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Land title is all usufruct up

It has been argued that the British Crown only gave Joseph Brant’s Mohawks and such others, “usufruct rights” to land named under the Haldimand Deed – meaning that they did not give them the land in “Fee Simple,” which is how the Crown gave land to its own subjects. They say, the right to use the soil was all that Joseph Brant got.

It has been argued that the British Crown only gave Joseph Brant’s Mohawks and such others, “usufruct rights” to land named under the Haldimand Deed – meaning that they did not give them the land in “Fee Simple,” which is how the Crown gave land to its own subjects. They say, the right to use the soil was all that Joseph Brant got.

“Usufruct” is an odd sounding piece of legalese derived from the Latin words “usus (use) and “fructus” meaning “fruits,” or in other words, the right of “use” to the “fruits” of the land.

Unlike an owner, the “usufructory” does not have a right to sell off the land. But he could sell or lease his usufructory interest in whole or in part.

We see this principle in operation in a late 1700’s document relative to the Burtch lands when David Burtch explained in a sub-lease agreement that he could not sell any part of his land to a certain Mr. Ellis, because Joseph Brant had leased it to him for 999 years, but he could sub-lease it to him, which he did.

In terms specific to the Haldimand purchase from the Mississaugas and the Haldmand Proclamation to the Mohawks and such others, the word means the land is owned in common by the tribe, but families and individuals have the right to use a certain plot of that land.

As most have heard, the land given to Brant under the Haldimand Proclamation was purchased from the Mississaugas to be handed over to Brant and those who followed him to this part of Ontario.

But, a short paragraph found within a series of letters written between Deputy Surveyor, John Collins and high-ranking politician Henry Hamilton, may put a slightly different slant on the issue.

Within a file housed in the Canadian Archives in Ottawa, is a handwritten document dated five months before the date registered upon the Haldimand Proclamation. The document reads: “Niagara, May, 22nd1784. Meeting held at Niagara with Mississaugas Indians accompanied by the Chief of the Warriors of the Six Nations, Delewares. Re(garding) Agreement by the Mississaugas to sell such land as belonged to them between Lakes Ontario, Huron, and Erie, which they were asked to dispose of, they say, ‘We the Mississaugas are not the owners of all the land lying between the three lakes but we have agreed and are willing to transfer our right of soil and property to the King our Father for the use of His People and our brethren of the Six Nations from the head of Lake Ontario or the Creek Waghguata to the River LaTranche then down the river until a South Course will strike the mouth of Catfish Creek on Lake Erie.’ With this, Butler declared himself Satisfied.”

If in fact the Mississaugas only sold “their right of soil and property” to the King, to be given to the Mohawks and such others, then what the Crown purchased from the Mississaugas was their usufructory rights only, and not the title to the land, which they acknowledged as not being theirs to sell.

What’s more, Colonel Butler who was given the responsibility of helping settle Brant and his followers after the American War of Independence, declared himself “satisfied” with that arrangement.

Does that mean that the land in question was not deemed to be “owned” by the Mississaugas? If that is the case, was it because of their belief that no one or no group of people can own land any more than they can own their mother?

Or does that mean they recognized the original occupation of that land was held by the Iroquois and the Mississaugas were only living on it because of an agreement between the Mississaugas and the Iroquois? The Dish with One Spoon maybe?

Either way, if the Crown saw it as somehow necessary to secure land deemed to be held by the Mississaugas, but not owned by them, does it follow that the land under the Haldimand Tract was, in essence, returned through the Mohawks and such others of the Six Nations of the Grand River Territory? Is that why the Crown could only give Brant what it owned, as they say, which is the usufructory right, or use of soil?

And if that is the case, the Crown still does not own the Haldimand Tract, except by assumption.

We invite our readers to weigh in on this complex matter on our website at www.tworowtimes.com. What have you been told, and what do you think? We will print responses in our next issue.

 

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Jim Windle

Jim Windle

Jim Windle is a veteran news and sports reporter who has been published in a number of mediums and publications. contact Jim: windlejim@rocketmail.com

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26 Comments

  • Garry Horsnell
    January 26, 2014, 8:30 am

    Continued from above

    As I mentioned earlier, after the American Revolution ended in 1783, Quebec Governor Haldimand arranged to buy a huge tract of land in southwestern Ontario, including land along the Grand River, from the Ojibwa Mississauga Indians and they sold and ceded that land to the British Crown on May 22, 1784 so that land became the Crown’s land.

    Source: Indian Treaties and Surrenders, 1891 (reprinted 1996) Queens Printer, Volume 1, item number 3, page 5

    About 6 months later on October 25, 1784, Governor Haldimand made an announcement inviting Mohawks and others of the Six Nations to enter, occupy and use the Crown’s land along the Grand River.

    That October 25, 1784 announcement was not a proclamation, a treaty or a deed to land along the Grand River.

    In his own handwriting on that Haldimand announcement, Haldimand said “Given under my hand and seal at arms, at the Castle of St Lewis at Quebec, this twenty-fifth day of October one thousand seven hundred and eighty-four”. Haldimand did not apply the Great Seal of the Province of Quebec to that document so Haldimand’s document was not a treaty and not a patent or a deed and Crown courts have so.

    In fact, in the 1835 Jackson v. Wilkes court case, a King’s Bench justice said “We have ascertained that there was a great seal in use in the Province of Quebec in 1784, when the instrument of General Haldimand bears date; that grants of land, of which few were made by the British Government before the year 1795, were made by letters patent under the great seal, and that it has been uniformly held in the courts of Lower Canada that grants of the waste lands of the Crown could not be made in any other manner”. The justice also said the 1784 Haldimand instrument was no more than a “mere license of occupation”.

    Source” Jackson v. Wilkes, 1835; Upper Canada King’s Bench, (O.S. 142).

    In 1793, Governor Simcoe offered the Six Nations of the Grand River a letter patent, a deed, to land along the Grand River with the condition the Six Nation could only dispose of any of that land to the Crown. For Governor Simcoe to have offered that patent (deed) for land along the Grand River, that land must have been the Crown’s land at that time supporting the contention that Haldimand’s announcement (document) was simply a license of occupation.

    Joseph Brant and the Six Nations chiefs, however, did not like the conditions in the Simcoe Patent and would not accepted it so the land remained the Crown’s land for the exclusive use of Six Nations people.

    In addition, in the Isaac et al v. Davey et al court case, which was upheld in the Supreme Court of Canada, it was made quite clear who owns the Haldimand tract when the judge said “Since I have concluded that the tract in question is vested in the Crown.”

    Source: Isaac et al v. Davey et al, Ontario Court of Appeal, 1974.

    Furthermore, Section 99 of the 2009 Amicus Report on behalf of the Six Nations to justice Arrell in the Brantford injunction case says “Canadian courts have held that the Haldimand Proclamation and the Simcoe Patent essentially conferred upon the Six Nations personal and usufructuary rights and not a conveyance of land in the English sense”.

    Source: Amicus Report, 2009; to Justice Harrison Arrell, Brantford injunction case, Ontario, Section 99, page 39.

    So, Six Nations people were given exclusive use of, in other words usufructuary rights to, the Crown’s land along the Grand River but did not get or accept ownership of that land and Crown courts have said so.

    And, when the land remained the Crown’s land, Six Nations people should not be able to claim land that belonged to the Crown.

    REPLY
    • Cory Grant@Garry Horsnell
      January 27, 2014, 8:12 am

      Nope. More bunk.

      REPLY
      • Garry Horsnell@Cory Grant
        January 27, 2014, 12:35 pm

        So you think the Crown courts are wrong. Prove it with history and references that apply to the Six Nations of the Grand River.

        REPLY
  • Garry Horsnell
    January 25, 2014, 7:29 am

    Here is some history to think about.

    For centuries the Mohawk, Oneida, Onondaga, Cayuga and Seneca Iroquois (Haudenosaunee) Indians lived in the Mohawk Valley and Finger Lakes region of what is now upper New York State U.S.A. Some Seneca and Cayuga made settlements along the north shore of Lake Ontario. The Tuscarora Indians from North Carolina joined the Five Nations Iroquois in New York sometime between 1712 and 1722.

    During the 1650s, the Five (later Six) Nations Iroquois conquered Indian bands all the way west to what is now Chicago, Illinois and also entered what is now southwestern Ontario to kill, conquer and displace the Huron Indians, essentially annihilate the Neutral and the Petun Indians and take over the land.

    In the mid-1690s, the Ojibwa Mississauga and other Ojibwa Indians moved south and pushed the invading Five Nations Iroquois out of southern Ontario and back to their homeland in New York where they made an agreement in Onondaga New York. That history is outlined in a 2003 Indian Claims Commission report about the Mississauga of the New Credit, which says “The offer of peace was accepted in June 1700, and as a result, the Mississaugas secured their control of the territory between Lake Huron and Lake Ontario”.

    Source: Indian Claims Commission, 2003. Mississaugas of the New Credit, First Nation Inquiry, Toronto Purchase Claim, page 9.

    Ojibwa chief William Yellowhead kept a wampum belt about that agreement. He would bring out that belt whenever he had occasion to remind the Six Nations Iroquois of their June 1700 cession of southern Ontario to the Ojibwa.

    Source: Ontario Archeological Society Arch Notes, April/March 2011, Volume 16, Issue 2, page 13. (Also cited on the internet in histories of Simcoe County and Innisfil Township)

    Years later, in 1784 after the American Revolution, Quebec Governor Haldimand arranged to buy land in southwestern Ontario from the Mississauga Indians so he could provide some land to British loyalists and to Six Nations Iroquois people. The Mississauga Indians agreed and they sold and ceded land to the Crown at a meeting at Fort Niagara on May 22, 1784.

    Source: Indian Treaties and Surrenders, 1891 (reprinted 1996) Queens Printer, Volume 1, item number 3, page

    Crown representatives, Mohawk leader Joseph Brant, Six Nations Indian chiefs, Delaware Indian chiefs and Mississauga Indian chiefs were all at the meeting and they all agreed with the sale of that land to the Crown so that land, including the land along the Grand River, would become the Crown’s land on May 22, 1784. If that land had been Six Nations land or land the Six Nations shared with the Ojibwa, why did they need to get the British Crown involved? Why didn’t Joseph Brant and the Six Nations Iroquois chiefs simply make a deal directly with the Ojibwa Mississauga Indians?

    Continued below

    REPLY
  • Garry Horsnell
    January 25, 2014, 7:27 am

    Continued from above.

    Mr. Windle mentions that, during the meeting on May 22, 1784, Mississauga chief Pokquan said “We the Mississaugas are not the owners of all the land lying between the three lakes but we have agreed and are willing to transfer our right of soil and property to the King our Father” as if to suggest the Six Nations Iroquois had some claim to the land.

    That is not what chief Pokquan meant.

    In a history of Burford, it says the following.

    “On the 23 of March 1784, Sir John Johnson was directed to purchase from the Mississaugas the whole territory lying between the lakes Huron and Ontario. On May 22nd a meeting of the Mississaugas and the chiefs and warriors of the Six Nations and Delawares was held at Niagara, when chief Pokquan, a Mississauga, informed the assembly that his nation did not own all the land between the Three lakes as that part lying south of the river La Tranche (Thames) and west of Cat Fish Creek, which included all that territory within what is now the township of Sandwich of the west, and Yarmouth on the east, belonged to the Western Tribes the remainder, however, which consisted of some 2, 842,480 acres the Mississaugas were willing to dispose of and for the sum of eleven hundred and eighty pounds, seven shillings, and fourpence, they surrendered all their right and title to this vast tract of country”.

    Source: Muir, Major R, Cuthbertson, 1913: The Early Political and Military History of Burford, History of Burford, La Cie D’Imprimiere Commercial Quebec, Page 7

    That is also mentioned in a history of Niagara.

    Source: Cruikshank, Lt-Colonel E., 1908: Ten Years of the Colony of Niagara 1780 to 1790, Niagara Historical Society Publication No. 17, Tribune Print, Welland.

    So Mississauga chief Pokquan wasn’t saying the land the Ojibwa Mississauga Indians were willing to surrender wasn’t Mississauga Indian land. Pokquan was saying he couldn’t sell land that belonged to the Western Tribes or the far Indians, as they were sometimes called, that included other Ojibwa bands.

    Basically, Pokquan was saying he couldn’t surrender land that belonged to other Indian bands but he was willing to give up the right of the soil and property and surrender and sell some of the territory that belonged to Pokquan’s band of Mississauga Indians.

    And, if Five (later Six) Nations Iroquois didn’t give the land in southern Ontario to the Mississauga and other Ojibwa (Chippewa) Indians in June 1700 and the land in southern didn’t belong to the Mississauga and other Ojibwa (Chippewa) Indians, why did the Crown make agreements to buy land from the Mississauga and other Ojibwa (Chippewa) Indians, make the Huron Tract Treaty to buy land from the Ojibwa (Chippewa) Indians near Sarnia in 1827, make the Williams Treaties to get land from the Mississauga and other Ojibwa (Chippewa) Indians in 1923 and give the Mississauga of the New Credit $145 million recently to settle their claims about land in Toronto and Burlington?

    REPLY
    • Cory Grant@Garry Horsnell
      January 27, 2014, 8:14 am

      Ya right! Now you know what Chief Pokquan is thinking.

      Colonial history has a habit of lying and creating myth. This is no different.

      REPLY
      • Garry Horsnell@Cory Grant
        January 27, 2014, 10:31 am

        As I asked, if the land in southern Ontario belonged to the Six Nations Iroquois or if they were sharing the land with the Mississauga and other Ojibwa, why didn’t they tell the Crown this is not our land you should negotiate with the Six Nations Iroquois or at least include them in negotiations to transfer land to Crown?

        REPLY
  • lug1927
    January 24, 2014, 11:55 am

    The problem appears to be memories of convenience. The 2003 Indian Land Commission found that the Five Nations were driven out of “Ontario” in 1696, and in June 1700, the Five Nations gave a two Row Wampum belt to the the Ojibwa et al ,abandoning the lands north of Lakes Erie and Ontario to them, and confirming that only the Ojibwa et al could hunt there and that the Five Nations could only come to smoke the pipe of peace. In a report to the Ipperwash Inquiry Commission, Dr. Darlene Johnston produce documentary evidence of the 1700 Two Row Wampum and a recorded meeting in 1840 of the Ojibwa and the Grand River Iriquois of that Wampum and agreement to what it read. Haldimand had get permission from the Mississauga during the Niagara Purchase in 1784 for Brant and the refugees of the Six Nations, fleeing the American Revolutionary War,, to cross the Niagara River into “Ontario”.
    Show me in Canadian/English/British records what lands were ceded in “Ontario” by the Five/Six Nations. Temporary hostile possession of land does not give you ownership. Ask the Germans, Russians, Chinese, Japanese and Attila the Hun.. The Five Nations requested in 1684,granted in 1678, to be subjects of the English King. Granted. The claim that the Five/Nations are a “sovereign nation” is shattered by the numerous grovelling to “our glorious king…etc.”. Be proud of heritage , always ask for hard evidence. By the way, any Proclamation can be superceded by one of to-day. The Proclamation of 1763, reflected the condition that day, but the lands that were ceded under its guide lines, post 1763 by agreement, are no longer covered by it.

    REPLY
    • Cory Grant@lug1927
      January 27, 2014, 8:10 am

      Incorrect.

      Ontario south of the Ottawa River to Nippissing is still Six Naitons Territory.

      The Supreme Court of Canada has held that Aboriginal title is a claim that existed before the Royal Proclamation 1763 and continued to exist after the Royal Proclamation 1763.

      The MItchell Map 1757 identifies Ontario as Six Nations Territory having had possession for over 100 years.

      The Jeffreys Map 1776 shows Ontario was still recognized by the Crown as Six Nations Territory.

      Nanfan 1701 at best only surrendered a strip of land from Detroit to Hamilton.

      Six Nations entered into the 1 Spoon 1 Bowl treaty with the Mississauga in 1656. The crux of the treaty was an invition by Six Naitons to the Mississauga to come to Southern Ontario to hunt and share the resources. This was a strategic quasi military move design to help keep the remaining Wendat (whom had fled to Michigan) from harrassing Haudeonsaunee hunters and trappers.

      A meeting at Burlington brokered by Six Nations Chiefs between the British and the Mississauga was held to seek compensation for the Mississauga who had settled in Six Nations Territory to return to the North Shore of Superior. The Mississauga could not have sold the land as it was not in their possession. A fact that the Crown explicitly acknowledged in all period maps.

      The Haldimand Proclamation, like the Royal Proclamation was not a sale, gift or declaration of rights. It was a law directed at settlers to prohibit them under the penalty of treason to use occupy, purchase, harrass, or trespass on Six Nations Territory 6 miles on either side of the Grand River. This part of Ontario as well as the North Shores of Lake Erie, Lake Ontario and the St. Lawrenace were and have been in the continuous possession of Six Nations for over 1300 years (that we know of todate).

      REPLY
      • lug1927@Cory Grant
        January 27, 2014, 11:59 am

        Maps only reflect the accuracy of the cartographer. The Clowec map associated with the “Nanfan Treaty” is one that my great grandson could draw. The map I quoted of 1720, by a general accepted Iroquois/Six Nations historians, shows all the population of those tribes south of the Lakes Erie and Ontario. If you read the 250 year old reports,(the time era of your map cites) of tribal occupied lands of the area, I wonder where your information comes from.” The Edge of the Woods” by Jon Parmenter, which is a detailed as I have ever seen, should be read by those who want a fair record of history. It is in synch with Ely Parker/Lewis Morgan’s “League of the Iroquois” 1851. Produce the evidence of your claims.
        Take the “Nanfan Treaty”. The court boobed on that, I have copies of both side of the document that is in the National Archives,in England. The colonists never signed it as the Judge said. The Haldimand Proclamation never had the Royal seal on it unti over 25 years later. The Courts have declared that the Simcoe documents are the binding documents. Take your six miles of the Grand River. That was changed in 1791 at the First Land Board with the totems of Brant and Six Nations Chiefs to six miles from a median line drawn from where the Rive jigs to Brantford.
        You maintain then that the 2003 Indian Land Claims Commission and the 2006 Ipperwash Committee of Inquiry are wrong, where is your proof. Document your stance. In 1678, at the Five Nations’ request, King William III accepted them as his subjects. Show me and the rest of the world when the Five/Six Nation stopped addressing the British Crown as a subject like I would.Have not current pleas been made to”The Great Mother” or such ?. Produce proof, not memories or brags.Show the world where the well documented history that would not stand up in our Courts. Where is your hard proof ? Let us have a “map” derby where you show me your evidence, and I show you mine. I challenged Paul Williams on the same basis-no reply . He was quoted in a 2011 newspaper article re land of the Treaty of Niagara 1764 could be recovered but that ignored the land of the “Nanfan Treaty” and the Treaty of Niagara of 1781.Why did the Mississauga had to give permission for the Six nations refugees to enter Niagara.Just because the Iroquoian dialect was spoken does not make land your territory. Try Canada, USA and Great Britain- all one language.Wake up ! You think “Stone Age”. I live in the “Electronic Age”.

        REPLY
  • Cory Grant
    January 22, 2014, 1:46 pm

    That is correct. The Mississauga never owned the territory. They were invited down in 1656 to share the land with the Haudenosaunee. It was Six Nations Haudenosaunee that owned the territory, the bounds of which are identified on the MItchell Map 1757, and the Jeffreys Map 1776.
    Contrary to popular settler myth, the Haudenosaunee were not “given” the land. It was theirs at the time of the both the Royal Proclamation 1763 and the Haldimand Proclamation 1784. In fact the entire north shores of Lakes Erie and Ontario and the St. Lawrence River has been Haudenosaunee Territory for more than a 1300 years. The setters are the newomers, not the Mohawks.

    REPLY
    • N8VSON@Cory Grant
      January 22, 2014, 7:30 pm

      I just have to disagree with the use of the word “OWN.” This, as concerns our traditional view that we “Held” land in trust for the faces yet to come. I think, in that context, we must cease using that word when we discuss historical issues. Peace.

      REPLY
      • Cory Grant@N8VSON
        January 23, 2014, 8:12 am

        Its always important to use settler language when discussing settler violations and myths.

        REPLY
        • N8VSON@Cory Grant
          January 23, 2014, 11:50 am

          I recognize the point you make Corey. Where Native issues and history is concerned amongst semi-literate settlers, they claim to know our history and use it against us when in discussion forums which I am constantly on defending our people. For us to use the word “own,” is an excuse they jump on to say “see? We told you so.”

          REPLY
        • Cory Grant@N8VSON
          January 24, 2014, 8:08 am

          As you can see from the article, the only other term settlers recognize is “usfructary interest”. They have tried to make that to mean Haudenosaunee only have a use of the land without any claim. On the other hand the Supreme Court has ruled that Aboriginal land title (which Haudenosaunee hold over Ontario) is a “sui generis” title – something that cannot be explained under British common law. In any case the “title holder” is a determination of who gets say over what happens to the land.

          REPLY
        • lug1927@Cory Grant
          January 26, 2014, 11:25 am

          Peter A.Porter,Niagara area historian(1891) wrote in a “Short History of Old Fort Niagara” that the aboriginal concept of land ownership was a matter of “hunting lands”, not surveyed and deeded lands . His grandfather was deeply involved with Joseph Brant until Simcoe stopped Brant and Grandpa Porter from a less then honest deal with lands of the Grand River watershed.l. The Seneca, with the “Treaty of Fort Niagara 1764”, ceded the west bank of the Niagara River to the Crown. But, if you support the “Nanfan Treaty” position, that land had been ceded to the English Crown in 1701. In 1781, the Crown in the Treaty of Fort Niagara 1781 paid the Mississauga for the “four mile strip”. The 1763 Proclmation did not live forever, only until another Proclamation replaced it. Was Simcoe’s decree of lands bought from the Mississauga not done by a Proclamation ?

          REPLY
    • lug1927@Cory Grant
      January 24, 2014, 2:27 pm

      The best maps for the lands of the Haudenosanee are the ones in the “League of the Iroquois” by Lewis Henry Morgan(1851) page 465- Circa 1720. and “The Edge of the Woods” by Jon Parmenter(2010),pages xviii and xiv.. The latter is a study of the Haudensanee and the generally accepted true facts !. I have both the Mitchell and Jefferys maps, and many others and to claim that the Six Nations owned the land is without hard evidence.Strange that Five Nations gave in 1700 a two row wampum belt(verified) abandoning those lands to the Mississauga and the British bought the Grand River watershed and adjoining lands from the Mississauga- permission had to be given for Brant and the Six Nations to enter and live there. Brant came in 1784, my grt grt grt grandfather in 1781-who was there first ?Settler myth-baloney !

      REPLY
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