Walk-a-Mile Film 2 - We Are All Treaty People

With the second film, We Are All Treaty People, we look at treaties and their significance for stories of sovereignty and legitimacy in Canada.

So just to review, we are asking: why after 500 years do we have to go back to school to understand this 500-year-old relationship? What did we miss the first time?

• …First Peoples were not conquered…treaties were signed…

Perhaps the Canadian education system was counting on Hollywood to fill this education gap, unfortunately for Canadians, the American and Canadian stories are very different on this score. So the Hollywood version misrepresents what happened in Canada.

The American story of settlers moving west, with circled wagon trains and hostile Indians whooping and hollering on horseback, until the U.S. cavalry comes to the rescue, is not our story. As Mark Sault notes, in Canada, we signed treaties. Why is our story different?

In a nutshell, Indigenous Peoples were an integral part of the fur trade society which lasted 250 years in Canada. We did not have Indian Wars in the manner of the Americans fighting their way across a continent.

We signed treaties with our economic partners, military allies and, with the Métis as the societal buffer, with our relatives. So, we’re talking about a very different story, our first 250 years.

So what’s a treaty?

Do Indigenous Peoples have a right to be angry?

With regard to the history of treaties, were promises made and promises broken?

Was something taken under false pretenses?

If our story is not the American story of military conquest, but of treaty agreements, what does that mean for the relationship between First Nations and the Crown, between First Nations and non-aboriginal peoples in Canada?

Is this some of the crucial missing stuff in our first run through the Canadian education system? And if so, why was it missing?

Was it missed because it was not important or was it missed because it was important but somebody preferred not to talk about it because it messed up the story they were telling?

Hmmm…

But is a treaty a contract?

While I realize that the point John Stephenson is making here is to draw out the social importance of keeping contractual promises for a stable and secure society, and thus, that the analogy of contracts and treaties helps make the point that we should honour treaty obligations. Nevertheless, is a treaty a contract, especially from the vantage point of questions of sovereignty?

When two parties sit down to negotiate a contract they do so typically within a single legal framework of contract law, within a single framework of sovereign legal authority. This is not the case when treaties are signed. Each party to a treaty is an autonomous sovereign entity, except in cases of post-conquest agreements, where the autonomy of one party has become legally restricted. But again, that was the American version of the story, that’s not our Canadian story.

In the Canadian version of the story, treaties were signed between economic partners, military allies and socially related cultures. At least that was the case for the first 250 years or so. Did something change? And if so, what?

Peace and friendship treaties versus land secession treaties, how are we to understand this distinction?

Peace and friendship sounds like those agreements between partners and allies we were talking about. What are land secession treaties and how do they differ from the agreements of the first 250 years of the relationship?

Protection versus cede and surrender, hmmm, that sounds like a significant difference.

In fact, this sounds like we may be describing two completely different stories. Can they both be true, or is one true and the other one not so much? How will we know? And does the difference matter?

Sharing versus surrender, again, that sounds like a pretty big difference.

For example, if we were talking about a divorce settlement, I assume the parents would think that sharing the kids would be a pretty significant difference versus surrendering the kids to one party of the divorce.

So what are the implications for the sovereignty of nations if there is a fundamental difference of opinion about the treaties, where one party says the treaty was about sharing the land and the other party says, oh no, the treaty was all about one party surrendering the land to the other party?

That doesn’t sound quite like the same story does it?

So are there any agreed upon elements in the treaties?

Well, one thing is agreed by all parties, that the treaties involved the traditional territories of Indigenous Peoples.

The story of cede and surrender is, in essence, the colonial story, whereby the colonial state and society claims a universal and exclusive sovereignty over those traditional territories. It is here where the legitimacy of the Canadian state interconnects with the traditional territories of Indigenous Peoples.

So if there is something fundamentally wrong about the colonial story, about those treaties, then there is potentially something fundamentally wrong about the legitimacy of the Canadian state. This is the point that, I take it, Jana-Rae Yerxa is making.

So what are the implications for sovereignty and the legitimacy of the Canadian state in the conflict over interpreting the treaties as sharing versus cede and surrender?

In the above slide, I have juxtaposed two images.

The lower image is the coat of arms of the Governor General of Canada. It is a combination of the crowned lion, the symbol of the British Monarchy, and the maple leaf, the symbol of Canada. Note that the maple leaf is very firmly in the grip of the British monarchical lion.

The image above is of a treaty from the era of peace and friendship. Notice the little drawings. Do you recognize what they express and symbolize?

I like to call them doodem doodles.

If you read the treaties of this era, they are rich with the terminology of European legalese, diplomacy and international relations. They often incorporate legal patterns and templates. In other words, the written documents are very much a reflection of one side of the treaty table and what the folks on that side of the treaty table thought, believed and imagined. If you read the text, you have very little idea of who the folks on the other side of the table are, what they thought, believed and imagined.

Except for those doodem doodles.

The doodem doodles represent our one and only glimpse, inside this document, of the folks sitting on the First Nations side of the treaty table.

The little drawings represent the clan symbols (doodem in Anishnabemowin) of the signatories. And thus they bring to the treaty table something of what the First Nations signatories understood about who they were, how they lived their lives and what their symbolic representations expressed.

So my tentative contention would be, we do not understand the folks on the First Nations side of the treaty table until we fully appreciate the significance of those doodem doodles. Just as the signatories on the British side of the treaty table invoked the authority of the Crown, seated in another country on the other side of an ocean, so the First Nations signatories invoked a commensurate source of symbolic significance: the Spirit Animals of their clans.

And so, just as the understanding on the British side of the table was that First Nations were doing their deal, ultimately, with the British monarch through a representative, so First Nations signatories were indicating that the Europeans were doing their deal with the Spirit Animal whom the signatories were invoking and affirming through their symbolic representations.

A very interesting book, by Michael Pomedli, touches on this subject: Living with Animals: Ojibwe Spirit Powers

And so, just as we can not understand the legalese of the European text, without understanding the symbols, practices and institutions that text expressed, so we can not understand what was agreed to on the First Nations side until we understand the meaning of the clan system and the symbols, practices and institutions which those clan symbols expressed and invoked as a form of Indigenous authority embodied in the treaty.

Finally, regarding oaths of allegiance, to whom do officials of the Canadian state, to whom do new immigrants into the Canadian colonial society, swear their oaths of allegiance? A person living in another country on the other side of an ocean? Whose story is that? And how does that story fit into the treaties? And how does it relate to those Spirit Animals who abide in the traditional territories and in the treaties the settler immigrants and their legal authorities agreed to abide by?

So what is the relationship between sovereignty and Indigenous traditional territories?

The slide above incorporates a news story from May, 2016, when the flag of the Fort William First Nation was raised in front of the city hall of Thunder Bay, Ontario. The mayor of Thunder Bay indicated in his ceremonial remarks, that this flag raising is meant to acknowledge the traditional lands of Fort William First Nation, upon which the city of Thunder Bay rests.

Apparently, after saying this, the mayor still believed that he got to be the colonial mayor of something.

How does this work?

Is this meant to be a completely empty gesture? Or is it meant to carry substantive significance?

Is this meant to acknowledge that sovereignty and legitimacy continue to flow from those traditional territories?

As I understand it, the mayor was silent on this question, however, such silence does not silence the underlying reality of the ceremony.

What is it to affirm and invoke a symbol of sovereignty? Are the spirit animals of the traditional territories of an Indigenous Peoples affirmed and invoked when their symbolic representations are invoked in ceremony? If not, why not? And if so, what are the implications of that?

How does this ceremonial act affect the sharing versus surrender interpretations of the treaties? And as we have already noted, that interpretation has a direct bearing on the sovereignty and legitimacy of the Canadian state in its various manifestations: municipal, provincial, federal.

These are not the traditional territories of the Canadian state, nor of the British monarchy. No one disputes that. So what is the symbolic status of that lion wandering about in the traditional territories of the Anishnaabeg? What can be affirmed and invoked in the land of the Anishnaabeg and of the Spirit Animals who abide here? Are we all declared to be in the grip of that lion’s paw or is that a false representation of who we really are propagated by the descendants of those folks who washed up on Turtle Island 500 years ago?

The Robinson Superior Treaty of 1850 is the treaty which applies to the territory within which the city of Thunder Bay, Ontario resides.

What are the implications of that treaty for the sharing versus surrender interpretations of treaties? And what are its implications for the affirmation and invocation of the sources of sovereignty?

The text of the treaty begins with two words: This agreement…

When presenting the treaty, I always ask the question, what do the words this agreement refer to, the text we are reading or an event which the text presumes to record?

Recall Cynthia Wesley-Esquimaux’s comment that First Nations participants typically did not speak or read English, the language of the text.

And indeed, interpreters’ signatures are included in the text of the treaty.

If one looks closely at the treaty document, it is difficult enough to read for a fluent English reader, never mind someone who did not speak or read the language.

Furthermore, if you look closely at the signatures, you will see that those grouped on the bottom left, the British representatives, show the variation in style and weight of penmanship one would expect from different individuals.

If one looks over to the column of signatures on the bottom right, the First Nations signatories (except for that of commissioner William Benjamin Robinson), one is struck by the remarkable penmanship. However, on closer inspection, its clear that the all the names were written by the same hand. Furthermore, the Xs which appear next to the First Nations signatories names show a remarkable consistency suggesting that even the Xs were executed by the same hand.

All of which suggests that the written text was not in fact what could have possibly been agreed to given that the First Nations participants did not and could not read it.

So we must conclude that the words this agreement must refer, not to the document itself, but a separate event, which the document purports to record.

Here we have two excerpts from the Robinson Superior Treaty.

The first excerpt is a clear indication that we are dealing with a land secession treaty, of the cede and surrender variety, for it incorporates the standard legalese the British incorporated into such treaties.

Take, for example, an expression such as “surrender, cede, grant and convey.” For a non-lawyer, even if a fluent English speaker, it would be rather difficult to understand just what the words grant and convey exactly mean regarding the disposition of your traditional territory. Nevertheless, it is just such precise legal intent that such words are meant to communicate.

What’s important for our discussion is that this language could not possibly have communicated much to the souls who were neither legally trained nor fluent in the English language.

So what we have to appreciate is, the text of the treaty is better understood to be a letter home to the lawyers in London, England, which said, hey guys, we got what we wanted, here is the text and here are the signatures.

If we look at the second excerpt, which I will paraphrase as, the First Nation Peoples will be able to hunt and fish in their traditional territories just as they always have. It is not too difficult to appreciate that in an oral conversation this would sound like sharing rather than cede and surrender. You get to keep doing what you’ve always done, in the way you’ve always done it, where you have always done it, but we would like to come here and do our thing also, is that ok?

Remember, this is a treaty in 1850, in territories which for 250 years of the fur trade society involved partnerships and alliances. There were relevant precedents with which to anticipate and interpret the meaning of the treaty and the relationships it supposed. Cede and surrender and the extinguishment of rights were not what the fur trade society had been built on, it was built on economic partnerships, military alliances, intermarriage and cultural exchange. In fact, symbols and ceremonies from the fur trade society were often incorporated into these treaty transactions. So were the British colonials, in fact, implicitly agreeing to such fur trade society concepts which they did not fully appreciate by incorporating such ceremonials?

So how am I to interpret the treaty? Because this is my treaty, for example, it applies to me, born and made in the traditional territory of the Anishnaabeg.

And so what’s our story?

Sharing or cede and surrender? And what are the implications of these conflicting interpretations for the sovereignty and legitimacy of the Canadian state and its local manifestations? Remember, there is no dispute about whose traditional territory this is. There is, however, a dispute about the legitimacy of the Canadian state and its exclusive and universal claim to sovereignty in these traditional territories of the Anishnaabeg.