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THE STATE OF ALASKA AND ITS LACK OF
SOVEREIGN JURISDICTION ALASKA COURT OF APPEALS BRIEF FILED ON CASE NO.A-3107 9/11/89 The State of Alaska lacks jurisdiction in 3ANS-78-8955 Cr., and in all those matters pertaining to all the actions of the past, present or future that comprise the record in its entirety back to the alleged offense or offenses in or about the year 1978. Appellant contends that neither the State of ALaska nor the United States of America have sovereign jurisdiction in the matters concerning Subsistence/Commercial Regulations within the sovereign Yupik Jurisdiction as defined in Atmautluak Traditional Council Resolution 86-05 and Resolution 86-11 (attachment to motion 6/30/89, and further contends that any authority assumed by the United States Government , or its legislative creature, the State of Alaska, is erroneously derived from the Treaty of Cession (15 Stat. 539) 1867 and from military occupation in the defense of the territory of Alaska from Japanese attack in 1941. The defense from Japanese attack terminated with the with the cessation of warfare hostilities between the United States of America and Japan that occurred with the signing of the Japanese surrender Papers aboard the battleship U.S.S. Missouri on Sept. 1945. Senate Document 152 of the 81st Congress,Second Session, "Russian Administration of Alaska and the status of the Alaskan Natives" (1950), responded to questions of jurisdiction arising after the end of World WarII during which the United States built the Alaskan highway and installed thousands of troops on new military bases which was purportedly for the defense of Alaska.The United States has not fulfilled its obligations under the Treaty of Cession of 1867, but has exerted authority and made claims to sovereignty and title which have not been perfected according to its own laws and declared principles. The United States and its legislative creature, the State of Alaska, has constructively manipulated and semantically avoided principles of law dating back to the 1500's in Papal Bulls, Spanish Laws and Federal Indian Law, as well as the constitution of the United States, which prohibit taking the property which is held under Indigenous Title. In doing so, it has illegally and improperly instituted laws and statutes which were and are enforced under the direct enforcement of the United States government in its quest to fulfill the final vestiges of "Manifest Destiny" and colonial empire building in the Pacific Rim which was a dream of a conspiracy between the Prince of Wales, WIlliam Seward, Simon Camerou and ultimately carried out in the Treaty of Cession during which $200.000 was aid to various congressmen to insure ratification of a document which they did not see during or before their vote. In 1867, the indigenous tribes enjoyed all the attributes of governmental accoutrements while exercising complete and total jurisdiction over all lands, water resources and tribal members, while the Russians numbered less than 500 persons not including Creoles.(Kostilivtzov Memorandum) Included in Senate Document 152 at pages 34-36. App.IA, are portions of Russian laws and decrees relating to Alaska and printed in the "Complete Collection of Laws of the Russian Empire." These decrees and laws in no way legitimize, nor do they seem to suggest legitimacy of claim sovereignty or dominion over any lands , waters, resources or persons other than which they occupied and possessed. A translation of the Kostlivitszov Memorandum to the Secretary of State Seward on pages 53-57 of Senate Document 152 leaves no doubt as to what was transferred in the Treaty of Cession of 1867. (Motion 6/30/89 attached.) (App.A, p. 53-57. Russia did not sell what it did not own, and Russia owned very little in terms of acreage. The transfer of ownership was a ceremony attended by very few and the land which by right belonged to neither was transferred with little notice but much fanfare. The natives seeking sovereignty and specifically the Atmautluak Traditional Council claims their jurisdiction based on their collective indigenous heritage; namely that they are Yupik and that all other entities that claim jurisdiction are merely quasi legal instruments of the United States federal governments occupation and that all Federal Tribal Corporations under the Indian Reorganization Act of 1934 (IRA) ch.576,48 Stat 984 (codified as amended as 25 USC sec 461, et seq.) are subject to oversight by the Secretary of the Interior and under the jurisdiction of the federal courts, and exist only subject to the Congress of the United States, whereas the Sovereign/suzerain jurisdiction of the Yupik Traditional Council of Atmautluak predate these, "occupation generated" quasi legal, governmental entities since before "Western" recorded history and are therefore the only governmental entity, in the absence of tribal consent, that has judicial competency and plenary powers to regulate subsistence/commercial activities within its sovereign/suzerain jurisdiction and to protect the members of its tribe, or its agents, from criminal harassment or interference into their human rights by third party limited liability agents as declared in their Charter and Resolutions. The State of Alaska, by use of the Alaska State Troopers, did forcefully remove Mr. Ostrosky in the discharge of his duties as an Atmautluak Traditional Tribal Agent under the sovereign protection of the Atmautluak Tribal Council. The sovereignty, indigenous title and rights of the Yupik remains intact and are held in trust within the oral history of the Elders to be used by the Traditional Council of Elders in the time of need. At no time have the Yupik Peoples surrendered or otherwise extinguished their sovereignty through discovery, terra nullius, treaty, conquest, assimilation, waste lands or idle lands,or by any other means or device,either covert or overt, written or oral. There does exist a body of law which purports to have jurisdiction over "Indians" and "Alaskan Natives". There are in fact no Alaska Natives except as may exist in legal construction. The semantic exclusion and confusion of people from these definitions perpetrated and promoted by the federal government are a subtle form of dehumanization and contribute to the crime of genocide. For if a group is deprived of its language and forced to adopt the dominate or occupying forces language, it ceases to exist if its definition as a political group is eliminated from the language. Death by semantics. The semantics and concomitant distortions of the law have been utilized to create a jurisdictional assertion which is based upon false foundation: that the Treaty of cession of 1867 was or is a transfer or sale of the rightful God given indigenous title and sovereign jurisdictional rights by the Tsar of Russia to the United States of America. In legal reality the Treaty of Cession is just as it says it is, a transfer of Russian possessions. Indian Law generally assumes that the United States Congress has plenary powers pursuant to the Indian Commerce Clause of the United States Constitution.United States Constitution art.I,sec.8,cl.3; David Getches, C.Wilkinson Federal Indian law, p.195 (2d ed. 1986). To buttress this argument, Federal Indian Law relies on Marshall Court decisions relating to the term known as "dependent" nations. Worcester v.Georgia, 31 U.S.(6Pet)515 1832). Cherokee Nation v.Georgia, 30 U.S.(5 Pet.)1(1831); Johnson v.McIntosh, 21 U.S. (8 Wheat) 543 (1823). These cases are relied upon in cases which define sovereignty and Indian Tribes. These decisions are of such nature as to preclude them from being the background against which this issue must be argued and adjudicated or interpreted. There is gross error in decisions of the Federal Courts which combine to create a political reality based on legal premise which is incomplete in its consideration based on the backdrop and background against which legal assumptions are made. These political assumptions have allowed and at times encouraged the enactment of numerous laws, regulations and agreements which purport to jurisdictionally control "Indians" and "Alaska Natives." Appellant disagrees and charges that the United States of America has allowed the Administration (Executive Branch) to construe the constitution in such a way as to assume that Congress has plenary powers over "Indians when in fact their is no statement or wording which directly or indirectly assumes or purports to assume any plenary powers, sovereignty or jurisdiction over"Indians." The regulation of commerce, or the internal regulation of commerce,does not concomitantly carry with it the unilateral right or authority to assume or limit the sovereignty of Indian Tribes which is inherent, derived and exercised consistent with the spiritual and religious integrations combined with the physical to create a body of laws and controls which has automatically been enunciated through actions which are incumbent on certain leaders and enacted under authority of tribal law which insured the survival of the people through efficient management, regulation and allocation of resources which are now termed traditional and customary uses of substances resources and are intrinsic to both the spiritual and physical health and well being in the maintenance and support of the perpetual free access to the necessaries of life. Ostrosky charges that the United States has not perfected its claims to the title in the area defined in the Treaty of Cession of 1867; further, the United States" claim to have extinguished aboriginal title are based on tenuous legal concepts, invalid points of law and misinterpretation of precedent through distortions of dicta used as conclusions of law. The indigenous tribes of Alaska are possessed of a unique political status, namely, they have never treated or ceded any property or rights in property by legitimate device. The so-called policy of 1867 barring treaties with Indian Tribes is unconstitutional and substantially alters the powers of the Congress to the detriment of the Indigenous Tribes of Alaska. Even under its own laws and judged by its own standards of justice and equity. the United States of America in its ratification and proclamation of the Treaty of Cession of 1867 purchased precisely what Russia possessed and assumed suzerain trust responsibility which must be judged against a backdrop of indigenous sovereignty and contemporary standards and norms, both legal and human, in order to assert the veracity of allegations that the trust has and is violated. Ostrosky charges that the United States of America has violated the constitution of the United States of America, particularly the treaty making power and the Commerce Clause. The treaty making power is clearly and explicitly stated, and the statutory authority the United States has to establish agreements with sovereigns includes the several "Indian Tribes". Moreover the United States of America has overruled the Commerce Clause with the assumption of a higher level of sovereignty and the creation of the term "dependent" nation both of which combine to eliminate or abridge inherent sovereign rights through unilateral action without treaty or agreement through tribal consent. The United States. in the Treaty of Cession of 1867 and according to the principles of international law states that the United States has assumed a suzerain trust responsibility in regard to the aboriginal inhabitants of Alaska. According to custom, international relations typically recognize that there are time when greater powers may be granted or assume the responsibility for protecting and assisting lesser powers. A lesser power taking the protection of a greater power does not alter the fact that the lesser power still retains its full powers of sovereignty, Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 560-61 (1832). In the Marshall Trilogy, "depending" was clarified as a narrow concept,that while tribes were dependent on the federal government for supplies and protection, their sovereign powers were to be respected. Id. This concept was embodied in the League of Nations and later mandated in the United Nations Charter. Greater powers protecting lesser powers does not preclude lesser powers from exercising full powers of sovereignty. The treatment of tribes in Alaska violates the principles of sovereignty and the charter of the United Nations. The trust responsibility toward the indigenous people of Alaska must be interpreted as a duty to protect and assist indigenous sovereignty through a suzerain responsibility until they achieve the full powers of self governance on a political plane equal to that of the United States of America. It is an accepted concept of Indian Law that limitations on tribal powers may and do exist. In Cohen's Handbook of Federal Indian Law, he discusses three fundamental principals that have marked the history of judicial decision on the nature of tribal powers: (1) An Indian tribe posses in the
first instance, all the powers of any sovereign state;
(2) conquest renders the tribe subject to the legislative power of the United States and, in substance, terminates the external powers of sovereignty of the tribe , for example, its powers to enter into treaties with foreign nations, but does not by itself affect the internal sovereignty of the tribe; (3) these powers are subject to qualification by treaties and express legislation of Congress. Save as expressly qualified, full powers of internal sovereignty are vested in the Indian Tribes and their duly constituted organs of government. Consequently, it is necessary to examine legislation and treaties limiting tribal powers of self government, and the manner in which the external sovereign powers of tribes necessarily have been circumscribed by their subjection to the ultimate authority of the United States. Cohen, Felix S. Cohen's Handbook of Federal Indian Law, pp. 241-42 (1982 ed.). None of these tribes has lost a war with the United States. History declares our existence. Law describes our statutes, and no treaty or legislation are in effect legally which abrogate or otherwise inhibit or limit inherent sovereign tribal powers of any of the indigenous tribes of Alaska. Senate document no. 152, 81st Congress ,Second Session is adequate proof of appellant's allegations and is legal and historical fact. the report renders the issue res judicata. Felix Cohen, under the administration of President Harry S. Truman was attempting to coherently apply "Indian" law as a channel to the full recognition of human rights in a cooperation with Elenor Roosevelt, who was Ambassador to the United Nations and Chairman of the Commission on Human Rights. Together they submitted a definition of the term "genocide"to the Convention on the Prevention and the punishment of the Crime of Genocide to the United Nations in 1948. This then might be considered the MAGNUM OPUS of Cohen and concomitantly, a high point in United States "Indian" relations; the treaty was signed February 19. 1986 and on November 4, 1988, the Genocide Act (P.L. 100-606) passed by Congress was signed by President Ronald Reagan and proclaimed into law during a convention in Chicago on the anniversary of "KRISTALLNACHT", when the Nazi brownshirts began their campaign of terror which culminated in the holocaust of World War II. Felix Cohen explains the ultimate foundation for Indian law in his acknowledgment in his original handbook on Indian law; What made this work possible, in
the final analysis, is a set of beliefs that form intellectual
equipment of a generation-- a belief that our treatment of the Indian
in the past is not something of which a democracy can be proud, a
belief that the protection of a minority rights and the substitution of
reason and agreement for force and dictation represent a contribution
to civilization, a belief that confusion and ignorance in fields of law
are allies of despotism, a belief that understanding and appreciation
of their legal rights, a belief that understanding of the law, in
Indian fields as elsewhere, requires more than textual exegesis,
requires appreciation of history and understanding of economic,
political, social and moral problems. These beliefs represent, I
think,the American mind in our generation as it impinges upon one tiny
segment of the many problems which modern democracy faces.It is
fundamentally to these beliefs and to this mind that the author's
acknowledgements, gratitude and loyalty are due. Cohen, Felix S. Cohen's Handbook of Federal
Indian Law, p xi Intro. (1982 ed.).
These laws, regulations and management regimes are contrary to and inconsistent with the Genocide Act which was enacted into law on November 4, 198 (P.L. 100-606). therefore since that is the supreme law of the land, it mandates that all law contrary to it be repealed or voided, including all laws and regulations inconsistent with it. The Treaty of Cession of 1867 was not a transfer of anything not owned or possessed by Russia, and Russia only had rights on some 240 acres more or less. The State of Alaska does not legitimately exist or have legal jurisdictional authority over any lands, resources or rights which are under the continuing protection of the elders who hold the history and plenary powers intrinsic to their government exercised by them in the time of need. Congress does not have plenary powers over the indigenous tribes of Alaska. Congress has not properly attended to putting into place constitutional authority to legislation and administrative fiats which amount to apartheid in fact and practice Neither the State of Alaska, if it exists, nor the United States Congress has the right to infringe upon the sovereignty of the indigenous Yupik Tribes and/or people of Alaska. Basic, sacred fundamental human rights are not negotiable and indigenous title is valid . Yupik sovereignty remains intact, Yupik jurisdictional authority is intact and the accoutrements of Yupik government are presently restructured. The only court of competent jurisdiction for this matter rests in the Tribal Courts of Yupik Tribal Communities under direct sovereignty or suzerain trust responsibility. The United States of America has a Suzerain responsibility to assume, as "supreme law of the land" through treaties, protection and enhancement of the sovereignty and self governance of indigenous tribes in Alaska. It is the United States and its instruments, agents,assignees, or contractors who have conspired to deprive the Yupik people of basic rights and to misappropriate Yupik lands, resources and water under the guise of law and protection. For too long Yupik people have endured tyranny and external controls imposed unilaterally with the cooperation of a few individuals acting as tribal members without credentials or authority. All agreements or contracts made by individuals on behalf of the Yupik indigenous governments are legally void and of no effect, including but not limited to the Alaska Native Claims Settlement Act (ANCSA), Pub.L.92-203, 85 Stat.688 (1971), codified as 43 USC sec.1601, et seq., as amended. Because the waters of Bristol Bay are historical waters and come within the international treaty obligations as defined in the "Juridical Regimes of Historical Waters including Historical Bays", these waters belong not to the State of Alaska or the United States of America, but in fact to the indigenous peoples of Alaska. Thus historical waters and bays (Bristol Bay) are protected by the United Nations whose charters and doctrines the United States has promised to uphold, along with Japan, Canada, Denmark,and Great Britain. Furthermore the money made from Bristol Bay (including taxes and license) is presently held in escrow for the proper owners, and to be made payable upon recognition of the Yupik right to govern under the human right of self determination from the priority granted under the doctrine of indigenous title. The State of Alaska and the United States government must remove themselves from further administrative, legislative and judicial interference into the sovereign jurisdiction of the Yupik people by supporting the implementation of P.L. 99-239, enacted January 14, 1986,called the Compact of Free Association Act of 1985, on behalf of the Yupik people, which calls for a conference, approved by the Secretary of State and the Secretary of the Interior, to implement the ARTICLES OF FREE ASSOCIATION in order to define and implement the government to government relationship which is necessary to the survival of the Yupik people and to conform to the provisions of P.L.100-606, the Genocide Act (Amended section on Juridical Regimes of Historical Waters etc) Because the waters of Bristol Bay are historical waters and come within the international treaty obligations as defined in the "Juridical Regimes of Historical Waters including Historical Bays", (U.N. DOCUMENT A/CN.4/143) these waters are not under the sovereign jurisdiction of the State of Alaska or the United States of America, but in fact are under the sovereign jurisdiction of the indigenous peoples of Alaska. Thus historical waters and bays (Bristol Bay and the Bering Sea) are protected by the United Nations whose charters and doctrines the United States has promised to uphold, along with Japan, Canada,China,Russia. France, Denmark,and Great Britain. Furthermore the money made from Bristol Bay and the Bering Sea (including taxes and license) is presently held in escrow for the sovereign indigenous title holders, and to be made payable upon recognition of the Yupik sovereign right to govern under the human right of self determination and from the priority granted under the doctrine of indigenous title. |
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