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Great Plains Quarterly Great Plains Studies, Center for

Spring 1997

Treaty Seven And Guaranteed Representation How Treaty Rights Can Evolve Into Parliamentary Seats

Kiera L. Ladner Carleton University

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Ladner, Kiera L., "Treaty Seven And Guaranteed Representation How Treaty Rights Can Evolve Into Parliamentary Seats" (1997). Great Plains Quarterly. 1941. https://digitalcommons.unl.edu/greatplainsquarterly/1941

This Article is brought to you for free and open access by the Great Plains Studies, Center for at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Great Plains Quarterly by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. TREATY SEVEN AND GUARANTEED REPRESENTATION HOW TREATY RIGHTS CAN EVOLVE INTO PARLIAMENTARY SEATS

KIERA L. LADNER

Most of the Canadian plains region is cov­ giving treaty rights constitutional status and ered by the "Numbered Treaties" negotiated protection from the Canadian Charter of Rights in the 1870s between the government of the and Freedoms, the actual guarantees of the trea­ Dominion of Canada, acting for the British ties have often been interpreted in a manner Crown, and the nations whose territories en­ inconsistent with current government policy compassed the area. Even at the time that the and quite possibly in a way that none of the treaties were negotiated, the various signato­ treaty negotiators for the Crown could have ries had different assumptions about what they imagined, let alone predicted, in the 1870s. actually meant. During the ensuing century and Although the Crown's prime objective was to more that the treaties have existed, their mean­ avoid American-style "Indian wars" by secur­ ings have been reinterpreted. With the repa­ ing promises of peace from the First Nations' triation of the Canadian constitution in 1982, leaders and to negotiate the surrender of lands that could then be parceled out to incoming Euro-Canadian settlers, the texts of the trea­ ties did promise the Indigenous parties sover­ eignty on their remaining territory, and particularly in the case of Treaty Seven, es­ tablished that Indigenous leaders should share the responsibility for maintaining peace and order in the region. While it is always difficult Kiera L. Ladner is a doctoral student in political science to interpret a document in the light of com­ at Carleton University. Her article liN it-acimonawin pletely altered circumstances, I make the ar­ Oma Acimonak Ohci: This Is My Story About gument that Treaty Seven, at least, may be Stories" is forthcoming in Native Studies Review. legitimately interpreted in such a way as to provide for guaranteed representation, at the federal level, for the First Nations that were [GPQ 17 (Spring 1997): 85-1011 parties to the treaty.

85 86 GREAT PLAINS QUARTERLY, SPRING 1997

Although a number of studies have been that they will not molest the person or conducted during the past several years sug­ property of any inhabitant of such ceded gesting that guaranteed parliamentary repre­ tract, or the property of Her Majesty the sentation for Aboriginal peoples is compatible Queen, or interfere with or trouble any per­ with the Canadian electoral system, others son, passing or traveling through the said have suggested that such particularistic repre­ tract or any part thereof, and that they will sentation-giving special electoral rights to assist the officers of Her Majesty in bring­ one particular group-is unconstitutional. The ing to justice and punishment any Indian lack of consensus in the existing literature offending against the stipulation of this about the constitutionality of guaranteed Ab­ Treaty, or infringing the laws in force in original representation may be because all of the country so ceded.2 the studies have focused on integrating Ab­ original representation within the existing Because it is impossible to examine the electoral scheme. Like Iris Marion Young, most mutual or peace and order clause in each of scholars have conceptualized guaranteed rep­ the western treaties, I have chosen to focus on resentation as a means to rectify past injus­ Treaty Number Seven, covering southern tices and inadequacies in the Canadian Alberta, which was negotiated and signed by political system, but ihhey had examined guar­ Lieutenant-Governor David Laird, Lieutenant­ anteed representation as a pre-existing right Colonel James MacLeod, and representatives of Aboriginal peoples from before the repa­ of the Siksika, North Peigan, Blood, Sarcee, triation of the constitution they might have and Stoney First Nations at Blackfoot Cross­ arrived at different, more consistent conclu­ ing in September 1877.3 Since my own re­ sions.1 search has so far focused only on the Siksika, In this paper I argue that guaranteed parlia­ North Peigan, and Blood First Nations, I have mentary representation can legitimately be restricted my discussion only to these three sig­ derived from the peace and good order clause natories, though further research will probably that appears in the Numbered Treaties. In show that the same arguments can be made for Treaty Seven (as in all the Numbered Trea­ the Stoney and Sarcee nations as well. ties) the peace and good order or "mutual" I have examined not only the written words clause reads as follows: of the treaty but also the intentions and under­ standing of each party (the Queen in Right of And the undersigned Blackfeet, Blood, Canada, Siksika, Peigan, and Blood). This pro­ Piegan [sic] and Sarcee Head Chiefs and vides a fuller understanding of what each party Minor Chiefs, and Stony [sic] Chiefs and actually meant by this clause in the treaty. This Councilors on their own behalf and on be­ is especially important because all of the his­ half of all other Indians inhabiting the Tract torical documents have been written by only within ceded do hereby solemnly promise one party to the treaty, the one that had the and engage to strictly observe this Treaty, most to gain in the writing of such documents. and also to conduct and behave themselves Not only are there no written documents ar­ as good and loyal subjects of Her Majesty ticulating an "Indian" understanding of the the Queen. They promise and engage that treaty, but problems of translation render the they will maintain peace and good order words of the treaty itself suspect as represent­ between each other and between themselves ing the "Indian" point of view. and other tribes of Indians, and between themselves and others of Her Majesty's sub­ THE PRE-TREATY UNDERSTANDING jects, whether Indians, Half Breeds or Whites, now inhabiting or hereafter to in­ By 15 July 1870, when the government of habit, any part of the said ceded tractj and Canada assumed jurisdiction over the North- TREATY SEVEN 87

West Territories and began treaty negotiations the rail road. But then the government says, there, its Indian policy had long been estab­ "Hey we forgot about those Indians out lished. The Crown, represented first by the there. We have to secure the peace and colonial authories and then by the govern­ goodwill of those Indians."6 ment of the Dominion of Canada, had been negotiating various kinds of treaties with Ab­ Not only did the government have to se­ original nations in North America for more cure peaceful relations with the Aboriginal than two hundred years and had established nations in the west, they needed their land, the conditions by which Indian lands were to land upon which to build the railway and the be obtained. In the Royal Proclamation of 7 "national dream." Thus, the Treaties enabled October 1763, King George III declared that the building of the Canadian Pacific Railway, all land held by or reserved for the "Nations and "enable[dl the Government to throw open or Tribes of Indians," could only be "ceded or for settlement any portion of the land which purchased" by the Crown. Thus, the Royal might be susceptible of improvement and prof­ Proclamation set in motion a treaty-making itable occupation."7 process by which the government secured Sir John A. Macdonald, one of the "Fathers ownership to the land. The Royal Proclama­ of Confederation" and Canada's first prime tion states that, "if at any time any of the said minister, envisioned a Canada stretching from Indians should be inclined to dispose of said sea to sea. Thus his government needed trea­ Lands, the same shall be purchased only for ties that would ensure geographic unity, assert Us, in our Name, at some public Meeting or ownership over the land, and clear the way for Assembly of the said Indians, to be held for colonists, all aspects of Macdonald's "national the Purpose."4 dream." At the same time, however, the Ab­ Although the Dominion of Canada had ac­ original peoples of the N orth-West still repre­ quired the North-West Territories from the sented a considerable military threat to the new Hudson's Bay Company, Canada did not have Dominion's ambitions, and Macdonald also title to the land itself, and the Dominion's needed treaties of "Peace and Friendship" "control" of the territories was being threat­ with the powerful Aboriginal nations. The ened by American expansionism. At the end ongoing Indian wars south of the border were of the American Civil War in 1865, Canada examples of what Canada did not want, while faced an extremely well armed neighbor that events closer to home underlined the need to was expanding westward at an alarming rate, conclude peace. The Riel Rebellion in and whose citizens were "eyeing the fate of the Manitoba in 1869, in which the Metis or "Half Red and Saskatchewan River districts with in­ Breed" community successfully demanded a terest."5 As Leroy Little Bear explains, recognition of its rights from the new Domin­ ion of Canada; the Cypress Hills Massacre in The United States was expanding very rap­ 1873, in which American whiskey traders in idly westward, and Canada and Britain were Saskatchewan murdered a group of Assini­ trying to slow that expansion down, and boines, sparking the formation of the North­ they were trying to limit the United States West Mounted Police to maintain order; the as much as possible. So when the United arrival of Sitting Bull and his followers in the States was expanding westward, Canada had Cypress Hills following the defeat of Custer in to run westward, so to speak, and secure Brit­ 1876; and the impressive retreat of the Nez ish Columbia so that British Columbia Perce toward the Canadian border in 1877 all would not join or be annexed by the United alarmed the Canadian government. Warnings States .... In the race westward, of course, from missionaries such as the Reverend George the "come on" item for British Columbia McDougall, who told of escalating violence joining Confederation was the building of toward whites, or Father Constantine Scollen, 88 GREAT PLAINS QUARTERLY, SPRING 1997 who wrote that "the Sioux Indians, now at negotiations and to urge them to establish war with the Americans, have sent a message peace with other Indians and whites.ll to the Blackfeet Tribe, asking them to make Just as the Canadian government wanted a an alliance offensive and defensive against all treaty, most of the Aboriginal {Indian and white people in the country," also prompted Metis) inhabitants wanted a treaty with the Macdonald's government toward the treaty Crown. One could argue that the Blackfoot process.8 Confederacy wanted a treaty with ninawak, the According to John Leonard Taylor, the Queen, or Chief Woman, but not every treaties offered the Canadian government an Blackfoot leader was an avid supporter of a alternative to the American experience, settle­ treaty or even considered such a thing prior to ment "without the danger of the Indian wars 1877. For instance, Edward Yellowhorn, Peigan experienced in the United States." Taylor elder and.son of the last traditional chief, said found that "events in the United States pro­ that when the North-West Mounted Police first vided an example of what settlement could arrived in Blackfoot territory they wanted to mean to Indians. Destruction of game, loss of negotiate a treaty, but Bull Head (Peigan Chief territory, disease, and wars with American who, according to Yellowhorn, died that win­ troops made the period a desperate one for the ter) refused and told the police that he would Indians of the Western United States."9 Cana­ not give them any of his land, and that they dian Indians knew what had happened to would be permitted only to winter in his terri­ American Indians and how Louis Riel had been tory that year. 12 forced to flee from Red River as well as of Nonetheless, both oral and written accounts worsening fur trade relations and declining attest that the Blackfoot Confederacy wel­ resources. Both the Indians and the govern­ comed the North-West Mounted Police and ment entered into treaty negotiations with accepted their help in maintaining peace and some urgency in 1871, hoping to avoid similar order. 13 The majority of the Blackfoot leaders, confrontations or destitution: particularly Crowfoot, soon agreed to "stop "Peace, order, and good government," the killing each other and not to kill white people phrase from the British North America Act that that came into their territory."14 After a few defined the powers of Canada's federal gov­ "fairly peaceful" years, however, the situation ernment, could apparently be served by nego­ began to worsen as the buffalo population de­ tiating treaties with the Aboriginal nations of clined, traditional enemies such as the Crees the North-West. Specifically, however, the and Metis encroached upon Blackfoot terri­ government wished to get title to the land for tory, and Euro-Canadians trickled in and as little as possible, to bring the Indians under settled on Blackfoot lands. IS As Leroy Little Dominion control on reserves where they Bear suggests, the problem was quite simple: would not wreak havoc on prospective Euro­ diminishing buffalo and First Nations intru­ Canadian settlers in the West, and to deliver sions into each other's hunting territories meant them up to be "instructed, civilized and led to "there is more chances you're going to run into a mode of life more in conformity with the your enemy. Which would mean that there is new position of this country, and accordingly sure to be battles, there is sure to be fights be­ [made into] good, industrious useful citizens cause they are going to want to protect their . . . [who would] do without assistance from territory. What do we need to do? Make peace . the government."IO This desire to establish See, so the Indian mind was talking about peace peace and order-on Euro-Canadian terms­ and good order and so on."16 is evident in an 1875 letter to the Reverend Thus, the Blackfoot chiefs at all levels of George McDougall from Lieutenant Gover­ the Confederacy looked toward the North­ nor Morris, requesting McDougall to proceed West Mounted Police and the Queen they rep­ in telling the Crees about the upcoming treaty resented for assurances that past promises TREATY SEVEN 89 would be kept and that peace would be main­ to negotiate a treaty that would lead to peace tained. They held numerous discussions with within Blackfoot society and within the en­ the police, missionaries, and the commander tire Blackfoot territory. The North-West of the Canadian militia in which they dis­ Mounted Police would keep out settlers, en­ cussed the problems arising in their territory emies, and American traders. and their desire to negotiate with the Queen measures to restrict other groups' access to THE TREATY PERIOD their land as well as other matters concerning peace and justiceY Thus, while the government entered into The entire council of the Blackfoot Con­ the treaty negotiations in 1876 to obtain a federacy met to discuss the worsening situa­ land surrender, the majority of the Indians had tion and possible remedies including both war no intention of surrendering any of their land and peace. As a result of one such meeting, but rather of gaining police assistance in keep­ Jean L'Heureux drew up and sent a petition to ing the Crees and Metis out and in restricting Lieutenant Governor Morris on their behalf. buffalo hunting and the use of poison. 22 While This petition addresses Blackfoot grievances, the true intentions and the understandings of requests that intruders be kept out of their ter­ both parties to the treaty will continue to be ritory until a treaty is made, and urges the questioned, negotiated, and mediated, the representatives of the Queen to negotiate a treaty was, in the words of the Reverend J. treaty that would ensure peace by limiting "the McDougall, invasion of our Country" and keeping tradi­ tional enemies and Americans out. IS This pe­ a most notable event pregnant with far­ tition, according to Hugh Dempsey, illustrates reaching consequences. [Notwithstanding that the Blackfoot were "more concerned about the intentions and interpretations of each] Crees and Metis slaughtering buffalo in the aboriginal man with his traditions un­ Blackfoot hunting grounds and white men changed through the centuries [sic] met face building in their best wintering grounds than to face representatives of another old but they were about the need for a treaty."19 Con­ ever-changing race to negotiate in peace and cerns about territorial intrusion and depleting friendship their future relations in this new resources continued to echo in correspondence land.23 and discussions between missionaries, such as Father Constantine Scollen, and government According to John Taylor, "the government officials, particularly Morris and Laird, well view of the treaty was that of an instrument after the negotiation of Treaty Seven in Sep­ of land surrender with provisions for a quid tember 1877.20 pro quo in terms of annuities, reserves of land, The correspondence demonstrates that the and other traditional items."24 Those sources Blackfoot were seeking assistance in main­ written by agents of the government place taining peace and order in their territory and very little emphasis on the peace and order often mentions the promise or treaty that Ed­ clause. In fact, "the making of this treaty, ward Yellowhorn referred to as having been which completed the series of treaties ex­ made by the North-West Mounted Police. tending from Lake Superior to the slopes of Although some of the writers mention will­ the Rocky Mountains," was basically seen as ingness on the part of the Blackfoot to share a land surrender by the Dominion government or even cede their land, the accuracy of this in 1877.25 Nonetheless, although most of the "documentation" is questionable as it contra­ treaty text detailed what the government dicts other written accounts and much, if not would give the Indians for their traditional all, of the Blackfoot oral historyY Evidence territories, the representatives of the Crown is fairly conclusive that the Blackfoot sought at least mentioned and explained {albeit 90 GREAT PLAINS QUARTERLY, SPRING 1997 ambiguously) the mutual clause to their In­ see you. On your part you must keep the dian counterparts. Queen's laws, and give every information ro According to Morris, who relied primarily them in order that they may see the laws obeyed on Laird's first hand experience to create the and offenders punished."z8 most notable written account of the negotia­ The idea of peace and friendship that was tion of Treaty Seven, the commissioners ex­ advocated by the Queen's representatives was plained to their "captive" Indian audience that different from that articulated by the Blackfoot they prior to the negotiation of the Treaty. Instead of viewing "peace and good order" in terms of could not agree to exclude the Crees and "protecting" the Blackfoot and their territory, Half-breeds from the Blackfoot country; that the government saw peace in terms of coloni­ they were the Great Mother's children as zation and laws made by Parliament, applicable much as the Blackfeet and the Bloods, and to a11, and enforced by the N orth-West she did not wish to see any of them starve. Mounted Police, possibly with the assistance Of course the Crees and Half-breeds could of tribal leaders when a Blackfoot person was be prosecuted for trespassing on their re­ suspected of breaking the law. In fact Treaty serves. In this the Indian Act secured them. Seven was more restrictive than government The local government had passed a law to officials had been as recently as 1874, when protect the buffalo. It would have a ten­ David Laird, as minister of the Interior, had dency to prevent numbers from visiting their written Morris suggesting that Aboriginal na­ country in the close season. But to altogether tions, particularly the Metis, should be allowed exclude any class of the Queen's subjects, as to form their own government "within reason­ long as they obeyed the laws, from coming able limits," as long as they "treaded] every­ into any part of the country, was contrary to one fairly."29 Although written histories claim the freedom which she allowed her people, that the Blackfoot understood and agreed to and the Commissioners would make no the terms of the treaty in full, this is not so. promise of this kind.26 Morris claims that the majority of the Chiefs spoke of their gratitude toward the North-West With this, the commissioners, at least accord­ Mounted Police and their desire to have these ing to written history, excluded from the treaty friends stay in their territory on the same basis all that the Blackfoot were seeking.27 Morris as before. Beyond this it is doubtful that the also (indirectly) indicates what the peace and Indian adherents to the treaty understood it in order clause did not mean to the representa­ anything like the same manner that the Euro­ tives of the Crown. Canadians did. The Blackfoot sought protection of their In a letter Father Scollen asked Colonel lands and their lifestyle, but the government A. G. Irvine of the North-West Mounted Po­ instead offered up the same peace and order lice, "Did these Indians, or do they now, un­ clause that had appeared in the previous N um­ derstand the real nature of the treaty made bered Treaties. As Laird explained, this treaty between the Government and themselves in made the whites and Indians "brothers" under 1877? My answer to this question is unhes­ laws that had to be obeyed by both if they itatingly negative, and I stand prepared to sub­ wished to remain as "brothers" and if the Indi­ stantiate this proposition. "30 This lack of ans wished to keep the North-West Mounted agreement on the meaning of the treaty re­ Police as friends and not foes. Lieutenant­ sulted in part from problems of translation, Colonel MacLeod similarly alluded to the the nonexistence of a Blackfoot equivalent meaning of this particular clause, stating, as for terms like "square mile," deliberate mis­ he often had in the past, "the police will con­ representation by representatives of the tinue to be your friends, and be always glad to Crown, and the fact that the Blackfoot had a TREATY SEVEN 91 completely different world view from the Euro­ the Queen's laws as a continuum with the past. Americans.J1 Nor were the Treaty Seven Com­ According to Edward Yellowhorn it was the missioners completely clear or truthful about North-West Mounted Police that offered up their intentions, as can be seen in the follow­ this clause at the treaty negotiations, and it ing statement by Laird: "In a very few years was with them that the Blackfoot agreed to es­ the buffalo will probably be all destroyed, and tablish and maintain "peace and good order." for this reason the Queen wishes to help you This idea was echoed in other interviews, par­ live in the future in some other way .... The ticularly by Dorthy Yellowhorn, who suggested Commissioners would strongly advise the In­ that this promise had been broken many times dians to take cattle ... at least as long as you by the Police.36 These ill-defined promises, continue to move about in your lodges."32 Laird however, did not mean that the Blackfoot never had in mind a pastoral herding life in peoples agreed to stop living by their own laws which the Blackfoot Confederacy replaced the or to supplant their own traditions with those buffalo with domestic cattle-such a statement of the incoming society. As James MacLeod had no reference to reality. As Blackfoot po­ wrote Lieutenant Governor Morris in 1875, the litical scientist Andrew Bear Robe put it, Mounted Police had been successful in sup­ pressing the whiskey traders, but the Blackfoot the Treaty 7 negotiations of 1877 between people's had no intention of cooperating with the treaty commissioners and the Indian na­ police attempts to prevent them from trading tions that signed that treaty talked about with whomever they wished or to stamp out the need for peaceful co-existence and sec­ polygamy and horse raidingY Rather, as ondly, to let the Queen's white children Dempsey suggests, the Blackfoot respected Ca­ come live on Indian lands. There was no nadian laws only when they were compatible talk about ending "the Indian way of life" with and not contradictory to Blackfoot tradi­ which surely included the continuation of tions. The Blackfoot Confederacy broke in­ some form of Indian sovereignty and juris­ compatible laws not to defy the Canadian diction.33 authorities but to uphold triballaw.38 Thus, the leaders of the Blackfoot Confed­ The Blackfoot Confederacy did not discuss eracy, with no context for interpreting the in­ "white man's law," Indian sovereignty, juris­ tent of distant authorities in Ottawa or for diction over Blackfoot territory, and paternal­ knowing that their promises would not be hon­ istic government practices and structures ored in a manner consistent with the "spirit because the people assumed that they would and intent" of the treaty, assumed that the treaty continue to live as they had since "time imme­ meant they would continue to live as they had morial."34 Thus, the leaders of the Blackfoot since the North-West Mounted Police had ar­ Confederacy agreed to live in "peace and good rived. According to Father Scollen, in fact, order," a condition in which all people would their friendly relationship of mutual co-exist­ live in peaceful co-existence, respecting oth­ ence with their "benefactors," the North-West ers' ways of doing things. White people would Mounted Police, induced Blackfoot leaders to have to respect the "Indian way of life," as the agree to the treaty. As Scollen states, "It may Blackfoot did not expect to give up their sov­ be asked: If the Indians did not understand ereignty nor their control of their territories. what the treaty meant, then why did they sign Many chiefs expected white settlers to respect it? Because previous to the treaty they had and adapt to their ways, just as the Blackfoot always been kindly dealt with by the Authori­ had to Euro-Canadian ways, when the new way ties, and did not wish to offend them ..."39 did not contradict or hobble their own.35 Neither the Blackfoot, nor the Cree (in their The Blackfoot also saw the promise to main­ treaties), promised to give up their right to tain "peace and good order" and to abide by live in mutual coexistence according to their 92 GREAT PLAINS QUARTERLY, SPRING 1997 own ways, or for that matter to control their suggested a right to guaranteed electoral rep­ territory. Rather, the "mutual clause" may be resentation, an idea that emerged in Cana­ construed to have meant to the Blackfoot dian politics only recently. The Canadian Confederacy that the Indian and Euro-Cana­ government expected to maintain a Euro-Ca­ dian parties to Treaty Seven would coexist nadian version of peace and order in the whole peacefully as sovereign entities with their own country, as Morris implied during negotia­ independent spheres of jurisdiction, assisting tions of Treaty Six at Fort PittY This govern­ the others in maintaining peace and good or­ ment assumption, however, contradicts the der when required and permitted by their own oral histories of the Aboriginal peoples and traditions. even the actions of the Dominion government in 1885, calling upon the Aboriginal popu­ UNDERSTANDING THE TREATIES lance to playa role in maintaining peace and good order in their respective territories. The peace and good order clause in Treaty Furthermore, during the treaty negotiations, Seven meant something different for all par­ although there were many different issues ties involved. Regardless of what was stated or raised by individual members and the con­ implied by the government agents at the nego­ stituent bands and nations of the Blackfoot tiations, the government did not view the mu­ Confederacy, there is no recollection of any­ tual clause (or the entire treaty) in the same one's alluding to guaranteed parliamentary manner as did the Aboriginal nations. The gov­ representation. For the most part, it seems that ernment viewed all the treaties as the first step the Indigenous nations intended to retain their in settling the West, and in "protecting," "civi­ sovereignty and not interfere with the Euro­ lizing," and "assimilating" the Indians. For them Canadian government or settlers so long as the "mutual clause" represented the Indians' they did not interfere with them. Thus, the promise to remain peaceful, to obey Canadian clause represents a promise for the Siksika, laws, and to allow the government to exercise Peigan, and Blood to uphold peace and order its authority and jurisdiction over the entire within their own territories, including the ter­ country.40 ritory they had agreed to share, and between On the other hand, the Siksika, Peigan, and themselves and others. The government prom­ Blood nations did not know of the Crown's ised to maintain peace and order in the re­ intentions but viewed the treaty as a continua­ mainder of the country while respecting tion of past relations, as a means of securing aboriginal laws and ways of being and seeing. government assistance in dealing with declin­ Many Blackfoot present at the signing of ing buffalo populations and outside hunters, Treaty Seven expected the government and and as a means of getting trade goods, helping any settlers to use resources according to them adjust to a new way of life, and sharing Blackfoot customs, such as paying the Black­ their land with relatively few farmers and ranch­ foot for wood. They expected non-Natives to ers,41 The Indians did not view the treaty as a respect, obey, and abide by Blackfoot tradi­ surrender of their land in exchange for recog­ tions, just as the Blackfoot would live under nition of "treaty rights." They would instead the Queen's law insofar as it did not interfere establish (most likely through treaties) peace with their own ways. While the treaties es­ with all others, and they would share their ter­ tablished a relationship of peace and friend­ ritory (with the very few white people they ship and made promises of government expected) in accordance with their ways, while assistance, neither party renounced its sover­ respecting and abiding by the Queen's ways eignty, and the leaders of the Blackfoot Con­ wherever possible. federacy accepted the responsibility for Despite the many different views of the maintaining peace and order in the territory peace and order clause, no one seems to have they agreed to share. The leaders of these TREATY SEVEN 93 peoples took the added responsibility to of the Cree, the Confederacy had divided over "maintain peace and good order between ... the Rebellion.46 themselves and others of Her Majesty's sub­ As a result, the government required Indi­ jects, whether Indians or whites, now inhab­ ans not involved in the Rebellion to pledge iting or hereafter to inhabit any of the said their loyalty to the Queen or accept soldiers ceded tracts ... "43 stationed on their reserves to ensure they did Although members of the Blackfoot Con­ not join the uprising.47 The government used federacy upheld "peace and order" every day, the treaties to justify these actions, as did the it is not clear that any individual or group ever chiefs who pledged their loyalty.48 Hugh A. attempted to hold any Euro-Canadian account­ Dempsey notes that it is unlikely the chiefs able within traditional Blackfoot territories, were actually pledging loyalty to the Crown, although the Blackfoot had the right to do so. rather, "at all times [Crowfoot] was unswerv­ The government of Canada and some seg­ ingly loyal, not to the government, but to his ments of the public recognized this right dur­ own people. This was the only reason for re­ ing the North-West Rebellion in 1885, when maining at peace."49 they contemplated enlisting the Blackfoot While the government made some limited Confederacy, including the Sarcees, to fight use of the "peace and good order" clause in against the "rebelling" Plains Cree and Metis. 1885, I believe that this is the only time that According to Little Bear, this occurred the clause was invoked to give Indians a role in reestablishing or maintaining peace and or­ basically because the Blackfoot have agreed der off their reserves. Nonetheless, the inter­ not to go out and fight but we [the govern­ pretation of the clause providing Aboriginal ment] may need them to go and fight. Be­ nations with a role in maintaining peace and cause the Crees are their traditional enemies, order is significant. let's let them fight against each other. We'll The government was attempting to resolve tell them that it won't affect your Treaty. the North-West Rebellion as quickly and as That's the thinking behind that .... When cheaply as possible, and without the loss of they're looking at peace and order, they're Euro-Canadian lives. Indians were inherently looking at the larger picture. And saying expendable in the colonial scheme of things that we've signed an agreement, and in that because they were defined as a "vanishing" or agreement we both said that we were going "dying" race. Hence the government gave no to keep peace and order. Those guys there thought to setting a precedent for twentieth are not behaving, so you have a responsi­ century interpretations of the treaty. The Indi­ bility.44 ans did not vanish, however, and they continue to exist today in a paternalistic and colonial Except for using Sioux and Sarcee scouts, paradigm. runners, and informants, however, the gov­ Although I lack information about the ori­ ernment did not employ Indians, particularly gins of the "peace and good order" clause, those of Treaty Seven, against the Cree and James Youngblood Henderson suggests that at Metis. 45 Macdonald was unsure if "a body of the time of its first appearance in Treaty One, Blackfeet [sic] under white command [could] before the formation of the N orth-West be trusted," and he was concerned about the Mounted Police, it was intended by the Co­ fear that would be sparked among settlers if lonial Office of the imperial government to large numbers of well armed Indians were al­ give responsibility for controlling the territo­ lowed to ride freely across the plains to the ries covered by each treaty to the Indians in scene of combat. Finally, however, Mac­ order to ensure that they remained the allies of donald ruled out the military assistance of the the Crown against the Americans. The Indians Blackfoot because although they were enemies offered a less costly, and perhaps more efficient, 94 GREAT PLAINS QUARTERLY, SPRING 1997 way of controlling territory not yet open to ereignty. Blackfoot promises to "obey and abide Euro-Canadian settlement than did the systems by the law" have to be understood in the con­ of control utilized by the United States or by text of the negotiations and the reality of the the Hudson's Bay Company.50 But while the time. Oral histories show that the Indian sig­ government may have viewed this as a tempo­ natories did not fully understand the univer­ rary measure, since the Indians did not vanish sal coverage of white law or that their laws or die out, the treaty of 1877 is still a working would be supplanted by it. The Blackfoot agreement, though one that has yet to be fully would respect the Queen's law whenever pos­ understood and implemented. Such an under­ sible, as they had been doing and newcomers standing is not simple, however, especially if to their territories would respect their laws. one is applying the "Dickson Doctrine," stan­ The Blackfoot Confederacy also promised to dards established by the Canadian courts that help enforce that law ("they will assist the of­ hold that treaties must be interpreted as mean­ ficers of Her Majesty in bringing to justice ing whatever they could reasonably have been and punishment any Indian"), clearly assum­ expected to mean to the Indians at the time of ing a shared responsibility for maintaining signing. 51 peace and order with the North-West Mounted The Blackfoot Confederacy did not believe Police. that they were ceding their land, their control Determining exactly what the understand­ over their territory, or their sovereignty. Re­ ing means today is even more problematic gardless of what the government had intended because according to a paper prepared for and what policies and practices were imple­ and distributed by the research branch of the mented subsequent to the signing of Treaty Department of Indian Affairs and Northern Seven, the Siksika, Peigan, and Blood, and Development (DIAND) the federal govern­ other signatory nations retained their sover­ ment has agreed that, "if the Treaty promises eignty and their ability and right to govern are read as symbolic promises of more com­ themselves according to their laws. They also prehensive services to be adapted to changing accepted the added responsibility for helping circumstances, they take on a very different to maintain peace and good order throughout meaning than if they are read as plain state­ their traditional territory. The onslaught of ments meaning precisely and exactly what they Euro-Canadian settlers and the demise of the say."52 While it would be easier to claim that buffalo meant that the Blackfoot Confederacy the treaty is merely what appears on the page, was never really able to practice this shared this is not the Indian view of the treaty, and power, but the Canadian government acknowl­ the Indians have been upheld by the Supreme edged it to some extent during the North-West Court of Canada. Rebellion. Most of the people interviewed for this pa­ While the peace and order clause was prob­ per reported that the treaties were never fi­ ably not properly translated nor fully explained nalized, and although their promises could at the treaty negotiations, the wording of the never be retracted or lessened, they should clause is, for the most part, compatible and continue to adapt to change. The statement: consistent with the Indian view. In Treaty "so long as the sun shines, [grass grows] and Seven, the Blackfoot promised to make and the rivers flow" does not actually appear in keep peace with all others living within the the Numbered Treaties, though it, or a simi­ Confederacy's traditional territory, a pledge lar version, appears constantly in the speeches consistent with the idea that this was a peace of Indians and non-Indians alike, and it is treaty to ensure peaceful relations between actually included in the 1855 treaty between "friends" or "brothers" who would share land, the Blackfoot Confederacy and the United trade goods, and responsibilities but not sov- States governmentY According to Henderson, TREATY SEVEN 95 however, this statement is representative of traditional laws, traditional ways of being, or Indian reality and philosophical traditions. It the sovereignty of First Nations. Other clauses is the "natural context that they are talking in treaties have been modernized in this spirit. about; they knew and experienced that .... For instance a clause in Treaty Six promising Those aren't metaphors, those were the actual a "medicine chest" to each group has been ways that they talked for the environment ... interpreted as guaranteeing free health and and themselves-living with nature and not dental care to all status Indians across Canada, making a distinction, a theory, of self."54 regardless of which, if any, treaty covers the The Indigenous peoples were speaking from individual. their own reality, their own understanding of While the "river analogy" provides a basis the world around them, one very different for change, the belief that the treaty was never from the western ways of the dominant society. finalized provides an alternate argument for If we understand the "Rivers Flow" statement updating the treaty promises. This belief is as a crucial expression of Indian philosophy common throughout "Blackfoot Country," rather than a rhetorical flourish, it mandates partly because Crowfoot, purposely, never that the treaties, like the river, are not con­ marked his "X" to it and because the Num­ stant but something in an ever changing cycle bered Treaties merely allow for the sharing of of life. The water in the river one moment Indian lands, remaining silent on most other was not the same the next moment. In dry matters.55 Thus, the existing treaties could ei­ years the river was shallow while in other years ther be modernized to deal with such issues as it flooded. What was constant was that this the sharing or imposition of jurisdiction and ever changing river continued to flow and sovereignty (for example through guaranteed modify or adapt itself, as was needed, to a Parliamentary representation), or new treaties changing reality. Before the building of huge could be drafted to deal with such issues.56 twentieth century dams Alberta's Indigenous Nonetheless, as Bear Robe states, even if people believed no person could make a river the treaties are not revisited, they are stillliv­ do what it did not want to do. Thus the huge ing documents that include usable rights that, floods of 1995 came as no surprise to many as in the case of self-government, have lain elders. The rivers are just reasserting them­ dormant. selves. Many Blood, Peigan, and Siksika people Since the Indian treaties in Canada are all consider that much like a river, the treaty con­ silent as to the matter of continuing politi­ tinues to exist and will continue to exist for as cal and sovereign relations between the In­ long as can be envisioned, even though many dian Nations and the British sovereign, the promises, like the rivers, have been dammed. contemporaneous right to First Nation [Par­ But like the river, Treaty Seven should change liamentary representation] may be an "ex­ with time to meet the needs of the people, the isting" treaty right pursuant to section 35 of same people (human and non-human beings) the Canadian ConstitutionY for which this land was created. Promises such as those concerning keeping peace and good Thus, even though the peace and order clause order have to be interpreted to reflect the situ­ is silent about particularistic representation, ation today: The N orth-West Mounted Police it does not mean that there is no treaty right no longer exist and their successors are no to guaranteed representation. This parallels longer solely responsible for maintaining peace the more familiar argument that the peace and order on the Prairies, and the traditional and order clause can be construed to suggest territories of the Blackfoot Confederacy are a treaty right to self-government, as there is "occupied" by "settlers" who do not respect no mention of the Dominion government 96 GREAT PLAINS QUARTERLY, SPRING 1997 supplanting the sovereign governments of the selves .... They aren't going to govern any­ Indian nations. While there is no mention of thing-if you just read the Treaties. 58 guaranteed representation, there is mention of a responsibility to maintain peace and good While one might argue that this inter­ order throughout traditional Blackfoot terri­ pretation of the mutual clause does not seem tories, a responsibility at present carried out compatible with the government view of the by the federal and provincial governments and treaties one could as easily argue that the gov­ their various agencies, which implicitly ex­ ernment view could be construed to support clude First Nations. The Blackfoot Confed­ this conclusion. In the early 1870s (both be­ eracy is now prevented from exercising a fore and after the creation of the North-West responsibility specifically reserved to it by the Mounted Police) the Dominion of Canada was treaty. searching to establish peace and good order in their newly acquired and "unoccupied" re­ IMPLICATIONS FOR THE PRESENT source-rich hinterland. Ottawa wanted to avoid the mistakes made by the United States or the The Blackfoot Confederacy never viewed Hudson's Bay Company, and govern at mini­ the treaty as relinquishing their sovereignty or mal cost. Thus they entered into treaties of their jurisdiction within their traditional lands "mutual" peace, friendship, land surrender, and but rather in terms of sharing and as a means assistance with the Indigenous nations. of securing help in dealing with the demise of According to Henderson, such treaties se­ the buffalo and the advent of Euro-Canadian cured peaceful relations with the Native popu­ settlers. For many, including Crowfoot, the lace, but they were also an attempt to control treaty offered hope for the future, a vision of "uninhabited" territory at minimal cost. Thus, the future different from the starvation pre­ while the imperial Crown's prime objective dicted by many elders. It was a dream in which was to arrange peaceful land surrenders with the Queen would look after them and teach the First Nations and avoid "Indian wars," the them her ways. peace and good order clause confirmed Na­ James Youngblood Henderson reiterated tive peoples in temporary control of their lands the importance of the peace and good order and resources to ward off claims from the US, clause: to secure Euro-Canadian access to resources and, in time, to give way to the new settlers. It's very important that you understand that Henderson claims that, apparently, the Colo­ in the oral tradition it's the last thing that nial Office of the imperial government "de­ you agree upon [that] is most important. Be­ vised a prototype of all colonial documents, cause none of the other agreements are bind­ that also is no less of authority in British law ing if you don't agree with the last clause. than the grants to the House of Commons, the So if you're a literate person in English you House of Lords or the Courts." In fact the peace go, "What's number one?" ... But in an oral and good order clause may have originally have tradition, it's the last story that you agree to been intended to function as did the Peace, that bundles the whole negotiations up. And Order, and Good Government clause (Indians that last thing that they, [the Indians1, agreed already had Good Government) in the British to is that they'd be in control of all the ceded North America Act of 1867. Both are overrid­ territory. So their governments would remain ing clauses that provide the foundation upon just like they were, except they would have which to govern. As Wilton Littlechild points a little more responsibility than they would out, however, this may be interpreted as Indi­ ordinarily have over their people .... And ans agreeing to abide by Canadian law. None­ there is nothing in the Treaties about how theless, he says that "our people will still say the white people are going to govern them- no, we agreed to obey and abide by our law."59 TREATY SEVEN 97

It looks as if the Crown agreed to have the that the chiefs and minor chiefs will share the chiefs and minor chiefs either share the respon­ responsibility to maintain peace and order. sibility for, or be solely responsible for, main­ While the first of these has often been con­ taining peace and good order, if only among strued as the recognition of an inherent right their own peoples and as a temporary measure. to self-government, the promise entails more The leaders of the Blood, Peigan, and Siksika than that. It is a recognition of sovereignty, nations had the shared responsibility of main­ and a recognition of the Indigenous signato­ taining peace and good order throughout their ries' understanding that they would go on liv­ "ceded" (shared) territories. The Crown ing according to their laws, customs, and "granted" this responsibility, presumably as a traditions without interference from the temporary measure and possibly one meant to Queen, except to help them adapt to a new be shared with the North-West Mounted Po­ way of life and to assist them wherever re­ lice and, to a small extent, the Dominion gov­ quired. Aboriginal nations still retain sover­ ernment.60 eignty within the reserve, but outside the Like a river, however, the prairies have been reserve sovereignty and jurisdiction, though changed and altered. Settlement occurred, co­ limited by promises made in the treaty still lonial governing structures (i.e., provinces) exist in some form. According to Henderson, were created, the N orth-West Mounted Police disbanded and were recreated as the Royal The chiefs and headmen delegated limited Canadian Mounted Police, treaty promises authority to the proper legislative authority were broken, and the federal government's In­ or federal government over alcohol and to dian policy was implemented. Nonetheless, this the "Government of the ceded country" in clause still holds true, even though it has long harvesting of natural resources in the shared been forgotten. Many Blackfoot still retain or ceded land .... [The hunting, trapping their interpretation of the responsibilities out­ and fishing rights] section shows that First lined in the treaty-including the responsibil­ Nations knew how to delegate authority to ity to maintain peace and good order in their other governments. Lacking such affirma­ traditional territories -and continue to argue tive language, no implied authority exists that much of what the government has done in the Crown. As the treaties illustrate, the has been against the spirit and intent of the imperial Crown authority over First Nations treaty. and the shared territory is derivative, not Despite the fact that the promise outlined inherent.61 in the last clause in Treaty Number Seven was never fully implemented, the Blackfoot Con­ While the "mutual clause" may be seen as a federacy retain their sovereignty and their re­ recognition of sovereignty and the right to self­ sponsibility to maintain peace and good order government (possibly on and off reserve), the throughout their respective traditional territo­ clause also entails promises to share in the re­ ries. Given that their lands are now "occu­ sponsibility to maintain peace and good order pied" and the North-West Mounted Police throughout the ceded or shared territories. are no longer responsible for the maintenance While we can partially reconstruct what this of peace and good order, this promise cannot meant in 1877, the exact meaning of the clause be viewed as it was at the time of the treaty, today is difficult to determine. It is no longer but the promise still stands, even though its possible for the chiefs and minor chiefs to exact implications are unclear. assist the North-West Mounted Police, and The peace and good order clause really the traditional ways of the Blackfoot Confed­ makes two major promises to the Blackfoot eracy cannot be recreated. Nevertheless, the Confederacy. The first implies they will keep "mutual clause" guarantees Aboriginal signa­ their sovereignty while the second promises tories the right and responsibility to share in 98 GREAT PLAINS QUARTERLY, SPRING 1997 maintaining peace and good order, a right held trary to the promise of sovereignty and a na­ by the respective nations and exercised by the tion-to-nation relationship, this does not have leaders. This treaty right could be implemented to be the case. Sovereign nation states have in a plethora of ways, but implementation must participated, as nations, in shared structures adhere to the spirit and intent of the promise of governance. There are numerous examples as well as the treaty in its entirety. of political confederacies (including the Black­ Although establishing bilateral nation-to­ foot Confederacy and the Iroquois Confed­ nation relationships between the Crown and eracy) that existed long before colonization, the leaders of the Blackfoot Confederacy would and sovereign nation-states such as Britain be the ultimate manner in which to imple­ participate in various forms of "alien" gov­ ment the right, this is highly unlikely, as is ernmental structures including the European allowing the Indigenous leaders to enforce Parliament, the United Nations, and the traditional laws amongst the non-Native popu­ Commonwealth. A system of differentiated lace or even their own peoples. A more plau­ parliamentary representation could be struc­ sible alternative would be the construction of tured that respected Aboriginal nations within a system of particularistic representation that Canada and re-established nation-to-nation respects the nature of the nation-to-nation relationships with the Canadian nation-state. relationship and the spirit and intent of the A system that recognizes the existence of na­ Treaty. This need not exclude other possible tions and enables the Siksika, Blood, and plans of implementation, such as developing Peigan, and Tsuu T'ina and Stoney nations to self-government or partnerships in the admin­ share in the responsibility for maintaining istration of justice, or the co-management of peace and order, particularistic representation resources. 62 would be a contemporary adaptation of Treaty What the treaty guarantees is not explicit Seven. The recognition of nationhood, sov­ parliamentary representation but rather a suit­ ereignty, shared responsibility, and a nation­ ably modernized way for the .Blackfoot Con­ to-nation relationship must be the underlying federacy to share in the maintenance of peace principles of a system of guaranteed represen­ and good order. Parliamentary representation tation., is a plausible mechanism for the respective Although particularistic representation communities to share responsibility. This could might at first consideration appear to be pro­ also be achieved through the creation of a hibited by the Canadian Charter of Rights and separate but parallel parliament or even the Freedoms, as a treaty right, it is entrenched in recreation of the Senate, turning it from an ap­ the Constitution. The Canadian Constitution pointed body from the dominant culture to a not only affirms treaty and aboriginal rights in council of the signatories of the Numbered Section 35, but it also provides in Section 25 Treaties or possibly all Aboriginal peoples. that the Charter "shall not be construed so as Parliamentary representation is desirable to abrogate or derogate from any aboriginal, because the true governing body of today is treaty or other rights or freedoms that pertain the federal government or, in some cases, the to the aboriginal peop Ie of Canada ... "63 Thus provincial government, not the North-West Aboriginal people are "citizens plus," whose MountedPolice that implemented the laws in "special" rights are constitutionally shielded the 1870s. Since dominant society has failed from other citizens and protected against the to respect the laws or ways of the Indigenous Charter's sphere of influence. Although a treaty peoples today, as was suggested in the early right to guaranteed parliamentary representa­ interpretations of the treaties, a new relation­ tion-or even the treaty promise of a mutual ship that respects Indigenous ways has to be responsibility for peace and good order-is constructed. Although one may argue that par­ not explicitly recognized in the Constitution, ticipation in an "alien" parliament is con- neither are other treaty rights enumerated TREATY SEVEN 99 constitutionally. The argument of this paper mentary Representation," School of Canadian has been that guaranteed representation is a Studies, Carleton University, 1996. I thank Pauline Rankin, Maureen Davies, and the two anonymous plausible and practical way of activating a reviewers who provided helpful insights and com­ major Treaty Seven promise that has lain dor­ ments on versions of this project. I gratefully ac­ mant since 1877. knowledge the contributions of those people who Based upon the concept presented above, provided the information and guidance needed to one can justifiably state that a treaty right to complete this project-particularly James (Sakej) Youngblood Henderson. I take full responsibility parliamentary representation is constitution­ for any mistranslation, misrepresentation, or mis- ally permissible, as it is a constitutionally understanding. . entrenched right. This conclusion is not revo­ lutionary or unsubstantiatable, as several 1. Committee for Aboriginal Electoral Reform, scholars and all of the national Aboriginal "The Path to Electoral Equality," in Royal Com­ mission for Electoral Reform and Party Financing, political organizations have asserted that guar­ What Canadians Told Us: Public Hearings and Writ­ anteed representation is a treaty and Aborigi­ ten Submissions, Vol. 4 (Ottawa: Minister of Supply nal right. Even the Royal Commission on and Services Canada, 1991), pp. 228-96. See also, Electoral Reform and Party Financing at­ Roger Gibbins, "Electoral Reform and Canada's tempted to construct such an argument when Aboriginal Population: An Assessment of Aborigi­ nal Electoral Districts," in Aboriginal People and they reported that Electoral Reform in Canada, ed. Robert A. Milen (Toronto: Dundurn Press, 1991), pp. 153-84, and Since Section 25 of the Charter places Ab­ Iris Marion Young, Justice and the Politics of Differ­ original people in a special constitutional ence (Princeton: Princeton University Press, 1990). position, there is no valid reason to believe 2. Western Treaty No.7, GAD reference num­ ber IT313, National Archives, Ottawa. For the com­ the establishment of such a right to direct plete text and an exhaustive discussion of the treaty representation through a well crafted pro­ see also Treaty 7 Elders and Tribal Council, The cess whereby they could vote in Aboriginal True Spirit and Original Intent of Treaty 7 (Montreal constituencies would not survive any chal­ and Kingston: McGill-Queens University Press, lenge in the courts that sought to demon­ 1996). 3. In this paper I have used the name "Black­ strate that this right had a negative impact foot" to refer to the Blackfoot Confederacy, com­ on the equality rights of other Canadians.64 posed of the Siksika or Blackfoot, the Kainai or Blood, and the Pikuni or Peigan (US spelling Piegan) I have not attempted to suggest how such a nations. I have used "Siksika" to refer to the spe­ system of representation could be constructed cific nation within the confederacy. 4. Royal Proclamation of 1763, in David W. or how the rights of the signatories to Treaty Elliott, "Aboriginal Tide," in Aboriginal Peoples and Seven should affect other Aboriginal nations the Law: Indian, Metis, and Inuit Rights in Canada, and individuals in Canada. I have, however, ed. Bradford W. Morse (Ottawa: Carleton Univer­ endeavored to show how, in the context of sity Press, 1991), pp. 53-54. today's conditions, the Treaty Seven clause ac­ 5. George Brown and Ron Maguire, Indian Trea­ ties in Historical Perspective (Ottawa: Research knowledging that the mutual responsibility for Branch, Department of Indian and Northern Af­ peace and good order of the "shared" or fairs, 1979), p. 29. "ceded" territories lay with both the Aborigi­ 6. Leroy Little Bear, interview, by author, nal and Euro-Canadian adherents can be con­ Calgary, 29 August 1995. strued as leading to guaranteed parliamentary 7. Alexander Morris, The Treaties ofCanada with the Indians of Manitoba, the North-West Territories representation for Aboriginal peoples in and Kee-Wa-Tin (Toronto: Willing and Williamson, Canada. 1880), p. 44. 8. John McDougall, George Millward McDougall, NOTES the Pioneer, Patriot and Missionary (Toronto: Will­ iam Briggs, 1888), p. 198; Constantine Scollen to This article was based upon my M.A. thesis, Alexander Morris, 8 September 1876, in Morris, "Peace and Good Order: A Treaty Right to ParHa- Treaties ofCanda, ibid., p. 248; see also, Alexander 100 GREAT PLAINS QUARTERLY, SPRING 1997

Morris to Constantine Scollen, 24 October 1876, 22. George McDougall to Alexander Morris, 23 in Scollen Papers, Provincial Archives of Alberta, October 1875, MG12B1, #1136, Alexander Mor­ Edmonton. For more discussion of Canadian gov­ ris Papers, PAM. ernment fear of Aboriginal unrest, see Hugh A. 23. McDougall, Opening the West (note 17 Dempsey, Crowfoot: Chief of the Blackfeet (Edmon­ above), p. 58. ton: Hurtig Publishers, 1972), pp. 92-93, andTreaty 24. Taylor, "Canada's North-West Indian 7 Elders, True Spirit and Intent (note 2 above), pp. Policy" (note 9 above), p. 40. 224-29. 25. Morris, Treaties of Canada (note 7 above), 9. John Leonard Taylor, "Canada's North-West p.245. Indian Policy in the 1870s: Traditional Premises 26. Ibid., p. 258. and Necessary Innovations," in The Spirit of the 27. Hugh A. Dempsey, "One Hundred Years of Alberta Indian Treaties, ed. Richard Price (Toronto: Treaty Seven," in One Century Later: Western Ca­ Institute for Research on Public Policy, 1979), pp. nadian Reserve Indians Since Treaty 7, ed. Ian A. L. 3, 11. Getty and Donald B. Smith (Vancouver: Univer­ 10. J .A.N. Provencher, Indian Commissioner, 31 sity of British Columbia Press, 1978), p. 21. December 1873, in Brown and Maguire, Indian Trea­ 28. Morris, Treaties of Canada (note 7 above), ties (note 5 above), p. 34. pp. 267, 275. 11. Alexander Morris to the Reverend George 29. David Laird to Alexander Morris, 28 March M. McDougall, 9 August 1875, M732 Box 1, Folder 1874, MG12A1, #G-4(NM), Alexander Morris 2, McDougall Family Fonds, Glenbow Museum, Papers, PAM. Calgary. 30. Constantine Scollen to A.G. Irvine, 13 April 12. Edward Yellowhorn, interview, by author, 1879, No. 14924, Indian Affairs Archives, Ottawa. Peigan Reserve, 28 July 1995. While there is no 31. See the discussion on translation problems evidence that the N orth-West Mounted Police were in Treaty 7 Elders, True Spirit and Intent (note 2 offering to negotiate a treaty similar to the "Num­ above), pp. 123-34. bered Treaties" at this time, they were attempting 32. Morris, Treaties of Canada (note 7 above), to g~t the leaders of all First Nations to agree or pp. 268-69. promise to abide by the law, and not to fight with 33. Andrew Bear Robe, Treaty Federalism-A other First Nations. Such a promise in accordance Concept for the Entry of First Nations into the Cana­ with Blackfoot traditions would constitute a treaty, dian Federation (Gleichen: Siksika Nation Tribal and as such is referred to as a treaty today by many Administration, 1992), p. 19. elders. 34. Dila Houle, interview, by author, Peigan Re­ 13. W. McKay to Richard Hardisty, September serve, Alberta, 27 July 1995. 1874, M477, #550, Hardisty Family Fonds, Glenbow. 35. See both written and oral histories. Accord­ 14. Hugh A. Dempsey, interview, by author, ing to Morris, Blood War Chief Medicine Calf (or Calgary, 31 July 1995. Button Chief) asked Laird to add to the treaty a 15. Hugh A. Dempsey, Crowfoot: Chief of the clause that would require all inhabitants of their Blackfeet (Edmonton: Hurtig, 1972), pp. 81-82. territory (including the North-West Mounted Po­ 16. Little Bear interview (note 6 above). lice) to pay for the timber that they used, a practice 17. John McDougall, Opening the Great West: well established in Blackfoot customs by 1877 (al­ Experiences of a Missionary in 1875-1876 (Calgary: though the N orth-West Mounted Police had never Glenbow-Alberta Institute, 1970), pp. 14-16. See obliged). Morris, Treaties of Canada (note 7 above), also, E. Selby Smyth, "Report to the Minister of p. 270. See also, Dempsey, Crowfoot (note 14 Justice," in Sessional Papers of Canada, 1876 No.7, above), pp. 99-100. p. xxix; Canada, North-West Mounted Police 36. Edward Yellowhorn interview (note 12 Records (Ottawa: National Archives, 1873-1877), above); Dorthy Yellowhorn, interview, by author, RG18 series. Peigan Reserve, Alberta, 28 July 1995. 18. Jean L'Heureux to Alexander Morris, 20 37. James MacLeod to Alexander Morris, 15 March 1876, in 13 September 1875, MGl2B1, March 1875, MGUB1, #962, Alexander Morris # 1265 Alexander Morris Papers, Provincial Archives Papers, PAM. of Manitoba, Winnipeg (hereafter PAM). 38. Dempsey interview (note 14 above). 19. Hugh A. Dempsey, Treaty Research Report: 39. Scollen to Irvine (note 30 above). Treaty Seven (Ottawa: Treaties and Historical Re­ 40. Alexander Morris, Nova Britannia or Our New search Centre, Indian and Northern Affairs Canada, Canadian Dominion Foreshadowed: Being a Series of 1987), p. 35. Lectures, Speeches and Addresses (Toronto: Hunter, 20. Morris, Treaties ofCanada (note 7 above), p. 249. Rose and Co., 1884), p. 170. 21. Dempsey, Treaty Research Report (note 19 41. Scollen wrote of the Blackfoot Treaty, "al­ above), pp. 34-41. though they had many doubts in their mind as to TREATY SEVEN 101 the meaning of the treaty, ... they hoped that it 52. Brown and Maguire, Indian Treaties (note 5 simply meant to furnish them plenty of food and above), p. 34. See also Royal Commission on Ab­ clothing, and particularly the former, every time original Peoples, Final Report, Restructuring the they stood in need of them." Scollen to Irvine Relationship, vol. 2 (Ottawa: Canada Communica­ (note 30 above). tion Group, 1996): 13-18. 42. Although this view is not recorded elsewhere, 53. Dempsey, Treaty Research Report (note 19 it seems to have been the go-vernment's intent. above), pp. 35-36; George F.G. Stanley, "As long Morris, Treaties of Canada (note 7 above), p. 206. as the Sun Shines and Water Flows: An Historical 43. Western Treaty No.7, rpt. Treaty 7 Elders, Comment," in As Long as the Sun Shines and Water True Spirit and Intent (note 2 above), p. 236. Flows: A Reader in Canadian Native Studies, ed. Ian 44. Little Bear interview (note 6 above). A. L. Getty and Antoine S. Lussier (Vancouver: 45. R. Burton Deane, "Report of Superintendent University of British Columbia Press, 1983), p. 11. Deane, NWMP -Headquarters, December 31, 1885," See also, Morris, Treaties of Canada (note 7 above), in Report of the Commissioner of the North-West p.208. Mounted Police, 1885 (Ottawa: Maclean, Roger 54. Henderson interview (note 50 above). and Co., 1886), p. 63. 55. According to both written and oral history 46. John A Macdonald to Edgar Dewdney, 10 Crowfoot purposely failed to touch the pen as the April 1885 , in "CPR Telegrams Relating to the Riel Treaty Commissioners marked his "X." Houle in­ Rebellion: March-April 1885," partially catalogued terview (note 34 above); see also Scollen to Irvine collection, p. 105, Glenbow Museum Calgary; (note 30 above). Dempsey interview (note 14 above). 56. Bear Robe, Treaty Federalism (note 33 above), 47. Deane, "Report" (note 45 above), p. 64. p. 11. These ideas are consistent with the recom­ 48. Crowfoot to Sir John A. McDonald [sic], 11 mendations pertaining to "Historical Treaties" in April 1885, in CPR Telegrams (note 46 above), p. Restructuring the Relationship (note 52 above) vol. 107. 2: 9-94, particularly 49-58. 49. Dempsey, Crowfoot (note 14 above), p. 193. 57. Ibid., p. iii. 50. James (Sakej) Youngblood Henderson, in­ 58. Henderson interview (note 50 above). terview by author, Saskatoon, 19 July 1995. 59. Wilton Littlechild, interview by author, 51. As Henderson explains, "the Courts have Hobemma, Alberta, 18 August 1995. come up with a canon of construction [the Dickson 60. According to Henderson, "when the King Doctrine] that says that if you can't figure out what says that he's going to recognize that the Chiefs the intent of the Crown was and you can't figure and Headmen are going to control this territory, out what the Indians' intent was, then as a judicial he's given them a grant that's equal to anything value ... of interpretation you have to give a they have in England, and anything that any of the broad, fair, and liberal interpretation to the words colonies have." Henderson interview (note 50 from the vantage point of the Indians at the time above). of signing." Henderson interview, ibid. The Su­ 61. James (Sakej) Youngblood Henderson, preme Court decision of Simon v. The Queen (1986), "Implementing the Treaty Order," in Continuing written by Justice Dickson, states: "Such an inter­ Poundmaker and Riel's Quest: Presentations Made at pretation accords with the generally accepted view a Conference on Aboriginal Peoples and Justice, ed. that Indian treaties should be given a fair, large Richard Gosse, James Youngblood Henderson, and and liberal construction in favour of the Indi­ Roger Carter (Saskatoon: Purich Publishing, 1994), ans .... It seems to me, however, that treaties and pp.54-55. statutes relating to Indians should be liberally con­ 62. See ibid., pp. 52-62. strued and doubtful expressions resolved in favour 63. Canada, The Constitution Acts 1867 to 1982 of the Indian. In Jones v. Meehan (1899), it was (Ottawa: Department of Justice Canada, 1989), pp. held that Indian treaties must be construed not 64-67. according to the technical meaning of their words, 64. Royal Commission on Electoral Reform and but in the sense that they would naturally be un­ Party Financing, "Equality and Efficacy of the Vote," derstood by the Indian." Simon v. The Queen, in in Reforming Electoral Democracy, vol. 1 (Ottawa: Morse, Aboriginal Peoples and the Law (note 4 Minister of Supply and Services Canada, 1991), p. above), p. 821. 183.