Monday, September 10, 2018

More on the History of Treaties and Pipelines

Alan B. McCullough wrote to me in response to my posting here of Thursday, September 6, "History of Treaties and Pipelines."  It's an important matter he raises, so let me quote him in full and then respond (at some length, I warn you):
I don’t want to let your statement that “…the treaties that were negotiated face-to-face with Indigenous leaders were always framed as sharing agreements not surrenders (no matter what the written text filed in Ottawa says)” pass without comment. You obviously know what the written text of the treaties say but let me quote an example. Treaty Six, signed at Forts Pitt and Carlton reads
 “The Plain and Wood Cree Tribes of Indians, and all other the Indians inhabiting the district hereinafter described and defined, do hereby cede, release, surrender and yield up to the Government of the Dominion of Canada, for Her Majesty the Queen and Her successors forever, all their rights, titles and privileges, whatsoever, to the lands included within the following limits, that is to say:…” That seems clear to me. There were some sharing aspects to the numbered treaties (limited hunting and fishing rights, the provision of reserve land) but these were minor in comparison to the amount of land which was transferred to Canada."
 The Plains and Wood Cree may not have fully understood the language used although I am inclined to give them credit as astute bargainers who reluctantly agreed to difficult terms. However, I cannot believe that the Canadian officials did not understand these terms as anything but a surrender. The concept of the treaties as a sharing agreement is a relatively recent innovation among some scholars and is far from general acceptance. As recently as 1984 Gerald Friesen wrote in The Canadian Prairies, p.138, that the federal government wanted “…to extinguish Indian claims to the territory once and forever.”
 If you are going to ignore the “written text filed in Ottawa” I think it is incumbent on you to do more than assert “that treaties were always framed as sharing agreements.”
Alan, you raise an important issue, and I thank you for putting this problem so clearly and succinctly, and with supporting evidence. I don't want to change a word of what I wrote, but you are entitled to ask for some expansion of what already felt to me like a long post. Let me begin by saying I am not an expert on treaty history, and my reading is partial and incomplete. Still less do the Cree or the Haida or the signatories of any particular treaty need me to speak for them. But the matters you raise are fundamental, and one cannot practise Canadian history without addressing them

First, let's consider what a treaty between (what is now) Canada and a First Nation is. The Royal Proclamation of 1763, in which Britain imposed the treaty obligation on its representatives in British North America, sets out a good definition:
"…If at any Time any of the Said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony respectively within which they shall lie….
We are used to thinking of treaties as written documents analogous to contracts where teams of lawyers have gone over every phrase and comma. The Royal Proclamation's definition may be useful here. It establishes treaties as agreements made in person on the land in question. The wording of the Proclamation suggests that if the chiefs, who neither read nor wrote English and may not have spoken it either, put their marks on a treaty document, they would be affirming, not the text itself but the agreement actually made on the ground between the negotiating parties.

If the texts, which do indeed contain such language as "cede, release, surrender and yield up … forever," are understood as transcripts or reports on an actual treaty, then historians are entitled -- indeed required -- to consider how accurately those written texts reflects the agreements themselves, the ones made in person between the Governor's representatives and an assembled First Nation. If there is a persistent disagreement between the written text of the treaties and independent evidence of what was actually agreed on the ground, why should we take the wording of the written text at face value and ignore the actual treaty?

I was very impressed several years ago by John Long's book Treaty No. 9: The Agreement to Share the Land in Far Northern Ontario in 1905. Indeed it impressed me so much that I made a radio documentary about it for CBC Radio, which you can listen to here

Treaty 9 is broadly similar to several other Canadian treaties with First Nations, though made late (in 1905). Its written text does include the "cede, release, surrender" language, for instance. But in the book Long assembled and published abundant evidence, even from the treaty commissioners themselves, that during the actual discussions the Cree and Ojibwa chiefs consistently refused any proposal that they should surrender their land or self-government. They did not agree to be confined to postage-stamp reserves. They intended to continue to hunt and fish and use their land. 

In order to get the chiefs' marks on the treaty document, the commissioners were compelled, at one meeting after another, to make broad promises: that reserves would only be places in which no white man could disturb the Indians and, particularly important, that the Indians would be free to hunt and fish forever, without restriction. It was upon the reiteration of those promises that the chiefs consented to affix their marks to the commissioners' document.

Long's Treaty 9 acknowledges, I think, that the Cree and Ojibwa were not getting something for nothing when they secured these promises from the commissioners. They were giving up something substantial. They understood in 1905 they could not prevent Euro-Canadians from coming into their territory. And they understood that Canada could be a source of benefits and necessities: medicine, education, access to new technologies and new livelihoods. What they offered in exchange, it seems pretty clear, was a sharing on agreed terms of what had been First Nations territory, land, and resources between the First Nations and Canada -- a big concession, but not a crazy one.

I haven't followed every treaty or every history of actual treaty negotiations, but when I look into them, or when I read phrases like "as long as the grass grows and the rivers run," and similar commitments, the Treaty 9 model -- treaties as sharing agreements -- sounds a lot more realistic than "cede, yield, surrender," -- no matter what the written text says. Note that when the Treaty 9 commissioners were negotiating and promising, they were carrying with them a Treaty 9 text that was already written and closed and which they could not change. How could it become a reliable transcript of negotiations yet to take place?

When one starts to accept what treaties actually were and are, it becomes easier to understand what the Assembly of First Nations wants, and what Idle No More wants (or wanted), and what indigenous intellectuals and scholars and writers frequently insist on. As I hear them, they want treaties respected. They want it understood that we are all treaty people. They want it accepted that such is the way forward.  It seemed to me, as I made the radio documentary, that was what Stan Louttit, then Grand Chief of the Mushkegowuk Cree of the James Bay Lowlands, was telling me his grandparents wanted when they made treaty.

I think that historians can help make the case -- indeed, are already making the case -- that if we want to make progress on reconciliation, if we want to make progress on pipelines, if we want to make progress on simple justice and what the law calls "the honour of the Crown," what we need to do in Canada is to start respecting and implementing treaties. Not unreliable cede-yield-surrender texts that do not stand up to historical scrutiny, but real treaties, amply documented as sharing agreements, made by people who, as you say, Alan, were indeed astute bargainers who agreed to difficult terms.

I think the evidence is: Canadian land treaties made with First Nations were about sharing, not surrendering. And they still are.

How all this applies to pipelines on the British Columbia lands where British Columbia and Canada refused to make treaty at all, and where the First Nations never even agreed to a sharing agreement… well, that's another question.

As I said at the start, I'm not a treaty historian or a specialist in these questions. I know something of what every Canadian ought to know, I think. But I would welcome further contributions from treaty historians, Euro-Canadian or indigenous, who may follow this blog.

Update, September 11:  Happy to see this morning that Kayak, the kids' history mag published by Canada's History, has got the idea down.  Cover story on the new issue: "We are All Treaty People"

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