Friday, 8 November 2013

Surrenders of Land by the Six Nations Chiefs in Council from 1841 to 1850

Undoubtedly, if one were only to go to the published set of, Canada: Indian Treaties and Surrenders, 1680 to 1890, Volumes I and II, Ottawa, Queen's Printer, 1891, one would be left with significant questions about the legitimacy of some of the land transactions upon which so much hinges in terms of settling outstanding Six Nations land claims. Clearly it would be worthwhile for someone other than the negotiating terms for Six Nations and the Federal Government to sift through everything and see what conclusions can be arrived at by a third party, independent of the other two. This has actually been done in the reports of Holmes (2009), which is the focus of most of what is written below, and Horsnell (2010) noted in previous blog posts.  Over a period of over 30 years, I have examined not only the specifically relevant documents, but also related records, and the diaries and letters of Indian Department officials such as James Winniett and David Thorburn, which provide an indication as to whether they were working in the best interests of the Six Nations, or rather to enrich themselves, or were little more than toadies or "yes men" in supporting the position of the Lieutenant Governor or other Crown agent.  I am entirely satisfied that Winniett and Thorburn were diligently working in the best interests of the Six Nations.

The Surrender of 1841:  This document begins with a preamble from the Superintendent for Indian Affairs in Canada, Samuel P. Jarvis.  The first problem here is that he is associated with investing trust funds in the very controversial Grand River Navigation Company.  The second is that due to allegations of misappropriation of funds, he "retired in disgrace" - as shown here.  Many at Six Nations, however, maintain that he "was suspended from office" - as shown here.  Be that as it may, it would be difficult to show that the deed that followed is compromised or tainted in some way.  Jarvis was following the explicit orders of the Lieutenant Governor of Upper Canada.  The surrender was signed by the Six Nations Chiefs in Council, and was overseen by Commissioner David Thorburn, who has an unblemished record in his dealings with the Six Nations.  I have read all of Thorburns diaries (a stack of very small books) in which he recorded every transaction, and every possible detail of the work he was doing.  He was the consumate civil servant who believed that it was just and proper that he play his role to the best of his ability in ensuring that the Six Nations were provided with justice and compassion.  Ultimately the decision made by the Six Nations Chiefs was theirs and theirs alone.  Jarvis was essentially a go between.  The Six Nations would be given advice by the local Indian Department officials, but if the facts didn't add up, some of the Chiefs (e.g., John "Smoke" Johnson) were far too shrewd to be duped in this way.

The preamble and document itself are long, too long to be included except in excerpt form.  For the full set, please see either Johnston (pp. 187-92), or ITS (Vol. 1, pp. 119-23).  First Jarvis makes it clear that he is relaying a message from the Lieutenant Governor, who had recently received a delegation of Six Nations Chiefs.  Cutting to the chase, Jarvis said that the problem is largely the occupation of Six Nations lands, "by white people without authority".  The Lieutenant Governor not only blames the squatters, but also "the interference of the Indians themselves, continuously".  In the opinion of the Lieutenant Governor the only feasible solution is if the Six Nations, "surrendered into the hands of the Government the whole tract, with the exception of such part of it that may chose to occupy as a concentrated body, so that the same may be disposed of by the Government".  He recommended that the Six Nations choose the part that would best suit their needs, and include 100 to 200 acres of land for each head of family or single man.  The residue would be disposed of, "for the exclusive benefit of the Indians".

The bottom line is that in complete and utter frustration, the deputation of Six Nations asked for advice from the Lieutenant Governor, and this was the recommendation, which if implemented would also make it easier to expel intruders.

Jarvis found it necessary to further explain details of the above plan, there being some worries on the part of the Chiefs, and so he met with the Chiefs on 15 January 1841 in Seneca.  He told them that, "the income of the Six Nations can be immediately increased by a sum varying from 3,000 to 5,000 [pounds] per annum", and the plan implemented to, relieve the present embarrassed state of their affairs".  What he meant was that the problems stemmed from the Indians having invited and introduced these white intruders onto their lands in the first place, and some had collected large sums for the sale of their own property.  The Government refused to forcibly remove these white men because there are as many as there are Six Nations (about 2000), and many were put upon the lands with the approval of the Indians.  Jarvis further stated, that the proposed plan does not require those Six Nations living on a farm presently in their occupation to remove, only if and when he chooses to do so.  In addition to the presently owned farms, the recommendation is to include a further 20,000 acres to be reserved for their use.

Apparently the "Chiefs and Warriors of the Six Nations Indians upon the Grand River assembled at Onondaga Council House" saw the wisdom in this course of action as, on 18 January 1841, they agreed to the proposal.  However they stated that they wished to reserve, "that tract called the Johnson Settlement, unless what is available to be sold as town lots in the immediate neighbourhood of the Town of Brantford".  The document was signed by two Mohawks and one representative of each of the other Five Nations, "being deputed by the said Six Nations in full Council".

That sounds pretty final.  There were still some i's to dot, and t's to cross, but everything was finalised in the report of Lord Elgin, dated 1850. 

As noted in a previous blog, the Indian Department sent out teams of representatives to inquire into the history of ownership of each lot of land in each Township in the Haldimand Tract where Six Nations still held land.  The inspectors added sketches of the "improvements" to each lot, and each Township was fully surveyed.  Then the unpleasant task of removing the squatters from the lands reserved for the Six Nations began.  If the white owner could show that they had made improvements, these were purchased by the Indian Department, and an eviction notice only was placed on the property if the occupier failed to comply.

In the end, it seems that the Six Nations obtained the only viable solution to the problems they were facing.  By virtue of the Government's decisions, the Six Nations still remain together as a community.  In my opinion, had the Government not acted in this manner the Six Nations would have scattered.  Many of their people already had gone, going to locations in the Ohio country where the author has found people seen in Six Nations records, who are documented as living there.  Examples found quite by chance include Chief Joseph Dequania of the Senecas, Peter Pork and John Slink of the Cayugas, and John Froman of the Mohawk.

Many Six Nations did in fact remain on their lands for varying periods of time.  Generally between 1851 and 1871, as reflected in the Census of Ontario, the majority had moved from lands as far as South Cayuga (e.g., Curley), North Cayuga (e.g., Latham), Oneida (e,g, Styres, Beaver, Thom), and Brantford (e.g., Powless) to new homes on the consolidated Reserve.  I have documents relating to the children of a member of the Delawares, Hannah (nee Thom) Dochstader, showing that if a family did not move by about 1871, even if in this case they only lived a few miles to the south at Mt. Healey, they were struck from the Pay List - so there was an incentive to sell to a White person and join their kin on the consolidated Reserve.

Ultimately, some Six Nations became disatisfied with the terms of the Surrender, and a consensus was reached that it needed to be amended.  Here is where a problem surfaces for some Six Nations today.  Some are not aware that the original Surrender of 1841 was little more than a first pitch in a long drawn out game that lasted until 1848.  The only way to find out the validity of the land claims of today is to go beyond 1841, and wade into the "heavy reading" of Council Minutes in the key interval where leading up to Lord Elgin's Report of 1850.

Sundry Deeds and Documents Relating to the Decisions of the Chiefs in Council, 1843 to 1850:  By the time of the Caledonia "Reclamation", it had become clear that the parties (Government and Six Nations) held differing views as to what was surrendered, and when (if at all).  The Six Nations became more vocal in asserting that their people had never alienated their rights to the Haldimand Tract, and specifically not the lands in and around Brantford.  This position may have set in motion a plan by the City of Brantford, concerned about possible stoppages to development that would occur there, if the Caledonia occupation spread further.  The City at some point decided to employ a team to research all available documents that pertained to the matters of land surrenders since the General Surrender of 1841 noted above.  As a result, Joan Holmes & Associates set to the task of finding relevant records in the National Archives (where the RG10 Indian Affairs records are housed), and presenting a report on the findings of this study.  The major findings of the "Holmes Report", can be seen online here.  I am guessing that this may have been a privately commissioned document not for "public consumption".  Their website indicates that most of the publications they produce are confidential.  Hence, for unknown reasons, it is possible that someone took it upon themselves to upload the report to the Internet.  Joan Holmes & Associates is a large, Ottawa - based, firm specialising in conducting research pertaining to First Nations, matters.  Her team consists of over 20 individuals, with varied backgrounds, and offers comprehensive services.  See their website here.

As someone who has researched these same files and many others at the National Archives, it is my opinion that the report by Joan Holmes includes data that is valid and pertains directly to the land claims now before the Courts. 

First I will present the conclusion of Holmes, followed by excerpts from the relevant documents.  All of these records are provided with suitable RG10 reference tags which would allow anyone at large to verify each and every one of them, should there be a wish to contest any for one reason or another.

The conclusionThe Elgin Proclamation of 1850, which extended the provisions of An Act for protection of Indians in Upper Canada from imposition, and the property occupied or enjoyed by them from trespass and injury  to Indian lands in Upper Canada, indicated that the land reserved to the Six Nations of the Grand River was limited to land in the Townships of Tuscarora, Oneida, and Onondaga and a 200 acre block in Eagle's Nest, Brantford Township. Similarly, the report of the Commissioner appointed to investigate Indian Affairs, tabled in 1858, showed that the lands reserved for the Six Nations of the Grand River did not include any land in the Township of Brantford with the exception of the 200-acre block. These 1850 and 1858 documents indicate that all of the other land in the Haldimand tract, which would have included the Johnson Settlement, Eagle's Nest and Oxbow tracts, had been surrendered by the Six Nations prior to 1850 (p. 9).

The events of the following years reflect the shifting tides of opinion of the Chiefs, basically changing their minds and reversing or altering previous decisions.

1841:  Holmes provides information equivalent to what the present author has included above. 18 January 1841 can be considered as the key date initiating the series of amendments and culminating in a full Surrender on 18 December 1844 for all but the Burtch Tract lands and any outliers, all of which were fully addressed by 1848 and capped off by the Land Inspection Returns and Township surveys of 1845, and Lord Elgin's Report of 1850.

1843:  Two years after making the original surrender of land, the Chiefs, upon discussion and reflection, decided that they would like to make an amendment to the original provisions.  As a result, the Committee of the Executive Council noted that the original reservation was to have consisted of 20,000 acres and that the petitioners were now asking for over 55,000 acres composed of lands on the south side of the Grand River, along with the Oxbow tract (1,200 acres), Eagle's Nest (1,800 acres), the Martin tract (1,500 acres), the Johnson settlement (7,000 acres), and a church lot in Tuscarora. Nearly all the lands in the Oxbow, Eagle's Nest, Martin and Johnson settlements were said to be in the possession of White settlers under titles given by individual Indians (p. 10).

1844:  Here the Chiefs, again after many days of consultation, From this answer they unanimously recede and therefore agree that the same be sold.  The chiefs further desire that there be reserved at or near the Mohawk School two Hundred acres of land for the use of the said school so that the Scholars may then be Ensured agricultural pursuits. [Located in the Eagle's Nest, Brantford Township] ....... They also desire that the Indian cleared lands on the north side may be exchanged for those on the south side thus recompensing the possessors of improvements from Burtch's to Lot No. 72 on the River. [Located along the Grand River below the Oxbow and adjacent to the boundary between Brantford and Tuscarora].  Holmes added the brackets in accompanying information.  The date of the Council meeting was 18 December 1844 - it should be considered as the correct date of the Surrender of all lands outside the boundary of the present day Six Nations Reserve.

Furthermore, The Six Nations are desirous that 3,600 acres of land may also be reserved for the Tuscarora Tribe on the north side of the River in the Township of Onondaga in and around the Church and mission establishment of the New England Companies provided that such Reserve may not be prejudicial to their reserve on the south side the River as here on desired (p. 12).
The signatures of 45 Chiefs are appended to the above documents, all being certified as eligible signators by Thorburn.  In the accompanying Minutes of the meeting of the Chiefs in Council, 47 signatures are attached.  Five days later, in the presence of David Thorburn and James Winniet, 45 Chiefs were present and affixed their signatures to the Minutes taken at that time.  Here Holmes concluded that, It is my opinion that the report of Thorbum, signed by the chiefs and the minute of the two Council meetings show that the Council was properly called, time was given for consultation and deliberation, an interpreter was used and the document carefully reviewed before signing.  In summary, The document indicates that the Six Nation Chiefs in Council agree to have the Township of Tuscarora set aside as their reserve, along with a reservation of 200 acres at or near the "Mohawk School", and a reservation of 3,600 aces in Onondaga Township on the north side of the Grand River for the Tuscaroras. In addition they wanted to retain a range of lots from Burtch's Lot to Lot 72 (p. 14).  The Chiefs had, unanimously recede and therefore agree that the same be sold is the terminology found in the Council Minutes.  Also included are procedural details such as the reading paragraph by paragraph of each surrender or decision by the interpreter, Jacob Martin, who functioned in this capacity as early as the 1830s and appears to have been well respected and trusted by all sides.

1845:  The primary outstanding matter was the Burtch Tract.  According to the Government, The Governor General regrets to learn that the chiefs still desire to have induded in their proposed Reserve the land in the Township of Brantford between Burchs [sic] Landing and the lot 72 on the
River in Tuscarora upon which there are so many settlers the value of whose improvements will amount to a considerable sum and whose removal if it should be practicable which is at present
doubtful cannot be effected without causing very general dissatisfaction amongst them and a heavy expense upon the funds of the Tribe
(p. 15).

Sixty chiefs were present at a Council meeting of April 8, 1845. At that time they indicated that they had deliberated extensively and receded from their former position regarding the 3,600 acres on the north side in Onondaga Township except for a tier of river lots beginning at lot 45 and running to their council house which was on Lot 60 or 61 (p. 16).
The next part has the most direct relevance to the lands in the vicinity of Caledonia.  The Council met again on September 17 and 18, 1845. Sixty-six chiefs were in attendance on September 17. The following is recorded,
... After much time spent in discussion, [illegible word] the submission it was finally resolved [illegible word or words] reserves should consist of the lands adjoining, the tier of Lots on the west side of the Plank road in the township of Oneida and the whole of. the Township of Tuscarora and such Lots or portions in the Burtch tract in the Township of Brantford as the White settlers thereon could not on an Examination (before the Chiefs in council at this place) shew that they had an equitable claim.
It is critical to note that the lands west of the Plank Road which are being referred to here are those which presently adjoin the consolidated reserve, those lots bordering on Tuscarora Township.  There has never been any question about these lands, but the description does not refer to the lands in the rest of Oneida Township bordering the Plank Road or elsewhere - only what is on the present day Reserve.  The above also included the following clause:
And that in the said Township of Brantford at the Mohawk Mission School Two hundred acres and
further in the Township of Onondaga a tier of River Lots from forty five to Sixty one inclusive.
Holmes concluded that, Lands in the Township of Tuscarora, 200 acres at the Mohawk mission
school, and lots 45 to 61 in Onondaga were requested for reservation, as previously indicated. Lands in Oneida Township had been added and the Council had indicated consent to reserve only the portions of the Butch tract on which settlers could not establish a legitimate claim
(p. 16).
More amendments were in the offing as things were fine tuned so that everyone would be content with the surrenders.
1846In February 1846 the Six Nations Chiefs sent a lengthy petition to the Administrator of the Government in which they acknowledged that they had surrendered specific lands subsequent to October 1843, including lands in the Oxbow, Eagle's Nest and Johnson Settlement.

Thorburn reported that, Your Excellency's Petitioners were induced to surrender for sale all their land on the South side of the Grand River situated between the Bridge at the village of Caledonia and the Townships of Dunn; and also tracts of their land of considerable extent in Martin's settlement, the Ox-bow, the Eagles' nest and Johnson's Settlement (p. 19). 

Furthermore, another description described the lands to be reserved as of 1846,

In the Township of Oneida, from the Tier of Lots on the West Side of the Plank Road to the boundary line of the Township of Tuscarora, and the whole of the Township of Tuscarora, and a parcel of 200 Acres lying adjacent to the Mohawk Institute, in the Township of Brantford, and on the North side of the Grand River, in the Township of Onondaga, a tier of River Lots, from No. 61 to 45, .both inclusive.. (p. 20).

If there is any fuzziness in the understanding of what the Chiefs meant in relation to Oneida Township, this can be addressed by referring to the Land Inspection Returns which I discussed in length in a previous blog, where the survey and descriptions show that the only lands reserved here were in the tract West of the Plank Road, where the Reserve exists today. All other lands, except those occupied by individual Indians, were surveyed and Crown grants given to purchasers.

1848:  The lands at the Burtch Tract still remained something of a thorn for the Chiefs.  Finally though, the Chiefs relented to the argument that it was in their best interests to grant the Burtch Tract, primarily because the compensation of the tenants then living on the land would seriously compromise the funds of the Six Nations.  So, At the Council meeting of March 8, at which 31 chiefs were present, Commissioner David Thorbum relayed a message stating that the "governor general ... is pleased to accede to the request for a deed confirming the Reserve to the Six Nations not including the Burtch tract (p. 20).

Thus, all were in agreement with, His Lordship in saying they might have 55,000 acres; evidently meant if such could be had in conformity with the request of the Council, that their settlements should be entirely Indian and compact. This has been done as far as existing circumstances at the time would permit & a compact settlement could only be given from the west side of the tier of Lots on the Plank road in Oneida stretching westward to the Line separating the townships of Tuscarora from the Burtch tract in Brantford ..... (p. 21). 

As to Caledonia:  Hence the intention was to reserve only those lots of land in Oneida from the west side of the tier of lots behind the Plank Road.  This does not include the lots on the Plank Road, only those beyond the six lot deep tier ending at the present day Reserve in Oneida.  I am not sure how much more clear the records have to be to allow Six Nations to understand that the Douglas Creek Estates property was ceded in 1841, and further described in various documents (be they the above or the Land Inspection Returns and survey records or what is on title in the Haldimand County Land Records Office).

As to the Burtch Tract:  Since the Burtch Tract is also such a contentious matter at present, it is noteworthy that again, on March 25 [1848] they [Six Nations Chiefs in Council] agreed to the sale of land in the Burtch Tract, Having.thus surrendered to Her Majesty for sale the Burtch tract of land in the manner set forth the council desire that no further surrender of any portion of their Land take place within the declared general Reservation in Oneida Tuscarora and Onondaga tract that the same be confirmed by Deed to them and their posterity for ever (p. 22).

1850:  The final description of the entirety of the reserved lands is found in proclamation of the Governor General for Upper Canada, Lord Elgin's Proclamation of 1850  (Statute of the Province of Canada, 13 & 14 Vict. Cap 74) for protection of Indians in Upper Canada from imposition, and the properly occupied or enjoyed by them from trespass and injury, which had been assented to in August 1850. Elgin's proclamation specifically extended the protection of Sections 10, 11 and 12 to Indian lands in Upper Canada including the following lands in the Haldimand Tract:

... certain tract or parcel of land, situate in the Township of ONEIDA in the County of Haldimand ... comprising lots numbers one, two, three, four, five and six in the first, second, third, fourth, fifth and sixth concessions respectively of Oneida .. and also, River lots numbers one, two, three, four, five, six, seven, eight, nine, ten, eleven and twelve in the same Township. ... the whole of the Township of TUSCARORA .. Also, to that certain parcel of Land containing Two Hundred Acres more or less, adjacent to the Mohawk Church, and known as LOT NUMBER FIVE, in the Eagle's Nest, in the Township of BRANTFORD, in the said county of Wentworth. ... Township of ONONDAGA ... east of Fairchild's Creek, known as River Lots numbers forty-five, forty-six, forty-seven, forty-eight,
forty-nine, fifty, fifty-one, fifty-two, fifty-three, fifty-four, fifty-five, fifty- six, fifty-seven, fifty-eight, fifty-nine, sixty, sixty-one in the third Concession, of the same Township (pp. 22-3).  A sketch accompanies the above description.  I have not seen the original documents here.  The original with various attachments including a map, is the foundation of the Indian Land Registry system and thus Federal Government authorities could presumably produce this document, and preferably publish it so there will be no questions left hanging about the series of surrenders during the 1840s.

Conclusion of HolmesIt is my opinion that the historical documents cited above dating from the 1840s, indicate that the Six Nations Chiefs in Council expressed their intention to reserve particular lands for their exclusive use and surrendered the remained for sale. By February 1846, they had agreed to allow the sale of lands in the Martin's and Johnson Settlements, Oxbow tracts, and Eagle's Nest, with the exception of a 200-acre block variously described as being in the vicinity of the Mohawk mission or school. In 1848 they finally agreed to the sale of the Burtch Tract. The Elgin Proclamation of 1850 appears to accurately describe the lands that the Six Nations Chiefs in Council had resolved to reserve for their exclusive use as of 1850. The lands not intended for reservation were to be sold (p. 25).

In my opinion, there is absolutely no wiggle room.  The above description is the extent of the reserved land as negotiated by the Six Nations and representatives of the Government. This is entirely supported by the attached list of documents.  The documents have been assembled in a very thorough and comprehensive report by Holmes who has sorted through the documents to arrive at what can be the only conclusion based on factual evidence.  As Hornell has stated, since Lord Elgin's report was done with the approval of Queen Victoria (the Crown), or it would not have been submitted at all, then the Crown was exercising its legal mandate, not disputed by Six Nations, and so the terms of the Proclamation reflected the agreement of all parties (p. 11).  Hence the giving of a Crown deed in 1848 for the parcel upon which the Douglas Creek Estates is situated, and registering it on title in the Land Registry Office, is entirely consistent with all of the evidence.  The property indeed belonged to Henco Industries Ltd. until purchased by the Provincial Government.

It seems evident that the following land claims, based on the above evidence, have no support in fact:  Claim 7, 8, 9, 11, 12, 13, 14, 15, 16, 18, and 21 as described in the booklet of the "Six Nations Lands & Resources" branch of the Six Nations Council.  See here for this document.  Some of the other claims, relating to land and resources, deserve a closer inspection.  I will explore each of these in later blog postings.

Any changes since the date of 1850 must be considered, but this rules out most of the present land claims being asserted by Six Nations.  Were it not for the efforts of people such as Holmes, willing to sift through mountains of old documents contained within the vast collections of the Indian Affairs Papers, we would forever be faced with those who would assert their beliefs as reality and the truth would be sacrificed.  The work is unassailable and the Six Nations will eventually have to face facts.


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