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.