The Myths of Caledonia By John S. Hagopian [John Hagopian of Whitby was called to the Ontario bar in 1987. He has published articles on various aspects of Canadian history in several academic journals.]
The current impasse in Caledonia between the Six Nations Indians and non-natives concerning rights to certain lands is very poorly understood by the public and the media. The ownership history of Six Nations lands in Ontario has been ignored, as has the legal basis of the Six Nations claim to those lands. It’s time for the politically-incorrect truth to be told. In short, the Six Nations have no legal rights to the lands in question, and have had none for over a century. They have never had any rights to land in Ontario by virtue of aboriginal title or by treaty. For a tract of land along the Grand River, they obtained in 1784 merely an occupancy permit from British colonial Governor Frederick Haldimand that endured only at the pleasure of the Crown. After 1784, the Six Nations surrendered to the Crown various portions of the Grand River tract, and by the mid-nineteenth century all that remained was the land contained in the current Six Nations reserve south of Brantford. That is a summary of their legal rights. As for moral obligations, a review of the history of the Six Nations Indians indicates that they are not innocent victims of land robbery by European colonizers, but are instead themselves the culprits who terrorized, conquered, and displaced many other Indian tribes whose lands and resources they sought to control.
The first myth is that the Six Nations Indians have a valid aboriginal claim to the subject lands, and the second myth is that the Six Nations were the aboriginal occupants of these lands at the time of first contact with European explorers, traders, and colonizers. The truth is that the Attiwandaron Indians, also known as the Neutral Indians, occupied the large tract of land bounded by lines connecting what are now Grand Bend, Oakville, the north shore of Lake Erie, and the St. Clair River in 1615 A.D. when the French Recollets missionaries entered Ontario. Caledonia is within this tract. The Attiwandaron were themselves an Iroquois tribe,
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but were not among the Iroquois tribes that formed the Five Nations Confederacy in about 1459 A.D. Those tribes were the Seneca, Mohawk, Cayuga, Onondaga, and Oneida, who were at that time living in the Finger Lakes region of northern New York State. The Confederacy was formed ostensibly to end the wars that had long been fought among those five tribes. The Tuscarora Indians joined the Confederacy in about 1713 to form the Six Nations Confederacy. The Iroquois tribes of the Confederacy were often hostile to Iroquois tribes that were not part of the Confederacy. In 1651, the Confederacy conquered and displaced the Attiwandarons, and the survivors were taken captive or fled southward to join other tribes in the U.S.A. Thus, it was by conquest that the Six Nations acquired the Attiwandaron’s land; the Six Nations were not the aboriginal occupants. Any compensation paid today by Ontario for those lands is tantamount to a reward to the descendants of the marauding warriors and murderous thieves who conquered the actual aboriginal occupants. The Six Nations were also not the occupants of the Caledonia lands at the time that the British declared sovereignty over southern Ontario. Recent decisions of the Supreme Court of Canada (such as the Delgamuukw case) suggest that occupancy at such time can give rise to a claim of aboriginal title, providing it is exclusive occupancy that endures continuously until an aboriginal land claim is asserted. British sovereignty over what is now southern Ontario was declared in King George’s Proclamation of 1763, and was reinforced by the Quebec Act of 1774. The Six Nations did not occupy southern Ontario at these times either. After conquering the Attiwandaron Indians in 1651, the Iroquois Confederacy returned by the early eighteenth century to what are now American locations. They had been driven out of Southern Ontario in 1696 by the united force of the Ojibwa, Ottawa, and Potawatomis Indians. The Mississauga Indians later moved into southern Ontario, and occupied the Grand River tract until 1784. Most of the Iroquois Confederacy had supported Britain during the American Revolutionary War, and by the terms of the Treaty of Paris, the Finger Lakes homeland of the Iroquois was surrendered by Britain to America. Thus, the Iroquois needed a new home, and Britain provided compensatory lands for them along the Grand River in 1784. The lands were
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provided in an occupancy permit during the pleasure of the Crown. No ownership rights could be given to the Six Nations because King George’s Proclamation of 1763 clarified that Indians on British lands were not sovereign and could not own lands; the only right they could be given were occupancy rights. Thus, the Six Nations did not occupy the Caledonia lands at the time sovereignty was declared by Britain; neither did they occupy those lands exclusively or continuously, as several other tribes had filled the void. The third myth is that the Six Nations are the peaceable, innocent victims of exploitation by European colonizers. The reality is that the Confederacy perpetrated many wars against other Indian tribes. The Mohawk were particularly savage in war. The word “Mohawk” means “man-eater”; they practiced ritual cannibalism for centuries, as did others in the Confederacy. Their wars were motivated by a desire to exploit the resources of neighbouring lands, to steal plunder, to take captives who would be incorporated into the Confederacy to enhance their numbers, and to monopolize commerce with European traders who offered guns, ammunition, axes, cloth and other manufactured goods in exchange for the furs of trapped animals, mainly beaver. The list of Iroquois conquests is lengthy. They fought and displaced the Algonquin Indians on the north shore of the St. Lawrence River between Montreal and Quebec City in the early 1600s. In the 1620s the Mohawk attacked the Mahican Indians in New York State to gain control of their trade with the Dutch at Albany. In the 1640s, the Five Nations attacked the Huron Indians near Georgian Bay to gain control of their trade with the French. The Jesuit priests Gabriel Lalemont and Jean de Brebeuf were tortured and killed during this raid by the Confederacy. Also conquered and displaced were the Tionontatehronon Indians in 1649, the Erie Nation during 1654-1657, the Susquehannock in the 1670s, and the Illinois and Miami Indians in 1680. By this time, the Five Nations were the most powerful Indian confederacy in North America. They continued their wars into the 18th century, fighting in Georgia and South Carolina against the Catawha and Cherokee Indians for 50 years. The Confederacy initiated war with tribes located virtually all around them, seizing land, resources, booty, and captives at every turn. In short, there was nothing innocent about
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the Iroquois Confederacy. As for the Confederacy’s “exploitation” by European colonizers, the loss of their New York state homeland was justified given their participation in the Revolutionary War against the Americans. The loss of their other lands in America and in Canada was justified, given that the Confederacy had stolen these lands from other tribes by conquest. The fourth myth is that the Six Nations received a deed of land from Governor Haldimand of Quebec in 1784 that gave the Confederacy ownership of all lands lying six miles on either side of the entire length of the Grand River. I published an academic article in a Canadian history journal titled Histoire Sociale / Social History in 1997 that debunks this myth, and presents the full context of the Six Nations land rights in the 18th century. After the British defeated the French in the “French and Indian War”, Britain took control of the lands that up to 1763 had been controlled by the French. King George’s Proclamation of 1763 served as the constitution for these newly-claimed lands. It established Quebec as a British colony, and asserted British sovereignty over what is now Ontario. The Proclamation recognized the rights of natives to continue to occupy lands in Ontario, but they had very limited land rights. Natives were not sovereign over their lands; they did not own their lands; they could not sell their lands; and they could surrender the lands only to the federal Crown. The Proclamation still endures today, as it was entrenched in Canada’s Constitution Act,1982. Haldimand issued his Proclamation in 1784 in this legal context. He authorized the Six Nations to “settle upon” the lands along the Grand River. There was no mention of aboriginal sovereignty, fee simple title, or anything resembling ownership rights. Haldimand had been directed by British officials to give lands to the Six Nations to occupy, as they had been promised this in return for their participation with Britain in the war against America. It was an occupancy permit at the pleasure of the Crown. It could be withdrawn at any time, without compensation to the Indians. The Crown had obtained a surrender of a large tract of southern Ontario lands from the Mississauga Indians earlier in that year. Part of these lands formed the Grand River tract allotted to the Six Nations. The surrender from the Mississauga
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extinguished all claims to aboriginal title that any native group could have asserted to these lands. Recent decisions by the Supreme Court of Canada assert that subsection 35(1) of Canada’s Constitution Act , 1982 recognizes and affirms the existing aboriginal and treaty rights of Canada’s natives. However, the Six Nations have no aboriginal or treaty rights, as they have no aboriginal status in Ontario, and since they have not entered into treaties in respect of the Grand River lands. Haldimand’s occupancy permit was not a treaty, as it was signed only by Haldimand. As the Six Nations held only an occupancy permit before 1982, therefore the only right that the Constitution would have recognized was a right to occupancy after 1982. Thus, the constitutional rights that have been afforded to some natives by virtue of the constitution are not applicable to the Six Nations. Further, most of the lands Haldimand allotted to the Six Nations have since been alienated by the Six Nations to the Crown. All that remains is the formal reserve south of Brantford that was created in the mid-nineteenth century. The Six Nations have more substantial rights in regard to lands comprising that reserve, as the Indian Act provides that compensation must be given for any lands expropriated from it by the federal Crown. But the lands under dispute in Caledonia are not part of that reserve. The natives complain that the lands in question are a former native burial ground, but that argument has no legal force. Even if it had legal force, another problem arises. Given the history of the area, it can be argued that the dead are not from the Six Nations tribes alone. Even if it could be determined whose dead are buried there, does this not suggest that compensation must be given pro rata to all surviving tribes who have descendants buried at the site? It must be remembered that up to 1982, it was very easy to extinguish aboriginal title and native land rights in Canada. A legislature needed only to enact a statute stating that the aboriginal rights in a particular place were being extinguished. No compensation needed to be given. Further, once a reserve is created, aboriginal title is extinguished, as reserve rights are substantially different from aboriginal rights. Thus, the dealings in Grand River lands up to
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1982 left no portion of Grand River lands eligible for a claim of aboriginal title, which would have attracted the special rights and protections afforded by virtue of subsection 35(1) of the Constitution Act, 1982. No native band had the status to assert aboriginal title over these lands in light of the history of occupancy and the legal transactions. Thus the claims of the Six Nations for ownership, sovereignty, self-government, or compensation are on a much different basis than the claims of other native groups in elsewhere in Canada. Discussions in the media and among the public are tainted by the general sentiment that “the Indians have been treated badly,” as if all Indians have been treated the same, and are equally deserving, and have identical histories, and have identical legal claims. A full understanding of law and especially of history is required in order to arrive at a just resolution to native land disputes. As for the Six Nations assertions concerning their ancient burial ground, I think most informed observers would be surprised by what they find buried in the past.
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