Andrea Bear Nicholas, St. Thomas University
History of the relationship between the Crown and Maliseet, Passamaquoddy and Mi’kmaq peoples
by
Andrea Bear Nicholas, St. Thomas University
March 27, 2014
This history I have been asked to speak on is effectively a history of two
periods of time. The first was the period of war and treaty-making which lasted from 1675 to 1760. The second, which has lasted into the present, has been a period of struggle to retain rights reserved to us in the treaties. Thus it is not possible to understand the treaties without understanding the wars that preceded them. Nor is it possible to encapsulate in 20 minutes today what happened in over 300 years. For this I strongly recommend Ken Morrison’s The Embattled Northeast as the most balanced discussion of the first part of that war period, not only for his ability to understand and explain the Native perspective but also for his ability to explain the factors affecting intercultural communication. To do this Ken first studied Wabanaki oral traditions and gleaned from them a deep understanding of traditional Wabanaki religious, political and cultural values. Armed with this
knowledge he has been able to reinterpret the documentary record and to challenge most historians who have accepted colonial opinions of Indians as savage. He has detailed persistent efforts on the part of Wabanaki leaders to seek peace and accommodation with the English throughout the war period in spite of bold territorial encroachments by settlers, prevalent anti-Indian racism and uncontrolled frontier violence on the English side. When young Wabanaki men responded impulsively to the violence, the strong non-hierarchical tradition of equality, personal freedom and consensus-making in Wabanaki society meant that chiefs could not command obedience in order to effectively restrain the young men at all times. English authorities however often chastised the chiefs for this cultural reality while blindly ignoring the failure of their own laws to effectively maintain order on the frontiers. Sadly too, with competing European powers seeking our loyalties as the key to our lands, internal divisions sometimes developed and worked to negatively affect our ability to deal most effectively with the threats.This was an important lesson.
When war was finally declared in each case, and there were six wars in the 85 year period, Crown officials accompanied each war declaration with a bounty declaration on the scalps not only of men, but also of women and children as young as twelve. The genocidal intent of these declarations was unequivocal for even though they were offered on scalps of named tribes, in effect all Indians were fair game since all Indian scalps looked essentially alike. And the incentive here was not small. The bounty offered in the first war may have been only 5 pounds, but in the last war in the 1750s it was 300 pounds, equivalent to a man’s yearly wages. How much of this information is in school textbooks today?
At the end of each war came a treaty of peace and friendship which was supposed to define the relationship between our peoples and the Crown. Before proceeding I would like first to describea treaty
1.) Treaties can only be signed between nations, not between members of the same nation.
2.) They are based on principles of Natural Law, primarily the principle that no nation has authority to impose laws on other nations,
3.) They must have benefits and obligations on both sides(reciprocal
obligations).
4.) Ideally they will contain dispute resolution terms.
5.) They must be ratified by each of the parties to a treaty.
6.) Once made,the terms of a treaty are entrenched and have the force of
law.
7.) They cannot be terminated by one party unilaterally or by anyone not a party to the treaty.
The first treaty clearly signed by Maliseets was the treaty of 1713, but for the history of treaty-making in this region, we must look at the treaties signed by other tribes in the era preceding 1713. It is important because it allows us to see how the treaties progressed from ones that in many ways honored the principle of reciprocal obligations and benefits, to ones that became heavily one-sided. The earliest treaties in 1660 and 1676 incredibly exemplified the principle of reciprocal benefits and obligations. For Wabanakipeoples self-determination and territorial integrity were two principles that were paramount, two principles that defined what it was to be a nation. Remarkably some of the earliest treaties reflectedrespect for these principles:
A 1660 treaty included agreement for each side to have recourse to their own laws in dealing with their own people, in effect an acknowledgement of each people’s sovereignty and self-determination. While lacking in a number of important aspects, the 1678Treaty included a requirement that settlers could return to recently usurped Indian territories but that the government must pay the tribes an annual quitrent of a peck of corn for each family, in effect an acknowledgement of Wabanaki title.
But in 1693, 4 years after the commencement of the second war the treaty signed by the Penobscot chiefMadockawando(who has been said to have been a Maliseet) was the first to require Indians to acknowledge English law and the first to wrongfully blame the tribes for instigating the war. Sadly, this treaty became the template for all subsequent treaties.
That the treaties from here on continued to explicitly denyWabanaki sovereignty,while saying nothing of their territorial integrity, is a fact that has defined Crown-Wabanaki relations to this very day. In effect, it was the one-sidedness of the treaties that added fuel to the fire of ongoing settler encroachments, anti-Indian racism, unregulated frontier violence and increasingly intense competition for our land between English and French, all of which led to the outbreak of four more wars in the next sixty years after 1693.
Exactly how our people signed onto such one-sided treaties is the question. While I am sure other speakers will address this question in some detail I would like to throw out some thoughts: One point is that the treaties were not jointly written by a team made up of our people and the English. Our people did not read or write much less speak English throughout the treaty period, so it was English authorities exclusively who wrote the treaties and generally presented them to Wabanaki delegates at treaty conferences.
Another problem with the treaties is that outside of the sparse record of negotiations preceding the 1713 treaty and the more detailed record of negotiations with Penobscots preceding the 1725 treaty (Dummer’s Treaty) there is precious little record of any serious negotiation preceding most treaties. Until such records turn up we have no way of knowing today what the Indian delegates might have said at most treaty conferences. We do, however, have some oral traditions of terms that never got written into treaties, including the Treaty of 1760 and the 1778 conference at Menahkwesk (Saint John).
Even where there is some record, we must remember that since our peoples could not speak, read or write English, virtually all negotiations occurred through the medium of translators all of whom were in the employ of the English. So if we follow the money we know who got to call the shots. In fact; one document has been uncovered where it is disclosed that interpreters were warned not to translate the Treaty of 1713 accurately to the Wabanakidelegates. In some cases, French interpreters were hired first to translate the treaties into French and then into Maliseet or Mi’kmaq, yet, not a single such translation has survived in either language.
Even if the treaties were carefully translated it would have been impossible to accurately translate, much less explain, all the alien European concepts in the treaties, such as “Sovereignty,”“Submission.” or“Just Title,” which were concepts that did not even exist in the Wabanaki world view.
Finally, some of the most important concessions for native signers are generally not listed with the specific terms to be agreed upon, but in the preamble, the whereas section, i.e., “whereas the Indians have made their submission to the Crown” and “whereas they have acknowledged his Majesty’s Just Title to Nova Scotia.”I would not be surprised to learn that this portion of the treatieswasone part the interpreters were warned not to translate accurately, if it was translated at all. Indeed, at least some historians are now convinced that the subsequent behavior of the tribes in defense of their lands and sovereignty proved over and over again that they could never have knowingly agreed to these terms.
And yet we still consider the treaties to be sacred. Our word for treaty tells it all. What is it that we say at the end of a sweat? “Psiw-btelakombk,” which means what? “All my relations.” And what is our word for a treaty? “Lakotowaken,” which means literally “a tool for creating a relationship, for making kin out of strangers.” And why is that sacred? Because our survival in the world depends on having kin-like relations with all living things, relations that are based on responsibilities, not rights.
As well, treaties did not “give” us rights but rather, they merely confirmed to us that we could continue to live as we always had by hunting, fishing, planting, and “all our lawful occasions,” to quote from the treaty of 1725-26. We knew that our survival depended on being able to have access to the land, our source of life.For us the land was not “Mother Earth,” though a beautiful idea, we have no such phrase in our language. For us the land is “ktahkbmikw,” a beautiful term in its own right since it contains our understanding of land as alive and filled with spirit. So, while the treaties may have denied our sovereignty we would not have signed a singleoneif it did not A.)assure us peace and B.)ensure our continuing ability to gain our living from the land.
While our relationship with the treaties is somewhat conflicted, the Crown’s relationship with treaties takes the cake. In the curious case of the Treaty of 1725-26 signed by Maliseets, Mi’kmaq, Passamaquoddy and Penobscots with Nova Scotia, the terms describing our obligations were written in a separate document from the promises made to us, which included unimpeded access to hunting, fishing, planting grounds and all our lawful occasions. Though both parts of the treaty were supposed to be entrenched in law, the separate document containing the promises to us went mysteriously missing for over 200 years, until 1983. In the succeeding treaties of 1749 and 1760 these promises were not explicitly recited, but they were referenced and have been determined to be integral components of those treaties.
Since 1760 what few benefits the treaties set out for us have been consistently ignored and infringed. It was the infringement on our ability to live off the land that drove many of us into the arms of the Americans during the American Revolution. And it has not been just the terms of the treaties that have been disrespected, but the spirit and intent of the treaties as well. For people supposedly entering into a kin-like relationship of peace and friendship with the signing of each treaty, the representatives of the Crown in Nova Scotia did not act like either friends or kin. Within 5 years of the Treaty of 1760 and within two years of the Royal Proclamation of 1763, Halifax authorities began giving huge chunks of our lands away to wealthy friends and to themselves. And this was all done in spite of the fact that there had been no surrender of any land in any of the treaties. Even worse, it was a blatant violation of the Royal Proclamation which outlawed the taking of Indian lands without the consent of both the Crown and Indian leaders. Interestingly, there is some evidence that the details of this land grab were kept even from ministers of the Crown in England. While I have described how this land grab affected Maliseets in a recently published article, it was not only Maliseetswho were affected, but alsoPassamaquoddies and Mi’kmaw Peoples.
After the treaties of 1760-61 not only did successive governments ignore the promises to us, they have also acted as if the treaties did not exist, indeed, as if even we did not exist. In the 1780s Crown authorities granted away even the sites of our two most important villages, one at Ekwpahak and the other at Mehtawtik (Meductic),to prominent Loyalists. Following the invasion ofMaliseet, Mi’kmaq andPassamaquoddy lands by Loyalist settlers in the 1780s we were regularly driven off our lands at the point of a gun. So heavy was the lumbering in New Brunswick that at one point this province alone supplied over half of the lumber to the British empire. In the 1830s a huge chunk of our land, by this time called “Crown Lands” was sold to a consortium of wealthy entrepreneurs, the Nova Scotia and New Brunswick Land Company, for a pittance.And about the middle of the century the New Brunswick government began giving away 10,000 acres of so-called Crown Lands to Railroad tycoons for every mile of railway that they built in the province. As a result, most of the Tobique River watershed is now in private hands. In the case of the Nashwaak River, settlers’ sawmills and overfishing so completely decimated the salmon there that by the mid-1800s there were no salmon to be had at all on that river. With thousands of new settlers now exploiting fish, game and wood resources in our territories our peoples began suffering horrific poverty, hunger and disease noted first by Moses Perley in 1841. And as if to add insult to injury,the Provincial governments began in mid-century enacting such increasingly restrictive hunting and fishing laws that by 1888 hunting was completely closed for two years.
Working in tandem with all of these processes the federal Crown in the late 1800s imposed the Indian Act on us, which, among other things forced English education on our children and an elective political system on our communities. The residential and day schools constituted a powerful assault on our languages in an attempt to separate us from the land once and for all. Meanwhile the imposition of the divisive elective system served to put us firmly under the thumb of the Federal Government. So much for treaty rights to hunting and fishing, much less our rights to govern ourselves and pass on the essence of who we are to our children.
With the 1929 decision by a Nova Scotia court declaring that Maritime Treaties were not true treaties the Crown seemed to have put the matter to rest once and for all, they no doubt thought.But our people continued to act on the oral traditions that they cherished of the various treaties, and as we all know, the matter has recently seen some astounding reversals in the courts. Sadly, however, provincial and federal governments, acting in the same manner as the colonial governments described in this presentation, have in the case of one fishing rights case, perverted the intent of that decision. And I say perverted because as a consequence of winning the case, government has forced or enticed some of our people to become private entrepreneurs in violation of our collective principles of sharing access to food sources. On this matter I say we have lost for winning. In other cases that we have won, various governments haveappealed and appealed these decisions in spite of the Constitution Act of 1982 which requires governments to respect Aboriginal and Treaty rights, and in spite of the Simon decision of 1985 which effectively declared Maritime treatiesto be true treaties. In still other cases governments have so dragged their feet on implementation that nothing has come of these decisions. One particularly troubling consequence of winning a fishing rights case has been the practice of licensing of Maliseet people to undertake large scale fishing operations in Passamaquoddy territory without Passamaquoddy consent, while at the same time arresting and charging us for fishing or hunting in Mi’kmaq territory.
With the multiple threats to our territories now posed by giant corporations, we are facing some enormous challenges.Considering the levels of unemployment, poverty and despair in our communities and the money that is already being made available to curry our support for these projects, the threats to our lands and resources now appear to be greater in some waysthan those faced by our ancestors in the past. Sadly we are witnessing effective efforts to buy off some of our people, even those who only a few short years ago stood firmly on the side of resistance. It is especially offensive when elders are invited out of our communities to be wined and dined under the cover of “consultation.” And while I respect our chiefs I cannot respect the authority that ministers of the Crown have given to chiefs’ organizations to make decisions on behalfof all of us. In my opinion this is a huge violation of our traditions which did not accord chiefs the power to make decisions in isolation of their people. The only authority they had was the authority to act on decisions which grew out of consultation and consensus-making at the community level. To ask chiefs to make decisions on matters not decided first in our communities is also an enormous violation of the Indian Act which accords chiefs only the power to break ties, and nothing more. The fact that 11out of 15 New Brunswick chiefs have produced band council resolutions in support of at least one of the big development projects in our territory is extremely troubling since it does appear to have been the result of open debate and consensus-building. At the very least there would have to have been a duly convened council meeting to vote on such a resolution. In my community however, there has been no public debate on the matter, and, as I am told, no duly convened council meeting in nearly a year.