MNN.  August 10, 2005.  Some people are afraid that by bringing this case into Canadian and American “top” courts we will be subjected to the shortcomings of these colonial legal systems.  They ask, “Are you actually happy that one black man, six white men (maybe seven) and one white woman (maybe 2), most of whom have a history of downsizing native rights, are the people who will be deciding the rights of Kanien'keha:ka people?”

Free from politics.  We took this case to U.S. and Canadian Supreme Courts to bring it into a forum of neutral formal discussion, free from politics.  We want to confront the false American and Canadian assumption that that we have no rights except what they give us.  This is totally false. 

Decisions made outside constitutions.  Keeping the Indigenous constitutional jurisdiction question out of these two “top” courts does not solve the problem.  Decisions are being made outside the constitution by incoherent federal laws of both the United States and Canada leading to genocide.  Unless those two courts bring the constitution into the equation, our sovereignty and possessions will continue to be eroded.  Illegal federal legislation violates their constitutions and ours.  Courts of both countries have to look at their constitutions so as to maintain the rule of law.  In so doing they have no choice but to respect our sovereignty and return our possessions. 

Narrow question of law.  The U.S. and Canadian constitutions set out some basic values these countries have agreed to accept - that their constitutions are subject to the rule of law.  Our case has been restricted to a very narrow question of law.  Political questions are irrelevant in our Constitutional question:  Is your constitution in force and effect?  If so, why aren’t you obeying it?   The “political” issue of our sovereignty is not arguable because the ignored constitutional law confirms its existence.  There has been no constitutional amendments.    

Law can never be “created” by a judge.  The law must exist before the adjudication.  Otherwise, it is political lobbying by a judge to create law.  This is beyond the judge’s power.  The judge can only recognize a previously created statute, precedent or unwritten customary law which has always existed.  Judges do not have jurisdiction to repeal or amend existing constitutional law.  That is what the phrase “rule of law” means.  The law rules, not the political feelings of the judges.      

             Housecleaning needed.  We are inviting Americans and Canadians to clean their constitutional houses.  It is time for them to get rid of their colonial cobwebs.  They can sweep their old federal extermination laws and policies into the dustbin.  They can tear down their moldy old strategies and rotting genocide laws and chuck them into the demolition dumpster.  It’s time for the original constitutional relationship forged between the Indigenous people and the settlers to re-emerge.  The two sovereign peoples will relate to each other on a constitution-to-constitution basis.  

            USSC Justice Clarence Thomas’ point.  The law as it is written has to rule without political considerations.  Politics belongs to another arena, the legislative branches of both Indigenous and non-Indigenous societies. 

This is the debate about the appointing Thomas as the Chief Justice.  Why would Indians want a conservative kind of judge like him to be more powerful?  They always say, "Never mind the political questions.  Let's look at the law"... 

Pierre George and Iokerononh file in Canada.  Kanion’ke:haka and Pierre George today, August 10, 2005, are filing 05-165 in the Supreme Court of Canada.  Both Supreme Courts are on notice of the law summarized by Iokenononh, in his affidavit to the Supreme Court of Canada:

  “The Great Lakes/St. Lawrence/Hudson River Drainage Basin of Northeastern North America is subject to the … Kaianereh’ko:wa … the Kaianereh’ko:wa governs except ...those tracts which … have been repealed by treaty with the Longhouse government nation constituted by the Kaianereh’ko:wa.  No such constitutional-valid treaty has been established.  …  since 1871 in the U.S. and 1876 in Canada the federal, state and provincial courts knowingly and intentionally have applied federal, state and provincial law as if it were the government law rather than the Kaianere’ko;wa.  All previous attempts … to defend against the consequent genocide were suppressed by the combined chicanery of the non-indigenous legal establishment and the puppet “Indian” governments unconstitutionally constituted by it for the purpose of making and implementing treasonable and fraudulent treaties.  The actus reus and mens rea – guilty act and guilty mind - was established by the Chief Justice of Canada in R. v. Marshall; R. v. Bernard, 2005 SCC 43 p. 48, 107.

The Court’s task in evaluating a claim for an aboriginal right is to examine the pre-sovereignty aboriginal practice and translate that practice, as faithfully and objectively as it can, into a modern legal right.

  The fact of the genocide attributed to that cause is true.” 

  Please read 05-165 “In the Supreme Court of the United States In re Kanonion’ke:haka Kaianereh’ko:wa Kanon’ses:neh as a ‘Non-party”, The Canadian St. Regis Band of Mohawk Indians as “Plaintiffs”, vs. The State of New York as “Defendants””. 

No self-defeat here.  We want your comments and your insights.  We need to put our minds together to enter a new age of cooperation, understanding and respect.  If we undermine ourselves now, we are beat before we start.

Kahentinetha Horn