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Treaties And Treaty Rights

Delia Opekokew

Delia Opekokew
The following document was prepared by Delia Opekokew and researched by Stuart Raby for the Assembly of First Nations. This paper outlines the treaty position to be followed throughout the constitutional negotiations.

I BACKGROUND A treaty is a binding, legal agreement between two or more sovereign nations. Treaties have been utilized as long as nations have existed. Indian Nations made treaties with other Indian Nations long before non-Indians came to North America. Treaties are made because of the need for mutual understanding and agreement. Usually, the subject matter of treaties relates to one of the following:

  1. Peace and Friendship
  2. Military Alliance
  3. Boundaries
  4. Trade

Indian peoples, therefore, clearly entered into treaties with the Europeans on a nation-to-nation basis.

The treaties entered into with the Europeans which are relevant for our purposes include the following:

  1. Maritime Treaties - Peace and Friendship Treaties between allies. The terms include the preservation of hunting and fishing rights secured to the Indian nations.
  2. The Jay Treaty of 1794 which secured to the Indian people the right to cross the United States-Canada border freely with their possessions.
  3. Iroquois and Dakota Treaties of Alliance with the British Crown. The Iroquois acquired lands where they were guaranteed their independence (sovereignty) under the protection of the Crown.
  4. Those with the Hudson's Bay Company, being treaties purportedly involving land cessions.
  5. Treaties in Ontario and the West, which commenced in the late 18th century after the American Revolutionary War, and include the "numbered" treaties of southern Canada. These latter continued up to the adhesions made to them in the 1970's.
  6. Northern treaties of Peace and Friendship, which include the North West Territories portions of Treaty 8 and 11, and Treaty 9, in that the land cession terms are regarded as fraudulent.

The Crown clearly entered into the majority of these treaties to extinguish Indian rights to the land, whereas the Indian nations entered into them to establish peace between themselves and the non-Indians, and to obtain guarantees of protection over their way of life. The lands that were not surrendered were to remain as dominions self-governing". They were to preserve their internal sovereignty under the Imperial Crown and jurisdiction over other lands was to be shared.

While the non-Indian settlers comprised a small struggling community, the Europeans respected the sovereignty of the Indian nations. Since treaties are, by definition, only entered into between two or more sovereign nations, they are historical proof that the Crown recognized the sovereignty of Indian nations. However, this principle has continued to be undermined in the Canadian courts. In particular, the motives of the Crown are the only ones to have been taken into account; the Indian motives have only recently been accorded some slight consideration.


It has been stated in Canada, legally, that the Indian treaties are neither international in character nor are they simple private contracts. Neither are they analogous to legislative enactments. However, it has been stated that a court would consider both parties bound by the terms of the agreements, regardless of any formal difficulties in fitting the Indian treaties into a traditional legal framework of Canadian law.


Prior to section 88 of the Indian Act having been enacted in 1951, the leading case regarding the question of what constituted a binding treaty was R. v. Syliboy. In dealing with the contention that a Maritime' Treaty of 1752 was not a valid treaty, the court utilized criteria developed in international law. The court first noted that to be legally binding a treaty had to be ratified by the appropriate legislative body. Furthermore, according to the court, the treaty was not a binding agreement, because the two parties to it were not independent nations. And the Governor of the Province of Nova Scotia had not been given authority by Great Britain to enter into a proper treaty.

In other words, the Indian parties were judged not to have the capacity to enter into treaties: Treaties are unconstrained acts of

Treaties And Treaty Rights

Delia Opekokew

independent persons. But the Indians were never regarded as an independent power...Indeed, the very fact that certain Indians sought from the Government the privilege or right to hunt in Nova Scotia as usual shows that they did not claim to be an independent nation owning or possessing their lands. If they were, why go to another nation asking the privilege or right and giving promise of good behaviour that they might obtain it? In my judgement, the treaty of 1752 is not a treaty at all and is not to be treated as such; it is at best a mere agreement made by the Governor and council with a band of Indians giving them in return for good behaviour food, presents and the right to hunt and fish as usual.

After 1951, with the passage of section 88 of the Indian Act, the criteria needed for an Indian treaty to constitute an enforceable obligation were changed. It is no longer necessary to meet the rigorous qualification of an international compact. All that is required is that the document in question be a "treaty" within the meaning of s.88, which states: Subject to the terms of any treaty any other Act of the Parliament of Canada, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province.

In Francis v. The Queen it was ruled that the term "treaty" in section 88 refers only to Indian treaties and not to international agreements such as the Jay Treaty. Later, in White and Bob, the Supreme Court of Canada accepted that a document of an informal nature constituted a valid treaty within the meaning of section 88. The court agreed that, . . "In the section (i.e. section 88), "Treaty" is not a word of art and in my respectful opinion, it embraces all such agreements made by persons in authority as may be brought within the term word of the white man. . .'".

White and Bob, therefore, broadens the scope of enforceable treaties within the meaning of section 88 of the Indian Act.


Until the last twenty (20) years, Canadian courts have tended simply to apply the rules of interpretation developed in other areas of law. However, recent case law is developing special rules to construe Indian treaties in favour of the Indians. These rules follow to a degree the special canons of constrution related to Indian treaties developed by the United States' courts.

In R. v. White and Bob the rule in the America case of Worcester v. Georgia was affirmed, that, "The language used in treaties with the Indians should never be construed to their prejudice". This was recently reaffirmed in Nowegijick v. Her Majesty the Queen by the Supreme Court of Canada on January 25, 1983:

It is legal lore that, to be valid, exemptions to tax laws should be clearly expressed. It seems to me that treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians. If the statutes contains language which can be reasonably be construed to confer tax exemption, that construction, in my view, is to be favoured over a more technical construction which might be available to deny exemption. In Jones v. Meehan, 175 U.S.1, it was held that Indians treaties must be construed, not according to the technical meaning of their words, but in the sense in which they would actually be understood by the Indians.

The Canadian courts have also allowed oral evidence to be admitted to the record. The willingness to consider all relevant circumstances when interpreting treaties, including promises not included in the body of the text, is a new development. In R. v. Taylor and Williams, the Supreme Court of Canada on December 21,1981, accepted the Ontario Court of Appeal's decision that the Treaty No. 20, signed in 1818, which includes the oral terms recorded in the minutes of the Council Meeting which preceded and followed the signing of the Treaty, preserves the historic right to hunt and fish on Crown lands in the area covered by the Treaty. The records not included in the written portion provided evidence of additional terms. This ruling furthers the Indian argument that all terms were not properly recorded.

However, the recent case of The Queen v. Secretary of State (the Indian Association of Alberta case), handed down on January 28, 1982 by the Court of Appeal (England), regressed because the motives of the Indian people at the time of Treaty-making were not properly advanced and therefore, could not be considered. The Canadian courts had recently been careful to note Indian motives.

In the Indian Association of Alberta case, the court had specifically inquired as to the status of Indian political development at the time of treaty-making. The lawyer representing the Indian Association of Alberta replied they were simple societies", and that they did not develop political competence until the 1950's. Because of this information, the court had little opportunity to rule other than that: ...although the relevant agreements with the Indian peoples are known as "treaties", they are not treaties in the sense of public international law. They are not treaties between sovereign states, so that no question of state succession arises.

This point of the lack of capacity in the Indian nations attacks the heart of our position that treaties are of an international nature because our people were nations who agreed to the treaties in exchange for peace and friendship, military alliance, boundaries, and/or trade, and reserved their internal sovereignty. If they were not capable, then they were uncivilized and as such had no sovereignty they might retain to themselves. Because only one side's motives have been given the full force of law, then Indian treaty law in Canada is based on one sided legal canons.

However, the courts' recent development to accommodate Indian motives following United States case law may be a step towards the consideration of inherent Indian nations' sovereignty as it has been accepted in the American case law.



The Indian peoples of Canada and the United States generally have a common view that the exercise of the treaty-making power by Great Britain and the United States is in itself the recognition of an Indian group (whether designated band, tribe, or nation) as an independent, sovereign power.

The United States Supreme Court in Worcester v. Georgia, stated that international law is invoked by the Europeans when entering into treaties with the Indians:

The words "treaty" and "nation"

Treaties And Treaty Rights

Delia Opekokew

are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and understood meaning. We have applied them to Indians as we have applied them to other nations of the earth: they are applied to all in the same sense.

Throughout the political history of Indian nations and the colonial powers, the struggle over which government would prevail in a particular situation has been crucial. Which power may exercise sovereign powers has sometimes been determined by military force, and at times by political arrangements in the form of treaties and agreements. The result of these struggles was that powers were dispersed among the various units of government. Indian governments reserved power to themselves in certain situations: ". and they will maintain peace and good order between each other, and also between themselves, and other tribes Indians..." (Treaty #6, 1876)

It becomes important to understand Indian motivations as to the true terms of the treaties. The point to remember, however, is that all of the powers were once held by the Indian nations, not the Canadian or any other government. Whatever powers the federal government may exercise over Indian nations it received from them, not the other way around. What then did Indians give to the Canadian Government, and what did they retain for themselves? Because the motives of Indian people are not in the written text, they must be inferred from speeches recorded at the treaty councils or through oral history. Furthermore, Indian motives have to be understood in the context of specific Indian cultures, the conditions of the day such as local policies, and the strength or understanding of the Indian nations, all of which affected the consensual nature or otherwise of the written treaty or agreement, or of promises which were not properly recorded. Such variables are the evidence by which we can understand the acceptance or not of the treaty terms.

Many of the treaties cited earlier have received recent comment from Indian leaders, particularly from those appearing before the House of Commons' Committee on Indian Self-Government. Their history, and the recent comments will be dealt with in brief. No current Indian opinion is at hand on the Hudson's Bay Company treaties in Manitoba and British Columbia, and in any case these matters are subsumed into later treaty and aboriginal rights claims.

1. Maritime Treaties

The present provinces of Nova Scotia and New Brunswick were areas of British and French competition for control until the matter was resolved through the fall of New France in 1760. Continuous British authority was asserted in most of the area through the Treaty of Utrecht (1713), but from then until the end of the century there was intermittent hostility between the Indian Nations and the British, with French support on the side of the Indian inhabitants. Treaties were used throughout this period in the broad region in efforts to achieve peace with the Indians.

In the first, that of 1693, the Indians affirmed their unity and friendship with the English, and agreed to abandon and forsake the French interest. The English Crown's Dominion over Nova Scotia and New Brunswick was acknowledged in the written 1725 treaty, being confirmed in later documents, as was a mutual commitment to peace. There were promises of material aid to the Indians, and confirmation of hunting and fishing rights. The treaties included, too, promises that settlers would be able to reoccupy, peaceably, lands which they had settled, there was no surrender of tribal territory, nor any system set up for transferring Indian land rights.

Indian rights were acknowledged in a Proclamation of 1762, under which the Crown was determined to "keep inviolable the treaties and compacts." Land rights might be acquired from the Indians under the terms of the 1763 Royal Proclamation, but treaties under its conditions have not been executed in the Maritime Provinces.

2. Jay Treaty

The peace treaty which concluded the American Revolutionary War did not address the rights of the Indian nations allied to the British Crown. These nations' territories in the Ohio Valley - Lower Great Lakes area were cut by the new boundary agreed under the treaty. The serious omission of actions on this brought renewed tension and hostilities on all sides. An attempt to deal with this and other problems was through the Jay Treaty of 1794, though the Indian nations were party neither to the negotiations nor the signing of it.

Under Article III of the Jay Treaty there was recognition between Britain and the United States that Indian people should continue to enjoy the rights of free passage and freedom from duty on their personal goods at the Canadian-United States border. The treaty also applied to "the respective territories and countries of the two parties on the continent of America."

The War of 1812 between Britain and the United States was concluded through the Treaty of Ghent. The United States agreed to terminate hostilities with the Indians, and was "forthwith to restore to such tribes or nations, respectively, all the possessions, rights, and privileges which they may have enjoyed or been entitled to in 1811, previous to such hostilities." This includes Indian rights under the Jay Treaty; thus that treaty has not lapsed. But these rights have not been given legislative expression by Canada, and have not been recognized by courts in this country. The right of North American Indian people to travel freely across their traditional lands is a part of their self-determination, and those rights should also include legal exemptions from requirements of immigration, registration of aliens, work permits, deportation and other restrictions present in Canadian law. The United States having ratified the Jay treaties now extends these rights to North American Indians born in Canada whereas the Canadian government does not.

3. Pelagic Treaty

Please note that another treaty, the Pelagic, signed by Great Britain, the United States, Japan, and Russia recognized Indian rights, in this case, the right to hunt fur bearing animals.

4. Iroquois and Dakota Treaties

Iroquois and Dakota sovereign independence was acknowledged in a number of treaties made with the British Crown during the eighteenth and early nineteenth century. In particular, Britain agreed to reserve to their Iroquois allies their independence within Briths North America after the American Revolution. This was fully in keeping with the political and legal relationships which had developed between the Crown and the Iroquois.

British promises of protection and compensation were extended to the Six Nations through the American Revolutionary War and its aftermath of contention over the Ohio. Under a treaty guaranteeing security for con-

Treaties And Treaty Rights

Delia Opekokew

tinued Six Nations independence, territorial rights were acquired by Britain in 1784 in lands on the Grand River in what became Southern Ontario.

5. Ontario and The West

The treaties made by the Crown and the Indian Nations of Ontario and the West, like earlier ones made in the Ohio with the Iroquois and other nations, are formal recognitions of Indian sovereignty. As the Grand Council Chief of the Anishingbek Nation put it to the Committee on Indian Self-government this March, "We began our relationship with the Crown on an equal basis, as evidenced in the Royal Proclamation of 1763 and in the signing of treaties both before and after Confederation. we want to continue our relationship in the same government-to-government fashion..." (28th March, 1.983) The Proclamation established an Imperial statutory basis for a treaty-making process for land and political negotiations and transactions between the Crown and the Indian Nations, without interfering in the internal affairs of those nations.

After the American Revolutionary War, with the influx of settlers into what has become southern Ontario, Indian treaties were concluded within the framework of the Royal Proclamation. A sequence of over thirty treaties (including four with the Six Nations) had been concluded by the mid 1830's. Four more were signed between 1850-1862, from which there is clear continuity to the so-called "numbered treaties" of north-western Ontario and the Prairie provinces. The Chippewa and Mississauga Treaties, relating to lands bounded by Georgian Bay, Lake Ontario and the Ottawa River, date from 1923. Adhesions to the "numbered treaties" were made in recent years.

Before the same House of Common Committee on Indian Self- government, Chiefs from Ontario, as from further west, consistently emphasized the need for full recognition of the pre-Confederation treaties and of the sovereign, independent authority of their nations to make them with the Crown. Indian lands and political institutions were to be protected, and trust responsibilities assumed by the Crown. Aboriginal rights existing at the time of treaty making were recognized, and provisions were made for specific services. A Chief from the Robinson-Huron Treaty area called his treaty "a sacred document" to which his people had lived up; he called upon the federal government to follow suit. (24th March, 1983)

From a Chief in the Treaty No.3 area came the demand that the terms of his treaty be honoured by Canada: "Had Treaty 3 been kept, had we retained control of the resources and shared in their development, we would not be in the present state of subjugation." (17th January, 1983 Proceedings). The Chief of the Saugeen Indian Band in southwestern Ontario saw the treaties as international in nature, signed by political entities which, dealt with each other as nations. To him, Canada's present policy of not recognizing pre-Confederation treaties with the Crown unless it can be shown that Canada assumed liability for them, is clearly a violation of international law and standards. Those standards "should be applied and enforced" in respect of his Band's treaty rights (28th March, 1983).

6. Northern Treaties of Peace and Friendship

The descendants of the signatories of the Northwest Territories portion of Treaties 8 and 11, and Treaty 9 in northern Canada have advanced the position that the intentions of the original Indian signatories were to enter only into treaties of Peace and Friendship with the Crown. The land cession aspect of treaties made in the south was not part of the terms from their point of view. As such, any cessions imputed to those northern treaties are fraudulent and should be deemed invalid.

A Specific View

The Indian nations' position in the Prairies is that they effectively controlled identifiable territory within those lands now known as Canada. Within such territory their Nations exercised government over their peoples. This government had political, economic, adjudicative and military powers as well as structured forms for decision-making. These Nations were Sovereign within their territory, not being subject to any other power, and under no other effective control. By their arrangements and compacts with each other and with the British Crown, they demonstrated their authority and capacity to enter into treaty relations as subjects of international law.

The British Crown acknowledged the title of the Indians to the territory. At no time was it claimed that such territorial rights could be extinguished by occupation or conquest. On the contrary, it was declared in the Royal Proclamation of 1763 and afterwards that all dealings with the Indians were to be on the basis of mutual respect and consent and Indian lands were only to be acquired by the Crown with such consent. Without it, no individual subject of the British Crown could purchase, settle upon or take possession of Indian land. Neither might provincial governments grant patents of land or survey warrants. At no time did the Crown express any doubt as to the capacity of the Indians to enter into Treaties, itself choosing to designate the instruments as Treaties, rather than as agreements or contracts.

The British Crown, rather than any department of government or ministry, entered into the treaties. The negotiations leading to their conclusion were conducted on the basis of mutual Sovereignty. Mutual acceptance of them was solemnly accompanied by ceremonies appropriate to the conclusion of international treaties. Further there have been adhesions to these treaties. This is the appropriate method for later participation by other parties in international treaties.

By the treaties,the Commissioners acting on behalf of the Crown agreed to the Indian nations' retaining the following:

  1. To reserve or set aside for the sole and exclusive use of the respective Nations plots of land to be allocated in the manner prescribed in the respective Agreements.
  2. That the lands so reserved would only be sold, leased or otherwise disposed of by the Crown for the use and benefit of the respective Indian Nations, with their consent thereto first had and obtained.
  3. To provide medicine chests and maintain schools for the Indian inhabitants of the reserves, and assistance in economic development.
  4. That the Indian Nations should have hunting, fishing, trapping rights over the lands referred to in the Treaties.
  5. They would maintain peace, and good order between each other, and also between themselves, and other tribes of Indians, which implies their maintenance of control over their internal affairs, and relations with other Indian Nations including those outside the Canadian boundary.

Treaties And Treaty Rights

Delia Opekokew

During the preliminary negotiations and in order to induce the Indian nations to execute the treaties, the Commissioners agreed orally that the Indians could also retain the following powers, and which powers are part of the treaties:
  1. Their tribal autonomy would be respected and they would suffer no direct or indirect compulsion to alter their traditional ways of life.
  2. They would continue to enjoy the unrestricted rights to hunt, fish, trap and gather over their traditional lands (whether ceded or not), to the exclusion of non-Indians.
  3. They would continue to enjoy all sub-surface rights in respect of their traditional lands (whether ceded or not).
  4. They would be provided with prompt and adequate relief in times of famine, and proper medical care, and those who were aged or infirm would receive all necessary attention.
  5. They would not be conscripted into military service nor taxed without their consent.

The Prairie Indians maintain that the Royal Proclamation of 1763, which has the force of law and has never been repealed, applies to the lands which now make up Canada. The Proclamation refers to "the several nations or Tribes of Indians with whom we are connected, and who live under our protection" and to "certain lands which were reserved under our Sovereignty, protection and dominion, for the use of the said Indians." The Proclamation established a monopoly by the Crown on the acquisition of Indian lands, so as to avoid the "great fraud and abuses" committed upon the Indians in previous dealings.

While the prairie treaties were signed, it is clear that the Indian nations were the supreme military force. As such, both sides agreed to settle their differences, and to define their jurisdictions by entering into a treaty on a nation to nation basis as opposed to engaging in hostilities. This arrangement is a clear incident of international relations. More importantly, by entering into a treaty-making arrangement as opposed to a contract, for instance, the Crown respected the Indians' sovereignty. By agreeing to protect the "way of life" they were recognizing an unceded right to self-government derived from Indian nations' sovereignty.


Today, the governments interpret Indian treaty rights as narrowly as is possible, and will follow the narrow legal position earlier enumerated. This includes, for instance, the only recent case touching on Indian self-government, Isaac v. Davey, in which the Canadian courts refused to acknowledge the concept or that any such powers were vested in the Iroquois Confederacy in spite of the recognition in one of the extent source documents at bar. The Simcoe Patent, 1793 which confirmed the Haldimand Treaty's granting of lands to the Six Nations' also state that, the lands. ...[are] are to held and enjoyed by them in the most free and ample manner and according to the several customs and usages of them..."


In the Indian nations' struggle to obtain justice for themselves within the Canadian context, the differences in interpretation of the treaties continues to be a stumbling block. Clearly the conflicts in understanding the true spirit and intent of the treaties cannot be corrected by the courts who are restricted by evidence rules confining them to narrow legal and historical factors. For justice to occur Indian data must be considered. A process for that consideration may now be established because of the recent constitutional breakthrough.