Mythologizing the Numbered Treaties

The numbered treaties are a foundational element of the political formation that scholars such as Joyce Green refer to as “Project Canada.” As Green has observed, the configurations of the relationship between Indigenous peoples and Canada “are perpetuated by a mythologized history and by judicial and political institutions that proclaim and defend this mythology-cloaked, unhyphenated colonialism” (Reference Green1995: 25). The selective construction of significant events such as treaties forms mythologies that shape the consciousness of many non-Indigenous people and Indigenous peoples in Canada, centring certain interpretations while invisibilizing others. And as Green notes, these mythologies are not merely discursive constructions but also take material form within Canadian legal and political institutions and processes (Reference Green1995: 25).

The negotiation of the numbered treaties represents a formative period in Canadian narratives of settlement and development. The treaties are predominantly depicted in Canadian political institutions as historical events in which Indigenous peoples are said to have consensually ceded and surrendered title to the land, and relinquished our existing political authority to the Crown, in exchange for a fixed spectrum of rights and entitlements. This assumption is reflected in the description of treaties offered by the Department of Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) which suggests that “At their base, the treaties were land surrenders on a huge scale” (CIRNAC, 2013). Interpreted in this manner, treaties represent mechanisms of extinguishment of Indigenous peoples’ outstanding claims against Canada's assertion of sovereignty and jurisdiction following the transfer of Rupert's Land and the Northwest Territories from the Hudson's Bay Company to Canada (McNeil, Reference McNeil1982).

The transactional interpretation of treaties stands in direct contrast to the spirit and intent of treaty relationships described by treaty Elders (Cardinal and Hildebrandt, Reference Cardinal and Hildebrandt2000; Hildebrandt, et al., Reference Hildebrandt, Rider and Carter1996) and documented by Indigenous academics (Borrows, Reference Borrows2002; Cardinal, Reference Cardinal1969; Craft, Reference Craft2013; Ladner, Reference Ladner, Rocher and Smith2003; Little Bear, Reference Little Bear and Rick Ponting1986; Simpson, Reference Simpson2008; Stark, Reference Stark2016; Venne, Reference Venne and Asch1997; Williams, Reference Williams1997; Youngblood Henderson, Reference Youngblood Henderson2002), as well as by settler historians and anthropologists (Asch, Reference Asch2014; Miller, Reference Miller2009; Milloy, Reference Milloy2008; Tully, Reference Tully, Ivison, Patton and Sanders2000), each of whom recognize that treaties represent the establishment of a legal and political framework intended to govern the co-existence of multiple beings in a shared space. Nevertheless, Canada's archive of historical narratives, social and cultural assumptions, and judicial and political decisions has sustained a set of unifying mythologies about the transactional nature of treaties over time. In its final report, the Royal Commission on Aboriginal Peoples commented that the public perception surrounding treaties is “the direct result of schoolboys having been misled or at least deprived of the truth about the treaties and about the peoples that made them” (Dussault et al., Reference Dussault1996: 2, 15). It is through the continual proliferation of treaty mythologies that the Canadian government legitimates its presence on and claim to title over much of central and western Canada. Further, mythologies of treaties as mechanisms through which Indigenous peoples surrendered not just land but also our associated powers of governance promulgate misinformation, half-truths and uncertainty about Indigenous peoples’ political status that cloud the contemporary legal and political implications of treaty relationships.Footnote ¹

As I will demonstrate below, the repressive nature of treaty mythologies manifests in their depoliticization, symbolification and racialization, which collectively locates treaties as matters of cultural identity rather than the locus of Indigenous peoples’ distinct political relationship with the Canadian state. James Tully has written that the failure to engage with Indigenous political practices through Indigenous philosophical tenets can either legitimatize or delegitimatize the colonization of Indigenous peoples and our territories. He argues that while Western political thought is woven into the everyday political, legal and social practices of Canadian society, Indigenous political thought is inevitably constrained by its subalternity (Tully, Reference Tully, Ivison, Patton and Sanders2000: 37). This differential speaks to the need to engage with the language of Western political thought and its modes of interpretation and reflection as techniques of colonial governance. In the context of treaty relationships, such an approach offers to illuminate the dual and Janus-like character of treaties as they are differently invoked and operationalized at the level of symbolism and practice and to specifically call attention to how treaty mythologies marginalize the exercise of Indigenous political authority in order to uphold structures of settler colonialism.

The Suppression of Indigenous Political Orders in the Prairie West

In the decades preceding the negotiation of the numbered treaties, the Crown represented the prairie west as devoid of legitimate governance structures—or at least forms of governance that were legible to Western European newcomers.Footnote ² As demonstrated in Heidi Kiiwetinepinesiik Stark's (Reference Stark2016) study, Crown officials sought to evidence the need for the extension of colonial law and governance in the prairie west by representing Indigenous people as in need of civilization and by constructing Indigenous territories as spaces that suffered from a deficit of law and order. Yet newcomers could not entirely deny the existence of Indigenous political orders, which needed to be at least partially recognized if Indigenous peoples were to consent to share the land through treaty-making. Crown representatives did, however, have to place concrete boundaries surrounding the exercise of Indigenous political authority, a feat which was attempted in part through the selective recognition of dimensions of Indigenous political orders and the simultaneous erasure of others (Stark, Reference Stark2016).Footnote ³ As scholars of settler colonialism have noted, such eliminatory or repressive efforts were required to secure settler claims to land and to ensure the continuity of settler colonial formations in Canada (Simpson, Reference Simpson2016; Stark, Reference Stark2016; Wolfe, Reference Wolfe2006).

At the same time, a number of theoretical affirmations of Indigenous peoples’ legal and political status appear in the historical record. These include the broad recognition of Indigenous nationhood in the Royal Proclamation of 1763, Lord Denning's 1982 acknowledgment of the significance of Indigenous customary law, and the Court's recognition in the 1998 Reference re: Secession of Quebec case that the special commitments made to Indigenous peoples by successive governments are rights that are reflective of “an important underlying constitutional value” (para. 82). Furthermore, Peter Russell has argued that despite its failure, “a constitutional convention recognizing the Aboriginal peoples’ inherent right to self-government” was, in fact, established through the process surrounding negotiation of the Charlottetown Accord (Reference Russell and Jones1995: 75). Tully has also suggested that the treaty process itself can be understood as a form of constitutionalism whereby Indigenous people participate in the creation of norms and conventions governing Indigenous-Crown relations (Reference Tully1995: 117). And while there is significant disparity in oral and written treaty terms, even the Crown's written records indicate that Crown treaty negotiators offered Indigenous negotiators many assurances that their ways of life would not be interfered with and that they would not be expected to relinquish jurisdiction over their own affairs (Morris, Reference Morris1880: 211, 233). Yet in spite of the acknowledgment of Indigenous peoples’ political status through such oral promises and through the very act of treaty-making itself (Barsh and Henderson, Reference Barsh and Henderson1982; Taylor, Reference Taylor1985), several authors have argued that Indigenous peoples’ subordinate political status had already been presumed by the Crown prior to treaties (Peach, Reference Peach2011: 10; Russell, Reference Russell2017: 188).

Crown efforts to place parameters around the exercise of Indigenous governments were also decisively gendered during and after treaty-making. While Indigenous women occupied a symbolic position of importance in the negotiation of the numbered treaties (Venne, Reference Venne and Asch1997: 192), their political authority was treated by settlers as inconsequential in practice. As Aimée Craft notes, the treaty process represented in many ways “a procedural beginning of the imposition of patriarchy,” as the treaty commissioners insisted upon a negotiation process that was open exclusively to male representatives of Indigenous communities (Reference Craft2015). Indeed, despite the significant role that Indigenous women have played in the governance of their communities in many (but not all) contexts, the Crown overlooked the importance of Indigenous women in the negotiation of the numbered treaties, at least in a formal capacity.

Scholarship on the gendered nature of settler colonialism has argued that settlers’ failure to acknowledge Indigenous women's political authority in the context of treaties and elsewhere was not merely a by-product of patriarchal norms but, in fact, possibly a far more deliberate political strategy. As Audra Simpson (Reference Simpson2016) has argued, the high level of power and authority exercised by Indigenous women formed a direct threat to the settler colonial project, as it represented an explicit marker of difference from Western orders of governance. The extension of settler political authority over Indigenous peoples required the removal or erasure of Indigenous polities, and particularly those dimensions of Indigenous political orders that call into question settler claims to sovereignty. Thus gendered colonial violence has enacted an assault not just upon Indigenous women's physical bodies but also upon the political form and power that said bodies represent.

The complex networks of interdependence with Creation that Indigenous peoples inhabit represent the source of Indigenous peoples’ political authority and jurisdiction, informing our associated rights and responsibilities (Cardinal and Hildebrandt, Reference Cardinal and Hildebrandt2000: 11). Furthermore, Indigenous political orders are grounded not just upon a pre-existing relationship but also upon a continuous and engaged relationship with Creation. Since Indigenous women hold jurisdiction relative to many nonhuman elements of Creation, their very presence in the political life of Indigenous communities can be understood as signifying a threat to the settler colonial project by representing the continuity of a political order and of relations to Creation that serve to challenge settler claims to jurisdiction (Simpson, Reference Simpson2016). The symbolification of Indigenous women's roles and repression of actual political authority, both in historical and contemporary treaty politics, has thus served the purpose of bracketing off questions of Indigenous peoples’ responsibilities to Creation and associated questions of jurisdiction.

While the early settler colonial project relied upon the notion that treaties represented political agreements insofar as they would promise to uphold claims to Crown sovereignty, it also needed treaties to represent an endpoint for Indigenous peoples’ political authority and jurisdiction. Beyond this initial stage in the relationship, contemporary Crown governments have required a means of continually maintaining the legitimacy of their claims to jurisdiction over Indigenous peoples while also sustaining the concomitant subordination of Indigenous political authority. One way in which federal and provincial governments have sought to achieve this has been through the reproduction of symbolic commitments to treaty implementation, alongside the simultaneous depoliticization of treaties through a variety of means, which will be explored in subsequent sections. I argue that this simultaneous acknowledgment and denial of Indigenous governance has consistently functioned as a containment strategy with respect to the implementation of a nation-to-nation relationship under the numbered treaties.

The Culturalization and Depoliticization of Contemporary Treaty Relationships

Since the negotiation of the numbered treaties, federal and provincial governments have sought to delimit, in varying ways, the powers of governmentality that Indigenous peoples might assert by way of treaties. While an exhaustive overview of the federal government's shifting approach to treaty implementation is not possible within the parameters of this article, of particular relevance to the current conversation is the way in which the racialization, culturalization and depoliticization of treaties have functioned to delimit the potential implications of a more robust understanding of treaties over time.

In the early days following the signing of treaties, the Canadian government's willingness to enact its treaty responsibilities was in many ways dependent upon Indigenous peoples’ individual behaviour and compliance with the national Indian policy (Daschuk, Reference Daschuk2013). Indian status eventually became a requirement for the exercise of treaty rights, and being a treaty Indian and Canadian citizen were seen as mutually exclusive categories. Colonial legislation aimed to administer the rights associated with treaties through the status Indian registry, constructing the mythology of the “treaty Indian” and linking the implementation of treaties to Indigenous individuals (Milloy, Reference Milloy2008: 10). Not unlike the forms of depoliticization mentioned in the previous section, these processes were also decisively gendered (Milloy, Reference Milloy2008: 10). Such legislative policies increasingly shifted public perception surrounding treaties away from the nature of the relationships between treaty partners and toward a narrow spectrum of rights exercised by individuals.

The process of linking treaties to individual Indigenous bodies abstracts them from their purpose and intent relative to the rest of Creation. In other words, the land question and matters of political jurisdiction are obscured from treaty discussions. This process not only diminishes the status of treaties as political agreements between governments but also deterritorializes them. As Lynn Gehl (Reference Gehl2015) notes, the criteria for determining who would exercise treaty rights initially included all people who resided with Indigenous people within a treaty area. Increasingly, the Canadian federal government began limiting the number of people entitled to Indian status through various legislative processes such as enfranchisement, as well as the forced removal of status from Indigenous women who married non-status men and from the children of such unions (Boldt et al., Reference Boldt, Long and Littlebear1985). Treaties gradually became associated with questions of race and identity, detracting from their overarching purpose as land-use arrangements intended to outline the rights and responsibilities of Indigenous and non-Indigenous people in shared spaces.

Contemporary treaty politics have been shaped not just by liberal multicultural discourse, which has prompted Indigenous peoples to engage in efforts to distinguish ourselves from other minority rights holders in Canada, but also by ongoing state efforts to contain the exercise of Aboriginal and treaty rights to the realm of cultural practice. As scholars such as Mark Rifkin (Reference Rifkin and Barker2017) have noted, the linking of Indigenous polities to matters of race and culture imposes boundaries around the possibility of looking to Indigenous nations as political orders in and of themselves. Writing with respect to the US context, Rifkin notes that determinations of Indigenous political authority through reference to race and blood contain the exercise of Indigenous self-governance, noting that when Indigenous sovereignty is defined through reference to a biological “Indianness,” it is both depoliticized and despatialized, turning political authority into the equivalent of identity. Indigeneity then defines the limits of Indigenous sovereignty, substituting “the reproductive transmission of racialized substance … for the geopolitical dynamics of Indigenous peoples having to exist on territory forcibly incorporated into the settler state” (Reference Rifkin and Barker2017: 170). In the Canadian context, the linking of treaties to Indian status similarly imposes racial limits surrounding the exercise of Indigenous jurisdiction and political authority as affirmed in treaties, ultimately substituting Indian blood or ancestry for political arrangements between Indigenous people and the settlers’ state. As Rita Dhamoon observes, the effect of the colonial legacy is the creation of a “racialized and Indigenous cultural identity that previously organized on the basis of nationhood” (Reference Dhamoon2010: 126). In the process, treaties become primarily associated with a “status” held by individual bodies rather than with political relationships that affirm the continuity of pre-existing forms of Indigenous governance vis-à-vis federal and provincial governments. The treaties, by being linked to identity under the Indian Act, have become not only conflated with racial or cultural distinctiveness but narrowed by the Indian Act's highly gendered articulations of Indigeneity. As a consequence, identity, race and ultimately gender function to overwrite questions of Indigenous political jurisdiction, nationhood and governance relative to treaty agreements.

It would be inaccurate to suggest that the culturalization of treaty rights is a project devoid of political significance, as the ability to exercise cultural practices and participate in one's cultural community is certainly an important aspect of political life. While there are many dimensions of governance inherent in Indigenous peoples’ cultural and ceremonial practices, these are severely constrained when not accompanied by the legal and political jurisdiction necessary for Indigenous peoples to govern ourselves in other realms of life. Taking culture as the primary frame through which to work toward treaty implementation shifts the focus of treaty politics away from the continuity of Indigenous legal and political orders. As Glen Coulthard has demonstrated, there is a distinction between strategies aimed at “cultural and symbolic” forms of change and strategies aimed at attending to the structural dimensions of oppression (Reference Coulthard and S2007: 437). As a consequence of this culturalist orientation, Indigenous understandings of treaties are vacated of legal significance, rendering our interpretations of treaties legible only as the “spirit and intent” or the “symbolic” version. These continue to exist by way of contrast with the purportedly authoritative settler record and the terms and assumptions exercised within its legal and political institutions.

In delineating the contours of treaty rights, the Canadian courts have constructed culturalist criteria such as those outlined in Van der Peet, which limit constitutional protection to select practices perceived as integral to the cultural distinctiveness of Indigenous peoples (R. v. Van der Peet, 1996). This, in turn, suggests that Indigenous rights that fall outside the category of culture are not entitled to receive constitutional protection. And while the courts have generally taken up treaties as collective in nature (Allodi-Ross, Reference Allodi-Ross2017: 157), neither these collective nor cultural orientations have given rise to a recognition of the right of self-government affirmed in treaties. The following section explores the disconnect between the symbolic recognition of a nation-to-nation political relationship between Indigenous peoples and the Crown under the treaties and the ways in which treaties have been implemented within Canadian institutions.

Nation-to-Nation Treaty Relations and the Containment of Indigenous Governance

In recent decades, treaties have occupied a central role in federal government's framing of its commitment to improving relations with Indigenous peoples. References to the treaty relationship have been prominent in Prime Minister Justin Trudeau's speeches, from his early campaign statements to his repeated calls for the renewal of a nation-to-nation relationship with Indigenous peoples—a relationship which he qualifies as one “that is guided by the spirit and intent of the original treaty relationship” (Trudeau, Reference Trudeau2015, Reference Trudeau2018). Yet as Hayden King and Shiri Pasternak note, even while “Trudeau is praised internationally for making the relationship with Indigenous peoples, as he says, his ‘most important,’” many have critiqued these gestures as “symbolism over substance” (Reference King and Pasternak2018b).

For instance, the “Overview of a Recognition and Implementation of Indigenous Rights Framework,” currently being developed by the federal government, employs the language of Indigenous nationhood and is purported to represent a move toward implementing self-government; however, it continues to frame self-government as delegated and flowing from federal recognition (CIRNAC, 2018). It suggests that recognition is itself contingent on the successful conclusion of a negotiation process and neglects the particular constitutional relations and conventions established through treaties. As King and Pasternak have argued, this initiative fails to engage with treaties as “meaningful, international land-sharing agreements between nations” (Reference King and Pasternak2018a: 18). It claims to have departed from previous approaches to self-government, yet it fails to acknowledge self-government as affirmed in treaties and under Indigenous and international law. As Mary-Ellen Turpel-Lafond, Wilton Littlechild and Ed John indicated in a letter to Prime Minister Trudeau that outlined concerns relating to the proposed framework: “From the viewpoint of reflecting existing human rights, treaties, constitutional law and international norms and principles, the process does not align with the commitment … described” (cited in Barrera, Reference Barrera2018). Among other critiques, the authors characterized this initiative in its current form as running the risk of being “a retrograde instead of a progressive initiative” (cited in Barrera, Reference Barrera2018). Indeed, the process to date has been reminiscent of the unwillingness of federal and provincial governments to recognize a robust and unqualified right to Indigenous self-government during the negotiation of the Charlottetown Accord (Russell and Jones, Reference Russell and Jones1995: 47–48).

Indigenous peoples have exercised powers of governance prior to contact with Europeans and continue to do so in many ways, yet while the courts assumed much of the responsibility for determining the meaning of section 35 of the Constitution Act following the defeated Charlottetown Accord, they have not demonstrated a willingness to revisit the constitutional division of power to allow greater space for Indigenous governance. Note Macfarlane JA's reasoning in Delgamuukw, which suggests that “the rights of self-government encompassing a power to make general laws governing the land, resources, and people in the territory are legislative powers which cannot be awarded by the courts. Such jurisdiction is inconsistent with the Constitution Act, 1867 and its division of powers” (Delgamuukw v. British Columbia, 1997: para. 36). Yet at the same time as the Constitution Act has been invoked to guard against the forms of structural change sought by Indigenous peoples, the courts have not shied away from revisiting the constitutional division of powers as it pertains to the jurisdiction of federal and provincial governments.

In instances where the courts have revisited the division of powers relative to treaties, they have done so in a way that diminishes the nation-to-nation relationship between treaty First Nations and Canada. For instance, the court in Grassy Narrows employed a “doctrine of constitutional evolution” to suggest that the provinces could now “stand in Canada's shoes” with respect to fulfilling the Crown's treaty responsibilities. This distorts and minimizes the status of treaties as unique constitutional agreements with the Crown. Furthermore, it creates additional ambiguity for Indigenous peoples; as McIvor and Gunn note, Grassy Narrows is likely “to result in significant uncertainty” with respect to “the type of protections Indigenous Peoples can expect for their constitutionally-guaranteed rights” (Reference McIvor and Gunn2016: 158). Specifically, they argue that in removing “an established aspect of constitutional protection formerly guaranteed to Indigenous people,” Grassy Narrows “puts at risk the established special relationship … grounded in the Royal Proclamation of 1763” and has the potential to be regarded “as a basis on which to re-write the Constitution so as to undermine Canada's exclusive responsibilities to Indigenous Peoples” (160). Further, while the Grassy Narrows trial Court found that the Indigenous parties to Treaty 3 had received a clear, oral promise of an unlimited and perpetual harvesting right, this oral promise was ignored upon appeal (Townshend, Reference Townshend2017: 302), illustrating the inconsistency between the symbolic commitment to respect Indigenous understandings of treaties and the failure to implement this commitment in practice.

While the courts have crafted principles of treaty interpretation that are geared toward moving away from static, literal or Eurocentric readings of treaties,Footnote ⁴ when these canons of treaty construction are employed, they have not operated to account for interpretations of the nature of the treaty relationship under Indigenous legal orders. That is, the subordinate nature of Indigenous peoples’ legal and political status is upheld at least in part through a reliance on Western frames surrounding the nature of treaties and in part as a result of a broader failure to take seriously Indigenous legal and political principles in contemplating the nature of the Indigenous-state relationship. Consider McCrossan and Ladner's argument that despite the declaration of title in Tsilhqot'in, the judicial reasoning employed in this case is, in fact, geared toward the elimination of Indigenous laws, jurisdictions and territorial relationships, as it privileges the current configurations of provincial and federal power, which “conceptually exclude and undercut Indigenous legal orders and territorial responsibilities” (Reference McCrossan and Ladner2016: 412). They note that this represents a contemporary manifestation of settler colonial logics of elimination: even when Indigenous peoples’ self-determining status is acknowledged, such gestures are restricted by the court's deference to federal and provincial laws and its concomitant failure to engage with Indigenous laws. This failure to engage with Indigenous legal and political knowledge can also restrict the exercise of Indigenous governance in treaty contexts in a number of ways, including but not limited to the forms of legal and political repression that result from representations of treaties as mechanisms of extinguishment. With respect to the question of extinguishment, Kent McNeil writes that

McNeil highlights the need for treaty interpretation to be guided not just by Canadian law and its tokenistic recognition of the “Indigenous perspective” but by the laws of the Indigenous peoples who are also party to the treaty. Contrary to Poelzer and Coates's suggestion that it is Indigenous peoples who must come to terms with the division of power under the Canadian federation and adjust our political aspirations accordingly (Reference Poelzer, Coates, Michelmann and Clercy2006: 164), McNeil's perspective instead points to faults in the logic underlying the perceived extinguishment of Aboriginal title under treaties. That is, the perceived extinguishment of Indigenous jurisdiction in treaty territories (which creates space for federal and provincial claims to jurisdiction) is created and upheld through an interpretation of treaties that is grounded in Western law and that fails to consider the Indigenous laws that would inevitably invalidate it. In recognition of this oversight, McNeil suggests that perhaps it is settlers who have a responsibility to familiarize themselves with Indigenous legal orders and then revisit mainstream institutions, structures and processes on that basis.

As indicated earlier in this article, Treaty Elders and Indigenous legal scholars have repeatedly stated that in Indigenous legal systems, land is not a property that can be transferred or sold. Indigenous peoples understand treaties to represent land-use arrangements that are intended to delineate frameworks of nonhierarchical co-existence between nations. Indeed, as Leroy Little Bear observes of the relationship between humans and Creation, Indigenous law would not have permitted the notion of transferring land to the Crown: “The standard or norm of the aboriginal peoples’ law is that land is not transferable and therefore is inalienable” (1986: 243; cited in McNeil, Reference McNeil2001: 305). This disconnect points to the need to revisit many of the foundational assumptions regarding treaties that are perpetuated in federal and provincial institutions, including but not limited to the notion that Indigenous title to the land has been extinguished in regions where the numbered treaties have been negotiated. This could lead to further conversations whereby treaties are understood as much broader than questions of culture or of mediating cross-cultural relations—which is, in fact, part of the purpose of treaties but certainly not their only purpose.

The reduction of treaty partners’ broad range of rights and responsibilities to questions of culture, along with the racialization and gendering of treaties through the construction of the “treaty Indian,” conflates Indian status and treaty rights and contains the breadth of the legal and political implications of treaties as they are understood by many treaty partners. It simultaneously gives the impression that treaties are being implemented (albeit in a narrow state) while masking the ongoing subordination of Indigenous legal and political systems and dispossession of land.

The proper foundations, function and exercise of Indian governments have been suppressed in many ways through these narrow engagements with treaty relationships. In the process, specific boundaries have become erected around the possible ways that they can be invoked and applied in contemporary contexts.

Treaty Relationships and the Politics of Incoherency

In a recent article surveying the last 50 years of scholarship in Canadian politics, Kiera Ladner (Reference Ladner2017) suggests that scholars in the discipline of Canadian politics have generally failed to engage with Indigenous politics and governance as political orders in their own right. She notes that while there certainly have been concentrated efforts to accommodate Indigenous cultural difference within Canada's multicultural horizon, there has been significantly less attention paid to the foundational relationship between Canadian and Indigenous legal and political orders. Ladner's observations echo Joyce Green's (Reference Green2000) call for political scientists to engage in critical reflection surrounding the way in which Indigenous peoples are being taken up relative to the Canadian body politic. Here Green argued for a move away from analyses of Indigenous politics as issues of cultural difference, demonstrating that this characterization is highly damaging to Indigenous peoples’ political imperatives. She emphasized the need to engage with the political significance of Indigeneity beyond realms of identity and culture, advocating for a focus on the unique “historical, political and legal location” of Indigenous nations vis-à-vis the Canadian state.

This article has attempted to respond to these calls by positioning treaties as the locus of Indigenous peoples’ relationship with Canada and by confronting the processes that serve to continually contain the full breadth of this relationship. I have argued that while the Canadian state requires the continuity of treaties to legitimate its claims to sovereignty and jurisdiction, it also requires the ongoing subordination of Indigenous political orders. Part of the way (but not the only way) in which this has been achieved over time has been through the linking of treaties to a racialized or cultural identity rather than to a distinct political relationship. This selective recognition and construction of treaties reinforces colonial relations by depicting treaties as the endpoint for Indigenous legal and political authority while also containing the transformative possibilities that emerge when treaties are viewed as the site of Indigenous peoples’ unique political relationship with the Crown. The disjuncture between symbolic and material commitments to a nation-to-nation relationship then functions as a strategy that continually reproduces structures of political domination and dispossession of land by selectively upholding certain aspects of Indigenous understandings of treaties (such as agreement to share the land and to retain cultural practices), while minimizing dimensions that threaten to disrupt current configurations of power (such as the redistribution of power, jurisdiction and resources).

The incoherency surrounding treaties impacts both Indigenous and non-Indigenous understandings of the rights and responsibilities of all treaty partners, contributing to the cultivation of popular misconceptions and stereotypes. It is in this climate of ambiguity that simplistic mythologies thrive, as they provide an easily comprehensible narrative that doesn't require individuals to revisit their pre-existing assumptions or deconstruct the status quo. Indeed, the lack of clarity surrounding treaties sustains a number of mythologies that fuel racial divides between Indigenous and non-Indigenous peoples in Canada, such as the notion that all Indigenous peoples are excused from paying federal taxes or receive free post-secondary education, health and dental care as treaty rights. Such perceptions are not only highly inaccurate but also abstract the conversation away from the underlying treaty relationship and toward competing assertions and counter-assertions surrounding fixed treaty terms. These representations also turn Indigenous challenges to systems of settler colonialism into Indigenous grievances or claims against the state, subsuming them within the broader spectrum of minority and cultural politics in Canada. With these seemingly logical explanations of Indigenous “entitlement” or “dependency,” many members of mainstream society then default to treaty mythologies as a pretext for not engaging in a deeper understanding of treaty relationships.

Failure to understand the relationships of political nonsubordination that Indigenous peoples agreed to in taking treaties gives the impression that contemporary recognition or accommodation of treaty rights amounts to special treatment toward Indigenous peoples. This, in turn, suppresses the possibility of mobilizing the popular will to implement treaties. On the contrary, the articulation of treaty rights can result in a form of reactionary politics, cultivating a climate of resentment among proponents of equal rights discourse (Dudas, Reference Dudas2008). The assumption that Indigenous peoples are already the beneficiaries of greater rights and recognition than they deserve sustains the mythology that the state is honouring its responsibilities under treaties and that it has been nothing less than benevolent toward Indigenous populations.

The “politics of incoherency” surrounding treaties can be understood as part of a broader process of “colonial unknowing” that functions to sustain settler claims to sovereignty by disavowing the current and constitutive nature of colonialism (Vimalassery et al., Reference Vimalassery, Pegues and Goldstein2016: 13). As Vimalassery et al. explain, colonial unknowing represents a process of dissociation that establishes “what can count as evidence, proof, or possibility” in order to “render unintelligible the entanglements of racialization and colonization” (13). In other words, it refers to the failure to think relationally about the interconnected and co-constitutive nature of various dimensions of colonialism. Colonial unknowing reproduces the disjuncture between contemporary structures of colonialism as “simultaneously everywhere and nowhere,” as they remain differently and selectively understood by those who experience them and those who benefit from them. This process involves not only selective inclusion and exclusion of differing narratives, such as those surrounding treaty relationships, but also a dissociation of the past from the present, which as Stark (Reference Stark2016) notes, can attribute to treaties a false and troubling finality. It is inconsistent with a relational mode of analysis that, in the context of treaties, can work to challenge treaty mythologies by illustrating how they have served to maintain a colonial political relationship, even one that has evolved over time.

In problematizing inconsistencies, dichotomies and selective forms of recognition, I am not advocating for a fixed, static definition of treaty terms. Treaties are intended by Indigenous peoples to be dynamic, relational and contextual. While Indigenous peoples’ relationships with newcomers would undoubtedly change in response to shifting social and environmental conditions, the values and precepts underlying the relationship are intended to be applicable to multiple contexts into the future. Treaties affirm the continuity of different ways of being in shared spaces and provide a framework to help navigate those tensions and inconsistencies as they arise over time. Treaties, then, are not immutable objects; they are iterative and cyclical and based on ongoing interaction and renewal. This should not be interpreted as suggesting that Indigenous understandings of treaties are themselves in flux; on the contrary, Indigenous oral histories and knowledges of treaties have remained consistent since their signing, and they accord more closely with the Crown's written records of negotiations than the written text does (Asch, Reference Asch2014: 82). With this knowledge passed on from generation to generation, Indigenous peoples continue to work in many contexts to honour the continuity of treaties as we understand them.

The intent of this article has been twofold: first, to highlight the need for scholars of Indigenous and Canadian politics to take seriously the political significance of the numbered treaties and to hold the Canadian state accountable for the ways in which treaty relationships continue to be selectively interpreted and misinhabited in practice. The secondary call that I have advanced has been for scholars to not just consider or include Indigenous political perspectives into theorizations of Indigenous-state relations but to think carefully and cautiously about how it is they are engaging with Indigenous political orders such as those affirmed in treaties. That is, we must be mindful to not reproduce symbolic framings of the treaty relationship in ways that obscure the material forms of dispossession and subordination that selective interpretations and representations of treaties can function to sustain. Throughout, I have demonstrated the rationale for this call; that is, that the incoherency and mythologies surrounding treaties serve to uphold structures of settler colonialism by obscuring the associated legal and political commitments of treaty partners. Conversely, when these mythologies are challenged, those challenges can represent an important way of revisiting how it is we understand and engage with the relationship between federal, provincial and Indigenous governments.