Comes now Harold C. Ostrosky, Agent by Tribal Resolution to the      Traditional Tribal Council of the Yupik Tribal Community of Atmautluak,Acting as co‑council,defendent and comlaintent in the above case NO.3AN‑S78‑8955 CR, in support of his motion submitted to the clerk of the court on June 30 1989 for dismissal of 3AN‑S78‑8955 CR for lack of jurisdiction of the State of Alaska in all the above matters and those matter pertaining to all the actions of the past, present or the future that comprise the record in its entirety back to the alleged offense or offences in or about the year  1978.

 

  Harold C. Ostrosky as complaintent alleges that neither the State of Alaska nor the United States of America have sovereign jurisdiction in the matters  concerning the Subsistence/Commercial Regulations within the Sovereign Yupik Jurisdiction as defined by Atmautluak Traditional Council Resolution 86‑05 and Resolution 86‑11 and 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 of 1867 and from military occupation in the defense of the Territory of Alaska from Japanese attack in 1941.

 

          The plaintiff alleges that the defense from Japanese attack terminated with the cease of warfare hostilities between the United States of America and Japan with the signing of the Japanese Surrender Papers aboard the Battleship U.S.S Missouri on Sept. 2 1945.

 

          The plaintiff alleges that Senate Document 152 of the 81st Congress 2nd Session, "Russian Administration of Alaska and the Status of the Alaskan Natives", is clearly a response to questions of jurisdiction arising  after the end of World War II 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 plaintiffs assert that the United States has not fullfiled its obligations under the Treaty of Cession of 1867 but that it has exerted authority and made claims to sovereignty and title which have not been perfected according to its own laws and declared principals.

 

     The plaintiff alleges  that on or about            that the State of Alaska through by use of the State Troopers did forcefully interfere with the  plaintiff in the discharge of his duties as a Atmautluak Traditional Tribal Agent under The Sovereign Protection of the Atmautluak Traditional Tribal Council

 

     The plaintiff asserts that the United States and its legilative creature, the State of Alaska has constructively manipulated and semantically avoided principles of law dating 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 and in doing so has illegaly and improperly instituted laws and statutes which were and are enforced under the direct enforcement of the United States government in its quest to fullfill the final vestiges of "Manifest Destiny" and colonial empire building in the Pacfic 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 paid to various Congressmen to insure ratification of a document which they did not see during or before their vote. So, we open our statement with where we began, at 1867 with the indigenous tribes enjoying all the attributes and governmental accoutrements while exercising complete and total jurisdiction over all lands, water resources  and tribal members while the Russians numbered less then 500 persons, not including Creoles.

 

     The Senate report mentioned previously contains on pp 34‑36 the Russian laws and decrees relating to Alaska and printed in the "Complete Collection of Laws of the Russian Empire".These decrees and claim of sovereignty or dominion over the any lands, waters, resources or persons other then that which they occupied and possesed pusuant to indigenous title under God given rights of guardianship and jurisdiction exercised in human form.

 

     The Kostlivtzov Memorandum to Secretary of State Seward on pp 53‑57 of Senate Document No. 152 leaves no doubt as to what was tranferred in the Treaty of Cession of 1867.

 

     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 as a witness stated something to the effect, that this land which by right belonged to neither was transferred with little notice but much fanfare.

                               Definitions

 

     In order to put the issue into perspective which the court can understand more fully, perhaps a review of some definitions is the appropriate place to begin.

 

     According to Webster: subsistence n. 1. The act or condition of subsisting; existence. 2. Means of support; livelihood.

 

     According to Blacks Law Dictionary: Subsistence. Support. Means of support, provisions, or that which procures provisions or livelihood. See Necessaries;Support.

 

     Necessaries. An article which a party actually needs . Things idispensable, or things proper and useful, for subsistence of life. The word has no hard or fast meaning, but varies with the accustomed manner of living of the parties. Ward includes not only those services which are proper and required to sustain life but also those suitable for the individual involved according to his circumstances and condition of life.

 

     Support. n, That which furnishes a livelihood; a source or means of living; subsistence, sustenence, or living as would enable one to live in the degree of comfort suitable and becoming to his way of life.It is said to include anything requisite to housing, feeding, clothing, health, proper recreation, vacation, traveling expense, to other cognitate purposes; also proper care, nursing, and medical attendance in sickness and suitable burial at death. See also Maintain.

 

     Maintenance. Act of maintaining, keeping up, supporting: livelihood; means of sustenance. The upkeep, or preserving the condition of property to be operated. See also Maintain.

 

     Sustenance. Support, assistance; aid. The furnishing by one person to another, for his support, of the means of living, or food,clothing, shelter, etc., particularly where the legal relation of the parties is such that one is bound to support the other, as between father and child, or husband and wife. The supplying of the necessaries of life term "Maintenance" means primarily food, clothing and shelter,but it does include such items as reasonable and necessary transportation or automobile expenses, medical and drug expenses, utilities and household and household expenses. See also Separate Maintenance Support.

 

  Blacks Law Dictionary, Sovereignty. The supreme, absolute and uncontrolable power by which any independent State is governed; supreme  politacal authority; paramount control of the constitution and frame of government and its administration; and self‑sufficient source of political power,from which all specific political powers are eliminated from the language.   Death by semantics.

 

     The plaintiff asserts that 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 tranfer 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.

 

 

     Felix Cohen, and all subsequent students and practitioners of Federal Indian Law assume that the U.S. Congress has plenary powers pursuant to the Constitution of the United States of America over Indians, in particular, the Indian Commerce Clause. To buttress this argument Federal Indian Law relies on the Marshall Court decisions relating to the term known as "dependent" sovereign. These cases are relied upon in cases which define sovereignty and Indian Tribes. Plaintiffs argues that these decisions are of such nature as to preclude them from being the background against which such issues must be argued and adjudicated or interpreted.

 

     The plaintiff charges that there is gross error in decisions of the Federal Courts which combine to create a political reality based on the 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". We disagree and so argue. We charge that the United States of America has allowed the Administration (Executive Branch) to construe the Constitutioon in such a way as to assume that Congress has plenary powers over "Indians" when in fact there 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 unilateral right or authority to assume or limit the sovereignty of Indian Tribes, which is inherent, derived and exercised consistent with the spiritual values and

considerations which were and are existent with indigenous societies the world over. These spiritual and religious intergrations with the physical combined to create a body of laws and controls which has automatically 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 cutomary uses of subsistence resources and are intrinsic to both the spiritual an physical health and well being in the maintenance and support of the perpetual free access to the necessaries of life.

 

 

 

 

 

     Trust. A right of property, real or personal, held by one property for the benefit of another. Involuntary trust. Involuntary or "constructive" trusts embrace all instances in which a trust raised by the doctrines of equity, for the purpose of working out justice in the most efficient manner, when there is no intention of the working parties to create a trust relation. This class of trust may usually be refered to fraud, either actual or constructive, as an essential element.

 

     Constructive Possession. A person has constructive possession of property when he has the power to control and intent to control such item. Being in a position to exclusion of others.

 

     Aboriginal Title.Type of titleIndians based on continuous occupancy and used to exclusion of others.

 

     Indian Title. Claim of Indian tribes of right, because of immemorial occupancy, to occupy certain territory to the exclusion of any other Indians. Permissive right of occupancy granted by Federal Government to aboriginal possessors of land; it is mere possession not specifically recognized as ownership and may be extinguished by Federal Government at any time.

 

     Indian Lands. Real property ceded to the U.S. by Indians, commonly held in trust for Indians, see Indian Country; Indian Reservation; Indian Property; Indian Tribe.

 

     Indian Country. Part of public domain for use, occupancy and protection of Indian Tribes.

 

     Plaintiff charges that the United States has not perfected its claim to title in the area defined in the Treaty of Cession of 1867; further that claims to have extinguished aboriginal title are based on tenuous legal concepts, invalid points of law and misinterpretation of precedent through distortions and Dicta used as conclusion of law.

 

     Plaintiff will stipulate that there is one difference that can be agreed upon, the indigenous tribes of Alaska are possesed of a unique political status, namely they have never treated or ceded any property  or rights in property by legitimate device. Plaintiff charges that 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.

 

     Plaintiff alleges  that, 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.

 

     The plaintiff 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 its statutory authority with which the United States of America has to establish agreements with sovereigns, including 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 sovereign" both of which combine to eliminate or abridge inherent sovereign rights through unilateral action without treaty or agreement through tribal consent.

 

 

                                SUZERAIN

 

        The United States, in the Treaty of Cession of 1867 and according to principlees of International Law state 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 times when greater powers may be granted or assume the responsibility for protecting and assisting lesser powers.

 

     By a lesser power taking the protection of a greater power, the lesser power retains its full powers of sovereignty, precisely the same terms used in the U.S. Supreme Court case Cherokee vs. Georgia. Chief Justice Marshall clarified the "Depending was a narrow concept, that while tribes were dependent on the Federal Government for supplies and protection, their soverign powers were to be respected."  This concept was embodied in the League of Nations mandate the system and lated in the United ANations Trusteeship system.  The plaintiffs argue that   greater powers protecting lesser powers does not preclude lesser powers from exercising full powers of sovereignty.

 

     Plaintiffs argue that 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 to protect and assist indigenous people 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 does exist; howver three fundamental principles have marked the history of judicial decision on nature of tribal powers:  (1) An Indian [SEC.]  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 a tribe, for example its powers enter into treaties with foreign nations, but does not 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 which the external sovereign powers of tribes necessarily have been circumscribed by their subjection to the ultimate authority of the United States.  [Cohen pp. 241 ‑242]

 

     None of these tribes has lost a war with the United States, history declares our existence, law describes our statues and no treaties or legislation are in effect legally which abrogate or otherwise inhibit or limit the inherent sovereign tribal powers of any of the Indigenous Tribes of Alaska.

 

     The plaintiff argues the SENATE DOCUMENT NO.  152, 81st CONGRESS 2ND SESSION is adequate proof of our allegations and we incorporate it here by reference as our legal and historical fact; and we argue that the report renders the issue RES JUDICATA.

 

  We have raised new issues,which have never previously been addressed or litigated from the basis which allows the full range of arguements available to the tribes. These issues are based in sovereignty, inherent sovereignty which has never been legitimately extinguished.

 

     Felix Cohen, under the administration of President Harry S. Turman was seeing to coherently apply "Indian" law as a channel to the full recognition of human rights in cooperation with Elenanor Roosevelt, who was the Ambassador to the United Nations and Chairman of the Commission on human rights.  Together they submitted the Convention on the Prevention and the Punishment of the Crime of Genocide and the Doctrine of Human Rights to the United Nations in 1948.  This then might be considered the OPUS MAGNUM of Cohen, and, concomitantly, a high point in U.S. ‑ "Indian" relations; and on November 4, 1989 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 NAZI brownshirts began their campaign of terror which culminated in the HOLOCAUST of WORLD WAR II.

 

     Felix Cohen explains the ultimate foundation for his handbook on Indian law says "What made this 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 a democracy can be proud, a belief that the protection of minority rights and the substitution of reason and 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 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 and author's acknowledgement, gratitude, loyalty are due."

 

         These laws, regulations and management regimes are contrary to and inconsistent with the convention on the Prevention and Punishment of the Crime of Genocide; which was enacted and signed into law on Nov. 4 1988 (P.L.100‑606), and therefore, since it 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.

 

     Plaintiff argues that the Treaty of Cession of 1867 was not a transfer of anything not owned or possessed by Russia; and that Russia may have (had) rights on some 240 acres more or less.

 

     Plaintiffs argue that the State of Alaska does not legitiamately exist or have legal jurisdictional authority over any lands, resources or rights which are under the contiuing protection of our elders who hold the history and plenary powers intrinsic to our government and exercised by them in the time of need.

           Plaintiff argues that Congress does not have plenary powers over the indigenous tribes in Alaska; and, that Congress has not properly attended to putting into place Constitutional Authority to legislation and administrative fiat which amounts to apartheid, apartheid in fact and practice.

 

     Plaintiff argues that neither the State of Alaska, if it exists, nor the Congress has the right to infringe upon the sovereignty of the Indigenous Yupik Tribes and/or people of Alaska.

 

     Plaintiff argues that Basic, sacred Fundamental Human Rights are not negotiable and that Indigenous Title is valid, that Yupik soverignty remains intact, that Yupik Jurisdictional Authority is intact and that the accoutrements of Yupik Government are presently restructured and that the only court of competent jurisdiction for this matter rests in the Tribal Courts of the Yupik Tribal Communities under Sovereign Direct 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.  Plaintiff asserts that 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 waters under the guise of law and protection.

 

     For too long Yupik People have endured the 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, as amended.

 

We finally inform this court that because Bristol Bay is Historical Waters, these waters belong not to the State of Alaska or the United States of America, but in fact to the Indigenous Yupik Peoples. This historical water (Bristol Bay) is protected by the United Nations, whose Charters and Doctrines that the United States of America has promised to uphold, along with Japan, Canada, Denmark, and Great Britain.  Furthermore the money made from Bristol Bay (including taxes) is presently held in escrow for the proper owners, and to be made payable upon recognition of Yupik Title.

 

  The plaintiff hereby files a motion for the State of Alaska and the United States Government to 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 (Compact of Free Association), on behalf of the Yupik People, which calls for a Conference, approved  by the Secretary of the 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 necessaey to the survival of the Yupik people and to conform with the provisions of P.L. 100‑606 the Genocide Act.

 

     The plaintiff at this time resubmits his motion of June 30 ,1989 in order to reaffim and resolve the Sovereign Jurisdictional issue  by Restating

     I, Harold C. Ostrosky of Atmautluak Alaska hereby File a Motion for Dismissal of 3AN‑78‑8955  CR for lack of jurisdiction of the State of Alaska.

 

 

 

 

 

     Attachments in support of this motion include:

     A.

      (1) Kostlivtzov Memorandum of 1867

      (2) Interpretation of Alaska Native Rights under International Law in regards to Kostlivtzov Memorandum by Dr.James Mcalear (301)‑251‑6680 Rockville  Md.

 

     B.   A Complaint against the State of Alaska for

      (1) Interfering with a Tribal Agent authorized by Atmautluak Tribal Redolution 86‑12 to act in behalf of the Tribe and its members within  Sovereign/Suzerain jurisdiction as defined in Atmautluak Resolution 86‑05 as published in the Tundra Times on September 22, 1986.

      (2) Forcefully removing Tribal Agent Harold C. Ostrosky from the Sovereighn/Suzerain Jurisdiction without Tribal consent.

      (3) Violation of the Sonereighty of the Atmautluak Traditional Council and the use of intimidating and terrorist action of the State of Alaska by the implementation of force and restraints on Tribal Members and their Agents without proper Sovereign Authority or Tribal consent.

 

     C.

      (1) Atmautluak Tribal Resolutions 86‑05 and 86‑12 and 86‑11

 

     The plaintiff finally charges the State of Alaska and its Agents for the criminal violation of P.L. 100‑606, namely the genocidal violations of his Human Rights.