The Pleasure of the Crown. Dara Culhane
charter claims notwithstanding.
—Legal scholar Robert A. Williams, Jr., 1990, The American Indian in Western Legal Thought: Discourses of Conquest.
Honour Among Thieves. South of the Border
In British law, one of the principal means that judges use to reach decisions about particular cases is through the use of precedent. Precedents are the decisions reached by previous judges in similar cases. A contemporary judge compares the facts before her or him, searches for cases that dealt with similar fact patterns, and interprets and applies the reasoning and findings of judges in those previous cases to the one at hand. This is referred to in legal parlance as the “doctrine of stare decisis.” It is based on the premise that fairness and equality before the law requires that like cases should be decided alike. Reliance on precedent is often pointed to as an inherently conservative characteristic of law, whereby justification must always be anchored in the past. However, contemporary critics argue that the notion that past precedents limit and determine present judgments is frequently overstated by representatives of the judiciary. Anthropologist Michael Asch and Law Professor Catherine Bell, for example, argue that “it is not precedent itself that binds, but judicial interpretation of the past and its relevance to the present…. Adopting interpretive strategies, a judge chooses one precedent in favour of another, appearing to find, rather than create law. The appearance of finding is important because it deflects charges of result-oriented reasoning and judicial legislation.”1 Legal scholars Gerald Torres and Kathryn Milun, point out that the rule of precedent serves more importantly to consolidate law’s desire to define the future. They write, “Law, by drawing constantly on precedent to develop itself, strives to collapse linear temporal sequence by bringing the past forward and, by creating a new precedent, drawing the future into itself.”2 In a ritual practice judges call “citing the authorities,” Reasons for Judgment are frequently written as narratives linking a chronology of precedents to the case at hand through descriptions of salient similarities of fact and argument. Contemporary Canadian judges ruling on Aboriginal title and rights cases usually begin their “precedents narratives” in eighteenth-century post-colonial U.S.A.
In 1776 the American colonies declared independence from Britain. In the ensuing years, three distinguishable factions emerged to dispute issues of land rights and lawful methods of acquisition of Indian lands. A faction of the American population that remained pro-British continued, after Independence, to argue for a literal interpretation of the Royal Proclamation of 1763, and asserted that the British Crown alone retained the prerogative to negotiate with and acquire land cessions from Indians. Another faction, consisting of legislators and political leaders of Virginia and the other colonies, argued that they held controlling rights to Indian lands on the basis of their Crown charters, having “inherited” the sovereign’s prerogatives previously held by the British Crown and set out in the Royal Proclamation of 1763. Finally, a large group of frontier speculators claimed that, under natural law and natural right, the Indians themselves, as “sovereign princes of the soil,” could sell their land to whomever they wished. Philosopher John Locke became involved in the management and exploitation of the British colonies on the eastern seaboard of America, and was an influential theorist in post-Revolutionary United States. Processes and events there codified Locke’s theories into laws that formed the basis of precedents still employed today. This was the context in which three decisive legal judgments were rendered by Chief Justice Marshall of the United States Supreme Court.3
The first case, Fletcher v. Peck,4 was heard in 1810. The State of Georgia had granted land to the New England Mississippi Land Company. The Company then divided and resold the land to a number of individuals, including the Plaintiff, Robert Fletcher. The Defendant, Peck, attempted to interfere with Fletcher’s exercise of ownership, claiming to have acquired the same land directly from its original, Indigenous, owners. Chief Justice Marshall ruled, on the basis of the Royal Proclamation of 1763, that the State of Georgia’s sale to Fletcher was illegal because the lands in question had never been surrendered by the Indians to either the British Crown, the government of the United States of America, or the State of Georgia. Marshall held that “Indian title” could only legitimately be extinguished by a European-derived sovereign, so neither Fletcher nor Peck had acquired lawful title. Another U.S. Supreme Court judge, Justice Johnson, dissented from Marshall’s decision arguing that Indians “retained absolute proprietorship of their soil” which could be extinguished only by conquest or purchase. The significance of Chief Justice Marshall’s ruling in Fletcher v. Peck has manifested itself as the decision has been used as a precedent by contemporary Canadian judges in decisions that uphold the Royal Proclamation of 1763’s dictum that Aboriginal title may only be extinguished by the Crown, and not by lower levels of government, corporations, or private citizens.
The second case, Johnson v. McIntosh,5 was heard in 1823. Johnson claimed that he had inherited title to a tract of land from his father who had purchased it from the Piankeshaw and Illinois Indians. McIntosh said he had purchased the same lot from the U.S. federal government, who claimed they had acquired the land from the same Indians at a later date; that is, after Johnson’s father said he had purchased it. Chief Justice Marshall found in favour of McIntosh, ruling that the federal government alone had the exclusive right to acquire Indian title, therefore neither Johnson’s father nor the Piankeshaw and Illinois Indians could legally buy or sell Indian land. Marshall argued that his ruling was based in law, and not necessarily in justice. He wrote that his decision was determined by, “History, and the decisions made and enforced by those Europeans who invaded America.”6 Marshall relied on the doctrine of discovery/occupation/settlement, and the assumption of terra nullius to defend his position, arguing that Crown title was grounded in the voyages of discovery made by the Cabots during the late fifteenth century. This second case in “the Marshall trilogy,” Johnson v. McIntosh, is the decision most frequently selected as a precedent for application by contemporary Canadian judges to support judgments against Aboriginal claimants, on the basis that the Crown had an unfettered right to declare sovereignty over territories Britain deemed terra nullius.
The third and final case, Worcester v. Georgia,7 was decided in 1832. The State of Georgia had attempted to enact jurisdiction over the Cherokee Nation by annexing its territory, annulling its constitution and laws, and requiring whites to obtain state permission before entering Cherokee territory. A white missionary, Samuel Worcester, after being arrested for refusing to comply with this statute, challenged the state’s jurisdiction. These same lands, and jurisdictional arrangements, had been the subject of a treaty between the federal government and the Cherokee. Worcester argued therefore that the State of Georgia had no legal right to keep him off the Cherokee reservation.
Chief Justice Marshall ruled in favour of Worcester, saying that the doctrine of discovery/occupation/settlement was relevant only to governing relations between European nations, and not relations between states and the federal government. It yields to the Crown, Marshall wrote, only an exclusive right to acquire Aboriginal title as set out in the Royal Proclamation of 1763. It does not proscribe the terms of such acquisition, or what governmental powers may flow from the surrender of Aboriginal title to the Crown. In other words, Marshall ruled that the State of Georgia could not assume it had automatically inherited whatever powers the federal government may have acquired when it exercised its exclusive prerogative to extinguish Aboriginal title. More importantly, in his Reasons for Judgment in Worcester v. Georgia, Chief Justice Marshall argued that the doctrine of discovery/occupation/settlement did not, in itself, necessarily rule out the possibility that some form of negotiations between Aboriginal title holders and Crown representatives may still be required in order for the extinguishment of Aboriginal title to be legitimate. This decision provides a precedent that could be interpreted to mean that Crown extinguishment of Native title and assumption of jurisdiction could require Aboriginal consent in order to take legal effect. Chief Justice Marshall’s decision in Worcester v. Georgia, however, has not been selected by Canadian judges for use as a precedent.
None of the Indigenous peoples whose lands and rights were at issue in the litigation described above were represented in court. As if they didn’t exist.