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Tag: Breathing Life into the Stone Fort Treaty

78. Aimée Craft, Breathing Life Into the Stone Fort Treaty: An Anishinabe Understanding of Treaty One 

breathing life

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.

Work Cited

Craft, Aimée. Breathing Life Into the Stone Fort Treaty: An Anishinabe Understanding of Treaty One, Purich, 2013.

70. Harold Johnson, Two Families: Treaties and Government

This summary is another adaptation of one I wrote for Dr. James Daschuk in the course on treaties I took with him last summer. And it’s more than appropriate to post this on Canada Day, because Cree writer and former lawyer Harold Johnson calls what we mean by Canada into question in Two Families: Treaties and Government. It was one of the most radical books I read last summer, and I continue to return to it, perhaps for that reason.

Johnson begins his book by introducing himself and his relations: “I am of this land,” he writes, echoing the Anishinabe Chiefs Craft discusses. “I am of this earth” (11). “I do not say that I own this land; rather, the land owns me,” he continues (13). That land holds stories, including the stories of the relationship between First Nations and settlers (12-13). “They can help us to live here in a good way if we learn to listen,” Johnson states. That is the purpose of his book: to teach settlers what they need to know if they are to live in this place—in Johnson’s perspective, the Treaty 6 lands—in a good way: to explain Cree laws and history, to explain how they are different from what settlers might have been told, to explain how the Canadian Constitution fits into Cree supreme law, and to “suggest how we might live together as two families sharing the same territory” (14). He will never suggest that settlers should go home, Johnson continues, because we “have a treaty right to be here” (14). Immediately Johnson’s perspective becomes clear: the treaties subtend Canadian law because they give settlers the right to share this land.

The key term in Johnson’s discussion is a Cree word he was given by Elders: kiciwamanawak, or “our cousins.” That is the term they told him he should use when addressing or talking about settlers. The kinship term is important. “In Cree law,” Johnson writes, “the treaties were adoptions of one nation by another” (13). That’s the reason Canadian laws are subordinate—or should be subordinate—to Cree law, in Johnson’s perspective: settlers were adopted by the Cree, and not the other way around.

Before settlers arrived, Johnson argues, “[w]e lived according to the laws of the Creator, which incidentally look a lot like the laws of ecological order” (18). It is the Creator’s laws that are superior to settlers’ legal systems. Those systems are simple compared to the laws of the Creator; a student could spend a lifetime trying to understand the questions that the phrase “All My Relations” raises (18-19). In Cree society, people are equals, and that means that Cree people and whites are also equals. “We should be living as two families in the same territory,” he states (20). He continues, giving a glimpse of what the Cree might have expected when they were negotiating Treaty 6:

When your family arrived here, Kiciwamanawak, we expected that you would join the families already here, and, in time, learn to live like us. No one thought you would try to take everything for yourselves, and that we would have to beg for leftovers. We thought we would live as before, and that you would share your technology with us. We thought that maybe, if you watched how we lived, you might learn how to live in balance in this territory. The treaties that gave your family the right to occupy this territory were also an opportunity for you to learn how to live in this territory. (20-21).

It’s worth noting that one of the Cree words for reserve, iskonigan, also means “leftover” (Wolvengrey 39). More importantly, it’s clear that, according to Johnson, settlers were supposed to adapt to Cree ways of living and laws, rather than the other way around. That, of course, did not happen, and one of the central reasons (aside from the sheer number of settlers who arrived in the 1880s and 1890s) might have been the way settlers and their government(s) have (as Johnson would argue) misunderstood the treaties.

There is no coherent theory that explains the sovereignty of the Crown in this territory, Johnson argues, unless one relies on “the out-moded doctrine that you have a right to this territory because you are superior to my family”—a doctrine that rightfully belongs to the KKK or the Aryan Nations (23). “Discovery cannot be justification for your family’s occupation of this territory,” he continues. “Your family did not discover this place. It was never lost” (23). Nor were First Nations conquered in battle. Therefore, “the only right you have to occupy this territory must come from treaty. You have a treaty right to be here,” Johnson concludes. “The only coherent theory that provides for your sovereignty that is not based on supremacist ideology is that you obtained the right to be here through negotiation and agreement” (25). Notice that Johnson is shifting between the words “occupation” and “sovereignty,” words that are not synonyms. Otherwise, “[w]e are left to assume that the Crown stole sovereignty, and that certainly is not honourable” (25). 

One of the ceremonies given to the Cree by the Creator is adoption, and for Johnson that is what happened when the treaties were negotiated. “It was in accordance with the law of adoption that my family took your ancestors as relatives,” he writes. “We solemnized the adoption with a sacred pipe. The promises that my ancestors made are forever, because they were made under the Creator’s law. This adoption ceremony is what we refer to when we talk about treaty” (27). The Cree adopted the Queen, according to Johnson, rather than the reverse (29). Of course, the implementation of the treaties did not reflect this understanding, and Cree societal structures have been damaged as a result. That is because of the difference between the written text of the treaty and the oral histories about it (41-42). “I doubt the Treaty Commissioner explained the treaty in a way that conveyed the meaning the Crown assigned to the words, ‘cede, release, surrender and yield up . . . all rights titles and privileges,’ and the limits to be placed on hunting and fishing,” Johnson argues (42). Sheldon Krasowski would agree with Johnson on this point, and in No Surrender: The Land Remains Indigenous, he goes beyond Johnson’s conjecture. On the contrary, Johnson argues, Elders who are familiar with the oral histories “dispute the written record of the treaties. . . . When the written record is compared with the oral history, it is clear that much of what my family members said to the commissioner has been omitted, and that which has been recorded has been perverted” (43). The word “perverted” suggested an intentional decision to mislead or misrepresent, which is the opposite of the conclusion J.R. Miller reaches in Compact, Contract, Covenant, or that Michael Asch comes to in On Being Here to Stay: Treaties and Aboriginal Rights in Canada. The cultural arrogance of the recorder, the people who write things down, is the reason for this perversion, and it’s a problem that doesn’t exist in oral history, according to Johnson, because in oral history the historians are bound by the Creator to maintain an accurate record of what was said and done, or else they will suffer negative consequences (43-44). “The written text of the treaties has no more authority than the oral histories,” Johnson continues. “The authority assigned to the written text is a subversion of what really happened,” which was that settlers “came under our law when you came to this territory. That is simple. You abide by the laws, customs, and traditions of the people in whose territory you reside (45).

Abiding by Cree law would mean abolishing hierarchies and artificial entities like corporations (46, 47, 49). It would also mean understanding that good and evil are extremes best avoided. “Our way of being is our understanding of where we are in relation to our environment,” Johnson writes. “This understanding has many more possibilities than the extremes of good and evil” (51). It would also mean abandoning adversarial ways of thinking about the world (57), as well as the belief that settler society is superior to the Cree. “As long as you insist on your doctrine of superiority, you will be in breach of that law [the law of adoption], and you will not develop your understanding,” Johnson writes. “We want to talk to you but you will not listen” (53).

Other changes would be necessary if Johnson’s understanding of the treaty became widespread, including the abandonment of the concept of property, which is inconsistent with the treaty’s promise to share the land and its resources. “The concept of property is laid over the earth like a sheet of clear plastic: invisible, sterile, and devoid of human connection,” Johnson writes (64). It would also mean that Cree nations have sovereignty, rather than the Crown. “We did not give you control over the entire territory, nor did we abdicate our responsibility to the earth,” Johnson contends. “Under our law, we did not have the right to pass off our duty to your family, to surrender our choice, our authority” (67). Also, the responsibility for resources would have to lie with First Nations, not the province—that decision violates the treaties (68). 

Moreover, the Canadian Constitution would have to be understood as secondary to the treaties. “Your acknowledgement of the treaties as first documents will begin to put us back in balance,” Johnson writes. “When your family accepts that this country’s founding families are yours and mine, then we can begin to search for other truths” (84-85). The doctrine of sovereignty would be unneeded, because settlers “have a treaty right to occupy and use this territory,” granted through the ceremony of adoption. “Sovereignty is an old excuse to deny my family’s equality with yours. Your family has sovereignty and mine does not” (89). And the written text of the treaties? “Kiciwamanawak, my family did not adopt a piece of paper; they adopted you. The paper at tre aty was ancillary to ceremony. My ancestors recognized your paper as your ceremony and participated so as not to offend” (90). The Constitution therefore becomes secondary to the oral treaty record. “I cannot accept that your constitutional documents have any power,” Johnson writes. “I cannot talk to those papers and tell them of the plight of my family. I can only talk to you, Kiciwamanawak, and remind you that you have treaty rights” (90). In fact, the Constitution is a treaty right, according to Johnson (92). He disagrees strenuously with the Constitution’s language regarding existing Aboriginal rights. “The assumption that your family can determine the rights of my family is never clearly articulated in your constitutional documents,” he writes. “Neither have your courts ever articulated a legitimate theory. Authority is merely assumed. Kiciwamanawak, I can only suspect the reason that the theory of your domination is never clearly articulated is because your family does not have one. The old theories of discovery or conquest or emptiness no longer hold true” (103). In fact, the Constitution itself “is subservient to and dependent on the treaties for its legitimacy,” Johnson argues. “There is no other legitimate basis for your occupation and use of this territory. It is only by treaty that you have any rights here at all” (105). And so Johnson returns to his starting point: “If we return to the original intention of treaty and recognize that we are relatives, Kiciwamanawak, we should be able to walk into the future in a good way” (121).

Two Families is a powerful expression of an Indigenous perspective on the treaties. It turns the standard way of thinking about Canada upside-down. I think it is definitely is one of the sources Asch uses in his discussion of treaties. There is a logic to Johnson’s argument that is difficult to deny, if you accept his claim that the treaties were ceremonies of adoption. Aimée Craft doesn’t go that far, in her book on Treaty 1, although she would agree with Johnson that the treaty was about sharing territory rather than surrendering it. And, to be honest, I can’t help thinking that our history would be less shameful if Johnson’s ideas had been shared by Victorian Canadians. There would have been no Indian Act, no residential schools, no pass system. Nevertheless, it’s hard to imagine settlers and First Nations walking into the future “in a good way” (121), even if that’s what reconciliation actually means—although when I think about Johnson’s argument, I become ever more convinced that he’s right, and settlers are wrong.

Works Cited

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. 

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

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

Wolvengrey, Arok. nêhiyawêwin: itwêwina/Cree: words, vol. 1, Cree-English, University of Regina Press, 2001.

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.

Works Cited

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.