Haudenosaunee deer hunting in Dundas Valley – history and legal aspects

In a few months, another winter will come and again, deer hunting will capture the attention of many people in our communities. In light of emerging evidence, the validity of this procedure is being questioned. We need a strong public debate on this topic, but above all, we need a legal re-evaluation of this politically sensitive issue.

I am fully aware of the position taken by Chris Bentley, the Ontario’s attorney general and minister of aboriginal affairs, with respect to the alleged First Nation’s hunting rights in the area owned and administered by the Hamilton Conservation Authority.

I have carefully read the internet version of the text of the Nanfan Treaty (the 1701 Treaty of Albany) and have done some research around this topic. The matter is highly controversial, to say the least.

The Nanfan Treaty – a one-sided, unilateral declaration, not an agreement

The Nanfan Treaty is not a treaty understood as an agreement between two parties.

This particular “treaty” is a one-sided declaration, made solely by the Indian chiefs, and is signed by the British as witnesses, only:

“Sealed and delivered in the presence of us” –

– this statement is followed by the names of the Crown’s representatives and
the signature of John Nanfan, the lieutenant governor of the Province of New York, at that time.

No declaration or statement of any commitment by the British is added to the text of this document. The chiefs have, therefore, unilaterally ceded the land and unilaterally declared their right to hunt in the area. The hunting rights have never been ratified or confirmed by the Crown.

There is information on internet saying, “this treaty was not ratified until 14 of September 1726”, but this was a ratification by some of the chiefs, not by the Crown.

During the “Indian conference”, that took place at Albany in September of 1726, William Barnet, the then governor of New York, demanded that the Sachems (the Indian chiefs) reaffirm the 1701 transfer of lands to the Crown. On September 14, 1726, three (3) of the Five Nations (Seneca, Cayuga and Onondaga) affirmed the July 19, 1701 Treaty.

This was later viewed as “ratification”. Here is a copy of this “ratification” document of 14 September 1726, which is stored at the National Archives of the United States. Again, this was a one-sided declaration made by the sachems, and again, the hunting rights have not been officially confirmed or ratified by the Crown or by any of the British officials.

Today, emotions are flying high, as representatives of the First Nations interpret the Nanfan Treaty according to their wishful thinking rather than the original text of the document. The document, however, exists and only the original language of the Nanfan Treaty should be taken under consideration in any deliberations and negotiations.

For example, the entire issue of hunting rights was presented and justified by the chiefs, who signed this “deed”, in the context of “beaver hunting grounds” and “beaver hunting”. There is no mention in the treaty of deer hunting, fishing or farming. And yet, today, representatives of the Haudenosaunee Development Institute (HDI) claim all these rights under the Nanfan Treaty. They also claim “sovereignty” and other “development” rights that were never included in the Nanfan Treaty.

The Nanfan Treaty historically flawed and legally invalid

Flaw – a defect impairing legal soundness or validity.

In the mid-1600s, the Five (later Six) Nations Iroquois from what is now upper New York State, U.S.A. conquered Indian bands around them and all the way west to what is now Chicago, Illinois. The Five (later Six) Nations Iroquois also entered what is now south-western Ontario to kill, conquer and disperse the indigenous Huron, Neutral and Petun Indians.
 
In the mid-1690s, the Ojibwa Mississauga Indians fought with and pushed the invading Five (later Six) Nations Iroquois out of what is now southern and south-western Ontario, across Lake Erie and back toward their homeland in New York where the Five (later Six) Nations Iroquois made peace and gave up the land in what is now southern Ontario to the Ojibwa Mississauga Indians. 
 
According to a 2003 Indian Claims Commission report, “The offer of peace was accepted in June 1700, and as a result, the Mississaugas secured their control of the territory between Lake Huron and Lake Ontario. They would occupy these lands until the land cessions of the late 18th and early 19th centuries confined them to a very small proportion of their former territory”.

Research also reveals Ojibwa chief William Yellowhead maintained a wampum belt, which he brought out when the Ojibwa needed to remind the Six Nations of their cession of southern Ontario to the Ojibwa.
 
And later at a meeting at Fort Niagara on May 22, 1784, Quebec Governor Haldimand bought a huge tract of land, including land along the Grand River, from the Ojibwa Mississauga Indians because they were in control of that land. Crown officials, Mohawk leader Joseph Brant, Six Nations Indian chiefs, Delware Indian chiefs and Mississauga Indian chiefs were at that meeting and they all agreed with the sale of that land from the Mississauga Indians to the Crown.
 
And Ojibwa Mississauga chief Pokquan said “we have agreed and are willing to transfer our right of Soil and property to the King our Father”, which also suggests the Mississauga Indians had control of the land.
 
Nevertheless, despite the agreement with the Mississauga Indians in June 1700, about a year later on July 19, 1701, twenty chiefs from the Five (later Six) Nations Iroquois Confederacy surrendered the Five (later Six) Nations beaver hunting grounds, including land in what is now south-western Ontario, to the British Crown on condition the British would allow Five Nations people to hunt on that land forever.
 
The French didn’t think the Nanfan Treaty was valid because they were allies with the Ojibwa and the French had missions in south-western Ontario and they were building a fort at what is now Detroit.
 
Only 20 of the Five (later Six) Nations chiefs signed (placed their totems on) the Nanfan Treaty, not 50 Grand Council chiefs as many Six Nations people now say is necessary for valid surrenders.
 
And obviously the Nanfan Treaty in 1701 is questionable when the Five (later Six) Nations Iroquois had already given up the land to the Ojibwa about a year earlier in June 1700.
 
If the 1701 Nanfan Treaty is questionable and possibly invalid, should the Crown, municipalities and/or third-party landowners/developers challenge the validity of the Nanfan Treaty in court?
 
The Nanfan Treaty covers a huge tract of land including land in south-western Ontario. The boundary in south-western Ontario starts around Burlington runs west along the northern shore of Lake Ontario and Lake Erie to the Detroit River, follows the eastern shore of the Detroit River, Lake St. Clair, the St. Clair River and Georgian Bay north to about Parry Sound and then follows a line diagonally south back to about Burlington. That includes the land along the Grand River.
 
The 1701 Nanfan Treaty also covered parts of the U.S.A. south of Lakes Ontario and Erie; I think parts of Ohio and Illinois; Michigan between Lake Huron and Lake Michigan. And I would say the Nanfan Treaty would be null and void in the areas it covered in the U.S.A. after the end of the American Revolution and with the Treaty of Paris in 1783.
 
Here is a map of the area covered by the 1701 Nanfan Treaty:


Click here to view a larger version of this map

[The map shown here is modeled on the original map that was created as part of the Nanfan Treaty.] That original map was a rough, hand drawn map of Great Lakes region. The yellow line outlines the area covered by the Nanfan Treaty. Notice the eastern border extends from roughly around Parry Sound on the east shore of Lake Huron diagonally south to about Burlington on the north shore of lake Ontario.
 
The original map was drawn by Samuel Clowes or Clows who was a New York surveyor. He drew that rough map at the Nanfan Treaty meeting in 1701 and is listed on the Nanfan Treaty itself.
 
That original map is now stored at the British archives in London, England.

Notice Samuel Clows is listed as S. Clows Surveyor in the list of names at the bottom right of the typed copy of the treaty

The Ontario government now says the 1701 Nanfan Treaty is still valid in south-western Ontario, which was, in 1783, part of the British Province of Quebec and remained British territory after the American Revolution.

I still say the validity of the Nanfan Treaty could be challenged given the history and when the Five (later Six) Nations Iroquois gave away land to the British in 1701 the Five (later Six) Nations Iroquois had already given to the Ojibwa a year earlier in 1700.

By the way, some Six Nations people say they have hunting rights in Ontario, which was once part of Quebec, because they signed the Montreal Treaty (the Great Peace of Montreal) with other Indian bands and the French in August 1701.

However, I would say that treaty with the French would have been dissolved with the 1763 Treaty of Paris when the British took over from the French after the French and Indian War. The 1701 Treaty of Montreal was with the French not with the British and they had no reason to honour a French treaty.

( Source )

Here is another, similar view on the same topic:

… when that treaty was signed, no member of what is now Six Nations lived anywhere in what is now Southern Ontario let alone the Grand River Valley. All had been driven out of this area five years before by the Ojibwa and their allies so at the time of the treaty’s signing, the area now in dispute was most definitely not occupied by what was then Five Nations and is now Six Nations.

It must also be remembered that what was then Five Nations only occupied by conquest this area of what is now Southern Ontario for 45 years from 1651 – 1696 and are native only to the area south of the Great Lakes, primarily in what are now the states of New York, Pennsylvania and Ohio.

The Six Nations also did not occupy any lands in this area at the time that the British declared sovereignty over what is now Ontario with King George’s Proclamation of 1763. The Nanfan treaty in this area means even less now than it did in 1701 and it was meaningless to the lands here in question then as what is now Six Nations did not and could not use or inhabit this area when the treaty was signed and only moved to this area again after the land was purchased for their use, by the Crown, over 80 years after the Nanfan Treaty was signed.

( Source

One more comment from the same source:

There are serious historical inaccuracies in this treaty regarding the amount of time the land in question was allegedly under Five Nations control.

The treaty states this:

“our predecessors did four score years agoe totally conquer and subdue and drove them out of that country and had peaceable and quiet possession of the same to hunt beavers (which was the motive caused us to war for the same) for three score years it being the only chief place for hunting in this parte of the world that ever wee heard of and after that wee had been sixty years sole masters and owners of the said land enjoying peaceable hunting without any internegation, a remnant of one of the seaven nations called Tionondade whom wee had expelled and drove away came and settled there twenty years agoe disturbed our beaver hunting against which nation wee have warred ever since and would have subdued them long ere now had not them been assisted and succoured by the French of Canada,”

A “score” is a group or set of twenty so “four score years” is 80 years. The treaty was signed in 1701. Subtract 80 years from 1701 and you get 1621. The leaders of Five Nations in this treaty are claiming they did “totally conquer and subdue” this entire area by 1621 yet the major war with the Iroquois League which destroyed the Tionontati began in 1640 and the people we now know as the “Neutrals” where not destroyed until 1651. This is the same war that ended in the destruction of the Jesuit mission “St Marie among the Hurons” in 1649 so there is absolutely no way the “Iroquois League” did “totally conquer and subdue” the original Natives in this area until at least 1651. A thirty year discrepancy in a treaty like this is not a minor thing.

Further on that same line we see that “a remnant of one of the seaven nations called Tionondade whom wee had expelled and drove away came and settled there twenty years agoe” so according to this document in around 1681 any firm control the Five Nations had over this area was lost so at the very most Five Nations had control by “right of conquest” of the area in question from 1651 – 1681 which is a grand total of thirty years.

It must also be remembered that at the time of the signing Five Nations had NO control of the area whatsoever which is admitted in the line “wee have warred ever since and would have subdued them long ere now had not them been assisted and succoured by the French of Canada”. The war to control this area ultimately failed and is admitted as such in this treaty. All that was accomplished was the genocide of a number of true native tribes of this area but in a generation or two some of the survivors had regained control of this area and the once great and powerful Iroquois League was unable to dislodge them and “Nanfan” is the result and why Detroit was specifically mentioned in the treaty but had only been established that year.

By 1701 Five Nations could no longer defeat by force the original inhabitants who had returned to this area so signing over land they no longer had any control over to the British was quite a diplomatic coup that the British accepted as it technically, if fraudulently, gave them a “deed” to a piece of French Canada.

“Nanfan” was a last desperate attempt by Five Nations to lay claim to an area that by 1701 had slipped from their grasp. If you accept that Nanfan is valid as signed then there is no question all lands were signed over to the British crown and there is nothing in the treaty itself that gives Six Nations or HDI jurisdiction over anything as the wording says “for ever quit claime”, but really, the entire claim to the land in 1701 is highly questionable to begin with.

I have read comments from Six Nations saying this dispute will only be resolved at the World Court. I would dearly love to see this treaty dissected at the World Court that admits, in writing, that the people of Five Nations had waged aggressive war on the original inhabitants who later returned to the land and the Iroquois aggressors had been unable to drive them out for at least twenty years before the treaty was signed and somehow that means that area was still “their” hunting ground to “deed” to the British Crown.

The Royal Proclamation of 1763 and the Haldimand Proclamation of 1784

The matter of treaties with the Indians was further regulated by the Royal Proclamation of 1763, which is still in force and is currently included in the Canadian Charter of Rights and Freedoms. In this Proclamation, the Crown states:

“And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds –…”

This clearly indicates that lands that had been previously ceded or purchased by the Crown were no longer considered as being “reserved to them … as their hunting grounds.” In particular, the lands owned by the Hamilton Conservation Authority (HCA) were ceded to the Crown in 1701 – (see: Nanfan Treaty).

Moreover, the tract of land along the Grand River valley, being claimed by the Iroquois as their “sovereign” territory, was purchased from the Mississaugas, on behalf of the Crown, by the Governor of the Province of Quebec Frederick Haldimand, in May of 1784. In October 1784, Haldimand granted this land to the Iroquois who had served on the British side during the American Revolution – (see: Haldimand Proclamation).

To put all these events into perspective I will quote directly from an Ontario Court of Appeal decision made in October 1974 which demonstrates just how far apart both Six Nations and everyone else has been on this issue right from the start. The decision is from Isaac v. Davey and is a case that went from the Ontario High Court to the Ontario Court of Appeal and then all the way to the Supreme Court of Canada who ruled it was the Elected Council who governs Six Nations not the Confederacy yet here we have the Confederacy dictating to the Province and the County it must deal with HDI whose very existence is based on a treaty that is meaningless here for a number of reasons.

However, it’s this bit of text from the Ontario Court of Appeal decision that is most interesting and needs to be repeated… from Isaac v. Davey Ontario Court of Appeal, Schroeder, Jessup and Arnup JJ.A., 4 October 1974

“In May, 1784, Haldimand on behalf of the Crown purchased from the Mississagas a large tract roughly described as six miles deep on either side of the Grand River from Lake Erie to the head of the river. On October 25, 1784, he issued the ‘Haldimand Proclamation.’

“Brant interpreted the Haldimand Proclamation as having two effects:

“(i) as being full national recognition of the Six Nations as an independent national community;

“(ii) as a grant of the Grand River lands to the Six Nations in fee simple.

“The British Government firmly resisted both propositions, and the Crown’s position has never changed. At least some members of the Six Nations have perpetuated Brant’s position. (The allegation of national sovereignty was made in this very action but abandoned at trial.)”

The reason we are all going through this again is encapsulated in that quote.

This is not a question of one side or the other forgetting events in history, it’s a case of events interpreted in different ways by both sides right from the very start. However, given that it was the Crown that purchased the land for Six Nations in the first place and it’s been the Crown’s contention from the very start that the “Haldimand Proclamation” was not recognition of Six Nations sovereignty or outright ownership of the land. One would think that the issue should be clear to all concerned but here we are, many generations later, rehashing the same arguments the Crown and Brant had in the late 18th century.

I do believe it is time for the federal government to step up and re-state these long held positions, and what they mean, for everyone’s benefit and understanding before things spin totally out of control and we end up with the kind of problems nobody on either side really wants or will easily forget.

( Source )

The Hamilton Conservation Authority and its position on this topic

This is, by all means, a very sensitive issue and I strongly believe that the Hamilton Conservation Authority (HCA) is quietly supporting the position taken by Chris Bentley. As deer hunting in this area is extremely controversial, it is convenient for the HCA to avoid responsibility for this decision by presenting it as a higher necessity, one that is beyond the power of the HCA to change. However, it has been known for a few years that the HCA was looking for ways to reduce the deer population in the area. It has also been known that some local residents were lobbying the HCA to do so.

There is one more aspect of this legal situation around the 1701 Treaty of Aspen – (The Nanfan Treaty) and the alleged hunting rights in the Dundas Valley Conservation Area.

The HCA website reveals the following:

“HCA is continually pursuing acquisition of new properties considered important for environmental and recreation purposes. To date, the Authority holds or manages 4,400 hectares (10,872 acres) in public trust and is responsible for approximately 56,800 hectares (140,355 acres) of watershed area.”

– and –

“The HCA acquires lands that are important to the environmental stability of local ecosystems. Through an aggressive acquisition program, it now owns, leases or manages 4,400 hectares of environmentally significant land, and most of it is available for public use.”

It seems that the HCA Corporation now owns some significant portions of land in the Dundas Valley area. Ownership means that these lands are no longer Crown lands and that their status is that of a private property.

With this in mind, we need a legal opinion and determination whether or not private properties are subject to Indian Treaties. I would imagine that they are excluded from the hunting rights and other provisions of the treaties, as otherwise, they would encourage and justify trespassing.

Generally, I think that everyone concerned should base their opinion on the exact language of the Treaty, and not on its various interpretations. These differ depending on who is presenting them. The language is precise, strict, and it means what it says. It’s that simple.

If our officials try to go around it, it indicates that there may be a different agenda at play here, and that the Nanfan Treaty had been invoked as a convenient pretext, excuse, and tool to go ahead with the unpopular hunt.

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