REPORTS OF JOAN HOLMES

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

TAB DOCUMENT

1. Report of Joan Holmes dated January 19, 2009

2. Supplemental Report of Joan Holmes dated February 2, 2009

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IntroductionProfessor Johnston's Report at Exhibit A to her Supplementary Affidavit sworn January 7,2009 (the "Report") suggests that the land comprised within the Johnson. Settlement,Eagle's Nest and Oxbow tracts were not surrendered between October 1843 and 1867. 1

However, the Elgin Proclamation of 1850, which extended the provisions of An Act forprotection of Indians in Upper Canada from imposition, and the property occupied orenjoyed by them from trespass and injury 2 to Indian lands in Upper Canada, indicatedthat the land reserved to the Six Nations of the Grand River was limited to land in theTownships of Tuscarora, Oneida, and Onondaga and a 200 acre block in Eagle's Nest,Brantford Township. Similarly, the report of the Commissioner appointed to investigateIndian Affairs, tabled in 1858, showed that the lands reserved for the Six Nations of theGrand River did not include any land in the Township of Brantford with the exception ofthe 200-acre block. These 1850 and 1858 documents indicate that all of the other land inthe Haldimand tract, which would have included the Johnson Settlement, Eagle's Nestand Oxbow tracts, had been surrendered by the Six Nations prior to 1850.

The following summary of historical documents highlights a series of transactions madeby the Six Nations Chiefs in Council during the 1840s which lead to the description in the1850 Elgin Proclamation. The lands so described represented the unsurrendered landswhich were thereafter treated by the Crown as the lands reserved for the use and benefitof the Six Nations of the Grand River.

Note: Text contained in square brackets within quotations are additions by the author ofthis report.

January 18411. 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

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the Council of the Six Nations, dated January 18, 1841 are outlined in ProfessorJohnson's Report in paragraphs 26 to 32.According to the historical documents, Jarvis had proposed that the Six Nationsshould surrender all of their land with the exception of a tract of about 20,000acres which they could "occupy as a concentrated body", that tract to be reservedand set apart for their exclusive benefit. The remainder of the surrendered landswould be sold or leased for their benefit. The surrender had a dual object ofsetting aside and reserving a compact area for the exclusive use of the Six Nationsand regularizing the long-standing occupation of Six Nations' land bysettlers/squatters who had obtained their holdings either through direct purchaseor 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, 2009, paragraph43. Paragraph 45 of the Report suggests that the Oxbow Tract is within the municipal limits of the Cityof Brantford. That tract lies outside of the municipal boundaries.

2 Statute of the Province of Canada, 13 & 14 Vict. Cap 74.

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meeting indicates the intention of the Six Nations chiefs to surrender their landswith the exception of a tract called the Johnson settlement; the Johnson settlementwas not to be sold without the consent of those for whom that tract was formerlyreserved.

1843 Petition2. 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 of1843. The petition was considered by Professor Johnston in paragraphs 33 and 34of 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 theirlands be put on "short leases" instead of being sold. Those lands included "theLands forming the Oxbow and the 'Eagle's Nest' and the Mohawk Flats (onwhich 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 bereserved and that the unoccupied land in the Martin settlement be put on shortleases.3

3. The undated 1843 petition was sent for the consideration of the Executive Councilof the Province of Canada on June 24. A Committee of the Executive Councilcited it at length in their report of August 3, 1843. The recommendations withintheir report were approved on October 4, 1843.4 Professor Johnston addressed thisOctober 4, 1843 Order in Council in paragraphs 35 and 36 of her Report.

Amongst other items, the Committee of the Executive Council noted that theoriginal reservation was to have consisted of 20,000 acres and that the petitionerswere now asking for over 55,000 acres composed of lands on the south side of theGrand River, along with the Oxbow tract (1,200 acres), Eagle's Nest (1,800 acres),the Martin tract (1,500 acres), the Johnson settlement (7,000 acres), and a churchlot in Tuscarora. Nearly all the lands in the Oxbow, Eagle's Nest, Martin andJohnson settlements were said to be in the possession of White settlers under titlesgiven by individual Indians.

Despite questioning the wisdom of the Six Nations Chiefs' appeal, the Committeerecommended that the Governor General should accede to their request and "forthe present the Tract prayed to be reserved, be not considered within the Indian

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Petition of the Chiefs and Sachems of the Six Nation of Indians residing on the Grand River, undatedca. June 1843. LAC Vol. 624, pp 241-245. A transcript of this document was referenced in theAffidavit of Phil Monture sworn May 28, 2008 and produced at his cross-examination. The petitionwas cited by Professor Johnston at paragraph 33 of her Report.

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Report of a Committee of the Executive Council, approved October 4, 1843. LAC RG 10 Vol. 717 pp.232-248 Reel C-13,411. A transcript of this document was referenced in the Affidavit of Phil Monturesworn May 28, 2008 and produced at his cross-examination. The Report of October 4, 1843 was citedby Professor Johnston at paragraph 35 and 36 of her Report.

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surrender." However, they did not view this as a final arrangement and anticipatedthat 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 andother small tracts mentioned in the petition upon short leases" (i.e. some of thelands being withdrawn from the surrender should be leased). 5

Events of 18444. Several months later, on February 7, 1844, Indian Affairs Chief Superintendent

Jarvis noted that the 1841 surrender had been withdrawn by the Six Nations andthe Government had acceded to their request to put several tracts, includingEagle's Nest, Oxbow, Martin and Johnson "at short leases". 6 Despite acceding totheir wishes, Jarvis reiterated the opinion that the 1841 surrender had been "a wisemeasure and should have been strictly adhered to by the Indians". 7

5. Less than a year later, Commissioner Thorburn brought the land issues before theChiefs of the Six Nations in Council at the request of the Governor Generalduring two meetings held on December 13 and 18, 1844. The archival records ofthe meetings are preserved in a two part document: the first part is Thorburn'sreport of meetings on each of the two days and includes the signatures of thechiefs; 8 the second part of the document is a minute of Council recording howeach day proceeded, including a count of the number of chiefs present from eachnation.9 This document was not cited in Professor Johnston's Report.

The eight page report by Thorbum begins with an account of the December 13Council meeting at which Commissioner Thorburn proposed to the Chiefs thatthey consider what lands should be set apart and reserved for them and alsoconsider "leasing or selling parts of their lands on the Grand River known as theOxbow, Eagles Nest, Martin and Johnson settlements." 1° Thorburn recommendedthat the reserve be confided to the Township of Tuscarora and the remainder besold for their benefit.

5 Report of a Committee of the Executive Council, approved October 4, 1843. LAC RG 10 Vol. 717 pp.243 Reel C-13,411. The idea of short leases was so that the land so leased could be later assumed bytheir members.

6 Samuel P. Jarvis, Chief Superintendent of Indian Affairs to Six Nations Chiefs, February 7, 1844. Atranscript of this document was referenced in the Affidavit of Phil Monture sworn May 28, 2008 andproduced at his cross-examination. Reference cited LAC RG 10 vol. '717 pp. 249-252. This transcripthas 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, 1844. Atranscript of this document was referenced in the Affidavit of Phil Monture sworn May 28, 2008 andproduced at his cross-examination Reference cited LAC RG 10 vol. 717 pp. 249-252. This transcripthas 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, 1844.LAC RG 10 Vol. 144, pp 83269-83271.

9 Meeting minutes, Onondaga Council House, December 13 and December 18, 1844. LAC RG 10 Vol.144, pp 83277-83279.

io David Thorburn, Commissioner, Report on meeting with Six Nations, December 13, 1844. LAC RG10 Vol. 144, pp 83269-83271.

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According to Thorbum's account, the Council reconvened five days later onDecember 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 thenindicated: "From this answer they unanimously recede and therefore agree thatthe same be sold." 11 Their agreement had some stipulations including thereservation of 200 acres at or near the "Mohawk School", some arrangementsregarding compensation for improvements and treatment of squatters on the landsto be reserved, a reservation of 3,600 acres in Onondaga Township, andprotection of lots occupied by Six Nations members outside of the generalreserve.

12 Their conditions were recorded as follows:

From this answer they unanimously recede and therefore agree thatthe same be sold.

The chiefs further desire that there be reserved at or near theMohawk School two Hundred acres of land for the use of the saidschool so that the Scholars may then be Ensured agriculturalpursuits. [Located in the Eagle's Nest, Brantford Township]

They also desire that the Indian cleared lands on the north side maybe exchanged for those on the south side thus recompensing thepossessors of improvements from Burtch's to Lot No. 72 on theRiver. [Located along the Grand River below the Oxbow andadjacent to the boundary between Brantford and Tuscarora]

They do not think that the squatters on the other part of lands theynow desire for their future residence ought in future to complain inhaving to lease the improvements they have made without arecompense in as much as they squatted without permission andmuch offend the wish of the Indians as well as against their interestnevertheless they are desirous that justice may be done X.[Marginalia:] X to all such squatters for their improvements.

The Six Nations are desirous that 3,600 acres of land may also bereserved for the Tuscarora Tribe on the north side of the River inthe Township of Onondaga in and around the Church and missionestablishment of the New England Companies provided that suchReserve may not be prejudicial to their reserve on the south sidethe River as here on desired.

David Thorburn, Commissioner, Report on meeting with Six Nations, December 18, 1844. LAC RG10 Vol. 144, pp. 83271-83272.David Thorburn, Commissioner, Report on meeting with Six Nations, December 18, 1844. LAC RG10 Vol. 144, pp. 83272-83274.

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The Nations present declare that due notice to their people was hadof the time place and object of their meeting in Council on the 13thlast as well as of today and believe this their answer to theCommissioner is the wish of the Six Nations without a desent [sic].

The Chiefs would further recede from that part of their formeranswer that such portions of Lots as the Commissioner might judgenot to be useful or necessary on which an Indian resides might besold and therefore desire that any lot whereon an Indian resides outof the general Reserve no part of it be sold while it is so occupiedbut on the lot becoming vacant the same to be sold and notreserved.

The Nations adhere to their former desire that for the reserve anEntact [sic] deed be granted Onondaga Council House on the Grd[sic] River District of Gore

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The final page of Thorbum's report was signed by what appears to be 19 separatesignatures, the following page by 26 signatures. Of the 45 names listed on the twopages some are signatures and some are names with marks. Thorburn certified thesignatures of the chiefs. 14

The second part of this archival document consists of three pages of minutes ofthe proceedings of the meetings. The minutes specify that the meeting was heldpursuant to previous notice, name the officials present (David Thorburn, JamesWinniett) and give a count of the 50 chiefs present, by nation. The minutes statethat the Council was opened by the Fire Keeper Chief Echo and Interpreter JacobMartin. The minutes indicate that Commissioner Thorburn read "the subject"which was translated by the interpreter "by paragraphs" and that discussionensured. 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 werepresent. 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, 1844. LAC RG10 Vol. 144, pp. 83272-83274.

14 David Thorburn, Commissioner, Report on meeting with Six Nations, December 18, 1844. LAC RG10 Vol. 144, pp. 83275-83276.

15 Meeting minutes, Onondaga Council House, December 13, 1844. LAC RG 10 Vol. 144, pp 83277-83278. This map has not been located.

16 The difference in the number of chiefs is accounted for by the following changes from the December13 meeting: 13 Upper and Lower Mohawk chiefs instead of 14; 9 Cayuga chiefs instead of 12; 7Tuscaroras instead of 6.

17 Henry Brant appears as the first signature in the list of signatures

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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 wasnot in the interest of themselves or their posterity "to secure the land they desiredfor an exclusive Indian settlement their funds would be materially affected inpaying the present possessors for their Improvements and to them they would notbe of a like value as to the White settler." 18 The next and final paragraph of theminute indicates that:

Their answers were taken down by the Commissioner and eachread and recited to the Council by the Interpreter and assented toby their Speaker as the unanimous wish of the Six Nations afterwhich the respective Chiefs confirmed the same by their signaturebefore the rising of the counci1. 19

6. It is my opinion that the report of Thorbum, signed by the chiefs and the minuteof the two Council meetings show that the Council was properly called, time wasgiven for consultation and deliberation, an interpreter was used and the documentcarefully reviewed before signing. There were reportedly 47 chiefs at the meetingof 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 theTownship of Tuscarora set aside as their reserve, along with a reservation of 200acres at or near the "Mohawk School", and a reservation of 3,600 aces inOnondaga Township on the north side of the Grand River for the Tuscaroras. Inaddition they wanted to retain a range of lots from Burtch's Lot to Lot 72. Theselots follow the curve of the Grand River, downstream from the Oxbow on thesouth side. Lot 72, the most easterly of the lots abuts on the boundary betweenBrantford and Tuscarora townships. Other lands were to be sold for their benefit.

1845 Events Respecting the Six Nations Reservation7. 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 thechiefs had "abandoned the idea of Leasing those portions of their Lands known asthe Oxbow, Eagle's Nest, Martin and Johnson Settlements as he is satisfied thatsettlers will be more conducive to their Interests." Further, the Governor Generalapproved the reservation of the 200 acres in the vicinity of the Mohawk School.

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With regard to the 3600 acres on north side adjoining the Tuscarora church andParsonage, the Governor General believed there were obstacles to making it an

18 Meeting minutes, Onondaga Council House, December 18, 1844. LAC RG 10 Vol. 144, pp 83277-83279.

19 Meeting Minutes, Onondaga Council House, December 18, 1844. LAC RG 10 Vol. 144, pp 83277-83279.

20 David Thorbum, Minutes of Council, Indian Council House, January 20, 1845. LAC RG 10 Vol. 145 p.83803.

21 David Thorbum, Minutes of Council, Indian Council House, January 20, 1845. LAC RG 10 Vol. 145 p.83805.

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exclusive Indian settlement but would not withhold consent on condition that :thegeneral reserve is reduced by the same acreage. 22 The Governor General was notin 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 landsreads as follows:

His Excellency does not concur in the views of the Chiefs that theproposed exchange of the Indian cleared lands on the North side ofthe River for those on the South side would be a fair compensationto the owners of improvements between Burchs [sic] Landing andLot 72 on the river. But is of opinion that the improvements ineach lot that may be reserved ought to be paid for according to thevalue of which it is apprised

The Governor General regrets to learn that the chiefs still desire tohave induded in their proposed Reserve the land in the Townshipof Brantford between Burchs [sic] Landing and the lot 72 on theRiver in Tugcarora upon which there are so many settlers the valueof whose improvements will amount to a considerable sum andwhose removal if it should be practicable which is at presentdoubtful cannot be effected without causing very generaldissatisfaction amongst them and a heavy expense upon the fundsof the Tribe. Unless the chiefs see the propriety of withdrawingtheir application for this tract being reserved to which so manyobstacle exist it will be necessary before His Excellency can cometo any decision upon the question that the commissioners doinvestigate the circumstances under which each settler may havecome in possession of the land on which he has located himself,the period, during which he has been in occupation and the natureof the improvements made by him And to report the same for HisExcellency's consideration. The commissioner is warranted to sayto the Council that His Excellency is very desirous of gratifyingthe Indians but he cannot sanction the wholesale removal of thesettlers without the fullest information of the particular of everycase that such a proceeding would involve 23

Thorbuth stated that he hoped the council would agree to concur with the views ofthe Governor General which he summarized. 24

. . .David Thorbum, Minutes of Council, Indian Council House, January 20, 1845. LAC RG 10 Vol. 145pp. 83805-83806.David Thorburn, Minutes of Council, Indian Council House, January.20, 1845. LAC RG 10 Vol. 145pp. 83806-83807.David Thorburn, Minutes of Council, Indian Council House, January 20, 1845. LAC RG 10 Vol. 145.pp. 83808-83810.

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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 theOxbow Tract, Eagle's Nest Tract, and Martin and Johnson Settlements. TheGovernor General had agreed to reserve the 200-acre block in the vicinity of theMohawk school. The reservation or sale of 3600 acres on the north side of theGrand River in Onondaga Township and the Burtch tract were the areasremaining in contention.

8. Sixty chiefs were present at a Council meeting of April 8, 1845. 25 At that timethey indicated that they had deliberated extensively and receded from their formerposition regarding the 3,600 acres on the north side in Onondaga Townshipexcept for a tier of river lots beginning at lot 45 and running to their council housewhich was on Lot 60 or 61. 26

9. The Council met again on September 17 and 18, 1845. Sixty-six chiefs were inattendance on September 17. The following is recorded,

... After much time spent in discussion, [illegible word] thesubmission it was finally resolved [illegible word or words]reserves should consist of the lands adjoining, the tier of Lots onthe west side of the Plank road in the township of Oneida and thewhole of. the Township of Tuscarora and such Lots or portions inthe Burtch tract in the Township of Brantford as the White settlersthereon could not on an Examination (before the Chiefs in councilat this place) shew that they had an equitable claim to a preEmption by Leases or otherwise the submission of the ReExamination to be laid before His Lordship the Governor Generalfor his decision on each case, And that in the said Township ofBrantford at the Mohawk Mission School Two hundred acres andfurther in the Township of Onondaga a tier of River Lots fromforty 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, 200 acres at the Mohawk missionschool, and lots 45 to 61 in Onondaga were requested for reservation, aspreviously indicated. Lands in Oneida Township had been added and the Councilhad indicated consent to reserve only the portions of the Butch tract on whichsettlers could not establish a legitimate claim.

25 Minutes of Council, Mission School House Onondaga, April 8, 1845. LAC RG 10 Vol. 144 pp. 83299-83305A

26 Minutes of Council, Mission School House Onondaga, April 8, 1845. LAC RG 10 Vol. 144 pp. 83301-83302.

27 David Thorburn, Minutes of Council, Council House Onondaga, September 17, 1845. LAC RG 10 Vol.152 pp. 87852-87854.

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10. The Council minutes of the 'following day, 18 September 1845, have not beenlocated, however a public notice describing the lands reserved for the Six.Nationsis consistent with the intention indicated at the September 17 meeting. The publicnotice described the reserved lands:

Lying on the South side of the Grand River, West from the tier ofLots adjoining the Plank Road, in the Township of Oneida, ,including the Township of Tuscarora, and that part of theTownship of Brantford, to the Deeded Land at Burtch's; and a .parcel of Two Hundred Acres lying contiguous to the MohawkMission School, together with a tier of River Lots, from 45 to 61inclusive, on the NOrth side of the said River in the Township ofOnondaga ...

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The public notice warned squatters/settlers to remove themselves from thereserved lands by the "first day of January next". Other documentation indicatesthat the deadline was January 1, 1846.

1846 and Six Nations' Displeasure regarding Squatters11. In February 1846 the Six Nations Chiefs sent a lengthy petition29 to the .

Administrator of the Government in which they acknowledged that they hadsurrendered specific lands subsequent to October 1843, including lands in theOxbow, Eagle's Nest and Johnson Settlement. They were dissatisfied with thenumber of sqUatters who still remained on their lands and that the full extent.of55,000 acres had not yet been reserve to them. They described the lands they hadsurrendered as follows:

That when Mr. Thorburn was appointed commissioner the peopleof the Six Nations entertained an encouraging hope that theiraffairs would immediately be settled and their troubles ended; and

• that in order to secure the sanction of the Government to thereservation of 55000 acres of their land for the exclusive use of theIndians and also to facilitate the speedy removal of such whitepeople as occupied portions of it, Your Excellency's Petitionerswere induced to surrender for sale all their land on the South side •of the Grand River situated between the Bridge at the village.ofCaledonia and the Townships of Dunn; and also tracts of their landof considerable extent in Martin's settlement, the Ox-bow, theEagles' nest and Johnson's Settlement. 3°

28 "Notice" [prior to January 1, 1846] LAC RG 10 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 ofUpper Canada, February 18, 1846. Murray was later appointed Governor General. LAC RG 10 Vol.122 pp. 5761-5768.

3o Petition of Six Nation Chiefs to Charles Murray, Earl of Cathcart, Administrator of the Government of.Upper Canada, February 18, 1846. LAC RG 10 Vol. 122 p. 5763. • .

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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 repeatedlyexpressed to Mr. Thorburn in General Council the decidedaversion of the Six Nations to any further deduction from the landwhich they are to retain for agricultural purposes they have beenconstantly solicited by those Gentlemen as Commissioner [sic] toconsent to the sale of a portion of their land in the vicinity ofBurtch's Landing on the South side of the River, said to containabout 3600 acres.

That Your Excellency's Petitioners object to the surrender of thistract not only on account of a part of their people being residentupon it but also because if it should be deducted from theirReservation it would then contain if Your Petitioners are notmistaken only about 46000 instead of 55000 31 acres the portionspecified by His Excellency the Governor General in accordancewith 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 theCommissioner that the white settlers on the 3600 acres at Burtch'slanding ought to be allowed to purchase the lots on which theyhave made improvements though most of them hold their farms byleases only for a certain term of years; that the people of the SixNations were not convinced of the soundness of this opinion: butthat though they cannot consent to the sale of any portion of theirReserve Your Excellency's Petitioners have no hesitation inrepeating what they have often before stated, that if any individualsare to be found on their lands who can establish an evidentlyequitable claim they have no objections to their receiving a justremuneration for improvements which they may have made out ofthe Six Nations funds on their removal from the IndianSettlement. 33

12. The lands and settlers in the Burch tract were apparently examined and thefindings presented in the council in June 1846. The Government wanted to sell thelots to the settlers, many of whom had leases.

31 This is clearly an error. The difference between 55000 and 46000 is 9,000 acres not 3,600 acres.32 Petition of Six Nation Chiefs to Charles Murray, Earl of Cathcart, Administrator of the Government of

Upper Canada, February 18, 1846. LAC RG 10 Vol. 122 p. 5763.33 Petition of Six Nation Chiefs to Charles Murray, Earl of Cathcart, Administrator of the Government of

Upper Canada, February 18, 1846. LAC RG 10 Vol. 122 pp. 5765-5766.

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After the above arrangement was read the councils attention wascalled to the 4th Item "the position of the Burtch Tract" MrThorburn Explained that before a Committee of the Chiefs theSettlers were Examined. The Improvements had also beenexamined by Mr Kirkpatrick and the result was that such Lots aswere not in the Entire possession of Indian families were occupiedby white people who paid an annual rent to Individual Indians inaccordance with Leases [illegible word] mostly [illegible] for aperiod of twenty one years, that the Lessing on the tractcommenced in 1830. That most of the Lots were under Lease in1837 and the rents regularly paid [illegible word] default.Landlords warrants [two illegible words] that many of the Leaseshad Covenants implying that if a surrender took place that the

' Lessor or Lessors would not offer any objections.

That there appeared to have been an understanding by all parties .that the tract would be surrendered and for Sale, Letters had beenproduced from some of the officers to that effect and the lateSuperintendent Maj. Winniett that in 1834 had the LeasesExamined in Council that he then and since warned the Chiefs. thatthe white people would consider that they were Entitled to a PreEmption to purchase.

That the printed notice after 22nd Jany 1844 drew the Line ofReserve from the Brantford Line downwards

And as a further evidence the Lessing was confined to that tractwith 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 therevalue could not be less than £9,000 including the 3rd Range or the'tract from the River back to the Indian line in which there are over5000 a.• • •

They were further informed that as an inducement to relieve theDepartment from such an Embarrassing position the value oramount 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. 34

13. . A notice was posted in June 1846 warning squatters to remove themselves fromthe reserved lands and inform those that were in occupation of lands in Oneida

34 Minutes of Council, June 15, 1846. LAC RG 10 Vol. 158 pp. 91283-91284.

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and Tuscarora previous to January 22, 1844 and those in occupation in Onondagathat they would be compensated for their improvements. The reserve lands were . •limited to all of Tuscarora, parts of Oneida, parts on Onondaga and 200 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 Sideof the Plank Road to the boundary line of the Township ofTuscarora, and the whole of the Township of Tuscarora, and aparcel of 200 Acres lying adjacent to the Mohawk Institute, in theTownship of Brantford, and on the North side of the Grand River,in the Township of Onondaga, a tier of River Lots, from No. 61 to45, .both inclusive.. 35

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 tothe Six Nations not including the Burtch tract," 37 The following day the SixNations chiefs informed Thorburn that they were "pleased to hear that the governor general had acceded to their request that a deed would be given toconfirm to them & their people the Reserve land and as they had a promise of55,000 acres they would expect the Deed to cover that quantity of acres."38 TheCommissioner specifically addressed the issue of the Burtch Tract not beingincluded in the reserve but being included in the lands offered for sale, Thorburnexplained,

The reason of the Burtch tract not being included or [word illegible]excluded from the conveyance confirming the Reserve was to theCome obvious the acts of themselves (although not done incouncil) by Leases had placed white people on them at annualrents and under various conditions all of which encouraged and ledto the belief that no opposition would be made by the Indians tothem becoming purchasers. The lands were surveyed in conformity ,

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"Notice" June 16, 1846 LAC RG 10 Vol. 458 p. 97.36

See letter calling council dated March 1, 1848 and series of Council Minutes dated March 8, 9, 22, 23,24, 25 and 27, 1848. LAC RG 10 Vol. 170 pp. 98597-98631.Council Minutes dated March 8, 1848. LAC RG 10 Vol. 170 p. 98599.• .

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Council Minutes dated March [9]; 1848. LAC RG 10 Vol. 170 p. 98605. .

Council Meeting of March 184814. In March1848 a series of councils were convened at which a variety of business

was conducted. The councils were primarily concerned with locating Six Nationsfamilies on "their reserve lands” and discussing issues arising from attempts toeither 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 inthe Burtch Tract. 36

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with the Leases as will appear by reference to the map; thecontents under such Leases was 1727. acres.

The Council had requested lands on the North side of the river, thegovernor general Lord Metcalf replied while he was anxious toprotect the Indians he was equally bound to do Justice to all classesof Her Majestys [sic] subjects that His Excellency would consentthat a part of the Reserve might extend on the North side of theRiver on the condition that a like quantity (meaning the Burtchtract) on the south side of the River should not form a portion ofthe reserve.

About 1600 acres was reserved on the North side and now is a partof the Reserve although it had been at the time so made open forsale, His Lordship in saying they might have 55,000 acres;evidently meant if such could be had in conformity with therequest of the Council, that their settlements should be entirelyIndian and compact. This has been done as far as existingcircumstances at the time would permit & a compact settlementcould only be given from the west side of the tier of Lots on thePlank road in Oneida stretching westward to the Line separatingthe townships of Tuscarora from the Burtch tract in Brantford, Thecouncil [illegible word] well aware of the great trouble thecommissioners had in removing the white people from the landsthat were set apart; [illegible word] of this. Burtch tract if a part ofthe Reserve, under the circumstances it is occupied the difficultiesto be incurred will,be greater if practicable to remove them at all.

They will also remember the Commr informing the Council of hishaving authority to sell one of those Lots, that they had repeatedlyexpressed in their minutes of Council that no part of these lotsshould be sold notwithstanding the order to sell was not recalledand all these circumstances it appeared to the Commissioners thatthe Chiefs should, submit and yield up that tract without furtherdeliberation, their own act of the 18 th Septr 1845 placed thesurrender at the option of the governor general since that time theorder to sell River Lot 76 had been made.

The speaker replied that the observations now made by thecommissioner required a consideration, and as the council wouldnot sit tomorrow, it was therefore necessary to adjourn ... [toMarch 22, 1848]39

39 Council Minutes dated March [9], 1848. LAC RG 10 Vol. 170 pp. 98607-98610.

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Joan Holmes 13 January 19, 2009

22Holmes Report

_ 1:

j

The Council met again on March 22, 23, and 24 at which time they were notprepared to give a reply. 4° Finally, on March 25 they agreed to the sale of land inthe Burtch Tract,

Having . thus surrendered to Her Majesty for sale the Burtch tract ofland in the manner set forth the council desire that no furthersurrender of any portion of their Land take place within thedeclared general Reservation in Oneida Tuscarora and Onondagatract that the same be confirmed by Deed to them and theirposterity for ever. 41

The Council was reconvened on March 27, 1848 at which time the minutes of theprevious council was read and interpreted.

It.was Resolved that the Land be sold if His Excellency concurredwith 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 Twospeakers. 42 .

•• •.15. 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 oflots "whereon Indian families reside, who do not for the present desire toremove."43

Lord Elgin's Proclamation of 185016. In November 1850, Governor General Lord Elgin issued a Proclamation.

extending the provisions of An Act for protection of Indians in Upper Canadafrom imposition, and the properly occupied or enjoyed by them from trespass andinjury, which had been assented to in August 1850. Elgj -n's proclamationspecifically extended the protection of Sections 10, 11 and 12 to Indian lands inUpper Canada including the following lands in the Haldimand Tract:

... certain tract or parcel of land, situate in the Township ofONEIDA in the County of Haldimand ... comprising lots numbersone, two, three, four, five and six in the first, second, third, fourth,' .fifth and sixth concessions respectively of Oneida .. and also, Riveir

40 Council Minutes dated March 22, 23 and 24, 1848. LAC RG 10 Vol. 170 pp. 98611-98614.41 Council Minutes dated March 25, 1848. LAC RG 10 Vol. 170 p. 98627.42 Council Minutes dated March 27, 1848. LAC RG 10 Vol. 170 pp. 98631.43 "Notice", June 16, 1848. LAC RG 10 Vol. 458 p. 91.44 Statute of the Province of Canada, 13 & 14 Vict. Cap 74

Joan Holmes . 14 January 19, 2009.

23Holmes Report

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 Acresmore or less, adjacent to the Mohawk Church, and known as LOTNUMBER FIVE, in the Eagle's Nest, in the Township ofBrantford, in the said county of Wentworth.

... Township of Onondaga ... east of Fairchild's Creek, known asRiver Lots numbers forty-five, forty-six, forty-seven, forty-eight,forty-nine, fifty, fifty-one, fifty two, fifty-three, fifty-four, fifty-five, 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 seriesof councils during•the 1840s that should be reserved for their exclusive use (asoutlined above). As discussed in the various councils, the intention was to sell thebalance of the lands.

Settler's Petition and Government's Reply1'r7 17. A series of petitions to Government regarding the interests of settlers/squatters onthe tract along the Grand River were published as a return to Parliament in theJournals of the Legislative Assembly.` Professor Johnston cites this return inparagraphs 37 and 38 of her Report.

In summary, the memorialists (petitioners) in the Townships of Oneida andTuscarora complain that the Indian Department is forcing their removal withoutadequate compensation and challenges their authority to do so. The petitionersrefer 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 wholetract".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.

45 "Proclamation extending the provisions of 13 and 14 Vict. Ch. 74 to certain lands in several townshipsin U.C. in the occupation or enjoyment of various tribes of Indians, November 8, 1850. INAC IndianLands Registry Registration No. 8740-292.

46 Appendix to the eleventh volume of the Journals of the Legislative Assembly of the Province ofCanada, 1853, Appendix EEEE, dated April 28, 1853.

47 Appendix to the eleventh volume of the Journals of the Legislative Assembly of the Province ofCanada, 1853, Appendix EEEE, letter from A.N. McNabb and others, undated, unpaginated. The 18

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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, 2009

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Holmes Report

Robert Bruce the Superintendent General of Indian Affairs replied to thepetitioners in July 1851 by direction of the Governor General. Portions of hisreply are cited by Professor Johnston in paragraph 38 of her Report. Bruce's letteris intended to document and justify the action of the Indian Department regardingtheir 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" oftheir original tract. Bruce specifically refers to the Order in Council of 4 October1843 and subsequent decision of the Court of Chancery in support of hisargument to the petitioners that the 18 January 1841 surrender upon which theyrely was not put into effect. He adds that the Government was obliged to protectthe Six Nations reserve lands. 48

Bruce then recounts that while the Government differed with the Six Nationsregarding "the precise extent of their proposed reserve,". it was obliged to protectlands from encroachment and postponed selling even those lands surrendered anddid not grant the right of pre-emption to those that settled after November 1840.

Bruce then indicates that "formal surrenders having been executed by the Indiansof the land not included in their reserve, it now became the duty of the IndianDepartment to give effect to the foregoing arrangements." 49

Bruce notes the 1844 appointment of Commissioner Thorburn and the on-goingdifficulties officials experienced removing settler/squatters from the reserve lands.He notes that "14 th Vic cap 74" (An Act for protection of Indians in UpperCanada from imposition, and the property occupied or enjoyed by them fromtrespass and injury50) was enacted to give the Commissioners summaryjurisdiction to deal with encroachments on lands specifically reserved for the SixNations, among others. According to Bruce, trespassers were evicted under thisstatute.

51

As noted above, the lands that were deemed reserved for the Six Nations weredescribed in the 1850 Elgin Proclamation that applied 13 &14 Vic. Chap 74 (AnAct for protection of Indians in Upper Canada from imposition, and the propertyoccupied 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 weresettled on lands reserved for exclusive Six Nation use, as described in the 1850Elgin Proclamation.

48 Appendix to the eleventh volume of the Journals of the Legislative Assembly of the Province ofCanada, 1853, Appendix FPRE, R. Bruce, July 10, 1851, unpaginated.

49 Appendix to the eleventh volume of the Journals of the Legislative Assembly of the Province ofCanada, 1853, Appendix MEE, R. Bruce, July 10, 1851, unpaginated.

50 Statute of the Province of Canada, 13. & 14 Vict. Cap 7451 Appendix to the eleventh volume of the Journals of the. Legislative Assembly of the Province of

Canada, 1853, Appendix.EEEE, R. Bruce, July 10, 1851, unpaginated.

Joan Holmes 16 January 19, 2009

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Holmes Report

Special Commissioners Report of 185818. 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 theSix Nations of the Grand River. The report indicates that the Six Nations hadsurrendered most of the original 694,910 acres described in the. Simcoe "letterspatent" of 1793. According to the report, they retained 52,133.25 acres consistingof 42,000 acres in Tuscarora; 8,395.75 acres in Oneida; 1,537.25 . acres inOnondaga, and 200 acres in the Township of Brantford. 52 The 200 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 theElgin's proclamation of 1850.

Conclusion19. It is my opinion that the historical documents cited above dating from the 1840s ,

indicate that the Six Nations Chiefs in Council expressed their intention to reserveparticular lands for their exclusive use and surrendered the remained for sale. ByFebruary 1846, they had agreed to allow the sale of lands in the Martin'andJohnson Settlements, Oxbow tracts, and Eagle's Nest, with the exception of a200-acre block variously described as being in the vicinity of the Mohawkmission or•school. In 1848 they finally agreed to the sale of the Burtch Tract.The Elgin Proclamation of 1850 appears to accurately describe the lands that theSix Nations Chiefs in Council had resolved to reserve for their exclusive use as of1850. The lands not intended for reservation were to be sold.

52Report of the Special Commissioners Appointed on the.8th of September," 8:56, to Investigate IndianAffairs in Canada. Toronto: Stewart Derbishire & George Desbarats, 1858. [unpaginated]. •

Joan Holmes 17 January 19, 2009

no. No. Qate Correspondents or Title

Brantford v HDIDocument Index

Nature of Document

Petition: A transcript of this document was provided with theAffidavit of Phil Montour, sworn May 28, 2008 and was citedby Professor Johnston at paragraph 33.

Referencia

26

1843/06/00[undated]

Chiefs and Sachems of theSix Nation to the GovernorGeneral Metcalfe

LACRG 10Vol. 624pp. 241-245

1843/10/04 Report of a Committee of theExecutive Council, approvedOctober 4, 1843.

Order in Council: A transcript of this document was providedwith the Affidavit of Phil Montour, sworn May 28, 2008 andwas cited by Professor Johnston at paragraph 35.

LACRG 10Vol. 717

pp. 232-248Reel C-13,411.

1844/02/07 Samuel P. Jarvis, Chief Letter: A transcript of this document was provided with the LACSuperintendent of Indian Affidavit of Phil Montour, sworn May 28, 2008. This transcript RG 10Affairs to Six Nations Chiefs, has not been verified against the manuscript copy of the Vol. 717

original document. pp. 249-252.

1844/12/13 & David Thorbum, Report and Minutes of meeting with Six Nations LAC18 Commissioner of Six Nations RG 10

Vol. 144pp 83269-83279

1845 Notice Notice : describing lands reserved. The document is damaged LAC .[date cut off] and the date is not discernible. Internal evidence shows it RG 10

predates January 1, 1846 Vol. 458p. 78.

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1845/01/20 David Thorbum, Report and Minutes of CouncilCommissioner of Six Nations

LACRG 10

Vol. 145pp. 838031-83810.

Anuary 19, 2007 I Joan Holmes & Associates

fi.71,11.C2f..1 1'

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1848/03/01 to David Thorburn,27 Commissioner of Six Nations

12sta Correspondents or Title

Brantford v HDI

Document Index

Nature of Document Reference

1845/04/08 David Thorburn,Commissioner of Six Nations

Report and Minutes of Council LACRG 10Vol.- 144pp. 83299-83305k

1845/09/17 David Thorburn,Commissioner of Six Nations

Report and Minutes of Council LACRG 10Vol. 152pp. 87852-87854.

1846/02/18 Six Nation Chiefs to Charles Petition of Six Nation Chiefs LACMurray, Earl of Cathcart,Administrator of theGovernment of Upper Canada

RG 10 •Vol. 122pp. 5761-5768.

1846/06/15 David Thorburn,Commissioner of Six Nations

Report and Minutes of Council LACRG 10

J.B. Clench, Superintendent Vol. 158pp. 91273-91284.

1846/06/16 Notice. Notice regarding removal from reserve land LACRG 10Vol. 458p. 97.

Report and Minutes of Council, includes letter calling council(1848/03/01), Meeting dates; March 7, 8, 9, 22, 23, 24, 25, 27.

LACRG 10Vol. 170pp. 98576-98631

27

nuary 19, 2007

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2 Joan Holmes & Associates

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No pat Corresnondents or Title

\ I 1848/06/16 Notice

Brantford v HDIDocument Index

Nature of Document

Reference•

Notice: Burtch Tract for sale. LACRG 10Vol. 458p. 91

1850/08/10 An Act for protection of Statute: making provisions for protection of Indian Land in Statute of the Province of CanadaIndians in Upper Canada from Upper Canada 13 & 14 Vict. Cap 74imposition, and the propertyoccupied or enjoyed by them •from trespass and injury

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1850/11/08 Proclamation, Lord Elgin Proclamation extending the provisions of 13 and 14 Vict. Ch. INAC Indian Lands Registry74 to certain lands in several townships in U.C. in the '` Registration No. 8740-292.occupation or enjoyment of various tribes of Indians,

1853/04/28 Return to Parliament Return to Parliament: Includes petition from squatter/settlers Appendix to the eleventh volume ofand letter from Superintendent General Robert Bruce dated 10 the Journals of the LegislativeJuly 1851. A.ssembly of the Province of Canada,

1853, Appendix EEEE

„1858/00/00 Report of Pennefather Report for Commission of Inquiry: Section on Six Nations of Report of the Special CommissionersCommission the Grand River Appointed on the 8th of

September,1856, to Investigate IndianAffairs in Canada. Toronto: StewartDerbishire & George Desbarats,1858. [section on Six Nations]Appendix to the sixteenth volume ofthe Journals of the LegislativeAssembly of the Province of Canada,1858, A ppendix 21

anuary 19, 2007 • 3 Joan Holmes & Associates

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affidaldt of \.10..41-r) kh)/M c'S

sworn before Me, this 4?-11)

davpg rdete-' `.• • €

}0 2.................2a t?..7.

iiHolmes Report" filed on 25 January 2009 (hereafter "the JohnstoadbspnosAva -rAmeAFFJoiwirs

2. My comments respecting paragraph 7 of the Johnston Response are as follows:

i) It is noted that in some cases no transcripts or only partial transcripts wereprovided with the Holmes Report appended to my affidavit sworn January 20,2009 (hereafter the "Holmes Report"). Due to the very short time available inwhich to undertake this work, I did not transcript one document (8 April 1844)and provided only a partial transcript of the council meetings ofMarch 1848, as Ijudged them to be of secondary importance. Other documents were nottranscribed because they were printed material.

ii) Many historical documents were referenced within the archival documentsproduced with the Holmes Report. Since receiving the Johnston Response onJanuary 26, 20091 have had an opportunity to review most of these documents anda few, which appear to be relevant to the subject at hand, are referenced andproduced with this Supplemental Report (see Tabs A to G).

iii) The entire archival record dealing with Six Nations land issues in the pre-confederation period is huge and has not been systematically reviewed by eitherProfessor Johnston or myself. My opinion is based on my current level ofknowledge of the documents cited in the Johnston Report sworn January 7, 2009,the Holmes Report, the Johnston Response and this Supplemental Report.

3. At paragraph 13 of the Johnston Response, she cites page 1 of the Holmes Reportas being my opinion that the lands were surrendered by 1850. A close reading ofthe Introduction on page 1 of the Holmes Report shows that it was the 1850 ElginProclamation and 1858 Report of the Commissioner appointed to investigateIndian Affairs that indicated that the subject lands had been surrendered leavingonly the described lands as being reserved for the exclusive occupation of the SixNations.

4. In the Holmes Report, I stated at paragraph 19 that, in my opinion, the SixNations Chiefs in Council had expressed their intention to reserve particular landsfor their exclusive use and surrender the remainder for sale. Lands described forsale included the Martin and Johnson Settlements, the Oxbow tract, and theEagle's Nest tract, with the exception of a 200-acre block variously described asbeing in the vicinity of the Mohawk mission or school.

5. Whether or not a valid surrender was made is a matter for the court to decide. Thearchival documents provide pertinent information for making such adetermination. I am aware of Council Minutes of December 1844 and Six NationsPetitions of August 1845 and February 1846, which, in my opinion, are pertinentto such a determination. Each is reviewed below.

Holmes Supplemental Report

Introduction1. This Supplemental Report is my response to Professor Johnston's "Response to

Joan Holmes 1 February 2, 2009

003Holmes Supplemental Report

Minutes of Council 13 and 18 December 18446. The record of the General Council Meeting held on December 13 and 18, 1844 is

cited in the Holmes Report at paragraphs 5 and 6; a manuscript copy and atranscript appear at Tab 4 of the Holmes Report. On 18 December 1844 theChiefs gave their consent to sell the lands known as the Oxbow, Eagle's Nest,Martin and Johnson settlements, reserving a 200-acre block at or near theMohawk school.

i) The minutes show that the Council meeting of 13 December 1844 was held atthe Onondaga Council House pursuant to a notice to convene, a roll was taken ofthe chiefs present, the Firekeeper opened the Council, and the interpretercommunicated the will of the Chiefs to hear Commissioner Thorburn'spropositions.' Following the presentation by Thorburn, the meeting wasadjourned to reconvene on 18 December. At that meeting a roll was taken of thechiefs present, the Council was opened by Chief Buck, and Chief Henry Brantwas appointed to deliver the answer of the Chiefs. 2 These minutes suggest that theCouncil was held in public council, according to protocol and in a solemn fashion.

ii) The archival document shows that Commissioner Thorbum had beenspecifically instructed by the Governor General to bring the land matter "underthe reconsideration of the Chiefs of the Six Nations of Indians in Council" andthat Thorbum was personally present at the Council meeting on both days. 3

Thorburn had received his instructions from Civil Secretary Higginson, whowrote on behalf of Governor General Metcalfe. The Governor General wasanxious that Thorburn arrive at a final agreement on the location and extent of thereservations for the Six Nations. 4 This indicates that the Governor's designate waspresent at the meeting and was properly instructed to seek a surrender of land.

iii) The minute stated that a public council was properly called as to time, placeand purpose, as follows:

The Nations present declare that due notice to their people was had of the time place andobject of their meeting in Council on the 13th last as well as of today and believe thistheir answer to the Commissioner is the wish of the Six Nations without a desent [sic]. 5

iv) The nature of the matter to be discussed was clearly outlined being:

David Thorbum, Commissioner, Report on meeting with Six Nations, December 13, 1844. LAC RG10 Vol. 144, p. 83277.

2

David Thorburn, Commissioner, Report on meeting with Six Nations, December 18, 1844. LAC RG10 Vol. 144, p. 83278.

3

David Thorbum, Commissioner, Report on meeting with Six Nations, December 13, 1844. LAC RG10 Vol. 144, p. 83269.

4

J. M. Higginson, Civil Secretary, to D. Thorbum, November 25, 1844. LAC RG 510 pp. 137-138.TAB A.

5

David Thorbum, Commissioner, Report on meeting with Six Nations, December 18, 1844. LAC RG10 Vol. 144, p. 83273.

Joan Holmes 2 February 2, 2009

004Holmes Supplemental Report

... the lands to be set apart as a territory for the future residence of them selves and theirpeople and the leasing or selling of such parts of their lands on the Grand River known asthe Oxbow, Eagles Nest, Martin and Johnson settlements. 6

v) The Council minute states that the proceedings were translated by theinterpreter "by paragraphs" and that on the final day their answers were takendown, and read by the interpreter before being assented to by the Chiefs. 7

vi)A plan of the lands proposed as the reservation in Tuscarora Township wasreferred to in Council. 8 This plan had been forwarded to Thorburn with theGovernor General's instructions. 9

vii)The Council meetings were held five days apart and the minutes note that theChiefs had "duly and maturely considered" on the issues. 1°

viii) The record of the Council Meeting of December 13 and 18, 1844 was sentto the Civil Secretary on December 24, 1844. 11 The Civil Secretary laid beforethe Governor General the results of the conference 12 and informed Thorburn in aletter of 5 January 1845 of the Governor General's remarks, including hisapproval of the reservation of the 200-acre block and his approval of the Chiefs'agreement to sell the lands on the Grand River known as the Oxbow, Eagles Nest,Martin and Johnson settlements. The Governor General's remarks were wordedas follows:

His Excellency is glad to learn that the chiefs have agreed to sell instead of lease the[illegible word] lands in the Oxbow Eagles Nest, Martin and Johnsons settlement, feelingsatisfied for reasons before stated that selling will be more conducive to their Interest. 13

Thorburn was instructed to relay these remarks to the Six Nations along with theGovernor General's disagreement and concerns over some of their other landrequests. 14

6

David Thorburn, Commissioner, Report on meeting with Six Nations, December 13, 1844. LAC RG10 Vol. 144, p. 83269.

7

Minute of Council, December 13, 1844 and December 18, 1844. LAC RG 10 Vol. 144, pp. 83277 and83279.

8 David Thorburn, Commissioner, Report on meeting with Six Nations, December 13, 1844. LAC RG10 Vol. 144, p. 83270.

9

The instructions from Civil Secretary Higginson, November 25, 1844, stated that the plan of theproposed reserve in Tuscarora was enclosed. LAC RG 510 pp. 137-138. TAB A. That plan appears inthe Map Collection at Library and Archival Canada as NMC-0013105. TAB G

io David Thorburn, Commissioner, Report on meeting with Six Nations, December 13, 1844. LAC RG10 Vol. 144, p. 83271.

11 The docket comment transmitting the Minutes of the Council also transmitted records of a meeting ofsettlers. The docket cover appears in the Civil Secretary's records at LAC RG 10 Vol. 144 p. 83265.TAB B. The following pages 83266 to 83268 are the resolutions of the settlers meeting, followed bypp. 83269 to 83279, being the 13 and 18 December 1844 minutes.

12

J. M. Higginson, the Civil Secretary, was also the private secretary of Governor General Metcalfe.13

J. M. Higginson, Civil Secretary, to D. Thorbum, January 5, 1845. LAC RG 510 p. 182. TAB C.14

J. M. Higginson, Civil Secretary, to D. Thorbum, January 5, 1845. LAC RG 510 pp. 180-183. TAB C.

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005Holmes Supplemental Report

ix) Under those instructions from the Governor General, Thorbum addressed theChiefs of the Six Nations at a Council meeting on 20 January 1845. That councilwas referenced in the Holmes Report at paragraph 7; a manuscript copy of thedocument and transcript were produced at Tab 6 of the Holmes Report. 15 Either41 or 51 chiefs were present at this meeting. 16 The Chiefs asked Thorburn toshow them the written response from the Governor General and Thorburncomplied. 17 According to the records of the January 20 1845 Council meeting theCommissioner relayed the Governor General's view on their decision to sell thesubject lands as follows,

The Commissioner has much satisfaction to Report to the Chiefs that His Excellency[was glad] to learn that they had abandoned the idea of Leasing those portions of theirlands known as Oxbow Eagle's Nest Martin and Johnsons Settlements as he is satisfiedthat selling will be more conducive to their Interest. I8

The Council adjourned and met again on January 31 when they gave their replyto the Governor General. Forty-six chiefs were present at that meeting. Whilethey discussed other land matters, there was no revisiting of the decision to sellthe Oxbow, Eagle's Nest, Martin and Johnsons Settlements.'

x) I am not aware of any Order in Council or deed of conveyance that wasexecuted at this time regarding the consent of the Chiefs to have the subject landssold. The documents outlined above (viii and ix) show, however, that the decisionof the Chiefs was laid before the Governor General, that the Governor Generalconsidered their decision and expressed his approbation, and that he instructedCommissioner Thorburn to inform the Chiefs of his approval of their decision. Asinstructed, Commissioner Thorburn passed on the Governor General's approvalof their decision to sell the Oxbow, Eagle's Nest, Martin and JohnsonsSettlements and agreed to reserve the 200-acre tract. Other land issues remainedto be resolved.

15

David Thorburn, Minutes of Council, Indian Council House, January 20, 1845. LAC RG 10 Vol. 145 p.83803.

16

The total is indicated as 51 in the minutes, however if the numbers are added up the total comes to 41.Either there is an error in the addition in the council minutes; or one of the numbers is not fully legible(e.g. looks like 8 on the manuscript but should be 18).

17 David Thorburn, Minutes of Council, Indian Council House, January 20, 1845. LAC RG 10 Vol. 145 p.83804. The letter in question was certainly the letter from Higginson to Thorbum dated January 5,1844. TAB C.

18 David Thorburn, Minutes of Council, Indian Council House, January 20, 1845. LAC RG 10 Vol. 145 p.83803.

19 David Thorbum, Minutes of Council, Indian Council House, January 31, 1845. LAC RG 10 Vol. 145 p.83811-83815. TAB D.

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Six Nations' Petitions that refer to the December 1844 decision to sell7. Two petitions sent from the Six Nations Chiefs regarding land issues and related

matters, state that they had surrendered for sale the lands at Oxbow, Eagle's Nest,and Martin and Johnson Settlements. These two petitions were sent within 14months of the December 1844 Council meeting.

i) A petition dated 2 August 1845 was presented in person to Governor GeneralMetcalfe by Chief Henry Brant and Chief Peter Fishcarrier. The petition openswith the following paragraph:

That in order to have the sanction of Her Majesty's government to the reservation of theportion of their lands situated on the South side of the Grand River between the plankroad at Caledonia and Burtch's landing and also about 1600 acres of land on the Northside of the River contiguous to the Indian Church at the Village of Tuscarora for theexclusive occupation of the Six Nations Indians; and to facilitate the immediate removalof the white people from these reservations, Your Excellency's memorialists havesurrendered for sale, since the appointment of David Thorbum Esquire asCommissioner2° all their lands below the plank road on the South side of the River, theMartin's settlement, the Ox bow [sic], the Eagle's Nest and Johnson settlement on thenorth side of the River. 2I

Sixty-four chiefs signed this petition. 22

ii) In a petition dated 18 February 1846 addressed to the new Governor GeneralCharles Murray, Earl of Cathcart, the Six Nations Chiefs again stated that theyhad surrendered the subject lands. This petition is cited in the Holmes Report atparagraph 11; a manuscript copy and a transcript appear at Tab 9. The February1846 petition first made reference to the Order in Council of October 1843 andthen related that since that time,

... Your Excellency's Petitioners were induced to surrender for sale all their land on theSouth side of the Grand River situated between the Bridge at the village of Caledonia andthe Townships of Dunn; and also tracts of their land of considerable extent in Martin'ssettlement, the Ox-bow, the Eagles' nest and Johnson's Settlement. 23

Fifty chiefs signed the petition. 24

20

David Thorburn was appointed in September 1844.21

Chiefs of the Six Nations Indians to Governor General Charles Theophilus Metcalfe, August 2, 1845.LAC RG 10 Vol. 121 pp. 5552-5558. TAB E.

22 Chiefs Brant and Fishcarrier presented the petition to the Governor General but did not sign thepetition. TAB E.

23

Chiefs of Six Nations Indians in General council to Governor General Charles Murray Earl of Cathcart,February 18, 1846. LC RG 10 Vol. 122 p. 5761.

24

Chiefs of Six Nations Indians in General council to Governor General Charles Murray Earl of Cathcart,February 18, 1846. LC RG 10 Vol. 122 pp. 5761-5768.

Joan Holmes 5 February 2, 2009

Holmes Supplemental Report 007

Signatories to Documents8. The Johnston Response considers, and draws certain conclusion as a result of, the

signatures on several archival documents at paragraphs 16 to 21. Several pointsraised require clarification and comments as follows:

i) The correct date of the petition referenced at paragraph 17 (c) of the JohnstonResponse is 18 February 1846. As noted on my transcript at Tab 9 of the HolmesReport, the July 1846 date is marginalia; the petition's date is recorded on the lastpage of the document (page 5768). This petition is discussed in the HolmesReport at paragraph 11.

ii) The documents referenced at paragraph 18 (a) to (e) of the Johnston Responsewhich are minutes of Council meetings of 13 December 1844, 20 January 1845,17 September 1845, 7 March 1848 and 23 March 1848 contain no signatures.Council meeting minutes in this period appear to have a uniform pattern. Aninitial meeting or series of meetings are held at which the Commissioner putsforward proposals for the Chiefs to consider. The meeting is adjourned untilanother day at which time the Chiefs give their replies and decisions are recorded.The records of the initial meetings do not contain signatures; the Chiefs sign theminutes of the final meetings only. The above cited documents are all initialmeetings for which final meetings, containing signatures are present, as follows:

Initial Meeting13 December 184420 January 184517 September 18457 March & 23 March 1848

Final Meeting18 December 1844 (45 signatures)31 January 1845 (44 signatures)18 September 1845 (10 signatures 25)27 March 1848 (2 signatures 26)

9. I have prepared a chart comparing the signatories on seven archival documentsdating from January 1841 to February 1846. All of these documents, with theexception of the 8 April 1845 meeting, 27 specifically refer to the subject landsbeing the Oxbow Tract, the Eagle's Nest Tract, and the Martin and JohnsonSettlements. Three of the seven documents predate the 13 and 18 December 1844Council meetings at which the Chiefs express their consent to sell the subjectlands; three documents post date the Council meetings of 13 and 18 December1844. Three of the documents are Council minutes (October 1844, December

25

The minute of council indicated that "It was Resolved that the proceedings of this council be signed forand on behalf of the Six Nations by the Speaker and one chief of each Tribe now present. PeterFishcarrier signed as the speaker. The tribes represented were: Upper Mohawks, Lower Mohawks,Cayugas, Oneides, Onondagas, Tuscaroras, Seneca, Delaware, and Nanticokes. The Tutaly were notedas not being present. TAB F.

26 Speakers John S. Johnson and Peter Fish Carrier.27 This document is discussed in paragraph 8' of the Holmes Report and appears at Tab 7. At this meeting

the Chiefs discussed the surrender of other lands and the description of the lands to be reserved. Thesubject lands were not within the portion to be reserved and were not specifically referred to in themeeting.

Joan Holmes 6 February 2, 2009

008Holmes Supplemental Report

L

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1844 and April 1845); three are petitions (1843, 1845 and 1846). The chart isappended to this report. 28

i) The 1843 petition is the document that contains the largest number of signatures(144). The August 1845 petition contains 64 signatures (the two Chiefs thatpresented the petition to the Governor General did not sign; arguably raising thenumber to 66). The February 1846 petition has 50 signatures.

ii) Of the 144 signatures on the 1843 petition, 87 signatories do not appear on anyof the other documents, suggesting that these are individuals who did notregularly take part in Council meetings or sign petitions; some were most likelynot chiefs. The Council meeting minute dated 20 January 1845 states that therewere 88 chiefs of the Six Nations. 29 The population in this period was said to be2223; 3° suggesting that each chief represented, on average, about 25 people.

iii) A comparison of the names on the chart shows that 39 men signed three ormore of the seven documents examined, suggesting they maintained a consistentlevel of participation in public affairs. These names are highlighted on theappended chart.

iv) Of the 45 chiefs who signed the December 1844 Council meeting minutes; 22of them had also signed the 1843 petition. This indicates that these Chiefs hadchanged their position.

v) Of the 64 individuals who signed the August 1845 petition, 14 (plus ChiefsBrant and Fishcarrier who presented the petition) had also signed the December1844 Council minutes. This suggests that 50 individuals-who did not sign inDecember 1844 had become aware of the 1844 proceedings and that the subjectlands had been surrendered for sale. Of the 64 individuals signing the August1845 petition, 19 had not signed any of the other petitions or Council minutesnoted on this chart.

vi) Of the 50 individuals who signed the February 1846 petition, 22 had alsosigned the December 1844 Council minutes. This suggests that 28 individualswho did not sign in December 1844 had become aware of the 1844 proceedingsand that the subject lands had been surrendered for sale. Of the 50 individuals

28

The chart may over represent the number of different individuals because names on documents aresometimes difficult to discern and as a result names may be recorded as different people when they arein fact alternate spellings of a name that appeared on another document.

29

That council was referenced in the Holmes Report at paragraph 7; a manuscript copy of the documentand transcript were produced at Tab 6.

30

Report of the Affairs of the Indians in Canada laid Before the Legislative Assembly 20 March 1845.Province of Canada. Journal of the Legislative Assembly. Sessional Papers, 1844-45, Appendix EEE.[unpaginated] A decade later there were said to be 2550 individuals belonging to the Six Nations onthe Grand River. Report of the Special Commissioners Appointed on the 8th of September, 1856, toInvestigate Indian Affairs in Canada. Toronto: Stewart Derbishire & George Desbarats, 1858.[unpaginated]

1

U

Joan Holmes 7 February 2, 2009

r -

009Holmes Supplemental Report

signing the February 1846, petition 12 had not signed any of the other petitions orCouncil minutes noted on this chart

vii) The three Council minutes shown on the chart contain, on average, 41signatures (October 1844: 39; December 1844: 45; April 1845: 41), suggestingthat about half of the chiefs regularly attended Council meetings and ascribedtheir names to the proceedings. A complete review of all Council meetingminutes in the subject period (circa 1841 to 1848) would be required to make adefinitive statement as to the usual attendance at meetings.

Conclusion10. After reviewing the Johnston Response and the additional archival documents

referred to and appended to this Supplemental Report, I maintain my opinion thatthe historical documents cited above dating from the 1840s indicate that the SixNations Chiefs in Council expressed their intention to reserve particular lands fortheir exclusive use and surrendered the remainder for sale. As indicated in thereport on the Council of 18 December 1844 and reiterated in the_petitions of 2August 1845 and 18 February 1846, they agreed to surrender for sale the lands inthe Martin and Johnson Sett ements, the Oxbow tract, and the Eagle's Nest tract,with the exception of a 200-acre block variously described as being in the vicinityof the Mohawk mission or school.

Joan Holmes 8 February 2, 2009

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