By Margaret Ellsworth
OHSWEKEN, Ont. — A Six Nations oral history witness acknowledged under cross-examination that the community’s traditional leadership chose not to take part in the Haldimand Tract trial because it does not accept that Canadian courts can interpret the Haldimand Deed, according to a summary of the testimony released by Six Nations of the Grand River.
The weekly summary, prepared from a document by the community’s lawyers at JFK Law and posted on the Elected Council’s litigation page, covers the testimony of Joe Martin on Oct. 26 and 27. It is the first official account of those two days. It also shows how Canada and Ontario are testing the sources of Six Nations’ oral history evidence.
The trial in Six Nations of the Grand River v. Canada and Ontario resumed Monday, Nov. 9, after a scheduled break. No account of Monday’s or Tuesday’s proceedings had been published as of early Wednesday. This report is based on the Six Nations summary, earlier reporting by Turtle Island News, CBC News and The Hamilton Spectator, and court records previously reviewed by the Buffalo Chronicle. The Chronicle did not attend the hearings.
What the summary says Martin told the court
Mr. Martin is a member of the Upper Mohawk Band and the Bear Clan. According to the summary, he testified about teachings he received from his Kanien’kehá:ka and Anishinaabe family members, and said he began learning traditional teachings, language and ceremony at a young age.
His evidence covered the Great Law of Peace, the Code of Handsome Lake, the Creation Story and the Covenant Chain, the alliance between the Haudenosaunee and the British Crown. He described the Covenant Chain as a mutual commitment between Six Nations and the Crown to support one another when called upon, the summary says. He testified that the Haldimand Tract was an example of that relationship, arising from Six Nations’ alliance with the Crown during the American Revolution.
Turtle Island News, which reported on his testimony, quoted him on the cost of that alliance. “I don’t know if anyone has been homeless or displaced but that’s what happened to our people by teaming up with the Crown. At war with the Crown, we were ultimately displaced from our homeland,” Mr. Martin said, according to the newspaper.
The Mississaugas and the ‘Dish With One Spoon’
Mr. Martin also spoke about the relationship between Six Nations and the Mississaugas of the Credit First Nation, which is an intervener in the case. Drawing on family teachings, he testified that the land was purchased by the British for the benefit of Six Nations, and he described the Dish With One Spoon wampum as an agreement to share the land and its resources, the summary says.
The Mississaugas of the Credit support Six Nations’ effort to hold the Crown to account but do not accept that the Haldimand Proclamation is a treaty. Their position is that Six Nations could settle on the Grand River because the Mississaugas gave up the territory in a 1784 treaty with the British. “We support them on making Canada accountable for the lands,” Chief Margaret Sault told The Spectator when the trial opened, as published by Narcity. The First Nation is not seeking compensation.
Cross-examination: sources and the Confederacy’s absence
Canada and Ontario have objected to the admission of Six Nations’ oral history evidence, so Justice Ira Parghi is hearing it first in a voir dire, a hearing within the trial to decide whether evidence can be admitted. Evidence that is not admitted will not be considered in her final decision.
In cross-examination, the summary says, Mr. Martin gave more detail about the sources of his knowledge. He discussed a previous social media post in which he said that Confederacy chiefs and clan mothers possess greater oral history knowledge than he does.
He also acknowledged that the traditional leadership chose not to participate in the trial “because they maintain that Canadian courts do not have jurisdiction to interpret the Haldimand Deed,” the summary says.
That position is not new. Before the trial began, Kanien’kehá:ka Chief Allan McNaughton of the Haudenosaunee Confederacy Chiefs Council told CBC News that the council would not stand before a “foreign court” and preferred arbitration. “Council didn’t exist when treaties were made,” he said of the Elected Council, which was created under the Indian Act. The court earlier rejected a bid by the Haudenosaunee Development Institute to intervene on the Confederacy council’s behalf, CBC reported. Mr. McNaughton said the judge had indicated the court would welcome hearing from the chiefs and clan mothers themselves.
Analysis: why this exchange matters
This section is analysis. The Crown’s questions about where a witness’s knowledge comes from go to whether the court will admit oral history at all. A witness saying others know more is not unusual. Oral history is often held by specific knowledge keepers, and the summaries of earlier witnesses show the Crown asking similar questions, as the Chronicle reported on week three. But it gives Canada and Ontario material to argue that the strongest sources are not before the court.
The exchange also puts on the record the split in Six Nations governance that runs through this case and the separate litigation over the Haudenosaunee Development Institute, where an Ontario judge last month refused to add the Elected Council to a class action, as the Chronicle reported Tuesday. The Elected Council brought the land claim. The Confederacy council, whose chiefs say the treaties were made with them, is not in the courtroom by its own choice.
Whether that affects the outcome is for Justice Parghi. Six Nations argues that the Crown sold its lands and mismanaged its money. The case does not depend on which council speaks for the Haudenosaunee on every question. An August ruling held that the claim is monetary and does not seek the return of Crown land.
What Canada, Ontario and Six Nations say
Canada’s position is that the Haldimand Proclamation was not a treaty and that the lands were lost through a series of valid surrenders and sales. Crown-Indigenous Relations and Northern Affairs Canada told CBC: “We respect the decision of Six Nations to pursue their claims through the courts and will continue to work in co-operation with all parties as this case moves forward.” A spokesperson for Ontario’s Ministry of the Attorney General said in 2024 that it would be inappropriate to comment while the matter is before the courts.
Six Nations’ lead lawyer, Robert Janes, told the court in his opening that the community would rather settle. “The Six Nations have always been, and remain, open to achieving reconciliation outside the court. But this seems to be out of reach,” he said, according to the Spectator account published by Narcity.
What comes next
The summary says the court was expected to continue hearing oral history evidence from Six Nations witnesses when it resumed Nov. 9. Six Nations’ chief executive, Deb Jonathan, has said community viewing of the proceedings will remain open until Nov. 23 and that written summaries will follow, as the Chronicle reported Nov. 8. A ruling is scheduled for Dec. 18, Six Nations told the Chronicle earlier, though it did not say which matter it will decide.
The Chronicle is seeking comment from Six Nations of the Grand River Lands and Resources and the federal Department of Justice on the summary and this week’s proceedings. Responses will be added when received.
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