S.I.S.I.S. talks to Native rights lawyer Bruce Clark about the Gustafsen Trial, the Seneca decision and his May 30 New York State Supreme Court Appearance for the Mohegan Nation.
S.I.S.I.S.: What is your reaction to the Gustafsen Trial convictions?
Clark: The jury had no choice but to find the way it did given the judge's instructions to them -- that they had to accept that these events took place on private property belonging to Lyle James, and that the province of British Columbia and the court had jurisdiction. The problem is that the law to the contrary -- that is the native law, international law and the constitutional law, putting the lie to the judge's position -- still has not been addressed. And the only conclusion one can reach in those circumstances is that the rule of law has not functioned. It is in a state of suspension.
S.I.S.I.S.: Defence counsel Sheldon Tate said that "Clark and his cronies were the true malevolent forces in the crisis." What do you say to that?
Clark: Depending upon what the law says, Sheldon Tate may be right or he may be wrong. The answer depends entirely upon looking at the native, international and constitutional law. My feeling remains that when this is done the legal advice that I have given will be vindicated. It would help, if Sheldon Tate disagrees with that position, that he provide an analysis of the law which would point out my error.
S.I.S.I.S.: With reference to the Seneca nation -- are you aware of the recent court decision finding in favour of the Senecas?
Clark: Yes. I'll be using that decision in a New York State Supreme Court on May 30th, involving the Mohegan Nation of New York state -- actually the descendants of the same people who were involved in the 1704 case [Mohegans v. Connecticut: after a protracted process, on 15 January 1773, the Privy Council in Great Britain in the exercise of its appellate jurisdiction finally issued an order in council that had the effect of recognizing that the Mohegan Indians were "juristically regarded as sovereign." -- S.I.S.I.S.] They have a small Bingo operation in their Mohegan country and they were threatened with the same "storm-trooper" response as were the Senecas. They didn't proceed with the bingo in the face of the police threat that the whole town would be cordoned off. Now the Attorney General of New York has applied for an injunction to prevent the bingo from going ahead in the future. There's a show cause hearing on May 30th. What that means is that the judge has invited the Mohegans to inform the Court of the law which would indicate that state law should not be applied.
And the Mohegans have accepted that invitation. We have filed with that Court the same essential law that was filed in the Gustafsen Lake case or that we attempted -- but still wasn't addressed in British Columbia. So now it may be addressed by the state of New York. And as part of the process, the decision that you've just identified by Judge Hon. Rose Sconiers will be filed, amongst other things, to persuade this judge to take the same kind of route and apply the same kind of reasoning: that the native sovereignty position at the very least is arguable -- and it's not appropriate, in the circumstances, for judges to be giving injunctions against the Indians by applying state law.
That is, Judge Sconiers has taken the exact opposite position as the position consistently occupied by the judges of British Columbia. This is a bright light.
S.I.S.I.S.: Where is this hearing and when again?
Clark: New York State Supreme Court, Lake George, New York. Before a Judge Dyer at 9:30 am May 30.
S.I.S.I.S.: Finally, is there the likelihood of appeals possible in the Gustafsen trial?
Clark: Yes. The judge made rulings and gave orders to the jury to accept principles as decided by him as given. We will appeal against the legitimacy of his instructions to the jury. If they had acquitted, the legal contest would have died. As it now stands, the judge has made an appalling decision on the law . So far he hasn't supported it. It's conceivable he may come up with some rational basis... I don't imagine how he could, but he may pull a rabbit out of his hat... But when everything cools down, the permanent record that is left is going to make that judge and the BC Court system look like damn fools. At the end of the day, regardless of what the newspapers and the bellicose elements are saying, the fact remains that he [Judge Josephson] has made a decision at law which he does not even begin to be capable of backing. And that's demonstrable, from a permanent record point of view. So...I still have hope for the rule of law. That it's not over 'til its over...and its not over yet.
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