3. The Haudenosaunee Relationship with British North America
The particular indigenous people involved in the League of Nations application had a long and complex involvement in North American colonial development. By the 1920s, the seat of government for the Canadian branch of the Haudenosaunee Confederacy was on a territory known as the ‘Six Nations Reserve’, near Brantford Ontario. The 20th century produced a vast literature struggling with elusive concepts related to the idea of ‘nationality’ and it was not until 1933 that international law established a positive legal definition for a ‘state’. Following Article 1 of the Montevideo Convention on the Rights and Duties of States, it is now considered that a ‘state’ must have a permanent population, a defined territory, a government and the capacity to enter into relations with other states. As a division of the British Empire, Canada’s international relations were handled by Britain when the League of Nations was founded and it did not meet these criteria. The Haudenosaunee Confederacy did. Their Grand River territory was one of the first parts of Upper Canada to be surveyed. Indeed, the history of the people on this ‘reserve’ is inextricably intertwined with the establishment of British North America. Their ancestors had been making treaties with European monarchies since 1643, becoming intensely involved in international relations during the colonial age. England, France and the United States all called the ‘Iroquois’ allies at times and Haudenosaunee ambassadors had visited the English court on several occasions. The eventual union of Britain’s American colonies after they revolted from subject status was suggested by indigenous diplomats long before it was achieved and the United States’ senate has acknowledged that its constitution is founded on that of the ‘Iroquois’ confederation of the Kanienkehaka (Mohawk), Oneida, Onondaga, Cayuga and Seneca nations.
Haudenosaunee attempts to remain neutral in the European conflicts that were carried to their soil during the colonial era met with limited success and they had a pattern of creating ties with both sides in any dispute. Following the American revolution of 1784, the part of the Haudenosaunee Confederacy that had allied with the British moved north with the Empire Loyalists. The League of Nations applicants were descendants of those accompanying the Mohawk war chief Thayendanegea. Known in English as ‘Joseph Brant’, Thayendanegea’s older sister, Konwatsi’tsiaienni or ‘Molly’, was the widow of Sir William Johnson, the first British Superintendent of Indian Affairs. The Haudenosaunee were a matrifocal society in which women could remove public representatives from office and decide whether or not to go to war. In their efforts to keep their ‘Indian allies’ on side, the British continued to seek Konwatsi’tsiaienni’s diplomatic support long after Johnson’s death. It was not until Europeans had established themselves as the majority in North America and the Anglo-American border was settled that the strategic importance of ‘Indian allies’ began to wane.
The territory occupied by the part of the Haudenosaunee Confederacy that led the application for membership in the League of Nations had been guaranteed to them by General Haldimand. It was seen as a replacement for the traditional homeland along the Mohawk River near Albany, New York that had been lost as a result of their British military alliance during the American Revolution. Originally designated as being six miles wide on either side of the Grand River from Lake Erie to its head, the ‘Six Nations’ territory cut through the heart of what was to become one of the richest parts of Canada, including the modern cities of Brantford, Waterloo and Kitchener. However, confusion over the legal status of this territory coupled with a laissez faire attitude towards squatters on the part of Upper Canadian officials led to the dissipation of most of the land during the 1800s under circumstances that can only be described as unjust. Despite these difficulties, the Six Nations people managed to maintain a functioning government. They adapted to the colonial environment, modifying their traditional institutions to manage all of the normal concerns of an agricultural community. At Six Nations, the Haudenosaunee Confederacy Council met regularly in their brick council house to look after a full range of community business, including tenders for road and school construction, dispute settlement and the welfare of orphans and the disabled. In the eyes of the Indian Department they were a model reserve under the authority of the Superintendent of Indian Affairs, though from their own perspective they were simply managing their own business independently as had always been their custom.
Despite either ignorance or willful blindness on the part of Canadian officials, the ‘Six Nations’ had not forgotten the history of their relationship with Britain. As previously mentioned, this had begun during the age when European diplomacy was conceived in terms of monarchies, not states. During the nineteenth century, colonial versions of history were compiled to defend the expansionist aspirations that prevailed in Anglo-American culture, but modern scholars are beginning to realize that Indigenous diplomacy was geared towards self-preservation rather than imperial expansion. Although they were constrained to serve as military allies to one side or another, the Haudenosaunee continued to define themselves on their own terms in the changing political environment created by European colonization. As far as they were concerned nothing had happened to abrogate the Two Row Wampum Treaty that set out their relationship with Britain. The two polities remained separate in a shared environment and changes in the internal organization of the British Empire such as the revolt of colonists to found the United States or the creation of the Dominion of Canada did nothing to impugn their own political integrity.
Whether the British fully understood and accepted the concepts represented by the Two Row Wampum or not, they traditionally allowed subjects to rule themselves according to their local laws and customs. Thus, despite repeated attempts by colonial administrators to claim Indigenous peoples as subjects, the two societies managed to co-exist. However, as one generation succeeded the next in colonial Canada, knowledge of founding concepts both in the field of British constitutionalism and of Indigenous diplomacy began to erode. After the American boundary was settled following the War of 1812 the British transferred Indian Affairs from military to civilian control and with the creation of the Dominion of Canada by the British North America Act 1867, responsibility for Indian Affairs passed to Canada’s federal government. After confederation, Canada passed a series of Acts on the advice of the Superintendent of Indian Affairs. These gradually increased his powers. At every step of the way, the Haudenosaunee, like other indigenous nations, objected and as recently as 1909 they had been able to rely on their unusual history to extract the assurance from Frank Oliver, then Minister of the Interior that:
‘It is the policy of the Canadian Government, as I understand it, to recognize its relations with the Six Nations Indians of the Grand River as being on a different footing from those with any of the other Indians of Canada. The Six Nations Indians of the Grand River came to Canada under special treaty as allies of Britain, and the policy of the Canadian government is to deal with them having that fact always in view.
The system of tribal government which prevailed among the Six Nations on their coming to Canada was satisfactory to the Government at that time, and so long as it is satisfactory to the Six Nations themselves so long it will remain satisfactory to the Government of Canada’.
- The Canadianisation of ‘Indian’ Policy
Despite the imposition of Canadian terms of reference on the situation, the traditional British approach allowed the Haudenosaunee to maintain some measure of autonomy under their own rules. However, the authoritarian nature of Indian Affairs’ administration intensified with the appointment of Duncan Campbell Scott as Deputy Superintendent in 1913. Erosion of respect for Haudenosaunee autonomy accelerated. Canada’s attempt to conscript Six Nations men during World War I was followed by legislation allowing redistribution of Six Nations land under the Soldiers’ Resettlement Act. Then in 1920, an amendment to the Indian Act proposed to allow the Superintendent of Indian Affairs to enfranchise ‘Indians’ without their consent. ‘Indians’ did not have the vote in Canada at that time and ‘enfranchisement’, as conceived by the proposed legislation, allowed the removal of the enfranchised person’s share of the land from their reserve, making it subject to Canadian laws. The majority of Indigenous people affected wanted to continue their old traditions and, at Grand River in particular, people did not want the vote because they did not believe that they were part of Canada. Even those who supported co-operation with Indian Affairs were afraid that these new measures would result in the loss of the small amount of territory that was left to them.
- The Haudenosaunee Defence
In order to defend their autonomy, the Haudenosaunee council hired London Ontario lawyer AG Chisholm to draft a petition asking for a reference to the Supreme Court of Canada. They claimed that actions taken by the Indian Department under the Indian Act were a violation of the Six Nations right to internal self-government and ultra vires Canada. They soon encountered a constitutional malfunction that seems to have been produced by the devolution of power from the monarch to the Dominion. Under the Supreme Court Act the case could not be heard without leave from the Governor in Council who was deemed to act on the advice of Canada’s Prime Minister, the notional representative of the Canadian people. In practice, however, the Prime Minister relied on recommendations from the Indian Department, which was effectively a party in this case. Duncan Campbell Scott was thus able to shield his policies from public scrutiny in court. Based on a judiciously worded memo advising that a Supreme Court reference would be of ‘no advantage’ to the Indian administration, the petition was rejected by an Order in Council orchestrated by Scott and declaring that the Six Nations were British subjects. Though this decision was ostensibly made by the Governor in Council on Scott’s advice, there is no evidence to suggest that any elected representative or Canadian official other than Scott turned his mind to the situation.
Following the failure of their petition and several other attempts to negotiate a solution to their problems, the Six Nations dismissed Chisholm and hired George Decker, a lawyer from Rochester, New York who was working on the Cayuga claim. They drafted a second petition to the Governor General of Canada reminding him of Britain’s traditional alliance with the Iroquois and asking for the protection of the British Crown from laws ‘manifestly designed to destroy our Government’. Petitions to previous Governors General had successfully defended their rights, but this time their pleadings were passed down once again to Duncan Campbell Scott — the author of the actions they were complaining about — without any independent consideration by anyone else. And so it was rejected again.
The Haudenosaunee had not made any agreements with Canada. Their treaties had all been made with Britain and so they decided to appoint representatives to carry their cause directly to the King in England. When Scott read about this in the Montreal Gazette, he asked the department of External Affairs to block their passports. The Six Nations circumvented this problem by issuing passports of their own and eventually Levi General, who held the Cayuga royaner (or chief)’s title of Deskaheh, travelled to London in the company of their lawyer, an American, George Decker. The English monarch had received Six Nations representatives, including Joseph Brant, on several occasions in the past, but when Deskaheh arrived in London, King George V was out of town. The petition Deskaheh presented, accompanied by a memo setting out the legal grounds for his peoples’ claims, was dismissed by the young Winston Churchill, then Secretary of State for the Colonies. Acting in support of the Dominion’s emerging autonomy, he claimed that the matter was ‘within the exclusive competence of the Canadian government’. Thus, once again, the complaint was referred down the line until it appeared on the desk of the man whose interpretation of the law was being questioned. Though he never held elected office, Duncan Campbell Scott never doubted his capacity to act on behalf of Canada. He did not even bother to write a reply, although he did institute measures aimed at strangling the Haudenosaunee economically so as to deprive them of the funds they needed to hire lawyers.
