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Indigenous Sovereignty: Treaties

"There exist more than five hundred treaties between Indigenous peoples and the Crown in Canada" (20).

Macklem, Patrick. "Indigenous Peoples and the Ethos of Legal Pluralism in Canada."  From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal and Treaty Rights, edited by Patrick Macklem and Douglas Sanderson, U of Toronto P, 2016, pp. 17-34.

"If we take the view that we lied, the treaties become worthless pieces of paper and we are back to square one. But if we take the view that we meant what we said, they become transformative, for through them we became permanent partners sharing the land, not thieves stealing it, people who are here to stay not because we had the power to impose our will but because we forged a permanent, unbreakable partnership wth those who were already here when we came. Treaties, then, and not the constitution, are our charter of rights, for they give us what is necessary before any form of self-governance can become legitimate: the legitimacy to be living in a place. . . . But here is a problem. In return for this gift we vowed to keep certain promises in perpetuity. . . . We know full well that we have not kept our word. That is a legacy with which we will have to deal, just as we will have to deal with the fact that we violated the principle of temporal priority and settled on lands without first gaining the consent of those already living on them. It is a matter we will need to address, for we cannot wish it away" (99).

Asch, Michael. On Being Here to Stay: Treaties and Aboriginal Rights in Canada. U of Toronto P, 2014.

"In almost every treaty negotiation one can detect dishonesty, trickery, deception, fraud, prevarication, and unconscionable behaviour on the part of the Crown" (113).

Borrows, John. Recovering Canada: The Resurgence of Indigenous Law. U of Toronto P, 2002.

"[T]here is not one treaty that has not been broken by the white man, not one treaty fulfilled" (17).

"By and large, the articles of all written treaties between the Indians of Canada and the government of Canada must be considered misleading because they omitted substantial portions of what was promised verbally to the Indian. Additionally, they carry key phrases that are not precise, or they state that certain things were ceded that, in actual fact, were never considered or granted by the Indians who signed the treaties" (32).

"While we find much to quarrel with in the treaties as they were signed, they are, we contend, important, not so much for their content as for the principles they imply in their very existence" (36).

Cardinal, Harold. The Unjust Society: The Tragedy of Canada's Indians. M.G. Hurtig, 1969.

"In a very real way, most Canadians exercise a treaty right simply by living where they do. . . . So why is there no more volcanic an issue in Canadian society than treaty rights? . . . They [i.e. Canadians] live in a political culture in which a certain idea of equality has gained a powerful foothold. . . . Tribal identities are a puzzle, if not an anathema, in liberal societies; they make conflicting demands of well-intentioned people who, with reason, understand the struggle for non-discrimination as a significant one. But surely another part of the reason is the mark left by the myth of terra nullius. Imbued with that myth, Canadians can live more comfortably, forgetfully, with the dirty little secret that the treaties were a one-time land swindle than with the possibility that they might mean something in perpetuity. They do not want to know that aboriginal peoples had their own understandings of treaty-making as a form of sharing" (133).

Epp, Roger. "We Are All Treaty People: History, Reconciliation, and the 'Settler Problem'." We Are All Treaty People: Prairie Essays, U of Calgary P, 2008, pp. 121-141.

"Treaties serve to reconcile pre-existing Aboriginal sovereignty with assumed Crown sovereignty . . ." (par. 20).

Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511

"The treaties with the Queen did not give Canada jurisdiction over us. The treaties gave Canada the right to exist" (125).

Johnson, Harold R. Peace and Good Order: The Case for Indigenous Justice in Canada. McClelland and Stewart, 2019.

"The argument that Indian people did agree to surrender huge tracts of land in exchange for as little as four ($4.00) or five ($5.00) a year for each beneficiary is a flimsy foundation for some of the unfair practices which have evolved into hard core domestic law in the form of Canadian Indian written treaties. Yet the courts continue to adhere to formalistic rules such as those restricting the use of the oral evidence of elders when Indian people attempt to prove their title to their historic lands. The fact that their oral submissions have been given little weight is seen by Indian litigants and other Indian people as an example of arbitrary rules being used to perpetuate injustice against Indian people" (3-4).

Opekokew, Delia. The Nature and Status of the Oral Promises in Relation to the Written Terms of the Treaties. Royal Commission on Aboriginal Peoples.

"The written texts of these treaties must be read with a critical eye. Usually, they were accompanied by extensive oral exchanges, which may have constituted the true agreement. The written version was translated orally to the Indians in a process that allowed ample opportunity for misunderstanding and distortion" (734-735).

Slattery, Brian. "Understanding Aboriginal Rights." The Canadian Bar Review, vol. 66, no. 4, 1987, pp. 727-783.

"[E]ven when the need for consent through negotiations is acknowledged, a significant limitation continues to exist. . . . First, the negotiations take place within and through the legal, political, and economic institutions that have been imposed on indigenous peoples without their consent. Second, they also transpire within the discursive field of the two dominant theses. . . . It is assumed that both parties are caught up in causal processes of historical development, modernization, and globalization, and that they are already in agreement on the general norms of Western forms of political and economic organization. As a consequence, the negotiations unfold within the institutional and discursive matrix of one of the partners, the nonindigenous partner, and the play of consent and dissent takes place within its boundaries. . . . Hence, modern practices of consent through negotiation occur within and reproduce the colonization of indigenous people rather initiating processes of decolonization" (241-242).

Tully, James. "Consent, Hegemony, and Dissent in Treaty Negotiations." Between Consenting Peoples: Political Community and the Meaning of Consent, edited by Jeremy Webber and Colin M. Macleod, UBC P, 2010, pp. 233-256.

Electronic Collections of Historic Treaties

Print Collections of Historic Treaties