 the rights of Indian Nations, but it directly bears 21 upon a principle defense of the federal defendant in 22 this case, that because of changes in the traditional 23 way of utilizing resources, changes in the traditional 24 method of life of the plaintiffs, their rights have 25 been lost. And therefore I say this material is of 26 cardinal significance. 27 THE COURT: How you use your time, Mr. Jackson, is your 28 decision. 29 MR. JACKSON: Thank you, my lord. 30 My lord, at page 40, and I will just be 31 highlighting this material, I note that the Cherokees 32 were an Iroquoian people who centuries before the 33 English came to North America had been driven south 34 out of the Iroquoian area north of the Ohio River, and 35 by 1700 they had been established for several 36 centuries in the southern most part of the 37 Appalachians in what is and was to become the States 38 of West Virginia, the Carolinas, Kentucky, Tennessee, 39 Georgia and Alabama. 40 Their population at the time of contact was around 41 20,000 individuals, or about 4,000 families, and they 42 were organized in various towns and villages. The 43 Cherokees in and around 1700 had lived a sedentary 44 life that was balanced between hunting, and I'm on 45 page 41, agriculture, military and ceremonial 4 6 activities, and every town had a communal garden in 47 which women, children, old men cultivated various 24234 Submissions by Mr. Jackson 1 kinds of crops. 2 At the bottom of page 41. The hunting component 3 of their economy was done by the men in fall and 4 winter, again was deer, elk, moose, buffalo. The 5 implements for hunting are set out at page 41. They 6 were made from indigenous components. 7 Page 42, my lord, I note that the Cherokees had no 8 centralized political system in the 18th century. 9 Each town was self-sufficient and self-governed. They 10 lived by well established unwritten customs. Both men 11 and women could speak in town council meetings, which 12 chose and could demote the chiefs or headmen in each 13 town. While town councils might act totally 14 independent to each other, national councils were 15 occasionally called in the 18th century to deal with 16 major problems of war, peace or trade alliance that 17 concerned all the towns. No national or town 18 authorities were empowered to maintain a police or 19 court system; the councils exercised no coercive power 20 over individuals. 21 We see at the bottom of 42 that the nature of 22 Cherokee's organized society bears strong similarities 23 with that of the Gitksan and Wet'suwet'en. Tribal 24 unity came in part from the common customs and 25 language, but was more derived from the clan kinship 26 system. The Cherokees had seven matrilineal exogamous 27 clans to which all Cherokees belonged, and this 28 provided the basic cohesion and social infrastructure 29 of the nation. Each clan had its own totemic name. 30 And the clan system governed marriages, provided 31 protection for members, regulated incest and homicide 32 and provided a matrilineal kinship system that ordered 33 family life and inheritance. Members of all seven 34 clans inhabited each town, and thus clan unity 35 transcended town self-government and kinship united 36 all the towns. Every town council had seven sides and 37 people seated themselves by clan at council meetings, 38 even though this separated wives from husbands and 39 children from fathers. No one could marry someone of 40 his or her own clan. 41 So, my lord, you see that the arrangements, as it 42 were, institutional arrangements through the clan 43 system have some distinct parallels with the 44 plaintiffs. 45 Social order was maintained by clearly understood 46 and faithfully carried out responsibilities of 47 kinship, respect, honour and mutuality. The Cherokees 24235 Submissions by Mr. Jackson 1 believed that there was also a distinct spiritual 2 order in the world that must -- had to be respected 3 and be sustained. 4 At the bottom of page 43, my lord, I make the 5 point -- Professor McLoughlin makes the point socially 6 unacceptable actions such as lying or stealing, 7 failing to respect the chiefs or one's elders, 8 refusing to grant hospitality, caused offenders to be 9 held up to scorn and ridicule. And the evidence you 10 have heard, my lord, in this case shows the important 11 power of censure, the social condemnation removed from 12 coercive power of what we regard as the law, is an 13 important hallmark of Gitksan and Wet'suwet'en 14 maintenance of order. 15 At page 44 further down the page. Although 16 Europeans, finding no written law, courts or police 17 system among the Cherokees, concluded that they had no 18 laws, the unwritten laws were clearly understood and 19 faithfully carried out. The Cherokee belief system 20 imposed both a rigid personal morality and an intense 21 communal ethic. It integrated their lives into a 22 clear, cohesive and meaningful order. 23 Similarly European observers often said that the 24 Cherokees had no religious systems because no 25 churches, shrines, idols or state-supported priesthood 26 were found. But the Cherokees led a life that was 27 infused with spritual significance in every respect. 28 There was no secular area of life free from spiritual 2 9 meaning. 30 And, my lord, at page 45, again Justice McLoughlin 31 notes that the Cherokees maintained a regime of prayer 32 and rituals designed to renew their connection with 33 the spiritual record. Again bearing clear parallels 34 to some of the evidence you have heard in this case. 35 At the bottom of page 45 Professor McLoughlin 36 traces the colonial relationships with Europeans in 37 and the Cherokees. The Cherokees had first met 38 Europeans in 1540, when Hernando de Soto's expedition 39 passed through their territory in its search for the 40 seven cities of gold. 41 The Cherokees met other explorers in the 17th 42 century, and it was in the mid-1600's that they first 43 met the British who settled in Virginia. But it was 44 not until the late 17th century that they came into 45 regular contact with the closer British settlements in 46 South Carolina. When the Cherokees began to obtain 47 guns in large numbers from the English colonists, they 24236 Submissions by Mr. Jackson 1 inaugurated the first phase in the transformation of 2 their traditional way of life. The transition from a 3 stable hunting, gathering, farming society with a 4 subsistence economy and an internally oriented 5 communal order to a mobile, free-trade market with 6 heavy reliance on European trade goods and alliances. 7 With guns the Cherokees could not only better support 8 their military strategies, but they could also kill 9 deer more easily, and with deer skins they could enter 10 regular trading relations with the English to the east 11 of them, the Spanish to the south, and the French to 12 the southwest. By obtaining more guns, steel traps, 13 sharp knives and hatchets, the Cherokees enlarged 14 their participation in the fur-trade. By 1725 it had 15 become the central feature of their lives. 16 And, my lord, at the bottom of page 46 Professor 17 McLoughlin notes the change which this brought about 18 in the traditional life of the Cherokees. 19 As the occupation of Cherokee men changed, so did 20 the lives of their families. Women welcomed 21 manufactured goods that made their lives easier. They 22 learned to use steel needles, scissors and threads 23 rather than bone needles, sinew and buckskin. 24 The next page, my lord. With heavy steel axes, 25 Cherokee men built different styles of houses and 26 boats, and they developed a more intensive form of 27 agriculture, an increasing reliance upon domestic 28 livestock and a new diet. 29 At page 47 at the bottom Professor McLoughlin 30 again notes how regular contact with Europeans had 31 other effects upon Cherokee life as well, in 32 particular the extent to which disease, European 33 induced disease dealt a deadly toll to the Cherokees, 34 and in the mid-18th century half their population was 35 killed off by smallpox. 36 And again making somewhat of a parallel to what 37 Mr. Brody testified before you, the impotence of 38 traditional Cherokee doctors and priests to make sense 39 of what was happening to the Cherokee, led to a 40 waning, I think, of faith in the traditional healers 41 and medicine men of the Cherokee. 42 Professor McLoughlin at 48 also makes the point 43 that the introduction of European presence and trade 44 relation brought about some changes to the Cherokee 45 political organization. Colonial governments wanted 46 to bargain with heads of state whose agreements would 47 bind the whole nation. Finding that the Cherokees had 24237 Submissions by Mr. Jackson 1 no such national chief or political unity, the English 2 tried to create a King to unite them. And in later 3 years the succession of chiefs were assumed by the 4 English to speak for the whole nation. 5 And, my lord, there is some remarkable English 6 portraits done by the leading portrait artists of the 7 day of groups of Cherokee chiefs taken to London to 8 meet the British King dressed up in their traditional 9 costumes. 10 By the middle of the 18th century the sharp 11 dealings by British traders led to increasing friction 12 between the Cherokees and the British colonial 13 authorities. When the Seven Years War broke out in 14 1756, the Cherokees at first honoured their alliance 15 with England, but after several unprovoked assaults 16 upon them by Carolina frontiersmen many Cherokees 17 allied with the French. An army of English 18 frontiersmen invaded Cherokee towns, burning the 19 houses and granaries, laying waste to crops and 20 slaughtering men, women and children. Over a dozen of 21 the Cherokee lower middle towns nearest to the 22 Carolinas were destroyed in 1760. 23 My lord, previously in these submissions we have 24 shown how in the drawing of the boundary line between 25 colonial settlement and the Indian territory, treaties 26 were negotiated with the Cherokees to define that 27 line, and I note at page 49 particularly the treaties 28 of hard labour, and the Treaty of Lochaber. 29 You recall, my lord, the Treaty of Lochaber was a 30 treaty in which there is an explicit reference to an 31 amending formula that the boundary can only be changed 32 by mutual consent. 33 The compliance with the public treaty making 34 process reflected in those treaties stood in stark 35 contrast to the land cession made in 1775 when a group 36 of Kentucky settlers persuaded a handful of the 37 Cherokee chiefs to sell them for a cabin full of trade 38 goods, the whole upper half of their hunting ground. 39 A transaction in flagrant disregard of the provisions 40 of the Royal Proclamation. And therefore we say at 41 page 49 it is not surprising that in light of the 42 respect which British authorities had shown for 43 Cherokee rights and its disregard by colonial 44 frontiersmen, that when the war of the American 45 Revolution broke out the Cherokees fought on the 46 British side. The Cherokees became embroiled in 47 intensive hostilities and again dozens of the Indian 2423? Submissions by Mr. Jackson 1 towns east of the Appalachians were subject to 2 devastation. And in addition settlers in what became 3 Kentucky and Tennessee attacked Cherokee towns west of 4 the Appalachians. Several thousand Cherokees became 5 homeless, fleeing to the southwest. 6 In 1777 the chiefs signed treaties with the 7 eastern states of the new American nation ceding over 8 8,000 more square miles. This time the land ceded was 9 not only hunting grounds, but the sites of some of 10 their oldest towns, in which their people had lived 11 for centuries. They were expelled from Virginia and 12 lost all but a tiny tract of South Carolina, their 13 territory in North Carolina and what is now Tennessee 14 was cut in half, and was a further large cession in 15 1783. 16 Many of the Cherokee chiefs were angered not only 17 by the fraudulent cession made in 1775, but also by 18 the quick peace signed with the American 19 revolutionaries by the same chiefs in 1777. And a 20 number of these chiefs gathered together those of the 21 nation who were still willing to fight, and with the 22 displaced families from the eastern part of the nation 23 they moved to the far southwestern area of the nation 24 where they founded a series of new towns along the 25 Tennessee River in what is now Northern Alabama. 26 So you have here, my lord, a major migration, not 27 3,000 years ago, but 5,000 years ago after the 28 revolution in the late 18th century. 29 And these new townships which were established by 30 the Cherokees were called the lower towns partly 31 because so many of the Cherokees who moved there came 32 from the old lower towns in their former homelands in 33 South Carolina. 34 My lord, the Treaty of Versaille between Britain 35 and the New American Confederacy in 1783 made no 36 mention of the Cherokees or of the other Indian allies 37 of the British. However, in 1785 the Continental 38 Congress made the first national treaty for the United 39 States with the Cherokee nation at Hopewell. And the 40 terms of the Treaty of Hopewell are the subject of 41 extensive comments by Chief Justice Marshall in 42 Worcester and Georgia. And at page 51 I set out 43 briefly that -- the terms of that treaty, in addition 44 to providing for peace, define the territorial limits 45 of the Cherokee nation in exchange for guarantee of 46 territorial integrity, the Cherokees acknowledge 47 themselves to be under the protection of the United 24239 Submissions by Mr. Jackson 1 States and agreed that the United States shall have 2 the sole and exclusive right of regulating the trade 3 with the Indians. 4 At page 52, my lord I make the point that the 5 Treaty of Hopewell proved to be a weak reed upon which 6 the Cherokee could secure protection of their 7 territory. The inability of Congress after 1785 to 8 compel North Carolina to eject its citizens from farms 9 which they had established within the Cherokee 10 boundaries led to the resumption of hostilities. And 11 after North Carolina had ceded its western lands in 12 what is now Tennessee to the federal government in 13 1790, the United States negotiated -- pursuant to its 14 exclusive treaty making power, negotiated a further 15 treaty to renew the peace in 1791. This is the treaty 16 of Holston. And again it's the subject of detailed 17 analysis in Worcester and Georgia. And under that 18 treaty they agreed to yield up yet more lands in 19 eastern Tennessee in return for a guarantee from the 20 federal government that all their lands not herein 21 ceded would be protected. 22 Now, my lord, at this stage of the history of the 23 Cherokee nations, Professor McLoughlin sums up where 24 they were compared to 1700. The nature of the changes 25 in their traditional society. 26 27 \"Their population was barely 10,000; 28 three-fourths of the land had once considered 29 theirs was closed to them...; over half of 30 their towns were destroyed and ceded to the 31 United States; those who lived in those towns 32 had to move into what was left of the nation 33 and start over again. Precisely how much 34 independence was left to them as a people was 35 unclear. Although they continued to follow 36 their traditional patterns as much as possible, 37 they found it increasingly difficult to make a 38 living. The fur trade upon which they had 39 depended for almost a century was now so small 40 that the hunters had to stay out longer and 41 travel further each winter to make a good 42 catch. Their old hunting grounds were filling 43 up with white hunters and often with illegal 44 white squatters. The federal government had 45 promised in 1719 to help them make a living as 4 6 herdsmen and farmers but the Cherokees knew 47 little about the kind of horse-and-plow farming 24240 Submissions by Mr. Jackson 1 needed to support a family, nor did Indian 2 wives know how to be farmers' wives. The 3 Cherokees seemed unable, even in peace, to 4 regain the stability, harmony, and order they 5 had known in the past. Nor were their 6 religious ceremonies any longer able to give 7 them a sense of control over their destiny. 8 They now lived on a different part of their 9 land from that of their will ancestors ...\" 10 11 The next paragraph sets out the effect of 12 intrusion of whites into their territory. 13 14 \"On the other hand, many whites had come to live 15 among them ... their children did not speak 16 Cherokee or know Cherokee customs. The white 17 men and their foreign speaking European dressed 18 children, when grown, proved helpful in certain 19 ways. They understood the language and customs 20 of whites and provided useful knowledge as well 21 as serving as interpreters for Cherokee 22 leaders. However, many of the whites who fled 23 to Cherokee towns were outlaws, renegades, 24 bankrupts, and confidence men ... these white 25 men were not part of any clan; a few were 26 adopted into a clan, but not many. White 27 husbands did not respect the Cherokee customs 28 regarding the right of of the wife to her own 29 be property, her right to her house and 30 children, her right to live in her own town 31 near her kin; they refused to accept the 32 matrilineal practise of inheritance ... 33 Life in 1794 was far different from life in 34 1694. Confusion in their culture made it hard 35 for the older generation to fulfill their roles 36 as leaders, teachers and guides for the young. 37 So much that had been true for parents and 38 grandparents simply was not applicable to the 39 lives of the rising generations. Cultural 40 persistence was powerful; most tried to retain 41 old patterns as best they could once peace was 42 attained. But it seemed unlikely that they 43 could ever return wholly to the old ways. A 44 new, and as yet unspecified, way of life had to 45 be found to fit their new circumstances. 46 Somehow they had to revitalize their culture by 47 combining old ways with new ways or by finding 24241 Submissions by Mr. Jackson 1 Cherokee versions of white ways.\" 2 3 Such was the situation the Cherokee faced, my 4 lord, at the end of the 18th century. 5 And without drawing direct parallels between the 6 Cherokees and the Gitksan and Wet'suwet'en any 7 particular point of their history, my lord, I think 8 Your Lordship can see certain things there which could 9 be applied to the position facing the 10 Gitksan-Wet'suwet'en at times in this century. 11 My lord, enter now the State of Georgia and the 12 gravamen of what led to the Cherokee cases. Under the 13 Treaty of Holston the Cherokees retained some five 14 million acres of their territory within the borders of 15 the State of Georgia. In 1802 Georgia ceded to the 16 United States all its western lands, and these were 17 ultimately to become the States of Alabama and 18 Mississippi. The cession was conditioned, my lord, 19 upon the requirement that the United States, pursuant 20 to its exclusive power, would extinguish all Indian 21 claims to lands within the limits of Georgia, as soon 22 as it could be peacefully done and on reasonable 2 3 terms. 24 THE COURT: Is that the five million acres? 25 MR. JACKSON: Yes, my lord, the idea that the federal government 26 would enter into further treaties with the Cherokees 27 to acquire that land, extinguish the aboriginal title 28 of the Cherokees, that land would then belong to 29 Georgia. 30 However, my lord, you will see at pages 54 and 55, 31 that the Cherokees were reluctant to cede any more 32 lands following a cession which had been made in 1805 33 and 1806 of what in fact were the last of its hunting 34 lands. This cession was characterized by some sharp 35 dealing, some fraud and bribery, and as a result of 36 the transaction some ten million acres of hunting 37 land -- I think it should be ten thousand actually -- 38 were closed out as an economic and cultural activity 39 which had profound social and psychological 40 significance. 41 And Professor McLoughlin makes the point at page 42 55 that the loss of their hunting grounds for the 43 Cherokee was akin to a Roman Catholic losing the Latin 44 mass. It was a matter of profound social, 45 psychological and economic importance. 46 But it reaffirmed in the Cherokee that they would give 47 up no more of their lands. And this in fact led to 24242 Submissions by Mr. Jackson 1 the ultimate, eventual conflict between the Cherokees 2 and the State of Georgia. 3 But before we get to that conflict and its 4 immediate origins of the Cherokee cases, further 5 remarkable events took place in Cherokee country 6 between 1805 and the point at which the Supreme Court 7 of the United States was called upon to adjudicate 8 upon the rights of the Cherokees. And those changes, 9 my lord, are what we say are changes which defy the 10 federal government's position that changes in 11 traditional patterns of economy of political culture 12 can in fact leave to the abandonment of rights. And 13 the changes in Cherokee society between 1805 and the 14 point at which the Supreme Court was called upon to 15 determine their rights has been described by Professor 16 McLoughlin as a Renascence. And its essence, at the 17 top of page 56, was the establishment of a distinct 18 national identity firmly grounded in economic 19 self-sufficiency and political self-determination. 20 And Professor McLoughlin talks about the nature of the 21 Cherokee Renascence in the early 19th century. And he 22 says: 23 24 \"Statistical measurements for economic growth 25 are available by the comparing the censuses of 26 1806, 1826 and 1835. The Censuses reveal an 27 astonishing though incomplete picture of 28 advances in numerous aspects of Cherokee life - 29 in population, productivity, resources, 30 educational skills and enterprise. In 31 addition, the codified laws of the nation from 32 1808 to 1827 revealed the rapid elaboration of 33 their executive, legislative, judicial and 34 administrative structure, especially after 35 1819, culminating in their constitution of 36 1827. The number of schools and churches in 37 the nation grew rapidly after 1819 ... and 38 literacy increased. In addition, less precise 39 but more dramatically indices are available 4 0 from the development of important new 41 institutions, such as the capital town of New 42 Echota, the first printed Cherokee printed book 43 of laws, and their bilingual newspaper. 44 Vistors to the nation in the 1820s wrote 45 admirally of their prosperity and good order, 46 making the Cherokees the prime example in the 47 public mind of Indian progress - 'the most 24243 Submissions by Mr. Jackson 1 civilized tribe in America'.\" 2 3 And, my lord, the most striking aspect of the 4 Cherokee Renascence was a series of eleven laws passed 5 between 1820 and 1823 that together constituted a 6 political revolution in the structure of Cherokee 7 government. Under these laws the national council 8 created a bicameral legislature, a district and 9 superior court system, an elective system of 10 representation by geographical district, rather than 11 by town, and a salaried government bureaucracy. These 12 laws represented a definite move by the Cherokee 13 leaders towards a replication of the American 14 political system, including overlaying many aspects of 15 Anglo-Saxon juris prudence on Cherokee customs. 16 And, my lord, at page 57 I've briefly described 17 the nature of the three tiered judicial system. The 18 Cherokee advances in the administration of justice in 19 the 1820s, my lord, are being looked at today as ways 20 to reach an accomodation between traditional 21 aboriginal law ways and provisions which we regard as 22 the hallmark of the protection of individual rights. 23 So this was not only a progressive mood in the 1820s, 24 it is viewed through the eyes of our contemporaries as 25 something of a model. 26 At page 58, my lord, I set out some of the laws 27 which the Cherokees passed dealing with new economic 28 initiatives, dealing with new aspects of a market 29 economy which they integrated into the heart of their 30 traditional economy and in fact transformed it. 31 At page 58, the bottom, we note that while many of 32 the Cherokees' laws reflected those adapted by their 33 neighbouring states, their laws regarding land usage 34 were unlike those of white settlements, because of the 35 tribal ownership of all lands. And these laws forbade 36 the sale of any Cherokee land or improvements on it to 37 whites, although the Cherokees could sell improvements 38 to each other. 39 You will see at page 59, my lord, another example 40 of quite dramatic traditional resource utilization. 41 Formerly the Cherokees, like most woodland Indians, 42 and you have heard evidence in this case also in 43 relation to the Gitksan and Wet'suwet'en, had 44 periodically burned off the underbrush in their woods 45 to improve the growth of new forage for deer and to 46 increase the yield of berries for human and animal 47 use. But with the advent of elaborate private farms 24244 Submissions by Mr. Jackson 1 throughout the nation, this practise was abandoned. 2 In 1825 the council, the Cherokees forbade anyone to 3 set fires even in the most remote regions in order to 4 protect timber that was now more important than deer 5 or berries. The council also laid claim to precious 6 minerals in the territory. 7 Of some significance, my lord, at page 59 were 8 changes in Cherokee laws relating to intestacy. The 9 old laws were very much found upon the matrilineal 10 principle. With the advent of whites into the area, 11 with the advent of personal property of considerable 12 extent overlaid upon the matrilineal system was free 13 patrilineal or matrilineal inheritance. 14 And you will see at page 59, at 60 the transition 15 to make wills, and the extent to which under those 16 wills individuals were seen as having the right to 17 transmit certain kinds of property to whomsoever they 18 wished became engrossed upon the traditional 19 matrilineal pattern without entirely displacing it. 20 At page 61, my lord, I note a further 21 revitalization of the Cherokees was -- came in the 22 1820s with the invention by Sequoyah of an easy way to 23 write the Cherokee language. And the effect of this 24 was that the Cherokees were able to translate their 25 laws into their own language, and official documents 26 were available in both English and in Cherokee. It 27 also led to remarkable events, my lord, with the 28 development of a Cherokee, the first indigenous 29 newspaper in North America, the \"Cherokee Phoenix\", 30 which started publication in 1828. 31 Describing the state of the Cherokees in 1824, and 32 Your Lordship will recall Professor McLoughlin's 33 rather sad account with the Cherokees in 1793. In 34 1824 Professor McLoughlin says: 35 36 \"The tangible signs of Cherokee achievement were 37 everywhere in 1824; their thriving capital at 38 New Echota with its handsome public buildings; 39 their well-dressed forceful leaders; their new 40 gristmills, sawmills, and turnpikes; their 41 educated young men who, however supercilious 42 toward 'the backward' or 'lower class' 43 Cherokees, provided proof that a Cherokee could 44 do all that a white man could. Some of these 45 scholars had been to the American Boards 46 seminary in Connecticut; they could read Latin 47 and Greek and understand the white man's 24245 Submissions by Mr. Jackson 1 philosophy, history, theology and political 2 economy. One of the graduates of the Cornwall 3 Academy would, in 1828, edit their bilingual 4 newspaper.\" 5 6 At page 62, my lord, at the bottom. And here we 7 joined up with the aspirations of Georgia for the 8 acquisition of these lands pursuant to its contact 9 with the federal government in 1802. In the 1820s the 10 Cherokees, however, continued to face and resist 11 pressure, particularly from Georgia, to give up their 12 lands in treaties of cession with the federal 13 government. Shortly after John Quincy Adams' 14 inauguration as President in 1825, a Cherokee 15 delegation visited him hoping to convince him to make 16 some arrangements with the frontier states that would 17 stop them from hounding the Cherokees to give up more 18 lands. They assured Adams that they could never be 19 persuaded to leave their homelands voluntarily. \"The 20 arts of civilized life had been successfully 21 introduced among them; they considered themselves 22 permanently settled and no inducement can prompt them 23 to abandon their habitations for a distant, wild and 24 strange clime.\" They inquired of Adams why is it 25 always the rights of the Indians that must yield, when 26 their rights were equally protected by the United 27 States Constitution? 28 In 1826, my lord, the Cherokee National Council 29 voted to call a convention to -- not accidentally -- 30 to meet on the following 4th of July for the purpose 31 of adopting a constitution for the future government 32 of the nation. And this constitution, my lord, was 33 based upon the American Constitution. It was in fact 34 a Cherokee version of that constitution to suit 35 Cherokee needs. And by Article 2, by Section 2 of 36 Article 1, it asserted the national sovereignty of the 37 Cherokee people and affirmed the traditional Cherokee 38 principles of communal ownership of land. It divided 39 its government into three distinct departments, 40 executive, legislative and judicial departments. 41 Incorporated what in fact was Anglo-Saxon on Charter 42 of Rights, guaranteeing a jury trial, due process of 43 law, free exercise of religious worship, and freedom 44 from unreasonable searches and seizures. 45 The constitution, however, provoked a furor in the 46 neighbouring states, especially in Georgia, and 47 Georgia wanted these lands. The Cherokees were in the 24246 Submissions by Mr. Jackson 1 process of asserting a fundamental constitution, 2 entrenching their rights in these lands. And the 3 Cherokees, at page 65, I say, my lord, sent their 4 constitution to the President of the United States, 5 who indicated in the spring of 1828 that as far as he 6 was concerned it made no difference to the 7 relationship between the Cherokees and the United 8 States. Georgia had hoped that the President would 9 take a strong stand denouncing the Cherokees for their 10 frontier to come up with a constitution of their own. 11 And when in October 1827 the Cherokees refused to 12 discuss with treaty commissioners either a land 13 cession in Georgia or permission for Georgia to build 14 canals through their nation, and when it became clear 15 that President Adams had no intention of doing 16 anything about the Cherokee Constitution, the State of 17 Georgia decided it was time to take matters into its 18 own hands. 19 And, my lord, that might be a convenient place to 20 stop. 21 THE COURT: All right. Thank you. 22 THE REGISTRAR: Order in court. Court stands adjourned until 23 2:00 o'clock. 24 2 5 (PROCEEDINGS ADJOURNED) 26 27 I HEREBY CERTIFY THE FOREGOING TO BE 28 A TRUE AND ACCURATE TRANSCRIPT OF THE 2 9 PROCEEDINGS HEREIN TO THE BEST OF MY 30 SKILL AND ABILITY. 31 32 33 LORI OXLEY 34 OFFICIAL REPORTER. 35 UNITED REPORTING SERVICE LTD. 36 37 38 39 40 41 42 43 44 45 46 47 24247 Submissions by Mr. Jackson 1 (PROCEEDINGS RESUMED PURSUANT TO A LUNCHEON ADJOURNMENT) 2 3 THE REGISTRAR: Order in court. 4 MR. RUSH: My lord, I prepared an index for volume 2 on the 5 Royal Proclamation. I have handed up a copy to the 6 registrar. 7 THE COURT: Yes, she's put it in my volume 2. I am in no urgent 8 rush for it, Mr. Rush. Will there be a disk for 9 volume 2? 10 MR. RUSH: Yes, there will be. Hopefully it will be available 11 tomorrow. 12 THE COURT: Yes. My programmer is going to do some work on 13 Saturday and that would be helpful. 14 MR. RUSH: We will have it for you. 15 THE COURT: Some mystery, I don't understand what -- oh, I 16 forget the word he uses but he tells me that it's 17 helpful to organize it in some particular way. Mr. 18 Jackson, I was given Cherokee Residence New Republic. 19 Where does that belong? 20 MR. JACKSON: I just wanted to inform your lordship my friend, 21 Mr. Willms, gave me the exhibit number earlier on but 22 it is Exhibit 1250 for ID. tab 12, and these pages 23 before your lordship, takes comfort perhaps because 24 there are only nine pages here, my lord, these were 25 the first nine pages which were omitted from tab 12. 26 THE COURT: I see. So they belong in the exhibit book. 27 MR. JACKSON: Yes, my lord, the beginning of tab 12. 28 THE COURT: Yes, all right. So that it's put there, thank you. 29 All right, thank you. 30 MR. JACKSON: My lord, we had got to the point when, in October 31 1827, the state of Georgia had determined it was time 32 to take matters into its own hands in the face of the 33 Cherokee refusal to remove themselves west and give up 34 their lands and their homeland. In a series of 35 resolutions, bottom of page 65, Georgia insisted upon 36 the federal government fulfilling its obligations 37 under the 1802 Compact to extinguish Cherokee land 38 rights and stated if the Cherokees failed to cooperate 39 in this final effort to extinguish all their lands 40 within the boundaries of Georgia, the state would 41 exercise its sovereign power by taking possession of, 42 and extending our authority and laws over, the whole 43 of the lands in controversy. Georgia said: Let there 44 be no mistake: The lands in question belong to 45 Georgia. She must and will have them. The Cherokees 46 sought to get presidential assistance against this 47 pressure from Georgia from President Adams. 2424? Submissions by Mr. Jackson 1 Unfortunately for the Cherokees, Adams' presidency, 2 gave way to that of Andrew Jackson and President 3 Jackson had campaigned specifically on the issue that, 4 if elected, he would remove the eastern tribes west to 5 the Mississippi to make way for settlement. And 6 immediately thereafter Jackson's presidency, Georgia 7 enacted its so-called Georgia Indian Laws, and under 8 the terms of those laws which were not to take effect 9 for two years in order to give the Cherokees time to 10 remove, the laws proposed and they asserted, at the 11 bottom of page 66, that \"all laws of this state ... 12 are extended over\" the territory claimed by Indians 13 within Georgia's boundaries. That land was to be 14 surveyed within the next two years by the state of 15 Georgia, and divided into counties. After the 1st day 16 of June, 1830, all Indians still residing in those 17 areas shall be liable and subject to such laws and 18 regulations as the legislature may hereafter describe. 19 When this happened, all laws, usages, customs made, 20 established and enforced in the said territory by the 21 said Cherokee Indians be, and the same are hereby on 22 and after June 1, 1830, declared null and void. And 23 therefore on that date, Cherokee tribal existence in 24 the east would cease. All the laws, the Constitution, 25 the court system, as well as the old unwritten customs 26 of the Cherokee Nation (such as tribal ownership of 27 land) would be null and void. The Cherokees would 28 thenceforth be subject to the same laws as other 29 Georgians except that, being savages, heathens, and 30 people of colour, no Indian or descendant of an Indian 31 residing within the Creek or Cherokee Nations of 32 Indians shall be deemed a competent witness or party 33 to any suit in any court created by the constitution 34 or laws of this state to which a white man may be a 35 party. 36 And, my lord, a summary of the Georgia Laws can be 37 found in the beginning of Cherokee Nation and Georgia, 38 which is at tab -- volume 11 tab 5, and I have given 39 your lordship the page reference, page 27. 40 When the Cherokees protested this action, 41 President Jackson informed them that there was nothing 42 he could do for them, that he could not assert the 43 authority of the Federal Government against the 44 sovereign power of the State of Georgia; in fact, far 45 from being able to do anything for them, my lord. As 4 6 I document on page 68, the bottom -- down to the 47 bottom and over to page 69, Andrew Jackson began his 24249 Submissions by Mr. Jackson 1 efforts to pass through congress a piece of 2 legislature, the Indian Removal Bill, which would 3 provide money to negotiate treaties to secure the 4 voluntary transfer of Indian lands in the east and the 5 removal of the Cherokees and the other eastern tribes 6 to the west of the Mississippi. At page 69, and the 7 Cherokee Nation became the cause celebre in Jackson's 8 efforts to remove the eastern tribes to the west, 9 Jackson's support of Georgia's assertion of state 10 sovereignty over Indian land encouraged white settlers 11 to intrude into the Cherokee Nation. The National 12 Councils repeated requests to the federal agents to 13 remove these intruders but with no response, and fate 14 then dealt Cherokees a cruel blow when gold was 15 discovered in several streams along the nation's 16 southeastern border, and there was a gold rush with 17 some 4,000 to 7,000 prospectors coming into their 18 territory. In the absence of federal assistance the 19 Cherokees tried to eject settlers who were building 20 cabins, clearing land, and sowing crops. This attempt 21 to defend their lands resulted in the assaults and the 22 murder of Cherokees. It also led to Georgia creating 23 its own special police force to patrol the Cherokee 24 area. Known as the Georgia Guard, it was essentially 25 a private security force under militia officers. 26 Jackson's Removal Bill, my lord, passed through 27 Congress in 1830, and Professor McLoughlin has 28 described what happened immediately after the 29 authorities of federal funds to sign removal treaties. 30 31 \"Jackson signed the Bill on May 28th and three 32 days later Georgia asserted its authority over 33 192,000 acres of Creek land in that state and 34 4,600,000 acres of Cherokee land, including 35 their capital city of New Echota, the homes of 36 John Ross, Major Ridge, many other members of 37 the Council and 6 missionary stations ... 38 Thereafter, as far as the Georgians were 39 concerned, the Cherokee Nation did not exist. 40 Its Council was forbidden to meet; all Cherokee 41 courts were closed; its laws and its police 42 were not allowed to function. Three hundred 43 and twenty Georgia surveyors immediately 44 entered the nation to begin dividing it into 45 tracts of 160 acres each to be given away to 46 white citizens by lottery (the gold field 47 region was so valuable that lottery tracts here 24250 Submissions by Mr. Jackson 1 were limited to 40 acres). Hundreds of white 2 Georgians followed surveyors into the region 3 (under the protection of the Georgia Guard, 4 eager to locate the best farms, plantations, 5 mill sites, missionary stations, ferries, and 6 taverns so that they could speculate how to 7 obtain them for themselves. Although the 8 Georgia law stated that all Cherokees would be 9 given a tract of land, subsequent revisions 10 made it clear that they would get only the land 11 that no white citizen wanted. Furthermore, as 12 experience with the reserve system had shown, 13 sooner or later most of the Cherokees would be 14 forced off or cheated out of whatever land they 15 received. Having no right to defend themselves 16 in the Georgia courts, there was no way they 17 could defend their property. Soon after the 18 lottery began handing out tracts in October 19 1830, Georgia's citizens were forcibly moving 20 Cherokees out of their homes and off of their 21 farms.\" 22 23 The National Council, my lord, of the Cherokee 24 Nation authorized John Ross, the principal chief of 25 the Cherokees, to hire white lawyers to assist them in 26 the increasing number of cases involving Cherokees 27 arrested by the Georgia Guard for interfering with 28 Georgia's authority or engaging in disputes with white 29 intruders. These included William Wirt, John 30 Sergeant, who was later to run as vice-president. 31 Almost at once the Cherokees encountered difficulty 32 raising money to pay for these lawyers. The 33 Cherokees' difficulty in raising funds was compounded 34 when the Secretary of War, John Eaton, decided that 35 after 1830 no Cherokee Nation existed in the east; 36 hence, there was no Cherokee Treasury to whom the 37 government could pay its share of the tribal annuity. 38 Eaton's solution was to divide the $6,666.66 dollars 39 in the annuity, the total of 14,400 Cherokees and to 40 issue instructions that each Cherokee that had a 41 family could apply to the federal agent for his 45 42 cent share. According to McLoughlin, Eaton's decision 43 was an obvious form of harrassment designed to prevent 44 the Cherokees from effectively governing their nation 45 and bringing their test cases to court. 46 Now, the first opportunity for such a test case 47 occurred in the fall of 1830 when Georgia arrested a 24251 Submissions by Mr. Jackson 1 Cherokee named for the murder of another Cherokee. He 2 was arrested by the Georgia Guard and tried and 3 condemned to death. Wirt applied to the federal court 4 to free Tassell on a writ of error and the ground that 5 Georgia had no jurisdiction over a crime that, under 6 the terms of their treaties, was within the 7 self-governing rights of the Cherokee Nation. Before 8 any federal court could make a ruling on this the 9 authorities in Georgia executed Tassell, making the 10 issue moot. 11 The second test case, my lord, was the next of the 12 Marshall decisions to which I will be referring, the 13 case of Cherokee Nation and Georgia. And this case 14 was initiated by William Wirt in 1831 and in it the 15 Cherokees sought an injunction in the United States 16 Supreme Court to restrain the State of Georgia from 17 giving effect to its new laws attempting to exercise 18 jurisdiction within Cherokee territory. The Cherokees 19 alleged that these laws would eradicate their culture, 20 language, government, institutions, laws and customs 21 and would deprive them of their property and that the 22 laws were in direct conflict with the solemn treaties 23 they had concluded with the United States. My lord, 24 on March 3, a majority of the court ruled in Cherokee 25 Nation and Georgia that it had no jurisdiction to hear 26 the case. 27 And, my lord, I should point out this was a case 28 which went to the Supreme Court by virtue of its 29 original jurisdiction under the Constitution to 30 determine a controversy between a state and a foreign 31 state, and therefore the jurisdictional issue which 32 the Supreme Court was faced with was whether or not -- 33 clearly Georgia was a state; the question was: Was 34 the Cherokees a foreign state within the meaning of 35 the terms of the United States Constitution, Article 36 III. And the majority of the court determined that 37 the Cherokees were not a foreign state and therefore 38 declined to hear the case. Writing for the majority 39 of the court, Chief Justice Marshall acknowledged that 40 the Cherokees were a state within the meaning of the 41 Constitution and on that issue he held, and I will 42 just read part of the passage set out at the top of 43 page 73: 44 45 \"So much of the argument as was intended to 46 prove the character of the Cherokees as a 47 State, as a distinct political society 24252 Submissions by Mr. Jackson 1 separated from others, capable of managing its 2 own affairs and governing itself, has, in the 3 opinion of a majority of the judges, been 4 completely successful.\" 5 6 In the next passage, my lord, the Chief Justice 7 gave his reasons as to why, however, the Cherokee 8 Nation were not a foreign state within the meaning of 9 the Constitution. And on this point he said: 10 11 \"Though the Indians are acknowledged to have an 12 unquestionable, heretofore, unquestioned right 13 to the lands they occupy until that right 14 shall be extinguished by a voluntary session 15 to our government, yet it may well be doubted 16 whether those tribes which reside within the 17 acknowledged boundaries of the United States 18 and, with strict accuracy...\" 19 20 That should be: 21 22 \"...can, with strict accuracy, be denominated 23 foreign nations. They may more correctly, 24 perhaps, be denominated domestic dependent 25 nations. They occupy a territory to which we 26 assert a title independent of their will, 27 which must take effect in point of possession 28 when their right of possession ceases. 29 Meanwhile they are in a state of pupilage. 30 Their relation to the United States resembles 31 that of a ward to his guardian.\" 32 33 And later on he went on to say: 34 35 \"...They and their country are considered by 36 foreign nations as well as by ourselves, as 37 being so completely under the sovereignty and 38 dominion of the United States, that any attempt 39 to acquire their lands, or to form a political 40 connection with them, would be considered by 41 all as an invasion of our territory and an act 42 of hostility.\" 43 44 We say, my lord, at page 74 that this statement of 45 the court contained two different legal statements, 46 the first of which is a property statement, and the 47 passage underlined in the first paragraph of page 73 24253 Submissions by Mr. Jackson 1 affirms that the Indians have an unquestionable right 2 to the lands they occupy until that right is 3 extinguished by a voluntary session. So already, my 4 lord, here the Marshall court is moving away from any 5 argument or interpretation of Johnson and Mcintosh 6 that unilaterally the United States can extinguish 7 aboriginal rights to land. The title asserted by the 8 United States to Indian lands by virtue of the 9 doctrine of discovery did not vest it with present 10 possession of those lands. The United States could 11 only take possession of Indian lands when the Indians' 12 own right of possession is extinguished by voluntary 13 session. Until such extinguishment the Indians 14 enjoyed a legal right to the exclusive possession of 15 those lands. 16 The second statement on page 73 is a 17 jurisdictional statement and it's one upon with which 18 Chief Justice Marshall would expand and significantly 19 modify a year later in Worcester and Georgia. But 20 right in the context of the court's earlier statement 21 about Cherokee statehood it is clear from Cherokee 22 Nation and Georgia that the only jurisdictional limit 23 on the Cherokee Nation is one again derived from the 24 doctrine of discovery and that is one which excludes 25 other foreign nations from entering into territorial 26 and political relations with them. 27 My lord, at page 75, I note that there was a 28 dissent in this case written by Justice Thompson in 29 which Justice Story joined, and they concluded that 30 the Cherokee Nation were indeed a foreign state. And 31 I will take your lordship next to the bottom of page 32 76 where Justice Thompson addressed himself to the 33 relationship between propriety and jurisdictional 34 rights in his conception of a doctrine of aboriginal 35 rights. And at the top of page 77 Justice Thompson 36 said -- 37 THE COURT: 77? 38 MR. JACKSON: Yes. I have just moved over from page 76 to 77. 39 40 \"And notwithstanding we do not recognize the 41 right of the Indians to transfer the absolute 42 title of their lands to any other than 43 ourselves...\" 44 45 That of course is the exclusive principle, the 46 principle of exclusivity in terms of only conveying 47 lands to the discovery and sovereign. 24254 Submissions by Mr. Jackson 1 2 \"...the right of occupancy is admitted to 3 remain in them, accompanied with the right to 4 self-government according to their customs; and 5 with the competency to act in a national 6 capacity, although placed under the protection 7 of the whites and owing a qualified subjection 8 so far as is requisite for public safety. But 9 the principal is universally admitted, that 10 this occupancy belongs to them as a matter of 11 right, and not by mere indulgence. They cannot 12 be disturbed in the enjoyment of it, or 13 deprived of it, without their free consent; or 14 unless a just and necessary war would sanction 15 their dispossession.\" 16 17 And, my lord, we say that that dissenting opinion 18 becomes the majority decision in Worcester and 19 Georgia. I note, my lord, at the bottom of page 77 a 20 point which Professor Burke, a noted American Indian 21 Rights scholar, in his article on the Cherokee cases 22 has made part of the public domain that the dissent of 23 Justice Thompson and Story was one encouraged by Chief 24 Justice Marshall himself. 25 THE COURT: I don't think I can act on that. 26 MR. JACKSON: No, my lord. I did provide for your lordship's 27 edification, but one thing I would point out to your 28 lordship is in the subsequent law report, it seemed 29 law reporters had more leeway in terms of what they 30 reported in those days. In a subsequent volume, a 31 special volume on the Cherokee case as reported by Mr. 32 Peters, Justice Story, in commenting on the volume 33 which included all the material, the Cherokee Georgia 34 Laws, a legal opinion from Chancellor Kent on the 35 Cherokee claims, Justice Story noted the following: 36 37 \"The publication would do a great deal of good, 38 the subject unites the moral sense of all New 39 England - It comes home to the religious 40 feelings of our people. It touches their 41 sensibilities, and sinks to the very bottoms of 42 their sense of Justice - Depend on it there is 43 a depth of degradation in our national conduct, 44 which will irresistibly lead to better things.\" 45 46 And I think Justice Story was perhaps signalling the 47 case of Worcester and Georgia, because the issues 24255 Submissions by Mr. Jackson 1 which the court had sought to avoid in Cherokee 2 Nation and Georgia in 1831 came back to the court in 3 1832 in that case, and this time the Supreme Court 4 heard the case. The background to the case, my lord, 5 briefly is that Samuel Worcester was a white 6 missionary who had left his previous tenure in Vermont 7 to preach Christianity amongst the Cherokees. And he 8 had spoken out vigorously against the Removal Bill. 9 In 1830, the Secretary of War had curtailed all 10 grants, all federal grants, to the missionaries on the 11 basis that it was felt that they were encouraging the 12 Cherokees to remain in their homelands rather than 13 encouraging them to move across the Mississippi. 14 Georgia, in 1829, passed as part of its laws one which 15 required all white men, apparently women were exempted 16 from this, living within the area formerly claimed by 17 the Cherokees to obtain a licence by the state and 18 take an oath of allegiance to obey the laws of the 19 State of Georgia and Worcester and one of his 20 colleagues refused to take the oath. 21 Page 80, my lord, having so refused they were 22 prosecuted, they were found guilty and sentenced to 23 four years at hard labour in the Georgia penitentiary 24 and it was that conviction which gave rise to an 25 appeal to the Supreme Court which led to the judgment 26 in Worcester and Georgia. At page 80 I note that the 27 lawyers for the appellants, the two missionaries, 28 argued the case on labourious grounds to raise before 29 the Supreme Court the constitutionality of the Georgia 30 laws. I note at page 80, my lord, that Chief Justice 31 Marshall, in the remarkably small space of two weeks, 32 wrote the judgment for the majority of the court, and 33 of course your lordship will be comforted by the fact 34 that while we will be asking your lordship to make 35 findings of law paralleling in many ways the finding 36 of Chief Justice Marshall in Worcester and Georgia, 37 there is no parallel expectation that your lordship 38 will render judgment in so timely a fashion. It is 39 remarkable, my lord, Chief Justice Marshall didn't 40 even have a computer. But at page 81, my lord, it is 41 the plaintiff's submission that Worcester and Georgia 42 provides the clearest and most comprehensive judicial 43 articulation of the concept of aboriginal rights to be 44 found in the common law. The ambiguities created by 45 the previous attempts by the court to formulate 46 principles for the adjudication of disputes involving 47 aboriginal rights were directly addressed and 24256 Submissions by Mr. Jackson 1 resolved. It is submitted that the case stands as the 2 culmination of an evolving doctrine on aboriginal 3 rights and that it is properly regarded as the 4 judicial centrepiece of that law. In his judgment, 5 Chief Justice Marshall examines in detail the doctrine 6 of discovery, the Crown charters, the system of Crown 7 property grants, British and American law and policy 8 regarding aboriginal land rights and the national 9 character and jurisdiction of Indian nations. Most 10 importantly, the judgment also articulates the 11 principle of Indian consent to any changes in the 12 territorial integrity of Indian nations. 13 At the beginning of his judgment the Chief Justice 14 characterized the nature of the Georgia legislation. 15 And, my lord, the judgment can be found at volume -- 16 no, I think I have -- it's volume 13, tab 60, and what 17 I have done, my lord, and again I will principally be 18 referring to the material in my text, but I have taken 19 the liberty of — 20 THE COURT: Well, Mr. Jackson, are you going to be arguing 21 that -- well, put it another way. Do you say that 22 that can stand alongside the judgments in Calder, for 23 example, which really said there could be 24 extinguishment of rights, the question being whether 25 they were? 26 MR. JACKSON: Yes, my lord. It is our position that the court 27 in Calder, in concluding that aboriginal rights can be 28 extinguished unilaterally, is not good law and is not 29 law your lordship should follow. 30 THE COURT: Well, that's asking me to do a pretty brave thing, 31 isn't it? 32 MR. JACKSON: My lord, we have a further submission. 33 THE COURT: Surely you should make that argument in the Supreme 34 Court of Canada. 35 MR. JACKSON: My lord, we say that the court in Calder was 36 addressed with the issue of why or why not 37 extinguishment could be done implicitly or explicitly. 38 No argument was addressed to the court in Calder that 39 Indian consent was a prerequisite to the 40 extinguishment of aboriginal title and we therefore 41 have a number of submissions on the proper test for 42 extinguishment, one of which is that consent is a 43 prerequisite, another of those submissions, an 44 alternative submission, is that only expressed 45 extinguishment can -- 46 THE COURT: I understand that dichotomy. I am a little startled 47 by your proposition that I should disregard what seems 24257 Submissions by Mr. Jackson 1 to me to be a conclusion of the Supreme Court of 2 Canada. 3 MR. JACKSON: My lord — 4 THE COURT: And I think privy council before it. 5 MR. JACKSON: My lord, we are in fact, particularly through our 6 arguments in relation to the Royal Proclamation, 7 saying that the principle of consent is a principle 8 which has special status. That was not an argument 9 which was addressed in Calder. Of course all the 10 judges in Calder felt the case could be dealt with 11 quite apart from the Royal Proclamation as a matter of 12 common law and therefore our submission is one -- 13 which were not made in Calder, and therefore we say 14 were not determined by Calder. 15 THE COURT: Well, I thought I was expected to follow the 16 judgment of the Supreme Court of Canada. 17 MR. JACKSON: My lord, it will be our submission that, to the 18 extent that these arguments were not before the court, 19 that your lordship ought not to construe that judgment 20 as precluding your lordship from ruling on this 21 particular issue. The Worcester and Georgia decision, 22 my lord, to the extent we are relying upon, it is not 23 only one which we say affirms as a matter of the 24 common law the principle of consent. We are also 25 saying that the decision of Worcester and Georgia 26 affirms also as a principle of the common law that 27 aboriginal rights embraces a jurisdictional component, 28 and therefore Worcester and Georgia is important to 29 the plaintiff's argument on a variety of bases, the 30 principle of consent being one of them, but of course 31 the principle of consent we say is something which is 32 imbedded in the common law as it is imbedded in the 33 Royal Proclamation. 34 THE COURT: Well, as I said this morning, you use up your time 35 any way you want. You could reserve that position to 36 argue it in another court but, if you want to argue it 37 here, you are free to do so. 38 MR. JACKSON: Thank you, my lord. What I have done, my lord, is 39 to take the tiny text of Worcester and Georgia, and I 40 have put it through the photocopying machine and 41 enlarged it somewhat. It is still nothing like the 42 normal scription but if your lordship would be aided 43 by that — 44 THE COURT: Yes, all right. 45 MR. JACKSON: So page 81, my lord: 46 47 \"It has been said at the Bar that the acts of 2425? Submissions by Mr. Jackson 1 the Legislature of Georgia seize on the whole 2 Cherokee country, parcel it out among the 3 neighbouring counties of the State, extend her 4 code over the whole country, abolish its 5 institutions and its laws, and annihilate its 6 political existence.\" 7 8 THE COURT: Where did you find that? 9 MR. JACKSON: This is the bottom of page 81, my lord. 10 THE COURT: I am sorry, I was looking at the report. Thank you. 11 Yes, thank you. 12 MR. JACKSON: 13 14 \"If this be the general effect of the system, 15 let us inquire into the effect of the 16 particular statute and section on which the 17 indictment is founded... The very passage of 18 this act is an assertion of jurisdiction over 19 the Cherokee Nation, and of the rights and 20 powers consequent on jurisdiction.\" 21 22 And it was in examining, my lord, the rightfulness of 23 this claim that the Chief Justice restated as his 24 first proposition the doctrine of discovery, restated 25 it in a way which makes it crystal clear that 26 discovery, as a foundation of title, only regulated 27 the rights of European nations. And I am going to 28 read this passage, my lord, because this again is the 29 passage which is much cited in later decisions and 30 your lordship will see it recited in Calder. 31 32 \"America, separated from Europe by a wide ocean, 33 was inhabited by a distinct people, divided 34 into separate nations, independent of each 35 other and of the rest of the world, having 36 institutions of their own, and governing 37 themselves by their own laws.\" 38 39 And you will see, my lord, that particular passage 40 becomes part of the foundation for Mr. Justice 41 Mahoney's statement in Baker Lake but one of the tests 42 of aboriginal rights is that the claimants, those who 43 would assert aboriginal rights have and our members of 44 an organized society. Mr. Justice Mahoney takes the 45 root of that requirement from this passage from 46 Worcester and Georgia. 47 24259 Submissions by Mr. Jackson 1 \"It is difficult to comprehend the proposition, 2 that the inhabitants of either quarter of the 3 globe could have rightful original claims of 4 dominion over the inhabitants of the other, or 5 over the lands they occupied; or that the 6 discovery of either by the other should give 7 the discoverer rights in the country 8 discovered, which annulled the pre-existing 9 rights of its ancient possessors. 10 After lying concealed for a series of ages, the 11 enterprise of Europe guided by nautical 12 science, conducted some of her adventurous sons 13 into this western world. They found it in 14 possession of a people who had made small 15 progress in agriculture or manufacturers, and 16 whose general employment was war, hunting and 17 fishing.\" 18 19 And, my lord, just stopping there, Mr. Justice Hall in 20 Calder, while acclaiming the Chief Justice's judgment 21 in Worcester and Georgia, noted I think quite 22 appropriately that even Chief Justice Marshall in the 23 19th century had a limited vision of the real nature 24 of organized societies, but of course there was not 25 the same evidentiary foundation before him as your 26 lordship has. 27 28 \"Did these adventurers, by sailing along the 29 coast and occasionally landing on it, acquire 30 for the several governments to whom they 31 belong, or by whom they were commissioned, a 32 rightful property in the soil from the Atlantic 33 to the Pacific, or rightful dominion over the 34 numerous people who occupied it? Or has 35 nature, or the Great Creator of all things, 36 conferred these rights over hunters and 37 fishermen, on agriculturalists and 38 manufacturers? 39 But power, war, conquests, give rights, which, 40 after possession, are conceded by the world; 41 and which can never be contraverted by those on 42 whom they descend. We proceed, then, to the 43 actual state of things, having glanced at their 44 origin, because...\" 45 46 I think that's a reflection of your lordship's 47 comments yesterday, my lord: 24260 Submissions by Mr. Jackson 1 2 \"...because holding it in our recollection might 3 shed some light on existing pretension. 4 The great maritime powers of Europe discovered 5 and visited different parts of this continent 6 at nearly the same times. The object was too 7 immense for any one of them to grasp the whole, 8 and the claimants were too powerful to submit 9 to the exclusive or unreasonable pretensions of 10 any single potentate. To avoid bloody 11 conflicts, which might terminate disastrously 12 to all, it was necessary for the nations of 13 Europe to establish some principle which all 14 would acknowledge, and which should decide 15 their respective rights as between themselves. 16 This principle, suggested by the actual state 17 of things, was that discovery gave title to the 18 government by whose subjects or by its 19 authority it was made, against other European 2 0 governments which title might be consummated by 21 possession.\" 22 23 And he cites the previous judgment in Johnson and 24 Mcintosh. 25 26 \"This principle, acknowledged by all Europeans, 27 because it was the interest of all to 28 acknowledge it, gave to the nation making the 29 discovery, as its inevitable consequence, the 30 sole right of acquiring the soil and of making 31 settlements on it. It was an exclusive 32 principle which shut out the right of 33 competition among those who had agreed to it; 34 not one which could annul the previous rights 35 of those who have not agreed to it. It 36 regulated the right given by discovery among 37 the European discoverers, but could not affect 38 the rights of those already in possession, 39 either as aboriginal occupants, or as occupants 40 by virtue of a discovery made before the memory 41 of man. It gave the exclusive right to 42 purchase, but did not found that right on a 43 denial of the right of the possessor to sell.\" 44 45 And we say that this passage establishes and 46 clarifies three points of fundamental importance. 47 First, that the principle of discovery bound only the 24261 Submissions by Mr. Jackson 1 European nations who had agreed to it; secondly, the 2 discovery did not prejudice the pre-existing rights of 3 aboriginal peoples; and thirdly, that the right 4 conferred upon European nations by discovery was the 5 exclusive right to purchase the rights of aboriginal 6 peoples. It gave the right of pre-emption but did not 7 give an immediate right of beneficial ownership. 8 And page 84, my lord, I point out that the Chief 9 Justice, having held that the United States succeeded 10 to all the claims of Great Britain, both territorial 11 and political, proceeded to review the nature of 12 British claims in North America. And I've set out for 13 your lordship at page 84 what he had said about this 14 in Johnson and Mcintosh. And this is the passage your 15 lordship commented on as to what he might have meant: 16 17 The British Government ... asserted a title to 18 all the lands occupied by Indians ... It 19 asserted also a limited sovereignty over them 20 ... These claims have been maintained and 21 established as far west as the Mississippi by 22 the sword. The title to a vast portion of the 23 lands we now hold originates in them, it is not 24 for the courts of this country to question the 25 validity of this title, or to sustain one which 26 is incompatible with it.\" 27 28 In Worcester and Georgia the Chief Justice makes 29 it very clear what exactly is the nature of the title 30 asserted by these royal charters. And this is a 31 passage, my lord, which I read to your lordship at the 32 very beginning of my submissions last week. I think 33 it bears repetition. 34 35 \"Soon after Great Britain determined on planting 36 colonies in America, the King granted charters 37 to companies of his subjects ... The first of 38 these charters was made before possession was 39 taken... They purport, generally, to convey 40 the soil, from the Atlantic to the South Sea. 41 This soil was occupied by numerous and warlike 42 nations, equally willing and able to defend 43 their possession. The extravagant and absurd 44 idea that the feeble settlements made on the 45 sea-coast or the companies under whom they were 46 made, acquired legitimate power by them to 47 govern the people, or occupy the lands from sea 24262 Submissions by Mr. Jackson 1 to sea, did not enter the mind of any man. 2 They were well understood to convey the title 3 which, according to the common law of European 4 sovereigns respecting America, they might 5 rightfully convey, and no more. This was the 6 exclusive right of purchasing such lands as 7 the Natives were willing to sell. The Crown 8 could not be understood to grant what the Crown 9 did not affect to claim, nor was it so 10 understood.\" 11 12 His lordship then goes on to deal with the question of 13 the power of conquest. 14 15 \"The power of making war is conferred by these 16 charters of the colonies, but defensive war 17 alone seems to have been contemplated... The 18 charter to Connecticut concludes a general 19 power to make defensive war with these terms: 20 'And upon just causes to invade and destroy the 21 natives or other enemies of the said 22 colony.'... This power to repel invasion, and, 23 upon just cause, to invade and destroy the 24 natives, authorizes offensive as well as 25 defensive war, but only 'on just cause'... 26 These motives for planting the new colony are 27 incompatible with the lofty ideas of granting 28 the soil and all its inhabitants from sea to 29 sea. They demonstrate the truth that these 30 grants asserted a title against Europeans 31 only, and were considered as blank paper so 32 far as the rights of the natives were 33 concerned. Power of war is given only for 34 defence, not for conquest.\" 35 36 And in these passages, my lord, we say at the bottom 37 of page 85 that the Chief Justice was affirming the 38 propositions which Lord Dorchester and the American 39 Commissioners had stated as the foundations of British 40 and American law in 1791 and 1793, that the legal 41 effect of territorial arrangements which Britain and 42 America had made was as between themselves and did not 43 affect the pre-existing aboriginal rights of the 44 original inhabitants. And we say it is also clear 45 from these passages that, to the extent that his 46 comments in Worcester and Georgia, Johnson and 47 Macintosh may have suggested a judicial mythology of 24263 Submissions by Mr. Jackson 1 conquest, a theory of conquest as the foundation of 2 British rights to land in North America was expressly 3 repudiated in his statements in Worcester and Georgia. 4 The Chief Justice next reviewed the evolving 5 development of relationships between European nations 6 and Indian nations particularly in terms of 7 interference with the latter's powers of 8 self-government. And he said: 9 10 \"Not well acquainted with the exact meaning of 11 words, nor supposing it to be material whether 12 they were called the subjects, or the children 13 of their father in Europe; lavish in 14 professions of duty and affection, in return 15 for the rich presents they received; so long as 16 their actual independence was untouched, and 17 their right to self government acknowledged, 18 they were willing to profess dependence on the 19 power which furnished supplies of which they 20 were in absolute need, and restrained dangerous 21 intruders from entering their country; and this 22 was probably the sense in which the term was 23 understood by them. 24 Certain it is, that our history furnishes no 25 example, from the first settlement of our 26 country of any attempt on the part of the Crown 27 to interfere with the internal affairs of the 28 Indians, farther than to keep out the agents of 29 foreign powers, who, as traders or otherwise, 30 might seduce them into foreign alliances.\" 31 32 The next passage is significant. 33 34 \"The king purchased their lands when they were 35 willing to sell, at a price they were willing 36 to take; but never coerced a surrender of 37 them. He also purchased their alliance and 38 dependence by subsidies; but never intruded 39 into the interior of their affairs, or 40 interfered with their self government, as far 41 as respected themselves only.\" 42 43 And, my lord, the Chief Justice then proceeded to cite 44 the Royal Proclamation, and he did so as a reflection 45 of the position of Great Britain with regard to the 46 rights of the Indians. He also cited a statement of 47 Superintendent Stewart, that's John Stewart, the 24264 Submissions by Mr. Jackson 1 Superintendent of the southern colonies, delivered in 2 the year of the Proclamation that \"whenever you shall 3 be pleased to surrender any of your territories to His 4 Majesty, it must be done, for the future, at a public 5 meeting of your nation, when the Governors of the 6 Provinces or the Superintendent shall be present and 7 obtain the consent of all your people\". 8 These, my lord, are the common law principles 9 which Chief Justice Marshall saw as being entrenched 10 by the time of the revolution. And in summarizing the 11 British Indian Policy, the Chief Justice said: 12 13 \"Such was the policy of Great Britain towards 14 the Indian nations inhabiting the territory 15 from which he excluded all other Europeans; 16 such her claims, and such her practical 17 exposition of the charters she had granted; she 18 considered them as nations capable of 19 maintaining the relations of peace and war; of 20 governing themselves under her protection; and 21 she made treaties with them, the obligation of 22 which she acknowledged.\" 23 24 And the Chief Justice then proceeded to review the 25 course of treaty-making continued by the United States 26 after the revolution in the British tradition. And it 27 was at this point that he addressed the specific terms 28 of the treaty of Hopewell, and he noted that it 29 acknowledged that the Cherokees were under the 30 protection of the United States of America and of no 31 other power. 32 My lord, you will recall how in Cherokee Nation 33 and Georgia, the Chief Justice had referred to the 34 Cherokees as \"domestic dependent nations\". In 35 Worcester, he clarified the meaning of this concept: 36 37 \"The third article (of the treaty of Hopewell) 38 acknowledges the Cherokee to be under the 39 protection of the United States and of no other 40 power. This stipulation is found in Indian 41 treaties generally. It was introduced into 42 their treaties with Great Britain: and may 43 probably be found in those with other European 44 powers. Its origin may be traced to the nature 45 of their connection with those powers; and its 46 true meaning is discerned in their relative 47 situation.\" 24265 Submissions by Mr. Jackson 1 2 We say this is significant, my lord, because we 3 say that one of the fundamental principles in the 4 common law is the protectorate relationship and the 5 protectorate obligation of the Crown consequent upon 6 the imposition of the doctrine of discovery and the 7 limitation on the Indian nations to sell or transfer 8 their rights to any other than the discovery nation, 9 fiduciary obligation which was affirmed by the Supreme 10 Court. 11 12 The general law of European sovereigns, 13 respecting their claims in America, limited the 14 intercourse of Indians, in a great degree, to 15 the particular potentate whose ultimate right 16 of domain was acknowledged by the others. This 17 was the general state of things in times of 18 peace. It was sometimes changed in war... 19 Goods, indispensable to their comfort, in the 20 shape of presents, were received from the same 21 hand. What was of still more importance, the 22 strong hand of government was interposed to 23 restrain the disorderly and licentious from 24 intrusions into their country, from 25 encroachments on their lands and from those 26 acts of violence which were often attended by 27 reciprocal murder. The Indians perceived in 28 this protection only what was beneficial to 29 themselves - an engagement to punish 30 aggressions on them. It involved, 31 practically, no claim to their lands, no 32 dominion over their persons. It merely bound 33 the nation to the British Crown as a dependent 34 ally, claiming the protection of a powerful 35 friend and neighbour, and receiving the 36 advantages of that protection, without 37 involving a surrender of their national 38 character. 39 This is the true meaning of the stipulation, 40 and is undoubtedly the sense in which it was 41 made.\" 42 43 And later in his judgment, the Chief Justice 44 specifically equated the concept of a protectorate 45 relationship to the Law of Nations. 46 47 \"...the settled doctrine of the law of nations 24266 Submissions by Mr. Jackson 1 is that a weaker power does not surrender its 2 independence - its right to self government, 3 by associating with the stronger and taking 4 its protection. A weak state, in order to 5 provide for its safety, may place itself under 6 the protection of one more powerful without 7 stripping itself of the right of government, 8 and ceasing to be a state. Examples of this 9 kind are not wanting in Europe... at the 10 present day more than one state may be 11 considered as holding its right of self 12 government under the guarantee and protection 13 of one or more allies.\" 14 15 We say this is of some importance in that the 16 Provincial Government's amended -- Further Amended 17 Statement of Defence, paragraph 39, the Provincial 18 Defendant pleads that the plaintiffs have acquiesced 19 in the Defendant's sovereign jurisdiction by seeking 20 and receiving, among other things, protection from 21 her. If this could be construed as the case, we 22 submit that applying the principles of Worcester and 23 Georgia, the Gitksan and Wes'suwet'en acceptance of 24 protection from the Crown, could not be seen as a 25 matter of law as giving up or diminishing its right of 26 government or territorial ownership. 27 My lord, at page -- the bottom of page 89 and page 28 90, I refer to the Chief Justice's interpretation of 29 the provisions in the Treaty of Hopewell to a 30 guarantee of the Indians' hunting grounds. And we 31 say, and my friend Mr. Rush has addressed you on this, 32 that hunting grounds when used in the Royal 33 Proclamation were used in a way as the Chief Justice 34 in Worcester and Georgia defines them. And what he 35 says is: 36 37 \"Hunting was at the time the principle 38 occupation of the Indians, and their land was 39 more used for that purpose than for any other. 40 It could not, however, be supposed that any 41 intention existed of restricting the full use 42 of the lands they reserved. 43 ...These terms had been used in their treaties 44 with Great Britain, and had never been 45 misunderstood. They had never been supposed to 46 imply a right in the British government to take 47 their lands, or to interfere with their 24267 Submissions by Mr. Jackson 1 internal government.\" 2 3 And we say that's of importance, my lord, because 4 it is part of our submission that the Royal 5 Proclamation guarantees not simply lands for hunting, 6 it is not an attempt to freeze the beneficial interest 7 of Indian nations to a historical point in time. We 8 say that the Royal Proclamation, in guaranteeing the 9 Indians' hunting grounds, was an affirmation of their 10 rights to internal self-government and we say that the 11 interpretation which is placed upon that term by the 12 Chief Justice in Worcester and Georgia is supporting 13 authority and is a principle interpretation of those 14 phrases. There is also another clause which the Chief 15 Justice interprets in the Treaty of Hopewell which we 16 say throws further light on the pre-existing right of 17 jurisdiction of Indian nations. 18 The ninth article of the Treaty of Hopewell is set 19 out at the bottom of page 90, and it provides that the 20 United States shall have the sole and exclusive right 21 of regulating the trade with the Indians and managing 22 all their affairs as they think proper. And I will 23 just refer your lordship to two parts of the next 24 citation where the Chief Justice says: 25 26 \"To construe the expression 'managing all their 27 affairs' into a surrender of self-government, 28 would be, we think, a perversion of their 29 necessary meaning, and a departure from the 30 construction which has been uniformly put on 31 them.\" 32 33 And then at the bottom sentence of that site: 34 35 \"... It would convert a treaty of peace 36 covertly into an act annihilating the political 37 existence of one of the parties. Had such a 38 result been intended, it would have been openly 3 9 avowed.\" 40 41 And I will be returning to that passage, my lord, when 42 considering the question of whether or not rights of 43 jurisdiction are affirmed or negated by the Canadian 44 treaties. Addressing himself specifically to the 1791 45 Treaty of Holston, the Chief Justice stated: 46 47 \"This Treaty, thus expliciting recognizing the 2426? Submissions by Mr. Jackson 1 national character of the Cherokees, and their 2 right of self government, thus guaranteeing 3 their land; assuming the duty of protection, 4 and of course, pledging the faith of the United 5 States for that protection, has been frequently 6 renewed and is now in full force.\" 7 8 And then refers to the various congressional acts, 9 particularly the Trade and Intercourse Act, and makes 10 the point: 11 12 \"All these acts, and especially that of 1802, 13 manifestly consider the several Indian nations 14 as distinct political communities, having 15 territorial boundaries, within which their 16 authority is exclusive, and having a right to 17 all the lands within those boundaries, which is 18 not only acknowledged, but guaranteed by the 19 United States.\" 20 21 Now, my lord, it has been said of Worcester and 22 Georgia that the principles which the Chief Justice 23 espoused there are principles derived from the 24 particular treaties signed with the Cherokee, and 25 therefore the decision on anything else is obiter. 26 My lord, as I have said, we are not citing 27 Worcester and Georgia or any other American case on 28 the basis that it is a precedent which your lordship 29 is bound to follow. In any event, however, my lord, 30 what we say about Worcester and Georgia is that within 31 the structure of his judgment, he makes it very clear 32 that his interpretation of these particular treaties 33 are but examples of the general principles which he 34 says form the foundation for the relationship between 35 aboriginal nations and the Crown. And that's why in 36 going through his judgment I first identified the 37 Chief Justice's location in those principles in the 38 practice of the Crown before the revolution, its 39 continuance after the revolution, and his then turning 40 to the treaties as specific illustrations of those 41 principles. As to those principles, my lord, page 92, 42 we say that these principles recognize the Indians' 43 right of self-government, their jurisdiction, they 44 guarantee their pre-existing rights to lands within 45 their territorial boundaries, their ownership, and 46 recognize a protectorate relationship between Indian 47 nations and the Crown. We say that these principles 24269 Submissions by Mr. Jackson 1 are the legal chain linking Chief Justice Marshall's 2 opinion in the same way as we submit these fundamental 3 principles are the chain linking pre- and 4 post-Proclamation law and practice in Canadian 5 territories, and are the principles upon which the 6 common law is forged. 7 The Chief Justice also cited other congressional 8 legislation which he interpreted to be consistent with 9 the recognition of both the political and territorial 10 integrity of the Cherokees, and his comments in this 11 regard are particularly relevant to the Federal 12 Government's statement of extinguishment, and he notes 13 that: 14 15 \"In 1819, Congress passed an Act for promoting 16 those humane designs of civilizing...\" 17 18 THE COURT: Sorry, what is this 1819? 19 MR. JACKSON: It is a congressional act, my lord. 20 THE COURT: One of the intercourse acts. 21 MR. JACKSON: No, I think — 22 THE COURT: Or a different one. 23 MR. JACKSON: It is another act which was designed to civilize 24 the Indians, my lord. 2 5 THE COURT: Thank you. 26 MR. JACKSON: I think it may actually have that title. 27 28 \"In 1819, Congress passed an act for promoting 29 those humane designs of civilizing the 30 neighbouring Indians among which had long been 31 cherished by the executive. It enacts, that, 32 for the purpose of providing against the 33 further decline and final extinction of the 34 Indian tribes adjoining to the frontier 35 settlements of the United States and for 36 introducing among them the habits and arts of 37 civilization, the president of the United 38 States shall be, and is hereby authorized, in 39 very case...\" 40 41 THE COURT: That means every case, does it? 42 MR. JACKSON: Yes, my lord. 43 44 \"...where he shall judge improvement in the 45 habits and condition of such Indians 46 practicable, and that the means of instruction 47 can be introduced with their own consent, to 24270 Submissions by Mr. Jackson 1 employ capable persons, of good moral 2 character, to instruct them in the mode of 3 agriculture suited to their situation; and for 4 teaching their children in reading, writing and 5 arithmetic... \" 6 7 The Chief Justice says: 8 9 \"This act avowedly contemplates the preservation 10 the Indian nations as an object sought by the 11 United States, and proposes to effect this 12 object by civilizing and converting them from 13 hunters into agriculturalists. Though the 14 Cherokees had already made considerable 15 progress in this improvement, it cannot be 16 doubted that the general words of the act 17 comprehend them. Their advance in the 'habits 18 and arts of civilization' rather encouraged 19 preserverence in the laudable exertions still 20 further to ameliorate their condition. This 21 act furnishes strong additional evidence of a 22 settled purpose to fix the Indians in their 23 country by giving them security at home.\" 24 25 And it is our submission that in this passage the 26 Chief Justice acknowledged explicitly the significant 27 changes the Cherokees had made in their traditional 28 economy and society and while, in ethnocentric terms, 29 he characterized this as an advance in the habits and 30 arts of civilization, he in no way suggested that 31 these changes constituted a basis for the negation or 32 diminution of Cherokee rights to their lands and their 33 rights to exercise jurisdiction within those lands. 34 Indeed, the guarantees of their territorial and 35 political integrity are seen by the Court as the 36 essential pre-conditions to encourage changes in the 37 Indian economy. We say that quite clearly, Chief 38 Justice Marshall would have had no difficulty in 39 ridiculing and repudiating the Federal Defendant's 40 position in this case that by expanding and modifying 41 their economy by introducing significant elements of 42 the wage and industrial economy, the Gitksan and 43 Wes'suwet'en had in effect forever abandoned and 44 forfeited their rights to their homeland. 45 THE COURT: Can we take the afternoon adjournment, Mr. Jackson, 46 please? 4 7 MR. JACKSON: Yes, my lord. 24271 Proceedings 1 THE REGISTRAR: Order in court. Court stands adjourned for a 2 short recess. 3 4 (PROCEEDINGS ADJOURNED AT 3:00 p.m.) 5 6 7 I hereby certify the foregoing to be 8 a true and accurate transcript of the 9 proceedings herein, transcribed to 10 the best of my skill and ability. 11 12 13 14 15 TANNIS DEFOE, Official Reporter 16 United Reporting Service Ltd. h2 17 Submissions by Mr. Jackson 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 24272 Proceedings 1 (PROCEEDINGS RECONVENED PURSUANT TO RECESS) 2 3 THE REGISTRAR: Order in court. 4 MR. JACKSON: My lord, just for your — 5 THE COURT: I understand, Mr. Jackson, that you're anxious to 6 continue to five tonight. 7 MR. JACKSON: Well, my lord, I won't continue late. 8 THE COURT: Yes. 9 MR. JACKSON: I have been asked to break at four to accommodate 10 the reporters, and I intend to do that, and I think at 11 that point I can advise your lordship just how late. 12 THE COURT: All right. Well, we'll break at four and we'll see 13 where we go from there. You have somebody standing 14 by, have you, Miss French? 15 THE REPORTER: Yes. 16 MR. WILLMS: My lord, I wonder if after the break my friends 17 could also indicate where we are in the big picture. 18 I've heard rumours that we're up to two days behind, 19 suggestions of Saturday sitting. We'd like to know as 20 soon as possible where my friends think they are. 21 MR. JACKSON: It's a good question, my lord. 22 THE COURT: All right. We'll look forward to hearing from you 23 about that in due course. 24 MR. JACKSON: Just one point of clarification, my lord, if 25 you've got Worcester v. Georgia, the report of a case 26 I gave to your lordship -- 2 7 THE COURT: Yes, I do. 28 MR. JACKSON: Just so that your lordship isn't confused when you 29 in due course dip into these cases, the way these 30 cases are reported, the original reports, for example, 31 from Mr. Peters' reporting series, is a U.S. report 32 which is at the top of the page. 33 THE COURT: Yes. 34 MR. JACKSON: These particular reports are in what's called the 35 Lawyer Editions Reports, and so the citation is at the 36 bottom of the page. And all the references to the 37 actual page numbers in my text where you have an 38 alternative cite, United States report and Lawyer's 39 Edition, the Lawyer Edition is at the bottom of the 40 page. 41 THE COURT: At the bottom of the page I see 492. 42 MR. JACKSON: That's the reference which you'll find in the 43 text. 44 THE COURT: That's the page number? 4 5 MR. JACKSON: Yes. 4 6 THE COURT: All right. Thank you. 47 MR. JACKSON: My lord, I was at page 94. And the Chief Justice, 24273 Proceedings 1 in reviewing in summary form the historical experience 2 of Britain and the United States, he said this: 3 4 \"Indian Nations had always been considered as 5 distinct, independent political communities, 6 retaining their original natural rights, as the 7 undisputed possessors of the soil from time 8 immemorial, with the single exception of that 9 imposed by irrestisible power, which excluded 10 them from intercourse with any other European 11 potentate than the first discoverer of the 12 coast of the particular region claimed: and 13 this was a restriction which European 14 potentates imposed on themselves, as well as on 15 the Indians. The very term 'nation', so 16 generally applied to them, means 'a people 17 distinct from others'. The Constitution, by 18 declaring treaties already made, as well as 19 those to be made, to be the supreme law of the 20 land, had adopted and sanctioned the previous 21 treaties with the Indian nations, and 22 consequently admits their rank among those 23 powers who are capable of making. The words 24 'treaty' and 'nation' are words of our 25 language, selected in our diplomatic and 26 legislative proceedings, by ourselves, having 27 each a definite and well-understood meaning. 2 8 We have applied them to Indians, as we have 29 applied them to the other nations of the earth. 30 They are applied to all in the same sense.\" 31 32 My lord, I might note with reference to what I 33 said yesterday, that section 35.3, of the 34 Constitution Act, 1982, in affirming existing treaty 35 rights, also acknowledges that future land claims 36 agreements are treaties for the purposes of 37 constitutional affirmation and protection, and they 38 too are part of the supreme law of the land. And so, 39 my lord, section 35 in many ways takes us back to the 40 first formulation of a common law doctrine of 41 aboriginal rights in the same way as we say it takes 42 us back to the embodiment of those fundamental 43 principles in the Proclamation of 1763. 44 Chief Justice Marshall noted that Georgia herself 45 had, prior to the enactment of the Indian laws in 46 question, had concurred in this position: 47 24274 Proceedings 1 \"Georgia herself has furnished conclusive 2 evidence that her former opinions on this 3 subject concurred with those entertained by her 4 sister states, and by the government of the 5 United States. Various acts of her legislature 6 have been cited in the argument, including the 7 contract of cession made in the 1802, all 8 tending to prove her acquiescence in the 9 universal conviction that the Indian Nations, 10 possessed a full right to the lands they 11 occupied, until that right should be 12 extinguished by the United States, with their 13 consent;\" 14 15 My lord, we say that it is this universal 16 conviction that aboriginal nations have aboriginal 17 rights to their territory encompassing ownership and 18 jurisdiction which cannot be extinguished except by 19 consent, to which our analysis of the pre-Proclamation 20 period has been directed. It is this universal 21 conviction which we submit is the root of the common 22 law and is entrenched in the Royal Proclamation. And 23 it is precisely because it is a universal conviction 24 that we say it applies prospectively both through the 25 Royal Proclamation and as a fundamental principle of 26 the common law to British Columbia. 27 And on the basis of this, my lord, the court 28 concluded that both the act of the state of Georgia 29 under which Worcester was prosecuted and the other 30 Georgia Indian laws were void as being repugnant to 31 the Constitution, laws, and treaties of the United 32 States. 33 Worcester v. Georgia in its recognition and 34 unequivocal affirmation of the aboriginal rights of 35 the Cherokees, should have been a major victory for 36 the Cherokees in their struggles for justice against 37 governments seeking to force them to give up their 38 territory. Unfortunately, the efforts of the Supreme 39 Court to, in the words of Mr. Justice Chapman in the 40 New Zealand case of Simons, to which I will be 41 returning, in which the U.S. Supreme Court, threw its 42 protective decision over the plaintiff nation against 43 a gross attempt at spoliation, did not have its 44 intended effect. Mr. Justice Story, after the court 45 handed down its decision, is recorded as having said 46 \"The Court has done its duty. Let the Nation do 47 theirs.\" 24275 Proceedings 1 Unfortunately in 1832 neither the United States 2 nor the state of Georgia saw their duty as respecting 3 the rights of the Cherokees. The court delivered its 4 opinion on March the 3rd, 1832. Two days later it 5 issued a special mandate to the Georgia court ordering 6 it to reverse its decision and to release the 7 missionaries. The missionaries were not released and 8 a special messenger was sent to Georgia to obtain the 9 necessary official document showing that the state 10 court had refused to enter the Worcester mandate. 11 This messenger rushed back to Washington to get a 12 second degree from the court before the end of the 13 session, but the court rose before he arrived. The 14 second writ could not then be obtained until the court 15 reconvened in January 1833. 16 They had short sessions, my lord in those days. 17 The second writ was never to be issued. Between 18 March 1832 and January 1833 the duty to uphold 19 aboriginal rights became overshadowed by other 20 political considerations in the form of the spectre of 21 the southern states' nullification of federal laws. 22 South Carolina threatened to nullify a federal tariff 23 law and expected the other southern agricultural 24 states to follow suit, and in its action foreshadowed 25 the events, my lord, which were later to erupt in the 26 American Civil War. 27 And we say these events are of significance for a 28 number of reasons, the first one of which is that this 29 was not the first occasion in which the need to 30 accommodate federal state concerns overshadowed the 31 recognition of aboriginal rights. 32 And my friend, Mr. Rush, has already referred you 33 in his opening last Monday, and we will be coming back 34 in some detail, to the ways in which in the early 35 parts of this century when aboriginal peoples sought 36 to place before the courts the issue of whether or not 37 their rights were recognized as a matter of law, how 38 those efforts were bedevilled by the need on the part 39 of the federal and provincial governments to 40 accommodate their own respective interests and the way 41 in which aboriginal rights, as it were, fell between 42 the cracks. 43 The problem facing Jackson can be summarized in 44 this way, my lord, and I've set it out at page 98. I 45 can give your lordship a brief resume. Andrew Jackson 46 wished to enforce federal authority against South 47 Carolina, but how could he do that and not also assert 24276 Proceedings 1 federal authority against Georgia, in light of the 2 supreme court's decision. If he asserted federal 3 authority against Georgia, he might drive Georgia into 4 the southern camp and precipitate the war which was 5 eventually to erupt in the 1860's. 6 Efforts therefore focused on the penitentiary at 7 Milledgeville in which the missionaries were 8 imprisoned, imploring them not to carry the writ back 9 to Worcester, not to carry the writ back to the 10 Supreme Court, not to force Andrew Jackson to make the 11 choice between the national interest, as it was 12 perceived by some, and the recognition of the Cherokee 13 rights. After some consideration, Worcester decided 14 that he would not instruct his lawyers to go back to 15 the supreme court to enforce the original order, and 16 therefore the case never returned to the supreme 17 court, the missionaries were pardoned, and the 18 Cherokees were left to their fate. 19 And I have set out, my lord, what that fate was 20 and, having resolved the spectre of sudden 21 nullification, Jackson then turned his attention to 22 obtain a treaty from the Cherokees by which they would 23 voluntarily agree to move west of the Mississippi and 24 give up their lands to Georgia. 25 And the following account sets out that shameful 26 process. At the bottom of page 99: 27 28 \"Cass\", (Jackson's secretary of war), 29 \"threatened Ross\", principal chief of the 30 Cherokee, \"after the failure of individual 31 immigration, that the Government would treat 32 'with the whole or any portion of your people'. 33 He sent the Reverend J.F. Schermerhorn to 34 acquire part of Cherokee country from the small 35 educated tribal faction that had come to favour 36 removal. This effort failed too, and Jackson 37 and Cass determined they would obtain a treaty 38 for the whole country or none of it. 39 Schermerhorn, meeting the expected opposition 40 from the bulk of the tribe, evolved a 41 'confidential plan'. He arranged a meeting at 42 new Echota with the pro-removal faction and 43 wrote, 'We shall make a treaty with those who 44 attend, and rely upon it. Currey, arranged 45 with the Georgia militia to arrest Ross in his 46 Tennessee home, and prevent him from coming to 47 Washington to protest Schermerhorn's plans. 24277 Proceedings 1 Ross was held in a Georgia jail for 12 days. 2 The militia also, with Schermerhorn's and 3 Currey's collaboration, seized the Cherokees 4 newspapers printing press to prevent the paper 5 from opposing Schermerhorn's treaty. 6 7 Virtually the entire Cherokee tribe stayed away 8 from new Echota; Schermerhorn made his treaty 9 with the few who were there. Major W.M. Davis, 10 appointed before the ratification of the treaty 11 to enrol the tribe for removal, wrote the 12 secretary of war: Sir, that paper, called a 13 treaty is no treaty at all, because not 14 sanctioned by the great body of the Cherokee 15 and made without their participation or assent. 16 I solemnly declare to you that upon its 17 reference to the Cherokee people it would be 18 instantly rejected by nine-tenths of them, and 19 I believe by nineteenth-twentieths of them. 20 They were not present at the conclusion of the 21 treaty more than 100 Cherokee voters and not 22 more than 300 including women and 23 children...Mr. Schermerhorn's apparent design 24 was to conceal the real number present and to 25 impose on the public and the government upon 26 this point. The delegation taken to Washington 27 by Mr. Schermerhorn had no more authority to 28 make a treaty than any other dozen Cherokee 29 accidentally picked out for the purpose. 30 31 Jackson closed his eyes to Schermerhorn's 32 methods and recommended that the Senate ratify 33 the treaty; it did so by one vote. Jackson 34 rejected petitions signed by thousands of 35 Cherokees opposing the treaty, ordered Ross not 36 to come to Washington to oppose the treaty, and 37 refused to recognize the existing Cherokee 38 government. He stated that a meeting of 39 thousands of tribal members in council to 40 oppose the treaty was 'in direct contradiction 41 to the plighted fate of their people.'\" 42 43 Next page, my lord: 44 45 \"Two years later in the spring of 1838 the army 46 rounded up 15,000 Cherokees who had refused to 47 remove in the time allotted under the New 2427? Proceedings 1 Echota treaty. They were seized as they worked 2 in their farms and fields, separated from their 3 possessions, and taken to military detention 4 camps. They remained in captivity for months 5 while hundreds died from inadequate, 6 unaccustomed rations. The debilitation of 7 others contributed to deaths during the removal 8 march... 9 10 During the last scale Indians removal, 4,500 11 Cherokee Indians died. President Van Buren, 12 (Andrew Jackson's successor), and secretary of 13 war Poinsett ignored the deaths. They 14 congratulated themselves instead that removal 15 was at an end and that they had finally 16 permitted Chief Ross to lead the bulk of his 17 tribe west. As Poinsett described the process, 18 19 The generous and enlightened policy...was ably 20 and judiciously carried into effect by the 21 general appointed...The reluctance of the 22 Indians to relinquish the land of their 23 birth...was entirely overcome ... Humanity, no 24 less than sound policy, dictated this course 25 towards these children of the forest. 26 27 The Commissioner of Indian affairs amplified: 28 29 A retrospect of the last eight months, in 30 reference to this numerous and more than 31 ordinarily enlightened tribe, cannot fail to be 32 refreshing to well-constituted minds...A large 33 mass of men have been conciliated, the hazard 34 of an infusion of blood had been put by, good 35 feeling has been preserved, and we have quietly 36 and gentle transported 18,000 friends to the 37 west bank of the Mississippi. 38 39 In Van Buren's words, 'the wise, humane and 40 undeviating policy of the government in the 41 most difficult of all our relations foreign or 42 domestic, has at length been justified to the 43 world in its near approach to a happy and 44 certain consummation.' 45 46 Instead of facing actual deaths, white policy 47 makers imagined Indian destruction as an 24279 Proceedings 1 abstracted and generalized process removed from 2 human control and human reality. To face 3 responsibility for specific killing might have 4 led efforts to stop it; avoiding individual 5 deaths turned Indian removal into a theory of 6 genecide. In Jackson's words, 7 8 Humanity has often wept over the fate of the 9 aborigines of this country, and Philanthropy 10 has been busily engaged in devising means to 11 avert it, but its progress has never for a 12 moment been arrested, and one by one have many 13 powerful tribes disappeared from the earth. To 14 follow to the land the last of his race and to 15 tread on the grave of extinct nations excites 16 melancholy reflection. But true philanthropy 17 reconciles the minds to these vicissitudes as 18 it does to the extinction of one generation to 19 make room for another.\" 20 21 MR. WILLMS: My lord, I just interrupt, that's another exhibit 22 that's been marked for identification and I just 23 wonder if my friend is, as with the other ones that 24 he's marked for identification, simply now going to 25 rely on this as a law review article because they 26 carry on in the argument purporting to make some 27 factual comparisons which are not supported by the 28 evidence at all. And so I am concerned that my friend 29 is going away from what he said yesterday, I think, in 30 saying that's just a law review article, and if that's 31 all that he's citing this for, then the factual 32 comparison that my friend is now going to purport to 33 embark upon, has no basis in the evidence. 34 THE COURT: Mr. Jackson? 35 MR. JACKSON: My lord, it is our intention to address that and 36 other matters when we deal with the argument on the 37 role of these treatises. That particular article, my 38 lord, is taken from a book by Professor Rogin, and it 39 is our submission that it is a treatment of a very 40 well established matter of history to which your 41 lordship can take judicial notice in the context of 42 understanding the aftermath of the Cherokee nation. 43 And the points to which I'm going to refer your 44 lordship are ones which are in evidence and which are 45 comparisons which we say are properly ones which we 46 can draw by way of argument. And, in fact, I have set 47 them out at page 102 to 103, and your lordship will 24280 Proceedings 1 see the extent to which they require your lordship to 2 draw comparisons and the extent to which they require 3 your lordship to look at this particular passage in 4 the context of a well established historical fact. 5 THE COURT: I don't know of any solution to this problem 6 frankly. I think it really comes into focus, which in 7 most cases is avoided, because it's been stressed so 8 heavily. I think if you had summarized it there 9 wouldn't be any problem. I don't see any legal 10 solution to this problem. You have chosen to use this 11 history as a basis for illustration or comparison or 12 both, and I don't see anything wrong with that. I'm 13 not sure where it gets us. I think the legal question 14 is whether I am entitled to -- whether you are 15 entitled to place these matters before me as if they 16 were facts. And of course that isn't before me. I 17 think that's why in conventional litigation we don't 18 allow this sort of thing to be done because it just 19 expands litigation endlessly. This isn't ordinary 20 litigation, and I don't think I'm going to be misled 21 or prejudiced into error on this ground alone. It may 22 happen for other reasons, but I don't think the result 23 is going to be one that an appeal court would find was 24 a reversible error, as it is sometimes called, the 25 fact that I've heard all this, but I just, as I say, I 26 don't have an answer to your friend's objection. I 27 don't know what it is. 28 MR. JACKSON: My lord, perhaps we will endeavour to provide the 29 rejoinder which will comfort your lordship. 30 THE COURT: Well, it may be that I'll be in a position to deal 31 with it more precisely, with the objection, when I've 32 heard the argument. At the moment, as far as I'm 33 concerned, it's no more proven than the fact that 34 Columbus discovered America. I think he did, or part 35 of it, but it hasn't been proven. I'm proceeding on 36 that basis or that assumption. 37 MR. JACKSON: My lord, one of the reasons I did impose upon the 38 court in reading that passage is that, as your 39 lordship may well imagine, if I had summarized it in a 40 paragraph, I think your lordship and my friends 41 probably would have objected that my statements were 42 extravagant, inflammatory. That was one of the 43 reasons why, my lord, I chose a text which is regarded 44 as being -- 45 THE COURT: That's one of the reasons we don't allow textbooks 46 in lawsuits because you can't rely on them. There are 47 bad textbooks. And we are not in a position to 24281 Proceedings 1 investigate which ones are good and which ones are 2 bad. But I think we should carry on. I think we have 3 a problem here, and I think everybody understands it, 4 and I haven't heard the answer to the problem, and 5 maybe hopefully I will. 6 MR. JACKSON: Thank you, my lord. 7 THE COURT: Let's rush on. 8 MR. JACKSON: We say, my lord, at page 102, that the aftermath 9 of Worcester v. Georgia and the removal of the 10 Cherokees bears directly on the issues before this 11 court. My lord, you have heard the evidence, although 12 of course that evidence does not come close to the 13 dispossession of the Cherokee, you've heard the 14 evidence of the way in which the Wet'suwet'en were 15 turned out of their homes and farms in the early part 16 of this country as those homes and farms were given 17 over to white settlers. And we say that the attitudes 18 of Andrew Jackson and those who implemented Indian 19 removal are not so far -- 2 0 THE COURT: Mr. Jackson, I'm not going to condemn Andrew Jackson 21 in this lawsuit. 22 MR. JACKSON: No, my lord, I'm — 23 THE COURT: You can if you want, but I'm not going to. 24 MR. JACKSON: I'm not asking you to do so. 25 THE COURT: Well, it sounds like you are. \"The racist attitudes 2 6 of Andrew Jackson and those who implemented Indian 27 removal...\" You see that takes me right into the fact 28 that you are asking me now to accept as fact that 29 which hasn't been proven. 30 MR. JACKSON: Well, my lord, we say that those attitudes, the 31 passage I read -- 32 THE COURT: See, this lawsuit isn't about whether Trutch was 33 racially prejudiced or President Jackson was racially 34 prejudiced. They may have been. That's not what this 35 lawsuit is about surely. 36 MR. JACKSON: Well, my lord, we say that to the extent that 37 Joseph Trutch in his official communications to the 38 federal government, in his official statements as to 39 what British Columbia policy was in asserting that 40 British Columbia did not recognize aboriginal rights, 41 and what we say is the clear face of the record of 42 such recognition by his predecessor Governor Douglas. 43 THE COURT: But shouldn't you surely point out the passages and 44 leave it to me to decide whether that proves racial 45 prejudice? 4 6 MR. JACKSON: Yes, my lord. 47 THE COURT: There may be all sort of extrinsic facts that I 24282 Proceedings 1 don't know about. That's why we try to confine these 2 lawsuits to facts we can rely upon and to inferences 3 that can properly be drawn and inferences that need to 4 be drawn. 5 MR. JACKSON: My lord, the next point I think is an inference 6 which needs to be drawn and which your lordship can 7 draw. 8 THE COURT: Yes. All right. 9 MR. JACKSON: To argue, as the province of British Columbia 10 does, that the 45 square miles of reserve lands 11 represents the only lands to which the Gitksan and 12 Wet'suwet'en have aboriginal rights is, in effect, an 13 argument that they have been legally removed from the 14 balance of their ancient territories. The province's 15 argument that the establishment of these tiny reserves 16 is the consummation of the liberal policy of article 17 13 of the terms of union and constitutes the extent to 18 which aboriginal rights are recognized in British 19 Columbia, is an argument which would give British 20 Columbia rights over the territories of the Gitksan 21 and Wet'suwet'en which the state of Georgia sought to 22 usurp over the Cherokee territories in 1830. Those 23 rights in 1830, my lord, formed the basis upon which 24 the Cherokee nation had rebuilt its strength in the 25 early 19th century. In the same way, the territories 26 of the Gitksan and the Wet'suwet'en have not only 27 formed the foundation of their distinctive culture and 28 economy, but provide the basis upon which their future 29 strength and survival depends. 30 It is our submission that aboriginal rights 31 defined in the manner of the plaintiffs' statement of 32 claim are the legal foundations to ensure that Andrew 33 Jackson's contemplation of the disappearance and 34 extinction of the Indian nations will never come to 35 pass in Canada. And it is our submission that section 36 35 of the Constitution Act is designed to ensure that 37 the Canadian Confederation is built upon the vitality 38 and not the demise of the Indian nations. 39 My lord, the last of the five cases dealing with 40 aboriginal rights in which Chief Justice Marshall 41 participated, is the case of Mitchel v. United States. 42 The judgment in this case was, however, authored for 43 the court by Mr. Justice Baldwin. 44 And at 104 we say that the judgment of the court 45 in Mitchel is significant because the land in dispute 46 had, prior to its acquisition by the United States, 47 experienced a succession of colonial regimes and the 24283 Proceedings 1 court, in the course of its judgment, had occasion to 2 pronounce not only on the nature of aboriginal rights, 3 but also the legal effect on those rights of cession 4 of the territory from one European government to 5 another. 6 And the history of the case is set out at page 104 7 and 105 and, as your lordship knows, by the Treaty of 8 Paris, Great Britain acquired from France the east and 9 west Floridas. She ceded these territories to Spain 10 in 1783, and in turn Spain ceded them to the United 11 States in 1819. During the time of the Spanish 12 regime, the commercial House of Panton, Leslie & 13 Company, incurred heavy losses in its service to the 14 Crown, and as compensation for its losses, part of 15 which involved attacks on the store by some of the 16 Seminole Indians, the Seminoles expressed their 17 willingness to make a grant of their lands to the 18 company as compensation for losses. The company made 19 an application to the governor-general of Louisiana 20 for leave to purchase from the Indians as much land as 21 would satisfy these claims, and this received 22 favourable consideration. There was a deed of cession 23 made between the company and the Indians. This deed 24 was confirmed in a great council of the Seminoles held 25 at Pensacola in the presence of the governor of west 26 Florida. There was a further grant made in 1807 and 27 again the permission of the governor was given and the 28 grant also was made by way of a public council, again 29 at Pensacola. 30 Following the cession of the Floridas by Spain, 31 the United States contested the title of Mitchel, who 32 was the successor in title to the trading company. 33 The United States raised a number of arguments against 34 Mitchel's title, one of which was that \"the claim, in 35 the present case, though of land within the 36 territorial limits of the Floridas, does not profess 37 to be founded on any original substantive grant made 38 by the King of Spain or his officers, but on cessions 39 made by Indians tribes, and on alleged ratifications 40 and confirmations thereof...by the Spanish 41 authorities.\" 42 My lord, the unanimous opinion of the court, page 43 106, upheld the validity of the land titles derived 44 from the Indian grants, and in the course of so doing 45 addressed a number of issues which directly relate to 46 the subject matter of this litigation. One of the 47 first issues dealt with by the court related to the 24284 Proceedings 1 relevant law determining the character of the rights 2 which a grantee could obtain from an Indian cession. 3 In response to the argument of the United States that 4 the grantees did not acquire a legal title to the 5 lands in question, the court noted that, as a court of 6 equity, its jurisdiction was to inquire into all 7 claims submitted to it, whether legal or equitable. 8 And the court continued: 9 10 \"Whether, therefore, the title in the present 11 case partakes of the one character or the 12 other, it remains only for us to inquire 13 whether that of the petitioner is such in our 14 opinion that he has, either by the law of 15 nations, the stipulations of any treaty, the 16 laws, usages and customs of Spain, or the 17 province in which the land is 18 situated...acquired a right which would have 19 been valid if the territory had remained under 20 the dominion and in possession of Spain.\" 21 22 And we say, my lord, in this passage, Mr. Justice 23 Baldwin showed a willingness to contemplate the 24 application of other legal systems in addition to the 25 municipal law in adjudicating rival territorial 26 claims. It's not as if Mr. Justice Baldwin said, U.S. 27 law is irrelevant, but in addressing what U.S. law 28 was, he showed what we say is an enlightened 29 willingness to look at all legal systems which are 30 legally relevant to the determination. 31 We will be suggesting to your lordship that 32 international law, for example, while it cannot 33 dictate to your lordship what the rule of decisions 34 should be for this case, is something of relevance to 35 your lordship's considerations. 36 The second principle identified by Mr. Justice 37 Baldwin is an important one, my lord, and it's one 38 upon which Canadian courts have been -- have focused. 39 It's referred to, and I previously referred to it, as 40 the principle of continuity. And, as stated by Mr. 41 Justice Baldwin: 42 43 \"That by the law of nations, the inhabitants, 44 citizens, or subjects of a conquered or ceded 45 country, territory or province, retained all 46 the rights of property which have not been 47 taken from them by the orders of the conqueror, 24285 Proceedings 1 or the laws of the sovereign who acquires it by 2 cession, and remain under their formal laws 3 until they shall be changed.\" 4 5 And the principle of continuity is one which the 6 supreme court had addressed just two years earlier in 7 a decision by Mr. -- by Chief Justice Marshall in 8 Percheman. And at page 108 the Chief Justice talks 9 of: 10 11 \"that sense of justice and of right which is 12 acknowledged and felt by the whole civilized 13 world would be outraged, if private property 14 should be generally confiscated, and private 15 rights unnulled...\" 16 17 That should be \"annulled\". 18 19 \"...on a change of sovereignty of the country.\" 20 21 And that is a principle, my lord, which is also 22 reflected in the Privy Council decision of Amodu 23 Tijani v. Southern Nigeria, and it's a principle which 24 was specifically affirmed in relation to the rights of 25 aboriginal peoples by Chief Justice Dickson in the 26 case of Guerin, and I have given you the citation on 27 page 108. I should notice, my lord, that the citation 28 to Guerin you have at page 108 is not to the report 29 which is in our authorities. That reference should be 30 to Supreme Court Reports 335 and 378. 31 There was a third principle identified by Mr. 32 Justice Baldwin, the familiar principles of Nemo dat 33 quod non habet, no one can give what they do not have. 34 As his lordship pointed out: 35 36 \"That a treaty of cession was a deed or grant by 37 one sovereign to another, which transferred 38 nothing to which he had no right of property, 39 and only such right as he owned and could 40 convey to the grantee.\" 41 42 And it was there at page 109, my lord, and I've 43 said this on a number of occasions, this is exactly 44 the proposition in exactly those terms which Lord 45 Dorchester had addressed to the Indians in 1791, and 46 it's a principle which had already been affirmed in 47 unequivocal terms by Chief Justice Marshall in 24286 Proceedings 1 Worcester v. Georgia. 2 In considering \"the nature and extent of the 3 Indian title\" to the lands in dispute, Mr. Justice 4 Baldwin looked at both the laws of Great Britain and 5 of Spain. And addressing himself first to British 6 law, and of course especial significance for your 7 lordship, he stated: 8 9 \"As Florida was for 2 0 years under the dominion 10 of Great Britain, the laws of that country were 11 in force as the rule by which lands were held 12 and sold; it will be necessary to examine what 13 they were as applicable to the British 14 Provinces before the acquisition of the 15 Floridas by the Treaty of Peace in 1763. One 16 uniform rule seems to have prevailed from their 17 first settlement as appears by their laws;\" 18 19 This is the British, my lord. 20 21 \"That friendly Indians were protected in the 22 possession of the lands they occupied, and 23 were considered as owning them by a perpetual 24 right of possession in the tribal nation 25 inhabiting them as their common property from 26 generation to generation, not as the right of 27 the individuals located on particular spots. 28 29 Subject to this right of possession, the 30 ultimate fee was in the Crown and its grantees 31 which could be granted by the Crown or 32 colonial legislatures while the lands remained 33 in possession of the Indians, though 34 possession could not be taken without their 35 consent.\" 36 37 My lord, Mr. Justice Baldwin is here stating what 38 he understands British law to be. 39 40 \"Individuals could not purchase Indian lands 41 without permission or licence from the crown, 42 colonial governors, or according to the rules 43 prescribed by colonial laws; but such purchases 44 were valid with such licence, or in conformity 45 with the local laws; by this union of the 46 perpetual right of occupancy with the ultimate 47 fee, which passed from the crown by the 24287 Proceedings 1 licence, the title of the purchaser became 2 complete.\" 3 4 And Mr. Justice Baldwin continued with this, his 5 restatement, and we say a correct and accurate 6 restatement, of British law applicable to the colonies 7 regarding aboriginal rights with the following 8 statement as to the nature of the \"perpetual right of 9 possession\", which he identified as the rights of the 10 aboriginal peoples. 11 12 \"Indian possession or occupation was considered 13 with reference to their habits and modes of 14 life; their hunting grounds were as much in 15 their actual possession as the cleared fields 16 of the whites; and their rights to its 17 exclusive enjoyment in their own way and for 18 their own purposes were as much respected, 19 until they abandoned them, made a cession to 20 the government, or an authorized sale to 21 individuals. In either case, their right 22 became extinct, the lands could be granted 23 disencumbered of the right of occupancy, or 24 enjoyed in full domain by the purchasers from 25 the Indians. Such was the tenure of Indians 26 lands by the laws of...\" 27 28 And he recites the various colonial states and the 29 decision of courts in their construction. 30 31 \"Such, too, was the view taken by this court of 32 Indians rights in the case of Johnson v. 33 Mcintosh which has received universal assent.\" 34 35 The merits of this case do not make it 36 necessary to inquire whether the Indians within 37 the United States had any other rights of soil 38 or jurisdiction..\" 39 40 And, of course, in Worcester v. Georgia, my lord, 41 the court had inquired precisely as to that issue and 42 said that they had. 43 44 \"it is enough to consider it as a settled 45 principle that their right of occupancy is 46 considered as sacred as the fee-simple of the 47 whites.\" 242? Proceedings 1 2 And, my lord, at page 111, and I won't repeat 3 myself here, Mr. Justice Baldwin looked at the Royal 4 Proclamation as, in his way, in his view, affirming 5 these principles of law. And the way he characterized 6 the Royal Proclamation in the passages I've set out at 7 111 we say is entirely consistent with the plaintiffs' 8 submission that the Proclamation was a restatement of 9 fundamental common law principles. He says: 10 11 \"The principles which had been established in 12 the colonies were adopted by the King in the 13 Proclamation of October 1763 and applied to the 14 provinces acquired by the Treaty of Peace...as 15 the law which should govern the enjoyment and 16 transmission of Indian and vacant lands.\" 17 18 And there's a passage at the bottom of the page, 19 my lord, which both Mr. Rush and I have cited to you 20 previously which we would again commend to your 21 lordship's consideration. 22 Out of deference to the court reporter, my lord, I 23 would stop at this point. 24 THE COURT: All right. All right. Thank you. 25 THE REGISTRAR: Order in court. This court stands adjourned for a 26 short recess. 27 2 8 (PROCEEDINGS ADJOURNED FOR AFTERNOON RECESS) 29 30 I hereby certify the foregoing to be 31 a true and accurate transcript of the 32 proceedings herein transcribed to the 33 best of my skill and ability. 34 35 36 Tanita S. French 37 Official Reporter 38 39 40 41 42 43 44 45 46 47 24289 Submissions by Mr. Jackson 1 2 THE REGISTRAR: Order in court. 3 THE COURT: Mr. Jackson. 4 MR. JACKSON: Thank you, my lord. I just finished commending 5 Your Lordship to the passage at the bottom of 111 and 6 the top of page 112. My lord, at page 112 we say that 7 it has been asserted in later cases and indeed most 8 recently by -- 9 THE COURT: I'm sorry, where are you please? 10 MR. JACKSON: Top of 112. 11 THE COURT: Oh, yes. Thank you. 12 MR. JACKSON: It has been asserted in later cases, most recently 13 in the Bear Island case, and it is a principle part of 14 both the provincial defendants' positions that the 15 British practise of protecting Indians lands and 16 negotiating treaties was \"a policy borne of prudence 17 and benevolence and did not entail recognition of any 18 legal rights to the lands in question\". That's a 19 statement taken from one of the judgments in St. 20 Catherine's Milling which I will be dealing with 21 tomorrow morning. 22 Mr. Justice Baldwin -- and of course our position 23 is that that is wrong. Mr. Justice Baldwin in 24 Mitchell we say quite specifically repudiated any such 25 interpretation of British practice: 26 27 \"Such were the relations between the Indians and 28 Great Britain as established by the 29 Proclamation of 1763, and confirmed by 30 subsequent treaties between them from 1765 to 31 1779 during the period of her dominion over the 32 Floridas. This liberality and kindness to 33 them, with respect for their rights of property 34 in their lands or hunting grounds, would seem 35 to have arisen more from a sense of justice, 36 then motives of mere policy when we consider 37 the position of Great Britain between the 38 Treaty of 1763 and the commencement of the 39 Revolution.\" 40 41 My lord, the next part of the judgment looks at 42 the way in which the Spanish authorities continue to 43 acknowledge property rights of the Indian Nations, and 44 summarizing that Spanish position, he does so at the 45 top of page 113: 46 47 \"But Spain did not consider the Indian right to 24290 Submissions by Mr. Jackson 1 be that of mere occupancy and perpetual 2 possession, but a right of property in the 3 lands they held under the guarantee of 4 treaties, which were so highly respected, that 5 in the establishment of a military post by a 6 royal order, the site thereof was either 7 purchased from the Indians or occupied with 8 their permission,\" 9 10 And of course, my lord, we have described similar 11 respect shown by British authorities in what is now 12 Canadian territories in the -- what is now the 13 Province of Ontario. 14 Summarizing the rights of the Indians during the 15 British and Spanish regime at the bottom of 113, Mr. 16 Justice Baldwin concluded: 17 18 \"On these considerations, we are clearly of 19 opinion that the Indians who claimed the lands 20 in question had, under the Government of Great 21 Britain and Spain, a right of property in them 22 which could not be impaired without a violation 23 of the laws of both, and the sanctity of 24 repeated treaties; that these rights continued 25 till the time of the cession ... guaranteed by 26 the treaty and acts of Congress in relation to 27 the Floridas in perfect conformity with the 28 stipulations and faith unless the Indians had 29 previously made a binding transfer to the 30 parties under whom the petitioner claims them.\" 31 32 The remaining question there for the court was 33 whether the petitioners had become invested with the 34 right of the Indians, either in virtue of their deeds 35 or by the grant of the lawful authorities of the King, 36 pursuant -- and on this question, Mr. Justice Baldwin 37 concluded: 38 39 \"The Proclamation of 1763 was undoubtedly the 40 law of the province till 1783; it gave direct 41 authority to the governors of Florida to grant 42 crown lands subject to only such conditions and 43 restrictions as they or the King might 44 prescribe. These lands were of two 45 descriptions; such as had been ceded to the 46 King by the Indians, in which he had full 47 property and dominion, and passed his full 24291 Submissions by Mr. Jackson 1 property to the grantee; and those reserved and 2 secured to the Indians, in which their right 3 was perpetual possession, and his was the 4 ultimate reversion in fee, which passed by the 5 grant subject to the possessory rights. The 6 proclamation also authorized the union of these 7 rights by a purchase from the Indians, and 8 taking possession with the leave and licence of 9 the crown in favour of an individual, or by the 10 governor at an Indian council, for and in the 11 name of the King.\" 12 13 I would commend the rest of that passage to Your 14 Lordship's consideration as well. 15 My lord, turning to page 116. By way of 16 conclusion we say that as articulated by the Supreme 17 Court of United States in Mitchel, the respective 18 Indian and Crown grants to land were these. The 19 Indians had both a right of property in their lands 20 and were considered as owning them by a perpetual 21 right of possession. This possession was considered 22 with reference to their habits and modes of life. 23 Their rights to its exclusive enjoyment in their own 24 way and for their own purposes were as much respected, 25 until they abandoned them, made a cession to the 26 government, or an unauthorized sale to individuals. 27 The Crown had, subject to the Indian rights, a remote 28 ultimate fee, a very remote contingent interest which 29 entitled the Crown to acquire the Indian rights by 30 their voluntary sale or abandonment by the Indians. 31 The Indian rights of property were capable of 32 alienation either to the Crown or someone authorized 33 by the Crown. A sale of land by the Indians, ratified 34 by the Crown, united the present Indian and the 35 contingent Crown rights, conveyed them to the 36 purchaser and so perfected his title. It is submitted 37 that these views confirmed and developed those 38 advanced by Chief Justice Marshall in Worcester and 39 Georgia, and that they represent a concrete statement 40 of the law which should be applied by this court. 41 My lord, that concludes our consideration of the 42 Marshal decisions. I wish now to turn to what I have 43 referenced as the New Zealand connection. This is in 44 two parts, my lord. First a consideration of the 45 decision of the New Zealand Supreme Court in 1847 in 46 the case of Symonds, and secondly a consideration of 47 the Treaty of Waitangi. What I would propose to do, 24292 Submissions by Mr. Jackson 1 my lord, is to deal with the first of those this 2 evening, and deal with the second tomorrow morning. 3 My lord, at the bottom of page 116. We have 4 previously submitted that the Marshall court judgments 5 are significant not as a statement of American law, 6 but as a restatement of the fundamental principles 7 governing the legal relationship between colonial 8 authorities and Indian Nations. That these principles 9 have general application was affirmed in 1847 in the 10 context of colonial settlement in New Zealand in the 11 case of Symonds, a decision of the New Zealand Supreme 12 Court. It is submitted that this case is of especial 13 importance in light of the fact that it was handed 14 down only two years before the beginning of colonial 15 settlement in British Columbia. 16 My lord, the importance of understanding 17 aboriginal rights in a comparative framework, in light 18 of the experience of other colonies, and especially 19 New Zealand, established in a similar timeframe at 20 British Columbia, has been recognized in the most 21 recent jurisprudence of the New Zealand Court of 22 Appeal. President Cooke, in a decision handed down in 23 February of this year, is in fact the most recent 24 decision handed down by New Zealand's high court 25 observed, and, my lord, this is to be found -- of 26 course it is as yet an unreported decision in volume 27 10, Tab 2. 28 29 \"More recently in Canada Indian rights have been 30 identified as pre-existing legal rights not 31 created by Royal Proclamation, statute or 32 executive order. It has been recognized that, 33 in some circumstances at least, the Crown is 34 under a fiduciary duty to holders of such 35 rights in dealings relating to their 36 extinction. The judgments of Guerin, cited 37 earlier, delivered by Dickson J., and Wilson 38 J., seemed likely to be found of major guidance 39 when such matters come finally to be decided in 40 New Zealand. The approach of this court in the 41 Maori Council case to the principles of the 42 Treaty of Waitangi and the partnership and 43 fiduciary analogies there drawn are consistent 44 with them ... There are constitutional 45 differences between Canada and New Zealand, but 4 6 the Guerin judgments do not appear to turn on 47 these.\" 24293 Submissions by Mr. Jackson 1 2 And that is a significant part. 3 4 \"Moreover, in interpreting New Zealand 5 parlimentary and common law it must be right 6 for New Zealand courts to lean against any 7 inference that in this democracy the rights of 8 the Maori people are less respected than the 9 rights of aboriginal peoples are in North 10 America.\" 11 12 My lord, the -- I will have occasion to come back 13 to this judgment and a couple of other references. I 14 might just say, my lord, that it was in this judgment 15 that President Cooke noted the evolutionary nature of 16 modern case law on aboriginal rights. We say that the 17 New Zealand connection is of historical significance 18 not only as part of a comparative analysis of 19 aboriginal rights, but also in the particular context 20 of British Columbia. And Mr. Rush in his submissions 21 to you has already put before Your Lordship the 22 comments of James Stephen, the Under Secretary of 23 State for the Colonies, who was involved in the 24 drafting of the renewal of the Hudson's Bay charter in 25 1838, and who was also instrumental in the formulation 26 of Maori policy in New Zealand at the same time. 27 The second historical point of connection is one 28 which relates to the form of conveyance used by James 29 Douglas in the treaties he negotiated with the native 30 people on Vancouver Island in the 1850's. It was a 31 form of conveyance closely modeled on the form used by 32 the New Zealand company for obtaining cessions from 33 the Maoris. 34 Turning now, my lord, to the case of Symonds in 35 1847. The underlying facts in this case bear a 36 remarkable similarity to Johnson and Macintosh. And I 37 note down to the fact that one of the parties of this 38 dispute had the same name. The New Zealand Mr. 39 Macintosh had effected a purchase of lands from the 40 Maori proprietors having obtained a certificate issued 41 by Governor Fitz Roy waiving the Crown's exclusive 42 right of acquiring the land from the natives. The 43 Crown subsequently made a grant of the same land and 44 the issue was as between Mr. Macintosh and the Crown 45 grantee as to who had the better title. 46 Mr. Justice Chapman clearly and carefully 47 articulated the nature and source of what he called 24294 Submissions by Mr. Jackson 1 the principles of universal application to resolve 2 this dispute. And Mr. Justice Chapman was 3 particularly careful in articulating these principles 4 for reasons which he set out in his judgment: 5 6 \"As this question involves principles of 7 universal application to the respective 8 territorial rights of the Crown, the aboriginal 9 Natives and the European subjects of the Queen; 10 as moreover its decision may affect larger 11 interest than even this court is up to this 12 moment aware of, I think it is incumbent on us 13 to enunciate the principles upon which our 14 conclusion is based with more care and 15 particularity than would, under other 16 circumstances, be necessary. 17 The intercourse of civilized nations, and 18 especially of Great Britain, with the 19 aboriginal natives of America and other 20 countries, during the last two centuries, has 21 gradually led to the adoption and affirmation 22 by the colonial courts of certain established 23 principles of law applicable to such 24 intercourse. Although these principles may at 25 times have been lost sight of, yet animated by 26 the humane spirit of modern times, our Colonial 27 Courts and the Courts of such of the United 28 States of America as have adopted the common 29 law of England, have invariably affirmed and 30 supported them; so that to this day, a line of 31 judicial decision, the current of legal 32 opinion, and above all the settled practice of 33 the colonial governments, have concurred to 34 clothe with certainty and precision what would 35 otherwise have remained vague and unsettled. 36 These principles are not the new creation or 37 invention of the colonial courts. They flow 38 not from what an American writer has called the 39 'vice of judicial legislation', they are in 40 fact to be found among the earliest settled 41 principles of our law; and they are in part 42 deduced from those higher principles from 43 charters made in conformity with them, 44 acquiesced in even down to the charter to our 45 own colony; and from the letter of treaties 46 with native tribes wherein those principles 47 have been asserted and acted upon.\" 24295 Submissions by Mr. Jackson 1 2 Mr. Justice Chapman then recited the common law 3 principle, which he termed, \"springing no doubt from 4 the feudal origin and nature of our tenures that the 5 King was the original proprietor of all the lands in 6 the Kingdom, and consequently the only legal source of 7 private title\", and he continued: 8 9 \"As a necessary corrolory from the doctrine, 10 'that the Queen is the exclusive source of 11 private title', colonial courts have invariably 12 held ... that they cannot give effect to any 13 title not derived from the Crown ... 14 It seems to flow from the very terms in 15 which the principle 'that The Queen is the only 16 source of title', is expressed, that no subject 17 can for himself acquire new lands by any means 18 whatsoever. Any acquisition of territory by a 19 subject, by conquest, discovery, occupation, or 20 purchase from native tribes (however it may 21 entitle the subject, conquerer, discovered, or 22 purchaser, to gracious consideration from the 23 Crown) can confer no right on the subject. 24 Territories, therefore, acquired by the subject 25 in any way vest at once in the Crown. To 26 state the Crown's right in the broadest way: 27 it enjoys the exclusive right of acquiring 28 newly found or conquered territory, and of 29 extinguishing the title of any aboriginal 30 inhabitants to be found there on ... 31 To say that such purchases (that is 32 purchases from the aboriginal inhabitants) are 33 absolutely nil and void, however, is obviously 34 going too far. If care be taken to purchase 35 off the true owners, and to get in all 36 outstanding claims the purchases are good as 37 against the native seller, but not against the 3 8 Crown ...\" 39 40 Now, Mr. Justice Chapman then addressed himself to 41 the nature of the native title. And I should say, my 42 lord, that in stating those principles, they are 43 principles which are in themselves reflected, of 44 course, in the logs of the American colonies 45 prohibiting the purchase by private individuals from 46 the natives, except with the especial leave and 47 licence and authorization of the Crown. 24296 Submissions by Mr. Jackson 1 Mr. Justice Chapman then addressed himself to the 2 nature of the native title. This is the passage which 3 we attached particular importance. 4 5 \"The practice of extinguishing native titles by 6 fair purchases is certainly more than two 7 centuries old. It has long been adopted by the 8 Government in our American colonies, and by 9 that of the United States. It is now part of 10 the law of the land, and although the courts of 11 the United States in suits between their own 12 subjects, will not allow a grant to be 13 impeached under pretext that the native title 14 has not been extinguished, yet they would 15 certainly not hesitate to do so in a suit by 16 one of the native Indians.\" 17 18 And I'll be returning to that passage, my lord, 19 when we consider certain passages in the Supreme Court 20 of Canada in St. Catherine Millings case by Mr. 21 Justice Henry, and I will be comparing those 22 statements to the statements of Mr. Justice Chapman. 23 24 \"In the case of Cherokee Nation and the State 25 of Georgia, the Supreme Court threw its 26 protective decision over the plaintiff nation, 27 against a gross attempt at spoliation; calling 28 to its aid, throughout every portion of its 29 judgment, the principles of the common law as 30 applied and adopted from the earliest times by 31 the colonial laws.\" 32 33 And I think, my lord, the reference Mr. Justice 34 Chapman is meaning there is Worcester and Georgia. 35 36 \"Whatever may be the opinion of jurists is as to 37 the strength or weakness of native title, 38 whatever may have been the past vague notions 39 of the natives of this country, whatever may be 40 their present clearer and still growing 41 conception of their dominion over land, it 42 cannot be too solemnly asserted that it is 43 entitled to be respected, that it cannot be 44 extinguished (at least in times of peace) 45 otherwise than by the free consent of the 46 native occupiers.\" 47 24297 Submissions by Mr. Jackson 1 My lord, this may explain why the plaintiffs in 2 identifying fundamental principles have earmarked the 3 principle of consent as being a particular important 4 principle, even though, as Your Lordship has correctly 5 observed, it was not a principle addressed in Calder, 6 it is our submission that it has as great precedent 7 value, in terms of the history and previously the 8 precedents of colonial courts and the Marshall 9 decisions, that it is to be accorded the same status 10 by Your Lordship. But that is a submission, of 11 course, which I will return, my lord. My point here 12 is to identify that Mr. Justice Chapman in Symonds 13 identified it as being one of those fundamental 14 principles based upon long established and consistent 15 practice. 16 17 \"But for their protection and for the sake of 18 humanity the government is bound to maintain, 19 and the courts to assert, the Queens exclusive 20 right to extinguish it.\" 21 22 And there, you see, my lord, the power to 23 extinguish is acknowledged, but its acknowledged in 24 the context that it can only be done with the free 25 consent of the native occupiers. 26 27 \"It follows from what has been said, that 28 solemly guaranteeing the native title and 29 securing what is called the Queen's pre-emptive 30 right, the Treaty of Waitangi, confirmed by the 31 charter of the colony, does not assert either 32 in doctrine or in practice anything new and 33 unsettled. 34 ... The legal doctrine as to the exclusive 35 right of the Queen to extinguish the native 36 title, although it operates only as a restraint 37 upon the purchasing capacity of the Queen's 38 European subjects, leaving the natives to deal 39 among themselves, as freely as before the 40 commencement of our intercourse with them is no 41 doubt incompatible with that full and absolute 42 dominion over the lands which they occupy, 43 which we call an estate in fee. But this 44 necessarily arises out of our peculiar 45 relations with native race, and out of our 46 obvious duty of protecting them, to as great an 47 extent as possible, from the evil consequences 2429? Submissions by Mr. Jackson 1 of the intercourse to which we have introduced 2 them, or have imposed upon them. To let in all 3 purchasers, and to protect and enforce every 4 private purchase would be virtually to 5 confiscate the lands of the natives in a very 6 short time. The rule laid down is, under the 7 actual circumstances, the only one calculated 8 to give equal security to both races.\" 9 10 And what he is talking about here, my lord, is the 11 restriction on alienation to any other than the Crown. 12 The restriction and prohibition against private 13 purchases. 14 15 \"Although may be apparently against what are 16 called abstract or speculative rights, yet it 17 is founded on the largest humanity; ...\" 18 19 Just a few lines down, my lord. 20 21 \"Technically, it contemplates the native 22 dominion over the soil as inferior to what we 23 call an estate in fee:\" 24 25 And of course, my lord, an estate in fee allows 26 free alienation, so in that respect the restraint on 27 alienation is something less. His Lordship continues: 28 29 \"practically, it secures to them all the 30 enjoyments from the land which they had before 31 our intercourse, and as much more as the 32 opportunity of selling portions, useless to 33 themselves, afford. From the protective 34 character of the rule, then, it is entitled 35 respect on moral grounds, no less than to 36 judicial support on strictly legal grounds.\" 37 In order to enable the Court to arrive at a 38 correct conclusion upon this record, I think it 39 is not at all necessary to decide what estate 40 the Queen has in the land previous to 41 extinguishment of the native title.\" 42 43 At the bottom of the page -- 44 THE COURT: What is he talking about there? What extinguishment 45 does he mean there? 46 MR. JACKSON: What he is saying there, my lord, is that in light 47 of the fact -- as I understand this portion of his 24299 Submissions by Mr. Jackson 1 judgment, he is saying that it is not necessary in 2 order to characterize the precise nature of the 3 Crown's title prior to a purchase from, in this case, 4 the Maoris. 5 THE COURT: All right. You think he is talking about the 6 particular extinguishment that arose in this case? 7 MR. JACKSON: No, my lord. I think he is talking about general. 8 THE COURT: If it arose? 9 MR. JACKSON: If it arose. 10 THE COURT: It might have been -- previous to any 11 extinguishment? 12 MR. JACKSON: Yes. 13 THE COURT: All right. 14 MR. JACKSON: That is my understanding of the tenor of this 15 passage. 16 THE COURT: All right. 17 MR. JACKSON: The bottom of the page. 18 19 \"The assertion of the Queen's pre-emptive right 20 supposes only a modified dominion as residing 21 in the natives but it is also a principle of 22 our law that the freehold never can be in 23 abeyance; hence the full recognition of the 24 modified title of the natives and its most 25 careful protection, is not theoretically 26 inconsistent with the Queens seisin in fee as 27 against her European subjects. This technical 28 seisin against all the world except the Natives 29 is the strongest ground where on the due 30 protection of their qualified dominion can be 31 based.\" 32 33 And the reference is there, my lord, references 34 there, my lord, are to the majority position of Chief 35 Justice Marshall in Fletcher and Peck applying these 36 principles to the case before him. The later judge 37 held that the Crown's title, whatever it was or 38 whether it was an actual seisin in fee as against 39 European subjects or a mere possibility of seisin, 40 could not be waived by the governor as the certificate 41 which Mr. Macintosh held had reported to do. There 42 was a further base for the actual ruling, and that was 43 under the specific terms of the New Zealand charter, 44 an interest inland could only be conveyed by letters 45 patent the public seal of the colony. 46 There was a concurring judgment of Chief Justice 47 Martin, and in that case Chief Justice Martin 24300 Submissions by Mr. Jackson 1 articulated as the general law of the British Colonial 2 Empire certain propositions, and he cited from 3 Chancellor Kent's commentaries on American law as 4 stating principles which are derived from the period 5 when the present states were colonies and dependencies 6 of Great Britain. And one of those passages, my lord, 7 I have set out, it's Chancellor Kent's paraphrase, as 8 it were, though it's the most literal transliteration 9 of Johnson and Macintosh: 10 11 \"The European nations which respectfully 12 establish colonies in America assumed the 13 ultimate dominion to be in themselves, and 14 claim the exclusive right to grant a title to 15 the soil, subject only to th Indian right of 16 occupancy. The Natives were admitted to the 17 the rightful occupants of the soil, with a 18 legal as well as just claim to retain 19 possession of it and to use according to their 20 discretion, though not to dispose of the soil 21 at their own will, except to the government 22 claiming the right of pre-emption.\" 23 24 And in fact these passages from Kent's 25 commentaries are recited and restates both by the 26 majority judgment in St. Catherine Millings in the 27 Supreme Court, Judgment of Chief Justice Fournier, and 28 by the descenting judge Mr. Justice Strong. 29 It is our submission, my lord, that the decision 30 of the New Zealand Supreme Court in Symonds at that 31 time, that a leading decision in the British Empire on 32 aboriginal rights in affirming as principles of 33 universal application that native rights to land 34 cannot be extinguished otherwise than by the free 35 consent of the native occupiers correctly stated the 36 common law applicable to British Columbia at the 37 formation of the colony of Vancouver Island in 1848 38 and at the formation of the mainland colony in 1858. 39 My lord, subject to Your Lordship's wishes, I 40 would conclude at that point. 41 THE COURT: Well, all right. Before we adjourn, it did occur to 42 me that while I said before that I didn't see the 43 answer to Mr. Willms' objection, I wonder if I might 44 leave this thought with counsel, that perhaps the 45 answer to Mr. Willms' specific objection with relation 46 to the Cherokee case might be the findings or the 47 comments on facts that appear in the actual reports of 24301 Submissions by Mr. Jackson 1 those decisions, and that I could deal with that case 2 on the -- on those facts as stated assuming there to 3 be true. It seems to me that it takes it beyond the 4 textbook stage, if I can put it that way. If that 5 solves any part of the problem. 6 MR. WILLMS: My lord, most of the problem from that one — 7 McLoughlin sets out two phases. The first phase is 8 what leads up to the judgment, and some of that is 9 indeed contained. Certainly the treaties, the 10 constitution, all of that, you can find that in the 11 judgment itself. 12 THE COURT: Yes. 13 MR. WILLMS: It's what follows, and that is the point that I 14 think my friend was using as the point of comparison, 15 where Andrew Jackson changes his hat, so-to-speak, 16 according to my friend. 17 THE COURT: Well, comity alone precludes me from passing on the 18 morality of otherwise precedence of a friendly state, 19 but I see no reason why Mr. Jackson can't extract from 20 the report in the Worcester case the facts that are 21 stated and make his own submissions based upon those 22 facts. And in doing so, I may add, adopting the 23 argument or the view that may coincidentally be found 24 in the textbook -- 25 MR. WILLMS: The coincidental effect, my lord, follows the 26 judgment, and if all my friend wanted to do was take 27 the facts in the judgment and the fact of the judgment 28 and then make an argument based on that, that's one 29 thing. 3 0 THE COURT: Yes. 31 MR. WILLMS: But to then go into what he says were the political 32 manueverings in congress, which followed -- 33 THE COURT: Well, I am not really very impressed by political 34 maneuvering in congress any more than impressed by 35 political maneuvering in any other country. I think 36 that there are reasons why people do things in the 37 political arena that are beyond scrutiny at this level 38 of the organization's society. But I throw that out 39 merely for whatever thought counsel can give to it. I 40 haven't studied recently the reports in the Cherokee 41 cases, and I don't know how much those facts are set 42 out, but I suspect -- 43 MR. JACKSON: Quite a significant part of it, my lord, yes. 44 THE COURT: All right. What time do you want to start in the 45 morning? 46 MR. JACKSON: I think, my lord, I would prefer to start at the 4 7 normal time. 24302 Submissions by Mr. Jackson 1 THE COURT: Yes , all right. 2 MR. JACKSON: And subject to Madam Reporters, go a little bit 3 late. I appreciate the Reporters would prefer to 4 start early, but it would be better for me to start at 5 10:00. 6 THE COURT: Well, as long as it isn't expected that we'll have a 7 transcript at 10:00 o'clock in the morning, I'm sure. 8 MR. JACKSON: Not from the plaintiffs' point of view. 9 THE COURT: During the course of the day there will be one 10 available some time. All right. 10:00 o'clock 11 tommorrow morning. 12 13 (PROCEEDINGS ADJOURNED TO APRIL 12, 1990 AT 14 10:00 A.M.) 15 16 I HEREBY CERTIFY THE FOREGOING TO BE 17 A TRUE AND ACCURATE TRANSCRIPT OF THE 18 PROCEEDINGS HEREIN TO THE BEST OF MY 19 SKILL AND ABILITY. 20 21 22 LORI OXLEY 23 OFFICIAL REPORTER 24 UNITED REPORTING SERVICE LTD. 25 26 27 28 29"@en ; edm:hasType "Trial proceedings"@en ; dcterms:spatial "British Columbia"@en ; dcterms:identifier "KEB529.5.L3 B757"@en, "KEB529_5_L3_B757_1990-04-11_01"@en ; edm:isShownAt "10.14288/1.0018507"@en ; dcterms:language "English"@en ; dcterms:subject "Uukw, Delgam, 1937-"@en, "Indigenous peoples--Canada"@en, "Oral history"@en, "Wet'suwet'en First Nation"@en ; edm:provider "Vancouver : University of British Columbia Library"@en ; dcterms:publisher "Vancouver : United Reporting Service Ltd."@en ; dcterms:rights "Images provided for research and reference use only. For permission to publish, copy, or otherwise distribute these images, please contact the Courts of British Columbia: http://www.courts.gov.bc.ca/"@en ; dcterms:source "Original Format: University of British Columbia. Library. Law Library."@en ; dcterms:title "[Proceedings of the Supreme Court of British Columbia 1990-04-11]"@en ; dcterms:type "Text"@en .