MNN. May 23, 2005. Judge Lowe of the New York Federal Court responded to our ten page explanation of our constitutional question. We have been asking over and over again why they think they have jurisdiction over us and our land. We know that New York State and the Tri-Council of Akwesasne are making fraudulent deals. They have no right to denationalize us or surrender our lands. We have to straighten out Lowe quickly and file it by this Friday, May 27th.
Judge Lowe says that the U.S. Supreme Court Justice Clarence Thomas' words in the Lara case concerning the Indian Commerce and Treaty clauses are "dicta", just an opinion with no impact on the law.
Far from being dicta, Thomas' words constitute an original and authoritative precedent. It is the first time a U.S. court has considered the “commerce” and “treaty” clauses in relation to the Appropriations Act of 1871. According to the doctrine of stare decisis, the U.S. courts must follow precedent. This means that the federal and state governments, the judges and all their Indian puppies are violating the U.S. Constitution. Thomas is the first judge who ever commented on this issue.
Congress tried to abolish Indigenous sovereignty by passing federal Indian laws. This is both treason to the Constitution of the United States of America and a violation of international law. Thomas commented on the law that is already there. He pointed out that Indigenous people are sovereign. We have never surrendered our land.
The international doctrine of “effective occupation” is a form of national prescriptive title and jurisdiction. It is a type of laches, which is losing a right because of a delay in asserting it. This does not apply to constitutional law. The right remains forever. We, therefore, stay out of the international arena. Thomas’ decision is consistent with the reasoning of the International Court in the Western Sahara case. It found that a state could not forcibly incorporate any people without the fully informed consent of a majority of the population.
In the U.S. at the time of the Appropriations Act, and in Canada at the time of the passing of the Indian Act, all Indians were citizens of our independent nations. We still are. We did not take part in the affairs or these nations that were foreign to us. Not one of the many Indian nations had any representation in any U.S. or Canadian legislature. No negotiations were conducted with ambassadors of any Indian nation. Indians had no part in the colonial legislation that pretended to unilaterally confiscate our sovereignty and our land. These so-called treaties and surrenders between the tribal and band councils set up under federal law have no legal validity unless one believes that law is nothing more than “might makes right”.
Did Justice Thomas set up Judge Lowe? Had Thomas made the same comments in a 'dissenting' decision in Lara, it would have been dicta. Dicta is a judge’s opinion in an argument but not essential to his decision. Therefore, it is not binding as a precedent. Had Thomas done that, then Lowe would have been right when he said it was only dicta.
Thomas' comments are original and authoritative because they are part of the reasons for his “concurring” decision in Lara. He is a sitting Justice of the highest court in the land. His decision is binding on every court and every judge of America.
It confirms the governing law of the U.S. is still the Kaienere’ko:wa, backed up by the U.S. Constitution. The Treaty clause limits the Commerce clause. Federal Indian law is nothing. Lowe made a big mistake. Thomas’ decision supports our position. The relationship between the Indigenous people and the U.S. and Canada is nation-to-nation according to the constitutional law. This is regardless of the opposing federal law.
So the legislation passed by the U.S. Congress cannot determine Indigenous sovereignty, just like legislation passed by Mexico cannot determine U.S sovereignty! The same goes for Canada’s Parliament passing laws on Indigenous people. Had the normal procedure of addressing both constitutional law and federal law at the same time, like Judge Thomas finally did in the Lara case in 2004, this 'misunderstanding' would never have arisen.
It is hard to say how American reasoning went off track. Europeans always had trouble understanding that Indigenous People were human beings since Columbus first saw our people on the beaches without clothes on. The descendants of these Europeans still have not figured out that we are human beings and we have human rights like anybody else.
Sometimes one wonders if these judges know what the law actually says. If we know, then they too know that the willful attempt to obscure the law and to take land from us by refusing to recognize our rights is fraud.
Criminal deception and misrepresenting the law is fraud. For those who expect Americans and Canadians to act with integrity, isn’t it disappointing? To the rest of us who know better, it is entirely predictable.
Cowboy Judge Lowe was sitting on his donkey looking down is nose at us, twirling his lasso over his head, yelling, "Thomas' words are just dicta!" Technically, to put it politely, Lowe is the donkey.
Kahentinetha Horn
MNN Mohawk Nation News
