Written by W'Lawpsh   

Previously I wrote an article, “Is the revolt in Libya implementing the North American genocide model?” It was published September 11, 2011 by Reader Supported News at http://readersupportednews.org/pm-section/21-21/7403. I can’t find any comments liking or disliking it except for an unrelated and subsequent rejection for republication in another news service. The ground for rejection makes me worry that those who read it similarly may have missed its point. So I’d like to clarify, if I may? The following does that, I think:


From Administrator OpEd News:
15 September 2011 20:04

We want to accept your article but it needs a bit more work, as described below.

You submitted an article titled: Is the revolt in Libya implementing the North American genocide model?

This article was submitted with category OpEdNews_Op_Eds and tags Alone, Congress, Democracy, Ecocide, Empire, Genocide, Ignoring, Indigenous, Law, Laws, Military, NATO, Peace, Prevention, Propaganda, Sovereignty, Tribal, Truth

Op Ed News Administrator

P.S.
While what is happening in Libya certainly appears to be illegal, unethical, and imperialistic in the extreme your piece uses abject supposition and factless speculation to build some kind of existential connection between what is happening there and what happened in North America. I just don't see it. There was no dictatorship of the type in Libya, nor the participation in external terrorism, which Ghaddafi clearly did.

The genocide of the US Army against the Native American population and their subsequent forced relocation into concentration camps and reservations is an irreversible blight on the history of the United States. But to make some kind of connection? You lost me there.

If you would like to take another look at it and resubmit it that would be fine.

Your Original Submission is attached to this email

Please do NOT reply to this email; no one will see it.



LETTER TO Rob Krall
Publisher, OpEd News
From "W'Lawpsh"
September 16, 2011

Dear Rob:

Please thank your Administrator for me and for the Mahican Tribe and Mi'kmaq who, as you may know, complain of genocide-in-progress in a court case submitted to the US Supreme Court but which the Clerk of the Court refuses to put before Justice Clarence Thomas, one the two designated judges for procedural law issues, as required pursuant to Rule 22 of the Rules of the Supreme Court of the United States. Please see, W'Lawpsh, Might is Not Right, "Home," http://mightisnotright.org/.

Those tribes and I regret that your Administrator can not see "some kind of connection" between what he or she identifies as "The genocide of the US Army against the Native American population and their forced relocation into concentration camps and reservations [that] is an irreversible blight on the history of the United States" on the one hand, and on the other "what is happening in Libya." I'm sure the fault is entirely mine for failing adequately to communicate the equation which is actually quite straightforward, at least for strictly legal purposes.

The sovereignty of "Indian tribes" and "foreign Nations" equally is protected pursuant to the constitution's amendment, commerce, defence and treaty clauses, according to a natural reading of the actual words of those clauses and also according to the constitutive precedents in the era 1789 to 1871. Specifically, the precedents settle that the commerce clause Art. I, §8, ¶3 delegates to Congress jurisdiction "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" is subject to the defence clauses' delegation to Congress by ¶1 and ¶11 of jurisdiction to "provide for the common defense" and "declare War" and to the President's jurisdiction pursuant to the treaty clause Art. I, §8, ¶2 "by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur."

In the article your Administrator rejected I attempted, perhaps inadequately, to identify the equation between the Indian tribes and foreign Nations based upon the common constitutional question of the conflict between that constitutional law and the Appropriations Act of 1871 (Indian tribes) and the War Powers Act of 1973 (foreign Nations) as follows:

“It is quite simple really: if the judges will address the constitutional question of the war power vis-à-vis Indian tribes and foreign Nations, since the constitution is so unequivocal and mandatory it is certain the judges will declare the Appropriations Act, 1871, and the War Powers Act, 1973, null and void by reason of their conflict with the amendment, commerce, defence and treaty clauses as settled by the constitutionally constitutive precedents.”

And a bit later:

“In 1871 the US Congress enacted ordinary legislation, as opposed to processing a constitutional amendment, which ordinary legislation unconstitutionally pretended to repeal the constitution’s treaty clause. It ordered the President not to make and the Senate not to ratify any more treaties with Indian tribes for the consensual acquisition by the United States of the tribes’ territorial sovereignty and possession. Congress then incorporated municipal councils under federal law to serve as puppet Indian quasi-national governments and paid them to aid and abet in the genocidal eradication of the old-way sovereign tribal governments and their adherents.”

In 1973 the War Powers Act unconstitutionally enacted the President can declare an emergency if he or she thinks a foreign Nation threatens the economy and, upon the basis of such declaration, forthwith can initiate preemptive war to dispose of the threat, thusly putting the rest of the world in the same position as the Indians.

I am not the first person to have noticed the conflict between the constitution and the Appropriations act of 1871. US Supreme Court Justice Clarence Thomas made the same legal point in so far at least as the Indian tribes are concerned in the case of United States v. Lara, 541 US 193, 200, 214, 227 (2004), where he 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.

Chief Justice John Roberts, speaking for the balance of the Court with whom Justice Thomas concurred in the result albeit subject to his caveat (which the other judges ignored) that the constitutional question of jurisdictional law alone of Indian tribal sovereignty remained the elephant in the room that everybody else declined to notice, nevertheless and without addressing the constitutional question of the treaty clause held:

“...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.

The difficulty is, in 2004 the Court except for Justice Thomas decided the commerce clause read in isolation legislatively intended to delegate to Congress "plenary power" i.e. sovereignty over the "Indian tribes" even though the legislative scheme of the commerce, defence and treaty clauses, read together as required by the precedents in the constitutionally formative era 1789 to 1871, settled the sole jurisdiction constitutionally claimed by the United States was and remains identical to that constitutionally claimed by the "great maritime powers of Europe" engaged in the colonization of the Americas prior to the American Revolution: namely, the exclusive jurisdiction i.e. "the preemptive right" to acquire territorial sovereignty i.e. "plenary power" from the Indian tribes peacefully by treaty as opposed either to having it originally pursuant to the commerce clause or by acquiring it derivatively by conquest i.e. preemptive war pursuant to the defence clause.

The reason I have added stress to the phrase "in 2004" in the preceding paragraph is that in the era 1871 to 2004 no court in North America (i.e. the USA and Canada) recognized the existence of the constitutional question of jurisdictional law alone of Indian tribal sovereignty. This is not to say the Indians did not attempt to raise that constitutional question in courts. It is just that when they did no judge was ready, willing or able to hear the words spoken or permit the court documents recording them to be filed and referenced in any court reasons for judgment. I personally can and have attested to this as have the Indian complainants in the case pending in the Supreme Court. For forty years I have tried to get the courts in the USA and Canada and internationally to address and answer the constitutional question. I have a masters degree in the constitutional history of North America focused upon the relationship for legal purposes between native and newcomer governments, and a law doctorate in jurisprudence on comparative constitutional law and international law bearing upon the topic of war and genocide.

Instead of recognizing the existence of the constitutional question the lower and supreme courts of the USA and Canada, the Judicial Committee of the Privy Council, the International Court of Justice and the International Criminal Court all have always obstructed and ignored and made no reference to the existence of the constitutional question, but rather have applied ordinary federal law ultimately based upon the manifestly unconstitutional assumption of jurisdiction made by Congress's Appropriations Act of 1871 and its Canadian counterpart the Indian Act of 1876, as if no constitutional objection had been taken to such application. Since 1871 the Indian tribes have simply been rendered invisible to judicial eyes and voiceless to judicial ears other than those of Justice Thomas, at least when it comes to the constitutional question of jurisdictional law alone of Indian tribal sovereignty.

Essentially the same thing happens these days when the USA and Canada and their allies in the European Union invade foreign Nations such as Iraq, Afghanistan, Libya and so on and on and on. The problem is, the political branch of the constitutional democracies that comprise the Euro-American empire unconstitutionally has assumed the imperial power of sovereignty over the whole world and the judicial branch has perfected the crimes against humanity and constitutional supremacy of war and genocide by obstructing and ignoring the existence of a constitutional objection to the assumption of imperial power.The Indian treaty frontier that started out slowly working its way west from the Atlantic coast discovered by Europe in 1492 took a giant leap west to the Pacific in 1871 when the Appropriations Act of that year unconstitutionally (i.e. not in compliance with the amendment clause Art. V) pretended to abolish the constitutionally sovereign status of the Indian tribes. Then, in 1973 the claim of imperial sovereignty was further extended to encompass the remainder of the globe with the enactment of the equally unconstitutional War Powers Act.

If the US Supreme Court was right in United States v. Lara, 541 US 193, 200 (2004) when it held with regard to the Indian tribes that "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" then, by the same token, in 1789 Congress also acquired plenary i.e. sovereign power to legislate in the field of foreign affairs with regard to "foreign Nations." After all, the commerce clause enacts, as we have seen, that Congress has jurisdiction "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." It does not differentiate as between the three named categories of bodies politic. If regulating trade "with" means having plenary i.e. sovereign power "over" "Indian tribes," it also signifies having that same degree of power "over" "foreign Nations" and the "States" of the United States. If that is constitutionally true, then both the Appropriations Act of 1871 and the War Powers Act of 1973 are constitutional since both have an economic or commercial legislative aspect. If it is not true, then both are unconstitutional and if that is true then much of the USA and Canada as well as Iraq, Afghanistan, Libya and so on unconstitutionally have been invaded and are being occupied in virtue of illegal wars the consequence of which arguably is genocide.

The recent invention of the label "R2P" signifying "responsibility to protect" does not justify, although it serves to mask, what used to be passed off as the "white man's burden" in the heyday of the British empire, and which the Declaration of Independence of 1776 proclaimed to be inherently illegal and reprehensible and, commensurately, the Constitution of 1789 precluded by means of the conjunction of the amendment, commerce, defence and treaty clauses read together as required by the constitutive precedents, which the Supreme Court except for Justice Thomas in United States v. Lara willfully obstructs and ignores.

Please, Rob, read or ask your Administrator to read W'Lawpsh, Might is Not Right, "Commentaries," http://mightisnotright.org/. You and he or she will find there a set of commentaries dealing with the Wounded Knee photographs and then moving on to the defence of Justice Clarence Thomas as the only judge who has fulfilled his constitutional duty of upholding the supremacy of the constitution pursuant to the oath of office stipulated by Art. VI as follows:

“Art. VI, ¶2. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

“Art. VI, ¶3. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

The President also swears or affirms the same duty as a condition of taking office pursuant as follows:

“Art. II, §1, ¶1. The executive Power shall be vested in a President of the United States of America.… ¶8. Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

W'Lawpsh, Might is Not Right, "Case Court Documents," http://mightisnotright.org/ records the attempt of the complainants to invoke the US Supreme Court's constitutionally designated original jurisdiction to adjudicate the constitutional question of jurisdictional law alone of Indian tribal sovereignty specifically by challenging the jurisdiction of Congress to have repealed such sovereignty by enacting the Appropriations Act of 1871, on the ground of non-compliance with the Art. V amendment clause. The case is called Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe and Gary Metallic v. Canada, France, Netherlands, Portugal, Russia, Spain, United Kingdom and United States.

Even though US Supreme Court Justice Thomas recognized the constitutional question and invited it back to the Court for the purpose of an honest and rigorous analysis which, as you can see for yourself Rob, the "Case Court Documents" at Might is Not Right http://mightisnotright.org/ provide, if only the Court Clerk would not refuse to file the case on the ground, as he has, that the existence of the Appropriations Act of 1871 preempts the constitutional question of Congress's jurisdiction to have enacted the Appropriations Act of 1871. If the Clerk's blocking of the critical constitutional question of our time were a valid performance of his administrative jurisdiction no constitutional challenge to any statute of Congress could ever get before the Justices of the Court and the principle of judicial review would not exist.

Your Administrator referred to "The genocide of the US Army against the Native American population and their subsequent forced relocation into concentration camps and reservations is an irreversible blight on the history of the United States." That is past history. The Indian tribes' court case that the Court Clerk is preventing the Justices from seeing and adjudicating is not about that historical issue. The case does not seek to invoke the criminal law process for the purpose of "Punishment" within the meaning of the Convention for the Prevention and Punishment of the Crime of Genocide, 1948. Neither does it seek civil law money damages for past wrongs done to the ancestors of the Mahican and Mi'kmaq tribes let alone any other tribes.

The stonewalled court case in question entirely and exclusively is limited to the issue of "Prevention" within the meaning of the Convention for the Prevention and Punishment of the Crime of Genocide, 1948. The case is about preventing war and genocide in the future and interrupting the continuity of ongoing unconstitutional occupations. Such prevention depends entirely the judicial reinstatement of constitutional democracy and, correspondingly, the judicial termination of unconstitutional empire.

In his or her rejection letter your Administrator informed me, "your piece uses abject supposition and factless speculation to build some kind of existential connection between what is happening there and what happened in North America." But is it not clear and plain that the invasion of the Indian territories and the invasion of other parts of the world share in common the feature of having occurred under the auspices of ordinary federal legislation, namely the Appropriations Act of 1871 and the War Powers Act of 1973, both of prima facie breach the constitutional protection of the sovereignty of the "Indian tribes" and "foreign Nations" afforded by the amendment, commerce, defence and treaty clauses read together as a single legislative scheme as established by those clauses' constitutive precedents? This is not at all "existential." It is strictly legal. And certainly it profoundly "affects" the sovereign existence of the Indian tribes and the jurisdiction of their "Ambassadors and other public Ministers" within the meaning of the US Supreme Court's original jurisdiction clause that enacts, "Art. III, §2, ¶2: In all Cases affecting Ambassadors, other public Ministers and Consuls...the Supreme Court shall have original Jurisdiction."

I object to the adjectives employed by your Administrator: "abject supposition," "factless speculation" and "existential connection." Your Administrator attempts but falls far short of justifying the terms used with the single and irrelevant observation, "There was no dictatorship of the type in Libya, nor the participation in external terrorism, which Ghaddafi clearly did." Please look at the paragraph in which the critique appears in context:

“While what is happening in Libya certainly appears to be illegal, unethical, and imperialistic in the extreme your piece uses abject supposition and factless speculation to build some kind of existential connection between what is happening there and what happened in North America. I just don't see it. There was no dictatorship of the type in Libya, nor the participation in external terrorism, which Ghaddafi clearly did.”

Is it that because "There was no dictatorship [in North America] of the type in Libya, nor the participation [of North American tribes] in terrorism, which Ghaddafi clearly did," that your Administrator says "I just don't see" any connection between the invasion of the Indian territories and the invasion of Libya? In any event no other reason is identified. And I have trouble reconciling your Administrator's difficulty in seeing a "connection" given his or her opinion that, "what is happening in Libya certainly appears to be illegal, unethical, and imperialistic in the extreme." That is all my article was saying about the equation between invasion of the Indian territories and the invasion of Libya. Its seems to me your Administrator and I are in total agreement that both the invasion of Libya and the invasion of the Indian territories equally was and remains "illegal, unethical, and imperialistic in the extreme." The only thing my article adds to your Administrator's phrase "illegal, unethical, and imperialistic in the extreme" is "and unconstitutional too." Is it therefore the constitutional aspect to which your Administrator takes such strong objection as to employ the phrases "abject supposition" and "factless speculation" and "existential connection"? If so I have to suggest your Administrator most certainly has an inadequate background in constitutional history and jurisprudence to draw such an unsupported and insupportable legal opinion.

Of course I should be putting all this to your Administrator rather than addressing this to you, Rob, but the difficulty is your Administrator's aggressive and offensive rejection letter says at the top " This e-mail address is being protected from spambots. You need JavaScript enabled to view it " and concludes with "Please do NOT reply to this email; no one will see it." I am sorry to trouble you with this and I do hope you and I can iron out the apparent miscommunication since I am a great fan of OpEd News and I believe it does a fine service to its country and the world in terms of trying to get at the truth of things where mainstream media might not.

Anyway, cheers and best wishes,
W'Lawpsh


There has been no response from Rob or anyone else at OpEd News. In any event, I hope this may assist others who having read my Libya article felt the same way as the Administrator but didn’t mention it. I’d hate for then to take away the wrong impression.