Friday, 21 March 2014

Sovereignty and the Fiction of the Two Row Wampum, Treaty Rights and the Fraudulent Nanfan Treaty of 1701, and False Land Claims in the Haldimand Tract: A Summary to Date

This blog has only been "in operation" since October of 2013, so with the passing of five months and 88 postings in this time, what are the topics that have emerged as "favourites", at least in terms of number of views?  Clearly those that strike an emotional chord, including those which delve into controversy, have emerged as the most popular.  The "big three" have been identified and each will be reviewed and expanded with new information and visual support.  With each there is a common thread involving the enormity of the discrepancy between what is asserted by Six Nations (and often believed by the public), and what the factual evidence shows.  A good sense of what perceptions and beliefs are prevalent at Six Nations can be found in reading information in the Six Nations Council website as seen here, and the two local newspapers, namely the Turtle Island News, and the Two Row Times.

So it is time to review what I have written about the facts in relation to three "hot button" topics whose importance at Six Nations cannot be underestimated - the truth has the potential to relegate Six Nations to the status of a "general community" in the Province of Ontario, with few rights and entitlements other than those enjoyed by all Canadians.  There is a huge investment in promoting the "accepted" view of the data - and not questioning what is "already known".  The present author is primarily interested in the truth, the consequences of the knowledge is secondary.

In the following overview, I will include selected key references.  In previous blog postings more extensive referencing has been provided, and the reader interested in delving further into this matter is encouraged to sift through the archives of this blog (relevant posting listed below) to find more detail.  The goal here is to tweak the curiosity of those who have just recently "found" this blog.  My hope is that those who find the evidence sufficient to question the assumptions current at Six Nations today will "spread the word", and allow fact - based evidence to overpower entrenched beliefs such that the truth emerges.

The three most important topics in this context are sovereignty and the Two Row Wampum, treaty rights guaranteed by the Nanfan Treaty of 1701, plus legal rights to land throughout the Haldimand Tract.

1)  SOVEREIGNTYTwo Row Wampum (Guswhenta), the Treaty of Tawagonshi 1613, and the Covenant Chain Agreement of 1676-77:  Many Six Nations claim that they are a sovereign people who had a nation to nation relationship with the British Crown, and since 1867 with the Federal Government of Canada.  Hence a nation within a nation.  It is the view of many that they were and are allies of the Crown and its successors, and as such are independent and thus not subject to the laws imposed by the Government of Canada.  The foundation upon which this belief rests is described below.

An agreement was supposedly made between those of the "Long House" (four signers) and the Dutch of New Netherlands (two signers).  The latter arrived in the Colony in 1609, but had little presence there until 1614 with the establishment of Fort Orange (later Albany).  This "agreement" is supposedly the foundation for all other agreements with European governments, including the Covenant Chain Agreement of 1676-77 enacted between the Five Nations and the British (who captured New Amsterdam in 1664).  The document appears to be a trade agreement, not a treaty.

The present author has blogged about this subject previously.  From the earliest to the most recent postings, please see here, here, and here.

The evidence or facts which are brought forward in support of this agreement is a document dated to 1613 written in Dutch, oral history, and a wampum belt made primarily of white beads, but including two "stripes" of purple beads (the more valuable of the two colours) which form five parallel stripes running the length of the belt.  The topic is of such interest to scholars and local historians that an entire issue of the Journal of Early American History (August 2013) was devoted to this subject.  These articles can be viewed here.

The real question here is whether there was ever a "Two Row Wampum" agreement, and whether, even if it could be proved that such an agreement did at one time exist, it would apply as interpreted by Six Nations today.

First, prior to 1968 a Dutch scholar, a Professor Van Loon, apparently was given a manuscript or document located among the Mississauga of the New Credit (a Reserve with adjoins the Six Nations of the Grand River Reserve) by a Van Loon relative who was supposed to be an Indian Department official (unverified to date).  It was written in Dutch, and dated to 21 April 1613.  It is a trade agreement between the newly arrived Dutch, and the "native inhabitants" (people of the "Long House") signed at Tawagonshi (a hill near what is today Albany). However, recognized experts in the history of New Netherlands and the Colonial Dutch language have examined the document and, with the exception of one respected historian (Venables), found a number of "irregularities".  For example, it is written in a mixture of modern Dutch and early Dutch, with an implement not available in those times.  In what is essentially a consensus, scholars such as Gehring, Starna and Fenton view the document as a fake or hoax.  The provenance of the various copies existing today is largely unknown.  While Van Loon stated that the original given to him was two pages in parchment, no such item has surfaced to date, despite extensive searches in North America and the Netherlands, although photocopies do survive. Van Loon was known to have forged other documents, thereby calling into question the authenticity of the document on that basis alone. 

Also, supposedly scholarly research shows no recognizably Mohawk names found on the document, and the only Native words included are place names in the Hudson Valley. However, I am not so sure.  As seen in the document below there are a wolf, a turtle and what appear to be two bear totems beside which are Indian (apparently Iroquoian based on my experience) names - all presented in a typical format for an agreement or treaty.  The names of these four "chiefs of the Long House" signers are:  Garhat Jannie, Caghneghsattakegh, Otskwiragerongh, and Teyoghswegengh.  The present author independently recorded the names before reading the accompanying article, based on the supposed copy of the original document shown below, and arrived at interpretations very close to the above.  All are consistent with the orthography of Iroquoian names to this day.

It should be noted that at this time the Mahicans were a powerful force in the area and in a state of war with the Mohawk, who would not obtain the "edge" over their enemies until about 1630 or later. It does not make a lot of historical sense that the Dutch would make a treaty of this nature at this time with the weaker of the two contenders (at the time the Mahicans resided in the immediate vicinity and succeeded in keeping the Mohawk from having exclusive or prefered access to the Dutch markets).

The question as to how the Mississauga would have possession of this document and have preserved it, considering their turbulent history since 1613, is important. To be fair though, the descendants of Jacob Brant, son of Captain Joseph Brant who was the most influential Mohawk of all time, reside at New Credit to this day. However there is no evidence that the Dutch had any contact at all with others of the Five Nations at this time, so to say that it was an agreement between the Haudenosaunee and the Dutch is really stretching the credibility of those who have any even rudimentary knowledge of Colonial American history.  At any rate the document, shown below, apparently a photocopy (but conforming to the two page parchment description given by Van Loon), is now in the possession of the Onondaga of Upstate New York, the traditional keepers of the wampum for the Five (later Six) Nations.  The manuscript is truly an enigma!  However interesting this item is, I fail to see any way that a trade agreement between two recent arrivals to New Netherlands, and four native occupants, could be amplified into evidence of sovereignty by the Haudenosaunee.  The tie in here completely eludes my ability to comprehend its significance.



Many Haudenosaunee believe that even if the document is a complete fabrication, this does not diminish the robust oral history connected with the document or the story the document appears to convey.  Oral history is certainly one line of potential enquiry but it tends to be the softest form of evidence due to the fact that human memory is subject to known distortions.  Considering the disruptions in Iroquoia since 1613 with the loss of more than half of the population due to disease and warfare, sometimes removing the keepers of such knowledge from the Mohawk villages, there is scant likelihood that specific details about a puzzling piece of paper will have survived to the present day.  The more realistic scenario is that a story was made up to construct facts useful to the promotion of Six Nations sovereignty - rather than "merely" trade, which is the purpose of the supposed agreement.  The Onondaga's claim that the oral tradition that accompanies the document noted below attests to the validity of the latter.  It is entirely unclear though as to how the information was transferred by the Mohawk to the Onondaga, or how in some very enigmatic way, the Onondaga have kept this information alive and intact for 400 years.  Also one must question how the latter have come to obtain specific information about an obscure item that did not come into their possession until 1978.  Oral history / tradition, is really quite dangerous without supporting evidence since the possibility of "creating a convenient version of history" is an ever present danger.  It is unclear whether the purported 1613 document is an independent source, and whether the story was simply a recollection of what the Onondaga were told when assigned custody of the document.  Since the oral tradition cannot be cross validated with other evidence sources it cannot be taken at face value except by "believers" who are not likely to be swayed by any rational arguments.

I find it very interesting that the Haudenosaunee tradition also includes the following words that seem very "convenient" in light of present controversies - especially since the words stand without support except in belief.  The oral tradition supposedly says that, You say that you are our Father and I am your Son. We say 'We will not be like Father and Son, but like Brothers.' This wampum belt confirms our words. [...] Neither of us will make compulsory laws or interfere in the internal affairs of the other. Neither of us will try to steer the other's vessel."

The third source used by Six Nations to "validate" the concept of the Two Row Wampum is the wampum belt itself.  I have seen the purported original, which is produced by Six Nations on various occasions (e.g., in front of Provincial and Federal Government representatives there to celebrate the Bicentennial of the Battle of Queenston Heights).  It is a belt the width of a large man's hand, comprised of white beads (three rows) and purple beads (two rows), supposedly illustrating the essence of the purported 1613 agreement where two ships or canoes are travelling side by side such that the people in each do not interfere with those in the other vessel, but may interact in ways that are mutually agreeable and beneficial (e.g., via trade).  The "original" belt is apparently in the custody of the Onondaga Longhouse at Six Nations, returned some years ago from the museum which had purchased it from a Six Nations member in the 19th Century - but the details are not clear.  What is seriously lacking is provenance.  The belt is of unknown age and origin.  There are also a number of copies that are claimed to be the "original".  Each one would have to be analyzed as to date.  In my view none seem to have the wear or "patina" one might expect of an object of such antiquity.  Furthermore, wampum is rare to non existent on Five Nations archaeological sites before 1630, so that the belt (or belts) as now exist, generally in excellent condition, are very unlikely to be the original - and it is doubtful that there was ever a belt dated to 1613.  However it is impossible to rule out the existence of a copy that was made for example when the earlier version began to fall apart.  I know of no report that has analyzed the supposed original artifact and offered a good description of its probable age and place of origin.  It would be helpful if for example experts at the Smithsonian Institute could weigh in to provide these answers.  I am guessing that the chance of that ever happening now is remote to zero - Six Nations have too much to lose - there is already sufficient controversy surrounding the artifact.  However, even if one were shown to date to the early 17th Century, two purple rows could mean many things - the detail is so simple and thus open to many different interpretations.  Five stripes of two different colours do not provide sufficient specificity.

Two Row
Clearly there is no general consensus in the matter, although well known scholars tend to see it as a concocted false story with shadowy support from a document and a wampum belt that do not appear to conform to the 1613 date appearing on the former.  We are thus left with an oral history from the Onondaga of New York where the origins of the oral record are also shrouded in uncertainty.  No historian worth their salt is going to put their stamp of approval on the purported validity of this package - which is precisely the case to this date.  So there is a camp of believers and the rest of us who are more sceptical.

One thing that I do not see mentioned is that even if we were to accept the unproven and unlikely version of this controversy, all agree that if anything was ever transacted it was between the Dutch and the Mohawk.  When the English took control of New Netherlands in 1664, any such treaty would be null and void.  First it was allegedly enacted with the Dutch, and second it seems to have involved only the Mohawk, not the full Five Nations (there were only 4 individuals who signed) and thus was at most only a local agreement - the word "treaty" would not apply unless accompanied by the seal of the Crown of Holland or England.  Even if the Dutch were willing to give up sovereignty to non - Europeans (highly unlikely), it is certain that the British Crown would never entertain the concept of sovereignty - in its colonial affairs the Crown is supreme, and all who reside within land they claim are subjects of the Crown.  Since the earliest days the Mohawk have referred to the King of England as their "great Father" which is a tacit acknowledgement of the supremacy of the Crown and their putting themselves under the protection of the Crown.

The Covenant Chain established formally between the Five (later Six) Nations and the British in 1676-77 is an agreement in the same genre as the Two Row Wampum, but I am not aware of instances where it has been used as a pretext to claim sovereignty.  Perhaps the lack of an attempt to use this to claim sovereignty is that it has more validation as to specifics "merely" as to a renewable mutual aid agreement (against common enemies such as France), and as a trade agreement.  The Covenant Chain emerged out of the pre-existing agreements between the Eastern Seaboard Colonies and the Native peoples residing there.  It is more difficult to use as "proof" of sovereignty than the supposed Two Row Wampum "treaty" which is fuzzy and easily open to challenge and various interpretations, and thus can be used in the court of public opinion to sway beliefs.  As a matter of fact, in the renewal of all the various Covenant Chain treaties and agreements the King of England was always recognized as "our great Father" - hardly a term that underscores sovereignty of the Six Nations.  The formally recognized liaison between Great Britain and the Six Nations, the Superintendent of the Northern Department of Indian Affairs was Sir William Johnson who used the term, the Covenant Chain of love and friendship - there being absolutely no hint of any sovereignty of the Six Nations in anything Johnson ever said in his 14 volume Papers and Records collection.

2)  TREATY RIGHTS - The Nanfan Treaty of 1701:  If ever there was a more misunderstood and misused piece of parchment than the "Nanfan Treaty", it has eluded my attention.  For many years people had been basing their assertions about the content and meaning of this document on a transcript found in the published Documents Relative to the Colonial History of the State of New York.  By virtue of this document (none other is cited as evidence of treaty rights in Ontario), the Six Nations claim to have rights to hunting and to consultation over land throughout Southwestern Ontario.  At present this involves "treaty rights" to hunt deer in various communities near the Six Nations Reserve, and to be participants in the development of wind generator projects (to be consulted, and to receive financial and other forms of "compensation").

The present author has provided previous blog postings on this subject here, here, and here.

For those who will later claim that the Six Nations land deeds are invalid since they were not signed by all 50 Confederacy Chiefs (actually there was never such a stipulation at any time whatsoever), it is interesting that only 20 Chiefs of the Five Nations placed their totem marks on this document.  Recently the original copy of the so-called Nanfan or Fort Albany Treaty was located in England and photographic copies are now available for inspection by researchers.  What the document says is that, after mature deliberation out of a deep sense of the many Royal favours extended to us by the present great Monarch of England King William the Third,  it was the desire of the Five Nations to yield to their "great Father the King of England" all of the hunting territory that they possessed by virtue of conquest, with the "expectation" that they could still retain the right to hunt on these lands.  The lands in question included most of what is today Southwestern Ontario and the lands above Lake Ontario.  The Six Nations did indeed "conqueror" (actually exterminate via genocide and ethnic cleansing) the Wyandot, Petun, Attiwandaronk, Wenro and Erie in the 1640s to 1657 thereby obtaining the lands of these people.  A transcript from the Six Nations website is available here.  The fact that the Five Nations who signed the document stated that, wee having subjected ourselves and lands on this side of Cadarachqui lake wholy to the Crown of England shows that they do not claim sovereignty anywhere within their lands, but they consider themselves as subjects of the King of England which certainly takes the wind out of the sails of the above interpretation of the Two Row Wampum trade agreement of 1613 as being any sort of assertion of being an independent people.

For a document to be considered authoritative it must be valid.  The document is an "agreement" not a "treaty".  There is a huge difference between these terms.  For a treaty to be valid it must conform to certain parameters.  First it must be signed by individuals who are legally assigned that role by the two primary parties - here that would be the Five Nations and the Crown.  In examining the names of the six Mohawks who placed their names on the agreement, none can be linked to the 9 Mohawk sachems in the Roll Call of Confederacy Chiefs.  Actually that in itself is not a problem since very seldom do any of these names appear on treaties - generally it was the village chiefs (Pine Tree Chiefs) and principal warriors who put pen to paper.  Thus it cannot be discredited on this basis.  What is more problematic is that the Five Nations did not possess any rights to the lands they wished to transfer to the King in 1701.  The historical record shows that after Southern Ontario was emptied of the aboriginal inhabitants, it lay unoccupied for a number of years.  During the 1680s however, the Five Nations established settlements on the north side of Lake Ontario.  By 1696 they had 8 villages located there, and in that year all vanished.  The Mississauga and their allies of the Three Fires Confederacy had destroyed all Five Nations settlements north of the latter's aboriginal lands in what is today Upstate New York.  The Mississauga owned all of Southern Ontario by right of conquest in 1700.  Thus the Five Nations making a deal with the British one year later over lands to which they had no rights proves that the Nanfan document is worthless.  You cannot give what is not yours to give - plain and simple. 

However the English were also in no position to make any sort of deal with the Five Nations involving lands in the region of Lakes Ontario and Erie.  The Treaty of Ryswick in 1697 between England and France recognized the latter's rights to sovereignty over the lands in what is today Southern Ontario including the area where the Five Nations had established settlements.  Also the names which appear (or do not appear) on the parchment pose more significant problems for those who would use the Nanfan document as evidence of "treaty rights".  What one sees is a list of names of those present - generally local officials including, Aldermen, the High Sheriff and the Indian Secretary Robert Livingston from Albany.  The Governor at the time was Acting Governor of New York, John Nanfan, who had dissolved the legislature at that time and was acting alone.  What the document shows is that Nanfan signed attesting to the names of those who were present, and the authenticity of the parchment, nothing more.  He did not include his personal seal let alone anything representative of the Crown - he did not even give his title (acting Governor of the Colony of New York).  All he and the others were promising to do was to send the document to England for possible approval of the King and Privy Council.  The original document has no seals or other official symbols affixed to it.  Apparently it was received in England and simply filed away and never became an official document of any sort.  Perhaps it was realized that the Treaty of Ryswick in 1697 with the French invalidated the document.  Thus to claim that this was a valid "treaty" cannot be supported by any solid evidence.  The "treaty" is only an agreement, and a fraudulent one at that.

Below is a photo of the original Nanfan agreement:

Front

Below is the back of the Nanfan agreement:

Back

It is important to note that the image of the back of the document is seen for the first time ever outside a drawer in Kew, England.  It has surfaced thanks to the persistent efforts of Alex Biegalski, and included in his website, My Dundas Valley which can be seen here.

The map that supposedly accompanied the Nanfan agreement has not been located (by myself).  It may have been inspired by French maps of the time, and published in 1718 by De'Lisle, and copied with some additions by Colden in 1747, as found here, and seen below:




The Wikipedia interpretation of the boundaries of the territory described by the Nanfan agreement is shown below, although I am not clear on some of the specific boundaries they provide relative to what is included in the verbal description found in the 1701 document:


Coincidentally, I was just reading the book by Gail D. MacLeitch, Imperial Entanglements: Iroquois Change and Persistence on the Frontiers of Empire, Philadelphia, University of Pennsylvania Press, 2011, which comments on the 1701 agreement.  MacLeitch stated that, By the early 1700s, the Iroquois had promoted a belief that through the wars of the previous century they had conquered distant tribes and become "sole masters" of great expanses of land beyond their immediate homeland of Iroquoia.  The Five Nations were asserting that they had defeated the Hurons, Susquehannocks and other far flung peoples and had wonn with the sword vast tracts of land.  In the view of MacLeitch, These claims were flimsy, but had the effect of bolstering Iroquois status in an emerging Anglo-Indian political arena.  MacLeitch noted that, In 1701 they deeded their northwestern "Beaver Hunting Ground" to the King of England.  In a practical sense, the deed was meaningless.  Despite their grand claims, the Iroquois could not control or dominate distant lands that were occupied by other Indian groups ...... The purpose of the deed seemed to be twofold: to remind the English of their substantial - albeit imagined - land base and to make the English accountable for its protection (p.32)Since the English Crown never formally recognized this agreement, it died a natural death - except in the minds of later generations who wished to breath new life into an invalid meaningless agreement to facilitate their present day claims of "treaty rights". 

It is presumptuous for Six Nations to use a document which is invalid as the basis for their claim to sweeping rights across the length and breadth of Southern and Central Ontario.  The fact that no one seems to have issued a formal challenge means that the Federal Government of Canada has stood in the role of enabler by not asserting the obvious - there are no "treaty rights" possessed by the Haudenosaunee in Ontario.  Two previous Court cases (described in the Archives to this blog) have supported the validity of the Nanfan argeement, however in neither case did the judge have access to the original document, nor the chronological context in which this parchment is embedded.  Thus they came to a conclusion based on a flawed transcript alone.  This statement that Six Nations have, since about 1696, had no treaty rights in the area is further underscored by the fact that the Mississauga are the only group that can claim aboriginal rights in this part of Ontario, including the Haldimand Tract.  They were the "owners" of this land in 1701 when the agreement was signed.  These people then became owners by right of conquest and were not consulted in the process.

The Six Nations are aboriginal to Upstate New York which was lost during the American Revolution making the People of the Longhouse refugees, who were granted lands purchased from the Mississauga by the Crown in 1784 for them to occupy.  There are no "treaty rights" pertaining to the Haldimand Tract.  It is Crown land, and all sales by Six Nations within that grant must be approved by the Crown.  It was so in 1784, and is so now.  One may not like the historical reality, and one has the right to challenge it, but the facts show that the Six Nations do not have "rights" that they adamantly claim to possess.  The fact that the Six Nations are having a laugh at everyone else's expense is not lost on everyone, as seen in an article in the Hamilton Spectator here.

The assertion that the "Nanfan Treaty of 1701" was ever at any time a valid instrument, and the reality that it was a massive fraud, will eventually have to be recognized by the Federal Government. Meanwhile Six Nations continue to claim the "right" to be consulted in municipal projects (e.g., Red Hill Creek Project), in all archaeological explorations in the area (being present as paid "monitors"), and to be involved (paid) in any wind power project in what is considered to be the boundaries of the "Nanfan Treaty".  Such an egretious disregard for the truth, combined with a cadre of enablers afraid to endure the political fallout from a Court challenge to this nonsense, makes a mockery of Six Nations claims to virtually anything!

3)  LAND CLAIMS - The Six Nations Belief that they Possess Unceded Lands Within the Grand River (Haldimand) Tract:  The Council Minutes and the Surrenders by the Six Nations Chiefs in Council between 1840 and 1848 could not be more crystal clear.  All of the lands outside of the present boundaries of the Reserve were surrendered, this fact being affirmed by the Crown via Lord Elgin and the description of the lands the Chiefs wished to have "reserved" were placed in the Indian Land Registry in the year 1850.  The lands thus surrendered were ceded to the Crown to be sold, with the proceeds being placed in the Six Nations Trust account.  Despite what is evident to anyone who cares to check the original documents, Six Nations still claim that for example the Johnson Tract and the Eagle's Nest Tract are unceded and as a result have instituted a number of highly disruptive work stoppages to extort concessions from land developers - at least until some developers and the Corporation of the City of Brantford decided to take the matter to Court and obtain injunctions against work stoppages.  All such attempts were successful, the judges of the Superior Court of Ontario universally declaring that there is no evidence that Six Nations hold unceded lands in the area, and that the work stoppages are illegal and warrant the levying of fines against those who would stand in the way of developers developing their own land - their ownership being traced to the earliest Crown deeds in the Ontario Land Registry system.

Part (but undoubtedly only part) of the reason for such a serious misconception by Six Nations is that the published records are selective.  Hence the Canada.  Indian Treaties and Surrenders from 1680 to 1890 in Two Volumes, Vol. 1, Ottawa, Queen's Press, 1891 lists a variety of documents pertaining to the Six Nations, including some very small parcels, but oddly leaves out the most important documents.  Here we see the "21st Jan., 1841.  All their lands not previously surrendered except reserve mentioned" (No. 50, Page 119, Vol. 1).  The fact is that it took a lot of "sorting around" after that date before the Chiefs in Council had arrived at the final decision on what to reserve (lands within present Reserve boundaries) and what to surrender to the Crown for sale and deposit of revenues in the Six Nations Trust Fund.  All other lands not yet disposed of by a Six Nations member residing on lands outside the Reserve boundaries could keep their land and if they wished at a later date to sell, they could do so and remove to the Six Nations Reserve.  The key documents are unfortunately found embedded in the vast Indian Affairs (RG10) Collection at the National Library and Archives Canada in Ottawa.

If you read one of the two local Reserve newspapers it will quickly become clear that Six Nations maintains that there are vast tracts of unceded lands throughout the Haldimand Tract, and they have the right to negotiate with land developers, and wind power companies so that the latter will be permitted to place turbines on this "unceded" land.  Agreements have been struck with these companies for a monetary settlement, a percentage of the revenues, scholarships and other perks.  The developers have assumed that this is the way that business is conducted in not only the Haldimand Tract, but also Southwestern Ontario (citing the Nanfan Treaty of 1701).  Since no one has challenged Six Nations, the latter have proceeded full steam ahead.

An example is the Six Nations claims to land in South Cayuga Township that was actually ceded by the Chiefs in Council in the 1840s, and were purchased by the Provincial Government from the true owners for a proposed city to service the nearby Nanticoke industrial complex.  The ambitious but ill conceived plan never came to fruition and the lands, duly registered in the Ontario Land Registry system with Crown deeds from the 1840s, were either sold back to the original owners or leased to local farmers.  By no stretch of the imagination is this unceded Six Nations land. 

The present author has spoken about this subject on many occasions since commencing the blog.  Here follows the most detailed references in order from the earliest to the most recent, seen here, here, here, here, here, here, and here.

It is mind boggling that Six Nations can make such egregious claims, and neither the Provincial nor the Federal Government come out with a strong statement as to the correct facts.  The Federal Government however did make their position clear in closed negotiations, and re-affirmed their perspective as recently as 2009 - that the lands were all ceded in the 1840s.  The Six Nations decided in 1995 not to pursue the matter in Court, presumably because their researcher realized that there was no foundation for any sort of case that could be won on the basis of the facts.  However Six Nations (both the Elected and Hereditary Councils) have maintained that the land is "contested", and so they must be consulted when any new development is planned.  Dropping the Court action did not resolve anything.  In retrospect, it would have been to the advantage of Canada (and the truth) to allow the matter to go to Court and be settled on the basis of the available evidence.  Oddly though, the various records on the website of the Six Nations Lands and Resources still list 29 claims, including the land claims dropped from Court proceedings in 1995 - give readers a false view that these are legitimate land claims, and potentially triggering action to "seek justice" as happened in 2006 in Caledonia (see here). 

Continuing to claim that these are "contested" lands, allows the fiction of legitimacy to thrive.  Six Nations do not want to legally contest these claims as the researchers know they would lose.  Better to just dangle them so that the ill informed will remain convinced that the Federal Government is stalling.  Actually the Federal Government has no idea who is "in charge" at Six Nations since the Six Nations Elected Council and the Hereditary Confederacy Chiefs Council both claim the right to negotiate on the part of Six Nations.  These factions to this day refuse to speak with each other even on topics of mutual interest - so no agreement can be reached when one party or the other (or others waiting in the wings) cry foul.  Hence the Federal Government has no choice but to leave the table - until such time as Six Nations empowers one group or another with standing such that they can speak for all.  Very very unlikely.  But guess who comes off as the "bad guy" - yes, the Federal Government.

The most noteworthy claim to "unceded" land came to the fore in a chaotic "reclamation" of the Douglas Creek Estates (DCE) property, a residential land development with a half dozen new homes already constructed, in the south of Caledonia, beginning 28 February 2006.  The matter remains "unresolved" to this day.  After their illegal and violent (arson, multiple assault cases, threats, intimidation, property damage) take over, Six Nations members have remained in control of the site. They erroneously assert rights to this property as unceded land along the Plank Road (today known as Argyll Street, or old Highway 6) in Oneida Township within the municipal boundary of Caledonia.  At the site today you will see the burned out trailer, the hydro towers taken down by Six Nations members, with Confederacy and Mohawk Warriors flags waving over a site where all homes except one (plus the shanty at the entrance way) have been trashed and demolished.  "Celebrations" of this act of infamy occur on the anniversary (28 February) every year.  Six Nations have named the site, Kanonhstaton (the Protected Place), and see it as a symbol of all the wrongs alleged to have been perpetrated against Six Nations.  The facts say otherwise, but unless someone cares to enact a formal challenge, nothing will change and the scars from 8 years ago will remain there for all to "enjoy". 

The facts are readily available in the report of 2009 by Joan Holmes and Associates seen here, a respected firm that researches treaties and land claims (see here).  The details of all the land transfer to the Crown could not be more straightforward.  So 170 years later the Six Nations of today are attempting to undo what the ancestors did with full knowledge of the circumstances, and an admonishment to later generations not to try to undo what they have decided.  During 1844 the representatives of the Crown discussed each parcel of land (e.g., Johnson Tract), and what the Chiefs wanted done with it.  These frequent meetings at the Onondaga Council House were repetitious since each side was ensuring that everyone knew what their true wishes were.  Thus, although the lands where DCE is located were in fact originally selected for 25 year leases by the Chiefs, they changed their minds and specifically mentioned time and again from 1844 that they now wished the property to be included in a surrender to the Crown.  If someone wishes to challenge the wisdom of the Chiefs, that would be very bad form.  The Chiefs made it very clear in all deeds bearing their signatures, that they do not wish later generations to come along and challenge what they have decided.  In terms of the interpreter, Jacob Martin played a prominent role in this capacity, and in any interface between Six Nations and the Indian Department and other White officials.  Never do I recall seeing anything negative about him or his work.  As to the personnel of the Indian Department, I have read the diaries, correspondence and records of James Winniet, David Thorburn, Jasper Gilkison and others.  They appeared to have a genuine interest in the welfare of Six Nations, trying despite immense obstacles (e.g., the number of squatters that would have to be removed and compensated in order to create a reserve anywhere along the Haldimand Tract), to do right by these people.  All was above board.  There is no reason to second guess anyone. 

The data from the Minutes of the Council Meetings, including the signatures of all Chiefs present, provide a clear sequential picture of the process leading to the ultimate decision by the Chiefs in 1848 (re the Burtch Tract).  After that all was done, and actually in 1847 the move to the new consolidated Reserve had begun with the Chiefs providing location tickets to 100 acres of land for each adult male.

With respect to the property near Caledonia known as Douglas Creek Estates owned by Henco Ltd. and later known by Six Nations as Kanonhstaton,  on 17 September 1845 the final confirmation of the ceding of this property that was to become the Douglas Creek Estates was attested to by 66 Chiefs in Council and duly recorded in the Minutes.  At that point the land was entered on title with a Crown grant to the first purchaser and recorded in the Ontario Land Registry system, the documents being located in the Land Registry Office in Cayuga.  Here is the exact wording from the Council Minutes:


9. 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 to a pre
Emption by Leases or otherwise the submission of the Re
Examination to be laid before His Lordship the Governor General
for his decision on each case, 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. The council adjourned at dusk 7
O'Clock to meet again tomorrow morning at 8 O'Clock A.M.

Note 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.


(David Thorburn, Minutes of Council, Council House Onondaga, September 17, 1845. LAC RG 10 Vol. 152 pp. 87852-87854).
 
Map of Oneida Township
 
Reference to any map of Oneida Township showing the Plank Road (Highway 6, Argyll Street), such as the Page & Co. Atlas of 1879, will note the that the express wish of the Chiefs was to include within the Reserve the "lands adjoining, the tier of lots on the west side of the Plank Road" (I have underlined the key clause in the description above), and conforming to Lord Elgin's description of the boundaries of the Six Nations Reserve in 1850.  This denotes the present boundary of the Six Nations Reserve which begins at the eastern end of the irregular tier of lots extending west from the Plank Road.  Note that the wording does not say "lands including, the tier of lots on the west side of the Plank Road".  The Plank Road is seen angling to the left from the Town of Caledonia (large red block) toward the Reserve line (Lot 1 and the adjoining part of the River Range from the western edge of Hagersville at the bottom of the map).  The six lots of the Indian Reserve in Oneida Township are clearly demarcated.  In amongst this "tier" and fronting on the "Plank Road" is the former Douglas Creek Estates to which Six Nations have no legal right - or "right" of any nature or description.


In case some think that because nothing has been done to address the "reclamation" that the Federal Government is unclear about the matter, it should be noted that in 2009 the Federal representative of the Indian Affairs and Northern Development, went on record with their position.  In a letter dated January 9, 2009, Chuck Strahl, the federal Minister of Indian and Northern Affairs Canada said “the Government of Canada’s position is that the surrender of 1844 is valid” (Horsnell, A Short History of the Six Nations of the Grand River, 2010, p.8, see here).

As to the Province of Ontario, it is beset by political turmoil and has done all it could to put its head in the sand to avoid dealing with the fallout of the "reclamation" (other than a compensation package for those most directly impacted, and purchasing the land from the developer in the name of the Province).  So the festering sore remains in the mind of the people on both sides of the Reserve line, and where everything including the trash and debris from 2006, remains in suspended animation.  All is in limbo.  However when Justice Harrison Arrell of the Ontario Superior Court in Brantford was levying hefty fines against the protesters who attempted to block developers in Brant County from building homes on their land, he took the time to provide a preliminary assessment of the strength of the land claims case.  On 19 November 2010 Justice Arrell stated that the strength of the Six Nations land claims is "exceedingly weak"; and elsewhere stated that the Six Nations have a "very weak case" as seen here

So, based on the evidence, any Court is going to find the land claims case failing in merit and will likely have it dismissed.  Political considerations (angry Indians do not make good press) will ensure that the matter will drag on indefinitely until a specific Court challenge is issued on the entire land claims spectrum.  All fall under the same umbrella, and all lands outside the present boundaries of the Six Nations Reserve were surrendered for sale by 1848.  See the above Horsnell document, which is detailed and offers a very poignant analysis, for an in depth study of all three matters discussed in this posting.  He also includes other relevant information, such as how the Proclamation of 1763 connects to the relationship between Six Nations and the Crown.

As a personal aside, I hope that those most involved in the land claims which led to criminal behaviour are hauled in to Court and fined (the leaders have yet to face the music), sending a signal to all that if you make a claim, and take action that has an adverse impact on innocent people, there need to be facts not beliefs which guide actions, otherwise expect fines and jail time.  I can dream, can't I.

DeYo.



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