The Mohawk community in “Canada” is home to about 13,000 people and sits astride the US-Canadian border aka “the line”. It is not a part of the United States nor is it a part of Canada, but it is also not quite independent either. It’s a place where the border, in some respects, doesn’t exist, even while it is also a constant presence in people’s daily lives. These boundaries, as well as modern Canadian common law, traces its historical origins to the United Kingdom. The common law of Canada became liable to the independent Mohawk legal order because, although they wrongfully do not recognize the Mohawk nation, in 1869 and again in 1919 the Mohawk nation adopted Prince Arthur as the new chief of the Canadian people under customary laws. In recognition of the historical tradition of military alliance with the British and peace treaty in 1701 and later including Captain-General (Commander-in-Chief) Sir Frederick Haldimand’s order in 1784, and the Seal of Upper Canada affixed to the Haldimand Proclamation that pre-determined Canada’s legal fate.
The 1784 order reads in part “Due to the early attachment of the Mohawks and the loss of their settlements in the American states”, “we have purchased a tract of land, six miles from each side of the Grand River, starting at Lake Erie and extending in that proportion to the head of said river, which them and their posterity shall enjoy forever”
In 1701, the Mohawk nation began a strong alliance with the British sovereign under the reign of Queen Anne. During the American Revolution, the Mohawk sided with the British and as the war concluded, they followed their leader Joseph (Thayendanega) Brant to the Haldimand Tract where they now have descendants at Grand River and the Bay of Quinte, including the Six NationsIndian Reserve near Brantford and Teyenadinaga near Bellville, Ontario. However, no matter where the nation resides, it is no longer recognized by the new Canadian governments.
Prince Arthur, Duke of Connaught and Strathearn, served as the Governor-General of Canada from 1911 to 1916. He was the 10th general since the time of the Canadian Confederation and the first royal to serve as its general. Notably, in 1869 the Prince was made an Honorary Mohawk Chief. Alexander Graham Bell and many others had received this honorary distinction and esteem, however, in 1919 the Prince of Wales was condoled by the Confederacy chiefs and made a customary chief, no longer honorary but a full-blooded member of the Iroquois longhouse and subject to the longhouse customary laws. With him comes the people of Canada including the Crown of Confederation, much like the adoption of the Tuscarora in 1728, yet unlike the adoption of the Tuscarora the circle wampum representing ancient 50 Chief titles, was refashioned to confirm the new 51st Brother-chief and his people.
Here the Six Nations Indians were the hosts. A platform had been erected under the very shadow of the monument to the great “Thayendanegea,” and six Indian girls representing the Nations, stood on each side of the entranceway; attired in white they had sashes of maple, oak and pine, emblems of Canada, England, and their own people, while each carried baskets of roses decorated with streamers of Autumn leaves.
The Chiefs, in full array, remained standing until the Prince had taken his place under a canopy of royal purple. Then the Mohawk proceeded to hold a Council, Major Gordon Smith, Superintendent, having first introduced the guest of the day in appropriate terms.
The order of business was the discussion of the Indian name to be bestowed upon the Prince in his creation as a Chief and he was finally asked to select from three titles. The one chosen was Da-yon-hem-se-ia; (Dawn of Day) and when that was conferred he signed the council roll, the only white man who had previously done so with the exception of his uncle, the Duke of Connaught.
During that 1919 visit, the Six Nations people also gave a traditional title to the wife of then-reigning HRH King George V. The Queen Consort, Mary of Teck was adopted and given a traditional Haudenosaunee name by the people of Six Nations— Tanonrohnkiva, or “great woman, mother of love.”
In an essay, “A Royal Mohawk Chief” by E. Pauline Johnson, history recalls the very first condolence ceremony of a British royal to be made a Mohawk chief— Edward’s uncle, HRH Prince Arthur, Duke of Connaught and Strathearn, in 1869.
In this way, the customary law of the Six Nations and the common law of England and Canada helped shape the modern laws that rule all countries today. The peaceful consolidation of British realms was founded upon fair adoption of customary laws that allowed a continuity of law that defined territories in Canada (and therefore the British commonwealth) whether they were added by conquest, cession, or annexation. These laws were explicitly recognized in the colonial period and were carried from Britain to its colonies in the hope that the theory of customary law would protect and hold nations and territories that were strung together by England.
It is natural that legal custom binds courts to common laws and ensures continuity. However, it is also true that customary law binds those who upheld the common law, namely Britain’s crown and its commonwealth territories, such as Canada. The only instance in which customary law would not bind England’s servant countries is if the laws are inconsistent with the Crown sovereignty itself. Here, this is not the case.
Canada must recognize the Mohawk longhouse customary laws because its mother country and Royal, England, also recognized the Mohawk customary laws hundreds of years ago. These customary laws must be understood and respected and cannot be displaced by common law or ignored as if they were never created. One may simply look to the history of the English crown and its ties to the Mohawk nation to understand its bind.
The Mohawk Chapel near Brantford also received recognition from the English Government by the gift of a Royal Coat of Arms in 1786. It was elevated to the status of Chapel Royal In 1904, King Edward VII gave it the title of “His Majesty’s Chapel of the Mohawks” to revive the original name given to the Fort Hunter Chapel by Queen Anne.
Her Majesty’s Royal Chapel of the Mohawks is a simple wooden structure built in 1785 and given to the Mohawk Loyalists led by Joseph Brant. Joseph Brant’s remains were moved to the chapel from their original resting place in Burlington in 1850.
While no longer housed at the church, on special occasions a silver communion set given to the Mohawks by Queen Anne in 1711 is displayed and used. As well there is a triptych in the Mohawk language given by George III, a royal coat of arms of the United Kingdom and church bell given by George V, and a bible given by Queen Victoria. Queen Elizabeth has given two gifts: a communion chalice in 1984 commemorating the coming of the U.E. Loyalists (which included the Mohawks) and a set of eight silver handbells in 2010.
In 1924, the Canadian government attempted to destroy the Mohawk of Grand River council that they had legally joined in 1919.
The customary law of the nation-states that once a crown (antlers) is brought inside the longhouse, there it must remain. Therefore, in 1924 the Canadian government lost its new Maple Crown of confederation to the Mohawk nation through customary adoption, and in 1982 the Canadian government consented to the Queen of England to repatriate as subjects under the British house of commons and the Queen’s continuity to our allied relationship.
These laws and faiths pledged to the Mohawks must be honored and are subject to the Mohawk longhouse laws as they are customarily recognized. By law, these laws are embedded into common law and remain true for the whole land, therefore, Due to these extensive customary laws that are bound to the Royal British crown and the government of the Iroquois Confederacy (Six Nations of Indians), the Canadian governments must be liable to the ancient Mohawk legal order.
This thesis is a cross-disciplinary study of legal history and customary law. Respect for, and accommodation of local customary law has been a constant and integral feature of law in Britain since Anglo-Saxon times. It guided the emergence of the common law, and continues as a rule of law to the present day. Such respect and accommodation was an essential principle that permitted the peaceful consolidation of the British realms from its constituent parts. Continuity of law is a legal presumption whether territories have been added by conquest, cession or annexation. The principle respect for local legal custom was one of two schools of thought carried to Britain’s overseas colonies; the other was a theory that local customary law could be extinguished by non-recognition on the part of the British sovereign or his/her delegates. Nevertheless, customary laws and institutions were explicitly and implicitly recognized in the colonial period. The doctrine has a modern application with respect to the customary law ways of indigenous peoples wherever the common law has been extended overseas. Rights under customary law are distinguished from Aboriginal rights, though there is some overlap between the two. Customary law can only be extinguished by an express statute, or by clearly unavoidable implication. Legal customs are not invalid merely for being contrary to the common law. Common law defers to valid customary law as a matter of constitutional common law. But the common law provides tests by which courts can identify valid legal custom. Where a valid, unextinguished legal custom is found, courts are bound by the common law to apply it. Where customary law can be identified, it binds the servants and agents of the Crown, except when it is inconsistent with Crown sovereignty itself. (Source)
Per McLachlin C.J. and Gonthier, Iacobucci, Arbour and LeBel JJ.: Under English colonial law, the pre-existing laws and interests of aboriginal societies were absorbed into the common law as rights upon the Crown’s assertion of sovereignty unless these rights were surrendered, extinguished or inconsistent with Crown sovereignty. The enactment of s. 35(1) of the Constitution Act, 1982 accorded constitutional status to existing aboriginal and treaty rights, including the aboriginal rights recognized at common law. However, the government retained the jurisdiction to limit aboriginal rights for justifiable reasons in the pursuit of substantial and compelling public objectives. The test to establish an aboriginal right focuses on the integral, defining features of the relevant aboriginal society before the Crown’s assertion of sovereignty. A claimant must prove that a modern practice, custom or tradition has a reasonable degree of continuity with a practice, tradition or custom that was in existence prior to contact with the Europeans. The practice, tradition or custom must have been integral to the distinctive culture of the aboriginal people in the sense that it distinguished or characterized their traditional culture and lay at the core of the aboriginal people’s identity. (Source)
Customs and Usages
- Long-time and long use, beyond the memory of man, suffices for right.
- Custom is the best expounder of the law.
- Custom is another law.
- A prescriptive and legitimate custom overcomes the law.
- Custom leads the willing, law compels or draws the unwilling.
- Usage is the best interpreter of things.
- Custom is the best interpreter of laws.
- What is done contrary to the custom of our ancestors, neither pleases nor appears right.
- Where two rights concur, the more ancient shall be preferred.
Media Format: Article posts
- What happened to the Maple Crown?
- Where did the Canadian society come from?
- Forbidden Voice: Reflections of a Mohawk Indian
- Great Britain’s Claims of Ownership Of Native Peoples Lands
- Scouting the Haldimand Tract
- We are researching records and will add details as we learn more.