Indian Treaties in Canada

Indian Treaties in Canada

I

INTRODUCTION

Indian Treaties in Canada, agreements between indigenous groups in Canada and the colonial authorities of France and Britain, and later the Canadian government that succeeded them. In the 1600s French settlers in North America negotiated the first treaties with Indians, as Canada’s indigenous peoples have historically been called. Britain signed treaties with Indians as it began to colonize North America and after it wrested control of what became Canada from France in the 18th century. After Canada confederated in 1867, the government of the new nation negotiated a flurry of Indian treaties.

The purposes of Indian treaties have varied. The first Indian treaties were intended to encourage trade and to establish peace and friendship, but later treaties were designed to acquire land controlled by Indian nations so that it could be given to non-Indian settlers. Over the past three centuries Indian treaties have had a number of effects: creating alliances between indigenous groups and European powers, ending periods of warfare between indigenous groups and Europeans, and permitting European settlers to obtain North American land peacefully.

In 1973 the Canadian government began to allow indigenous groups to file claims to land they had been promised by treaties or to land they had never surrendered by treaty. Indigenous groups can file two types of land claims: specific and comprehensive. Specific claims arise when the Canadian government has failed to meet existing treaty obligations. Those groups who never signed treaties can file comprehensive claims to enforce historical ownership of their land and to win compensation for land taken from them. When a comprehensive land claim is settled, the resulting agreement is a modern-day treaty.

II

COLONIAL TREATIES

The French began to settle northern North America in the early 1600s. They were lured by the abundance of fish off the Atlantic Coast and by beavers whose pelts could be used to make hats. The earliest treaties between the French and the indigenous groups they encountered were trade agreements.

A

Early Treaties

When the French came to North America, they needed to establish good relations with the Indians. Settlers in what was called New France wanted to fish, explore, trade for beaver furs, and spread Christianity. In order to do these activities, they had to rely heavily on the Indians with whom they made contact. Fishers needed peaceful conditions for fishing and land for drying their catch; fur traders depended on Indians to catch beavers and trade the pelts; explorers needed guides; and missionaries had to be tolerated at least by the Indian communities to whom they preached.

The early trade agreements between the French and the Algonquin, Huron, and Montagnais nations were not usually recorded in European documents. In each of these simple pacts, the two parties agreed to trade, and, in some cases, the Indians agreed to have some settlers in their communities. The French and their allies reaffirmed the treaties each year in gift-giving ceremonies. In the 1600s warfare broke out between the French and the Iroquois, a confederacy of five (later six) Indian nations who were enemies of the Algonquin, Huron, and Montagnais. In response, the French developed short-term agreements with their Indian allies to cover specific campaigns against the Iroquois. In 1701 the French and Iroquois signed the first important Canadian treaty, the Montréal Treaty, by which they agreed to peace and neutrality and ended about 90 years of sporadic warfare.

In the 1600s many British colonists began to settle the Atlantic Coast of North America, south of New France. They eventually established 13 colonies and sought land for agriculture, taking much of it from indigenous peoples by conquest. When they negotiated treaties with indigenous groups, the pacts were more complicated than those in New France. Two kinds of early British treaties existed, land treaties and treaties of friendship and mutual support. Land treaties often were simple contracts, or deeds, by which Indians conceded territory to the newcomers in return for a specified amount of money, paid in the form of trade goods. Unlike friendship agreements, which were often renewed by annual gifts to the Indians, the land treaties involved a onetime payment. Occasionally the Indians who made such pacts did not represent their communities. Conflict resulted when that happened, and the rest of the Indian community resisted the British settlement that followed. Friendship treaties allied Britain with powerful Indian nations and confederacies.

The best example of a friendship agreement was the Covenant Chain system, which the British inherited from the Dutch in the late 1600s in the colony of New York. The Covenant Chain was an alliance between Britain and the Iroquois confederacy, promising friendship in peace and support in times of conflict. The Iroquois wampum belt (belt made out of polished beads used for decoration or money) that memorialized this alliance was often compared to an iron or silver chain. The Iroquois had agreements with several Indian nations outside the confederacy, so the Covenant Chain at its most effective was an extensive system of alliances that covered most of the eastern half of North America.

Iroquois diplomats invested an enormous amount of skill and military muscle in maintaining the Covenant Chain system. In the early 1700s, when the system was most effective, the Iroquois had great influence with both the British and their own Indian allies. The Covenant Chain was at times unstable because Indian nations within the network of Covenant Chain alliances had differing interests and aims. Those who had links to nations outside the Covenant Chain system and who were trade partners and military allies of the French sometimes disregarded the Covenant and were hostile to the British. The Indians did not differ from the Europeans in inconsistent behavior; both used alliances as temporary conveniences that they violated when it suited their interests.

B

Treaties During French-British Conflicts

In the 17th century Britain and France began to battle for control of North America. The French had more support from the Indian nations, who considered them less of a threat to their land than the British. The battle for North America intensified in the 18th century and culminated in the French and Indian War (1754-1763). During the war, the British government established the Indian Department, which was responsible for relations with the Indians. The department’s northern superintendent, Sir William Johnson, improved relations with Indian nations of the interior, peoples traditionally allied with the French. The British crown gained their support by promising to protect their lands from the expansionist 13 colonies. Britain also improved relations with the Mi’kmaq in Nova Scotia by means of the Treaty of Halifax (1752), a trade and friendship agreement. Still, many of the Indian nations perceived the land-hungry British colonies to be a greater threat than the trade-oriented French and sided with New France in the war.

In 1760, after British naval power had shattered France’s hold on North America, Johnson and the Indian Department turned to making new treaties with nations near Montréal known as the Praying Indians. These nations had been converted to Roman Catholicism by French missionaries in the 1600s and had become close allies of the French. The British were generally Protestant, but the pacts with the Praying Nations guaranteed that they would not interfere with the Indians’ way of life, including their religion.

Not all Indian nations entered into alliances with the British. The British aroused anger among nations in the interior when they discontinued the French practice of renewing treaty agreements yearly with gifts, choosing instead to finalize treaties with one lump-sum payment. After Britain defeated France in 1763, Ottawa chief Pontiac led an attack on British forts in the Great Lakes area to end British domination and to reinforce Indian autonomy. In response, British king George III issued the Royal Proclamation of 1763 to try to appease the Indians of the interior. The proclamation set aside land for the Indians west of the Appalachian Mountains and described this land as “lands reserved to [Indians] … as their Hunting Grounds.” The proclamation not only recognized Indian land ownership, but also required that treaties be negotiated before non-Indians could acquire the land. Only a representative of the British government could negotiate treaties, and the Indian community had to call a public meeting for the negotiation. The objective of this policy was to prevent dishonest deeds in which Indians sold lands to Europeans without the approval of their Indian community.

The Indian Department first used the proclamation in the 1768 Treaty of Fort Stanwix, by which the British obtained lands in the Ohio River valley region. The Stanwix treaty established a new frontier between Indian country and British colonies along the Ohio River, west of the Appalachian Mountains. The Iroquois who negotiated the Stanwix treaty benefited, as the British recognized their claim to land in the region. However, the agreement alienated some Indian nations, including the Shawnee, whose lands were sacrificed to colonists. In 1774 Britain passed the Québec Act, transferring control of the Ohio Valley lands from authorities in the 13 colonies, whose relations with the imperial government were strained, to Québec. The Québec Act angered the 13 colonies, but relieved some Indian nations who regarded Quebeckers as less of a threat to their lands.

C

Treaties During British-American Wars

When Britain fought against its 13 colonies in the American Revolution (1775-1783) and against the United States in the War of 1812 (1812-1815), both sides sought alliances with indigenous groups. During the wars, the British enjoyed considerable support from Indian nations. Sir William Johnson was close to Joseph Brant, chief of the Mohawk, an important nation in the Iroquois confederacy. The Mohawk stood by the British, while the Oneida and Tuscarora—Iroquois nations that had had close relations with New England missionaries—supported the Americans. Other Iroquois nations preferred neutrality, and these differences disrupted the confederacy.

The British lost the war and the 1783 Treaty of Paris drew the boundary between British North America and the new United States at the lower Great Lakes. Britain thus surrendered territory associated with Québec to the Americans and abandoned their allies in the region. The British set aside land north of the lower Great Lakes for United Empire Loyalists, including Loyalist Indians. The British signed treaties with the Mississauga nation to gain access to the lands for the Loyalists. In these treaties, negotiated by the rules established in the Royal Proclamation of 1763, the Mississauga surrendered land in return for payment.

III

CANADIAN EXPANSION AND DOMINION

After North America was divided into the United States and British North America, the British colonies experienced tremendous population growth. A flood of British immigrants fleeing the economic upheavals caused by the Industrial Revolution came to British North America between 1815 and the 1850s. In the new colony of Upper Canada (as Ontario was called from 1791 to 1841), the population increased tenfold, from 100,000 to nearly 1 million. To accommodate the resulting demand for land, imperial and local authorities made land acquisition a focus of new treaties.

Britain gained more land by negotiating new land treaties with the Mississauga in Upper Canada. In the Atlantic provinces (Prince Edward Island, Nova Scotia, New Brunswick, and Newfoundland) the British government forced Indian nations such as the Mi’kmaq and Maliseet off their lands without negotiating treaties. The government settled the Indians onto land reserves, small territories set aside for them, without compensation or assurances that the Indians would be protected or allowed to hunt and fish as they had in the past. The British also did not sign treaties in Lower Canada (as Québec was called from 1791 to 1841) because the few settlers who went there chose areas not occupied by Indians or other colonists.

A

Pre-Confederation Treaties

Throughout British North America, two new features of treaty making developed: the local control of negotiations and the use of annuities (annual payments) instead of lump-sum payments. The British government became less involved in Indian relations in the 19th century, ceding control to colonial authorities in British North America. Crown representatives continued to negotiate treaties, but the colonists themselves increasingly dictated the terms. By the 1840s the local assembly and government of each colony could authorize treaty negotiations for peaceful access to Indian lands, even though control of Indian affairs officially remained with Britain until 1860. Colonial governments in the Atlantic provinces took land from Indians without treaties, using force rather than diplomacy. The local officials believed that the French had already won the land from the Indians earlier, through exploration and conquest, and that this control had passed to Britain in 1763. Since the governments in the colonial capitals were more in tune with settlers’ views and economic interests, they were less sympathetic to the Indians than the British government had been.

In Upper Canada government negotiators began to offer Indians payment for their land in a different form. Instead of the single payment introduced after the French and Indian War, the crown shifted to smaller annual payments, or annuities, to reduce the initial costs of treaty making. The annuities resembled the annual presents that Indians had received from European allies during earlier periods.

From 1814 to 1867 treaties were negotiated in three parts of British North America. The most numerous and influential were in Upper Canada, while small land transfers were also negotiated in what are today the provinces of Manitoba and British Columbia. In Upper Canada the colonial government continued to draft treaties like those presented to the Missassauga after both the French and Indian War and the American Revolution, in which the Indians surrendered land in return for payment. After the War of 1812 the government negotiated additional land treaties with other Missassauga groups in the colony. Although no one land treaty had involved a very large parcel, most of the land suitable for agriculture in Upper Canada was covered by treaty by the middle of the 1830s.

Francis Bond Head, the lieutenant governor of Upper Canada, tried to introduce a unique component to the land treaties he negotiated with Ojibwa and Ottawa bands in southern Upper Canada in 1836. In these treaties the British government transferred remote lands on Manitoulin Island to the Indians in return for their land. Bond Head was convinced that the Indians were going to become extinct because he saw their communities declining. He thought, therefore, that it would be sensible to acquire their lands through treaties, and then transfer the Indians to Manitoulin Island to live out the rest of their days. However, missionary groups were concerned about the well-being of the Indian communities. These missionary groups succeeded in pressuring the imperial government to prevent the colonial government from relocating the Indians. But the treaties remained in force otherwise. By the 1840s all of what became southern Ontario was covered by treaty.

There were a few significant treaties in western British North America before Canada became a dominion in 1867. In 1817 a representative for the earl of Selkirk negotiated a treaty with Cree and Ojibwa bands at Red River. In return for an annual payment of tobacco to each group, the company secured land for the Red River Settlement in Rupert’s Land, a vast territory controlled by the Hudson’s Bay Company. From 1850 to 1854 James Douglas, the governor of Vancouver’s Island (now Vancouver Island), negotiated with the Coast Salish nation to allow the Hudson’s Bay Company peaceful access to 14 small areas of land on the island.

In Canada West (as Ontario was called from 1841 to 1867), the government negotiated important treaties in 1850 with Ojibwa groups along Lake Huron and Lake Superior. William Benjamin Robinson, a crown representative, began negotiating with the Ojibwa after they resisted mining exploration on their land in the late 1840s. The resulting Robinson Huron and Robinson Superior treaties had three features that set a pattern for the future. Unlike earlier agreements, the Robinson treaties covered very large territories. The treaties also included a promise to create land reserves for the Indians, along with a commitment that the government would respect the right of the Ojibwa to continue hunting and fishing throughout the territory.

When the provinces of New Brunswick, Nova Scotia, Ontario, and Québec united in 1867 to form the Dominion of Canada, the new country acquired the existing treaties and the future responsibilities for relations with indigenous peoples. The arrangements for the Confederation of provinces stated that “Indians and lands reserved for the Indians” fell within the jurisdiction of the federal government rather than the provinces, ensuring that the national government would make future treaties. However, when British Columbia joined Canada in 1871, the provincial government retained control over land and resources within its borders, so consequently it was involved in negotiations with Indians in British Columbia.

B

Numbered Treaties

As the new nation expanded westward, the government negotiated land treaties that assured access to vast territories. For the first 50 years after 1867, the agreements Canada made with indigenous groups were known as the numbered treaties because they were designated simply by numbers. Treaties 1-7, concluded between 1871 and 1877, covered the agricultural lands in the western interior, from what was then Ontario’s western border to the foothills of the Canadian Rockies and from the United States boundary to midway up what are now the Prairie provinces (Manitoba, Saskatchewan, and Alberta). The later treaties 8-11 were northern treaties—covering the northeast corner of British Columbia (8), the northerly portions of the Prairie provinces (8 and 10), northern Ontario (9), and a portion of the Northwest Territories (11).

B1

Treaties 1-7

In its first seven Indian treaties, the Canadian government followed Upper Canada’s tradition of negotiating before they settled the land, in accordance with the Royal Proclamation of 1763. Federal officials drew up treaties in response to threats from western groups of Ojibwa, Saulteaux, and Plains Cree that they would resist unauthorized use of their lands. These bands all indicated that they considered themselves owners of their land and that they expected Canada to negotiate treaties with them before sending settlers west. The Canadian government also learned from problems that had arisen in the United States in the 1860s and 1870s. The United States had engaged in a series of costly wars with Plains Indians, and Canadian officials knew that their young country could not afford a military conquest.

The Indian nations of the western interior—the Saulteaux, Plains Cree, Woods Cree, Assiniboine, Dakota (Sioux), Blackfoot, and Stoney—had their own motivations for signing treaties. They, too, were aware of how costly warfare, disease, and whiskey trading had been to their kin to the south. They knew from the American experience and the missionaries among them that large numbers of Canadians were soon expected to sweep into the prairies. The Indians were also aware that they were becoming weaker from warfare, disease, and the decline of the buffalo, the resource on which all Plains peoples depended. Those leaders who favored treaties with Canada—and not all within these nations wanted treaties—believed that a formal agreement with the Canadian government would protect them during heavy immigration and the decline of the buffalo economy. They described their choice as “taking the Queen’s hand,” by which they meant establishing a friendly relationship with the new people, a relationship that would allow Indians to survive the changes that were sure to come.

Treaties 1-7 provided European Canadians peaceful access to western lands. In return the Indians received reserves, compensation, and promises of future assistance. All the treaties described the territory they covered as lands “surrendered” to the crown, although the treaties granted the Indian nations the right to continue to hunt and fish throughout the lands. The Indian nations were to receive initial payments and annuities, and their leaders would receive additional annual payments and symbolic gifts such as treaty medals and chiefs’ suits or uniforms, the latter given every three years. The government also agreed to provide the Indians with schooling, farming tools, livestock, and seed. Treaty 6, which covered central Saskatchewan and Alberta, was unique in guaranteeing food assistance in times of famine and medical help in the form of a “medicine chest.”

The negotiations for treaties 1-7 were prolonged and difficult, mainly for two reasons. First, Indian negotiators were forceful in seeking better terms than Canada offered, especially in regard to the size of reserves and assistance with farming. Second, the Indians feared that signing treaties would mean coming under Canadian rule and giving up their practices of hunting, gathering, and fishing. During the negotiations, treaty commissioners reassured them with promises that the Canadian government would not interfere in their way of life. The government did not actually include the promises of noninterference in the text of the treaties.

The Canadian government and the Indians often had different understandings of the treaties. For the government, the treaties were contracts that provided title and political control over Indian nations and their territories. In contrast, Indian leaders saw the treaties as agreements to establish a relationship, overseen by their god, the Creator, in which Indians would share their territory with newcomers and both groups would live together cooperatively.

These differences were made worse in 1876 when Canada passed the Indian Act, which asserted government control and supervision over Indians throughout Canada. The act treated Indians as wards, or legally as children, and established the government as their guardian. As time went on and western Indian nations became weaker, the government increased its control and interference, prohibiting Indians from drinking or taking part in traditional ceremonies, such as the Sun Dance or the potlatch. Indians came to regard the Indian Act as a violation of the treaties.

B2

Treaties 8-11

No Indian treaties were negotiated from 1877, when Treaty 7 was signed, to 1899, when the government began pursuing agreements with indigenous groups in northern Canada—the Athapaskan nations (including the Slavey and Chipewyan), and the Cree and Ojibwa groups in northern Ontario. Treaties 8-11 were negotiated with these groups from 1899 to 1921, when conditions differed dramatically from what they had been when the earlier numbered treaties were signed. First, the government wanted to gain access to natural resources as well as land in the northern portions of the Prairie provinces and in the Northwest Territories. Second, Canada was much more prosperous and confident when it began negotiating Treaty 8 (1899) than it had been in the 1870s. The government still respected the Indian nations’ power to disrupt economic projects in their territories, but it no longer feared Indian military strength and was not disposed to make many promises or to fulfill the ones it did make.

The northern Indians approached negotiations with well-founded suspicions about the Canadian government. They knew the Indian nations to the south had often found Canada and Canadians to be untrustworthy and likely to interfere (as the government did with the Indian Act). The top priority for the Athapaskan nations and Cree and Ojibwa groups was to preserve their customary hunting, fishing, and gathering practices and to continue to be able to run their own affairs without the government interfering.

The nature and contents of the northern treaties reflected the aims of both sides. The northern numbered treaties were generally similar to the earlier, southern ones, providing access to lands for Canadian newcomers in return for compensation and reserves, but there were also significant differences. Since Athapaskan and northern Cree peoples still pursued a hunting-gathering economy, and since the land was not suited to agriculture, the treaties did not provide for assistance with farming. Reserves were promised in the northern treaties, but few were ever provided. The same was true of a provision in Treaty 10 (1906), which was to allow Indians to take lands in a communal reserve or “in severalty,” in individual plots. The northern nations were aware that the Canadian government was unreliable; they sought and obtained promises of noninterference in hunting. (The promises were oral commitments that the government rarely honored afterwards.) In Treaty 8 the Cree, Chipewyan, and Beaver groups also received promises of noninterference in religious practices and exemption from taxation.

Treaties 8-11 opened the way for Canadian businesses to exploit natural resources in the north. The government designed Treaty 8 to eliminate Indian resistance to miners and to secure control of overland routes to the Klondike gold fields in the Yukon Territory. Treaty 11 (1921) was signed after oil was discovered at Norman Wells in the Northwest Territories. Since interest in northern resources was limited, not all of the land was covered by treaties by the 1920s. The Yukon Territory itself and the eastern part of the Northwest Territories remained outside of treaty arrangements.

Canada stopped making treaties in the 1920s, in part because government officials believed the indigenous peoples were dying out from disease. In addition most Canadians had little concern for the rights of the indigenous peoples. In the 1920s the Allied Tribes of British Columbia petitioned the federal government to recognize their rights to land they had never surrendered by treaty. In response Canada amended the Indian Act in 1927 to make it illegal for indigenous people to raise or give money for the pursuit of land claims. This amendment was an extraordinary denial of rights that revealed the attitude of much of Canada after Treaty 11.

For indigenous groups who signed treaties, the experience was usually unhappy. The government often did not fulfill its promises such as providing farming equipment and, more importantly, reserves. In the Prairie provinces, for example, many communities that signed the early numbered treaties received less land than they had been entitled to by the treaties. In Treaty 8 many of the promised reserves were not created at all. The government did so little to carry out the promises of Treaty 11 that the Mackenzie valley groups (in the Northwest Territories) who had signed it later took the position that the treaty was effectively nullified. Indigenous peoples had many specific complaints, such as the government’s failing to supply the annual twine and ammunition promised in some of the early treaties. They also thought the government had distorted its commitment to supply “schools on reserves” by sending children to distant residential schools.

Many Indian nations also complained that the government refused to honor its oral promises. The government insisted instead that only the text of the treaties was valid. The Indian nations were especially bitter that the government neglected its commitment to a continuing relationship with them that would sustain both parties. Indian leaders often expressed this disappointment by saying that Canada refused to honor the spirit of the treaties. Indians’ treaty-related grievances mounted as time passed.

IV

GAINS FOR INDIGENOUS PEOPLES

A

Political Awakening

In the early decades of the 20th century, indigenous peoples began to form political organizations for which treaty grievances were a central concern. When Mohawk leader Fred Loft organized the League of Indians of Canada in 1918, he insisted that it was important to seek justice on land issues, including pursuing claims in court or before Parliament for reserve land promised in treaties. The Allied Tribes of British Columbia stressed the territorial concerns of Indians in that province in the 1920s. In British Columbia, settlers had taken land from many indigenous groups without treaties. The Allied Tribes of British Columbia vigorously campaigned for the government to recognize their land rights, even appearing before a federal parliamentary committee in 1926 and 1927. That campaign led to the Indian Act amendment outlawing fundraising to help pay for the pursuit of land claims. From 1946 to 1948, Indian political leaders from around the country expressed treaty-related grievances before another parliamentary committee that investigated problems with the Indian Act. In 1951 the federal government overhauled the act to reduce government involvement in Indian activities on reservations and to allow fundraising for the pursuit of land claims.

Indigenous people’s grievances, including treaty complaints, became more intense in the 1960s. A federal report completed in 1967 indicated that the living conditions on most Indian reserves were far worse than they were for most Canadians. The federal government entered into discussions with Indian leaders in the late 1960s, hoping to reach agreement on new policies that would address Indian needs and concerns. In 1969 the government announced its proposal for a new policy approach in a document known as the White Paper.

The White Paper reflected the political values and aims of Prime Minister Pierre Trudeau, who believed that the government should treat Canadian citizens individually, not as members of groups. Trudeau considered Indian bands to be these types of groups. The White Paper called for phasing out the treaties and abolishing the Department of Indian Affairs and Northern Development. It also dismissed as too vague land claims based on aboriginal title (Indian land ownership in the absence of a treaty). The indigenous people had hoped for a government commission to review Indian claims, but their hopes were dashed. The recommendations of the White Paper, particularly those concerning treaties, frightened and angered Indians. The White Paper sparked an uproar by Indian groups, and the government dropped its proposals.

Some indigenous groups turned to the courts to try to solve land disputes. In 1972 the Cree of northern Québec went to court to try to halt construction of a massive hydroelectric-power development at James Bay that would flood their hunting territories. To the surprise of the Québec provincial and the Canadian federal governments, the Cree succeeded in securing a temporary injunction that halted construction. Another indigenous group that used the courts was the Nisga’a nation. The Nisga’a lived along the northern coast of British Columbia. They had pushed for a treaty as early as the 1880s, but the federal and provincial governments had consistently ignored them. Like the James Bay Cree, the Nisga’a eventually took their case to the courts, and the result revolutionized land claims and treaty matters.

B

Land Claims

The Nisga’a legal action, known as the Calder case (1973), was a land claim based on aboriginal title. The concept of aboriginal title is derived from the Royal Proclamation of 1763, in which the British government recognized that Indians owned their land unless they signed a treaty relinquishing it. Aboriginal title is often explained as the ownership that results from having possessed a territory “from time immemorial,” before the coming of Europeans. The Nisga’a asserted that lands in the Nass River Valley were still theirs because they had never signed a treaty surrendering them. In 1973 the Supreme Court of Canada rejected the Nisga’a argument, but six of the seven justices who heard the case agreed that Canadian law recognized the validity of aboriginal title. The verdict meant that areas of Canada not covered by treaty were still in some sense Indian lands. The ruling came soon after the court decision in Québec on the James Bay power development, and it made clear that governments could no longer ignore the territorial rights of indigenous groups who had not signed treaties.

The James Bay injunction and Calder decision had profound consequences, both short-term and long-term. In Québec, although the temporary injunction the Cree obtained was overturned in court, the federal and Québec governments negotiated with the Cree. By 1975 they had reached the James Bay and Northern Québec Agreement. In that agreement the Cree surrendered 1 million sq km (400,000 sq mi) in return for C$150 million, a share of future royalties from the power plant, control of Cree territory not flooded by the project, and recognition of their hunting and fishing rights. The agreement was expanded in 1978 to cover a portion of northeastern Québec. In 1984 a self-government component was added, the Cree-Naskapi Act, which gave the Cree administrative control of many social programs in northern Québec. The James Bay agreement is often referred to as Canada’s first modern Indian treaty.

Equally important was the Canadian government’s 1974 response to the Calder decision: It created an Office of Native Claims (ONC) within the Department of Indian Affairs and Northern Development. The ONC was formed to deal with two kinds of land claims—comprehensive claims and specific claims. Comprehensive claims could be filed by indigenous groups who had never signed treaties and thus still had aboriginal title to the lands they occupied. Specific claims were more limited and were based on an assertion from an indigenous group that the government owed it a “lawful obligation.” In most specific claims, indigenous groups asserted that the government had not properly fulfilled a treaty promise, such as providing a land reserve or farming and fishing equipment.

The creation of the ONC in 1974 ushered in a period in which indigenous people’s land claims became an important public policy issue in Canada. The ONC was given multiple roles in relation to claims: providing funds to Indian bands to research claims; evaluating claims submitted by bands; recommending claims that appeared sound to the government for negotiation; negotiating with bands on behalf of government; monitoring the implementation of any settlement; and recommending changes in claims policy to the government. In 1985 the government overhauled the ONC, splitting it into two parts, a Comprehensive Claims Branch and a Specific Claims Branch, both in the Department of Indian Affairs and Northern Development.

C

Modern Treaties

Since 1973 new agreements between the federal and provincial governments and various Indian nations have been considered modern treaties. After the Calder case, the James Bay agreement, and the creation of the ONC, indigenous groups filed a large number of claims, but few of the claims resulted in settlements. ONC policies delayed claims. These policies included the refusal to accept pre-Confederation claims and a limit on the number of comprehensive claims the ONC would negotiate at any one time. Many indigenous peoples became frustrated with the process. By 1981 a dozen specific claims had been settled, but there were 250 more at various stages of preparation or consideration. The backlog of specific claims grew to 371 by 1990. Comprehensive claims fared no better. In 1985 a government task force reviewed aboriginal title claims and found that no settlements had yet been reached; that six claims were under negotiation; and that 13 more were awaiting the start of negotiations. The task force concluded that it would take a century to clear all existing comprehensive claims.

Several times in the 1980s Indian nations took matters into their own hands, fearing that their territory would be destroyed while their land claims languished. Indigenous groups in British Columbia repeatedly clashed with loggers and developers. The Lubicon Cree in northern Alberta blocked oil companies who wanted to drill on territory claimed by the Cree. The Cree of northern Québec threatened court action and sabotage if the province proceeded with a second James Bay hydroelectric project. In 1990 a group of armed Mohawks at Oka, Québec, blocked development of a golf course on land they considered sacred.

Partly in response to Indian militancy, the federal government took steps in 1991 to demonstrate its concern for Indian land claims and other issues. The government created an appeals body called the Indian Claims Commission (ICC), to which claimants turned down by the Specific Claims Branch could go. An independent body with Indian leaders among its members, the ICC could advise the government to reopen claims. Prompted by a 1990 Supreme Court decision that recognized broad aboriginal land and fishing rights, British Columbia’s provincial government formed the British Columbia Treaty Commission to participate in negotiations concerning the many comprehensive claims in the province. British Columbia had more comprehensive claims than most provinces because almost no treaties had been signed with indigenous groups in the province.

However, these changes failed to speed the resolution of land claims. The ICC had limited impact because its role was purely advisory: It could recommend to the government that a specific claim be resolved, but it had no power to bring about settlement. By the end of the 1990s, the backlog of both types of claims had grown alarmingly. As of December 1999 there were more than 100 specific claims in negotiation and more than 300 under assessment. There were 39 comprehensive claims under negotiation in British Columbia and 6 elsewhere in Canada.

Frustration with the claims process led First Nations to try other avenues, such as the courts. First Nations, especially those who controlled access to important natural resources, could sometimes force the federal and provincial governments into direct negotiations outside of the claims branches. These alternatives slowly began to yield results, especially in the northern territories, where the federal government has sole control of public lands and did not have to get agreement from provincial governments. In 1984 the Inuvialuit, an Inuit group of the western Northwest Territories, signed a comprehensive claim granting the government access to more than 400,000 sq km (150,000 sq mi) of territory in return for a package that included some mineral rights, reserve lands of nearly 100,000 sq km (40,000 sq mi), and government payments. A similar agreement was negotiated with groups of the Dene, the name taken by the Athapaskan groups in 1975, and the Métis (a people of mixed white and indigenous ancestry) who occupied the Northwest Territories, but their political organizations rejected it in 1990. In that same year the Council of Yukon Indians signed an agreement, which covered the Gwichi’in in Yukon Territory in 1992 and the Sahtu Dene in the western Northwest Territories in 1994.

On the specific claims side, in 1992 the federal government and the provincial government of Saskatchewan signed an important settlement known as the Treaty Land Entitlement (TLE) with 25 (later 27) Indian bands. These groups had signed numbered treaties, but had not received all the land promised to them. The TLE granted the groups approximately C$500 million, to be used primarily for the purchase of lands that would be added to reserve holdings. A small amount was earmarked for economic development. The result of one of the few successful specific claims, the TLE was not the work of the Specific Claims Branch.

Two comprehensive claims that resulted in modern treaties in the 1990s were important. In 1993 Inuit in the eastern Northwest Territories negotiated the Nunavut Land Claims Agreement Act with the federal government. The agreement, which came into effect in 1999, split off the eastern portion of the Northwest Territories and created a new territory, Nunavut. Nunavut is effectively controlled by Inuit people, who constitute nearly 85 percent of its population. In British Columbia, the provincial and federal governments together signed an agreement with the Nisga’a in 1996 that resolved the issues that had sparked the Calder case more than 25 years earlier. Approved by the Canadian Parliament in 2000, the agreement provided the Nisga’a with money, a share of the Pacific fishery, and control and self-government over part of the Nass River valley. However, the agreement was challenged in court.

The courts have also continued to play an important role. In the Delgamuukw case in 1997 the Supreme Court of Canada ruled that the Gitksan of northern British Columbia had aboriginal title. The court emphasized that aboriginal title was a broad concept, meaning actual title to the land itself, and not, as some earlier rulings had suggested, a limited or partial right, such as right to usage of the land. Delgamuukw was also important for the future because the court upheld the validity of oral history, the principal form history took in indigenous communities, and declared that courts had to consider it in proceedings. Therefore the Canadian government could be held responsible for oral agreements it made with indigenous groups.

In 1991 the federal government created the Royal Commission on Aboriginal Peoples to examine all issues related to indigenous groups in Canada, including land claims, self-government, and poverty on reserves. The public inquiry took five years and included public hearings. The commission compiled its recommendations into a report, released in 1996. The report detailed the mistreatment that indigenous peoples in Canada had suffered under both colonial and Canadian governments. Although the government largely ignored its recommendations, the commission played a minor, but useful, role in creating a climate in which settlement of land claims was more acceptable.

V

PROSPECTS FOR THE FUTURE

Indian treaties and land claims are now major public issues in Canada. In four regions of the country where almost no treaties were negotiated before the 1920s—the territories, British Columbia, northern Québec, and Atlantic Canada—Indians have aboriginal title that they insist the government will have to recognize. Not all Canadians support claims agreements. In British Columbia, for example, negotiations by the provincial and federal governments to settle the large number of comprehensive claims may trigger resistance. The non-Indian population in the province is relatively large, and forest and mineral resources located on Indian lands are vitally important to the province’s economy. Some people in the province may object to limiting access to those natural resources.

In Québec, there could be great potential for political clashes. The separatist provincial government has attempted to convince the Québec electorate to vote for secession from Canada. However, in northern Québec, the James Bay Cree and Inuit are still the dominant populations. If Québec secedes, the indigenous groups in northern Québec have declared that they would seek to remain part of Canada and that they would expect the Canadian government to protect their territorial rights. The possibility of such a scenario makes negotiating modern treaties in northern Québec sensitive and important.

The complexity and sensitivity of these aboriginal title issues have combined with other factors to create significant resistance to modern treaties such as the Nisga’a agreement. In particular, the populist-conservative Reform Party, which became the official opposition in Parliament in 1997, opposed such agreements for both political and philosophical reasons. Politically, the party relied for support on groups in the western provinces whose economic interests are threatened by land claims. Philosophically, Reformers believed in a degree of individualism and opposed group rights. The Reform Party opposed the Nisga’a treaty, for example, because the party objected to Nisga’a self-government and special fisheries guarantees to the Nisga’a. (The Reform Party became part of the Canadian Alliance in 2000 but retained its position as the official opposition).

The period of modern treaty-making has been educational for Canadians. The discussions about treaty agreements have increased public knowledge about both Indian land claims and the troubled relations with the non-Indian majority that often underlay them. Now Canada’s indigenous peoples control only a small portion—probably less than 5 percent—of a vast land that once they alone occupied and used. Negotiating modern treaties and correcting problems with old ones have strained relations between Indians and non-Indians in Canada, but recent progress in settling ancient claims, however slow and painful, is likely to provide a better foundation for mutually beneficial relations in the future.