Here I will begin with an overview of the years leading up to 1841. Elsewhere I have blogged about the Nanfan Treaty of 1701, the Royal Proclamation of 1763, the Haldimand Proclamation of 1784, and the Simcoe Deed of 1793. For example, I noted the "Mohawk Deed" of 1787 where the Chiefs granted 999 year leases to various members of the Nelles, Young, Huff and Dochstader families, with the understanding that these lands were to "be possessed by their recipients forever", and "never to be transfered to any other". I know many members of these families who would be only too pleased to have these lands returned to them, however the lands were surrendered and sold (not necessarily in that order) and eventually the Crown deeds placed on title in the Land Registry Office in Cayuga, and many buyers of these lands have come along right up to the present day, counting on the validity and security of their registered title. This matter has been addressed in detail in previous blog posts.
Alas, the apparent order to things did not last, as will be seen in the Council Minutes below. Although Brant maintained that the lands belonged in whole to the Six Nations, as an independent people, this view was inconsistent with that of early proclamations, and with the view of Whitehall (the Crown) - particularly Governor Simcoe who was certain that if Brant got his way, American "Land Jobbers", such as those in New York State, would soon get their hands on these valuable lands and sell them to undesirable elements - none of which would be in the interest of the Crown, nor, Simcoe believed, that of the Six Nations. Simcoe wanted to eject all White people off Indian lands, but knew that the opposition from Brant was adamant, and that Brant wielded considerable power to influence affairs in the Colony. When the Colony caved in to Brant's demands, the latter began in 1789 to seek out buyers for the lands above present day Paris, to be sold in Blocks. Brant was aware that there was insufficient land to maintain a life of hunting, and that many of the Six Nations had not made progress on his vision of an agricultural utopia guided by some of his hand picked chums from "the old days". The only other way to obtain monies on which to survive was to use the resources on hand - which meant selling as much land as was required to obtain annuities which would result in interest payments to the Six Nations to supplement what they obtained from any hunting, fishing or other activities which brought in cash or barter.
Please refer to Charles M. Johnson, The Valley of the Six Nations: A Collection of Documents on the Indian Lands of the Grand River, Toronto, Champlain Society, 1964 for the best available collection of relevant records, and interpretation of their meaning. The chapters, C. "A Disputed Title", and D. "The White Man's Frontier" include most of the relevant papers to allow an informed assessment of the history of land transactions along the Grand River Tract. For a similar listing of relevant claims and records and the interpretation of the Six Nations Lands and Resources document, Six Nations of the Grand River: Land Rights, Financial Justice, Creative Solutions is included here.
Throughout the years after the death of Chief Joseph Brant in 1807, the Chiefs in Council were faced with many challenges. First, they had to determine what to do about the many "Brant Leases" which often pertained to large tracts of land, leased for 999 years for a yearly rent of one peppercorn. Clearly Brant wished to give these lands to the parties involved, but was blocked from doing so by the terms of the Simcoe Deed which barred him from gifting or selling land without the say so of the Crown. In the Crown's defence, they well knew that once land was sold in fee simple it was gone forever, and once the monies derived from the sale had been spent, there would be nothing left. Soon the Six Nations would be left impoverished. Since they has already seen it happening, it was realised that the process would snowball and ultimately the Six Nations, left penniless and without a land base, would be forced to move on - probably west to an uncertain future. This is not paternalistic, it is realistic - it was already a common practise, one which needed to be nipped in the bud if the Six Nations were to survive as a people.
It was really not until 1835 when the deeds were given formal Crown approval. In the meanwhile the situation in the Six Nations territory was becoming very chaotic. Individual Indians, for example in the lands of the Lower Cayuga and Delawares down River from the Nelles and Young settlements, would claim a section of land, make some "improvements" by clearing the land of trees and building a cabin, then would, when ready cash was needed, sell their improvements to White purchasers, giving them a deed in return. During the 1830s, members of the Lower Cayuga tribe sold their lands above present day Cayuga to buyers (largely David Thompson who built Ruthven), then moved across the River established a new Longhouse, and begin the whole process again, this time moving in the 1840s to the area of the Plank Road in Oneida Township, and within a short period of time selling these lands to White buyers to move to the consolidated Reserve after the squatters there had been cleared in 1847.
Some of the squatters had good deeds from Six Nations members and others had rather "iffy" titles if any. None the less, it became the responsibility of the Government, after numerous complaints by the Chiefs, to investigate the claims of the squatters on the lands that were to be reserved for the use of the Six Nations (e.g., in Tuscarora Township), compensate them if they could proved a valid claim, or ultimately eject them (seldom done in practice). This did not entirely work since many continued to dwell there for many years afterwards, some with the permission of the Six Nations, others more in the guise of defiant intransigent squatters. It is quite sobering to see how difficult it was to get rid of these elements within the lands of the Six Nations. It must be acknowledged that just as occurred in the Ohio country, despite the pleas of many Indians for the Government to take charge and eject those who were living on Treaty lands, many Indians were enablers, pleading to allow these Whites to remain - especially if they were purveyors of desired goods - such as liquor (a problem that loomed large in the 19th Century). It was the same situation at Six Nations.
In the Council Minutes of 1 March 1809 at Onondaga, the Chiefs examined every parcel of land known to be in the possession of Whites, and attempted to understand what rationale Chief Brant used to make his decisions, and factor in their own observations as to how each of these parties had behaved and whether they were good neighbours and were honouring the original terms of their deed. They accomplished this in terms of a set of resolutions that reflected their wishes pertaining to the farms. For example Mr. Mallory's claim was disallowed. The lands marked out for individuals such as Mr. Kennedy Smith they allowed, "because we were made acquained with it". However those at the Mt. Pleasant settlement were expected to occupy their lands based only on a 21 year lease, and after the expiry of same, the lands would revert to the Six Nations. Considering John Nelles, they did not know upon what basis he was given a "Brant Lease", and further that he had, "behaved very improper to some of our people", so they left it to the discretion of the Deputy Superintendent General as to whether to remove Nelles or ensure that he reforms. They also expressed concern that the grant to John Huff was for the good of his children born to a Delaware mother, but he was selling off the land, these sales to be forbidden, and the intruders to be ejected. They seemed particularly displeased with Mr. Canby who was sold land of John Dochstader, much more than they would approve of, but that as long as the monies were put into the hands of Dochstader's children, it would be consistent with their wishes. The farms possessed by said children (born to Six Nations mothers) were confirmed. The Chiefs further discussed the lands of Lord Selkirk and Mr. Dixon further down river, and sundry other plots of land and their view on what is legitimate and what should be approved. In this document, the 38 chiefs and warriors who signed also stated to the Crown agents that, We are tenacious of our lands because they are a gift from our beloved Father the King - and because we want to live under his protection - we are sorry that our Chiefs have hitherto been too lavish - and therefore desire to undo whatever we can without committing injustice (Johnston, 110-2). I have also seen the original to this document in the National Archives.
Soon thereafter, on 1 February 1812, the Administrator of Upper Canada, Isaac Brock, issued a Proclamation to the effect that it is illegal for White people to reside in Indian villages or on Indian lands without "due authority or licence". And whereas it is further represented to me that among the white people resident upon Indian Lands there are divers to whom it may be expedient to grant Licences to remain - All persons desirous to obtain such Licences are hereby required to report themselves to the Honourable William Claus His Majesty's Deputy Superintendent General of Indian Affairs, together with the Circumstances of the time place and condition of their respective residences (Johnston, pp. 113-4).
Brock's Proclamation triggered a flood of applications from those with Brant Leases, and others with Indian titles.
Following Johnston, and skipping to the Surrender of 1835 to pick up the thread of formal surrenders by the Six Nations (although gifts, leases and sales extend back to 1787), when on the 26th of March of that year, upon the recommendation of the Chiefs who met in Council 29 January 1835 at the Mohawk Village attended by James Winniett, Superintendant of Indian Affairs, the Chiefs or Principal Men of the Mohawk or Six Nations Indians residing, on the Grand River Tract," do surrender and yield up to Our Sovereign Lord the King's Most Excellent Majesty, His heirs and successors, all and singular the serveral parcels or tracts of land so leased or intended to be leased by the Captain Joseph Brant. The Six Nations surrendered, all the estate, right, title, interest, property, claim and demand whatsoever. It was further stated that the lands was surrendered by, the said Chiefs and Principal Men and of the said people of the Mohawks or Six Nations Indians and their posterity forever. This surrender was effected so that the Crown could issue free Crown Grants and Letters Patent to the leasees. I cannot see how this document could be any more clear.
Subsequently a procedure was established to validate all sales of land between individual Six Nations Indians and White buyers where the purchaser presented an application to the Indian Department, often with the Indian deed or suitable affidavit about the issuing of the deed, as well as a survey, and the matter was considered by the full Chiefs in Council. If the latter were satisfied that all was in order, they, and often the original grantor(s), would put their signatures on the document which the grantee would submit to the Superintendent of Indian Affairs or his representative, and a Crown deed for the property would be issued and the deed placed on title first with the Indian Office, then with the land titles office in the county where the parcel was located. I have personally seen hundreds of these documents, and examined the names of the Chiefs, correlating them to other documents such early census records at Six Nations. I can see no reason to question the deeds. The Chiefs always made note in the wording of the deed that the transaction was to be honoured by their descendants.
By 1840, the numbers of such deeds was staggering, it is a wonder that the Indian Department was relatively good at keeping record of just about everything. They tended to be excellent bureaucrats. IThere are excellent examples of the extreme diligence of members of the Indian Department and the staff whose job it was to keep organised records (Bill Russell, The White Man's Paper Burden: Aspects of Records Keeping in the Department of Indian Affairs, 1860-1914, Archivaria, 19, Winter 1984-85). The situation had also become chaotic, with Indians residing in scattered locations along the Grand River Tract, surrounded by increasing numbers of White neighbours with legal titles or not.
This brings us to the Surrender of 1841 - one of the most contentious documents in the history of Canada. It warrants its own blog post. I will include in this posting a consideration of a number of pertinent subsequent documents from 1841 to 1850.