No Treaty with Six Nations Shown on Map to be Used in All Ontario Schools: A Can of Worms Opened?

EnglishMapVisualBy: Deyoyonwatheh (DeYo)
Six Nations – Haldimand Tract – Beliefs versus Facts

Issues Concerning the Publication of a Map of Indian Land Treaties in Ontario: In “Turtle Island News” (TIN), May 14, 2014, p.4 is an article entitled, Feds Ontario treaty map released to schools ….. but no Six Nations. The content here concerns a map entitled, “First Nations and Treaties” which is to be used in schools across Ontario, and is based on information from the Federal Government’s Ministry of Aboriginal and Northern Affairs Canada (see here). Thus the document represents the distillation of what is in the Federal records relating to treaties signed by various First Nations peoples throughout the years (see here).

The article in TIN reports that,

it appears that the federal Aboriginal Affairs ministry forgot to include one of the richest pre-confederation treaty in Canada.

The newly minted map does not include the Haldimand Deed lands of the Haudenosaunee (Six Nations of the Grand River) in southern Ontario or the Nanfan Treaty of 1701.

In fact the only recognition of the Haudenosaunee land base in the treaty map is a listing of reserves number Six Nations 40A and Glebe Farm 40B.

The Haudenosaunee Confederacy Chiefs’ Council’s planning department is not happy with the map.

The Director of the Haudenosaunee Development Institute (HDI), said the absence is intentional.

Next is a bit where my repeated assertions that since the events of Caledonia 2006, the various factions at Six Nations have been testing the limits and making unsubstantiated claims to reap rich rewards in the form of “application fees” paid by developers and other questionable behaviours that did not occur prior to 2006. The Director said, the Confederacy Chiefs have ‘made it clear in negotiations since 2006 and in current engagement discussions with Ontario that the 1701 Treaty area is an established treaty right and was re-affirmed by Ontario’s former minister of aboriginal affairs Christopher Bentley through the engagement process with Confederacy’.

First, it is important to note that the above Chris Bentley was the Minister of Energy in the Provincial Liberal Government, and was forced to resign in disgrace due to the scandal over the closing of the gas plants, as seen here. Thus referring to Mr. Bentley as an authority on treaty rights does not in any way tally with the evidence.

The HDI Director is presumably well aware that the HDI is not the legally empowered body to negotiate anything with either the Federal or Provincial Governments, or the various corporations who have naively agreed to the “conditions” rather than risk the inevitable work stoppages that would result by failure to comply with the “engagement process”. The latter has no legal requirements imposed on anyone, but simply those that the HDI (or the Elected Council’s comparable CAP group) can cajole from those under political pressure or the stress of protests and a lot of bad press – even the media tending to portray Six Nations as victims. The media has, in my opinion, not done its homework. Without evidence, or with information that is completely distorted, they tend to see Six Nations as the victim – never the author of their own destiny (as would be a more apt description of historical reality). Apparently, according to the HDI Director, this perceived omission is, a continued assimilation tactic to suggest the Haudenosaunee don’t exist and our land base doesn’t exist and is typical of the history they have recorded. Apparently telling the truth does not win you points with the HDI. The article goes on to report that, neither the federal or provincial Aboriginal Affairs ministries answered Turtle Island News calls about why Haudenosaunee / Six Nations treaty areas were not included in the map. My question would be, does TIN really want the bald faced truth about the matter to be exposed to public view at this point in time? There are no legal treaties concerning Aboriginal land with Six Nations, and hence nothing is included in this map pertaining to Six Nations – it is as simple as this.

What is a Treaty?: It is of key importance to understand the formal nature of any agreement that proceeds to the level of a treaty. The source focusing on Canadian treaties, seen here, will be helpful.

Because I have blogged about this matter so many times, I will only include a “nutshell” summary of some key points:

1) The Nanfan “Treaty”: The history that underpins the actual Nanfan document has been described in numerous publications. The chronology and aftermath are key to understanding that this document is not what it is claimed to be by the Six Nations – in other words a valid treaty that is still in effect today. Alas, it was never in effect and died a natural death almost immediately after the parties signed, or were listed on, this parchment. A good general description by a reliable and recent source can be found in Marit K. Munson and Susan M. Jamieson (Eds.), Before Ontario: The Archaeology of a Province, Montreal & Kingston, McGill-Queens University Press, 2013. In Gary Warwick’s article in this work, The Aboriginal Population of Ontario in Late Prehistory, he provides an overview of the history underpinning the archaeology. He reported,

The abandonment of southern Ontario by the Wendat and Neutral in 1652 and the retreat of Algonquin groups further north and west created a gap in the permanent Aboriginal occupation of southern Ontario. In 1667, the Seneca, Cayuga, and Oneida briefly filled the gap, establishing seven villages along the north shore of Lake Ontario. The short-lived villages were abandoned within a dozen years, after attacks by French-allied Ojibwa, Mississauga, and Wendat warriors. After 1690, the Mississaugas, about 1000 strong and originally from north of Georgian Bay, moved south into Ontario and settled along the major rivers flowing into Lake Ontario and Lake Erie. Iroquoians did not return permanently to southern Ontario until 1784-85, when about 1,800 Six Nations (Haudenosaunee) settled along the lower Grand River, where their descendants live today.

CO5-1046 (758) Conveyance of lands by the Native American Chiefs of the Five Nations 19 July 1701
The Nanfan document – front page

So, considering the above circumstances, how did it come about that some believe that the Six Nations have “treaty rights” to all of Southwestern Ontario. Surely an occupation of a dozen years in the closing years of the 1600s does not provide any sort of firm foundation. Perhaps the most comprehensive analysis of this era done to date, 474 pages, is that of Jon Parmenter, The Edge of the Woods: Iroquoia, 1534-1701, East Lansing, Michigan State University Press, 2010. He provides the background information about the destruction of the Southern Ontario Iroquoian peoples (e.g., Huron / Wendat, Attiwandaronk / Neutral) by the Five Nations during the “Beaver Wars” or “mourning wars” of the 1640s and 50s. Palmenter also lists all known Five Nations settlements north of Lakes Ontario and Erie, and their dates of destruction / abandonment. The last village was left to return to nature by the Five Nations in 1687, including Quinaouatoua in the region of what is today Caledonia – see Map of Iroquoia circa 1673 and 1701 (p. 145, 265). The Five Nations were a conquered people, in the same way that they had conquered the Huron and Neutrals – and they were unable to return due to the alliance between French supported groups such as the remnants of the Wendat (Huron), and the Ojibway – Mississauga. So there is no evidence at all suggesting any further “ownership rights” in Southwestern Ontario. However despite this fact, and the fact that the Treaty of Ryswick in 1697 the British Crown acknowledged French sovereignty over the lands north of Lake Ontario, four years later the British representatives in New York took it upon themselves to promote what was essentially an illegal deal. Thus for two very good reasons it is more than surprising that the Five Nations decided to assert that they still maintained beaver hunting rights in this area based on their having conquered the Wendat in the 1640s (oddly ignoring the fact that the same people and their allies had recovered all of this land by conquest 40 years later) – sending the Five Nations south back to Iroquoia, south of Lakes Ontario and Erie, back to their Aboriginal homeland.
Since the “Nanfan Treaty” is being claimed as a true entity by Six Nations, we will first have to see who Nanfan was and what document he and the Six Nations signed. The records suggest that John Nanfan, Governor of New York wished to secure the allegiance of the Five Nations to the British side and weaken links to the French; whereas the Five Nations played both sides to the middle and wanted the British military support should the French attack the homeland in Iroquoia (again), and claiming to be the “true owners” to be able to hunt in territory they once possessed (circa 1642 to circa 1687) in what is today Southwestern Ontario. Although not stated in the document, perhaps their rationale for being the legal owners was that they had incorporated Wendat survivors into Five Nations communities (along with Cherokee, Choctaws and Catawbas from the south – although it did not give the Five Nations claims to lands in the Carolinas and other adjoining areas where these captives had lived). What was stated is that the rationale was due to their military victory over the Wendat (as stated above, carefully omitting the fact of the Wendat – Mississauga alliance victory over them in the years prior to 1687).

So despite the Treaty of Ryswick of 1697 between Britain and France, giving the French sovereignty over what is today Southwestern Ontario, Governor Nanfan went ahead and had Robert Livingston the Indian Commissioner draw up an agreement. This is known to Six Nations today as the “Nanfan Treaty”, but the word “treaty” appears no where in the document. Rather it is a simple agreement, specified as a “Deed from the Five Nations to the King of their Beaver Hunting Ground”, signed by 20 Five Nations headmen on 30 July 1701, requesting “free hunting for us and the heirs and descendants from us the Five Nations forever”. The wording is such that the Five Nations had the “expectation” of being able to hunt in that area as before – nothing more. The British saw this instrument as a permanent surrender of all these lands to the Crown. In the view of the Five Nations, they were asking for security, and hinged, “on Livingston delivering the document personally to the king and returning with an official response”. The Governor denied Livingston permission to travel to England, and in effect the whole deal simply fell through. No sooner had the ink dried on the document when the Five Nations agreed to allow the French to expand their holdings at Detroit and Fort Frontenac (Kingston). Thus they had within a few months invalidated whatever it was that the agreement had set out with the British. Thus it was a fraud. It was also a fraud because the Five Nations were a conquered people as of 1687, and were dispersed from habitations in Southwestern Ontario. A treaty that is not a treaty, only a tentative agreement, and one that was fraudulently put forward by one of the parties. Is it really any wonder why the Federal Government would not include the “Nanfan Treaty” on any list of legitimate treaties?

The original document, as noted in previous posts, did make its way to England at some point, but it has absolutely none of the trappings of an official document let alone a treaty. There is no seal of any description, even from the Governor. The Privy Council did not sign it, and thus it is unlikely that the King ever saw this parchment. It lay in state for many years until a transcript appeared in “Documents Relative to the Colonial History of New York”, and the content was re-interpreted in such a manner as to conform to the situation after the Crown had turned over all responsibilities for Indian Affairs to Canada.

2) The Haldimand “Deed”, “Proclamation”: This document is not a treaty, no Crown or Federal official has ever called it a treaty, and it has no features at all which would warrant placing it in a category of a “treaty” or any sort of similar agreement. It does not pass the litmus test for a treaty, at minimum a document where both parties sign. It was little more that a Loyalist land grant with stipulations; and signed only by one party, Sir Frederick Haldimand. It was an “deed of occupation” to property purchased of the aboriginal owners, the Mississauga. The Six Nations were granted permission to “occupy” these lands, vested in the Crown (as it is today), and not granted in fee simple which would have allowed individual Indians to sell off parts to White buyers. The document does not bear the Privy Council seal.

Haldimand-deed
Haldimand Deed

One source covers most of what one would need to know about the Haldimand “Deed” and “follow up” documents such as the Simcoe Proclamation of 1793. See, Charles M. Johnston, The Valley of the Six Nations: A Collection of Documents on the Indian Lands of the Grand River, The Champlain Society Publications, Toronto, 1964. Amid all of these papers and records there is nothing from any side to the matter that mentions “treaty” in connection with the Haldimand grant.

Some Thoughts on Treaties, Surrenders, and Land Tenure: I have blogged about the subject of false Six Nations “treaties” on so many occasions, that the issue must be tiresome to many readers. However, it is imperative that the truth be said, and if it takes 50 times saying it before it sinks in, so be it. There are no treaties between the Federal Government (the Crown) and the Six Nations, who are aboriginal to what is today Upstate New York, United States of America, not Ontario, Canada. What there are include a series of “surrenders” where land which is part of the Haldimand Tract (and a few parcels elsewhere with their own history such as in Hawkesbury) where the Six Nations Chiefs in Council have agreed to part with certain tracts of land for monetary or other considerations, and each of these agreements is signed by key Six Nations Chiefs (anywhere between one such as Joseph Brant who had power of attorney, and 67 whose signatures or marks appear on documents of the 1840s). Many of these remain in Council Minutes or other collections within the RG10 Indian Affairs records and Library and Archives Canada in Ottawa. Some are registered and published, particularly those which are post – Confederation. These Treaties and Surrenders can be found in, Canada, Indian Treaties and Surrenders from 1680 to 1890, Vol. 1, Queens Printer, Ottawa, 1891.

However all of these agreements have been for the Crown lands that were allotted to the Six Nations as compensation for the lands in Upstate New York which were lost by virtue of having sided with the British during the War of the American Revolution. None of these lands are “Aboriginal Lands” since the Mississauga are Aboriginal to Southwestern Ontario, and lands were purchased of them to allot to the Six Nations, as the Government purchased lands to the Mississauga to allot to the Loyalist settlers who accompanied the Six Nations. The Six Nations do not have Aboriginal Land in Southwestern Ontario, any more than the Palatine Germans who were their neighbours along the Mohawk River (e.g., Nelles, Young and Dochstader families of the Grand River and the many more who settled elsewhere in the Niagara Peninsula). Both owe their land tenure to purchases of Aboriginal Mississauga lands by the Crown. The difference is that the Six Nations, who held land communally in their former homeland were not granted the land outright in fee simple (allowing them to sell to anyone), their Loyalist neighbours were. The result of this decision is that, while it seems unfair to treat the two groups differently, in fact there is still a vibrant Six Nations community along the Grand River. All surrenders must be made to the Crown, who will in turn issue a Patent to a purchaser and place the funds from the sale in the Six Nations Trust Fund. Individual Indians can purchase and sell their individual “location tickets”, for whatever acreage they own, but only to another Six Nations member. This does restrict the options, but ultimately unless some dramatic change to the Indian Act is made, there will always be a Six Nations Reserve and a Six Nations community, something that their White Loyalist neighbours have largely lost – although descendants are scattered throughout the area but not in a manner that would foster the continuance of a “community”.

To be fair, there is some general confusion about the term “treaty” that could impact even those well informed in the subject. In the introduction to the reprinted edition of “treaties and surrenders” noted above, there is a tendency to toss everything into the stew pot. Here they describe how the resource, is an excellent reference work for anyone interested in the history of agreements between Indians and the Crown. It is the only complete collection of the actual texts of all pre-Confederation treaties, land cessions, numbered treaties, and surrenders relating to land and governance until 1890. As an example of the confusion that can be generated, the “Grant by Governor Haldimand” is listed as item number 106, immediately after, and apparently appended to, number 105, a “Surrender by the Six Nations of the Grand River …. of their lands in the Townships of Tuscarora and Oneida for the purposes of a road along the line of their reserves, as described below”. The date on the instrument is 21 September 1865. In the index the 1784 Haldimand document is the first listed under the heading of “Six Nations”, and the 1865 instrument is second to last. While the Haldimand Deed is neither a treaty nor a surrender, its inclusion adds to the murkiness. Granted that the work is not supposed to be definitive, but most people will not be accessing the original records in the RG10 Indian Affairs Papers at Library and Archives Canada. Thus in some ways the subject needs review by seasoned researchers who have honed their skills in this specialty area. One example is Garry Horsnell, whose “Short History” is actually very detailed and very meticulously researched. One cannot be led astray by referring to his work seen here. I have been researching Six Nations history etc. for almost 40 years, so am an “old timer” in this field of study – and have tried to leave no stone unturned in the process.

Bottom Line in Relation to Six Nations and Claimed Treaties: Getting back to the map produced by the Federal Government for use in the schools in Ontario, there was / is no reason to include imagined treaties, items existing only within the world of fantasy, and thus provide false information to school children. So the Federal Government made the right call. However, I would encourage all at Six Nations who firmly believe in the perceived treaties to make a stand. Pressure the Federal Government to show its hand, and for all times erase the linkage between the names Nanfan and Haldimand, and the legally defined term of “treaty”. The evidence will support the truth. Let the truth be revealed to all so that we may move on without constantly having to address the fall out from these misconceptions such as hunting “rights”, and authority to insist that a developer “consult” or “engage” with one or more of the parties at Six Nations asserting that they are the broker in these claims to “treaty rights”, and that all others are imposters. It is highly likely that the matter will end up before the Courts, since it is unlikely that Six Nations could readily accept anything that undermines their present actions with land developers, wind power corporations, Hydro One, pipeline corporations and the like. However it will be necessary to find a way to reconcile legal realities such as Nemo dat quod non habet (see here for details), and other principles derived from history and Common Law, with the weight of evidence. However if Six Nations is so entirely convinced of the validity of the “Nanfan Treaty” then there should be no concerns in seeing the matter through the various levels of the Courts. The truth shall set you free. In the case of the present map to be used in all Ontario schools, either it will stand as is, or it will need to be revised to reflect the realities as determined by the Courts. Then it will be wise to follow up with “forcing” the Federal Government’s hand on their assertion that the General Surrender of 18 January 1841 is valid, and all of the subsequent land surrenders through to the end of the year 1848 reflected the wishes of the Six Nations Chiefs in Council at that time. As I see it, the treaty and land claim disagreements are festering sores that will not heal without direct action via a Court challenge. Without taking this step, the pall of uncertainty will continue to hang over Haldimand and Brant Counties, and well beyond these boundaries across Southwestern Ontario – this has to stop.

Update 27 May 2014: It appears that the map shown at the top of this posting has been removed from government websites. At the moment I don’t know the reason, but suspect that perhaps complaints from Six Nations or other groups may have be responsible.

By: De-Yo
(Deyoyonwatheh)
Source

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