Learning and Reconciliation

Why We Say a Land Acknowledgement

Two good questions that came up in discussion about the film Treaty Talk
After St. George’s Thursday night discussion group had watched a film called Treaty Talk, directed by Dr. Pat Makokis, in October, some really good questions came up in discussion. Among the questions that were raised, there were two direct and to-the-point questions that went right to the heart of things. They were less about attitudes than about facts.

That night I was dissatisfied with my attempt to respond to those two questions. They went right to two central issues about land and so they deserved a more thoughtful response. Over the next couple of days, I reviewed the historical record for better answers. This is the result.

My perspective is based on both scholarly work and—just as important—conversations with First Nations and Metis elders over the past 50 years that I’ve been part of in the course of both my personal and professional life. I’ve tried to check everything fact statement with current reliable on-line documentary sources. I’m paraphrasing those two kernel questions about land.

First, when we say we live on Treaty 6 land and acknowledge traditional territory, does that mean that First Nations people retain an interest in land that other people now occupy? If so, what is the continuing interest that First Nations people have in land that has been taken over by others under the terms of a treaty?

Second, the questioner mentioned that she’d seen a deed for property that had a First Nations chief’s signature on it from years ago, adjacent to a lake, and she asked how a chief would have been able to sell a specific parcel of reserve land. I’ve written a summary answer to each of those questions, followed by a little more detail in case anyone wants more context. When we acknowledge traditional territory, what kind of continuing First Nations interest in the land does it signify? Some people think we make the acknowledgment to satisfy the sensibilities of First Nations people—that it’s a kind of obligation that comes out of our commitment to reconciliation. But it’s not for them. If we don’t do it for all of our sakes we might as well not do it. Acknowledging traditional indigenous territory is one way to affirm that we all share a connection to this place by virtue of Treaty 6.

The facts are these: the western numbered treaties weren’t one-time land deals—their provisions are supposed to go on indefinitely. In International and Canadian law there is a continuing First Nations interest in land, based on the legal concept of aboriginal title, which in Canadian legal contexts exists alongside the interest of the Crown. Here
in Central Alberta, that interest was initially addressed by the Canadian government in Treaties 6, 7, and 8. Those are three of the eleven western post-confederation treaties that cover the three prairie
provinces, parts of Mackenzie, and Northeastern B.C. Those treaties were a way to bring together and reconcile aboriginal title and the sovereignty of the Crown in what are now the prairie provinces and west central territories.
For those numbered western treaties such as Treaty 6, which includes the Edmonton area, there are fundamental differences between the written treaty text, on one hand, and, on the other, the records—both
oral and documentary—about what was actually affirmed during the treaty negotiations that took place in the 1870s. Because of that, Canadian courts have recognized an obligation to interpret the treaties
in terms of their original intent, not solely in terms of the written text. That intent is not always clear. First Nations negotiators passed down to the Nations’ oral tradition keepers, in great detail, the specific things about which they and the government negotiators had agreed. The indigenous perspective is that the treaties were not land surrenders but that they set out the principles and conditions under which the land would be shared.
“Share” is the keyword. What is clear is that they committed their heirs and descendants to such sharing forever and that they expected the same enduring commitment from the settlers. Inseparable from the idea of agreement about land use, though, was the idea that the treaties were supposed to be the basis for all of us to
get along here in peace. Unfortunately, the Canadian government began violating the terms of the treaties within months after signing. It’s a clear matter of historical, legislative, legal, and social record that they used the treaties to strip indigenous people of civil and human rights. For example, Registered Indians (i.e., people recognized as Indians under the Indian Act) were not supposed to leave the reserve without written permission; they needed the agent’s permission for commercial transactions; they were wards of the state, denied adult status; they
could be put in jail or fined for practicing traditional ceremonies, orsimply be declared to be of bad moral character by the agent, and punished, or have their children removed. If they completed secondary schooling, took up a profession, or left the reserve for a period, they were forced to abandon their status as Indians. They were prohibited from organizing politically. With successive revisions of the Indian Act between 1869 the 1950s they were subject to a long period of inhumane political domination and containment. And they were allowed no legal or political redress. Until the last half of the 20th century, First Nations people weren’t even supposed to consult a lawyer. Is it possible to separate the ethical dimensions of those policies from the legal ones? Since the 1970s, courts have recognized the legal implications of past government treatment of indigenous people.

Governments have struggled to remedy the problems that the courts have required them to address. But besides the legal issues, there are ethical, political, and social consequences of 150 years of broken relationships. Acknowledgment of traditional territory can be seen as our commitment to work things out in the spirit of the treaty.
How could a First Nations chief sell First Nations land? The short answer is that a provision in the written text of the treaty allows Indian Affairs, with the approval of the First Nation, to sell reserve land for the “benefit” of the people living on it. It’s not that simple. The written version of Treaty 6 has a formula for setting aside the land
to be reserved for the exclusive use of each First Nation: one square mile for each family of five. The written treaty also says that the federal government, with the consent of the band and for its benefit, could sell
reserve land off to others. That formula and the provision for Indian land sales were apparently not negotiated at the time of treaty signing, nor agreed to by the First Nations, but were included in the text of the treaty document. Immediately after the reserves were surveyed and set aside in the 1880s, white businesspeople, politicians, and Indian Affairs agents brought intense pressure on First Nations to sell portions, or in some cases, all, of their reserves. Frank Oliver, the publisher of the Edmonton Bulletin and an influential federal politician, was a vocal promoter of this from the mid-1880s onwards. The prevailing settler opinion was that many of the First Nations would die out and the remainder would be assimilated.

How could an Indian agent get the consent of the First Nation for land alienation? Through the Indian Act, Indian Affairs disregarded traditional patterns of authority within First Nations and imposed a chief-and-council governance structure on every First Nation. That allowed the government to recognize only those departmentally approved spokespersons as legitimate representatives of a band. (It should be noted that many First Nations elected traditional leaders as chiefs and council members.) That allowed local agents to focus the pressure to approve land sales on only one or two individuals, without taking into consideration the First Nations’ own longstanding governance structure. The Act gave Indian agents inconceivably intrusive control over the lives
of reserve residents, and with that control came leverage. The first major effort at control was to withhold the food that had been promised when indigenous people faced famine. The first major alienation of reserve land in the Edmonton area was the sale of the entire Papaschase reserve in what is now South Edmonton in 1888.
Twenty years later, Enoch First Nation, just to the west of Edmonton, was forced to sell almost half its reserve. The Sharphead Nakoda people, originally from around Pigeon Lake, moved to their reserve south of Ponoka in 1883 but were decimated by disease and starvation in the late 1880s. The survivors were forced to relocate and join other
bands when Indian Affairs declared the Sharphead band “extinct” in 1897.

The four nations at Maskwacis (who, since the mid-1890s, have shared interest in the Pigeon Lake reserve) were pressured early on by white farmers in the Wetaskiwin area to sell parts of the four contiguous Maskwacis reserves. The Methodist minister, John McDougall, and the revered Roman Catholic priest, Father Lacombe, were especially
influential with the people of the Maskwacis First Nations, and those two clerics promoted the sales as well. All but Ermineskin First Nation lost land through this process. The pressure was especially intense between the 1890s and the 1920s, though it actually continued in the Central Alberta Treaty 6 area until the late 1950s. At Maskwacis, according to the testimony that was recorded by witnesses who were interviewed in the 1970s, some of the land
transfers in the early 1900s were approved by individual chiefs, sometimes without consultation with members. The chiefs, like all Treaty Indians, were government wards and as such were prohibited by the Indian Act from owning land in their own right, so land transfers had to be completed by the Indian agent, with a chief and/or councilors
signifying approval.

Land transfers at Pigeon Lake were made in 1924 on behalf of the Maskwacis First Nations. Indian Affairs’ Annual Report for the year 1924 says that based on a general vote in 1922-23. During the year a portion of the shore-front of Pigeon Lake Indian Reserve No. 138A, in the Province of Alberta and known as MaMe-O Beach, was surrendered by the Indians for the purpose of sale for summer resort purposes. The area surrendered was subsequently divided into lots which were offered for sale by public auction, when 42 of the lots were sold for the sum of $7,975.00.–Annual Report of the Department of Indian Affairs for the Year Ended March 31, 1924, Sessional Paper No. 14, Ottawa: King’s Printer, 1925, p.18. The elder who, in the 1970s, remembered this land transfer couldn’t
remember who authorized it, but her son was a council member at the time and told her about it, so it must have had been based on a council decision. A little more detail about treaty and land transfer history, in case
anyone is interested.

Treaty and Aboriginal title: Aboriginal title to land is a legal reality that recognizes a unique interest
in land based on use and occupancy over the millenia before mass European arrival. The Crown recognizes aboriginal title as a “burden” on its own claim to sovereignty over the land. From the settler point of
view, treaties are a way of trying to reconcile the interests of the Crown with aboriginal title. Please note that some areas of Canada (including much of B.C.) are not covered by treaties and are often referred to as unceded territory. First Nations interest in those lands is just as complex as it is in places covered by treaty. From the indigenous point of view, treaty-making is an ancient but still vital cultural process for bringing groups into relationship with each
other in reciprocity and respect. In the film we watched together, the two-row wampum, signifying two peoples using the same river, was mentioned as a powerful symbol of that kind of treaty relationship in one of the earliest treaties in the East. Another indigenous symbol of treaty-making is the linking of arms in mutual aid, making both nations stronger. The traditional indigenous treaty-making process is based on a principle of providing room for everyone. In the 1870s, the First Nations of this area were attempting to bring the settlers into that ancient
treaty process, and it was on that basis that they offered the pipe, in ceremony.

It’s worth noting that the Crown’s claim to sovereignty here is based on the “doctrine of discovery” and the absurd but convenient falsehood that North America was uninhabited (“Terra Nullius”) when Europeans arrived. The Assembly of First Nations has petitioned the government to formally disavow the doctrine of discovery. (This link will take you to their statement about it.) In 1867 the government of Canada took on the obligations of the pre-confederation treaties and began negotiating the western treaties shortly thereafter. As courts have revisited the way in which those numbered western treaties should be implemented, and as they consider the intent of the treaty-makers, it has not been a simple matter of the weighing the difference between written treaty and oral
tradition, but it has to do with what the Supreme Court has called “the honour of the Crown”: in implementing the Treaties the government must avoid “sharp-dealing” and act honourably. The main government negotiator for the Crown for Treaty 6 in the 1870s was the Lieutenant Governor of Manitoba, Alexander Morris. He kept a diary of his part of the negotiation, and in both the diary and in his written criticisms of the government afterwards, one can see that his understanding of what had been negotiated aligned in many cases with the First Nations’ oral accounts. The main point is that in the oral accounts it’s clear that the numbered western treaties were not land cessions but were partnerships, setting out terms for sharing the land. In the European tradition, indigenous people had, at the time, clear and unequivocal aboriginal title. In indigenous tradition, the people themselves were inseparable, physically and spiritually, from the land, and treaty-making was a way of bringing settlers into that relationship
with each other and the land. It’s not “land” as an abstraction, but the specific land on which they carried out their lives. This interpretation isn’t based on indigenous concepts alone. Some salient points at which western intellectual and legal traditions are coincident with indigenous thought, in connection with the Western treaties, are discussed
brilliantly by Michael Asch in his 2014 book On Being Here To Stay: Treaty and Aboriginal Rights in Canada (Toronto: University of Toronto Press). He offers documentary insight into the intent of the Crown’s negotiators. (It’s from Dr Asch that I learned about the powerful symbol of the linked arms. I think his book is an initial calculus for our coming to terms with, and finally realizing, the Treaty relationship—mutually
understood—that was envisioned in the negotiations of the 1870s.)
The First Nations didn’t surrender their right to self government, nor to
the maintenance of their lifeways, nor to their identity with the specific
territories they had been using: in fact, those things are specifically
secured in the Treaty. One of the ways in which they have a continuing
interest in land use, upheld by the courts, is that they have the right to
be consulted over how the land that they are identified with will be
used. Canadian courts have been building up a body of precedents for
interpreting the several issues that are involved, following the very clear
evidence, both documentary and oral, that successive governments
since the 1870s have violated the spirit and intent of the treaties. I think
that there is now widespread agreement that remedies for the
consequences of that violation have to be found, soon.
Why would a chief’s signature appear on a land transfer? A little more
detail of the history.
The written treaty required First Nations approval for Indian Affairs to
take back reserve land, and it was always supposed to be for the
“benefit” of the band. A chief’s signature wasn’t needed, but it gave
credibility to a transaction. But how could any reserve land be
considered to be “excess”, and who weighed the “benefit” against the
loss of access to land? The reserves were supposed to have been
created for the exclusive use of a band—a home base for the Nation
from which to continue lifeways using any Crown land—but Indian
Affairs began using them, instead, to restrict the movement of
individual First Nations people.
Treaty 6, like the other numbered treaties, provides for the creation of
areas to be reserved for the exclusive use of each of the First Nations. It
often took a few years after each band came into treaty for the formal
and legal identification of their reserve land to take place. For example,
Papaschase Reserve (which is now Mill Woods) was set up in 1880,
three years after Chief Papaschase signed treaty in 1877. Chief Enoch
Lapotac signed Treaty in 1884, and the reserve named for him (just west
of Edmonton) was created five years later, in 1889, on condition that
they accept the remainder of the Papaschase members who had been
just been forced off their land. Michel’s Iroquois Band at Callihoo, with a
reserve near Villeneuve, signed treaty in 1884 and had their reserve
formally recognized just a few years later. The Sharphead Nakoda
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signed in 1876, but their reserve on the Battle River south of Ponoka,
where they had relocated in 1883, wasn’t created until 1885.
Chief Bobtail, from the Bear Hills area, traveled to Blackfoot Crossing in
1877 to sign on to Treaty 6 on behalf of the nations that are now at
Maskwacis, but formal reserves weren’t established for Bobtail,
Ermineskin (including the now-separate Louis Bull), and Samson First
Nations until 1885. The Bobtail group left during the very first year of
reserve life, and the Montana Cree First Nation took up that reserve
when they returned from the U.S. in the 1890s. The reserve at Pigeon
Lake was set aside in 1896 for use by the four First Nations from
Maskwacis, but it had been in continuous use by them before that.
Other groups close to Edmonton are Alexis, Alexander, and Paul’s, and
their reserves were all established during the 1880s. The last reserve
creation in Treaty 6 in Central Alberta was north of Rocky Mountain
House, in 1944 and 1951, when Sunchild and O’Chiese First Nations
signed on.
Initially, the First Nations signatories to the Treaties had some power in
choosing where their reserves were to be, though some areas of
longstanding significance and focal use were off the table (e.g., the
North Saskatchewan river banks in the Edmonton area, and the Beaver
Hills just east of Edmonton). Regarding reserve size, the formula in the
written version of Treaty 6—one square mile for each family of five—
was based on small-scale mixed farming, not on indigenous lifeways,
and on the assumption that First Nations families were structured, like
Europeans’, around households based on the nuclear family. That
formula generated relatively small reserves, even compared, for
example, to those in Treaty 7, but that was just the first step in
restricting First Nations reserved land base.
In the most general terms, the land set aside as Indian Reserves were
not the most desirable commercially or agriculturally, but some reserves
were on land that others wanted. Almost immediately after the reserves
were established, white land speculators, politicians, and
businesspeople brought immense pressure to bear on the federal
government to alienate reserve land for white settlement. I’ve noted
before that in the mid-1880s and continuing for many years, one of the
loudest voices for alienating First Nations land was the influential
politician and publisher of the Edmonton Bulletin, Frank Oliver. He led a
powerful constituency of land speculators, businessmen, Indian Affairs
agents, and sympathetic members of the general public. (Note that the
Oliver Community League officially launched a campaign this year to
rename the neighborhood because of Oliver’s white supremacist
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politics and the consequential anti-indigenous, anti-black policies he
implemented, especially while he was in the federal cabinet.)
Paspaschase at Mill Woods remains one of the starkest examples of
early land alienation. Local Indian agents withheld the food and supplies
that had been promised in treaty and made life a living hell for
Papaschase members right after the reserve was created. In order to
keep from starving, several members left the reserve to join with
Bobtail’s or Enoch Lapotac’s bands. Many took Metis scrip—renouncing
Indian status in exchange for certificates that were supposed to be
exchanged for homestead land or sold for cash. (The issuance of those
land certificates, or scrip, was the way the federal government tried to
deal with the inconvenient possibility of Metis aboriginal title. The
fundamental difference in the government’s attempt to reconcile the
interest of the Crown with aboriginal title was that, for the Metis, they
approached it on an individual basis, while for the First Nations the
treaty-making process was collective, nation to nation.) Indian Affairs
evicted the few remaining Papaschase people in 1887, and finally, in
1888, the agency got three members to sign off on the sale of the
reserve for token payment. The land was then sold at auction to land
speculators. Note that the reorganized Papaschase First Nation is
recognized by the Assembly of First Nations, but not by the Federal
Government, which has rejected its claims for restitution because they
say—in a classic Catch 22—that Papaschase First Nation is not an
organized First Nation. Can reconciliation now mean that there might be
political will to pressure the federal government to recognize
Papaschase First Nation?
The most unrelenting pressure on dispossession of reserve land seems
to have been between the 1880s and the late 1920s. The loss of almost
half of Enoch’s land took place between 1902 and 1908. The Sharphead
group experienced traumatic mortality from smallpox and hunger, and
half had died by the early 1890s. After Indian Affairs declared them
extinct in 1897, they assigned the few remaining individuals to other
First Nations and sold the reserve land to white settlers.
St. George’s Parish has a special interest in Frog Lake First Nation. There
are actually two reserves at Frog Lake. Puskiakiwenin was one of the
hereditary chiefs who signed Treaty in 1876. He and Unipouheos, the
son of the other hereditary chief who’d signed the treaty, chose
adjacent reserve lands to the east and south of the lake. The two
reserves are named for the two chiefs who chose the locations. The two
bands were brought together in 1914 as Frog Lake First Nation. The only
land cession I can find relating to Frog Lake is in regard to an island that
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Indian Affairs apparently unilaterally alienated, though the elder who
was interviewed about it didn’t say when that happened.
I’ve always been disappointed to hear that the Methodist minister John
McDougall played a role in pressuring the people at Maskwacis to sell
off parts of their reserves. His word carried a lot of weight, especially
with Samson First Nation. Two thirds of Montana First Nation’s reserve
was alienated in 1909, and at about the same time, Samson and Louis
Bull First Nations were pressured to sell land for the use of white
farmers from the Wetaskiwin area.
That pressure to sell in central Alberta was going on as late as 1958,
when the entire Michel Band, in a questionable set of circumstances,
was forced to give up Indian status and sell their reserve. The largest
expropriation of traditional land in Treaty 6 didn’t involve a surveyed
reserve. The Dene Su’line Cold Lake First Nation has negotiated a
settlement for the loss of a robust traditional economy that was
destroyed when the Primrose Lake Bombing Range and Cold Lake Air
Base were established in 1952. It took out a Metis community, as well.
Some of the oral history about the land transfers may have been lost,
but beginning in the 1970s, First Nations Treaty research groups began
transcribing recorded interviews with the oldest First Nations people in
Alberta in order to document their memories of both treaty-making
times and that early era of land surrender from the 1880s through the
1950s. Several of the elders who were interviewed remembered the
period of 1900 to the 1920s as a time when pressure to sell reserve land
was intense. The annual reports of the department from those years
summarize, in tabular form, the success of the push to sell reserve land;
the tables that list the land surrenders and the reports about the
specific deals in those annual reports document a sad history.
Because so much of the land at Maskwacis was desirable for agriculture,
at one time Indian Affairs even considered a proposal to relocate the
entire population to a less desirable place. Some of the elders in the
1970s remembered that in the early years of the twentieth century
consultation with members was at the discretion of the chief; they say
that some sales of parcels of reserve land were authorized by individual
chiefs acting alone. One of the elders from Louis Bull First Nation
remembers the land sales at Pigeon Lake in the early 1920s, but there’s
no mention of any coercion there in the elders’ interviews.
It’s hard to find detailed information about land surrenders and land
transfers, even though those transfers represent in total a substantial
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loss of an already very restricted First Nations land base. It’s clear than
in some cases equitable land transfers with full First Nations compliance
took place. The common pattern though was less benign. Much of the
history of land transfer is clouded in deceit, and overt and covert
threats. At Maskwacis, it involved armed confrontation and threats. It
routinely involved intense social pressure and the political and
bureaucratic collaboration of government agents at all levels.
At least four factors make it difficult to generalize about research into
the ways the federal government facilitated the expropriation of land it
had previously reserved for a First Nation.
 First, although there are volumes of academic and legal
scholarship about treaties and aboriginal rights, there may be
less academic interest in the specific area of alienation of First
Nations reserved land because there is relatively much less
peer-reviewed scholarship about it.
 Second, many of the research reports that exist are
unpublished. The information is in the form of documentation
in support (or refutation) of specific legal claims and court
cases by individual First Nations for compensation for
improperly alienated land, and held in the files of individual First
Nations, regional First Nations organizations, the federal
government, or other interested parties.
 Third, because some of the land transfers involved morally and
legally questionable acts, done under the table, documentary
evidence may never have existed.
 Fourth, disputes over alienated land have been the basis of
sometimes intense local, protracted conflicts that can flare up
anytime, and conflicting public narratives make the topic
complex and hot. Oka, Quebec, and Caledonia, Ontario, are just
two examples of lingering unresolved conflicts about
expropriation of previously-reserved land. The potential for this
tension to erupt locally, any time, exists in every region of
Canada.
Until 1951, the government prohibited First Nations from going to court
about those land transfers. Since the 1970s, there’s been a claims
commission that hears specific claims related to Indian Affairs
mismanagement of land and assets. The process is painfully slow, and of
the several hundred claims that have been made in the past 40 years,
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only about half have been resolved. In the cases that have gone
forward, the remedy is often government compensation or assignment
of some other land, not repatriation of the original reserve land.
Postscript
We talk about reconciliation especially with reference to the residential
schools. Because of the report of the Truth and Reconciliation
Commission, and because so many survivors are still alive to bear
witness to it, I think we tend to think that the residential school
system—conscripting children, forced assimilation, and institutional
confinement with its potential for interpersonal abuse—was the most
inhumane aspect of government treatment of indigenous people.
Residential schools are not the half of it, by a very long shot. The
residential school system was only a symptom of a larger, more cruel,
more abusive, system of control and confinement of indigenous people
in Canada—all under the aegis of the Indian Act revisions, especially
during the period between 1869 and 1951. Treaty Indians did not have
what we now think of civil rights, or even human rights. That’s not an
activist’s perspective, it’s fairly well described in dispassionate but
unequivocal terms in the interim report, released in May last year, of
the Canadian Senate’s Standing Committee on Aboriginal Peoples,
called How Did We Get Here: A Concise, Unvarnished History of the
Relationship of the Indigenous Peoples and Canada. I don’t think we can
understand the present situation if we don’t understand the inhumanity
of the system to which we are all heir.
In the face of a history that many Canadians want to ignore, you might
appreciate the attitude of an elder from one of the reserves in Treaty 6.
He is one of only two survivors of a rogue medical experiment that was
conducted on his reserve between 1959 and 1963 in return for food
rations for the band. The physical toll on his body has been great. He
was one of the children in a special day-school that was set up for the
experiment who, over those five years, were evidently given repeated
large doses of Sabin and Salk polio vaccine. One sample appears to have
been inadvertently contaminated with carcinogenic Simian Virus 40, and
over the next few years there was an exceptionally high mortality rate in
that cohort of children. The story is recounted in Gary Geddes’ 2017
book, published in Victoria by Heritage House, Medicine Unbundled: A
Journey Through the Minefields of Indigenous Health Care. The elder
went on to get a graduate degree in public health. In addition to
continuing to work in traditional medicine, for several years he held an
academic appointment in the Faculty of Medicine at the university. In
2000 I was in the room when one of the deans at the University of
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Alberta, who was visibly shaken during a discussion of the evidence,
asked the elder why he wasn’t burning with anger. The elder answered
that he’d been tempted to anger but came to know that anger would
only consume him. He said that forgiveness was the only way for him,
and for all of us, to heal. For me, he models the compassion, clarity of
vision, and generosity of spirit that we all need now.