Written by W'Lawpsh   

The constitution that begins “We the People” does not hate but quite to the contrary is based upon respect both for those who are ‘we’ and those who are ‘not we’. The constitution’s opening words that define the intent that infuses and gives energy to the details of the following implementing words are about fellowship with malice to none: Union, Justice, Tranquility, Defence, Welfare, Liberty. These are the objectives proclaimed by us. It is “to secure” these “to ourselves and our Posterity” what we “do ordain and establish this Constitution for the United States of America.” And since the constitutional democracies of the world model themselves on this constitution and are allied with its People all are in a position to set the pace for global human affairs, not least in virtue of their combined economic and military prowess.

With regard to those who are “not we” our constitution’s words detail how we shall go about achieving our objectives. The details are no less clear and plain. The words of the constitutional commerce, defence and treaty clauses say our government shall respect the sovereignty of other Peoples to pursue their own objectives in their own ways, so long at least as their ways do not involve invading us so as to molest or disturb our way. Specifically the commerce, defence and treaty clauses as settled by their constitutive precedents in the formative years prior to 1871 establish our government can regulate commerce with the Indian tribes and foreign Nations but not infringe upon their territorial sovereignty without their consent recorded by treaty or pursuant to a just war in defence of ourselves if they invade us first.

Given our constitutional beginning how did it come about that we can not raise our heads from the cocoon of our own family matters without being bombarded by news of strife and conflict everywhere? It is as if we have no influence over what is happening. If our constitution is as wise as it words suggest we should not be made to bear witness to all the pain humankind is wreaking upon itself and, for that matter, the planet itself. Well it is both wise and carefully worded. Its problem is it had to leave its enforcement in human hands. It new well enough that governments drag their peoples into wars and the commission of atrocities unless their powers to do so are curtailed, which is what the words of the commerce, defence and treaty clauses did do perfectly well. The constitution placed its trust in the judicial branch of the government to keep the politicians honest in the sense of least of declaring to be unconstitutional and therefor null and void whatever they may say or do that is in conflict with the constitution.

As might be expected from the fact the Indian tribes were here first our constitutional history in the field is woven together with theirs. The first of the tribes to have to absorb the full force of the impact of the European invasion of North America was the Mahican tribe of the Hudson River Drainage Basin, from Otter Creek at Lake Champlain to Manhattan Island. This particular valley witnessed the first attempt at the re-creation in America of the Lords of the Manor that had such great influence in the evolution of the British Empire. One of the manors belonged to the Livingston family. Wikipedia Encyclopedia as at today’s date says, “This article contains information related to Livingston Manor, the 18th century New York estate. [See map]

Map of Livingston Manor in 1777
Livingston Manor was a 160,000 acre (650 km²) tract of land granted to Robert Livingston the Elder through the influence of Governor Thomas Dongan and confirmed by royal charter of George I of Great Britain in 1715, creating the manor and lordship of Livingston. This tract embraced a large portion of what is now Columbia County. The lords of the manor were: Robert Livingston the Elder (1715–1728); Philip Livingston (1728–1749); Robert Livingston (1749–1790)…The inheritors of the estate were all men who had distinguished themselves considerably during and after the American Revolution: Philip Livingston, delegate to the Continental Congress and signatory of the United States Declaration of Independence, William Livingston, Governor of New Jersey, and signatory of the United States Constitution, William Alexander, major general in the Continental Army during the American Revolutionary War, James Duane, delegate to the Continental Congress, Mayor of New York City, and signatory of the Articles of Confederation. These four heirs subsequently divided the land among their own families, and the power of the Livingston family was slowly diminished. A portion of the estate is still held by the family. The town of Livingston, New York, occupies part of the original tract. Although an English-deeded tract, some sources list Livingston Manor with the patroonships of New Netherland.”

The relevant title record statutes for Livingston Manor are the Dutch records kept in the archives of the Netherlands and the County Land Offices of New York and Massachusetts. The governing statutes for this latter purpose are An Act concerning purchases of lands from the Indians, Stat. Prov. NY 1684, c. 9 and An Act to prevent and make void clandestine and illegal purchases of lands from the Indians, Stat. Prov. Mass. Bay 1701-02, c. 11. The New York statute stipulates, “noe Purchase of Lands from the Indians shall be deemed a good Title without Leave first had and obtaineid from the Governor signified by a Warrant under his hand and Seale and entered on Record in the Secretaries office att New Yorke and Satisfaction for the said Purchase acknowlidged by the Indians from whome the Purchase was made is to bee Recorded likewise which Purchase soe made and prosecuted and entered on Record in the office aforesaid shall from that time be Vallid to all intents and purposes.” Similarly the Massachusetts statutes enacts, “WHEREAS the government of the late colonys of the Massachusetts Bay and New Plymouth, to the intent the native Indians might not be injured or defeated of their just rights and possessions, or be imposed on and abused in selling and disposing of their lands, and thereby deprive themselves of such places as were suitable for their settlement and improvements, did, by an act and law named in the said colonys respectively many years since, inhibit and forbid all persons purchasing any land of the Indians without the licence and approbation of the general court, notwithstanding which, sundry persons for private lucre have presumed to make purchases of lands from the Indians, not having any license or approbation as aforesaid for the same, to the injury of the natives, and great disquiet and disturbance of many of the inhabitants of this province in the peaceable possession of their lands and inheritances lawfully acquired; therefore, for the vacating of such illegal purchases, and preventing of the like for the future,—Be it enacted and declared by the Lieutenant-Governor, Council and Representatives in General Court assembled, and by the authority of the same, That all deeds of bargain, sale, lease, release or quit-claim, titles and conveyances whatsoever…that since the establishment of the present government have been or shall hereafter be had, made, gotten, obtained or procured from any Indian or Indians, by any person or persons whatsoever, without the licence, approbation and allowance of the great and general court or assembly of this province for the same, shall be deemed and adjudged in the law to be null, void and of none effect.”

The reason for these land records statutes was explained by Chief Justice John Marshall in one the superprecedents of American constitutional history the Case of Worcester v. Georgia, 6 Pet. 515, 542, 544, 545, 546, 552, 553, 559, 560, 583 (1832): “The great maritime powers of Europe discovered and visited different parts of this continent at nearly the same time. The object was too immense for any of them to grasp the whole; and the claimants too powerful to submit to the exclusive or unreasonable pretensions of any single potentate. To avoid bloody conflicts, which might terminate disastrously to all, it was necessary for the nations of Europe to establish some principle which all would acknowledge, and which should decide their respective rights as between themselves. This principle, suggested by the actual state of things, was, “discovery gave title to the government by whose subjects or by whose authority it was made, against all other European governments, which title might be consummated by possession.” Johnson v. McIntosh, 8 Wheaton’s Rep., 543. This principle, acknowledged by all Europeans, because it was in the interest of all to acknowledge it, gave to the nations making the discovery, as its inevitable consequence, the sole right of acquiring the soil and making settlements on it. It was an exclusive principle which shut out the right of competition among those who had agreed to it. It regulated the right given by discovery among the European discoverers; but could not affect the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell. The relation between Europeans and the natives was determined in each case by the particular government which asserted and could maintain this preemptive privilege in the particular place. The United States succeeded to all the claims of Great Britain, both territorial and political; but no attempt, so far as is known, has been made to enlarge them.…Except by compact we have not even claimed a right of way through the Indian land.”

The discovery doctrine was confirmed and applied in many court cases in the constitutional era that ended in 1871. The constitution’s commerce, defence and treaty clauses were well understood as a foreign policy stipulation that aside from regulating trade with Indian tribes and foreign Nations the government is obligated to obtain a treaty to acquire sovereign jurisdiction and possession over Indian tribal and foreign National territory unless they invade the United States in which event they must take the consequence of war back. The constitutionally provided legal remedy that accompanies this constitutional right of the Indian tribes equally protects foreign Nations. It is embedded in the constitution’s complementary original jurisdiction clause Article III§2¶2 which stipulates, “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

This particular remedy is the only way by which the constitution could retain the critical function of genuinely independent and impartial third-party adjudication for boundary and jurisdiction disputes between the three sovereign bodies politic that the constitution recognizes. These entities are identified by the commerce clause Article I§8¶3 which stipulates Congress not the President shall have the jurisdiction, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Whenever there was a treaty between the British Crown and an Indian tribe before the constitution came into effect in 1789 the treaty frontier was conceived as being extended westward to incorporate into whatever colony involved the land to which the treaty ceded jurisdiction and possession. Joseph H. Smith, Appeals to the Privy Council from the American Plantations, Columbia University Press, New York, 1950 identifies the Case of Mohegan Indians v. Connecticut as establishing the need for such third-party adjudication for boundary disputes between tribes and colonies no less than between colonies themselves. To permit a court constituted by a disputant to adjudicate precludes justice because it raises a presumption of bias. The Privy Council of the United Kingdom was assigned that function before Independence and after the constitution assigned it to the Supreme Court of the United States by Article I§8¶3.

The land legislation of New York and Massachusetts both applied to Livingston Manor because the colonial grants to each overlapped. The boundary dispute between New York and Massachusetts eventually was settled by political negotiations after the 1724 treaty contracted by Massachusetts and the Mahicans. As a matter of constitutional law alone Massachusetts arguably had the better right to the land from the Atlantic coast west to the Hudson River than did New York because the colonial grant to Massachusetts by Great Britain of the jurisdiction to treat with the Indian tribes for jurisdiction and possession preceded the colonial grant to New York, and the principle is nemo dat quod non habet [one can not give what one does not have]. On the other hand, New York could and did argue that since it derived the preemptive right to treat by succession from the Netherlands which had discovered the Hudson River Drainage Basin before Great Britain granted it to Massachusetts, that the same principle of construction operated in its favor.

This jurisdiction and boundary dispute was of no concern to the Indian tribes since either way, as Chief Justice Marshall remarked in the Worcester Case, their constitutionally protected interest was not affected by whether New York or Massachusetts had the better right to treat for the acquisition from them to jurisdiction and possession of their Valley. New York acquired it from the Dutch in 1664 and in 1684 enacted the doctrine of discovery identified by Chief Justice Marshall as the basis of the root of title to which lawyers had to search the registered land records in order to be able to certify to clients they enjoyed “good and marketable title.” All the title searches until the end of the constitutional era in 1871 had to reach back to the Indian treaty by which the government itself acquired the jurisdiction to convey it to the first registered owner other than the government itself.


Chief Justice Marshall’s point in 1832 was that the preemptive right exists without prejudice to the exclusive jurisdiction and sole possession of the Indian tribes prior to treaty of cession. And that is why the legal burden of proof is not and never constitutionally has been on the Indian tribes to adduce evidence to prove any particular plot of land is still subject to the jurisdiction and possession of the Indian tribes. All North American land is prima facie so subject unless and until the treaty is produced. And that is why the constitutional question of jurisdictional law alone of Indian tribal sovereignty is the single most important legal and practical issue facing the United States, Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and the rest of the world those countries influence today, which is to say the whole world. The named European countries are the great maritime powers of Europe that contracted the discovery doctrine agreement that is the bedrock of the commerce, defence and treaty clauses of the constitutions of all the constitutional democracies that, for all practical purposes, run the world. And they are still bound.

Returning then to the map of Livingston Manor, one can see its western boundary is the line of mountains known today as the Taconic and Berkshire Ranges that straddle the New York Massachusetts boundary. On the map a mountain range is depicted that bends at the angle where New York, Massachusetts and Connecticut meet. Although only one range is shown the two are actually parallel. And right at the intersection in Massachusetts is a mountain known today as Mount Everett. On its north slope is a tiny scenic mountain lake. It is on the Appalachian Trail and popular with hikers and naturalists. Its name is Guilder’s Pond. Its stream is Guilder Brook. These names appear in the account Wikipedia gives for the mountain: “Mount Everett at 2,624 ft—or 800 m—is the highest peak in the south Taconic Mountains of Massachusetts. The mountain is known for its expansive views of the southern Taconics and Berkshires; for its fragile ecosystem of old growth pitch pine and scrub oak; and for its rare plant and animal communities. Several trails cross the mountain, including the 2,140 miles (3,440 km) Appalachian Trial. The mountain is named after a 19th Century governor of Massachusetts, Edward Everett. The name was proposed in 1841 by Edward Hitchcock, geologist to the state, in his ‘Final Report on the Geology of Massachusetts.’ Hitchcock wrote that at the time of his proposal, the mountain was known as Bald Mountain or Ball Mountain, and to this day its peak is indicated on some topographic maps as "Bald Mountain." Details: Guilder Pond, a highland lake, is located in the cirque-like ravine between Mount Everett and Undine Mountain to the north; Race Brook Falls, a popular waterfall, cascades from a common ledge between Mount Everett and Mount Race to the south. A seasonal auto road climbs to just short of the summit. The summit and west side of Mount Everett is located in the town of Mount Washington; the east slopes are located in Sheffield, Massachusetts. Much of the mountain is located within the Mount Everett States Reservation; other parcels are part of Mount Washington State Forest or conservation easements. The east side of the mountain drains into Race Brook, thence into Schenob Brook, the Hubbard Brook, the Housatonic River, and Long Island Sound. The west side drains into Guilder Brook and City Brook, thence into Bash Bish Brook, the Roeliff Jansen Kill and the Hudson river and New York Bay of the Atlantic Ocean.”

The pond and brook named “Guilder” in the ravine between the Taconic and Berkshire Ranges are named after John Vanguilder, the Mahican language Toanunck. The “seasonal auto road” that “climbs to just short of the summit” leads only to his house, although the house now there may either have been converted or rebuilt. It is on the same spot. The fact that the area drains both into the Hudson River and the Housatonic River and has a panoramic view to the land west to the Hudson and east to the Berkshires explains a great deal about early American history. By 1724 the Mahicans whose civilization was centered on the Hudson River had retreated to this inter space between the mountain ranges for safety from the stealing and murdering newcomers from Europe and their American born descendants.

Toanunck’s or Vanguilder’s band was the particular band of the tribe the hinterland of whose territory was where Guilder Pond and Brook are located. There is also a Guilder Road on a map made by the British military in connection with the Revolutionary War. There was an Indian trail that had been used for inter-tribal trade since long before the Europeans arrived. A ceremonial knife for use only in religious services was discovered on the side of Mount Everett. That makes sense from the perspective of this place being of strategic importance to the Mahicans. Even before the Europeans arrived the Iroquois speakers to the west and north of the Hudson River Drainage Basin used to come down the Mohawk River and cross to the Atlantic coast to trade with other tribes, as an alternative to running the Mahican gauntlet all the way down the Hudson. It was prudent for Mahicans to keep an eye out for their Indian friends and allies just as it did later when hiding from the much more rapacious and bloodthirsty peoples of European heritage.

In 1724 John Vanguilder signed his name to the great treaty of the Mahican tribe at which all the bands not by that time exterminated by the wars and genocide privately conducted against them by the traders and settlers were gathered. A missionary group established itself at what became known as Stockbridge Massachusetts, about 12 miles by the Indian trail or up the Housatonic River from John Vanguilder’s house. The mission offered refuge and influence to protect the Indians. They sought peace and treated for peace, but not without securing for Vanguilder a reservation of substantial proportions on his own grounds. It ran from four miles west of the Housatonic River almost to the Hudson River.

The other Mahican bands accepted Christianity and the die was cast for their exodus to lands west of the Mississippi River as part of the great ethnic cleansing of the Atlantic coastal region of North America. In 1756 Vanguilder had too much of Robert Livingston’s arrogant pretensions as Lord of the Manor. He bullied the Indians into either serving as his quasi-slaves or getting off “his” land, out of which Vanguilder’s reservation actually took the lion’s share. Mutually aggressive words were exchanged between one of Livingston’s many tenant farmers and Livingston roused the Sheriff who deputized some other of Livingston’s men and they set out to confront and eject Vanguilder. He in turn in self defence shot and killed one of the deputies.

He along with two of his sons who were with him were arrested and held in close custody in Albany. The most ancient and august of the Mahicans at the Stockbridge Mission wrote to the Superintendent of Indian Affairs for the Northern District of North America Sir William Johnson demanding immediate Vanguilders’ release into the custody of the Mahican tribe, on the ground that since the alleged crime had taken place upon territory for which no Indian treaty of cession could be produced the Governor of New York had no jurisdiction to hold them or to put them on trial. Constitutionally the deal was that the Indian tribes and the Crown colonies each had the jurisdiction and the responsibility to take care of their own and not to disturb the peace established by the constitution and the treaties under the constitution.

After a heated exchange, or at least as heated as words get in diplomatic communiqués, Sir William persuaded the Governor that if he did not release the Vanguilders what was left of the Mahican tribe was joining with the Mohawk tribe and possibly the entire Haudenosaunee Confederacy of Iroquoian speakers to join with the Algonkian speaking Mahicans and their allies throughout north eastern North America. This was pretty crucial since at that very juncture of history the Seven Years War was about to get serious as a globally significant military event. Wikipedia says, “The Seven Years' War was a global military conflict between 1756 and 1763, involving most of the great powers of the time and affecting Europe, North America, Central America, the West African coast, India, and the Philippines. In the historiography of some countries, the war is alternatively named after combats in the respective theaters: the French and Indian War (North America, 1754–63), Pomeranian War (Sweden and Prussia, 1754-62), Third Carnatic War (Indian subcontinent, 1757-63), and Third Silesian War (Prussia and Austria, 1756–63). The war was driven by the antagonism between Great Britain (in personal union with Hanover) and the Bourbons (in France and Spain), resulting from overlapping interests in their colonial and trade empires, and by the antagonism between the Hohenzollerns (in Prussia) and Habsburgs (Holy Roman Emperors and archdukes in Austria), resulting from territorial and hegemonial conflicts in the Holy Roman Empire. The Diplomatic Revolution established an Anglo-Prussian camp, allied with some smaller German states and later Portugal, as well as an Austro-French camp, allied with Sweden, Saxony and later Spain. The Russian Empire left its offensive alliance with the Habsburgs on the succession of Peter III, and like Sweden concluded a separate peace with Prussia in 1762. The war ended with the peace treaties of Paris (Bourbon France and Spain, Great Britain) and of Hubertusburg (Hohenzollerns, Habsburgs, Saxon elector) in 1763. The war was characterized by sieges and arson of towns as well as open battles involving extremely heavy losses; overall, some 900,000 to 1,400,000 people died. Great Britain expelled her Bourbon rivals in the contested overseas territories, gaining the bulk of New France, Spanish Florida, some Caribbean islands, Senegal and superiority over the French outposts on the Indian subcontinent. The native American tribes were excluded from the peace settlement, and were unable to return to their former status after the resulting Pontiac’s rebellion.”

The point is, the world could well be a different place if the Governor of New York had not capitulated to the demand of the Mahican tribe to release the Vanguilders. Every part of the global struggle that was the Seven Years War was crucial to the success of Great Britain and, by extension, to the United States and Canada that are the British Empire’s successors to British North America. The other critical players in the Seven Years War also included and certainly stood to affect the long range interests of the “great maritime powers of Europe” that created the “doctrine of discovery” agreement that is the bedrock of the commerce, defence and treaty clauses of the several constitutional democracies that constitute today’s American Empire of Commerce.

Diplomatic credibility is important to global politics at least when one is not the supreme commander who is so supreme as to be able to assume sovereign power over the whole world and get away with it. Neither the United States nor any of her present allies was in that supreme position in the later part of the 18th century. Each power had to mind its reputation against being seen as too two-faced for the others to stomach without going to war over it. Since so many of the powers that contracted the discovery doctrine were involved in the Seven Years War it ill behooved the United States to court their animosity by being seen to jettison the agreement agreed to by all, just to cleanse the continent of those pesky Indian tribes.

This situation remained until the latter half of the 19th century by which time America was feeling its oats, having devoured the greater part of North America and being poised to consolidate its control to the Pacific without fear of interference; but in the 18th century that risk still existed. The risk was very high indeed in 1756 when Vanguilder physically defended his particular band’s family hunting grounds from the Housatonic River to the Hudson River. So he was let free and the threatened uprising of Algonkian and Iroquois speakers against the British Crown was avoided, Great Britain won and in due course America inherited the world.

The Mahican tribe except for the Vanguilder band accepted Christianity or at least the protection of the missionaries and, in consequence, successfully were induced to decamp for Wisconsin. Before leaving the tribal homeland they transferred their remainder interest in the portion of it not ceded by treaty to the Vanguilders by two duly registered Indian deeds. See, Indian deeds of 24 October 1737 and 1 June 1756 in Wright, Indian Deeds of Hampden County, 1905, 141-142, 155-157. That did not help the Vanguilders much.

Since the local judges, court administrators, juries, police, militia, land office registrars, surveyors and everyone else with any power, money or influence were all newcomers. Justice according to the rule of law was not available. The Vanguilder reservation simply disappeared and ended upon parceled out to the current holders of real property in Massachusetts and New York between the Hudson and Housatonic Rivers. Nevertheless for constitutional law purposes those newcomers who can not trace title to the Indian Treaty of 1724 (reproduced at Appendix B to Document 2, Case Court Documents, http://mightisnotright.org/, and cross-referenced in the document text at Note 4, Page 5) have no title.

Although this is of very great constitutional consequence it is not of any practical consequence because all the officials and everyone with any power, money or influence are still all newcomers not tribal members. Since the Vanguilder’s reservation was stolen by the chicanery of the legal system the Vanguilder remnant of the Mahican tribe, not willing to be a part of the Christianized community at the Stockbridge Mission, hid out in the tribal ancestral homeland when the rest of the tribe was on its own counterpart to the later and more famous Cherokee Trail of Tears out west. They re-established in what became known as Guilder Hollow in upstate New York to the south of the tribal northern boundary at Otter Creek draining into Lake Champlain and close to the New York State border with Vermont. Toanunck’s direct descendant Rick Vanguilder occupies now the same position as did the signatory of the same name at the Treaty of 1724.

In so far as written records exist this sub-group has not strayed since relocating. It is there now. The Bureau of Indian Affairs nevertheless refuses to recognize the group as the Mahican tribe still in occupation, on the ground it can not produce written records from every decade since the 18th century to prove they held regular council meetings without interruption, as if Indian tribes had to be literate and conduct meetings by Roberts Rules of parliamentary procedure in order to qualify for constitutional protection. The Bureau is not interested in that, anyway. It will not consider anything other than federal law. And it is quite right in terms of the federal law. That is the whole point of the federal law: to make war and commit genocide to exterminate Indian tribal sovereignty and its adherents. There is only one way survive: the federal way. The constitutional way is not admissible.

In 1871 the predecessor of all present federal Indian law was inaugurated by the Appropriations Act of 1871. It purported to repeal the previously established constitutional law. It is codified today in the form of 25 USC §71¶1 and 28 USC §1251¶(b)(1). The first enacts, “No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty; but no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March 3, 1871, shall be hereby invalidated or impaired.” That, supposedly, takes care of the tribes’ constitutional right. The second in complementary fashion goes after the constitutional remedy by enacting, “The Supreme Court shall have original but not exclusive jurisdiction of: All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties.” The word “foreign” is not in the constitution. The constitution’s original jurisdiction clause applies equally to Indian tribes and foreign Nations. States other than states of the union are not mentioned.

These federal statutes are null and void by reason of their profound conflict with the previously established constitutional law but, and this is the magic of imperial power, the constitutional law signifies absolutely nothing in the era of unconstitutional empire 1871 to 2011. This era we are in has superseded the era of the constitutional democracy 1789-1871. The constitution’s original jurisdiction clause applies to jurisdictional disputes between Indian tribes, American States and foreign Nations. Indian tribes are taken out by the Appropriations Act of 1871 and foreign Nations by the War Powers Act of 1973. Those statutes are based upon the misapprehension the government of the United States is not constitutionally bound. It is as omnipotent as any empire has ever been, only more so because its physical power is so much greater.