Creative Sovereignties and Fiscal Relations

Nation-to-nation relationships in what-is-now Treaty 6 territory began long before the Treaty 6 negotiations—with Cree, Blackfoot, Stoney, Dene, Metis, and even the Hudson’s Bay Company sharing this territory (Dion 1993; Erasmus 1999; Ward 1995). Relying on both primary and secondary written sources (Binnema 2001; Carter 1999; Craft 2013; Jobin 2013; Mandelbaum n.d., 1979; Milloy 1988; Treaty 7 Elders and Tribal Council 1996), I conclude that prior to Canada’s arrival here in the 1870s, First Nations were sovereign nations living together in a shared space with negotiated jurisdictional and geographical boundaries, engaging in political and economic relations, and resolving inevitable conflicts bilaterally, sometimes diplomatically and sometimes violently, as equals. This was the context into which Canada came in the 1870s to negotiate Treaty 6 and the other numbered treaties.

Numbered treaty negotiations began almost immediately following Canada’s ‘purchase’ from the Hudson’s Bay Company of Rupert’s Land and the Northwest Territory in 1870. Despite the legality of Canada’s purchase of this territory from a British and Canadian perspective (Tough 1992), this land was not, of course, de facto Canada’s, any more than it had been the Hudson Bay Company’s, and Canada’s negotiation of treaties was an implicit acknowledgement of this fact (Craft 2013). In other words, whatever de jure sovereignty Canada believed itself to have, Canada recognized that it was only through treaties that the west could be opened to settlers.

In 1876, Treaty 6 negotiations took place at Fort Carlton and Fort Pitt (in contemporary Saskatchewan), and additional First Nations (including many around Fort Edmonton) adhered in 1877 and later. While primarily a treaty with Cree First Nations, Treaty 6 is also adhered to by Saulteaux/Ojibwe, Assiniboine/Stoney, and Dene First Nations—all of which seem to have been represented at Forts Carlton and Pitt (Erasmus 1999; Ray, Miller, Tough 2000).

Despite the desire of both Canada and most of the First Nations chiefs to negotiate a treaty, successful negotiations were far from certain (Ray, Miller, Tough 2000). These were genuine negotiations—the First Nations were not simply going to accept the terms lead negotiator Lieutenant-Governor Alexander Morris came with, and Morris was not going to simply concede whatever the First Nations demanded (Jobin 2018). The negotiating chiefs were aware of the terms of prior numbered treaties (especially Treaty 4 [Ray, Miller, Tough 2000]) and expected to improve upon them, just as Morris was careful to not promise too much. So, for example, the chiefs insisted on provision of food, which, according to Morris, ultimately resulted in the limited promise that Canada would provide food in cases of ‘a national famine’ (Morris 1991, p. 186). Treaty 6 also included promises of farming assistance that were superior to those of Treaty 4, as well, famously, as the ‘medicine chest’ clause, which had not appeared in any of the prior numbered treaties (Starblanket & Hunt 2020; Ray, Miller, Tough 2000). Both sides took the negotiations seriously, and neither side appeared particularly desperate to conclude the treaty unless it was at least to some extent in line with their demands. To put this another way, whatever miscommunications and misunderstandings may have resulted due to differences in worldview and language—and these were likely significant—Treaty 6 represents at minimum a legitimate attempt at a nation-to-nation agreement.

After what seem to have been several tense days, Treaty 6 was concluded at Fort Carlton on August 23, 1876, and according to Morris a document was prepared that was agreed to by both Canadian and First Nations representatives. From there, the Canadian negotiators carried on to Fort Pitt where most of the chiefs agreed to the treaty as negotiated at Fort Carlton.

Even if we ignore for now First Nations’ oral tradition regarding Treaty 6, there appears to be tension between the Canadian text of Treaty 6 and the negotiations that Morris and other settler observers recount. While much of what was discussed is reflected in the text of Treaty 6, there are important elements of the Canadian text that none of the Canadian observers mention in their accounts of the negotiations. In other words, there are serious gaps between what is related in the primary source written accounts of the negotiations and the text of Treaty 6 itself. Most significantly, according to the written accounts of the verbal negotiations, nothing appears to have been said about First Nations agreeing to ‘cede, release, surrender and yield up to’ Canada their land (Craft 2013; Miller 2009; St. Germain 2009; Taylor 1999), although this language features prominently in the treaty text (and, of course, in Canada’s interpretation of what the numbered treaties represent). Sheldon Krasowski is adamant on this point: ‘There is no evidence that Alexander Morris or his fellow treaty commissioners discussed the surrender clause during any of the treaty negotiations’ (2019, p. 272). Given that almost certainly none of the First Nations chiefs present at Forts Carlton and Pitt could actually read the text (and may not have even had the opportunity to do so even if they were literate), it seems highly problematic that Canada’s claim to exclusive sovereignty in this land rests on a text that was never part of the negotiations, and probably not explained (Hildebrandt 2008; Krasowski 2019). Treaty 6, then, should be properly understood as the agreement reached verbally in 1876, not exclusively the Canadian text.

Based on my reading of the Treaty 6 negotiations, I come to the following conclusion regarding the relationships Treaty 6 created. Consistent with nation-to-nation relationships in the territory for generations prior, Treaty 6 created ongoing, dynamic, nation-to-nation relationships between Canada and adherent First Nations that were intended to ensure mutually beneficial relations in a shared space. While this statement is not exhaustive in terms of the motivations for entering into Treaty 6, I consider the establishment of these relationships to be foundational. Given the importance of my conclusion, I will put some effort into breaking it down.

The statement’s first clause, ‘consistent with nation-to-nation relationships in the territory for generations prior’, is an attempt once again to emphasize the political context of Treaty 6 territory prior to Treaty 6. Interestingly, while Treaty 6 certainly created formal relationships that did not previously exist, from an Indigenous perspective these relationships were not particularly creative in the sense of unique: as noted, they recognized respective sovereignties in ways relationships between Indigenous nations had for centuries. The relationships Treaty 6 created must be understood within this context.

The ‘ongoing’ nature of the Treaty 6 relationships, while perhaps forgotten or ignored by Canada and Canadians for generations, appears to be well-understood today. The endurance of treaty relations is beautifully captured in the well-known ‘as long as’ metaphors used at the Treaty 6 negotiations (and since) by both First Nations and Canadian representatives: as long as the grass grows, the river runs, the sun shines, the waters flow, and so on (Johnson 2007; Macdonald 2017; Morris 1991; Price 1999; Ray, Miller, Tough 2000; Venne 1997; Venne 2007) (although none of these phrases actually appear in the Canadian text). The family and kin metaphors (H. Cardinal & Hildebrandt 2000; Johnson 2007; Morris 1991) that occurred throughout the negotiations and in the Treaty 6 text also speak to the lasting nature of relations.

‘Dynamic’ is an aspect of Treaty 6 relations that perhaps has not received enough attention, but it logically arises out of the ‘ongoing’: all relationships that last must also be able to adapt and change. The Royal Commission on Aboriginal Peoples (RCAP) used the terms ‘fresh’ and ‘living’ (1996, Volume 2, p. 37) to describe treaties, and they resonate with this concept of dynamic relations. Gina Starblanket says: ‘Treaties were intended to be renewed and revisited over time in order to ensure good relations into the future’ (2019a, p. 15). Treaty 6, then, was not (as perhaps some historical treaties were) a static contract of land purchase or a temporary alliance for military purposes, but rather a commitment to ongoing and dynamic relations.

Since today settler politicians use the term ‘nation-to-nation’ in ways that affirm, rather than undermine or dismantle, Canadian colonialism (King and Pasternak 2018), its use here is somewhat risky. But most readers should have little difficulty understanding the term at a basic level: the relations Treaty 6 established are relations between nations, not between individuals and a nation, or a nation and a colony, or groups within a single nation (Ladner 2003). In other words, the relations are typical of those created by most treaties throughout time and around the world, as well as specifically in Treaty 6 territory for generations prior to Treaty 6.

In some cases, treaties are arrived at after violent interactions, and may represent one (victorious) side more-or-less unilaterally imposing terms on the other, defeated side. Treaty 6 was not such a treaty, and rather was negotiated with the intention of creating ‘mutually-beneficial’ relations (H. Cardinal & Hildebrandt 2000). There were immediate benefits arising from Treaty 6, especially for the First Nations who received annuities immediately, but ultimately the ‘mutually-beneficial’ aspect was also part of the ‘ongoing’ nature. In other words, the benefits for both sides were meant to continue into perpetuity. Among other things, for the First Nations, much of the benefit was of a fiscal nature (see next section), and for Canada the benefits included access to land for settlement and avoidance of costly military conflict.

The final term of the argument, ‘shared space,’ most obviously refers to the geography Treaty 6 covers. But I have intentionally left out the word ‘geographic’ because I imagine the relationships Treaty 6 created to also allow for mutually beneficial relations in other types of shared space, including fiscal space. While the accounts of the Treaty 6 negotiations make the ‘shared’ aspect clear, the history of Treaty 6 relations has not, of course, included much sharing. Nonetheless, Treaty 6 was clearly an agreement to share space. Working out what that should look like in a contemporary context will be important.

Building on my conclusion about Treaty 6 relationships generally, we can now focus on the fiscal component of these relationships. ‘Fiscal’, as defined by Merriam-Webster, means ‘of or relating to taxation, public revenues, or public debt’. Based on this definition, the nation-to-nation relationships Treaty 6 established had fiscal consequences for both sides. These newly created relationships included a fiscal component: for Canada, the treaty created fiscal obligations; and, for First Nations, fiscal expectations. Of course, as with any treaty, there were also obligations of First Nations, but these related to sharing of land and loyalty to the Crown, and as far as I read the treaty, do not have a fiscal component (St. Germain 2009). Canada’s fiscal obligations for the most part relate to expenditure of public revenues on some type of service delivery, although there are also obligations that require funding or goods purchased by Canada to flow directly to First Nations or First Nations individuals.

It is my position that for the most part the fiscal obligations Canada agreed to as outlined in the Treaty 6 text represent a minimum. This is logical: the text is Canada’s version of the treaty, so this is the minimum Canada should be held to. In other words, the fiscal relationships established by Treaty 6 include everything that appears in the Treaty 6 text, and more. It can be easy, especially when limiting treaty to the Canadian text, to view Treaty 6 fiscal relations as merely a checklist of obligations Canada took on; but this would not, of course, be consistent with the idea of ongoing and dynamic relationships. As Stark points out: ‘We must not be constrained by the narrow articles ... that too often distract us from the deeper meanings’ (2017, p. 276). Nonetheless, this ‘checklist’ approach is consistent with how Canada has historically understood Treaty 6, and therefore I believe it is a useful starting point. Below, I list the fiscal obligations Canada took on that I understand to be ongoing obligations, more-or-less literally as they appear in the text:

Outlining the ongoing fiscal obligations as delineated in the text of Treaty 6 was a relatively easy task. But, as First Nations have always understood (Miller 2009), and as more and more Canadians are now understanding, the Canadian text of Treaty 6 has inadequately captured the ‘spirit and intent’ of Treaty 6. The secondary literature on Treaty 6 and the numbered treaties generally is nearly unanimous on this point. In fact, in some ways (most especially the clauses regarding land surrender), the text of Treaty 6 is inconsistent with the spirit and intent of Treaty 6 as related by First Nations Elders and, arguably, even Canadian accounts of the negotiations. For First Nations Elders interviewed in Saskatchewan, for example, the Cree concept of pimâcihowin, roughly ‘the ability to make a living’ was an important aspect of treaty relationships (H. Cardinal & Hildebrandt 2000). Pimâcihowin is a concept inclusive of spirituality, and so is greater than just fiscal relations (or at least fiscal relations as defined by settlers), but there is certainly a fiscal component too, especially relating to ‘the right of First Nations to maintain a continuing relationship to the land, and its resources’ (H. Cardinal & Hildebrandt 2000, p. 46). In the context of my research, I interpret the Elders’ emphasis on pimâcihowin as a treaty principle to be an assertion that Treaty 6 fiscal relations do not simply involve fiscal obligations that Canada owes First Nations, but also a respect for First Nations fiscal jurisdiction—sovereignty—over their own people and land. There are, therefore, elements of fiscal relationships established by Treaty 6 that do not appear in the text. To put this another way, fiscal relationships created by Treaty 6 and consistent with the treaty should not be limited to the fiscal obligations/expectations noted in the text. Here I will highlight just two fiscal issues that should rightly be part of Treaty 6 fiscal relationships given the idea of mutually-beneficial relations in a shared space.

As already noted, Treaty 6 First Nations only agreed to share the land as opposed to ‘cede, release, surrender, and yield’ it (RCAP 1996). While the treaty text might include this language of surrender, the account of the treaty negotiations—even as represented by Canadian officials—did not include any mention of this transfer of ownership (Hall 2015; Carter 1999). Moreover, given the context of international relations in this land prior to Canada’s arrival here, surely it is far more reasonable to assume that the First Nations understood Treaty 6 to be an agreement allowing settlers to share their land—not take it over entirely. This was consistent with the peaceful coexistence of at least several distinct nations already in this territory (Taylor 1999). Of course, First Nations testimony in this regard seems to be unanimous: they never intended to surrender their land to Canada (Venne 1997). So Treaty 6 represented an agreement for Canada (settlers) to share First Nations’ territory, not take it over.

Many First Nations Elders even contend that First Nations agreed to share the land solely for agricultural purposes, and that in fact other natural resources were explicitly not part of the negotiations (H. Cardinal & Hildebrandt 2000; Miller 2009; Price 1999; Taylor 1999). While this is an important contention, in my research I assume that the agreement was to generally share the land and all of its resources.

An important aspect of any nation-to-nation fiscal relationships consistent with the spirit and intent of Treaty 6 would be reaching an understanding of how natural resources should be managed and how much of the revenues derived from them should belong to the First Nations. First Nations’ participation in natural resource management and entitlement to at least some share of natural resource revenues should have been an aspect of Treaty 6 fiscal relationships right from the beginning, as would be consistent with living in a shared space, both geographic and fiscal.

Another aspect of relations involving shared fiscal space has to do with taxation. If the nation-to-nation relationships created by Treaty 6 were taken seriously, then tax laws would have respected all nations’ jurisdictions over their land and people. How exactly this would work could take many forms—and obviously such tax laws or tax treaties negotiated today would be different than if questions of taxation had been specifically addressed in 1876. Regardless of exactly how taxation should be or could be or will be worked out, there can be no doubt that taxation is an important element of the fiscal relationships between Canada and First Nations, and that Canada’s taxation laws since Treaty 6—which entirely disregard First Nations’ jurisdiction—have been inconsistent with the notions of ‘nation-to-nation’ and ‘shared space’ that are central to Treaty 6 relationships.

As First Nations have long recognized, and as more and more Canadians are beginning to recognize, Treaty 6 (along with the other numbered treaties) represented an optimistic vision for the future. For First Nations, Treaty 6 represented the health care, food, agricultural support, and cash they would need as they transitioned with Canadian help from one way of life to another. For Canada, Treaty 6 meant peacefully opening land for agricultural settlement. In other words, Treaty 6 should have been mutually beneficial, a true ‘win-win.’

As I noted early in this article, international diplomacy already had an extensive and sophisticated history long before Canada’s arrival here. Treaty 6 was clearly a continuation, even, perhaps, a culmination of this history, in the sense that it created nation-to-nation relationships not only between nations, but between nations of vastly different heritages and worldviews.

But, despite the optimism of Treaty 6, it was in fact more-or-less immediately after the signing of treaties between Canada and First Nations that nation-to-nation relationships ended in this land. Rather than share land, Canada dispossessed First Nations. Rather than respect First Nations governance, Canada imposed its own system. Rather than recognize First Nations’ sovereignty over their own land and people, Canada enforced the Indian Act. And rather than remember the history of nation-to-nation relations and Treaty 6 in its optimistic fullness, Canada forgot, perhaps intentionally so.

While Canada certainly ‘forgot’ the optimistic fullness of the relationships created by Treaty 6, it was not entirely willing to forget treaties, since its selective, ‘incoherent’ (Starblanket 2019b) interpretation of treaty has at times proven convenient—whether to discursively justify its legal sovereignty, its ‘ownership’ of land, or the racialization and individualization of First Nations citizens (Starblanket 2019b; Stark 2016).

For decades, successive federal governments have recognized, at least to some extent or another, the inadequacy of Canada’s relationships with First Nations, including fiscal relations. But perhaps no government has so radically changed official rhetoric on these issues, nor passed more Indigenous-focused legislation (Yellowhead Institute 2019), than the 2015 Liberal Government of Justin Trudeau (which was re-elected in October 2019). I am more interested in the future of Treaty 6 fiscal relationships and less on their current reality, but a brief summary of my assessment of the Trudeau government’s rhetoric and policies relating to fiscal relationships is helpful context. I am necessarily cautious; after all, it is impossible to know at this point what Trudeau’s legacy will be when it comes to Indigenous issues, or what the long term impact will be of what the Trudeau government has done as it relates to fiscal relationships with Treaty 6 First Nations. Still, I am happy to be able to point to some positive changes—both rhetorical and substantive—the Trudeau government has implemented, including $20 billion in new spending that is undeniably having a direct and tangible impact on the lives of Indigenous people.

In a Treaty 6 context, I witness regularly the new houses, schools, fire halls, roads, and water treatment plants (e.g., ISC 2018b); expanded education programming (ISC 2018a); and capacity development (Indigenous and Northern Affairs Canada 2018) this funding has made possible.

The Trudeau government, like so many before it, seems to lack the creativity necessary to break away from the colonial past and restrictive ways of thinking that brought about the Indian Act and centuries of settler government policy intent on imposing Canadian sovereignty on First Nations. It was this realization that inspired my research. Since fiscal relations between Canada and Treaty 6 First Nations are currently not taking Treaty 6 seriously, I want to know what it would look like if they did.

Realistic to the tremendous effort and dramatic changes that would be necessary for fiscal relations to take Treaty 6 seriously, I approached this question from two different perspectives. In this section, I am taking a relatively conservative approach that assumes changes to fiscal relationships have to be of minimal financial impact to the Government of Canada; not challenge Canada as currently constituted existentially; and come at little to no cost in terms of Canadian public opinion. I am also limiting myself to thinking about the fiscal obligations in the Canadian text of Treaty 6—in essence, in this section, I accept the ‘checklist’ approach to treaty, which tends to view it more so as a list of obligations and less as a dynamic, fulsome relationship. Clearly, these suggestions will be nowhere near enough to create fiscal relationships entirely consistent with Treaty 6, but they would represent steps in the right direction. My next section will tackle my research question in a more dramatic way, but I have two reasons for the pragmatic approach of this section.

First, the suggestions of this section are examples of changes that could be made immediately. Whereas more dramatic changes would require significant investment (financial, political, etc.), the suggestions of this section do not. I should be clear: my suggestions are still ambitious in that they would represent significant change in how Canada engages treaty, but they could be done fairly quickly and require little in terms of the investments I listed above. Moreover, whereas the most important element required for the suggestions of the next section is legitimate negotiation with Treaty 6 First Nations, I propose that the suggestions of this section could be implemented unilaterally by Canada. This is important to me, because my observation of current relations between Canada and (especially historical treaty-adherent) First Nations is that there is so much (understandable) distrust, that a necessary precursor to successful future negotiations of these relationships is likely to be Canada taking unilateral steps to demonstrate its seriousness and good faith. The steps outlined in this section represent a chance for Canada to rebuild the trust it has successfully but tragically eroded since 1876.

Second, it is highly unlikely that any Canadian government would ever take the more drastic steps I propose in the next section without first taking more pragmatic steps such as I outline in this one. Therefore, more likely than not, if fiscal relationships are ever changed such that they are consistent with Treaty 6, there will need to be starting points, and the suggestions of this section can serve as those.

The previous section took a relatively conservative approach towards starting to answer my research question, providing three pragmatic examples of ways fiscal relationships between Canada and Treaty 6 First Nations could change to make them more consistent with Treaty 6. I would not describe any of them as especially ‘creative’, nor would they substantively change structures of sovereignty in Canada. From there, however, we can move on to the more dramatic changes that would be necessary for fiscal relations to be entirely consistent with Treaty 6. For these, I am not limiting myself by the constraints I outlined in the previous section, nor confining myself to defining Treaty 6 according to the Canadian text. Instead, I am employing a perspective on Treaty 6 fiscal relationships that more fully appreciates the relationships treaty created. These three suggestions represent much more creative thinking (at least for settlers), and would result in the creation of systems of sovereignty fundamentally different than those currently in place.

There should be no doubt about it: colonialism and in particular Canadian government policy since Treaty 6 have had a profoundly negative impact on Treaty 6 First Nations, including their economies and governance; likewise, decolonizing, or at least attempting to change things going forward such that they are consistent with Treaty 6, will come at a high cost to Canada, including economically and in terms of how Canada is constituted today.

One constraint/assumption I operate under here is that Canada will continue to exist as a nation-state into the future, even if it would need to change in fundamental ways to be consistent with Treaty 6 and other numbered treaties. Creative optimistic imaginings of future relationships between settlers and Indigenous peoples, including those consistent with what Treaty 6 envisioned could legitimately involve Canada ceasing to exist altogether, or any number of other permutations that I have not imagined.

Another critical point about these recommendations is that they should not be unilaterally implemented by Canada. Given their more fundamental and substantive nature, they are suggestions that can only be appropriately implemented following serious and fulsome negotiations. We need contemporary Treaty 6 negotiations that allow the relationships between Canada and Treaty 6 First Nations to fit the contemporary context in a way consistent with Treaty 6; this is not about negotiating treaty away or repudiating what was negotiated in 1876, but rather ensuring Treaty 6 relationships are contemporarily relevant (RCAP 1996). For me, this is best done through a serious and fulsome negotiation process. While Treaty 6 is clearly an agreement between the federal Crown and First Nations, the reality is that since 1905 and especially since 1930 (when the Alberta Natural Resources Transfer Act [NRTA] ‘gave’ Alberta control over ‘its’ natural resources), ‘another’ Crown has entered the context in which Treaty 6 First Nations in Alberta exist: The Province of Alberta. Therefore, I think it makes sense that in future Treaty 6 negotiations, the relevant provinces need to take part.

Driven by the day-to-day realities of my professional experience working within the space of Treaty 6 fiscal relations, and disappointed with the lack of substantive change the Trudeau government’s ‘New Fiscal Relationship’ has implemented, I set out to research what fiscal relationships that took Treaty 6 seriously might actually look like. The answers to this question are not platitudes, token policy changes, and marginal funding increases. Rather, I am convinced that the answers must be rooted in a complete understanding of the relationships Treaty 6 created. Although the Canadian text of Treaty 6 includes a list of fiscal obligations Canada took on, in fact the fiscal relationships Treaty 6 created are much, much more than that. Treaty 6 created ongoing, dynamic, nation-to-nation relationships between Canada and adherent First Nations that were intended to ensure mutually-beneficial relations in a shared space.

As a starting point, I argue that Canada should meaningfully fulfill its fiscal obligations as listed in the text of Treaty 6—including inflation-adjusting treaty annuities; recognizing the treaty-basis for funding for and delivery of certain programs and services and guaranteeing them at levels comparable to Canadians; and recognizing the significance of treaty in the texts of funding agreements. These suggestions are basic and pragmatic—they are relatively easy, cost little or nothing, and are primarily symbolic rather than substantive. Such pragmatic and symbolic shifts within Treaty 6 relations would, however, be important initial, trust-building steps towards taking Treaty 6 seriously. A Government of Canada that is sincere about pursuing reconciliation, decolonization, and nation-to-nation relationships should take steps like these immediately.

Longer term, Treaty 6 fiscal relations that take treaty seriously will require legitimate, good faith negotiations to ensure the future respects the nation-to-nation relationships Treaty 6 created in all of their fullness. In this article I provided three examples of dramatic changes that will be required in order for this to happen: replacing the Indian Act with Treaty 6 as the primary governing framework for relations between Canada and Treaty 6 First Nations; renegotiation of the Natural Resources Transfer Act such that it respects First Nations’ jurisdiction over their land and resources; and amending federal and provincial taxation legislation such that it would be consistent with First Nations’ taxation jurisdiction over their own land, resources, and people.

Unlike my pragmatic recommendations, a fulsome response to taking Treaty 6 seriously will require expensive, politically unpalatable, and time consuming work. Refusal to take on this work, however, ensures that Canada will continue to be the colonial, paternalistic, racist country we would prefer to think is in our past. I intend this article to be a small contribution towards the much larger conversation that we as settlers must engage in with each other and with Indigenous peoples before Canada is willing to change. As bleak as the state of relationships between Canada and First Nations is today, I nonetheless hope for the optimistic, creative, mutually-beneficial future imagined when Treaty 6 came to be.