University of Lethbridge Research Repository
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Theses Arts and Science, Faculty of
2007
The negotiation and implementation of
Treaty 7, through 1880
Robert, Sheila
Lethbridge, Alta. : University of Lethbridge, Faculty of Arts and Science, 2007
http://hdl.handle.net/10133/619
THE NEGOTIATION AND IMPLEMENTATION OF TREATY 7, THROUGH 1880
Sheila Robert
B.A., University of Lethbridge, 2004
A Thesis
Submitted to the School of Graduate Studies Of the University of Lethbridge
In Partial Fulfillment of the Requirements for the Degree
MASTER OF ARTS
Department of Native American Studies University of Lethbridge
LETHBRIDGE, ALBERTA, CANADA
The objective of this thesis is to examine the archival documents that may be considered by the Supreme Court of
Canada if the Treaty 7 Nations were to challenge the Federal Government on the Treaty’s content and meaning. The impetus for this thesis is two-fold. Firstly, recent decisions by the Supreme Court of Canada, in relation to Aboriginal historical treaties, have demonstrated a shift
towards legally recognizing the sovereignty of First Nations. As more First Nations challenge the Federal Government on their fulfillment of treaty obligations, Supreme Court decisions will become more elaborate and exhaustive, providing many Nations with an opportunity to address treaty concerns in a more substantive manner than in the past. Secondly, the Blackfoot are my neighbours and
Table of Contents
Introduction: Survey of Secondary Works 1-9
Chapter 1: The Canons of Construction for Treaty 10-20 Interpretation
Chapter 2: Government Policy and Legislation in 21-28
the 1870s
Chapter 3: Historical Context 29-55
Chapter 4: Treaty 7 Negotiations 56-63
Chapter 5: Blackfoot Crossing, 1877 64-83
Chapter 6: Treaty 7 in Practice, 1878-1880 84-142
Bibliography 143
Introduction – Survey of Secondary Works
On September 22, 1877 the Dominion of Canada and five First Nations signed Treaty Seven at Blackfoot Crossing. The five Nations are: the Siksika (Blackfoot proper), Kianai (Blood), Pikani (Peigan), Sarcee, and Stoney. Treaty 7 encompasses the southern portion of the province of Alberta which joined Canada in 1905.
The area extends from present-day Red Deer, south-west to the Rocky Mountains, south to the United States border, and east to the Cypress Hills area.
To date, there are few publications that examine Treaty Seven specifically, however, there are numerous works on some of the signatory nations.
There is currently only one book that analyzes Treaty
Seven exclusively, The True Spirit and Original Intent of
Treaty 7.1 That book serves as a milestone in the study of Treaty Seven and historical aboriginal treaties generally. That book is an example of how employing a diverse
methodological approach can provide a more accurate account of events and agreements by providing various perspectives
1
Treaty 7 Elders and Tribal Council with Walter Hildebrandt, Dorothy First Rider, and Sarah Carter. The True Spirit and Original Intent of Treaty 7. McGill-Queen’s Native and Northern Series, ed. Bruce G. Trigger. Montreal: McGill-Queen’s University Press, 1996. Reprint, 1997.
on the events which could not be obtained if the study relied solely on written archival records.
Part One of The True Spirit and Original Intent of
Treaty 7 reveals the evidence provided by the elders of all five signatory nations. The oral testimony of over eighty elders are used to tell the making of Treaty Seven, the life of the First Nations prior to the treaty, what the treaty meant to the Nations, and how their lives were
affected following the signing of the treaty. By using the testimony of elders to reconstruct the events of Treaty Seven, the book demonstrates how oral history can be used to provide an aboriginal perspective on historical events. However, the book does not rely on oral testimony alone. The use of archival evidence serves to provide the
perspective of others, namely government officials, North West Mounted Police members, and missionaries which provide various other perspectives on the events leading to the signing of Treaty Seven.
Part Two of The True Spirit and Original Intent of
Treaty 7 focuses on the perspective of these other parties while also providing some information on the historical and political context of Treaty Seven.
Part Three of The True Spirit and Original Intent of Treaty 7 provides the biographies of the elders,
interviewers, translators and researchers of the book.
While The True Spirit and Original Intent of Treaty 7
serves as a milestone in the study of historical aboriginal treaties it does have one significant shortcoming. Nowhere in the book do the authors provide any information on how the testimonies of elders were recorded, nor where they are held. This creates an obstacle for researchers who want to access the interviews and review and interpret them
firsthand, therefore this leaves the reader at the mercy of the authors’ interpretation of those interviews. In no portion of the book do the authors state why this
information is not provided.
John Taylor has contributed an article that looks at
Treaties 6 and 7.2 The portion of the article that examines
Treaty Seven relies on archival records as well as oral history from the Treaty and Aboriginal Rights Research interviews. This work is significant because, like the work described above, the author relies on a diverse
methodology to reconstruct and analyze Treaty Seven. His work has proven to be even more helpful to other
2
Talyor, John. “Two Views on the Meaning of Treaties Six and Seven.” In
The Spirit of the Alberta Treaties, (3rd Edition) edited by Richard
researchers because, unlike The True Spirit and Original Intent of Treaty 7, he provides his source for the oral history that he has relied on.
To date there is only one other author who has focused on Treaty Seven specifically. Hugh Dempsey is one of the most prolific writers of Treaty Seven First Nations. In 1987, Dempsey provided the Federal Government with a
research report on Treaty Seven.3
He begins with an overview of the historical
background leading to the negotiation of Treaty Seven and he presumes no background knowledge on the part of the reader. He provides further contextual information by writing about the preparations, undertaken by missionaries and the North West Mounted Police in the region, to inform the First Nations of the coming of the treaty
commissioners. His report then presents both the
Government perspective and the First Nations perspective of the treaty negotiations. Dempsey concludes his report by examining some of the events and interpretations following the signing of Treaty Seven. In the appendices portion of his report he provides copies of the original treaty as
3 Dempsey, Hugh. Treaty Research Report: Treaty 7. Prepared for the
well as a copy of an adhesion and the subsequent treaty amendments.
While this report was produced in 1987, Dempsey demonstrates forward thinking that would later emerge in the Canadian judiciary as he includes the use of
interviews, completed by himself and others, and other
types of extrinsic evidence. This report serves as a solid foundation for further research.
Dempsey has also published numerous books dealing with the Blackfoot.
His biographies of Crowfoot4 and Red Crow5 have proven
to be very insightful works. His biography of Crowfoot is methodologically similar to his government report, relying on a mixture of both written primary sources and oral
sources. As Crowfoot was a leading figure in the
negotiation of Treaty Seven, an understanding of his life both before and after has been useful because it speaks to how Crowfoot’s authority was unique compared to the other chiefs that signed the treaty. Dempsey discusses how displaced this authority is but he reveals how Crowfoot came to accept this authority, albeit in a responsible
manner by continuing to consult with other chiefs to ensure
4
Dempsey, Hugh. Crowfoot: Chief of the Blackfeet. Foreword by Paul F. Sharp. Vol. 970.3 B: Edmonton: Hurtig Publishers, c1972.
5 Dempsey, Hugh. Red Crow, Warrior Chief. (2nd Edition) Saskatoon,
that he presented a united voice as much as possible. Dempsey explores the relationships that Crowfoot had with other tribe members as well as with missionaries and
members of the North West Mounted Police. His approach to reconstructing the life of Crowfoot provides critical
evidence for understanding not only Crowfoot, but others around him. The interpersonal relationships that Dempsey highlights in this biography provides a new context for examining the understanding of various people involved in the treaty. Again, Dempsey relies on historical records but also employs the use of extrinsic evidence in his
research, however many of the interviews and other evidence are in his personal possession and therefore currently
unavailable to other academics.
In his biography of Red Crow, Dempsey employs a similar methodological approach as he did in Crowfoot’s biography, relying on primary sources, oral, and extrinsic evidence. However, there is a distinct difference in how he uses this evidence. In Crowfoot he relies on both types of sources throughout the whole biography. In the
biography of Red Crow, however, he relies on the oral
accounts primarily for reconstructing the earliest years of the life of Red Crow. When the timeline reaches the
presence of missionaries and traders, he then relies mostly on their written accounts rather than continuing with the oral accounts. As this text focuses on Red Crow there is a significant amount of information about the Blood tribe and their power and influence within the Confederacy. This biography emphasizes intertribal relations prior to and
during the negotiation and signing of Treaty Seven.6
John C. Ewers has also written extensively on the Blackfeet. His focus has been primarily on the Blackfeet in what is now Montana, who are otherwise known as the south Peigan. His studies examine various topics but his essays on the fur trade and intertribal warfare have proven
to be insightful for the purpose of this thesis.7
His book The Blackfeet: Raiders on the Northwestern
Plains8 provides information about events in Blackfeet territory in the United States which may have influenced the Blackfoot perception of events in their territory in Canada. For example, he writes about the Lame Bull’s Treaty, the massacre on the Marias and other events that occurred prior to the negotiation and signing of Treaty Seven in Canada. His sources include archival records,
6
Dempsey has also written other books and papers dealing with the Blackfoot, but the focus of these books are not on Treaty Seven.
7
Ewers, John Canfield. Plains Indian History and Culture: Essays on Continuity and Change. Norman: University of Oklahoma Press, 1997.
8 Ewers, John Canfield. The Blackfeet: Raiders on the Northwestern
newspapers, books and papers, as well as his own field notes from the 1940s and 50s.
The work of James Willard Schultz is extensive with a focus on stories and conversations that he has had with members of the south Peigan in Montana beginning in the 1870s. During his life he wrote thirty-seven books that report on the daily life activities and stories of those
whose nation he married into.9
Schultz was fluent in Blackfoot and became an involved member of the community, learning their stories, ceremonies and life-ways. He considered himself an Indian in 1877 and his written works serve as a significant contribution to the study of the Peigan. His work is valuable as he wrote the stories told to him by specific Peigan members, who he identifies in his written works. His contributions provide insight into the culture of a nation that was part of the Blackfoot Confederacy.
As this review of existing literature demonstrates, the meaning of Treaty 7 has yet to be fully examined. In 2005 a case was brought to the Federal Court of Canada to examine the meaning of Treaty 6, however, the meaning of Treaty 7 has never come before the Canadian courts.
9
Schultz, James W. Blackfeet and Buffalo: Memories of Life Among the Indians. Edited and with an Introduction by Keith C. Seele. Norman: University of Oklahoma Press, 1962.
Chapter One of this thesis will examine the canons of construction for treaty interpretation as established in Canadian jurisprudence.
Chapter Two of this thesis explains federal Indian policy, law, and law enforcement in the 1870s to provide the reader with an understanding of national agendas and on the ground realities in Blackfoot territory.
Chapter Three of this thesis provides the historical context for the events that transpired on September 22, 1877.
Chapter Four of this thesis details the preparations made for the negotiation of Treaty Seven as derived from archival materials.
Chapter Five of this thesis examines the negotiation of Treaty 7 and the events that occurred at Blackfoot Crossing in 1877.
The final chapter of this thesis reviews Treaty 7 in practice, focusing on the year 1878 to 1880. These events are recreated according to archival information.
Chapter 1 – The Canons of Construction for Treaty Interpretation
As there is currently a large amount of litigation and pending litigation regarding historical treaties, analyzing Treaty Seven according to the criteria applied by the
Canadian courts is a logical starting point for those in academe who seek to research and contribute to current
historical treaty cases. In order to analyze Treaty Seven, it is necessary to review the canons themselves as
enunciated by the Supreme Court of Canada.
The canons of construction for treaty interpretation
were introduced into Canadian law in R. v. Taylor and
Williams (1981), 34 O.R. (2d) 360 (Ont.C.A.). According to Thomas Isaac,
[i]n Taylor and Williams the Ontario Court of
Appeal set out a number of factors to be used when interpreting treaties…The Court stated that it is important to consider the history and oral traditions of the tribes concerned. Treaties
should be interpreted in a manner that: (a)
upholds the honour of the Crown, (b) avoids the
appearance of “sharp dealings,” (c) resolves any
ambiguity in favour of the Indians, and (d)
considers the parties’ understanding of the terms
of the treaty when it was signed.10
10
Thomas Isaac, Aboriginal Law: Commentary, Cases and Materials. Third ed. Saskatoon, Saskatchewan: Purich Publishing, 2004, p. 79. In
Canadian case law, R. is an abbreviation for Regina, or the Crown, the government.
The first canon, that treaties are a unique type of agreement and require special principles of interpretation
finds its origins and entrenchment in Canadian law in Simon
v. The Queen, [1985] 2 S.C.R. 387, in which the Supreme Court of Canada held that treaties between Aboriginal
peoples and the Crown are unique or sui generis.11
R. v. Sioui, [1990] 1 S.C.R. 1025, affirmed the sui generis nature of treaties as stated in Simon and,
according to Isaac, “[p]erhaps more important is that this decision illustrates the recognition afforded by the court that Indian nations were regarded by the Europeans as
‘independent nations’ capable of making treaties. Treaty
rights are in addition to rights recognized by the Royal
Proclamation of 1763 and other like instruments.”12
According to Leonard I. Rotman, “Justice Lamer, as he
then was, stated in the Sioui case that a treaty exists
where there is an agreement between Aboriginal peoples and the Crown that demonstrates ‘the intention to create
obligations, the presence of mutually binding obligations
11 This case arose out of a conflict between provincial legislation and
the exercise of treaty rights in the province of Nova Scotia. The exercised treaty right in question was recognized by the court as deriving from a peace and friendship treaty made in 1752. This case saw the court employ a liberal interpretation to the treaty.
12 Thomas Isaac, Aboriginal Law: Cases, Materials and Commentary. Second
and a certain measure of solemnity.’”13 The sui generis
nature of treaties between Aboriginal peoples and the Crown
has been reaffirmed in cases such as R. v. Badger, [1996] 1
S.C.R. 771, and R. v. Sundown, [1999] 1 S.C.R. 393.
The second canon, that treaties should be liberally construed and ambiguities should be resolved in favour of the Indians, finds its earliest origins in the United
States. That treaties must be construed as the Indians at
the time understood them is found in Worcester v. Georgia
(1832) 31 U.S. (6 Pet.) 515 (U.S.S.C.) where Chief Justice Marshall states:
The language used in treaties with the Indians should never be construed to their prejudice. If words be made use of, which are susceptible of a more extended meaning than their plain import, as connected with the tenor of the treaty, they
should be considered as used only in the latter sense… How the words of the treaty were
understood by this unlettered people, rather than their critical meaning, should form the rule of
construction.14
This canon was reaffirmed in Jones v. Meehan, 175 U.S.
1, (1899). According to Clinton et. al., “the Court stated that, a
13
Leonard Rotman, “Taking Aim at the Canons of Treaty Interpretation in Canadian Aboriginal Rights Jurisprudence.” University of New Brunswick Law Journal 46 (1997), p. 13.
14
Robert Clinton, Nell Newton, and Monroe Price. American Indian Law: Cases and Materials. 3rd ed. Contemporary Legal Education Series. Charlottesville: The Michie Company Law Publishers, 1991, p. 844, Quoting C.J. Marshall in the Worcester decision.
‘treaty must therefore be construed, not
according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.’ The Supreme Court has applied this canon of construction because the Indians and the Government were not bargaining from positions of
equal strength, Choctaw Nation v. United States,
119 U.S. 1, 28 (1886); the treaties were drawn up by representatives of the United States in a
written language unfamiliar to the Indians, Jones
v. Meehan, 175 U.S. 1, 10-11 (1899); the Indians’ comprehension of treaty terms depended on
interpreters employed by the Government, id.;
and, finally, because the Indians were unfamiliar
with the legal manner of expression, id.15
The rule of construction requiring that ambiguous phrases and terms should be resolved in favour of the
Indians is expressed in “Arizona v. California, 373 U.S.
546, 599-601 (1963); Alaska Pacific Fisheries v. United
States, 248 U.S. 78, 89 (1918); Winters v. United States.
207 U.S. 564, 576-77 (1908),”16 and Washington v. Washington
State Com. Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979).17
According to Isaac, in R. v. Battisse (1978), 84
D.L.R. (3d) 377 (Ont. Dist. Ct.) that Canadian court held that when treaties appear unfair or where the bargaining power of one group outweighs the other, ambiguities in treaties should be resolved in favour of the Indians.
15 Ibid. 16 Ibid. p. 845. 17 Ibid. p. 807.
In R. v. Nowegijick, [1983] 1 S.C.R. 29, Dickson J.
referred to the 1899 U.S. decision of Jones v. Meehan for
ambiguities found in treaties to be resolved in favour of the Indians.
The canon that treaties should be liberally construed and ambiguities resolved in favour of the Indians has found
further support by the Canadian courts in R. v. White and
Bob, 6 C.N.L.C. 684, (1965), 52 D.L.R. (2d) 481 (S.C.C.),
Simon v. The Queen, [1985] 2 S.C.R. 387, R. v. Sioui,
[1990] 1 S.C.R. 1025, and R. v. Badger, [1996] 1 S.C.R.
771.
The third canon of construction for treaty
interpretation in Canada is to choose from the possible interpretations to find the one that reconciles the
interests of both parties at the time of the signing. The
“common intentions” goal of this canon emerged in R. v.
Sioui, [1990] 1 S.C.R. 1025. According to Rotman, “[a]s
indicated in the Sioui decision, when interpreting the
nature of an agreement between the Crown and Aboriginal peoples, it is necessary to strive towards the common intention of the parties and not merely rely upon the
understandings possessed by one of the groups.”18 Justice
18
Leonard Rotman, “Taking Aim at the Canons of Treaty Interpretation in Canadian Aboriginal Rights Jurispurdence,” University of New Brunswick Law Journal 46 (1997), p.36.
Lamer, in Sioui, states “[t]he Court must choose from among the various possible interpretations of the common
intention the one which best reconciles the Hurons’
interests and those of the conqueror.”19
The fourth canon of construction in Canada requires that the court presume the honour of the Crown when
searching for the common intentions of the parties involved
in a treaty. According to Isaac, “White and Bob affirmed
the legal status of Indian treaties in Canadian law and
emphasized the importance of the honour of the Crown.”20
In R. v. Badger, [1996] 2 C.N.L.R. 77 (S.C.C.), the court outlined a summary of the principles of treaty
interpretation. The court listed only four principles and further emphasized the principle of the honour of Crown, as
had been stated earlier in R. v. White and Bob (1965), 52
D.L.R. (2d) 481 (S.C.C.).
Most recently, in Mikisew Cree First Nation v. Canada,
[2005] 3 S.C.R. 388, 2005 SCC 69, Binnie J. stated, “[T]he honour of the Crown infuses every treaty and the
performance of every treaty obligation.”21
19
R. v. Sioui, [1990] 1 S.C.R. 1025.
20
Supra footnote 3, p. 118.
21 Mikisew Cree First Nation v. Canada, [2005] 3 S.C.R. 388, 2005 SCC
The fifth canon of construction requires the court to be sensitive to the cultural and linguistic differences of the parties involved in a treaty. According to Rotman,
It is beyond dispute that Aboriginal treaties were not only written in a language that was
foreign to Aboriginal peoples in Canada, but that they were written entirely by the Crown’s
representatives. As a result of these facts,
there is a prima facie inference that the
subtleties and nuances of language and the
cultural subjectivity of interpretation may have resulted in the text of written treaties having a different meaning than the terms agreed to by the parties during their negotiations… Evolving or changing perceptions of the nature of the
treaties and the rights they protect, as well as the change in the position and needs of the
parties involved in the treaty-making process, have also had a profound effect upon modern
interpretation of treaties.22
Rotman directs us to the words of Wilson J. in R. v.
Horseman:
These treaties were the product of negotiation between very different cultures and the language used in them probably does not reflect, and
should not be expected to reflect, with total accuracy each party’s understanding of their effect at the time they were entered into. This is why the courts must be especially sensitive to the broader historical context in which such
treaties were negotiated. They must be prepared to look at the historical context in order to ensure that they reach a proper understanding of the meaning that particular treaties held for
their signatories at the time.23
22 Supra. Footnote 4. 23
The sixth canon stipulates that the words of the treaty must be construed as the parties at the time would have naturally understood them.
In R. v. Badger, [1996] 2 C.N.L.R. 77 (S.C.C.),
Sopinka J. explains, “it is well settled that the words in the treaty must not be interpreted in their strict
technical sense nor subjected to rigid modern rules of construction. Rather, they must be interpreted in the
sense that they would naturally have been understood by the
Indians at the time of the signing.”24
This principle had appeared earlier in Nowegijick v.
R. (1983), 144 D.L.R. (3d) 193 (S.C.C.), and was cited
recently by Binnie J. in Mikisew Cree First Nation v.
Canada, [2005] 3 S.C.R. 388, 2005 SCC 69.
The seventh canon identifies that a technical or
contractual interpretation of the words in a treaty should be avoided. This principle can be traced back to 1832. In Worcester v. Georgia, Chief Justice Marshall declared:
Is it reasonable to suppose that the Indians, who could not write, and most probably could not
read, who certainly were not critical judges of our language should distinguish the word
‘allotted’ from the words ‘marked out.’…[I]t may very well be supposed that they might not
understand the term employed, as indicating that, instead of granting, they were receiving lands. If the term would admit of no other
24
signification, which is not conceded, its being misunderstood is so apparent, results so
necessarily from the whole transaction; that it must, we think, be taken in the sense in which it
was most obviously used.25
This principle was reaffirmed in Jones v. Meehan, 175
U.S. 1 (1899). But it did not emerge in Canadian law until 1964 when the British Columbia Court of Appeal cited
Worcester v. Georgia with approval in R. v. White and Bob
(1964), 50 D.L.R. (2d) 613 (B.C.C.A.). Nowegijick,
Horseman, Sioui and Badger would all later reinforce this principle in their rulings.
The eighth principle, outlined in the 1999 Marshall
decision26, directs the court not to alter the terms of the
treaty by exceeding what is realistic, while still construing the language in the treaty generously.
In R. v. Sioui, Lamer J., for the court, states that the majority in the Court of Appeal erred in adopting the position of the respondents regarding the treaty of
September 5, 1760 because the position would allow for unlimited rights of the Huron in a vast area.
Lamer J. states, “[w]ith respect, I feel that adopting such a position would go beyond what General Murray
intended. Even a generous interpretation of the document,
25
Marshall, C.J. in Worcester v. Georgia (1832) 31 U.S. (6 Pet.) 515 (U.S.S.C.) in Rotman, p. 37.
26
such as Bisson J.A.’s interpretation, must be realistic and reflect the intention of both parties, not just that of the Hurons.27
This principle, as stated in Sioui, was cited with
approval in Mikisew Cree First Nation v. Canada, [2005] 3
S.C.R. 388, 2005 SCC 69, one of the most recent treaty rights cases in Canada.
The ninth canon requires the courts to interpret
treaty rights to provide for their modern exercise as those rights are not to be seen in a static way that would freeze them at the time of the signing of the treaty.
Furthermore, the court is charged with determining what practices are reasonably incidental to the exercise of
treaty rights in a modern context. In R. v. Sundown,
Wakeling J.A., in dissent, states:
In order to determine what is reasonably incidental to a treaty right to hunt, the
reasonable person must examine the historical and contemporary practice of that specific treaty right by the aboriginal group in question to see how the treaty right has been and continues to be exercised. That which is reasonably incidental is something which allows the claimant to
exercise the right in the manner that his or her ancestors did, taking into account acceptable modern developments or unforeseen alterations in the right. The question is whether the activity asserted as being reasonably incidental is in fact incidental to an actually practiced treaty right to hunt. The inquiry is largely a factual
27
and historical one. Its focus is not upon the abstract question of whether a particular
activity is “essential” in order for hunting to be possible but rather upon the concrete question of whether the activity was understood in the past and is understood today as significantly connected to hunting. Incidental activities are not only those which are essential, or integral, but include, more broadly, activities which are
meaningfully related or linked.28
The interpretive principles from Marshall were cited
with approval in the recent 2005 Federal Court decisions of
Chief Victor Buffalo et al v. Queen et al, and Ermineskin Indian Band and Nations v. Canada. While the Federal Court cited the canons with approval, the Federal Court of Appeal
has granted to hear the appeal of Chief Victor Buffalo
based on Buffalo’s assertion that the Federal Court Judge did not rule on the case according to the interpretive principles that he cited with approval.
The following archival materials related to the
negotiation of Treaty Seven should be read with the canons of construction in mind, and with the understanding that only the Supreme Court of Canada can apply those canons to extrinsic evidence, such as the following archival
materials, to determine what the Indians were told orally that they would be agreeing to.
28
Chapter 2 – Government Policy and Legislation in the 1870s
According to J.N. Lyon, “[w]ith the ‘expansion of Europe’ from the sixteenth century onwards, international law paid particular attention to the rules for the
acquisition of territory. The traditional modes of
acquiring territory were by accretion, cession, annexation,
occupation and prescription.”29
International law during this period was based on Canon law which categorized Native Americans as ‘savages’ and ‘heathens.’ Lengel explains, “Canon law influenced the justification for colonization of the New World after the fifteenth century. Because the influence of the Roman Catholic Church, especially the papacy, transcended the geographical and political borders of European nation-states, church law was fundamental in defining
international legal principles for many centuries.”30
Lengel explains how the papacy ascended to its authoritative heights:
Closely linked to the principle of conquest is the Petrine doctrine, which was based upon the
29 J.N. Lyon,
Native Law: The Anomalous Legal Position of the Canadian Indian Treaties. ed. Indian and Northern Affairs Canada: National Library of Canada, 1983, p. 60.
30
James H. Lengel, "The Role of International Law in the Development of Constitutional Jurisprudence in the Supreme Court: The Marshall Court and American Indians." The American Journal of Legal History 43, no. 2 (1999), p. 118.
Biblical entrustment by Jesus Christ of the expansion of the Catholic Church to Peter, the first pope. According to the Bible, Christ instructed Peter, one of the Apostles: “And I tell you that you are Peter, and on this rock I will build my church…I will give you the keys of the kingdom of heaven…” The “keys to the
kingdom” became a metaphorical license for papal imperialism. The pope was the head of the
Church, and the entire world constituted the
flock over which the pope was to shepherd. “[T]he medieval theory of universal papal jurisdiction vested a legal responsibility in the pope to realize the vision of the universal Christian commonwealth.” All lands captured from the
infidels became a fief to be held by the pope.31
According to Lengel, “[a]fter England broke away from the Catholic Church, remnants of the Petrine doctrine
(creating and respecting a Christian commonwealth) continued to guide the imperialistic discourse of the Crown.”32
Pre-Confederate treaties focused largely, if not exclusively at times, on military and trade alliances
because the French were competing with the English, however the French were not concerned with long-term settlements. For the French, the primary goal was to secure trade
alliances with First Nations. This was the manifestation of the Imperial view of France, to extract resources and goods from the hinterland to support the French nation.
31 Ibid, p. 119.32
The English, on the other hand, sought to secure the land title of North America.
During the sixteenth and seventeenth centuries colonization of the North American continent involved
intense competition among European nations to secure trade and military alliances with First Nations, and later to
acquire their land. Hostilities between the French33 and
the British culminated with the Seven Years’ War, which lasted from 1754 to 1763, and ended with the signing of the Treaty of Paris on February 10, 1763. With this treaty the British gained control of most of the territory of the
French.34 Following this event the British Crown sought to
control settlement on the continent.
33
The French secured strong alliances with many First Nations and some authors credit this with the French being more focused on securing trade alliances rather than land acquisition.
34 Lyon provides a compelling argument suggesting that the French had no
authority to surrender land to the British Crown because they had not fulfilled the requirements for claiming territory under the discovery doctrine. He refers to three requirements for the doctrine to apply as laid out by Chief Justice Marshall. Lyon explains: “The first
requirement was that the discovery had to have been made either by a subject of the discovering government, or under its authority. The effect of the discovery was to give title to the discovering nation. A second requirement, however, was that the title had to be consummated by possession, and it appears as though such possession had to be
exclusive, because it was through the exclusion of all other Europeans, that the discovering nation obtained the right to acquire the soil from the natives…in both cases, French and English, historical data reveals that there was no possession much less exclusive possession. So there could be no title acquired with regard to these later discoveries, since there was no title if not consummated by possession…I should note the Hudson’s Bay Company Charter granted by Charles II on May 2,
1670…Although Charles II granted the Charter with these wide-reaching powers to the Hudson’s Bay Company, such a grant could, according to the doctrine of discovery, only have been an authority to discover; and for the title to the land to become vested in the discoverer, the other
King George III issued the Royal Proclamation of 1763
on October 7th of that year. This proclamation restricted
settlement by preventing colonists from settling beyond the Appalachian Mountains as that land was reserved for Indians and cession of Indian land could only be made to the Crown.
In 1867 the Dominion of Canada came into being with the British North America Act. Under section 91(24) of the Act, ‘Indians, and lands reserved for Indians,’ fall under the exclusive jurisdiction of the federal government.
Because the primary goal of the new government was to secure land title, under Prime Minister John A. Macdonald, the Conservative government set out to acquire Rupert’s Land. First Nations who resided in the territory were not involved in the negotiations for Rupert’s Land. According to Jill St. Germain, “[t]he partners in the negotiations included Dominion representatives, Hudson’s Bay Company
requirements of the doctrine had to be fulfilled. It is doubtful whether that was done in the area around Hudson and James Bay, much less across the continent…I conclude…by suggesting…the French and English claims to territory in Canada under the doctrine of discovery are only supportable to the extent that the requirements of that doctrine were fulfilled.” J.N. Lyon, Native Law: The Anomalous Legal Position of the Canadian Indian Treaties. ed. Indian and Northern Affairs Canada: National Library of Canada, 1983,p. 65-70. Lyon concludes that the requirements of the doctrine would result in only very few areas in what is now Canada meeting the discovery doctrine requirements and therefore grant title to the French and the English and further limits the areas legally transferred to the British by the French through the Treaty of Paris.
officers, and British government officials…”35 Due to the absence of First Nations in consultation and negotiation for Rupert’s Land, feelings of distrust and suspicion permeated the Nations in the area.
With the acquisition of Rupert’s Land, the Dominion Government was required to deal with the First Nations by treaty, as outlined in the sales agreement with the Crown Corporation of the Hudson’s Bay Company. In 1870 the land transaction was complete and the Dominion government was in a position to further its goal of securing land title, now extending into the Northwest Territory.
Government policy towards First Nations in the 1870s was inherited from British policy. The transfer of
Rupert’s Land to the Dominion required that the issue of Indian land title be addressed. According to Dr. F. L. Barron,
“The southern portion of the Territories—the very area earmarked for agrarian settlement—was
dominated by Plains Indian Nations. These tribes, largely untouched by European society, were steeped in the culture of their forefathers and had an alarming potential for armed
resistance. Equally important, as independent nations they had very definite land rights,
sanctified by British policy and precedent. The Royal Proclamation of 1763, as well as the
35
Jill St. Germain, Indian Treaty-Making Policy in the United States and Canada: 1867-1877. Lincoln: University of Nebraska Press, 2001, p. 38.
in-council authorizing the transfer of the
Hudson’s Bay Company lands in 1869, required that the Canadian government acknowledge Indian title
to the Northwest Territories.”36
The Dominion’s Indian policy was a continuation of the British tradition. St. Germain explains, “Canada had made a commitment to do something about the Indians, at
Britain’s behest, under the terms of the purchase of Rupert’s Land. Treaties were the traditional means…
Treaties were not only a standard practice but, unlike the
United States, and unquestioned one.”37
The Numbered Treaties, and the consistency in Order-In-Councils regarding each treaty, was the closest thing to a formal Indian Policy until 1876 when the Dominion
Government first passed the Indian Act. This act
consolidated all previous legislation regarding Indians into one document and had the effect of making all Indians wards of the state.
Menno Boldt explains how the Indian Act came into existence,
36
Dr. F. L. Barron, “A Summary of Federal Indian Policy in the Canadian West, 1867-1984.” Native Studies Review, vol. 1, no. 1, 1984.
37
Jill St. Germain, Indian Treaty-Making Policy in the United States and Canada: 1867-1877. Lincoln: University of Nebraska Press, 2001, p. 37.
“[t]he Indian Act grew out of Province of Canada legislation entitled ‘An Act for the Gradual Civilization of the Indian Tribes of Canada’ (1857)… The Canadian Parliament enacted the Indian Act in 1876. The Indian Act established the legal framework for the federal government to exercise its authority under section 91(24) of the Constitution Act, 1867. In effect, it provided a legal basis for the colonial
administration of Indians and their reserves.”38
With the 1876 Indian Act, the Dominion government placed itself in a very powerful position, one that is contradictory to the status of Indians as stated in the Royal Proclamation of 1763. However, it becomes apparent that the Indian Act was crucial in furthering the Dominion government’s Indian policy of the 1870s. The “primary motive in embarking on treaty making was not the war-and-peace imperative of the United States but rather the much
narrower and traditional quest for land title.”39
This quest for title is evident in all of the post-Confederate, numbered treaties. According to St. Germain,
“… each of the Numbered Treaties contained
several extensive clauses on the subject of land. These included a statement of the queen’s
intentions with regard to the land, an extended statement of extinguishment and cession by the Indians to ‘all their rights, titles and
privileges whatsoever to the lands included
38
Menno Boldt, “Surviving as Indians: The Challenge of
Self-Government.” Toronto: University of Toronto Press, 1993, appendix 3.
39
Jill St. Germain, Indian Treaty-Making Policy in the United States and Canada: 1867-1877. Lincoln: University of Nebraska Press, 2001, p. 40.
within the following limits’ and an exacting
description of the lands to be ceded. Treaties
4, 5, 6, and 7 also contained a provision of cession ‘to all other lands’ to which these people might venture a claim. These terms
literally constitute the bulk of the text of the
Numbered Treaties.”40
40
Jill St. Germain, Indian Treaty-Making Policy in the United States and Canada: 1867-1877. Lincoln: University of Nebraska Press, 2001, p. 41.
Chapter 3 - Historical Context
According to John C. Ewers, noted Blackfoot
ethnologist, in the 1780s, when David Thompson first met some of the Blackfoot tribes, they had already acquired
horses.41 He explains that the northwestern Plains are the
territory of the Blackfoot alliance, which consisted of the Piegan, Blood, and Siksika, and how “[t]hese tribes moved westward and then southward during the eighteenth century, and in so doing displaced the Kootenai, Flathead, and part of the Shoshoni from lands near the Rockies in southern
Alberta and northern Montana.”42 The first half of the
nineteenth century saw the Blackfoot at the height of their power as their alliance then included the Sarsi and the Gros Ventres.
Some of the earliest recorded information about the Blackfoot is contained in a manuscript by Alexander
Culbertson, which was edited by Hugh Dempsey and published
by the Alberta Historical Review in 1971. Culbertson was
an American fur trader who joined the Upper Missouri Outfit in the 1830s. It was during this time that he first began
41
John C. Ewers, “Intertribal Warfare as the Precursor of Indian-White Warfare on the Northern Great Plains.” The Western Historical Quarterly
6, no. 4 (Oct., 1975), p. 400.
42
trading with the Blackfoot and other tribes. According to Dempsey, “Culbertson became a wealthy man and in about 1840
he had married Natoyi’s-tsik-sina, or Holy Snake, whose
brother was head chief of the Bloods.”43
Culbertson recorded his expedition into Blackfoot
territory beginning on July 10th, 1870. He was accompanied
by a Catholic Missionary, Jean L’Heureux. L’Heureux had spent the previous ten years among the Blackfoot and both men were familiar with the area. Culbertson explains how the Blackfoot are constantly on the move due to their buffalo culture. He explains, “[t]he Piegans, Bloods and Blackfoot Indians are all the same people in manner, custom and language. They are separated only as it were by clans, each regulating themselves by their own laws, none of which are very stringent. Strange to say, they are but little known by the people of the United States, only as a blood thirsty savage people. This is, however, a vague idea formed upon an ignorance of the actual character of these Indians.”44
In 1871, Jean L’Heureux, a missionary and later an interpreter at the signing of Treaty Seven, wrote about the region and the First Nation inhabitants. He reports,
43
Hugh A. Dempsey, “Alexander Culbertson’s Journey to the Bow River.” Edited by Hugh A. Dempsey, Alberta Historical Review, vol. 19, no. 4, (Autumn) 1971, p. 9.
44
“[t]he inhabitants of the country which we have described in this report are the Chokita-pix Indians who are divided into three tribes, the Sik-sik-kas or Blackfoot, the Ka-na-ans or Bloods and the PiegKa-na-ans, who, with the Sarcees, have been formed into a Nation for almost eighty years. They have a population of almost twelve hundred tipis and ten
thousand souls.”45 He explains how the territory is
possessed by the whole nation however each tribe has their own territorial division.
L’Heureux provides a description of how their society functions,
“[t]hey have a sort of police among themselves which answers well enough to their social
needs…The only common obligation of each
individual of the nation is to preserve his land from enemies and the encroachment of the invader. Each tribe is subdivided into a certain number of large families each of which have a chief at
their head to supervise the police and to
negotiate their differences. The chiefs alone have the right to treat together in the great council of the nation on questions of peace or war, treaties or other affairs concerning their common interest. Their authority is admitted by all and their common decisions become law when
once publicly proclaimed by them.”46
L’Heureux states that the Blackfoot hunt buffalo on horseback and this is their principle occupation in the
45
Jean L’Heureux, “Description of a Portion of the Nor’West and the Indians.” Rocky Mountain House Nov. 1871. L’Heureux fonds, M675, Glenbow Archives.
46
summer months. The economy of the Blackfoot is based on their buffalo culture as “[t]heir principal articles of commerce are robes, dressed skins, animal furs, wood, fat,
dried meat and horses.”47
In the 1870s, Indian policy in the Dominion of Canada was very different from that of the United States. While Canada was engaged in negotiating the numbered treaties, which began in 1871, and the passing of the first Indian Act in 1876, the United States ended treaty making with First Nations in 1871, by a declaration of the U.S.
Congress.48 While Canada was focused on securing surrenders
from First Nations the United States was engaged in Indian wars. It is clear that the signatory nations of Treaty Seven and the Crown intended to create mutually binding obligations as evidenced by the archival documentation of the preparation and negotiation, and the subsequent
signing, of the Treaty.
In 1875, Inspector Winder of the North West Mounted Police wrote to the Minister of the Interior to inform the
Government about the state of affairs in the West.49 Winder
writes of the desire of the Indians to come into treaty due
47 Ibid. p. 18. 48 25 U.S.C. 1871. 49
The NWMP arrived in Blackfoot territory in 1874 and a positive relationship existed between the tribes and the force due largely to the mutual respect between Crowfoot and Col. Macleod.
to their concerns about white encroachment and the
depletion of the buffalo. “The Indians frequently ask when a treaty is to be made with them… They complain of
[encroachment] by white men and the rapid execution of the Buffalo.”50
In the summer of 1876, the Lieutenant Governor of the North West Territories, Alexander Morris, received a letter from the chiefs of the Blackfeet requesting that a treaty be made with them and to thank the police for eradicating the whiskey trade. Morris enclosed this petition when he wrote to the Secretary of State to assert the necessity of concluding a treaty with the Blackfoot. Morris implies it is urgent to conclude a treaty with the Blackfoot because, as he learned from Rev. McDougall’s son, a trader, the
Sioux had recently sent tobacco to the Blackfoot requesting their alliance in a war against the whites, but the
Blackfeet declined. Morris states that it is too late into the season to make a treaty “but I would request to be
authorized to send messengers to them to fix a period next
year for the making of a Treaty.”51
Morris writes that the issue is urgent due to the
close vicinity of the Indian wars in the United States. He
50
NAC, RG 10, vol. 3625, file 5337, Insp. Winder to Min. of Interior, 14 Sept. 1875.
51 NAC, RG 10, vol. 8595, file 1/1-11-4, Morris to Secretary of State,
states, “[t]he recent destruction of General Custer and his entire command, will compel the United States, to exert their utmost, in a warfare with the Sioux and the result will be their fight into our Territories… The place of the recent fight, is not more than five hundred miles from here, and not more than one hundred and eighty miles from
our boarder.”52
The Blackfoot continued to be persistent with their request to negotiate a treaty as indicated by a letter
written by a member of the Department of the Interior to an unknown recipient on July 28, 1876. The author states that the Blackfeet, Peigans, and Bloods put forth a petition to the Hon. Governor Morris. He states, “[t]he Petitioners put forth that they were given to understand by His Honor Governor Archibald that their lands would not be taken possession of until a treaty had been made with them, but that, already the white men have taken the best locations and built houses on their hunting grounds and that the Half breeds and Cree Indians are hunting both summer and winter in the centre of their territory and they say that an
Indian Commissioner may be directed to visit them so that
52
they may hold Council… a stop to the invasion of their
Country till a treaty be made with the Government.”53
The author of the letter explains his concerns about the unrest south of the boarder when he states “[i]n view of the unsettled conditions of Indian affairs south of the Line, it is a matter of importance that the Blackfeet and other Indians on the Boundary should be treated with as early as possible so as to secure their friendship and
[illegible] rely upon their cooperation with the Government [illegible] the Event [sic] of the American Sioux and other Indians being driven into or taking refuge in our
territory.”54
The author then discusses the settlers who have come into the territory and the need for a surrender of Indian land to encourage further settlement. He states that “settlement should be encouraged as much as possible with view to securing cheap provisions and supplies for the Mounted Police, and the settlers generally, in the territories, this of course cannot be done until the
territory is surrendered by the Indians.”55
The letter closes with further urging for a treaty to be concluded with the Blackfeet because the author feels
53
NAC, RG 10, Vol. 8595, file 1/1-11-4, member of Dept. of Interior to unknown recipient, 28 July 1876.
54 Ibid. 55
that the Cree and Blackfeet are on a collision course over the issue of hunting grounds.
The correspondence makes it clear that the Blackfoot were intent on concluding a treaty with the government. Many others also wrote to government officials requesting that a treaty be made with the Blackfoot.
The Reverend John M. McDougall, a Methodist
missionary, wrote the Hon. Alexander Morris on September 8, 1876 to recommend that a treaty be made with the Blackfeet. McDougall explains his desire for a treaty to be made with the Blackfoot based on his personal experience with the Indians when he states, “being brought into continuous contact with these Indians for the last three years during which a great transition from total disorder to comparative order has taken place and [fervently hoping the later
state] of things may [illegible] I cannot too strongly recommend that the Dominion Government should send a
Commissioner or Commissioners to negotiate or [illegible] with the various Blackfeet Tribes at as early a date as possible. Whites from all parts are flocking into the
country which they have called theirs.”56
56 NAC, RG 10, Vol. 8595, file 1/1-11-4, Rev. McDougall to Hon.
McDougall suggests that treaty talks take place soon because he fears that the Indians may begin to feel
neglected because other treaties with other tribes were being concluded that summer.
In a letter dated October 24, 1876, Lieutenant Governor Alexander Morris wrote to the Minister of the Interior concerning the Blackfeet. Morris writes that he made inquiries about the condition of the Blackfeet while meeting with the Cree in the North West Territories. He learned that two Blackfeet, fluent in Cree, were on their way to hold a meeting with him but he reports that they failed to arrive.
He reports how he obtained more information about the state of affairs concerning the Blackfeet when he writes, “I met at Fort Carlton, the Revd Mr. C. Scollen, a Roman Catholic Missionary, who has lived amongst the Crees in the first instance, and latterly amongst the Blackfeet, for sixteen years, and obtained much valuable information from him, as I did, also from the Revd John McDougall, a
Methodist Missionary, who is at present labouring amongst
the Mountain Assiniboines.”57
57 NAC, RG 10, Vol. 85965, file 1/1-11-4, Morris to Minister of the
Both McDougall and Scollen informed Morris that it was necessary to conclude a treaty with the Blackfeet in order to preserve friendly relations.
Morris informs the Minister of the Interior of the devastating effects of alcohol, American traders, and the Smallpox epidemics have had on the Blackfeet population. He states, “[u]nder the circ*mstances, I would recommend that steps should be taken for the making of a Treaty, early next season at some central place, where the
Blackfeet are in the habit of assembling in early summer.”58
According to the archival records, the Blackfoot had a clear intention of negotiating and signing a treaty with the government. The intention of the Canadian government to have the Blackfoot come into treaty is evident in the archival record as well as government policy at the time. Beginning in 1871, the Canadian government began
negotiating treaties with First Nations, starting in the east and continuing into the west. The government adhered to the legal formula in the Royal Proclamation of 1763 for acquiring land from First Nations.
The Proclamation has the force of law and made it
illegal for individuals to purchase land from First Nations because all land west of the Appalachian Mountains were
58
reserved for First Nations until they surrendered their title to the Crown by way of treaty. Britain relinquished jurisdiction to Canada in 1869 when “Britain exercised its last official duty to Indians in North America during the negotiations for the acquisition of Rupert’s Land, exacting from Canada a promise to abide by the time-honoured
principles of the Proclamation of 1763 in its dealings with the Indians of that region, who came thereby, for the first
time, under the jurisdiction of parliamentary government.”59
The legal formula required that the negotiations take place at a public meeting and that a surrender could only occur after securing three fourths consent of the First Nations involved. The governments’ intention to make a treaty with the Blackfoot in 1877 was a continuation of this policy that saw seven numbered treaties signed between 1871 and 1877.
In a letter dated June 20, 1874, the Reverend John M. McDougall, a missionary at Morlyville on the Bow River, received instructions from Alexander Morris, Lieutenant Governor of the North West Territories, to meet with the tribes of the Territories and relay a message from the Queen of England. There were three key issues to be
59
Jill St. Germain, “Indian Treaty-Making Policy in the United States and Canada, 1867 – 1877.” London: University of Nebraska Press, (2001), p. 6.
discussed: first, to inform them that the Queen was
sending out “a force of Mounted Police into Her Territories in the North West for the preservation of law and order and the prevention of aggression on the part of lawless
American traders against Her Indian subjects and for the suppression of the introducti[on] by such traders and
others of intoxicating liquors amongst the Indian tribes.”60
McDougall was instructed to encourage the tribes to receive the force with warmth and cooperation and to emphasise that their coming presence would be for their benefit. Furthermore, the cooperation sought would not take the form of any military alliance but rather a friendly alliance.
Second, the Queen wished that the tribes be informed of the Boundary Commission, as it was in progress, and to inform them that “the Commissions are engaged in marking out the line between the British and American Territories and that the Indians have a direct interest in knowing, where the land of the Queen begins, and that it is trusted that they will regard this expedition, also with good
will.”61
60
Whyte Museum and Archives, Banff, Eleanor Luxton fonds [John McDougall Material]. Lieutenant Governor Alexander Morris to John McDougall, 20 June 1874.
61
Third, “that the aim of the Queen and Her servants to deal fairly and justly by them, as she and they have always done in Her Territories, wherever situate, and that their welfare is as dear to Her, & them, as that of Her white
subjects.”62 The letter concludes by informing McDougall
that preserves, valuing $1500.00, would be provided for him to distribute among the Indians, at his discretion. It was requested that he reply once he had taken action.
The Annual Report of the Department of the Interior,
for the year ended 30th June, 1974, reports an estimated
population of 4,000 for the Blackfeet, 2,000 for the
Bloods, and 3,000 for the “Peagin”.63
A message dated May 1, 1875, from the Superintendent General of Indian Affairs, David Laird, to the Rev. John McDougall, requested that he convey to the tribes of the North West Territories that survey and exploration work for the Canadian Pacific Railway would be taking place in the area. “You will inform the Indians that their great mother THE QUEEN and the Government of the Dominion have every confidonce[sic] that the INDIAN TRIBES will receive in a friendly spirit those who are engaged in surveying their country for the purposes of the Pacific Railway, and that
62
Ibid.
63
Annual Report of the Department of the Interior for the Year Ended 30th June, 1874.
they will afford them every assistance in their power in this great National work, a work which it is hoped will prove a blessing equally to them and their white
brethren.”64
On September 14, 1875, a member of the North West Mounted Police wrote to the Minister to inform the
Government about the state of affairs in the West. The letter refers to NWMP Inspector Winder and his information regarding the quality of the land and the desire of
American farmers to move into the area, however, the farmers were reluctant, as the Indians had not yet come into treaty. Furthermore, the Inspector comments on the Indians desire to come into treaty due to their concerns about white encroachment and the depletion of the buffalo. “The Indians frequently ask when a treaty is to be made with them . . . They complain of [encroachments] by white
men and the rapid execution of the Buffalo.”65 The letter
continues and discusses the need for more supplies as the police were feeding Indian hunters. The letter concludes with the author stating that they had determined that
forts, formerly built by Americans, at the juncture of the
64
Whyte Museum and Archives, Banff, Eleanor Luxton fonds [John
McDougall Material], Superintendent General of Indian Affairs, David Laird, to Rev. John McDougall, 1 May 1875.
65 National Archives (NA), Record Group(RG)10, volume 3625, file 5337,
St. Mary’s River and the Belly River would be a suitable location for establishing an Agency and police station. A letter from the Privy Council, dated November 23, 1875, to the Minister of the Interior addressed the issue of firearms and legislation pertaining to the matter. “That as the Indians in the vicinity spoken of live
exclusively by hunting, as no British Arms are now imported and as the United States repeating riffles are said to be in every respect more useful for the Country…the
importation for a limited term of a limited number of these Arms subject to the discretion of the Asst. Commissioner . . . Asst. Commissioner McLeod should be informed of the
decision of the Government.”66
The Annual Report of the Department of the Interior
for the Year Ended 30th JUNE, 1875 shows an estimated
population of the “Blackfeet, Bloods, Pagans and Circee
Indians frequenting Fort McLeod” as 2,100.67
A trader by the name of John M. Latchie reports his count of Indian lodges in the territory in a letter dated February 12, 1876. He estimates that the North Peigan have 40 lodges, the Blackfeet 180, the Blood 160 and the Sarcees having 40 lodges. “Making a total of 420 lodges [&] if
66
NA,RG 10, volume 3625, file 5337, Privy Council to Minister of Interior, 23 Nov. 1875.
67 Annual Report of the Department of the Interior for the Year Ended
they are counted at 5 persons to a lodge will give 2100 . . . .”68
Lieutenant Governor of the North West Territories, Alexander Morris, wrote the Secretary of State on July 11, 1876 discussing the necessity of concluding a treaty with the Blackfeet Indians. He explains the urgency of the situation. “I learned to-day also, from Mr. McDougall a trader, son of the late Revd Mr. McDougall, that, the
American Sioux, sent tobacco to the Blackfeet to join them in war, against the whites, and if not against all, against the Americans, but the Blackfeet took the whites advice,
and declined.”69
Morris states that it is too late into the season to make a treaty “but I would request to be authorized to send messengers to them to fix a period next year for the making
of a Treaty.”70 The urgency with which Morris writes arises
from the Indian wars engaged in, in the United States, and his fear that their fighting may end up in the Blackfeet territory.
“The recent destruction of General Custer and his entire command, will compel the United States, to exert
68
NA, RG 10, volume 8595, file 1/1-11-4, John M. Latchie to unknown recipient, 12 Feb. 1876.
69
NA, RG 10, volume 8595, file 1/1-11-4, Lieut. Gov. Alexander Morris to Secretary of State, 11 July 1876.
70
their utmost, in a warfare with the Sioux and the result will be their fight into our Territories. . . . The place of the recent fight, is not more than five hundred miles from here, and not more than one hundred and eighty miles
from our boarder.”71
Morris relays his concerns of the Sioux crossing the border to flee the American soldiers during the winter and the international complications that would arise from such. He also fears that the Indians would be drawn into the
conflict, either by fear or sympathy. He continues with a desperate plea for military force to be sent to the area.
“I have urged again and again, on the present Council & their predecessors, the necessity of a military force here – I have suggested that Great Britain ought, to prevent international complications, to be asked to
maintain a force in the Territories, and I firmly believe, that if properly presented, the answer would be an
affirmative one”72 The letter comes to a close with Morris
stating, once again, that the Territory must be guarded against the invasion of the United States and the Sioux.
In a letter dated July 22, 1876, a Hudson’s Bay House employee wrote to Mr. Mackenzie to inform him of an
71 Ibid. 72
assembly of Blackfoot at the Hudson’s Bay House. The author reports that they are expecting, of the Blackfoot “more than 4000 to 5000 of this tribe…a few Bloods, Crees
and Peigans.”73 Also, “there are already seven hundred
Stonies ‘Mountain Stonies’…and perhaps about 300 Indians of
St. Annes [illegible] Stoneys.”74 He discusses another
possible meeting of the bands “who will this year assemble
at Fort Pitt [,] Battle River & Carlton.”75 Nowhere in the
letter does the writer state the purpose of the meetings. In a largely illegible letter, dated July 24, 1876, an unknown author writes to Alexander Mackenzie and states, “Mr. Hendly does not think there will be any difficulty
experienced in making treaties with the Indians.”76 Mr.
Hendly is, presumably, an employee of the Hudson’s Bay Company.
A great urgency to conclude a treaty with the
Blackfoot is conveyed in a letter dated July 28, 1876, from a member of the Department of the Interior to an unknown recipient. The author states that the Blackfeet, Peigans and Bloods put forth a petition to the Hon. Governor
Morris. He explains,
73
NA, RG 10, volume 8595, file 1/1-11-4, unknown Hudson’s Bay Company employee to Mr. Mackenzie, 22 July 1876.
74
Ibid.
75
Ibid.
76
NA, RG 10, volume 8595, file 1/1-11-4, unknown author to Alexander Mackenzie, 24 July 1876.
“[t]he Petitioners put forth that they were given to understand by His Honor Governor Archibald that their lands would not be taken possession of until a treaty had been made with them, but that, already the white men have taken the best
locations and built houses on their hunting
grounds and that the Half breeds and Cree Indians are hunting both summer and winter in the centre of their territory and they say that an Indian Commissioner may be directed to visit them so that they may hold Council . . . a stop to the invasion of their Country till a treaty be made
with the Government.”77
The letter continues and estimates the annual costs of entering into treaty with these Indians. Concerns of the unrest, south of the boarder, are addressed as the author states, “[i]n view of the unsettled conditions of Indian affairs south of the Line, it is a matter of importance that the Blackfeet and other Indians on the Boundary should be treated with as early as possible so as to secure their friendship and [illegible] rely upon their cooperation with the Government [illegible] the Event [sic] of the American Sioux and other Indians being driven into or taking refuge
in our territory.”78
The author discusses the settlers who have come into the territory and the need for a surrender of Indian land to encourage further settlement. He states, “settlement should be encouraged as much as possible with view to
77
NA, RG 10, volume 8595, file 1/1-11-4, unknown member of the Dept. of the Interior to unknown recipient, 28 July 1876.
78
