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Manitoba History: Review: J. R. Miller, Compact, Contract, Covenant: Aboriginal Treaty-Making in Canada

by Denise Fuchs
University of Manitoba

Number 65, Winter 2011

Treaty-making has figured prominently in academic and public policy discourse since the 1970s. The negotiations of modern treaties such as the James Bay and Northern Quebec Agreement (1975), Nunavut Territory (1993– 1999), and the Nisga’a Treaty (1996–2000) have been the subject of intense debate over legal, political, constitutional, economic and environmental issues. They have sparked renewed investigations into historical treaties and have focussed attention on Indigenous understandings and practices of treaty-making. Unlike studies that focus on single or regional treaties, Miller’s latest work, Contract, Compact and Covenant: Aboriginal Treaty-Making in Canada, sets a precedent as the first comprehensive overview of treaties in Canada from the time of contact to the present.

In this survey, Miller identifies commercial pacts, alliances of peace and friendship, and territorial agreements as the principal forms of treaty-making between Aboriginal Peoples and European newcomers in this period. The “compacts, contracts, and covenants” define and shape the relationships forged in Aboriginal treaty-making. Miller’s analysis places the Indigenous concept of kinship and the cultural knowledge, spiritual beliefs and sacred elements intrinsic to it, at the heart of the treaty relationship. Drawing on a large and varied body of primary archival sources, oral histories, secondary published works and interviews, Miller argues that treaties have been foundational in the emergence of the Canadian state, and that the history of treaty-making offers a tangible marker of nativenewcomer relations in Canada. He challenges the longheld assumption that treaties were forced upon Aboriginal Peoples for acquisition of land and suggests that the making of kin in the lengthy shared history of treaty-making brings natives and newcomers together as “treaty people”—a collective identity that Miller urges all to embrace.

French, Dutch and British newcomers first experienced Aboriginal treaty-making as commercial compacts: the exchange of goods for access to Indigenous travel routes and trade sites in their pursuit of furs. This tradition which endured into the mid-19th century in some locales was marked by elaborate Aboriginal trade ceremonies of ritual welcoming, gift-giving exchanges, speeches, and the smoking of the sacred calumet signifying the presence of the Great Spirit. Europeans became adopted as “fictive kin” into First Nations’ kinship circles through this custom and were able to fit themselves into existing Indigenous trade patterns and networks.

Representing the second stage of treaty-making, and occurring simultaneously with early fur trade commercial compacts, were the “peace and friendship” treaties that conflated trade exchange with diplomatic and military alliance. Best described in the 1735 statement of an Iroquois spokesman: “…trade and peace we take to be one thing,” peace and friendship alliances such as the Great Peace of 1701 also included pacts that allied Europeans and Aboriginals in the Seven Years’ War, the War of 1812 and the American Revolutionary War.

The Upper Canadian treaties, which Miller divides between those after the Seven Years’ War (1756–1763) and those from the War of 1812 to 1862, were territorial agreements. These treaties followed the protocol of the Royal Proclamation of 1763 which placed all future treatymaking in the hands of the British Crown. The Proclamation was designed to quell wars between First Nations and the British after the defeat of the French, and to stem the tide of American land speculation east of the Thirteen Colonies. Before 1812, a total of 13 treaties dispossessing First Nations’ land for one-time payments in goods, while protecting hunting and fishing rights, were completed. Though peace prevailed and kinship was celebrated in ceremonial exchanges, a few First Nations pointed out the Crown’s fickleness in maintaining treaty promises. Indicating shifts in the relationship and a move toward European protocol, one First Nation found the English to be almost as bad as the Americans in taking away their land, and a Mississauga band asked for written evidence that settlers be sent off their lands.

In the treaties completed from 1815 to 1850, the Crown’s policy for compensation changed from one-time payments to annuities. This departure was undertaken to decrease the Crown’s initial outlay and to cover subsequent costs with settlers’ mortgages. Buckquaquet of the Rice Lake Mississauga felt his people had little alternative to treaty as they were becoming more desperate. Voicing concern about the loss of the use of hunting, fishing and water sites and the depleting stocks of fish and game, he told Commissioner William Claus, “From our lands we receive scarcely anything.…” Simultaneously, Indian Affairs’ move from a military to a civilian focus indicated the increasing influence of colonial society. While continuing to acquire First Nations’ land, Indian Affairs began to alienate First Nations from themselves through an assimilationist “civilization policy” of reserve agriculture, Christianization and Euro-Canadian schooling for their children.

By 1846 the Crown had acquired access to all land south of the shield and began to look north. The issuing of mining licences to non-Aboriginal prospectors prior to making treaty led to criticism from Governor General Lord Elgin for its violation of the Royal Proclamation, and to crisis for First Nations. Ojibwa Chief Singuakonse’s village lay within one “location ticket” area. After prolonged negotiations, the Lake Superior and Lake Huron treaties were peacefully completed in 1850 under supervision of William Robinson. Miller emphasizes the contemporary and future significance of these treaties noting that they reflected colonial society’s increasing control, the Crown’s decreasing adherence to the Royal Proclamation, and First Nations’ disillusionment due to declining resources, depopulation, disease, and deterioration of the treaty-making relationship. The new settler government tended to perceive treaties as simple contracts and discouraged gift exchanges. First Nations’ view of the land remained unchanged, and they grew more and more concerned.

Though the Southern Numbered Treaties (1871–1877) were also territorial agreements, Miller demonstrates that their most significant characteristic was the First Nations’ “sense of proprietorship.” First Nations requested compensation for their lands well in advance of the Dominion’s move to treat with them. The young Dominion’s annexation of Rupert’s Land and the steady flow of settlers to the West, motivated Cree and Saulteaux of the southern Plains to request compensation for roads and construction of the telegraph wires. These First Nations made it clear that the territories in which they resided were theirs, and that the Crown had to take action to secure their agreement before strangers could use their resources. Chief Yellowquill’s band posted a note on a church door requesting that settlers not cut down any more firewood. The Plains Cree of present-day Saskatchewan ordered a gang of telegraph construction workers out of the country, and the Blackfoot wrote to the Lieutenant-Governor of the Northwest Territories requesting treaty before settlement.

First Nations articulated similar appeals during treaty negotiations. At Treaty 4 talks, The Gambler told Commissioner Alexander Morris that “The Company have stolen our land…the earth, trees, grass, stones, all that which I see with my eyes.” Another First Nations spokesman demanded the £300,000 paid for Rupert’s Land. In an affirmation of ownership, Chief Mawedopenais stated at the closing of Treaty 3 talks, “… I deliver over my birthright and my lands….” Though most of the Crown’s negotiators were lieutenant-governors from Manitoba and the Northwest Territories who had some previous experience in treaty-making, they did not refrain from exploiting their position and were accompanied by the Northwest Mounted Police (NWMP), a military presence, Aboriginal and non-Aboriginal missionaries, and Métis interpreters. The Hudson’s Bay Company (HBC) assisted the government in housing and transporting officials. First Nations’ refusal to treat on HBC territory or at the NWMP headquarters at Fort Macleod further emphasized their connection to the land and their resentment of its occupation by settlers.

Despite First Nations’ unrest and the government’s show of force, kinship played an important role in these treaties. Ceremonial protocol included the invocation both of deities and of the ceremonies practised almost two centuries earlier in the fur trade. Miller notes that much of this protocol was lost on the Crown representatives but that in the difficult negotiations of Treaty 4, for example, Commissioner Alexander Morris would have understood First Nations’ displeasure when the pipe was not offered.

The government’s attitude to First Nations changed after they achieved their goal of peaceful access to the land through the Numbered Treaties. Reinforced by the paternalism of the Indian Act and its legal definition of First Nations, the government neglected to fulfill treaty promises, which resulted in the lack of housing, food, implements, fuel, clothing, and in one case the skull of a bison for Cree and Saulteaux summer spiritual celebrations. The kin-like relationship that First Nations thought was embodied in the treaties had vanished. First Nations’ proposals, petitions, and delegations were largely ignored.

The Northern Numbered Treaties 8 to 11, signed between 1899 and 1921, covered land in northern Alberta, British Columbia, Ontario, Saskatchewan, Manitoba, the Yukon and the Northwest Territories. Like the First Nations of the south, northern groups were motivated to seek treaty by depletion of subsistence resources. The federal government chose not to respond to their circumstances or requests until the economic opportunities of gold, oil and hydro became apparent. As a result, the Northern Treaties were hastily put together, often necessitating adhesions later (Treaty 8) or lawsuits (Lubicon Lake Cree) to correct past wrongs. Northern First Nations’ awareness of previous treaties prompted them to voice their expectations at greater length than others had. Their hopes were seldom recorded, and the ceremonialism of the talks was reduced to feasting after the treaties were signed. Miller describes the government’s role in northern treaty-making as the empire building of an “oppressive colonizer.”

During the half-century from 1923 to 1975, treaty-making came to a halt in Canada. Miller attributes this gap to First Nations’ disenchantment with the Numbered Treaties, the Great Depression, a hardening of leading bureaucrats’ attitudes towards First Nations, and, to a lesser extent, a contemporary anthropological theory that First Nations were dying out. When treaty-making resumed in the 1970s, largely due to the persistence and strength of First Nations’ leadership, it resembled former patterns of the one-time payments of the “peace and friendship” era. Modern negotiations were also characterized by government advantages, huge delays and further erosion of ceremony. Provincial government involvement, initially in Quebec and then in British Columbia where Aboriginal title had not previously been recognized, brought changes and increased complexities. First Nations’ resort to legal action to settle land claims further distinguished modern treaty-making from former pacts. This process established precedents for Aboriginal title that assisted in subsequent claims. Miller predicts that this modern form will continue into the future.

Building upon Miller’s earlier work on the Saskatchewan treaties and numerous articles, Compact, Contract, Covenant, significantly reframes notions of Aboriginal treaty-making in Canada. Its investigation of continuities and shifts in the relationship between generations of Aboriginal leaders and non-Natives gives voice to Indigenous narrative memories of treaty-making and its cultural conceptions and comprehensions. Treaties were not only initiated by Aboriginal Peoples, but their form and significance were influenced by Indigenous politico-religious theories and applications. Though his analysis is situated firmly within the context of the Canadian state, Miller does not hesitate to expose the flaws of government forces in treaty-making. He implores all residents of Canada, as “treaty people”, to acknowledge responsibility for past, present and future treaty-making and to embrace and endorse the kinship embedded therein.

This survey is at once accessible, comprehensive, richly detailed and complex. It will enlighten popular audiences interested in the history of treaty-making and will be a most valuable reference for post-secondary instructors and undergrads, as well as an important text book for honours and graduate students in a wide variety of academic disciplines.

Page revised: 17 August 2016

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