73. Harold Cardinal and Walter Hildebrandt, Treaty Elders of Saskatchewan: Our Dream Is That Our Peoples Will One Day Be Clearly Recognized As Nations

by breavman99

Treaty Elders of Saskatchewan: Our Dream Is That Our Peoples Will One Day Be Clearly Recognized As Nations (another that I read in the summer course I took last summer) is exceedingly important, because it explores the oral tradition surrounding the treaties in Saskatchewan through the words of contemporary Elders (contemporary 20 years ago, that is). That work is vital, given the differing interpretations of the treaties one sees in other writers. It was initially intended as a companion book to. Bounty and Benevolence: A History of Saskatchewan Treaties, by Arthur J. Ray, Jim Miller, and Frank Tough. The books are very different, though, and for some reason were published by two separate university presses—not that it matters. It’s clear while Treaty Elders of Saskatchewan was intended as an Indigenous perspective on the treaties, while Bounty and Benevolence was to be a standard documentary history. In my opinion, Treaty Elders of Saskatchewan has aged better; Bounty and Benevolence (is the title ironic?) has been superseded by Sheldon Krasowski’s No Surrender: The Land Remains Indigenous.

Treaty Elders of Saskatchewan: Our Dream Is That Our Peoples Will One Day Be Clearly Recognized As Nations begins with an account of First Nations spiritual laws and traditions, which makes sense because, as other writers on the treaties point out, the treaties were negotiated in accordance with First Nations laws, traditions, ceremonies and protocol. “The Elders make it clear that, in their view, those who seek to understand Indian treaties must become aware of the significance of First Nations spiritual traditions, beliefs, and ceremonies underlying the treaty-making process,” write Cardinal and Hildebrandt (1). First Nations believe they were put on this land by the Creator, and that it is theirs collectively (3-5). Those beliefs and principles and protocols informed the objectives of First Nations in negotiating the treaties. First, they sought recognition and affirmation of their right to maintain their relationships with the Creator through the laws they had been given by him (6-7). They understood that both parties in the treaty “would conduct their relationships with each other in accordance with the laws, values, and principles given to each of them by the Creator” (7). In addition, because the treaties were performed through ceremonies, the promises and agreements that were made are irrevocable and inviolable, and breaking them can bring about divine retribution with grave consequences (7). The invocation of the sun, river, and grass in the treaties, according to Elder Lawrence Tobacco, was an appeal to their spirits, and that demonstrates the seriousness of the promises being made (8). 

Because the land and everything on it—animals, water, trees, plants, rocks—are sacred gifts from the Creator, they could not be sold or given away. “For that reason,” Cardinal and Hildebrandt write, “the Elders say that the sacred Earth given to the First Nations by the Creator will always be theirs” (10). (That doesn’t sound like the so-called surrender clause would’ve been something the Chiefs negotiating with the representatives of the Crown would have agreed to.) The Creator provided other gifts, including laws, values, principles, and mores (10). According to Cardinal and Hildebrandt, “it is this very special and complete relationship with the Creator that is the source of the sovereignty that their peoples possess” (11). The negotiations were spiritual ceremonies, and that needs to be remembered.

One of the core values of the Cree nation is miyo-wîcêhtowin, the principle of good relations and expanding the circle of individual and collective relationships (14). The circle is an important symbol of this principle. The term wâhkôhtowin refers to the laws governing all relations, whereas miyo-wîcêhtowin are the laws concerning good relations (14). “For the Elders, the relationships created by the treaties were founded on the doctrines of wâhkôhtowin and miyo-wîcêhtowin for they constituted the essential elements of an enduring and lasting relationship between the First Nations, the Crown, and her subjects,” write Cardinal and Hildebrandt (15). Those relationships were to consist of mutual and ongoing caring and sharing arrangements between both sides, including a sharing of the duties and responsibilities for the land, which would be shared with the newcomers so that they could make a living (15). The laws of wâhkôhtowin are applied by analogy to the treaty relationship (19). In other words, as Harold Johnson and Michael Asch argue, the treaties created a kinship relationship between First Nations and the Crown, and therefore also between First Nations and settlers, who are also “children” of the Crown, metaphorically.

Because the treaties and their promises are sacred due to the ceremonies performed during the negotiations, they cannot be changed or altered (25). However, in the focus sessions Cardinal and Hildebrandt held with Elders, “it became very clear that their view and understanding of the treaties differed significantly from the written text of the treaties. Indeed, their focus was on the ‘nature and character of the treaty relationship’ as opposed to the contents of the written treaty texts created by the Crown” (25). Again, one is reminded of Harold Johnson’s words, that the treaties were about relationships and are therefore not simply finalized documents. I was also reminded of the notion of treaties as a covenant chain that periodically must be polished. This is a very different perspective on treaties than the Western one, which sees them as finalized once they’ve been negotiated. 

Cardinal and Hildebrandt list several principles or irrevocable undertakings—their language shifts for no apparent reason—that are affirmed by the treaties, according to the Elders. First, the treaties were a joint acknowledgement of the supremacy of the Creator and the joint fidelity of both sides in the negotiations to that divine sovereignty (31). This affirmation took place through the use of the pipe and sweetgrass (31). Second, the parties agreed to maintain a peaceful relationship—again, through the use of ceremony (32). Peace refers to the kind of relationship symbolized by the laws governing relationships between cousins. The third undertaking involves creating and maintaining a perpetual family relationship based on concepts defined by principles of wâhkôhtowin or good relationships (33). Cree Elder Simon Kytwayhat uses the term kiciwamanawak to refer to the settlers who, he says, were adopted by his nation through treaty (33). One sees the source of Johnson’s ideas here, and I wonder if Kytwayhat is the Treaty Elder Johnson consulted. The fourth irrevocable undertaking was that sharing land with the settlers would guarantee a continuing right of livelihood to First Nations (36). The land was not sold or transferred to the Crown, but a promise was made to share it—and natural resources were not included, according to Treaty Elder Peter Waskahat (36). “The fundamental principles identified by the Elders constitute aspects of the treaty relationship that, in their view, are not subject to change or alteration between the parties,” write Cardinal and Hildebrandt. “The understanding of these principles are interwoven with and derive their existence from the spiritual and ceremonial fabric of First Nations societies. They provide the contextual framework for the Indian understanding of the collective and individual relationships created by treaty” (38).

Another key term in the book is witaskêwin, or living together on the land, which in the context of the treaties means sharing territory with the newcomers. Elder Danny Musqua points out that First Nations had a history of sharing territory with each other for various purposes (39). Each First Nation has its own spiritual relationship with the Creator through ceremonies and their connectedness to the land (41). “The treaties, through the spiritual ceremonies conducted during the negotiations, expanded the First Nations sovereign circle, bringing in and embracing the Crown within their sovereign circle,” write Cardinal and Hildebrandt. “The treaties, in this view, were arrangements between nations intended to recognize, respect, and acknowledge in perpetuity the sovereign character of each of the treaty parties, within the context of right conferred by the Creator to Indian nations” (41-42). The treaties are therefore nation-to-nation agreements (42). 

Despite the fact that the treaties cannot be changed, some aspects of them are open-ended, requiring flexibility and adaptability as times change. One example of an issue requiring flexibility and negotiation is resource extraction (42). That leads to another key term, pimâcihowin, the ability to make a living from the land (43). This is a complex term, because the wealth of the land is both spiritual and material, and pimâcihowin incorporates both dimensions (43). In material terms, “the treaty guarantees the continuing right of First Nations livelihood, and the continuing right of First Nations to maintain a continuing relationship to the land, and its resources constitute one of the irrevocable and unchanging elements of the treaty relationship negotiated by First Nations and the Crown,” according to Cardinal and Hildebrandt (46). In a long quotation, they cite Danny Musqua’s argument that First Nations were promised that they would be as wealthy as settlers (47). That, of course, has not happened.

In the chapter entitled tâpwêwin, which means the obligation to speak with truth and accuracy, Cardinal and Hildebrandt note that there is no “formal existing agreement” between First Nations and the Crown about the meaning and content of the treaties, and this problem needs to be resolved “if the spirit and intent of the treaty relationship is to be properly understood” (48). They refer to the written texts of the treaties as “purporting to be the official copies” (48)—the word “purporting” suggesting they have their doubts. Nevertheless, Canada still takes the position that only the written treaty documents, read literally, can be used to determine whether or not there is an existing treaty right (49). That approach precludes the use of other sources, including the First Nations understanding of the treaties, the reports and dispatches written by Treaty Commissioners, eyewitness accounts, and other related documents and correspondence (49). The Treaty Elders, however, believe that it’s most important to examine oral evidence and history, before turning to other documents and, last of all, the “so-called articles of treaty” (50). The Supreme Court of Canada has given guidelines through several decisions that reinforce the Treaty Elders’ perspective, but Canada apparently still does not follow those guidelines when litigating treaty rights (50, 52). Those guidelines, as reproduced in the text, are an important source, since they are drawn from several judgements. “The Elders’ presentations dealing with wîtaskêwin (living together on the land) and pimâcihowin (making a living) directly contradict the written texts of the treaties in Saskatchewan and past case law predicated on those written texts,” Cardinal and Hildebrandt write (57). First, Canada continues to refuse to acknowledge that First Nations were sovereign when the treaties were negotiated, and it continues to claim that the Crown has underlying sovereign title, which contradicts the First Nations position that they have original sovereign title (57). Second, Canada claims that Indian title was extinguished by the treaties, but the Treaty Elders maintain that this is not the case. In a shocking passage, Cardinal and Hildebrandt write:

At the focus sessions, when the “extinguishment clauses” of the written treaty texts were read, translated, and explained, the Elders reacted with incredulity and disbelief. They found it hard to believe that anyone, much less the Crown, could seriously believe that First Nations would ever have agreed to “extinguish” their God-given rights. (58)

Third, the Crown asserts exclusive ownership of and jurisdiction over all lands, wildlife, and resources, but the Elders maintain that First Nations retained ownership and jurisdiction, except for those portions of land required for agriculture—and then only to the depth of a plough blade (58). The Royal Commission on Aboriginal Peoples (1996) made suggestions about resolving these issues, but Canada has not implemented them (58). These disagreements don’t mean that the treaties are invalid, however; the written texts and the oral history both indicate that substantive agreements were reached (58-59). “For the Elders,” Cardinal and Hildebrandt conclude, “what is at issue is not whether or not treaties exist, but whether a mutually acceptable record of them can now be agreed upon and implemented” (59).

Next, the authors discuss livelihood in more detail. They argue that the treaties state that First Nations livelihood was not to be affected, and that freedom, independence, and economic self-sufficiency were the goals the First Nations negotiators sought to achieve (61). The Treaty Elders interviewed in the book were very clear about what the treaties do not mean in this regard. They were not a blanket transfer of First Nations lands and resources to the Crown (62). They were land-sharing arrangements for agricultural purposes only (63). Natural resources were not to be shared, and neither were water resources, fish, wildlife, or waterfowl (64). In addition, as far as Treaty 4 is concerned, the transfer of Rupert’s Land to the Crown is an outstanding issue that was not resolved during the negotiations and needs to be addressed. The authors provide a long quotation from Danny Musqua on that land transfer, in which he rejects the Crown’s claim to sovereignty (65-66). “[T]he sharing arrangements, as envisioned by the Elders, were to be fair to each of the parties, intended to enable the parties to jointly share in the prosperity of the prosperity of the land—not drive the First Nations to destitution,” Cardinal and Hildebrandt write (66).

That chapter, the penultimate in the book, is also the strongest, where the evidence from the Treaty Elders matches the argument most successfully. In fact, the book gets better with each successive chapter, until the conclusion, which is surprisingly quite weak, merely repeating what has already been said. “It has not been possible to include all the conceptual issues raised by the Elders during this process,” the authors write, without explaining what those issues were or why they could not be included (71). Nevertheless, this is, as I said at the outset, an important book, despite its flaws, because it gives a sense of what the oral history of the Saskatchewan treaties looks like. I was surprised to learn of the insistence of the Treaty Elders that the land was to be shared only to the depth of a plough blade, and that no natural resources were to be included in the treaties. I am sure that our provincial government would strongly disagree with that perspective. I was also surprised to learn that water resources were not included, either. I wonder what this province would look like now if the treaties had been implemented the way they are understood by the Treaty Elders. It would be a very different place, no doubt, and the horrors of residential schools and deliberate starvation would not be on our consciences.

In addition, the current consensus is clear: the importance of oral history, the emphasis on sharing the land rather than transferring it outright, the lack of consensus on what the treaties actually mean. I wonder is Asch’s optimism is warranted, given the gulf that divides First Nations and Canada on what the treaties mean, and I wonder if Canada will ever begin to attempt to resolve that issue. I have no doubt, though, that Tom Flanagan’s take on the treaties (as reported by Asch) is very much an outlier, at least in the academic literature on the subject, although I think many settlers would agree with his complaints. I remember reading reviews of Flanagan’s First Nations, Second Thoughts when it came out, and I wonder why a book that ignores the historical record got so much attention. Perhaps because it told some Canadians the kinds of things they wanted to hear? Certainly Treaty Elders of Saskatchewan could not be accused of that.

Works Cited

Asch, Michael. On Being Here to Stay: Treaties and Aboriginal Rights in Canada, University of Toronto Press, 2014.

Cardinal, Harold and Walter Hildebrandt, Treaty Elders of Saskatchewan: Our Dream Is That Our Peoples Will One Day Be Clearly Recognized As Nations, University of Calgary Press, 2000.

Johnson, Harold. Two Families: Treaties and Government, Purich, 2007.

Krasowski, Sheldon. No Surrender: The Land Remains Indigenous, University of Regina Press, 2019.

Ray, Arthur J., Jim Miller, and Frank Tough. Bounty and Benevolence: A History of Saskatchewan Treaties. McGill-Queen’s University Press, 2000.