by Marcia Veldman
From 1871 to 1921, a series of eleven treaties were signed between the Indigenous peoples of Canada and the Crown, agreements describing exchanges of ancestral lands for varied payments in return. Although the treaties inscribed on paper are preserved for examination in our current time, the oral promises exchanged between the Chiefs and Commissioners have attenuated and diminished with the passing of time. In recent years, cases have been brought to the Supreme Court of Canada to examine whether the federal government has fulfilled its treaty promises to the Indigenous peoples, thus demonstrating how the addressed treaties are legally interpreted by Canadian courts. There are three primary way wherein the treaties may be interpreted: through the literal approach of studying physical documents, through the “spirit and intent” approach focusing on the Indian understanding and oral accounts of the treaties, and through the legal interpretations from Canadian and International courts.
When considering the literal documents which were signed by both Indigenous Chiefs and Commissioners of the Crown, it is important to note the differences between the Euro-Canadian and Indigenous cultures. Although the European settlers had used paper and coin currency as a means for payment for several hundred years, the Indians did not possess an understanding of the value of banknotes due to the recent introduction of it into their societies, therefore rendering the promises of financial annuities meaningless for many. As stated in an interview with John Yellowhorn, “…no one explained to the Indian what this paper money was for. They were told it was for trading, but they did not know its value…They did not know how to count it, what it was worth.” . Not only were the concepts presented by the Crown foreign to the Indigenous people—the treaties being written, and promises being spoken in English created another barrier to clear communication. Interpreters were present at the signing of the treaties, yet not every dialect was represented, and the fairness of the interpreters was questionable. In 1877, the Cree brought Metis interpreter Peter Eramus to the signing of Treaty Seven to clarify the terms of the treaty. Eramus later stated, “‘…my sympathies transferred to the Governor’s side’. From that point onward, Eramus was the main conduit through which information was passed from the Commission to the Indians” . Finally, the Crown and each person involved with writing the treaties demonstrated a culture built from occidental philosophy, which included the concept of property ownership. The British subscribed to the concept of private ownership, but the Indians cyclical philosophy led them to believe that land ownership was impossible as the lands belong to the Creator themselves. The Indians did not believe they could truly relinquish the property outlined in the treaties because “they were never given such unconditional ownership by their grantor (the Creator)…” .
With the concepts presented in the written treaties lacking clarity, and the language used inaccessible for the Indians, the second approach to interpreting the treaties is invaluable to understanding how the spirit of the treaties was interpreted by the Indigenous peoples. The Crown and Euro-Ccanadian settlers valued the power of written contracts and agreements but failed to understand that the Indians viewed oral promises in the same light: as legal contracts and “when oral communication takes place, it is understood that men are literally bound by their words” . Logically, if the bands valued oral promises as strongly as written contracts, it would prove difficult for the Commissioners and agents to create an understanding that only written documents bore any legal weight with the signing of each treaty. Though they attempted to clarify the contents and significance of the treaties, “there are serious doubts that the Commission was ever successful in explaining this concept to the Indians. It was a constant problem associated with the negotiation of every Indian treaty” . Intertwined with the importance of oral contracts was the spirituality wherein the Indians approached the treaty ceremonies: the smoking of the peace pipe was a ritual of seeking guidance from the Great Spirit . The Commissioners and agents, however, did not grasp the spiritual significance of these ceremonies to the Indigenous people; the spirit with which the Indians approached the treaties and the cultural philosophies they celebrated were significant to themselves but were not understood by other parties present. These cultural differences are the fundamental reason why the spirit and intent with which the Indigenous people interpreted and participated in the treaty signings should be accounted for when considering the legality and content of the treaties.
Finally, the third approach to interpreting the treaties is through international and Canadian laws, which differ significantly. Though the Royal Proclamation of 1763 confirmed aboriginal rights and recognized “Indian title to land as having its source in Indian ownership from time immemorial” , the numbered treaties initiated by the Crown with Indigenous nations belied this proclamation. The treaties were based upon the European doctrine of discovery, which held that the first European country to land on unexplored land held rights over the property , and they sought to nullify all Indian right to the land. Today the Supreme Court of Canada does not recognize the Indigenous people as a sovereign nation and continues to hold land as Crown land even though the treaties were signed between two nations. The proprietary approach that the Crown has exhibited towards all Indigenous nations is rooted in the English law system and does not adhere to the standards of international law .
On reflection of the three approaches to interpreting the treaties, it is difficult to definitively state which approach is the most accurate. The treaties were written by a party with a philosophy and culture that was dissimilar from those of the signing parties, creating an inherent cognitive dissonance. Each approach is vital to interpreting the treaties, and therefore the written and oral contracts should be considered when examining the history and standing legalities of these treaties.