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ABOUT THE HALDIMAND TRACT, THE MOHAWK NATION AND SUCH OTHERS OF THE FIVE NATION INDIANS.

Note: There is a lot of information on this page, to read the summerized version you can read here. or jump to #royalproclamation1763 #haldimandpledge1779 #withwhomweareconnected #haldimandproclamation1784 #simcoeproclamation1796 #perminantprovision #markofhonor #pledgedtothemohawk #instructions #intentionaltreaty

August 4, 1701 a great peace council was held in Montreal between the Iroquois, the French and the western Indians, where the Iroquois pledged neutrality between the French and the English. The Confederates, including the Mohawks, continued neutral during the greater part of the war between England and France which began in 1702. Their position in this regard helped to keep the Province free from invasion during the War of the Spanish Succession, known in America as Queen Anne's war. *

The Five Nations had made a treaty with the French in 1701, by which they pledged neutrality between the French and the English, which policy they maintained up to the latter years of Queen Anne's war. Their attitude toward the English cause had become somewhat lukewarm on account of this policy of aloofness, for which the neglect of the English government was also largely responsible. The Provincial government now decided to renew the old close alliance between the Five Nations and the English by the unusual method of taking some of the leading Iroquois chieftains on a trip to England, hoping to so impress them with the might and glory of old England that they would once more hold fast to the chain of friendship with their ancient allies. *

In 1710 a delegation of five "Native American" leaders "The five Mohawk chiefs [four Mohawk from the five nation alliance and one Mohican from the Algonquin nations] selected by our Valley Iroquois consisted of King Hendrick, Brant and three others. Brant was the father of the famous Joseph Brant, Mohawk war chief of the Revolution. The five chiefs agreed to make the trip on the condition that Colonel Schuyler accompany them. Schuyler and his Mohawks sailed for London in December, 1709. The British government paid the expenses of this savage embassy, which was a great success from every point of view, with the exception of the death of one of the Mohawks on the voyage to England." *

Royal Proclamation of 1763 "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"

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"And whereas great Frauds and abuses have been committed in the purchasing Lands of the Indians, to the great Prejudice of Our Interests, and to the great Dissatisfaction of the said Indians; in order to prevent such Irregularities for the future, and to the End that the Indians may be convinced of Our Justice and determined Resolution to remove all reasonable cause of Discontent, We do" ... "enjoin and require that no private Person do presume to make any Purchase from the said Indians of any Lands reserved to the said Indians."

The die was cast in terms of the constitutional recognition of Indian tribal sovereignty and its corresponding court remedy in North America in 1704 when Queen Anne commissioned a Standing Trial Level Sub-Committee of the Appellate Level Judicial Committee of the Privy Council (JCPC) with independent and impartial third-party court jurisdiction over boundary disputes between sovereign crown and Indian tribal governments in the case of Mohegan Indians v. Connecticut (1704-1776). Thus when a delegation of three Mohawk and a Mahican Ambassador and Public Minister visited Her Majesty in 1710 they diplomatically were received as "Indian Kings", Requesting support from Queen Anne to reduce Canada (Quebec).The legal point of the case is that while the constitutional law has been continuous since at least 1704 the attitude of the judicial branch of newcomer government has gone from respect and protection to contempt and genocide, without justification, solely by means of the judicial obstruction and ignoring of the constitution, since 1871, in abrogation of constitutional democracy under the rule of law, in aid of stealing the Indians' land, rather than continuing to make valid treaties for it as required by the constitution. This was reaffirmed by the Royal Proclamation of 1763.

In 1710 in the reign of Queen Anne, four leaders of the Native North American Indian alliance of the Iroquois left their homeland, in what is now eastern New York State, and travelled to England. These delegates of the Mohawk, Oneida, Onondaga, Cayuga, Mahican and Seneca peoples found themselves in a difficult position, controlling territory that was sandwiched between the English settlements, along the Eastern Seaboard of North America, and those of the French, along the St Lawrence River and the Great Lakes. They had been encouraged to come to London by the British architects of a plan to invade Canada, the purpose of their trip being to forge a mutually rewarding alliance. They made a speech to Her Majesty, expressing their hopes and intentions in phrases doubtless improved by the military planners and diplomats who had engineered their visit: “we were mightily rejoiced when we heard … that our Great Queen had resolved to send an army to reduce Canada … and in token of our friendship, we hung up the kettle, and took up the hatchet … The reduction of Canada is of such weight, that after the effecting thereof, we should have free hunting and a great trade with our Great Queen’s children: and as a token of the sincerity of the six nations, we do here, in the name of all, present our Great Queen with these belts of Wampum.”

For her part, Queen Anne graciously accepted the belts – symbols, to the Iroquois, of an unbreakable alliance – and commissioned the Dutch expatriate artist John Verelst to paint a series of portraits of the “Four Indian Kings”, as they quickly became known in England. These likenesses stand, like forbidding sentinels, at the entrance to the National Portrait Gallery’s exhibition... *

The Royal Proclamation of 1763 recognized the constitutional crime of "Misprision of Treason," which has no legal meaning other than as a sanction against colonial officials and judges who prematurely assume jurisdiction. Indeed, Blackstone's authoritative Commentaries on the Law of England, published in 1825, gives as the classic example for misprision of treason the breach of faith to the Queen's allies attendant upon disregarding the terms of a royal proclamation. Furthermore, the newcomers' taking of Indian land without the Indians' prior consent is the classic form of "Pretence" and "great Fraud and Abuse" that the proclamation constitutionally intended to preclude. The injustice resulting from the constitutionally prohibited premature assumption of jurisdiction by the newcomers courts and band councils imposes "serious mental harm" upon a "national, ethnical, racial or religious group," and therefore constitutes "complicity in genocide" within the meaning articles 2(b) and 3(e) of the Convention for the Prevention and Punishment of the Crime of Genocide, 1948. All the British crown ever claimed in virtue of its assertion of crown sovereignty was the exclusive right to buy jurisdiction and possession from the Indians. And then only if the Indians are, as the Royal Proclamation confirmed, "inclined to dispose" of the land. Until that bilateral and consensual purchase is completed, the aboriginal and for greater certainty the Mohawk Indians are constitutionally guaranteed the integrity and inviolability of their previously enjoyed jurisdiction and possession.

Treaty of Paris of 1763 was signed on 19 February and ended the Seven Years' War between France, Britain and Spain. The basis for the modern country of Canada.

In February 1779 Brant traveled to Montreal to meet with Frederick Haldimand, the military commander and Governor of Quebec. Haldimand commissioned Brant as Captain of the Northern Confederated Indians. He also promised provisions, but no pay, for his Volunteers.

On 16 April 1779 Germain sent Governor Haldimand a commission signed by George III for Joseph Brant as colonel of Indians in appreciation of his “astonishing activity and success” in the king’s service. Haldimand suppressed the document, ... Such a mark of distinction, if it were presented to Brant, Haldimand warned, would therefore “be productive of very dangerous consequences” in stirring up jealousy and animosity towards him among the leading Iroquois warriors. Consequently Brant did not receive an official commission until 13 July 1780 when, on the recommendation of Guy Johnson, Haldimand made him a captain “of the Northern Confederate Indians.”

Despite his captaincy (colonel), Brant preferred to fight as a war chief. He later explained to Sir John Johnson  that that rank gave him command of more men in battle than was customary with a captain.

The Haldimand Pledge of 1779 (Treaty, Ratified Pledge) reads in part "Some of the Mohawks of the Villages of Canojaharie, Tikondarago, and Aughugo, whose settlements than had been on account of their steady attachment to the King's service and the interests of Government ruined" ... "the same should be restored at the expense of the Government, to the state they were in before the wars broke out, and said promise appearing to me just, I do hereby ratify the same."

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Five years after the delivery of the Haldimand Pledge, Frederick Haldimand brought to the Mohawks the Haldimand Proclamation of 1784. Closing of the transaction made between the Mohawks and Great Britain as equal entities, as "His Majesty's Faithful Allies" and not subjects to the crown.

With Whom We Are Connected

Royal Proclamation makes a distinction between "Nations or Tribes of Indians with Whom we are Connected," and those who "Live under Our Protection."

These are different political and legal relationships.

  • Connected = Nation-to-Nation, with military or trade relations. (see attachment)
  • Protection = Crown Jurisdiction over Individuals and territories.

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The Treaty of Paris of 1783, signed on 3 September 1783, concluded the American Revolution and established a boundary between the newly-independent American colonies and remaining British territories in North America. The agreement also gave the United States lands reserved for Aboriginal peoples through previous negotiations with Britain, betraying earlier treaties and alliances. Through the Treaty of Paris, Britain also gave the United States the valuable lands it had reserved for Indigenous peoples by the Royal Proclamation of 1763. This ignored numerous treaties made with Aboriginal peoples, who were not invited to the Paris negotiations. Many Indigenous people were thunderstruck at this betrayal. Canada (Quebec) officially reduced.

The USA, created by international community in Treaty of Paris in 1783

The Treaty of Paris was signed by representatives of King George III of Great Britain and representatives of the United States of America  on September 3, 1783, ending the War of the American Revolution. Based on a1782 preliminary treaty, the agreement recognized U.S. independence and granted the U.S. significant western territory.

The Haldimand Proclamation of 1784 (Transaction) reads "Whereas His Majesty having been pleased to direct that in consideration of the early attachment to his cause manifested by the Mohawk Indians, and of the loss of their settlement which they thereby sustained– that a convenient tract of land under his protection should be chosen as a safe and comfortable retreat for them and others of the Five Nations, who have either lost their settlements within the Territory of the American States, or wish to retire from them to the British — I have at the earnest desire of many of these His Majesty’s faithful Allies purchased a tract of land from the Indians situated between the Lakes Ontario, Erie and Huron and I do hereby in His Majesty’s name authorize and permit the said Mohawk Nation and such others of the Five Nation Indians as wish to settle in that quarter to take possession of and settle upon the Banks of the River commonly called Ouse or Grand River, running into Lake Erie, allotting to them for that purpose six miles deep from each side of the river beginning at Lake Erie and extending in that proportion to the head of the said river, which them and their posterity are to enjoy for ever."

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In 1701, the Mohawk nation began a strong alliance with the British sovereign under the reign of Queen Anne. During the American Revolution, the Mohawk sided with the British and as the war concluded, they followed Joseph (Thayendanega) Brant to the Haldimand Tract where they now have descendants at Grand River and the Bay of Quinte.

To ascertain who is a Loyalist Mohawk Posterity or Loyalist Mohawk Descendant. Mohawk Posterity is named with the greatest certainty in the Haldimand Documents, the Mark of Honor and Canadas only hereditary title was created by Guy Carlton (Lord Dorchester) for people to ascertain their hereditary interest, and to ascertain legal standing under the Haldimand Documents as a true and certified Loyalist Mohawk Descendant or Mohawk Indian Posterity.

There is no known mechanism to dispossess this Loyalist Mohawk Posterity, a technical fatality of the document that it names no man or woman to pass it down, in a court of queens bench was of the opinion that no incorporation or body politic was formed by the use of the phrase, "Mohawk Nation and Such Other of the Five Nation Indians" Jackson v. Wilkes

Such Other or Stranger refers to a person who is not a party to a particular transaction. In Kirk v. Morris, 40 Ala. 225 (Ala. 1866), it was observed that the word “stranger” was substituted for the words “or some other person.” However, both were intended to mean the same thing, namely, a person not a party to the suit, who acts for the benefit of the defendant in attachment.

The Mark of Honor - UE (Unity of the Empire)

After the initial flurry of settling the United Empire Loyalists on their new lands, Lord Dorchester , Governor of British North America, decided to honour those who had lost virtually everything they owned.

On November 9, 1789 in Council at Quebec City, he gave particular recognition to the "First Loyalists" by differentiating them from other Loyalist and settlers as defined below: Late Loyalist, Treasury Loyalist, Simcoe Loyalist, Associated Loyalist/Incorporated Loyalist, Regular British and German soldiers.

Consequently, The United Empire Loyalists and others, lured by the prospect of cheap land, kept crossing into Canada from the United States. by immigration from the British Isles, and the country was making forward strides. Straggling settlers and speculators were often anxious to purchase land in the richer districts when they could get it at a low price, by immigration from the British Isles, and the country was making forward strides.

The Dorchester Resolution, approved by the Council

“His Lordship intimated to the Council (at Quebec) that it remained a Question, upon the late Regulation for the Disposition of the Waste Lands of the Crown, whether the Boards, constituted for that purpose were authorized to make Locations to the Sons of Loyalists, on their coming to full Age and that it was his wish to put a Mark of Honor upon the families who had adhered to the Unity of the Empire, and joined the Royal Standard in America before the Treaty of Separation in the year 1783.”

1) Defined the UE Loyalists as those who had adhered to the Unity of Empire and joined the Royal Standard in America. [publicly showed support for the British]

2) Put a Mark of Honour upon the Families of the UE Loyalists.

3) Approved the granting by the Land Boards of 200 acres of land to the sons and daughters of the UE Loyalists.

Accompanying the resolution to be laid before King George III in London was the following:

"N.B. Those Loyalists who have adhered to the Unity of the Empire, and joined the Royal Standard (in America) before the Treaty of Separation in the year 1783, and all their children and their descendants by either sex, are to be distinguished by the following Capitals, affixed to their names: U.E. - Alluding to their principle The Unity of the Empire."

In the covering letter, Lord Dorchester explained: "Care had been taken to reward the spirit of loyalty and industry, to extend and transmit it to future generations." Today, descendants of those "First Loyalists" are entitled to use these initials.

Significant in Loyalist history was the Proclamation expressed by Lord Dorchester, Sir Guy Carleton, on November 9th, 1789:

“His Lordship intimated to the Council (at Quebec) that it remained a Question, upon the late Regulation for the Disposition of the Waste Lands of the Crown, whether the Boards, constituted for that purpose were authorized to make Locations to the Sons of Loyalists, on their coming to full Age and that it was his wish to put a Mark of Honor upon the families who had adhered to the Unity of the Empire, and joined the Royal Standard in America before the Treaty of Separation in the year 1783.”

This constitutes the first use of the expression “Unity of the Empire” and thus the qualification of “United Empire” together with the term “Loyalist”.

The Simcoe Proclamation of 1796

"WHEREAS is appears by the minutes of the Council of the late Province of Quebec, dated Monday the ninth day of November 1789, to have been the desire of his Excellency Lord Dorchester the Governor-General "To put a mark of honor upon the families who had adhered to the Unity of the Empire, and joined the Royal Standard in America before the treaty of separation in the year 1783, and for that purpose it was then Ordered, by his Excellency in Council, that the several Land Boards (should) take course for preserving a registry of the names of all the persons falling under the description aforementioned, to the end that their posterity might be discriminated from (the then) future settlers in the parish registers and rolls of the militia of their respective district, and other public remembrances of the Province, as proper objects, by their persevering in the fidelity and conduct so honorable to their ancestors, for distinguished benefits and privileges;" but as such registry has not been generally made; and as it is still necessary to ascertain the persons and families upon the lands now about to be confirmed to them, without the incidental expenses attending such grants: Know KNOW YE, that I have thought proper, by and with the advice and consent of the executive council, to direct all persons, claiming to be confirmed by deed under the seal of the province of their several possessions, who adhered to the unity of the empire and joined the royal standard in America, before the treaty of separation in the year 1783, to ascertain the same oath before the magistrates in the michaelmas quarter-sessions assembled, now next ensuing date of the proclamation, in such manner and form, as the magistrates are directed to receive the same; and all persons will take notice that if they neglect to ascertain, according to the mode above set forth, their claims to receive deeds without fee, they will not be considered as entitled, in this respect, to the benefit of having adhered to the unity of the empire and joined the royal standard in America before the treaty of separation in the year 1783."

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The United Empire Loyalists' Association of Canada (UELAC) is an organization of Loyalist descendants and others interested in Canadian history, in particular the role of the United Empire Loyalists.

While the honorific "United Empire Loyalist" is not part of the official Canadian honours system, modern-day descendants of Loyalist refugees may employ it, sometimes using "U.E." as post-nominal letters. The practice, however, is uncommon today, even in original Loyalist strongholds like southeastern Ontario. Historians and genealogists use it extensively as a shorthand for identifying the ancestry of particular families

Today the title U.E. is Canada's only hereditary title, descendants of the loyalists are entitled by royal decree to append the initials "U.E.," for "United Empire," to their names, literally thousands of Canadians, Mohawks, Six Nations, and many others can claim it as descendants of the United Empire Loyalists, one of pre-confederation honors and Canada's great founding peoples -- the only hereditary title recognized in Canada. With the exception, the Queen of Canada is a hereditary title, and a Canadian one.

Its believed by the United Empire Loyalist Association of Canada, a federally incorporated genealogy society that nearly 10% of Canadian could qualify to use this Mark of Honor. In Canadian heraldry, Loyalist descendants are entitled to use a Loyalist coronet in their coat of arms.

Old plays at Sour Springs Forest Theatre, It was called “The New Beginning” because after living prosperously for hundreds of years in the Finger Lakes region and along the Mohawk River, the Six Nations had to leave their homelands and start anew in the wilds of southern Ontario. The left the vast fields of corn, beans and squash, The Three Sisters. They left fruit orchards, villages and huge fortified buildings the European writers called castles. They came to a land barren of shelter from the elements and already depleted of fur-bearing animals. They were United Empire Loyalists as much as and Scot or Englishman but they have never been called that because they were natives. And they have rarely been treated as U.E.L.s." - Mohawk reporter: The Six Nations columns of George Beaver

On January 4, 1791 Lord Dorchester had appointed a committee of five members of the Executive Council of the Province of Quebec to inquire into the claims of the Indians settled at the Grand River and Bay of Quinte for lands assigned them and "pointed out the expediency of ascertaining the nature and extent of these claims, to give full effect to any Promises, and to gratify any reasonable expectations, in which the faith of Government might be concerned, in such a way as would best answer the end of making a permanent provision for the persons interested and their descendants and securing their comfort and tranquility.

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On December 21,1791 Canadian Government confirmed the Haldimand Proclamation to uphold the honor of the crown, and the faith of the government was pledged to the Mohawk on the Grand River and Bay of Quinte.

The grant of the Grand River territory had been notoriously made for the exclusive benefit of the Mohawk nation.

On December 24th,1791 The Committee having considered the whole are humbly of opinion that as the faith of Government is pledged to the Mohawk chiefs for the two tracts mentioned above, every precaution ought to be taken to preserve them in the quiet possession and property of them and the Committee submit that an Act of the provincial Legislature, or a grant under the Great Seal of the Province be made in favour of the principal chiefs on behalf of their nation, or persons in trust for them for ever.

"On the subject of Joseph Brandt's [sic] letter respecting the lands on the Grand River I am to observe, that without doubt the Indians are entitled to the full accomplishment of Governor Haldimand's promise to them without any diminution, and it shall be carried into execution accordingly" ... "As to the nature of the deed it should be framed in every respect according to their own wishes, so as to secure the true interest of themselves and their posterity forever in the most effectual manner. It will be very desirable that they should consider this matter fully among themselves, and bring forward the heads of the deed they wish to receive. You will be pleased to recommend this measure to Captain Brandt, and to acquaint him with His Lordship's sentiments in general."

While this letter came from Motz, it clearly references the position of Lord Dorchester regarding the Six Nations' land issues. A government committee was struck to investigate the claims of the Six Nations, and its report, dated 24 December 1791, stated, "as the faith of Government is pledged to the Mohawk Chiefs" ... "every precaution ought to be taken to preserve them, in the quiet possession and property of them and the Committee submit, that an Act of the provincial Legislature, or a grant under the great seal of the province be made in favor of the principal Chiefs, on behalf of their Nation, or persons in trust for them, for ever."'

Echoing Dorchester's sentiments, this committee recognized that if the honour of the Crown was to be upheld, Haldimand's Proclamation had to be confirmed.

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The Simcoe Patent of 1793 Firmly Rejected

On January 14, 1793 Canada attempted to remove this international liability to the Mohawk Posterity by creating a domestic numbered treaty; the Simcoe Patent to replace the Haldimand proclamation which would have voided the Faith Pledged to the Mohawk people and Mohawk of Grand River would have come under the crown protection, as opposed to being attached to it.

"Drawn up in accordance with the new survey, still shorted the Natives by 275,000 acres. Simcoe told the Mohawk they couldn't sell any land to anyone except themselves or the king. When the Mohawk objected, Simcoe turned the matter over to Lord Dorchester. Early in 1796, Lord Dorchester agreed to allow the Natives to sell land, provided it was first offered to the king. Joseph Brant rejected that immediately." - Molly Brant: Mohawk Loyalist and Diplomat

To Joseph Brant, this patent only reinforced the Crown's trusteeship interpretation of the title. He and the Grand River chiefs rejected Simcoe's Patent and claimed that it was not binding on them. The Simcoe Patent was rejected and never confirmed by the Canadian government.

Joseph Brant and the Grand River Mohawks denied Simcoe’s Grant of 1793, as it was made for the province of Upper Canada, named “Six Nations” as the real party in interest to Grand River territory and placed the instrument under Canada’s protection and domestic jurisdiction, naming the Mohawk as resident subjects and not British allies.

It is documented and confirmed by Governor Simcoe himself, in a letter to his superior Lord Dorchester, Dec. 22, 1795 that Joseph Brant and the Grand River Mohawks rejected the proposed Simcoe Grant of 1793. Lord Dorchester assured Brant the original instrument would be honored.

Brant's Foresightful Reason for Rejection of Simcoe Patent: The Parliament of Canada has legislative authority under s. 91(24) of the B.N.A. Act to provide for the surrender of reserved Indian lands, even though this be done by a method which interferes with the system of internal government of Indian bands by hereditary chiefs. Members of the Six Nations Indians who settled on reserved land conveyed by the Haldimand Deed of October 25, 1784 (sometimes called the Haldimand Treaty), a transfer confirmed by the Simcoe Deed of January 14, 1793, did so under the protection of the Crown, and they and their posterity consequently owed allegiance to the Crown, becoming subjects thereof. It cannot therefore be contended that they are immune from the competent laws of Canada, however unfair or unjust it may be in particular circumstances to interfere with their traditional system of internal government.Logan v. A.G. Canada (1960), 20 D.L.R. (2d) 416, O.W.N. 361 (Ont. C.A.), is the only case to my knowledge which directly addresses this issue. In Logan, a member of the Six Nations Confederacy, composed of the Mohawk, Oneida, Onondaga, Cayuga, Seneca and Tuscarora nations, argued unsuccessfully that members of the Six Nations were not subjects of the Crown and therefore outside the reach of the Indian Act. In dismissing the argument, King J., at 442, argued that the Six Nations were once "faithful allies of the Crown" but became "loyal subjects of the Crown" by virtue of accepting reserve land from the Crown.

By 1793 the Six Nations were becoming anxious that the informal nature of the 1784 Haldimand document might be seen as a mere licence to occupy the land, and not a true title to it. To satisfy those misgivings Governor Simcoe clarified and made more explicit the 1784 grant in Letters Patent January 14 and April 1, 1793. The grant confirmed ... "to the said Chiefs, Warriors, Women and People of the said Six Nations, and their Heirs, the full and entire possession, Use benefit and advantage of the said District or Territory of Land to be held and enjoyed by them in the most free and ample manner and according to the several Customs and usages by them the said Chiefs, Warriors, Women and People of the said Six Nations. The grant went on to provide that no subsequent conveyance or alienation of the land would be valid except "among themselves the said Chiefs, Warriors, Women and People of the said Six Nations", and that any surrender of the land could only be to the Crown. This accorded with long-established British law and policy in the Americas since the early 17th century. It is important to note the general reference to Six Nations customary law in the words "customs and usages" as recognition by the British of the continuity of customary law in principle. Even more significant is the reference to women as recipients of the grant. According to the Six Nations constitution, Gayanashagowa, women in the Six Nations are owners of all the land and the soil.

These laws and faiths pledged to the Mohawks longhouse laws as they are customarily recognized. By law, these laws are embedded into common law and remain true for the whole land, therefore, Due to these extensive customary laws that are bound to the Royal British crown and the government of the Iroquois Confederacy (Six Nations of Indians), the Canadian governments must be liable to the ancient Mohawk legal order.

Customary law, the Crown and the common law

"This thesis is a cross-disciplinary study of legal history and customary law. Respect for, and accommodation of local customary law has been a constant and integral feature of law in Britain since Anglo-Saxon times. It guided the emergence of the common law, and continues as a rule of law to the present day. Such respect and accommodation was an essential principle that permitted the peaceful consolidation of the British realms from its constituent parts. Continuity of law is a legal presumption whether territories have been added by conquest, cession or annexation. The principle respect for local legal custom was one of two schools of thought carried to Britain’s overseas colonies; the other was a theory that local customary law could be extinguished by non-recognition on the part of the British sovereign or his/her delegates. Nevertheless, customary laws and institutions were explicitly and implicitly recognized in the colonial period. The doctrine has a modern application with respect to the customary law ways of indigenous peoples wherever the common law has been extended overseas. Rights under customary law are distinguished from Aboriginal rights, though there is some overlap between the two. Customary law can only be extinguished by an express statute, or by clearly unavoidable implication. Legal customs are not invalid merely for being contrary to the common law. Common law defers to valid customary law as a matter of constitutional common law. But the common law provides tests by which courts can identify valid legal custom. Where a valid, unextinguished legal custom is found, courts are bound by the common law to apply it. Where customary law can be identified, it binds the servants and agents of the Crown, except when it is inconsistent with Crown sovereignty itself." (Source)

"Per McLachlin C.J. and Gonthier, Iacobucci, Arbour and LeBel JJ.: Under English colonial law, the pre-existing laws and interests of aboriginal societies were absorbed into the common law as rights upon the Crown’s assertion of sovereignty unless these rights were surrendered, extinguished or inconsistent with Crown sovereignty. The enactment of s. 35(1) of the Constitution Act, 1982 accorded constitutional status to existing aboriginal and treaty rights, including the aboriginal rights recognized at common law. However, the government retained the jurisdiction to limit aboriginal rights for justifiable reasons in the pursuit of substantial and compelling public objectives. The test to establish an aboriginal right focuses on the integral, defining features of the relevant aboriginal society before the Crown’s assertion of sovereignty. A claimant must prove that a modern practice, custom or tradition has a reasonable degree of continuity with a practice, tradition or custom that was in existence prior to contact with the Europeans. The practice, tradition or custom must have been integral to the distinctive culture of the aboriginal people in the sense that it distinguished or characterized their traditional culture and lay at the core of the aboriginal people’s identity." (Source)

Customs and Usages (Maxims of Custom)

An example of how the Rejected Patent of 1793 has been used to undermine the Mohawk Posterity

The Six Nations adherence to their customary requirement for the participation of women in land dealings can be seen in subsequent documents around alienation of parts of the same parcel of land. On May 20, 1796, "the Sachems, War Chiefs and Principal Women of the Mohawk, Oghquaga, Seneka, and Cayuga Nations, residing at the Grand River, in the Province of Upper Canada" purported to grant 2,000 acres of land through a formal sale, for the token consideration of one pound, to Nancy and Mary Margaret Kerr: KNOW ALL MEN BY THESE PRESENTS that we, the Sachems, War Chiefs and Principal Women of the Mohawk, Oghquaga, Onandaga, Seneka and Cayuga Nations, residing at the Grand River, in the Province of Upper Canada, for and in consideration of the Goodwill, Friendship, and affection which we have for Nancy Kerr, and Margaret Kerr, in whose veins flows our blood, they being children of Robert Kerr and Elizabeth Kerr (daughter of Mary Brant our sister) and also in and for the further consideration of the sum of one Pound lawful money of the said Province ... do give, grant, enfeoff, alienate and confirm unto the said Nancy Kerr and Mary Margaret Kerr (as tenants in common) a certain Tract of Land [situated within the Haldimand (1784)/Simcoe (1793 grant].305 Two points of interest arise from this document. One is that not only were women of the Six Nations mentioned generally in the document of transfer, but also that almost a third of the Six Nations signatories were women. This is evidence that the men of the Six Nations considered their presence as quite legitimate, and even requisite. The second point is the example of customary law being used to assert kinship by descent through the female line, rather that through the male line as with the Anglo-Saxons. Membership in a clan or Nation of the Six Nations Confederacy was determined by one's mother. This means that Mary Brant's children and her daughter's children were also members, as reflected in the phrase, "in whose veins flows our blood." The land transfer was therefore not directly to Europeans, which had been contrary to colonial law and policy for more than two centuries and reiterated in the Royal Proclamation of October 7, 1763. Instead, it was to Aboriginal women who were entitled to hold land by the customary law of their own people. Six Nations women continued to be featured in documents surrendering land to the Crown, and in Crown grants, well into the 19th century.

An 1828 document exists showing “Six Nations” leased Grand River Mohawk lands to the New England Company to build the first Indian Residential School. An 1870 document where the New England Company proposed that “Six Nations” take over control and operations of the “Mohawk Institute.” Plan of the several parcels of land at the Mohawk Village on the Grand River, Township of Brantford, Gore District, [Ont.], to be granted to the New England Company for the benefit of the Mohawk Institution.

Point of Conflict: Iroquois Customary Law vs French Customs that developed the intention and transactional process and heritage interests under the Haldimand Proclamation and French Law. The Haldimand Proclamation is an international treaty, and evidences a connection to the Crown, and by replacingthis document with the Simcoe patent removes the pledge of faith to the Mohawk of the Grand River and Bay of Quintte. This is fatal to the Loyalist Mohawk Posterity, who are named with greator certainty in the Haldimand Proclamation, and no mechanism exists to disposes these people. The creation of the Simcoe Patent was done to establish a mechanism to dispossess the Loyalist Mohawk Posterity under a domestic process. An attempt to remove the International standing of the Loyalist Mohawk Posterity under operation of the Haldimand Proclamation of 1784 and the Ratified document, the Haldimand Pledge of 1779.

The Simcoe Patent is claimed to have confirmed the Haldimand Proclamation, this use of language in name documents suggests that the Simcoe Patent is a valid instrument, however the Patent was fully rejected and never confirmed by the Canadian government in the manner that the Haldimand Proclamation was confirmed by the Canadina Government to uphold the honor of the crown.

Governor Dorchester’s regulation of 1794

In 1794 Governor Dorchester issued instructions to the Department of Indian Affairs which once again repeated the prohibition on selling Indian lands to anyone other than the Crown:

"Art. 1st. It having been thought advisable for the King’s Interest that the system of Indian Affairs should be managed by Superintendents under the direction of the Commander in Chief of His Majesty’s Forces in North America; no Lands, therefore, are to be purchased of the Indians but by the Superintendent General and Inspector General of Indian Affairs, or in his absence the Deputy Superintendent General or a Person specially commissioned for that purpose by the Commander in Chief. In addition, his regulation set out the procedure to be followed for a surrender.147 The same instructions were revised and issued again in 1812."

The Dorchester regulation has been characterized as an “Imperial instrument” by the case law because it was not issued by the legislative branch of the colony’s government but directly by the Governor in his capacity as representative of the imperial Crown

Walpole Island First Nation Inquiry, Boblo Island (2000) The Commission cited among other things a letter of 1784 signed by Governor Haldimand in which he emphasized that “the claims of individuals, without distinction, upon Indian Lands at Detroit, or any other part of the Province are INVALIDand that “no Purchase of Lands belonging to the Indians, whether in the name or for the use of the Crown, or in the name or for the use of Proprietaries of Colonies be made, but at some general meeting at which the Principal Chiefs of each Tribe claiming a proportion in such lands are present....” The Commission concluded:

"The provisions of the Royal Proclamation, then, formed the policy that governed surrenders of land by aboriginal peoples to the Crown at the time [i.e., 1786]. Any failure to comply with its provisions rendered surrenders invalid. Specifically, while it does not appear that His Majesty’s permission, or leave and licence, to achieve surrenders meant that permission had to be obtained directly from the King, it does seem that such instructions were required to be obtained at least from the Governor or the Superintendent of Indian Affairs. Once instructions to obtain a surrender were received, it was necessary to hold a general assembly or “publick meeting” of the principal chiefs of each tribe claiming an interest in the subject lands, at which time lands could be purchased. The Governor, the Superintendent of Indian Affairs, or the Commander in Chief were required to be present at the assembly"

Treaty of Canandaigua of 1794

Red jacket stands up and he addresses the assembly by saying, brother, we, the citizens of the Six Nations will now tell our minds. The business of this treaty is to break the chain of friendship between us and the 15 fires of the United States government, not all of the "six nations" were necessarily represented at this treaty.

The Canandaigua Treaty of Peace is signed. This treaty between the United States and the Six Nations recites that it is made for the purpose of removing from the Six Nations' mind "all causes of complaint and establishing a firm and permanent friendship." The United States acknowledges the boundaries of the lands belonging to the members of the Six Nations.

There were some members of the Mohawk nation present, but there were no Mohawks in attendance of the signing. And the reason is Joseph Brant, Pickering really wanted Brant to come, but, Instead, Brant went to Detroit to deal with the aftermath from the battle of fallen timbers.

Colonel Pickering to Captain Brant "When I wrote you on the 17th, I had not time to express any opinion relative to the Mohawk nation, as implicated in the present treaty. As one of the Six Nations, I did not think it proper to name it as not included in the treaty; nor to omit it by enumerating the other five. For general concerns, I consider the whole six as forming one confederate nation."

The “Six Nations” have signed treaties of their own, with the United States; with no Mohawk signatories or participation.

1812 GOVERNOR’S INSTRUCTION

On May 1, 1812, the Crown’s duly authorized representative, the Governor-General of Upper Canada issued instruction further regulating the alienation of Indian lands in the then Province of Upper Canada by requiring: (a) that the person administering the government in Upper Canada requisition any Indian lands wanted for public service and identify those lands with a sketch; (b) that all purchases by the Crown be made at a public council according to the ancient usages and customs of the Indians to whom the lands belonged, with proper interpreters present and without the presence of liquor; (c) that the Governor or two persons commissioned by him, the Superintendent of Indian Affairs, two or three members of his Department and at least one military officer be present at the public council; (d) that there be a proper explanation to the Indians of the nature and extent of the proposed disposition and the proceeds to be paid therefore; and (e) that deeds of conveyance and descriptive plans of the lands so conveyed be attached to the deed and be executed in public by the Principle Indian Chiefs and the Superintendent of the Indian Department or his appointee, and duly witnessed.

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From the Records of the Federal - Provincial Arbitration (Unsettled Accounts Arbitration), Indian Claim, Robinson Treaties, Vol 5, Entered in the Department of the Indian Affairs, January 12, 1897:

The Hon. J.J. CURRAN, Q.C., SOLICITOR GENERAL FOR CANADA: We contend that these Treaties are governed by international, rather than municipal law, they were made with the tribes under the authority of the Sovereign, and the faith of the nation was pledged in dealing with those annuities. The crown is a trustee in those matters, and occupies a special relationship towards those Indians, and is bound to watch over their interests and enforce their rights, and will not be allowed to set up its own laches as a defence against these claims. All these claims are safeguarded in a manner that is quite a different manner from any claim that would arise between two subjects of Her Majesty who might come before any court to have their matters adjudicated upon. (Arbitration Transcript, P63)

Note: Laches - In Law, failure to do a thing at the right time, is inexcusable negligence. - Slackness, Negligence or Remissness.

Senator, Eugene E. Forsey, UE; Hon. Pres. (1980-91)

“...we cannot hope to build a secure, a happy, a decent, a human future, if we neglect, if we repudiate, our past. This doesn’t mean living in the past. But it does mean preserving the values of the past as a basis for the development of the future...”

Frank Oliver Minister of the Interior, HOC (April 5, 1909)

"'It is the policy of the Canadian Government, as I understand it, to recognize its relations with the Six Nations Indians of the Grand River as being on a different footing from those with any of the other Indians of Canada. The Six Nations Indians of the Grand River came to Canada under special treaty as allies of Britain, and the policy of the Canadian government is to deal with them having that fact always in view. It is no part of the intention of the Department to make any official action except through recognized tribal authority of the Six Nations."

The Peace Palace, The Hague, Netherlands

28 August 1913 The Palace officially opened on 28 August 1913, and was originally built to provide a home for the PCA, a court created to end war by the Hague Convention of 1899.

The Conference was convened at the initiative of Czar Nicholas II of Russia (cousin of King George V) "with the object of seeking the most objective means of ensuring to all peoples the benefits of a real and lasting peace, and above all, of limiting the progressive development of existing armaments."

Governor General of Canada, Prince Arthur, honorary chief of the Six Nations (1912)

Flint and Feather, by Paulene Jonson, dedication "His Royal Highness, the Duke of Connaught, who is head chief of the Six Nations Indians"

"A Royal Mohawk Chief" by E. Pauline Johnson [Tekahionwake] (1862-1913) From: Legends of Vancouver. "...Arthur, Duke of Connaught, is the only living white man who to-day has an undisputed right to the title of "Chief of the Six Nations Indians". He possesses the privilege of sitting in their councils, of casting his vote on all matters relative to the governing of the tribes, the disposal of reservation lands, the appropriation of both the principal and interest of the more than half a million dollars these tribes hold in Government bonds at Ottawa, accumulated from the sales of their lands. In short, were every drop of blood in his royal veins red, instead of blue, he could not be more fully qualified as an Indian chief than he now is, not even were his title one of the fifty hereditary ones whose illustrious names composed the Iroquois confederacy before the Pale-face ever set foot in America.

It is necessary that a chief of each of the three "clans" of the Mohawks shall assist in this ceremony. The veteran chief, who sang the formula, was of the Bear clan. His son, Onwanonsyshon, was of the Wolf (the clanship descends through the mother's side of the family). Then one other chief, of the Turtle clan, and in whose veins coursed the blood of the historic Brant, now stepped to the edge of the scarlet blanket. The chant ended, these two young chiefs received the Prince into the Mohawk tribe, conferring upon him the name of "Kavakoudge," which means "the sun flying from East to West under the guidance of the Great Spirit."

The ceremony was ended. The constitution that Hiawatha had founded centuries ago, a  constitution wherein fifty chiefs, no more, no less, should form the parliament of the "Six Nations," had been shattered and broken, because this race of loyal red men desired to do honour to a slender young boy-prince, who now bears the fifty-first title of the Iroquois..."

Frank Oliver Minister of the Interior, HOC (May 11, 1914)

"But there are bands of the Six Nations Indians located on the Grand River in Ontario who, I maintain, are in a different legal position from any other Indian bands who are native to the country ... and were given lands under a special treaty, not as subjects of Great Britain, but as allies of Great Britain, and I maintain that the holding of these Six Nations Indians on the Grand River is of such a kind that this parliament has no right to interfere with it. I admit that parliament has the power to interfere with the rights of Indians under treaty made with this government. But I say that this parliament has no right to interfere with a treaty made between the imperial government and the Six Nations Indians."

United Kingdom Parliament (March 6, 1922)

Lord H. CAVENDISH-BENTINCK asked the Under-Secretary of State for Foreign Affairs "whether, seeing that in the year 1784 a formal Treaty was entered into between the British Government and the Six-Nations Tribe, that the validity of the Treaty has been repeatedly recognised, and that even so recently as 1909 (1914) the Canadian Government still held that this Treaty was operative..."

Mr. CHURCHILL "...the reference is to the Haldimand Treaty of 1784, the question which has arisen is whether the Six-Nations Indians, occupying the lands set apart by that document, are amenable to certain Canadian legislation."

On July 5, 1973 Queen Elizabeth affirmed the Treaties in an address to the Chiefs in Alberta, stating “You may be assured that my Government of Canada recognizes the importance of full compliance with the spirit of your Treaties.

On January 28, 1982 Justice Lord Denning, Court of Appeals for the United Kingdom affirmed the integrity and durability of the First Nation – Crown relationship by proclaiming that “There is nothing, so far as I can see, to warrant any distrust by the Indians of the Government of Canada. But, in case there should be, the discussion in this case will strengthen their hand so as to enable them to withstand any onslaught. They will be able to say that their rights and freedoms have been guaranteed to them by the Crown, originally by the Crown in respect of the United Kingdom, now by the Crown in respect of Canada, but, in any case, by the Crown. No Parliament shall do anything to lessen the worth of these guarantees. They should be honoured by the Crown in respect of Canada ‘as long as the sun rises and the river flows’. The promise must never be broken.”

July 4, 2010 R. Maracle of the Mohawks of the Bay of Quinte, was one of two Mohawk leaders representing two Royal Chapels located on First Nations territories in Ontario. They were invited to meet the Queen and Prince Philip at St. James Cathedral, where the Queen presented a gift of eight silver hand bells engraved "The Silver Chain of Friendship 1710-2010," to mark the 300th anniversary of the 1710 visit of the "Four Indian Kings" with Queen Anne in England.

Her Majesty’s Royal Chapel of the Mohawks exists as the oldest building in Upper Canada and stands as a reminder of the significance of the role and relationship the Mohawks had as allies and protectors of these territories

During the reign of Queen Anne a valuable communion set was presented by her Majesty to the Mohawk chapel -- in other words, to her Majesty's loyal allies, the Mohawks, who at that time resided in the State of New-York. When the Revolutionary War ended adversely to the British, the Mohawks, with many United Empire loyalists, removed to Canada.

On Oct. 25, 2012 at Rideau Hall Canadian Governor General David Johnston and Prime Minister Stephen Harper presented the Six Nations with a flag and medals commemorating their participation in the war of 1812.  Accepting on behalf of the Confederacy Chiefs were Six Nations historians Richard Hill and Keith Jamieson.

Johnson and Harper heard the story of the Two Row and Crown Pledge Belt from Richard Hill. When the prime minister thanked the Six Nations for “defending Canada at Queenston Heights", Hill gently corrected the prime minister. He pointed out that Canada didn’t exist at the time of the War of 1812 and that, “The Six Nations fought for its allies, land, and the right to exercise our own laws on that land.” *

Jason Delaney, CD Lieutenant Directorate of History and Heritage (April 5, 2014)

On January 17, 1918 "...the Military Service Act was amended by order in council to allow exemptions for Indians on the grounds of their limited citizenship rights as well as previous treaty agreements. The Government of Canada responded to a large representation of protest from many aboriginal councils from across Canada." ... "In For King and Konoto: Canadian Indians and the First World War, by Timothy Winegard, there is mention of the Six Nations Council writing to the King in October 1917 protesting that Indians were "Allies of the Crown" and therefore not subject to mandatory service by the government of Canada..."

Mr. Matthew Green, House of Commons (February 16, 2021)

"...Currently 900 unsettled first nation land claims that are historically based on the racist doctrine of discovery and the British colonial legal fiction called Terra Nullius, which effectively erased a millennia of indigenous inhabitations of these lands pre-European contract?

While I am no expert in the Robinson-Huron Treaty for incidents of clear and intentional treaties by the Crown, such as the Haldimand Treaty of October 25, 1784, for the purpose of this debate, I would like to remind members of the House who may not know or may have forgotten the text of this treaty, which states: (Haldimand Proclamtion of 1784, read into the record)"

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