The land dispute situation in Haldimand and Brant Counties has long ago reached intolerable levels.
Since I have access to the full range of documents relating to this issue, I have created a report (attached below) that should make it crystal clear that there is not a single acre of unsurrendered land outside the present day Six Nations of the Grand River Reserve.
Therefore the title of the present owner of Lot 3 RangeWest of the Caledonia to Townsend (McKenzie) Road is valid and secure – despite the assertions of the current occupiers that the land was never surrendered.
I am sending this report to County, Provincial, and Federal politicians and officials, the Ontario Provincial Police, Justice Harper of the Superior Court in Brantford, the land developer and legal representative, the Lands and Resources Office in Ohsweken, members of the Six Nations Elected Council, and selected newspaper reporters.
If I can secure the permission of the Ontario Provincial Police to enter the disputed property (without getting arrested) I will personally deliver a copy of this report to Skyler Williams, the leader of the protest group.
While I am a Medical Scientist (Ph.D. McMaster University) and a Registered Forensic Psychologist in Ontario (retired), I have been researching Six Nations history, culture and genealogy since 1975. My credentials in this field will be reflected in the book I published in 2002 seen below:
Understanding Ontario’s First Nations Genealogical Records: Sources and Case Studies – Ontario Ancestors 
All proceeds from the sale of this book go the The Ontario Genealogical Society (Ontario Ancestors), none to myself.
I am submitting the report below with the sincere hope that it will help to bring “normalcy” to Caledonia and surrounds, and to convince the Six Nations protesters that there is no unsurrendered land in the Haldimand Tract, and only a dispute over interest monies that needs to be negotiated. It may also serve as an Amicus Curiae report to the Court when needed, and encourage the Federal Government to assert once again, and in the clearest terms, that the 1844 Surrender is valid.
David K. Faux, Caledonia
Land Ownership in the Haldimand Tract: A Historical Perspective From 1638 to 2020 With a Focus on Lot 3 Range West of the Caledonia to Townsend (McKenzie) Road, Oneida Township
Purpose of the Present Study: Over the years some Six Nations members have asserted that their ancestors did in fact NOT surrender various parcels of land outside the present boundaries of IR 40, the Six Nations of the Grand River Reserve.
Some of the most contentious claims include the Burtch Tract and the Eagle’s Nest Tract in Brant County, and parts of Oneida Township south of Caledonia, in Haldimand County.
The goal here is to explore the evidence relating to land ownership in the area that is today Brant County and Haldimand County, Ontario, Canada with a view towards determining legal ownership of a parcel of land (Lot 3 Range West of the Caledonia to Townsend (McKenzie) Road) in Haldimand County.
Construction had begun on this land in order to create housing sites, but in July 2020 work was brought to a halt when Six Nations members and their supporters occupied the land, naming it 1492 Land Back Lane. At the time of writing, the land is still occupied by this group.
The question to be answered is whether there is a factual basis to their claim that the land was not surrendered to the Crown by the Six Nations Chiefs in Council when the present Reserve was created in the years leading up to 1850. If the documentary sources indicate that the land was surrendered, then the present legal owner’s title, based on a Crown Patent, is valid.
**While it was deemed necessary to provide extensive information on the general history of land ownership in the Grand River Valley, those whose sole focus is on the present disputed land can turn to “Legal Questions and Answers” further on in this manuscript, and read from there.
Note as to Sources: While the present author has read all of the key sources in their original form (e.g., Surrenders, historical and archaeological references), many are found in difficult to access archives. Thus here we will use selected secondary sources for less critical material. The author knows all the individuals whose publications are referenced herein, and can attest to the fact that each (e.g., Charles M. Johnston) is a highly respected academic. For the period after 1840, when the disputed surrenders begin, it is important to provide original sources.
Background to Land Ownership in the Haldimand Tract:
1492 to 1782: The history of human settlement in what is today Southwestern Ontario (SWO) can be traced in the archaeological record back to the Early Archaic Period circa 7,500 years B.C. The presence of Iroquoian peoples in SWO can be detected from about 900 A.D. as far north as the Severn River (juncture with the Canadian Shield). The climate and soil conditions of the area from what is today Orillia southwards permitted the growing of “The Three Sisters” (corn, beans and squash), food staples for Iroquoian peoples down through historic times.
Neighbours to the north and west appear to be the ancestors of the Anishinabe (Ojibway, Mississauga, Ottawa) peoples of historic times. In the years prior to 1638 there is little evidence of conflict between these two linguistic – cultural groups, and considerable evidence, via the archaeological record, and the Jesuit Relations documents, of a long standing trading relationship where Iroquoian peoples traded corn for beaver pelts. Conflict came from the south, from other Iroquoian speaking peoples.
The French and Dutch (as well as English after 1664) had an insatiable desire for beaver pelts – used in Europe for fashionable beaver felt hats. Much of this market was supplied by the Five Nations Confederacy. This Confederacy included, from east to west, the Mohawk, Oneida, Onondaga, Cayuga and Seneca peoples. The territory of the Five Nations extended from what is today Albany westward to just east of the Niagara River in what is today New York State. By 1630, in the territory of the Five Nations, the beaver populations plummeted and left the people with few options for obtaining essential European trade goods such as guns and copper pots.
To the north lay the Huron / Wendat and Petun, and to the west were the Wenro, and groups such as the Erie, while to the south were the Susquehanna – all Iroquoian speaking. The area of the Niagara Peninsula, the location of the Grand River, and where the Haldimand Tract would later be located, was occupied by the Attiwandaronk / Neutral peoples, also Iroquoian speaking.
With an inability to engage in competitive trade, the Five Nations, bolstered by a strong Confederacy, and well armed thanks to Dutch traders, chose to raid their neighbours in all directions to secure territory in which to hunt, and to completely destroy the competition. At this time epidemics were sweeping across what is today Upstate New York and SWO. These had weakened all peoples in the region to the point where population numbers dropped by more than half in most villages. Hence between 1638 and 1656 the better armed Five Nations had managed to completely decimate all of the above named peoples – committing acts of genocide and unimaginable acts of torture in the process.
Due to the epidemics, population replacement was one of the goals of these “Beaver Wars”, and so some non combatants, largely women and children, were spared to be adopted into the families of the Five Nations – primarily the Seneca and the Mohawk. Some few also escaped west to the territory of their allies among the Anishinabe, and some few Huron found their way to Ancienne Lorette near Quebec City where their descendants live today. Most survivors simply disappeared and are lost to history.
“Torture, slavery, and death were not the special attributes of the Iroquois” (Dean R. Snow, “The Iroquois”, Blackwell, Cambridge MA, 1996, p.116) – however the actions of the Five Nations appear as “classic examples” of these types of wars.
Concerning the Attiwandaronk / Neutral peoples of the Niagara Peninsula and the Grand River, their fate was sealed in 1638 by accepting the Wenro people fleeing from the Senecas. In 1647 and again in 1651 the Five Nations turned their sights on the Neutral and completely destroyed or dispersed them to Saginaw Bay and beyond, the Seneca adopting some in the process (as part of the “population replacement” strategy).
As a result of the genocidal wars perpetrated by the Five Nations (who became the Six Nations with the addition of the Tuscarora from North Carolina circa 1714), SWO was completely void of a human presence for a number of years.
The Five Nations later tried to secure and possess the territory north of Lake Ontario by establishing 8 villages. For example, La Salle set westward in 1669 and met Jolliet at an Iroquois village west of Lake Ontario, somewhere near the present City of Brantford (Ontarioarchaeology.org, Ontario Archaeological Society, 2020 for this reference and the above).
Perhaps this is, Tinaouatoua, located in the heart of the former Neutral homeland between the head of Lake Ontario and the Grand River (Neal Ferris, “The Archaeology of Native-Lived Colonialism: Challenging History in the Great Lakes”, The University of Arizona Press, Tucson, 2009, p.118). However, due to the raids by the “Five Fires Confederacy” involving the Mississauga, Ottawa, Ojibway, Pottawatomi and other Anishinabe, it became clear that retaining possession of these villages by the Five Nations was not sustainable. Over the years all of these villages were destroyed, and the occupants removed back to what is today Upstate New York.
Thus, by 1696 the Mississauga were in possession of the village sites on the north shore of Lake Ontario (Snow, p.119), and were the accepted (by the British and Six Nations) legal “owners” of the land in Southwestern Ontario at the time of the American Revolution.
In 1701 an unknown group of 20 Five Nations Chiefs tried to at least salvage beaver hunting rights. By a deed of that year they, “surrender, deliver up and forever quit claim”, lands in SWO (to which they had no legal claim) by petitioning “our great Lord and Master the King of England” (hardly a term that would be used by a people claiming to be sovereign – as many Six Nations maintain today).
This document has come to be known as the “Treaty of Nanfan” (after the New York Governor of that name). This was not a treaty, it was an attempt to forge rights to hunt beaver, and an examination of the front and back via a photograph of the original, shows that this did not even include the Colonial seal, let alone the Crown seal – both needed if this was a “treaty”. In fact it is a trading document of historic interest only – despite recent claims of Six Nations asserting that it gives them land rights throughout all of SWO.
An extremely well researched document on this and all of Six Nations history from 1660 to today is, Garry Horsnell, “A Short History of the Six Nations of the Grand River”, 6th Edition, 2011. Unfortunately only the 2008, 4th Edition appears to be presently available online:
Horsnell includes transcripts of many of the key documents referred to in the present work.
1783 to 1840: As the American Revolution drew to a close, it became clear that the Six Nations lands were not included in the Treaty of Paris. Therefore the British Colonial authorities, including Governor Sir Frederick Haldimand, offered lands in Canada (still under Crown control) to those Six Nations who wished to settle there.
The Lower (Ft. Hunter) Mohawks under Chief John Odeserontyon chose to settle at the Bay of Quinte. Chief Joseph Brant Thayendanagea head of the Upper (Canajoharie) Mohawks wished to have lands closer to the Senecas, many of whom had chosen to stay in their ancestral villages in what is today Upstate New York. See Johnston (Charles M. Johnston, “The Valley of the Six Nations: A Collection of Documents on the Indian Lands of the Grand River”, The Champlain Society, Toronto, 1964) as an excellent source for this period – transcripts of the referenced documents are included in this source.
In the years leading up to 1783, some Delawares had moved to the Grand River forming scattered settlements “Below the Rapids” south of what is today Cayuga, Haldimand County.
Governor Sir Frederick Haldimand sent an officer in the Six Nations Indian Department, Lt. John Young, to the region to report back events of concern in the area (such as a murder of a party of traders headed to Detroit, on the shore of Lake Erie). Knowing that the War was over, and seeing a potential to obtain a farm similar to what he owned along the Mohawk River, Young purchased a one mile by one mile tract of land near Cayuga from the Mississauga Chiefs. The latter signed the deed on 1 January 1784 (LAC, RG10, Vol. 894, Claims of the Descendants of Adam Young).
Almost a year later, Governor Haldimand issued an unofficial (no Great Seal of the Province of Quebec was affixed) “proclamation” (in this case a license of occupation), dated 25 October 1784 (see Horsnell, pp.6-8 for an extensive discussion of the differences between the various deeds, patents and other Crown documents and their meaning) stating that the Crown recognized that “the Mohawk Indians” had lost their land in the former Colony of New York, and so “purchased a Tract of Land” (from the Mississauga) and offered the “Mohawk Nation, and such other of the Six Nations Indians as wish to settle in that Quarter to take Possession of, & Settle upon the Banks of …… the Grand River ……… Six Miles deep from each side of the River beginning at Lake Erie, & extending in that Proportion to the Head of the said River, which them & their Posterity are to enjoy for ever.” (Johnston, pp.50-51).
We must pause here to make it perfectly clear that the Six Nations and allies who moved to the Grand River Tract after 1784 are NOT aboriginal to the land. The Mississauga obtained the land in the Niagara Peninsula (where the Haldimand Grant is located) by right of conquest in 1696, and that right was not questioned.
The only “land rights” that the Six Nations possess are historical, stemming from a “grant of usage” of the lands comprising the Grand River Tract by the Crown. The Crown retained ownership rights whereby all sales had to be approved by representatives of the Crown. That did not stop individual Six Nations Indians from selling what were public lands (belonging to all Six Nations) to individual White purchasers. This is a key historical fact, profoundly affecting the ethnographic composition of the Grand River lands, and having a significant effect on land surrenders. This matter will be explored in detail later.
The Six Nations then settled at Buffalo Creek and the Niagara region, began to move to the Grand River in the Spring of 1785, and a census of that year showed a total of “Six Nations” to include 1843 individuals. However many of these were Anishinabe Six Nations allies, the Delawares being most numerous, but also included Upper and Lower Tootalies, Nanticokes and others (Johnston, p.52).
Noticeably underrepresented were the Seneca, the most numerous of the Six Nations before the Council fire at Onondaga (near Syracuse, New York) was extinguished in 1777, since the majority chose to remain in their old villages. Thus there were many Seneca chiefships that were vacant, a problem that extended from then to today.
The situation was worse for the Oneida since most supported the American cause and remained in their homes near Lake Oneida. The Oneidas who came to the Grand River were Auquagas, Oneidas who settled south of the Mohawk River along the Susquehanna River – but all or most of the chiefships remained in the new United States. Only the Mohawk had a full complement of Chiefs (9) when settling on the Grand River.
Also, chiefships needed to be allotted to the non Six Nations allies, so for example four were given to the Delaware during the 1840s, and a full Council would require a very heterogeneous and ever shifting assortment of individuals (since there was a lot of movement between settlements in the USA and Canada) – in contrast to the 50 Six Nations Confederacy Chiefs who would attend Council meetings at Onondaga (near Syracuse) before 1777.
The Grand River Tract was surveyed by Augustus Jones in 1790 (Johnston, p.56), however before that date the Six Nations began to issue what are known today as “Brant Leases”. Chief Joseph Brant had never known a homeland without German, Dutch, and English neighbours. Hence for him (and the Mohawks in general) it was natural to wish to have old friends settled near them. So in 1780s and 1790s the Six Nations issued leases to select White men, since they were not allowed to sell or give away the Grand River lands. The grant of Crown land was not in fee simple where they could have sold every acre to incoming buyers had they so chosen – a bone of contention in the early days of settlement.
One of the first leases, known as the Mohawk Deed of 1787, was actually a gift (999 year lease for the annual rent of one peppercorn) to friends and relatives as follows:
Lt. John Dochstader of the Six Nations Indian Department, Sgt. John Dochstader of the Kings Royal Regiment of New York, Henry and John Huff of Brant’s Rangers, Adam Young and his three sons (including Lt. John Young of the Six Nations Indian Department who had already purchased part of the land from the Mississauga 3 years before) of Butler’s Rangers, as well as Capt. Hendrick William Nelles of the Six Nations Indian Department and his four sons (LAC, RG10, Vol. 894, Claims of the Descendants of Adam Young).
This leasing arrangement was extended to others such as John Smith who built the Mohawk Chapel in 1786 and to others within Brant’s circle, which caused rifts among the Six Nations and even within Mohawk families. For example, Aaron Hill and his cousin Isaac Hill left to settle with the Tyendinaga Bay of Quinte Mohawks, while Aaron’s brother David Hill settled in what is today Brantford on lands beside those of Joseph Brant.
The survey map generated by Augustus Jones in 1791 (as well as his survey notes) showed where each White resident’s home was located, and where each settlement of Six Nations and allied peoples was situated. Many other maps of later dates occur from 1794 onwards showing who was settled where. The author has a file folder about 3⁄4 inches thick of these maps – many of which show precisely where each Indian’s “improvements” were in relation to others in each township.
After a great deal of lobbying by Joseph Brant, the Haldimand Tract was “formalized” via a deed known as the “Simcoe Patent” dated 14 January 1793. This document corrected Haldimand’s error of having granted lands to the headwaters of the Grand River near Dundalk, Ontario – this area had not been purchased of the Mississauga. Thus the tract extended for 6 miles on each side of the Grand River from the mouth of the Grand to what is today Elora, Ontario.
The document made it absolutely clear that the land was for Six Nations people only, and that if they wished to part with any of it then the transaction must be via a lease or sale to the Crown. The document was not accepted by Six Nations (Joseph Brant), who wanted more control over their lands.
Later events (individual Indians selling their improvements to White purchasers) teaches us that had they succeeded in obtaining title in fee simple, then over the years all the land would have been sold until there was nothing left and the remaining Six Nations would have been forced to move westward to most likely the Ohio Country and ultimately ended up in Oklahoma, merging with the Seneca there – and largely disappeared to history. The cold fact is that they were saved a very uncertain future by the Crown’s inflexibility on this issue of land ownership.
On 2 November 1796, Joseph Brant was given “power of attorney” to sell parts of the grant not needed, such that the money arising from the sales could be invested for the future. He was given the authority, to act, in our names and in behalf of our said several Nations to Surrender, Relinquish and for ever quit Claim to His Majesty ……. all their rights, claims etc. lying on the Grand River (Johnston, pp. 79-81). The document was signed by 35 Chiefs.
It is at this point that the Land Surrender process began. The land was not theirs in fee simple, but had to be sold / surrendered only to the Crown (a thorny topic at this time). So for example, between 15 January and 6 February 1798, Brant surrendered present day Dumfries, Waterloo, Woolwich and Nichol Townships downwards on both sides of the River from the Northernmost part. Furthermore, a surrender of most of Canboro and Moulton Townships was undertaken.
There was something of a pause in the surrenders until the 1830s, although in the background, as we shall see later, individual members of the Six Nations were selling lands they personally claimed (although the practice was actively discouraged by both the Chiefs and more so the Government officials).
Chief Joseph Brant died on 24 November 1807, and thus the responsibility of land sales and surrenders again fell on the shoulders of the Chiefs in Council. These grants / leases / surrenders began to expand “out of control” throughout the years when Joseph Brant was alive, and when he was given “power of attorney”. It came to the point where at a Council Meeting of 1 March 1809 at Onondaga, the Chiefs discussed each parcel of land from just north of Brantford to the mouth of the Grand River.
As noted above, but it bears repeating, the matter became further complicated by the fact that individual Indians were selling their “improvements” to incoming White people, often from Britain and Ireland. The Chiefs, apparently, were not duly upset about the matter (perhaps because many were engaged in the same practice as there were only so many ways to obtain funds).
However, this practice of treating the land as if it was owned in fee simple, had drastic consequences in the Haldimand Tract. It became a patchwork of individual Indian farms, settlements (e.g., Mohawk Village) as well as the farms of the ever expanding number of White people moving to the Haldimand Tract.
The Government was concerned that this practice of selling individual parcels of land would eventually mean that there would be no land left, and the Six Nations would end up scattering to Manitoulin Island or to the Ohio country as many had already done (particularly to the latter location). It became a difficult matter too in that it brought up the issue of individual versus communal rights of Six Nations peoples – and there was no easy answer. White people were given deeds to their property (often already surveyed) signed by the individual Indian who claimed the property.
Matters reached crisis proportions when there were 2,000 or so Six Nations Indians, and 2,000 or so White “squatters”. Actually the latter term, used frequently, is not correct in that most had purchased their land from an Indian who claimed ownership and had in fact been living on the property for some years.
Here follows an example of such a deed, one which related to the land that is now the north side of Caledonia, Haldimand County. The author will quote from his book, David K. Faux, “Understanding Ontario First Nations Genealogical Records: Sources and Case Studies”, The Ontario Genealogical Society, Toronto, 2002).
In the extensive collection of papers that relate to the sale by William Crawford during the 1830s and 1840s of his land holdings in the village of Caledonia in Seneca Township, there exists a detailed surveyor’s description of the property. These records indicate that Crawford was an Onondaga chief whose property, known as “the Crawford Tract”, abutted that of John Buck, alias Clearsky, another Onondaga chief. The parcel was 400 acres in size, and had been occupied by William Crawford for about twenty years. The deed turning over the land to Jacob Turner, a White man, was signed by – WilliamXCrawford, JohnXCrawford, MaryXCrawford and Abraham Crawford (who is noted in the documents as being a son of the said William) (p.45).
These land records occur for each parcel of land sold by a Six Nations individual to a non Indian person (or non enrolled individual) – usually a White male from Great Britain. The deeds are scattered around the RG10 Papers, but are concentrated in Volumes 103-113, 119-121, 151 and 803.
Possession of such a deed allowed some recognition of the rights of the purchaser. These deeds were later confirmed by the Government with the permission of the Chiefs in Council. However once the Chiefs decided precisely which parcels of land (e.g., Tuscarora Township) they wished to Reserve to their people, the Government went about evicting the settlers (deed or not – although compensation was given for the value of the property) from these lands.
Faced with the chaotic land possession situation, and the prospect of the Six Nations people migrating en masse west to the Ohio country, both the Government representatives and the Chiefs recognized that only by consolidating the lands would the people be able to remain in the Haldimand Tract. So the challenge was to determine how much (how many acres) and where (which Townships) were to remain with them (reserved for the Six Nations) and which sold off for moneys put into trust. The remaining parcels of land not reserved by the Chiefs would be surrendered to the Crown and each parcel sold and the money placed in trust.
The White people who had deeds but were residing on land within the area the Chiefs wished to reserve had to be evicted (an unpleasant task) and even those without deeds were given compensation for the improvements they had made to the property. Some of this appears to have been given out of the trust funds – one wonders about the process, and how well this money was managed.
The Land Surrender process was not entirely smooth – which is entirely understandable considering what was at stake. An example of some of the principal surrenders is included in Johnston (p.120).
19 April 1830 – Surrender of the Site of the Town of Brantford – 807 acres.19 April 1831 – Surrender of the Northern Part of the Township of Cayuga – 20,670 acres.
26 March 1835 – Confirmation of all the preceding Surrenders
8 February 1834 – The Residue of Cayuga, Township of Dunn, Part of Canboro and Moulton – 50,212 acres.
1841 to 2020: A unique source for this specific period in time is Joan Holmes & Associates, “Reports of Joan Holmes (Filed on the City of Brantford’s Injunction Motion, 2009)”. This report, submitted to Justice Harrison Arrell of the Superior Court in Brantford, includes transcripts of all relevant “land claims” data from 1841 to 1848. The substance of this report, available online (https://voiceofcanada.files.wordpress.com/2010/03/feb-02-09-holmes- report-re-brantford-injunction.pdf), was such that it allowed Justice Arrell to state that should a land claims matter come before him, clearly the Six Nations would have a very “weak case” in maintaining that there were any unsurrendered lands in the Haldimand Tract.
There are two key documents of this period which underpin all that follows. These are the Land Surrenders of 1841 and 1844.
** 18 January 1841 – Surrender of the residue of the land with a reservation of 20,000 Acres. See Johnston, pp.191-192, or “Indian Treaties and Surrenders”, Vol. 1, Queen’s Printer, Ottawa, pp.119-123 for a full transcript on this key Surrender, as well as the preceding correspondence between the Government officials and the Chiefs of the Six Nations recommending that they reserve 20,000 acres that they could “occupy as a concentrated body”, with the remainder of the land being either leased or sold for their benefit. Deputies from each of the Six Nations signed this document.
A very informative and sympathetic view of the “Condition of the Six Nations” as of 1842, based on highly supportive (pro – Six Nations) individuals such as Rev. Abraham Nelles, Major James Winnett, Rev. Adam Elliott and Rev. W. H. Landon can be found in Johnston, pp.305- 311. Here is data that is relevant for a consideration of how well the interest money from the sale of lands was invested and spent – clearly incompetence and / or corruption were in the picture.
After the above 1841 Surrender, between 1841 and 1843, some of the Chiefs occasionally questioned whether it was in their best interest to sell this or that parcel, including for example the Eagle’s Nest Tract, and the Oxbow. The documents are given their full Library and Archives Canada reference, but can be found in the Joan Holmes Report).
** 18 December 1844 – On this date a final Surrender / Confirmation was issued via the signatures of 45 Chiefs in Council at Onondaga where they unanimously agreed that they accept the Reserve south of Brantford as described in numerous documents (the present day IR40 Six Nations of the Grand River Reserve), and that the Crown would sell the lands not reserved. In addition to Tuscarora Township and a block to the north in Onondaga Township, the Chiefs wished to reserve lands, Lying on the South side of the Grand River, West from the tier of Lots adjoining the Plank Road, in the township of Oneida …. These lands (tier of lots) butted up against a more regularly laid out area of the Township which were an extension of those in adjacent Tuscarora Township. It was this land in Oneida adjoining Tuscarora Township that the Chiefs wished to reserve.
Understandably this was a big decision and there was some “sellers regret”. In the years 1845, 1846, and 1848 after discussions in Council, the Chiefs acknowledged that they agreed to not reserve the Oxbow, Eagles Nest, Johnson Settlement, Martin Settlement and the Burtch Tract – the latter being the greatest stumbling block.
Nonetheless, a notice posted in June 1846 warning squatters to remove themselves from the lands that were to comprise the reserved lands, described these lands clearly – and none other. It bears quoting in full as this is the full extent of the Reserve – then and now. The lands the Chiefs wished to reserve were, In the Township of Oneida, from the Tier of Lots on the West Side of the Plank Road to the boundary line of the Township of Tuscarora, and the whole of the Township of Tuscarora, and a parcel of 200 Acres lying adjacent to the Mohawk Institute, in the Township of Brantford, and on the North side of the Grand River, in the Township of Onondaga, a tier of River Lots, from No. 61 to 45, both inclusive …. (LAC, RG10, Vol. 458, p.97).
By the year 1847 the reserved lands in Tuscarora Township, part of Oneida and Onondaga Townships, had been surveyed and began to be settled by Six Nations people who wished to remove to the assigned lots within what eventually expanded from the initial 20,000 acres to the larger acreage (see below) that is the present day Six Nations of the Grand River Reserve. The 200 acres proximal to the Mohawk Institute in Brantford Township was to be used for training Six Nations boys in the techniques of agriculture.
No one was required to remove, and some stayed on the lots they were residing on, at least for a time. For example, they can be found scattered throughout the Grand River Valley townships in the 1851-52 Census of Upper Canada (see Faux, pp.38-40). However, most removed to the Reserve lands eventually since residence on Reserve lands was a requirement in order to be registered on the Band List and entitled to share in the interest monies (known as “Presents” in the early days).
A more detailed consideration of the Land Surrenders of 1841 and 1844 will be included in the discussion of Lot 3 Range West of the Caledonia to Townsend Road in Oneida Township, Haldimand County, below.
The final document of interest in relation to the Surrenders is the report of Lord Elgin. In 1850 Lord Elgin (James Bruce), who was the Governor General of Canada, proclaimed the “Indian Protection Act”. For our purposes, it is important to note that he included among the attachments to the Act the boundaries of all Reserves in Canada, including the Grand River lands as agreed upon throughout the negotiations of the 1840s. There are herein noted no other lands than those included in the present day IR 40 Six Nations of the Grand River Reserve.
The exact number of acres reserved by Six Nations is detailed in the Special Commissioner’s Report of 1858. Of the original acreage in the Haldimand grant, 694,910 acres, the final number of acres that were selected to be reserved amounted to 52,133.25 acres (considerably more than the originally agreed upon figure of 20,000 acres (See Joan Holmes Report, p.25).
Based on the above data, Holmes concluded that, The Elgin Proclamation of 1850 appears to accurately describe the lands that the Six Nations in Council had resolved to reserve for their exclusive use as of 1850. The lands not intended for reservation were to be sold (ibid.).
After this date there was no organized attempt to amend or alter the Surrenders of land that occurred during the 1840s, until 1995. Here what is today the Lands and Resources Office of the Six Nations Band Council, initiated a series of land claims – which were largely focused on the lack of proper accounting of the interest payments, and the irresponsible actions of those entrusted with the management of their affairs.
For example the White investors in the disastrous Grand River Navigation Company venture were able to cash out without any great loss. However it is clear to anyone who has examined the documents that the Six Nations investors were left holding the bag. So there is room for negotiations around the subject of interest payments, but not land surrenders – the latter was a done deal, no wiggle room, 180 years ago.
Legal Questions and Answers:
1) It is important to note that, according to fellow researcher Garry Horsnell, “In a letter dated January 9, 2009, Chuck Strahl, the federal Minister of Indian and Northern Affairs Canada said, ‘the Government of Canada’s position is that the surrender of 1844 is valid’”.
2) Furthermore, in November 2010 Justice Harrison Arrell of the Superior Court of Ontario in Brantford made a ruling in a Brant County case that has clear parallels to both the Douglas Creek Estates takeover, and the current Foxgate takeover, both in Caledonia, Ontario (and part of old Oneida Township in Haldimand County).
The late Christie Blatchford wrote a summary of the Court findings in The Globe and Mail, 22 November 2010, in an article entitled, “Judge finds Six Nations’ land claim ‘exceedingly weak’ ”. Specifically, Blatchford reported that, The HDI and Confederacy claim all lands within that tract, which runs six miles on either side of the Grand River and includes Brantford and, interestingly, Douglas Creek Estates in the nearby small town of Caledonia, Ont., site of the area’s most notorious occupation.
The lands in question, the judge found in accepting the expert report of Joan Holmes, were in fact “properly surrendered” for sale by Six Nations chiefs in 1844 when they created the boundaries of the reserve, which basically sits between the two municipalities.
Judge Arrell said he found comfort that Ms. Holmes’ opinion is correct in the fact that Six Nations, “despite 25-30 years of archival research on their own”, have never filed legal proceedings for return or title of the land. A lawsuit filed in 1995 and now dormant seeks only financial compensation.
The judge was required to make only a preliminary assessment of the strength of the Six Nations’ claim, but pronounced it “exceedingly weak” at one point in his decision and a “very weak case” at another.
Hence the Joan Holmes Report was sufficient for the Judge to declare that there is little if any basis for any land claim beyond the boundaries of the current Six Nations of the Grand River Reserve.
Lot 3 Range West of the Caledonia to Townsend (McKenzie) Road: This parcel of land is part of the general Surrenders of 1841 and 1844 so there is no need to discuss the matter further except for the fact that there are now trespassers on the land claiming that it was not surrendered.
That claim is without merit, as can be seen in the above information, however it is necessary to get into particulars since the issue is creating an acerbic chaotic situation for Caledonia residents, and the developer, sub contractors, and the people who have already put money down on, or paid in full, for homes that should have been completed by this fall (which unfortunately will never happen).
Map Sources: The author was able to locate an early map of Oneida Township, dated 24 June 1842 (Ontario, Ministry of Natural Resources, Survey Records, Plan of Oneida on the Grand River, Brantford, William Walker, Q64). Unfortunately it was only available in white on black and is slightly blurred. It appears to be identical in the essentials to the later map shown below. Lot 3 Range West (of the Caledonia to Townsend Road) was then in the possession of [illegible first name] Nichols. It shows that this township was fully surveyed as early as 1842.
Below is a clear visual representation of the text descriptions below, relating to Oneida Township, from the H.R. Page Atlas of Haldimand County, 1879.
Some of the key elements include the Plank Road seen coming through Caledonia, and heading towards the “Drowned Land” at the bottom of the map. To the left (west) is the “tier of Lots adjoining the Plank Road”. These abut the Six Nations Reserve including River Range Lots 1 to 12 and Concession 6, Lots 1 to 6. To the west of these (off this map) is Tuscarora Township.
To the right of the Plank Road (east) runs McKenzie Road (as it is known today). Along the western side can be seen “Range West of McKenzie” (known earlier, when the township was first surveyed, as the Caledonia to Townsend Road). In addition, Lot 3, Range West of McKenzie Road (the Caledonia to Townsend Road) is shown extending between McKenzie Road and the Plank Road (Argyle Street;
Old Highway 6) and owned by John Nichol. The house shown at the western tip of the property is situated at the junction of the Plank Road and 6th Line.
For interest sake, the Douglas Creek Estates property (site of the acrimonious 2006 land takeover by Six Nations protesters) is Lot C at the junction of the Plank Road and 6th Line.
Oneida Township, Haldimand County Atlas, 1879
Land Deeds: The Land Inspection Returns for Oneida Township were submitted 11 March 1844 by James Kirkpatrick and Allan Park Brough of the Township of West Flamborough in the District of Gore, Esquires (LAC, Vol. 729, microfilm C-13415). The inquiries showed that most of the occupied lots were either in the hands of Six Nations members, those who had purchased lots from Six Nations members, and those whose claim rests on “squatter’s rights”. Survey maps, often showing dwellings and “improvements” (clearings) accompany many of the described lots. It appears that those who occupied the various lots at this time would have “first rights” to apply for a Patent from the Crown for these lands.
Comparing Lots 2 and 3 shows how adjacent lots could have different claims as to ownership.
Lot 2: What follows is a copy from the.book which included the inspection returns for Oneida and Tuscarora Townships (p.208)
Here the person occupying Lot 2, Thomas Galer, had purchased the lot from “Crawford Indian” in 1834. Although the first name is not given, it would be one of the 4 above noted individuals of that family who owned the 400 acres comprising what is today the north side of Caledonia. The same “Crawford, Indian” owned the “Town Plot opposite to Caledonia” (in Oneida Township, south side of River). Hence at this point, Lot 2 was no longer in the possession of any individual member of Six Nations. Lot 2 lies immediately adjacent to (south of) Lot 3.
Lot 3: This is the lot presently being occupied by members of Six Nations. As seen in the map described above, in 1842 Lot 3 was in the possession of T. Nichols. The land inspection returns provide more details as to the claimed ownership of the lot (p.209).
This shows that the title claimed by Thomas Nicholas appears to date back to 1834, but was not directly purchased from an Indian owner and was among those claimed by “squatter’s right”. Therefore the only claim to title to this property must come from the land surrenders of the 1840s.
Land Surrenders: A more detailed analysis of the documents discussed above in the above general land ownership section will be included here to enhance clarity.
1) **On 18 January 1841 the Six Nations declared that they wished to surrender all the lands outside of those already reserved for the settlement of their people (specific lands not described in this document). Although only 7 Six Nations representatives signed the document, it was specifically recorded that these 7 were, “deputed by the said Six Nations in full Council assembled to assent to the same in their behalf”. All Six Nations were represented. Mohawk (Moses Walker and John Smoke Johnson), Oneida (Peter Green), Onondaga (Skanawate), Seneca (Kanokaretini), Tuscarora (John Whitecoat), and Cayuga (Jacob Fish).
This Surrender is found among those deemed legal and binding by the British Colonial and Canadian Governments, and included are appended letters and petitions which lay out the rationale for this Surrender, for example, to prevent the public property of the Six Nations from being sacrificed to the avarice and rapacity of individuals. Another important consideration is noted in the appended documents, particularly that, From a careful enquiry into the nature of the claims of the white men to the lands in their occupation it is but too plainly apparent that they have been invited by the great majority of the Indians, and that the latter have received large sums of money which they are wholly incapable of ever refunding. In other words to the date of writing of the Surrender, individual Six Nations Indians continued to sell their lands and improvements to white men who offered them sizeable amounts of money for these individual holdings. The problem was so acute that there were upwards of 2,000 white men, who possessed deeds from individual Six Nations Indians, residing within the Haldimand Tract. To remove all of them and their families was not practical, particularly since individual Six Nations Indians continued to engage in this practice of selling their improvements to white purchasers. There did not appear to be a way to stop this practice, and so the only solution appeared to be to create a consolidated community on lands that could not and would not be sold (in fee simple) to the white purchaser who offered the largest sum of money.
The document is registered as Surrender 50, and found on pages 119 to 123 of the Government publication, Canada. Indian Treaties and Surrenders from 1680 to 1890, Volume 1, Ottawa, Queen’s Printer, 1891.
2) **While the above Surrender is legal and binding, it does not include a description of the lands that the Chiefs in Council had decided to reserve for the settlement of their people. There was probably also some discomfort in having a mere 7 individuals (although “deputized” to do so) make such heady decisions (however Joseph Brant was given the sole responsibility for land sales between 1796 and 1807). So we must turn to a “finalized surrender”, issued after much discussion of the matter between 1841 and 1844 in Council.
On 18 December 1844, at the Onondaga Council House, 45 Chiefs in full Council unanimously agreed that the only parts of the Haldimand Tract that they wished to reserve were south of Brantford, including all of Tuscarora Township, 200 acres in Brantford Township near the Mohawk Institute, and specified parts of Onondaga Township, as well as a segment of Oneida Township in Haldimand County adjoining Tuscarora Township. This area to this day can be seen on any detailed map and recognized as the Six Nations of the Grand River, IR40, Reserve as it is presently constituted. The original document is found at Library and Archives Canada, RG10, Indian Affairs Papers, Volume 44, pages 83269 to 83279 (see Joan Holmes Report)
The signatures of the Chiefs are included below:
As noted above, it is this Surrender as well as the previous one of 1841 that are currently recognized as legal and binding by the Federal Government of Canada. None the less, it may be useful to follow the excerpts from the Minutes of Council from 1845 to Lord Elgin’s Proclamation in 1850 as they relate to the Township of Oneida.
3) Minutes of Council, 17 and 18 September 1845. David Thorburn, Indian Superintendent, Onondaga Council House (LAC, RG10, Vol. 152, pp. 87852-87854):
Sixty-six chiefs were in attendance on September 17. The following was recorded,
… After much time spent in discussion, [illegible word] the submission it was finally resolved [illegible word or words] reserves should consist of the lands adjoining, the tier of Lots on the west side of the Plank road in the township of Oneida and the whole of. the Township of Tuscarora ……….
In order to alert squatters, including those with deeds from individual Indians, a public notice was issued describing the reserved lands:
Lying on the South side of the Grand River, West from the tier of Lots adjoining the Plank Road, in the Township of Oneida, including the Township of Tuscarora …….. (LAC, “Notice” [prior to 1 January 1846], RG10, Vol. 458, p.78 – the document is damaged and the date cannot be discerned as noted by Joan Holmes).
4) At a Council meeting of 8 March 1848, David Thorburn reported that, His Lordship in saying they might have 55,000 acres; evidently meant if such could be had in conformity with the request of the Council, that their settlements should be entirely Indian and compact. This has been done as far as existing circumstances at the time would permit & a compact settlement could only be given from the west side of the tier of Lots on the Plank road in Oneida stretching westward to the Line separating the townships of Tuscarora from the Burtch tract in Brantford. (LAC, RG10, Vol. 170, pp. 98607-98610). Highlighted bold print by author.
5) Finally, on 8 November 1850 Lord Elgin’s Proclamation provides precise survey information as to the lands that the Chiefs wished to reserve, all others being surrendered to the Crown. As per the Holmes Report, these included, the following lands in the Haldimand Tract: … certain tract or parcel of land, situate in the Township of ONEIDA in the County of Haldimand … comprising lots numbers one, two, three, four, five and six in the first, second, third, fourth,’ fifth and sixth concessions respectively of Oneida .. and also, River lots numbers one, two, three, four, five, six, seven, eight, nine, ten, eleven and twelve in the same Township. From a “Proclamation extending the provisions of 13 and 14 Vict. Ch. 74 to certain lands in several townships in U.C. in the occupation or enjoyment of various tribes of Indians”. All lands not mentioned in the above description were surrendered to the Crown. (INAC Indian Lands Registration No. 8740-292). The above lands described as being in the Township of Oneida are those included in the present consolidated Six Nations of the Grand River Reserve IR 40 – and, importantly, identical to the description in the “Notice” of June 1846 above.
So time and time again the Chiefs in Council heard the boundaries discussed and there was no dissent noted, and the chiefs laid no further claim to them or any lands in the Township of Oneida outside the formal description of the lands there that they wished to reserve, at any time after 1844.
Land Patent: After the Surrenders the unreserved lands were returned to the Crown, the Crown in turn issued Patents for each lot in each concession in each Township in Brant and Haldimand Counties. All Crown Patents for Haldimand County are found in the Haldimand County Land Registry Office in Cayuga, and summarized in very large index books showing the date of the Patent, to whom it was issued, and then a summary of all subsequent sales, mortgages, liens etc. registered in relation to the property until the present day. Copies of each of these deeds are found using the code numbers from the index books.
Concerning Lot 3 Range West of the Caledonia to Townsend Road, reference to the documents found in the Land Registry Office show that a Crown Patent for this property was issued on 21 November 1853, and by Instrument Number 5246 was registered on 20 March 1857 to Thomas Nicholas, who had occupied the land since the 1830s (although the surname also appears as Nichol and Nichols in various documents). A Crown Patent could not have been issued if the land had not been surrendered by the Six Nations Chiefs. As seen in the above “Land Inspection Returns” for Oneida Township, the Government was very careful to document the ownership of each parcel of land, ensuring that there were no irregularities, before any Crown Patent could be issued.
Subsequent Land Transactions: All further transactions relating to this property to 17 October 1861 are recorded in Index Book 1 for the Township of Oneida, and from then in comparable books. If there were no unresolved irregularities registered on title for this property since the Patent date, then the lawyer for the present owner would have been able to demonstrate a clear legal title to the property. If there was any irregularity, the permits for development from the County of Haldimand would not have been issued.
Conclusion: The above historical context of land ownership within the Haldimand Tract and Haldimand County shows that there is no rationale known to the author for questioning the owner / developer’s rights to the enjoyment of their property. The evidence shows that no one today claiming authority to usurp the rights of the current owner of Lot 3 has a legal or moral right to do so. Considering the chaos of the time and the clear evidence that the Six Nations were in the process of disintegrating as a group, the Six Nations Chiefs who agreed to the Surrender unanimously, in full Council, 175 years ago, showed great wisdom.
As a matter of some interest, the data presented in this report also applies to the land known as Lot C in the tier of Lots west of the Plank Road (Argyle Street), also known as the Douglas Creek Estates and Kanonstaton. It was noted in the above Oneida land inspection returns as being “Vacant” (p.216). In other words ownership of this parcel can only be considered as it relates to the land surrender of 18 December 1844.
Note re Possible Conflicts of Interests: The author of this report has not received any monetary or other consideration from any party for the completion of this report.
Respectfully submitted, Dr. David K. Faux, Caledonia, Ontario
11 September 2020; Revised 14 September 2020.