By: Grace Li Xiu Woo PhD Candidate, Université du Québec à Montréal, Montreal, Canada firstname.lastname@example.org….
‘England conquered half the world in successive fits of absence of mind.’
Sir John Seeley, Professor of History
Cambridge University 1869 – 1895
– Dawson (1937: 196) –
Countries like Canada that are a product of the colonial process, are faced with a paradox. We have been attempting to reorient our laws to accord with modern equality rights without bothering to reevaluate the way our history was constructed during the age of imperial expansion and aggression. This paper seeks to address some of the resulting ambiguity by raising awareness of one pivotal event. Though omitted from most accounts of the 20th century, it deserves a prominent place in our collective memory, not only because of the light it casts on the development of Canada’s national identity, but also because it provides a key to understanding why success eludes our well-meaning attempts to achieve both international peace and a solution for complex Indigenous rights issues.
In 1923 the Haudenosaunee Confederacy applied for membership in the League of Nations1 . Better known to the English as the ‘Iroquois Six Nations of Grand River’ (now in Ontario), they were driven to take this initiative out of exasperation with the intrusive policies of Canada’s Department of Indian Affairs.
The Netherlands, Persia, Panama, Estonia and the Republic of Ireland all supported formal consideration of their application – or at least of the issue of whether or not it was receivable. However, Canadian officials did not want their actions subjected to external review. They were already facing court action for losing over CAD160, 000 of Six Nations trust funds through unauthorized investments2 and they had difficulty finding the evidence they needed to defend the legality of their policies, so they played on popular stereotypes to ridicule the Haudenosaunee claims. Through these means, they [ CANADA ] were able to engage the intervention of Britain, which was also potentially liable for financial mismanagement . The international dominance enjoyed by the British Empire at that time gave it the power needed to pressure Haudenosaunee supporters and prevent formal presentation of the evidence and legal arguments that favoured their claims. As a result, both the Canadian public and the international community were excluded from the decision-making process and this influential Indigenous confederation was denied the opportunity to participate in world affairs on parity with other nations.
The facts surrounding this incident are difficult to untangle from presumptions that are firmly established in our cultural mythology concerning the foundation of both Canada and the modern international order. Those involved – the coloniser and the colonised – see each other in such radically different terms that we do not even use the same words to describe our past and present selves. Yet, the perspective of the colonised is confirmed by the coloniser’s archival records. In considering the significance of what happened, it is worth remembering that most modern Canadians were born in or immigrated to Canada after the events recounted in this paper took place. We see ourselves as an alternative to the United States and we have few ties to people who can remember that back in the 1920’s, the ‘Dominion’ still held colonial status under English law. In those years, the immigrant majority came predominantly from Britain. As ‘loyal subjects’, they had no desire to leave the protection of the imperial ‘motherland’. Their submissive mind set and hierarchical belief system contrasted sharply with the egalitarian philosophy of the Haudenosaunee, who used archival evidence to substantiate their claim to full independence. As they argued in their petitions, the ‘Six Nations’ had never been conquered and they had never accepted alien sovereignty. Since the time of first contact, they had always insisted that they were allies, not subjects, of Britain.
Now that British imperialism has faded to a distant memory, scholars are taking a second look at the past. The primacy accorded to equality, both in the field of international human rights and in the Canadian constitution, castes a different light on how the modern world took shape and it appears increasingly likely that we have underestimated the depth of the philosophical conflict involved in early Anglo-Indigenous encounters. The League of Nations incident is just one of many points of cultural collision. Yet, with the perspective afforded by time, the broad significance of the actions taken by Canada’s Department of Indian Affairs to depose4 the traditional Haudenosaunee government is becoming increasingly apparent. These events occurred at the very moment when the Dominion of Canada was taking its first tentative steps towards establishing a limited autonomy of its own. And so, in this case at least, self-determination for Canada was achieved, not in cooperation with Indigenous peoples (contrary to Canada, 1993 Partners in Confederation), but rather at the expense of their traditional autonomy.
The primacy now given to the principle of equality is a major component in the reorientation of the concept of legality that emerged during the 20th century. Following World War I, US President Woodrow Wilson captured international opinion by announcing that ‘the day of conquest and aggrandizement is gone’5 . The League of Nations was soon established ‘for the purpose of affording mutual guarantees of political independence and territorial integrity to great and small states alike’ (Covenant of the League of Nations; Walters, 1960). Instead of dividing the conquered German, Austro-Hungarian and Turkish empires among the victors, their constituent nations were either granted recognition as states, as in the case of Czechoslovakia and Yugoslavia, or placed under mandate with a view to eventual independence. This led to a redefinition of Canada’s identity and the country began to look beyond the protection traditionally derived within the British Empire (Veatch, 1975; Lederman, 1984, p 340). Along with the other British ‘dominions’ (Australia, New Zealand, Newfoundland, South Africa and Ireland, which became a ‘dominion’ by treaty in 1920) Canada was finding it increasingly advantageous to emphasise its state-like qualities (Veatch, 1975). This had serious consequences for the indigenous nations living on the territory identified as ‘Canada’ on British maps.
From the Haudenosaunee perspective, their relationship was with Britain and it had been established under the principle of ‘Guswentah’, the Two Row Wampum. According to an analogy that indigenous sources say was British in origin (Weaver, 1975, p 279), the parties were to conduct themselves like two boats sharing the same river, and it was agreed that neither would attempt to steer the other’s vessel. (Canada, 1996a). With the founding of the League of Nations, international organization shifted its definitional focus from imperial allegiance to territorial control by the resident population. Measures were instituted to help former colonies move towards independence and, though the implications of this reconceptualisation may not have been immediately apparent, Britain’s ‘dominions’ found themselves under increasing pressure to follow suit. Canada had not established formal relations with the Haudenosaunee or any other indigenous nation. The treaties and agreements that had been signed in British North America had always been made on behalf of the British monarch (for example, see Canada, 1871); but in the new world order that began to take shape following World War I, the Dominion presumed authority over all of the territory north of the United States’ boundary. In terms of the Two-Row Wampum concept, which had previously governed Anglo-Haudenosaunee relations, it was as if the occupants of one boat laid claim to the whole river.
The conflict raised by this change in the international paradigm came to a head when the Haudenosaunee Confederacy applied for membership in the League of Nations. The few members of the dominant culture, who know of it; consider this incident an esoteric curiosity. However, specialists in the field have identified it as the origin of the modern international indigenous movement (Anaya, 1996, p 46) and it remains a beacon for indigenous-rights activists (see: Rickard; Sunkmanitu taka Isnala Najin; Mapuche Documentation Center;Cheshire; Sun Singer). What happened is almost impossible to reconcile with Canada’s its proud humanitarian reputation, derived in part from Raoul Dandurand’s pioneering work on minority rights at the League (Hamelin, 1967; Stacey, 1981). Though Dandurand must have heard something about the incident, the Department of Indian Affairs was able to control the information he and his successors received, so Canadian decision-makers never fully understood the Haudenosaunee plight. In recent years, several accounts of what happened have been published (Veatch, 1975; Titley, 1986; Johnston, 1986; Rostkowski, 1987; Sanders; 1992); however, the implications are ignored. What happened simply does not fit with the cut and paste version of history we inherited from the colonial past. (See R. v. Marshall 1999; Dickinson and Gidney, 1987; Fisher, 1992; Ray 1990) Yet Canada depends on history to found the legality of its governmental structure. (Reference re Secession of Quebec 1998, at 49.) This approach is difficult to reconcile with the reorientation of international law to found human rights on the equality of all peoples, including those indigenous to colonial states. From the modern international perspective, the treatment meted out to the Haudenosaunee in the 1920’s is beginning to make the actual function of Britain’s much vaunted legal system look like a hallucination from Alice in Wonderland (Carroll, 1865).
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 Ontario6 . The 20th century produced a vast literature struggling with elusive concepts related to the idea of ‘nationality’ (Dallier & Pellet, 1999) and it was not until 1933 that international law established a positive legal definition for a ‘state’ (Dallier & Pellet, 1999, ch 1; Harris, 1991, p102; Castel, 1975, p 47). 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 (Jennings, 1984, p 55), 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 it’s constitution is founded on that of the ‘Iroquois’ confederation of the Kanienkehaka (Mohawk), Oneida, Onondaga, Cayuga and Seneca nations (US 1987).
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 (Richter, 1992). 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 (Huey & Pulis, 1997; Thomas, 1996; Johnston, 1964). 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 Revolution7 . 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 1800’s under circumstances that can only be described as unjust (Harring, 1998). 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 wilful 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 (Trigger, 1984; 1986), but modern scholars are beginning to realize that Indigenous diplomacy was geared towards self-preservation rather than imperial expansion (Jennings, 1984; Richter, 1992). 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 colonisation. 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 (Pesklevits, 2002)8 . 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 18679 , 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’10 .
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 (Titley, 1986). 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 Act11 . Then in 1920, an amendment to the Indian Act12 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.
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 Canada13 . 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 subjects14 . 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 (Graymount, 1973)15 . 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’16 . 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 passports17 . 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’ claims18 , 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’19 . 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.
Charles Stewart, the new Superintendent of Indian Affairs under the MacKenzie King administration, does not seem to have understood the political complexity of the office he was charged with at first. What happened next illustrates the illusory nature of representative government in Canada at the time, as well as the need for a neutral arbiter when there is a serious power imbalance between the parties. On 4 December 1922, Stewart, accompanied by Scott, travelled to Brantford to negotiate the appointment of a tribunal to settle Canada’s differences with the Six Nations. After meeting all day at the local YMCA the Department of Indian Affairs made an offer to negotiate their differences with the ‘Six Nations’. Haudenosaunee law and custom requires ratification of important decisions by the people and, after discussing what had been offered, the Confederacy council decided to accept20 . They also appointed seven constables to co-operate with Ontario police on the question of liquor control, which had been a topic of concern at the Brantford meeting21 . However, before they could send in their letter confirming acceptance of the terms Canada had offered, their Grand River territory was subjected to a three-day raid by the newly created Royal Canadian Mounted Police. The RCMP were accompanied by Inland Revenue Officers and claimed to be looking for illicit alcohol. The home of Deskaheh, who was characterized by Canadian authorities as the main troublemaker, was searched although he was a notorious tea-totaler. All that was found on the whole reserve was one still (which may have been planted)22 , a small bottle of moonshine and some mash and, despite rumours inspired by popular stories of Indian wars23 , the only shots that were fired were those of the police24 . There are no records to show who gave the order for this raid that undermined Stewart’s public efforts; but the RCMP, whose future was in question, were looking for a role for themselves (Kelley, 1973) and they were routinely forwarding reports on the Six Nations to Scott25 .
Though the Haudenosaunee had some awareness of Canada’s internal confusion over who was in control, they did not consider it their business and, as their previous appeals to British authorities had demonstrated, they had no means of addressing it in any event. However, Canada had just been accorded a seat at the League of Nations, having overcome exclusion from the International Labour Organization which had initially proposed that ‘No member, together with its Dominions and Colonies, whether self-governing or not, shall be entitled to nominate more than one member'(Veatch, 1975 p.7). In the wake of World War I, international relations were closely followed by the Canadian public and developments received detailed coverage on the front page of the Brantford Expositor. The Haudenosaunee expected the new institutions to be functional. They responded to Canada’s invasive action by addressing a petition to the Queen of the Netherlands, delivered within days to the Dutch Chargé d’Affaires in Washington DC26 . They were already familiar with the League’s rules. They knew they needed a sponsor in order to appeal to the League. The Netherlands was the first European power with which they had established diplomatic relations back in the early 1600s. and HA van Karnebeek, the Dutch Minister of Foreign Affairs, had been President of the League Assembly in 1921. Their petition stated that the ‘Six Nations’ were an ‘organized self-governing people’ in need of protection from ‘this aggression of our Canadian neighbours’. Both the Haudenosaunee and the Netherlands appear to have interpreted the wording of the League of Nations’ Covenant literally, expecting the new organization to resolve the issues involved openly and in accord with the principles of international law.
Canada’s reaction was scattered and contradictory in keeping with the ambiguity of its status at the time. As a ‘dominion’ the country’s was still a colony according to British law. Though it had won a seat at the I.L.O. and the League of Nations, it did not have its own diplomatic representation in other states, not even in Washington D.C. and despite the prominent role of Canadian men and resources in World War I , Canada did not have the right to sign the Treaty of Versailles that ended the war. As leader of the Liberal Party, Prime Minister Mackenzie King was attempting to maintain a delicate political balance between Ontario Tories who were proud of their Imperial ties and a general wariness, especially in Quebec, about being dragged into Britain’s over-seas conflicts. At the particular moment when the Haudenosaunee were trying to defend their autonomy, Mackenzie King was involved in his own quest for Canadian self-determination, attempting to wrest permission from Britain to sign the Halibut Treaty27 with the United States. Though Britain continued to be very much involved in Canadian diplomatic negotiations, a precedent was finally set on 23 March 1923 when this treaty took effect without Britain’s signature.
That very same month Canada, on advice from the department of Indian Affairs, turned the screws a notch tighter on the Haudenosaunee by unilaterally appointing Colonel Andrew C. Thompson as a one-man commission to investigate the complaints that the Haudenosaunee had been making so insistently against Dominion interference with their business. This, after months, years even, spent attempting to establish a neutral and mutually acceptable arbitration panel. As far as the Haudenosaunee application at the League was concerned, MacKenzie King was content to let Britain flex its muscles on Canada’s behalf. Despite his on-going struggle to establish Dominion autonomy, Canada was, after all, still a part of the British Empire. The Foreign Office in London pressured the Netherlands to discourage presentation of the Six Nation’s petition28 . With Sir Eric Drummond, a British diplomat, serving as the League’s Secretary General, procedural formalities were improvised. Ignoring the right to file a writ, which had long been a long-established part of the British system of justice, Drummond insisted that Canada should have the right to reply before the Haudenosaunee complaint was formally registered. At that time MacKenzie King was attempting to handle international matters on his own and he thought so little of External Affairs that staff inherited from the previous Conservative administration was still in place. The task of drafting Canada’s response fell to Sir Joseph Pope, described as a ‘thorough-going colonial with no use for equality of status and such like nonsense’ (Stacey, 1981, p 6). Needless to say, Pope’s principal adviser was Duncan Campbell Scott. His indignant response created such a diplomatic embarrassment that the Netherlands decided to withdraw from the situation despite its belief in the merits of a formal legal treatment of the issues. The Haudenosaunee were not even given a copy of Canada’s reply. They had to rely on unofficial communications to keep track of the progress of their case.
With the Netherlands removed from the scene, the League’s secretariat hoped that no country would ask to place the ‘Six Nations’ appeal on the agenda. However, Deskaheh and Decker soon arrived in Geneva to file a formal request for League membership. Since the secretariat would not accept their petition, they circulated copies under the title The Redman’s Appeal for Justice to all of the members (Deskaheh, 1924)29 . Many states were annoyed by Canada’s attempt to delete Article 10 from the League’s Covenant requiring members to protect each other from external aggression and this may have inspired the support the Haudenosaunee eventually received (Veatch, 1975, ch 6). On 27 September 1923, delegates representing Estonia, Ireland, Panama and Persia signed a letter asking for communication of the Six Nations’ petition to the League’s assembly30 . When informed that the matter could not be dealt with because the assembly’s session was almost over, the Persian delegate sent a telegram asking for consideration by the League’s council. This time the request was rejected on the grounds that there was no Canadian delegate present and the matter was put over for another year on the basis of arguments put forward, not by the members, but rather by the British dominated administration. Britain used the break to bring diplomatic pressure to bear on the countries that had supported the Six Nations. One by one over the following months their governments devised excuses, suggesting that their representatives at the League had acted without proper instructions.
Back in Canada, the final steps needed to depose the traditional government of the Six Nations Haudenosaunee were quietly and carefully put into place. Duncan Campbell Scott prepared a response to The Redman’s Appeal for Justice even though it had never been formally accepted at the League. In February 1924, the secretariat distributed Scott’s defence of Canada’s policies to the members of the League’s council, despite the fact that filing of the petition it was responding to had never been allowed. Once again a copy was not sent to the Six Nations themselves and they were given no opportunity to reply to the official critique of their unregistered complaints31 .
Back at Grand River, the Haudenosaunee continued with business as usual. There is no indication that they knew the end was near. In August 1924 the report of the ‘Thompson Commission’, which had been boycotted by most of the people on the reserve, was released to the Canadian public with its recommendations in favour of the department of Indian Affairs. A bewildered RCMP. was asked to provide reinforcements to police the Six Nations at this time; but their reports indicate that everything was ‘quiet and orderly’ as usual. Despite the Confederacy’s indignant protests over this unauthorized police presence, they do not seem to have realized what was about to occur. Prime Minister MacKenzie King and Governor-General Lord Byng of Vimy had quietly signed Order in Council dated 17 September 1924 mandating the replacement of the Haudenosaunee Confederacy Council with a band council elected under Canada’s Indian Act. The local Indian Agent kept the order under wraps at first, but when the Haudenosaunee Council learned of it, they cabled Deskaheh in Geneva in alarm. The League received a copy of the telegram, but did nothing. Scott was free to proceed with his plan.
On 21 October 1924, the very same day that ratifications of the Halibut Treaty were exchanged, Canada’s Department of Indian Affairs proceeded to hold elections on the Six Nations reserve. The event was boycotted by the majority of the people on the electoral list. Only 26 ballots were cast. The traditional council had more than 30 regular members and though it continued to meet, it was unable to conduct business as usual because Canada had control of their trust funds. With no access to the money needed to pay for road tenders, school repairs and other community business, management was wrested from their hands and placed under Canada’s control. And though the Six Nations people continue their protest in various ways to this day (Maracle, 1997) their dispute with Canada has never been resolved. The majority of the people continue to boycott both band council and Canadian elections. Traditionalists continue to insist that they are independent. And Canada has never paid compensation for unauthorized investments made with Six Nations trust funds, though even Colonel Thompson acknowledged that there had been injustice on this count32 .
And so it was that the first steps in the decolonisation of Canada were accompanied by the final colonisation of the Haudenosaunee people. It was not until 1931 with the Statute of Westminster that Canada and the other dominions achieved parity with Britain in the British Empire – a level of independence somewhat inferior to that claimed by the Haudenosaunee in relation to Britain throughout the post-contact centuries. And though the Six Nations had a defined territory, a population, a government and a proven, centuries-old history of diplomatic relations with other nations, it was another decade before the nature of a state was defined in international law. By then the department of Indian Affairs was able to point comfortably at its self-imposed band council to claim that the traditional Haudenosaunee Confederacy council, which still continued to meet, did not represent the Six Nations people.
What are we to make of this story of simultaneous colonisation and decolonisation? Would a hearing at the Supreme Court of Canada or at the League of Nations have made any real difference? Perhaps not. British imperial pride was at a peak in the 1920s when the Empire was still celebrating victory in the first Great War. We have become so accustomed to the uniform coloration of the map north of the American border that the current format of Canada seems incontestable. However, a mere ten years later Britain’s Judicial Committee of the Privy Council reversed the seemingly entrenched orthodoxy saying women were not legal persons33 . What would they have said about the Indian Act that said the same of Indigenous peoples? The archival evidence and legal authorities that the Six Nations Haudenosaunee had to offer in support of their arguments were impeccable. If they had been allowed equal access to British imperial courts, perhaps they would have won. And then, who knows? Perhaps the reasoning would have been confined to that particular case, dependent on the unique terms of Haldimand’s declaration. Or perhaps Haudenosaunee from other reserves would have found a way to expand their rights producing a very different type of legal and political order – one in which Indigenous nations had a real say. And this might, in turn, have inspired us all. Perhaps we would have developed a society in which no one was held hostage by the shadowy manoeuvres of unelected officials – in the department of Indian Affairs or elsewhere in the dark recesses of the federal bureaucracy.
On the other hand, if the Six Nations had been allowed to present their case at the League of Nations or in the newly formed international court, perhaps the whole history of the twentieth century would have been different. Perhaps polities would have been defined according to relational rather than territorial criteria. Perhaps the boundaries of territorial resources would have been decided through rational grassroots legal consultation, formed on the basis of agreements reached among all those affected instead of on the basis of colonial precedent backed by the use of brute force. We might have developed institutions designed to assist consensus formation. We might have found the means to address social problems before they degenerate to the point that they elicit responses founded on anger and blind rage. Perhaps the need to define the crime of genocide would never have arisen. We can only wonder as we head into the 21st century with new, and similarly undefined challenges before us. We can only wonder, though surely, if we want to decolonise the future we must first decolonise our understanding of the past.
1 . Except when identifying a particular quote, the endnotes are not intended to be definitive or exclusive sources on any particular point. For a more detailed account, and more explicit references, see Woo 2000 (publication pending).
2 . The Grand River navigation scheme to promote river transport through dredging failed because of the advent of rail transport. Contrary to popular opinion, the ‘Indians’ were not supported by taxpayers. The money lost was being held in trust by the Department of Indian Affairs and it came from the proceeds of land sales which reduced the size of their reserve substantially. At time of writing, the claim has never been settled despite several attempts to gain compensation.
3 . Indian Affairs, established in 1755 as a branch of the British military, became a civilian administration in 1832 and was transferred to the Dominion of Canada by the British North America Act 1867.
4 . This word was used by the local Indian Agent to describe his actions at the time.
6 . A description of the political organization of the Haudenosaunee Confederacy is too complex to include here. There is a voluminous literature on the subject. It was founded in the pre-contact era as a confederation of the Mohawk. Oneida, Onondaga, Cayuga and Seneca nations centred in what is now New York State but the Turcarora, Delaware and others are now affiliated. The Confederacy council, which split following the American Revolution to deal separately with the Americans and the British, has recently reunited. Haudenosaunee identity includes several reserves on both sides of the Canada-U.S. border. For a start, see e.g. Parker, 1916; Shimoney, 1994; Fenton, 1998).
7 . Like the British Empire, the Haudenosaunee polity was defined in relational, rather than territorial terms. The British Empire was founded on the subject-monarch relationship. (Section 8(2) Halsburys Laws of England, 4th ed, p 26). The Haudenosaunee, by contrast, were founded on kin and quasi kin relations. Their complex internal diplomacy has been the subject of innumerable academic studies which go beyond the scope of this paper.
8 . Note the terms of the Coronation oath which must be sworn before the King of England obtains legal status (see Halsbury’s Laws of England).
9 . Now known as the Constitution Act 1867.
10 . Frank Oliver, Minister of the Interior, Canada to Chief J.S. Johnston, Deputy Speaker, Six Nations Council, 5 April 1909 Ex. ‘A Memorandum on the Relation of the dominion government of Canada with the Six Nations of the Grand River’, submitted at London by Chief Deskaheh to the Colonial Office, August, 1921.
11 . An Act to Assist Returned Soldiers in Settling upon the Land and to Increase Agricultural Production SC 1917 c 21. Under this act retired soldiers were granted land in Canada. Many Six Nations men had enlisted voluntarily in the Canadian army and, instead of granting them Canadian land, Canadian officials proposed to allocate land to them that had already been reserved for the Six Nations.
12 . Indian Act 1906 S.C. 15 Geo. VI c.29 subsequently amended by 1-2 Ed. VII, 1910 c 28; 1-2 Geo V, 1911 c 14; 4-6 Geo V, 1914 c 35; 8-9 Geo V, 1918 c 26; 9-10 Geo V, 1919 c 56; 10-11 Geo V, 1920 c.50; 12-13 Geo. V., 1922 c.26.
13 . To His Excellency the Governor-General in Council signed Joseph Logan Head Chief of the Onodagas; John C Martin, Head Chief of the Mohawks; Peter Claus, Head Chief of the Oneida; Levi General, Head Chief of the Cayuga; Peter Isaac, Head Chief of the Seneca; Sam R. Lickers, Head Chief of the Tuscarora, 12 March, 1920. National Archives of Canada (NA) RG10, vol.2285, file 57,169-1A pt 2.
14 . PC 2719, 27 Nov. 1920. See also NA, RG10, vol.2285, file 57,169-1A pt 2.
15 . The Cayuga of Grand River were seeking compensation from New York for their traditional land around Cayuga Lake under treaties of 1788, 1790 and 1795 that were being respected only for Cayuga living south of the Canadian border. In 1925 an American-British Arbitration Tribunal was established, though the case was not resolved until Chief Clinton Rickard met personally with President Roosevelt in 1929.
16 . To His Excellency, The Duke of Devonshire, Governor General in behalf of the Six Nations signed William Smith, Levi General, David Sky, AG Smith, OG Nash, David S Hill, 10 May 1921. National Archives of Canada, RG10, vol 2285, file 57,169-1A pt 2.
17 . Scott to Pope, 1 June 1921. NA RG10 vol.3227/552285 (Reel C-11344).
18 . I did not find a copy of this petition in the National Archives. However, there is a copy in the Netherland’s Archives at ARA A-dossiers 1918-1940 inv no 1521.
19 . Churchill to Lord Byng, 23 Sepot. 1921 NA. RG10, vol.2285, file 57,169-1A pt 2.
20 . Six Nations Council Minutes, 4 Dec 1922. NA RG10 v.1745/63-32 pt 16.
21 . Six Nations Council Minutes, 5 Dec 1922. NA RG10 v.1745/63-32 pt 16.
22 . Deskaheh to Mackenzie King, 6 Jan 1923.
23 . There is no evidence to support the assumption of Titley, 1986 p 119.
24 . RCMP Ottawa file Q-400-0-1; NA RG10 vol.2285/57, 1969-1B pt 3
25 . RCMP Ottawa file Q-400-0-1.
26 . League of Nations file 28073/28075.
27 . Treaty between Canada and the United States of America for Securing the Preservation of the Halibut Fishery of the North Pacific Ocean, signed Washington, 2 March, 1923, ratifications exchanged at Washington 21 Oct. 1921 (Canada, Department of External Affairs, 1927).
28 . Netherlands Archives, ARA A-Dossiers 1918-1940.
29 . League of Nations file 33687/28075.
30 . E MacNeil, délégué d’Irlande, Raoul Amador, délégué de Panama, Aefa-ed-Dowleh, délégué de Perse, CR Pusta, délégué d’l’Estonie, 27 Sept. 1923, League of Nations file 31340/28075.
31 . Contrary to some reports, based perhaps on contemporary news stories, the Six Nations never spoke at the League of Nations though Deskaheh did speak at well attended public meetings. See eg error in Johnston, 1984 n 91 p 23.
Anaya, S. James (1996) Indigenous Peoples in International Law (New York: Oxford University Press).
Canada, Department of External Affairs (1927) Treaties and Agreements Affecting Canada in force between His Majesty and the United States of America with subsidiary documents 1814-1925(Ottawa: FA Acland, King’s Printer).
Canada (1996a). ‘Looking forward, Looking Back’. Royal Commission of Aboriginal Peoples (RCAP). chairs.Georges Erasmus and René Dussault (Ottawa: Minister of Supply and Services).
Canada (1996b). ‘Restructuring the Relationship’ Royal Commission of Aboriginal Peoples (RCAP). chairs.Georges Erasmus and René Dussault (Ottawa: Minister of Supply and Services).
Canada (1993). ‘Partners in Confederation: Aboriginal Peoples, Self-Government and the Constitution’ Royal Commission of Aboriginal Peoples (RCAP), chairs.Georges Erasmus and René Dussault (Ottawa: Minister of Supply and Services).
Canada (1871) Indian Treaties and Surrenders from 1680 to 1890 (Ottawa. Queen’s Printer).
Carroll, Lewis (1865, 1872 reprint 1982) Alice’s Adventures in Wonderland & Through the Looking Glass) in The Complete Illustrated Works of Lewis Carroll (London: Chancellor Press).
Castel, J G. (1976) International Law 3rd ed. (Toronto: Butterworths).
Cheshire, Katherine (1998-1002) ‘ Quest of the Hopi and of the Six Nations‘.
Dallier, Patrick and Pellet,Alain .(1999). Droit International Public, Nguyen Quoc Dinh 6e ed (Paris: LDGJ).
Dawson, Robert MacGregor (1937) The Government of Canada (London: Oxford University Press).
Deskaheh, (1924) The Redman’s Appeal for Justice (Brantford: D. Wilson Moore Ltd).
Deskaheh (1925) Last Speech, 10 March 1925, Akwesasne Notes.
Dickenson, G.M. and Gidney, R.D. (1987) ‘History and Advocacy: Some Reflections on the Historians Role in Litigation’, Canadian Historical Review LXVIII.
Fenton, William (1998) The Great Law and the Long House (Norman: University of Oklahoma Press).
Fisher, R. (1992) ‘Judging History: Reflections on the Reasons for Judgment in Delgamuukw v BC’, British Columbia Studies XCV.
Graymont, Barbara (ed) (1973) Fighting Tuscarora: The Autobiography of Chief Clinton Rickard (New York: Syracuse University Press).
Hailsham of St. Marylebone, Lord (1968) Halsbury’s Laws of England (London: Butterworths).
Hamelin, Marcel (ed). (1967) Les Mémoires du sénateur Raoul Dandurand (1861-1942) (Quebec: Les Presses de l’Université Laval).
Harring, Sydney L.(1998) White Man’s Law: Native People in Nineteenth-Century Canadian Jurisprudence (Toronto: University of Toronto Press).
Harris, DJ (1991) Cases and Materials on International Law, 4th ed (London: Sweet and Maxwell).
Huey, Lois M and Pulis, Bonnie (1997), Molly Brant: A Legacy of Her Own. (Youngstown: New York: Old Fort Niagara Association).
Jennings, F. (1984) The Ambiguous Iroquois Empire (New York: W.W. Norton).
Johnston, Darlene M.(1986) The Quest of the Six Nations Confederacy for Self-Determination, University of Toronto Faculty of Law Review44(1), p 1.
Johnston, Jean (nee Morton) (1964) ‘Molly Brant: Mohawk Matron’, Ontario History LVI 2, p 105.
Kelley, Nora & William (1973) The Royal Canadian Mounted Police: A Century of History.
(Edmonton, Alberta: Hurtig).
Lederman, William R (1984) ‘Canada’s Constitutional Amending Procedures: 1867 – 1982’ American Journal of Comparative Law 32, p 337.
Maracle, Brian (1997) Back on the Rez, Finding the Way Home (Toronto: Penguin).
Parker, A.C. (1916) The Constitution of the Five Nations or the Iroquois Book of the Great Law. Ohsweken Ontario: Iroqrafts, 1991 reprint of No 184 New York State Museum Bulletin, University of the State of New York, Albany.
Pesklevits, Richard (2002) ‘Customary Law, the Crown and the Common Law: Ancient Legal Islands in the Post-Colonial Stream’, LL.M., University of British Columbia.
Ray, A.J. (1990) ‘Creating the Image of the Savage in Defense of the Crown: The Ethnohistorian in Court’, Native Studies Review VI, p 25.
Richter, Daniel K. (1992) The Ordeal of the Long-house. (University of North Carolina Press).
Rickard, Joseph Sr. (2001) ‘Sovereignty Undermined by Forced Citizenship and Restricted Passage Leads to Formation of the IDLA‘, Indian Defense League of America.
Rostkowski, Joële (1987)’The Redman’s Appeal for Justice: Deskaheh and the League of Nations’, in Feest, Christian F (ed). Indians and Europe: An Interdisciplinary Collection of Essays (Aachen: Herodot, Rader-Verl).
Sanders, Douglas (1992) ‘Remembering Deskaheh: Indigenous Peoples and International Law’, in Irwin Cotler, Irwin and Eliadis, F Pearl (eds) International Human Rights Law: Theory and Practice (Montreal: The Canadian Human Rights Foundation), p 485.
Shimony, Annemarie (1994) Conservativism Among the Iroquois at the Six Nations Reserve (Syracuse, N.Y. Syracuse University Press).
Stacey, CP. (1981) Canada and the Age of Conflict: A History of Canadian External Policies, Vol 2 1921-1948, The MacKenzie King Era (University of Toronto Press).
Thomas, Earle. (1996) The Three Faces of Molly Bran (Kingston, Ontario: Quarry Press).
Sunkmanitu tanka Isnala Najin (Charlie Wolf Smoke) (2001) ‘Equality: Fight for the Line‘.
Titley, E Brian (1986) A Narrow Vision: Duncan Campbell Scott and the Administration of Indian Affairs in Canada (Vancouver: University of British Columbia Press).
Trigger, Bruce G (1986) ‘The Historian’s Indian: Native Americans in Canadian Historical Writing from Charlevoix to the Present’, Canadian Historical Review 67 (3), p 315.
Trigger, Bruce G (1984) ‘Indian and White History: Two Worlds or One?’ In Foster, Michael K., Campisi, Jack and Mithun, Marianne (eds) Extending the Rafters: Interdisciplinary Approaches to Iroquoian Studies (Albany: State University of New York Press).
Veatch, R (1975) Canada and the League of Nations (University of Toronto Press).
Walters, FP (1960) A History of the League of Nations London: Oxford University Press.
Weaver, Sally M (1975) Iroquois Politics, 1847-1940 (Ottawa: Canada Council & The National Museum of Man, Unpublished; Doris Lewis Rare Book Room, University of Waterloo, Ontario).
Weaver, Sally M (1994a) ‘The Iroquois: Grand River Reserve, 1875-1945’, in Rogers, Edward S and Smith, Donald B (eds) Aboriginal Ontario, Historical Perspectives on the First Nations (Toronto: Dundurn).
Weaver, Sally M (1994b) ‘The Iroquois: The Consolidation of the Grand River Reserve in the Mid-Nineteenth Century, 1847-1875’, in Rogers, Edward S and Smith, Donald B (eds) Aboriginal Ontario, Historical Perspectives on the First Nations (Toronto: Dundurn).
Weaver, Sally M (1984) ‘Seth Newhouse and the Grand River Confederacy at Mid-Nineteenth Century’, c10 in Foster, Michael, Campisi, Jack and Mithun, Marianne (eds). Extending the Rafters: Interdisciplinary Approaches to Iroquoian Studies (Albany: State University of New York Press)
Woo Li Xiu (Grace Emma Slykhuis) (2000) Canada v The Haudenosaunee (Iroquois) Confederacy at the League of Nations: Two Quests for Independence, LLM, Université du Québec à Montréal.
Primary research materials
League of Nations, ‘La tribu Indien des Six Nations’, Dossier no. 28075. Doc. No. 28075, 29185, 29540, 30035, 30454, 30626, 31197, 31340,31608, 32700, 33556, 33687, 35296, 40890.
Canada, National Archives of Canada, PC, RG2 v1361, v2816, v1109; RG2-1 v1361/PC1629 990f
Indian Affairs, RG10; v1743/63-32, v1744/62-32; v1745/63-32; v2285; v2286; v2287; v3018/220.155; vol.3227/552,053, /552,253, /552,285; vol.3227/552,285 Reel C-11344 (Passports); vol.3228/561,591; vol.3229/571,571; vol.3231/582,103; v3931/32-32; v6809/470-2-3; v6810 file 20-2-3; v6810/470-2-3; v7154/479/3-10; v7930/32-32; v7931/32-32
RCMP, RG18; v3175/G383-1 (League of Nations); v3175/L516-1; v3180/O1318-8-1924; v3295, file HQ-1034-0-1; v3299, file HQ-1034-0-1; v3306, file HQ-1034-0-1; v3312, file HQ-1034-0-1.
External Affairs, RG25; G-1 v1330.
Mackenzie King Diaries, MG26 J13 fiche 61.
Canada, RCMP ‘O’ Div. Ref.20/12 H.Q. Ottawa file Q-400-0-1
The Netherlands, ARA a-DOSSIERS 1918-1940 INV. NO. 1521.
The United States, U.S. S. Con. Res. 76, 2 Dec. 1987.
An Act to Assist Returned Soldiers in Settling upon the Land and to Increase Agricultural Production. SC 1917 c 21.
British North America Act 1867, 30-31 Vict.c.3 (U.K.) (renamed the Constitution Act 1867 by the Constitution Act 1982, Schedule B to the Canada Act 1982 UK, 1982 c 11); Constitution Act, 1867 (UK) RSC 1970 Appendix II, No 5.
Indian Act, 1906 SC 15 Geo VI c 29, subsequently amended by 1-2 Ed VII, 1910 c28; 1-2 Geo V, 1911 c 14; 4-6 Geo V, 1914 c 35; 8-9 Geo V, 1918 c 26; 9-10 Geo V, 1919 c 56; 10-11 Geo V, 1920 c 50; 12-13 Geo V, 1922 c 26.
Edwards v AG Canada  AC 124 ; 3 WWR 479 ; 1 DLR 98 (PC).
Reference re Secession of Quebec,  2 SCR 217 SCC.
R v Marshall  3 SCR 456.
International Treaties and Agreements
Charter of the United Nations  TS Can No 7.
Covenant of the League of Nations, adopted 28 April, 1919, Treaty of Versailles.
Montevideo Convention on the Rights and Duties of States 165 LNTS 19.
Treaty between Canada and the United States of America for Securing the Preservation of the Halibut Fishery of the North Pacific Ocean, signed Washington, 2 March,1923, ratifications exchanged at Washington 21 Oct. 1921, Department of External Affairs, Treaties and Agreements Affecting Canada in force between His Majesty and the United States of America with subsidiary documents 1814-1925 (Ottawa: FA Acland, King’s Printer, 1927).