78. Aimée Craft, Breathing Life Into the Stone Fort Treaty: An Anishinabe Understanding of Treaty One
Breathing Life Into the Stone Fort Treaty, which I read last summer along with other work on the treaties between Canada and Indigenous peoples, is an important book, and after reviewing my notes, I decided to include it as part of this project. Craft focuses on the negotiations that led to Treaty 1, but her insights likely apply to treaties negotiated in what is now Saskatchewan (particularly Treaty 4, given the presence of Anishinabe negotiators at Fort Qu’Appelle in 1874). Craft is a lawyer, and she is interested in inaakonigewin, or Anishinabe law, in the context of Treaty 1. According to Craft, two legal systems were involved in the negotiations, Anishinabe and settler law, and both are important to understanding the treaty. “Indigenous interpretations of treaties are needed,” Craft writes, “so that we can continue to breathe life into what are essentially relationship documents, while accepting that past interpretations have resulted in significant disagreement” (12). To understand the treaty requires attention to more than just the written text, she continues. “It may be that there was no meeting of the minds or common intention at the time of Treaty One, beyond the agreement to share the land in a spirit of peace and coexistence,” she writes, “and that we are now faced with elaborating an appropriate meaning of a treaty that both parties considered they had made” (12). Craft’s focus is on the Anishinabe understanding of the treaty, which was “rooted”—her word, and it’s an important word in this context—“in procedural and substantive norms derived from Anishinabe inaakonigewin” (12). To understand the treaty in that way requires attention to the oral history of the negotiations (13). What’s important, according to Craft, is that the understandings of both sides in the negotiations be taken into account. “In order to interpret and implement treaties as meaningful agreements, the different and differing understandings need to be addressed,” she writes. “Although the treaty parties may have understood that they each had differing perspectives, each was guided by its own understandings, including its own legal tradition and jurisdiction” (13).
The Supreme Court’s ruling on treaties—that the words of the written text “must not be interpreted in their strict technical sense nor subjected to rigid modern rules of construction,” but rather are to be understood “as they would have been construed by the Aboriginal signatories, and interpreted flexibly, with the use of extrinsic evidence” (qtd. in Craft 14)—suggests the importance of Craft’s approach, although she states that this approach has not led to “meaningful or complete understanding of Aboriginal-Crown treaties, nor has it achieved the court’s goal of remedying disadvantage” (14). Instead, treaty interpretation in the courts has tended to favour the Crown’s perspective, and has set tended to ignore Indigenous perspectives, and “[i]n practice, many court decisions have resulted in narrow understandings of treaties, often limiting the treaty rights in space and in time” (14). This leads to Craft’s primary research question: “How can years of uni-directional understanding based on a written text and privileging the Crown’s view, be reconsidered in order to give voice to the Anishinabe understanding of treaty?” (14-15). To answer this question, Craft triangulates between the written record of the negotiations, oral histories, and Indigenous knowledge (16). Her book discusses five distinct concepts: Anishinabe practices of treaty-making with Indigenous nations, fur traders, and the British Crown prior to Treaty 1; the particular context of the Treaty 1 negotiations; the reliance on and use of Anishinabe protocols in the negotiations, which “illustrates the use of Anishinabe procedural laws” in the negotiations “and informs the substantive expectations of the treaty,” including its sacredness; the importance of Anishinabe kinship norms; and finally, the Anishinabe understanding of their relationship to the earth, which “informed what could be negotiated in terms of sharing the land with the incoming settlers” (16). According to Craft, “[a]ll these concepts lead to the understanding that Treaty One was an agreement to share in the land, for the purposes of agriculture, in a spirit of ‘peace and good will’ with assurances of an ‘allowance they are to count upon and receive year by year from Her Majesty’s bounty and benevolence’” (16-17).
Pre-contact Anishinabe diplomatic or treaty relationships that continue today include the Council of Three Fires (24), the Dish With One Spoon agreement with the Haudenosaunee (24-25), and peace treaties with the Dakota (25). The Anishinabe also had diplomatic relationships with fur traders, and these used Indigenous protocols, especially the pipe ceremony (25-26). Craft also argues that the Guswenta or Kaswehnta, known in English as the Two-Row Wampum, and the later Covenant Chain, informed Anishinabe relationships with the Crown as well (31-32). “The non-interference and mutual assistance that are illustrated by the Covenant Chain belt and the Two Row Wampum help further illustrate the perspective that the Anishinabe brought to the treaty and the mutual reliance of the treaty parties on the Anishinabe procedural and legal principles that informed Treaty One,” she writes (34). The importance of the Two-Row Wampum to Craft’s argument is another reason to revisit John Borrows’s essay on that treaty, sooner rather than later.
The context of the Treaty 1 negotiations included the 1817 Selkirk Treaty (38), Louis Riel’s call for treaties in his list of demands during the 1869-70 Resistance (42), and political uncertainty and instability, which led settlers in Manitoba to want a treaty as well (44). The negotiations for Treaty 1 began with assurances that hunting, fishing, trapping, and other harvesting would continue as before, and that the Queen would not force the Anishinabe to adopt white ways (such as agriculture) or interfere in existing Anishinabe ways (51). “Retention of autonomy, jurisdiction, and sovereignty over their actions was essential to securing the agreement with the Anishinabe,” Craft writes (52). However, there is no record of an explanation of the concept of surrendering land (54); had that concept been explained, Craft believes, the negotiations would have collapsed (64). In addition, it is clear in the documentary record that the Crown and the Anishinabe had different ideas about what was meant by “reserve” (54-55). Nevertheless, Craft argues that the Crown knew that “the Anishinabe were not approaching land issues using an acquisition and possession model” (60). “It is my view, based on the evidence taken as a whole,” she writes, “that the Anishinabe agreed to share the land with the settlers and allow them to use the land they desired for agriculture. The Anishinabe also understood that they could continue to use their territory for their traditional activities” (60-61). Neither party would interfere with the other, but, according to Anishinabe elders, they would share the land and its resources (61). “Even if the Anishinabe had a vague understanding of British or Canadian concepts of ownership, they likely did not perceive themselves as being bound by them” (65), because Indigenous and Canadian law systems co-existed (and continue to co-exist, according to John Borrows, among others) (67).
According to Craft, the Anishinabe were governed by their own laws, which focus on kinship between various animate beings, including animals, fish, plants, rocks and spirits, and the land (70). She rightly (in my opinion) dismisses the notion of “fictive kinship.” “There is no fiction in Anishinabe kinship,” she writes (70). Every relationship—including those with non-human things—carries with it mutual responsibilities and obligations (70-71). In addition, the reliance of the negotiators on Anishinabe protocols “invoked substantive normative expectations on the part of the Anishinabe, which informed the development of the Treaty One relationship,” even though this may not have been completely understood by the government negotiators (71). Perhaps the most important protocol was the pipe ceremony, which “was used to call upon the Creator to act as a third party to the negotiations and the agreement” (81). The resulting promises the two parties made were considered sacred (at least by the Anishinabe) (81).
Crown negotiators spoke of the Queen and the Anishinabe as being in a mother-child relationship, which (for the Anishinabe) established a kinship relationship with the Queen (86). This mother-child relationship entailed obligations of love, kindness, and caring, such as in the relationship between Mother Earth and the Anishinabe (87). According to Craft, when the treaty negotiations became a kinship ceremony, the “Anishinabe pledged to the Creator to share the land with the Queen’s other children, in accordance with principles of kinship, equality, and reciprocity” (92-93). Moreover, it was clear during the negotiations that the Anishinabe—most of the chiefs present, anyway—described their relationship to the land as being one with “a living being, a mother” (95). For this reason, Craft argues, “[t]he Anishinabe did not surrender their land in the Treaty One negotiations. It was not in their power to do so, as they did not own it. In their eyes, they were in a sacred relationship with the land, endorsed by the Creator” (99). The Crown negotiators, however “viewed the treaty as a transfer of land” (99). These mutually exclusive ideas continue to inform the differing perspectives on the treaty (103).
There were problems with the implementation of the treaty, as there were with other numbered treaties. Outside promises were at first not included in the treaty, although they were added in 1875 (104). The Anishinabe also refused to abide by hunting and fishing regulations, which go against the treaty’s provisions (105). “The frequency and detailed nature of post-treaty complaints by the Treaty One chiefs can lead to the assumption that, in addition to the outside promises added to the treaty in 1875, there were other promises that may not have been recorded in Commissioner Simpson’s report,” Craft writes. “The negotiated agreement was likely far more nuanced than the reported terms of a treaty rooted in surrender of land in exchange for annuities and goods” (106).
For Craft, a better understanding of Treaty 1 can be achieved by considering the Anishinabe perspective on the negotiations, including substantive and procedural legal principles that helped make the treaty. There was no hybrid or “intersocietal law” at the negotiations; rather, there were two distinct systems of law in operation, and by adopting both the procedural and substantive forms of Anishinabe law during the negotiations, the Crown representatives engaged the legal framework of the Anishinabe, even if they didn’t understand that they were thereby operating according to Anishinabe law (107). For that reason, it’s not acceptable to consider the implementation and interpretation of the treaty only in terms of Canadian common law (108). She quotes elder Victor Courchene, who suggested that the treaty invited settlers “to come and eat from that plate together with the Anishinabe” (110)—to share the land and the resources together, in other words. There was no cession, release, or surrender of land, but rather “compromise and coexistence” (112)—or at least that’s the deal the Anishinabe thought they were making. Moreover, the treaty is not a finalized document. Rather, in Anishinabe inaakonigewin, relationships continue to be fostered, redefined, re-examined, renegotiated, tended, fuelled, and nurtured; a treaty frozen on paper is, for the Anishinabe, an alien concept (113). This is important, she concludes, because “[t]reaties are agreements between two parties in which neither perspective should be privileged over the other” (113), and therefore the Anishinabe perspective she describes needs to be considered foundational when the treaty is discussed.
Craft’s brief book is important, because it focuses directly on one treaty in detail, although doubtless its argument could apply to other numbered treaties as well (and if not its argument, its methodology). It’s true that she relies on conjecture throughout the book, but no doubt that’s because of the difficulty in reconstructing what the Anishinabe negotiators were thinking. That’s where oral history comes into play, although Craft seems somewhat cautious in applying it. Nevertheless, the perspective Craft outlines is important, because the standard government interpretation of the treaties as a surrender of large tracts of land in exchange for smaller ones makes no logical sense, and seems to rely on an assumption that the First Nations negotiators could not bargain on their own behalf successfully. If, on the other hand, the treaties were promises to share the land and its resources, then they begin to make sense. There is no way to understand the numbered treaties without taking the perspective of the First Nations negotiators into account, and for that reason books like Craft’s are essential.
Craft, Aimée. Breathing Life Into the Stone Fort Treaty: An Anishinabe Understanding of Treaty One, Purich, 2013.