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The Evolution of First Nations Treaty-Making† University of Calgary PRISM: University of Calgary's Digital Repository University of Calgary Press University of Calgary Press Open Access Books 2018-10 Reconsidering Confederation: Canada's Founding Debates, 1864-1999 University of Calgary Press Heidt, D. (Ed.). (2018). "Reconsidering Confederation: Canada's Founding Debates, 1864-1999". Calgary, AB: University of Calgary Press. http://hdl.handle.net/1880/108896 book https://creativecommons.org/licenses/by-nc-nd/4.0 Attribution Non-Commercial No Derivatives 4.0 International Downloaded from PRISM: https://prism.ucalgary.ca RECONSIDERING CONFEDERATION: Canada’s Founding Debates, 1864–1999 Edited by Daniel Heidt ISBN 978-1-77385-016-0 THIS BOOK IS AN OPEN ACCESS E-BOOK. It is an electronic version of a book that can be purchased in physical form through any bookseller or on-line retailer, or from our distributors. 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For more information, see details of the Creative Commons licence at: http://creativecommons.org/licenses/by-nc-nd/4.0/ UNDER THE CREATIVE UNDER THE CREATIVE COMMONS LICENCE YOU COMMONS LICENCE YOU MAY NOT: MAY: • gain financially from the work in any way; • read and store this • sell the work or seek monies in relation to the distribution document free of charge; of the work; • distribute it for personal • use the work in any commercial activity of any kind; use free of charge; • profit a third party indirectly via use or distribution of • print sections of the work the work; for personal use; • distribute in or through a commercial body (with • read or perform parts of the exception of academic usage within educational the work in a context where institutions such as schools and universities); no financial transactions • reproduce, distribute, or store the cover image outside take place. of its function as a cover of this work; • alter or build on the work outside of normal academic scholarship. Acknowledgement: We acknowledge the wording around open access used by Australian publisher, re.press, and thank them for giving us permission to adapt their wording to our policy http://www.re-press.org 2 Compact, Contract, Covenant: The Evolution of First Nations Treaty-Making† J.R. Miller The history of treaty-making between First Nations and Europeans in Canada has had a lengthy history and many phases. The earliest agree- ments, usually informal and generally unrecorded in a lasting form that Europeans would recognize, were compacts governing commercial rela- tions between European traders and indigenous suppliers of fur. Alongside these commercial pacts, treaties of peace and friendship emerged in the late seventeenth and eighteenth centuries as the dominant form of trea- ty-making in north-eastern North America. Like commercial agreements, these procedures for making and maintaining diplomatic and military as- sociations largely followed Aboriginal practices. In the latter decades of the eighteenth century and throughout the first part of the nineteenth, land-related treaties emerged as the most frequent form of treaty-making between First Nations and Europeans in Canada. Very often these ter- ritorial agreements resembled, at least superficially, simple contracts for straightforward transactions. Perhaps because later record keeping has proven better and more enduring, it is clear that, in the latter part of the nineteenth century, land-related treaties shifted in character. From the 1870s onward, the agreements by which Europeans obtained access to First Nations territory took the form of a covenant, a three-sided agreement to which the deity was a party. Through the twentieth century, especially 19 in its latter decades, First Nations have insisted on the covenant nature of treaty-making as the norm, while for a long time the Government of Canada emphasized that land-related treaties were contractual in nature. In all the discussion, the original form of treaty as commercial compact tended to get lost. If, as the Supreme Court of Canada decreed in 1985, treaties between First Nations and the Crown were sui generis, unique, it might be because, historically, they had taken so many forms. In sorting out the complex and shifting history of treaty-making in Canada, no scholar has been of greater assistance than Arthur J. Ray. As Ray has noted, First Nations’ objectives in making treaty and the nature of treaties are important issues: “For Canada’s First Nations it is a crucial question that has a bearing on the pursuit of treaty rights issues” that have become so important since the refashioning of the Constitution in 1982. With characteristic modesty, Ray has suggested that he contributed to the discussion about the nature of treaties by proposing an alternative to the interpretation “that the accords should be seen primarily as peace agree- ments through which Aboriginal nations agreed to share their lands with newcomers.” His alternative interpretation stressed the economic aspects of treaty-making: “I closed Indians in the Fur Trade with the observation that the Aboriginal People of the prairie West sought to adapt through treaty negotiations to the radical economic developments that were taking place in western Canada in the late nineteenth century. In other words, I emphasized the economic dimension.”1 In spite of Ray’s modest statement, his contributions to scholar- ly understanding of First Nations treaties with Europeans throughout Canadian history extend far beyond his emphasizing the economic aspect of treaty-making. This is not to say that Ray’s emphasis was not important and badly needed. Prior to his work, treaty-making had been but dimly understood in published scholarship. For a long time the prevailing view seemed to echo the federal government’s position: treaties were simple contracts for land that in some cases—the Numbered Treaties, for example —were also distinguished by the inclusion of provident and far-sighted provisions to encourage agricultural development and schooling by a wise and benevolent government in Ottawa. While that perspective, celebrated most notably in George Stanley’s 1936 The Birth of Western Canada,2 was starting to be questioned in the late 1970s and early 1980s,3 it had not been dislodged by the time Ray began to publish his work on First Nations in 20 J.R. MILLER 11 8 10 5 Robinson Vancouver -Huron Treaty Is. Treaties 6 9 7 f 4 2 Williams o 1 3 Treaties e and eaties Tr Peac Robinson-Superior Friendship Treaty Upper Manitoulin Canada Scale Island Treaty 300 0 300 600 900 km km Fig 2.1 Historical Treaties of Canada. Developed from Canada, “Historical Treaties of Canada,” Indigenous and Northern Affairs Canada, https://www.aadnc-aandc.gc.ca/DAM/DAM-INTER- HQ/STAGING/texte-text/htoc_1100100032308_eng.pdf. the fur trade. The second major contribution to treaty studies made by Arthur Ray’s scholarship was its explanation of trade protocol and, later, how that pro- tocol informed treaty talks in nineteenth-century Western Canada. More so than in Indians in the Fur Trade, in “Give Us Good Measure,” his quan- titative history written with Donald Freeman, Ray laid out the elaborate ceremonialism with which the trade was conducted, particularly at York Factory.4 Quoting contemporary observer Andrew Graham, Ray and Freeman explained that, when a trading party got about three kilometres from a Hudson’s Bay Company (HBC) post, they halted out of sight while their trading captains organized their approach. They “soon after appear in sight of the Fort, to the number of between ten and twenty in a line abreast of each other. If there is but one captain his station is in the centre, 2 | Compact, Contract, Covenant 21 but if more they are in the wings also; and their canoes are distinguished from the rest by a small St. George or Union Jack, hoisted on a stick placed in the stern of the vessel.”5 When they got closer to the fort, a group of would-be traders would join other parties to form a flotilla of canoes. The approaching Natives saluted the post by firing “several fowling-pieces,” while the HBC post master, having already given the order to hoist “the Great Flag” at the fort, returned the compliment with his twelve pounders. These opening salutations and honours were merely the prelude to more elaborate ceremonialism. Once the Aboriginal traders had landed and the women had set up camp, the trading captains and their immediate subordinates engaged in a lengthy ceremony with HBC personnel. The man in charge of the post, on learning the leaders of the Natives had arrived, had his trader introduce them formally: “Chairs are placed in the room, and pipes with smoking materials produced on the table.
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