The Recurring Themes of Sovereignty and Ownership of the Haldimand Tract: The Relationship Between Six Nations, the British Crown, and Canada

Among the constants that one hears at Six Nations is that "we are a sovereign people".  This is a firmly held belief among many, so one might enquire as to what facts exist to prove that in effect the Six Nations Reserve is a territory within a territory, and that the relationship between Six Nations and Canada is one reflecting independent nation states.  Since the matter is so pervasive, and is used to justify many questionable acts at Six Nations, it needs to be scrutinised to assess the validity of the claim.  An issue complicating the matter is that the question of whether the Six Nations or the Crown "own" the Haldimand Tract, and this is inexorably intertwined with the issue of land claims. At present there are 29 claims that have been registered with the Federal Government by Six Nations Lands and Resources.  The focus of the present posting, however, is on the question of sovereignty.

In an earlier blog posting I gave a preliminary introduction to the subject, with the focus on the symbolic badge of the claimed sovereignty, the Two Row Wampum (Guswhenta), as seen here.

The concept of sovereignty is complex, and a general understanding can be obtained here.  In a nutshell, Six Nations claims independent authority of lands that they consider to be their territory.  In recent times the most adamant and radical element has asserted that not only does this "authority" extend over the present day Reserve, but also the Haldimand Tract (via the Haldimand Proclamation of 1784), and some even claim a hegemony over all of Southwestern Ontario (via the Nanfan Treaty of 1701).  Since the Nanfan Treaty is being used by Six Nations to claim a blanket right to be consulted (and paid) for any development in Southwestern Ontario, it will be instructive to examine the wording of this document from the viewpoint of sovereignty.  Here the Five Nations representatives, doe for us our heires and successors absolutely surrender, deliver up and for ever quit claime unto our great Lord and Master the King of England.  The King is also referred to as, our souveraigne Lord the King William the third.  Further to the general issue of sovereignty, the Five Nations recorded that, wee having subjected ourselves and lands on this side of Cadarachqui lake [Lake Ontario] wholy to the Crown of England.  I am not sure how much clearer a statement of the recognition of the sovereignty of the Crown could possibly be.

In previous blog postings I have attempted to sift through these claims to arrive at something approximating the truth, and in the process have to my satisfaction succeeded in demolishing both of these claims.  What will be important data - wise will be to see what happened historically when Six Nations has taken their claims of soverenity to Ottawa, London or even Geneva to obtain confirmation of their perspective on this contentious issue.  Bear in mind that by accepting the assertion of sovereignty, it would mean that Six Nations and Canada are on an equal footing, with neither having "dominance" over the other.  However odd this may sound to outsiders, this would in fact mean that people in a territory of slightly over 20,000 people would have an equivalent but independent status to those in the surrounding territory of about 32,000,000 people.  Well, I guess there is tiny Litchenstein or Monaco in Europe, so perhaps it is not an altogether outlandish proposition on this basis alone.

In the minds of many Six Nations, their relationship is with the historical ally, the British Crown.  Thus when they make no headway with Canada, petitions will be sent to the entity with whom the Six Nations have had a long and formal relationship.  It does make some sense in that it was in effect the British Crown was the other party involved in key agreements such as the Two Row Wampum, Covenant Chain, Proclamation of 1763 and the territorial agreement of 1768 - all the way up to the series of surrenders in the 1840s.  Canada became an independent country with a Constitutional Monarchy at Confederation in 1867, and the powers that once involved the British Crown directly were transferred to Canada - who now have jurisdiction.  Thus in a legal sense, it was the Government of Canada that Six Nations had to deal with after 1867, although this fact has not stopped individuals or groups from approaching the British Crown to settle their disagreements with Canada.  The result has always been the same.  Some historical perspective is needed here.

Although Britain knew that they needed to tred lightly after their conquest of New Amsterdam from the Dutch in 1664, they never held any illusions about their own sovereignty by right of conquest, it extended as far as the French settlements along the St. Lawrence River and west to the French settlements of the Ohio Valley.  At various times official maps of their dominions would be published, including their claims at the time of the American Revolution.  Maps from 1774, immediately prior to the Revolution, show that the British concept of dominion included all the lands of the Six Nations.  In none of my extensive readings of the history of the years leading up to the American Revolution have I seen a document which unequivocally acknowledges Six Nations sovereignty.  Nothing.  What one will find are documents where the British and Six Nations agree to be allies against the French or the Americans, but the British Crown is always referred to as, "our Great Father the King" and such expressions.  High Government officials, even the Governor or New York or Pennsylvania, as well as the representatives of the Crown such as Sir William Johnson were referred to as "Brother", and those one step down the ladder such as the Delaware, were "Nephews".  Everything appears to reflect the British perspective that they have an unchallenged right (via conquest or treaty) to the lands wherein the Six Nations resided.  There can be little wiggle room here, the Six Nations recognized the King of Great Britain as their sovereign - but every so often the matter must be revisted, perhaps because a new generation has forgotten the Court rulings that have been filed in answer to this question!

The matter of sovereignty is found embedded in various publications such as Elizabeth Tooker, The League of the Iroquois: Its History, Politics, and Ritual, in William C. Sturtevant (Ed.), Handbook of the Indians of North America, Vol. 15, Northeast, Washington D.C., Smithsonian Institute, 1978.

The British wanted to ensure that all understood what their claims were, and as early as 1684, at a council between the Five Nations (the Tuscarora had not yet become the Sixth Nation) held at Albany they demanded that the Five Nations cease their attacks on Virginia and Maryland, and here the British, claimed the Iroquois as her subjects.  Tooker did express the opinion that, however, it is doubtful that the Iroquois fully understood what the British meant by this assertion of sovereignty.  In more formal treaties, such as the Treaty of Utrecht of 1713, the Iroquois were acknowledged to be British subjects (p. 432).

The Haldimand Proclamation was issued in 1784, providing Crown purchased land on which the Six Nations were given a tract of land on which they could settle.  Never is the words granted, deed in fee simple, or any such expression appear in this document under Haldimand's own personal seal.  It has been described in numersous Court cases (see below) as little more than a "location ticket", or a document that gives permission to occupy lands. 

In Weaver's article in the same publication as noted above (Sturtevant), and discussed at length in the previous blog posting, we spring ahead in time and place to 1793 and the Haldimand Tract.  Governor Simcoe maintained that, The Crown held that the land was not alienable by the Indians and that the Proclamation did not recognise political sovereignty of the League.  In 1793, determined to reinforce the Crown's trusteeship interpretation of the title, John Graves Simcoe, lieutenant governor of Upper Canada, drafted the Simcoe Patent which stipulated that all land transactions of the Six Nations had to be approved by the Crown (p. 525).  The Simcoe Patent did include the great seal.

Thus the British government authorities and the British Crown had from the earliest days of their take over from the Dutch, maintained that the Six Nations were subjects of the Crown.  This relationship, however, did not interfere with the concept of the Six Nations being allies of the British in times of War - meaning that they would side with and support the British cause against the French or the American Rebels.  However after the War of 1812, even this concept of allies had withered away.  Being allied in a common cause does not imply sovereignty, although many today at Six Nations appear to see the two in a conflated way.

Over the years at Six Nations, the Hereditary Council attempted to assert their rights as a sovereign people.  For example, in 1830 Council denied that the Indian Act applied to them, since they considered themselves to be a sovereign nation, however, the government has consistently maintained that the act applied with no exceptions to the Six Nations of the Grand River Iroquois (Weaver, 1978, p. 526). 

A ruling in 1835 speaks directly to the issue.  Here in Jackson v. Wilkes, Upper Canada King's Bench, Judges Robinson, Sherwood and Macaulay provided the following opinion in relation to the Haldimand proclamation: We have ascertained that there was a great seal in use in the Province of Quebec in 1784, when the instrument of General Haldimand bears date; that grants of land, of which few were made by the British Governement before the year 1795, were made by letters patent under the great seal, and that had been uniformly held in the courts of Lower Canada that grants of waste lands of the Crown would not be made in any other manner.  The ruling goes on to say that since the great seal was not used in the Haldimand document of 1784, those to whom he granted the land cannot presume to possess any interest byond that of a mere licence of occupation [151/268] - see here.  The matter was supposed to have been settled for once and for all in 1839 where, The J.B. Macaulay Report, 1839 (Vols. 718-719) contains the seminal judgement denying political sovereignty to the Six Nations (p. 536). 

Despite the clearest possible statements at various points in time by both the British Crown and the Canadian Government, the Six Nations Hereditary Council continued to push the issue of sovereignty, culminating in what to Canada was a slap in the face when in 1923, the Cayuga Chief Levi General Deskahe travelled to London to present their case to the British Crown, and to Geneva to assert sovereignty before the League of Nations. Needless to say, he did not make many friends among either the Canadian government or the "progressive" elements on the Reserve who wanted the Hereditary Council removed and replaced by an elected system where one of the criteria for membership in council was education.
The sovereignty issues continued to surface, often embedded in the protracted continuing acrimonious disputes between the elected and hereditary councils and their supporters.  As part of the case involving Logan v. Styres et al. in 1959, addressed by what was then known as the High Court of Ontario (Judge King), the judge ruled on the question of sovereignty as follows:

The purpose of the Simcoe Deed would seem to be to confirm the grant already made by the

Haldimand Deed. In each of these deeds it is made clear that those of the Six Nations Indians

settling on the lands therein described do so under the protection of the Crown. In my opinion,

those of the Six Nations Indians so settling on such lands, together with their posterity, by

accepting the protection of the Crown then owed allegiance to the Crown and thus became

subjects of the Crown. Thus, the said Six Nations Indians from having been the faithful allies of the

Crown became, instead, loyal subjects of the Crown [4].  See here for the complete document.
More recently, in 1974 the Supreme Court of Canada rules in the Isaac et al. v. Davey et al. case as to "ownership" of the Haldimand Tract.  In the ruling the Judge stated that, I have concluded that the tract in question is vested in the Crown.  The original report can be seen here.  In this said document, where members of the Elected Council took those of the Hereditary Court to Court for interfering with their right to govern Six Nations, The allegation of national sovereignty was made in this very action but abandoned at trial [12].

In the Amicus Report of 2009, submitted to Justice Harrison Arrell of the Superior Court of Ontario, relating to an injunction being sought by the Corporation of the City of Brantford, they spoke to the matter of sovereignty - see here.  Their opinion was recorded as, “Canadian courts have held that the Haldimand Proclamation and the Simcoe Patent essentially conferred upon the Six Nations personal and usufructuary rights and not a conveyance of land in the English sense”.  Nothing was found that would support the Six Nations case, other than their beliefs.

Fast forward to 2013 - nothing has changed - despite the ruling of the Supreme Court of Canada.  It does not matter a whit how many judgements have failed to in any way offer encouragement to the belief that the Six Nations are a sovereign people, a large cadre of individuals continue to press forward with the issue.  This is seen across a whole spectrum of issues.  For example at one time the RCMP was the official police force at Six Nations, to later be replaced by the Ontario Provincial Police (OPP).  In recent years the OPP presence has proved to be a highly divisive topic, and at times I have seen signs in the windows of homes at Six Nations (and Tyendinaga) to the effect that the OPP is unwelcome - although stronger words were used.  So today there is a Six Nations police force, trained by the OPP, and who cooperate with the OPP, but the OPP dare not set foot on Six Nations as their jurisdiction is not recognised, and officers take their lives in their hands by being there - especially during times where some confrontational issue is front and centre (e.g., during the Caledonia crisis).

Despite the facts, the sovereignty issue is not going to go away.  It is part of the ingrained identity of Six Nations.  Hence I don't know what the answer is here.  To my understanding, given the facts, there is no reason why the people of Six Nations should not be considered as Canadian, with all the rights and responsibilities this entails - plus of course the entrenched "rights" mandated by the Indian Act - perks that are not available to those who are not registered members of a First Nations community.  The matter is aggravated by a group of White youth whose adolescent ardour has no time for an analysis of the facts, only the belief that the Six Nations are a downtrodden people, under the Colonial thumb of Canada, and need help in fighting this colonialism.  Although misguided and delusioned, these groups make their presence felt at those times when there is some confrontation between Six Nations and the local communities, or with the Federal Government over some matter.  The groups involved in this support network are anti - establishment, and "solidarity" with the Six Nations is merely a pretext to espouse their Marxist inspired philosophy.  See here for the website of  Six Nations Solidarity group, and here for related groups.  As many Six Nations now know, these are dangerous groups with a focused agenda, and the support of these White groups can ultimately undermine their cause.

It (should) go without saying that one cannot be a sovereign people if the land base is in fact vested in the Crown of England (now the Federal Government of Canada).  However, around here a well established fact will never stand in the way of a firmly fixed belief.

So while the concept of "sovereignty" feeds the ego of Six Nations, but it does not stand on any legal footing and is doomed to be nothing more than a festering sore.  I can foresee more delegations to London, and other futile efforts to obtain what was never theirs.  Therein lies the problem, the belief does not equate with the facts, however this is not in any way a deterrant to continuing to propagate false "facts" and attempting to obtain support anywhere and everywhere for this distorted worldview.

Updated:  28, 29 December 2013.

DeYo.