The Nanfan Treaty and Mohawk Land Claims

Vincent J. Curtis

11 Dec 2017

For many years the Mohawk Indians of the Six Nations reserve have been claiming that the Nanfan treaty, signed in 1701, gives them the privilege of exemption from certain municipal and provincial laws in the Hamilton area.  The current Chief of the Six Nations Elected Council recently published a defense of that position.  In addition, she issued a veiled threat to the Mississauga Indians of the New Credit reserve that they are going to get from the Mohawks the same fate as meted out to the Huron Indians in 1648.

Below is an analysis and rebuttal of Ava Hill’s argument.

The article by Chief of Six Nations Elected Council Ava Hill was full of errors, of history and of reasoning, that lead to a frightening conclusion.  It is not just that Hamilton actually belongs to the Iroquois, but that the Mississaugas of the New Credit are going to get it in the neck.

Let’s begin with the faulty premises that lead to the conclusion.  Hill is quiet wrong when she says that the Nanfan treaty was (a) made with the British Crown, and (b) had placed Mohawk interest in the Hamilton area with the British Crown to protect those interests from the French.  Let’s unpack this nonsense.

No agreement could have been made with the British Crown in 1701 as the British Crown did not come into existence until 1707 with the Act of Union.   But disregarding that detail, if John Nanfan were going to negotiate a treaty on behalf of King William III of England, he would have been issued with a Letters Patent naming him as plenipotentiary of the King in respect of the treaty to be negotiated and signed.  Without a Letters Patent it is idle to claim that the so-called Nanfan Treaty was made with the King of England.  It is impossible to make the case that the King was party to the agreement.  It was an agreement merely between a local official of the colonists and the Iroquois.

Further proof that Mr. Nanfan was not acting as plenipotentiary on behalf of King William III is that the treaty, in seeming to dispose of rights within the territory of King Louis XIV of France, presumes sovereignty of the English authority over that land.  Such presumption would constitute an act of war by the English King upon the King of France.  I’m not sure William would permit a local yokel to commit England to a war with France over a trivial thing like Indian matters.  Indeed, that no war erupted with France over the agreement shows that the English King was not involved in the treaty, and the Most Christian King of France recognized that fact.

Hence, any claim that the Nanfan treaty lay between the Iroquois and the English or British Crown is proven false through the absence of a Letters Patent delegating plenipotentiary powers to acting Governor Nanfan.

The Nanfan Treaty was a local agreement made with the acting Governor of the Province of New York (as the New York colony then was), who aspired to authority over lands of New France into which the colony could expand and in which the future city of Hamilton lay.  It was an agreement of con artists, both laying claim on paper to the belongings of a third party - which neither signatory actually possessed!

The reason the Mohawks negotiated the surrender of their “sovereignty” with Nanfan was their hope of engaging the English on their side against the French, who were allied with the Iroquois’s native enemies.  The Iroquois were shrinking in numbers, and in 1700 the Onondagas (one of the five nations of the Iroquois as they then were) were thought to number merely 600 souls.  By dangling ownership of western New York and possibly southern Ontario as well before the English of New York, the Mohawks cynically sought powerful allies against the French and their native allies.

But the Mohawks engaged in double-dealing.  Ms. Hill neglected to mention the Great Peace of Montreal, also signed in 1701, between the Governor of New France and forty aboriginal nations, including the five Iroquois nations.  The Iroquois agreed to remain neutral in case of conflict between the French and the English, and all parties agreed to have the French arbitrate disputes between contracting tribal parties.  Previously, the French had made war upon the Iroquois in support of their Indian allies.  What the Great Peace of Montreal means is that the Iroquois had no unique sovereignty over the Hamilton area recognized by anyone, French or Indian – including Iroquois Indian.  The tenor was that New France in the southern Ontario and far western New York area was open land under general French sovereignty.

Indeed, in acknowledging that the Iroquois were not in possession of southern Ontario and that the area was occupied without opposition by the Mississaugas moving in from the north, Hill acknowledges that the Iroquois sovereignty over the Hamilton area was purely aspirational.  Even further, having acknowledged that the Iroquois annihilated the original occupants, the Hurons, the Neutrals, and the Eries, before withdrawing themselves, it seems to say that there are no peoples authentically aboriginal to the Hamilton area at all.  Peoples of aboriginal descent who presently live here are as much occupiers of this land as Europeans are.

Ms. Hill’s claim that the Treaty of Utrecht of 1713 recognizes the Nanfan Treaty or anything like it is false.  Article XV of the peace treaty between Britain and France required the inhabitants of Canada not to molest the Indian allies of Britain, and vice versa, in the hope and aim of expanding trade and commerce.  Sovereignty over the lands of North America were quite explicitly divided among France, Britain, and Spain, and nothing like an acknowledgement of a sovereignty exercised by “Indians … or other natives of America” is admitted anywhere.

The Nanfan Treaty is busted, not acknowledged, by the Treaty of Utrecht.  Tellingly, after Utrecht, the Hamilton area still lay in New France, not in the Province of New York or any other British land.  The natives friendly to either the British or the French were free to move about the land as they wished without molestation by British or French authorities or subjects.

The Dish with one Spoon treaty was an agreement among Indian tribes and not entered into by either the British or the French.  That treaty seems to have been superseded by the Great Peace of Montreal.

Britain conquered New France in the Seven Year’s War, and France ceded sovereignty of that territory to Britain in the Treaty of Paris of 1763.  In the same year, King George III issued his famous Royal Proclamation that concerned, in part, the treatment of native peoples in now British North America.  The proclamation came as a shock to the British Parliament, since the act of the King was made without reference to Parliament and seemed to imply that North America was a possession of the Crown alone, even though Parliament had all the money required for its governance.  Nevertheless, it is understood to be “the first recognition by the British Crown of aboriginal rights.”   Being the first, what it allegedly recognizes as “rights” is up for grabs.  The way it was interpreted immediately was that colonial expansion required a settlement with the local natives beforehand as a means of keeping the peace.  Who the local natives were was decided as those in physical possession at the time of the settlement.

The Iroquois were not in physical possession of the Hamilton area in 1784, for the British settled with the Mississaugas in order to acquire land for their Mohawk allies who were displaced in the aftermath of the American Revolution.  Certainly, the Mississaugas had no reason to acknowledge the “Nanfan Treaty” because they weren’t a party to it and they occupied the land in question.  For their part, the British did not invoke it as an excuse to take the land from the Mississaugas without compensation.  Insofar as the Nanfan Treaty was an aspirational grab of French territory, that ghost of alleged sovereignty expired in the Treaty of Utrecht, and was certainly buried by the settlement with the Mississaugas of 1784.

Now comes the revenge of the Mohawks.  Ms. Hill makes the case that based on race and descent, the Mississaugas are no more.  Those who call themselves Mississaugas are in fact Mohawk, and hence, by false reasoning, the claims of the Mississaugas now belong to the Mohawks of Six Nations, not simply expired with the tribe.  Strangely, she invokes the dead and buried Nanfan Treaty rather than the claim of the now said-to-be-absorbed Mississaugas as grounds for saying that Hamilton is properly Mohawk territory.

There is no money in invoking the Mississauga claim, since that has already been settled.

By a false statements of history, by misinterpretation, and by faulty reasoning, the chief of the Six Nations elected council arrives at the conclusion that Hamilton is by rights Mohawk land, when at best it would be land settled with the Mississaguas, who physically possessed it at the time, and the Iroquois never.  From the tenor and thrust of the argument made by Ms Hill, Canadians should be feeling for their wallets, and the Mississaugas of the New Credit feeling for their necks.

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*UPDATE*  On Dec 27, 2017, it was announced that the Ontario government would give the Mohawks on Six Nations reserve $100 million over the next twenty years.  Some $12.5 million will be paid immediately, and $4.5 million will be paid annually over the remaining 19 years.  Since the Mohawk claim against the Brantford casino is not being settled by this payout, and no other announcement was forthcoming from the Ontario government, what Ontario is getting exactly for this money is not clear at this moment.  Nevertheless, the warning that "Canadians should be feeling for their wallets" certainly appears prescient.

No word yet on the fate of the Mississaugas of New Credit Reserve.