History and Origins
The film excerpts in this theme look at the creation myth of the Wendat, the life of the Mi’kmaq before European settlement, the origin of the word “Canada,” and the question of territory under the English and French regimes.
Alliances and Treaties in Aboriginal Americas
by Olive P. Dickason
The importance of alliances and the treaties to which they gave rise in the Aboriginal world would be difficult to overestimate. This has nowhere been more evident than in the Americas, both before and after the arrival of Europeans. Not only were treaties of first-rank importance when they were signed, they are still in the forefront of Amerindian politics today.
The treaties currently in effect in Canada were mainly initiated by colonial governments wishing to acquire land. In international law, the principle that continuous use and possession of land “from time immemorial” is a basis for title dates back to at least Roman times, when jurists considered it to be a self-evident rule of natural law. In the wording of Justinian’s Code (compiled between 528 and 533), “natural reason admits the title of the first occupant to that which previously had no owner.”
Natural law was described by Cicero (126-43 B.C.) as non scripta sed nata (“not written, but born”). This corresponds to the Amerindian view that “our law is given to us, not made by us.” As medieval canonists saw it, natural law was the forerunner of human rights, pre-dating the formation of states. According to its principles, rights of discovery applied only to unoccupied lands and could not be used to justify seizure of lands already in use.
However, as word of Columbus’s achievement spread, so did the popular belief that it had been a “discovery” in the full sense of the word, giving Europeans the rights to claim the land. It was easy for Europeans to view Amerindians as living according to nature “like beasts in the woods,” with no more rights to land and its resources than wild animals.
In spite of such attitudes, Europeans soon formed alliances with Amerindians for such enterprises as whaling and, in Canada, the fur trade. In a world where strangers were likely to be considered enemies, alliances and/or treaties were essential for successful enterprises. Without such agreements, even the inter-tribal situation was one of latent, if not outright, hostility.
In the sixteenth century, it was principally the French who pioneered friendship treaties with Amerindians, usually for trade. Eyeing the Brazilian coastal stands of dyewood trees (Caesalpinia echinata and related varieties, a source of red dye much in demand by the burgeoning European textile industry of which France was a leader), France asserted the “right” of all nations to participate in this new trade. Since the region where the best stands were found was already claimed by Portugal, France set about circumventing this by forging alliances with natives of the region.
In forming these alliances, the French were careful to follow Amerindian custom, to give them validity both in Aboriginal and European terms. This meant that agreements were usually not written and had to be periodically renewed with appropriate ceremonies and gift exchanges. In the Amerindian view, such renewals were necessary to keep them in tune with changing times. The idea that treaties could endure without periodic adjustments “as long as the sun rises and the river flows” or “as long as the grass grows” was a European one.
Land rights did not become a major issue in the French/Amerindian negotiations. The closest France came to officially acknowledging such rights was in 1665, when the Governor of New France was instructed “not to usurp the lands on which they [Amerindians] habitually reside, on the pretext that they would be improved by the French.”
The English, in contrast, favoured written treaties, but it is not clear what legal status they accorded them. Later court decisions would place it somewhere between a contract and a promise. The treaties were written in English, without any versions in appropriate Amerindian languages. For the Amerindians, the written copy of the treaty merely symbolized the accord.
The earliest written treaty text that has survived is a 1645 peace accord between the New England Federation and Narragansetts and Niantics. It is known that there were earlier texts, believed to date to at least 1620, but none has been found. The first to include Amerindians in what is now Canada was the Treaty of Portsmouth, New Hampshire, 1713, involving the people of the St. John River, mostly Maliseet. The treaty acknowledged they were subjects of the British Crown and in return were promised territorial security.
The Proclamation of 1763, by reserving to the government the right to acquire Amerindian lands, shifted the emphasis of treaties from peace and friendship to land issues. Annuities were introduced in the Halifax Treaty of 1752 between the British and the Shubenacadie band of Mi’kmaq. At first, annuities substituted for the gift exchanges that had characterized earlier accords, but would later be considered as payments for land cessions.While it is all too evident that neither side fully understood the conceptual world of the other, it is also clear that the fundamental purpose of treaties—reciprocal exchange—was generally acknowledged. Evidence abounds that the British considered the obligation to negotiate with the First Nations to be moral rather than legal.
It can be argued that the strength of the First Nations’ position lies with natural law, rather than with treaties. In international law, there has been a move toward recognizing the fundamental (or “inherent”) rights of Aboriginal peoples. This is a positive development in a world where the relationship between established (traditional) principles and adaptation to changing circumstances needs constant attention. Adaptation is the key to Aboriginal cultural survival today, just as it was to their physical survival in the days of the mammoth hunters. Treaties, important as they continue to be in this never-ending process, are still instruments, rather than ends in themselves.
Olive Patricia Dickason
Olive Patricia Dickason is a professor emeritus of history at the University of Alberta (1976-1992) and adjunct professor at the University of Ottawa. She is the author of several books, including Canada’s First Nations: A History of Founding Peoples (1992), The Myth of the Savage (1984) and Indian Arts in Canada (1972), as well as numerous articles and reviews. Before she began her teaching career, she was a journalist for the Regina Leader-Post, the Winnipeg Free Press, the Montreal Gazette and The Globe and Mail in Toronto. She holds honorary degrees from several universities and is a fellow of Ryerson Polytechnic University. A member of the Order of Canada (1996) and a recipient of the Queen’s Golden Jubilee Medal (2002), her other honours include a Lifetime Achievement Award from the National Aboriginal Achievement Foundation and being named Métis Woman of Year by the Women of the Métis Nation of Alberta in 1992.