By Duff Crerar and Jaroslav Petryshyn

In mid-June, 1999, for four days at the Kapawe’no First Nation’s reserve, the First Nations people of the Athabasca, Slave Lake and Peace River regions met to commemorate the historic signing of Treaty 8. For two days during that gathering at the Alberta Vocational College in Grouard, a special meeting of writers, historians, archivists, lawyers and filmmakers took place, hosted by the Historical Society of Alberta, to reconsider the experience of the First Nations with that Treaty. These papers bring much of that discussion to a wider audience than was able to travel to the conference.

Treaty 8 was the last, and largest, of the nineteenth century land agreements made between First Nations and the Government of Canada. After two days of negotiation, over 840,000 square kilometers of land was set aside by the agreement. The government assumed then, and has argued ever since, that the First Nations living within the boundaries – Cree, Dene and Metis – had surrendered title to all but the lands set aside from time to time as reserves. But Native leaders have maintained to this day that they signed a nation-to-nation treaty, which recognized their rights to maintain a traditional way of life without harassment or restriction. Elders kept alive a vigorous tradition that the 1899 talks included government assurances that schools, medical care, tax exemption, immunity from military conscription, as well as free access to the land, game and other resources were guaranteed for as long as the sun shone, grass grew and water flowed. Disillusionment therefore quickly followed, as game laws had already being framed in Ottawa which, along with other Government initiatives, interfered with this interpretation of Treaty. In addition, the Metis, who took scrip to acquire land, then cashed it in for their own projects, also expected to maintain their traditions without restriction, but soon experienced the collapse of the fur trade and the onrush of European settlement which left many landless and destitute. As Ottawa held strictly to only the written text of Treaty 8, it was neither difficult nor unnatural for First Nations to see the entire process as fraudulent.

These were the issues that inspired the papers and catalyzed the debates held at the historical conference. Consequently the papers have been grouped according to three themes: differing perceptions and accounts of the Treaty-taking itself; the question of how courts have subsequently interpreted the issues of rights, land and law; and aspects of how Treaty and Scrip decisions made in 1899 and thereafter have affected life for First Nations in the district. To give a larger perspective to the topic, distinguished historian Olive Patricia Dickason, (who unfortunately was unable to attend the conference), has provided a broad exploration of the treaty and its place in the evolution of international law. She highlights the irony that Native peoples believed treaties protected their way of life, even as governments claimed that Native negotiators actually had surrendered their rights to land and resources – which would make self-sufficiency in the future difficult, if not impossible. She raises the critical point that what was promised in negotiators’ words would not stand in the courts of law when written treaty texts were consulted, but argues that natural law and natural justice require a reassessment and joint re-negotiation of the Treaty itself.

Before that can happen, however, both the objectives of the Crown and those of the Native negotiators must be reconstructed and explored. Robert Irwin points out that the Government did not make it entirely clear that by their taking treaty First Nations people would become subject to the Indian Act, and its agenda of “civilization”. Any concessions made to the Native agenda (and Indian negotiators strove to limit the wardship implications of the treaty) must only be made in accord with this directive. In the end, of course, it was the Government that wrote the final text, and the local traditions surrounding the treaty were “lost”. Thomas Flanagan makes a forceful warning that contemporary decisions should not rely on oral traditions, as they cannot be subjected easily to the critical legal and written historical canons of reliability – a position which opposes the recent trends in courts and public opinion and which continues to polarize discussion on the treaties across the nation. His controversial discussion of tradition and time-consciousness calls for careful – and critical – reading by those wishing to assess the merits of his case. Phillip Coutu and Lorraine Hoffman emphatically state, in the chapter from their book (introduced at the conference) that these same unwritten understandings render the text of the treaty invalid today. They question, as others did at Grouard, whether any treaty – or contract – which was misrepresented or entirely misunderstood can have any binding validity.

Cora Voyageur’s paper draws attention to the press perception – and manufacture – of the Treaty understanding at the time. The climate and agenda of Western “boosterism” (rendered in populist language by the newspapers she surveyed) and its stock perceptions of the bountiful land and naïve inhabitants, reassured potential migrants that little stood in the way of progress after the treaty was signed. Gregory Johnson examines the perspective of one of the region’s most famous missionary pioneers, Bishop Emile Grouard, on the treaty-making process. Johnson makes it clear that inter-denominational rivalry characterized much of the relationship between missionaries and governments as well as missionaries and First Nations. Nor were the missionaries as capable of understanding or protecting their charges as they thought. Grouard and the missionaries had little sympathy for Native negotiators who had scruples about dealing in land, which was inconceivable in traditional culture. Ironically, the missionaries, too, felt betrayed by the Government after treaty was taken. Wendy Aasen reminds us that however much distance separated the region from the everyday of the British Empire, both Indian and Metis monitored the news as closely as other Canadians of the day, and were particular to record their unwillingness to be conscripted involuntarily into imperial wars or armies. In the darkening international skies of the early twentieth century, it was a prudent consideration, and reveals an understanding of recent Canadian imperialism which Charles Mair (and other observers of the North during the Treaty process) missed.

Land, rights and the law have been the main arena of recent aboriginal debate about Treaty 8, and hunting, resource access, land entitlement and reserves have led to many conflicts over the years. Brian Calliou argues that, ironically, the Canadian state has imposed foreign law on aboriginal communities in Treaty 8 country, but Native leaders have sometimes been able to use this to protect aspects of their traditional way of life in the area of fish and game laws. Treaty 8 chiefs have been especially determined to protect the unwritten promises of 1899 regarding game access, even when the laws seemed stacked against them. Whether with a more liberal view of treaty rights and entitlements this guerilla warfare in the courts may become unnecessary, someday, remains to be seen. Theresa Ferguson examines the approaches taken to land entitlements by surveyors, who actually walked the lands and negotiated the boundaries of the reserves. She reminds us that the capability of land for agriculture was taken into account at the time, but that modern entitlement officials lose track of the assumptions of past times when they return to these issues today. Donald Wetherell’s study of the defense of the Swan River reserve, both by local Cree leaders and the oft-unscrupulous Indian Agent, against repeated attempts to sell the land out from under them reveals the determination and ingenuity required to out-fox those who coveted good farm land. Unfortunately, the all-too-rare victory proved the rule that, in matters of land, Treaty 8 Indian residents were treated as wards with little consideration by the forces of development and the state.

The arduous but rewarding work of mining archives and paylists, censi and other quantitative sources has repeatedly forced scholars to re-examine their assumptions on many a historical debate. Treaty 8 scholars made their share of such coups to the conference. Patricia Bartko, Neil Reddekopp and Theresa Ferguson presented three different papers on their collaborative investigations into quantitative sources. Reddekop and Bartko point out that Europeans coming to the region oversimplified the racial distinctions between Treaty and Scrip-takers in 1899 and 1900. Many First Nations people chose one option or the other on the basis of their family strategy for the future, not their racial origins. Only when the economic disasters of the 1920’s and afterwards came did the racial lines set by the government seem to harden, as again they have since Bill C-31. Ferguson and Reddekop, looking at paylists, show how carefully they must be interpreted if historians attempt to reconstruct original aboriginal population profiles from them. Indian agents were usually more interested in balancing books and reconciling totals than strict demographic accuracy, and one agent, a hero of the Swan River Reserve land-sale fight, was the worst offender. His fraudulent record keeping (which eventually cost him several years in prison) raises special questions about the accuracy of Government records and their need to be checked carefully by researchers. Bartko, examining the Lesser Slave Lake community, shows how flexible the racial line was in the eyes of local peoples, and how many families which were considered Metis by outsiders chose to take Treaty rather than Scrip, and how white officials tended to ascribe race by their own stereotyped criteria. Missionaries, too, had their own interests in persuading people to take treaty rather than scrip, which would boost their school enrolments.

Gerhard Ens argues that similar assumptions about the Treaty 8 Metis population must be carefully checked against original documents. His efforts to link original Red River Metis with the Treaty 8 population have revealed that their proportion of the Metis community in Northern Alberta probably has been under-estimated. Theirs, and the general wisdom in the aboriginal community, about how previous land scrip issues had been mishandled made governments especially wary about how they would be handled in 1899 and 1900. As do all the studies made for the conference, this one reminds researchers how the population of Treaty 8 in 1899 cannot be reduced to simple categories with binding broad generalizations about behaviour, strategy or identity. Nor should the Metis of Treaty 8, who demanded money scrip and had little use for land scrip, be judged on the rationale of their decision by hindsight. No one in 1900 could anticipate the coming collapse in the fur trade economy, including the missionaries and government officials. Nor should historians take away any credit from the Metis leaders who responded to the crisis with energy, ingenuity and determination. Both Patrick Mackenzie’s and Patricia McCormack’s studies of Indian agents at Fort Chipewyan in subsequent years also point out that both local agents and local Native leaders were not passive in the face of hardship, economic change or bureaucratic paternalism. Both forthrightly sought creatively to adapt, and interpret Ottawa’s regulations and policies with an independent assessment of their local realities. Ironically, by the 1960s this meant that even the best-intentioned agent could still alienate local leaders if he did not accept their desire for more self-determination. Paternalism, however well intentioned, had run its course.

These are not all the papers presented: for various reasons several other stimulating papers have yet to be published. And, however vividly one may write, the scholar’s page can rarely communicate the excitement, enthusiasm and sometimes indignation with which these papers were sometimes received at the conference. Battles over memory and text, oral tradition and courts, treaty and scrip, legal and natural justice, contract and covenant have already and will continue to shape the search for the original spirit and intent of Treaty 8. And the debate will go on, for treaties, though much-misunderstood, are central to Canada’s future. The role of the people of Treaty 8 and Canadian courts has already contributed much to this future. With the growing awareness by the rest of Canadians of the high value placed on the Treaty relationships, rituals and ceremonies by First Nations people, will there arise a call for renegotiation, clarification and renewal of the Treaty? It is Lobstick’s hope that these essays will play a role in assisting Canadians preparing to answer that question.