It is important to understand that the “numbered treaties” did not just appear out of the ether. Much important history was a backdrop to the negotiation and signing of the “numbered treaties”. 

An important historical document is the Royal Proclamation of 1763. It is a document that set out guidelines for European settlement of Indigenous territories in North America.  The Royal Proclamation was initially issued by King George III to officially claim British territory in North America after Britain won the Seven Years War. In the proclamation ownership over North America is issued to King George. However, the Royal Proclamation explicitly states that Aboriginal title has existed and continues to exist, and that all land would be considered Aboriginal land until ceded by treaty.   The Proclamation forbade settlers from claiming land from the Aboriginal occupants, unless it has been first bought by the Crown and then sold to the settlers. The Royal Proclamation further sets out that only the Crown can buy land from First Nations.  Most Indigenous and legal scholars recognize the Royal Proclamation as the first step toward the recognition of existing Aboriginal rights and title, including the right to self-determination. It is sometimes called “the Indian Magna Carta:” The Royal Proclamation set the foundation for the process of establishing treaties.  The Royal Proclamation is still valid in Canada since no law has overruled it.

All unsurrendered lands were to be “lands reserved for the Indians” until a treaty had been made and arrangements made for the purchase of the lands by the Crown.  The Royal Proclamation was accepted by the Indian allies of the British at the Treaty of Niagara in 1764, and the Two Row Wampum and the Covenant Chain were set in place.

Fast-forward to the early 1860s, 15 years before Treaty 5 was signed, the “Fathers of Confederation” from Nova Scotia, New Brunswick and other British colonies were in discussions with Queen Victoria about Confederation, the talks turned to Rupert’s Land that extends from southern Ontario all the way to the Rocky Mountains, from the United States border north to the North Pole. The settler government wanted the Queen to give them that entire territory to be able to connect Upper Canada with British Columbia.  The Queen declined and told them, apparently referencing the Royal Proclamation, “I do not own those lands. You will have to enter into Treaties with the Indians.” 

And so, a series of elaborate addresses, new laws in both England and Canada, and Royal Orders were set in motion at the time of Confederation in 1867. In the Rupert’s Land Orders, it provides that the only purpose for the Rupert’s Land purchase involved was “immigration and settlement.” Lands not taken up for immigration and settlement were to remain “reserved for the Indians.” No provision is made for natural resources. The Treaties were to have been made “under the Crown’s supervision,” just and equitable compensation was to be paid by the Government of Canada for the use of lands. The Constitution of Canada, 1982, states that any law of Canada which is contradictory to the Charter of Rights and Freedoms “is of no force and effect.”

The Treaties are not made with Canada, but rather with the Queen. This was the case prior to the repatriation of the constitution from Britain in 1982. The Queen’s involvement was necessary because Canada, as a colony, had no authority to discuss and make treaty with the Indians.  The Queen was head of state up until 1982.

Treaty 5 is known as “the Winnipeg Treaty.” It was entered into in 1875 at Berens River and Norway House by the Queen of Great Britain and Ireland and the Saulteaux and Swampy Cree Tribes of Indians. Additional adhesions to the Treaty were entered into in 1876. Through the Treaty, the Queen received the right to take up certain lands for immigration and settlement with the condition that the Canadian Government would pay compensation to the Indians for the use of Indian land.

These were tough times. The Indigenous peoples who had depended upon the fur trade found a dramatic decrease in their well-being. There were fewer animals and lower prices. Unlike the southern Indigenous peoples, agriculture was not a viable option. There was starvation around the Hudson Bay Company Post at Norway House. Smallpox continued to ravage entire villages. European settlers were starting to move into the territory.

To understand the Treaty, we also have to understand the historical situation as it was in the 1860’s. What is now Treaty 5 territory did not have much settlement, but settler governments wanted to acquire the lands around Lake Winnipeg for resource extraction, and to have a secure transportation route to the West. So, in 1875, the government appointed Lieutenant Governor Alexander Morris and a well-known multi-lingual Metis trader, James McKay, as Royal Commissioners to handle arrangements for Treaty 5. McKay has been described as “thoroughly understanding, of Indian character, he possessed large influence over Indian tribes, which he always used for the benefit and the advantage of the Government.”

Decisions made were that they (Morris and McKay) would offer less favorable terms to Treaty 5 than had been set out in earlier Treaties. The rationale was that the lands in the northern region, which included what is now Treaty 5, were not as valuable as the agricultural lands in Treaty 3 and 4 territories. They would offer to set up reserves of only 160 acres per family of five, rather than the 640 acres in Treaties 3 and 4. A gift of only $5 would be offered instead of the $12 in the earlier Treaties. The Treaty states that the Indigenous peoples would give the Queen’s people free navigation of all lakes and rivers and free access to the shores.  Otherwise, Treaty 5 would be similar to the earlier Treaties – there was little room for negotiation.  And, as had been the case of Treaties 1-4, the Government’s conduct indicated it had no intentions of following the Orders of Queen Victoria on fair and equitable compensation in Treaty 5.

So, this was the background and setup when Commissioners Morris and McKay set sail from the mouth of the Red River in the Hudson Bay Company’s new propeller-driven steamer, the Colville.  After having to wait two days for northerly winds to stop, they sailed north to Berens River, arriving at 9:00am, 20th of September 1875. The Treaty meeting took place at the Wesleyan Mission school house near Berens River Hudson’s Bay Post. It started at 4:00pm and adjourned at 11:00pm. According to the text of the Treaty, in those seven hours, the Treaty was agreed to, and the Chief and headmen had signed the document. It took until 1:00am for everyone to receive their $5, all recorded on a pay list. The $5, incidentally, was not intended to be payment for the lands – rather it was “a gift from the bountiful benevolence” of the Queen. Despite this historical account on the time spent to negotiate Treaty 5, the Elders of Berens River said Chief Jacob Berens had negotiated the Treaty 5 annuity which took days.  Given this assertion there is some question as to veracity of the official historical account.

Figure 1: A sign in Berens River that reads "Welcome To Berens River! Where A sunset never goes unnoticed"

It was all done in that afternoon and evening. “Here’s your Treaty. Sign here.” (Not all of the people of the area were present – other Commissioners had to come back the following year with the remainder of the Treaty annuity payments cash money)

If the Treaty can be interpreted as the government interprets it, the Indigenous people had just ceded, released, surrendered and yielded up forever all their lands, lakes, rivers, streams – their entire livelihood, their children’s entire heritage. This is not true according to the Indigenous Peoples. Lands not taken up for immigration and settlement were to remain “reserved for the Indians.”

After the “negotiation” at Berens River was completed, the Commissioners set out the following morning for Norway House, 189 kilometers north along the east coast of the Lake via the Nelson River. Again, there were strong winds, and they had to remain at anchor all day, setting sail at midnight. At 9:00am the next morning, 24th of September, they passed the old, abandoned Norway House post and went on to the new post at 3:00pm. There they met in a large warehouse of the Hudson’s Bay Company with two groups of Cree. One group had converted to Christianity. The second group, known as “the Wood Band,” had not converted (except for their Chief, Tapastanum, also known as Donald William Sinclair, who had recently been baptized).

The Commissioners’ strategy was to talk first about the terms of the Treaty. Everything was translated by James McKay. After they set out the terms, they talked about reserves. The Christian group was told that a reserve would be established for them at Fisher River in Treaty 2 Territory to the south. The non-Christian people would get their reserve on the westside of Cross Lake on Otter Island. There was more talk, the Treaty was finally signed, the medals and uniforms presented, and the payments made. The Chiefs then “thanked Her Majesty and her officers for their kindness to the Indian people.” The whole affair ended the same day it had begun.

Then the Commissioners headed toward Grand Rapids on the Saskatchewan River, 130 kilometers southwest across the Lake. That Treaty meeting took place on the 27th of September in open air on a cold morning. A large fire had been built. The Commissioners used the same strategy that had worked so well for them at Norway House. But there was an additional problem with the reserve’s location. The village was on the north side of the river, and the Commissioners wanted it to be moved to the south side. The community demanded $500 to cover the cost of moving and rebuilding. The Commissioners agreed to pay that amount the following year.  (The following year when other Commissioners went back to pay the $500, the Chief of Grand Rapids was surprised – he thought the negotiations were still going on and that the discussions about entering Treaty were still continuing.)

Nonetheless, their work done, the Commissioners headed back to the Red River Settlement. On the way, they encountered Thickfoot, a spokesperson of the Jack Head Point people, along with others from Big Island, Black Island, Wapang and other islands in the area. They told the commissioners they had heard about the Treaty and wanted to be included. They also requested a land parcel along the main shore, where they could farm and fish. Thickfoot demanded that the Commissioners appoint him as Chief. They did, over the objections of the people involved. Everyone was told to meet with the Commissioners at Dog Head Point next summer to select a reserve.

Eight days, four Treaty meetings, 400 kilometers of travel on the waters after the first meeting, and it was all done.

But the Commissioners continued tinkering with the Treaty. Without the consultation of the Indigenous peoples involved, the Commissioners decided to alter the western boundaries of the Treaty, so as to go all the way west to include the Swampy Cree at The Pas settlement on the Saskatchewan River. Thus, the boundaries were altered without obtaining consent – the Commissioners recommended that those after-the-fact discussions would take place the following summer.  This format of being fast and loose with the negotiations supports the view that the treaty process was one-sided and was rammed through without consensual parameters of the Indigenous people.

Then the Commissioners headed for home in the Red River Settlement. Their diaries recorded that they thought everything had gone well. They boasted of adding to Canada’s territory 258,989 square kilometers of lands, waters, and resources. The area ran from the east shore of Lake Winnipeg all the way to the west of Cumberland House in Saskatchewan, and as far north as Split Lake.  The finer points would get settled the following year, when other Commissioners would ensure that they would get the X’s on paper from any communities which had not yet signed onto the document.

Some historians are of the view that in their rush, the Commissioners were so eager to get agreement to the Treaty that they had failed to discuss what the Commissioners thought the Treaty actually meant.  Clearly, there was no ad idem, no meeting of the minds in this process.  It was wham, bam.  In addition, the Commissioners had limited time to have discussions, and to fully set out what the Treaty was all about. Other historians note that there was no need to have discussions – the terms of the Treaties had been decided even though they were not in writing, and what the Treaty meant was never explained. They saw their job as getting in, talking for a bit, assuming that the taking of the money offered meant acceptance of the Treaty, and then going on to the next site. There were never any “negotiations.” The two cultures came from different worlds and neither spoke the language of the other. The Commissioners decided who would be recognized as the peoples’ leaders. The whole scene was rife with confusion and misunderstanding.

As historian Frank Tough points out, the government was interested in engaging in the Treaty process only when it was convenient. It considered solely its own needs, and not any concern for the economic conditions of the Indigenous peoples or their needs.

As Canada’s Minister of the Interior put it, “It was essential that the Indian title to all the territory in the vicinity of the Lake should be extinguished so that settlers and traders might have undisturbed access to its waters, shores, islands, inlets and tributary streams.”

There are some interesting things to note in the Treaty.  First, today’s discussion about the UN Declaration on the Rights of Indigenous Peoples and its article for the First Nations to give their free, prior and informed consent for any use of their lands, in the numbered Treaties, “Her Majesty” wished “to obtain the consent” of the Indians to open up lands for settlement and immigration.  On previous occasions, where “the Indians” had refused consent, the Treaty Commissioners had no choice but to move on.

The purpose of the Treaty, the Treaty itself states, “so that there may be peace and good will between them and Her Majesty.” The fact that the results of the Government’s interpretation of the Treaty has resulted in considerable conflict and loss of good will means that something has gone wrong with the fulfilment of the Treaty. It will be the duty of this generation of the Indigenous Nations of Treaty 5 Territory and the people of Her Majesty the Queen to meet to polish the Covenant Chain of Friendship to remove the century and a half of “tarnish and rust” and to restore its strength once again.

Written by Rarihokwats, 2019