Reading and Walking

Walking, Reading, and Reading about Walking

Tag: treaties

83. Alexander Morris,The Treaties of Canada with the Indians

alexander morris

Alexander Morris’s The Treaties of Canada with the Indians is important because it is a primary document about the negotiations of Treaties 1 through 7. What is most valuable about this book is the way it includes (however imperfectly) the voices of the Indigenous negotiators, but it is important as a record of what the Crown’s representatives were thinking as well. I think it’s best written in the context of contemporary reflections on the treaties, particularly those by Indigenous writers, because otherwise one might come away thinking that the texts Morris and his colleagues negotiated are the substance of the treaties, rather than the relationships that were supposed to be created through them.

Throughout the book, it’s clear that the Crown was interested in extinguishing Indigenous title in western Canada, because it was a barrier to white settlement. In the dedication to Lord Dufferin, for example, Morris writes of “obtaining the relinquishment of the natural title of the Indians to the lands of the Fertile Belt on fair and just terms” (no page). This statement is both a recognition of Indigenous title, and a statement of the Crown’s desire to extinguish that title. Whether the terms were “fair and just,” of course, is something that continues to be discussed today. Similar language is used in the accounts of the negotiations, from the Robinson Treaties in Ontario (“the Government of the late Province of Canada, deemed it desirable, to extinguish the Indian title” [16]) through to Treaty 5 (“it was essential that the Indian title to all the territory in the vicinity of the lake should be extinguished so that the settlers and traders might have undisturbed access to its waters, shores, islands, inlets and tributary streams” [qtd. 143-44]). Strangely, that language does not appear in the discussions of Treaty 6 or Treaty 7, perhaps because by that point it was redundant to explain that the government’s purpose was to extinguish Indigenous title, or perhaps because First Nations had realized what the Crown negotiators were up to. Instead, Treaty 6 is described as “a treaty of alliance with the Government” that was desired by the “Cree nation” (168), and Treaty 7 is noted as important because of the need to satisfy “the Blackfeet, Blood, and Sarcees or Piegan Indians,” who had “for years past been anxiously expecting to be treated with” (qtd. 245), and because of the concomitant need “to prevent the difficulties which might hereafter arise through the settlement of whites” (qtd. 246). 

The issue of extinguishment of title, which is central to Sheldon Krasowski’s analysis of the numbered treaties, is key to understanding the written text of the numbered treaties, and I was somewhat surprised to note the absence of any record of an explanation in the record of negotiations of exactly what that would mean to Indigenous peoples. There is a mention in Morris’s report on Treaty 3 of James McKay, the Métis whose work made many of these treaties possible, explaining the written text “in Indian” to the Anishinabe chiefs in attendance (51), but exactly what McKay said regarding the meaning of extinguishment of title is unclear. This is important, since the Treaty Elders whose words are collected by Cardinal and Hildebrandt were emphatic that no chief would have agreed to extinguish their title to the land (58). So even though extinguishment of title was the Crown’s key objective, it remains unclear to what extent the Indigenous negotiators were aware of that fact. It would be surprising if the men who were so vehemently opposed to the HBC’s sale of Rupert’s Land to the Dominion of Canada were to extinguish their title to their land so easily. After all, Chief Pasqua stated that the chiefs wanted the £300,000 the HBC received for that territory (106). It would be surprising if they were to then settle for small annuities and reserves instead. Moreover, as the treaty elders interviewed by Cardinal and Hildebrandt stated, the issue of the transfer of Rupert’s Land is still unfinished business (65-66).

Instead of an explanation of what extinguishment of title meant, the treaty discussions focused on kinship metaphors—being children of the Queen, for instance, and the need to take her by the hand, through her representatives (93)—and assistance with the transition to an agricultural mode of life (with that assistance spelled out in great detail in some cases), including the payment of annuities. Take, for example, Morris’s words on the fourth day of the Treaty 4 negotiations:

The Queen knows that her red children often find it hard to live. She knows that her red children, their wives and children, are often hungry, and that the buffalo will not last for ever and she desires to do something for them. More than a hundred years ago, the Queen’s father said to the red men living in Quebec and Ontario, I will give you land and cattle and set apart Reserves for you, and will teach you. What has been the result? There the red men are happy; instead of getting fewer in number by sickness they are growing in number; their children have plenty. (95)

There was little in the way of explanation of what reserves would be in the Treaty 4 negotiations, compared to the Treaty 6 negotiations, for instance, where the purpose of reserves as a refuge from white settlement was explained, along with the size each family would receive (204-05). Of course, without an explanation of the meaning of extinguishment of title, the purpose of reserves might have remained unclear to the Indigenous negotiators, except as places that white settlers could not occupy.

It is also clear that there was some degree of duress employed by the Crown negotiators; during the difficult Treaty 4 negotiations, for instance, Morris repeatedly threatened to end the discussion if the Indigenous negotiators did not come to an agreement regarding the treaty and cease complaining about the transfer of Rupert’s Land from the Hudson Bay Company to the Dominion of Canada. At one point in the negotiations, Morris stated,

Must we go back and say we have had you here so many days, and that you had not the minds of men—that you were not able to understand each other? Must we go back and tell the Queen that we held out our hands for her, and her red children put them back again? If that be the message that your conduct to-day is going to make us carry back, I am sorry for you, and fear it will be a long day before you again see the Queen’s Councillors here to try to do you good. The Queen and her Councillors may think that you do not want to be friends, that you do not want your little ones to be taught, that you do not want when the food is getting scarce to have a hand in yours stronger than yours to help you. Surely you will think again before you turn your backs on the offers; you will not let so little a question as this about the Company, without whom you tell me you could not live, stop the good we mean to do. (113)

The record of the negotiations makes it plain that the question about the HBC was not a little question to the Cree and Saulteaux chiefs who were present, however, since most of the negotiations were taken up with that issue. No doubt that is why the explanation of reserves and assistance is so meagre in the record of the Treaty 4 negotiations.

Even the word “negotiations” might be the wrong term to use to describe what happened in September 1874 at Fort Qu’Appelle during the negotiations that led to Treaty 4. The Treaty 6 negotiations did result in amendments to the treaty text, and the outside promises made at the Treaty 1 negotiations did eventually find their way into a written document, but it seems that the Cree and Saulteaux chiefs who met Morris at Fort Qu’Appelle were given a take-it-or-leave-it proposition. The treaty text was prepared before the breakthrough of the last day’s negotiations, when “Ka-ku-ish-may,” or Loud Voice, stated, “Let us join together and make the Treaty; when both join together it is very good” (115). As Morris said later that day, “Since we went away we have had the treaty written out, and we are ready to have it signed” (122). Morris repeatedly warned his Indigenous counterparts that he was not a trader, suggesting the inflexibility of his negotiating position: “recollect this, the Queen’s High Councillor here from Ottawa, and I, her Governor, are not traders; we do not come here in the spirit of traders; we come here to tell you openly, without hiding anything, just what the Queen will do for you” (95). However, as Loud Voice’s words suggest, the purpose of the treaty for the Indigenous negotiators was to “join together,” to create a relationship, rather than to accept or reject a specific offer. With such different ideas about what the parties were engaged in, there’s no surprise that they went away with different understandings of what they had agreed to.

Morris’s book includes the written texts of the treaties in an appendix, and (assuming they are identical to the official documents published by the Queen’s Printer) they are an important resource. One of the things I noticed was that all of the treaty texts have some version of the “basket clause” that robbed the Chippewa and Mississauga peoples who signed on to the Williams Treaties First Nations of their rights to hunt and fish. For instance, the Treaty 4 document states, 

The Cree and Saulteaux tribes of Indians, and all other the Indians inhabiting the district hereinafter described and defined, do hereby cede, release, surrender and yield up to the Government of the Dominion of Canada for Her Majesty the Queen and her successors forever, all their rights, titles, and privileges whatsoever to the lands included within the following limits. . . . (331)

Again, I find myself wondering to what extent this clause was explained to the chiefs present at Fort Qu’Appelle, and why this language was not interpreted in the same way that the language in the Williams Treaties was interpreted. No doubt there is some legal nuance I don’t understand here, but “rights, titles, and privileges” could refer to hunting and fishing rights as easily as they could refer to title to the land itself. 

The language of the paragraph about hunting, fishing, and trapping “throughout the tract surrendered” (333) is also puzzling. It subjects Indigenous peoples to “such regulations as may from time to time be made by the Government of the country acting under the authority of Her Majesty” (333), which suggests that provincial hunting or fishing or trapping regulations would take precedence over the right to hunt, fish, and trap. Moreover, the clause about land “required or taken up from time to time for settlement, mining or other purposes under grant” (333) seems to take back the right to hunt, fish, and trap at the Crown’s pleasure. No wonder the Supreme Court of Canada found, in the Grassy Narrows decision, that the Anishinabe people of Treaty 3 had no recourse to the logging of their traditional territory outside of their reserves. I find myself wondering if this clause was clearly explained to the Cree and Saulteaux chiefs who signed Treaty 4 as well. It really seems to take back the rights that are recognized earlier in the paragraph.

My focus here has been on Treaty 4, because that’s my primary area of interest, but one could closely read Morris’s account of the other treaties as well, and no doubt one would come up with other questions and comments. For instance, it seems that the Treaty 6 chiefs were concerned about the smallpox epidemic that had ravaged their territory prior to the negotiations, a concern which explains their amenability to talk about the treaty (compared to the Treaty 4 chiefs) and their demand for the “medicine chest” clause (355) and assistance in case of “pestilence” or “general famine” (354). Indeed, one could continue to sift through Morris’s book—both his account of the negotiations and the treaty texts themselves—to uncover what the treaties meant to the government and to the Indigenous negotiators. Or one could turn to the volumes about treaty-making in Canada, some of which I have written about here; after all, if the written texts aren’t the entire substance of the numbered treaties, then we need to attend to other documents and the oral histories of the treaties as well. Morris’s book gives us part of the picture of the making of the numbered treaties, but it’s important to realize that there are other sources to consult as well.

Works Cited

Krasowski, Sheldon. No Surrender: The Land Remains Indigenous, University of Regina Press, 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, 1971.

81. John Borrows and Michael Coyle, eds.,The Right Relationship: Reimagining the Implementation of Historical Treaties

borrows right relationship

This anthology of essays on historical and contemporary treaties (the title’s focus on historical treaties is somewhat misleading, since it also covers recent treaty-making) is edited by the Anishinaabe legal scholar John Borrows and Settler (if he identifies that way) law professor Michael Coyle. It’s a big book, and because some of the essays are more applicable to my specific interests (the numbered treaties on the prairies) than others, I won’t discuss all of them in this summary. However, it’s worth pointing out that the introduction, written by Borrows and Coyle, begins with a statement of what I’ve come to see as the consensus, at least among historians, about the historical treaties:

For many Canadian government officials, the implications of those treaties are nicely contained within written documents drafted by Crown negotiators. However, for their Indigenous counterparts, who often spoke little English, the real importance of treaties was the relationship to which both sides had agreed. This relational aspect of the treaty-making venture is irrefutably manifested by the frequency with which, across the country, both sides’ negotiators used language of kinship in describing the intended goal of the treaty process. (3)

Again we see the distinction between treaty-making as relationship-building, and treaty-making as the production of a written text. Borrows and Coyle then lay out the four major questions the essays they have collected discuss: What role should history and historical promises play in shaping modern treaty relationships? If we seek healthy treaty relationships, what should the role of the courts be in resolving disputes, and what is their role in relation to political and public dialogue? What role, if any, should be played by Indigenous values and legal traditions in informing treaty implementation? And, finally, should we look to other forums—other than the courts, that is—to resolve treaty disputes? (5). The questions, Borrows and Coyle write, “go to the heart of Canada’s national identity,” and “will have to be addressed if Canada is to live in accordance with its highest aspirations as a country built on respect for the rule of law and democratic self-governance” (5).

In “Canada’s Colonial Constitution,” Borrows explores a variety of stories about Canada—stories which have legal and constitutional significance. For example, one story, which was told by the Supreme Court of Canada in R v Sparrow (1990), was that underlying title to the territory occupied by Canada is vested in the Crown, because Indigenous peoples have an inferior legal status (18). “If Canadian law flows from this view, it revolves around a loathsome core,” Borrows writes, a core defined by discrimination, coercion, and inequality (18). “This story tells Canadians that our deepest political values are ultimately traceable to a denial of fairness, equality, and mutual respect,” he continues. “This builds Canada on a dishonourable foundation” (18). However, that story is also a lie, according to Borrows: 

The truth is that Canada’s formation does not just rest on racism, force, and discrimination. Canada is also rooted in doctrines of persuasion, reason, peace, friendship, and respect. While Canada’s ongoing creation is deeply flawed, it also contains various positive qualities which enhance many lives. These influences mingle together in complementary and inconsistent ways throughout our legal system. (19)

For instance, the Supreme Court of Canada’s decision in Tsilhqot’in Nation v British Columbia (2014) denies the validity of the doctrine of discovery, and its decision in Haida Nation v British Columbia (2004) repudiates the notion that Canada was built on conquest (20). In addition, the treaties, and the principles they represent, create this country “on a foundation of mutual regard and respect” (21). The numbered treaties on the prairies are a particular example, and First Nations Elders speak of those agreements in sacred terms, as blessed by the Creator (22). 

But, for Borrows, the preeminent example of what he calls “treaty federalism” (21) is the 1764 Treaty of Niagara, which promised First Nations that political dealings with settlers would be mediated by the Crown (22). “Throughout Canadian history, First Nations have largely held on to this idea,” Borrows writes. “In this view, First Nations’ political and legal life has been built around one central fact—colonial, and later, provincial governments were forbidden from legislating in their interests” (23). That story, however, is not entirely correct, because in fact the provinces have been instruments of colonization. “By dividing the Crown into constituent parts,” Borrows writes, referring to the federal and provincial Crowns, “the Privy Council eroded the promises of the Proclamation”—that is, the Royal Proclamation of 1763—“and Treaty of Niagara” (24). A number of Supreme Court decisions have continued down that path, including Grassy Narrows First Nation v Ontario (Natural Resources) (2014), which Borrows discusses in detail as a rejection of the principles expressed in the Royal Proclamation of 1763 and the Treaty of Niagara. The Court, he writes, did not look at Treaty 3 as the Anishinabe First Nations whose chiefs signed the agreement would “naturally understand it” (31), something earlier decisions oblige it to do. “The legal and political bedrock which orients First Nations’ political life is savaged by this decision,” Borrows writes (31). In such a context, reconciliation means reconciling with colonialism, “hardly a cause for celebration” (33). Nevertheless, Grassy Narrows also creates a test as to whether provincial actions are unreasonable, cause undue hardship, or deny First Nations the preferred means of exercising their rights (33-34), and this constraint “might result in better outcomes for First Nations than federal interposition could accomplish,” Borrows states. “This narrative should not be overlooked” (34).

In his conclusion, Borrows returns to the idea of stories. “Any future,” he writes, “will be like our past: impure, conflicted, sullied, and imperfect. However, my point in this paper is to illustrate that some stories are better than others. We should seek to enhance those accounts which constrain the offensive uses of power most fully” (37). Canada’s “so-called evolution” from the Royal Proclamation of 1763 and the Treaty of Niagara has led to “a more deeply discriminatory and colonial state,” he concludes, although the point of his essay is to search for positive nuances even within what he describes as our country’s “dark story” (38). That “dark story,” I think, is the story of settler colonialism as described by Emma Battell Lowman and Adam J. Barker.

Michael Coyle begins his essay, “As Long as the Sun Shines: Recognizing that Treaties Were Intended to Last,” by noting that Canadian law governing treaties is in its infancy, and that it allows federal and provincial governments to interfere with treaty rights, although they have a duty to consult before doing so (41). Nevertheless, “huge gaps remain in our understanding of the legal principles that should be applied by Canadian courts to claims for remedies under historical treaties” (41-42). Coyle outlines at least three of these gaps: courts have tended to interpret treaties as not significantly different from contracts between individuals; they have not acknowledged Indigenous perspectives on the treaties; and they have yet to develop “clear remedial principles” to guide the treaty partners (45). For Coyle, the relational aspect of the treaties is crucial: that is the Indigenous understanding of their purpose, and without that understanding, they will be misinterpreted as contracts (47-51). But how can disputes between the treaty partners be remedied? For Coyle, clues can be found in the treaty-making process itself, which suggests the creation of a new normative order that all parties in the negotiations were capable of respecting (53-54). The symbolism of the Gus-Wen-Tah, or the Two Row Wampum, which was reaffirmed by the Treaty of Niagara, “can be understood as an effort to institutionalize relations between the Crown and its Indigenous allies” (55-56). 

Coyle discusses the so-called “taking-up” clauses in the Robinson Treaties and the numbered treaties as examples of the distinction between treaties as contracts and as statements of relationships that create a new normative order between the treaty partners: 

A literal, contract-based approach to the clause would favour the conclusion that one party to the treaty, conscious that the treaty relationship would last “as long as the sun shines,” was agreeing that the other party would ultimately have the exclusive power to eliminate, over time, their entire means of subsistence and to sever completely their social, cultural, and spiritual connection to virtually all their traditional lands. To adopt such an interpretive approach to the treaty arrangement would be to assume that the Indigenous partners in each of these treaties were utterly irrational. It would be to assume that the Indigenous treaty negotiators were not interested in protecting their economy and their spiritual home. (56-57)

On the other hand, one might think of the treaties as institutionalizing relationships between the treaty partners. Coyle’s example, again, is the Treaty of Niagara (57). “Our starting point must be that treaty-making was seen by both Indigenous peoples and the Crown as a worthwhile enterprise aimed at advancing both peoples’ interests through agreement, and not a meaningless charade intended only to deceive and mollify Indigenous peoples,” he writes. Coyle goes on to develop four principles that are “foundational elements of the new institutional legal order that was created through the historical land treaties” (65), and those principles are central to his argument about how those documents (oral and written) are to be interpreted. Those principles are:

  1. Both treaty partners possess an inherent and historically recognized right to make governance decisions in connection with, at the very least, the subject matter of the treaties;
  2. Both treaty partners would cooperate to ensure that there would be effective recourse should disputes arise about what had been agreed or what actions would amount to full compliance with the spirit of the treaty relationship;
  3. Both historical treaty partners to the historical land treaties are required to sit down in the fact of significant changes in circumstances over time to negotiate, in good faith, a new consensus as to how their treaty understandings should be renewed to address both sides’ contemporary needs and interests in relations to the treaty lands; and
  4. The historical land treaties shall not be interpreted or implemented in such a way as to render them an improvident arrangement for either partner. (65)

Of course, the way that Canadian courts have been interpreting these treaties has little to do with these principles, which Coyle describes as the minimum standards for the implementation of historical treaties (68), and there is nothing in the past century and a half of Canadian history that would suggest that these principles might be adopted. What should be, then, is not what is, and unfortunately Coyle doesn’t explain how the Crown might be persuaded to adopt these principles.

In “Bargains Made in Bad Times: How Principles from Modern Treaties Can Reinvigorate Historic Treaties,” Julie Jai argues that principles from modern treaties—that is, from the agreements that are being negotiated through the comprehensive land claims process—should be “read into historic treaties as implied terms based on the Crown’s legal obligation to act honourably” (109). The historic treaties were negotiated under duress, she argues, citing James Daschuk’s contention that hunger played a role in the completion of Treaty 4 (see Daschuk 95), and the imbalance of bargaining power between the parties to the historical treaties could now be remedied by borrowing from modern treaties (116-17). One of the key failings of the historical treaties, according to Jai, is that both parties to their negotiation had differing understandings of what they had agreed to. The Crown’s understanding is stated in the written texts of the agreements. The Indigenous negotiators, on the other hand, believed the principles to which they were agreeing were very different. They included:

  • mutual respect between peoples;
  • a relationship of peace;
  • understanding that the treaty was a sacred covenant with the other government and the Creator and all parties recognize the divine sovereignty;
  • recognition of First Nations’ right to maintain their relationship with the Creator, including the laws given by the Creator, which include the right to self-government, the right to use the lands and resources, harvesting rights and the right to maintain their way of life;
  • ongoing familial relationship—according to Indigenous traditions, entering into a treaty means entering into a relationship with your treaty partner and bringing them into a relation of kinship;
  • mutual sharing of resources;
  • continued right to livelihood and way of life; and
  • sharing—not surrender—of land. (128-29)

Those principles are important, Jai argues, and they are the reason the chiefs would have signed the historical treaties, and they are also the reason why Elders are proud of them now (130). Moreover, those principles are consistent with the Royal Proclamation of 1763 and the Treaty of Niagara (130).

So, how could the principles articulated in the modern treaties help to reconcile such vastly different conceptions of the historical treaties? First, Jai describes the agreements she helped to negotiate in the Yukon and their underlying principles: the need for reconciliation, which she defines as “the understanding that collectively, all parties need to work together to reconcile their differing needs and interests and build a new kind of society”; mutual consultation; recognition of co-management and reciprocity as a way to make sure that the perspectives of both parties to the agreement are considered; conservation; sustainable development; respect for all living things; the interdependency of all things; and, finally, “the spiritual and economic relationship of Indigenous people with the land, reflecting a holistic world view” (133-34). Co-management boards established by the Yukon agreements are one way to manage the ongoing relationships between the parties and encourage dialogue between them (134). The implementation of the agreements allows First Nations to gradually draw on self-government powers (134). The agreements recognize the distinctiveness of First Nations societies (134). And, unlike the historical treaties, the modern variety are carefully drafted and ratified by the communities they affect (134-35). Jai acknowledges that some First Nations people believe the modern treaties are actually worse than the historical ones, but she still contends the modern ones are superior, because the parties have similar understandings of what they are agreeing to; the written text accurately reflects the key terms of the agreement; and the agreements come closer to meeting the interests of both parties (135-36). The modern treaties, she continues, are more successful at fostering relationships between the parties (137-38). 

Jai identifies three principles that could be drawn from modern treaties and applied to historical treaties. First, the historical treaties could be seen as a framework for maintaining relationships of mutual respect and mutual benefit through, for example, the use of co-management bodies and impact-benefit agreements (138-40). So-called “most favoured nation clauses” (141) could be read into historical treaties, so that First Nations who negotiated treaties at times of minimal political and demographic power would benefit from improvements in treaties negotiated by First Nations at times of more equitable power (141-43). And, finally, a dispute resolution process, like the arbitration boards of modern treaties, could be established (143). Jai notes that the Royal Commission on Aboriginal Peoples recommended that such a step be taken (144). Like Coyle’s essay, however, Jai does not explain how one might get the federal government to take up these ideas. 

In “What Is a Treaty? On Contract and Mutual Aid,” Aaron Mills/Waabishki Ma’iingan, an Anishinaabe PhD student at the University of Victoria, embarks on a lengthy and deeply philosophical discussion of the treaties from an Anishinaabe perspective. He rejects the notion of the social contract, as articulated by Thomas Hobbes and John Rawls, and of treaties as contracts, because these interpretations voice “a shared commitment to violence,” and argues that institutions based on notions of social contract, including the Crown and the Supreme Court of Canada, are “structurally committed to violence” (212). Instead, he argues that Anishinaabe constitutionalism and conceptions of treaty as relational rather than contract, as articulated by the Treaty of Niagara, suggest a different way of thinking about the link between treaty and constitutionalism, one based on mutual aid (211-21). He sees that Covenant Chain as an example of mutual aid that connects us and links us together, unlike the violence of contract (215). According to Mills, 

the cry of Indigenous peoples has consistently been that treaty is the only legitimate justification for the constitution of shared political community on Turtle Island. Treaty, we are breathless from saying, constitutes political community without predication on violence. Why wouldn’t settlers choose treaty over social contract as the foundation for our shared political community? (219)

The answer to that question, Mills writes, is fear: a fear of acknowledging the history of violence and dispossession to which settlers are heirs (219). 

For Mills, then, treaties are, or ought to be considered as, first-order constitutional matters (220). Because they aren’t—because they are seen as second-order matters of distributive justice—Canada is founded on domination over Indigenous persons, peoples, and lands (220-21). That’s because Canada continues, despite its participation in modern treaty processes, to claim “radical title to all of Turtle Island, knowing full well that Indigenous peoples were already living on it as persons, peoples, and confederacies of distinct constitutional orders before settlers arrived”—a claim supported by the Supreme Court of Canada in the Tsilhqot’in Nation case (222). Canadian courts are simply incapable of building a doctrine around treaties that would reflect a translation of Indigenous understandings, he writes, and rather than attempt this, the Supreme Court of Canada “consistently chooses to account for the unique political status of Indigenous peoples within the contract-confederation story,” instead of “situating treaties as the very things which empower settler legitimacy,” which is assumed without justification (224). “From an Anishinaabe constitutional standpoint,” he writes, “this is outrageous,” because treaties are the way “we constitute ourselves as communities of communities, across our difference” (225). 

For Mills, then, the change that needs to happen in the relationship between settlers and Indigenous peoples must be structural: “We have to transform that very structure to allow Indigenous legal traditions to stand within their own constitutional worlds, not contain and re-express them post-fact within the existing terms of the settler contract,” he argues (229). To accept Anishinaabe constitutionalism, he continues, would be to accept a sense of interdependence between individuals and the importance of mutual aid, which replaces the need for a theory of obligation (as articulated by the theory of social contract (230-36). For Mills, the Treaty of Niagara represents the intercultural achievement of an understanding of harmony as right relations, and a commitment to a relationship based on practices of mutual aid represented in the Covenant Chain wampum belt (237-38). The Treaty of Niagara, he continues, articulates a vision of a shared political community, of a living relationship between settlers and Indigenous peoples that creates a foundation for settler citizenship (241). That vision is what Canada needs to return to, he suggests, and the fact of Canada’s construction on the basis of domination needs to be abandoned. 

Mills’s take on these questions is radical, but it seems clear that if one is to abandon the doctrines of discovery and terra nullius, some other explanation for the presence of settlers on this land must be articulated, and that explanation will necessarily, I think, be a radical shift from domination to something else—perhaps the notion of mutual aid and right relations Mills advocates. I don’t know. As with other essays in this volume, I don’t see a path forward to making the radical and, to use his word, “unsettling” changes he is calling for (225). For Mills, “Canadians enjoy the incredible level of privilege they do because Indigenous peoples remain colonized. Indigenous suffering is the cost of the settler benefit that Canadian citizenship allows to be taken for granted” (245). If that’s true, and I think it is, then morally or ethically I cannot accept that situation. And yet, my sense is that most of my fellow citizens are far less squeamish about the domination that subtends their privilege, or their “benefits,” to use Lowman’s and Barker’s term. Perhaps I’m wrong about that; I certainly hope I am.

In “(Re)Defining ‘Good Faith’ through Snuw’uyulh,” Sarah Morales takes a more jaundiced look at modern treaties than Jai. For Morales, Canada is negotiating the modern treaties in bad faith—at least in the example of the negotiations between Canada and the Hul’qumi’num people, who are asserting their fundamental rights under international law—and what is needed is a process that engages the legal traditions of both sides (279-80). The federal government is negotiating in bad faith because it is disregarding the impact of colonialism on the Hul’qumi’num people and their land base (85 per cent of their traditional lands were expropriated without consent and granted to the Esquimault and Nanaimo Railway in 1884). Instead, the Crown wants to confirm that expropriation by obtaining “the complete extinguishment of Indigenous title over all but a few thousand hectares of their ancestral territories, where Hul’qumi’num people would have municipal-style Indigenous governance and limited authorities to administer some social services,” Morales writes (280-81). Both the federal and provincial governments are refusing to recognize or discuss Hul’qumi’num claims to restitution or compensation (281), and by allowing logging and mining in Hul’qumi’num territory, the environment there has been destroyed so that the Hul’qumi’num people cannot use their lands for subsistence hunting, fishing, and gathering; importance ceremonies; and other customary practices (282-83). “Is it good faith to speak of reconciliation, when one party is knowingly left without an effective remedy for the majority of its interests?” Morales asks (283).

For Morales, the only way forward would be to recognize Hul’qumi’num legal traditions, including their definition of good-faith negotiations, dispute-resolution processes, and teachings about restitution (292-98). The goal of these legal traditions is to foster harmony within the community (298), which is very different from the BC treaty process, where governments have immovable mandates and power imbalances affect the negotiations. “As the Hul’qumi’num experience illustrates,” Morales concludes, “the British Columbia treaty-making process has become a tool for governments to expedite and extinguish land claims while overlooking the deeper issues surrounding Indigenous/non-Indigenous relations in Canada” (301). By comparing Morales with Jai, one comes to understand that the modern treaty negotiation process can be seen in very different ways, and that it may be the involvement of (or interference by) the province of British Columbia that is the crucial difference between the experiences of First Nations in British Columbia and the Yukon. However, it may also be the specific historical facts—facts which apparently the federal and provincial governments wish to ignore—that are making the Hul’qumi’num negotiations so difficult. I’m not sure, but clearly Jai’s optimism about what can be accomplished through the modern treaty negotiation process needs to be taken with a grain of salt.

Finally, Shin Imai argues in “Consult, Consent, and Veto: International Norms and Canadian Treaties” that “the Crown should obtain the consent of the First Nations concerned before authorizing extractive activity on traditional territories” (371). She notes that the private sector is in favour of the consent standard because community conflict creates significant costs (382), and that the “consult standard” leaves communities powerless (385). “It is through recognition of the necessity of consent that the Indigenous community will have the power that can be a balance to the superior economic power of the mining company and the superior political power of government,” she writes (385-86). Imai notes that recent Supreme Court of Canada decisions about the duty to consult have been contradictory and confusing, and that because the Canadian approach focuses on the Crown, it fails to provide sufficient agency and recognition to Indigenous peoples (391-92). Adopting the standard of consent, as first mentioned in Delgamuukuw (1997), rather than consultation, would enable courts to develop a way out of “this morass,” she argues. “At the present time, courts in Canada are lagging behind international and private industry standards, as well as practice on the ground,” she concludes. “Rather than focusing on the fact that Indigenous parties do not have a veto, courts should focus on the development of the concept of consent” (408). Of course, the numbered treaties make no allowances for consent or consultation on land that has been purportedly surrendered to the Crown, as Coyle notes, and the courts are obviously reluctant to impose the concept of consent, preferring the woolier concept of consultation. Again, what “should” happen is not necessarily what will happen, given the realities of power and colonial history in this country.

What I take away from The Right Relationship is just how imperative it is to recognize Indigenous perspectives on treaties and legal traditions if anything resembling reconciliation is to happen in this country. And yet, at the same time I wonder if Canadian courts or (especially) governments are willing to take that step. For that reason, The Right Relationship is, for me, a profoundly discouraging book.  At the same time, its footnotes are a fantastic source of material on the treaties, and I look forward to reading more from Borrows, particularly his essay on the Treaty of Niagara. Every writer who mentions the Treaty of Niagara hails it as a model for the relationship between settlers and Indigenous peoples, and perhaps Jai is correct when she suggests that such a relationship was only possible because the two parties had relatively equal levels of demographic, economic, and political power at the time (116-17). The political reality now, of course, is that First Nations appear to lack the power to get a fair deal from governments, if Jai’s analysis is correct. (On the other hand, perhaps the federal government lacks the ethical grounding to negotiate fairly with First Nations.) The description of the Hul’qumi’num people’s experience trying to negotiate with the federal and provincial governments is frankly shameful, and I would venture to bet that experience is closer to the normal way of conducting modern treaty negotiations in Canada than it is an aberration. It’s hard to believe, then, that Canada is likely to do the right thing, as that is described by the authors included in The Right Relationship. Perhaps if the decolonizing revolution that Lowman and Barker call for were to take place, then our governments–assuming they still existed after such a dramatic change–might behave in a good way. But right now, when they do, it’s a surprise. And, to be honest, that’s just not good enough.

Work Cited

Borrows, John, and Michael Coyle, eds. The Right Relationship: Reimagining the Implementation of Historical Treaties, University of Toronto Press, 2017.

Lowman, Emma Battell, and Adam J. Barker. Settler: Identity and Colonialism in 21st Century Canada, Fernwood, 2015.


79. Sylvia McAdam (Sayseewahum), Nationhood Interrupted: Revitalizing nêhiyaw Legal Systems

nationhood interrupted

Sylvia McAdam’s Nationhood Interrupted: Revitalizing nêhiyaw Legal Systems, both “opens up the complexities and beauty of the nêhiyaw law,” as Sa’ke’j Henderson writes in the “Forward” (8), and tells part of the story of the formation of Idle No More, of which McAdam was one of the four leaders. Initially I wasn’t going to include my reading of this book as part of this project, but after thinking about Aimée Craft’s emphasis on the importance of Anishinaabe law during the negotiations of Treaty 1, I decided that McAdam’s account of nêhiyaw (or Cree) law would be useful here. McAdam’s work also leads into the next book I want to write about, one I read while I was away and haven’t yet made proper notes on: Emma Battell Lowman’s and Adam J. Barker’s Settler: Identity and Colonialism in 21st Century Canada.

McAdam’s book begins with two warnings: one to refrain from undertaking any of the First Nations protocols and methodologies discussed in the book “without appropriate guidance from respected First Nations Elders and knowledge keepers,” and the other to pray and smudge before and while reading the book, because the knowledge McAdam shares “is of a spiritual nature” (16-17). As with Cardinal and Hildebrandt, this book reminds readers that the lines settlers draw between sacred and profane knowledge are not the same in Cree culture. In fact, I’m not entirely sure that in Cree culture such a distinction is even relevant: “We have laws as Indian people and those laws are not man-made, they were given to us by God,” McAdam states (47).

In the book’s first chapter, McAdam writes, 

The ancient echoes of nêhiyaw laws can still be heard in the languages, lands, and cultures of the Treaty 6 nêhiyawak. When the Europeans arrived in Canada, Indigenous nations lived in diverse, vibrant, and structured societies. It is likely that all the Indigenous nations had their own laws and legal systems which guided and directed the people in their daily interactions with families, communities, and other nations. Treaty 6 is created on the foundations of the nêhiyaw laws and legal systems from the understanding of the nêhiyaw people. (22-23)

Like Harold Johnson, whose work is cited in this book, McAdam sees Treaty 6 as based in Cree legal systems and understandings, rather than those of the Crown negotiators. “At the time of treaty making in Treaty 6 territory, these laws guided the process,” McAdam writes. “When treaties became binding, it became a ceremonial covenant of adoption between two families” (24). The process of negotiating the treaty was driven by Cree laws, many of which have not been recorded or understood, but which are “imperative in treaty understanding and negotiations” nonetheless (24). One sees Johnson’s influence in those words, I think, although I could be wrong about that.

But those laws go beyond that treaty. According to McAdam, everything in creation has laws: “The human laws are called nêhiyaw wiyasiwêwina. The Indigenous people are not a lawless people; the Creator’s laws are strict and inform every part of a person’s life” (23). Cree laws are clearly divinely inspired, rather than made by humans, and this is a central difference in the way settlers and nêhiyawak conceive of law. Cree laws are not written down; rather, they “are in the songs, the ceremonies, and in all the sacred sites” (23). That means the land is intertwined with the law “in a most profound manner” (23). Also interwoven with the Cree legal system is education and language and livelihood and nationhood, it seems, because McAdam discusses all of these together with the law. Again, my sense is that the divisions that settlers would make between these areas of activity do not apply in Cree, and even that the words “law” or “legal systems” may be awkward translations concepts that do not exist in English. “All the laws have a spiritual connection; each ceremony is a renewal and reaffirmation to follow them for all time,” McAdam writes. “Even when the human being corrects the laws through the remedies provided, they are reminded that the laws need to be corrected through their relationship with the Creator” (40). 

McAdam states that she will only discuss physical human laws in her book; the spiritual laws “cannot be discussed or revealed: these are the unwritten laws of the people” (39) and “must remain in the spiritual realm” (43). The first physical human laws she mentions are verbal laws, pâstâmowin and ohcinêmowin, which address the use of language against human beings and creation, respectively. Thus they govern such things as gossip, threats, and profanity (39). However, remaining silent or not taking action does not exempt one from these laws. “It’s considered a pâstâmowin to remain silent or to take no action while a harm is being done to another human being or to anything in creation,” McAdam writes (40). It seems that pâstâmowin is a subset of pâstâhowin, which means the breaking of laws against another human being (43), as is ohcinêmowin, the breaking of laws against anything that is not a human being (44). Examples of ohcinêmowin are torturing animals, polluting land, or over-harvesting resources (44). In addition, other human laws, or wiyasiwêwina, include things like murder, theft, disrespect, incest, sexual assault, or dishonouring your relatives (46-47). The seven pipe laws—health, happiness, generosity, generations, quietness, compassion, and respect (48)—seem to be the foundation of wiyasiwêwina, in that those offences are transgressions of the pipe laws.

One of the laws governing treaties is miyo-wîcêhtowin, which means “having or possessing good relations” (47). “It is this nêhiyaw law and others which are the foundation for Treaty 6,” McAdam states. “Each party applied its own laws to reach an accord” (47). Here McAdam cites John Borrows, whose work is important in this book and elsewhere. The word wâhkôtowin, or kinship, “is critical and necessary to the foundation of nationhood,” McAdam writes (59). “The emphasis on wâhkôtowin is the foundation for the farming reserves created for each family at the time of treaty making,” she continues (59). As well, there were strict wâhkôtowin laws applied to relationships within families (60-61). However, since the Cree believe they are in relationships with everything the Creator made, “[t]his adherence to wâhkôtowin is applied just as easily to the land and to creation” (61). 

According to McAdam, women—clan mothers or warrior women, known in Cree as okihcitâwiskwêwak—played a key role in making decisions in Cree law (54-55, 57-58). They also would have played a key role in the negotiation of treaties:

During and prior to treaty making, it would have been the okihcitâwiskwêwak who would have been consulted regarding the land, because authority and jurisdiction to speak about land resides with the women. The water ceremonies belong to the women. Very little is written or known about this, other than their connection is based on the understanding that the earth is female and the authority stems from this. (55)

It would seem impossible, if this is true, that the male chiefs could have surrendered land during the negotiations of treaties without consulting with the okihcitâwiskwêwak, and there is no record of such consultations or of women being present at the negotiations with the Crown.

McAdam notes that the treaty negotiations were in part about a shift from one way of living, or pimâcihowin, to another: from the buffalo to agriculture (66-67). “Throughout the Treaty texts,” she writes, “the nêyihaw and Saulteaux leadership of the day expressed their concern that the generations to come be provided for” (70). The land itself, however, was not to be sold, McAdam argues, and “First Nations treaty negotiators were not authorized to extinguish existing collective or family rights within territories established by First Nations jurisprudence” (70). She argues that according to oral history, reserves were to be surrounded by a 10-mile or 25-mile belt of land that would accommodate future generations—something the government disputes (70-71). 

From following McAdam on Facebook, I know that she’s angry about what she calls “termination tables” (74), and she explains what these are in this book. In 2014, despite the Tsilhquot’in decision, which recognized Aboriginal title, the federal government made changes to land claims policy that will, McAdam argues, “expedite the elimination of Aboriginal rights” (74). Now, “more than half of the Indian Act chiefs [are] sitting at ‘termination tables’ negotiating away Indigenous rights” (74). Women tend to be left out of the land claims negotiations, she continues, and the process relegates Indigenous nations to the status of municipalities (74-75). “That is a heavy price to pay in terms of the generations to come,” she concludes (75). The “termination tables” seem to be another way that Canada is trying to destroy its treaty relationships with First Nations.

For McAdam, all of the land in Treaty 6 

is under the jurisdiction and authority of the descendants.Compensation for lands taken up for settlement have yet to be dispersed by the Dominion of Canada or by the successor state of Canada. The belief that Indigenous peoples “ceded and surrendered” is still a disputed statement. Treaty peoples say they never ceded or surrendered their lands and resources. The treaties are unfinished business. (76)

The Crown’s claim to having “Radical or underlying title” (qtd. 74) is, she continues, based in the Doctrine of Discovery, which “no longer has legal standing in international discourse” even though Canada continues to apply it in court. That doctrine, she concludes, “was unacceptable at the time of treaty and is unacceptable now” (76).

McAdam is vehement that the treaties did not involve a surrender or cession of the land or its resources. I would agree; in my reading of Morris’s account of the negotiations, there didn’t appear to be any discussion of surrendering the land by the Crown negotiators–an argument that is supported by Sheldon Krasowski. In the Treaty 3 negotiations, there were discussions of what would happen if a mine were to be discovered in the territory covered by the treaty, and according to Morris, the Crown’s response was that other than on the reserves themselves, First Nations would receive no benefit from any mineral discoveries, unless the discovery were to be made by a First Nations person, in which case “[h]e can sell his information if he can find a purchaser” (70). That doesn’t sound to me as if the Crown understood that resources were excluded from the surrender, although it leaves open the question as to whether the First Nations negotiators agreed with the Crown’s position. In the oral history, as the Elders interviewed by the authors of Treaty Elders of Saskatchewan point out, First Nations only allowed settlers to use the land for agricultural purposes and retained the mineral rights. If that’s so, then Canada and the provinces are are in violation of the treaties.

It seems that, for McAdam, the claims made by the Crown about its possession of the land, and about the treaties, are lies, and this puts her argument alongside those of Harold Lerat and Leanne Betasamosake Simpson. McAdam cites Taiaiake Alfred’s words: “Something was stolen, lies were told, and they have never been made right. That is the crux of the problem” (182). Then she moves into her last chapter, a discussion of Idle No More, which was (and is), arguably, a response to those thefts and lies.

Nationhood Interrupted is important as a beginning discussion of Cree law, and as a reinforcement of the oral history around the negotiation of the numbered treaties in the prairies. It also reinforces my sense that the consensus about the treaties among constitutional lawyers is not widespread, and that there is a lot of understandable and justified anger among Indigenous peoples about how the treaties have been implemented and interpreted by the Crown, including the Supreme Court of Canada. As settlers and descendants of settlers in this land, we need to do a lot better job of abiding by the treaties that enable us to be here.

Work Cited

McAdam, Sylvia (Sayseewahum). Nationhood Interrupted: Revitalizing nêhiyaw Legal Systems, Purich, 2015.

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.