This article was published in Active History on Aug. 9, 2021
On August 3, 1871 the negotiations that became known as the “Stone Fort” treaty, or Treaty 1, were wrapped up at Lower Fort Garry, north of present-day Winnipeg. The treaty negotiations were a massive affair, even by today’s standards. More than a thousand Cree and Anishinaabe from southern Manitoba had begun to gather at the Hudson’s Bay Company post in July, and the subsequent negotiations took nine days to complete. Scores of colonial officials, settlers, missionaries, and journalists (including a newspaper delegation from the United States) were also present, many of whom wrote accounts of the proceedings. A contingent of soldiers accompanied the colonial delegation, in part to demonstrate the power of the “Dominion.” In the words of Lieutenant-Governor Adams Archibald, the ranking colonial figure involved: “Military display has always a great effect on savages, and the presence, even of a few troops, will have a good tendency.” In the wake of the suppression of the Riel resistance in 1869-70, the threat of coercion was real.
For most of post-Confederation history, Canadian historians and politicians have tended to view the written treaty document –– that was largely crafted in advance, slightly amended, and then signed on August 3rd –– as the first and last word on the meaning of the treaty. Most accounts dutifully followed the narrative framing established by Alexander Morris (one of the salient colonial negotiators of treaties 3 through 6) in his 1880 publication. But even for those who have sought a deeper understanding of the spirit and intent of the treaty since the 1980s, and sought to incorporate Cree and Anishinaabe perspectives, as well as against-the-grain readings of colonial texts into their evaluation of the negotiations and the agreement, there has often been a privileging of the colonial presumption that Treaty 1 was, in the last instance, a “land cession” agreement in which First Nations gave up their claims to most of what is now southern Manitoba (an area of some 43,000 square kilometres).
The language used to describe Treaty 1 and the other “numbered treaties” of the 1870s has shifted significantly since the 1980s, to emphasize First Nations participation, shrewd bargaining, and basic human agency, and also increasingly to frame the treaties as a complex agreement to share the land. These are welcome shifts given the overt colonial, white supremacist and nationalist narratives that had long dominated the historiography of “nation-building” and “settlement expansion” in prairie and Canadian historical works. But in defaulting time and again to a “land surrender” paradigm rooted in colonial aims and texts, even well-meaning re-assessments of the treaty process have misrepresented the actual historical treaty negotiations, and implicitly or explicitly, lent themselves to false interpretations that First Nations gave up their sovereignty along with their lands, and became subjects of the British Empire and its Canadian “Dominion.”
Even scholars and activists who share an anti-colonial lens and support First Nations treaty rights, struggles for self-determination, reparations for historical and ongoing human rights violations, contemporary efforts at land and water defence, as well as land reclamation, often fall into ways of framing questions of land and sovereignty that are based on colonial mythologies. For starters, the default acceptance of colonial and imperial claims to territory and unequivocal borders is itself anachronistic, extending contemporary State power backwards in time to historical moments when colonizers had little to no knowledge of the lands they claimed, let alone the peoples they claimed as “subjects”. To this day, historians are culpable in this project, insofar as they continue to justify colonization and theft by acting as if white people alone had fixed “borders,” whereas First Nations had “hunting grounds” –– a porous “frontier” beseeching outside exploration or “settlement,” rather than a land they had collective and national rights to exclude others from violating. To this day, historians write almost as if Europeans and their settler-states alone have borders worth recognizing as inviolable, and everyone else whose lands they covet merely has “frontiers.” But this is not a neutral descriptive distinction. It is a subtle justification and alibi for colonization, masquerading as description.
Similarly, many well-meaning scholars and activists continue to adopt a commonplace shorthand for describing most of British Columbia as “unceded territory.” The aim of using “unceded” in this context is clear: to raise awareness about the fact that First Nations in B.C. have never surrendered their lands and sovereignty. But often unstated is an assumption that this is so simply because most of British Columbia is not covered by a treaty. Consciously or unconsciously, however, this way of demarcating between “unceded” territory in B.C., and ostensibly ceded territory everywhere else is ultimately rooted in a false colonial narrative that equates treaties as surrender agreements. British Columbia may very well be unceded territory, but this fact is not due to the absence of treaties per se, any more than the existence of treaties elsewhere is automatic evidence for land cession, let alone sovereignty cession.
Rather than labelling it “unceded” (and implying that everything else from coast to coast is the opposite of that, i.e., “ceded”), a better description for large swaths of British Columbia is simply “land for which there are no treaties”. The following map accomplishes this well. It makes no assumptions about land or sovereignty cessions anywhere, and also demonstrates (through colour-coding) why Treaty 1 was not the first treaty inside the boundaries of present-day Canada, but was simply the first post-Confederation treaty.
In short, treaties are not homogeneous examples of “surrender” despite what we’re constantly told in settler-nationalist narratives about “land sales” between “consenting” parties. And more than this, even if a case can be made for a specific treaty to represent a land lease, sale, surrender, or agreement to share a specific tract of land –– this has no necessary implications whatsoever on broader questions of sovereignty and national self-determination for that specific treaty, let alone for every other one. The leap that Canadian historiography and popular narratives alike make from an ostensible “land sale” to a presumed-legitimate genealogy of colonial or State political jurisdiction, with its presumed concomitant loss of sovereignty for any and all indigenous peoples involved –– is not only an example of fallacious reasoning. It is colonial smoke-and-mirrors. Selling or sharing land is not a proxy for giving up one’s national and collective rights to self-determination, even within the geographical space in question.
There are a number of reasons to be cautious about labeling treaties as land cessions, and thus, as the opposite of “unceded” –– which is ostensibly “lawfully surrendered.” First, the treaties are not homogenous. They cannot be lumped in together and talked about as if they’re all the same. They were made between different and distinct nations, at different historical moments, with different political, environmental, and material contexts at work in each case. And even beyond that broader context, each of these negotiating nations had heterogeneous leadership and membership within their communities, with differing political, spiritual, and ethical perspectives that they brought to the table. Canadian historians and politicians and settler society as a whole have a problematic tendency to homogenize diverse peoples as indigenous or as Aboriginal or as “Indian,” to presume homogeneous perspectives both within and across First Nations, and to generalize across treaties themselves in ways that are unwarranted.
To give merely one example of this heterogeneity within a given community, during the Treaty 6 negotiations at Fort Carlton (north of present-day Saskatoon) in 1876, Cree Chief Mistawasis (“Big Child”) was one of the leaders, along with Ahtahkakoop (“Starblanket”), most favourable to signing the treaty. But Mistawasis’s own nephew Pitikwahanapiwiyin (mostly known as “Poundmaker”) had a very different political perspective. The idea that a foreign colonial power had some kind of audacity to tell the Cree of Saskatchewan how much land they would be “given,” and where they could have these so-called “reserves,” was preposterous to Poundmaker. He responded to Alexander Morris in a very powerful and pointed speech:
“The Government mentions how much land is to be given to us. He says 640 acres, one mile square for each band, he will give us … This is our land. It isn’t a piece of pemmican to be cut off and given in little pieces back to us. It is ours and we will take what we want.”
Unsurprisingly, Poundmaker’s clear expression of Cree land ownership and self-determination never made it into Morris’s own account of the treaty negotiations. The only reason we know what he said is because the Cree hired their own interpreter for the treaty negotiations –– over the apparent objections of the colonial side –– and this interpreter later published his own account.
A second reason to be cautious is the fact that the written texts –– which do actually use legalistic phrases that imply massive swaths of territory were “ceded, yielded, surrendered” –– cannot possibly be understood as the sole and legitimate interpretation of the spirit of those treaties. Anyone who has actually studied them knows that the written texts were so different from the verbal negotiations, expectations, and promises made by and for the negotiating parties, that the textual alterations would themselves be considered a crime under contract law (both by yesterday’s standards and by today’s). Treaty 1 itself was emblematic of this divergence, because First Nations immediately objected to the non-fulfillment of both verbal and textual promises made at Lower Fort Garry, forcing Dominion negotiators to amend their own treaty text with what came to be called the “outside promises” in 1875.
Even if a particular treaty did in fact constitute a land ‘surrender,’ in the eyes of all its signatories (a big “if” in and of itself), it also assumes that the treaty was never voided by breach of contract. Treaty 1, for example, was broken –– even by its altered, duplicitous written terms –– by “the Dominion” of Canada almost before the ink was dry. But before we discuss breaches and implementation, it is clear that the only party to Treaty 1 who was confused about whose land and resources were being discussed, was the colonial delegation. After the treaty was signed, James Settee noted that First Nations were clear that “the foreigners were usurpers [and] destroyers of their race and Country; that is this land belonged to them exclusively; that they had sole claim to the rock, ground, grass, timber, the fish & its water; that all these things were created for them only.”
During the Treaty 1 negotiations themselves this awareness of rootedness, land ownership, and self-determination was always central to the discussions. Like Poundmaker’s remarks at the Treaty 6 negotiations five years later, Ayee-ta-pe-pe-tung (“He Who Sits By It”) of Portage repeatedly asserted his people’s rights to determine their own lands and affairs. As with Poundmaker’s words related to Cree title, Ayee-ta-pe-pe-tung’s words were not recorded by Morris and the “official” reports. They were likely deemed “inconvenient” sentiments, and typically dismissed in patronizing, colonial terms as “extravagant demands.” But a correspondent from the weekly Manitoban newspaper did record some of his (and other Cree and Anishinaabe orators’) speeches in summaries of the treaty negotiations published on July 28th, August 5th, and August 12th, 1871. Ayee-ta-pe-pe-tung stated at one point:
“When first you (His Excellency) began to travel (from Fort William), you saw something afar off, and this is the land you saw. At that time you thought I will have that some day or other; but behold you see before you now the lawful owner of it. I understand you are going to buy this land from me. Well God made me out of this very clay that is besmeared on my body. This is what you say you are going to buy from me.“
“But God gave me this land you are speaking to me about, and it kept me well to this day. … I have turned over this matter of a treaty in my mind and cannot see anything in it to benefit my children. This is what frightens me. After I showed you what I meant to keep for a reserve, you continued to make it smaller and smaller. Now, I will go home today, to my own property, without being treated with. You (the Commissioner) can please yourself. I know our Great Mother the Queen is strong, and that we cannot keep back her power no more than we can keep back the sun. If therefore the Commissioner wants the land, let him take it. … Let them rob me. I will go home without treating.”
While these are paraphrases written by journalists and ought to be treated with a grain of salt –– both in terms of fluency and translation issues, and in terms of ideological biases –– they nevertheless capture something of the spirit of what was spoken. Official colonial reports tended to omit, distort, or mock such clear assertions of Indigenous title and self-determination, and viewed any First Nations leader who failed to recognize the magnanimity and generosity of the British Empire as a “trouble-maker.” Both Adams Archibald and Indian Commissioner Wemyss Simpson responded with disingenuous arguments to try to undermine Anishinaabe rights in particular –– namely, by pointing out that the Saulteaux were relative newcomers to the region compared to the Cree. This was an old colonizer tactic (one that Tom Flanagan continues to employ 150 years later), undermining First Nations claims by suggesting they are themselves “immigrants” –– an argument that the purveyors, conveniently, never seem to apply to themselves.
In any case, leaving aside some of the speeches made by Cree and Anishinaabe orators, what happened after the treaty was concluded was equally important. Some of the ways in which the spirit and letter of Treaty 1 was actually broken include:
1) deliberate failure on the part of the colonial regime to incorporate the verbal understandings and promises of both parties;
2) imposition of external legislation such as the Indian Act (which had iterations or proto-iterations imposed on Manitoba in 1874 that were themselves violations of Treaty 1);
3) broken promises with respect to “reserve land” locations, sizes, and boundaries; and
4) state and non-state land thefts and land encroachments, including but not limited to the foundation of illegal settler colonies on designated reserve land, and countless incidents of land speculation and land swindles that were illegal (even by the low standards of colonizers).
Any uncritical description of Treaty 1 as a “land surrender” fails to recognize that land was not only not surrendered in some kind of consensual land sale, but even by the terms that did get incorporated into the “official” colonial text, it was completely breached and voided by 1874 at the latest.
Even by European property and contract laws (then and now) –– and I am not suggesting that these ought to be the standard –– this suggests that all of southern Manitoba remains unceded territory. Sheldon Krasowski’s relatively recent book on Treaties 1 to 7 makes this point explicit, and generalizes it across the post-Confederation prairie treaties. Along with Jim Daschuk’s Clearing the Plains (2013), which describes a systematic process of ethnic cleansing in southern Saskatchewan, it ought to be read by everyone in this country. To say that the land where the prairie treaties were made remains “unceded” in some significant fashion –– both because the “surrender clauses” sought by colonial negotiators were never actually discussed during the treaty negotiations, and because the treaties were so quickly and definitively broken –– is just a fancy way of saying we are standing upon stolen ground. Whether or not specific treaties were understood as straight-up land sales, or as ongoing relationships rooted in sharing the land and its resources –– the fact remains that settler society broke its contractual obligations repeatedly.
Settlers complaining that First Nations get “special privileges” for exercising treaty rights not only don’t know the facts or history, but ironically seem unaware that the only alternative to honouring the treaties is to give everything back. That’s what we’re supposed to do when we steal something, or we break our agreements. We either make amends, and compromise in a way that the aggrieved parties actually consent to, or we give it all back. On the 150th anniversary of the signing of Treaty 1, it’s worth reflecting on this history, and these uncomfortable facts about broken treaties and ongoing colonial crimes. Cree and Anishinaabe in this land have always known this history, and these uncomfortable facts, even if settler society has remained indifferent or hostile to looking in the mirror. Not only is this not “merely” an historical question, it is also very much a contemporary one, as any honest assessment of the differential benefits and costs associated with these treaty relationships over the last century attests. Recent and ongoing exposures of mass graves at residential schools, ongoing boil water advisories in many First Nations communities, the epidemic of Missing and Murdered Indigenous Women, “starlight tours” (a euphemism for death squad policing in this country), forced sterilizations of indigenous women, settler pogroms in Nova Scotia, death and disease from mercury poisoning at Grassy Narrows, ongoing resistance to state-corporate annexations and resource extraction –– to name only a few salient “legacies” — ought to be a reminder that the ostensible “bounty and benevolence” of the treaty relationship has not been shared by all parties.
 Archibald cited in Alexander Morris, The Treaties of Canada with the Indians of Manitoba and the North-West Territories. 1880 Reprint. Saskatoon: Fifth House Publishers, 1991, p. 32.
 Morris, The Treaties of Canada with the Indians of Manitoba and the North-West Territories.
 See for example Jean Friesen, “Grant Me Werewith to Make My Living,” in Kerry Abel & Jean Friesen (eds.), Aboriginal Resource Use in Canada: Historical and Legal Aspects. Winnipeg: University of Manitoba Press, 1991; Jean Friesen, “Magnificent Gifts: The Treaties of Canada with the Indians of the Northwest, 1869-76,” in Richard Price (ed.), The Spirit of the Alberta Indian Treaties. Edmonton: University of Alberta Press, 1999; David J. Hall, “A Serene Atmosphere? Treaty 1 Revisited,” Canadian Journal of Native Studies 4, No. 2 (1985); Arthur J. Ray, Jim Miller, and Frank Tough, Bounty and Benevolence: A History of Saskatchewan Treaties. Montreal: McGill-Queen’s University Press, 2000; and J.R. Miller, Compact, Contract, Covenant: Aboriginal Treaty-Making in Canada. Toronto: University of Toronto Press, 2009.
 Emblematic examples here are G.F.G. Stanley’s The Birth of Western Canada. Toronto: University of Toronto Press, 1936. Reprint 1960; W.L. Morton’s Manitoba: A History. Toronto: University of Toronto Press, 1957.
 Poundmaker cited in Sheldon Krasowski, No Surrender: The Land Remains Indigenous. Regina: University of Regina Press, 2019, p. 209.
 See Peter Erasmus, Buffalo Days and Nights. Edited by Irene Spry. Calgary: Glenbow, 1976.
 Settee cited in Ray, Miller & Tough, Bounty and Benevolence, p. 70.
 Excerpts of statements by Ayee-ta-pe-pe-tung quoted in The Manitoban, 12 August 1871, p.2
 The addition of the “outside promises” amendment in 1875 still did not address all verbal promises made at the 1871 negotiations. Nor does it mean that the included promises were kept, even after they were acknowledged as “official.” One example of a verbal agreement that was never kept, and never included in the so-called “outside promises” amendment was the acknowledgement that First Nations at St. Peter’s and elsewhere had two distinct forms of land ownership that would be recognized: individual and collective land tenure. Private landholdings held by individual Indians at places like St. Peter’s (many of which derived from the late Chief Peguis himself) were to be upheld and not included in the calculation of “entitlement” to collectively-held “reserve land” under Treaty 1. This crucial affirmation of both individual and collective land rights was part of the Treaty 1 agreement –– a fact also confirmed by Indian Commissioner Wemyss Simpson and Molyneaux St. John, both of whom were present for the negotiations and acknowledged this fact in private correspondence. But this agreement was never added to the treaty text nor the 1875 amendment, and the “Dominion” broke the spirit of the treaty both by subsequent legislative decree that stripped First Nations of customary rights, and by subsuming privately-held property in places like St. Peter’s Parish into the collective reserve calculation. This point was forcefully made by Tyler, Wright & Daniel, “The Illegal Surrender of the St. Peter’s Reserve,” Winnipeg: T.A.R.R. Centre of Manitoba, 1979 and 1983.
 Every aspect of this legislation –– in all its iterations from the 1870s to the present day –– has in fundamental ways been a violation of the spirit of the treaties. A great deal has been written on this over the last couple decades, from the suppression of religious and cultural practices, to the kidnapping of children for residential schools, to the suppression of hunting and fishing rights, to the restrictions on basic mobility, to the unfair restrictions on agricultural practices and market transactions, to the imposition of the band council system as a means to undermine collective forms of political and economic organization, to the micromanaging of everyday life, including the imposition of settler “morality” laws related to everything from alcohol to marriage –– all of it was a massive treaty violation, not to mention crime against humanity. See Sharon Venne (ed.), Indian Acts and Amendments, 1868-1975: An Indexed Collection. Saskatoon: Native Law Centre, University of Saskatchewan, 1981.
 Salient in this regard were the reserves promised to Yellow Quill’s Band and to the People of Peguis. Both were located on prime agricultural river lands desired by European settlers. Both were forcibly relocated against the wishes of the respective First Nations, and in violation of both the spirit and written letter of the Treaty 1 agreement. Today, these ostensible “reserve” lands have become the bustling settler towns of Portage La Prairie and Selkirk, Manitoba. See, for example, Robert Miller, “The Indian Reserve System in Manitoba, 1870-1900.” Thesis (Master of Development Studies): The Hague, Netherlands, Institute of Social Studies, 1981, p. 74.
 The Town of Selkirk was itself a monumental breach of Treaty 1’s promises to the People of Peguis at what was then called the “St. Peter’s Indian Settlement.” People interested in the details of just one aspect of these treaty violations, and some of the First Nations resistance to it, can read P. Paul Burrows, “‘As She Shall Deem Just’: Treaty 1 & the Ethnic Cleansing of the St. Peter’s Reserve, 1871-1934.” Thesis (M.A. in History): University of Manitoba, 2009.
 Krasowski, No Surrender; and James Daschuk, Clearing the Plains: Disease, Politics of Starvation, and the Loss of Aboriginal Life. Regina: University of Regina Press, 2013.
 See, for example, the 1930s court testimony of Alex Greyeyes, Henry Pahkoo and others cited in Burrows, “As She Shall Deem Just” (2009); Albert Edward Thompson, Chief Peguis and His Descendents. Winnipeg: Peguis Publishers, 1973; Niigaanwewidam James Sinclair & Warren Cariou (eds.), Manitowapow: Aboriginal Writing from the Land of Water. Winnipeg: Highwater Press, 2011; Aimée Craft, Breathing Life into the Stone Fort Treaty: An Anishinabe Understanding of Treaty One. Saskatoon: Purich Publishing, 2013; Joe Hyslop, Harry Bone & Treaty & Dakota Elders of Manitoba, Dtantu Balai Betl Nahidei – Our Relations to the Newcomers: Treaty Elders’ Teachings, Vol. 3, Winnipeg: Treaty Relations Commission of Manitoba, 2015; or more recently, Craig Charbonneau Fontaine (ed.), St. Peter’s Indian Reserve: Articles & Reports (1859-1939). Winnipeg: Manitoba First Nations Education Resource Centre, 2016.