That Unsettling Feeling: Treaties for Settlers: Treaties of Nogojiwanong (Peterborough, Ontario)

Why do I get to live here?

I am a Treaty Person. I have Treaty rights that have been and continue to be honoured: my ancestors got to live here, and I get to live here now.

Treaties are not relics of the past, but living legal agreements that continue to impact present day realities and relationships. They are legal agreements that allowed Canadians to settle on this land, and they have never been invalidated.

Today, the government and courts of Canada interpret Treaties from the narrow perspective of our European style legal system. The reality is that the Treaties were conceived by the meeting of two distinct, sovereign legal traditions. Our contemporary interpretation of the Treaties does not take into account the other half, the Indigenous legal systems that are equally invested in these Treaties. Nor do we take into account the spirit and intent with which they were entered into by both parties.

The Treaties are an acknowledgement of Indigenous nations' right to autonomy and self-determination. It is a reminder of the relationship entered into by the Crown, our political and legal ancestors, for “as long as the sun shone and the grass grew.” (From the Treaty at Niagara)

Are we, the Settlers, honouring our half of the agreement?

Aboriginal Rights are inherent rights possessed by Indigenous people, stemming from their long connection to and occupation of their territories and from historical and ongoing Indigenous legal and social structures. These rights include rights to the land, to resources and livelihood, to culture, religion and language, and to self-determination and self-government. They are not granted by Canadian law, and cannot be erased by Canadian law.

“The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” s.35(1) Constitution Act, 1982

Kaswentha or Two Row Wampum was the first Treaty between Indigenous people of Turtle Island (North America) and Europeans. It is a Treaty of respect and sovereignty originally between the Dutch and the Haudenosaunee. It is a blueprint for a good relationship, for sharing the land. It shows two vessels, a canoe and a ship, journeying down the river of life side by side. They travel together, but their paths do not cross. Neither interferes with the ways and governance of the other. It is a good one to know, because it codifies a good relationship of non-interference between sovereign nations. Kaswentha is the way it should be.

In July 1764 the Niagara Congress met at Niagara Falls. The meeting included leaders from 24 Indigenous nations, including the Huron, Cree, and Anishinaabek nations, and the Haudenosaunee Confederacy. Representatives of the Crown included Superintendent of Northern Indians William Johnson. More than 2000 people attended.

The Indigenous leaders presented Johnson with the Kaswentha Wampum. Johnson presented the Indigenous leaders with two Wampum belts: the British and Great Lakes Covenant Chain Confederacy Wampum Belt was a commitment to a relationship between sovereign, equal allies, strong as a silver chain but requiring "polishing" -- attentive maintenance of the wellbeing of the relationship. The Twenty Four Nations Wampum Belt represented the treaty-making process that would ensure Indigenous nations a fair share of the riches of the land.

These exchanges created a legal agreement for a nation-to-nation relationship, grounded in the principles of Kaswentha, in sharing and respect, and laid the foundation for further Treaty-making.

Preservation of Indigenous hunting and fishing rights were a customary part of Treaty negotiations, though they were most often spoken agreements and not documented in text in the Treaties. This custom acknowledged the inherent nature of Indigenous rights; Treaty making does not have the power to grant Indigenous Rights. It reflected the fact that the Treaties were an interaction between two distinct legal traditions: the text-based European and the orality of Indigenous legal systems. The contract of the spoken word held as much weight as the text of the Treaties.

Between 1764 and 1836, the Crown negotiated the Upper Canada Treaties. These agreements cede territory that encompass what are now called the Trent-Kawartha and Rideau river systems, and down into Southern Ontario along Lakes Huron and Erie. These Treaties were negotiated by the Anishinaabek and the Crown under guarantee that Indigenous Rights would be protected, and that their hunting and fishing practices would continue undisturbed.

Many of these agreements were vague and badly documented, and sometimes contained mistakes that rendered them legally invalid. Some were blank documents with the signatures of Anishinaabek leaders. Commentators have described them as legalized theft. None of this prevented the flow of settlers into Indigenous territories.

Treaty 20 is among them, and it still stands today. It resulted in the surrender of what are now Peterborough and Northumberland Counties, and parts of Durham, Ontario, Muskoka, and Haliburton Counties, an area of over 1,951,000 acres. The purchase price was an annual payment of 749 pounds, or 10 dollars in goods to be paid yearly to every man, woman, and child. A postscript, inserted by the Crown after the signing of the Treaty, specified that the payments would cease upon the deaths of those men, women, and children alive at the time of the signing.

Subsequently, errors in the Treaty were found by the Crown. A mistake was made in the description of the boundaries, which left an expanse of about fifty thousand acres legally unsurrendered. There was also a reference to an earlier Treaty that didn't exist. The officials who discovered the errors were advised to keep them quiet, and the Indigenous signatories were never advised of the mistakes.

Preservation of Indigenous hunting and fishing rights were a stipulation of the Treaty, but were spoken contracts and not included in the text of the Treaty. They are documented in a letter written by Captain George Pahtaush, an Anishinaabe negotiator and veteran of the War of 1812.“I agreed to surrender the land to him myself...and I reserved all the points along the shore.”

Over the next hundred years, the newly minted government of Canada forgot the context and content of the Treaties. Piece after piece of legislation was introduced that ate away at Indigenous hunting and fishing rights.

Until last year, the Mississauga Anishinaabek of Treaty 20 had no hunting or fishing rights recognized by the Canadian government. On October 30, 2012, Ontario conceded that the Anishinaabek had not surrendered their hunting and fishing rights in Treaty 20. Presently, enforcement officers will take no action within the boundaries of Treaty 20 territory against status First Nations members engaged in hunting for subsistence, social, or ceremonial purposes, but this is a long way from affirming that the Indigenous Rights exist within this territory.

These are the Treaties that allow us to live here in Peterborough. Is is our responsibility as Settlers to seek out knowledge about our nation's story that isn't taught in any of our history curriculums: the agreements made on our behalf through Treaties, the disturbing history and ongoing fact of colonization, the histories and perspectives of the Indigenous Peoples whose territories we live on. It is our responsibility as Settlers to seek out these stories and to figure out what to do with them, to remove the lenses of privilege and colonization, to restore right relations between ourselves, our government, and Indigenous nations, and to use our gifts to be truly helpful.

We are all Treaty People. Are we honouring our half of the agreement?

That Unsettling Feeling: Treaties for Settlers

Sunday, 24 February 2013

Treaties of Nogojiwanong (Peterborough, Ontario)

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