Where Some Ideas Are Stranger Than Others...
"Modern Treaties" in the Canadian Settler State
There is a lot of cultivated confusion about treaties in settler states, because current settler governments would like very much to pretend that somehow the term "treaty" meant something completely different when their predecessor representatives treated with Indigenous nations. Admittedly, it would be convenient for them if somehow "treating" and "treaty" didn't mean what they meant then or now, so that they could ignore Indigenous nations, their existence, and their rights. That would certainly make the world an ever easier place for fundamentalist capitalism. The trouble of course, is that settler colonial histories and languages refuse to oblige, and Indigenous histories certainly don't. References to "modern treaties" in canada imply their must have been "historical treaties" and that something makes them different from one another. But the meaning of any treaties with Indigenous nations remains conveniently contested for those who hope to continue capitalism and colonialism as usual while we are all confused or tangled up in their obfuscations. Here is my small contributions to combing out the confusion.
Lets start with the general question of what a "treaty" is in the first place. On this matter the standard OED on my computer is a the sort of handwave that ought to have the editors too embarrassed to leave in place, "a formally concluded and ratified agreement between countries." This is a definition that practically speaking would force many of us to look up at least three other words in hopes of determining who is doing the concluding and ratifying and what those things even are. On turning to my Compact OED instead and applying the included magnifying class, and a bit more research besides, here is a better definition.
A treaty is an agreement made between people on behalf of two or more countries. The people representing the countries may be civilian or military representatives, and the agreements were made by sitting down together and talking out what the different countries wanted out of the agreement. The word itself is from latin via french, and refers originally to dragging or pulling, so figuratively to drawing the various countries together into a relationship. The latin origin is quite important, because it tells us that the main treaty makers with Indigenous nations in the americas, the french, english, and spanish, likely shared expectations and practises of treaty-making, as indeed the historical evidence shows. Today terms like "drag" and "pull" suggest reluctance, and that was and is often true of treaty making, but doesn't have to be. The term "treaty" is also tied to "treatise" the technical word for a written document on a specific subject. And indeed, treaties were originally formalized by being about specific matters, written down, and finally signed by the negotiators on behalf of the countries. A country is a nation that is self-governing, that is the people in it live together in a structured way, according to laws, and they have means of dealing with breaches to those structures and laws, including changing them when needed. A nation is a large group of people who have opted to live together in a structured way on a more or less conscious basis. They may emphasize different potentially unifying features, such as language, place, belief, or difficult physical conditions.
Map of modern treaties and the regions they apply to in the area currently referred to as canada, courtesy of the Land Claims Agreement Coalition
via activehistory.ca, september 2016
When it comes to treaties with Indigenous nations, efforts at obfuscation often hinge on the role of writing, and trying to deny that Indigenous nations were nations at all, let alone self-governing and therefore countries. But when settler nations and later states wanted military and trading allies, they had no trouble at all recognizing other countries whose representatives they could "treat," that is negotiate with to win allies and trading partners. The earliest treaties signed by europeans with Indigenous representatives were focussed on these sorts of relationships. To begin with, european representatives even seemed to share or at least adopt the Indigenous perspective on treaties, which is that they are sacred, living agreements that require care and refurbishing over time. In order to keep treaties alive and working, Indigenous representatives expected to meet regularly with their treaty partners to eat together, exchange gifts, talk things over, and renew everyone's understanding of the meanings and responsibilities encoded in the treaty. What europeans later sneeringly labelled "presents" as if they were bribes and pay offs to quiet the restless Natives were in fact part of a technical and sacred practice that included going through recordings of the treaty in the form of wampum or other physical representations like paper documents or treaty medals, and recitations about the original negotiations by keepers trained to recite the information. This was no small commitment of labour and care. European, specifically english treaty practice with Indigenous nations changed significantly after 1812, when the english deemed Indigenous nations useless as military allies and mere remnants doomed for extinction any time.
By 1850 in what is currently labelled the settler state of canada, english officials began making treaties with Indigenous nations with the now exclusive purpose of obtaining what they considered "land cessions." The english and french alike had made treaties in which they claimed Indigenous nations agreed to give up their lands in every possible way forever, even though there was in fact no way to express such an absurdity in any Indigenous language. This didn't trouble any europeans, who simply declared what they wanted was what the treaties meant in the face of the linguistic gap, and where anyone developed any qualms about that, rationalizations based on convenient definitions of the "proper" use of land and the "necessity of converting the heathen" could be deployed to ease their minds. In any case, it was 1850 when the final phase of "historic treaty" making began in canada, in which first the british and eventually the canadian government claimed to have taken over ownership and control of the land and to have the right to use total military force against Indigenous nations to exert control over the land. And use military force they did, from forcing Indigenous peoples onto reserves and confining them there to preventing them from successfully opposing the settler genocide of the bison herds. With the last of the "numbered treaties," Treaty 11 signed in 1921 and affecting lands currently labelled as the northwest territories and teh yukon on canadian maps, the "historic period" of treaty making ended, and with it the process of actively negotiated relationships of co-existence with Indigenous countries in canada. After all, the english and later canadian negotiators never took the existence of Indigenous nations, let alone countries, seriously. Indigenous peoples found themselves in the frustrating situation of having negotiated as mature, thoughtful political actors a set of agreements that their non-Indigenous counterparts interpreted as evidence that they were in fact children and therefore paradoxically unable to manage their own affairs.
When Indigenous nations turned out to be adept at training up their own representatives and hiring non-Indigenous support like lawyers to help them force the canadian federal government to uphold its treaty promises, the federal response was not constructive. It revised the oppressive legislation brought together in the Indian Act in 1927 to unilaterally declare raising money to pursue satisfaction for treaty promises, especially what the federal government called "land claims," illegal. Of course this effectively rendered hiring lawyers and other support for this purpose illegal as well, until 1951 when that portion of the Indian Act was repealed. By the 1960s Indigenous nations were hard at work on what the federal and provincial governments defined as two types of "claims." Specific claims, for failures to meet the terms of treaties that the federal government had already negotiated and signed, and comprehensive claims. "Comprehensive claims" are also known as "modern treaties" because they are intended to negotiate land cessions from Indigenous nations whom the canadian government or its predecessors have not yet made any treaty. And make no mistake, the position of the federal government is still that treaties with Indigenous nations should end their legal ability to interfere with federal and provincial licensing of exploitation of their lands forever.
Unfortunately the canadian federal and provincial governments, as well as many canadians, still refuse to accept that Indigenous nations cannot dissolve their relationships with the land. The land is not an object that can be handed off never to be bothered with again. The land provides the means of existence to all peoples, Indigenous peoples still know this, and Indigenous nations still maintain and enact those relationships every day. They aren't optional from any Indigenous perspective, because nobody can live without the land. As I understand it, treaties are a key tool for helping non-Indigenous people to develop positive relationships with the land, so that no just the immediate signatories but their descendants may also live well with and on that land. Indigenous people don't intend to go anywhere, so maintaining a positive relationship with the land that does not destroy the land and its ability and willingness to support people is critical. This is a completely different perspective from that of the europeans who specifically rejected ongoing relationships with the land, particularly those who were and are considered "elites" and colonial leaders.
Regardless of the at best conflicted, and worst dishonest attitude of the canadian and provincial governments and the various capitalist interests especially interested in exploitation of not relationship with the land, Indigenous nations keep working on making new treaties and seeing that older ones are respected. In part this is of course because these are one of the key means by which Indigenous nations regain access to what they need to survive well into the future and resolve the social and economic problems they are experiencing due to colonialism, as well as dismantling systems of colonial oppression. Another key part of treaty making is engaging with non-Indigenous people who want to develop positive, longterm relationships with the land and end colonial injustice. That can only be to the good, since the historical, social, and scientific evidence is quite clear. Colonial ways of living are not sustainable for anyone, especially not for humans who hope to continue in a supportive relationship with the land.
Of course, this brief article is no more than a teaser on these issues. For a basic foothold in terms of the history and timelines of treaty making in what has since been referred to as canada, a great place to start is the section on types of treaties in the bc open textbook initiative's Pulling Together: Foundations Guide on Indigenous-canadian relationships. It is written without jargon and includes many maps and useful illustrations. For a sampling of Indigenous perspectives on modern treaties in particular, there is the Land Claims Agreements Coalition, which works to ensure that the modern treaties are respected and upheld. The map above is a snapshot of their interactive treaty map. I have not yet found exactly analogous websites or organizations for "historical treaties" although many of the signatories to the numbered treaties have founded organizations and web-based resources. For historians' views, both Indigenous and non-Indigenous, rather than starting from the canadian encyclopedia, I would recommend activehistory.ca which is both more current and better documented.