69. Michael Asch, On Being Here to Stay: Treaties and Aboriginal Rights in Canada
I’ve been thinking about Michael Asch’s On Being Here to Stay: Treaties and Aboriginal Rights in Canada for a few days now—and, more to the point, wondering if its possible to square Asch’s argument that the numbered treaties were legitimate against Sheldon Krasowski’s argument in No Surrender: The Land Remains Indigenous that, because the so-called surrender clause was not mentioned during the negotiations, those treaties are illegitimate—or at least problematic. And, before I fly off later this week, I’d like to get to 70 blog posts. So please allow me to revisit a summary of Asch’s book that I wrote as part of a course I took on treaty relationships with Dr. James Daschuk last summer. If nothing else, this post will be a test of how good these summaries are—whether they allow me to remember the gist of an argument without having to reread the source text.
Asch’s book takes its title from a statement made by Chief Justice Antonio Lamer in the 1997 Delgamuukw decision: “Let us face it, we are all here to stay” (3). For Asch, an anthropologist, that statement poses a problem: “it is wrong legally as well as morally to move onto lands belonging to others without first obtaining their permission” (vii). But, as Asch continues, that problem leads to another: “reconciling this principle with the fact that Canada is on lands that belong to Indigenous peoples” (vii). What might permission from those peoples entail? he asks (vii). Would those treaties allow Canada to act in compliance with the 1960 U.N. Declaration on De-Colonization, from which he derives his first principle, that it is wrong to occupy territory without asking permission first?
At first, Asch writes, he believed that the representatives of the Crown acted fraudulently in negotiating the treaties, because the government of Canada failed to implement the terms of those treaties. However, given the importance of R v. Badger and the Supreme Court’s finding in that case that the Crown, legally, must be regarded as truthful regardless of its original intent, Asch adopted that perspective (viii). He began looking at correspondences between what Indigenous authorities render as the treaty terms now, and what the treaty commissioners actually said. And, for Treaty 4, at least (his test case), Asch found that it seems that Morris meant what he said. That discovery led him to “recalibrate” his interpretation of the treaties (viii). “[T]here is at least a case to be made for the proposition that there were those who acted in good faith in the past, and thus the possibility that, while to act honourably now is to depart from how we have acted in the past, it is also to keep faith with it,” he writes (ix). Moreover, there is the problem of the purported nation-to-nation relationship between First Nations and Canada. “A relationship between equals . . . requires (at least as modernity describes it) that each party is a state with sovereignty and jurisdiction over a territory,” he writes. “Yet Indigenous authorities inform us that we did not acquire sovereignty and jurisdiction over any territory. Therefore,” he continues, “we cannot be equals, for a party that does not have sovereignty and jurisdiction in a territory cannot have the same standing as one that does” (x). Here we see the influence of Harold Johnson’s argument in Two Families: Treaties and Government that Canada did not acquire sovereignty as a result of the treaties. These are the questions Asch takes up in his book.
What authorizes the presence of settlers in this territory, aside from our numbers and our power (3)? For Asch, this question needs to be answered; otherwise, Canada is in violation of the Declaration on De-Colonization. Moreover, the question of how the Crown gained sovereignty—since Canada has made it clear that although First Nations have rights that flow from the period prior to the Crown’s assertion of sovereignty, it will not accept that this situation “might call into question the final legislative authority of the Crown” (10-11)—needs to be answered. How did the Crown gain its sovereignty? How can that sovereignty be reconciled with the pre-existence of Indigenous societies, and not the other way around (11)?
Asch begins his exploration of these questions by looking into the history of Aboriginal rights in Canada, at least since the Calder decision. “[T]he courts to date have adhered to the same position as the government of Canada: Aboriginal rights, whatever their content, are subordinate to the sovereignty of Canada,” he writes. “And, to reiterate, this formulation begs the most fundamental question: If Indigenous peoples had legitimate sovereignty when Europeans first arrived, how did the Crown legitimately acquire it?” (32). Clearly, recent judicial decisions have not answered this question.
Next, Asch responds to Tom Flanagan’s 2000 book, First Nations, Second Thoughts. Flanagan argues that temporal priority—essentially, the principle of first come, first served—does not apply in Canada in terms of the Crown’s sovereignty, and Asch demonstrates that it does (38). Flanagan argues that sovereignty over Indigenous peoples has legitimated itself over time, but Asch shows that because First Nations have not accepted this sovereignty, it has not legitimated itself (38). Flanagan asserts that Europeans were more civilized than Indigenous peoples, and therefore deserved to exercise sovereignty; Asch compares this position to the Declaration on De-Colonization, and suggests that Flanagan is relying “on a discredited convention that is a holdover from the colonial era” (54). “The question, then, is not whether the principle of temporal priority applies,” Asch writes, “but what are the consequences of applying it?” (58).
Asch then turns to the question of whether Indigenous peoples have the right of self-determination. If not, then the Declaration on De-Colonization does not apply to Canada. He determines that yes, they do have the right of self-determination, despite the arguments of Flanagan and Alan Cairns. This fact, along with Crown sovereignty and the presence of settlers on Indigenous lands, presents Asch with a dilemma, one he believes can be solved through a focus on treaty rights.
But the treaties present another problem: there is an “extreme dissonance” (78) between the the understandings of the treaties of the two negotiating parties. For the authors of the 1996 Royal Commission on Aboriginal Peoples, that dissonance means that there was in fact a lack of consent to the treaties, due to the cultural differences of the negotiators. “The commission suggests that the proper approach to resolving the differences is to reach a shared agreement as to the treaties’ meaning based on the assumption that both interpretations carry equal weight” (79), and this will mean considering oral evidence. Asch is following Aimée Craft’s argument in Breathing Life Into the Stone Fort Treaty: An Anishinabe Understanding of Treaty One here (although he doesn’t cite her book, probably because he wasn’t able to consult it as he was writing On Being Here To Stay since it had not yet been published). “[I]t is my view that, despite cultural differences, there is every chance that these parties could have achieved a degree of shared understanding at the time of negotiations to conclude an agreement based on mutual consent,” Asch writes. “In other words, one cannot rule out the possibility that the position advanced by one of the parties today more closely conforms to what actually transpired at the time of treaty making than does the other” (80).
Asch’s test case is, as I’ve already mentioned, Treaty 4. After carefully examining the transcript of the negotiations in Morris’s book on the treaties he negotiated, Asch concludes that
there is virtually nothing in the transcript that supports an interpretation of the extinguishment clause as resulting in the political subordination of the Indigenous parties to the government of Canada. Rather, it is more consistent with the evidence to conclude that the shared understanding of Treaty 4 resulted in a direct political alliance with the Queen. (90)
He presents a complicated—some might say tortured—reading of the surrender clause that concludes that “First Nations are entering into the same relationship with the queen as between her and the Dominion” (91)—that, in other words, the negotiating parties ended up on a nation-to-nation basis. Asch concludes:
I think the evidence clearly shows that, on the balance of probabilities, the interpretation of the terms of Treaty 4 offered by our Indigenous partners today more accurately reflects the agreement we reached than does the version transmitted to us through the written text. That is, to gain their permission to settle on lands we recognized as belonging to them, we asked only to share the land with them (not take it over as by purchasing it). In return, we promised to do our utmost to ensure that our presence on these lands would result in benefits to them, and certainly would cause them no harm. Furthermore, whether or not we believed we had sovereignty, we treated our partners as independent political actors with their own leaders and with a right to make the final decision on our request, and there is nothing in the evidence to substantiate the proposition that, either in our minds or in theirs, the treaty terms were such that they would change the nature of our relationship. . . . Put succinctly, but perhaps too mechanically, the agreement was this: they would share the land, and we would treat them like our own brothers and sisters. (97)
If we accept the possibility that the version of Treaty 4 offered by First Nations was the product of good-faith negotiations, then that treaty is a remarkable achievement—a shared understanding, despite cultural differences, and one that offers a path to move beyond colonial relations (97-98). If, on the other hand, we think Morris and the other Crown negotiators lied, then the treaties become worthless pieces of paper and our right to be here disappears. Therefore, it’s better to treat them as legitimate (99). But the expediency of acting as if Treaty 4 is legitimate doesn’t make sense if, as Krasowski argues, the fact that the surrender clause was not discussed, mentioned, or explained renders the Crown’s claim on the land to be, well, specious and unfounded.
The treaties’ legitimacy means that Canada and First Nations are in a nation-to-nation relationship, Asch argues. “Indigenous peoples have spoken to us with one voice: using our conceptual frame, they had sovereignty and jurisdiction in their territories when we first arrived and they have not voluntarily relinquished this through treaties,” he writes. Therefore, “if we want to move ahead in implementing the treaty relationship in good faith, it seems reasonable to start by accepting that, no matter where our partners reside . . . they live on land that remains under their sovereignty and jurisdiction” (111-12). That argument leads him to agree with Harold Johnson’s position: “the only path for us to take is to join Indigenous polities as immigrants” (112). The Two Row Wampum, and the Cree principle of witaskewin, or living together on the land, emphasize the necessity of sharing the land and not interfering in the way First Nations manage their affairs (114). The treaties, in other words, bind us together permanently, even though settlers do not have sovereignty: “Two nations live together as partners though there is but one sovereign” (119).
The linking principle demonstrated by the Two Row Wampum and witaskewin is central to Asch’s argument here. “Saying that the linking principle has the power to bind us to this land is one thing,” he writes. “Believing it to be possible is another. And while, at the end of the day, I know it is incumbent on us to take our partners at their word, the idea that sovereignty over a territory takes precedence is so fundamental in our thinking that it would be useful to attempt to conceptualize how linking could have that power in its absence” (119). Asch then turns more explicitly to Johnson’s claim that the treaties meant we became relatives. He suggests that the linking principle is similar to marriage, in which, to survive, two families have to come together and yet remain distinct, and compares this to the Two Row Wampum example, in which both partners have autonomy and equality, but need the other to survive (127-31). Or, to use another metaphor, the treaty is the foundation of a house we are building together with First Nations, a house in which we both can live (132).
Using Anthony E. Smith’s concept of “ethnie,” a group with a common myth of descent, distinctive culture, association with specific territory, sense of solidarity, and identity (135), Asch then demonstrates that in the 1870s, when the numbered treaties were being negotiated, First Nations on the prairies were living in multi-ethnie communities without a common sovereign or ethnie to bind them together (138). “One can readily imagine that our partners anticipated that we would adhere to the same principles; that is, we would not try to incorporate our partners into an ‘institutional-cum-territorial’ container of our own making but would rather link arms with them to shape a container in which we could all live together comfortably” (139). After all, that is what First Nations were already used to. “Looked at in this light,” Asch writes, “the treaties express our mutual commitment to that understanding” (139). That, of course, is precisely what did not happen, and Asch describes the results of our failure to act with kindness toward our treaty partners (142-48). “Nonetheless,” he writes, “I believe that returning to the promises we made in the treaties gives us a purchase on where to begin now” (149). “We must also act in accord with the spirit and intent of the treaties as they were negotiated,” he writes (150). Therefore, he suggests that in the future this understanding must orient our interactions not only with First Nations with which we have negotiated treaties, but also with those with which we have not (151). “My thesis comes down to this: Treaties offer us the means to reconcile the fact that we are ‘here to stay’ with the fact that there were people already here when we first arrived,” he concludes (152).
But that’s not the end of Asch’s argument. By examining biographical evidence, he suggests that Morris and Lord Dufferin, the Governor-General in the 1870s, honestly believed that the commitments they made in return to settle on the prairies would be kept (157). Morris advocated for faithful implementation of the spirit of the treaties, and as a result his authority over treaty implementation was removed in 1877 (161). When he continued to protest the breaking of the treaties, he was pushed out as lieutenant governor and Edgar Dewdney became Commissioner of Indian Affairs for the North West Territory. Dewdney implemented policies of deliberate starvation of First Nations (161).
Harold Cardinal once described the treaties as our Magna Carta, but Asch notes that settlers don’t think of them that way, despite their fundamental importance. Canada’s historiography shows that we pay little attention to the treaties, and therefore do not understand them. However, he writes,
[w]hen we include in our history the position on the importance of treaty making offered by Commissioner Morris and Lord Dufferin, a different picture emerges. What then becomes clear is that, at the time of Confederation, the view taken by those who controlled treaty implementation was contested by a prominent leader in building Confederation and by the queen’s official representative. They believed that in Canada to be “here to stay” would mean making treaties amenable to all before settling on new lands and adhering to them. In this rendering, treaties become like the Magna Carta for us, for they are the foundation that legitimizes our settlement on these lands. As Morris suggested, to dishonour our obligations would be to call into question that legitimacy. And I think it fair to say that, were Settlers by and large to come to that view, then governments would be encouraged to act on the understanding that our treaty obligations are solemn commitments and not policy options. But this cannot happen so long as this debate is written out of our history. What I suggest is that, at the very least, we incorporate the perspective of Dufferin and Morris on treaty relations into the story we tell of Confederation and the settling of the west. (164)
Asch’s take on Morris is markedly different from J.R. Miller’s, in his 2009 book Compact, Contract, Covenant: Aboriginal Treaty-Making in Canada, and I honestly don’t know who to believe. Perhaps that doesn’t matter. If we need to assume that the Crown behaved honourably in the treaty negotiations, then it doesn’t matter whether Morris actually did—although the historical precedent of honest dealing and shared understanding is encouraging. What we need to do is keep faith to the principles Asch finds in the treaty-making process: gaining consent from those who were here first, keeping our commitments to them, and rectifying any harm our actions have caused (165). That is what reconciliation would look like. And yet, I’m haunted by Krasowski’s claim that Morris, and the other Crown negotiators, did not behave honourably—that they lied by omission about the surrender clause.
When I first read Asch’s book, I believed his argument made sense, particularly regarding the purported source of Crown sovereignty. His argument could help us to imagine a different way of engaging with First Nations. Perhaps being allowed to imagine that a nation-to-nation relationship is logically possible (rather than simply a matter of power and numbers) would be yet another gift from Canada’s Indigenous partners. In any case, there is now no question in my mind that the treaties were intended to be about sharing the land—from the Indigenous perspective, and if Asch is right about Morris, from the Crown negotiators’ perspective as well. And yet, as I’ve suggested, Krasowski’s book throws my faith in Asch’s argument up in the air. I now find myself wondering if his complicated reading of the surrender clause in the Treaty 4 document isn’t too clever by half—that we need to acknowledge that, because that clause was never discussed or mentioned by the Crown negotiators, the treaty’s validity is in jeopardy. And if that’s the case, as Asch points out, then settlers are simply squatting on this land, and we have no right to be here. That’s a pretty big problem.
Oh, and to answer the question I asked myself at the beginning of this summary: yes, the summary is useful, although I will eventually have to revisit Asch’s interpretation of the Treaty 4 surrender clause, to parse through his reading of it again.
Asch, Michael. On Being Here to Stay: Treaties and Aboriginal Rights in Canada, University of Toronto Press, 2014.
Craft, Aimée. Breathing Life Into the Stone Fort Treaty: An Anishinabe Understanding of Treaty One, Purich, 2013.
Harold Johnson, Two Families: Treaties and Government, Purich, 2007.
Krasowski, Sheldon. No Surrender: The Land Remains Indigenous, University of Regina Press, 2019.
Miller, J.R. Compact, Contract, Covenant: Aboriginal Treaty-Making in Canada, University of Toronto Press, 2009.