Sour Treaties and Bad Acts

                         The powerful are skilful in colouring over their enterprises – Emer Vattel 

                                                        Sour Treaties and Bad Acts

The execution of the Indian Act was illegal under international law. It became law while the government of Canada was negotiating treaties with various nations that were not made aware that the act would be imposed upon them. The wording of the act does not acknowledge separate nations in Canada (The Indian Act, 1876), but the very process of signing treaties with other nations is recognition of their sovereignty (Vattel, Book II, Chapter XII). In acknowledging the separate nations with the treaties while at the same time enforcing the Indian Act as if those nations did not exist, the government of Canada was engaged in contradictory policies.

I will focus on Treaty Six but its similarities with the other ten numbered treaties are sufficient to show their common standing in international law and how The Indian Act was a breach of those agreements. The nations of Treaty Six did not give up sovereignty but they did offer to share their hunting land with settlers in exchange for reserves to live on and assistance towards prosperity. Canada did not fully honour its Treaty Six agreements and in many ways used the Indian Act as a vehicle of that betrayal. This was especially true in the later implementation of residential schools (Beyond Treaty Six). If Canada had simply fulfilled its end of the treaties there would have been no need for the Indian Act and the question of “What is an Indian?” would have been irrelevant.

Treaties are agreements that result from conference between nations and therefore they are formed under international law (Vattel, Book II, Chapter XII). The numbered treaties are several that were the consequence of consultations between the Canadian nation and many others. In the case of Treaty Six there were scores of nations involved (Treaty Texts: Treaty No. 6).

While Treaty Six resulted from international diplomacy there was no consultation with the nations over which the Indian Act became law. The legality of the Indian Act is questionable because it was not preceded by treaties of submission or agreements to give up sovereignty on the part of the other nations within the boundaries of the Canadian nation (Vattel, Chapter XVI, s. 193).  Treaty Six makes no mention of the giving up of sovereignty or nationhood. The signatories of Treaty Six agreed to “conduct and behave themselves as good and loyal subjects of her majesty the queen”. This would not entail the giving up of sovereignty, as there were many distinctly sovereign nations within the British Commonwealth, including the Canadian nation, whose citizens were required to be loyal subjects of the monarchy (Treaty Texts: Treaty No. 6).

Treaty Six is essentially a land for protection treaty (Vattel, Book I, Chapter XVI).  Probably without full understanding that they were giving up land (Venne 6), the nations that signed the treaty ceded about 200,000 square kilometres and promised to obey the law (Vattel, Book II, Chapter XVII). The nations were promised in return 640 acres per family of five on reserves, farm items, hunting and fishing tools, seed, livestock, money, medicine, a school on every reserve and the promise of relief during times of famine and pestilence (Treaty Texts: Treaty No. 6).

The government got what it wanted from Treaty Six but it did not fully honour its own promises. While families of five did receive 640 acres and individuals received 160 acres for farming, much of the reserve land was not conducive to agricultural pursuits. The farm tools were grossly inadequate and many people willing to work had nothing with which to till the soil (McQuillan 389-390). There was not sufficient livestock, the widespread medical assistance, nor schools on each reserve as promised (Beardy’s and Okemasis, 117). Finally, there was starvation following the treaties and pestilence in the form of a widespread outbreak of tuberculosis. The government’s response to these problems was inadequate and often indignant (Daschuk).

The greatest breach of treaty promises came about when the government implemented the residential schools program (Beyond Treaty Six). Treaty Six clearly states that there would be a school on every reserve: “Her majesty agrees to maintain schools for instruction … whenever the Indians of the reserve shall desire it.” With the specification of “whenever the Indians of the reserve shall desire it” the treaty puts the power of the choice of education in the hands of the nation on the reserve. The responsibility of the government of Canada was to provide the nations with the education that was so important to them that they gave up land for it. The removal of children to attend school elsewhere was a severe betrayal of Treaty Six.

Since many of the promises of the government in Treaty Six were broken, according to of The Laws of Nations whatever nations signed the treaty should be able to reclaim their sovereignty, land and nationhood (Vattel Book I Chapter XVI). Further, “If the more powerful nation should assume a greater authority over the weaker one than the treaty of submission or protection allows, the latter may consider the treaty as broken (Vattel Book I Chapter XVI).” This was clearly the case with the enactment of The Indian Act.

Part two of the preamble of the Indian Act declares that a Superintendent-General of Indian Affairs would be in charge of “control and management of the reserves, lands, moneys and properties of Indians in Canada” (The Indian Act, 1876). As Treaty Six and each of the other numbered treaties contained an agreement to obey the laws of Canada there was no need to impose separate laws on Canada’s Indigenous people (Treaty Texts: Treaty No. 6).  Certainly a Department of Indian Affairs would have been useful is a ministry responsible exclusively for fulfilling the government’s treaty obligations rather than for governing reserves. As these Indigenous nations already had their own traditional governments they should have required no more micromanagement by the government than any municipality in Canada.

Before signing Treaty Six each of the various nations were trusted to have

decided which men and women were members of their nations. The authorities of the various chiefs and headmen were respected enough by the government of Canada to let them determine the geographical fate of the thousands of members in their care by signing over to Canada an area of land the size of the British Isles. As there is no wording in Treaty Six that diminishes the authority of those chiefs and headmen over their people (Treaty Texts: Treaty No. 6), they should have continued to maintain the power to decide their own membership rather than the Canadian government making such determinations, as in Term three of the Indian Act (The Indian Act, 1876).

Sections 86 to 93 of the Indian Act imposed the strange and pernicious laws of enfranchisement, which cancelled all treaty rights enjoyed by any member of a reserve that became an educated holder of an academic degree such as a doctor, lawyer or Christian priest. Even more horrendously, in the Indian Act women are considered as less than any male above the age of fourteen. In section 3 (3. c and d) of the Indian Act the removal of treaty rights was imposed upon any woman who married someone outside of her treaty (The Indian Act, 1876). The removal of treaty rights based on criteria not delineated by that treaty is illegal under international law (The International Origins of Aboriginal and Treaty Rights).

Treaty Six has some of the language of a marriage ceremony as if the chiefs were the fathers of the bride of the land being wedded to the British monarch "to have and to hold" (Treaty Texts: Treaty No. 6). The idea of Treaty Six as a giving away of the bride of the land by the Indigenous nations works as an analogy for how the marriage should have come to be, without the need for the Indian Act. The spouse does not take possession of the bride and the parents-in-law but merely has the bride to hold while the parents-in-law continue to enjoy a close relationship with their daughter, the land.

Works Cited

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