Government And The
FEBRUARY/MARCH 1986 p09
(A final option for specific protection of treaties under the
constitution may be the international forum. The following is a
brief summary of pertinent facts).
people on this Continent have always had Indian Government; we have
used it to occupy this land and to assert our inherent Sovereignty,
which has its root in our people and their culture. All political
powers affecting us, our lands and resources must come from that
These Governments exercised their full authority
over their territories prior to the coming of the Europeans to this
Continent. Our forefathers agreed to join Confederation subject to
certain rights, lands and resources being reserved to our people in
perpetuity in recognition of our status as the original and
founding people of this country. Sovereignty and Indian Government
is part of the aboriginal rights that came into being when Canada
Aboriginal rights and Indian Self Government are of
such a fundamental character to the well being of a people that no
subsequent relinquishment of those rights without the people's
consent has any legal effect. They take precedence over any kind
of inconsistent legal claim. Indian people have never consented to
the relinquishment of their status as Indians or of their special
right to Indian governments.
Some of our people has loosely
structured governments and others had hereditary systems in which
local or band leaders exercised most political powers. Most Indian
Governments were democratic and power rested in the people and this
power was distributed among several individuals or institutions.
For economic and military reasons it was sometimes necessary to
delegate this power to a higher governing council, composed of a
head chief and a number of band chiefs. Among the Cree and
Saulteaux tribes Band Governments were composed of family units and
their headmen, Societies and their headmen, headmen councils,
elders councils, the peacemaker and the chief who was selected by
the elders and headman councils.
These same Indian Governments
remained intact until the Treaties of 1874 to 1876. The most
important reason for the signing of those was to retain and
maintain their Government as a whole with their sovereign rights to
Govern their people and the resources. They have also not
surrendered hunting lands, forest lands, lakes, rivers along with
the lands they reserved to be set aside for their use, and to be
protected by the Crown forever.
The Treaties that were signed by
our forefathers confirm the following principles and guaranteed
- The Indian nations retained
Sovereignty over their people, lands, and resources, subject to
some shared jurisdiction with the appropriate Government bodies on
the lands known as occupied Crown lands. This is the foundation of
- By signing the Treaties, the Indian
nations created an on-going relationship with the crown in Indian
social and economic development in exchange for lands
- The Indian nations established tax revenue
sharing between the Crown and Indian nations.
- The Indian
nations established a political protocol for annual reviews of the
progress of the Treaties.
- The Indian interpretation of
the Treaties will supersede all other interpretations.
When an agreement was reached, Alexander Morris, the Queen's
Commissioner explicitly and loudly proclaimed under Oath on the
Bible and the British Emblem and Seal: "What I have offered does
not take away your way of life. You will have it then as you have
it now, and what I offer is put on top of it."
Some of these
rights and benefits of Indian people written by the Commissioner in
exchange for cession of their lands are:
lands were to be established within the Territories, ceded for the
use of the Indian nations signing the Treaties.
cash payments were paid to the chiefs and their people who were
parties to the Treaty and thereafter annuity payments were to be
paid to them and their descendants.
- Farming implements
and supplies were to be provided as an initial outlay, and
thereafter ammunition and other hunting and fishing materials were
to be furnished to the' Indian on an annual basis.
Indians reserved the right to hunt, fish and trap over unsettled
areas of the ceded land.
- The Government was to establish
and maintain schools for the education of the Indian children on
- The Government promised to provide suits of
clothing, flags and medals for the chiefs and headmen of the
- The Government was to provide a "medicine chest"
for the use of the Indians.
- The Government was to provide
assistance to advance the Indian in farming or stock-raising or
(continued on next page)
Government And The
FEBRUARY/MARCH 1986 p10
The difference between our understanding of Treaties and the actual
contents of the written documents disappears if the verbal
promises, assurances and guarantees given by the Treaty
Commissioners during the negotiation are regarded as an integral
part of the Treaty agreements.
Unfortunately, it would appear
that 100 years has not been sufficient to bring the Canadian
government to stand behind the words of their Commissioner.
Significant differences in interpretation remain. The Federation
of Saskatchewan Indian Nations, in its study of Elders'
interpretation of Treaty 4, had identified these
- Land and Resources -
The nature of the land/resources cession is an important topic for
which the two sources, Treaty text and Indian Elders, provide
vastly different interpretation. The Elders indicate that it was
a limited land cession. The concept of a limited land cession
belies the text of Treaty 4, which states the Indian signatories do
hereby cede, release, surrender and yield up to Her Majesty the
Queen and her successors forever, all their rights, titles and
privileges whatsoever, to the lands included within the following
The difference between the two interpretations of the
land/resources cession is best described by reference to the
Elders, understanding of their rights with respect to wildlife,
subsurface rights and the status of lands, including waters not
utilized for agriculture.
- (a) The subject of wildlife, while it has been
conventionally phrased in terms of Indian hunting, fishing,
trapping and gathering "rights", "rights of access", or ''right of
use" is discussed here as an element or feature of the land cession
because the Elders state that Indian people continue to own or have
exclusive use of all wildlife. Specifically, the Elders state that
wildlife continues to belong to the Indian people as an element in
the inventory of unceded resources. It is stated frequently that
the Crown assumed a Treaty obligation to protect wildlife
population for continuing Indian use.
- (b) Sub-surface and
other nonagricultural resources: The Elders indicate that resources
ceded under Treaty 4 were limited and restrictive as some land
resources were retained by the Indian people in ceded lands. The
Commissioner stated that the white man wanted land to farm only to
the depth of a plow, stated most frequently as a depth of six
inches. There is an implication that non-agricultural] lands, such
as mountain country, lakes, other lands unfit for farming, were not
requested and not ceded.
Government - There is unanimity among the Elders that
Indian people retained the right to Govern themselves. Elders
state that the Government usurped this authority and that the
Indian Act is purely a Government instrument for the purpose of
governing Indians and usurping the Treaties.
Protection and Assistance - The Elders state that the
Indians were promised Crown protection and assistance to develop
and prosper. This promise is described in general terms, with
reference to a continuing, and comprehensive, Crown responsibility,
and also in specific terms with respect to economic development
assistance and assistance in the event of famine or
THE INTERNATIONAL STATUS OF INDIAN
A Treaty is a compact agreement between two or
more independent nations. At the time of Treaty, the Indian people
on the prairies held that status and at the present time still do.
But Canadian governments and courts have used the argument that
Indian Treaties were not international Treaties, in order to deny
the right to sovereignty and self government. European immigrants
had to deny the fact that North America was already governed by
Indian nations in order to establish their own interest in the
land. They used a Doctrine and a number of theories to ascertain
The Doctrine of Discovery asserted
that the white Europeans were to have the Indian lands because the
Indians were infidels rather than Christians, hunters rather than
farmers, monsters rather than men or by the reason of the generous
gifts of civilization and technology. Even at that time, some
intellectuals opposed the doctrine of discovery. The great
theologian and jurist Francisco de Vitoria provided his Spanish
Government And The
FEBRUARY/MARCH 1986 p11
with such unsettling answers about his overseas empire in South
America: "The Aborigines in question were true owners before the
Spaniards came among them both from the public and private point of
Felix Cohen, an American author whose work has been used
and followed in Canadian Courts, in his Handbook of Federal
Indian Law summarized Vitoria's argument this way:
"Since the Indians were true owners Vitoria held discovery can be
justified only where property is ownerless, nor could Spanish title
to Indian lands be validly based upon the divine rights of the
Emperor or the Pope or upon the belief of sinfulness of aborigines.
Thus Vitoria concluded even the Pope has no right to partition the
property of the Indians, and in the absence of a just war only the
voluntary consent of aborigines could justify the annexation of
their territory. No less than their property of the government.
The aborigines were entitled to the respect by the Spaniards
according to the view of Vitoria."
THE SPIRIT AND INTENT OF TREATIES
The Treaties were signed so that Indian
people could retain their inherent sovereignty and live as Indian
people forever. Since that time, the Canadian government and the
Canadian Courts have used a number of theoretical arguments to
undermine Indian sovereignty and to repudiate the spirit and intent
of the Treaties.
Indian people cannot accept theories that were
developed from one side only. In any case, these theories can be
attacked in specific application to the North American
The Doctrine of Discovery discussed
earlier in this paper is factually invalid. Indians, not
Europeans, discovered North America, and is contrary to the
standards of national and international
Cession - that argument is contradicted by
international law which holds that association with another state
does not necessarily result in a surrender of sovereignty. Also,
Indians did not willingly agree to any large-scale transfer of
their rights, authority and autonomy when they signed Treaties
although the written Treaty provisions were fraudulently imposed
because Indians did not surrender their right to self government.
Justice Marshall dealt with the issue of protection and concluded
that a weak state, in order to provide for its safety may place
itself under the protection of one more powerful without stripping
itself of the right to self government. His support originates
from international law and he states that the very fact of repeated
Treaties with the Indian recognizes Indian
Acquisitive Prescription - one
method of establishing title to land in international law is
acquisitive prescription, a concept akin to adverse possession.
This allows a nation to cure a defeat in title by the exercise of
control for an extended period. The possession must be peaceful
and take place with the acquiescence of the original sovereign.
The principle does not apply to the Indians because they have
retained control of some lands and for those that have been
obtained by government coercion, that possession has not yet been
peaceful i.e. the conflict over lands where Indians have resource
rights. It is not valid to argue that Indian protests have not
been strong enough. An arbitration decision involving the United
States and Mexico discussed this Principle: "It is quite clear from
the circumstances related in their affidavit that however much the
Mexicans may have desired to take physical possession of the
district, the result of any attempt to do so would have provoked
scenes of violence and the Republic of Mexico cannot be blamed for
the milder forms of protest contained in its diplomatic
Changed Circumstances -
non-Indians of ten point to the substantial changes which have
taken place in both Indian and non-Indians societies as
justification for restrictions on Indian sovereignty. This
argument is based on the concept of historical consolidation. But
even if historical consolidation were a valid principle, it could
not be properly applied to Indians. The concept is intended for a
situation where changed circumstances have come to be mutually
accepted as the most realistic way of handling the situation by the
parties involved. The relationship imposed on Indians in Canada is
not at all reasonable because of the continuing violation of the
sovereignty and human rights of Indians. An assertion of title and
jurisdiction which conflicts with accepted standards of
international law, cannot be legitimized by reference to the
principle of historical consolidation when such a consolidation is
maintained only by the virtue of the dominant state's superiority
in numbers, strength, and technology. International jurisprudence
provides that acts contrary to law cannot be source of legal rights
for the wrongdoer. The Treaties - as interpreted by Indians - were
intended to guarantee various rights and elements of sovereignty
for Indian people.
CURRENT STATUS OF TREATIES IN
The breaches of the Treaty obligations on
the part of the Canadian government started with their exclusion of
certain oral promises from the written portions of the Treaties.
Furthermore, the principle of the Treaties as understood by Indians
were not expressly included in the written portions of the
Because of the lack of written representation of the
promises exchanged, it can be seen that the Treaties, on their
face, provide an inequitable consideration for the lands
There have been other outright breaches of the Treaties. Among those abrogations
are the following:
Other terms and conditions of the Treaties
have been undermined and ignored in the following:
- The Treaties required that all future dealings with Indian nations be based
on the spirit and intent of the Treaties, and required that those Treaties
supersede all future legislation and government policies affecting Indian
people. That principle has been totally disregarded.
- The Government of Canada does not regard Treaties as being supreme and in
fact has passed legislation, including the Indian Act, to supersede them.
It is acknowledged that the Federal Government has exclusive
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Indian Government And The Treaties
SASKATCHEWAN INDIAN   FEBRUARY/MARCH 1986
responsibility to legislate in regard to Indians and their lands pursuant
to the British North America Act 91 .(24), but that power to legislate should
be subject to the Treaties and therefore should recognize Indian Government.
- The Canadian Courts have interpreted the Treaties as being mere promises
and have taken the Canadian Government, being supreme, may legislate in breach
of those Treaties.
- The Indian Act has been used as a vehicle to control Indian Government,
contrary to the spirit and intent of the Treaties.
- Even those promises expressly included in the written Treaties have been
- (a) Indian reserve lands are subject to expropriation laws;
- (b) The right to hunt, trap and gather has been limited by recent legislation;
- (c) Certain clauses such as the "medicine chest clause" have been interpreted
wrongly so that the total health and medical coverage envisaged by the Indian
has been limited in some cases;
- (d) Social and economic benefits have not been forthcoming.
- The Detribalization Policy of 1840. Canada's first policy was to
destroy Indian political, religious, social and educational institutions:
This has been done by confirming legislation, boarding schools and overt control
by Indian agents.
- 1947 Plan to Liquidate Canada's Indian Problem Within 25 Years. Wholesale
integration and enfranchisement of Indians and the diffusion of Indian programs
to the provinces.
- New Indian Policy - 1969 White Paper, etc.
- Local Government Guidelines
1975. Called for the municipalization of Indian land and
ignored the development of Indian Government; basically the
continuation of the '69 White Paper and the 1947 plan of
liquidation, and the list goes
SURRENDERSThe Treaties promised
Indian land would never be sold or "leased or disposed of,' without
the expressed consent of the Indian people. Yet the Government of
Canada in the past 100 years, acting as a trustee of the Indian
Reserve lands, has sold or otherwise permanently disposed of all or
major portions of at least 32 reserves, amounting to well over
420,000 acres. In at least four of these surrenders no consent was
ever obtained. In many cases consent was obtained by Government
officials through fraud, coercion or misrepresentation, tactics
which annulled the validity of such consent. It was clear that
most of the Indian land was sold by Indian Affairs agents, who
demonstrated both a breach of trust and conflict of interest in
most cases. Our research documents show clearly their illegal
This is an
outstanding debt on the part of the Federal Government. To date,
very little has been done according to the Treaty formula of one
square mile per family of five, or 128 acres per person. To date,
it has not been agreed to purchase any land for this purpose or to
make federal Crown lands available for selection by entitled bands,
except for certain educational lands already under the jurisdiction
of the Government through the Department of Indian Affairs.
Furthermore, it has attempted to obstruct the entire process with
legal opinions to undermine the mutual understanding which has
governed the interpretation of the Treaty provisions since they
were signed. Recently the Department of Indian Affairs, without
the consultation of the Indian people, reversed a ninety-year old
policy and obtained a new legal opinion from the Department of
Justice, which inexplicably declares that the Government of
Canada's lawful obligation to the Indian people in Saskatchewan is
simply to provide enough land to fulfil the entitlement any band
had at the date of the first survey, and without any reference to
the population at the date of any subsequent survey or the current
population. There are some 30 bands who wait for some change in
heart or injustice for the fulfillment of their entitlement. As it
is now, Canada continues to transgress Indian lands, which amounts
to no more than legalized theft.