Saturday, 18 January 2014

False "Treaty Rights" Claimed by Six Nations - Developers and Others Take Note

The most recent issue of Turtle Island News (15 January 2014, p.7) included an article, Treaty rights flexed in HWHA harvests, 70 deer taken.  Here the reporter quoted a representative of the Haudenosaunee Wildlife & Habitat Authority (HWHA), who stated that the most important thing to come out of the annual deer harvest in Dundas, St. Catharines, and the Royal Botanical Gardens in Burlington conducted by Six Nations bow hunters was actually not the meat that can be distributed to the Longhouses for ceremonies and to feed those in need - which I thought was the point of permitting Six Nations to participate in a cull of deer in these locations.  According to the HWHA representative, what is of greatest consequence is that Six Nations were able to "flex" their "treaty rights".  So the primary goal to be achieved was that, treaty rights were exercised and affirmed.  While some in Dundas and St. Catharines probably believe this fairy tale, there are a growing number of very well educated people in these communities prepared to do their homework, and publish their findings to the Internet.

I have been harping on this subject for some time (even as recently as a few days ago, noted here), but it is going to take probably years, and a Court case, to get the message out to the general public.  As it stands, the majority of developers and others still believe Six Nations when they talk about treaty rights and "obligation to consult".  The public needs to know that Six Nations are either lying, or they are very sadly mistaken.  I will come up with a bottom line here, at the end of this post, because of my strong belief in, "don't bring me problems, bring me solutions".

As I have stated, even recently, if you ask someone at Six Nations about the name of the treaty which gives them these perceived rights, you will probably get a blank stare or an evasive answer.  Many at Six Nations know that some members of the public are "on to them", and know that the treaty to which they refer as documenting their "rights" is fraudulent.  It is an embarrassment, and those in the know would likely rather not discuss the inconvenient details and keep things in the generality arena.  As long as someone does not bring forward a formal challenge, they know that they are safe and can depend of precedent and two unfortunate Court rulings by judges who appear not to have viewed the primary evidence, only transcripts which obfuscate rather than clarify.  Also the Provincial Government, who, if they are retreads from the McGinty era, are dinosaurs who would do anything possible to placate Six Nations, even if it meant ignoring the evidence.  So for the moment those at Six Nations, such as the Haudenosaunee Development Institute, can hide behind a smoke screen.  What they will soon realize is that smoke is ephemeral and will disperse, showing what has been covered over or disguised.  The agent in this case will be a collection of facts that paint a detailed picture of the truth.

As noted elsewhere, I have sifted through the vast collections of the Indian Affairs (RG10) Series at Library and Archives Canada for the original copies of census records, land deeds, surrenders and surveys, as well as all of the Six Nations Council Minutes.  Also accessed have been the survey records (all historical maps and survey diaries pertaining to the Grand River Tract), and Indian Agent notes and diaries at the Archives of Ontario.  Also explored have been the records at the County Land Registry Offices in Ontario.  These are only a few representative examples of the work completed in Canada.  Then there is the work at the archives in Albany, Cooperstown and New York City; plus the local archives in Upstate NY.  If anyone has done more work in these collections, I salute them (as I have done re Joan Holmes & Associates).

As a function of this study, I am in a position to assess claims such as "treaty rights", and ask the obvious question - "what treaty is it you are speaking about"?

A few examples of those impacted by the improper use of the term "treaty rights" include:

1)  Federal, Provincial and local goverments.
2)  Land developers.
3)  Hydro One.
4)  Power companies constructing wind turbines.
5)  Archaeological consultants.
6)  Conservation agencies.
7)  The taxpayers of Canada.

It is almost certain that the "treaty rights" are being claimed via the Nanfan (Fort Albany) "Treaty" of 1701.  This is a fraudulent arrangement since the Five Nations knew that as of June 1700 they had no further claim on the land in what is today Southwestern Ontario, subsequent to making peace with the French allied Ojibway (Anishinabe) groups, in particular the Mississauga.  The Five Nations tried to assert "ownership rights" by establishing 8 village sites on the north shore of Lake Ontario beginning about 1681.  By 1696 all were destroyed, and the Iroquoian people killed or forced back to their homeland in Upstate NY.  Thus it was presumptuous and fraudulent to negotiate for lands that they in fact did not possess, or hold any claim to by whatever rationale one might wish to apply.  It was Mississauga land in 1701, as it was in 1784 when Governor General Frederick Haldimand purchased the lands along the Grand River (Haldimand Tract) from the Mississauga to offer as a home to the Six Nations.  Also, based on the Treaty of Ryswick of 1697 the English acknowledged the right of the French to lands on the north side of Lakes Ontario and Erie.  This agreement stood until the Treaty of Paris in 1763, when it became an English possession.  So the Nanfan Treaty is actually a meaningless document, where the Five Nations yield to the King lands that they do not own or possess in any manner, but are actually under the direct ownership of the Mississauga, and the sovereignty of the King of France.

The document is not a "treaty", it is a "request" by 20 Five Nations Chiefs that the British Crown ("our great Lord and Master the King of England") exercise sovereign rights over the lands used as the "beaver hunting grounds", which were obtained "four score years agoe" (1621 would be in error) "totally conquer and subdue and drove them out of that country".  In fact the "them" were the aboriginal former occupants, who were conquered by what amounted to an almost complete genocide.  These included the Huron / Wyandot, Petun, Attiwandaronk, Erie, and Wenro (circa 1641 to 1657).  All that the Five Nations asked in return was to be able to use this land for hunting (no requests as to fishing are noted).  The document has the totems (clan symbols) of each signator (I recognize the names of all 6 of the Mohawks whose names appear), and a mere listing of the White people who were present, including Robert Livingston the "Secretary for the Indian affares".  The Governor attested to the names of the Whites who were present, but he did not use his own personal seal, nor any official government seal, and could not have even consulted the New York legislature since as acting Governor, Nanfan had dissolved it before the instrument was signed (19 July 1701).

A local researcher ordered a copy of the "treaty" (which was eventually located in England), with photographs of the front and the back of the parchment - which shows the context of the document and how it does not in any sense meet the standard of a "treaty" - instead it is a piece of paper gifting land to the King, with the hope that he will chose to confirm to the Five Nations a right to hunt beaver here.  The wording is, it is hereby expected that wee are to have free hunting for us and the heires and descendants from us the Five nations for ever.  There is a big difference between "expected" (i.e., hoped for) and something stronger like, "we require" which does not appear at all.  Robert Livingston was charged with the responsibility to take it to England to present to the King.  There is no evidence that the King or any of his inner circle ever saw it, and the English legislature never ratified the "treaty".  There is no Privy Council seal, nothing at all to make it into an official document.  Hence the request for confirmation of hunting rights amounted to nothing.  In essence the document was simply ignored, and placed into storage.

Anyone impacted by or merely interested in this subject can be directed toward a number of very well researched studies - all of which reach the same conclusion.  These include:

1)  Garry Horsnell - "Short History of the Six Nations", with a discussion of the Nanfan Treaty, see here.

2)  Alex Westwood - "Haudenosaunee deer hunting in Dundas Valley - history and legal aspects", see here.

3)  Thomas Kennedy - "The Nanfan Treaty 1701 - Hoax of History" from Alex Westwood's blog, see here.

4)  Alex Biegalski - "Haudenosaunee deer hunting in Dundas Valley - a 'treaty right' or a fraud?", see here.

5)  Alex Biegalski - "Conveyance of lands by the Native American Chiefs of the Five Nations", see here.

6) DeYo - For an earlier look at this topic by the present author see here.

Thomas Kennedy does not pull any punches in the above "Hoax of History" paper.  He concludes that the Nanfan "Treaty", does not reflect true historical facts. It is instead, a false term fabricated and used for fraudulent political purposes.  Furthermore, All agreements and protocols based on this hoax should be immediately challenged and revoked.  Alex Biegalski, the author of the "'treaty right' or fraud'" article sates that the so called "treaty" is a,  fraudulent interpretation of historical facts and a legally invalid claim of "treaty rights" that was, never intended, recognized or confirmed by the Crown as a valid treaty.

In my opinion, if any one of the parties impacted by the "treaty rights" set out a Court challenge in the Superior Court of Ontario against these purported "rights", the whole sordid business would topple like a house of cards, and most importantly, justice would be served. Frankly, however, it will be necessary to address two earlier Court cases, specifically Regina v. Ireland and Jamieson 1990, as well as Regina v. Barberstock 2003, which unfortunately did not have the original document to use in the respective decisions.  The upshot is that both judges concluded that both Robert Livingston and John Nanfan signed the document, and hence the agreement is valid. 

The matter has to be brought back to Court, but this time with the full weight of the entire body of evidence. I have no doubt as to what the outcome will be, but it will be necessary to show why the earlier judges were led to made some unfortunate conclusions, which rulings can be amended by virtue of the evidence now available.  The problems in past Court rulings were the facts that:

a)  Only a transcript of the 1701 document was then available.  The original document (photographic copies now being available locally) does not show what the judges claimed as fact.  Robert Livingston is merely listed (no signature), and Nanfan only signed attesting as to who was present on that occasion as witnesses, and to the authenticity of the document.  Nanfan included no seal, and no title, and nothing but his name.  When the document reached England it was given no further consideration.  There is no Privy Council seal affixed to it, and nothing at all added by the Crown that would give it any weight as a legal document.  It appears to be an item of historical interest only.

b)  There was apparently no formal historial research revealing a chronology, and key details showing it was not a treaty of any description.  In short, by 1701 when the document was signed, the Five Nations had been entirely driven from this land, the Mississauga owned it by right of conquest, and thus the Five Nations could have no legitimate claim here - making the document a fraud.  The document is nothing more than a surrender of any rights to land ownership, with a request to the King to be permitted hunting rights (the request was never confirmed by the Crown).  In the recent ruling by Ontario Superior Court Justice Harrison Arrell (November 2010), he was privy to a report by respected historical researchers Joan Holmes & Associates, which was used in arriving at a firm conclusion.  In my opinion, comprehensive research done by historians can provide evidence useful to judges in arriving at a fully informed decision.

c)  I would recommend citing a critical legal principle which will almost certainly seal the case, bolstering the hard evidence above - namely "nemo dat quad non habet", which I discussed in my earlier posting.

The present author agrees with the above assessments by each of the authors, and would add that all agreements between Six Nations and various groups (e.g., wind turbine power companies) be considered null and void, and all monies paid based upon the belief that the Six Nations had valid "treaty rights" should be returned to the group or individuals who have unnecessarily paid money to the Haudenosaunee Development Institute, the Mohawk Workers, the Hereditary Confederacy Chiefs Council, or the Six Nations Elected Council.  If advantageous, these parties could re-negotiate using a different rationale - we now know, and can prove, that "treaty rights" is not a legitimate reason.

Update - The "solidarity" view of many White people to the Nanfan or any supposed treaty and supposed "treaty rights" is seen in a comment by R. Walker to a post on the blog,“Niagara at Large”, entitled, Shorthills Protests are Short on Patience with the Hunters by Six Nations member Karl Dockstader, 13 November 2013. The post and comment can be found here.  Here Mr. Walker states:  

There is a tendency to construct treaties as some kind of paper document and not a living document which is an arrangement between peoples. This arrangement was necessitated when Europeans strayed far from their roots and the two row wampum treaty was long before the Albany treaty. Furthermore, some of us support your inherent rights as first nations and certainly recognize and honour our treaties without any nit picking.

There are in fact noinherent rights of one group of Canadians that trump those of another group of Canadians. This is a far left wing concept which is politically correct at this point in time but has no grounding in objective reality, and therefore the only true feature here is that there are some who would without justification give to Six Nations (who are not aboriginal to Southwestern Ontario) more than the first Loyalist settlers who were generally of German descent. Furthermore, as far as Six Nations are concerned, there are no legitimate "treaty rights" - their lack of aboriginal status, and their lack of any treaty arrangement here are seemingly insurmountable problems.  So apparently the facts and the truth are less important than keeping up a pretext, a solidarity with the beliefs (very convenient ones) held by Six Nations.  So for some White people for whom Six Nations and Native people in general can do no wrong, the facts and the truth are quite irrelevant, they are apparently just a form of "nit picking".



  1. DeYo: A very nice summation of the "treaty rights' argument of false claims repeatedly "pulling the wool over" all those from the most naive to those who have so many other agendas where the facts and truth are unwelcome strangers; as you might guess the scenario was all too familiar here in Niagara with the Short Hills "hunt" which could not be called a hunt by any stretch of the imagination or reality when the deer were tame enough to eat out of your hand; and neither was there justification for a cull as evidence appeared to be manipulated to show an overpopulation when, in fact, there was none; but then why bother with any clear, objective investigative reporting when the local media were quite content to regurgitate the "treaty rights' rationale along with the "aboriginal right to their traditional harvest" mantra ; of course all of this was aided and abetted by the MNR and representatives at ALL government levels who claimed they could do nothing, except perhaps wish that the deer could be killed somewhere else where protesters were less vocal and demonstrative; and those with differing opinions soon had the "racist card" played against them, not to mention those other "cards of convenience" often used when the facts and open, honest dialogue get in the way, and much to my personal disappointment even the animal rights and conservationist groups failed to do their homework and see beyond the deer hunting issue and realize what was behind the real Haudenausenee agenda; in my ongoing dialogue with them, especially the Short Hills Wildlife Alliance group, I always sensed a strong reluctance to look at historical data and the so-called validity of "treaties" and their legal standing ; they chose, albeit understandably, to focus on safety issues, humane practice of the hunt, and conservation and habitat concerns as well as property rights while largely ignoring the "big picture" which you have described so well in all of your posts here....Stay well!

    1. Hello again, and many thanks for your insigtful comments. I agree with everything you say, although due to my lack of any in depth research, I am unclear as to how many deer need to be culled to maintain a viable and healthy ecosystem. This ignorance aside, it seems that there is a group of us "out there" all on the same page about the "treaty rights" issue, and the need to address it face on. It will never go away, of that all can be assurred, unless something dramatic is done. I envision a large stakeholder who has paid mucho dinero to the HDI and is irritated to learn that there are no "treaty rights" to be respected - none, only adamant folks like the HDI willing to use strongarm techniques to "convince" their opponents as to the "righteousness" of their position. It will not work much longer. I sense a groundswell of opinion shifting toward a "show me the evidence" approach to dealing with alleged rights. But again, we need one of the "big players" to obtain a Court injunction and get the evidence assessed by the Superior Court of Ontario - ending this farce. People are so willing to believe what they are told with the assumption that Six Nations must have treaty rights. Well actually no, and additionally they surrendered all of their lands in the Haldimand Tract by 1849, so the unconscionable damage and behaviour at Caledonia was over land to which they had, objectively, zero rights - all gone by 1844. So when one uses the litmus test of facts and the truth - they have a serious problem to address and ultimately a lot of damage control. DeYo.