Monday, August 07, 2017

Yes, First Nations People Believed in Property Rights...

Everything was Owned by Somebody: Property Concepts of the Wendat, a 17th Century Iroquoian Indigenous Group

Mark Bourrie JD PhD

February 25, 2015

Let me entreat you, therefore, on the land now given you to begin to give every man a farm; let him enclose it, cultivate it, build a warm house on it, and when he dies, let it belong to his wife and children after him… When you have property, you will want laws and magistrates to protect your property and persons… you will find that our laws are good for that purpose… you will unite yourselves with us… form one people with us, and we shall all be Americans.
--Thomas Jefferson[1]  

The Wendat (Wyandot) are an indigenous Iroquoian[2] group now living in two communities: one near Quebec City, in a settlement founded in the mid-17th century; and on a reservation in Oklahoma, where the Wyandot settled after being forced by the United States government to move west of the Mississippi in the early 19th century. Before their dispersal in the mid 17th century, the Wendat lived on a peninsula jutting into the southeast corner of Georgian Bay, Lake Huron, close to where the Great Lakes lowlands borders the Canadian Shield. The Wendat were farmers who grew enough corn to feed themselves and people belonging to many of the neighbouring tribes that hunted on the rocky country to the north. The Wendat also travelled throughout northeastern North America to trade. After contact with Europeans, the Wendat became, for about forty years, the dominant indigenous group in the Quebec-based fur trade, until they were dispersed by the Iroquois in 1649-1650. The Wendat, composed of six First Nations in a federation, had developed property laws addressing issues of trade, land ownership, and personal property. They also created a system to protect community wealth, which was accumulated by public donation of profits from agriculture and trade.

I.                Respect for Property Rights of Owners of Trade Routes and Toll Stations
II.              Land Tenure
III.            Wendat Personal and Community Assets
IV.            Contemporary European views of Wendat property law

The Wendat, a 17th century farming community in what is now central Ontario created laws and community rules regulating private land used for cornfields, undeveloped communal land near settlements and the use of hunting territories. These laws were respected by members of the Wendat and neighbouring nations in times of peace, and were accepted by the French before colonizers were strong enough to challenge First Nation hegemony in the Great Lakes region. Still, concepts of terra nullius survive in Canadian political discourse. University of Calgary political scientist Tom Flanagan, who was also a mentor and staff policy advisor to former Prime Minister Stephen Harper, not only argued First Nations had no true sense of property and sovereignty, but also that their present reserve lands should be re-distributed in fee simple to aboriginal people. Flanagan argues this type of ownership, underpinning a free market economic system, is the most efficient way to create wealth.[3] In fact, the Wendat had developed property ownership and management systems that were not just wealth-creating, but also capable of efficiently distributing the profits of agriculture and trade to everyone in the community. At the same time, the Wendat rewarded entrepreneurial and hard-working people with community respect, social status and public notice of accomplishment. The Wendat needed no lessons in business or property law from Prof. Flanagan and followers of his libertarian economic theories. Every proprietary and control aspect of regional indigenous personal and communal land and personal property, including intellectual property and business assets, had clear usage rules in Wendat society. All of the land that eventually became Eastern Canada had individual or communal owners at the time of contact with Europeans. Therefore, even if they had validity anywhere at any time, terra nullius concepts cannot apply to this region and be used to undermine indigenous economic and political rights.
Because of their association with the dramatic destruction of the Huronia Jesuit mission in the 17th century, which resulted in the canonization of eight martyr saints of the Roman Catholic Church, and their pivotal role in the early fur trade, the Wendat – as Hurons – are probably the most written-about early contact-era Canadian First Nation. The published journals of Samuel de Champlain, Recollect priest Gabriel Sagard and the annual reports of the Jesuit missionaries in Wendat territory contain many descriptions of Wendat trade practices and civil life. Property ownership patterns of the Wendat have been analyzed in passing in three major anthropological studies: Elizabeth Tooker’s An Ethnography of the Huron Indians, published as a bulletin of the Smithsonian Institution in 1964; Bruce Trigger’s The Huron: Farmers of the North, a brief volume published in 1969[4] that was greatly expanded into The Children of Aataentsic: A History of the Huron People to 1660[5]; and Conrad Heidenreich’s Huronia, published in 1973.[6] The purpose of this paper is to integrate the observational material of the 17th century writers and the three modern anthropological studies into an assessment of Wendat property law and its effectiveness.

Part I: Respect for Property Rights of Owners of Trade Routes and Toll Stations

The Wendat had effective, although not complete, control over the shipping of furs from the upper Great Lakes to the French merchants in Quebec City from about 1608 until 1649. The French enterprise could not survive without Wendat political support of this trade and the vast amount of labour the Wendat and their allies provided as trappers and transporters. The geographic reach of Wendat trade is quite impressive. They and their allies drew furs from the Hudson’s Bay lowlands and the upper Great Lakes as far west as what is now Illinois, Wisconsin, Minnesota and northwestern Ontario and shipped them by canoe over 1000 kilometres to Quebec, returning with thousands of kilograms of trade goods, including heavy metal products like axes and copper cauldrons.
They also used a canoe route that took them along the Ottawa River from the Upper Ottawa Valley through a series of lakes in the Canadian Shield to Lake St. Jean, then to the Saguenay River Valley and the lower St. Lawrence.[7] With their allies the Algonkians and Ottawa, the Wendat traded into the upper Great Lakes and even maintained the trade in native copper, which was mined along the shore of Lake Superior.[8]
At the same time, the Wendat conducted a small but important trade with the Andaste, who lived on Chesapeake Bay, one that existed for a long time. It was important for the supply of shells that were made into wampum beads and other valuable luxury items. Travel between the homelands of these two First Nations took about two months, though it would have required less time if travellers had not needed to avoid their enemy, the Iroquois, who controlled territory between them.[9]
Individual Wendat traders could not simply set out on their own and conduct business with anyone who seemed open to bargaining. A trade route was owned by the Wendat who explored it and established the first commercial contacts with foreign trading partners along the way. This pioneer and his heirs were called “the master of the route” who could decide who used it and how much trade was allowed, and who expected to be paid by anyone who was given permission to use it.  Only his children, the members of his lineage and possibly his clan segment could use this route without seeking permission and, usually, paying.[10] Encroachment was strongly discouraged. If someone was discovered in the act of trading without permission, he was treated as a thief and might barely get away with his life. If he managed to get back to the village undetected, complaints would result but no prosecution would ensue.[11]
Chiefs tried to limit the number of traders, both to control competition and to maintain enough young men around the village in the summer that enemies would not be tempted to attack. This was not always easy. In 1637, the only way the chiefs could get young men to comply was by creating and spreading a rumour that the Iroquois were planning an attack.[12]
While the Wendat were at peace with tribes to the west and southwest, the Neutral and Petun, they did not allow these people to cross their territory and effectively prevented them from being important direct participants in trade with the French.[13]
The “master of the route” system was very efficient. It stimulated exploration and diplomacy by individual Wendats, backed by their clans and tribes. All potential trade partners were likely to have been contacted. At the same time, it gave the Wendats monopoly control over important aspects of trade volume, which the Wendat could use to control prices.
The Arendaronnon, the easternmost of the five First Nations in the Wendat confederacy, pioneered the Quebec trade route. Prior to the opening of this route, several chiefs representing the Arendaronnon visited Quebec City, arranged a secret meeting with the French and gave Champlain four wampum belts along with fifty beaver pelts to entice him to visit them in their country. Probably because they could not handle the volume of trade, and to improve their status in the confederacy (in which they were relative newcomers), the Arendaronnon quickly decided to share it with the all the other Wendats.[14]
The trading system was backed by the entire tribe, who stood collectively behind each trader.[15] This included ensuring the safety of individual traders, since harming or killing a trader could easily touch off a blood feud between Wendat tribes and clans and war with foreigners.[16]
All of the Great Lakes region agricultural tribes valued French metal goods, especially axes – needed for forest clearing, probably the most onerous work done by men, as well as for weapons – knives, copper cooking pots, metal arrow and spear points. They also desired French cloth, blankets and glass beads that replaced items that indigenous women spent many hours to make. (The French, unlike the English, did not trade liquor to indigenous people at this time, and rarely parted with guns. The Dutch, who had trading posts through the Hudson River Valley, did trade guns with the Iroquois, probably tapping into the vast number of firearms in circulation in Europe during the ebb and flow of the Thirty Years War).[17] Demand for these items vastly increased the importance of trade in the Great Lakes-St. Lawrence region. Indigenous trade law held up well under the pressure of a rapidly-expanding and hugely profitable Post-Contact trade.

The Kitchissippirini[18] Tolls
Tribes that were normally nomadic hunters within their indigenous homelands sometimes set up tolling stations in their territory at geographic choke points on trade routes.[19] The Kitchissippirini, an Algonquin band, lived on Allumette Island, near the present community of Pembroke, and operated a tolling station on nearby Morisson Island. Their small band was strategically located at the head of the Muskrat Lake portage route around a series of long, powerful rapids on the Ottawa River near what is now the town of Pembroke. The Kitchissippirini collected tolls on traders that passed by on what was the main canoe route from the St. Lawrence Valley to the Upper Great Lakes.[20] Their rights were scrupulously respected by all traders using the river, even though the Kitchissipperini were militarily weaker that many of the tribes whose traders were obliged to pay the tolls. 
In the first half of the 17th century, the French dealt with three chiefs named Tessouat.[21] The name was attached to the office.[22] As successive headmen of the Kitchissippirini, the Tessouats were very protective of their tolling business and of the trade they conducted with people living further inland. Tessouat had, early in his relationship with the French, promised to take Champlain north to the sea (James Bay). In 1611-1612, Champlain given Tessoaut a teenage French boy, Nicholas de Vignua, who later told Champlain he had been taken to the sea and had seen a wrecked English boat.[23] Champlain travelled up the Ottawa in 1613, hoping to be taken to this sea, but Tessouat convinced Champlain the boy was lying and refused to let Champlain travel farther up the Ottawa.[24] Champlain marooned Vignau on the Ottawa River, and he disappears from history. Vignau may well have made the trip, or heard details of the route from Kitchissippirini or their allies who had seen the English boat.[25]  In exercising his proprietary rights to the river, and to the geographic knowledge of inland trade routes, Tessouat was protecting his lucrative tolling business. This did not prevent Champlain from sending another boy, Jean Niccolet, to live with the Kitchissippirini from 1618-1620.[26]  
Although they were far stronger militarily, the Wendat would not force their way past Morisson Island.[27] This was despite the fact that everyone, both Wendat and French, complained of the high amount demanded by Tessouat.[28] Heidenreich believed the “Huron (Wendat) observation of these rules, even in the case of weaker allies, was probably prompted by a feeling of self-preservation. If they broke the rules other could do the same, leading to a collapse of the intricate system of alliances and a termination of trade.”[29]

Part II: Land Tenure

Wendat Land Ownership
Modern writers and critics of Canada’s First Nations policy, which is predicated on band ownership of land, rather than the holding of title by individuals in fee simple, tend to look at modern and historic Indigenous property law through a lens that would have been unfamiliar to almost all people – First Nations and European – in the 17th century. The French, both in France and in New France, and most English farmers, rented land or held it through feudal obligations. As well, communal land – “the commons” – still existed in England, although common land was under steady pressure of enclosure by members of the aristocracy and landed gentry.
The Iroquoians had a system of mixed communal and private ownership, as did feudal France and England. In those European countries, most land was owned by aristocrats who rented land to peasants, who then enjoyed a limited amount of rights to the land. Peasants in England and some other European counties also had access to “the commons”, farming and grazing land that belonged to the community. “Enclosure” of these common lands by local gentry and aristocrats was condemned Thomas More in Utopia and were a constant cause of rural unrest in the 16th and 17th centuries. The Iroquoians, on the other hand, parcelled out common land to individual farmers who would actually work the land. The Iroquois also had large communal fields farmed by groups of women managed by an elected matron. Individuals could farm their own plot of land, and work with others in communal fields. If they did not work with the community, they were not entitled to share in the clan or village’s store of corn unless they were unexpectedly in dire straits.[30] Nothing in the surviving historical record shows the Wendat organized any of their farming this way.
Among the Wendat, private land ownership was strictly tied to land use. Until land was used, it was owned by the community. At that point, a tenancy and a trust between the community and the farmer arose that gave the farmer control over the use of the land and its produce until she stopped farming the field. This usually occurred within about a decade, as corn farming depletes soil nutrients very quickly, and the Wendat did not use fertilizers.[31]
French visitors to the Wendat country, coming from a nation where ownership of land was a defining factor in a person’s socio-economic class, took great interest in the way the Wendat dealt with land property rights. Fr. Sagard noted forests, meadows and uncleared lands were common property. Anyone could clear and work as much land as they were willing and able to cultivate “and this cleared land remains in his possession for as many years as he continues to cultivate and make use of it. After it is altogether abandoned by its owner then anyone who wishes uses it, but not otherwise.”[32]
While the men did the bulk of the work to remove trees and brush from the land – tough work in old-growth forests using stone axes – the land was owned by the women who did all the rest of the farm labour.[33] Likely there was some kind of community management of field allocation, since the clearing work was done by teams of men organized from individual longhouses (homes of extended matrilineal families) and at the village level.  
This type of land tenure served two purposes. The rules surrounding personal holdings prevented individuals from amassing and holding land that was not producing crops, thereby ensuring the private plots of land were fully cultivated by their actual owners, who either maximized their production or risked losing the land. As well, reversion prevented the amassing of acreage by a landed class. Wealth and status did not accrue from the holding of land, but by the creation of surpluses that could be traded or ritually given away in a society that placed a very high value on public generosity and despised miserliness. Sagard noted: “Every man taxes himself freely with what he can pay and without any compulsion gives of his means according to his convenience and goodwill.”[34] In a sense, therefore, it was necessary for people and families to own their own fields and produce the surplus necessary for gift-giving in order to gain public standing. Besides prowess in hunting, fishing and war, sharing an agricultural surplus was the only means of achieving personal standing in a community, either by giving the surplus away or by trading it with foreigners for other products that could be redistributed among the Wendat. As Heidenreich noted: “Such a system would be difficult to envision if land was owned and operated communally and the proceeds shared directly. It is possible therefore to reconcile individual ownership of land and feelings of communal responsibility. As a matter of fact, individual ownership of land seems to be necessary in order to exercise communal responsibility as the Huron (Wendat) saw it and reap the benefits of generosity.”[35]
The Wendat had to maximize the yields from their land because of its scarcity. In the two centuries before European contact, small farming communities probably made up of an extended family and consisting of one or two longhouses and a few acres of fields had been spread out through south-central Ontario between Georgian Bay, the Niagara Escarpment, the Canadian Shield and Lake Ontario. In the early 15th century, these small groups began to consolidate into larger villages and these communities moved northward. By the beginning of the 17th century, they had withdrawn to the Penetanguishene Peninsula into a territory of just 340 square miles.[36] Before epidemics of diseases carried by Europeans and their farm animals arrived in the Wendat country, about 20,000 to 30,000[37] people lived on this peninsula.  Corn farming was essential to their survival: they relied almost exclusively on corn for their carbohydrates, which they supplemented with limited amounts of fish and game meat.[38] The Wendat also cultivated tons of surplus corn that was traded with the nomadic tribes of the Canadian Shield, and with Iroquoian neighbours whose crops had, from time to time, failed.[39]
Not all of the country was suitable for the type of wooden hoe cultivation practiced by the Wendat.  Only about 66 per cent, or 224 square miles, of the Penetanguishene Peninsula was covered with the sandy loam soils that the Wendat needed.[40] Other factors helped to limit the amount of farmland available to the Wendat. Some glacial moraine hills in the region were so well-drained that they dried out every summer and could not sustain corn. The gravel uplands were also poor locations for Wendat villages, because they lacked the year-round springs and streams needed for the amount of drinking water required to support towns ranging in population from a few hundred to more than 3,000 people. Springs do rise below these hills, and the Wendat usually built their communities at these springs or on the streams that flowed from them.
During the early 17th century, when the Wendat country was threatened by Iroquois raids, the Wendat looked for flat, well-drained, defensible village building sites, usually on ravines.[41] Again, this reduced the number of potential village sites and hence the amount of farmland within easy walking distance of settlements. In all, as Heidenreich notes, the Wendat were hard-pressed to find enough farmland within their territory to cultivate.
Wendat land needs for a population of 20,000 – the low end of contemporary population estimates -- was about 50,000 acres of land in active cultivation. “Rather than being underpopulated, it is much more likely that the area (the Wendat country) was approaching a population maximum.”[42] For example, the Attingneenoungnahac had a tribal area of 10,400 acres of which 9,976 were sandy loams. The Jesuits estimated their population to be 3,800 people, requiring a minimum of 7776 acres of farmland, or 78 per cent of their total land resources.[43]
Jesuits stated land remained fertile for 12 years at the most, but typically a field was good for about eight to twelve years.[44] Soils in the Wendat country were not very fertile to start with, being low in organics and phosphorus.  Corn grows poorly on podzol soils (sandy soil that underlay pine forests) because they are too acidic. Therefore, land near the Georgian Bay shore covered by white pine groves further reduced the amount of land available to the Wendat.[45] It took about fifty years for land to regenerate from slash-and-burn agriculture.[46] For much of that time, the land was, according to French visitors, “meadows”, but there was no North American grazing animal suited to domesticaton.
Wendat did not derive direct socio-economic status from their land holdings per se, but they did earn community respect by contributing large amounts of corn, along with fish, furs, wampum collars, exotic luxury items like copper, stone pipes, fancy shells and other valuable objects to the longhouse, clan, village and tribe stores of wealth. Except for the corn and the fish, almost all goods valued by the Wendat were profits from trade. Even many of the furs used to acquire European goods came indirectly from Wendat agriculture, since corn was traded to nomadic hunting tribes on the Canadian Shield, who were thus able to ensure they would have food for the winter. Maximizing production, especially in an area where there was an actual land shortage, required a mixture of public and private land ownership and a culture that demanded conspicuous public generosity.[47]

Hunting Territory
Many recent, as well as older, academic and popular studies of indigenous people in northeastern North America contain maps that show the various First Nations living in isolated pockets, surrounded by land that was not settled.[48] This gives to readers a very strong suggestion that the land outside these tribal homelands was terra nullius. In fact, the record suggests that all of the land of the Great Lakes basin was owned. Anthropologist Anthony Wallace, who described hunting territory ownership in the Great Lakes region[49] notes this ownership was exclusive, i.e. that use, control and claim were asserted, and this claim of exclusivity was backed by the threat of war. None of the hunting territories were deliberately shared with other First Nations.  Wallace examined the written historical record and interviewed indigenous historians and could find no land in the modern U.S. Northeast and eastern Canada that was not owned by an indigenous group as either a settled area or hunting territory. First Nations, he found, were quite careful about delineating the boundaries of the land they claimed. “Hunting grounds were as definitely a part of tribal territory as village areas,” he noted.[50] One Cayuga (Iroquois) chief, speaking at a land cession council in 1789, said: “Our ancestors had certain Marks, each Tribe had a certain Boundary or Line they called their own, of the Land the Great Spirit gave them.”[51] A Wendat chief described his people’s hunting territory in Ohio in 1785: “It begins at the Little Miami and runs from thence across to the Great Miami. Further than this our line does not extend.”[52] Members of tribes left markers and signs on trees and rocks, similar to the ones posted by European traders and explorers who claimed the land on behalf of their respective governments.

Part IV:  Wendat Personal and Community Assets
Individual Wealth
Individual Wendat men were expected to take part in community festivals and rituals, along with gambling[53] and publicly give gifts. A person’s social status depended on meeting these obligations. French trade goods were the most conspicuous items of wealth. The steady drain of these goods from the Wendat through trade with their neighbours and by ossuary burial (along with breakage, as the trade goods were of breathtakingly poor quality. Wrought-iron axe heads, made of folded strips of soft metal, easily split along their seams, and thin copper pots wore out quickly) caused a constant demand for goods that could only be replaced by trade. Prior to the arrival of the French, Wendat men probably had acquired wealth and status by hunting and through warfare, and by craft-making.[54] The Wendat laws regarding individual property were similar those of land ownership. Items that were clearly the property of an individual could not be taken or used without permission. Taking another’s goods was regarded as theft and punished by the victim`s extended family stripping the longhouse where the thief lived of all portable items. Things left lying around or abandoned, however, reverted to the collective and could be taken by anyone without punishment. 

Women’s Property in Divorce Settlements
In the first fifty years of settlement in New France, very few women were sent from metropolitan France to the colony. The French government did not encourage and had no strategic reasons to foster large-scale agricultural settlement on land it claimed in northeastern North America, and, in the early decades, did not encourage industry or the growth of towns. Men deployed to the colony engaged in relationships with First Nations women, many of which resulted in the birth of children. These relationships violated Roman Catholic canon law[55] and the law of the Iroquoian peoples, since, in the practices of both peoples, pregnancy carried with it the expectation that the couple would marry and the man would share in the material support of the child. During negotiations with Champlain and French clergy, First Nations leaders voiced their frustration with the lack of respect French traders showed to their laws and rituals surrounding marriage. When Jesuit priests expressed a desire to see men from the French trading companies marry Wendat women, one Wendat leader observed the French already took wives “in whatsoever way they had desired” without permission from the Wendat community.[56] This was a serious issue for the Wendat, since, as noted by Fr. Lafitau, most Wendat property belonged to women. Since Wendat society was matrilineal, the woman’s clan had obligations to the husband and children of the marriage, and they stood to inherit from their Wendat relatives. Divorce was relatively simple in Wendat society. The division of property was much less important in a marriage breakdown between two Wendat, but in a situation in which a French husband, coming from a patriarchal society in which property was vested in men and their male heirs, the Wendat had obvious concern about the potential drain of wealth. In the end, the negotiations opened by the Wendat failed, mainly because the French would not recognize any type of divorce as legal in civil or canon law.[57]

The Proceeds of Trade
Once the profits of trade were in the Wendat country, bartering stopped. Trade goods from the French and surrounding tribes were distributed quite freely, but purposefully. They were given away by individuals and from community treasuries at weddings, various kinds of feasts including curing rituals, and at festivals, all of which drew individual Wendats together as a collection of urban communities, members of a relatively new confederacy that awarded status to those who fulfilled social responsibilities. The wealth could be used as reparations to settle disputes between groups in the Wendat country and between the Wendat confederacy and other First Nations. Exotic goods were a large part of the offerings that went into the ossuaries where dead Wendats were taken down from scaffolds and re-interred with hundreds of other tribe members in a large pit, a ceremony that occurred each time a village moved. The bones were mingled in a “kettle” along with valuable tools, weapons, pipes and other valuable items. Other items were given to the organizers of this Feast of the Dead, as well as celebrants from other communities.

Collective wealth  
Each longhouse (which usually housed a matrilineal extended family), clan and tribe had a store of wealth they could draw on to buy food from northern nomadic tribes in hard times, settle disputes by giving reparations, and, at the tribal level, engage in diplomacy.[58] Champlain called wampum the gold of the country. People gave what they could afford to this treasury, which was controlled by a chief. [59] There were several reasons for this. No individual or family could ever afford the massive reparations demanded as compensation for a major crime like wounding and murder, and the governing council of the Wendat required large amounts of capital to cement trade and to engage in diplomacy.[60] The treasuries held wampum belts, quill and feather work, furs (such as beaver robes, which appear to have been the standard denomination used in measurement for large payments), and barrels of surplus corn. The existence and use of this amassed wealth kept blood feuds to a minimum, a fact that was vital to people living in such close quarters.
As Lafitau noted, women were in charge of this wealth.[61] Unlike men, women rarely left their village for long periods of time and already controlled most of the assets connected with village life, so it seems reasonable that they assumed the role of bankers. Women were in charge of storing and preserving the community’s food, including the surpluses used in trade – which, in themselves, represented an important store of wealth that was essential to Wendat trade with the hunting communities that supplied the Wendats with meat, furs and luxury goods. 

Part IV: Contemporary European views of Wendat property law

America, separated from Europe by a wide ocean, was inhabited  by a distinct people, divided into separate nations, independent of each other and the rest of the world, having institutions of their own, and governing themselves by their own laws. It is difficult to comprehend... that the discovery of either by the other should give the discoverer rights in the country discovered which annulled the previous rights of its ancient possessors.

Chief Justice John Marshall,
United States Supreme Court
Worcester v. Georgia (1832)[62]

While French writers of the first half of the 17th century were extremely critical of Wendat religious practices, they showed no real hostility toward Wendat property law or dispute resolution. The attitudes of the French may be grounded in simple economics: the Wendat kept trade flowing to the French post at Quebec and the French regime was outright hostile to any French settlement outside the St. Lawrence Valley by people not connected to, and licensed to participate in, the beaver fur trade. This does not necessarily mean the French would have treated First Nations differently if they had pursued the policies of the British, who, after the War of 1812, opened the former Wendat territory to settlement by farmers holding land in fee simple.[63] French-Wendat dealings over land and sovereignty are somewhat confusing and inconsistent. Historian Cornelius Janaen noted:
Like the English, the French did not admit legally that the Amerindians had ‘sovereign rights’ in the land or that they possessed ‘absolute ownership.’ Although the French wrote about Amerindian kingdoms and made kings of chiefs and priest of sachems, they never recognized the native tribes as sovereign powers and they never accorded them any diplomatic recognition because they did not belong to the accepted ‘family of nations.’ The English, on the other hand, did recognize aboriginal ‘possessary rights’ and either bought tracts of land or negotiated its formal cession for settlement and agricultural development.”[64]
As Jaenen says, the historiography of French policy toward First nations property rights is “neither extensive nor particularly illuminating.” He notes current federal aboriginal policy, especially in Quebec, rests on the idea that the French never recognized aboriginal property rights, nor did they give serious consideration to concepts of guardianship or ancestral territorial rights. Authors like Robert Surtees asserted “since the French had never recognized aboriginal title to land” they had never bothered to enter into negotiations to transfer or acquire aboriginal sovereignty or land rights. Bruce Trigger and Olive Dickason concluded the French relied on “right of discovery,” which runs part and parcel with terra nullius, as a basis for asserting sovereignty, including land ownership, over First Nations. Peter Cumming and Neil Mickenburg, in Native Rights in Canada, also claim the “non- recognition by the French of any aboriginal proprietary interest in the soil.”[65]
Most of these writers came to their conclusions because the French simply did not engage in land negotiations in the same manner as the British in the Thirteen Colonies and in Canada after the issuance of the Royal Proclamation of 1763. These writers have missed two important factors in French-First Nations relations. First, unlike the British, the colonial administration of New France and the court of Versailles were not trying to open tracts of land for settlement. While trade posts were scattered throughout the Great Lakes basin, the Mississippi Valley, and the Canadian Shield, farming was confined to a narrow strip in the lower St. Lawrence Valley, an area that was, due to war and European diseases for which First Nations people in the region had few natural defences, almost uninhabited when French settlement began.[66] This was a depopulation pattern that would be followed by many peoples in northeast North America.[67]
In contrast to the British settlement pattern of displacing First Nations people, acquiring their land through one-sided treaties or by force, clearing and farming it, the French deliberately kept the physical footprint of these trading posts quite small, a fact they were quick to point out to indigenous leaders.
Secondly, French policy is not at all clear and simple. What does emerge from the historical record is a practice among the French to respect aboriginal property rights and sovereignty when dealing with First Nations from a position of weakness. In their dealings with the Wendats, who had the economic and military power to cripple or destroy the tiny French colony in the early and mid-16th century, the French recognized Wendat trade law, paid tolls to First Nations to pass through their land. In the case of the Jesuit missionaries working in Wendat territory, purchased at least one piece of land, the site of their mission headquarters of Ste. Marie among the Hurons.[68]
The treaties negotiated between the French and the First Nations in New France dealt with guaranteeing trade and accepting what the French viewed as sovereignty of the French crown over Native people, rather than as land cession agreements. In terms of actual effect, these treaties solemnized military alliances and trading relationships. They did not give the French government the right to tax Native people nor the power to grant land in First Nations territories. The French appear to have bargained only for what they needed: safety from First Nations military attacks; access to resources, almost exclusively furs; and assurances from the First Nations that they would not enter into similar agreements with any other European government or trading company.[69] The French asserted claims of sovereign power over First Nations only when they had the power to do so, such as after the crushing defeats inflicted on the Iroquois by regular French Army troops under de Tracy.[70] (Even then, the Iroquois resumed warfare against the French after the crisis was over and remained independent until the end of the American Revolutionary War.)
The Jesuits who accompanied the French were bound in their dealings with First Nations by ecclesiastical law. In the papal bull Sublimis deus sic dilexit, Paul III ordered that First Nations people were “not to be treated as dumb brutes created for our service… [but] as true men capable of understanding the Catholic faith [who are] by no means to be deprived of their liberty or possession of their property…”[71] This bull was confirmed by Urban VIII in 1637. These bulls may not have seemed to have applied to Jesuit seigneurial holdings in the St. Lawrence Valley, a region the French claimed was terra nullius. The Jesuits could not make that claim in the settled regions of the interior. The Jesuits, like the Dutch in the Mohawk territory, bargained from a position of weakness, but, nonetheless, negotiations for the one piece of land in the Wendat country that was settled by the Jesuits, the site of the mission of Ste. Marie, look remarkably familiar to modern property buyers.
During the time period covered by this paper, the French traders (effectively, the leaders of the settlement at Quebec, since it was not re-organized under direct royal government until 1660, after the Wendat country had been destroyed) recognized, or, at the very least, did not feel capable of challenging or attacking Wendat property rights. The Wendat did not survive in their homeland long enough to deal with colonial administrations seeking to acquire their farmland or change their system of land tenure. After the destruction of their homeland in 1650, some survivors settled near Quebec City. A second group wandered the Great Lakes region and eventually settled south of Detroit. These Wendats, now called Wyandots, struggled to keep land in collective ownership. In 1817, Lewis Cass,[72] the governor of the Michigan Territory and superintendent of Indian affairs in what was then the U.S. Northwest, on instructions from the United States government, offered the Wyandot of northwest Ohio land patented in fee simple. The land grands were to be patented in the names of the tribal chiefs, who, in turn, could grant land in fee simple to members of the indigenous community, as long as the President of the United States signed off on the grant. Most individual indigenous people in the region opposed the plan, hoping to hold onto their traditional communal land-holding system. Cass resorted to bribing the chiefs to push through the deal, but in the end the administration of president Monroe decided to coerce the First Nations people of the region to relocate on the west side of the Mississippi, where they were eventually forced on to a reservation in Oklahoma.[73]   

The Wendat lived communally and held most of their land in the name of their First Nation. They realized the value of real property, personal property and business assets such as the use of trade routes and relationships with their trading partners. The Wendat had rules that allowed for both the individual control of land and its communal ownership. They were willing to wage war to maintain control of all of their land and against anyone who broke the rules of trade. Every piece of property, from individual belongings to large hunting areas, had a rule regarding ownership and control. These rules, especially regarding trade and tolls, were known and respected by the indigenous people of Eastern North America and were followed by French traders and missionaries in the years immediately following European-First Nation contact. While some indigenous law of the region may have been lost in the maelstrom that followed this contact, the rules of Wendat property law have survived in the records of the first Europeans to visit the region. They show a level of sophistication that shows serious thought had been applied to property issues by Wendat lawmakers. Wendat property law worked to maximize the profits of the community while ensuring all members of the community access to tribal resources gained by agriculture and trade. At the same time, it allowed creative and ambitious Wendat to take leadership roles in agriculture and business, and to assert a higher status through ritualistic gift-giving of the profits of farming and trade. The historic record, despite whatever distortions may have entered it through Eurocentric reporting, shows the Wendat asserted complete control over their property, and that none of it, including land, can be seriously considered terra nullius. As well, it belies the myth that one system – a free market, with fee simple, individual ownership of land as an important core principle – was, and is, the best use of the land held by indigenous people. The Wendat developed a land use and trade system that worked well for them, only to see it destroyed as a consequence of wars and epidemics arising from exposure to a society in which wealth was controlled by a small elite and many farmers and urban dwellers lacked the food security and collective social support available to all of the Wendat.

[1] Thomas Jefferson, The Writings of Thomas Jefferson, Library Edition. Washington: Smithsonian Institution 1903-1904, XVI, at 451-452, quoted in Robert W. McCluggage, “The Senate and Indian Land Titles, 1800-1825, ”Western Historical Quarterly (1970) 1:4, at 415-416.
[2] The terms “Iroquoian” and “Iroquois” can be quite confusing. Iroquoian people shared a similar language, culture and economy, the latter based on large-scale slash and burn agriculture. Their territory ranged from what is now Southern Ontario through upstate New York, eastern Ohio and parts of Pennsylvania. Iroquois denotes a federation of five (later six) First Nations living in clusters of settlements, mainly south of Lake Ontario. In older literature, the Wendat are called “Huron,” a name of obscure and unclear French origin not used by the Wendat themselves.
[3] See especially Tom Flanagan, First People, Second Thoughts (Second Edition). (Montreal: McGill University-Queens Press, 2008). Flanagan was writing in reaction to the report of the Royal Commission on Aboriginal Peoples released in 1996.

[4] New York by Holt: Reinhart and Winston.
[5] Montreal: McGill-Queen's University Press.
[6] Toronto: McClelland and Stewart.
[7] H.P. Biggar (ed), The Works of Samuel Champlain (Toronto: Champlain Society, 1922) Vol. 2 at 166.
[8] Champlain, supra note 7 Vol. 2 at 105. While on a visit to the upper Ottawa River, Champlain was shown “a piece of copper about a foot long which was very fine and pure.” An Algonquin chief, who owned the piece of metal, told Champlain he had mined it himself. Unlike the Spanish, who ruthlessly exploited the precious metal resources of the areas under their control, the French showed a surprising lack of interest in prospecting and mining. They did not open any of the Indigenous copper mines on the south shore of Lake Superior, which turned out to be highly profitable in the 19th century. The French did not find any of the rich gold and silver deposits of Northern Ontario or exploit the alluvial gold later found in the Eastern Townships of Quebec and in some rivers in the southeastern Canadian Shield. From about 4000BPE to 1000 BPE, indigenous people mined tons of pure copper from the southern Lake Superior region. Knives, axes, spear points, arrowheads and jewelry was made from this copper. There is no accessible tin in Eastern North America to make this copper into bronze. For a description of this mining economy, see Robert E. Ritzenthaler, Kouba Site: Paleo-Indians In Wisconsin Old Copper Culture. Wisconsin Archeologist (1966) 47:4 at 171-187.
[9] Champlain supra note 7 Vol. 3 at 54; Vol. 3 at 213-226; Thwaites, Rueben (ed.), The Jesuit Relations and Allied Documents (Cleveland: Burrough Bros. 1901) Vol. 33 at 129 (JR). Trader and interpreter Etienne Brule tried to make the trip in the 1630s, was captured by people living between the Wendat and Andaste, and barely escaped with his life. Champlain, supra Vol. 3 at 215.
[10] “The children share the rights of their parents in this respect, as do those who share the same name.” JR supra Vol. 10 at 223-225, quoted in Conrad Heidenreich Huronia (Toronto: McClelland & Stewart, 1973) at 222. (Heidenreich). 
[11] JR, supra note 9  Vol. 10 at:225; Heidenreich, supra note 10 at 222.
[12] Trigger supra note 3 at 182
[13] JR, supra note 9 Vol. 21 at 177 and at 203-205.
[14] JR, supra note 9 Vol. 20 at 19.
[15] JR supra note 9 Vol. 21 at 177 and 203-205.; Heidenreich supra note 10 at 223.
[16] Heidenreich supra note 10 at 221.
[17] Similar struggles for access to European trade goods occurred in West Africa, where the Asante were able to organize themselves into a confederacy remarkably similar to that of the Wendat and Iroquois to intimidate and crush their competitors. Historical and archaeological evidence suggests the decision to form confederacies in the Great Lakes-St. Lawrence basin was fortuitous, as the Wendat and Iroquois confederacies began taking shape in the 1450s. For a comparison of the political and military adaptions made in the wake of colonization, see Kit. W. Wesler, “Trade Politics and Native Polities in Iroquois and Asante. Comparative Studies in Society and History, (1983) 24: 4 at 641-660.
[18] There are many ways to spell this First Nation’s name, which survives today in geographic place names in the Ottawa Valley in various forms.
[19] This section examines the Kitchissippirini toll operation on the Ottawa River. The Montagnais of the lower St. Lawrence River also collected tolls. See JR, supra note 9 Vol. 8 at 41, Vol. 12 at 187-189.  
[20] Champlain, supra note 7 Vol. 2 at 21, Vol. 2 at 285, Vol. 5 at 103.
[21] Champlain appears to have met Tessouat for the first time at Tadoussac in 1603. Champlain, supra note 7 Vol. 1 at 103, and at 107-109.
[22] James F. Pendergast, “The Ottawa River Algonquin Band in a St. Lawrence Iroquoian Context.” Canadian Journal of Archaeology, (1999) 23:1/2, at p. 69.
[23] Presumably, this boat belonged to Henry Hudson and members of his crew, who had been marooned after Hudson’s crew mutinied in James Bay in 1611. Inuit told similar stories of the destruction of Sir John Franklin’s expedition, which was lost in the high arctic in the 19th century. The Inuit stories were later borne out by archaeological evidence, including the finding of the HMS Erebus in 2014.
[24] Champlain supra note 7 Vol. 2 at 289. It was on this trip that Champlain supposedly lost an astrolabe found in the 1860s near the village of Cobden. The site is on the portage leading from the Ottawa River to Tessouat’s village. There is some serious doubt about Champlain’s ownership of the astrolabe and six small silver cups supposedly found with it. Champlain does not describe losing the astrolabe, and French travellers, including the Jesuits, used the route later. The fact that these valuable objects were found very close to Tessouat’s toll operation raises the possibility they were cached by someone to avoid being taken by the Kitchississippirini. See Douglas Hunter, Lost and Found in Ontario: The Case of Champlain’s Swords(s). Web page of the Champlain Society. Online:
[25] The canoe route from the Ottawa River to James Bay is actually quite simple and fairly easy to traverse. A short portage at the drains into James Bay and canoe can navigate it easily. It is almost identical to the route Vignau described in an affidavit that Champlain compelled him to swear in 1615.
[26] Sending French boys and young men to live with First Nations was beneficial to both sides. The young men returned fluent in indigenous languages, making themselves extremely valuable to the fur trading companies. The First Nations were able to learn about the French, and kept these young men as signs of trust, and, if need be, as hostages.
[27] JR, supra note 9 Vol. 9 at 75.
[28] JR, supra note 9 Vol. 10 at 77.
[29] Heidenreich, supra note 10 at 222.
[30] William Fenton (ed), Arthur C. Parker, Parker on the Iroquois (Syracuse, NY: Syracuse University Press, 1968) at 29. (Parker)
[31] Some texts and general interest books say the Wendat and Iroquois fertilized their corn, bean, and squash hills with fish. This claim has not been backed up by the historical record and makes very little sense, since, in effect, the Iroquoians would be trading a high-protein and fairly scarce food resource (the fish) for a few ears of corn, some beans and perhaps a squash.
[32] Heidenreich, supra note 10 at 168.
[33]Parker, supra note 30 at 90.
[34] George Wrong (ed), Pierre Sagard, Long Journey to the Country of the Huron (Toronto: Champlain Society, 1939) at 267. 
[35] Heidenreich, supra note 10 at 170-171
[36] Ibid, at 52.
[37] The Jesuits surveyed the country and calculated a population of about 30,000 in the 1630s. Writers on the 1970s and 1980s calculated the population to have been around 20,000. The looting of archaeological sites, their quiet destruction by plowing and development, and the lack of a published comprehensive site survey make population calculation difficult. However, excluding the town of Midland, the modern year-round population of this territory is less today than the low estimates of writers like Heidenreich and Bruce Trigger. Modern theorists believe indigenous populations were much higher before contact with Europeans than 20th century historians believed. Champlain called the region “a land of meadows” and the European authors of the period wrote of constantly meeting people on their river and overland travels.
[38] This was noticed by Champlain, the Recollet missionary Sagard and the Jesuits in the first half of the 17th century, and has been confirmed by archaeology. See Heidenreich, supra note 10 Chap. VI and Bruce Trigger, The Huron: Farmers of the North (2nd edition) (Fort Worth: Harcourt Brace, 1990) at 83.
[39] The literature shows drought was a problem for the Wendat and their neighbours. Corn crops were also lost to late frosts and pests. See Heidenreich, supra note 10 at 66-67
[40] Ibid, 66.
[41] Heidenreich, supra note 10 at 108-114.
[42]  Ibid at 198.
[43] Ibid at 200.
[44] JR, supra note 9 Vol. 15 at 153; Vol. 19 at 133. 
[45] Heidenreich supra note 10 at 181.
[46] Ibid at 189.
[47] The Wendat had hunted out the beaver and other fur and food mammals in their country long before the Europeans came. They had to travel more than 200 kilometres by canoe and foot to the area south of the Kawartha Lakes to find plentiful deer. This is the reason most of their protein came from fish caught in Lake Huron and in the small rivers and creeks of their country.
[48] These include the maps in the works of Trigger and Heidenreich cited in this paper.
[49] Anthony F. Wallace, “Political Organization and Land Tenure among the Northeastern Indians, 1600-1830.” Southwestern Journal of Anthropology (1957) at 301-321.
[50] Ibid, at 311.
[51] Hough, Franklin B., Proceedings of the Commissioners of Indian Affairs Vol. 1. Albany: State of New York, 1861, 274-280. Quoted in Wallace, supra note 48 at 313.
[52] Pickering Mss (reproduction of memorandum book containing extracts of commissioners’ proceedings in 1784-1785), Vol. 59. (Massachusetts Historical Society (ND)) at 121. Quoted at Wallace, supra note 48 at 314.
[53] The Wendat distributed a large amount of wealth by gambling, although in this case they did not set out to do so. They appear to have gambled to an extreme. Individuals Wendat were known to have parted with their scalps and some of their fingers in games of chance. Some traders gambled away all of their furs on the way to Quebec, arriving at the French colony with nothing.  JR, supra note 9 Vol. 5 at 241. Champlain and the Jesuits watched as whole villages gambled against each other.  One village lost thirty collars of 1,000 beads each and all of the movable property in the town, including leatherworkings like tobacco pouches, shoes and leggings, fur robes and probably their exquisite effigy pipes and other crafts, a loss of about 300 ecus (at that time, a silver coin weighing approximately one ounce.) Champlain supra note 7 Vol. 3 at 166; JR supra note 9 Vol. 10 at 187.  They weren’t always gracious losers. One man who had lost heavily – a beaver robe and 400 glass beads – hanged himself. JR, supra note 9 Vol. 10 at 81.
[54] The French sources are silent about Wendat art and craft-making, and few examples of art, other than ceramics and small stone carvings, survive. In a discussion of gambling losses, the French did describe leatherwork as valuable items that were lost. Artisans also carved shell beads and made wampum belts that stored much of the country’s wealth and were used in treaty-making and payment of huge debts, such as murder reparation charges. The Jesuits and explorers mention Wendat wood carving but do not describe the artwork. Because of the destruction of the Wendat homeland and the subsequent flight and wanderings of the few survivors, this woodwork is gone. The Wendat did carve beautiful smoking pipes from stone and crafted them in ceramics. The Wendat also needed fishing gear, such as nets, netting needles, and spears fitted with barbed bone tips. The nets were an important trade item, highly-valued by the hunting people of the Ottawa Valley and Canadian Shield. They collected wild hemp and used it to make rope, thread, cloth and mats. Skilled craftspeople also made tools from ground stones and flaked chert. They also carved small amulets and sculptures in bone. Surviving Six Nations woodwork includes exquisitely-carved cooking and eating utensils, plates, ritual masks, and weapons such as clubs. Making these items, along with their land-clearing, village-building, trading, and civil obligations meant all Wendat men put in a full workday.  
[55] Despite the equality promised by the Edict of Nantes, Protestants were barred from the colony.
[56] JR supra note 3, Vol. 10, at 26; Vol. 14 at 17-19, quoted in Jaenen, supra note 51 at 162.
[57] The negotiations are described in JR supra note 3 Vol. 19 at 21. Divorce was relatively simple and common in Iroquoian society and could be initiated by either spouse, with children always being retained by the mother. See Judith K. Brown, Economic Organization and the Position of Women among the Iroquois. Ethnohistory, (1970)  17: 3-4, at 155.
[58] Use of this wealth for criminal and civil dispute settlement, ransom and treaty-making is described at Sagard supra note 34 at 163-164; Champlain, supra note 7 Vol. 3 at 102-103; JR, supra note 9 Vol. 10 at 215-223, Vol. 33 at 229-249;
[59] Sagard supra note 34 at: 266-267, JR, supra note 9 Vol. 27 at 87
[60] Champlain, who arbitrated a murder dispute between the Wendat and the Algonquin chief Iroquet, saw a settlement in another murder dispute that saw the Algonquin pay aggrieved Wendat fifty wampum belts, a “great number” of valuable French-made copper pots and iron axes, and two female Iroquois prisoners. Champlain, supra note 7 Vol. 7 at 102-103.
[61]Brown, supra note 68, at 156.
[62] Quoted in the Report of the Royal Commission on Aboriginal Peoples Vol. 1. Ottawa: Government of Canada, 1996.
[63] The former Wendat territory lies in Tiny, Tay, Flos and Medonte townships in Simcoe County. The first three townships were named after the lap dogs of Sarah Maitland, the wife of19th century British governor Sir Peregrine Maitland. See

[64] Cornelius Jaenen, Friend and Foe (New York: Columbia University Press 1976) at 161.
[65] Cornelius Jaenen, French Sovereignty and Native Nationhood. In Miller, J.R., (ed), Sweet Promises, A Reader on Indian-White Relations in Canada (Toronto: University of Toronto Press, 1991) at 21.
[66] During the founding of Montreal in 1642, members of Ottawa River Algonkian bands, who likely had a large number of second-generation refugees from the conflicts that destroyed the St. Lawrence River Iroquoian communities, did insist on the French recognizing their aboriginal rights to Montreal Island. The French offered to settle these bands next to the new community and to protect these Algonkians. Pressed by Iroquois raids, even Tessouat was prepared to abandon his lucrative toll operation and move to Montreal. The Algonkians were dispersed by the Iroquois before they could make this move. Pendergast 1999: 78-78, 95.
[67] Stadacona and Hochelaga, the two major Iroquoian towns mentioned by Jacques Cartier, had disappeared by the time Champlain arrived. Montagnais hunting people lived downstream from Quebec City, and the Ottawa Valley was still fairly densely populated when Champlain arrived. The French did not encroach their settlements onto the lands of these people, though the French did, in their dealings with other Europeans and among themselves, claim sovereignty over a vast swath of land that would eventually include most of what is now the Canadian Maritime region, the St. Lawrence Valley, all of the territory north of the Great Lakes, to Hudson’s Bay, the Ohio Valley, the eastern Prairies and the Mississippi Valley, although they had no real power over non-Europeans living outside the St. Lawrence Valley at any time before ceding control of their claims to the government of Great Britain in 1763. The French did erect trading posts in the interior but did not encourage European settlers to clear land around them. Shortly before losing the colony, the governor of Montreal cited this practice as proof to the Iroquois that the French were not land hungry, in contrast to the British. (See Jaenen, supra note 64 at 160).
[68] The Wendat tribe that sold the land warned the Jesuits they had to complete the deal within a couple of hours, as other tribes would object to the sale. JR supra note 9 Vol. 19 at 135. Part of the site of Ste. Marie was later owned by the author’s great-great grandfather. Ste. Marie has been rebuilt by the Ontario government and operates as a living history museum.
[69] For an analysis of the varying views of what sovereignty meant to the French and First Nations, and the nebulous policies of the French government regarding the status of First Nations especially in the period after 1661 when the French government assumed complete control of New France from the Companie des Cents Associates, see Cornelius J. Jaenen, French Sovereignty and Native Nationhood During the French Regime, in J.R. Miller (ed.) Sweet Promises: A Reader on Indian-White Relations in Canada. (Toronto: University of Toronto Press, 1991) at 19-45.
[70] Ibid at 28. In fact, French claims of sovereignty were often made by stealth, such as when members of the La Verendrye expedition lied to the Mandans about the nature of a lead plaque he left with them that asserted French sovereignty over the central Great Plains, and when, in 1749, Celeron de Blainville carved French royal arms into prominent trees in the Ohio Valley and buried a series of six lead plates throughout the region to claim it for France. Native leaders removed these objects and asked the English about their meaning (Ibid at 30-31).
[71] L.C. Green, Claims to Territory in Colonial America, in L.C. Green and Olive P. Dickason, The Law of Nations and the New World. (Edmonton: University of Alberta Press, 1988) at 18.
[72] Cass is an ancestral cousin of the author.
[73] In Robert W. McCluggage, “The Senate and Indian Land Titles, 1800-1825.” Western Historical Quarterly (1970), 1: 4 at 421-424. For an examination of the Canadian policies regarding treaty-making and aboriginal land tenure in Canada, see John Borrow, Crown and Aboriginal Occupations of Land: A History and Comparison. Report prepared for the Ipperwash Inquiry, (Government of Ontario), Oct. 15, 2005.