VI Encuentro Indigena de las Americas

Universidad de Puerto Rico en Rio Piedras Escuela Derecho

Presented by Dr. James P. Bailey

 

Thank you Rudy for those kind salutations - I am honored to be among my brothers and sisters, my uncles and my aunts. I consider it a privilege to address you members of our first nations. It is with a deep sense of humility in the presence of such an august gathering that I begin.  My words come from my heart.

 

My dear aunts, dear uncles, my brothers and sisters it us my job to speak yours to listen, I hope you don’t get finished before I do. Feel free to ask questions at any time. Just raise your hand.

 

This conference of indigenous Nations is truly a momentous occasion.

 

Looking out among you I feel the strength of your resolve to continue as Nations and to preserve your sovereignty.  My heart leaps with joy and expectation.  It is truly inspiring to know that you resolve to determine your own future - to seek your own solutions to the problems that confront you. 

 

The United States enters upon the third century of its existence pledged to protect human rights and establish democratic institutions –the United Nations struggles to resolve the issues between indigenous peoples and the nations of the world. Christians and other religious and spiritual peoples enter upon the 21st Century attempting to resolve their differences without violence. Hopefully we have entered into enter a new era, an era of self-determination.

 

Like my Gaelic ancestors and my Thlingit brothers, you owned your lands long before the United States of America or the Nations of South and Central America came into being.

 

A recent Royal Canadian Commission on Aboriginal peoples after study studied the relationship of the indigenous people of Canada with the Canadian government and the people of Canada. The commission reported, "The fact is that in crucial dimensions, Aboriginal cultures, values and world-views were and remain fundamentally different from the organizing principles of mainstream North American society. Yet Aboriginal peoples have been denied the right to fashion their societies and institutions in ways that are consistent with these values."

 

This observation is true and hopefully the American people and the other nations of S.A. and Central America and the society of the United States of America who only recently have begun to understand that diversity of culture is not harmful to the great American experiment will seek to address the issue of sovereignty,

 

We are here to support you in your efforts of self-determination. The Kuiu Kwaan supports your efforts to preserve your identity as a people. We support your right to exercise your sovereignty over your territories. 

 

I come to tell you the story of the Smoking Gun to encourage you to continue your efforts.

 

Please be patient with this old Irishman and allow me to set the stage by telling you of my origins and our struggle for self-determination. May my feelings encourage you in your continuing struggle? 

 

I am lawyer, my skin is white, but I am not European; I am Irish.  We Irish are Celts also known as Gaels, an ancient tribal people we too have suffered much of what you experience.

 

Since more that a thousand years before the birth of Christ indeed so long, that the memory of man runneth not, my people occupied the land which is today called Ireland. In ancient times there were nearly two hundred tuaths or territories in Ireland each owned and occupied by a tribe made up of clans. The tuaths were divided into ballybetaighs of which there were usually thirty to each tuath. The ballybetaighs was again subdivided into twelve seasreachs, each of one ploughland or about what today would be one hundred and twenty acres. The ballybetaigh was supposed to be large enough to supply grazing for four herds of seventy-five cows each, "without one cow touching another - The lands were forested and abounded in lakes and rivers. Wild game was plentiful. The tribes marked off their territories by the names of hills, loughs (lakes) and other geographic features. Each tribe respected the lands of the others and each defended its own. The tribes were composed of clans. We were traders and traded as far away as Phoenicia and Greece.

 

In general, the whole of the lands of a particular territory belonged to all the tribe. Certain houses in the tribe had private rights in a certain portion of the land, and the right to use those lands for the benefit of its members, but these privileged houses could not to transfer the lands to any person outside the tribe.  The private privilege extended only to special portions of the tribal land. The greater part of the tribal land was free for the use of all the people of the tribe.

 

 

 

We had our own laws - our language was Gaelic –

 

Our remote ancestor is Gaodhal Glas, hence we are called Gaels. Our oral history teaches that Moses cured him from the bite of a serpent and told him that he was destined to inherit a land free from serpents.

 

Early in our history came –the Firbolg’s - Legend has it the Firbolg’s came first from Greece where they had been long enslaved and whence they escaped in the captured ships of their masters Later came the Fomorians then the Tuath De Dannan people of the goddess Dana - who arrived some 400 years before the birth of Christ about the time of Solomon of the Old Testament; still later came the Milesians, African sea rovers. These people made up the Irish tribes

 

The tribes existed under different chiefs and sub chiefs   and elders and were   composed of houses or clans.  Our tribes were located in four large areas, - the Conaught - Ulster - Munster and Leinster - each tribe had its own lands, its own chiefs and sub-chiefs. Each area was independent of the other but together we are one race.

 

Long before the dawn of English history in the seventh century, we of Erin - Ireland as it is now called- had our own history of which it is said

 

Long, long ago beyond the misty space

Of twice a thousand years,

In Erin old there dwelt a mighty race,

Taller than Roman spears;

Like Oaks and towers they had a giant grace,

Were fleet as deers

With winds and waves they made their 'biding place,

These western shepherd seers.

 

Their ocean-god was Mannanan MacLir,

Whose angry lips,

In their white foam, full often would inter

Whole fleets of ships;

Crom was their day-god and their thunderer,

Made morning and eclipse;

Bride was their queen of song, and unto her

They prayed with fire-touched lips.

 

Great were their deeds, their passions, and their sports;

With clay and stone

They piled on strath and shore those mystic forts

Not yet o'erthrown;

On earth-crowned hills they held their council courts;

While youth alone,

With giant dogs, explored the elk's resorts

And brought them down. .

 

A proud and mighty race were we, a sovereign nation with our own culture and civilization, our own land, our own problems and solutions. We existed from time immemorial. We fought off the Vikings and the Danes - but then disaster fell – In 1171 one of our chiefs invited the English King to Ireland to punish anther chief who wronged him by seducing his wife or some say because he abducted her. The King sent the Earl of Pembroke called Strongbow and his soldiers who brought the Normans to Ireland. The King became jealous of the position attained by Strongbow and decided to conquer Ireland.

 

We resisted the English fairly successfully for more that three centuries.  The rocks against which every attempt to complete the conquest had broken were the Brehon Laws, the traditional laws of Ireland, and the Irish deeply held religion. Our beloved St. Patrick had introduced Catholicism to Ireland and it was accepted by all of the Irish tribes. The Brehon Laws and the Irish deeply held religion bound Irishmen to one social and legal rule. All attempts to plant the feudal system in Ireland by England went down before them for almost four hundred years.

 

Beginning in 1511, under the reign of Henry VIII, the English undertook to destroy the basis of Irish resistance. The effort continued through the reign of Elizabeth his bastard daughter and at the end of the Elizabethan wars the conquest of Ireland was completed.

 

The time had arrived when the two civilizations stood at last face to face. The one represented by feudalism and the Church of England –The other represented by the Brehon laws and Roman Catholicism. The first had long denounced the other as barbarous.  According to the English, Irish dress, the Gaelic language, and Irish customs were the language, dress and custom of savages. The English called the Irish religion the religion of the antichrist. England’s wish, often expressed in the four hundred years of conflict, and was to as thy said to civilize Ireland -in its image of course - and if that were not possible to annihilate the Irish.

 

After conquest the English promptly engaged upon a policy of seizing the lands of the Irish and enacting laws designed to result in the extermination of the Irish as a people. We Irish were forbidden to exercise our religion, forbidden to own land, forbidden to speak our Gaelic language. We could not own property or public office. We were denied our schools.  The English effort to destroy the Irish civilization and supplant it by an alien one or exterminate the race failed.

 

The English perfected the art of colonization in Ireland They drove the people from their lands and claimed them for the King of England. The King and later parliament granted the land to lords and parliamentary cronies of Cromwell and to settlement companies to parcel out to settlers from England.

 

This practice was later carried on in America.  In America the natives were driven from their land and the land parceled out to settlers from England.

 We Irish resisted conquest by the English for 400 years. Our struggle to regain sovereignty after the English conquest continued for more than 300 years.  Despite defeat suffered in uprising after uprising we Irish finally regained sovereignty over Southern Ireland and the right of self-determination in 1938. The struggle in the seven counties of Northern Ireland continues.

 

Hopefully you will not have to struggle so long in your effort to determine your own future. Perhaps there is hope. With the advent of Gandhi in India non-violent resistance resulted in the independence of India. Mandela accomplished the end of apartheid in South Africa by non-violent methods. It is obvious from history that you cannot regain your right of sovereignty over your lands by violence. But continue the struggle you must.

 

Now continue to bear with me and I will tell you about the efforts of the Kuiu Kwaan to continue to exist as a free and independent people and Nation with sovereignty over their ancestral lands and about the Smoking Gun documents we have discovered.

 

The Kuiu Kwaan one of 32 Thlingit Nations who own and have occupied the Northwest Coast of North America and the adjacent Islands, Thlingit Country, from 60 degrees North Latitude, Prince William south, to 54* 30” North Latitude. Are indigenous to Kuiu Island. These Islands are now claimed as a part of the State of Alaska and the United States and includes what is now known as the Tongass National Forest.

 

The Kuiu traditional tribal council contacted me in 1989 for assistance. They wanted to harvest and trade herring roe on kelp a traditional activity of the Kuiu Kwaan, an activity they had been denied by the federal government. The elders explained to me that they were determined to preserve their culture and the traditional way of life of their ancestors.

 

We have worked together ever since.

 

During my legal research I discovered two laws passed by Congress that spoke to the issue. (ANCSA), the Alaska Native Claims Settlement Act, and (ANILCA) the Alaska National interest Lands Conservation Act.  Congress passed ANCSA, which extinguished all aboriginal claims of the natives of AK to land or the rights in land.  The law was passed to enable the oil companies to build a pipeline from the north shore oil fields then newly discovered to Valdez. ANILCA on the other hand seemed to preserve the resources of AK, including the right to trade these resources, to the Kuiu Kwaan and other natives of AK, so the Natives could maintain their way of life.

 

Initially the term aboriginal claims seemed to mean to me the rights the natives enjoyed as owners of their land before the American occupation. I sought to determine what rights in land, if any, the Kuiu Kwaan had left after the passage of ANCSA because ANCSA purported to extinguish all "aboriginal" claims.

 

Under common law, adopted by the United States from England, title to land, sometimes referred to as Fee title or absolute title refers to and encompasses all of the benefits that go with ownership of the land.   Nations are deemed to own all the land over which thy have dominion and control. Ownership of land always rests in someone.

 

At the time of the discovery of America in 1492 - and continuing thereafter during the 16trh and 17th centuries, title to land in Europe a Feudalistic society resided in the Monarch. Individuals could own land only if the Monarch granted title to the individual. The individual held title to land under an obligation of fealty, loyalty and submission to the Monarch.

 

I continued to ask myself.   “What rights in land, if any, remained in the Thlingit after the passage of ANCSA and ANILCA? Like all Americans who had studied history, I was taught that the United States got title to Alaska by purchase from Russia in 1867.

 

I soon discovered that the State of AK and the federal government were on a course to deny the Kuiu Kwaan all rights of ownership in their land.  Indeed it appeared that the State of AK and the US would deny all Alaska natives even the right of subsistence supposedly granted by ANILCA.

 

I learned that Thlingit natives were being prosecuted by the federal government for attempting to sell herring roe on kelp.

 

I learned that the Federal government had denied the Katie John natives, indigenous to the Copper River, the right to a fishery on the Balzunetas Creek at its confluence with The Katie John natives had brought suit against the U.S. claiming ANILCA obligated the government to allow them their fishery. The federal government refused to grant the fishery.

 

The Katie John Case and the State of Alaska Case were consolidated intone case. The Kuiu Kwan sought to intervene in the consolidated case to establish its title to the Land of Kuiu Island and Kuiu waters.  Kuiu was refused admission and appealed where we were again refused admission.

 

I learned that the State of AK had filed suit in federal court against the US claiming title to the lands under the waters of Alaska and the right to manage all the fish and wildlife in the waters of AK notwithstanding ANILCA had guaranteed subsistence rights to the natives in all federal lands

 

Under English common law, title to land includes many different rights. The right to sell - the right to the right to transfer ownership - the right to rent or lease for a term of years- the right to exclusive possession - that is to keep others off - the right to the exclusive use - the right to take or grant an interest in the minerals under the land - the right to fish - the right to the timber from the land - the right to the wild animals on the land. I look on title as a bundle of rights, or a quiver of arrows with each arrow representing a different right,

 

Nations had absolute title to the lands under their dominion and control. In America title to the territory occupied by the native rested in the first nations of the Americas.

 

 I asked myself, " Was this the nature of title that ANCSA intended to extinguish when it extinguished aboriginal claims.

 

My research led me Johnson v. M'Intosh, a case decided by the Supreme Court of the United States in 1823. Chief Justice John Marshall wrote the opinion for the Court.

 

The case involved the title to land located in what is now Indiana and Illinois.

 

Johnson claimed his title to the land under a deed from two Indian tribes members of the Western confederacy of Indians. M'Intosh claimed his title to the same land under a grant from the United States. The court was called upon to decide who had good title.

 

Lawsuits and court decisions don't happen in a vacuum - they arise in a context - a set of circumstances - they all have a story. This case has a very telling story and the decision was influenced by many historical events.

 

The French and Indian War ended in 1763. With the treaty ending the war France and England divided what is now the lower forty-eight states. England got the land East of the Mississippi, and France the land West of the Mississippi except for California and Texas claimed by Spain.

 

By the middle of the 18^th century, more and more English settlers arrived in America. They began to look to the west over the Appalachia Mountains toward the Mississippi.

 

English speculators eager to profit from the demand for land created by the settlers moving westward formed a syndicate of prominent Englishmen and the English governor of the Virginia colony.   They got the idea of purchasing land known as the Illinois territory lying north and northwest of the Ohio and East of the Mississippi rivers. The land was occupied by the Western Confederacy of Indians allies of France in the war.

 

The members of the syndicate believed that with their contacts in England and with the Governor they could get their title recognized by the Crown notwithstanding the land had been included in the original grant by the King to the Virginia colony.

 

The natives for their part realized that because of their alliance with France in the French and Indian wars, and knowing the French had abandoned the land East of the Mississippi to England their days were numbered and it had come time to move on

 

The syndicate completed their purchased of two tracts of land lands lying on the Mississippi, Illinois and Kaskaskias rivers and on the Ohio River below the mouth of the Wabash River from the Illinois, Kaskaskias and the Piankeshaw and Wabash tribes members of the Western Confederacy of Indians.   The tribes had had sole and exclusive possession of this land from time immemorial and followed tribal law in making the sale.

 

As I mentioned, the land sold by the Illinois and Wabash tribes to the land speculators lay within in the boundary of the lands granted to the colony of Virginia by the British King. This destined to be a serious problem for the syndicate.

 

Even as the syndicate completed the trade John Marshall then 19 years of age enlisted in the Virginia militia. Marshall would participate in one of the first engagements of the war for Independence and would join Washington’s staff at Valley Forge. Marshall would become one of the prominent lawyers in Virginia.  His activity and leadership in the Virginia House of Burgess and the Federalist Party earned him the respect of Washington and Adams the first two presidents of the United States. He believed in a strong central government. It is important to know also that in his legal and philosophical training he adopted the view that stable property ownership was the foundation of a stable society, and that problems were to be soled by applying human rationality no the so called laws of the Creator. He followed this view in his law practice, but I do not have enough time to give you examples of how he applied that idea in cases that he handled in Court and how it became a part of his being.

 

The colonies declared independence from Britain on July 4, 1776.

 

In 1779,Thomas Jefferson was elected Governor of Virginia. In 1880 he appointed John Marshal’s father, Thomas Marshall, to survey the land, which is now KY. The colony of Virginia had a scheme whereby one could buy warrants from the State and exchange them for land in Ky. John Marshall acted as agent for his father and would represent investors who would buy these warrants and then get Thomas Marshall to survey to their tract.

 

John Marshall had already come to believe that ownership of land was the source of wealth. He would come to own over two hundred thousands of acres of land in Kentucky. His father and brothers would own twice that amount.

 

 The revolutionary war continued until 1783, and ended when the colonies entered into a treaty with Britain.   From 1781 to 1816, the speculators who had purchased the land from the Western Confederacy petitioned first the Continental Congress then Constitutional convention and finally the Congress of the United Sates to recognize their title to the land they bought from the Indians. They were opposed at every turn by the delegates or congressmen from Virginia, people like Jefferson, Madison, Monroe and Marshall.

 

In 1783 the State of Virginia authorized their delegates to the Constitutional Convention among whom were Jefferson and Monroe to convey the land of the colony of Virginia to the United States.  They did this after the constitution was ratified in 1787 and Virginia had become State of the Union.

 

In 1806 during his term of office President Jefferson completed the LA purchase from France.  This purchase gave the United States title to all the land claimed by France west of the Mississippi River.

 

Jefferson did this with the expectation of opening trade with the Indian nations west of the Mississippi and adding these lands to the American nation. He assigned Lewis and Clark to explore the Louisiana Purchase in part to prevent the English from claiming any of the land.

 

In the meantime, Russian became a major player in the Pacific. In 1741 Bering and Chirikof set sail from Asia to explore the Northwest Coast of America. They separated at sea on June 21 1741 and in the course of their voyages, Chirikof sighted land at about 55° North Latitude and both sighted Mt. St. Elias at 60°. Chirikof even sent a group of sailors in a boat into Norfolk sound occupied by the Sitka Kwaan. The sailors never returned.

 

Between 1721 and 1790 Russian traders operating through the Russian American trading company entered into the sea otter trade with the natives of AK. The sea otter fur had become a valuable commodity in the trade with China.

 

During this time the Russians occupied the Fox Islands and the Aleutian Islands and had occupied parts of Kodiak and the Kenai Peninsula.

In 1799, The Tsar granted the Russian American Company the right to explore “newly discovered lands, those above andbelow 55 degrees, provided the lands “are not already occupied by some other nation and have not become their dependents” or occupied by any foreign power

 

The Russians traded with the Thlingit, and with the exception of Sitka harbor on Baranoff Island never occupied any of Thlingit country because of the resistance of the Thlingit Nations.

 

After 1787, the Americans also traded with the Thlingit Nations. The Americans traded guns and other articles with the Thlingit for sea otter.  The English also competed for the sea otter.

 

In 1799 Baranoff then the director of the Russian American Company tried to establish a fort on Baranoff Island. This became the settlement of Sitka.  It was burned out by the natives and then reestablished in 1801. While the Sitka Kwan could not resist the heavy cannon of the Russians, the other Thlingit Nations successfully resisted any effort on the part of the traders to establish settlements in Thlingit Country.

 

Before 1790 Spanish captains visited Thlingit Country. The English explorer Captain Cook touched and charted many points of the NW coast. He surveyed Bristol, Chugach and Kenai Bays. The French captain La Perouse visited Lucia Bay and the Sitka Kwaan in Norfolk sound. The Americans of course had traded with the Thlingit from 1787.

 

In 1790, an English ship commanded by a Captain Meares entered Nootka Sound and was seized by Martinez a Spanish captain. The English were outraged.

Spain claimed to own the sound by virtue of discovery. And the English contended otherwise because Spain had not established a settlement on the Island.

 

Spain’s claim for title rested on the papal bull issued in 1493 that would exclude the British from the Pacific because of first discovery by Spain. To prove that it had already visited the sound the Spanish relied on the fact that silver spoons been given to the British by the Natives. These spoons, the Spanish claimed, had been given to the natives by the Spanish earlier than any time the sound ha been visited by the British. Therefore Spain owned the sound because of discovery and the English ship was a trespasser.

 

 The English asserted that the law of nations as it then existed provided that discovery alone was insufficient to establish Discovery Title. The two countries almost went to war over the incident, but as a result of negotiations Spain paid damages to British; and the matter was dropped.

 

The US and England went to war in1812. The treaty ending the war restored fort Astoria on the Columbia River to the U.S. The British had captured it during the war. The US and England wanted to settle heir boundary questions. They agreed that with respect to the land on the Northwest Coast each could trade with the Natives for a period of ten years without prejudice to the claims of either party. They recognized that the land was not occupied by any European power.

 

In 1821 the Russian American Company prodded the Russian Tsar, to take steps to stop the trading by the Americans and British with the Natives. The Company was being hurt by the competition and, in addition, the Company was particularly concerned about the Americans who traded guns to the Thlingit because the Thlingit used the guns against the Russians to prevent them from occupying their land.

 

The Tsar responded by issuing an edict forbidding any ships of foreign nations from entering within 100 miles of the Northwest Coast of North America and from trading gun to the natives.

 

When the governments of the U.S. and Britain got wind of this edict in correspondence from their respective ambassadors, they both responded promptly and with vigor. Both protested the restriction on trade, and both denied the Russian claim of title by discovery of lands below 60 degrees of North Latitude. The U.S. pointed out that the Indians were independent tribes not under the jurisdiction of Russia, and had every right to trade with the U.S. citizens for guns.

 

The U.S. and Britain each furnished the Tsar with a detailed legal memorandum setting out in detail why it was that the Russians did have title to the Northwest Coast of North America and the adjacent Islands. The arguments were based upon the current law of nations; and called attention to the fact that Russia had not occupied any part of the continent.

 

The United States stated its position clearly and forcibly: “All jurists agree upon the principle that real occupation only can give the rights to the property and to the sovereignty of an unoccupied country newly discovered.” The facts show said the United States that it does not appear that the territory in question, Thlingit Country had been legitimately incorporated with the Russian Empire.”

 

The countries entered into negotiations to solve the problems created by the edict. Initially, the U.S. and Britain contemplated negotiating jointly. However, President when Monroe, in part because of the Russian edict and in part to state the American position concerning the newly recognized states in Central and South America who had revolted from Spain, announced the Monroe Doctrine in a speech to Congress in 1823.

Monroe declared:

 

That the American continents, by the free and independent condition, which they have assumed and maintain, are henceforth not to be considered as subjects for future colonization by any European powers . . .

             . . .in regard to those continents circumstances are eminently and conspicuously different.  It is impossible that the allied powers should extend their political system to any portion of either continent without endangering our peace and happiness.

 

When the British heard this they decided to go it alone.

 

The U.S. was determined to protect its citizen’s right to trade with the Thlingit. So when Britain decided to go it alone, the US promptly put the British on notice that in solving the problem for England they, the English, could not affect the right the citizens of the US had to trade with the Thlingit or the right the Natives had to trade with the U.S.

 

The negotiations continued for a period of four years.

 

Throughout the negotiations, all the parties, Russia, the U.S. and Britain agreed through their respective negotiators to avoid all discussions of rights or of fact. I.e., that the question of title would not be debated. Their efforts were to come to an agreement, which was in the best interests of each party.

 

While all this was going on the Marshall court had Johnson v. M’Intosh under advisement.

 

So, back to Johnson v. M’Intosh.

 

Having exhausted efforts to get congress to recognize his title that was acquired from the Indians, Johnson finally sued M'Intosh. Johnson argued that the purchase from the Indians occurred before McIntosh’s obtained his deed rom the US. He argued further that any title by the US would be traced to the same source and therefore Johnson had the superior title because it came prior in time

. M’Intosh argued many points including that the Indians had no right of soil as sovereign, independent states.

 

Chief Justice Marshall was faced with several serious problems.

 

If he upheld the Indians power to convey title then Johnson had title and the United States did not have title when it conveyed the land to M'Intosh.  This would create a very serious situation - how then could an orderly development of the land contained in the recent Louisiana Purchase be assured. Chaos would prevail. Can you imagine what it would be like to Marshall if speculators were free to buy land from the Indians, stability of property ownership would be jeopardized and lawsuits generated. Remember Johnson was wed to the principle that stable property ownership was the foundation of a stable society.

 

Marshall believed in a strong central government, and for him only a strong central government was in a position to control the development of Indian land. 

 

Also he had a personal interest in preventing a cloud on the title to the property he had purchased in KY.

 

If Marshall could hold that the Indians did not have the power to convey the land he had his answer. Of course he had an intellectual problem - he could not say that Indians could not own land because that notion was against the prevailing view of law and reality and in addition was ridiculous.

 

Finally he faced with another problem. What impact would a decision in this case have on the negotiations then going on between Russia and the U.S. concerning the title to the Northwest Coast of North America and the ability of citizens of the US to trade with the Thlingit. There were powerful people in the U.S. trading with the Thlingit. He could not afford to disappoint these traders. He must be careful not to pull the rug out from under Middleton who was negotiating for the U.S.  in Russia. Marshall had to walk a fine line.

 

Judge Marshall was a brilliant jurist - his decisions are hailed because of his profound logic and his ability of applying principles of law to difficult fact situations. He was not above making law. He believed in the United States and that the United States was destined to be a great country –

 

What could he do? The deed from the Indians to the speculators predated the birth of the United States – should not the Johnson title be superior to the M’Intosh title.

How could he solve the problem?

 

Judge Marshall framed the question this way, "Whether this title (that arising by deed acquired from the tribes in 1773 and 1775 –Johnson’s) [is to] be recognized in the Courts of the United States?"

 

While the deed form the Indians predated the deed from the United States, it did not predate the grant by the King of England to the Virginia colony.  Marshall had his answer - If he could demonstrate that the King of England had full sovereignty over the land in dispute and was the absolute owner of the soil, he would have found a way to solve the dilemma. If the Crown had title, no one but the Crown or his successor could pass title.

 

Marshall put it this way -

 

            "An absolute title to lands cannot exist at the same time, in different persons, or in different government. An absolute title must be an exclusive title, or at least a title which excludes all others not compatible with it."

 

Now Marshall could not ignore the fact that the Indians owned the land before the English arrived. He admitted that. But like I said Marshall was a brilliant jurist.

 

He wrote,

 

            It will be necessary, in pursuing this inquiry, to examine, not singly those principles of abstract justice, which the Creator of all things has impressed on the mind of his creature man, and which are admitted to regulate, in a great degree, the rights of civilized nations, whose perfect independence is acknowledged; but those principles also which our own government has adopted in the particular case, and given us as the rule of our decision."

Sound legalizes?

 

In other words – what Marshall said was that even though the declaration of independence acknowledges that God has created all men equal - and even though it is only just for a society like the United States to acknowledge that the Indian has the right to determine for himself what he wants to do with his lands, we must look for another rule in this case.... one our government likes and the public will put up with and will not interfere with our negations in Russia.

 

He found his rule in his vision of history . . . here is what he wrote,

 

            "All our institutions [here he is talking abut the colonies and their governments] recognize the absolute title of the crown, subject only to the Indian right of occupancy.” This is incompatible with an absolute and compete title in the Indians."  "An absolute title to lands, he reasons, cannot exist at the same time, in different persons, or in different government. An absolute title must be an exclusive title, or at least a title which excludes all others not compatible with it."

 

Marshall then had to demonstrate how it was that our institutions [States] recognized that absolute title in the Crown and how the Crown had acquired that absolute title in the face of the fact that the Indians were in possession of the land when the English arrived.

 

Marshall explained how that came about.  He wrote

 

            “On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire...and the character and religion of its inhabitants afforded an apology for considering them as people over whom the superior genius of Europe might claim and ascendancy.] I call this the arrogance of the white European male]

 

He continued:

 

The potentates of the old world [these are the Monarchs] found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new [world], by bestowing on them civilization and Christianity, in exchange for unlimited independence . . .[The European nations adopted a new principle that we recognize] This principle was, [discovery title] that 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...”

 

What then happened to the title of the Indians - the absolute title they had in themselves before discovery? It had long been recognized that men had a natural right to own land? Did it vanish - Marshall was keen and he knew he could not be utterly callous - the political philosophers in the age of enlightenment cannot be so gross - Jefferson and Madison would not admit that Indians could not hold title.

 

Marshall says

"...the rights of the [Indians] ...were...to a considerable extent, impaired...they were admitted to be the rightful occupants of the soil, with a legal as well as a just claim to retain possession of it, and to use it according to their own discretion but their rights of complete sovereignty as independent nations, were necessarily diminished, and, their power to dispose of the soil at their own will, to whosoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made{discovery} 575

 

What they had left was the right to use and occupy their land in this instance subject to the pleasure the United States. Thus were born “aboriginal rights.”

 

By this statement Marshall established the law of the land for the lower forty-eight states east of the Mississippi that discovery title rested in the King of England.  Marshall went on to reason that by the treaty of Paris at the conclusion of the Revolutionary war the newly formed States of America succeeded to the powers of government, and the right to soil, which had previously been in Great Britain, passed definitively to the newly formed States of the United States.... and then to the United States by way of cession when the Union was created.

 

Marshall then made another important concession, which now supports Kuiu’s claim as rightful owner Kuiu Island.

 

            He wrote; We [the U.S.] had before taken possession of them, [the right to the soil and the powers of government] by declaring independence; but neither the declaration of independence, nor the treaty confirming it, could give us more than that which we before possessed, [by reason of grants from the crown] or to which Great Britain was before entitled. [Clear title to all the lands within the boundary lines described in the treaty], subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right, was vested in that government [the United States] which might constitutionally exercise it.

More legalese.

What he meant was. The British crown got title to the land by discovery - the King conveyed title to VA and the right to govern to the colonies.   The States got title from Great Britain - VA conveyed title to the US - the US conveyed title to M'Intosh - and Johnson got nothing from the Indian that the courts of the US recognized.

 

Thus was born "aboriginal title" which was to get its name and other properties in later decisions of the courts.

 

Justice Marshall effectively defined aboriginal title as the title that exists in the indigenous peoples after their lands have been discovered by a European power -.  The popular name is "aboriginal title.”  It is this title that Congress attempted to extinguish when it passed ANCSA.

 

It is this principle that gives rise to the notion of a trust relationship between the US and the Indians with respect to their lands and gives the U.S. the legal power to make reservations.

 

Only because the US has absolute title and only if the US has title does Congress have the power to deal with the Indians with respect to the land.

 

All titles in the lower forty-eight States trace their origin to a Monarch the discovery title of some European Monarch.

 

Aboriginal title arises because of Discovery.  It is a creature of the European mind and the Marshall Court. Before discovery the indigenous people enjoyed absolute title to their territory - - no society claims that natives cannot own land - it is only the historical event of discovery and possession that reduces the title of the indigenous peoples title to "aboriginal title." Without discovery title there is no aboriginal title no aboriginal claim to extinguish.

 

The question remains  - what fact of history establishes that the Kuiu Kwaan lost its absolute title to Kuiu and all that goes with it.  The answer is plain from the Smoking Gun documents, there is none.

 

 What about what we all read in our history books, that the United States purchased Alaska from Russia - We have all been taught that the U.S. acquired title to Alaska by the treaty of cession with the Czar of Russia. So it would seem that by treaty The U.S, acquired absolute title and there remained in Kuiu only an aboriginal claim Kuiu Island.

 

But because Russia did not have discovery title Kuiu’s absolute title remains in Kuiu.

 

In all its dealings with the Thlingit since 1867, the United States assumed that Russia had title to AK when she entered into the treaty of Cession.

 

But let's see - When Marshall settled the titles in the lower forty eight East of the Mississippi, Marshall says that declaring ourselves free from Britain did not give us title - possession did not give us title - it was the fact that the Crown of Britain had title that we obtained title by the treaty of Paris in 1783.

 

The US acquired title to the Louisiana territory by purchase from France. Spain ceded the US Ca and FL. Texas acquired its lands by revolution from Mexico - which acquired the lands of Texas from the King of Spain by revolution - Titles in the lower forty-eight originate in a crown that had discovery title.

 

History reveals that Russia never acquired discovery title to Thlingit country.

 

-

 

Remember the Watergate investigations, It was the undisclosed 18 minute tapes of President Nixon's conversations with Haldeman and Ehrlicman that were called the smoking gun and led to his downfall. Nixon tried to withhold these tapes from the American public because they proved his involvement in the cover up - These tapes were called the smoking gun.

 

 

It was while I was searching the national archives concerning the negotiations between the United States and Russia and Britain and Russia that I discovered the smoking gun.

 

During our efforts to preserve the Kuiu Kwaan sovereignty over Kuiu Island we discovered a smoking gun. The Smoking Gun consists of the correspondence and secret memoranda concerning the lack of title in the Czar of Russia.

 

The President of the Untied States, speaking for all Americans, claimed the right to continue free and uninterrupted trade with the Thlingit Nations and peoples. The President of the United States stated the official position of the United States in a confidential memorandum delivered to the Emperor of Russia.

 

The memorandum begins:

 

"Great men never fear the truth, and wish nothing to be concealed from them."

 

And continues:

 

             From these facts, incontestibly (sic) proved by historical documents, an irresistible conclusion follows . . .that she [Russia] had no right of claim, either under the title of discovery or of possession, upon the [American] continent, east or south of Behring Strait, about the 60th degree of north latitude. . All jurists are agreed upon the principle that real occupation only can give rights to the property and to the sovereignty of an unoccupied country newly discovered...the conclusion which must necessarily result from the facts does not appear to establish the territory in question had been legitimately incorporated with the Russian Empire. (ABT pp 61-62)

 

President Monroe insisted that the natives of the northwest coast of North America had the right to trade with the citizens of the U.S.

 

Unlike the situation described by Justice Marshall in M'Intosh none of our American institutions, none of our citizens and no other country recognized discovery title in the Emperor of Russia. Spain had denied the title in 1790, Britain and the U.S. in 1821. France never admitted title in Russia. No newly independent country of South and Central America recognized the claim. The United States affirmed the right of the natives to trade with the United States citizens.

 

The smoking gun reveals that throughout the negotiations the United States never admitted title in Russia. The United States was careful to put Britain on notice that nothing it did - that is nothing that it agreed to in a convention with Russia could interfere with the right of the US citizens to trade with the natives of AK. Britain could not give the Czar title - The President declared:  That supposing that England for herself, renounced the rights which [are hers] ...the seas would remain free . . . for a convention between two nations which stipulate their interests according to their own good pleasure can not have any effect either on the principles of the law of nations or the rights of other nations....

 

The Kuiu Kwaan was not at the table during the negotiations between the U. S. and Russia. We remind the U.S. of the words the President conveyed to England, “a convention between two nations which stipulate their interests according to their own good pleasure can not have any effect either on the principles of the law of nations or the rights of other nations....”

 

In 1821, the U.S. recognized the independence of the Thlingit nations then existing on the Northwest Coast of N. A. They should continue to do so.

 

The United States in its convention with Russia did not admit and could not create title in Russia and insofar as the indigenous peoples Thlingit Country and could not prejudice their rights as nations anymore than England could prejudice the rights of American citizens to trade with these people in its negotiations with Russia 

 

According to the doctrine laid down by Justice Marshall and recognized by all jurists, the United States could acquire nothing more than Russia had to give. Indeed Kuiu remains unoccupied by any power other than the Kuiu Kwaan. 

 

I have researched this question extensively – In my search of the legislative history of ANCSA, as a lawyer, I found that no one not those purporting to represent the interests of the natives of Alaska during Congress’s deliberations of the ANCSA legislation or anyone else brought the Smoking Gun documents to light – or discussed the issues.

 

The Judges of the Ninth Circuit Court of Appeals refused the Kuiu Kwaan the opportunity to litigate the issue in the Federal Courts of the United States. The United States has ignored every effort we have made to discuss the issue.

 

But History cries out - The President of the United States demonstrated to the world that Russia did not have title by discovery to Kuiu Island and the rest of Thlingit Country.

 

As a matter of law and right, absolute title remains in the people who had absolute title in 1821 and before that from time immemorial, a title obtained from the Creator title remains in the Kuiu Kwaan

 

The treaty of Cession passed to the US only what the Czar then owned in Kuiu Island nothing. – E.g. a quitclaim of all of my possessions in Washington passes title only to that which I own - nothing more - not what I claim to own - not what you and agree I own - only that which I own.

 

We will continue to challenge the United States – come to an independent forum and debate the issue of who owns Kuiu Island.

 

While we continue to remind the people of the United States of the words that President Monroe delivered to the czar of Russia -"Great men never fear the truth, and wish nothing to be concealed from them.

 

And, as we remind them of the words of President Lincoln at Gettysburg in the struggle to save the union and free the slaves:

 

Four score and seven years ago our forefathers brought forth on this continent a new nation conceived in liberty and dedicated to the proposition that all men were created equal ...we are now engaged in a war testing whether that nation or any nation so conceived and so dedicated can long endure . . . 

 

And we remind the nations of the Americas of the words of the U.S. declaration of independence, “All men are created equal ad endowed by their Creator with certain unalienable rights among which are the right to life liberty and the pursuit of happiness.”

 

We urge all the indigenous people of the Americas to adopt these words as the basis of your struggle for self-determination.

 

We join you in your efforts and dedicate ourselves to support you in any way we can.

 

Thank you for your patience.