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Indian Government And The Treaties

SASKATCHEWAN INDIAN      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).

Indian 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 Sovereignty.

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 was created.

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 rights forever.

  1. 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 Indian Government.

  2. 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 surrendered.

  3. The Indian nations established tax revenue sharing between the Crown and Indian nations.

  4. The Indian nations established a political protocol for annual reviews of the progress of the Treaties.

  5. 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:

  1. Reserve lands were to be established within the Territories, ceded for the use of the Indian nations signing the Treaties.

  2. Small 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.

  3. 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.

  4. Indians reserved the right to hunt, fish and trap over unsettled areas of the ceded land.

  5. The Government was to establish and maintain schools for the education of the Indian children on the reserve.

  6. The Government promised to provide suits of clothing, flags and medals for the chiefs and headmen of the tribe.

  7. The Government was to provide a "medicine chest" for the use of the Indians.

  8. The Government was to provide assistance to advance the Indian in farming or stock-raising or other work.

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Indian Government And The Treaties

SASKATCHEWAN INDIAN      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 differences:

  1. 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 limits. 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.

  2. Indian 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.

  3. Crown 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 privation.

THE INTERNATIONAL STATUS OF INDIAN TREATIES

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 this claim.

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 monarch


Indian Government And The Treaties

SASKATCHEWAN INDIAN      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 view.

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 context.

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 law.

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 Sovereignty.

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 correspondence."

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 SASKATCHEWAN

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 Treaties.

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 ceded.

There have been other outright breaches of the Treaties. Among those abrogations are the following:

  1. 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.
  2. 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      p12  
    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.
  3. 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.
  4. The Indian Act has been used as a vehicle to control Indian Government, contrary to the spirit and intent of the Treaties.
  5. Even those promises expressly included in the written Treaties have been abrogated:
Other terms and conditions of the Treaties have been undermined and ignored in the following:
  1. 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.
  2. 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.
  3. New Indian Policy - 1969 White Paper, etc.
  4. 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 on.

SURRENDERS

The 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 actions.

LAND ENTITLEMENT

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.