Written by W'Lawpsh   

On February 23, 2011, the Washington Post reported, “Thomas and Scalia have been criticized by a public interest group for attending private political meetings sponsored in January 2007 and 2008 by David and Charles Koch, conservative billionaires who made large contributions during last year's election and have financially backed the tea party movement. Precisely what happened at those meetings remains unclear, but neither of the justices' routine financial disclosures mentioned that the Kochs had organized the events." R Jeffrey Smith, "Professors ask Congress for an ethics code for Supreme Court, Washington Post, February 23, 2011, http://www.washingtonpost.com/wp-dyn/content/article/2011/02/23/AR2011022304975.htm

On June 24, 2011, that public interest group’s viewpoint was cited in support of the Reader Supported News opinion, “But if there's any one big lesson to be learned from the saga of Clarence Thomas and the sullying of the high court, it's that Supreme Court justices are not bound by the code of ethics that applies to other members of the federal bench; it seems they are not legally bound by any code of ethics at all. In the wake of the Thomas problems, that fact has led more than 100 law professors to sign a letter calling on Congress to make the ethics code for federal judges apply to those who grace the bench of the highest court in the land." Adele M Stan, “Clarence Thomas Must Step Down: Plagued by ethical breaches and links to groups calling for armed insurrection against the US government, Clarence Thomas must resign his seat on the Supreme Court," Reader Supported News, June 24, 2011, http://www.readersupportednews.org/news-section2/341-193/6371-clarence-thomas-must-step-down.

And on August 29, 2011, The New Yorker published Jeffrey Toobin, “Annals of Law. Partners: Will Clarence and Virginia Thomas succeed in killing Obama’s health-care plan,” http://www.google.com/search?client=gmail&rls=gm&q=http%3A%2F%2Fwww.newyorker.com%2Freporting%2F2011%2F08%2F29%2F1108. The word “Partners” in the title implies the judicial independence of Justice Thomas, and his fidelity to his constitutional oath of office may be comprised due to the fact he is married to a Tea Party activist who is an accomplished and powerfully persuasive person in her own right. The implication is the husband will fall under the opportunistic political influence of this wife instead of remaining true to his well and long established judicial conviction of allegiance to the principle of constitutional supremacy. No evidence is identified to support that implication.

Since these and other attacks upon Justice Thomas have no admissible evidence to sustain them one can only speculate about what motivates them. It can not be that he has failed in his judicial duty to uphold the principle of constitutional supremacy that is the sine qua non of the existence of constitutional democracy under the rule of law. Indeed he is commonly referred to as the arch “constitutionalist.” Whatever the reasons they seem unjust and unfair and that raises an important principle to people whose attitudes are informed by the cultural ethic of Indian tribal sovereignty, from whose perspective this defence of Justice Thomas is being written. As background, therefore, please bear in mind the royal instruction given to Sir William Johnson the superintendent of Indian affairs for the northern district of British North America in 1764 since it is as relevant today as it was then: “a steady and uniform attachment to, and love of Justice and Equity is one of their [the Indian tribes] first principles of Government.”

The second thing to bear in mind is there are grounds for accusing me of bias with regard to Justice Thomas, since he is the only North American judge since 1871 to have acknowledged the existence of the conflict of laws as between the constitution and the federal legislation in 1871 that inaugurated the federal Indian regime of law. And I have been trying for forty years to get some court, any court, in North America and in the international arena to acknowledge and address that very constitutional question. The federal law that Thomas identified, on his own, has served to excuse the war against and the genocide of the people of the Indian tribes who clung, and those survivors who do still cling to the Indian tribal sovereignty protected by the constitution that the federal law intentionally supplants, unconstitutionally, as anyone knows who has read the commerce, defence and treaty clauses and the voluminous precedents interpreting them and settling their meaning in the formative era 1789-1871. After 1871 a veil came down across eyes of the politicians and the judges of the newcomer society, a veil precluding acknowledgement of the conflict of laws.

In a complementary fashion the North American and international court bureaucracy stopped letting cases based upon Indian tribal sovereignty get filed for judicial resolution. There is no appeal such against administrative stonewalling, and so the Indian wars and their consequence genocide became the perfect crimes. It was not politically correct or juristically permissible to mention the truth of precisely how “the west was won.” Combined with the fact that the judiciary as a whole has blindsided the constitutional question, legal justice for the indigenous people has been impossible. Until Justice Thomas rose to defend the constitution in accordance with his judicial duty under Article VI of the constitution, which enacts:

"Article 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;...Art. VI, ¶3. The Senators and Representatives...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;..."

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 responds to the constitutional question identified and invited by Justice Thomas in the Case of United States v. Lara, 541 US 193, 200 (2004), as follows:

"The Court utterly fails to find any provision of the Constitution that gives Congress enumerated power to alter tribal sovereignty…and 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. We might find that the Federal Government cannot regulate the tribes through ordinary domestic legislation and simultaneously maintain that the tribes are sovereigns in any meaningful sense. But until we begin to analyze these questions honestly and rigorously, the confusion that I have identified will continue to haunt our cases."

Justice Thomas took judicial notice on his own initiative in the sense that the issue had not (and could not have been since the Court Clerk would have blocked it) been raised by the parties in the Lara case, of the fact there exists a profound and obvious conflict between the Appropriations Act of 1871 and the treaty clause of the Constitution. The statute stipulates that the President, subject to ratification by two thirds of the Senators voting, can no longer enter into treaties for the acquisition by the United States of the Indians’ previously recognized tribal sovereignty over, and exclusive possession of, their ancestral lands. Prior to 1871 the constitutional law recognized and affirmed Indian treaties have always been the legal precondition to the United States having anything more than the constitutional right to make treaties acquiring Indian territory and, in the meantime, to regulate commerce with Indian tribes the same as foreign Nations pursuant to the constitution’s commerce clause, but not to invade either except in self defence pursuant to the set of clauses that constitutionally comprise the war jurisdiction.

As Justice Thomas phrases the conflict between the 1871 statute and the constitution:

"In 1871, Congress enacted a statute [Appropriations Act of 1871] 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, and to recognize foreign governments, Art. II, §3; see, e.g., United States v. Pink, 315 US 203, 228-230 (1942)), 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."

In the result the other Justices in the Lara case ignored Justice Thomas’s judicial notice of this clear and plain conflict between federal law and constitutional law. In consequence they did not address any of the many binding precedents and constitutional history that since 2004 have been gathered and are now presented for their edification by the mentioned 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. Had that information been available to the Court in 2004 the other Justices could not possibly have concurred with Chief Justice Roberts who in the same Lara case 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.” Since the Court was not informed the Lara case is per incuriam [for want of information] which means it has no weight as a precedent.

Nevertheless it seems to legitimize the invasion by the United States of the Indian territories that occurred in consequence and under the authority of the Appropriations Act of 1871. The invasion was war in breach of the commerce, defence and treaty clauses read together as is required by the Court’s blindsided original, authoritative and therefore constitutionally constitutive precedents. It also seems to legitimize the War Powers Act of 1973 pursuant to which Congress gave to the President the discretionary jurisdiction to invade foreign Nations the same as if they were Indian tribes. He can do this if he feels the foreign Nations poses is so serious a threat to the economy as to amount to a national emergency. This power also conflicts with the commerce, defence and treaty clauses for the same reasons. It can only be justified by reading the commerce clause in isolation and pretending to yourself the power to regulate trade “with” somebody really means you have “plenary power” i.e., sovereignty “over” them. It is hard to pretend that even if you don’t read the defence and treaty clauses too. And it is impossible to pretend it if you read the binding precedents that settled the joint and several meaning of the all three clauses in the formative years.

The obstruction of their Case by the Supreme Court Clerk’s arbitrary refusal to file it so the Justices at last can decide the critical constitutional identified and invited by Justice Thomas in a fully informed and judicious fashion frustrates constitutional democracy based upon self defence and, correspondingly, enables the continuity of unjust and unconstitutional empire the modus operandi of which is as with all empires based upon war and genocide in the acquisition by force of more, always more, for to empires there is no such thing as enough.

And so, I have to suggest that those who criticize Justice Thomas with regard to issues related to his personal life should become better informed about the principled and courageous manner in which he fulfills his constitutional duty as a judge during his working hours. From this perspective he is a very very great man indeed. If the Indian Case about which I have spoken ever can make it over the bureaucratic stone wall and get before the Supreme Court Justices where it belongs, the credit for rescuing the People’s constitutional democracy from the unconstitutional empire that has supplanted it will belong to him. So I salute him on behalf of the indigenous people who cling to the constitutional right of court protection of Indian tribal sovereignty. And on behalf of every person who, like them and me, believes in justice as the application of truth to affairs.

For particulars of the Indian Case referred to please see http://mightisnotright.org/.