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As ice cream seller Ben & Jerry’s continues to face a backlash and a boycott over its recent tweets about the U.S. and Canada existing on “stolen Indigenous land,” a 441-year-old document offering a clear example of the kind of arbitrary territorial takeover common in conquest-era North America is set to be auctioned today in New York for up to US$1 million.

The original, handwritten 1582 contract that facilitated English explorer Sir Humphrey Gilbert’s crossing of the Atlantic Ocean the next year and — at St. John’s Harbour on Aug. 5, 1583 — his unilateral claiming of Newfoundland and much of the Maritimes in the name of Queen Elizabeth I is one of the highlights of Sotheby’s July 20 sale of rare books and manuscripts.

Described by the auction house as “one of the most significant documents relating to the colonization of the New World” and “the contract that made British settlement in North America possible,” the 13-page financing and land-transfer agreement signed by Gilbert and Sir George Peckham — one of the explorer’s leading backers — is also, of course, a foundational artifact in the tragic history of dispossession of Indigenous Peoples in what became Canada.

At the time, Newfoundland was inhabited by the Beothuk people (who would disappear by the early 1800s) and at least seasonally occupied by Mi’kmaw hunting and fishing parties who may also have been living year-round in southwestern parts of the island, according to some scholars.

Meanwhile, Inuit and Innu peoples inhabited Labrador to the north; Mi’kmaw, Penobscot, Passamaquoddy, Maliseet and Abenaki peoples lived on the islands and mainland territories immediately southwest of Newfoundland and well within the “200 leagues” (at least 1,000 kilometres) of land and sea around Newfoundland in all directions that Gilbert proclaimed was also now under his authority by virtue of the royal charter he’d been granted by the Queen in 1578.

Other First Nations occupied territories farther south along the continent’s eastern seaboard, an area that would eventually be colonized as “New England” and “Virginia” — the latter led by Gilbert’s half-brother, Sir Walter Raleigh — in the era that followed Gilbert’s landmark but ill-fated 1583 voyage. He and his crew aboard the sailing ship Squirrel perished in rough waters somewhere near the Azores on the return trip to England.

After Gilbert’s death, England continued to compete with France, Spain and other European powers in the race to seize control of Indigenous lands in North America. While Gilbert’s own colonization schemes did not immediately come to fruition, they laid the groundwork for future British expeditions, land grabs and settlements in the New World.

Ben & Jerry’s becomes part of the debate

Ben & Jerry’s critics are willfully missing a key point — encouraged, unfortunately, by the provocative but simplistic message issued in the July 4 tweet by the company’s U.S. operations: “The United States was founded on stolen Indigenous land. This Fourth of July, let’s commit to returning it.”

As a social media backlash brews over Ben & Jerry's comments about "stolen Indigenous land," the original, handwritten contract that facilitated England's colonization of what is currently Canada is up for auction on Thursday, writes Randy Boswell.

The company was not, in fact, making a blanket call to nullify all non-Indigenous land ownership in the U.S., but Ben & Jerry’s itself has come under fire for alleged hypocrisy for not offering to hand over ownership of its Vermont head office and other properties to Indigenous nations.

Ben & Jerry’s itself has come under fire for their tweets. Screen grab from Ben & Jerry's Twitter page

A link included in the company’s tweet made clear that its allyship campaign is focused on a long-running battle over South Dakota’s Black Hills, where Lakota Sioux activists have been pushing for decades to regain control of key stretches of their people’s most sacred landscape — which includes the Black Hills National Forest and the Mount Rushmore memorial (with giant faces of four U.S. presidents etched into the mountainside), along with a similar stone colossus of 19th-century Sioux Chief Crazy Horse carved into another nearby peak.

Meanwhile, the tweet posted by the Canadian branch of Ben & Jerry’s on Canada Day — with a cartoon map of North America and the message: “O Canada, Our Home on Stolen Land” — highlighted the company’s support for the Indigenous-led Land Back movement in this country.

The company’s website offers extensive background on Canada’s history of colonization of Indigenous land and assimilationist policies — most notoriously the residential school system — towards First Nations, Inuit and Métis.

And a lengthy interview with Mi’kmaw lawyer, scholar and activist Pam Palmater, a member of the Eel River Bar First Nation in northern New Brunswick, includes her detailed explanation of the Land Back movement.

“I think the most important thing for people to understand is that Land Back does not mean kicking all settlers out of their homes. That's a common misunderstanding, but it’s not about that,” Palmater states.

“All of the people in the Land Back movement that we work with have said over and over again, we would never commit the violence and trauma and dispossession and human rights abuses upon our friends, neighbours and allies like has been done to us.

“That's not the solution,” she adds.

“Plus, we also know that lands, especially here in Canada, held privately by individuals is a very, very small percentage. The majority of the lands, more than 90 per cent, are held by the Crown, either the federal Crown or the provincial Crown.

“So there's more than enough land to return to Indigenous nations, and it wouldn't impact our settler allies, friends and neighbours and family members.”

The mission at Newfoundland, where Gilbert took possession of the surrounding lands and fishing waters in the name of the British Crown. Courtesy of Sotheby’s

Ontario court ruling validates Land Back movement

Disputes over controversial development projects near Indigenous communities have sometimes become flashpoints in the Land Back movement. Earlier this month, Skyler Williams — a Mohawk man from Six Nations of the Grand River in southern Ontario — was granted an absolute discharge after facing criminal charges for the past three years for his role in the 2020 blocking of construction work on a planned 218-unit housing development in Caledonia, Ont.

Ontario Court Justice Gethin Edward ruled Williams’ actions at an Indigenous occupation of the property known as 1492 Land Back Lane were defensible under early 17th-century agreements struck between his ancestors and Dutch settlers in present-day New York.

“Skyler Williams was carrying out his actions as a land protector in the context of these Haudenosaunee laws,” Edward concluded, citing the Two Row Wampum agreement that framed Haudenosaunee relations with European colonizers in the era after Gilbert’s voyage to North America.

Gilbert is remembered today for ensuring Newfoundland would be England’s first overseas colony, the beachhead of the British Empire that would come to dominate world affairs by the 19th century.

As the 1582 contract to be sold by Sotheby’s states, the royal charter granted by Queen Elizabeth stipulated Gilbert was free to take possession of “such remote heathen and barbarous Landes countries and territories not actuallie possessed of any Christian prince or people.”

In the agreement, in exchange for helping to finance his voyages, Gilbert transferred to colonization advocate Peckham and his partner Thomas Gerard certain land entitlements to establish Catholic settlements in various parts of the future Atlantic Canada and New England.

The contract is “a document of unparalleled importance,” Sotheby’s states in a catalogue entry for today’s sale of the commercial manuscript.

Dug-up turf symbolized ‘possession’ of Newfoundland

One of the most significant documents relating to the early colonization of the New World — the contract for the voyage that made settlement in North America possible. Courtesy of Sotheby’s

There are vivid historical accounts of the way Gilbert symbolically took possession of Newfoundland.

“The merchants and fishermen assembled before his tent,” writes Gilbert biographer David Quinn in the Dictionary of Canadian Biography. “A rod and turf were cut and delivered to him in virtue of his personal title to the soil, and he proclaimed the land to be the queen’s in perpetuity.”

Raleigh was among the key figures who, in the wake of Gilbert’s death, took up his half-brother’s torch and advanced England’s colonization project in the future United States. There were numerous failed settlement attempts before transplanted English communities endured at Jamestown, Va., in 1607 and Plymouth, Mass., in 1620 before spreading throughout the region.

England eventually established an enduring presence in Newfoundland after a John Guy-led 1610 expedition to Cupids, on the shore of Conception Bay about 80 kilometres west of St. John’s.

The document to be auctioned today in New York, along with similar European writs and decrees from the age of exploration, was based on the concept expressed in a series of papal pronouncements from the 15th century onward that Christians had the right to conquer any land in North, South and Central America not already seized from Indigenous inhabitants by other Christians.

Such justification derived from the so-called “Doctrine of Discovery” bluntly proclaimed the superiority of Christian explorers and colonizers over the “savage” and “heathen” Indigenous Peoples (as they were known in the language of the time) who had occupied the Americas for thousands of years.

In recent years, the Doctrine of Discovery has been disavowed by various governments and religious bodies. In 2010, the Anglican Church of Canada repudiated the doctrine, acknowledging that “colonial powers were able to take over and profit from the lands that had been inhabited by Indigenous Peoples from time immemorial.

It enabled them to accumulate massive wealth by engaging in unlimited resource extraction . . . If there were no Christians (as defined by the Church powers) on the land, the land was considered empty — there were no humans.”

In March, the Vatican finally issued a statement at the behest of Pope Francis — who had visited Canada the previous summer — that acknowledged the doctrine had been used to wrongly justify the idea that “the discovery of lands by settlers granted an exclusive right to extinguish, either by purchase or conquest, the title to or possession of those lands by Indigenous Peoples.”

The 1622 contract meant to enable William Alexander, Earl of Stirling, to sail to North America to claim Nova Scotia. Courtesy of Sotheby’s

Contract for seizure of Nova Scotia to be sold

Today’s Sotheby’s sale also includes another landmark document from the history of Atlantic Canada — the so-called “contract for the Canadian Mayflower,” a 1622 agreement signed by Scottish colonization advocate Sir William Alexander, the 1st Earl of Stirling, to organize a voyage to Canada’s present-day Maritime provinces and, in the words of a 1621 charter granted to Alexander by King James VI of Scotland (King James I of England), to take control of any lands “inhabited by infidels.”

The influence of the charter and the 1622 contract aimed at establishing a “New Scotland” in North America to rival New France and New England has endured in the name of “Nova Scotia” — the future province that had been inhabited for millennia by the Mi’kmaw people — as well as the adoption of Alexander’s designs for Nova Scotia’s flag and coat of arms.

The manuscript contract is expected to sell at today’s auction in New York for up to $150,000. “Significant documents relating to the early colonial history of America are extremely uncommon on the market,” Sotheby’s catalogue note says of the artifact.

Indeed, such documents rarely come to auction, which explains the high prices they can fetch among collectors and public institutions. But enough of them abound in private collections and archives and — as transcripts — in history books that it should never come as a surprise when Indigenous people (and non-Indigenous people) in North America talk about “stolen land.”

Documents like the Gilbert and Alexander contracts read today like confessions of illegal seizures of vast swaths of territory — stolen land — that give Indigenous people in Canada and the U.S. significant moral and legal leverage to reclaim portions of it.

Randy Boswell is a Carleton University journalism professor and freelance writer. He has written frequently about Canadian history, commemoration and Indigenous issues.

Editor's note: The 1582 contract signed by English explorer Sir Humphrey Gilbert ahead of his 1583 voyage across the Atlantic Ocean to claim Newfoundland and the surrounding region for Queen Elizabeth I was sold today (Thursday, July 20) for US$889,000 ($1.17M Canadian) as part of a major sale of rare books and manuscripts at Sotheby’s in New York. Another significant document from the colonization of Canada — a contract signed by Sir William Alexander, 1st Earl of Stirling, ahead of a planned voyage to claim the future Nova Scotia — sold for US$89,000 ($118,000 Cdn).

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Surely these documents belong in Canada’s archives, not in private hands. The prices stated of one million and 150,000 $ are minuscule. There must be a lot of people who could buy them, donate them, get a nice tax receipt, and hardly notice the effect on their financial wellbeing.