I decided yesterday to begin tackling the Report of the Royal Commission on Aboriginal Peoples.
The report was completed in 1996, after four years of drafting. Volume 1 is called “Looking Forward, Looking Back” and concerns the origins and history of Aboriginal peoples in Canada, as well as previous government policy concerning them.
It has been 20 years since this report was originally released, which is of interest because Volume 5 is called “Renewal: A Twenty Year Commitment”. It will be interesting to see what progress, if any, has been made regarding Aboriginal peoples and which recommendations have been implemented.
In Volume 1, I was expecting explicit details concerning treaty matters: the particulars of negotiations and agreements as originally made, and how policy making has either followed or diverged from them. I assumed that this was the crux of the issue regarding modern conflicts with Aboriginal communities and questions about their rights and independence.
However, the report begins with a broad overview of Aboriginal peoples and their cultures as they existed before Europeans arrived, followed by the military and political struggles that ensued. While it makes for interesting reading, the general history is broadly known. What is less known, is which agreements took place: the details, legality, legacy and relevance to modern times.
The treaties and agreement information doesn’t begin until a little over 100 pages in. This article will be a work in progress because it is still ongoing. Volume 1 is nearly 700 pages long, so I have attempted to pare down the information to the most relevant for a broad overview.
All comments in italics are mine, the rest are quotes from the report.
Volume 1: Looking Forward, Looking Back
It begins with an introduction which speaks of the importance of recognizing the past, the unique Aboriginal experience, reconciliation and the need to include Aboriginal people in policy making while respecting their rights. It also advises Aboriginal people to let go of anger over historical wrongs so that both parties can work together. It’s clear from the language that the authors of the report tried to be as fair and respectful as they could.
THIS REPORT of the Royal Commission on Aboriginal Peoples concerns government policy with respect to the original historical nations of this country.
… Aboriginal peoples anticipate and desire a process for continuing the historical work of Confederation. Their goal is not to undo the Canadian federation; their goal is to complete it. It is well known that the Aboriginal peoples in whose ancient homelands Canada was created have not had an opportunity to participate in creating Canada’s federal union; they seek now a just accommodation within it. (p 6)
History also shows how ancient societies in this part of North America were dispossessed of their homelands and made wards of a state that sought to obliterate their cultural and political institutions. History shows too attempts to explain away this dispossession by legally ignoring Aboriginal peoples, in effect declaring the land terra nullius — empty of people who mattered. This is not a history of which most Canadians are aware. It is not a history of democratic participation, nor is it a history that reflects well on Canada or its sense of justice. (p 7)
In 1982 the constitution was amended to recognize and affirm the Aboriginal and treaty rights of the Aboriginal peoples of Canada. Those amendments contained a promise to amend the constitution further to determine the nature and scope of those rights. The constitutional promise was not fulfilled in the first ministers conferences conducted for that purpose, and the basic constitutional promise of 1982 is still outstanding. (pg 9)
There have been important changes in recent years in the nature of Aboriginal peoples’ participation in statecraft in Canada. Since the white paper proposal to eliminate the distinct status of ‘Indians’ and the prime minister’s refusal in 1969 to recognize the treaties, Canadian society has developed a greater willingness to include Aboriginal peoples as partners in the Canadian enterprise.” (p 10)
PART ONE – Getting Started
This Royal Commission on Aboriginal Peoples was born in a time of ferment when the future of the Canadian federation was being debated passionately. It came to fruition in the troubled months following the demise of the Meech Lake Accord and the confrontation, in the summer of 1990, between Mohawks and the power of the Canadian state at Kanesatake (Oka), Quebec. (p 10)
The Commission, established on 26 August 1991, was given a comprehensive mandate: The Commission of Inquiry should investigate the evolution of the relationship among aboriginal peoples (Indian, Inuit and Métis), the Canadian government, and Canadian society as a whole. It should propose specific solutions, rooted in domestic and international experience, to the problems which have plagued those relationships and which confront aboriginal peoples today. (p 11- 12)
In four years of consultations, research and reflection we have come to see clearly that the problems that plague the relationship cannot be addressed exclusively or primarily as Aboriginal issues. The questions we probed during our inquiry and the solutions that emerged from our deliberations led us back insistently to examine the premises on which Canadian law and government institutions are founded and the human values that Canadians see as the core of their identity. (p 12)
We maintain that Aboriginal nations have an inherent right to determine their own future within Canada and that the governments of Aboriginal nations should be recognized as a third order of government in the Canadian federation. (p 13)
A Demographic Profile
THE TERM ABORIGINAL obscures the distinctiveness of the First Peoples of Canada — Inuit, Métis and First Nations. With linguistic differences, for example, there are more than 50 distinct groupings among First Nations alone. Among Inuit, there are several dialects within Inuktitut, and the Métis people speak a variety of First Nations languages such as Cree, Ojibwa or Chipewyan, as well as Michif, which evolved out of their mixed ancestry. (p 20)
The figure of 500,000 for the indigenous population at the time of initial sustained contact with Europeans is perhaps the most widely accepted today, although many would regard it as a conservative estimate. (p 21)
This is followed by statistical information on Aboriginal birth rates and projected growth (90’s) as well as charts and demographic stats.
Conceptions of History (Overview)
Indeed, it is impossible to make sense of the issues that trouble the relationship today without a clear understanding of the past. This is true whether we speak of the nature of Aboriginal self-government in the Canadian federation, the renewal of treaty relationships, the challenge of revitalizing Aboriginal cultural identities, or the sharing of lands and resources. We simply cannot understand the depth of these issues or make sense of the current debate without a solid grasp of the shared history of Aboriginal and non-Aboriginal people on this continent. (p 36)
But Commissioners also concluded that most Canadians are simply unaware of the history of the Aboriginal presence in what is now Canada and that there is little understanding of the origins and evolution of the relationship between Aboriginal and non-Aboriginal people that have led us to the present moment. (p 37)
In the Atlantic region, for instance, a sustained non-Aboriginal presence among the Mi’kmaq and Maliseet peoples has been a fact for nearly 500 years, but in most parts of the far north, Inuit have been in sustained contact with non-Aboriginal people only in recent times. In Quebec and southern and central Ontario, the relationship is of almost the same duration as that in the Atlantic region, while in northern Ontario and the prairies, sustained contact and the development of formal treaty relationships has occurred only within the last 150 years. In parts of the Pacific coast, the nature of the relationship has yet to be formalized in treaties, even though interaction between Aboriginal and nonAboriginal people has taken place for some 200 years. (p 41)
Overview: Contact & Cooperation
It was a period when Aboriginal people provided assistance to the newcomers to help them survive in the unfamiliar environment; this stage also saw the establishment of trading and military alliances, as well as intermarriage and mutual cultural adaptation. This stage was also marked by incidents of conflict, by growth in the number of non-Aboriginal immigrants, and by the steep decline in Aboriginal populations following the ravages of diseases to which they had no natural immunity.
Although there were exceptions, there were many instances of mutual tolerance and respect during this long period. In these cases, social distance was maintained — that is, the social, cultural and political differences between the two societies were respected by and large. Each was regarded as distinct and autonomous, left to govern its own internal affairs but co-operating in areas of mutual interest and, occasionally and increasingly, linked in various trading relationships and other forms of nation-to-nation alliances. (p 42)
Overview: Displacement & Assimilation:
Non-Aboriginal society made repeated attempts to recast Aboriginal people and their distinct forms of social organization so they would conform to the expectations of what had become the mainstream. In this period, interventions in Aboriginal societies reached their peak, taking the form of relocations, residential schools, the outlawing of Aboriginal cultural practices, and various other interventionist measures of the type found in the Indian Acts of the late 1800s and early 1900s. (p 42)
Non-Aboriginal society began to recognize the failure of these policies toward the end of this period, particularly after the federal government’s ill-fated 1969 white paper, which would have ended the special constitutional, legal and political status of Aboriginal peoples within Confederation. (p 43)
THE HISTORY OF THE RELATIONSHIP between Aboriginal and non-Aboriginal peoples in North America begins, of necessity, with a description of the period before contact. Aboriginal nations were then fully independent; as described by the Supreme Court of Canada, they were “organized in societies and occupying the land as their forefathers had done for centuries.”
Europeans arriving in North America attempted to justify their assumption of political sovereignty over Aboriginal nations and title to their lands on the basis of a reinterpretation of prevailing norms in international law at the time, in particular the doctrine of discovery. This doctrine is based on the notion of terra nullius — a Latin term that refers to empty, essentially barren and uninhabited land. Under norms of international law at the time of contact, the discovery of such land gave the discovering nation immediate sovereignty and all rights and title to it.
Over the course of time, however, the concept of terra nullius was extended by European lawyers and philosophers to include lands that were not in the possession of ‘civilized’ peoples or were not being put to a proper ‘civilized’ use according to European definitions of the term. (p 47)
Upon the ‘discovery’ of the North American continent by Europeans, according to this doctrine, the newcomers were immediately vested with full sovereign ownership of the discovered lands and everything on them. When faced with the fact that the lands were inhabited by Aboriginal peoples, European commentators, such as the preacher Gray, popularized the notion that Aboriginal peoples were merely in possession of such lands, since they could not possibly have the civilized and Christian attributes that would enable them to assert sovereign ownership to them. Over time these ethnocentric notions gained currency and were given legitimacy by certain court decisions. (p 47-48)
These kinds of arguments, which distorted the reality of the situation and converted differences into inferiorities, have had surprising longevity in policy documents and in court proceedings up to the present day. As modified by the courts, they are at the heart of the modern doctrine of Aboriginal title, which holds that Aboriginal peoples in North America do not ‘own’ their lands, although they now have the legal right in Canada to demand compensation if they are dispossessed of them by the authorities. (p 48)
Followed by information on the M’ikmaq, Iroquois, Blackfoot, Northwest Coast tribes, Inuit: their hierarchies, self-governing, traditions, etc – a brief overview, p 48 – 83
The accounts often reveal elaborate social structures built around the nuclear and extended family. These are grouped into a band, clan, district or community all of which, in turn, may be part of a larger nation that may itself belong to a confederacy of many nations and to a larger language group. Governance is usually decentralized, with local units coming together or sending representatives to the councils of the nation or confederacy. In the councils of decision making, individuals are generally equal, and deliberations typically continue until consensus is reached. Leaders thus tend to guide, counsel and speak on behalf of the people; they typically do not exercise the authority to make unilateral decisions or to impose their will. Where conflict arises, an effort is made to bring the contending parties together and to find a middle ground. This is in keeping with an ethic that respects diversity and acknowledges that there are many different ways to accomplish a particular objective.
The accounts also reveal the ultimate importance to Aboriginal societies of their spiritual relationship to the land. This arises not only because of dependence on the natural world for life itself, but also out of the belief that human beings were placed on the earth at Creation and given special responsibilities to serve as stewards of the natural environment. Through a very long history of living in close harmony with the environment, adjusting as required to changing social and environmental conditions …
Aboriginal peoples accumulated an enormous amount of knowledge and wisdom and passed it on orally from generation to generation. (p 84)
Followed by a description of European nation-states: feudal societies becoming governed by monarchy; originally seeking natural resources and then driven on by economic interests and justified through Christian doctrine and papal decrees. p – 84-87.
The earliest Basque, Breton, French and English contacts in North America were aimed initially at extracting fish and other resources from the sea, rather than gold or silver from the ground, and involved considerably less use of force. This early pattern of relatively peaceful and incidental contact gave way by the early seventeenth century to a new system of relations based on treaties and trade with the indigenous inhabitants. In the next chapter, we describe the essential characteristics of this early, often co-operative, relationship. (p 87)
Contact and Cooperation:
Although a few Aboriginal persons were, willingly or unwillingly, taken to Europe over the years, contact occurred almost exclusively on North American soil as transplanted Europeans began to arrive in ever-increasing numbers after the late 1400s.
First contacts between Aboriginal peoples and Europeans were sporadic and apparently occurred about a thousand years ago when Norsemen proceeding from Iceland and Greenland are believed to have voyaged to the coast of North America. (p 94)
These early Norse voyages are believed to have continued until the 1340s, and to have included visits to Arctic areas such as Ellesmere and Baffin Island where the Norse would have encountered Inuit…
Conflict with Aboriginal people likely occurred relatively soon after the colony was established. Thus, within a few years of their arrival, the Norse appear to have abandoned the settlement and with it the first European colonial experiment in North America.
Further intermittent commercial contacts ensued with other Europeans, as sailors of Basque, English, French and other nationalities came in search of natural resources such as timber, fish, furs, whale, walrus and polar bear. Little is known of this very early period of contact. By the late 1400s, explorers were commissioned to find a route to the Orient by sailing west from Europe, thus providing an additional motive for European contact with North American Aboriginal peoples. These subsequent explorations included the voyages of Christopher Columbus to several islands in the Caribbean sea and those of John Cabot, who was seeking a more northerly route. Cabot’s voyages began as early as 1494, and by 1497 he landed in a place he referred to as New Found Land. (p 94)
Relations were established in a context in which Aboriginal peoples initially had the upper hand in population and in terms of their knowledge of the land and how to survive in it. These factors contributed to early patterns of co-operation and helped to overcome the colonial attitudes and pretensions the first European arrivals may originally have possessed. The newcomers, far from their home ports and scattered in a vast land of which they had little practical knowledge, of necessity had to develop friendly relations with at least some original inhabitants. Political and economic accommodations soon followed. (p 95)
However, the existence of relatively strong, organized and politically active and astute Aboriginal nations caused the Europeans to recognize in practice, and later in law, the capacity of Aboriginal nations not only to govern their own affairs and to possess their own lands, but also to conclude treaties with them of a type similar to those the European nations were accustomed to making with each other. In the many ensuing struggles between France and Britain, as well as in the later ones between the American colonists and the British, Aboriginal nations were also greatly valued as military allies. Since victory or defeat in any particular military contest might hang in the balance, strenuous efforts were often made by the warring colonial powers either to enlist the support of Aboriginal nations or, at least, to assure their neutrality. Neither support nor neutrality could be demanded at this stage in the relationship, however; it could be achieved only by persuasion and diplomacy. (p 96)
With declining Aboriginal populations and ever-increasing European immigration to the New World, the numerical balance between the two groups gradually shifted during this first period of relations between them. By the latter part of the 1700s, in fact, it is estimated that Aboriginal and non-Aboriginal people were roughly equal in numbers. (p 97)
Outside the salons of Europe and the discourse of élites, ordinary people adopted each other’s foods, clothing, hunting or transport technologies as they proved useful. Those brought together by the fur trade often intermarried and, as a result, enriched both cultures. The offspring of these unions would eventually form a new people with a distinct identity, the Métis people. And at the same time as missionaries were seeking to convert Aboriginal peoples to Christianity, there is also evidence that Europeans, especially young men working on the frontiers of contact with Aboriginal peoples, found much not only to admire but also to emulate, especially their quiet determination and independent attitudes. Indeed, many Europeans were adopted and assimilated into Aboriginal nations. (p 99)
Although some European traders obtained Aboriginal clothing, canoes, snowshoes and other items for themselves, the most sought after goods were beaver pelts. They could be sold in Europe as the raw material for felt hats, then in vogue among the middle class and the nobility. The traders were especially interested in procuring pelts that had already been worn as clothing for fifteen to eighteen months. Wearing them during the winter wore off the long guard hairs, thereby rendering them most valuable for the manufacture of high-grade felt. For Aboriginal people, hunting the then-abundant beaver and selling used clothing was an economical means of obtaining European goods. (p 100)
By the first decade of the seventeenth century the French were granting trading monopolies to wealthy merchants in hopes of promoting year-round European settlement in the St. Lawrence region …To maintain cordial trade relations, the French offered to assist the Innu intheir hostilities with the Mohawk, a decision that was to lead to decades of enmity between the French and the Haudenosaunee Confederacy. (p 102)
For many years, a flotilla of 60 canoes and 200 men from Huronia came to Quebec via the French, Mattawa, Ottawa and St. Lawrence rivers. As many as 15,000 pelts were traded annually. (p 102)
During this period many Aboriginal people regarded the missionaries as shamans, interpreted their baptismal rites as curing rituals, and generally tolerated their presence for fear of jeopardizing trade and political alliances with the French. To the Jesuits their mission was akin to a war against satanic forces and was intended to reap a rich harvest of souls. (p 103)
It is also clear that the patterns of relationship varied significantly from one Aboriginal group to another. Since Algonquian and Iroquoian nations, for example, had different modes of subsistence and social organization and unique and well established patterns of political and trade relations before European contact, it is not surprising that they experienced the effects of contact differently. Pursuing different strategies of accommodation and compromise, the many diverse Aboriginal nations on the northern half of the continent that came into contact with non-Aboriginal peoples did not all experience the effects of that contact in the same way. (p 105)
THE ROYAL PROCLAMATION OF 1763
Evidently, the reality of relations between Aboriginal and European nations in these early periods was remarkably complex, fluid and ambiguous. Thus, while the French, for instance, clearly wanted to assert some form of sovereign control over neighbouring Aboriginal peoples, in practice they often had to settle for alliances or simple neutrality.
And while Aboriginal nations sometimes wished to assert their total independence of the French colony, in practice they often found themselves reliant on French trade and protection and increasingly overshadowed by European armed might.
The French policy of cultivating the friendship and alliance of Aboriginal peoples was replicated, with less success, by the burgeoning British colonies to the south. Like New France, these colonies would have preferred to be in a position to dominate and control their Aboriginal neighbours. However, they often had little alternative but to solicit Indigenous peoples as trading partners and as allies in the struggles with France. (p 106)
There was one important difference between British and French practice in this context that would have long-term effects on the overall relationship between Aboriginal and non-Aboriginal peoples in this part of North America. The French colony, whose population remained small, was planted along the shores of the St. Lawrence River, in an area no longer inhabited by the Iroquoian peoples of Stadacona and Hochelaga. Thus, there was no need for the French to obtain lands from their Aboriginal neighbours. By contrast, from an early period the British colonists found their Aboriginal neighbours in possession of lands they wanted themselves for purposes of expanding their settlements and economic activities.
In the opening stages of British settlement in North America, this collision of interests resulted in warfare and led to the forcible dispossession of Aboriginal nations in Virginia and New England. Many Aboriginal nations allied themselves with the French or retreated before the advance of the British colonists. Over time, however, and to avoid further hostilities, a policy developed whereby lands required for settlement would ordinarily be secured from their Aboriginal owners by formal agreement. Thus, treaties specifically involving land cessions by Aboriginal nations soon became a common feature of the British-Aboriginal relationship. (p 107)
Nevertheless, by 1763, when New France was ceded to the British Crown in the Treaty of Paris, Aboriginal/English relations had stabilized to the point where they could be seen to be grounded in two fundamental principles. Under the first principle, Aboriginal peoples were generally recognized as autonomous political units capable of having treaty relations with the Crown. (p 107)
A second principle emerged from British practice. This acknowledged that Aboriginal nations were entitled to the territories in their possession unless, or until, they ceded them away. Although this proposition may seem self-evident, it was not always so from the colonists’ self-interested perspective, and it required periodic restatement. (p 108)
When New France fell to British forces and was ceded to the Crown in 1763, Great Britain was confronted with the twin problems of winning the friendship and trust of France’s former First Nations allies and dealing with the mounting dissatisfaction of some of its own indigenous allies over incursions by American colonists on their lands. (p 108)
This document, issued on 7 October 1763, is a landmark in British/Indian relations (see Appendix D). It has been described by Mr. Justice Hall of the Supreme Court of Canada as the Indian Bill of Rights. “Its force as a statute”, he writes, “is analogous to the status of Magna Carta which has always been considered to be the law throughout the Empire. It was a law which followed the flag as England assumed jurisdiction over newly discovered or acquired lands or territories.” (p 109)
The basic viewpoint informing the Proclamation’s Indian provisions is summarized in the preamble as follows:
“And whereas it is just and reasonable, and essential to Our Interest and the Security of Our Colonies, that the several Nations or Tribes of Indians, with whom We are connected, and who live under Our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to, or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds… “(p 109)
In short, the Proclamation portrays Aboriginal nations as autonomous political units living under the Crown’s protection and on lands that are already part of the Crown’s dominions. Aboriginal nations hold inherent authority over their internal affairs and the power to deal with the Crown by way of treaty and agreement. In a word, it portrays the links between Aboriginal peoples and the Crown as broadly ‘confederal‘.
Relations between the Crown and Aboriginal peoples differed from those between the Crown and its settler colonies. This difference is reflected in the structure of the Proclamation, which deals in a separate part with the constitutions of Quebec and several other new colonies. (p 110)
There was a basic difference between the constitutions of Aboriginal nations protected by the Crown and the constitutions of the settler colonies. The latter stemmed largely, if not entirely, from explicit grants, in the form of royal charters, proclamations, commissions, instructions, or acts of Parliament, as supplemented by basic unwritten principles. By contrast, the constitutions of Aboriginal nations sprang from their own internal arrangements and philosophies and were nourished by their inherent powers as self governing nations. These powers were modified over time by relations with the Crown and by certain customary principles generated by Aboriginal/Crown practice.
Nevertheless, through all these changes, Aboriginal constitutions retained their original roots within the communities concerned. (p 111)
EARLY PATTERNS OF TREATY MAKING
The earliest treaty making between Aboriginal and non-Aboriginal peoples in Canada was undertaken in the context of small groups of settlers living on a small portion of the land mass of the continent and involved such matters as trade and commerce, law, peace, alliance and friendship, and the extradition and exchange of prisoners. It took place in a time of intense diplomatic and military competition among European powers to claim territory, trade and influence in North America. In this context, economic and strategic ties with Indian nations became important, for the Europeans needed treaties to justify their competing territorial claims and to garner allies for their struggle. As long as their colonies were small and vulnerable, they eagerly entered into treaties with due consideration to the terms, and according to such protocols, as Indian nations wished. (p 114-115)
The principal alliances of the French with the Innu (Montagnais), Algonquin and Wendat (Huron) were economic and military in nature …
The military aspect of the alliances originated with the French helping their allies in conflicts with the Haudenosaunee in return for commercial privileges. The French, however, soon came to rely heavily on their partners to counter British expansionism.
In this case, the interests of the French and their allies were common, because the expanding territorial aspirations of the burgeoning settler population of New England were also a threat to Aboriginal interests. (p 115)
Although these agreements addressed matters of economic and military alliance, the first written treaties were signed in the interests of making or renewing peace between nations at war. Thus the first written treaties between the French and the Haudenosaunee, in 1624, 1645 and 1653, were essentially non-aggression pacts that had little lasting success. (p 115)
The treaty-making tradition between representatives of the British Crown and the Mi’kmaq continued in the middle decades of the 1700s, following a pattern in which some matters addressed in earlier treaties were reaffirmed while changing conditions gave rise to agreement on new issues. Thus, after the British established themselves in Halifax in 1749, new treaty discussions began, and in 1752 an important treaty was signed by the influential Mi’kmaq chief, Jean Baptiste Cope. (p 117)
It appears that European and Aboriginal interpretations of their agreements, whether written or not, differed on some key issues. The two principal ones were possessory rights to the land and the authority of European monarchs or their representatives over Aboriginal peoples. In general, the European understanding — or at least the one that was committed to paper — was that the monarch had, or acquired through treaty or alliance, sovereignty over the land and the people on it. The Aboriginal understanding, however, recognized neither European title to the land nor Aboriginal submission to a European monarch. (p 118)
The European doctrine of discovery resulted in an impairment of the rights of Indigenous peoples. Although they continued to be regarded as “the rightful occupants of the soil”, with “a legal as well as a just claim to retain possession”, they ceased to be free to dispose of the soil to “whomsoever they pleased” and were compelled to deal with the European power that had, at least in European eyes, ‘discovered’ their land. Indigenous nations, however, did not regard the arrival of European traders, adventurers, diplomats or officials as altering in any way their sovereignty or their ownership of their territories. (p 118)
… the Aboriginal conception of land and its relationship with human beings was based on the concept of communal ownership of land and its collective use by the human beings, animals and trees put there by the Creator. While people could control and exercise stewardship over a territory, ultimately the land belonged to the Creator — who had given the land to the people, to care for in perpetuity — and was thus inalienable. French views, by contrast, were grounded in that country’s feudal history, in which the suzerain, or ruler, not only had a form of land ownership but also had political authority over his vassals. ( p 118)
There was also a considerable discrepancy between official communications and the dialogue with Aboriginal nations. According to Lajoie and Verville, the French claim to sovereignty over the land and its people
“was confined to their discourse, a discourse destined for their European competitors, recorded only in the accounts and petitions they sent to their principals in the mother country and that they took good care to withhold from the Aboriginal people. Nor was it revealed in their practices.” (p 119)
The European claim to sovereignty over the land and the people may have appeared in the written terms of the treaty, but it is not clear that this claim was communicated orally. To the contrary, it would appear that the Aboriginal signatories were unaware that such concepts were embodied in written treaties. Land use arrangements between European powers and Aboriginal nations in the early contact period were arrived at orally and, later, through written documents that the Aboriginal parties may not have comprehended fully at the time. (p 119)
As well, French-speakers in attendance at the treaty ratification indicated that the aspects of the treaty concerning political and legal submission were not articulated. Rather it was emphasized that the Aboriginal participants had “come to salute the English Governor to make peace with him and to renew the ancient friendship which had been between them before.” (p 119 – 120)
Canadians and their governments, however, are more likely to look on the treaties as ancient history. The treaties, to Canada, are often regarded as inconvenient and obsolete relics of the early days of this country. With respect to the early treaties in particular, which were made with the British or French Crown, Canadian governments dismiss them as having no relevance in the post-Confederation period. The fact remains, however, that Canada has inherited the treaties that were made and is the beneficiary of the lands and resources secured by those treaties and still enjoyed today by Canada’s citizens. ( p 120)
The apparent common ground was real, but under the surface the old differences in world view still existed, largely unarticulated. Fundamentally, the doctrine of discovery guided the European understanding of the treaties. They were to legitimize European possession of a land whose title was already vested in a European crown. The indigenous understanding was different. Indigenous territories were to be shared; peace was to be made and the separate but parallel paths of European and indigenous cultures were to be followed in a peaceful and mutually beneficial way. (p 122)
DISPLACEMENT AND ASSIMILATION
IN THE WANING DECADES of the 1700s and the early years of the 1800s, it became increasingly clear that a fundamental change was occurring in the relationship between Aboriginal and non-Aboriginal peoples …
The first was the rapid and dramatic increase in the non-Aboriginal population, owing to the massive influx of Loyalists after the American Revolution and swelling immigration, especially from the British Isles. Beginning in the 1780s, thousands of Loyalists poured into the Maritimes …
Lower Canada, with its long-established reserve land policy, was not drastically affected by in-migration. It was different in Upper Canada, however, where reserves were fewer and population pressures proportionately greater. It is estimated that by 1812 the nonAboriginal population of that colony outnumbered the Aboriginal population by as much as 10 to 1, with the ratio increasing further in the ensuing decades.
Illegal squatting occurred on Indian lands, as in the Maritimes, but it was more common for purchases of Indian lands to be made through the negotiation of treaties. Purchased lands were then made available by the Crown for non-Aboriginal settlement. ( p 130)
The fur trade was already declining in eastern Canada by the latter part of the 1700s. The 1821 merger of the two major rivals, the North West Company and the Hudson’s Bay Company, signalled the end of the Montreal-based fur trade and with it the relative prosperity of the Aboriginal nations dependent on it. The fur trade continued to be important in the north and west for many more decades — indeed, it did not begin in what became British Columbia until the late 1700s.
But in eastern Canada, the fur trade — and the era of co-operative division of labour between Aboriginal and non-Aboriginal people it represented — were over. (p 130 – 131)
The normalization of relations between the United States and Great Britain following the War of 1812 was a third factor in the changed relationship that emerged at this time. No longer courted as military allies, a role they had enjoyed for two centuries, First Nations were forgotten for their major contributions … By 1830, in fact, responsibility for ‘Indian policy’ —formerly a quasi-diplomatic vocation — had been transferred from military to civil authorities. The preoccupation of policy makers turned to social rather than military concerns, and soon schemes were devised to begin the process of dismantling Aboriginal nations and integrating their populations into the burgeoning settler society around them.
… To justify their actions, the non-Aboriginal settler society was well served by a belief system that judged Aboriginal people to be inferior. Based originally on religious and philosophical grounds, this sense of cultural and moral superiority would be buttressed by additional, pseudo-scientific theories, developed during the nineteenth century, that rested ultimately on ethnocentric and racist premises.(p 131)
In Canada, the period saw the end of most aspects of the formal nation-to-nation relationship of rough equality that had developed in the earlier stage of relations. Paradoxically, however, the negotiation of treaties continued, but side by side with legislated dispossession, through the Indian Act. Aboriginal peoples lost control and management of their own lands and resources, and their traditional customs and forms of organization were interfered with in the interest of remaking Aboriginal people in the image of the newcomers. This did not occur all at once across the country, but gradually even western and northern First Nations came under the influence of the new regime. (p 132)
Former enemies of the victorious British, the Mi’kmaq and Maliseet, were simply ignored, left to find their own way in the rapidly changing world. Dispossessed of much of their land, separated from resources and impoverished, they were also ravaged by disease, and in the early 1800s they seemed to be on the road to virtual extinction. (p 134)
In Upper Canada, however … Aboriginal peoples were treated differently. Thus, the Indian affairs department consistently applied the principles of the Royal Proclamation of 1763, recognizing Aboriginal rights to land and self-government. This led to a series of treaties, signed between 1815 and 1825, that cleared the southern part of the colony for settlement. With the two Robinson Treaties in 1850, further territory north of the Great Lakes was opened for resource exploitation and, later, settlement. (p 134)
… Thus, the British imperial government, in association with protestant mission societies in the province of Upper Canada, embarked on the new policy of civilization with the willing assistance of many Aboriginal nations.
Communities in the southern part of Upper Canada were to be located on their reserves in serviced settlement sites, complete with houses, barns, churches and schools, and given training in agriculture and the other arts and crafts of settler life. (p 134)
Indian reserves were not a new factor in relations between the Aboriginal peoples and the newcomers to North America. The French had established the practice of setting aside lands for their Indian allies in New France, believing that a settled and secure environment would promote adoption of Christianity. The Jesuits established the first true reserve in this sense in New France, at Sillery, as early as 1637. Others soon followed. Thus, when the British embarked on their own program of attempting to convert and civilize the Indians of what is now southern Ontario, they had a precedent to draw upon. (p 134 – 135)
Throughout the nineteenth century and into the twentieth, first the British Crown and then the new dominion of Canada entered into treaties in Ontario, the prairie provinces and parts of the north, under which Indians agreed to the creation of reserves (along with other benefits) in exchange for their agreement to share their lands and resources with the newcomers. These treaties, described later in this volume, were modelled to a considerable extent on the Robinson treaties (also discussed later), were in written form, and were quite specific about the amount of land to be included in a reserve and the fact that traditional Indian hunting, fishing and trapping activities were not to be interfered with. (p 135)
Not all reserves in Canada were created by treaty, however. Those in Quebec were established by grants from the French Crown to missionary orders, on the theory that the Crown had all right and title to the lands in question. Some in Ontario were created by the purchase of lands outside the traditional territories of the Indian peoples for whom they were intended. The Six Nations reserve at Brantford falls into this category. Purchased originally from the Mississauga of the Credit in 1784, it was granted to the Six Nations by the Crown in 1788. Other reserves were created by order in council as circumstances required, and a few others were established by trust agreements with missionary societies, which were to hold the lands for the benefit of their Indian charges. There were even a few instances of Indian bands purchasing privately held lands using their own monies, with the reserves then being held by the Crown for their benefit.
In the Atlantic region there were no treaties under which reserves were created. On the cession of Acadia to Great Britain by France, the British view was that there was no requirement to treat with the Mi’kmaq and Maliseet nations for their lands. Never protected by imperial authorities to the same extent as the western First Nations, the relatively small remaining Aboriginal population in the Maritimes was scattered and isolated and, by the early 1800s, decimated by epidemics and considered to be headed for extinction. Indian administration was decentralized, and there was no imperial Indian department, so there was no regular allocation of imperial monies for Indian people and their needs.
Reserves were established by colonial authorities as a result of Indians’ petitions or their sorry circumstances, rather than the policy of a central authority. Accordingly, a few reserves were set aside in New Brunswick by licences of occupation granted to individual Indians on behalf of them and their families or the band they represented. These licences were then confirmed by order in council. In Nova Scotia, on the other hand, lands were set aside by order in council to be held in trust for Indians as if they were owned by them. In Prince Edward Island, a private benefactor allowed Indians to live on one reserve. Later, private land was purchased using government funds and other reserves were created.
No reserve was created in Newfoundland until 1984, because that province did not recognize the existence of status Indians within its boundaries following its entry into Confederation in 1949. (p 136)
Unlike the reserves in Ontario and western and northern Canada, however, imperial and colonial officials did not feel it necessary in Quebec and the Maritimes to follow the surrender requirements of the Royal Proclamation of 1763, so the local Indian commissioners appointed to protect and supervise Indian land transactions also had the power to dispose of reserve land without Indian consent. (136 – 137)
British Columbia presents an entirely different and still problematic situation. Between 1850 and 1854, William Douglas, governor of the Vancouver Island colony, entered into 14 treaties with the Indian peoples of southern Vancouver Island. Under these treaties, provision was made for the creation of reserves on terms similar to those in effect in Ontario and, later, western and northern Canada. A shortage of funds to compensate Indian peoples for their lands and a growing unwillingness among the settler population to recognize Indian rights to land hampered the reserve policy. Later, colonial authorities adopted a policy of allocating very small reserves to Indian bands. Pressured by the federal government to enlarge the reserves, after the province’s entry into Confederation in 1871, British Columbia refused … hearings led eventually to resolution of the issue in 1938. However, except for a portion of Vancouver Island (the Douglas treaties) and the northeastern corner of the province (Treaty 8), most of the land in British Columbia is not covered by treaties. (p 137)
In addition to creating reserves, in Upper Canada the policy to civilize the Indians was supplemented by legislation, the 1857 Act to Encourage the Gradual Civilization of the Indian Tribes in this Province. It provided for the voluntary enfranchisement — freedom from Indian status — of individuals of good character as determined by a board of examiners. (p 137)
The evident failure of the voluntary enfranchisement policy led the Indian affairs department to campaign throughout the remaining pre-Confederation period for an end to the independence of the Aboriginal governments that the Royal Proclamation of 1763 had apparently promised to protect. (p 138)
The first emergence of Métis people was not inadvertent. Intermarriage of newcomers with First Nations people was a deliberate strategy of seventeenth-century church and state officials in New France, as they intended to develop a powerful presence in North America to counter that of their European rivals, the Dutch and the English. (p 138)
… Officially, France ceased to sanction intermarriage after the 1670s, but so long as a fur trade was promoted from Montreal, economic incentives encouraged the original dynamic. Because promotion of the fur trade continued until 1821, a large Métis population developed throughout the Great Lakes basin. (p 139)
Historians have not reached consensus on how much the two streams of migration — the French ‘Métis’ and the English ‘half-breeds’ — merged into one population over the next several decades. They do agree, however, that many paths led to Red River, and what developed there between 1820 and 1870 represented a florescence of distinct culture in which both streams participated. The new nation was not simply a population that happened to be of mixed European/Aboriginal ancestry; the Métis Nation was a population with its own language, Michif (though many dialects), a distinctive mode of dress, cuisine, vehicles of transport, modes of celebration in music and dance, and a completely democratic though quasi-military political organization, complete with national flag, bardic tradition and vibrant folklore of national history. (p 141)
There was a compensatory promise of “fair and equitable” grants to people whose access to open prairie was expected to be restricted by future development. There was a positive affirmation of continuity, in the form of secure tenure of all occupied lands, and a promise of 1.4 million acres to benefit “the children of the half-breed heads of families”. Equally important, the negotiations leading to passage of the Manitoba Act and admission of the community to the Canadian federation as a province in its own right appeared to confirm the existence and importance of Métis self-government. The overall arrangement was so eminently satisfactory to the Métis provisional government that on 24 June 1870 its members ratified what many have since referred to as their ‘treaty’ without one dissenting voice. (p 142)
Further land was distributed, nominally at least, to Métis of the Northwest Territories, under a statute called the Dominion Lands Act, but the process was no more successful than the Manitoba process had been in terms of assuring satisfactory land-based Métis communities. In some areas, especially in the east, no attempt to recognize or deal with Métis Aboriginal rights was ever made. (p 143 – 144)
Both Métis and Plains Indians were deeply concerned by the relentless influx of newcomers to the prairies, the threat this posed to their lands and ways of life, and the sudden disappearance of the buffalo in the 1880s. While the federal government dithered in coming to grips with Métis and Indian grievances, Riel proceeded to form a provisional government. Under the leadership of Gabriel Dumont, a military force of plainsmen was also formed, but the federal government countered by sending a strong military expedition to the north-west in the spring of 1885. The Métis forces were crushed at Batoche, and Riel was hanged, after being convicted of treason, at Regina on 16 November 1885. Big Bear and Poundmaker, who had provided strong leadership to the Plains Indian forces, were arrested and sentenced to three years’ imprisonment. (p 144)
Métis people of the same district would have the option as individuals to join treaties or receive ‘half-breed’ scrip redeemable in land or a cash gratuity — nothing more. All told there were 14 such commissions canvassing western Canada. The last operated in the Mackenzie River district in 1921.
.. Still, no other accommodation was contemplated. Canada did not recognize Métis communities as such. Canada defined Métis rights in purely individual terms, the one-time-only claim that certain ‘half-breeds’ might make for scrip. When they received that gratuity, any potential claim arising from their aboriginality was deemed to be ‘extinguished’. (p 144)
From 1815 to the 1850s, there were literally hundreds of land transactions, whereby First Nations, many of which had previously made treaties of alliance, peace and friendship with the Crown, transferred their land to the Crown.
In all these land transactions, the Crown’s purpose was to secure First Nations lands for settlement and development. In some, and perhaps many, of these transactions, the Indian nations thought they were conveying their land to the Crown for the limited purpose of authorizing the Crown to ‘protect’ their lands from incoming settlement … (p 145)
The treaty of 1836 made provision to set aside the Manitoulin Island area as a reserve, and some Indian people made the move … By the early 1860s, the demand for land from non-Aboriginal interests led to a further initiative to gain control of the Manitoulin Island lands. In the 1861-62 period, agents of the Crown and the government of the Province of Canada approached the Odawa and Ojibwa nations of Manitoulin, seeking to release the government from its 1836 promise to reserve the lands exclusively for Indian use. The agents of the Crown assumed that the 1836 agreement gave the Crown title to the island, a premise rejected by the Indian nations …
On the following Monday, he presented a revised proposal excluding from the negotiations and subsequent agreement the territory and inhabitants of the eastern portion of the island. Since a majority of the island’s Indian inhabitants resided in the east, the agreement to open the bulk of the island to non-Aboriginal settlement was struck with a minority of the Indian inhabitants. (p 146 – 147)
In 1841 Upper and Lower Canada joined together to become the Province of Canada and subsequently leases were issued to companies to explore and mine in Ojibwa territories…
In September 1850 negotiations for the Robinson Huron and Superior treaties were concluded . Ojibwa chiefs succeeded in obtaining reservations of land as well as a provision that would give them a share of revenues from the exploitation of resources in their territories. Annuities, or cash payments, were to increase as revenues increased. However, the provision for an increase in the extremely small annuities was adjusted only once in the 1870s. When the Ojibwa request a further increase to reflect the real profits, the federal government’s response is to rely on the English text of the treaty, which states that such further sums are limited to what “Her Majesty may be graciously pleased to order”. (p 147 – 148)
In negotiating the numbered treaties that followed, the Crown followed the pattern of approaching First Nations to ‘surrender’ large tracts of land in return for annual cash payments and other ‘benefits’. These negotiations were conducted in the oral traditions of the Indian nations. Once agreement was reached, a text was produced that purported to represent the substance of the agreements. However, arrangements respecting land are one area where there was fundamental misunderstanding about what the parties thought or assumed they were doing when they made the treaties. The situation varied from one treaty to another, but in general the Indian nations, based on their cultural and oral traditions, understood they were sharing the land, not ‘surrendering’ it. While the surrender clauses of the early land sales in Ontario were included in the later written numbered treaties, it is questionable whether their implications were known to the Indian parties, since these legal and real estate concepts would have been incomprehensible to many Aboriginal people. Further, it would have been difficult, if not impossible, to translate the legal language expressing these concepts into the Indian languages.
Aboriginal people often understood that they were being compensated for the use of their lands and that they were not being asked to give up or surrender them, but to allow settlers to move onto their lands peaceably. (p 148)
Although the extent to which these basic differences and assumptions were communicated effectively and understood depended on the historical circumstances of those events in particular locales, on the whole the First Nations did not agree to having their lands taken over by the Crown, nor did they agree to come under the control of the Crown. Their understanding was that they would share their lands and resources in a treaty relationship that would respect their agreement to co-exist as separate nations but linked in a partnership with the Crown.
Other aspects of the treaty negotiations were also significant. The numbered treaties provided for tracts of land to be set apart and protected as reserves for the Indian parties. In the Robinson treaties, for example, the reserve lands were retained or reserved from the general surrender of Indian title. In the later numbered treaties, the texts were drafted to indicate that all Indian title was surrendered to the Crown, and from those tracts the Crown was obliged to set apart ‘Crown land’ for reserves on a population-based formula.
As the Indian parties in possession of these huge tracts of land demanded a fair and equitable exchange, the Crown not only offered cash payments upon signing and annually thereafter, but agreed to provide agricultural and economic assistance, schools and teachers, and other goods and benefits depending on the particular group they were negotiating with … (p 149)
Treaties 1871 (onward)
Traditional historical interpretations have tended to portray the treaty-making process as a Crown initiative, with a benevolent Crown extending its largesse to the less fortunate nations. However, the numbered treaties came about because First Nations demanded that special arrangements be made through treaties before the Crown could expect to use Indian lands and resources. They were not prepared to give up their lands, on which they depended for their livelihood, without a formal arrangement that would protect adequate lands and resources for their own use. (p 151)
Following an unsuccessful attempt to negotiate a treaty in the Fort Frances region in early 1871, treaty discussions were begun with the peoples of the Treaty 1 and 2 areas in the summer of the same year …
Archibald emphasized that they would not be compelled to settle on reserves and that they would be able to continue their traditional way of life and hunt as they always had.
… However, the written text did not include the guarantees that had been made respecting land, hunting and fishing, and the maintenance of their way of life, nor did it contain what were termed “outside” promises respecting agricultural implements, livestock, hunting equipment, and the other promises that had been extracted. In fact, the text was not that different from the Robinson Huron and Superior treaties, for it “surrendered” land in exchange for annuities, schools and reserves based on a formula of 160 acres per person.
In a subsequent inquiry into the matter, it was discovered that Commissioner Wemyss M.Simpson had neglected to include a record of the outside promises when he forwarded the text of the treaty to Ottawa… The matter of the outside promises was not settled until 1876. (p 151 – 152)
The negotiation of Treaty 3 was also long and difficult, but after two failed attempts a treaty was concluded in 1873. Throughout the negotiations the Ojibwa held fast to their terms, and Crown negotiators were forced to make concessions …
In the end, the Ojibwa succeeded in getting far more than the Crown had been willing to consider, including an increase in the size of reserves from a quarter-section to a full section. Provision was also made for domestic animals, farming equipment, annuities (compensation), clothing and education. Subsequent treaties generally included these provisions as a standard part of the agreement. In addition, those who were not present at treaty negotiations were asked to sign adhesions to the treaty for their traditional territories. (p 154)
Treaties with the First Nations of the plains, who were in possession of the western plains and who had to be dealt with if the new dominion was to extend its jurisdiction from east to west, were negotiated between 1874 and 1877 …
The rich agricultural plains were coveted by the Crown and had the greatest potential, aside from forest and mineral developments, to generate the economic prosperity that settlement would bring. This would not be easy, since the plains nations had military confederacies to guard their lands against encroachment…
In the end, and in part because of all the difficulties in negotiating the treaty, Morris offered and the chiefs present agreed to accept the terms of Treaty 3, the terms of which had already been communicated to them by the Ojibwa with whom they were in close communication. (154 – 155)
Treaty 5 was negotiated in September 1875 between the Swampy Cree and others and the Crown as represented by Commissioner Morris. A treaty in the vicinity of Lake Winnipeg was deemed necessary because of the requirements of navigation and the need to make arrangements for settlement and other developments so that “settlers and traders might have undisturbed access to its waters, shores, islands, inlets and tributary streams”. According to Morris’s report, the terms of Treaty 5 were similar to Treaties 3 and 4, except that reserved land would be provided on the basis of 160 acres for each family … The Cree were assured, however, that they would be able to retain lands in their traditional territories. (p 155-156)
A description of the unrest among Assiniboine and Cree: buffalo were disappearing, threat of starvation; fur-economy ruined by over hunting, settlers travelling west, etc. They demanded a treaty in order to establish their rights.
By the end of negotiations, the terms were similar to those of the other treaties, involving annuities, education, economic assistance and assistance with housing, but with added provisions for relief in the event of famine, help for the indigent, grain provisions for three years, and medical aid. (p 157)
In September 1877, Treaty 7 was made … between the Crown … and the Blood, Blackfoot, Peigan, Sarcee and Stoney nations of the Blackfoot Confederacy…
The Blackfoot Confederacy was feared because of its effectiveness in the defence of Blackfoot territory from outside encroachment. The Blackfoot were experiencing hardship as a result of the disappearance of the buffalo from their hunting grounds. Furthermore, up to 800 of their people had died from a smallpox epidemic in 1870…
Commissioner Laird offered inducements to get them to sign a treaty:
…But in a very few years the buffalo will probably be all destroyed, and for this reason the Queen wishes to help you to live in the future in some other way. She wishes you to allow her white children to come and live on your land and raise cattle, and should you agree to this she will assist you to raise cattle and grain… She will also pay you and your children money every year, which you can spend as you please. … The Queen wishes us to offer you the same as was accepted by the Crees.(p 157)
Negotiations consisted of the Crown offering annuities, goods and benefits, as they had in other treaties, in exchange for Blackfoot agreement to sign a treaty… In the record of treaty discussions prepared by the Crown, there appeared to be little discussion of the impending construction of the railroad or the surrender of Blackfoot territory. (p 158)
Treaties 8 and 11 were driven by economic pressures — gold was discovered in the Klondike in the spring of 1897, and prospectors, gold diggers and settlers flooded into Indian lands … in June 1898, nations in the Fort St. John area refused to allow police and miners to enter their territories until a treaty was made. (p 158)
As a result, in 1899 treaty commissioners travelled with a sense of urgency to meet the Cree and Dene nations in possession of a northern territory comprising 324,900 square miles, an area from northern Saskatchewan, Alberta and British Columbia and south of the Hay River and Great Slave Lake in the North West Territories. In Treaty 8, the Crown continued its policy of offering benefits if the Indian nations would allow settlers into their territories.
… The treaty also included the usual ‘cede, surrender and yield up’ clause, although this was not discussed by commissioners… It was only after the commissioners solemnly pledged their word, in the name of Queen Victoria, that the Indians agreed to sign the treaty. However, the full content of the discussion was not reflected in the written treaty. (p 158 – 159)
Treaty 11 was to follow the same path, since the Privy Council had noted in 1891 that immense quantities of petroleum and other valuable minerals existed in the Mackenzie River country and that “a treaty or treaties should be made with the Indians who claim these regions as their hunting grounds”. The economic implications were staggering to politicians in Ottawa. After oil was discovered at Norman Wells, treaty commissioners were again dispatched with urgency when the Dene threatened to refuse entry to their lands.
Commissioners were received with suspicion and mistrust, since the Dene had learned that guarantees negotiated in Treaty 8 were not being respected. Throughout the negotiations, the Dene repeated their conditions for making a treaty …
Commissioner Conroy did not table the commitments and guarantees made to the Dene in the oral negotiations. All that was tabled was a written text almost identical to the predrafted treaty that had been proposed in the Treaty 8 negotiations.
Throughout the negotiation of the numbered treaties the commissioners did not clearly convey to First Nations the implications of the surrender and cession language in treaty documents. (p 159)
Differing Assumptions and Understandings
Early treaties were made for peace, trade, alliance, neutrality and military support. When settlement grew, treaties were made to establish relationships, as a way of living together in peaceful co-existence, and to acquire Aboriginal lands and resources. Canada continues to enter into treaty agreements with Aboriginal nations to acquire title to Aboriginal lands and resources.
Over time, treaties became more complex and difficult to negotiate … In many cases, it is questionable whether the Indian parties understood the legal and political implications of the land conveyance documents they were asked to sign. Many of these transactions are the subject of land claims today.
It is also doubtful in many cases that the First Nations participating in the numbered treaties knew that the written texts they signed differed from the oral agreements they concluded. In fact, it was not evident to them until some years after treaties were made that the Crown was not honouring its treaty commitments or was acting in a way that violated treaty agreements. Their reaction to the imposition of government laws and restrictions upon them was seen as a violation of the Queen’s promise to protect their way of life and not subject them to the Queen’s laws (the Indian Act) or the Queen’s servants (the Indian agent)…
The fact that in most cases the Indian parties were unable to verify the implications of the written text against the oral agreement … must be given consideration when interpreting their meaning. (p 160 – 161)
In most, if not all the treaties, the Crown promised not to interfere with their way of life, including their hunting, fishing, trapping and gathering practices.
… The Indian parties understood they would continue to maintain their traditional governments, their laws and their customs and to co-operate as necessary with the Crown. There was substantive agreement that the treaties established an economic partnership from which both parties would benefit … First Nations were promised compensation in the form of annual payments or annuities, social and economic benefits, and the continued use of their lands and resources. (p 161)
First Nations were assured orally that their way of life would not change unless they wished it to. They understood that their governing structures and authorities would continue undisturbed by the treaty relationship. They also assumed, and were assured, that the Crown would respect and honour the treaty agreements in perpetuity and that they would not suffer — but only benefit — from making treaties with the Crown. They were not asked, and they did not agree, to adopt non-Aboriginal ways and laws for themselves. (p 161)
Non-fulfillment of Treaties
One of the fundamental flaws in the treaty-making process was that only the Crown’s version of treaty negotiations and agreements was recorded in accounts of negotiations and in the written texts. Little or no attention was paid to how First Nations understood the treaties or consideration given to the fact that they might have had a completely different understanding of what had transpired.
Another fundamental problem was the Crown’s failure to establish the necessary laws to uphold the treaties it signed. Unlike the modern treaties of today, which have provisions for implementation, implementation of the historical treaties was virtually overlooked. Once treaties were negotiated, the texts were tabled in Ottawa and the commissioners who had negotiated them moved on to other activities. After 1867, the new dominion was occupied with immigration, settlement and nation building, and its treaties with the Indian nations were largely buried and forgotten in succeeding decades. Since the Indian department was located initially in the department of the interior, immigration and settlement took precedence in the corridors of power.
… The eclipse of treaties and the absenting of Indian people from decision making was pervasive, reinforced by Indian Act provisions that restricted Indian people to reserves and forbade them to pursue legitimate complaints about the non-fulfilment of treaties.
Additionally, no effective office in government was ever given responsibility for fulfilling Crown treaty commitments. Implementation was left to a small group of civil servants without the knowledge, power or authority to act for the Crown in meeting treaty obligations or to hold off other government departments and the private sector if they had conflicting agendas. For example, treaties promised that reserve lands would never be taken away without the consent of the Indian signatories, but statute law provided that reserve lands could be expropriated from 1850 on. Thus federal statutes overrode treaty promises that Indian nations would never lose their lands. (p 163-164)
Many of the rights and promises recognized and affirmed by the treaties could be upheld only by an act of the legislature. But treaties were not sanctioned by legislation; they were executive actions of the Crown…
In the absence of effective laws to implement treaties, the federal Indian administration fell back on the Indian Act. As time went on, basic treaty provisions such as annuities were provided for in the Indian Act to enable the federal government to deliver them. Although it does not recognize, affirm or otherwise acknowledge treaties, the Indian Act continues to be the only federal statute administering to Indians generally, including those with historical treaty agreements. This is despite the fact that, as of 1982, the constitution recognizes and affirms the Aboriginal and treaty rights of the Aboriginal peoples of Canada. (p 164)
Extending measures of Control and Assimilation
The nation of Canada was born on 1 July 1867. Within a federal political structure, a modern transcontinental society was to be fashioned and, as empire became nation, a new beginning was to be made…
The first prime minister, Sir John A. Macdonald, soon informed Parliament that it would be Canada’s goal “to do away with the tribal system and assimilate the Indian people in all respects with the inhabitants of the Dominion.” …
Parliament was moved to action. Though rarely consulting Aboriginal communities, it translated that duty into federal legislation such as the Indian Act and periodic amendments to it. It crafted educational systems, social policies and economic development plans designed to extinguish Aboriginal rights and assimilate Aboriginal people.
The process began with the blueprint of Confederation, the British North America Act of 1867. It provided in section 91 that the “exclusive Legislative Authority of the Parliament of Canada extends to all matters within the class of subjects next herein-after enumerated” among which was section 24, “Indians, and Lands reserved for the Indians.”
… Enfranchisement Act of 1869… the act was conditioned by the Indian department’s resolute insistence on enfranchisement. It brought forward the enfranchisement provisions of the act of 1857 and added … the goal of assimilation.
In the act, traditional governments were replaced by ‘municipal government’, giving minor and circumscribed powers to the band while extensive control of reserves was assigned to the federal government and its representative, the Indian affairs department.
In subsequent legislation — the Indian Acts of 1876 and 1880 and the Indian Advancement Act of 1884 — the federal government took for itself the power … every aspect of life on reserves and to create whatever infrastructure it deemed necessary to achieve the desired end — assimilation through enfranchisement and, as a consequence, the eventual disappearance of Indians as distinct peoples. It could, for example, and did in the ensuing years, control elections and the conduct of band councils, the management of reserve resources and the expenditure of revenues, impose individual land holding through a ‘ticket of location’ system, and determine the education of Indian children.
For Aboriginal people, however, there was even further division — yet more separate paths. Federal legislative responsibility was restricted to Indians. The Métis people were disavowed, and Inuit were not recognized as a federal constitutional responsibility until 1939 and then were exempted explicitly from the Indian Act in 1951. (p 165 – 167)
While ‘status’ Indian men could not lose their status except by enfranchisement, the act of 1869 added the proviso that “any Indian woman marrying any other than an Indian shall cease to be an Indian…nor shall the children issue of such a marriage be considered as Indians”. Over the course of Canada’s first century, therefore, an ever growing number of Indian women and their children were lost to their communities and saw their existence as Aboriginal persons simply denied by the federal government. (p 167)
In 1884 and 1885, the potlatch and the sundance, two of the most visible and spiritually significant aspects of coastal and plains culture respectively, were outlawed … Participation in the potlatch was made a criminal offence, and it was also illegal to appear in traditional costume or dance at festivals. (p 169)
The pass system allowed the department to regulate all economic activity among communities, including adjacent non-Aboriginal ones. No one who had not obtained an agent’s leave would be allowed, on an Indian reserve, to barter, directly or indirectly, with any Indian, or sell to him any goods or supplies, cattle or other animals, without the special licence in writing. (p 169)
… That was changed in 1930, however, with passage of the natural resources transfer agreements with the three prairie provinces. In these the federal government failed to take “any precaution, apparently, to safeguard the sacred trusts which had been guaranteed to the Indians by treaty.” Thereafter, Aboriginal access to off-reserve resources was controlled across the country by provinces — which, of course, had no responsibility for First Nations. (p 170)
Those who failed to comply with any of the myriad social and economic regulations faced fines or imprisonment …Indian agents were made justices of the peace. The department then had the power to make and to enforce regulations, which had the force of law, with regard to the full spectrum of public and private life in communities. (p 171)
By far the most ambitious and tragic initiative, however, was the joint government and church residential school program. Introduced originally for Indian children, the system would eventually draw children from almost every Aboriginal community — Indian, Métis and Inuit — across the country. Beginning in 1849, the program developed to include boarding schools, built close to the reserves for children between the ages of 8 and 14, and industrial schools, placed near non-Aboriginal urban centres to train older children in a range of trades. The schools — 80 of them at the high point — were the centrepiece of the assimilation strategy…
Bad management, unsanitary conditions and abuse of the children were more than occasional exceptions to the rule. Parents, and indeed many local agents, were reluctant to send children to the schools … The department, unable to get adequate funding from Parliament or contributions from the churches, abandoned the ambitious industrial school model by 1920. Thereafter, the emphasis was placed on the boarding schools which, while less expensive, were judged by accepted standards of child care and education to be a dismal failure, leaving deep scars across communities and the conscience of a nation.
The removal of children from their homes and the denial of their identity through attacks on their language and spiritual beliefs were cruel. But these practices were compounded by the too frequent lack of basic care — the failure to provide adequate food, clothing, medical services and a healthful environment, and the failure to ensure that the children were safe from teachers and staff who abused them physically, sexually and emotionally (p 172)
As early as 1918, F.O. Loft declared, when organizing the League of Indians, the
first attempt at a national organization:
… The first aim of the League then is to claim and protect the rights of all Indians in Canada by legitimate and just means; second, absolute control in retaining possession or disposition of our lands; that all questions and matters relative to individual and national wellbeing of Indians shall rest with the people and the dealings with the Government shall be by and through their respective band Councils. (p 173)
Thus, the Indian Act of 1927 contained stronger measures to intervene in and control the affairs of Aboriginal societies, including further efforts to develop an agricultural economy in the expectation that social and cultural change would follow in its wake. That act was also notable for its response to Aboriginal political organizations pursuing land issues, especially in British Columbia. An amendment was added making “raising a fund or providing money for the prosecution of any claim” a crime unless permission was obtained. (p 176)
The “Statement of the Government of Canada on Indian Policy, 1969” ignored the consultations that accompanied the policy review and proceeded to recommend measures designed to achieve integration and equality: Indian people were to be allowed to retain their cultures, much as other Canadians do in a multicultural society, but they were to give up the other features that make them distinct — elements such as treaties, Aboriginal rights, exclusive federal responsibility, and the department of Indian affairs. The overwhelmingly hostile response to this policy initiative on the part of Aboriginal people, and subsequent court decisions that recognize the validity of Aboriginal and treaty rights, marked an important turning point in the relationship. (p 176)
To be continued … this summary will be updated periodically, when I have the time.