~./

Treaty Making and /the Loss of First

ations'LandsndAutonomy

In this chapter, you will• explore the various types of treaties between First Nations and

European and Canadian governments• understand why First Nations and Europeans established treaties• examine specific treaties that the Crown made with various First

Nations before and after Confederation• recognize the significance of treaties in the loss of First Nations'

traditional lands and autonomy• consider the current process of land claims by Aboriginal nations

in an effort to regain their right to traditional lands

autonomythe right of self-government; personalfreedom

RODUCTIONIn this chapter, you will explore treaty making between Europeans and First

ations in Canada. You'll learn about the different types of treaties thatwere made before and after Confederation and the reasons why both Euro-peans and First Nations decided to establish treaties. You'll discover howtreaties resulted in the loss of First Nations' traditional lands and autonomy.You'll also learn about treaty promises that were not fulfilled by the Crownand the actions First Nations took to protest this plight. Finally, you'll ex-

Crownthe government undera constitutionalmonarchy

87

88 PART II EFFECTS OF EUROPEAN ARRIVAL ON ABORIGINAL PEOPLES AND CULTURES

amine the process of present -day land claims to see how Aboriginal nationare trying to regain their rights and some control of their traditional lands.

EARLY TREATY MAKING BETWEENFIRST NATIONS AND EUROPEANS

treatyan agreement

between two statesthat has been

formally concludedand ratified

Before European explorers arrived in North America, First Nations and Inuipeoples lived within their traditional territories. As you learned in previouschapters, their cultures and traditions ranged from nomadic lifestyles, suchas those of the Plains peoples, to more permanent communities, such as theHaudenosaunee (Iroquois). First Nations and Inuit peoples felt a stron •..connection with nature, and their ways of living were closely linked to theland. Although Aboriginal societies did not have centralized, official gm"-ernments in the way that European societies did, they were self-governingthrough unwritten customs and codes of conduct.

Soon after contact, Europeans began to approach various First Nationsto enter into agreements. These early treaties were made to establish peace..trade, alliance, neutrality, and military support.

Indian TreatiesIndian treaties are formal agreements between First Nations and the Crowninvolvingpromises of peace and friendship, land cessions,and other issuesand benefits. Rights promised to First Nations peoples in these treaties arerecognized and confirmed by the Constitution Act, 1982; those included inland claims settlements also have constitutional force.SOUTce:The Canadian Encyclopedia (Edmonton: HUTtig, 1985), pp. 872-873.

THE GREAT PEACE TREATY OF 1701The Great Peace Treaty of 1701 is one example of early treaty making between First Na-tions and Europeans. Negotiations were held in Montreal between the French and 1,300representatives from more than 40 First Nations. The resulting treaty ended almost a centuryof war between the Five Nations Confederacy and New France. It also laid the ground-work for New France to expand south and west, and ensured that the Five Nations Con-federacywould not take sides in any conflict between Britain and France in the New World.

\[\

CHAPTER 4 TREATY MAKING AND THE LOSS OF FIRST NATIONS' LANDS AND AUTONOMY 89

The Fur TradeDuring the fur trade, First Nations and Inuit entered into negotiations withEuropean traders, with the Metis acting as intermediaries in many cases.For example, the Hudson's Bay Company made agreements with First Na-tions and Inuit to ensure that they would sell furs only to the HBC. In re-turn, the HBC assured them that they would receive quality goods from itstrading posts. These discussions took place in a spirit of mutual respect andequality. First Nations often held special ceremonies to help establish afriendly relationship with Europeans. As a result, when First Nations begannegotiating with Europeans over land, they expected to have the same typeof relationship based on respect and understanding. However, this was notoften the case, as you'll discover later in the chapter.

Land and ResourcesAs European settlements grew, treaties began to focus more on arrange-ments for living together peacefully and the acquisition of First Nationslands and resources. Changes to the First Nations' way ofliving on the landbegan with these first land treaties. Most important, the loss of First Na-tions' sovereignty is strongly linked to these treaties. From the start, FirstNations peoples expressed concern about disruption to their traditionalcultures. This concern is reflected in the terms of the treaties, which areoutlined later in this chapter.

MisunderstandingThe cultural differences between First Nations peoples and Europeans ledto misunderstandings during land negotiations. First, Europeans had a tra-dition of private ownership of land, while First Nations peoples felt that noone could own the land. It was a gift from the Creator, and they were itsguardians, not its owners. The land was their means of survival.

Second, language barriers meant that First Nations didn't fully understandthe terms of the agreements. Both sides had translators, but it was impos-sible to translate the ideas behind decades of tradition. First Nations weren'taware that they were selling the land, since it wasn't theirs to sell, as far asthey were concerned. They didn't realize that they were giving up anything.

In the First Nations' view, treaties were intended to layout the terms of amutual sharing of resources-and their compensation for sharing theseresources. These and other factors put them at a strong disadvantage duringnegotiations. In many cases, it wasn't until the Europeans began the processof removing them from their land that First Nations fully understood whatthey had signed. However, in the government's view, a deal was a deal. Trea-ties were a form of land surrender, the first step in the assimilation process.

90 PART II EFFECTS OF EUROPEAN ARRIVAL ON ABORIGINAL PEOPLES AND CULTURES

Treaties between First NationsTreaties were not new to First Nations at the time of contact. They had beenmaking treaties with one another long before the arrival of European fur trad-ers and settlers in the New World. Oral treaties had been made to settle warsand land disputes, to set up trading agreements, and to arrange marriages.

One of the first recorded treaties between First Nations involved theOnodowohgah(Seneca), Kanien'Kehaka (Mohawk), Onundagaono(Onondaga), Onayotekaono (Oneida), and Guyohkohnyoh (Cayuga). Thistreaty was called the Great Law of Peace of the People of the Longhouse andpredates the year 1450. It covered 117 articles, including the establishment ofa code of law and form of government between the five nations. The treatywas passed on orally and was not recorded until 1880.

Why Treaties Were Established

Europeans' MotivesIn the 17th century, both the French and the British started to make treatieswith First Nations. The French needed First Nations as their allies in the furtrade. Treaties with the French were made as friendship agreements andwere not written down.

The British started treaty making in order to "legally" take over FirstNations lands and resources. In this way, the British government could makeroom for settlement and fulfill its nationalistic goals with a minimum oftrouble from First Nations.

First Nations' MotivesWhy would First Nations go along with the idea of treaties? Asyou've learned,they had a different concept of land ownership from that of the Europeanand assumed that European settlers wanted to share the land, not own it.Most treaties were signed between the late 1700s and the early 1900s. At thattime, First Nations were facing great upheaval. Their traditional lands werebeing taken over by settlers; they were also losing their main source of foodthe buffalo, and their main source of income, trapping. European diseasessuch as smallpox were wiping out large numbers of First Nations peoples.Historians estimate that 10 percent of the First Nations population in theWest died from starvation or disease in 1883-1884 alone. In northern Canada,the decline of the fur trade was also affecting the livelihood of First Nations.So it was to First Nations' advantage to sign agreements with the Britishand Canadian governments that defined their rights, as well as the rights andresponsibilities of the European settlers who would be sharing the land.

OIAPTER 4 TREATY MAKING AND THE LOSS OF FIRST NATIONS' LANDS AND AUTONOMY 91

1. Compare the First Nations and European views of treaties. Howdid these views lead to misunderstanding during negotiations?

2. In an organizer, summarize the advantages and disadvantagesof treaties for both sides.

3. In this early stage of treaty making, was there any evidence thattreaties would have a harmful impact on First Nations peoplesin the future? Explain.

Historians classify First Nations treaties into three major groups: pre-Confederation treaties, the Numbered Treaties, and modern treaties (com-monly known as land claims). This section examines pre-Confederationtreaties and the Numbered Treaties; the next section examines land claims.

Pre-Confederation Treaties and the Royal Proclamation of 1763

Peace and Friendship TreatiesBetween 1725 and 1779, the British government and First Nations on theeast coast entered into a number of agreements known as Peace and Friend-ship Treaties. These treaties were established during a period of continualconflict between Britain and France. Britain wanted to ensure that First Na-tions would remain neutral or side with Britain. In exchange, Britain wouldnot prevent First Nations from following their traditional ways of life.

One of the first Peace and Friendship Treaties was reached in 1725 withthe Mi'kmaq First Nation of present-day Nova Scotia. In return for theMi'kmaq's neutrality or military assistance in any conflicts with the French,the British agreed to smooth the way for trade in the area and promised toprevent any European interference with traditional Mi'kmaq hunting, trap-ping, and fishing practices.

oyal Proclamation of 1763

When the Seven Years'War ended in 1763, Britain had become the supremeEuropean colonial power. With New France now under Britain's control,the British government passed the Royal Proclamation of 1763.This Act cre-ated the colony of Quebec and outlined its system of government. It also setaside a large area ofland for First Nations.

The Royal Proclamation outlined and formalized a treaty-making pro-cess with First Nations. It ensured that no one could approach First Nationsto buy their land, with the exception of representatives of the Crown. The

92 PART 1/ EFFECTS OF EUROPEAN ARRIVAL ON ABORIGINAL PEOPLES AND CULTURES

Figure 4.1The Peace and Friendship

Treaties, 1725-1779These treaties did not

involve the surrender ofFirst Nations lands on

the east coast, so they werenot individually mapped.

Nor were these treatiesever-replaced by treaties

that ceded land.

A Bill of RightsThe Royal Proclama-tion is an importantacknowledgment ofthe rights of FirstNations peoplesand their status asnations. For this rea-son, it has often beencalled the "IndianBill of Rights."

CapeBretonIsland

c:?Sable Island

Atlantic Ocean

NeWYOrk~

land could then be sold or given by the Crown to settlers and other Euro-peans. These laws prevented unscrupulous individuals from fraudulentlyobtaining First Nations lands.

Although the proclamation's terms did not extend to other settled colo-nies, it did set a precedent for treaty negotiations throughout the treaty-making era and continues to influence present -day land claims. For example,when the government of Canada purchased Rupert's Land and the North-Western Territory from the Hudson's Bay Company in 1869, it was requiredto follow Britain's treaty-making policy with First Nations:

[Ujpon the transference of the territories in question to the Canadian gov-ernment, the claims of the Indian tribes to compensation for land requiredfor the purposes of settlement will be considered and settled in conformitywith the equitable principles which have uniformly governed the BritishCrown in its dealings with Aboriginal people.

Statutes Order 1870:264, quoted in Michael Asch, Home andNative Land: Aboriginal Rights and the Canadian Constitution

(Vancouver: University of British Columbia Press, 1993), p. 58.

CHAPTER 4 TREATY MAKING AND THE LOSS OF FIRST NATIONS' LANDS AND AUTONOMY 93

SovereigntyDid the Royal Proclamation of 1763 recognize the sovereignty of First Na-tions peoples? This question continues to be debated. First Nations statethat their sovereignty as nations has never been extinguished. They arguethat the Royal Proclamation, even though it placed boundaries on land re-served for First Nations peoples, continued to recognize their sovereignty.First Nations peoples were not seen or referred to as Crown subjects in thisdocument, nor in any later Crown documents. They were recognized asseparate and distinct peoples and nations. They were promised that theirtraditional ways, which included the right to their own laws, territories, andgovernment, would not be violated.

extinguishto nullify a right,claim, etc.

The Indian DepartmentBetween 1763 and 1830, the British government did not establish any otherpolicies or pass any legislation that specifically addressed First Nations. How-ever, the first Indian Department in Canada had been established in 1755 as abranch of the British military in North America. Its purpose was to maintaingood relations with First Nations and to ensure their loyalty to Britain duringtimes of war. The creation of this department reinforced the paternalistic atti-tude that the government had assumed in its dealings with First Nations. De-spite this attitude, First Nations continued to be self-governing, looking afterthe needs of their communities at all levels-political, economic, and social.

Other Pre-Confederation TreatiesAfter 1763, the British Crown made a series of treaties mainly with FirstNations in present-day Ontario. The purpose of these treaties was to openup areas for European settlement, farming, and mining.

Many treaties that were signed after the Royal Proclamation and beforeConfederation have never been found or were poorly documented. Examplesof treaties that survived or were better documented include the following:

• Upper Canada Treaties '(1764-1862): The first land treaties in present -daysouthern Ontario were made following the American Revolution in1776. After Britain was defeated by American colonists, it neededland for its displaced Loyalist colonists and First Nations allies. Theywere in danger of losing their lives if they remained in the UnitedStates. Britain also needed land to reward military personnel whohad fought in the revolution, including its First Nations allies whowere primarily from the Six Nations Confederacy. Many of theserefugees were resettled in Upper and Lower Canada. First Nationswho were displaced in these early treaties to make room for the refu-gees received goods and lump-sum payments in exchange for land.

94 PART /I EFFECTS OF EUROPEAN ARRIVAL ON ABORIGINAL PEOPLES AND CULTURES

• Province of Canada Treaties (1850-1862): The three major Province ofCanada Treaties are the two Robinson Treaties and the ManitoulinIsland Treaty. With the discovery of minerals near the s~ores of lakesHuron and Superior, the government of the Province of Canada de-cided to extinguish First Nations' title to their lands. The twoRobinson Treaties were signed in 1850 between the Anishnaabe(Ojibwe) and the Crown. The Anishnaabe gave up mining land inexchange for money and the creation of reserves. They were alsogiven the right to hunt and fish on the land that they had surren-dered. The Manitoulin Island Treaty was signed in 1862. It allowedEuropean settlement on this island in Lake Huron .

• Vancouver Island Treaties (1850-1854): Also known as the Douglas Trea-ties, these 14 agreements gave First Nations cash, clothing, and blanketsin exchange for nearly 570 square kilometres ofland on the island. Theyalso kept the right to use existing village lands and were allowed to huntand fish on the surrendered lands. Although Governor James Douglasnever used the word treaty in the negotiations, the Supreme Court ofCanada later ruled that they were treaties because Douglas was repre-senting the Crown. Treaty making on Vancouver Island ended in 1854when the colony ran out of money for further expansion. Also, fewerEuropeans were settling on the island, and industry was slow to develop.

Tecum~e was a Shawnee chief who wanted First Nations to unite in stoppingR~P.Bi' nrri-Aborigi'riaI settlement on First Nations lands:

'''My heart is a stone. Heavy with sadness for my people; cold with theknowledge that no treaty will keep the whites out of our land; hard withdetermination to resist as long as I live and breathe. Now we are weak andmany of our people are afraid. But hear me; a single twig breaks but the bundleof twigs is .strong. Someday I will embrace our brother tribes and draw theminto a bundle and together we will win our country back from the whites."Tecumseh, c. 1795

jurisdictionthe power or right to

exercise authority

The Numbered Treaties (1871-1921)In 1867, the British North America Act (renamed the Constitution Act, 1867in 1982) created the Dominion of Canada, which included Nova Scotia,New Brunswick, Quebec, and Ontario. The Act also gave jurisdiction overthe "Indians and Land reserved for Indians" to the government of Canada.The Inuit and Metis were not mentioned in the Act, but in 1939, the Inuitwere also placed under federal jurisdiction. Chapter 5 explains the Metis'status as an Aboriginal people.

TREATY MAKING AND THE LOSS OF FIRST NATIONS' LANDS AND AUTONOMY

_~- er Canada purchased Rupert's Land and the North- Western Territorythe Hudson's Bay Company in 1869, the entire area was renamed the-West Territories. Prime Minister John A. Macdonald wanted to openea to more settlement and complete the railway from the Atlantic to

--e Pacific. However, these lands were the traditional territories of First_-. ions; according to the terms of the Royal Proclamation of 1763, First_-- ions had to be compensated for surrendering their lands.

-=r-< .een 1871 and 1921, 11 treaties were signed between the government of- ada and First Nations in present-day northern Ontario, Manitoba, Sas-

ewan, Alberta, and portions of the Yukon Territory, the Northwest~<TIitories, and British Columbia. They are commonly referred to as the_-umbered Treaties" because they are numbered 1 to 11.

Although some First Nations did not trust the Canadian government to.:: nour the treaties, they had little choice. As you read earlier in the chapter,- Nations in the West were facing disease and starvation, as well as the

of their culture and way of life in the face of European settlement. Inder to survive, many First Nations agreed to surrender their lands in ex-

- ange for reserve lands, annuities, schools, hunting and fishing rights, ag-icultural implements, cattle, clothing, flags, medals, and annual cash

ributions for ammunition and twine.

annuitya sum of moneypaid yearly

WHO WAS INCLUDED IN THE TREATIES?

Under the terms of the British North America Act, First Nations peoples who were livingon reserves in the new Dominion of Canada were registered by the federal government.First Nations peoples in the North-West Territories, or "Treaty Indians" as they were iden-tified by the government, were also registered. When the Indian Act was passed in 1876, itset out three categories of "Indian status." (The Indian Act is explained in Chapter 5.)

Because the Numbered Treaties took these categories into account, families were oftendivided. First Nations peoples whom the government considered to be "troublemakers:'or who had not accepted Christianity and its ideals of being "civilized," were not includedin the treaties. The government did not approach a significant number of Aboriginalpeoples for treaty negotiations-for example, First Nations in the James Bay area andmost of British Columbia, as well as the Inuit.

95

96PART" EFFECTS OF EUROPEAN ARRIVAL ON ABORIGINAL PEOPLES AND CULTURES

rsn [DTreatY1,1871 f!lTreatY6,1876

~y ~ Treaty 2, 1871 m~d1h8e;~onto Treaty

0<2 e,\\"c'!iJ., rmT .~. Q i\J1d !.,ri ) reaty 3, 1873 Treaty 7, 1877"V-d ~ cs 0

;r-\~ !4j~ aTreaty 4, 187.411Treaty 8, 1899, 1900

W~ ~ J0f~ mTreaty 5, 1875 ~ i~~~:1~06~ • Adhesion to Adhesion to

~ ~I <'.) ~ IIITreaty 10,1906k h....;. T'''', 11,t92t

.I 9\i ', ~r ~

Figure 4.2 The Numbered Treaties, 1871-1921 Many of these treaties included cattle and farming implements as part ofwhat First Nations would receive in return for their lands. The Canadian government thought that First Nations in theWest should farm the land rather than hunt the rapidly disappearing buffalo. However, these First Nations were nomadicand had little experience of farming. They believed they had the right to preserve their own way of life and keep theirindependence.

Treaties 1 through 5 (1871-1875)The first five Numbered Treaties covered lands in present-day northwest-ern Ontario, southern Manitoba, Saskatchewan, and Alberta. Treaties 1,2,

and 3 were negotiated with the Nehiyaw (Cree) and theAnishnaabe (Ojibwe) of Manitoba and northwestern Ontario.Treaty 4 primarily involved the Nehiyaw and the Anishnaabe ofsouthern Saskatchewan, while Treaty 5 was signed by theAnishnaabe and the Mushkegowuk (Swampy Cree) in the areafrom the middle of Lake Winnipeg and Lake Manitoba to justbelow the southwestern quadrant of James Bay.

Treaty AdhesionsSome First Nations did not initiallysign the treaties. However, at a laterdate, they decided to comply withthe treaties and sign them. This iscalled a treaty adhesion.