Last summer, I took a course on treaties in Canada with Jim Daschuk, the author of Clearing the Plains: Disease, Politics of Starvation, and the Loss of Indigenous Life. I read 16 books about treaties—about the relationship between settlers and Indigenous Peoples in Canada, in other words—and one point kept jumping out at me: there was no surrender of land. A careful reading of the primary written document about the numbered treaties in western Canada, treaty commissioner Alexander Morris’s first-hand account, The Treaties of Canada with the Indians of Manitoba and the North-West Territories, Including the Negotiations on Which They Were Based, and Other Information Relating Thereto, shows that at no time during the negotiations of any of the treaties did Morris discuss the significance of the surrender clause in the prepared written text. Work by Indigenous writers, and Indigenous oral histories, are emphatic that there was no surrender of land. In her book on Treaty One, for example, Anishinaabe legal scholar Aimée Craft argues that “[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). Cree writer Harold Johnson states emphatically that 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). And the Treaty Elders interviewed by Harold Cardinal and Walter Hildebrandt are shocked to learn of the clause in the written treaty documents that extinguish Indigenous rights and privileges regarding the land. 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)
I was surprised to learn that the government’s basic understanding of the numbered treaties—the notion that the Indigenous Peoples who participated in the negotiations surrendered their ownership of their land—was incorrect. That surrender seems to have been the Crown negotiators’ primary goal, but by remaining silent on the surrender clause during the negotiations, they lied by omission, which brings the validity of the surrender clauses in the treaties into question and the honour of the Crown into disrepute. In the essay I wrote as part of the course, I focused on the notion that the land had not been surrendered. When I met with Jim to discuss the paper after the course was finished, he had noted every time I stated that the land hadn’t been surrendered in the numbered treaties. “There’s a book forthcoming from University of Regina Press about this point,” he said, “and you need to read it.” I added the title to my comprehensive exam reading list. Then, just before the university closed for Christmas, I found a copy in my mailbox: Jim had just received his copy of Sheldon Krasowski’s No Surrender: The Land Remains Indigenous, and he was loaning it to me.
Krasowski, a historian at Athabasca University, begins by stating his disagreement with the so-called “cultural misunderstanding” thesis, which has shaped scholarship on the numbered treaties. That argument suggests that because of the differences in language and culture between Indigenous Peoples and the Crown negotiators, there was no way they could have understood each other, and that since the numbered treaties were the product of this mutual incomprehension, they are not important. In his thesis statement, Krasowski is clear about his methodology and what he learned through his research:
By analyzing Treaties One through Seven as an interconnected whole, and arguing against the cultural misunderstanding thesis, I demonstrate that Indigenous Peoples did not surrender their land through the treaty process. Indigenous Chiefs agreed to share their land with settlers in exchange for treaty benefits offered by the Canadian government, including annuity payments, reserved lands, education, and assistance with the transition to agriculture. But they certainly did not surrender the land. It was to remain Indigenous. (2)
The treaty commissioners, Krasowski continues, had a common negotiating strategy: they discussed only the benefits of the treaty and ignored the downsides, including the surrender clause (2-3). “Most importantly,” he writes, “Canada followed Indigenous Protocols for Treaties One through Seven, and the ceremonies led by Elders established a spiritual bond between Euro-Canadian and Indigenous Peoples that continues to exist as long as the sun shines, the grass grows, and the rivers flow” (3).
Krasowski comes to this conclusion through research into all of the written documents about the treaties—not just the official texts, or Morris’s version of events, or official reports and dispatches, but also eyewitness accounts by journalists, missionaries, North-West Mounted Police officers, settlers, and others present at the negotiations. Some of those documents are public, while others are public, but taken together, they give a much fuller account of what happened at the negotiations of the numbered treaties (4-5). Krasowski also takes oral histories into account, but he points out that it’s essential to understand those accounts within their spiritual and ceremonial contexts (5). It’s important to look at both documentary and oral histories, he argues: “the oral histories fill in many of the gaps in the written records, and the written documents can add to the oral histories” (5-6). He also consults the original handwritten treaty texts, which reveal details that the published versions omit (9). “The texts of the treaties can help to explain Canada’s goals in the treaty process,” Krasowski writes, “but they must be analyzed within the contexts of the eyewitness accounts and Indigenous oral histories” (9).
I’m mostly interested in Treaty Four—that’s where I live, and the subject of my own research—so although Krasowski argues that the treaties need to be understood together, I’m going to jump ahead to his discussion of the Treaty Four negotiations. How does that discussion suggest that there was no surrender of land during those negotiations? The Treaty Four negotiations were unusual, compared to the other treaty negotiations, for several reasons. Many historians, following Morris, suggest that there was animosity between the Cree and Saulteaux Chiefs during the negotiations, but Krasowski argues that the animosity that existed was actually between the Chiefs and the Hudson’s Bay Company, tensions that “were exacerbated by the treaty commissioners” (148) because of their failure to pay attention to what the Chiefs were telling them, and because by holding the negotiations close to the Hudson’s Bay Company facility at Fort Qu’Appelle, they were aligning themselves with the Company. The Chiefs were angry because the Company had sold their land to the Dominion of Canada as part of the sale of Rupert’s Land, and that anger was part of the reason that the first three days of negotiations were unproductive. Chief Pasqua, for example, told the treaty commissioners that the £300,000 the Hudson’s Bay Company had received for the sale rightly belonged to Indigenous Peoples (140). Only on the fourth day of the negotiations, after Morris agreed to the Cree and Saulteaux Chiefs united request to meet away from the Hudson’s Bay Company fort, did the negotiations begin in earnest (150). But after Morris repeated the terms of the treaty—omitting the surrender clause, of course—the Chiefs refused to reply. The Gambler, a Saulteaux headman who spoke for Wa-wa-se-capow, the Head Chief of the Saulteaux at Fort Ellice, stressed that the Métis needed to be included in the treaty, and that the association of the treaty commissioners with the Hudson’s Bay Company was blocking the negotiations. The Gambler was also angry that the Company had been surveying land outside its forts—land which belonged to the Cree and Saulteaux peoples. Morris’s response—that The Gambler had been listening to bad voices—offended The Gambler, who accused the Company of stealing Indigenous land (150-51). Morris’s response, according to the official record, was that the Great Spirit made the land “for all his children to use, and it is not stealing to use the gifts of the Great Spirit” (151). Journalist F.L. Hunt, who was covering the negotiations for The Manitoban and was married to a Nakoda woman, recorded the response of Pah-tah-kay-we-nin, one of the Chief’s speakers: “True, even I, a child, know that God gives us land in different places and when we meet together as friends, we ask from each other and do not quarrel as we do so” (151-52). For Krasowski, that response “represented the essence of the treaty relationship: the Cree and Saulteaux had their lands, and the Europeans had their lands, and the negotiations should be based on sharing and mutual respect” (152). He believes that Hunt understood this: he described Pah-tah-kay-we-nin’s response as “a grand act simply and perfectly well done” (152).
After The Gambler agreed to set aside the issue of the Hudson’s Bay Company’s sale of Rupert’s Land, the negotiations continued. At this point, Krasowski notes that according to oral histories, part of the delay in beginning the negotiations was the fact that the Cree and Saulteaux needed time to prepare themselves, and that those preparations included Sacred Pipe Ceremonies, which protected the foundation of the treaty relationship: peace and harmony (154). Unlike the other numbered treaties, there was no Sacred Pipe Ceremony between the Indigenous negotiators and the treaty commissioners—something Morris complains about in his account—and for that reason, some First Nations people believe that Treaty Four is incomplete, because “the bond of the treaty was not formed until the ceremony took place” (155).
“The most controversial difference between the Treaty Four oral and written accounts is the surrender clause,” Krasowski writes (157). The oral histories say there was no surrender, just an agreement to share the land to the depth of a plow—about six inches (158). The written sources, on the other hand, “show that Morris and the treaty commissioners utilized two main strategies when dealing with the cession of land” (158). The first was to discuss only the benefits of the treaty and ignore the drawbacks. There is no evidence, for example, that the surrender clause was mentioned, according to Krasowski; nor was there any acknowledgement that the written text of the treaty indicated that hunting and fishing rights could be regulated by the government (158-59). The second strategy had to do with the reading of the written treaty text at the end of the negotiations. At the end of Treaty Four, Morris asked interpreter Charles Pratt to interpret the written text of the treaty into Cree and Saulteaux. Pratt’s surprised response, recorded by eyewitnesses, suggests that he was not prepared to do this. “Pratt was known as an exemplary interpreter,” Krasowski writes, but the surrender clause, and much of the text of the written treaty, “would have been difficult to translate because of the legalistic language” (160). According to Treaty Elders, the surrender clause would have been impossible to translate (160). As an interpreter for missionaries, Pratt often “changed elements of the Christian teachings to soften their Eurocentric edges and avoid critiques of Indigenous traditions,” Krasowski contends, and “[h]e likely applied the same technique to his interpretation of the treaty text” (159-60), and so “Pratt could have explained the land cession clause ‘in his own terms,’ which would have been more appealing to the audience, or he could have avoided it altogether” (160). Of course, this argument is conjecture; nobody knows exactly what Pratt said, because his Cree and Saulteaux translation was not recorded by eyewitnesses, but given the response of Treaty Elders to the surrender clause, Krasowski’s interpretation seems more than possible.
Hunt, the journalist, noted that there was shrewd bargaining and a sense of equity between both sides during the negotiations (161). However, it appears that the Chiefs believed that the 1874 negotiations were merely preliminary—without a Sacred Pipe Ceremony, they could not have been finalized, according to Cree and Saulteaux spiritual and legal traditions—and the following year they attempted to increase the annuities and gifts the treaty provided, and also to get additional tools and training to make the transition to farming. “Most of these demands were reasonable and showed a willingness to farm,” Krasowski writes, “but the Canadian government chose not to grant the requests even though many of the farming implements were included in Treaty Six two years later” (164). The Chiefs were given additional ammunition and twine for fishing nets only. When their demands were not met, many Chiefs abandoned their reserves and returned to the Cypress Hills to hunt; they were not going to take up farming until forced to do so by the extirpation of the bison (164). It is also possible that, as Indigenous legal scholars like Craft and John Borrows suggest, according to Indigenous law a treaty is an ongoing relationship that needs to be developed through continuing discussions and negotiations, and that would also explain the attempt by the Chiefs to continue the negotiations.
So, does Krasowski’s account of Treaty Four support his contention that the land was not surrendered? I think it does. Morris’s account of the negotiations, the only primary text I have read as yet, discusses the treaty terms in detail, but never mentions the surrender clause, and since that omission was repeated in the negotiations of the other numbered treaties, it seems likely that it was part of a strategy. His discussion of Pratt’s translation is conjecture, it is true, but Pratt wanted the treaty negotiations to be successful—he was concerned about what would happen if the bison disappeared from the prairies (160)—so aside from the difficulty of translating the legalistic language of the surrender clause, and the cultural obstacles to that translation, maybe he would have been motivated to skip over that part of the text. The negotiations were difficult, after all, and it is possible that the suggestion that by entering into treaty the Chiefs would be surrendering their peoples’ lands would have scuttled the negotiations entirely. That is Aimée Craft’s argument about Treaty One: if the surrender clause had been explained clearly, those negotiations would have collapsed (64). No doubt the same is true of Treaty Four.
If the treaty commissioners were silent about the surrender clause, they were lying by omission, and what does that mean about the treaty they negotiated? “At least,” Krasowski writes, “the absence of the surrender clause during the discussions casts doubt on the validity of the complete surrender of Indigenous Lands” (272). “The primary documents analyzed in this book describe a treaty relationship central to the relationship between settlers and Indigenous Peoples,” Krasowski concludes. “The latter agreed to share the land so that settlers could make a living by farming. Through the negotiation of the numbered treaties, Euro-Canadians received access to the land and the security of peaceful relations with First Nations. Euro-Canadians were also required to act as stewards of the land in partnership with Indigenous Peoples” (276-77). Moreover, the treaty relationship and the model of governance it established were “an equal partnership of Indigenous Peoples and Euro-Canadians” (277). For Krasowski, “Indigenous Peoples and Euro-Canadians have different cultures and traditions, but both can understand the shared rights and responsibilities under the treaty relationship” (278). Of course, neither the federal government, nor our provincial governments, understand the numbered treaties in this way. If, for example, the treaties are an agreement to share the land for agricultural purposes only, then mineral rights ought to remain with Indigenous Peoples. If there was no surrender of land, then the government had no right to survey and sell all the land outside of the reserves First Nations peoples chose. Moreover, if there was no surrender of land, then the notion of Crown land is completely wrong-headed: that land would belong to First Nations, and not the Crown. Krasowski’s argument, if it is true—and from my reading of other texts about the treaties, I think it is—has profound implications for our understanding of the relationship between settlers and First Nations peoples. I hope we have it in us to accept the truth—that there was no surrender of land—and then to begin to change the way we understand that relationship.
Oh, and thanks to Jim Daschuk for the loan of the book.
Borrows, John. “Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government.” Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference, edited by Michael Asch, U of British Columbia P, 1997, pp. 155-72.
Craft, Aimée. Breathing Life Into the Stone Fort Treaty: An Anishinabe Understanding of Treaty One. Purich, 2013.
Krasowski, Sheldon. No Surrender: The Land Remains Indigenous. U of Regina P, 2019.
Morris, Alexander. The Treaties of Canada with the Indians of Manitoba and the North-West Territories, Including the Negotiations on Which They Were Based, and Other Information Relating Thereto. 1880. Coles Canadiana, 1971.