This letter is in response to Phil Monture on May 26, "Eagle's Nest Tract was never sold."
On Jan. 18, 1841, Six Nations Chiefs signed or placed their marks on surrender No. 50 in which, "being deputed by the said Six Nations in full Council," agreed to move their people to the current reserve just south of Brantford and surrender to the Crown all land they had not previously relinquished.
Furthermore, during the discovery phase of the 1995 court case file (406/95) to which Monture refers, government lawyers said "This decision was affirmed by Order-in-Council of Oct. 4, 1843." They also said that after further discussions with Six Nations "This decision was affirmed by the Six Nations on Dec. 18, 1844." The affirmation of surrender No. 50 on Dec. 18, 1844 came about 10 months after the Feb. 7, 1844 confirmation to which Montour refers.
A manual from the Indian and Northern Affairs states:
"Since a surrender involves a complete and final release of the entire Indian interest in the surrendered lands, the duration must be expressed as "forever" in the surrender document. Statements such as "notwithstanding this surrender, title remains with Her Majesty" are not appropriate terms or conditions."
If the 1844 document refers to the 1841 annexed documents, then it is clear that the land was surrendered. As well, the 1841 document refers to the entire tract being surrendered outside of land chosen for the Six Nations to reside.
Courts judge documents on intent. The document may not say the word "surrender" but if the intent in the document is clear, and other government documents at the time, including correspondence suggest surrender, then it will be perceived as such.
If the Crown executes an addition to an Indian reserve of general Crown land, then it is still Crown land because the reserves are titled to the Crown. So it is simply moving from one part of the Crown ledger to another. If the Crown executes a fee simple sale to the band without an addition to Indian reserve then it becomes privately deeded land under the land titles system and is subject to taxation and control of the county in which it lies and it is no longer considered Crown land.
The interesting aspect of the original allocation of land to Six Nations was that it was never registered as a fee simple sale of land but rather an Indian reservation of land, for the use of Six Nations which would mean that title ownership of the land has always been with the Crown. As it is today, a surrender would simply be a release by Six Nations back to the Crown control of the reserved land for disposition.
This means the concept that Six Nations wants everyone to believe that the land was always its land is a false premise.