Written by W'Lawpsh   

The constitution is elegant and strong but also fatally vulnerable to the Supreme Court of the United States.

That Court has exclusive original jurisdiction with regard to sovereignty disputes between the United States, foreign Nations, States of the Union, and Indian tribes. Precisely because it owes its existence to the constitution, as opposed to being created by any of the sovereign disputants, it justly and justifiably is the independent and impartial third-party adjudicator of jurisdiction and boundary disputes between them. Prior to the enactment of the constitution the excusive original jurisdiction had been vested in the Judicial Committee of the Privy Council of the United Kingdom as the highest court in the British Empire. The colonial constitutional law on point was settled by the JCPC(UK) in the quite famous Case of Mohegan Indians v. Connecticut (1704-1775). Joseph h. Smith, Appeals to the Privy Council from the American Plantations, New York: Columbia University Press, 1950.

However, ever since the enactment of the Appropriations Act of 1871 the Supreme Court of the United States unconstitutionally has obstructed and ignored Cases submitted to it by Indian tribes who object to the war and genocide against them by the United States in abrogation of their sovereignty. This judicial willful blindness to the supremacy of the constitution’s commerce, defence and treaty clauses’ policy of peace and respect for the others’ sovereignty treasonably passes the control of government from the People, to the war mongers and money managers who profit most from the dedication of the money economy to the present unconstitutional policy of global sovereignty based upon war and genocide.

The constitutive precedents long ago settled those that those three clauses, commerce, defence and treaty, signify the United States can regulate its citizens’ trade and commerce with foreign Nations, States of the Union, and Indian tribes. Each of the three named sovereign bodies politic is bound not to enter another’s territory without consent recorded by treaty. None would dispute this. It is the basis for international law no less than the constitutional law. The only exception is the right and jurisdiction of self defence. The defence clauses delegate to the political branch the constitutional jurisdiction to invade others if but only if they invade the United States first.

This constitutional plan for peace based upon respect by the United States for the sovereignty of foreign Nations, States of the Union and Indian tribes filled the court reports from 1789 to 1871. Then, overnight, it totally disappeared from the court records; except only for one Case that had been begun before 1871 and was decided in 1872. Aside from that one, not a single mention of the previously settled constitutional status of Indian tribes appears in the court records for the next 133 years, until Associate Supreme Court Justice Clarence Thomas took judicial notice of it in United States v. Lara, 541 US 193, 214-27 (2004).

The last Case before the constitutional interregnum 1871-2011 (during which unconstitutional empire has ruled in place and stead of constitutional democracy) was Holden v. Joy, 84 US 211, 244 (1872). It reiterated, “Obviously this principle regulated the right conceded by discovery among the discoverers, but it did not affect the rights of those already in possession, either as aboriginal occupants or as occupants by virtue of a more ancient discovery. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell…Unmistakably their title was absolute, subject only to the preemption right of purchase acquired by the United States as the successors of Great Britain, and the right also on their part as successors of the discoverer to prohibit the sale of the land to any other governments or their subjects, and to exclude all other governments from any interference in their affairs.”

This past month Reader Supported News has published nineteen articles I have submitted under their Writing for Godot program. In them I make the point that constitutional government is a marriage of the political and the judicial: you can’t have one without the other.

Judicial fidelity to the constitution must accompany any political, social and economic reform. I tried to interest the People in becoming more aware and active with regard to the judicial reform that is the precondition to rescuing constitutional democracy’s policy of peace and respect from the unconstitutional empire’s policy of universal American sovereignty implemented by war and genocide.

During the past forty years I witnessed the genocide-in-progress caused by the willful blindness of the Supreme Court and all other courts in the national and international arena. All follow the Supreme Court’s lead of obstructing and ignoring the constitutional question, apparently preferring to share in the imperial plunder over being plundered themselves.

The critical question is, does the constitution rule or does the Supreme Court rule? At the moment there can be no doubt that the Court rules. It rules by virtue of its willingness to obstruct and ignore the constitutional question of the validity of the two federal statutes that authorize the manifestly unconstitutional imperial policy of war and genocide: These are the Appropriations Act of 1871 (Indian tribes) and the War Powers Act of 1973 (foreign Nations).

The Case of Mahican Tribe and Rick Vanguilder and Mi’kmaq Tribe and Gary Metallic v. Canada, France, Netherlands, Portugal, Spain, Russia, United Kingdom and United States is restricted solely to requiring the Court to adjudicate the constitutional invalidity of the Appropriations Act of 1871. By necessary implication of law alone if, as is contended, the Appropriations Act of 1871 is unconstitutional then so also is the War Powers Act of 1973. Since the consequence of obstructing and ignoring the constitutional question is war and genocide there are good grounds for expediting the answering of the question.

The Case simply and straightforwardly asks the Court to answer the constitutional question of the conflict between the Appropriations Act of 1871 and the constitutional clauses previously mentioned. The Case legally is airtight in the sense it is perfect as to form and impregnable as to substance. Justice Thomas correctly predicted the necessary answer to the constitutional question upon the basis of the treaty clause alone. But he called for honest and rigorous legal research to confirm or discount his preliminary impression. The Case submits that quality of legal research to the Court. See http://mightisnotright.org/.

It is terrifying to be invisible; to be one of the walking dead through whom light passes due to the psychology of ostracism. That is what the Peoples of the complaining Indian tribes are forced to be, for legal purposes, when the jurisdiction granted by the Appropriations Act of 1871 is implemented by the United States and Canada invading, occupying, usurping and dispossessing them. The Indian tribes submit court documents perfect in form and restricted to the Court’s original jurisdiction clause jurisdiction to adjudicate the sovereignty conflict identified as between the two Indian tribes and the United States and Canada.

But the Clerk of the Court sends back the documents. He says Indian tribes can not attack the Appropriations Act of 1871 on the ground it “is affecting” their constitutionally protected sovereignty to have “Ambassadors and public Ministers” because the statute repealed their sovereignty. Such repeal is of course a constitutional impossibility. The statute does not comply with the amendment clause. That amendment clause is what secures and makes safe the People’s sovereignty over constitutional change. The fact he is giving “Aid and Comfort” to the “Enemies” of the Republic contrary to the treason clause does not, from all that appears, concern either the Clerk or the Chief Justice of the United States with whom the Clerk confers on vexing administrative issues.

Whether alone or prompted by the Chief Justice, the Clerk is causing a nightmare of genocidal political, social and economic injustice. The injustice is based entirely and knowingly upon the judicial sacrifice of the truth of constitutional democracy to the holocaust fires of unconstitutional empire, pursuant to a contrived mis-reading the commerce clause. Imperialists purposefully mis-read the commerce clause as if it were a delegation of global sovereignty to be implemented by means of war and genocide in the normal imperial fashion. In order to arrive at that perversely wrong conclusion the imperialists wilfully blind themselves to the settled constitutional law reiterated by the Court in Holden v. Joy. The previously settled constitutional law is based upon reading the commerce clause together with the defence and treaty clauses, as was done by all the Cases in every decade from 1789 to 1871.

Thus, the United States can regulate its citizen’s trade with the others pursuant to the commerce clause subject to the others’ territorial sovereignty under the treaty and defence clauses.

Indeed it was precisely to prevent the imperialism presently achieved by the Supreme Court’s blindsiding the settled constitutional policy of peace based upon respect for the sovereignty of the named others, that the Declaration of Independence was proclaimed in 1776. Its ethic was made the supreme law by the Constitution, 1789.

The Indian tribes and the others have known for a long time that the wars and genocides are both unconstitutional and unpreventable because the Supreme Court of the United States prefers unconstitutional empire to constitutional democracy. It is the emperor. Nothing can be done about that. Each generation has tried. Each has passed on in despair of justice.

Occupy Wall Street has created a hope where none was before.

The Court Clerk’s obstruction has to be overcome for constitutional democracy to rise again. Occupy Wall Street seems to be about that renaissance.

The Indian tribes are out of straws at which to grasp. From all that appears communications from Indian tribes to the Court or to the Judicial Conference of the United States are regarded as dead letters from dead people or People who hallucinate they a sovereign People. There is no acknowledgement of tribal communications send to the political and judicial branches of government. And it has been a long, long time since the Indian tribes began knock, knock, knocking on Justice’s door; always, eventually, to be forced to recall they are not fully human to those plundering and oppressing them.

The Case itself is safe, easy, cheap, fast, legal and necessary. It is restricted to constitutional law which itself is clear and plain and well settled. But still the risk is it will be buried by the sands of time and attrition as have all other attempts to make the rule of law work for the Indian tribes in accordance with the basic precepts of constitutional democracy. And nothing will change. The unconstitutional empire will continue to rule unconstitutionally, omnipotently and omnipresently until it is too late for humankind to draw back from the abyss. This is what the ancestors of the present generation of the tribes anciently said and prophesied.

But still hope springs. Occupy Wall Street revives the constitution’s seemingly impossible intent of Justice, Tranquility, defence, Welfare and Liberty for all. Please contact me to look for ways to help the Case reach this destination.