Reading and Walking

Walking, Reading, and Reading about Walking

Tag: Treaty Elders of Saskatchewan

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.

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

Treaty Elders of Saskatchewan: Our Dream Is That Our Peoples Will One Day Be Clearly Recognized As Nations (another that I read in the summer course I took last summer) is exceedingly important, because it explores the oral tradition surrounding the treaties in Saskatchewan through the words of contemporary Elders (contemporary 20 years ago, that is). That work is vital, given the differing interpretations of the treaties one sees in other writers. It was initially intended as a companion book to. Bounty and Benevolence: A History of Saskatchewan Treaties, by Arthur J. Ray, Jim Miller, and Frank Tough. The books are very different, though, and for some reason were published by two separate university presses—not that it matters. It’s clear while Treaty Elders of Saskatchewan was intended as an Indigenous perspective on the treaties, while Bounty and Benevolence was to be a standard documentary history. In my opinion, Treaty Elders of Saskatchewan has aged better; Bounty and Benevolence (is the title ironic?) has been superseded by Sheldon Krasowski’s No Surrender: The Land Remains Indigenous.

Treaty Elders of Saskatchewan: Our Dream Is That Our Peoples Will One Day Be Clearly Recognized As Nations begins with an account of First Nations spiritual laws and traditions, which makes sense because, as other writers on the treaties point out, the treaties were negotiated in accordance with First Nations laws, traditions, ceremonies and protocol. “The Elders make it clear that, in their view, those who seek to understand Indian treaties must become aware of the significance of First Nations spiritual traditions, beliefs, and ceremonies underlying the treaty-making process,” write Cardinal and Hildebrandt (1). First Nations believe they were put on this land by the Creator, and that it is theirs collectively (3-5). Those beliefs and principles and protocols informed the objectives of First Nations in negotiating the treaties. First, they sought recognition and affirmation of their right to maintain their relationships with the Creator through the laws they had been given by him (6-7). They understood that both parties in the treaty “would conduct their relationships with each other in accordance with the laws, values, and principles given to each of them by the Creator” (7). In addition, because the treaties were performed through ceremonies, the promises and agreements that were made are irrevocable and inviolable, and breaking them can bring about divine retribution with grave consequences (7). The invocation of the sun, river, and grass in the treaties, according to Elder Lawrence Tobacco, was an appeal to their spirits, and that demonstrates the seriousness of the promises being made (8). 

Because the land and everything on it—animals, water, trees, plants, rocks—are sacred gifts from the Creator, they could not be sold or given away. “For that reason,” Cardinal and Hildebrandt write, “the Elders say that the sacred Earth given to the First Nations by the Creator will always be theirs” (10). (That doesn’t sound like the so-called surrender clause would’ve been something the Chiefs negotiating with the representatives of the Crown would have agreed to.) The Creator provided other gifts, including laws, values, principles, and mores (10). According to Cardinal and Hildebrandt, “it is this very special and complete relationship with the Creator that is the source of the sovereignty that their peoples possess” (11). The negotiations were spiritual ceremonies, and that needs to be remembered.

One of the core values of the Cree nation is miyo-wîcêhtowin, the principle of good relations and expanding the circle of individual and collective relationships (14). The circle is an important symbol of this principle. The term wâhkôhtowin refers to the laws governing all relations, whereas miyo-wîcêhtowin are the laws concerning good relations (14). “For the Elders, the relationships created by the treaties were founded on the doctrines of wâhkôhtowin and miyo-wîcêhtowin for they constituted the essential elements of an enduring and lasting relationship between the First Nations, the Crown, and her subjects,” write Cardinal and Hildebrandt (15). Those relationships were to consist of mutual and ongoing caring and sharing arrangements between both sides, including a sharing of the duties and responsibilities for the land, which would be shared with the newcomers so that they could make a living (15). The laws of wâhkôhtowin are applied by analogy to the treaty relationship (19). In other words, as Harold Johnson and Michael Asch argue, the treaties created a kinship relationship between First Nations and the Crown, and therefore also between First Nations and settlers, who are also “children” of the Crown, metaphorically.

Because the treaties and their promises are sacred due to the ceremonies performed during the negotiations, they cannot be changed or altered (25). However, in the focus sessions Cardinal and Hildebrandt held with Elders, “it became very clear that their view and understanding of the treaties differed significantly from the written text of the treaties. Indeed, their focus was on the ‘nature and character of the treaty relationship’ as opposed to the contents of the written treaty texts created by the Crown” (25). Again, one is reminded of Harold Johnson’s words, that the treaties were about relationships and are therefore not simply finalized documents. I was also reminded of the notion of treaties as a covenant chain that periodically must be polished. This is a very different perspective on treaties than the Western one, which sees them as finalized once they’ve been negotiated. 

Cardinal and Hildebrandt list several principles or irrevocable undertakings—their language shifts for no apparent reason—that are affirmed by the treaties, according to the Elders. First, the treaties were a joint acknowledgement of the supremacy of the Creator and the joint fidelity of both sides in the negotiations to that divine sovereignty (31). This affirmation took place through the use of the pipe and sweetgrass (31). Second, the parties agreed to maintain a peaceful relationship—again, through the use of ceremony (32). Peace refers to the kind of relationship symbolized by the laws governing relationships between cousins. The third undertaking involves creating and maintaining a perpetual family relationship based on concepts defined by principles of wâhkôhtowin or good relationships (33). Cree Elder Simon Kytwayhat uses the term kiciwamanawak to refer to the settlers who, he says, were adopted by his nation through treaty (33). One sees the source of Johnson’s ideas here, and I wonder if Kytwayhat is the Treaty Elder Johnson consulted. The fourth irrevocable undertaking was that sharing land with the settlers would guarantee a continuing right of livelihood to First Nations (36). The land was not sold or transferred to the Crown, but a promise was made to share it—and natural resources were not included, according to Treaty Elder Peter Waskahat (36). “The fundamental principles identified by the Elders constitute aspects of the treaty relationship that, in their view, are not subject to change or alteration between the parties,” write Cardinal and Hildebrandt. “The understanding of these principles are interwoven with and derive their existence from the spiritual and ceremonial fabric of First Nations societies. They provide the contextual framework for the Indian understanding of the collective and individual relationships created by treaty” (38).

Another key term in the book is witaskêwin, or living together on the land, which in the context of the treaties means sharing territory with the newcomers. Elder Danny Musqua points out that First Nations had a history of sharing territory with each other for various purposes (39). Each First Nation has its own spiritual relationship with the Creator through ceremonies and their connectedness to the land (41). “The treaties, through the spiritual ceremonies conducted during the negotiations, expanded the First Nations sovereign circle, bringing in and embracing the Crown within their sovereign circle,” write Cardinal and Hildebrandt. “The treaties, in this view, were arrangements between nations intended to recognize, respect, and acknowledge in perpetuity the sovereign character of each of the treaty parties, within the context of right conferred by the Creator to Indian nations” (41-42). The treaties are therefore nation-to-nation agreements (42). 

Despite the fact that the treaties cannot be changed, some aspects of them are open-ended, requiring flexibility and adaptability as times change. One example of an issue requiring flexibility and negotiation is resource extraction (42). That leads to another key term, pimâcihowin, the ability to make a living from the land (43). This is a complex term, because the wealth of the land is both spiritual and material, and pimâcihowin incorporates both dimensions (43). In material terms, “the treaty guarantees the continuing right of First Nations livelihood, and the continuing right of First Nations to maintain a continuing relationship to the land, and its resources constitute one of the irrevocable and unchanging elements of the treaty relationship negotiated by First Nations and the Crown,” according to Cardinal and Hildebrandt (46). In a long quotation, they cite Danny Musqua’s argument that First Nations were promised that they would be as wealthy as settlers (47). That, of course, has not happened.

In the chapter entitled tâpwêwin, which means the obligation to speak with truth and accuracy, Cardinal and Hildebrandt note that there is no “formal existing agreement” between First Nations and the Crown about the meaning and content of the treaties, and this problem needs to be resolved “if the spirit and intent of the treaty relationship is to be properly understood” (48). They refer to the written texts of the treaties as “purporting to be the official copies” (48)—the word “purporting” suggesting they have their doubts. Nevertheless, Canada still takes the position that only the written treaty documents, read literally, can be used to determine whether or not there is an existing treaty right (49). That approach precludes the use of other sources, including the First Nations understanding of the treaties, the reports and dispatches written by Treaty Commissioners, eyewitness accounts, and other related documents and correspondence (49). The Treaty Elders, however, believe that it’s most important to examine oral evidence and history, before turning to other documents and, last of all, the “so-called articles of treaty” (50). The Supreme Court of Canada has given guidelines through several decisions that reinforce the Treaty Elders’ perspective, but Canada apparently still does not follow those guidelines when litigating treaty rights (50, 52). Those guidelines, as reproduced in the text, are an important source, since they are drawn from several judgements. “The Elders’ presentations dealing with wîtaskêwin (living together on the land) and pimâcihowin (making a living) directly contradict the written texts of the treaties in Saskatchewan and past case law predicated on those written texts,” Cardinal and Hildebrandt write (57). First, Canada continues to refuse to acknowledge that First Nations were sovereign when the treaties were negotiated, and it continues to claim that the Crown has underlying sovereign title, which contradicts the First Nations position that they have original sovereign title (57). Second, Canada claims that Indian title was extinguished by the treaties, but the Treaty Elders maintain that this is not the case. In a shocking passage, Cardinal and Hildebrandt write:

At the focus sessions, when the “extinguishment clauses” of the written treaty texts were read, translated, and explained, the Elders reacted with incredulity and disbelief. They found it hard to believe that anyone, much less the Crown, could seriously believe that First Nations would ever have agreed to “extinguish” their God-given rights. (58)

Third, the Crown asserts exclusive ownership of and jurisdiction over all lands, wildlife, and resources, but the Elders maintain that First Nations retained ownership and jurisdiction, except for those portions of land required for agriculture—and then only to the depth of a plough blade (58). The Royal Commission on Aboriginal Peoples (1996) made suggestions about resolving these issues, but Canada has not implemented them (58). These disagreements don’t mean that the treaties are invalid, however; the written texts and the oral history both indicate that substantive agreements were reached (58-59). “For the Elders,” Cardinal and Hildebrandt conclude, “what is at issue is not whether or not treaties exist, but whether a mutually acceptable record of them can now be agreed upon and implemented” (59).

Next, the authors discuss livelihood in more detail. They argue that the treaties state that First Nations livelihood was not to be affected, and that freedom, independence, and economic self-sufficiency were the goals the First Nations negotiators sought to achieve (61). The Treaty Elders interviewed in the book were very clear about what the treaties do not mean in this regard. They were not a blanket transfer of First Nations lands and resources to the Crown (62). They were land-sharing arrangements for agricultural purposes only (63). Natural resources were not to be shared, and neither were water resources, fish, wildlife, or waterfowl (64). In addition, as far as Treaty 4 is concerned, the transfer of Rupert’s Land to the Crown is an outstanding issue that was not resolved during the negotiations and needs to be addressed. The authors provide a long quotation from Danny Musqua on that land transfer, in which he rejects the Crown’s claim to sovereignty (65-66). “[T]he sharing arrangements, as envisioned by the Elders, were to be fair to each of the parties, intended to enable the parties to jointly share in the prosperity of the prosperity of the land—not drive the First Nations to destitution,” Cardinal and Hildebrandt write (66).

That chapter, the penultimate in the book, is also the strongest, where the evidence from the Treaty Elders matches the argument most successfully. In fact, the book gets better with each successive chapter, until the conclusion, which is surprisingly quite weak, merely repeating what has already been said. “It has not been possible to include all the conceptual issues raised by the Elders during this process,” the authors write, without explaining what those issues were or why they could not be included (71). Nevertheless, this is, as I said at the outset, an important book, despite its flaws, because it gives a sense of what the oral history of the Saskatchewan treaties looks like. I was surprised to learn of the insistence of the Treaty Elders that the land was to be shared only to the depth of a plough blade, and that no natural resources were to be included in the treaties. I am sure that our provincial government would strongly disagree with that perspective. I was also surprised to learn that water resources were not included, either. I wonder what this province would look like now if the treaties had been implemented the way they are understood by the Treaty Elders. It would be a very different place, no doubt, and the horrors of residential schools and deliberate starvation would not be on our consciences.

In addition, the current consensus is clear: the importance of oral history, the emphasis on sharing the land rather than transferring it outright, the lack of consensus on what the treaties actually mean. I wonder is Asch’s optimism is warranted, given the gulf that divides First Nations and Canada on what the treaties mean, and I wonder if Canada will ever begin to attempt to resolve that issue. I have no doubt, though, that Tom Flanagan’s take on the treaties (as reported by Asch) is very much an outlier, at least in the academic literature on the subject, although I think many settlers would agree with his complaints. I remember reading reviews of Flanagan’s First Nations, Second Thoughts when it came out, and I wonder why a book that ignores the historical record got so much attention. Perhaps because it told some Canadians the kinds of things they wanted to hear? Certainly Treaty Elders of Saskatchewan could not be accused of that.

Works Cited

Asch, Michael. On Being Here to Stay: Treaties and Aboriginal Rights in Canada, University of Toronto Press, 2014.

Cardinal, Harold and Walter Hildebrandt, Treaty Elders of Saskatchewan: Our Dream Is That Our Peoples Will One Day Be Clearly Recognized As Nations, University of Calgary Press, 2000.

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

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

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