Justice is Blind (Not To Mention Deaf and, Especially, Dumb)

'Justice is mine' - the Lord

'Go for it, sir. It sure as hell isn't ours'. - The Editor

(SASKATCHEWAN) - Gather 'round, kiddies, amateur historians and law students, while we explore in the following seminar the question of which – U.S. or Canadian law – is the stupider, or given a global context, the stupidest.

You may cast your vote at the end of the session, but be forewarned: there is a difference. Canadian colonial law is tinged with comic relief, while the American version is deadly serious. Throughout? Jurisprudence. Damn little prudence and you may search in vain for a paucity of juris.

Let's begin in the land of the red-coated (and often red-faced) Mounties, whose supreme contribution to maintaining “le droit,” since the libretto of Nelson Eddy and Jeannette MacDonald, has been the Musical Ride. Our case study is based on that outstanding template for the Canadian justice system (as dictated by Whitehall and all those funny guys in even funnier wigs), the Clifford Olson Protocol.

Clifford Olson won the hearts of all students of serial child rape and murder in Vancouver back in the 1990s when he successfully negotiated – negotiated! - an arrangement with the boys in red whereby, in exchange for $100,000, he agreed to tell the hapless Mounties where the bodies were buried.

They did, and he did, all 12 of them. Flushed with success over this marvel of modern justice that saved scads of court cost, he was allowed to toddle off to a five-star Canadian place of incarceration, where he undertook to earn a law degree at the expense of those same taxpayers who had produced the $100,000, and concurrently receiving, banking and no doubt prudently investing, payments from the Canada Pension Plan, Old-Age Security and Income Subsidy totaling perhaps $15,000 annually. A tad niggardly, perhaps, but it was free and clear quite apart from board and rather lavish room.

All of these accomplishments while languishing in durance vile and waiting for his first parole date, which is an idee fixe in all Canadian murder cases, because we believe in fair play and perp's rights. It distinguishes us from all those second-rate barbarian countries who still choose to punish predatory animals.

An isolated case, right? Well, it stood as a solitary icon until Paul Bernardo pulled something similar, but without the embellishments Olson had provided. But then, just the other day, a case popped up that makes Clifford Olson look like Mother Theresa.

Picture, students, the following slavish imitation of Olson's tour de force: the role of perp protagonist which Olson defined is performed by the three major Canadian churches – Roman Catholic, Anglican and United - that spiritual menage a trois of recent colonial history (which, of course Stephen Harper denies, insisting that our barbarian history was more like The Pony Rider Boys).

The federal government, in fact, for 150 years or so has provided the fourth leg in this three-legged stool, the dimension that makes this wicked triumvirate a quadrumvirate.

You remember Harper – he began by apologizing for all that genocide by calling it ill-considered social policy and questionable pedagogy. Then he created the Truth and Reconciliation Commission to paper over the Residential School horror story. The $68 million of tax revenue in the TRC budget was designed to pay off and shut up certain carefully selected survivors and exonerate the perps, whom he even included on the Commission, like Himmler and Goehring appointed to the bench at Nuremburgh.

But the crowning touch was to make John and Jane Canuck and the CBC feel warm and fuzzy about all this federally contrived healing, and give the Sunday School teachers something to outreach about. Such as the smiling cherubic face of a happy native child that graced the front cover of The United Church Observer.

In our analogy we have, in place of Olson's 12 murdered kids, either 50,000 or 75,000 kids (depending on which government report you believe) whose skin, granted, is a little darker. Otherwise, the scenario is a dead ringer for the Olson caper, only about 4,000 times greater in its scope.

What happened was, the TRC, in its earnest endeavor to establish unwelcome truths, even facts, had the nerve to ask the churches to kick in with their records, files, diaries, log books and church notes as to who, why, when and how all those kids in 141 “schools” not only failed to graduate cum laude, but ended up in various mass grave sites, the locations of which are known only to generations of ministers, priests, nuns, janitors, school “administrators,” and other animals, not one of whom has ever been accused of anything. And are not about to be accused now.

So here's the punch line: the churches, like old Cliff, announced that they will cough up the information about where the bodies are buried, but THEY WANT TO GET PAID FOR IT. Paid, that is, by those same long-suffering taxpayers who (a) have already given all the churches tax-free status for centuries to practice all that outreach (not to mention ingrab), (b) have coughed up the 68 mill to investigate the churches' tender loving care, and (c) stand willing to pay for the prison space for any perps found guilty, which nobody is holding their breath over, since Harper has already ordered that no names are to be mentioned, let alone anybody going to the slammer. It's hard to hang a John Doe by the thumbs.

In fact, that's where the similarity ends between Olson and the churches of Canada. In the total context of all this Canadian jurisprudence, you might say Olson got a bum rap. Although he essentially got away with murder, he only killed 12 kids, not 50,000. Where's that good old Canadian sense of fair play?

Students, I know you're prematurely itching to cast your vote for the Canadian system as the worser of the two. But just hold on till you hear of what's been going on south of the border since the Philadelphia Convention of 1787.

Recently an honest (honest!) lawyer called Peter d'Errico, writing in “Indian Country Today,” cited the work of Mark Savage, whose groundbreaking research into federal Indian law as far back as 1991, established without question that the framers of the U.S. Constitution explicitly rejected a federal “plenary power” over Indian affairs. D'Errico quoted Mark Savage as follows:

Except, of course, that the federal government is the most powerful, albeit dull, tool.

It's high time, according to d'Errico, to exercise the power of our knowledge. Yeah, right. (That's about like saying that in Canada it's time to grow up and dump the British colonial legal system. A lovely sentiment. It's prevented by the inertia of 30 million tearful “symbolic” royalists.)

The idea of federal “plenary power,” or the ability for the feds to call any shots they care to, is one of the major concepts by which federal Indian law has always operated to undermine Indigenous sovereignty. As Savage demonstrates, the 1787 Proceedings of the Federal Convention in Philadelphia emphatically declined to support the concept of “plenary power” over Indians. It was President James Madison who suggested that it be included in the Constitution. He failed to have it recognized by the framers. While the U.S. Supreme court has “created 'plenary power' out of whole cloth,” there has never existed such a Constitutional doctrine.

So much for the legions of politicians who make a daily calisthenic of quoting from the Constitution as if it were Holy Writ. The entire history of federal dealings, legislating, enforcement and vacillation over the relationship of the United States government with that other, prior nation, has been unconstitutional, and therefore totally unfounded, unjust and illegal since 1787.

D'Errico goes on to quote Vine Deloria, Jr., who wrote in”Of Utmost Good Faith” in 1971 that the Supreme Court, as it creates federal Indian law, “skips along spinning off inconsistencies like a new sun exploding comets as it tips its way out of the dawn of creation.”

The inconsistencies within federal Indian law, says D'Errico, are mind-boggling. In one year alone (1978), the Supreme Court went from almost completely subordinating Indigenous sovereignty to affirming it as a third kind of sovereignty in the United States. The latter case, in turn, was a complete contradiction of the Court’s analysis about a hundred years earlier, in still another ruling, despite which the 1978 precedent is still regarded as valid law.

Another example: in 1997, in Idaho v. Coeur d'Alene Tribe (521 U.S. 261), the Supreme Court held that “Indian tribes … should be accorded the same status as foreign sovereigns, against whom States enjoy Eleventh Amendment immunity.” This is a startling contradiction, D'Errico points out, of the foundational 1831 federal Indian law decision in Cherokee Nation v. Georgia (5 Pet. 1) that the Cherokee were not sovereign as a “foreign nation.” Yet both cases, d'Errico observes, are regarded as valid in federal Indian law!

“The inconsistencies and contradictions in federal Indian law,” writes d'Errico, “are at best a major headache for Native nations and at worst a complete impediment to their existence as free and independent peoples. Federal Indian law blocks the straightforward exercise of Indigenous sovereignty.

“In my view, a critical and close reading of the history of federal Indian law shows that the blockage of Indigenous sovereignty was intentional from the earliest cases forward. The U.S. Supreme Court created the 'special status' of Indian Nations as a vehicle to define the relationship between federal and state governments. Both levels of government coveted Indian lands; the Supreme Court wrote the federalist position into law, using the 'trust' and 'wardship' doctrines to give the feds a trump card against the states. Over the years, the contest has been waged back and forth. The only consistency is that Indian sovereignty is 'less than' full sovereignty.

“The time has come to insist on a new and different approach to federal Indian law, building on a historically accurate reading of the U.S. Constitution and an appreciation of international interdependence. It is well past time when we can accept without question unilateral pronouncements of one nation claiming to be superior to another.

“The United Nations Declaration on the Rights of Indigenous Peoples provides a starting point for insistence on a new approach to federal Indian law. The Declaration stands for the basic human rights proposition that Indigenous nations have a rightful place as equals in the global international community of nations. There can be no legacy of superior-inferior relationships rooted in racist religious colonial assumptions.”

Yeah, right. And on the basis of past UN resolutions and their acceptance (and activation) by our government and most others, the above resolution, along with five bucks, will get you a Starbucks coffee.

So cast your vote, students. Personally, I think Canadian law is much more fun. It reminds me of Gilbert and Sullivan, or at least the paraphrasing thereof:

Bill Annett grew up a writing brat; his father, Ross Annett, at a time when Scott Fitzgerald and P.G. Wodehouse were regular contributors, wrote the longest series of short stories in the Saturday Evening Post's history, with the sole exception of the unsinkable Tugboat Annie.

At 18, Bill's first short story was included in the anthology “Canadian Short Stories.” Alarmed, his father enrolled Bill in law school in Manitoba to ensure his going straight. For a time, it worked, although Bill did an arabesque into an English major, followed, logically, by corporation finance, investment banking and business administration at NYU and the Wharton School. He added G.I. education in the Army's CID at Fort Dix, New Jersey during the Korean altercation.

He also contributed to The American Banker and Venture in New York, INC. in Boston, the International Mining Journal in London, Hong Kong Business, Financial Times and Financial Post in Toronto.

Bill has written six books, including a page-turner on mutual funds, a send-up on the securities industry, three corporate histories and a novel, the latter no doubt inspired by his current occupation in Daytona Beach as a law-abiding beach comber.