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Alma Brooks: THE PEOPLES LAWSUIT FOR WOLASTOKEWINOWBK TERRITORY & THE EASTERN WABANAKI CONFEDERATION

Alma Brooks: THE PEOPLES LAWSUIT FOR WOLASTOKEWINOWBK TERRITORY & THE EASTERN WABANAKI CONFEDERATION

 

THE PEOPLES LAWSUIT FOR WOLASTOKEWINOWBK TERRITORY & THE EASTERN WABANAKI CONFEDERATION

 Alma_Brooks_Lodge_Liane_Thibodeau_Nov2013

Introduction: Who are we?

 

The Maliseet Nation; (Wolastokewiyik) is a member Nation of the Eastern Wabanaki Confederacy

 

We are the indigenous ‘people’ known as “Wolastokewinowbk” whose homeland takes in all of the land on both sides of the whole of the Saint John River Watershed, from the mouth of the Wolastok, to the headwaters including all of her tributaries, lakes, streams, brooks & forests,; all that is above the ground, and all that is beneath the ground.” The 1763 Peace & Friendship Treaty; known as the Mascarene Treaty, refers to us as, “The St. John River Indians.” We are a distinct ‘people,’ with a unique language, past, culture, traditional territory and spiritual belief system.

As Citizens of the Maliseet Grand Council the ‘Wolastokewiyik’, – (the original people of the beautiful river) our mission is to adhere to, preserve, maintain and protect the traditional laws, teachings, and the traditional homeland of the Maliseet Nation; which belongs to the future generations of ‘Wolastokewiyik’ in perpetuity, for as long as the grass grows, the sun shines, and the rivers flows.”

We are responsible to protect and give voice/expression to all those things within our homeland, including but not limited to the following relations in the natural world; all animals, plants, medicines, insects, birds and forests, the lands, minerals, waters; and all that lives therein. The Grand Council Fires are our traditional decision-making structure, and is based on our extended kinship relationships.

As Wolastokewiyik; we have always had a clear concept and understanding of “Our Land” as reflected in the oldest distinct language, indigenous to this territory: ’Kitahkmikombn”

Our traditional territory has never been ceded, surrendered by us to anyone else; neither French nor English. Our ‘People’ have never given free, prior, and informed consent to placed our un-ceded & un- surrendered lands and/or waters in trust to the State, neither Federal nor Provincial.

Background Declaration:

Constitutional amendments change Constitutional law; and International Conventions change International law. “Ignoring the existence of certain Constitutional and/or International law reneges on the Crown’s solemn and legally binding undertaking of protection toward aboriginal people, and negates the rule of law”.i

The Sovereign jurisdiction over unpurchased territory of the, (Wolastokewiyik) Indigenous Nation has been recognized and affirmed internationally and constitutionally since European arrival to our homeland.

Queen Ann of England: Order in Council – 1704

  1. Henceforth under the consensus of international law and constitutional law the native nations have been confirmed as juristically sovereign in relation to arguably yet unpurchased territory”
  2. Juristic sovereignty is gauged and measured by the existence of the right to third party adjudication”

 

This 1704 legislation had three crucial features: that especially matter today.

 

  1. Recognized and affirmed the native right
  2. Provides a remedy of independent and impartial third party adjudication to protect the right.
  3. Recognized and affirmed that the newcomer government had no jurisdiction to legislate in derogation of this legal status quo.

Since 1704 there has been a process to guide the implementation of previously settled constitutional and international laws; that must be followed; as well as a remedy for issues of irreconcilable differences between the State and the Indigenous Nation; in this case the Wolastokewiyik.

Treaty of Utrecht 1713 – Seven years of War between France and England:

the said lands and islands, together with the dominion, propriety, and possession of the said islands, lands, and places, and all right whatsoever, by treaties, or by any other way obtained, which the most Christian King, the crown of France, or any the subjects thereof, have hither to had to the said islands, lands, and places, and the inhabitants of the same, are yielded and made over to the Queen of Great Britain, and to her crown, forever,”ii

 

Treaties were never signed between Wolastokewiyik and the King of France; nor the French inhabitants within Wabanaki Territory. The Treaty of Utrecht makes those distinctions between British subjects and others –such as Nations of Indians as well as other natives of America.

 

XV: “The subjects of France inhabiting Canada, and others, shall hereafter give no

hindrance or molestation to the five nations or cantons of Indians, subject to

the dominion of Great Britain, nor to the other natives of America, who are friends

to the same. As also the natives of those countries shall, with the same liberty, resort, as they

please to the British and French colonies, for promoting trade on one side and

the other, without any molestation or hindrance, either on the part of the British

subjects or of the French.”

 

Special accommodation was made regarding “others such as nations of Indians & cantons; ( political unit ) of Indians.

 

For Greater Certainty;

 

  • The Indigenous Peoples of the Wabanaki Territory did not sign treaty with the French, nor did they cede or surrender title to any territory or waters to them at any time. The Acadian French did not own Wabanaki Territory –therefore the claim that the English claim to Wolastokok by way of the Treaty of Utrecht is a clear violation of Constitutional & International law.

 

 

Royal Proclamation – King George III – 1763:

The Royal Proclamation is a document that sets out guidelines for European settlement of Aboriginal territories in what is now North America. The Royal Proclamation was initially issued by King George III in 1763 to officially claim British territory in North America after Britain won the Seven Years War with France.

And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds –

And; We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved, without our especial leave and Licence for that Purpose first obtained.

And We do further strictly enjoin and require all Persons whatever who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above described. or upon any other Lands which, not having been ceded to or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements.”

if at any Time any of the Said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians,”iii

In the Royal Proclamation, ownership over North America is issued to King George. However, the Royal Proclamation explicitly states that Aboriginal title has existed and continues to exist, and that all land would be considered Aboriginal land until ceded by treaty. The Proclamation forbade settlers from claiming land from the Aboriginal occupants, unless it has been first bought by the Crown and then sold to the settlers. The Royal Proclamation further sets out that only the Crown can buy land from Indigenous Nations.

  • In the Proclamation of 1763, King George III of England declared a British system of governing in the areas that had been surrendered by France, and pronounced that the Indians and their lands would be treated with respect.
  • Enacts that an extinguishment of aboriginal rights is valid if, and only if, the intent of the particular Indian community to cede or sell is arrived at in a “public meeting or assembly” and then recorded in a contract that describes with legal accuracy the land being conveyed. The contract must then be signed by the community leaders.”
  • This document is referred to in s25 of the CONSTITUTION ACT, 1982. This provision details that there is nothing in Canada’s Charter of Rights and Freedoms to diminish the rights and freedoms that are recognized as those of aboriginal peoples by the Royal Proclamation.

 

The Royal Proclamation established the constitutional framework for the negotiation of Indian treaties with the aboriginal inhabitants of large sections of Canada. As such, it has been labeled an “Indian Magna Carta” or an “Indian Bill of Rights.”

 

The interpretation of Aboriginal Rights have been diminished, and territorial integrity and boundaries have been arbitrarily compromised and moved to lands in trust – “Indian Act Bands” (91:24) These actions took place without the Free, Prior and Informed consent of the Wolastokewiyik in violation of the Royal Proclamation, & Queen Ann’s Order in Council – ( Constitutional & International law)

*Read: Settler Imperialism and the Dispossession of the Maliseet 1758 -1765: (Professor Andrea Bear Nicholas) How our land was illegally stolen! Attached: Schedule A.

 

Peace and Friendship Treaties 1765:

The Mascarene Treaty of 1765; is an Agreement between two Sovereign Nations; England and The Wolastokewinowbk ( The people of the beautiful river) or St. John River Indians – to keep the peace and proceed as friends would, with respect and honesty. This treaty also included the protection of our right to hunt, fish, and gather. These Treaties were signed and ratified by the Wolastokewiyik ( St. John River Indians ) but in no way ceded or surrendered any of our rights to sovereignty, or any Aboriginal/ Indigenous title to lands, or waters.

*We do not acquire rights from Treaties, they were Treaties of Peace & Friendship to stop the wars, and to ensure protections for certain rights such as hunting, fishing and gathering.

*We do not acquire our rights from the Federal Government; nor any of their legislative documents. Our rights, obligations, and responsibilities are inherent; passed through our kinship heritage.

Watertown Treaty – 1776:

Recognition of Maliseet Sovereignty in 1776; by the newly formed USA

  • on the occasion of President George Washington’s birthday, February 22nd, the Treaty of Watertown is recognized as having originated at the request of General George Washington, and it is also recognized as our Nation’s first foreign treaty concluded by the United State of America after the adoption of the Declaration of Independence”
  • the Treaty of Watertown was the first recognition of United States sovereignty by foreign Nations, as well as one of the earliest expressions of equality and brotherhood among all people
  • this “Treaty of Alliance and Friendship” was signed on July 19, 1776, in the Town of Watertown in the State of Massachusetts Bay, just 15 days after the signing of the Declaration of Independence;iv

 

The J-Treaty – 1794: Between England, Canada & the USA

Acknowledges distinction between “His Majesty’s subjects and the Indians

“It is agreed, that it shall at all times be free to His Majesty’s subjects, and to the citizens of the United States, and also to the Indians dwelling on either side of the said boundary line, freely to pass and re-pass, by land or inland navigation into the respective territories and countries of the two parties on the continent of America, (the country within the limits of the Hudson Bay company only excepted) … and freely carry on trade and commerce with each other.”v

The signatories to the Jay Treaty were aware of the rights and freedoms that Indigenous People utilized and expected, especially for unimpeded travel throughout their territories. It includes provisions recognizing and acknowledging the existence and right of certain long-established Indigenous systems and practices.

  • These are contained in Article III of the Jay Treaty. Indigenous practices and systems of trade, commerce, and mobility between territories existed long before European arrival to North America.
  • The Jay Treaty by way of Article III, was the European mechanism by which they were able to reiterate and recognize particular independent and pre-existing rights of Indigenous Peoples.
  • Therefore, Article III of the Jay Treaty, as well as numerous other Treaties are not the source of rights, but examples of European recognition of a range of Indigenous rights and as such must constitute treaty rights and the legal obligation to produce treaty protections.

The above Treaties and other Proclamations are based on Nation to Nation previously settled Agreements and understandings.

The recognitions and affirmations of the above mentioned Rights, obligations, responsibilities, and duties are legally binding on the Wolastokewiyik/ Maliseet Nation as a whole; and the Canadian State, in lieu of English authority; via their Constitution.

The Canadian Constitution 1985 – 2014:

Section 35: “The ‘existing’ aboriginal and treaty rights of the Indian, Inuit and Metis are hereby recognized and affirmed.”vi

  • Section (35) of the Canadian Constitution states that: “the existing Aboriginal and Treaty rights of the Indian, Inuit, and Metis are hereby recognized and affirmed.
  • Section 25: “nothing in this constitution shall abrogate or derogate from the aboriginal and treaty right of the Indian, Inuit and Metis.”
  • Initially the bands were established for the purpose of administering services to the starving Indians.

The Indian Act 1876 – 2014

The interpretation of Aboriginal Rights have been diminished, and territorial integrity and boundaries were arbitrarily compromised and moved to, “Indian Act Bands;” as lands in trust.

Initially; the bands were established for the purpose of administering services to the starving Indians. The Department of Indian Affairs administered meager rations & medical services.

 

These actions took place arbitrarily and clearly in violation of the Royal Proclamation, & Queen Ann’s Order in Council, Constitutional & International law.

The Indian Act is a Canadian federal law that governs in matters pertaining to Indian status, bands, and Indian reserves.  Throughout history it has been highly invasive and paternalistic, as it authorizes the Canadian federal government to regulate and administer in the affairs and day-to-day lives of registered Indians and reserve communities. This authority has ranged from overarching political control, such as imposing governing structures on Aboriginal communities in the form of band councils, to- control over the rights of Indians to practice their culture and traditions.”vii

Indian Act Structure: Federal Government Legislation

  • Indian Act elected Chief & up to 12 Councilors.
  • The Chief does not have decision making powers and votes only when there is a tie; and only within their respective Bands.
  • The majority Council must pass a Band Council Resolution (BCR ) at a duly convened meeting, and a second duly convened meeting must be held to ratify the minutes.
  • Then the BCR is valid and legally binding.
  • By this law the Federal Government has a fiduciary responsibility to protect the interest of the Indians and lands reserved for Indians.

 

 

Statement: Illegal activity

  1. Extinguishment of Indigenous Rights: to make way for Industry
  • The Comprehensive Land Claims process is being negotiated without the free, prior and informed consent of the Maliseet People; who are the title holders and the beneficiaries.
  • The Comprehensive Land Claims process is negotiated under grave conflict of interest on the part of individuals from the provincial government and two Maliseet bands.
  • Invalid BCRs are passed on to Federal and Provincial Governments who do not require minutes of meetings to ensure legal processes are followed.
  • Negotiating Comprehensive Land Claims while at the same time taking money from mining and extractive industry within the same territory.
  • All levels of government including Indian Band Chiefs are ignoring consultation procedures; and violating both domestic; treaty & international law.
  • An Umbrella Agreement was signed without the knowledge or permission of the Maliseet people; which binds all of us to anything these individuals negotiate and agree to.
  • There is nothing that requires any of the negotiators including Chiefs to be accountable to the title holders & beneficiaries except to mark an X every two years on a ballot; before or after negotiations have been concluded.
  • Marking an x every two years or so is the entire extent of involvement required of Indigenous peoples in this entire country; even though decisions are being made every day that affect our lives, our future, and the lives of our children.

 

  • The courts have been putting the onus on us to “prove” we own the land; –( something that has never happened; cannot be proven) Rather than ignore the issue however;- the opposite is possible – the onus is on the State to prove they purchased Wolastokok/Maliseet territory; or show proof of our surrender of lands and/or waters over to them.
  • If the State cannot prove clear underlying title to Wolastokewiyik lands and waters; then allowing the continuing exploitation of Indigenous resources, damage to the environment and fresh water sources without the free, prior and informed consent of the title holders and beneficiaries of such rights is unlawful and immoral to say the least.

iClark, Bruce LL…B…M.A…PH D. – ECLIPSE AND ENLIGHTENMENT ( a legal opinion by Bruce Clark) @ Listuguj in Mik’mag country.

iiTreaty of Utrecht 1713 – The Seven year War

iiiRoyal Proclamation 1763 – King George III

ivWatertown Treaty – USA, in 1776

vJay Treaty 1794 – England, Canada & the USA

viCanadian Constitution –

 United Nations Declaration of the Rights of Indigenous Peoples

vii

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