History of Treaty Making
Module One: Treaty Trivia (October 24)
Module Two: History of Treaty Making (October 24)
Module Three: First Nation Elder (January 16)
Module Four: Indian Act (January 16)
Module Five: OTC Videos (October 24)
Module Six: On-line and Treaty Kit Resources (October
24)
Module Seven: A Look at Teacher Resources (October 24)
Module Eight: Treaty Essential Learnings (January 16)
The Indian Act of 1876 (Module Four)
In 1867, The British North America Act was passed, which gave the Government of Canada
jurisdiction over First Nations people and their lands. In order to fulfill its jurisdiction in this
area, Canada passed the Indian Act in 1876. Since its creation, the Act has regulated and
controlled many aspects of the lives of First Nations people across Canada. There is no direct
link between the Indian Act and treaties. The Indian Act was not discussed during any treaty
negotiations and First Nations people were not involved in its development and implementation.
Many First Nations view the Indian Act as a repudiation of the terms of treaty. The original
Treaty Commissioners for the Crown assured the First Nations that their way of life would
continue without interference and that the Queen was offering benefits on top of what they
already had. Treaties were seen as mutual agreements entered into for the shared protection and
mutual benefit of both parties – peaceful co-existence was key to the agreements.
Through the Indian Act, the government wanted to “civilize” First Nations people and to
assimilate them into Canadian society. The Indian Act imposed several restrictions on First
Nations people in order to meet these dual goals of civilization and assimilation. The conflicting
goals between what was discussed during the treaty negotiations and what was imposed by the
Indian Act caused poor relations between First Nations people, the Canadian Government and
other Canadians.
At the time the Indian Act was passed, the Government of Canada needed a regulating body to
implement its provisions so the created “Indian Affairs” as a branch of the Department of the
Interior. In 1880, the Indian Affairs Branch was separated from the Department of the Interior
and was given its own minister. Through the Indian Act, the Government of Canada “treated
First Nations throughout Canada as legal minors and approached them as a problem to be
administered… the DIA [Department of Indian Affairs] carried out a series of policies aimed at
political control, enforced economic transition, and cultural subjugation and assimilation.”¹ The
“implementation of this Indian Act made it clear that the government regarded itself as the
guardian of Indian minors.”²
Today, the federal department responsible for First Nations people and their lands is known
simultaneously as the Department of Indian Affairs and Northern Development (DIAND) and
Indian and Northern Affairs Canada (INAC). It is still responsible for implementing the
provisions of the Indian Act.
¹ Ray, Arthur J., Jim Miller and Frank Tough, Bounty and Benevolence: A History of Saskatchewan Treaties
(Montreal: McGill-Queen's University Press, 2000, at 202)
² Price, R.T., Legacy: Indian Treaty Relationships (Edmonton: Plains Publishing Inc., 1991, at 64).
Precedents to the Indian Act
After Confederation, the Dominion of Canada passed the first Indian Act as part of its authority
that it had assumed under section 91(24) of the BNA Act, 1867. The Indian Act, 1876³ was a
consolidation of pre-existing colonial legislation including the Gradual Civilization Act passed in
1857 and the Gradual Enfranchisement Act passed in 1869. The 1876 Act's full title was “An
Act to amend and consolidate the laws respecting Indians.”
The Gradual Civilization Act assumed that if First Nations people owned individual property,
they would become industrious and self-reliant. The Act generally stated that:
“any Indian, if he was male, free of debt, literate, and of good moral character,
could
be awarded full ownership of 50 acres (20 hectares) of reserve land, and would thereby be
enfranchised. He would then cut his tribal ties and cease to be an Indian. The goal of full
civilization through enfranchisement of
individuals was to be accompanied by the
disappearance of Aboriginal communities... Enfranchisement had attracted very few qualified
candidates
and the tribal governments and their leaders were seen as obstacles.”
The Gradual Enfranchisement Act “greatly increased the degree of government control of onreserve systems. There was to be very little meaningful Aboriginal participation in their own
governance...the superintendent general of Indian Affairs decided the time, manner, and place of
the el
-Canadian) governing system as encouraged, and
continued in the 1876 Indian Act and beyond.
The Indian Act was not intended to carry out the terms of the treaties negotiated with First
Nations. First Nations people were not consulted or involved in its creation. Rather, it was
intended to carry out the assimilation policy of the Government of Canada through administering
First Nations people and their lands, regulating interactions between First Nations and the
settlers, and promoting assimilation into Canadian society. Provisions of the 1876 Act covered
such matters as:
 defining who “Indians” were
 providing for enfranchising First Nations people
 administering reserve lands
³ S.C. 1876, c.18 (39 Vict.).
Aboriginal People and Colonizers of Western Canada to 1900 (Toronto: University of
Toronto Press, 1999, at 116).
Ibid., p.116
 managing sales of timber
 administering band moneys
 determining the processes of leadership selection (through chief and council elections)
 regulating intoxicants
 prohibitions on certain activities.
The Indian Act, 1876
Citizenship versus “Indian status” under the Indian Act
Since 1876, the Indian Act has been revised on a regular basis to carry out the government's
assimilation policy. One example of the assimilation policy was the government's policy of
encouraging First Nations people to enfranchise. Enfranchisement meant the giving up of status
under the Indian Act and taking up the same rights and privileges as other Canadian citizens.
Enfranchisement was originally introduced as a voluntary program, however, First Nations
people did not respond so enfranchisement became compulsory to certain people, such as:

First Nation women marrying non-First Nation men (even though First Nation men
marrying non-First Nation women did not similarly lose status)

children of First Nation women and non-First Nation men

people who had lived off the reserve for more than five years, or

people who had obtained higher education.
As a result of these provisions, many First Nations people involuntarily lost their status and
membership with their First Nations. In 1920, Duncan Campbell Scott, Superintendent General
of Indian Affairs, exposed the intent of Canadian policy to assimilate First Nations into Canadian
society, when he said to Parliament:
Our object is to continue until there is not a single Indian in Canada that has not
been absorbed into the body politic and there is no Indian Question.6
It was not until 1985 that the Indian Act was revised through Bill C-31 to eliminate these
provisions.
Cultural heritage
Provisions were introduced into the Indian Act in 1884 that were designed to discourage and
punish First Nations people for participating in cultural practices such as dancing. The first of
many arrests under what was referred to as the Potlatch Law was made in 1889.7 In subsequent
amendments, bans on participation in ceremonies such as festivals, dances, sun dances, or
giveaways were introduced. They were not lifted from the Indian Act until its 1951 revision.
Residential schooling
In 1894, provisions of the Indian Act provided for compulsory school attendance of First Nations
children and for the operation of industrial or boarding schools. From 1883 until 1923 the
Government of Canada funded industrial and boarding schools, run by a variety of churches. In
1923, these schools became known as residential schools. These schools were created as part of
the government's assimilation policy and were intended to focus on children by systematically
eliminating First Nation cultural beliefs and practices from a young age. Parents were faced with
fines or jail sentences if they tried to prevent their children from being removed from home to go
to these schools.8
Administrative powers of the Department of Indian Affairs
By 1880, the Department of Indian Affairs was created to administer the Government of
Canada's responsibilities under the Indian Act.9 Indian Agents were appointed to regulate and
enforce the Indian Act and provided agricultural or trades training for the men. The wives of the
Indian Agents taught First Nations women how to take
care of their homes, plant gardens and take care of livestock. Indian Agents had decision-making
power over every aspect of life on the reserves. By 1880, they were given judicial powers as
justices of the peace as well.
New process for leadership selection
In 1869, the Government of Canada introduced the Chief and Council system of government to
replace traditional forms of First Nations governments. This system was continued in the 1876
Indian Act under sections 61-63.10 Band Council responsibilities were established by the
Government of Canada. Band Council systems of government enforced the rules and regulations
created under the Indian Act. Most First Nations were no longer able to select their leadership
through their own customary processes.
6
Cited in Royal Commission on Aboriginal Peoples, Volume 1: Looking Forward, Looking Back, Report of the
Royal Commission on Aboriginal Peoples (Ottawa: Minister of Supply and Services Canada, 1996, at 183).
K. Pettipas, Severing the ties that Bind – Government Repression of Indigenous Religious Ceremonies on the
Prairies (Winnipeg: The University of Manitoba Press, 1994, at 93.)
7
8
An Acting respecting Indians, R.S.C 1906, c. 81, s. 10.
9
S.C. 1880, c. 28 (43 Vict.)
Prohibitions
In response to the North West Resistance11 of 1885, the Government of Canada introduced
provisions in the Indian Act imposing penalties for inducing First Nations people to breach the
peace. The sale or gift of ammunition to First Nations was also prohibited with a penalty of fine
or imprisonment.12
Section 1 of the 1880 Indian Act introduced penalties for purchasing produce from Indians.13 A
permit system required First Nations people to obtain written consent from an Indian Agent to
sell any livestock, wood, hay, or personal possessions.
A pass system that forced First Nations people to obtain consent from an Indian Agent to leave
their reserves was enforced after the 1885 Resistance as a form of control over First Nations
people and their activities. Though it was never a specific provision of the Indian Act, the pass
system was enforced by Indian Agents after the Resistance of 1885 and persisted as a policy on
the Prairies as late as the 1930s.
Contemporary Indian Act
The Indian Act continues to exist today as a piece of federal legislation. The Indian Act continues
to regulate, manage and direct many aspects of the lives of First Nations people across Canada.
Many of its provisions today are the same as those included in the 1876 Act including education,
membership, elections for Band government, taxation, liquor restrictions, and management of
First Nations lands and resources. Currently, the federal government is undertaking a review of
the Indian Act for the purpose of amending it. A complete viewing of the Indian Act can be
found at the INAC website at www.inac.gc.ca.
Conclusion
Despite the control that the Indian Act had over the lives of First Nations people, many resisted
the restrictions imposed on them. Many did not give up traditional leadership, they continued to
practice their spiritual ceremonies in secret, and they refused to follow the rules dictated by
Indian Agents.
Major amendments were made to the Indian Act in 1951 and in 1985. The 1951 amendments
removed some of the interfering and coercive provisions in the legislation including the banning
of dances and ceremonies, and the prohibition on giving or soliciting money for the pursuit of
claims against the government.
10
S.C. 1869, c. 6 (32-33 Vict.)
The “North West Resistance of 1885” is commonly called the “North West Rebellion” or the “1885
Rebellion.” However, Métis people believe that they were defending their land and “resisting” an
attack by the Canadian Government and army. For the purposes of this activity, the terminology
used will reflect the Métis perspective.
12
An Act to further to amend “The Indian Act, 1880” S.C. 1884, c.27 (47 Vict.), s.2.
13
An Act to amend “The Indian Act, 1880” S.C. 1881, c.17 (44 Vict.).
11
The major change to the Indian Act in 1985 occurred as a result of what is known today as Bill
C-31. Bill C-31 allowed First Nations women to marry non-status or non-First Nations men
without losing their “Indian Status,” and allowed those First Nations women who had previously
lost their status through marriage and those individuals who had lost their status through
enfranchisement to apply to have their “Indian Status” reinstated.
Since entering into treaty with the Crown, First Nations people have faced many problems and
endured much difficulty. The government has imposed its legislation and policies on First
Nations, there have been several disputes over the meaning of the treaties, and the treaty
relationship has not been fully acknowledged or implemented. However, despite these problems,
First Nations leaders continued to advocate for treaty implementation. Many members of
the First Nations communities continued to maintain ties to traditional way of life. The
political leadership of treaty First Nations has
evolved and survived along with the
spiritual, cultural and social systems inherent within First Nations communities. In turn,
policies of the federal government have also evolved and changed over time. Today, the
Treaty First Nations in Saskatchewan, in partnership with the Government of Canada
and
Saskatchewan, have initiated dialogue and are building upon their common
understanding about the treaty relationship.14
14
Office of the Treaty Commissioner, Statement of Treaty Issues: Treaties as a Bridge to the Future
(Saskatoon: Office of the Treaty Commissioner, 1998, at 29)
Treaty Provisions, Government Policies and Assimilation Initiatives – 1876 to
1951
Policy
Treaty
Provision
Indian
Act Assimilation
Provision
Initiative
✔
Ban on gatherings, ceremonies, dances, singing
Federal residential/industrial schools run by
churches
Reserves for First Nations
Farming as a new economy
Education
Treaty Provision Canadian
Restricted by the Government’s
Indian Act
Intentions
✔
✔
✔
✔
✔
✔
✔
✔
✔
✔
✔
Elected leadership
Churches on reserves
✔
Indian Agents on reserves
✔
✔
✔
✔
✔
✔
✔
✔
Pass System
✔
Permit System
✔
✔
✔
✔
✔
✔
✔(restricted by
Provincial laws)
Hunting, fishing, trapping
Indian Agent teaches First Nation men trades
and agricultural skills
✔
✔
Indian Agent's wife teaches First Nations
women European household and gardening
skills
✔
✔
Ban on traditional clothing in residential
schools
✔
✔
Not allowed to seek legal counsel for claims
against the Government of Canada
✔
Enfranchisement, loss of First Nations treaty
status
✔
✔
✔
✔
✔
✔
✔
✔
Citizenship – no voting privileges
Residential and industrial schools teach
European values and enforce strict adoption of
English and Christianity
✔
EXECUTIVE SUMMARY OF TELS (Module Eight)
The Office of the Treaty Commissioner, with its partners, has embarked on an education
program to build greater harmony in Saskatchewan by improving the understanding of the
treaties and the treaty relationship. With this in mind, the OTC has set about the task of
identifying a set of Treaty Essential Learnings (TELs). The TELs are those topics, concepts and
understandings of treaties and the treaty relationship that students should be expected to know by
the end of Grade 12. The Treaty Essential Learnings are organized into the following:
TREATY ESSENTIAL LEARNING #1: THE TREATIES introduces the treaties and
answers the questions: who, what, where, when and why. To become familiar with the intentions
of treaties there is need for a better understanding of the implications of the treaties. This
learning will introduce the treaty partners of the numbered treaties that cover Saskatchewan.
TREATY ESSENTIAL LEARNING #2: THE TREATY RELATIONSHIP continues from
the treaties to emphasize that the treaties established a new relationship. The treaties outlined
how this relationship was to be honoured and maintained for peace and good order. Both parties
to the treaties agreed to responsibilities which would nurture the treaty relationship.
TREATY ESSENTIAL LEARNING #3: THE HISTORICAL CONTEXT OF TREATIES
is a chronological list of historical events which affected First Nations peoples and the treaty
making process. During the time of treaty-making, the government implemented other policies
directed at First Nations peoples. Many of these policies have had negative intergenerational
effects. Understanding the historical events will lead to a more informed perspective of the
treaty-making era.
TREATY ESSENTIAL LEARNING #4: WORLDVIEWS gives the reader a better
understanding of the differing worldviews of the treaty partners. It is essential to understand the
worldviews to understand the differing perspectives involved when interpreting the treaties for
implementation.
TREATY ESSENTIAL LEARNING #5: SYMBOLISM IN TREATY-MAKING explains
the significance of the objects and actions used in treaty-making. The meanings of the symbols
are explained.
TREATY ESSENTIAL LEARNING #6: CONTEMPORARY TREATY ISSUES is a
compilation of some of the issues that have arisen since the time of treaty-making. If the reader
has a good understanding of the first five treaty essential learnings they will have enough
knowledge to make the connection to the contemporary issues. This greater understanding will
equip the reader to make accurate observations of the treaty relationship.
(The pdf of the booklet is saved in the teacher directory as TELS We Are All Treaty People)
Op-Ed: The treaty
relationship must evolve
By Richard Van Loon, Ottawa Citizen January 4, 2013
Photograph by: MICHEL COMTE , AFP/Getty Images
Website:
http://www.ottawacitizen.com/news/treaty+relationship+must+evolve/7777079/story.html#ixzz2
HhVLuaTR
The banner heading of the Idle No More web page reads:
“Idle No More calls on all people to join in a revolution which honors and fulfills Indigenous
sovereignty which protects the land and water. Colonization continues through attacks to
Indigenous rights and damage to the land and water. We must repair these violations, live the
spirit and intent of the treaty relationship, work toward justice in action, and protect Mother
Earth.”
Samuel de Champlain would have understood.
Four hundred years ago, on May 27, 1613, Champlain left Montreal heading, for the first time,
up the Ottawa River, which he called the River of the Algoumequins. The next day he met 15
canoes of the “Quenogebin Nation,” who also lent him a guide. When he passed what we call the
Gatineau River, his guide informed him that the “Petite Nation des Ouesharini” lived there. He
met another Algonquin nation, the Matou-ouesharinia on Lac des Chats and another group at
Muskrat Lake. His outward journey ended June 10 at Allumette Island after a meeting with the
Algonquin war chief Tessouat, a man much respected by Champlain and, in those days, at least
as famous throughout the Ottawa-St. Lawrence valleys as Champlain himself.
Champlain always referred to the various tribal groupings he met as nations, a term used
continuously by European colonists until the mid-19th century. Champlain knew, as did anyone
who ventured across North America over the next 250 years, that these nations controlled the
territories, were essential to the travellers’ survival, had to give permission for the presence of
outsiders and deserved respect.
After the conquest of New France by Britain, the British government saw fit to issue a Royal
Proclamation governing the relationships between “the several Nations or Tribes of Indians with
whom We are connected, and who live under our Protection.” The proclamation went on to say
“if at any Time any of the Said Indians should be inclined to dispose of the said Lands, the same
shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said
Indians.”
What does this have to do with the Idle No More movement? Well, the indigenous sovereignty
and the treaty relationships to which Idle No More refer have their roots in these historical facts
and in a deep historical relationship too often ignored today.
In fact, treaties of one kind or another were a feature of First Nation-European relationships
almost from the start. Initially they were oral undertakings, but not less valid because of that.
Later, by the start of the 18th century, Europeans were inclined to write down what they called
treaties of Peace and Friendship. For the First Nations, oral undertakings were usually sufficient
and, as long as the power balance between the two sets of civilizations was equal or favourable
to the First Nations, they worked well enough.
But times changed. Pestilence decimated First Nation populations. The fur trade declined. The
buffalo disappeared. Starvation and hardship threatened. The terrible example of Americans
killing thousands of Indians south of the border frightened those to the north. And population
pressures from the east and Europe as well as desire for resources on First Nation lands all
conspired to tilt the balance. The great period of land cession and treaty signing was about to
begin.
There had been about 30 land treaties in Upper Canada before Confederation. Most were
negotiated in accord with the Royal Proclamation to free up land for settlers. They were often
made hastily and without First Nations understanding of what they surrendered.
Misunderstandings inevitably arose and often persist to this day, not least since governments
often did not respect even the written texts they had promulgated.
The first major treaties west of Upper Canada were the Robinson Huron and Superior Treaties of
1850. Motivated by the discovery of mineral deposits north of the upper lakes and by the
difficult situation of the northern Ojibway tribes, the Robinson treaties covered the lands
between the upper lakes and James Bay watershed, creating a template followed in treaty
signings across the west and still, in some important ways, followed today.
Then, between 1871 and 1906, 10 “numbered treaties” were quickly negotiated, covering all of
Manitoba, Saskatchewan and Alberta. Treaty 11, covering parts of the Northwest Territories, was
completed in 1921. In all of these, First Nations were required to “cede, release, surrender and
yield up to the Government of the Dominion of Canada, for Her Majesty the Queen and Her
successors forever, all their rights, titles and privileges, whatsoever, to the lands included within
the following limits” in return for land, money, equipment, supplies, some services such as
schools and the “right to pursue their avocations of hunting and fishing throughout the tract.”
For years afterwards, more remote bands continued to join these treaties. For example, Chief
Theresa Spence’s band, Attawapiskat, did not adhere to Treaty 9 until 1935.
All these treaties have been bedevilled by problems. Governments sold off reserve land to
outsiders, often without adequate consultation with residents. Treaty land entitlements were not
always fulfilled, or the land provided was not that agreed upon. Resource revenues from reserve
lands, supposed to be managed in trust by government for the benefit of residents, were
mismanaged. Since explanations to First Nations about what treaties entailed were often
incomplete or even deliberately misleading, misunderstandings were frequent.
A particularly vexatious example now revolves around the commitment that First Nations will
continue to have the “right to pursue their avocations of hunting and fishing throughout the tract”
that is, on their traditional lands. This right is central to First Nations’ identity but can be
meaningless if land and water quality are not protected. So it is hardly surprising that the issues
at the heart of the Idle No More movement include the current government’s declaration that
most waters formerly protected under the Navigable Waters Protection Act will no longer be
protected, as well as its other environmental failings.
These problems, particularly as they relate to reserve land, have led to a vast number of legal
claims and to a “specific claims” process with a formal negotiating protocol. But hundreds of
claims remain unresolved. While both sides can be at fault, the lack of resolution can be much
more important to the First Nations than to government. Understandably, frustration frequently
boils over.
Since 1982, treaty and aboriginal rights have been constitutionally protected. While this sounds
impressive and while the courts have more often than not sided with First Nations, constitutional
protection has often meant much more to First Nations than governments are willing to concede.
Meanwhile much of Canada, including most of B.C., much of the North and, perhaps
surprisingly, much of the Ottawa Valley, was not covered by early treaties. A modern treaty
process called Comprehensive Claims has therefore evolved. It has had some important
successes starting with the James Bay and Northern Quebec Agreements in 1975 and continuing
through much of the Northwest Territories, Yukon, Nunavut and coastal Labrador. The recent
agreement in principle with Ottawa Valley Algonquins is also an important step toward a modern
treaty.
But the Comprehensive Claims process is also problematical. First, most of B.C. is not yet
covered. Hence aboriginal title and rights, terms subject to much debate, apply to most of the
province. Resource development of many kinds, including pipelines, probably cannot proceed
without extensive consultations with First Nations and, probably some form of their consent.
Second, the process is terribly slow and expensive: even successful agreements can take decades.
This can be frustrating, but it must be understood that the entire lives of First Nation and Inuit
peoples are bound up in these agreements, the legalese is unfamiliar to most of those affected
and the requirement to give up rights can be frightening. Of course, First Nations will move with
great caution, especially since the record of non-native compliance is less than stellar.
Third, a modern Comprehensive Claim agreement can be hundreds of pages long and
negotiations can involve thousands of hours of consultation and explanation. With so much
detail, and with such great importance to all those involved, disagreements are frequent.
Fourth “final agreements” are not always ideal in changing circumstances. Even the most
recently negotiated agreements are subject to demands for changes. And not surprisingly, court
challenges are not uncommon.
So, what is to be done?
First, we should not be surprised that disagreements occasionally boil over into demonstrations.
They are a legitimate way for people who feel, often correctly, that their rights are not
recognized by governments which often do not share their sense of either the importance or the
urgency of dealing with problems. First Nation demonstrations will be a feature of the Canadian
landscape and as long as grievances persist.
Second, we must recognize that many, though certainly not all, of the grievances are legitimate.
They will never all be resolved, but we must continue to work at them.
Third, while the federal government acknowledges its formal responsibility for treaties and on
reserve First Nations people, it does not usually recognize what this entails. These are the federal
government’s special citizens. Hiving off responsibility for them in one or two departments with
the prime minister making occasional cameo appearances is not enough. Certainly, his agreement
to meet with a delegation of First Nations leaders on Jan. 11 is promising, provided he really
remains for “a working meeting.”
But most important, governments and non-First Nation citizens must understand that the First
Nation view of treaties is different and, in some ways, more defensible and realistic than ours.
Governments love certainty and so view treaties as a “deal.” It is negotiated and finalized. Then
it is over and done.
First Nations and Inuit view treaties as a relationship between them, the original nations of North
America and later arrivals. The relationship requires constant work and must evolve with
circumstances. It is never settled: it is simply ongoing. If governments and non-aboriginal
society can recognize that relationship with generosity and flexibility, we will live better
together.
Richard Van Loon is a former associate deputy minister for Indian Affairs and Northern
Development.
1. Choose the most important word.
2. Choose the most important line or phrase.
3. Draw a visual representation of the article.
Be prepared to explain your choices to the rest of the large group
Give One; Take One
What do you think is the most important thing you’ve learned
about treaty?