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Treaties in history and law.


Historians have not generally been interested in surveying the breadth of treaty-making experience in Canada. Historiographical trends towards deeply contextual studies of Indigenous-settler relations do not make this type of project more likely. Instead, it is lawyers whose discipline demands summary descriptions of Canada's treaty-making traditions. Such overviews help contextualize a given treaty against a general understanding of treaties and suggest how one treaty history might relate to others. They also provide the backdrop for discussions of colonial policy development and Aboriginal rights. Generalized overviews about the nature of historic treaties thus provide a basic narrative against which Aboriginal rights are understood in law if not history. As a result, historical overviews of treaties should be approached critically, with awareness that their significance may echo well beyond debates of a historiographical nature.

Canadian history is reported to encompass more than 500 historic treaties. (73) A common method for summarizing this history divides treaty making into pre- and post-1850, which sets the Robinson Treaties on the northern shores of Lake Superior and Lake Huron as the dividing marker. (74) Alternatively, the treaty timeline is divided by confederation, with the post-confederation era coinciding with the negotiation of the numbered treaties in what had been the North-Western Territory. (75) Confederation as a divider emphasizes a change in colonial authority from colonial governments to the new Dominion government. By contrast, 1850 more clearly marks the beginning of a new phase of treaty making in which treaties covered larger territories. The earlier date also signifies the completion of a shift in the subject matter of treaties from alliance to land that began with the Royal Proclamation of 1763. (76) Alliances, generally known as "peace and friendship treaties", established or reaffirmed peace through establishing mutual military support or neutrality. Such agreements often included or set the stage for trading commitments with Indigenous peoples, which were an important element of maintaining peaceful relations in at least the 18th century. (77) They also often encompassed terms of goodwill, protection, and continued access to the resources required to maintain Indigenous livelihoods, as exemplified in the 1752 and 1760-61 treaties with the Mi'kmaq, (78) at issue in the R v Simon (79) and R v Marshall (80) decisions respectively.

The characterization of these agreements as peace and friendship treaties does not recognize that, in spite of an absence of land cession terms, the agreements addressed land and territory as matters of jurisdiction. Such agreements may have specified colonial boundaries or they may have addressed the establishment of new settlements; the British treaty with the Mi'kmaq in 1726 is an example. It included clause III: "That the Indians shall not molest any of His Majesty's Subjects or their Dependants in their Settlements already made or Lawfully to be made". (81) William Wicken reads this clause against the post-1713 Treaty of Utrecht context in which this treaty was negotiated, suggesting that the British did not have exclusive jurisdiction over Mi'kma'ki where lands were occupied by both Mi'kmaq and Acadians and that Mi'kmaq would have expected the lawful processes required by the treaty to have included their consent to new uses of their lands. (82) In Wicken's interpretation, "the intent of the treaty was to create norms of behaviour that would enable co-existence between the British and the Mi'kmaq in Nova Scotia." (83) As we will return to below, this interpretation of a so-called peace and friendship treaty has strong parallels to Indigenous interpretations of the later numbered treaties.

In survey treatments, the post-1850 and post-confederation period is typified by treaties that dealt with large expanses of territory and many Indian nations or tribes. The written terms address land surrenders, annual presents or annuities, commitments to set aside reserves, and continued Indigenous access to Crown lands for harvesting activities until taken up for settlement. They are thus presumed to be different in scope and nature than the 18th-century peace and friendship agreements. The numbered treaties have also been further divided by some historians into the first seven "settlement treaties" (1871-77) and the later three "northern resource development" treaties (1899-1921), drawing attention to the different impetus for colonial action in these two time periods. (84)

Between these two main types of treaties, some surveys attend to the Royal Proclamation of 1763 and treaties in Upper Canada in the late 18th and early 19th centuries. (85) Following the formalization of British treaty-making policy in the Royal Proclamation, scholars note a transitional era in which a critical shift occurs after the war of 1812 when the British need for military support from Indigenous allies waned and settler pressures for land increased. (86) Prior to 1812, the move from the peace and friendship format towards the geographically limited land cession agreements of the second period was already in progress. (87) Further changes were introduced in the later era, replacing one-time payments with annual annuities--which Miller has noted was introduced to reduce the financial burden of treaty making on the colonial treasury--and connecting treaty making to the creation of reserves. (88) Regardless of changing colonial interests, treaties continued to encompass terms reflecting Indigenous concerns to retain access to wildlife and fish harvesting areas and waterways. Similarly, the 14 Douglas Treaties on Vancouver Island from the 1850s (89) reflected many of the elements of the contemporaneous Robinson Treaties in Ontario but retained some of the character of the earlier Upper Canada surrenders in that these agreements were limited in geographic scope and involved one-time payments. (90)

Miller's recent book-length historical survey of Canadian treaty making is much more detailed than many of the "snapshot" surveys noted above, but it is both the level of detail and his approach that provide a different sense of this history. Importantly, although many scholars note the evolving nature of Canadian treaty history, Millers categorizations are less neat as he traces the chronological development of treaty making with colonial interests that moved from east to west. This approach allows for more overlap between types and eras of treaty making, allowing a sense of the continuity and change that has characterized this enduring practice. His survey is also more inclusive, incorporating what he terms fur trade "commercial compacts" as part of the early period of treaty history. He notes that Indigenous nations would not trade without the establishment of peaceful relations, and thus these "commercial agreements" overlap in both chronology and character with the peace and friendship agreements of the 18th century. Such agreements have generally been left out of legal surveys of treaty history, perhaps because the Crown was not the treaty-making entity. While the Hudson's Bay Company's Charter purportedly granted the Company territorial and governance authority in Rupert's Land, including sufficient authority to make treaties on behalf of the Crown, (91) not all trading companies had such treaty-making powers. Indeed, Millers account distinguishes between agreements made by the North West Company and the Hudson's Bay Company on this very point, excluding the former from at least "official" treaty history. (92) Relying on the legal authority of the Hudson's Bay Company to bring fur trade agreements into treaty history, however, is not the only or strongest basis for their inclusion. The argument for inclusion of the fur trade era in treaty history does not depend on the perfect legal authority of either the European and Indigenous treaty-makers in the fur trade era, nor does it require such treaties to be individually justiciable. Instead (or in addition), fur trade treaties are significant as part of an iterative process of treaties that made subsequent treaties possible.

Including fur trade era treaties brings geographies frequently left out of treaty surveys--such as northern Quebec (93) and British Columbia--into the picture before the modern era. New France and the early colony of Quebec are also often left out of surveys of the country's treaty-making traditions. French diplomatic relations with Indigenous peoples are, however, well-represented in the literature on Indigenous-settler relations. (94) Sebastien Grammond explains the differences of Quebec's treaty history as stemming from two points of legal history: first, the assumption that the Indian provisions of the Royal Proclamation did not apply to the colony of Quebec; and second, the lack of a requirement to seek Indigenous consent to land cessions within French colonial law or policy. (95) But these differences simply mean that treaties in Quebec were not land cession agreements, not that there were no treaties of note. (96) Indeed, important treaty rights cases have arisen from the geography of present-day Quebec. (97) Similarly, British Columbian territory beyond Vancouver Island (Douglas Treaties) and the northeast corner (Treaty 8) can be connected to the larger treaty-making tradition through the significant history of fur trade relations there before settlers arrived. (98) Acknowledging this aspect of BC history refocuses attention away from the colonial policy-makers that set British Columbia's Indian policy on a different trajectory from the rest of the western Canada to an older tradition of diplomacy and negotiated trading relationships. (99)

Millers inclusion of the fur trade era builds on the remarks of numerous historians who argue that relations between Indigenous and European fur traders in the 100-200 years preceding treaties set the stage for at least the numbered treaty negotiations. Sidney Harring, for example, has related the fur trade era to First Nations understanding of treaties as sharing agreements, noting that
   [t]here are substantial oral histories of Native understanding of
   these treaties. Most of them can be corroborated by the logic of
   the time. It must be clear, for example, that, having shared the
   Prairies with Euro-Canadian fur traders for two hundred years,
   Native people must have seen the treaties as recognizing that
   pre-existing relationship. (99)

Arthur Ray, Jim Miller, and Frank Tough add precision to this argument, suggesting that pre-treaty fur trade practices provide an essential baseline against which to understand the numbered treaties. (100) As Arthur Ray explains:
   The fur-trading institutions and practices that cemented this
   relationship, particularly the gift-giving and negotiating
   traditions, and the treaties that Canada had already negotiated to
   the east in the area of present-day Ontario ..., served as models
   for treaty negotiations in the 1870s[.] As a result, the treaties
   included provisions that had been central features of the classic,
   pre-1870s fur trade. (101)

In addition to the gift-giving and negotiating traditions noted by Ray, the central features of the trading regimes emphasized by these authors as connecting to the later treaties include the rights to access lands and resources that Indigenous peoples granted their European and Canadian trading partners, (102) the practices of recognizing trading chiefs with gifts of clothing and pipe ceremonies, (103) and the practices around sharing medicines and assisting each other in dealing with illness, which have a particular correspondence with the written medicine chest provision of Treaty 6. (104)

In a slightly different take on how the fur trade relates to treaties, John Foster suggested that the relationship constituted a "compact" between the traders. (105) Similarly, Jean Friesen described the relationship formed through trade, which she identifies as a political and diplomatic act, as a form of alliance, as "treaty trade, an institution of Indian origin [that] served both trader and Indian." (106) This argument emphasizes the negotiated form of the relationship that supported the trade as a form of treaty itself. (107) It also might be taken to reflect the "contracts" and "leagues of friendship and peaceable cohabitation" that the Hudsons Bay Company instructed its earliest traders to make with the natives of the lands in which they wanted to settle a trade and, if possible, purchase the lands. (108) The significance of these early treaty-trade relationships in Ruperts Land was not simply the establishment of good relations with trading partners; the English traders also needed their alliances with local peoples for colonial/military purposes (as in Mi'kma'ki/Acadia), to gain a foothold in the vast territories in which French traders were also present. Indeed, the Hudson's Bay Company relied on its "leagues of friendship" in legal disputes with the French over Rupert's Land leading up to the Treaty of Utrecht of 1713. (109) In the end result, both of these arguments--fur trade as essential context and source of insights into a set of relations that would have influenced at least First Nations' expectations of treaty, and fur trade relationships as involving and embodying (peace and friendship) treaties themselves--bring the fur trade into treaty history. And regardless of which argument prevails, both importantly suggest that treaty making is an iterative process, in which earlier relationships shape what is possible and desirable when the time comes to reformulate and rearticulate the terms of relationship.

Less novel than including fur trade compacts, but equally significant in treaty-making histories, is Miller's inclusion of the post-1975 comprehensive claims process in his account. (110) Linking historical traditions to contemporary developments is important for understanding the context for contemporary negotiations processes and for legal argument, as courts begin to grapple with the interpretive frame to bring to so-called modern treaties. (111) However, there is room to consider what connects the eras beyond the fact of new treaties being negotiated and signed. For example, the delineation of modern versus historic, is consistently demarcated by Miller and others by a 50-year gap between the Williams Treaties of 1923 and the James Bay and Northern Quebec Agreement of 1975, which overlooks adhesions that took place during these 50 years: Saulteux, Cree, and Chippewa (Ojibway) bands signed adhesions to Treaty 6 between 1944 and 1956; Treaty 9 was significantly expanded by an adhesion in 1930, after the boundaries of Ontario were extended in 1912. (112) These adhesions extended existing agreements to new nations and, occasionally, new territories. Overlooking them as part of treaty history also overlooks the motivations and perspectives of the new treaty peoples in favour of colonial attitudes during this period, which assumed Indian polities were a fading artifact of the past and that treaties, once signed, required little further attention. (113)

Modern treaties are not simply distinguished from historic treaties by chronology; they are also differentiated by their scope and conditions of negotiation, or so it is generally presumed. As Binnie J recently emphasized in Little Salmon/Carmacks First Nation:
   Unlike their historical counterparts, the modern comprehensive
   treaty is the product of lengthy negotiations between
   well-resourced and sophisticated parties.... The increased
   detail and sophistication of modern treaties represents a quantum
   leap beyond the pre-Confederation historical treaties ... and
   post-Confederation treaties .... The historical treaties were
   typically expressed in lofty terms of high generality and were
   often ambiguous.... Modern comprehensive land claim agreements,
   on the other hand, starting perhaps with the James Bay and Northern
   Quebec Agreement (1975) ... were ... intended to create some
   precision around property and governance rights and obligations.

Justice Deschamps provided a different view in her concurring reasons, rejecting the date of signature of a treaty or categorization of treaty type as determining the interpretive approach that should be taken, noting that section 35 does not differentiate between treaties in this manner, and "that it would be wrong to think that the negotiating power of Aboriginal peoples is directly related to the time period in which the treaty was concluded". (115) On closer examination, and with respect for Binnie J's clear desire to launch a new, and better, era of Aboriginal-Crown relations, Deschamps J's view of the evolution of treaty making has greater correspondence with the historical record.

As noted above, some interpretations of 18th-century treaties, such as Wicken's interpretation of the 1726 Mi'kmaq-British treaty, demonstrate intentions to create norms of co-existence around "property and governance rights and obligations", even if such norms were not defined precisely in text. (116) The difficulty of reaching such interpretations of the treaty through the historical record, rather than from the written terms of the treaty, does not erase this historical content. Consider also self-government. The federal government's now dated 1995 policy on self-government considers such negotiations to be an "add-on" to historic treaties, stating specifically that historic treaties will not be reopened. (117) Indigenous scholars, on the other hand, have argued that treaties were agreements between sovereign political communities, a fact that implies recognition of First Nations self-government and supports section 35 treaty self-government rights. (118) Modern treaties, by contrast, make self-governance rights explicit in their written terms, institutionalizing and protecting various forms or pieces of Indigenous governance or joint Indigenous-public government decision making. The difference may again be primarily between written (modern) versus unwritten (historic) terms, with lingering disputes about the scope of the historic treaties. Moreover, the detailing of self-government jurisdictions and institutions in the modern agreements coincides with the growing complexity of the modern administrative state. Is the detailed nature of the self-government provisions a reflection more of the changing nature of treaties or of the changing nature of government? (119) If we also take into account the significant federal policy changes around the parameters of self-government negotiations in the modern era, (120) we might see that at least the early 20th-century northern resource development treaties (Treaties 8-11) had more in common with the treaties of the 1970s through the early 1990s than the typical division between modern and historic treaties suggests.

One final concern about how the modern treaty era has been presented in treaty surveys to date is the adherence to official federal treaty policies and processes in how treaties are characterized. (121) Many historians recognize treaty-making experience as inclusive of "informal" treaty processes, exemplified by the authors noted above connecting fur trade practices to treaty histories. (122) Many constitutional theorists recognize a broad idea of "treaty processes", as discussed in the first section of this paper. Even the Supreme Court has recognized the connections, when in Mikisew Cree First Nation v Canada (.Minister of Canadian Heritage) (123) Binnie J commented that the duty to consult applies to the implementation of the Crowns rights to take up land for settlement and other purposes under Treaty 8. (124) Thus processes beyond the treaties, such as consultation, are required to make the treaty work. Meanwhile, a plethora of quasi-treaty agreements and processes have cropped up, particularly at the provincial level. (125) British Columbia's policies embrace "incremental treaty agreements", (126) which focus on sharing economic benefits with First Nations and building trust before final agreements are reached. These policies also embrace "reconciliation protocols and agreements", (127) some of which notably establish shared decision making around lands and resources. Neither the BC treaty process nor these developments can be understood in isolation; they exist only in relation to each other and the ongoing rejection or complaints about the BC treaty process by many First Nations and other commentators. (128) Provincial leadership in this area is itself worth noting, and marks perhaps the greatest departure of the modern from the historic eras (although, at the same time, continuing the tradition of federal-provincial policy differences around treaty making). (129) These developments suggest that consultation and various other forms of agreements need to be considered alongside negotiations under federal comprehensive and specific claims policies in order to paint a full picture of the broad fields of consent and dissent that characterize the modern era of treaty making in Canada.

Thus, even under Millers expanded approach, the surveys that give a basic shape to Canada's treaty-making history carry forward the historiographical habits of previous generations. Most critically, the distinctions between eras and types of treaties in the surveys correspond to the colonial administrations interests in making a treaty in a particular time and place (peace and alliance or articulations of land ownership and governance powers) and inadequately represent Indigenous perspectives. Of course, if the aim of the survey is to present a snapshot of colonial policy over time, this emphasis is appropriate. (130) However, if the aim of the survey is to provide a bird's-eye view of Canada's treaty-making traditions, then such approaches are inadequate for presenting a history comprised of both Indigenous and Crown experience. The over-representation of colonial interests is particularly strong in the continued separation of land from peace and friendship treaties and/or fur trade agreements. (131) Many Indigenous groups claim that, in spite of the surrender clauses in the text in the land cession treaties, they never "sold" their land. This claim is anchored in Indigenous beliefs and economic systems, in which land is not a commodity that can be sold. Instead, they claim that they agreed to share their territories and resources with the newcomers. (132) And while these claims are advanced in the present day, there are at least some examples of contestation around ownership of land in the historical record as well. (133)

The interpretive divide between sharing and cession has been taken up by several historians, particularly those concerned with bringing Indigenous perspectives and contributions to treaty making to the fore. They question the historical grounding of such claims. Jean Friesen, for example, states that even in light of the unbalanced conditions in which the 1871-77 treaties were negotiated, or perhaps because of them,
   [t]here is no doubt in my mind that at least some Indian leaders at
   the treaties were well aware that this was a land sale on an
   enormous scale.... Most writers have assumed either that Indians
   could not conceive of the sale of "Mother earth" or that they only
   applied the concept of land use rather than ownership and sale.
   While this may be true for some Indians in some parts of the west,
   it seems more likely that, like the Iroquois in the eighteenth
   century, they may have been developing a variety of conceptual
   approaches to land and resources, depending upon whether they were
   dealing within the tribe, with other Indians, or with Europeans.

Sidney Harring also considered the Prairie treaties and wrote that, in general,
   [t]he concept of the sale of land and its permanent alienation
   cannot have been known to Indians who never held private property.
   ... The First Nations understood the treaties as peace and
   friendship agreements, with specific cessions on some land use
   rights in return for payments in cash and goods from the Crown.

Nevertheless, in discussing problems of translation, and the difficulties this creates for historical interpretation, Harring further stated that
   [i]t is impossible to fully articulate the Indian understanding of
   these treaties. Part of the evidence is contradictory. For example,
   the Indians at Fort Carlton, according to official documents,
   discussed leasing their lands to the whites for four years rather
   than selling the land. This discussion itself would indicate that
   the tribes understood that they were selling the land. But that
   assumes Indians knew what a lease was. Other Indians counseled
   against selling the land, again indicating that the tribes knew
   they were discussing a land sale. The final language [of the
   surrender clauses] seems unambiguous. But it is boilerplate
   language, inserted in all the treaties, and it is not clear how it
   was translated. (136)

Inevitably, the historian's conclusion is that the historical "truth" of the competing claims depends on the context--the particular knowledge and experience of the peoples involved, their languages, legal cultures, and knowledge of those of their negotiating partners, and the larger social, political, and economic context in which the treaty was negotiated. Moreover, as Harring suggests, the nature of the historical record rarely permits conclusive interpretations of the sort demanded by law on matters of dispute. As noted earlier, a historians interpretation may simply be that the meaning of a given treaty was not shared between the parties--a perfectly valid conclusion by historical standards.

Looking for points of mutual agreement as represented by treaty terms and texts is an inquiry (im)posed by law, in which the historical inquiry serves or follows from the legal one. Although the historiography of treaties now reflects mixed legal and historical orientations, historians have traditionally been more concerned with portraying the overall context and character of a particular treaty or regional set of treaty negotiations, or with the development and practice of colonial policy around treaties. They have formulated their questions against intellectual developments such as attending to the agency of Indigenous peoples in colonial contexts and theoretical debates about the nature of objectivity and positive historical facts. Legal questions, by contrast, stem from an abstracted and normative concept of treaties and treaty rights. A historical interpretation of a lack of shared meaning in relation to a given treaty raises legal issues, but not necessarily historical ones. And the legal issues raised are potentially fundamental: if the parties never reached an agreement on important terms, is it appropriate to speak of a treaty having been reached? (137)

To date, the interpretive gulf between sharing and cession has not led parties to litigate claims that no treaty was formed, perhaps in part because such arguments would do little to advance First Nations interests. (138) Instead, the Samson Indian Band and Nation, for example, disputed the scope and meaning of only the land cession clause in the Victor Buffalo case, arguing that Treaty 6 was a treaty of alliance rather than land cession. (139) Justice Teitelbaum rejected their argument. Without addressing whether the Samson Indian Band and Nations characterization of the treaty was (historically) correct, we can notice that succeeding in their claim required more than proving their specific case. Succeeding required that Teitelbaum J accept a more fundamental reconfiguration of the basic layout of treaty history in Canada that instructs that, by its nature, Treaty 6 was a land cession treaty. While these labels hold no legal significance (as noted by Deschamps J in Little Salmon/Carmacks), and strong facts should overcome prejudicial academic descriptions, a narrative of treaties that does not summarily preclude the Samson Indian Band's argument would help lower the bar they have to meet. Moreover, a survey of treaty making in Canada should be capable of accommodating the interpretive dispute that the Samson Indian Band and Nation put before the Federal Court and claimed by many other First Nations. This dispute characterizes the history of Canadian treaty making as much as the treaties themselves.

The need to reshape treaty surveys to encompass both agreements and persistent disagreements, draws attention to the strong connections between law and history in this area. Consider John Borrows's argument that the Royal Proclamation is best understood as part of the Treaty of Niagara of 1764. As such, that the text of the Proclamation should be read in concert with First Nations understandings of the Proclamation upon which the Treaty of Niagara is premised and as memorialized by the wampum belts presented by the Crown to the nations gathered at Niagara. (140) This argument received a measure of recognition in the Chippewas of Sarnia case at the trial level, (141) but, in general, the Royal Proclamation continues to be interpreted as a stand-alone and unilateral legal instrument. (142) And although the Treaty of Niagara is recognized to be part of treaty history, Borrows's argument demands that Indigenous law and perspectives be taken seriously as part of official history, even if in contradiction to historical evidence regarding the Crowns actions and motivations. Borrows's argument is not that the Crown viewed the Royal Proclamations legal force as dependent on First Nations' consent at the Treaty of Niagara, but that the Royal Proclamation is not a legitimate source of Crown authority without their agreement. It is an argument that is simultaneously historical and legal: historical in its presentation of First Nations understandings of the Proclamation as embodied in the Treaty of Niagara, and legal in its argument that First Nations understandings, premised on their own legal systems, are significant to the continuing normative import of the Proclamation. The issue of under-inclusion thus shifts: Given the potential disagreements with Borrows's argument about the legal significance of the Treaty of Niagara, how and when should disagreements about the legal significance of that treaty be included within histories of treaties?

This question highlights the difficulty inherent in separating the historical view from the legal view in this arena. The identification of treaties in history begins from a view of what treaties are. That view is likely informed by the historical record itself--what "appears" to be a treaty based on the parties reported actions and words at the time. If historicism is the goal, then historians should rely on the historical understanding of what treaties were, including their legal and political significance, at the time the agreement was forged. If the inquiry is sparked by a legal case, then the historical narrative will respond to what present legal standards demand of treaties. In either approach, however, views of what constitutes a treaty and its legal significance are ultimately filtered through or contrasted with ideas of treaty in the present. And in either the historical and present-day legal view of treaties, the question of "whose law?" and "whose history?" must be part of the inquiry, requiring attention to potential differences between what Indigenous and Euro-Canadian traditions identify as treaties as well as their content and import.

Indigenous languages, as reviewed in the previous section, illustrate the legal aspect of the issue, particularly the resources within Indigenous languages (presumably historical as well as contemporary) for describing different forms of agreement and distinguishing between changeable and permanent aspects of treaty relationships. (143) Less examined is the variation and evolution of the meaning of treaties in English traditions. Patricia Seed notes that "[t]he word 'treaty' in English has an historically distinctive meaning compared to other European languages." (144) Where in other European languages, treaty comes from the word meaning dealing with someone face to face or personally, English was alone in that
   treaty also signified writing. From the fourteenth century, when
   the word first appeared in English, until the middle of the
   seventeenth century, "treaty" primarily meant a form of
   inscription: a story, narrative, written account, treating a
   subject in writing. As a result, any written agreement between two
   English subjects could and indeed was called a treaty, not just an
   agreement between states. Hence, while the earliest written
   agreements between English colonists and Native Americans were
   called treaties, at the time this word simply referred to the fact
   that the agreement (between individuals) was written down. The 1621
   pact between Massasoit, leader of the Pokanoket near the Plymouth
   colony, was labelled a treaty at the time. But that word does not
   necessarily mean an accord between nations or political authorities
   but only an agreement written on paper. (145)

Seed's observation confirms that the nature, or even presence, of polities behind 17th-century agreements cannot be assumed. Further, while the term treaty potentially signified differently in history, it was also not the only word used to describe what treaty surveys generally label as treaties today. As noted earlier, the Hudson's Bay Company instructed its officers to form "compacts" and to purchase their lands and rivers of the Indigenous peoples they encountered in accordance with their traditions. If purchase was not possible, officers were instructed to at least secure a "league of friendship and peaceable cohabitation" and the freedom to trade. (146) Other 17th- and 18th-century sources confirm that, in this era, the emphasis was on the desired relationship or aim--peace, amity, alliance, protection, friendship, trade, subjecthood--rather than on the form of "treaty" used to achieve it. (147) Later in fur trade country, the language of "settling a trade" described the seemingly more limited aims of the European trading companies when they sought out new trading partners and wanted to establish a trading post within their territories. (148)

Because the word "treaty" carries status in international and domestic law, both historically and contemporarily, the inclusive approach advocated for in this paper raises concerns about spreading that status thin and miscommunicating the legal significance of an agreement by artificially labeling all forms of agreements as treaties. (149) There is merit to considering what moments of agreement deserve the label "treaty" from both historical and contemporary perspectives. The aim of this discussion, however, is to make sure the variations within the different cultural and temporal conceptions of treaties--between fixed and variable agreements or aspects of agreements; between peace, alliance, and subjecthood; between written and oral--are accommodated within surveys of treaty-making experience. Such debates belong within treaty histories, but should not set boundaries around the proper field of inquiry or pre-emptively situate a given agreement within a particular category of treaties.

The second question, "whose history?", should also give us pause. Up to this point in the paper I have blithely assumed readers would understand my references to "history" to mean "academic history". Academic history is by no means a narrow field. It has been broadened by new methodologies such as ethnohistory, and the value of historicist expositions of the past have been challenged by intellectual movements, such as post-structuralism, subaltern and post-colonial and settler-colonial studies, as well as the emergence of memory, all of which question the scope for objectivity, attack positivist methodologies, and challenge the dominant linear, pointillist concept of time. (150) Oral histories (not Indigenous oral histories specifically) have played a significant role in these developments in democratizing the field of history, allowing for ground-up perspectives to also be viewed as authoritative. As Dipesh Chakrabarty has explained, the discipline of history is only one way among many of remembering the past. (151) Of particular interest for our purposes are the different temporalities contained within different approaches to history. Memory and many forms of oral history emphasize experience and the presence of the past today, while academic or traditional historical scholarship insists on drawing a line, on keeping "the past in the past." (152) The historicism of academic history demands an exploration of the specificity of the past as a "foreign country", which boasts the advantage of having "a greater capacity than 'memory' to provide other ways of seeing the world." (153)

Reliance on Indigenous oral histories attracts and exemplifies these debates and concerns. Like memory as a historical discipline, the reliability of Indigenous oral histories, particularly the potential or tendency of oral histories to "telescope" chronologies, has been challenged in both academic and legal forums. But, as many have pointed out, there are many forms of recalling the past caught by the term "oral history", and they are not all equal in how they remember the past or in their sense of historicism. (154) Nevertheless, Indigenous oral histories often exhibit a different truth claim than those put forward by traditional academic history. In particular, oral traditions are similar to law in that they often involve an element of moral evaluation as part and parcel of the claims of historical truth. (155)


Above, I canvassed problems in survey presentations of treaty history in Canada, and argued that treaty histories should be inclusive of more eras and geography as well as different historical methodologies and legal traditions. I have emphasized that in order to move beyond colonial perspectives in treaty histories, typologies and chronologies must not obscure ongoing disputes regarding treaty meanings. By contrast, I have presented disputed meanings as central to Canadas treaty-making experience--a corrective to legally-oriented narratives that emphasize treaties as settled forms of coexistence, the true meanings of which just need to be recovered in the present. I have also argued that fur trade history and the explosion of contemporary quasi-treaties also belong in our overall picture of treaty history, even if not all such agreements merit legal status as treaties on their own. From such starting points, treaties become a matter of incremental agreement, an iterative process of arriving at a working relationship and adjusting to changes of circumstance. Bringing such approaches into surveys of treaty making would better align survey histories with the constitutional narratives described in the first section, and would also provide a more accurate and fulsome picture of the experience of treaty making in Canada over time.

With an account of treaties grounded in an iterative development of relationships and arrangements for coexistence, we can imagine a different organizing principle for attempting to encapsulate our treaty history in short, survey forms. Within a continuum of treaty making, what distinguishes some treaties or agreements from others is the degree of departure from previous relationships and agreements. The question to ask in classifying the nature of a treaty is whether it was a turning point or a continuation of the relationship. Dorothy Jones provided this sort of analysis in her assessment of 18th-century American treaties, noting that by midcentury, there were two primary forms of agreement: "belligerency treaties.... in which the chief purpose was to mark the end of hostilities by exchanging prisoners and so on; and accommodation treaties, in which the terms of coexistence were given formal expression." (156) In other words, the treaties either changed the nature of the relationship by arriving at terms of peace, or the treaties clarified and supported the peaceful coexistence that was already in place.

Such an approach would not lead to easy categorizations. The historical experts in the Marshall litigation, for example, disagreed on exactly this question. Relying more on Mi'kmaq perspectives, William Wicken argued that in the context of the relationship between the Mi'kmaq and the British, the 1760-61 treaty in issue in the case must be interpreted in relation to the terms of an earlier treaty from 1726. (157) His argument was that the 1760-61 agreements were a renewal of the 1726 one. Stephen Patterson argued the opposite. Relying more on documentary evidence, he argued that the 1760-61 treaties renewed Mi'kmaq-British relations; that along with hostilities between 1726 and 1760, the 1760-61 treaties terminated and replaced the earlier agreement. (158) The 1726 treaty was still relevant in his argument, but as a baseline against which change can be evaluated. Such disagreements are productive, suggesting that how to organize and give a bird's-eye view of treaty histories may be contentious. An approach based on questions of continuity and change highlights that how one defines the relevant context and baseline for a given treaty will impact its interpretation. It also emphasizes that, regardless of whether a given agreement is better characterized as a renewal of terms of coexistence or a new or sharper reorganization of the terms of coexistence, the arrangements that were in place before matter. Under such an approach, surveys may not be able to give very much shape to treaty histories, but they would better convey the complexity and remarkable continuity of treaty making in Canada without the colonial hangover.
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Title Annotation:II. Treaties in History B. Taxonomies and Chronologies through C. Better Approaches to Treaty Histories?, p. 1111-1140; Canada; Law on the Edge
Author:Promislow, Janna
Publication:University of British Columbia Law Review
Date:Oct 1, 2014
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