Treaty Eight, besides being an historic agreement by which the First Nations within its area agreed to coexist peacefully with Canadians under specified conditions in return for certain benefits, is a living memory today. Although the signers are no longer with us, there are among the Elders those who had direct contact with the chiefs and others who participated in the crucial event.
Signed 21 June 1899, the treaty encompasses 324,900 sq. mi. (841, 491 sq. km.) that stretches across northern Alberta to take in parts of British Columbia, Saskatchewan, the Northwest Territories and Yukon. At the time, this was by far the largest area to be covered by a single treaty. The people of this subarctic world were scattered across the land in small groups that spoke variations of Cree, Dene orAthabaskan (including Chipewyans, Beavers, Slaveys, Dogribs and Yellowknives), and Ojibwa. They were so far-flung that the Treaty Commissioners were not able to meet them all, despite two years of effort. The consequences of those omissions are with us today, most dramatically in the case of the Lubicon Cree.
The importance of the treaty for the people involved would be difficult to overestimate; for Canada, it shares front rank political importance with Aboriginal treaties in general. To understand why this is so, it is necessary to examine the role of treaties and such fundamental aspects of human society as relationships with the land as well as between peoples. This will take us back to distant times and places. It will also make clear not only the deviation between theory and practice in international law, but also the flexibility of its interpretation. What seems obvious under one set of circumstances can be totally re-interpreted under a different set. Europe’s discovery of the Americas illustrates this particularly well.(1)
“From Time Immemorial”
In international law, the principle that continuous use and possession of land “from time immemorial” is a basis for title that dates back at least to Roman time, when jurists considered it to be a self-evident rule of natural law (today sometimes referred to as “inherent right”). In the sixth century, it was included in Justinian’s Code,(2) and continued in Europe under feudalism and Common Law; in Scandinavia, it is recognized today at the Right of Udall. According to the section of the code called Institutes, “natural reason admits the title of the first occupant to that which previously had no owners.”(3) It was a principle that at the time of Columbus would be supported by such eminent legal authorities as the Spanish Dominican Francisco de Vitoria (1480?-1552), Primary Professor of Sacred Theology at the University of Salamanca, and later by Hugo Grotius (1583-1645), Dutch jurist and statesman, both of whom are considered to be fathers of international law.(4) It remains a recognized principle in international law. (In today’s terms, international law is the consensus of the international community and is considered to arise from the human will — that is, statutory law — rather than directly from natural law.(5)) Vitoria at first was unqualified in his support for the rights of primary occupancy, observing that since the law of discovery applied only to unoccupied lands, it could not be used to support seizure of the lands of Amerindians “any more than if it had been they who had discovered us.”(6) He pointed out that at the time of their first voyages to the Americas, the Spaniards “took with them no right to occupy the lands of the indigenous population.”(7)
While Vitoria’s exposition of this principle had the weight of his great prestige, it drew its authority from Justinian’s Code.(8) Augustinian Alonso de la Vera Cruz (c. 1507-1584), first professor of law at the University of Mexico, founded in 1553, along with the much better-known Dominican Bartolomé de Las Casas (1848-1566), both vigorously defended the principle that Amerindians were true lords of their lands.(9) As they saw it, the law of nature included “the right of nations,” which applied to all peoples regardless of their way of life or spiritual beliefs.(10) Their voices, far from being isolated, were simply among the better known of those that expounded the central canonical (church) tradition of medieval legal thought, which, as already noted, had its roots in classical Greece and Rome.(11)
Natural law was described by Cicero (126-43 B.C.) as non scripta sed nata lex (law that is not written, but born). Amerindians refer to it as “law written in the heart”, or “law that is given to us, not made by us.” As medieval canonists saw it, “[n]ature teaches natural law to all animals…natural law is nature, it is God because God is the nature of nature and teaches all animals.”(12) This was a rewording of the Institutes 1.2.1:
The law of nature is that which she has taught all animals; a law not peculiar to the human race, but shared by all living creatures, whether denizens of the air, the dry land, or the sea.
Justinian’s Code repeated the idea in its Digest 1.1.3. It is a concept that reverberates with the Amerindian belief in the interconnectedness of all forms of life.
Dominican Thomas Aquinas (1225?-1274), the great systematizer of Christian thought, saw natural law, which was discernible by human reason, as flowing from eternal (divine) law, which was beyond human comprehension. As he put it, it was the “participation of the rational creature, by his intellect and reason, in eternal law.”(13) This implicitly excluded animals and other forms of life; later, Grotius would do this explicitly, on the grounds that they did not know right from wrong.(14) Thomas defined natural law as a criterion of right conduct, a principle of reasonableness that pre-existed states and was promulgated in each man through his nature. It was the necessary forerunner of human rights, which predated states.(15) All types of states came within the orbit of natural law; whatever contradicted its principles was not binding on anyone.(16) Thomas saw a difficulty, however: despite its universality, there could be variations in specific cases. This flexibility, along with the fact that other laws besides natural law were necessary, allowed for the implementation of human (statutory or positive) law. For example, liberty was a right in natural law, but private property and slavery were not—they were the creations of human (statutory) law.(17)
The point that human rights pre-existed states gained new importance when Christopher Columbus (1451-1506) landed in 1492 at Guanahani in the Caribbean and claimed the land for Spain, before a group of local Taínos, who must have been puzzled as to what was going on. Quickly realizing the weakness of her claim of “discovery”, Spain obtained papal support for her claims. Alexander VI (pope, 1492-1503) issued four bulls in 1493 dealing with the discoveries, each bull successively amplifying the details of the preceding.(18) The two best known, both called Inter caetera, authorized Spain to take under her sway “the said countries and islands, with their residents and inhabitants, and to bring them to the Catholic faith.”(19) To achieve this, the bulls granted and assigned forever to the Spanish monarchs and their heirs “full and free power, authority, and jurisdiction of every kind” over lands and peoples “hitherto discovered by your envoys and to be discovered”—in other words, the regions revealed by Columbus. In return, Spain had the responsibility “to instruct the aforesaid inhabitants and residents in the Catholic faith.” The bulls were controversial from the start, as they in effect placed the right to preach the Christian gospel ahead of the right of possession of the first occupants. Some of Spain’s leading jurists, including Vitoria, denied that the pope had the right to dispose of the temporal possessions of non-Christians. Neither France nor England accepted the bulls.
Reinterpreting An Ancient Principle
The news of Columbus’s achievement carried with it the popular conviction that it gave Europeans the right to claim the land, particularly as it gave every evidence of harboring rich resources waiting to be exploited. This had been encouraged by the fact that the Taínos who had welcomed Columbus had worn golden ornaments. Columbus had been quick to note that the Amerindians were conciliatory, and lacked “iron of whatever kind, as well as arms…they are timid and fearful.” He immediately concluded that “with fifty men they can all be subjugated and made to do whatever is required of them.”(20) This attitude was reinforced by the Admiral’s report that American natives wore no clothes, even the leaders on the most solemn occasions. To the European mind of the period, which regarded sartorial elegance as an indication of social rank and civility, this could only mean that Amerindians possessed neither of these qualities, which in turn meant that they did not possess organized societies. Without such social organization, Amerindians could not be fully developed as human beings. From there it was an easy step to view them as living according to nature “like beasts in the woods”, with no more rights to land than deer or jaguars.
While scholars and legal authorities were cautious about accepting the idea that Amerindians were not fully developed as human beings, still it confused the issue of the status of New World people. For example, John Major (1469-1550), leading scholastic theologian at the University of Paris who had taught Vitoria and was a vigorous defender of the rights of non-Christians to their lands and independence, was influenced enough by such reports to conclude that Aristotle’s doctrine of natural servitude, “that some men are by nature free and others servile” would apply; in which case Amerindians, falling as they did into the second category, did not qualify for dominium (lawful possession of lands and political power). He elaborated: “In the natural order of things the qualities of some men are such that, in their own interests, it is right and just that they should serve, while others, living freely, exercise their natural authority and command.”(21) Major published this opinion in 1510, which indicates how quickly it crystallized, less than 20 years after Columbus’s landfall; it would become a major argument in favour of colonization.(22)
Despite reservations about its legality, the move to colonize the Americas was already well under way when Major published his judgment. A year later, 1511, Dominican missionaries in Hispaniola were so outraged at the “cruel and horrible servitude” to which Amerindians were already being reduced that they selected one of their friars, Montesinos, to preach a sermon demanding by what right Spanish settlers were waging what was in effect war “against these people who dwelt quietly in their own land?”(23) At the instance of the settlers, the Spanish court regarded the sermon as an attack on the royal administration, and ordered that Montesinos and his fellow friars be silenced. Even papal bulls that spoke out for Amerindian rights were curbed: the first and best known of these, Sublimis Deus Sic Dilexit, issued in 1537 by Paul III (pope, 1534-1539), declared that Indians were “truly men” and were “by no means to be deprived of their liberty or the possession of their property, nor should they in any way be enslaved”, a position that would be supported by later popes (especially Gregory XIV (pope, 1590-1591), and Urban VIII (pope, 1623-1644), but with little direct result as far as the Indians were concerned; high principles came across more clearly in official pronouncements than they did in actions in the field.(24) The bull was never proclaimed in regions controlled by Spain.
Acceding To Imperial Pressures
Vitoria also felt the effects of imperial displeasure when he defended Amerindian rights in his lectures at the University of Salamanca. Charles V (Holy Roman Emperor, 1519-1556; as king of Spain, 1516-1556, he was Carlos I) complained about the friar’s “scandalous” public discussion of such matters without consulting beforehand with state officials.(25) As Charles’s reaction indicated, Spain, caught up as it already was in a cycle of imperial conquest, was concerned that its actions be seen as legitimate in the eyes of the international community. Vitoria, for his part, hesitated, and turned his attention to finding reasons by which Spain could justify its American conquests. He now taught that Spain could legally subjugate Amerindians if they prevented Spaniards from preaching the gospel, if their princes attempted to force converts to apostatize, or if they prevented Spaniards from travelling in their lands or from carrying on trade. In asserting the “right” of Spaniards to travel and trade in Amerindian lands, even against the will of the people, Vitoria had fallen out of step with majority legal opinion.(26) In any event, Vitoria now cited such behaviour, along with other examples, as giving Spaniards not only the right, but the duty, to seize “the provinces and the sovereignty of the natives.”(27) He was careful to add that Spaniards should only do this if they were acting in the best interests of the Amerindians—which, in the terms of the day, meant evangelisation. Still, in his concern to appease the emperor, he even argued against himself: earlier he had held that it was not the business of Christians to judge the behaviour of non-Christians in their own lands, even if it was perceived as violating the laws of nature.(28) That was a position that would continue in canon law. Alberico Gentili (1552-1608), Regius Professor of Civil Law at Oxford University, for one, would support it. As he put it, “[s]trangers…have no license to alter customs and institutions in foreign lands.”(29) However, he, too, later reversed himself when he found that it was legitimate after all to wage war against Amerindians who “practised abominable lewdness even with beasts, and who ate human flesh, slaying men for that purpose….against such men…war is made as against brutes.”(30) Grotius concurred: “the most just war is against savage beasts, the next against men who are like beasts.”(31)
More moderate voices tended to be drowned in the chorus of conflicting opinions. There were those, such as Las Casas and Vera Cruz, both of whom had extensive experience as missionaries in the New World, who claimed as loudly as they could that Amerindian vices were being wildly exaggerated, and that undesirable behaviour was no more prevalent among New World natives than any other peoples. And anyway, even if such behaviour existed on the part of a few, it did not justify depriving whole peoples of dominium.
The Meaning Of ‘Occupation’
To return to the question of possession from time immemorial: what was the exact definition of ‘occupant” or ‘inhabitant’? Could migratory peoples without fixed abodes be classed as inhabitants? Portugal, shortly before Columbus’s voyage, had claimed rights of “discovery” along the African coast, on the grounds that without stable settlements the region was terra nullius, uninhabited land.(32) Another term that came to be used for a similar concept was vacuum domicilium, no habitation (or homes), which meant that the land was legally “waste” because it had not been “subdued”.(33)
In this sense, much of the Americas was seen as not truly occupied, even semi-sedentary farming villages were considered not to be true habitations. Thus, the French, casting about for a region to establish a colony during the mid-sixteenth century, decided on “vacant” Florida, which at that time included parts of today’s South Carolina, and which had a comparatively large population of agriculturalists whom the French did not seem to notice were sedentary.(34) The deciding factor for the French was that the people were not organized into a state.
The English would later regard uncultivated lands in Virginia as being available for the taking without injustice to anyone, “especially where the people is wild, and holdeth no settled possession in any parts.” In their view,
although the Lord hath given the earth to the children of men…is the greater part of its possessed & wrongfully usurped by wild beasts and unreasonable creatures, or by brutish savages, which by reason of their godless ignorance, & blasphemous Idolatrie are worse than those beasts which are of the most wilde and savage nature….[They] have no interest in it [the land] because they participate rather the nature of beasts than men.”(35)
In New England also, the English did not at first recognize the legitimacy of Amerindian territorial ownership. Eventually, they developed a variant “doctrine of discovery”, according to which the discovering power had the sole prerogative to extinguish (by purchase or other means) the occupancy rights of the original inhabitants.(36) It would be 1629 before John Endicott, Governor of Massachusetts Bay Colony 1628-1630, was instructed “to make such reasonable composition with them [First Nations] as may free us and yourselves from any scruple of intrusion”—in other words, to purchase title to desired land, instead of simply appropriating it;(37) it was 1633 before purchases were recorded. The precedent had been established by the Dutch with their famous purchase of Manhattan Island (1626). Thus the English finally acknowledged their own Common Law, by which no land was to be appropriated without compensation.(38) Recently, Kent McNeil of York University has argued that in English Common Law, “An occupier of land is…presumed to have not only a fee simple estate, but a valid title as well.(39)
Neither Justinian’s Code nor medieval law had specified type of land use as a criterion for rights of occupancy and possession. But by the eighteenth century, the argument that natural law demanded that people cultivate the land had been widely accepted. If lands were not being used in this way, it was now argued, then it was legitimate to take them by force, if necessary. This idea had been proposed by Thomas More (1478-1535) in his Utopia.(40) It was later modified by Emerich de Vattel (1714-1767), whose Le Droit des Gens (1758) rivalled the work of Grotius as accepted legal authority. Vattel wrote that the obligation to cultivate the soil meant that peoples who followed the “idle” hunting life rather than undertaking the hard work of farming were taking up more land than was their due, and so could be legitimately restricted in their holdings to make way for farming.(41) By the nineteenth century, Europeans were no longer questioning their right to take over lands of peoples who were neither sedentary nor organized into states.
The Canadian Situation
For most of Canada, arguments that God intended the land to be farmed were beside the point. Climate and geography dictated that with few exceptions—principally the Huron of southern Ontario—the hunting and gathering way of life prevailed. It was characterized by sharing of resources, both between members of a band and to a certain extent with outsiders. Territorial boundaries were flexible and lands were held in common.(42) With the advent of the fur trade, changing material culture did not necessarily alter the web of social and economic interactions within which Aboriginal technologies traditionally operated.(43)
Still, there were problems. The over-exploitation of wildlife encouraged by the fur trade, and the growing intrusion of non-Aboriginal trappers and prospectors had added to the variables of the northern lifestyle—for one thing, game fluctuations were intensified as numbers diminished—which had increased periods of scarcity up to, and including, widespread starvation. The government’s first reaction had been to disclaim responsibility for Natives without treaty, which it saw no reason to negotiate until the land was needed for White settlement and development. Eventually, the government yielded to the pressures of the situation to the extent of providing some relief in cases of extreme hardship through the Hudson’s Bay Company and the missions.
Treaties had been a part of the diplomatic and political scene since the first arrival of Europeans. For both sides, this was a continuation of well-established practices and traditions. At first, the focus was peace and friendship. For the Europeans, treaties set the stage for the peaceful expansion of their settlements; for the Amerindians, they allowed for the expansion of trade, and thus access to the new range of goods that Europeans brought with them. These treaty priorities were modified with the Proclamation of 1763, which reserved to the British Crown the right to acquire Amerindian lands. In other words, land transfers, which previously had been individually negotiated, now required treaties. At first these involved discreet parcels of land, but the amounts grew steadily until, in 1850, the Robinson Superior and Robinson Huron Treaties included enormous tracts, the largest up to that point. This pattern continued with the opening of the West and Northwest. For the Indians, faced with the inevitability of European expansion, the treaties had become a means of safeguarding their rights and getting as favourable a deal as possible. This gained in importance with the growing presence of Europeans, many of whom had little or no regard for Amerindian rights.
The First Nations of the Northwest had become increasingly restive as they felt it was unjust “that people who are not owners of the country are allowed to rob them of a living”.(44) As the original people, they felt that their rights should have priority; that they kept the peace despite “lawless aggression” speaks volumes for their restraint. “Indian revenge” would have been easy, as Charles Mair (1838-1927), one of the Treaty Eight Commissioners, wrote.(45) Chief Moostoos put it another way during the negotiations at Lesser Slave Lake:
Our country is being broken up. I see the white man coming in, and I want to be friends. I see what he does, but it is best that we be friends.(46)
While there had been many among the First Nations who had been asking for treaty since the 1870s, others were strongly opposed, fearful that it would restrict traditional hunting and fishing rights. It was only when they were repeatedly assured that their traditional life ways would continue as before that they agreed to negotiate.(47) Meanwhile reports of the region’s rich oil and mineral resources accumulated in Ottawa until the discovery of gold in the Klondike in 1896, and the consequent rush of 1898, precipitated matters. The government finally decided that treaties should be negotiated with the Indians for “the relinquishment of their claim to territorial ownership.”(48) The official attitude toward Indian land rights was already indicated by notices posted throughout the proposed treaty area. They included the phrase “…it is deemed advisable to include within the said treaty the extinguishment of their title to the lands…”(49) The government did not define what it meant by “Indian title”. For their part, the Indians, rather than claiming exclusive ownership in the British sense of fee simple, claimed use of the land and rights to the wildlife. If this was “Indian title”, then in being asked to surrender it, the First Nations in effect were being asked to give up their traditional life style, the very thing they were so concerned to protect. Mair termed it “parting with their bloodright.”(50) The underlying contradiction of these positions was not dealt with during the negotiations, and in fact was avoided, if it was admitted at all.
Setting The Stage
Maintaining orderly relations between the First Nations and the incoming prospectors and trappers were the government’s principal motivation for the treaty, as the Order in Council that authorized it reveals. The order’s wording was guarded: “these Indians…were liable to give trouble to isolated parties of miners or traders who might be regarded by the Indians as interfering with what they considered their vested rights…”(51) Ottawa’s past policy of leaving the Natives to run their own affairs was becoming less practical as outside factors intervened. Because the government did not have the knowledge to brief the treaty commissioners on the northerners, the Oblate missionary, Albert Lacombe (1827-1916), who had a reputation for successful dealing with Indians, was invited to help with the negotiations. He accepted, despite infirmities and age—he was over seventy years old. As for the Metis of the region, they were allowed the choice of either taking treaty or scrip, which meant that there would be two simultaneous sets of negotiations, that of the Treaty Eight Commission, and that of the Half-breed Commission.
The territory to be covered by the treaty, after some hesitations and changes of opinion, in the end was left to the discretion of the commissioners. Chief Commissioner David Laird (1833-1914) described the selection as the region “watered by Lesser Slave Lake, the Peace and Athabasca Rivers, the Athabasca Lake, the South of Great Slave Lake and their tributaries…(52) The choice, besides being guided by the likelihood of mining activity and settlement, was also influenced by the area the commissioners would likely be able to cover in one summer. As it turned out, two summers were still not enough. In 1900, after estimating that more than 500 Indians had been missed in the signing, the Commission nevertheless reported that Indian title in the Treaty Eight area “may be fairly regarded as extinguished.”(53) This was not the way that most of the First Nations saw it; since they had been assured that their way of life would continue as in the past, they thought that even though they had agreed to share the land, they retained their Aboriginal rights, a disparity of views that is still not fully settled. After more than three centuries of contact, the cultural gap remains wide between the two sides.
The Indians were at first opposed to taking up reserves, as they believed that they would then be restricted to them; even officials acknowledged that the confined area of a reserve was inconsistent with the requirements of the northern hunting life. On the government side, there were also influential voices against reserves on the southern communal model, in the belief that the northern Indians acted as individuals rather than as a nation: “any northern tribal organization is slight”. Officials favoured granting lands in severalty up to a limit of 160 acres (65 hectares) for each individual “as the Indians are likely to require very small holdings.”(54) Such an opinion, of course, indicates how profoundly they misjudged northern hunting life ways. They conceded, however, that communal fishing stations might be advisable.
Outside issues further complicated the situation. For one thing, there were unanswered questions as to the validity of the Hudson’s Bay Company charter. Firstly, by what right had an overseas monarch granted the charter involving already occupied lands? Secondly, the charter had been granted by England’s Charles II (reign, 1660 – 1685)at a time when such an act was the prerogative of Parliament, not of the Crown. This was a point that had been raised in the British Parliament on several occasions;(55) the Metis of Red River had also picked up on it when they were petitioning London for self-government during the 1840s. Despite these challenges, however, the case was never brought to court, and the HBC sale of Rupert’s Land to Canada was officially approved in 1870.
Even when it was at its most powerful, HBC was cautious about exercising jurisdiction over the First Nations, particularly in remote regions, and usually only did so when offenses involved non-Aboriginals. In fact, Sir George Simpson, the Company’s governor from 1826 to 1860, testified to a London Parliamentary committee that he did not consider that the company had the necessary powers. “In any event, we exercise none, whatever the right we possess under the charter.”(56) The northerners were so well- conducted, he said, that isolated trading posts were perfectly safe, even with a minimum of personnel.
Another ambiguity arose from the stand of the First Nations that since they signed as self-governing nations, the treaties must be considered as international agreements between equals. However, the text of Treaty Eight refers to the Natives involved as subjects of the Queen. According to the Constitution Act of 1867 and the Indian Act of 1876, Indians had a special status within the Canadian Confederation as long as they were not enfranchised; once they got the vote, they became as any other citizen. If they remained under the Indian Act, they were considered to be wards of the government, which had a fiduciary responsibility toward them. This was the legal framework within which the government negotiated. The disparity in status was not brought up at the time as an impediment to negotiating the treaty; in fact, it was not referred to. In any event, unequal treaties were (and are) recognized in international law.(57) The ceremonial procedures during negotiations and signings have been used to argue a de facto recognition of Indian self-government. While that argument is not convincing (for one thing, ceremonialism is far more than just a manifestation of national identity), there is no denying that the First Nations of the Northwest were in effect largely self-governing entities at the time of the signing. Within the political and social context of the turn of the nineteenth century into the twentieth, however, this was not considered pertinent as the tribal nations had not been organized into states. On the contrary, there is plenty of evidence that the government considered that its obligation to negotiate was moral, not legal. There was no shortage of officials who did not think treaties were necessary, and who were not hesitant to tell the Indians that whether they signed or not, the settlers would move in anyway; however, such tactics were not approved. Sir Francis Bond Head, lieutenant-governor of Upper Canada from 1836 to 1838, aroused a storm of criticism by his use of such methods to obtain the Manitoulin Island and Bruce Peninsula surrenders.(58) Despite the disapproval, however, the cessions remained in effect.
In their report, the commissioners reflected the relatively flexible tone of the negotiations rather than the inflexibility of the treaty’s final text. But ingrained attitudes were hard to overcome, and they referred to hunting and fishing rights as “privileges”. They partially redeemed themselves when they added “that only such laws as to hunting and fishing as were in the interest of the Indians and were found necessary in order to protect the fish and fur-bearing animals would be made, and that they would be as free to hunt and fish after treaty as they would be if they never entered it.” This was more accommodating to the First Nations than the final text would be. In trying to provide for everyone’s interests, the commissioners at first did not foresee conditions so changing in the region as to eliminate hunting or trapping, or even to require its regulation. In their view, it was “safe to say that so long as the fur bearing animals remain, the great bulk of the Indians will continue to hunt and trap.”(59) Here, the commissioners were in effect arguing against themselves; as early as 1896, three years before the treaty was signed, Ottawa had moved to regulate hunting with “An Act for the Preservation of Game in the Unorganized Portions of the Northwest Territories of Canada”, under which Indians had been prosecuted for hunting buffalo, a mainstay of their life style.(60) This was a harbinger of even more restrictions to come.(61) It also pointed to the final treaty text, which in spite of all the assurances to the Indians to the contrary, was worded to ensure that hunting and fishing rights would be “subject to such regulation as may from time to time be made by the Government, and excepting such tracts as may be required for settlement, mining, lumbering, trading or other purposes.” This attempt to accommodate both sides were not what the Natives understood to have been the purpose of the negotiations: while some had disagreed whether land title had been at issue, none considered that their unrestricted right to hunt and fish had been on the table. In the words of an elder:
Moose is our main source of livelihood on this earth. Not like the white man, the King; he lived mainly on bread, he said. But the Indian lived on fish, ducks, anything. The King asked the Indian what he wanted for a livelihood. The Indian chose hunting and fishing not to be limited. As long as he lived.(62)
On other points the Indians had even less success. The final draft made no provision for the elderly and those unable to care for themselves, any more than it included health care, issues which the Indians thought had been agreed to. When the people at Lesser Slave Lake saw that these provisions were missing, they at first refused to sign, and could only be persuaded to do so on the solemn promise of the commissioners that their terms would be honoured.(63) Verbal assurances were also necessary in connection with the treaty’s provisions for education.
The Metis had their own particular concerns. For one, they insisted on scrip made out to the bearer—in other words, transferrable scrip—instead of the non-transferrable version offered by the government. The government’s move had been motivated by the desire to avoid the abuses that had developed when scrip had been issued earlier in the south. Most of it had ended up in the hands of speculators at a fraction of its face value. With transferrable scrip, the story was repeated in the north.
Disappointed expectations soon gave rise to charges that Ottawa was dragging its heels about fulfilling its part of the bargain; good intentions about the ear of government “always being open”, and about giving help when needed were not being fulfilled. Particularly at issue was official tardiness in providing promised equipment and livestock for those willing and able to take up farming or stock-raising. Bishop Emile Grouard (1840-1931) reflected the general disillusionment when he observed in 1901: “Treaty promises are far from being fulfilled. The Indians, as well as myself, have some right to be treated with a little more generosity.”(64)
Even more serious were charges that the final treaty text did not reflect what had been agreed to in negotiations. Father Fumoleau, testifying in Paulette et al., observed:
I believe copies of Treaty Eight were sent to the Indian Chiefs after the Treaty was signed, because we have a letter from Pierre Mercredi, who was an interpreter at Fort Chipewyan and says that when he received a copy of the Treaty it wasn’t the same as had been explained to the people of Fort Chipewyan the previous year and he was the interpreter.(65)
Aftermath Of The Signing
Because the negotiations took place in so many locations, and because the signing extended over two years, it is not surprising that the people have displayed a wide variety of opinions as to what was said and what was promised. According to the interviews conducted by Treaty and Aboriginal Rights Research in the seventies, two ideas predominated: that the treaty was about relationships, particularly between the Queen and the people, but also between Indians and Whites generally, and in some cases even between tribal nations; and secondly, that the treaty would help plan for a new way of life by building on traditional patterns. As George Okemow of Driftpile, Alberta, recalled, they were told “they had the right to be Indian forever.” Not only that, Joseph Willier of Sucker Creek, Alberta, added, they would always be free from taxes “because you have already paid through selling your land.”
Despite assurances that nothing would change, that their lives would go on as before, change was everywhere. “They are manoeuvring us”, Eliza Enzoe, of the Lutzel K’s First Nation, complained. Such sentiments would later be reinforced with the introduction of registered traplines, a measure that initially interfered with traditional allocations of territory. Once accepted, however, such traplines came to be regarded as tantamount to treaty: something that was “especially and irreversibly theirs.”(66)
One of the results of the treaty was to divide the people, according to Fred Dawson, Neninu Kue First Nation, Fort Resolution, NWT: “In the old days people liked each other and worked together. It’s not like that now.” This was corroborated by Helen Chize, Fort Chipewyan, who said that the treaty, which was supposed to help people, was bothering them instead. “Because of the treaty, everything is gone bad.” They had believed that they would not be losing anything, but gaining such benefits as medical care and schooling, Fred Olive Okimaw, Driftpile, recalled. But the promises had not been included in the written treaty.
Few could recall that land was “talked about for money”. As Joe Boucher of Snowdrift, NWT, remembered it: “They never told us that they had bought the land from us. That the treaty money was for land.” Boucher’s memories were of the 1921 adhesion.
Mistrust and the feeling of betrayal, which had never ceased to bedevil the administration of the treaty, increased when the government moved in 1913 – 1915 to survey the Treaty Eight area. To the Natives, this was another threat to their liberty of movement. Fuel was added to the discontent with the passing of the Northwest Game Act of 1917, imposing closed seasons on moose, deer, caribou, and other animals essential to the Native economy. As if that were not enough, Canada and the United States signed the Migratory Birds Convention Act the following year, 1918, which added further restrictions without making any special provision for Amerindians. The Dogribs reacted by refusing to accept treaty payment at Fort Resolution in 1920. The following year they won recognition of their special position in a signed agreement and accepted treaty payments. Then the document disappeared.(67) Similar problems were experienced at Fort Rae in 1928 and again at Fort Resolution in 1937.
The Consequences Are Still With Us
The steady tide of complaints finally moved the government to launch a series of investigations to determine what the people had expected of the treaty, where the problems had occurred, and to recommend ways in which the treaty could be fulfilled. Land entitlement and the question of reserves were also to be examined, and where the people wanted it, reserves were to be surveyed.
A revamping of the treaty to clarify its terms was recommended in 1986 by the task force headed by Frank Oberle, Progressive Conservative M.P. for Prince George-Peace River. The report noted that at the time of the negotiations the two sides could not really communicate with one another, they had quite different understandings about land, the use of land, title to the land, the possibility of conveying land to others, and probably, quite different notions about making contracts. To the Indian, the spoken word was sacred. Those negotiating quite obviously did not share this view.(68)
The report argued that the treaty had been essentially a “take it or leave it” proposition for the Amerindians, which had severely limited their negotiating room. In the Western politics of the end of the nineteenth century, the ancient doctrine of consent—quod omnes tangit ab omnibus approbetur (that which touches all is to be approved by all)—had long since been modified by the principle of representation—the delegated few speaking for the many, and the majority vote. This has made it easier for public policy to be manipulated in favour of special interests, usually related to business, rather than primarily to people. The First Nations, on the other hand, continue to be oriented toward the principle of consensus. A recent example of this was their rejection of the Charlottetown Accord on the grounds they had not been sufficiently consulted, particularly during initial negotiations.
Section 35 (1) of the Canadian Constitution, 1982, recognizes and affirms “existing aboriginal and treaty rights of the aboriginal people of Canada.” First Nations base their position on natural law—“inherent right”—which they say was given to them, not made by them. This mirrors the classical description of natural law as being born, not written, and shared by all living beings. Human (statutory) law developed out of natural law as the growing complexities of human societies around the world made it necessary to define the applicability of general principles to specific cases. The role of human law in translating principles of natural justice into societal justice was all too soon modified by the demands of special interests, usually related to material advantage rather than to the needs of the people as a whole. This is a reality that is embedded in the very nature of human society, whatever its variety. In the case of Europe’s discovery of the Americas, principles of international law soon took second place to the lure of previously unimagined wealth.
Treaties played an essential role in regulating the relationships that developed during the European expansion into the New World. In pre-contact America, treaties had been essential for maintaining the peace between tribal nations; without peace (or at least a truce), there could be no such inter-group relationships as trade and diplomacy. With the establishment of British hegemony in Canada, the role of treaties was fundamentally changed to reflect a new social order. The terms of those changes are still being worked out.
2. Justinian I (484-565), emperor of the Eastern Roman Empire, is famous for his consolidation of the law, which had accumulated haphazardly since early Roman times, into the Corpus Iuris Civilis, popularly known as Justinian’s Code. It consists of the Codex, Digest (Pandects), Institutes and Novels. It became the basis for Europe’s international law.
4. Francisco de Vitoria, De Indis et de jure belli relectiones, ed. Ernest Nys, tr. James Pawley Bate, Washington, Carnegie Institution, 1917, sect. 11.7, p. 139; and Hugo Grotius, The Law of War and Peace (De Jure Belli ac Pacis, 1625), tr. Francis W. Kelsey, Washington, Carnegie Institution, 1911. Bobbs-Merrill Reprint, 1925, bk. II, ch. 2, sect. 4-5, pp. 191-2; and ch. 8, sect.6, p. 298.
8. From the twelfth century, Justinian’s Code was “glossed”—commented on, interpreted and kept up to date—by jurists who came to known as glossators. The most renowned of these was Francisco Accursio of Bologna (c.1185-c.1263), who alone compiled 90, 260 glosses. The fourteenth centenary of the promulgation of Justinian’s work was marked by the International Juridical Congress in Rome in 1934.
9. Stafford Poole, In Defense of the Indians, DeKalb, Northern Illinois University Press, 1974, p. 42; Ernest J. Burrus, s.j., tr. and ed., The Writings of Alonso de la Vera Cruz, 5 vols., Rome, Jesuit Historical Institute, 1968, epecially II, sect. III: pp. 138-57; sect. V: pp. 192-205; and sect VI: pp. 208-227.
11. Kenneth J. Pennington, “Bartolomö de Las Casas and the Tradition of Medieval Law”, Church History XXXIX #2 (1970, p. 152. Anthony Pagden summarized a few of these voices in The Fall of Natural Man. The American Indian and the origins of comparative ethnology, Cambridge, Cambridge University Press, 1982, pp. 106-07.
12. Brian Tierney, Church Law and Constitutional Thought in the Middle Ages, London, Variorum Reprints, 1977, ch.7, p. 318, citing canonist Odofredus (d. 1265). In the nineteenth century, natural law would be defined as “the law imposed on mankind by common human nature, that is, by reason in response to human needs and instincts.” (Otto Gierke, Natural Law and the Theory of Society 1500 to 1800, tr. Ernest Barker, Boston, Beacon Press, 1957, p. xxxvi. First published in English in 1934 by Cambridge University Press in two volumes.
15. F.S. Ruddy, “Origin and Development of the Concept of International Law”, The Columbia Journal of Transnational Law VII no. 2 (1969), pp. 235-8; Bernice Hamilton, Political Thought in Sixteenth Century Spain, Oxford, Clarendon Press, 1963, p. 5: Arthur Nussbaum, A Concise History of the Law of Nations, New York, Macmillan, 1954, p. 38.
16. Aquinas, Summa Theologiae Ia IIae, quest. 94, art. 1-6; Otto Gierke, Political Theories of the Middle Ages, tr. Frederick William Maitland, Cambridge, Cambridge University Press, 1900. Reprint, Boston, Beacon Press, 1958, p. 174.
17. Aquinas, Summa Theologiae Ia IIae, quest. 94, art. 5 ad. 3um. See also A. Passerin d’Entrèves, Natural Law. An Historical Survey, New York, Harper & Row, 1965 (first published in 1951), pp. 42-44; and Justinian, Digest, 1.1.6.
18. The texts of the four bulls, with translations, are reproduced in Frances Gardiner Davenport, European Treaties bearing on the History of the United States and its Dependencies to 1648, 3 vols., Washington, C.C. Carnegie Institution, 1917-1934, I: pp. 56-78.
21. John Major, In Secundum Librum Sentiarum, Paris, 1510, dist. 44, quest. 3. See also Olive Patricia Dickason, “Renaissance Europe’s view of Amerindian Sovereignty and Territoriality”, Plural Societies 8 nos.3 and 4 (1977), pp. 99-100. Major’s ready acceptance of the reported bestiality of Amerindians would later draw a stinging rebuke from Las Casas. See Bartolomé de Las Casas, Apología, tr. and ed. Angel Losada, Madrid, Editoria Nacional, 1975, pp. 373-75.
22. Olive Patricia Dickason, “Concepts of Sovereignty at the Time of First Contacts”, in L.C. Green and Olive P. Dickason, eds., The Law of Nations and the New World, Edmonton, University of Alberta Press, 1989, p. 188.
24. Michael Stogre, That the World May Believe. The Development of Papal Social Thought on Aboriginal Rights, Sherbrooke, Que., Editions Paulines, 1991, pp. 77-104. See also Dickason, “Concepts of Sovereignty at the Time of First Contacts”, p. 181.
26. Among those who disagreed were Las Casas, as well as one of Vitoria’s own pupils, Diego de Covarrubias y Leyva (1512-1577) who would become an adviser at the Council of Trent. See his Opera Omnia, Frankfurt, 1592. I: p.671. See also Maureen Davies, “Aspects of Aboriginal Rights in International Law” in Bradford W. Morse, ed., Aboriginal Peoples and the Law: Indian, Metis, and Inuit Rights in Canada, Ottawa, Carleton University Press, 1985, p. 23.
35. Samuel Purchas, Hakluytus Posthumus or Purchas His Pilgrims, 20 vols., Glasgow, MacLehose, 1905-1907, XIX: pp. 222-23; Robert Gray, A Good Speed to Virginia (1609), ed. Wesley F. Craven, New York Scholar’s Facsimile, 1937, B1 verso, C3 verso passim.
40. Thomas More, Utopia and a Dialogue of Comfort, London, Everyman’s Library, 1955, p. 70; cited by Robin Fisher, Contact and Conflict, Vancouver, University of British Columbia Press, 1977, p. 104. Fisher adds that John Locke (1632-1704) implied that an agricultural people could justly force a hunting people to change their economy. (Second Treatise of Government, Arlington Heights, Ill., Harlan Davidson, 1982, pp. 17-31.)
41. Emerich de Vattel, The Law of Nations or the Principles of Natural Law (Le Droit des gens, ou Principes de la Loi Naturelle), tr. Charles G. Fenwick, Washington, Carnegie Institution, 1902, bk. 1, ch.7, sect. 81, pp. 37-8. For a different perspective on some of the points raised in this section, see Clinebell and Thomson, “Sovereignty and Self-determination”.
43. This selective adaptation to European trade has been demonstrated in other regions as well. See, for example, John A. Walthall and Thomas E. Emerson, eds., Calumet & Fleur de Lys. Archaeology of Indian and French Contact in Midcontinent, Washington, Smithsonian Institution Press, 1992, particularly pp. 177-201. The continuing importance of the hunting and gathering way of life was illustrated as recently as the Mackenzie Pipeline hearings (1974-77). See Thomas R. Berger, Northern Frontier Northern Homeland. The Report of the Mackenzie Valley Pipeline Inquiry, 2 vols., Ottawa, Minister of Supply and Services, 1977.
48. National Archives of Canada, Record Group 10, Indian Affairs, Black Series, vol. 3848, file 75236-1 Privy Council Committee, 17 June 1898, no. 172785. The remainder of this paper owes a debt to Wendy Aasen’s “Preliminary Treaty Review Report”, prepared for Treaty 8 Tribal Association, 31 August 1993.
49. NAC, RG 10, Indian Affairs, Black Series, vol. 3848, file 75236-1. Public notice, June 1898. Cited by Richard Daniel, “The Spirit and Terms of Treaty Eight” in Richard Price, ed., The Spirit of the Alberta Indian Treaties, Edmonton, Pica Pica Press, 1987, p. 67.
57. See, for example, Samuel Pufendorf (1632-1694), De Jure Naturae et Gentium (On the Law of Nature and Nations), (1688), tr. C.H. and W.A. Oldfather, 2 vols., Washington, Carnegie Institution, 1934 (reprint, New York, Oceana, 1964), II: pp. 1332-34. Pufendorf noted a variety of ways in which treaties could be unequal, including status of nations involved and the promises being negotiated.
63. Affidavit of James K. Cornwall, known as “Peace River Jim”, 1 November 1937. The text is reproduced by Fumoleau, As Long As This Land Shall Last, pp.. 74-5, as well as by Daniel, “Spirit and Terms of Treaty Eight”, pp. 83-4.
65. Testimony given in An Application by Chief François Paulette et al., to lodge a certain Caveat with the Registrar of Land Titles for the Northwest Territories, 1973 [Western Weekly Reports 97], Book 15: p. 893.