(FILED. REPORTS OF JOAN HOLMES ON THE CITY OF BRANTFORD'S INJUNCTION MOTION)

Transcription

1 (FILED. REPORTS OF JOAN HOLMES ON THE CITY OF BRANTFORD'S INJUNCTION MOTION)

2 TAB DOCUMENT 1. Report of Joan Holmes dated January 19, 29 L 2. Supplemental Report of Joan Holmes dated February 2, 29 r- r

3 Holmes Report Introduction Professor Johnston's Report at Exhibit A to her Supplementary Affidavit sworn January 7, 29 (the "Report") suggests that the land comprised within the Johnson. Settlement, Eagle's Nest and Oxbow tracts were not surrendered between October 1843 and However, the Elgin Proclamation of 185, which extended the provisions of An Act for protection of Indians in Upper Canada from imposition, and the property occupied or enjoyed by them from trespass and injury 2 to Indian lands in Upper Canada, indicated that the land reserved to the Six Nations of the Grand River was limited to land in the Townships of Tuscarora, Oneida, and Onondaga and a 2 acre block in Eagle's Nest, Brantford Township. Similarly, the report of the Commissioner appointed to investigate Indian Affairs, tabled in 1858, showed that the lands reserved for the Six Nations of the Grand River did not include any land in the Township of Brantford with the exception of the 2-acre block. These 185 and 1858 documents indicate that all of the other land in the Haldimand tract, which would have included the Johnson Settlement, Eagle's Nest and Oxbow tracts, had been surrendered by the Six Nations prior to 185. The following summary of historical documents highlights a series of transactions made by the Six Nations Chiefs in Council during the 184s which lead to the description in the 185 Elgin Proclamation. The lands so described represented the unsurrendered lands which were thereafter treated by the Crown as the lands reserved for the use and benefit of the Six Nations of the Grand River. Note: Text contained in square brackets within quotations are additions by the author of this report. January In January 1841 the Six Nations chiefs expressed their consent to accede to the proposal of the Indian Department's Chief Superintendent Samuel Peters Jarvis. The proposal set out by the Crown dated January 5 and 15, 1841 and the record of the Council of the Six Nations, dated January 18, 1841 are outlined in Professor f. Johnson's Report in paragraphs 26 to 32. According to the historical documents, Jarvis had proposed that the Six Nations should surrender all of their land with the exception of a tract of about 2, acres which they could "occupy as a concentrated body", that tract to be reserved and set apart for their exclusive benefit. The remainder of the surrendered lands would be sold or leased for their benefit. The surrender had a dual object of setting aside and reserving a compact area for the exclusive use of the Six Nations and regularizing the long-standing occupation of Six Nations' land by settlers/squatters who had obtained their holdings either through direct purchase or lease from the Six Nations, or without any authority. The record of the Council 1 Professor Darlene Johnston, Exhibit A to Supplementary Affidavit sworn January 7, 29, paragraph 43. Paragraph 45 of the Report suggests that the Oxbow Tract is within the municipal limits of the City of Brantford. That tract lies outside of the municipal boundaries. 2 Statute of the Province of Canada, 13 & 14 Vict. Cap 74. Joan Holmes 1 January 19, 29

4 Holmes Report 1 meeting indicates the intention of the Six Nations chiefs to surrender their lands with the exception of a tract called the Johnson settlement; the Johnson settlement was not to be sold without the consent of those for whom that tract was formerly reserved Petition 2. Two years after expressing their assent to surrender the lands, the Six Nations Chiefs sent an undated petition to Governor General Metcalfe in the spring of The petition was considered by Professor Johnston in paragraphs 33 and 34 of her Report. The undated petition stated that the Six Nations had over the last twelve years "sold to the government the lands forming the Townships of Dunn, Cayuga, Brantford and the Town of Brantford." The petitioners asked that some of their lands be put on "short leases" instead of being sold. Those lands included "the Lands forming the Oxbow and the 'Eagle's Nest' and the Mohawk Flats (on which is erected one of their churches) together with the 'Johnson Settlement'." They also asked that a lot in Tuscarora Township where a church was located be reserved and that the unoccupied land in the Martin settlement be put on short leases The undated 1843 petition was sent for the consideration of the Executive Council of the Province of Canada on June 24. A Committee of the Executive Council cited it at length in their report of August 3, The recommendations within their report were approved on October 4, Professor Johnston addressed this October 4, 1843 Order in Council in paragraphs 35 and 36 of her Report. Amongst other items, the Committee of the Executive Council noted that the original reservation was to have consisted of 2, acres and that the petitioners were now asking for over 55, acres composed of lands on the south side of the Grand River, along with the Oxbow tract (1,2 acres), Eagle's Nest (1,8 acres), the Martin tract (1,5 acres), the Johnson settlement (7, acres), and a church lot in Tuscarora. Nearly all the lands in the Oxbow, Eagle's Nest, Martin and Johnson settlements were said to be in the possession of White settlers under titles given by individual Indians. Despite questioning the wisdom of the Six Nations Chiefs' appeal, the Committee recommended that the Governor General should accede to their request and "for the present the Tract prayed to be reserved, be not considered within the Indian 3 4 Petition of the Chiefs and Sachems of the Six Nation of Indians residing on the Grand River, undated ca. June LAC Vol. 624, pp A transcript of this document was referenced in the Affidavit of Phil Monture sworn May 28, 28 and produced at his cross-examination. The petition was cited by Professor Johnston at paragraph 33 of her Report. Report of a Committee of the Executive Council, approved October 4, LAC RG 1 Vol. 717 pp Reel C-13,411. A transcript of this document was referenced in the Affidavit of Phil Monture sworn May 28, 28 and produced at his cross-examination. The Report of October 4, 1843 was cited by Professor Johnston at paragraph 35 and 36 of her Report. yr. co 2 January 19, 29

5 Holmes Report surrender." However, they did not view this as a final arrangement and anticipated that a surrender of this land would eventually be requested by the Six Nations. The Committee also had "no great objection to leasing the Johnson settlement and other small tracts mentioned in the petition upon short leases" (i.e. some of the lands being withdrawn from the surrender should be leased). 5 Events of Several months later, on February 7, 1844, Indian Affairs Chief Superintendent Jarvis noted that the 1841 surrender had been withdrawn by the Six Nations and the Government had acceded to their request to put several tracts, including Eagle's Nest, Oxbow, Martin and Johnson "at short leases". 6 Despite acceding to their wishes, Jarvis reiterated the opinion that the 1841 surrender had been "a wise measure and should have been strictly adhered to by the Indians" Less than a year later, Commissioner Thorburn brought the land issues before the Chiefs of the Six Nations in Council at the request of the Governor General during two meetings held on December 13 and 18, The archival records of the meetings are preserved in a two part document: the first part is Thorburn's report of meetings on each of the two days and includes the signatures of the chiefs; 8 the second part of the document is a minute of Council recording how each day proceeded, including a count of the number of chiefs present from each nation. 9 This document was not cited in Professor Johnston's Report. The eight page report by Thorbum begins with an account of the December 13 Council meeting at which Commissioner Thorburn proposed to the Chiefs that they consider what lands should be set apart and reserved for them and also consider "leasing or selling parts of their lands on the Grand River known as the Oxbow, Eagles Nest, Martin and Johnson settlements." 1 Thorburn recommended that the reserve be confided to the Township of Tuscarora and the remainder be sold for their benefit. 5 Report of a Committee of the Executive Council, approved October 4, LAC RG 1 Vol. 717 pp. 243 Reel C-13,411. The idea of short leases was so that the land so leased could be later assumed by their members. 6 Samuel P. Jarvis, Chief Superintendent of Indian Affairs to Six Nations Chiefs, February 7, A transcript of this document was referenced in the Affidavit of Phil Monture sworn May 28, 28 and produced at his cross-examination. Reference cited LAC RG 1 vol. '717 pp This transcript has not been verified against the manuscript copy of the original document 7 Samuel P. Jarvis, Chief Superintendent of Indian Affairs to Six Nations Chiefs, February 7, A transcript of this document was referenced in the Affidavit of Phil Monture sworn May 28, 28 and produced at his cross-examination Reference cited LAC RG 1 vol. 717 pp This transcript has not been verified against the manuscript copy of the original document. 8 David Thorburn, Commissioner, Report on meeting with Six Nations, December 13 and 18, LAC RG 1 Vol. 144, pp Meeting minutes, Onondaga Council House, December 13 and December 18, LAC RG 1 Vol. 144, pp io David Thorburn, Commissioner, Report on meeting with Six Nations, December 13, LAC RG 1 Vol. 144, pp Joan Holmes 3 January 19, 29

6 Holmes Report L LJ According to Thorbum's account, the Council reconvened five days later on December 18. His report indicates that initially the Chiefs replied that they were "unanimous in adhering to their answer to the Commissioner of the 31 st Oct last [1844]... continued by Orders in Council of the 4 th Oct. 1843". The report then indicated: "From this answer they unanimously recede and therefore agree that the same be sold." 11 Their agreement had some stipulations including the reservation of 2 acres at or near the "Mohawk School", some arrangements regarding compensation for improvements and treatment of squatters on the lands to be reserved, a reservation of 3,6 acres in Onondaga Township, and protection of lots occupied by Six Nations members outside of the general reserve. 12 Their conditions were recorded as follows: From this answer they unanimously recede and therefore agree that the same be sold. The chiefs further desire that there be reserved at or near the Mohawk School two Hundred acres of land for the use of the said school so that the Scholars may then be Ensured agricultural pursuits. [Located in the Eagle's Nest, Brantford Township] They also desire that the Indian cleared lands on the north side may be exchanged for those on the south side thus recompensing the possessors of improvements from Burtch's to Lot No. 72 on the River. [Located along the Grand River below the Oxbow and adjacent to the boundary between Brantford and Tuscarora] They do not think that the squatters on the other part of lands they now desire for their future residence ought in future to complain in having to lease the improvements they have made without a recompense in as much as they squatted without permission and much offend the wish of the Indians as well as against their interest nevertheless they are desirous that justice may be done X. [Marginalia:] X to all such squatters for their improvements. The Six Nations are desirous that 3,6 acres of land may also be reserved for the Tuscarora Tribe on the north side of the River in the Township of Onondaga in and around the Church and mission establishment of the New England Companies provided that such Reserve may not be prejudicial to their reserve on the south side the River as here on desired. David Thorburn, Commissioner, Report on meeting with Six Nations, December 18, LAC RG 1 Vol. 144, pp David Thorburn, Commissioner, Report on meeting with Six Nations, December 18, LAC RG 1 Vol. 144, pp Joan Holmes 4 January 19, 29

7 Holmes Report 13 The Nations present declare that due notice to their people was had of the time place and object of their meeting in Council on the 13th last as well as of today and believe this their answer to the Commissioner is the wish of the Six Nations without a desent [sic]. The Chiefs would further recede from that part of their former answer that such portions of Lots as the Commissioner might judge not to be useful or necessary on which an Indian resides might be sold and therefore desire that any lot whereon an Indian resides out of the general Reserve no part of it be sold while it is so occupied but on the lot becoming vacant the same to be sold and not reserved. The Nations adhere to their former desire that for the reserve an Entact [sic] deed be granted Onondaga Council House on the Grd [sic] River District of Gore 13 I 1 j The final page of Thorbum's report was signed by what appears to be 19 separate signatures, the following page by 26 signatures. Of the 45 names listed on the two pages some are signatures and some are names with marks. Thorburn certified the signatures of the chiefs. 14 The second part of this archival document consists of three pages of minutes of the proceedings of the meetings. The minutes specify that the meeting was held pursuant to previous notice, name the officials present (David Thorburn, James Winniett) and give a count of the 5 chiefs present, by nation. The minutes state that the Council was opened by the Fire Keeper Chief Echo and Interpreter Jacob Martin. The minutes indicate that Commissioner Thorburn read "the subject" which was translated by the interpreter "by paragraphs" and that discussion ensured. The chiefs asked for an adjournment to allow them to discuss the matter; they also asked to examine the map of the proposed reserve. 15 The minutes show that the Chiefs reconvened five days later on December 18. The minutes indicate that David Thorburn, James Winniett and 47 chiefs 16 were present. The meeting was opened by Chief Buck and Chief Henry Brant 17 delivered the reply of the Chiefs. The minute indicates that they were reluctant to 13 David Thorburn, Commissioner, Report on meeting with Six Nations, December 18, LAC RG 1 Vol. 144, pp David Thorburn, Commissioner, Report on meeting with Six Nations, December 18, LAC RG 1 Vol. 144, pp Meeting minutes, Onondaga Council House, December 13, LAC RG 1 Vol. 144, pp This map has not been located. 16 The difference in the number of chiefs is accounted for by the following changes from the December 13 meeting: 13 Upper and Lower Mohawk chiefs instead of 14; 9 Cayuga chiefs instead of 12; 7 Tuscaroras instead of Henry Brant appears as the first signature in the list of signatures Joan Holmes 5 January 19, 29

8 Holmes Report 14 surrender all of their lands with the exception of the Township of Tuscarora. Discussion ensued with Thorburn and Winniett trying to persuade them that it was not in the interest of themselves or their posterity "to secure the land they desired for an exclusive Indian settlement their funds would be materially affected in paying the present possessors for their Improvements and to them they would not be of a like value as to the White settler." 18 The next and final paragraph of the minute indicates that: Their answers were taken down by the Commissioner and each read and recited to the Council by the Interpreter and assented to by their Speaker as the unanimous wish of the Six Nations after which the respective Chiefs confirmed the same by their signature before the rising of the counci It is my opinion that the report of Thorbum, signed by the chiefs and the minute of the two Council meetings show that the Council was properly called, time was given for consultation and deliberation, an interpreter was used and the document carefully reviewed before signing. There were reportedly 47 chiefs at the meeting of December 18; the document indicates that 45 chiefs signed the document. There is no indication of why two chiefs did not sign. The document indicates that the Six Nation Chiefs in Council agree to have the Township of Tuscarora set aside as their reserve, along with a reservation of 2 acres at or near the "Mohawk School", and a reservation of 3,6 aces in Onondaga Township on the north side of the Grand River for the Tuscaroras. In addition they wanted to retain a range of lots from Burtch's Lot to Lot 72. These lots follow the curve of the Grand River, downstream from the Oxbow on the south side. Lot 72, the most easterly of the lots abuts on the boundary between Brantford and Tuscarora townships. Other lands were to be sold for their benefit Events Respecting the Six Nations Reservation 7. A month later, in January 1845 Thorburn called a Council at which 51 Chiefs were present. 2 Thorburn conveyed the Governor General's satisfaction that the chiefs had "abandoned the idea of Leasing those portions of their Lands known as the Oxbow, Eagle's Nest, Martin and Johnson Settlements as he is satisfied that settlers will be more conducive to their Interests." Further, the Governor General approved the reservation of the 2 acres in the vicinity of the Mohawk School. 21 With regard to the 36 acres on north side adjoining the Tuscarora church and Parsonage, the Governor General believed there were obstacles to making it an 18 Meeting minutes, Onondaga Council House, December 18, LAC RG 1 Vol. 144, pp Meeting Minutes, Onondaga Council House, December 18, LAC RG 1 Vol. 144, pp David Thorbum, Minutes of Council, Indian Council House, January 2, LAC RG 1 Vol. 145 p David Thorbum, Minutes of Council, Indian Council House, January 2, LAC RG 1 Vol. 145 p Joan Holmes 6 January 19, 29

9 Holmes Report 15 exclusive Indian settlement but would not withhold consent on condition that : the general reserve is reduced by the same acreage. 22 The Governor General was not in concurrence with the request for the lots from Burtch's Landing to Lot 72 on.. the river as many settlers were located there. The section regarding those lands reads as follows: His Excellency does not concur in the views of the Chiefs that the proposed exchange of the Indian cleared lands on the North side of the River for those on the South side would be a fair compensation to the owners of improvements between Burchs [sic] Landing and Lot 72 on the river. But is of opinion that the improvements in each lot that may be reserved ought to be paid for according to the value of which it is apprised The Governor General regrets to learn that the chiefs still desire to have induded in their proposed Reserve the land in the Township of Brantford between Burchs [sic] Landing and the lot 72 on the River in Tugcarora upon which there are so many settlers the value of whose improvements will amount to a considerable sum and whose removal if it should be practicable which is at present doubtful cannot be effected without causing very general dissatisfaction amongst them and a heavy expense upon the funds of the Tribe. Unless the chiefs see the propriety of withdrawing their application for this tract being reserved to which so many obstacle exist it will be necessary before His Excellency can come to any decision upon the question that the commissioners do investigate the circumstances under which each settler may have come in possession of the land on which he has located himself, the period, during which he has been in occupation and the nature of the improvements made by him And to report the same for His Excellency's consideration. The commissioner is warranted to say to the Council that His Excellency is very desirous of gratifying the Indians but he cannot sanction the wholesale removal of the settlers without the fullest information of the particular of every case that such a proceeding would involve 23 Thorbuth stated that he hoped the council would agree to concur with the views of the Governor General which he summarized. 24 ti David Thorbum, Minutes of Council, Indian Council House, January 2, LAC RG 1 Vol. 145 pp David Thorburn, Minutes of Council, Indian Council House, January.2, LAC RG 1 Vol. 145 pp David Thorburn, Minutes of Council, Indian Council House, January 2, LAC RG 1 Vol pp Joan Holmes 7 January 19, 29

10 Holmes Report 16 Thus by January 1845 the Six Nations, already having surrendered the rest of Brantford Township, expressed their consent to surrender for sale the lands in the Oxbow Tract, Eagle's Nest Tract, and Martin and Johnson Settlements. The Governor General had agreed to reserve the 2-acre block in the vicinity of the Mohawk school. The reservation or sale of 36 acres on the north side of the Grand River in Onondaga Township and the Burtch tract were the areas remaining in contention. 8. Sixty chiefs were present at a Council meeting of April 8, At that time they indicated that they had deliberated extensively and receded from their former position regarding the 3,6 acres on the north side in Onondaga Township except for a tier of river lots beginning at lot 45 and running to their council house which was on Lot 6 or The Council met again on September 17 and 18, Sixty-six chiefs were in attendance on September 17. The following is 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 and such Lots or portions in the Burtch tract in the Township of Brantford as the White settlers thereon could not on an Examination (before the Chiefs in council at this place) shew that they had an equitable claim to a pre Emption by Leases or otherwise the submission of the Re Examination to be laid before His Lordship the Governor General for his decision on each case, And that in the said Township of Brantford at the Mohawk Mission School Two hundred acres and further in the Township of Onondaga a tier of River Lots from forty five to Sixty one inclusive. The council adjourned at dusk 7 ()Clock to meet again tomorrow morning at 8 ()Clock A.M. 27 Note that lands in the Township of Tuscarora, 2 acres at the Mohawk mission school, and lots 45 to 61 in Onondaga were requested for reservation, as previously indicated. Lands in Oneida Township had been added and the Council had indicated consent to reserve only the portions of the Butch tract on which settlers could not establish a legitimate claim. 25 Minutes of Council, Mission School House Onondaga, April 8, LAC RG 1 Vol. 144 pp A 26 Minutes of Council, Mission School House Onondaga, April 8, LAC RG 1 Vol. 144 pp David Thorburn, Minutes of Council, Council House Onondaga, September 17, LAC RG 1 Vol. 152 pp Joan Holmes 8 January 19, 29

11 Holmes Report The Council minutes of the 'following day, 18 September 1845, have not been located, however a public notice describing the lands reserved for the Six.Nations is consistent with the intention indicated at the September 17 meeting. The public notice described 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, and that part of the Township of Brantford, to the Deeded Land at Burtch's; and a. parcel of Two Hundred Acres lying contiguous to the Mohawk Mission School, together with a tier of River Lots, from 45 to 61 inclusive, on the NOrth side of the said River in the Township of Onondaga The public notice warned squatters/settlers to remove themselves from the reserved lands by the "first day of January next". Other documentation indicates that the deadline was January 1, and Six Nations' Displeasure regarding Squatters 11. In February 1846 the Six Nations Chiefs sent a lengthy petition 29 to the. Administrator of the Government in which they acknowledged that they had surrendered specific lands subsequent to October 1843, including lands in the Oxbow, Eagle's Nest and Johnson Settlement. They were dissatisfied with the number of squatters who still remained on their lands and that the full extent.of 55, acres had not yet been reserve to them. They described the lands they had surrendered as follows: That when Mr. Thorburn was appointed commissioner the people of the Six Nations entertained an encouraging hope that their affairs would immediately be settled and their troubles ended; and that in order to secure the sanction of the Government to the reservation of 55 acres of their land for the exclusive use of the Indians and also to facilitate the speedy removal of such white people as occupied portions of it, Your Excellency's Petitioners were induced to surrender for sale all their land on the South side of the Grand River situated between the Bridge at the village.of Caledonia and the Townships of Dunn; and also tracts of their land of considerable extent in Martin's settlement, the Ox-bow, the Eagles' nest and Johnson's Settlement "Notice" [prior to January 1, 1846] LAC RG 1 Vol. 458 p. 78. The document is damaged.and the date. is not discernible. 29 Petition of Six Nation Chiefs to Charles Murray, Earl of Cathcart, Administrator of the Government of Upper Canada, February 18, Murray was later appointed Governor General. LAC RG 1 Vol. 122 pp o Petition of Six Nation Chiefs to Charles Murray, Earl of Cathcart, Administrator of the Government of. Upper Canada, February 18, LAC RG 1 Vol. 122 p Joan Holmes 9 January 19, 29

12 Holmes Report 18 The Chiefs then addressed the still outstanding issue of the lots in the vicinity of- Burtch's Landing: That though Your Excellency's Petitioners have repeatedly expressed to Mr. Thorburn in General Council the decided aversion of the Six Nations to any further deduction from the land which they are to retain for agricultural purposes they have been constantly solicited by those Gentlemen as Commissioner [sic] to consent to the sale of a portion of their land in the vicinity of Burtch's Landing on the South side of the River, said to contain about 36 acres. That Your Excellency's Petitioners object to the surrender of this tract not only on account of a part of their people being resident upon it but also because if it should be deducted from their Reservation it would then contain if Your Petitioners are not mistaken only about 46 instead of acres the portion specified by His Excellency the Governor General in accordance with the Report of the Executive Council; - 32 The petitioners recounted various issues regarding squatters and then stated, That it has been contended on the part of the Government by the Commissioner that the white settlers on the 36 acres at Burtch's landing ought to be allowed to purchase the lots on which they have made improvements though most of them hold their farms by leases only for a certain term of years; that the people of the Six Nations were not convinced of the soundness of this opinion: but that though they cannot consent to the sale of any portion of their Reserve Your Excellency's Petitioners have no hesitation in repeating what they have often before stated, that if any individuals are to be found on their lands who can establish an evidently equitable claim they have no objections to their receiving a just remuneration for improvements which they may have made out of the Six Nations funds on their removal from the Indian Settlement The lands and settlers in the Burch tract were apparently examined and the findings presented in the council in June The Government wanted to sell the lots to the settlers, many of whom had leases. 31 This is clearly an error. The difference between 55 and 46 is 9, acres not 3,6 acres. 32 Petition of Six Nation Chiefs to Charles Murray, Earl of Cathcart, Administrator of the Government of Upper Canada, February 18, LAC RG 1 Vol. 122 p Petition of Six Nation Chiefs to Charles Murray, Earl of Cathcart, Administrator of the Government of Upper Canada, February 18, LAC RG 1 Vol. 122 pp f Joan Holmes 1 January 19, 29

13 Holmes Report 19 After the above arrangement was read the councils attention was called to the 4th Item "the position of the Burtch Tract" Mr Thorburn Explained that before a Committee of the Chiefs the Settlers were Examined. The Improvements had also been examined by Mr Kirkpatrick and the result was that such Lots as were not in the Entire possession of Indian families were occupied by white people who paid an annual rent to Individual Indians in accordance with Leases [illegible word] mostly [illegible] for a period of twenty one years, that the Lessing on the tract commenced in 183. That most of the Lots were under Lease in 1837 and the rents regularly paid [illegible word] default. Landlords warrants [two illegible words] that many of the Leases had Covenants implying that if a surrender took place that the ' Lessor or Lessors would not offer any objections. Li That there appeared to have been an understanding by all parties. that the tract would be surrendered and for Sale, Letters had been produced from some of the officers to that effect and the late Superintendent Maj. Winniett that in 1834 had the Leases Examined in Council that he then and since warned the Chiefs. that the white people would consider that they were Entitled to a Pre Emption to purchase. That the printed notice after 22nd Jany 1844 drew the Line of Reserve from the Brantford Line downwards And as a further evidence the Lessing was confined to that tract with triffling exceptions of a recent date There was an objection to its being a part of the Reserve in [illegible] of learning the Improvements at the present date there value could not be less than 9, including the 3rd Range or the 'tract from the River back to the Indian line in which there are over 5 a. They were further informed that as an inducement to relieve the Department from such an Embarrassing position the value or amount to be realised on the lands being sold the sum accruing to be laid out to improve the other part of the Reserve in accordance 1. with such orders as the Council may make for that purpose A notice was posted in June 1846 warning squatters to remove themselves from the reserved lands and inform those that were in occupation of lands in Oneida 34 Minutes of Council, June 15, LAC RG 1 Vol. 158 pp Joan Holmes 11 January 19, 29

14 Than Holmes 12 January 19, 29 Holmes Report 2 and Tuscarora previous to January 22, 1844 and those in occupation in Onondaga that they would be compensated for their improvements. The reserve lands were. limited to all of Tuscarora, parts of Oneida, parts on Onondaga and 2 acres in. Brantford. In this notice there is no reference to the lands in Burtch's tract: 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 2 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.. 35 Council Meeting of March In March1848 a series of councils were convened at which a variety of business was conducted. The councils were primarily concerned with locating Six Nations families on "their reserve lands and discussing issues arising from attempts to either eject squatters. from lots or confirm their occupation of same. Significantly, the Chiefs discussed whether or not they would agree to the sale of the lands in the Burtch Tract. 36 At the Council meeting of March 8, at which 31 chiefs were present, Commissioner David Thorbum relayed a message stating that the "governor. general... is pleased to accede to the request for a deed confirming the Reserve to the Six Nations not including the Burtch tract," 37 The following day the Six Nations chiefs informed Thorburn that they were "pleased to hear that the governor general had acceded to their request that a deed would be given to confirm to them & their people the Reserve land and as they had a promise of 55, acres they would expect the Deed to cover that quantity of acres." 38 The Commissioner specifically addressed the issue of the Burtch Tract not being included in the reserve but being included in the lands offered for sale, Thorburn explained, The reason of the Burtch tract not being included or [word illegible] excluded from the conveyance confirming the Reserve was to the Come obvious the acts of themselves (although not done in council) by Leases had placed white people on them at annual rents and under various conditions all of which encouraged and led to the belief that no opposition would be made by the Indians to them becoming purchasers. The lands were surveyed in conformity, "Notice" June 16, 1846 LAC RG 1 Vol. 458 p. 97. See letter calling council dated March 1, 1848 and series of Council Minutes dated March 8, 9, 22, 23, 24, 25 and 27, LAC RG 1 Vol. 17 pp Council Minutes dated March 8, LAC RG 1 Vol. 17 p Council Minutes dated March [9]; LAC RG 1 Vol. 17 p

15 Holmes Report 21 with the Leases as will appear by reference to the map; the contents under such Leases was acres. The Council had requested lands on the North side of the river, the governor general Lord Metcalf replied while he was anxious to protect the Indians he was equally bound to do Justice to all classes of Her Majestys [sic] subjects that His Excellency would consent that a part of the Reserve might extend on the North side of the River on the condition that a like quantity (meaning the Burtch tract) on the south side of the River should not form a portion of the reserve. About 16 acres was reserved on the North side and now is a part of the Reserve although it had been at the time so made open for sale, His Lordship in saying they might have 55, 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, The council [illegible word] well aware of the great trouble the commissioners had in removing the white people from the lands that were set apart; [illegible word] of this. Burtch tract if a part of the Reserve, under the circumstances it is occupied the difficulties to be incurred will,be greater if practicable to remove them at all. They will also remember the Commr informing the Council of his having authority to sell one of those Lots, that they had repeatedly expressed in their minutes of Council that no part of these lots should be sold notwithstanding the order to sell was not recalled and all these circumstances it appeared to the Commissioners that the Chiefs should, submit and yield up that tract without further deliberation, their own act of the 18 th Septr 1845 placed the surrender at the option of the governor general since that time the order to sell River Lot 76 had been made. The speaker replied that the observations now made by the commissioner required a consideration, and as the council would not sit tomorrow, it was therefore necessary to adjourn... [to March 22, 1848] 39 _J J 39 Council Minutes dated March [9], LAC RG 1 Vol. 17 pp Joan Holmes 13 January 19, 29

16 Holmes Report 22 The Council met again on March 22, 23, and 24 at which time they were not prepared to give a reply. 4 Finally, on March 25 they agreed to the sale of land in the Burtch Tract, _ 1: Having. thus surrendered to Her Majesty for sale the Burtch tract of land in the manner set forth the council desire that no further surrender of any portion of their Land take place within the declared general Reservation in Oneida Tuscarora and Onondaga tract that the same be confirmed by Deed to them and their posterity for ever. 41 The Council was reconvened on March 27, 1848 at which time the minutes of the previous council was read and interpreted. It.was Resolved that the Land be sold if His Excellency concurred with the money being paid for the distribution amongst the Tribes, that in the usual way by Instalments if the purchasers so desire. Resolved that the minutes of this general Council be now signed [illegible word] in behalf of [t]he members there of by the Two speakers A few months after these council meetings a public notice, dated June 16, 1848 was issued announcing the sale of lands in the Burtch Tract, with the.exception of lots "whereon Indian families reside, who do not for the present desire to remove. "43 j Lord Elgin's Proclamation of In November 185, Governor General Lord Elgin issued a Proclamation. extending the provisions of An Act for protection of Indians in Upper Canada from imposition, and the properly occupied or enjoyed by them from trespass and injury, which had been assented to in August 185. Elgj - n's proclamation specifically extended the protection of Sections 1, 11 and 12 to Indian lands in Upper Canada including 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, Riveir 4 Council Minutes dated March 22, 23 and 24, LAC RG 1 Vol. 17 pp Council Minutes dated March 25, LAC RG 1 Vol. 17 p Council Minutes dated March 27, LAC RG 1 Vol. 17 pp "Notice", June 16, LAC RG 1 Vol. 458 p Statute of the Province of Canada, 13 & 14 Vict. Cap 74 Joan Holmes. 14 January 19, 29.

17 Holmes Report 23 lots numbers one, two, three, four, five, six, seven, eight, nine, ten, eleven and twelve in the same Township.... the whole of the Township of TUSCARORA.. Also, to that certain parcel of Land containing Two Hundred Acres more or less, adjacent to the Mohawk Church, and known as LOT NUMBER FIVE, in the Eagle's Nest, in the Township of Brantford, in the said county of Wentworth.... Township of Onondaga... east of Fairchild's Creek, known as River Lots numbers forty-five, forty-six, forty-seven, forty-eight, forty-nine, fifty, fifty-one, fifty two, fifty-three, fifty-four, fiftyfive, fifty-six, fifty-seven, fifty-eight, fifty-nine, sixty and sixty-. one in the third Concession, the same township. 45 Elgin's proclamation listed the lands that the Six Nations had identified in a series of councils during the 184s that should be reserved for their exclusive use (as outlined above). As discussed in the various councils, the intention was to sell the balance of the lands. Settler's Petition and Government's Reply 1'r7 17. A series of petitions to Government regarding the interests of settlers/squatters on the tract along the Grand River were published as a return to Parliament in the Journals of the Legislative Assembly.` Professor Johnston cites this return in paragraphs 37 and 38 of her Report. In summary, the memorialists (petitioners) in the Townships of Oneida and Tuscarora complain that the Indian Department is forcing their removal without adequate compensation and challenges their authority to do so. The petitioners refer to the surrender of 18 January 1841 of "all the lands on the. Grand River, except a few acres near the Town of Brantford" and a subsequent (undated) surrender of the later tract which was said to represent a surrender of "the whole tract". 47 The detail of the 18 January 1841 surrender is not accurately represented and the subsequent retraction by the 4 October 1843 Order in Council is not. referenced in the settlers' petition. LJ 45 "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, November 8, 185. INAC Indian Lands Registry Registration No Appendix to the eleventh volume of the Journals of the Legislative Assembly of the Province of Canada, 1853, Appendix EEEE, dated April 28, Appendix to the eleventh volume of the Journals of the Legislative Assembly of the Province of Canada, 1853, Appendix EEEE, letter from A.N. McNabb and others, undated, unpaginated. The 18 January 1841 surrender (which was later rescinded) did reserve land for the Six Nations which settlers. would not be allowed to settle upon. Joan Holmes 15 January 19, 29

18 Holmes Report Robert Bruce the Superintendent General of Indian Affairs replied to the petitioners in July 1851 by direction of the Governor General. Portions of his reply are cited by Professor Johnston in paragraph 38 of her Report. Bruce's letter is intended to document and justify the action of the Indian Department regarding their treatment of settler/squatters and their obligations to protect Six Nations land. In his reply, Bruce states that "the present Reserve is but a very small remnant" of their original tract. Bruce specifically refers to the Order in Council of 4 October 1843 and subsequent decision of the Court of Chancery in support of his argument to the petitioners that the 18 January 1841 surrender upon which they rely was not put into effect. He adds that the Government was obliged to protect the Six Nations reserve lands. 48 Bruce then recounts that while the Government differed with the Six Nations regarding "the precise extent of their proposed reserve,". it was obliged to protect lands from encroachment and postponed selling even those lands surrendered and did not grant the right of pre-emption to those that settled after November 184. Bruce then indicates that "formal surrenders having been executed by the Indians of the land not included in their reserve, it now became the duty of the Indian Department to give effect to the foregoing arrangements." 49 Bruce notes the 1844 appointment of Commissioner Thorburn and the on-going difficulties officials experienced removing settler/squatters from the reserve lands. He notes that "14 th Vic cap 74" (An Act for protection of Indians in Upper Canada from imposition, and the property occupied or enjoyed by them from trespass and injury 5 ) was enacted to give the Commissioners summary jurisdiction to deal with encroachments on lands specifically reserved for the Six Nations, among others. According to Bruce, trespassers were evicted under this statute. 51 L, As noted above, the lands that were deemed reserved for the Six Nations were described in the 185 Elgin Proclamation that applied 13 &14 Vic. Chap 74 (An Act for protection of Indians in Upper Canada from imposition, and the property occupied or enjoyed by them from trespass and injury) to the Six Nations land. The fact that squatters were convicted under this statute suggests that they were settled on lands reserved for exclusive Six Nation use, as described in the 185 Elgin Proclamation. 48 Appendix to the eleventh volume of the Journals of the Legislative Assembly of the Province of Canada, 1853, Appendix FPRE, R. Bruce, July 1, 1851, unpaginated. 49 Appendix to the eleventh volume of the Journals of the Legislative Assembly of the Province of Canada, 1853, Appendix MEE, R. Bruce, July 1, 1851, unpaginated. 5 Statute of the Province of Canada, 13. & 14 Vict. Cap Appendix to the eleventh volume of the Journals of the. Legislative Assembly of the Province of Canada, 1853, Appendix.EEEE, R. Bruce, July 1, 1851, unpaginated. Joan Holmes 16 January 19, 29

19 Holmes Report Special Commissioners Report of In 1858 the report of the Special Commissioner appointed to investigate. Indian Affairs provided a very brief summary of the history and land transactions of the Six Nations of the Grand River. The report indicates that the Six Nations had surrendered most of the original 694,91 acres described in the. Simcoe "letters patent" of According to the report, they retained 52, acres consisting of 42, acres in Tuscarora; 8, acres in Oneida; 1, acres in Onondaga, and 2 acres in the Township of Brantford. 52 The 2 acres in the. Township of Brantford is consistent with the acreage described in Elgin's. - Proclamation as Lot No. 5 adjacent to the Mohawk church in the Eagle's Nest. The blocks of land in the other three townships are generally consistent with the Elgin's proclamation of 185. I PA Conclusion 19. It is my opinion that the historical documents cited above dating from the 184s, indicate that the Six Nations Chiefs in Council expressed their intention to reserve particular lands for their exclusive use and surrendered the remained for sale. By February 1846, they had agreed to allow the sale of lands in the Martin'and Johnson Settlements, Oxbow tracts, and Eagle's Nest, with the exception of a 2-acre block variously described as being in the vicinity of the Mohawk mission or school. In 1848 they finally agreed to the sale of the Burtch Tract. The Elgin Proclamation of 185 appears to accurately describe the lands that the Six Nations Chiefs in Council had resolved to reserve for their exclusive use as of 185. The lands not intended for reservation were to be sold. 52 Report of the Special Commissioners Appointed on the.8th of September," 8:56, to Investigate Indian Affairs in Canada. Toronto: Stewart Derbishire & George Desbarats, [unpaginated]. Joan Holmes 17 January 19, 29

20 26 Brantford v HDI Document Index no. No. Qate Correspondents or Title Nature of Document Referencia 1843/6/ [undated] Chiefs and Sachems of the Six Nation to the Governor General Metcalfe Petition: A transcript of this document was provided with the Affidavit of Phil Montour, sworn May 28, 28 and was cited by Professor Johnston at paragraph 33. LAC RG 1 Vol. 624 pp /1/4 Report of a Committee of the Executive Council, approved October 4, Order in Council: A transcript of this document was provided with the Affidavit of Phil Montour, sworn May 28, 28 and was cited by Professor Johnston at paragraph 35. LAC RG 1 Vol. 717 pp Reel C-13, /2/7 Samuel P. Jarvis, Chief Letter: A transcript of this document was provided with the LAC Superintendent of Indian Affidavit of Phil Montour, sworn May 28, 28. This transcript RG 1 Affairs to Six Nations Chiefs, has not been verified against the manuscript copy of the Vol. 717 original document. pp /12/13 & David Thorbum, Report and Minutes of meeting with Six Nations LAC 18 Commissioner of Six Nations RG 1 Vol. 144 pp Notice Notice : describing lands reserved. The document is damaged LAC. [date cut off] and the date is not discernible. Internal evidence shows it RG 1 predates January 1, 1846 Vol. 458 p /1/2 David Thorbum, Report and Minutes of Council Commissioner of Six Nations LAC RG 1 Vol. 145 pp fl Li Anuary 19, 27 I Joan Holmes & Associates

21 I 27 Brantford v HDI Document Index fi. 71,11.C2f..1 1' it Li 12sta Correspondents or Title 1845/4/8 David Thorburn, Commissioner of Six Nations Nature of Document Report and Minutes of Council Reference LAC RG 1 Vol pp k 1845/9/17 David Thorburn, Commissioner of Six Nations Report and Minutes of Council LAC RG 1 Vol. 152 pp /2/18 Six Nation Chiefs to Charles Petition of Six Nation Chiefs LAC Murray, Earl of Cathcart, RG 1 Administrator of the Vol. 122 Government of Upper Canada pp /6/15 David Thorburn, Commissioner of Six Nations Report and Minutes of Council LAC RG 1 J.B. Clench, Superintendent Vol. 158 pp /6/16 Notice. Notice regarding removal from reserve land LAC RG 1 Vol. 458 p /3/1 to David Thorburn, 27 Commissioner of Six Nations Report and Minutes of Council, includes letter calling council (1848/3/1), Meeting dates; March 7, 8, 9, 22, 23, 24, 25, 27. LAC RG 1 Vol. 17 pp nuary 19, 27 2 Joan Holmes & Associates -.s

22 Nopat Corresnondents or Title \ I 1848/6/16 Notice Brantford v HDI Document Index Nature of Document Notice: Burtch Tract for sale. LAC RG 1 Vol. 458 p. 91 Reference L 185/8/1 An Act for protection of Statute: making provisions for protection of Indian Land in Statute of the Province of Canada Indians in Upper Canada from Upper Canada 13 & 14 Vict. Cap 74 imposition, and the property occupied or enjoyed by them from trespass and injury 185/11/8 Proclamation, Lord Elgin Proclamation extending the provisions of 13 and 14 Vict. Ch. INAC Indian Lands Registry 74 to certain lands in several townships in U.C. in the '` Registration No occupation or enjoyment of various tribes of Indians, 1853/4/28 Return to Parliament Return to Parliament: Includes petition from squatter/settlers Appendix to the eleventh volume of and letter from Superintendent General Robert Bruce dated 1 the Journals of the Legislative July A.ssembly of the Province of Canada, 1853, Appendix EEEE 1858// Report of Pennefather Report for Commission of Inquiry: Section on Six Nations of Report of the Special Commissioners Commission the Grand River Appointed on the 8th of September,1856, to Investigate Indian Affairs in Canada. Toronto: Stewart Derbishire & George Desbarats, [section on Six Nations] Appendix to the sixteenth volume of the Journals of the Legislative Assembly of the Province of Canada, 1858, A ppendix 21 anuar y 19, 27 3 Joan Holmes & Associates