[Marxism] Forwarded from Jim Craven #1

[Louis Proyect <lnp3@xxxxxxxxx>]

Imagine a seasoned, highly trusted and highly committed Elder/Activist of
one of the six nations governed by The Great Law of Peace, who is involved
in legal actions against the U.S. government designed to reveal evidence of
genocide and to push sovereignty of his and other Native nations. Imagine
that this Elder/Activist, running on financial fumes like so many
activists, is offered $5 million to push legal challenges by an investor
who is willing to finance legal actions if, and only if, a guarantee is
given that a casino will be built with 40% of all profits going to the
"investor" in perpetuity. Imagine that this Traditional Elder, fully aware
of what casinos typically bring--corruption, dope, alcohol, gambling
addiction, only token jobs for a few Natives, no more than 8 cents on a
gross profit dollar going anywhere near the average Native, organized
crime, loss of even marginal sovereignty etc--has no choice but to turn
down the $5million as it would only cause more of the same that the legal
challenges are designed to stop or mitigate.

These legal actions are causing some real stress on the powers-that-be on
both sides of the US/Canadian border as they are designed to use the legal
procedures and institutions of "The Man" to bring evidence, law (even "The
Man's own laws), international law and consciousness raising in Native
communities to domestic and international venues never before used. This is
not fanciful or utopian (we are fully aware from experience that Natives in
US and Canadian courts are like Jews and Roma Sinti going to Nazi courts)
but the evidence is that the powers-that-be are terrified of this approach.

Anyone interested in inflicting some truth, law, morality, evidence and
creative chaos on "the system" and may be moved to donate to this cause
(involving some 13 Native Nations) may contribute directly to:

Any donations may be sent to Bank: Canada Trust; Account Name: 13 Moon
Horizon; Comany Name: 3273946 Canada Inc.; Account Number:
32326-004-0260-0316261; Address: 45 O'Connor St. Ottawa, Ontario K2P 0W5 or
directly to Michael Swinwood, RR#3 Almonte, Ontario KOA 1A0 This will be
only to advance collective action (not only for Blackfoot).

===

Lawyer challenges the legitimacy of Canadian law over First Nations
Submitted by eisengrimm on Mon, 04/26/2004 - 23:18.

Canada Indigenous Natives not bound by laws of Canada, lawyer argues
An Ottawa lawyer is challenging the authority of Canadian governments to
apply laws to native people.

Jake Rupert, The Ottawa Citizen, April 25, 2004

A judge has agreed to hear a claim that sovereignty over Canadian lands was
never fairly transferred in any of the ways recognized by international
law. Jake Rupert reports on Michael Swinwood's effort to change Canadian
history.

It's an issue that has been debated for years in native and legal academic
circles but hasn't been answered by Canadian courts, say aboriginal law
experts.But it looks like the question will have to be answered soon, after
lawyer Michael Swinwood, on behalf of two natives in North Bay charged with
fraud, filed a constitutional challenge to the Crown's right to apply the
Criminal Code, or any other law, to aboriginal people, and a judge agreed
to hear it.

Mr. Swinwood says aboriginal people never ceded sovereignty to British or
Canadian governments in accordance with recognized international standards
such as conquest or purchase.

To have jurisdiction over people who occupied land first, according to law,
sovereignty must be properly handed over, Mr. Swinwood says in documents
filed in court. It wasn't, so Canadian governments have no right to enforce
their laws on natives, the documents say."The federal government lacks
proper legislative authority in the territory it is alleged these illegal
acts took place," Mr. Swinwood argues.

"No treaty has been entered into ... therefore the federal government has
no jurisdiction in the territory where these acts are alleged."

Mr. Swinwood will ask a judge to "nullify the application" of Canadian laws
against natives because, he says, according to the current state of the
law, Canada's laws have "no force or effect as against these Indian persons
or any other Indian person."

Earlier this year in North Bay, Mr. Swinwood convinced Ontario Superior
Court Justice J.S. O'Neill, himself an expert in native law, to hear the
challenge and order the government to pay for it.Judge O'Neill found Mr.
Swinwood raised "important" legal questions that need answering and ordered
the provincial government to give Mr. Swinwood $35,000 in order to argue
the case properly."

The issues raised ... are of sufficient merit that it would be contrary to
the interests of justice for the opportunity to pursue these questions and
these issues ... to be forfeited if legal funding is not provided," the
judge wrote in his reasons for granting Mr. Swinwood the money."It is to be
remembered that the legal community in Canada is only beginning to come to
grips with issues involving aboriginal title and rights," Judge O'Neill said.

After getting the funding order in March, Mr. Swinwood hoped to make his
case this spring in front of Judge O'Neill, but the Crown appealed the
judge's ruling on the funding application, arguing that the judge should
not have granted the money because there is no merit to Mr. Swinwood's
assertions. No date has been set for the appeal, but Mr. Swinwood has
decided to press ahead with the constitutional challenge, which he'll pay
for out of his own pocket and with money collected from native organizations.

In other cases involving native clients charged with crimes, Mr. Swinwood
tried and failed to have judges agree to hear the constitutional challenge.
Now that a judge has agreed to hear it, the matter is just too important to
walk away from over money, Mr. Swinwood said. "Like Justice O'Neill said,
it's been a long time coming, so it feels good that we're finally getting
to table some of our issues," he said. "The Indians got messed over here in
this part of the world pretty badly, and it's time some one should speak
for them. On this issue, it just happens to be me. "Those who say that
Canadian laws are applicable against Indians in this country don't know
their history. We're just pointing this out."

If Mr. Swinwood's first argument fails, he has another, darker allegation
that he says strips the Crown of its ability to apply its laws to natives.
According to his application documents: "The legislature of Canada and Her
majesty the Queen deprive themselves of legislative authority by being
complicit in the crime of genocide against the Indian Nation ... and have
acted and continue to act contrary to their international obligations
codified in the convention for the prevention and punishment of the crime
of genocide."

At the very least, he's asking the judge to find that a 1704 royal
proclamation stating that any disputes between natives and government
officials should be adjudicated by an agreed upon third party is still in
effect. Mr. Swinwood says after exhaustive research and consultation, he
has come to the conclusion that Canada simply has no jurisdiction over
natives in this country.

There's no legislation saying so. There's no case law saying so. In fact,
the law says the opposite, Mr. Swinwood says. "It's an interesting and
important question that has not been answered by Canadian courts," said
Kent McNeil, a law professor at Osgoode Hall in Toronto who specializes in
aboriginal rights. He said there have been some cases in Canadian law,
dating back as far as the 1800s, that touched on the issue, but that Mr.
Swinwood is the first to take direct aim at the fundamental jurisdiction
argument in court.

Brad Morse, a University of Ottawa aboriginal law professor concurs. "This
really will be the first time that these issues are looked at in court, and
I think it will be interesting to see what happens," Mr. Morse said.

At the heart of Mr. Swinwood's argument is the issue of sovereignty. Under
international law, sovereignty is generally gained under three conditions.
A government can assume jurisdiction over unoccupied land simply by
populating it. Sovereignty also can be formally handed from one government
to another after a conquest. Or a government can gain the right to enforce
its rules when occupiers of land sign a purchase agreement or treaty
relinquishing jurisdiction to the newcomers.

Mr. Morse said Mr. Swinwood's challenge is legitimate because the first two
conditions don't apply in Canada, and in the annals of history there is
very little evidence of Indians surrendering sovereignty to Great Britain.
Where there is evidence of jurisdictional surrender, there is much debate
over whether native leaders understood what they were doing when they
"signed" treaties and purchase agreements.

Although this is the first time Canadian courts will be asked to deal with
this issue, courts in other countries already have. In a landmark case,
Australia's highest court found the Crown there has sovereignty over
aboriginal people and land despite not having any of the three accepted
conditions for jurisdictional transfer. The court found that over time
control of the land and people simply eroded away from the country's first
people into the hands of the newcomers and should remain there for the
betterment of all.

Many years ago, the U.S. Supreme Court found differently. Judges there
decided that the U.S. government didn't have sovereignty over natives or
native land. However, it ruled that basic human law as defined by U.S.
statue applied to all people regardless of their heritage.

Some may look at Mr. Swinwood's position as preposterous, but he says
without proper government mechanisms in place to address the gross
injustices committed upon natives in Canada, he is simply doing the next
best thing. He said in a prefect world, government officials would come to
the conclusion that they've failed the natives of Canada, and that Canadian
laws aren't helping the situation.

They would say they're sorry for messing things up as badly as they have,
cede sovereignty over vast tracts of Crown land, and let natives live in
accordance with traditional spiritual, moral, and legal codes that were
working just fine before the white man arrived. "We have the law on our
side," he said. "We have history on our side. We have morality on our side.
What's happened hasn't worked. It's time to try something else." "The time
has come," he said. "The government has had a lot of time to do this
themselves, and they haven't, so we're going to try to force them to by
using the courts. I see no reason why we should fail in this.

The Ottawa Citizen 2004



Louis Proyect
Marxism list: www.marxmail.org


_______________________________________________
Marxism mailing list
Marxism@xxxxxxxxxxxxxxxxxxx
http://lists.econ.utah.edu/mailman/listinfo/marxism