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