Reading and Walking

Walking, Reading, and Reading about Walking

Tag: Michael Asch

77. Arthur J. Ray, Jim Miller, and Frank Tough, Bounty and Benevolence: A History of Saskatchewan Treaties 

bounty and benevolence

Bounty and Benevolence, a collaboration between three historians, was originally commissioned as a research report for Saskatchewan’s Office of the Treaty Commissioner, along with Treaty Elders of Saskatchewan: Our Dream Is That Our Peoples Will One Day Be Clearly Recognized As Nations, by Harold Cardinal and Walter Hildebrandt, an oral history of the treaties that is intended to be complementary to Bounty and Benevolence’s focus on documentary history. Bounty and Benevolence is structurally similar to and covers much of the same territory as Miller’s later Compact, Contract, Covenant, although the focus is on Saskatchewan. That means the commercial compacts with the Hudson Bay Company are discussed first, followed by the Selkirk Treaty of 1817, treaties in eastern Canada that were precedents for the numbered treaties in Saskatchewan, and earlier numbered treaties in Manitoba and northwestern Ontario. After discussing the treaties that affect this province—numbers 4, 5, 6, 8, and 10—there is a chapter on the problems of treaty implementation, followed by a conclusion. Perhaps it’s unnecessary to read both Compact, Contract, Covenant and Bounty and Benevolence because of their similarities, although the focus on one province means that the discussion in Bounty and Benevolence is somewhat more detailed. I read Bounty and Benevolence last summer, as part of a course on the treaties, but I thought it would be useful to revisit the book for this project. After reviewing my notes, I think it’s worthwhile including Bounty and Benevolence here.

The chapter on commercial relationships between First Nations and the Hudson Bay Company notes the importance of protocol and ceremony in those relationships, and the continuity between trade relationships with the HBC and the later numbered treaties: “all the major components of pre-trade gift-exchanges—the calumet rite, the presentation of outfits of clothing to Aboriginal leaders, and the distribution of food—were carried over into the treaty-making process in the late nineteenth century” (9). Ceremony and protocol were also important in the negotiation of the Selkirk Treaty, which in some ways became a bridge between earlier commercial negotiations and the later numbered treaties (31). Moreover, like the later numbered treaties, the Selkirk Treaty was marked by confusion over what the two parties actually agreed to (30).

The discussion of other treaties in eastern Canada includes the Royal Proclamation of 1763 and the Two-Row Wampum that records the negotiations concluded at the 1764 Niagara Conference. According to the authors, in the 1990s John Borrows “made a strong argument that the proclamation, when read together with the solemn agreement made shortly thereafter at Niagara, constituted a treaty between First Nations and the Crown that positively guarantees First Nations the right of self-government” (33). Borrows’s essay is important and I ought to re-read it. (Borrows is an essential writer on treaty issues and I have several of his books on my reading list.)

The more pertinent forerunners of the numbered treaties are the Robinson Treaties, which, like the later treaties, allowed First Nations economic rights on all ceded lands (outside of reserves) that were not developed by settlers. As the authors point out, “This right included the subsistence and commercial use of fish, fur, and game resources on the understanding that this justified offering the Aboriginal people much lower annuities than they had demanded in treaty negotiations” (44). The later numbered treaties made similar promises. However, it’s not clear to me whether the Crown negotiators in the 1870s understood that the agricultural use of land would make hunting and gathering difficult, if not impossible. That was the experience of First Nations in Nova Scotia (according to Daniel Paul) and in Ontario (according to Miller and Donald Smith): the impact of settlement on populations of game animals left First Nations in those territories starving early in the settlement process. It’s hard to know if the Crown negotiators were just ignorant or acting in bad faith.

Ray, Miller, and Tough make an interesting argument about the first three numbered treaties: the federal government “was soliciting information from locals and providing negotiators with ‘large powers,’” and this fact “indicates that the dominion government did not have an inviolable draft treaty.” Therefore, First Nations negotiators “had scope to influence the relationship created by treaty negotiations” (63). This situation is perhaps different from later numbered treaties, where the federal treaty commissioners had a clearer sense of the kind of agreement they wanted, and entered negotiations with drafts of treaties already prepared.

Nevertheless, the authors argue that the first three numbered treaties were forerunners for the later numbered treaties, and in this their arguments parallel Miller’s later book. Kinship metaphors, they suggest, were not just paternalistic but were symbolic language—an idea other writers will develop further (66). Specifics about reserves were not made explicit (67), and First Nations were assured that their traditional livelihood would continue after the treaty was negotiated (67). Moreover, they argue that “[t]reaty-making involved an unequal meeting of two property systems” (69). In 2000, when this book was published, this aspect of treaty-making had received little attention, they suggest, and the fact that “the terms describing ownership, land use, and occupancy are used in an imprecise way in the historical records,” as well as “conflicting scholarly theories about the nature of Aboriginal tenure systems,” has caused much confusion (69-70). Much of the research in the area since this book was published has set out to clarify these questions, and oral history has been, I would argue, invaluable in this work. Nevertheless, the documentary record does make clear “that Indian chiefs were well informed about land and resource issues, both in terms of their own needs and of the values Whites placed on them. Significantly, Indians wanted to establish treaty relations with the Crown to address their Aboriginal interest in the land” (69-70). According to the authors, the documentary record can also be used to establish, to a certain extent, the views of First Nations negotiators, at least as far as Treaties 1, 2, and 3 are concerned, using both government records and newspaper accounts (74). Moreover, “[d]ecades of fur trade bargaining gave Indians considerable experience in dealing with European commercial impulses and in seeking the satisfaction of their livelihood needs. Ultimately, Morris was forced to limit the scope of the negotiations by placing the treaties on the basis of some kind of trust: a belief in the Queen’s good intentions” (75). The way I read those sentences, it seems that in the first three numbered treaties, Crown negotiators found themselves being outmatched by their First Nations counterparts. As with other numbered treaties, there are controversies about the differences between oral and written versions of the agreements in Treaties 1, 2, and 3 (77, 81), and “the dominion government sought refuge in the written version of the treaties (81). First Nations used political pressure to get some of the so-called “outside promises” included later in the 1870s (83-84). The authors therefore acknowledge the importance of going beyond the written text of the treaties by examining the context in which they were negotiated in order to understand what the negotiators actually thought they were agreeing to (86).

Both the Crown and First Nations faced challenges when they negotiated Treaty 4. Epidemics of smallpox, buffalo scarcity, and difficult relationships between Métis and First Nations were causing political and military instability, and the federal government was informed of these problems by senior HBC officials and missionaries. For its part, Canada feared the military strength of the Cree and Saulteaux, and did not want to fight (104). Moreover, First Nations were still angry over the transfer of Rupert’s Land from the HBC to Canada without consultation. As a result, Treaty 4 negotiations happened without a pipe ceremony or other rituals (107-08). According to the authors, there is a sharp contrast between accounts of the negotiations provided by Morris and First Nations elders (111), and Morris’s language in speeches was vague compared to the precise language of the treaty document (112). These facts may lead one to assume that Morris was not being truthful in the negotiations, an argument that Michael Asch repudiates but that Sheldon Krasowski seems to support. Nevertheless, most of the terms of Treaty 4 ended up being identical to Treaty 3 (113). Reserves would be small, but hunting, trapping, and fishing rights off reserve were promised, with limitations for land taken up by settlement or other purposes (115). The relationship with the Queen promised First Nations protection and equal justice (117). The chiefs present at the negotiations asked for copies of the written treaty (118), a sign, perhaps, that they did not entirely trust the Crown to hold up its end of the bargain.

The Treaty 5 negotiations affected only three First Nations in northern Saskatchewan, and it left First Nations with reserves that were much smaller than in Treaties 3, 4, or 6. Treaty 6, however, covered a large area in Saskatchewan and Alberta. The First Nations chiefs won more emphasis on famine relief and medical assistance because their people were suffering from the continuing decline of the bison and the severe effects of the smallpox epidemic. The clauses they negotiated, according to Ray, Miller, and Tough, were compatible with the assistance First Nations had received from the Hudson Bay Company previously (130). Morris presented the treaty to First Nations as a gift from the Queen: “They would have the use of their lands ‘as before,’ but with the addition of presents, annuities, and other benefits” (130). Unlike the Treaty 4 negotiations, Treaty 6 talks began with a pipe ceremony, and it appears that the federal commissioners didn’t quite understand the significance of this (133). “Treaty 6 was the culmination of the treaty-making tradition in western Canada,” the authors state, perhaps because it is the treaty in which the most concessions were wrung from the federal negotiators (146-47). Later treaties reduced the commitments of the federal government, and as Asch notes, Morris lost his job for making concessions in the Treaty 6 negotiations.

Treaty 8, which covers part of northern Saskatchewan, was negotiated 20 years later, with a great deal of haste and carelessness. The Crown wanted to open up northern areas of the western provinces to prospectors, and that was its rationale for beginning the negotiations, which First Nations had been requesting for some time. There are no records of the discussions, just the final text. First Nations sought more explicit protection for hunting, fishing, and trapping rights, because they were aware of what was happening on the prairies south of the boreal forest (the pass system, for example). The government tried to assure the chiefs that First Nations people would not be restricted to their reserves. Treaty 8, the authors write, “allowed for the peaceful economic development of the region at a time when federal and provincial policing powers were stretched thin. . . . It is certain that the economic development of the Athabasca, Mackenzie, and Peace River districts in the late nineteenth and early twentieth centuries could not have been accomplished peacefully without Treaty 8” (168). However, the oral histories of Treaty 8 people make it clear that the promises of guarantees of fishing, hunting and trapping rights were not kept (169). Like Treaty 8, Treaty 10 was negotiated because of pressure of economic development, and because the creation of the province of Saskatchewan resulted in pressure to bring northern First Nations into treaty (171-72). Treaty 8 served as a model (186), and the concerns raised by First Nations echoed those raised in previous negotiations (186). Again, First Nations were looking for the same kinds of benefits they had previously received from the HBC (186).

The chapter on treaty implementation tells a familiar and terrible story. There were problems about the way the treaties were implemented almost immediately, and in 1878 the First Nations that signed Treaty 4 threatened to refuse their annuities, thereby repudiating the treaty (187-88). Complaints were made by First Nations to Lord Lorne, the Governor General, in 1881 (188). The differences between the written text and oral promises were a large part of the problem. Meanwhile, Sir John A. Macdonald and Edgar Dewdney were cutting government spending on the Indian Department while diverting its budget to residential schools (190). There was little direct resistance, however; the authors cite the Yellow Calf incident of 1884 as one of the few examples of armed resistance to the failure of the government to live up to its treaty promises (190). It is clear, they write, from the lists of grievances written by First Nations chiefs that Treaty 4 included a guarantee of government assistance sufficient to enable First Nations to maintain themselves when settlers arrived and interfered with their ability to live by traditional methods (192)—guarantees that were ignored by the government. In Treaty 6 territory, similar issues arose: the government failed to provide farm implements and cattle (196), and First Nations demanded control over their own affairs (196). After 1885, the implementation of the pass system, along with the “peasant farming” and severalty policies later in the 1880s, made the situation worse in southern Saskatchewan (200-01). “All these retrograde policy developments help to explain both the serious problems with treaty implementation that southern First Nations experienced in the 1880s and 1890s and the heightened suspicions with which northern Nations approached treaty-making in the 1890s and first decade of the twentieth century,” Ray, Miller, and Tough write (201). In Treaty 10 territory, there were conflicts over the right to fish, hunt, trap, and gather (201). Part of the problem was the 1876 Indian Act, which led to policies of political control, enforced economic transition, and cultural subjugation and assimilation that bore no resemblance to the attitudes the treaty commissioners displayed in the 1870s (202-03). According to Ray, Miller, and Tough, “This study belongs to the unfolding process of reinterpreting the genesis, contents, and impact of the treaties that is still going on” (204).

Unlike Asch, the authors don’t seem to like Morris very much, referring to the “complacent self-satisfaction” his book on the treaties reveals (204). They suggest that Harold Cardinal’s The Unjust Society (another important book, also on my reading list) played a key role in changing the attitudes of historians towards the treaties, and cite the work of Gerald Friesen, Jean Friesen, and John Tobias as central to creating a viewpoint that, by the late 1990s, “could legitimately be described as the new, more critical orthodoxy” (208). Although their book focuses on the documentary record, they write that these texts “cannot provide a complete and finished historical version of the meanings of a treaty relationship between First Nations and the Crown” (214). They argue that their study has uncovered important findings regarding the continuity of the relationship between First Nations and the HBC, and First Nations and Canada; the Crown’s consistent position during negotiations of various treaties; promises to ensure First Nations livelihood; and the problems of treaty implementation (214). “In the immediate treaty-signing era, problems arose that reflect on the different understandings of the treaties and/or the failure to implement the treaties in good faith,” they write (214). So much waffling is contained in that phrase “and/or”! I would have hoped for a much clearer conclusion regarding this crucial issue. Did the government implement the treaties in good faith? No. Did the two sides understand the treaties differently? Yes. But did the Crown negotiators act in good faith? That’s a central question that’s left open here. It might be the central question of the history of the numbered treaties.

Bounty and Benevolence is an important work, but it is now somewhat out-of-date, I think, especially given the importance of works by First Nations writers like Aimée Craft and Harold Johnson, as well as the Treaty Elders of Saskatchewan book. After all, if the documentary record is incomplete, and if oral history can fill in the gaps in that record, then it’s important to use that testimony as well. In fact, I tend to find the books that rely on oral history more useful than works like Bounty and Benevolence, although as Sheldon Krasowski’s No Surrender indicates, there are resources in documentary history that previous historians have ignored. In any case, despite its limitations, Bounty and Benevolence is a useful overview of treaties in Saskatchewan.

Work Cited

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

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

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.

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.