Written by W'Lawpsh   

Since 1871 no Indian tribe has been able to get the Supreme Court to address the constitutional question of jurisdictional law alone of Indian tribal sovereignty, whether on appeal from a lower court’s ignoring of the issue or in virtue of a direct application under the original jurisdiction clause.

Early in 2011 Gary Metallic and Rick Vanguilder applied under the direct route on the ground the Appropriations Act of 1871 “is affecting” them as “public Ministers” of Indian tribes. The statute denies their tribes’ status and thereby their own. That affects them. It also causes genocide in the form of “serious bodily or mental harm” within the meaning of Article 2(b) of the Convention for the Prevention and Punishment of the Crime of Genocide. The Clerk of the Supreme Court returned their Case on the ground it does not comply with the very federal law that the Case shows to be unconstitutional. The Clerk has been informed of the genocidal consequence. He has been informed of the constitutional law that establishes his obstruction is not only beyond his Rule 1 jurisdiction to reject for defects in form but not substance. He knows what he is doing is not only unconstitutional but criminal. No problem, he apparently feels, since there is nothing can be done about it. The Court aside from Justice Thomas does not want to be troubled by this particular constitutional question. The only Justice to whom the Clerk can turn for instructions and guidance is the one charged with administrative oversight of administrative matters: Chief Justice of the United States John G. Roberts.

Supreme Court Justice Clarence Thomas was wrong in 2004 when among other things he said in the Case of United States v. Lara, 541 US 193 (2004), “Federal Indian policy is, to say the least, schizophrenic…The Federal Government cannot simultaneously claim power to regulate virtually every aspect of the tribes through ordinary domestic legislation and also maintain the tribes possess anything resembling ‘sovereignty.’” It can and does claim that power and there is nothing can be about it because the constitution is not in charge. The Supreme Court is in charge. The evidence is conclusive that if the Court does not like what the constitution says all the Chief Justice has to do is tell the Clerk not to let that topic get filed. And if it crops upon on one of the Judges own motion, all the rest of the Court has to do is invent some silly proposition like the jurisdiction to regulate to commerce with Indian tribes and foreign Nations really means to exercise absolute power over them, including that of life or death, war and genocide, the attributes in other words of an unconstitutional empire of commerce. The Court after all has the last word, not the constitution. And that is the fatal flaw of constitutional democracy: if you can’t trust the judges who can you trust? If not them who, if not now when?

Justice Thomas said, “In 1871, Congress enacted a statute that purported to prohibit entering into treaties with the ‘Indian nation[s] or tribe[s].’ 16 Stat. 566, codified at 25 USC §71. Although this Act is constitutionally suspect (the Constitution vests in the President both the power to make treaties, Art. II, §2, cl. 2…), it nevertheless reflects the view of the political branches that the tribes had become a purely domestic matter. To be sure, this does not quite suffice to demonstrate that the tribes lost their sovereignty… Federal Indian policy is, to say the least, schizophrenic…I believe we must examine more critically our tribal sovereignty case law. Both the Court and the dissent, however, compound the confusion by failing to undertake the necessary rigorous constitutional analysis. I would begin by carefully following our assumptions to their logical conclusions and by identifying the potential sources of federal power to modify tribal sovereignty…I do, however, agree that this case raises important constitutional questions that the Court does not begin to answer. The Court utterly fails to find any provision of the Constitution that gives Congress enumerated power to alter tribal sovereignty…I would be willing to revisit the question…The Federal Government cannot simultaneously claim power to regulate virtually every aspect of the tribes through ordinary domestic legislation and also maintain the tribes possess anything resembling “sovereignty.” The Court should admit that it has failed in its quest to find a source of congressional power to adjust tribal sovereignty. Such an acknowledgement might allow the Court to ask the logically antecedent question whether Congress (as opposed to the President) has this power. A cogent answer would serve as the foundation for the analysis of the sovereignty issues posed by this case…[U]ntil we begin to analyze these questions honestly and rigorously, the confusion…will continue to haunt our cases.”

Justice Thomas apparently had read the decision of Chief Justice John G. Roberts, Jr. on behalf of the other Justices when he said, “The Court utterly fails to find any provision of the Constitution that gives Congress enumerated power to alter tribal sovereignty.” The “utterly” is if anything a diplomatic understatement in so far as it does nothing to convey the sinister nature and character of the evasion by the rest of the Supreme Court of the conflict of laws issue that the Clerks of the Supreme Court have been obstructing ever since 1871 so the Judges do not have to be seen dirtying their own hands in the blood that is shed by the wars and genocide of the unconstitutional empire that the clever magic of obstruction and ignoring has unleashed upon the American People and the world as well as upon the Indian tribes. Witness the reason for judgment handed down by the Chief Justice who had the effrontery in utterly failing to find any provision to pretend, as if there were not a huge bulwark of precedent settling the meaning of the commerce, defence and treaty clauses read together to the very opposite conclusion. The Chief Justice said, “…the central function of the Indian Commerce Clause, as we have said, is to provide Congress with plenary power to legislate in the field of Indian affairs.”

By any measure of honesty that statement is utterly beyond the pale. Nothing, nothing, nothing could be farther from the simple, plain and irrefutable constitutional truth that the Justices can not possibly help but knowing. The mentioned Case of Worcester v. Georgia with regard to the constitutional protection of the constitutional right of Indian tribal sovereignty, and its twin with regard to that right’s constitutional remedy of direct access to the Supreme Court under the constitutional original jurisdiction clause, the Case of Cherokee Nation v. State of Georgia, 30 US 1 (1831), are superprecedents equivalent to Marbury v. Madison as cornerstones of the constitution.

Every law student cuts his teeth on these particular Cases. And every Judge on the Supreme Court bench has to wade through them every time a federal law Indian case is welcomed into the Court by the Clerk, and the Court’s welcome mat indeed is out for federal law Indian Cases, since it is only Cases brought by the Indian tribes on the ground of Indian tribal sovereignty that are obstructed from getting in, and the system looks good being so patient putting up with all the complaints of all the federal government’s Indian puppet governments seeking more largesse. In the Cherokee Case the Supreme Court settled Tribes are States (Johnson, J, dissenting) albeit not “foreign” (Thompson and Story, JJ, dissenting) and, since the Cherokee complainant explicitly relied exclusively upon the reference in the general jurisdiction clause, constitution Article III§2¶1 to disputes “between a state [Georgia] and foreign states [Cherokee Nation],” in the result Marshall, CJ, held [p.20], "this court cannot interpose; at least in the form in which those matters are presented.”

It is all so grotesquely dishonest and unconscionable once one lets into one’s conscious awareness the fact that not only is the obstruction and ignoring the source of the unjust and unconstitutional cause of the Indian wars and the genocidal ethnic cleansing of that race from the eastern seaboard, but also of the War Powers Act of 1973 pursuant to which the unconstitutional empire pushed into Iraq, Afghanistan and now, it would seem, Libya by means of war masquerading as a human rights effort to prevent civilian casualties, as if the constitutions of any of the so-called constitutional democracies of the empire had clauses in them saying the commerce, defence and treaty clauses don’t work if the government can identify a human rights excuse to obviate them.

The Mi’kmaqs of the Maritime Provinces of Canada and the Gaspé Peninsula of Quebec learned for themselves during the era of the first British Empire the duplicity of imperialist systems of government which is why they, or at least that branch of the Mi’kmaq tribe to which Gary Metallic and the traditional government he serves belong, contracted with the United States at the instigation of George Washington, the Continental Congress and Massachusetts on behalf of the “United States of America” to sign the Treaty of 1776 (reproduced at Appendix C to Document 2, Case Court Documents, http://mightisnotright.org/, and cross-referenced in the document text at Note 4, Page 5). As the cited documents attests regarding the 1776 treaty, “It constitutes a military alliance for mutual protection. This sister document to the Declaration of Independence was initiated by George Washington, authorized by the Continental Congress, and signed by Massachusetts specifically on behalf of the “United States of America.” It is to this compact, above all other possible candidates, to which the Article VI ¶1 of the Constitution refers when stipulating for the binding force and effect of treaties “made” as opposed to treaties which “shall be made” under the “Authority of the United States.” Article VI ¶1 provides, “All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.” The Mi’kmaq aboriginal government signatory “Sabbath Netobcobwit” was Ambassador and public Minister of the Gespegawagi Mi’kmaq Tribe of the Restigouche River and southerly draining Gaspé Peninsula, the same as this applicants’ signatory Gary Metallic is now. His great grandmother many times removed was a Listiguj (Restigouche) hereditary government woman who married “Metallak,” the youngest son of Pial, chief of the Cowasuck or, more properly, the Arosaguntacook Abenakis of the upper Androscoggin and Megalloway Rivers along the northern border of New Hampshire and Maine. Canada has invaded, occupied, possessed and is governing his aboriginal maternal territory and the United States adversely similarly occupies his paternal territory. Pursuant to the treaty of 1776 his people fought and died so the United States could live.

The name of the test case that the Clerk of the Supreme Court is obstructing is Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe and Gary Metallic v. Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States. The complainants complain as a means of preventing the wars and genocide still in progress against them and, by necessary implication of law alone since the War Powers Act of 1873 and the Appropriations Act of 1973 equally are unconstitutional for the same reason, namely for repealing the commerce, defence and treaty clauses without complying with the amendment clause. They do not complain for power or money. Or even land. Influence, perhaps. Somehow the despoliation of the planet attributable to the unconstitutional empire of commercial excess and over-consumption, let alone all the wars and genocides, has got to be prevented before time has run out for humankind and their stewardship.

As Rick and Gary have solemnly have sworn, “The compulsory imposition of the newcomers’ culture based upon the human domination of nature, upon the misapprehension nature is severable and its parts are available for exploitation with indifference to the reasonably foreseeable and probable consequence upon the unified whole, respect and reverence for which is ‘The Indian Way,’ the old way of being, thinking, feeling and above all knowing in each individual’s heart of hearts, has been the Indians’ problem for a very long time, so long, in fact, that the clock can not be turned back or damages awarded commensurate with the past suffering. All that can be done, from the point of view of the applicants and other constitutional (as opposed to federal) Indian governments whose constituents still identify the individual self with the unified Self that is the great spirit or nature or whatever other name one assigns to that awareness, is to serve as stewards of the shared environment to the extent that fate and their attention to that duty permits. All the Peoples who are on the applicants’ land, now, without regard to race, color or creed, who have put down roots and become part of it like the applicants themselves, are one with nature and beneficiaries of the stewardship obligation whether or not they appreciate it. There is therefore no reason for newcomers and their structures for the political administration of their awesome military, industrial and technological power to feel threatened by setting free the truth that will set us all, nature included, free. But they do fear this anyway because not understanding ‘the Indian Way’ they attribute to us their own cultural Way. Perhaps they feel all humans, given the chance, will think and feel like they do. If so, they do not only not understand us but they ignore the safety net provided by their own Constitution that they can amend, in the proper way. In sum, the applicants’ Way of stewardship precludes a rational basis for the fear that fosters willful blindness and deafness to the Constitution as it is written and, even if the applicants were themselves to undergo some epiphany of conversion to the newcomer Way of predation against all, that same Constitution provides a legal remedy, the remedy of a due and proper constitutional amendment pursuant to Article V. Not a judicial amendment of the constitution but rather a constitutional amendment of the constitution.” Document 1, Case Court Documents, Page 6, http://mightisnotright.org/.

If the Supreme Court of the United States will let the constitutional question of jurisdictional law alone of Indian tribal sovereignty into Court is spite of the obstruction of the Clerk of the Court and without regard for its own ignoring of the issue since 1871, constitutional democracy will have been re-instated and correspondingly its antithesis unconstitutional empire retired, for there is no doubt that in the light of all the truth, the whole truth and nothing but the truth of the what the constitution enacts and the precedents confirm, that pending a constitutional amendment the sovereignty of Indian tribes and foreign Nations has to be respected. That is the beginning of peace on earth.

The hot spot right now is the Levant where the Palestinians and the Israelites both have been have been put in an untenable and intolerable conflict by the arrogance of the unconstitutional empire. Instead of buying the occupiers in possession out or finding them equal or better land the empire breached its trust mandate and basically ejected them. Now both the immigrants and the previous occupiers are at each others throats. Israel is stronger so it is made to look like the bully to much of the world and justly avenging angels to the other. The problem was not created by either Israel or the Palestinians and the empire does nothing to discharge its sole responsibility. Instead it arms Israel with nuclear weapons and military support to appear a bigger bully or more powerful angel as the case may be. This situation could be salvaged for a fraction of the cost now being spent of the means to kill, but that would take money out of the pockets of the few who profit from war mongering and control the People’s government.


Surely it can be seen that if anyone was at fault it was not the Israelites who were in desperate need of a refuge and have no place else to go now, nor the Palestinians who object so vehemently to deaf ears in the empire that they have at least an equal “right to exist” as a state. It is the empire that is at fault. And it stands on the sidelines directing events in the unending war it has caused and which it maintains.

The same applies to the descendants or successors of the lands stolen from the Indians under the auspices of the manifestly unconstitutional Appropriations Act of 1871. The Americans and Canadians who trespass on unceded Indian tribal land have put down roots and are at home now. The stewardship of the land includes them now.

Once roots go down the People and the land become one. The People who there first are no more a part of the land for that fact. The great powers of Europe gave a portion of the Levant to Israel which was not have been Europe’s to give the same as the federal governments of the United States gave away the Indians’ lands when it was not theirs to give away.

Democratic People do not constitutionally purport to have the right to take life from Indian tribes and foreign Nations. Their governments do. That is because their governments are not acting for the People but rather for the few who hate if they cannot gratify their want more than enough to live in dignity and with respect.

The government functions as the haters’ propaganda disseminator. Some of the People are taken in by the propaganda and hate what it falsely informs they should fear. Others realize that when the government says anything there is no correlation between what is said and what is true. If the truth is opportune to those who profit from war and genocide the government tells the truth. If the truth is not opportune the government lies.

Thusly opposed camps are created by the government propaganda: those who believe it and fear the object of it; those who do not believe it and fear the government for the evil nature of the war mongers in whose thrall their rulers labor under; and those who just do not know who or what to believe and fear everything. Fear begets hate among the People of each other, the government and the government’s victims.

The stalled Indian Case will remedy that situation when it breaks free of the obstruction and ignoring of the Supreme Court in aid of the unconstitutional empire. For as Emerson said, “Truth is the summit of being: justice is the application of it to affairs….and whatever instances can be quoted of unpunished theft, or of a lie which somebody has credited, justice must prevail, and it is the privilege of truth to make itself believed.” The truth is, every day is a new day and all humans have the right to live in peace on that day. There need not be so much fear and so much hate in reaction to it. That is the fault of the Supreme Court of the United States for not doing its constitutional duty. But still the important point is, better late than never.