Blackfoot legal traditions,treaty-making,and non-territorial forms of settler jurisdiction? Niitsitapi oral histories of Treaty 7

Introduction

In 1986, legal counsel for the Peigan Indian Band (currently known as the Piikani Nation) submitted a civil claim against the Province of Alberta, Canada. The claim was filed in response to the Province of Alberta’s decision, formally announced in 1984, to construct an irrigation dam along the Oldman River at a site known as Three Rivers, just west, and upstream, of the Peigan Indian Reserve 147a (Glenn, 1999). According to the claim, the construction of the dam at Three Rivers would “change the present quality and flow of the Oldman River as it passes through the reserve” (Yellowhorn v. The Queen, 1986). This sentence stands out to me because, in addition to the issues of water rights, the legal strategy expressed here by the Peigan Indian Band points to another, and arguably more fundamental question: where, and what, exactly, is the Piikani reserve? By making a claim that the dam impacted the River ‘as it passes through the reserve,’ the Piikani legal argument implied acknowledgment of the Canadian government’s definition of reserves, along with the specific borders of the reserve as surveyed in the 1880s, thus accepting much of the Canadian government’s interpretation of Treaty 7.

While conducting research in Piikani attempts to challenge the construction of the Oldman River dam, it became clear to me that among some Piikani members, and especially among elders of the current and previous generations, the nature and boundaries of the Piikani Reserve are still a matter of dispute. To be clear, this is not a discussion about the difference between Reserve and Traditional Territory, but instead I argue that in the post-Treaty period, ‘reserve’ can take on a different meaning than how it is defined by the Canadian government through the Indian Act (Statutes of Canada, 1985). During one of my interviews with the late Leander Strikes With A Gun, a Piikani elder who was directly involved in the attempts to challenge the Oldman River Dam construction, he expressed to me that he got offended when he saw the original Statement of Claim for the water rights case. As he explained:

This is the reserve according to the interpretation of the law and Indian Affairs. But at the time we were looking at the bigger land base, we are saying, ‘this land belongs to us, it does not belong to you people, you illegally put us in this reserve.’

For me, two things stand out with this statement: first, according to Strikes With A Gun, the Piikani Reserve is much larger than the two reserves currently recognized as such by the Canadian federal and provincial governments: Indian Reserves 147a and 147b. Second, for Strikes With A Gun, the Reserve he was referring to is also qualitatively different from the Indian Act definition, which implies a distinctly Piikani understanding of territory, and of jurisdiction that governs this territory, as he contrasts his understanding of the reserve from ‘the interpretation of the law,’ here meaning Canadian law. This notion of Reserve is distinct from how reserves are defined under Canada’s Indian Act, and represents a Blackfoot understanding of reserve as a spatio-legal category that is specifically the product of treaty-making, a distinction that has its roots in very different interpretations of the meaning of Treaty 7.

This particular Blackfoot interpretation of Treaty 7, and the attendant spatial-jurisdictional implications of this interpretation, are the subject of this article. Through this study, I seek to answer: what can the concept of jurisdiction offer to Indigenous interpretations of historical geography? Can separating jurisdiction from inherently territorial expressions contribute to decolonial expressions of Indigenous territorialities? And are Indigenous assertions of territorial jurisdiction relational, in that they negate, or at least put clear limits, on the legitimacy of settler forms of jurisdiction?

I explore these questions through critical examination of Niitsitapi (Blackfoot) interpretations of Treaty 7, an agreement that representatives of the Canadian government, members of the Blackfoot Confederacy, the Stoney Nakoda, and Tsuut’ina Nations, negotiated and ratified in September of 1877. My intervention here entails returning the gaze of recognition (Coulthard, 2014): rather than interrogate the types of territorial claims the Canadian government was willing to recognize when entering into treaty with the Blackfoot Confederacy, I ask: what kinds of legal authority were the Blackfoot confederacy members agreeing to recognize when they entered into treaty with the Canadian government? Indigenous interpretations of the numbered treaties that insist these agreements were not land surrender agreements imply a re-ordering of both Indigenous and settler forms of jurisdiction (McNeil, 2013).

My objective here, through engagement with Blackfoot oral histories of Treaty 7, is to explicitly interrogate these implications: if the Blackfoot confederacy members that negotiated Treaty 7 were not agreeing to surrender Blackfoot territory, this suggests the continued Blackfoot legal and political authority after the making of the treaty. This continued assertion of Blackfoot jurisdiction inherently places drastic limits on the kinds of Canadian jurisdiction Blackfoot confederacy members were willing to recognize when entering into Treaty 7. Critical scholarship on jurisdiction from legal studies and legal geography can thus provide the means to disentangle Canadian legal authority from its presumed territorial expression (Dorsett and McVeigh, 2012; Ford, 2010; Pasternak, 2014). Drawing from this scholarship, I argue Blackfoot interpretations suggest that through Treaty 7, if Blackfoot confederacy members were agreeing to recognize Canadian legal authority, this entails a rather limited recognition of non-territorial jurisdiction of the Canadian state, a form of jurisdiction that is radically different than the territorial form of legal authority claimed by the Canadian government through its interpretation of Treaty 7 as a land surrender agreement.

This article differs in emphasis from other works of legal geography on jurisdiction, which tend to focus on critiques of settler projections of colonial power through the tools, structures, and institutions of law (Blomley, 2000, 2003; Ford, 2010; Harris, 2002). Instead, I argue: jurisdiction provides a legal language through which to express Blackfoot understandings of Treaty 7 as recounted by Blackfoot elders. I develop this argument in four parts. First, I discuss jurisdiction as an analytical concept, arguing for jurisdiction as a means to more concretely articulate Blackfoot interpretations of Treaty 7 as an agreement for ‘sharing’ Blackfoot territory with settlers. Deploying jurisdiction as a tool of historical interpretation can serve to extend Blackfoot territorial expressions, while at the same time severely limiting Blackfoot recognition of Canadian jurisdiction. Second, I discuss the importance of Blackfoot oral historical traditions, both as legitimate sources for historical inquiry, and their contributions to the analysis and interpretation of Treaty 7. Third, I analyze the available evidence on the making of Treaty 7 with respect to the issue of land surrender. Here, I suggest that, even though Treaty 7 was and remains ultimately a land surrender agreement from the perspective of the Canadian government, there is little evidence to suggest that this surrender was discussed with the Niitsitapi (Blackfoot) and other nations that were present during the making of the Treaty. Official Canadian and other written archival records tend to reinforce Blackfoot understandings of Treaty 7, that the agreement was about alliance-making.

Finally, developing my own contribution to the historiography of Treaty 7, I discuss Northwest Mounted Police (NWMP) Lieutenant-Colonel James MacLeod’s positive relationship with Blackfoot confederacy members, and the role this relationship played in the Blackfoot confederacy members’ willingness to enter into a treaty with the Canadian government (the NWMP was the precursor organization to the Royal Canadian Mounted Police). I contend this relationship with MacLeod and the NWMP contributed to a Blackfoot understanding of Canadian law as governing the conduct of people, an understanding that does not directly assume or recognize the assertion of Canadian sovereignty over the lands within which its law operated.

Through this interpretation of Treaty 7, I make two distinct but interrelated interventions. First, for the Blackfoot Confederacy members that participated in the making of Treaty 7, this agreement did not represent the surrender or extinguishment of Blackfoot political and legal traditions, but their continuation. Second, Blackfoot understandings of Treaty 7 implied a limited recognition of Canadian jurisdiction: the NWMP’s right, and obligation, to police the conduct of settlers, and to assist Blackfoot in their ability to continue hunting across their territory. This second intervention is the main means through which I think through jurisdiction as a concept with which to give meaning to the implications of treaty as the ‘sharing’ of territory when Indigenous nations continue to assert legal authority over their traditional territories. I argue: through entering into Treaty 7 with Crown representatives, the Blackfoot Confederacy representatives were recognizing Canadian law as a non-territorial form of authority regarding the governing of conduct of settler subjects, a form of recognition that is far different from agreeing to surrender Blackfoot territory and accepting Crown sovereignty.

Through this analysis, I demonstrate the ways critical theorizations of jurisdiction within and around geography can also provide ways to generatively articulate Indigenous legal relationships with territory, beyond their deployment as tool to critique settler colonial power. Within Blackfoot interpretations of treaty as a form of alliance-making, sharing of Indigenous territory is an agreement whereby existing relational networks remain in place (Little Bear, 2004: 37). Blackfoot relational interpretations of treaty-making therefore provide a means to articulate decolonial approaches to understanding treaty relationships between Indigenous people and settler societies, where frameworks for sharing and co-existence explicitly prioritize Indigenous forms of jurisdiction, rather than seek their reconciliation within existing settler forms of territorial authority.

Jurisdiction as historical (re)interpretation

For this article, I use jurisdiction primarily as an analytical concept, to help clarify the relationships between two different forms of law, but also as a way to clarify Indigenous perspectives and critiques of Canadian law. Here, I draw from Dorsett and McVeigh (2012), as well as Shiri Pasternak (2014), with jurisdiction as a conceptual understanding of the form law takes. Similarly, Mariana Valverde (2009) emphasizes the work of jurisdiction in positioning different kinds of subjects within law and space, arguing that “jurisdiction sorts the where, the who, the what, and the how of governance through a kind of chain reaction, whereby if one question (where, who) is decided, then the answers to the other questions seem to follow automatically” (144). As a conceptual framework, jurisdiction helps identify where, when – and upon which subjects – different forms of legal authority may be enacted.

In settler colonial law, jurisdiction takes what is considered in dominant legal theory as the ‘normal’ form, that of territorial jurisdiction. According to Richard Ford (1999), territorial jurisdiction is defined as “the rigidly mapped territories within which formally defined legal powers are exercised by formally organized governmental institutions” (p. 843). For Ford, territorial jurisdiction has been so normalized to the point where, although territory and jurisdiction are not synonymous, jurisdiction is assumed to be something inherently territorial in form (p. 843). Consequently, all territory is assumed to be under jurisdiction, and usually only one. This territorial form of setter jurisdiction, however, has a relatively short history. Previously, in both European and other contexts, multiple forms of jurisdiction that were not based on territory have existed; additionally, Ford points out that while territorial identities of jurisdiction are relatively new, they also grew at the expense of other forms of jurisdiction, identity and types of status (1999: 845). Ford thus argues that jurisdiction in its territorial form is “not an ahistorical fixture of political organization” (866). Similarly, in their own historical treatment of jurisdiction’s development, Dorsett and McVeigh (2012) identify a (firmly Eurocentric) taxonomy of non-territorial jurisdictions: lex mercatoria (or mercantile law), ecclesiastical law, the law of the forest, and the court of chivalry (42). For Dorsett and McVeigh, these are all “different ways of organizing legal knowledge,” not based on a direct correspondence to a territorial form (48).

Even within Eurocentric legal traditions, then, the relationship between legal authority and territorial expressions of jurisdiction cannot be assumed. At the same time, my contention is not to de-territorialize all assertions of jurisdiction; indeed, this article explores the ways Blackfoot expressions of jurisdiction can entail territorial, exclusive assertions against incursions by non-Blackfoot people. Instead, I draw attention to the ways disentangling jurisdiction from an inherently territorial expression opens up the literal and figurative space to explore forms of jurisdiction beyond that of the settler colonial nation state.

I therefore use jurisdiction as a means to clarify the nature of Blackfoot expressions of law, the relationships between Blackfoot and Canadian law, and as a way to give form to Blackfoot interpretations of Treaty 7. Non-territorial forms of jurisdiction provide a way of analyzing Blackfoot perspectives of Treaty 7, where the recognition of Canadian law over some forms of conduct does not necessarily imply the surrender of land and/or territorial jurisdiction.

In addition, I use jurisdiction as a conceptual means to articulate Blackfoot understandings of the ‘sharing’ territory under Treaty 7 (Fabris, 2023). Here, I draw from Dorsett and McVeigh’s (2012) discussion of jurisdiction as a framework for uncovering “the form and shape of law” (5). In their interrogation of jurisdiction as a concept, Dorsett and McVeigh ask:

if jurisdiction inaugurates law, the question which must be asked is ‘How and how much law’? What belongs to law, or becomes the subject of law? These questions address the shape or form of law. Jurisdiction inaugurates law, but it also delimits law – it provides the boundaries of law. It establishes and represents the ambit of lawful relations. (16)

Utilizing jurisdiction as an analytical concept includes, but also exceeds, formal definitions and structures of jurisdiction as expressed within settler forms of law, such as the divide between provincial and federal jurisdiction within the Canadian context. As legal scholar Kent McNeill argues, “the legality of settler state sovereignty is a relative matter that depends on which legal orders are chosen to determine legality: settler legal orders or Indigenous legal orders” (p. 135). Defining jurisdiction as the authority to act provides one means to critically interrogate the legitimacy of Canadian law and sovereignty, whereby the prioritization of Indigenous jurisdiction can inherently limit the recognition of settler legal and political authority across its various formal expressions within state institutions. Blackfoot oral histories of Treaty 7 suggest that the recognition of Canadian law, as enforced by the NWMP, was accepting Canadian authority to govern the conduct of settlers, and between settlers and Blackfoot people, an authority that is quite different from that of sovereign crown assertions over Blackfoot territory. In making treaty with the Canadian government, then, the Blackfoot confederacy was agreeing to share parts of its territory with settlers, but was not agreeing to cede or surrender it.

Jurisdiction and Indigenous treaty discourse

The analysis of Treaty 7 I provide here also aims to contribute to contemporary discussions amongst Indigenous Studies scholars on treaty rights discourses (Estes, 2019; Ladner, 1997; Starblanket, 2019a; Wildcat, 2015). As someone who grew up in British Columbia, wherein the vast majority of the land within the province is unceded from the perspective of the Canadian government, most of my early education on Indigenous notions of jurisdiction did not come from any academic training, but over years of listening to the late Sécwepemc elders Wolverine and Art Manuel discuss (and at times, argue about) Sécwepemc perspectives on jurisdiction, whereby Indigenous assertions of jurisdiction can inherently imply non-recognition of colonial jurisdiction over Indigenous territories. These lessons from Wolverine and Art Manuel remain influential on my theorizations of jurisdiction, even as my own thinking about Indigenous relationships with land and water are ever increasingly reframed within Niitsitapi perspectives.

This article thus represents, among other things, an attempt to better understand how, and why, Blackfoot communities continue to uphold treaty rights, not necessarily in ways that reinforce colonial Indian Act understandings of reserves and political authority, but as a continuation of Blackfoot political and legal traditions. Getting beyond the reserve, and beyond the Indian Act, need not involve rejecting treaties between Indigenous nations and the Canadian government as fraudulent, overly compromised, or maintaining a binary distinction between reserves and traditional territories. Further, centering Indigenous perspectives on numbered treaties can disrupt notions of ‘ceded vs unceded’ territory within the Canadian context, and thus prioritize Indigenous understandings of treaty rights as challenges to the ways the numbered treaties have been used by the Canadian state to uphold settler extractive economies and the re-territorialization of Indigenous lands and waters (Daigle, 2018).

Matthew Wildcat (2015) grapples with the complications around treaty rights discourses within his community of Maskwacis, a Treaty 6 community located southeast of present-day Edmonton. In an article discussing dynamics of genocide in the Canadian context, Wildcat writes:

I realized that I have not extended nearly enough empathy towards those who articulate a fear that treaty rights will be undermined. This is because such fear is a reasonable response in the face of being dispossessed of your land base, having your self- determining capacities severely destabilized and having to work with a ‘partner’ who fails to recognize the original terms of the partnership that we hold to be sacred. The fear of social and political death emerges from the anxiety that any change the community undertakes will lead to a further weakening of our already weakened position. (397)

For Wildcat, this call for more empathy towards those in our communities that insist on upholding treaty rights does not necessarily mean an endorsement of treaty rights as a useful framework for asserting political and/or legal jurisdiction, and elsewhere Wildcat has been more equivocal in characterizing calls to uphold treaty rights as an “empty signifier” (personal communication, 2020). However, after spending the last couple of decades listening to and trying to understand what my Piikani relatives mean by treaty rights, I have had to grapple with very different circumstances, narratives and discourses within Blackfoot reserve-based communities on the importance of upholding treaty rights. The quote above from the late Leander Strikes With A Gun exemplifies how even the concept of ‘reserve,’ from a Blackfoot perspective, can be asserted in a way that not only asserts, but prioritizes, a Blackfoot sense of territoriality, of jurisdiction. Though the focus of this article is not an analysis of contemporary treaty rights assertions, my analysis suggests that, at least with respect to Treaty 7, many rights contained in both the written and oral accounts of the treaty exist outside of the federal jurisdiction as stipulated through the Indian Act regime of reserves and band councils.

In addition, I take up Cree scholar Gina Starblanket’s (2019b) invitation for critical engagement “with the material implications of understanding treaties as political agreements between nations” (445), exploring the ways Indigenous nations often assert treaty rights claims as part of political struggles, and as daily, embodied expressions of Indigenous legal consciousness (Hunt and Holmes, 2015), more so than strictly assertions within Canadian legal fora. Starblanket points out the ways the Indian Act, through the explicit gendering of Indian identity, links treaty rights with individual Indigenous bodies, which consequently “diminishes the status of treaties as political agreements between governments but also deterritorializes them” (2019b: 449). Starblanket also highlights the limits of treaty rights as defined within Canadian law whereby, despite more recent “principles of treaty interpretation that are geared toward moving away from static, literal or Eurocentric readings of treaties … they have not operated to account for interpretations of the nature of the treaty relationship under Indigenous legal orders” (452). Starblanket thus argues for more challenges to what she describes as settler mythologies of the numbered treaties, as “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” (456). Taking up this call, the analysis in this article represents an articulation of Blackfoot historical interpretations of Treaty 7 within a framework of jurisdiction, and draws attention to the wider range of political, legal and territorial assertions that can be mobilized within existing treaty discourses, beyond ‘treaty rights’ as circumscribed and delineated within Canadian law. In this respect, Indigenous oral histories of treaty represent what many geographers (Katz, 2001; Narayan, 2023) describe as countertopographies, insofar as our own interpretations and traditions of treaty “help build a practical but imaginative response along different locations on contour lines, each with their own material and historical specificities” (Narayan, 2023: 144).

Blackfoot oral histories as archive?

In researching Treaty 7, I draw from Blackfoot oral histories, in part as a historical source, along the lines with what Anishnaabe historian Jean O’Brien (2017) characterizes as the “unexpected archives” within Indigenous communities, which O’Brien argues “contain their own wealth of stories about their histories, and in this sense, communities themselves constitute ‘archives’” (20). However, in my engagements with Blackfoot oral histories of Treaty 7, I find that there is also a lot of historical analysis and interpretation that comes through these stories. I think I would be doing a disservice to these oral histories to simply argue that they be taken just as seriously, or on par with, more conventional primary sources, such as written archives. Rather, I draw from Blackfoot perspectives as expressed within our oral histories as an altogether different way to then interrogate the official written archives of Treaty 7. Unlike dominant methodological approaches within the academic discipline of history, which remain wary of the ways interpretation might diminish the accuracy, and hence validity, of Indigenous intergenerational oral historical traditions (Dempsey, 2015; Harris, 2002), I see this interpretive aspect as a positive. I draw attention to the significance of Indigenous intergenerational oral histories, both as legitimate sources, and for their interpretive and analytical contributions to the study of Indigenous history.

I thus develop an account of Piikani/Blackfoot understandings of Treaty 7 through critical engagement with primary sources, existing literature on Treaty 7, and Blackfoot oral histories of Treaty 7, drawing from what Bastien (2004) characterizes as Niitsitapi relational methodologies. According to Bastien, the sharing of knowledge is inseparable from the relationships and responsibilities between those sharing it:

knowledge arises in a context of alliances and reciprocal relationships. Implicit is the notion of partnerships that entail obligations or responsibilities on behalf of both parties. Such a quest is founded upon the reciprocal relationship between knower and known. Without taking on these responsibilities, Niitsitapi knowledge does not arise, and we fail to come to know …[.] To seek knowledge means to establish and maintain relationships – the essence of the normative order of Niitsitapi. (55–56)

My ongoing relationships and responsibilities with Piikani members, both within and beyond my family, directly inform my approach to the research shared in this article. Though some of the interviews I conducted for my research on the Oldman River Dam touched upon Treaty 7, for this article, I almost exclusively draw from primary documents and existing works on Treaty 7. At the same time, the research I develop here is part of ongoing conversations with the Piikani elders, activists, advocates, and community members I interviewed for my research on Piikani water rights. In addition to the written version of the treaty, I look at annual reports of the Ministry of the Interior, as well as numerous first-hand accounts by officials working for the Canadian government, the NWMP, and other accounts.

Central, however, to demonstrating Blackfoot oral histories of Treaty 7, is the book The True Spirit and Original Intent of Treaty 7 (1996). The True Spirit is a book that was created as a collaboration between academics and Treaty 7 community members. The project originally started in the early 1990s, with a process of interviewing elders from all Indigenous communities that were involved in the making of Treaty 7, with the objective of documenting and analyzing oral histories of the Treaty. During this time, discussions of the numbered treaties heavily emphasized the importance of their ‘Spirit and Intent,’ rather than strictly relying on the written versions of these treaties. The 1990s and early 2000s were a time of numerous articles, chapters, and book collections analyzing numbered treaties from a ‘spirit and intent’ lens, with the goal of centering Indigenous oral histories of these treaties as a challenge (or at least corrective) to the official Canadian interpretations of them as land surrender agreements (Price, 1999; Venne, 2002; Whitehouse-Strong, 2007).

For The True Spirit, elders were interviewed from all Indigenous communities involved in the making of Treaty 7, and the interviews were all conducted in the elders’ first languages, be they Blackfoot, Nakoda, or Tsuut’ina. According to the book’s authors:

The oral history presented in this study was a result of a treaty review process began by the Treaty 7 Tribal Council in 1991. The aim was to gather the ‘collective memory’ of the Treaty 7 elders and, in so doing, determine what the ‘spirit and intent’ of Treaty 7 encompassed. Treaty 7 elders have always maintained that what was included in the written treaty did not include all that was discussed and agreed to. It was therefore imperative to establish clearly what the elders of the five first nations remembered. (Treaty 7 Elders and Tribal Council et al., 1996: 330)

Oral traditions of sharing and recounting past events form a central part of Blackfoot historical practice. As Kainai elder Wilton Goodstriker explains in his introduction to The True Spirit, “[b]ecause our languages are not written, we rely heavily on the oral traditions and on the winter-counts. Among our elders, it is only when individuals could recount stories without error that they were allowed to teach history” (11). According to Goodstriker, then, not only are oral traditions important for Blackfoot storytelling, but people are not authorized by elders to pass on stories until they have gone through a process to demonstrate their ability to accurately recount them. Through the involvement of elders in The True Spirit, the authors applied this method of accountability to the process of developing the book, and, though two non-Indigenous historians were heavily involved in the creation of The True Spirit (Sarah Carter and Walter Hildebrandt), the Treaty 7 Elders and Tribal Council is listed as the book’s first co-author. The True Spirit is therefore a very valuable book for the purposes of this article, both for the information it provides, as well as for the methodological intervention the book makes, as a university-published book that not only took the stories of elders seriously, but also upheld methods of accountability determined and governed by the elders.

For this article, I draw from The True Spirit, both as an archive of Blackfoot oral histories, and as a reflection of Blackfoot interpretations of Treaty 7, in conversation with my own interviews and archival research. I am reluctant to contribute to ‘research fatigue’ among Piikani elders, so there are definitely benefits to making use of existing oral history projects rather than having elders recount/re-record the same oral historical accounts but with different interviewers. At the same time, this article builds upon, and departs from, the arguments developed in The True Spirit, as I draw from jurisdiction as a means to re-interpret the legal and geographic implications of Blackfoot interpretations of Treaty 7, whereby jurisdiction provides a conceptual framework to give more concrete form to the notion of ‘sharing territory’ that The True Spirit argues as the Blackfoot understanding of Treaty 7.

In emphasizing Blackfoot oral histories, my objective is not to suggest that Blackfoot communities should completely disregard the written version of Treaty 7 as a potential source of legal and political rights claims. Some Indigenous Studies scholars have suggested, for example, the ‘peace, order, and good government’ clauses of the numbered treaties can be interpreted as recognizing some forms of Indigenous governance. As Starblanket (2019a) argues, “this clause can be understood as symbolizing the continuity of Indigenous authority over justice, among other realms of governance” (13). Similarly, Kiera Ladner (1997) discusses the significance of the ‘peace, order, and good government’ clauses, arguing that “guaranteed parliamentary representation can be legitimately derived from the peace and order clause that appears in the Numbered Treaties” (86). My discussion about Blackfoot understandings of Canadian law as limited to conduct, and not a territorial assertion of Canadian jurisdiction, could serve to complement Starblanket and Ladner’s arguments about these clauses within the numbered treaties, where the ‘peace, order, and good government’ clauses may suggest a very limited form of Canadian jurisdiction within Treaty 7 territory: Canadian law governs relations of non-Blackfoot subjects, as well as relations between Blackfoot and non-Blackfoot subjects while within Treaty 7 territory, while Blackfoot Confederacy members were (and remain) largely governed strictly within Blackfoot legal traditions. My objective with this article, then, is not to minimize or discount the important work by other Indigenous scholars interpreting the written version of Treaty 7 and similar treaties, but rather draw attention to a wider range of political, legal and territorialities that can be actualized within existing treaty rights discourses when we center Indigenous oral histories and interpretations of treaty.

Blackfoot interpretations of treaty-making within the colonial archives?

My original objective in looking at the written accounts of Treaty 7 was to analyze the ways Blackfoot jurisdiction was rendered invisible within the official government and court archives. However, when conducting archival research on Treaty 7, I noticed that, despite the workings of colonial erasure, Blackfoot expressions of jurisdiction over our territory were still clearly articulated, over and over, throughout the archives I encountered during this research. Here, I find Katherine McKittrick’s (2014) interventions on archival research and memory with respect to black experiences with slavery extremely insightful. In Mathematics Black Life, McKittrick discusses the ways in which “the archive lies as it tells a truth. Which begs the question: What if we trust the lies … and begin to count it all out differently?”(22). Here, my archival research provides an additional means to explore how Piikani people have attempted to express our own legal understandings within, and to, Canadian government representatives, courts, and administrative bodies. I therefore focus on instances within the archives where Piikani expressions are either directly articulated, or accounted, in documents written by colonial administrators, as a means to answer: how is Blackfoot law represented, misrepresented, or not represented at all within the written archives?

Within the official records related to Treaty 7, the amount of blatant racism, paternalism, and colonial discourse is clear and is partially the focus of other research on Treaty 7, such as Keith Smith’s (2009) Liberalism, Surveillance, and Resistance. And, for this project, it was often tempting to shift towards critical discourse analysis in critiquing the official accounts of Treaty 7. However, I decided to stay focused on using the archives as a means to illuminate Blackfoot understandings of Treaty 7, highlighting instances within the archives where Piikani expressions are either directly articulated, or accounted in documents written by colonial administrators. Too much focus on critiquing the blatantly colonial and racist ideas, sentiments, and assumptions that permeate the official archives would only serve to de-center the Piikani and Blackfoot perspectives I am trying to explicitly center and elevate through this research.

Treaty 7: background, context, contests?

I now discuss Treaty 7 and Blackfoot interpretations of this agreement. First, I provide a brief overview of Treaty 7, and the Canadian government’s interests and objectives for seeking a treaty with the Blackfoot confederacy. I then discuss Blackfoot traditions of treaty-making in terms of the Niitsitapi word for treaty, Innaihtsiini. I identify the major issues the Blackfoot confederacy brought to the Treaty 7 negotiations. Finally, I outline the ways Blackfoot traditions of treaty-making informed the ways the Blackfoot confederacy members approached negotiating Treaty 7 with Crown representatives, wherein Treaty 7 was one of many agreements the Blackfoot confederacy entered into as a form of alliance-making.

Treaty 7 was negotiated in September of 1877, at Blackfoot Crossing, an area of Blackfoot territory in southern Alberta that now forms part of Siksika Indian Reserve 146. The Blackfoot term for this place is Soyooh pawahko, which loosely translates to ‘ridge under water’ (Treaty 7 Elders and Tribal Council et al., 1996: 12). Piikani is one part of the Blackfoot Confederacy, along with the Siksika and Kainai. Historically, Piikani was a single nation, with territory extending into Idaho and Montana, although at some point Piikani separated into two groups, the Apaatohsipiikani (the present-day Piikani Nation) and Amskaapipiikani. The Amskaapipiikani is today most commonly known as the Blackfeet Nation, and their reservation is within present-day Montana.

For the negotiating and signing of Treaty 7, two official representatives of the Crown negotiated the agreement on behalf of the Canadian government: David Laird, and James MacLeod. At this time, Laird was the Lieutenant-Governor of the Northwest Territories, and prior to this position, was Superintendent-General of Indian Affairs. Laird was involved with the negotiation of several numbered treaties, and was also instrumental in the creation of the Indian Act. James MacLeod was a Lieutenant-Colonel with the NWMP, and in 1877 was the NWMP Commissioner. Prior to his involvement in negotiating Treaty 7, MacLeod spent several years persuading various Blackfoot leaders to make a treaty with the Canadian government. Fort MacLeod, a settlement established in his name in the early 1870s, is located just east of Peigan Indian Reserve 147a. Father Constantine Scollen, a prominent Catholic missionary around what is now southern Alberta, was another key figure in the negotiating of Treaty 7. Though not an official representative of the Canadian government, Scollen acted as a consultant to the Canadian government throughout the negotiation of Treaty 6, as well as witness to the signing of Treaty 7’s written version.

Was land surrender ever discussed during the negotiation of Treaty 7?

I now discuss, in further detail, the archival history of Treaty 7 with respect to land surrender. Rather than represent a wholesale erasure or absence of Blackfoot interpretations, the written archive instead reflects an absence of evidence that Crown representatives identified, or attempted to explain, land surrender as a core component of Treaty 7 from the perspective of the Canadian government.

The immediate objectives of the Canadian government for seeking a treaty with the Blackfoot Confederacy, Nakoda, and Tsuut’ina are directly reflected in the written version of Treaty 7, which contains an explicit land surrender clause:

The Blackfeet, Blood, Piegan, Sarcee, Stony [sic] and other Indians inhabiting the district hereinafter more fully described and defined, do hereby cede, release, surrender, and yield to the Government of Canada for Her Majesty the Queen and her successors forever, all their rights, titles and privileges whatsoever to the lands included within the following limits. (INAC, 2008)

Similarly, the Canadian Indian Act defines the relationship between treaties and reserves in terms that prioritize the ‘surrender’ aspect of treaties. According to the Indian Act, reserves are held by “Her Majesty for the use and benefit of the respective bands for which they were set apart, and subject to this Act and to the terms of any treaty or surrender”(Statutes of Canada, 1985: 20). Other than in this definition of reserves, the Indian Act only contains a few references to treaties and treaty rights, and the majority of references deal with the annual payments of treaty monies. From the perspective of the Indian Act, then, treaties are ultimately land surrender agreements. This continues to be the Canadian government’s position on Treaty 7, that ultimately it is a land surrender treaty, following a narrow interpretation of the written version.

The True Spirit argues that ultimately, according to Blackfoot oral history, Treaty 7 was not a treaty to surrender land. As Piikani elder Tom Yellowhorn puts it, “people didn’t think they had to settle and stay on reserves … They thought they were getting money but that they still owned land” (Treaty 7 Elders et al., 1996:129). Several elders interviewed for The True Spirit also describe in detail what they understand as the Piikani ‘reserve’ that was agreed to during the making of Treaty 7 (138). Within their different accounts, the area elders describe is a much larger territory than the current reserve, and is usually defined in relation to the entire Oldman River basin, from where it starts in the Rocky Mountains to the area where it flows into the Bow River.

However, in addition to the oral accounts, much in the written record supports these Blackfoot interpretations of the Treaty, that land surrender was not discussed during the making of Treaty 7. For example, less than two years after the making of Treaty 7, Father Scollen wrote a letter to Major Irvine of the NWMP, to express his concerns over the Canadian government’s implementation of the treaty. Scollen writes:

This is an all important question, which to my mind is the pivot on which all others revolve: Did these Indians, or do they now, understand the real nature of the treaty made between the Government and themselves in 1877? My answer to this question is unhesitatingly negative and I stand prepared to substantiate this proposition. (2014: 40)

Of course, Scollen here accepted the ‘real nature’ of Treaty 7 as a land surrender agreement, and, as a missionary, was a strong supporter of the treaty. However, here he is challenging the underlying legitimacy of the agreement. In the letter, he discusses a conversation he had with Crowfoot, who was chief of the Blackfoot confederacy during the making of Treaty 7. Scollen recounts a conversation with Crowfoot, more than a year after the signing of the treaty, concerning the significance of the ritual of physically ‘signing’ the treaty:

Crowfoot one day asked me what was the meaning of making the Indians touch the pen at the treaty. I explained to him that when making a bargain, the contracting parties draw it up in writing and sign their names so as to make it binding, and as the treaty was a bargain between the Government and the Indians, and the latter could not write they were made to touch the pen which was equivalent to signing their names. (2014: 41)

These passages by Scollen have a two-fold significance. First, they appear to confirm that the Blackfoot confederacy members did not understand the treaty as a land surrender treaty. Second, which is Scollen’s main concern throughout the letter, this misunderstanding is the result of the government representatives not properly explaining the meaning of land surrender, either before or during the making of the treaty.

A further survey of the various written accounts of Treaty 7 provides little evidence that land surrender formed a major part of the treaty negotiations. David Laird, the chief negotiator representing the Canadian government, wrote an official report for then-Lieutenant Governor Alexander Morris following the making of Treaty 7 (Laird, 1880). The report is incredibly long, detailed, and meandering, including in-depth discussions of what the weather was like each day, the animals Laird observed while en route to Blackfoot Crossing, and similarly minute details of conversations he had with Crowfoot and other Blackfoot Confederacy representatives. In this report, however, Laird does not include any mention of discussing, let alone explaining and defining, the meaning of the written treaty’s land surrender clause. The closest thing to an explanation is this:

On Tuesday we met the Indians at the usual hour. We further explained the terms outlined to them yesterday, dwelling especially upon the fact that by the Canadian Law their reserves could not be taken from them, occupied or sold, without their consent. They were also assured that their liberty of hunting over the open prairie would not be interfered with, so long as they did not molest settlers and others in the country. (257)

Though this statement is consistent with Canadian laws governing Indian Reserves (i.e. that they are non-transferable federal lands), it is still far from a clear explanation that, under the written terms of the treaty, the Blackfoot Confederacy members would agree to surrender all non-reserve land. Additionally, the statement assuring the ‘liberty of hunting over the open prairie’ could be understood to mean continued access to that territory, as opposed to a narrowly-defined ‘use right’ for the specific purpose of hunting. According to the authors of The True Spirit, initially the treaty commissioners suggested they would place restrictions on hunting and fishing, but due to opposition by the Blackfoot, Tsuut’ina, and Stony Nakoda representatives, “the government changed its position to recognize the unrestricted hunting rights that the First Nations would have across the area of Treaty 7” (37). Thus, according to Laird’s own account, as the primary representative of the Canadian government during the making of Treaty 7, there is no evidence that he initiated an explicit discussion of the land surrender clause in the written version of Treaty 7 during treaty negotiations.

Similarly, the minutes of the Treaty 7 proceedings (1877), published in The Manitoba Free Press and re-published contemporaneously in The Globe and Mail and other newspapers of record, discuss a number of key speeches, discussions, and disagreements that took place during the treaty negotiations. The minutes, however, contain no mention of any government representatives explaining the land surrender aspect of the treaty. The minutes contain quotes outlining Blackfoot grievances around encroachment on their territory, differences over whether they should be compensated for timber the NWMP had already used to construct their fort, and whether the Canadian government sought to place any restrictions on hunting. The minutes also include quotes from Blackfoot confederacy members explaining their own territorial claims. For example, Button Chief (also known as Medicine Calf), one of the Kainai representatives present at the making of Treaty 7, is quoted as saying “the Great Spirit, and not the Great Mother, gave us this land” (Manitoba Free Press, 1877). However, the minutes do not mention any discussion of land surrender.

In his account of Treaties 6 and 7, the historian John Taylor (1999) comes to a similar conclusion concerning whether land surrender was even discussed during the making of Treaty 7. According to Taylor,

there is no recorded evidence that the commissioners attempted at the treaty negotiations to explain what they meant by a surrender. They did refer to the danger that settlers would come in and possibly take all of the Indians’ land. The treaty, however, was presented as a protection against this eventuality. (40)

The authors of The True Spirit are less hesitant in asserting what the Blackfoot Confederacy members actually discussed and agreed to in the making of Treaty 7. Further, The True Spirit considers a number of potential explanations as to why the Canadian representatives did not dedicate much of the negotiations to discussing or explaining the land surrender clause:

It is possible that Laird’s apprehensions about the prospect of making a treaty with such dangerous tribes of ‘Natives’ led him to decide against raising ‘surrender’ issues for consideration …When the commissioners tried to talk of restricting hunting rights on the first day of negotiations, they were vigorously opposed and had to back off this issue. In light of this, there surely would have been resistance to any discussion about ceding, releasing, surrendering or yielding up the land. (Treaty 7 Elders et al., 1996: 256)

According to the authors of The True Spirit, then, the Canadian representatives were concerned about a negative response from the Blackfoot, Stoney Nakoda, and Tsuut’ina negotiators to a proposal to surrender their land, and chose not to bring it up directly. Extending this analysis, I suggest it would be difficult to make sense of ‘surrendering’ land while still being able to conduct hunting and fishing across traditional Blackfoot territory. Blackfoot practices of hunting and fishing are not an isolated exercise of a ‘use right,’ but are central economic, social, religious and legal practices, and typically include the moving and setting up of camp seasonally in various areas throughout Blackfoot territory. From a Blackfoot perspective, then, it would be difficult to enter into a treaty that both acknowledges hunting rights while simultaneously entails surrendering all territories beyond the reserve’s boundaries. Either way, the written record serves to reinforce Blackfoot oral accounts and histories of the making of Treaty 7: rather than Blackfoot participants not understanding the terms of surrender (let alone agreeing to it), it appears land surrender, despite being a key part of treaty policy and the terms of the written treaty, was barely discussed, if at all.

Blackfoot relations with MacLeod: a non-territorial recognition of Canadian law?

I now discuss the positive relationship between James MacLeod of the NWMP and Blackfoot Confederacy members, and the role this may have played in influencing Blackfoot interpretations of Canadian jurisdiction. McLeod’s positive reputation among the Blackfoot confederacy members did not just influence their decision to negotiate Treaty 7, but his own actions and conduct influenced how Blackfoot confederacy members interpreted the meaning of Canadian legal jurisdiction.

From all accounts, written and oral, MacLeod, and the NWMP in general, developed a positive reputation among Blackfoot Confederacy members due to their efforts to successfully halt the whiskey trade within Blackfoot Territory; in addition, this positive reputation was significant in influencing the Blackfoot Confederacy to agree to negotiate a treaty with the Canadian government. Building on these existing historical accounts, I argue that MacLeod’s conduct also influenced Blackfoot understandings of what entering into a treaty with the government would entail. In other words, from a lens of jurisdiction, experiences with MacLeod and the NWMP informed Blackfoot understandings of the forms Canadian law would take if they agreed to share parts of their territory with Canadian settlers. MacLeod’s words and actions informed Blackfoot understandings of Canadian law that did not assume the Blackfoot Confederacy was accepting territorial forms of Canadian authority, but were instead about governing the conduct of people within Treaty 7 territory.

Macleod first met with Bull’s Head, a Piikani chief, in the early 1870s, and directly asked permission before establishing a police settlement within Blackfoot Territory, a settlement that eventually became known as Fort MacLeod. According to several Blackfoot elders, however, Bull’s Head only gave permission for Macleod to stay for one winter. For example, Piikani elder Elsie Crow Shoe recounts that “when the Red Coats [NWMP] arrived … they asked Bull’s Head if they could stay the winter. They arrived in October and asked to stay the winter … Bull Head gave his approval but he told them to leave in Spring” (Treaty 7 Elders et al., 1996: 135). In 1875, Crowfoot called for a meeting with MacLeod, along with several chiefs from the other members of the Blackfoot Confederacy, to further discuss the intentions of the newly-arriving NWMP. According to Reverend George MacDougall’s accounting of this meeting, “There was a nod of approval from the chiefs when he said that they had not come to steal the land from the Indians, but only to protect the people who were in it” (quoted in Dempsey, 1989: 80). MacDougall also paraphrased some of Crowfoot’s speeches at the meeting, where, according to MacDougall, Crowfoot expressed his hope that the NWMP would be able to put an end to the whiskey trade: “You say this will be stopped. We are glad to have it stopped. We want peace. What you tell us about this strong power which will govern with good law and treat the Indian the same as the white man makes us glad to hear” (quoted in Dempsey, 1989: 78). Early interactions like this between Blackfoot Confederacy members and MacLeod contributed to a positive and trusting relationship, largely because MacLeod provided assurances that the NWMP were not looking to take over Blackfoot territory, but to enforce and end the whiskey trade.

MacLeod met with Blackfoot leaders a number of other times before 1877 in an attempt to persuade Blackfoot Confederacy members to enter into treaty with Crown representatives. In the NWMP’s 1874 Annual Report, Macleod describes a meeting that year with a group of Kainai leaders, including Chief Red Crow:

I then explain to them what the Government has sent this force into the country for, and endeavor to give them a general idea of the laws which will be enforced, telling them that not only the white men but Indians also will be punished for breaking them, and impressing upon them that they need not fear being punished for doing what they do not know is wrong. I then explain to them also that we have not come to take their land from them (an intimation they all receive with great pleasure), but that when the Government wants to speak to them about this matter, their great men will be sent to speak to them and that they will know the intention of Government before anything is done. (quoted in Dempsey, 1980: 83)

This passage can be interpreted as MacLeod explaining that eventually the government will seek to ‘take the land’, and that his intention was to prepare the Kainai leadership for the eventuality of a land surrender treaty. At the same time, at least according to his own account, MacLeod’s emphasis here is that the NWMP was not in Blackfoot territory to ‘take their land,’ but to enforce laws governing peoples’ conduct.

Further, according to the petition to the Canadian government in 1875, the Blackfoot Confederacy members who signed this petition were ‘indebted’ to the NWMP, and were willing to allow the NWMP to “remain in our country” (quoted in Treaty 7 Elders et al., 1996: 276). Here, the Blackfoot Confederacy members are asserting that the NWMP is only allowed to remain in the area with Blackfoot permission, while affirming that, at the time of the petitions’ drafting, they held a positive view of the NWMP. According to several elders interviewed for The True Spirit, this positive relationship with the NWMP played a key role in the willingness by Blackfoot Confederacy members to enter into a treaty with the Canadian government. For example, Frank Turning Robe, a Siksika elder, discusses the ways the whiskey trade was creating problems within Blackfoot territory, and the Blackfoot Confederacy hoped that entering into a treaty with the Canadian government would mean more assistance in dealing with these problems (104). According to the Manitoba Free Press minutes of the Treaty 7 proceedings (1877), Laird directly discussed the NWMP’s role in suppressing the whiskey trade:

The Great Mother loves all her children, white man and red man alike … the bad white man and the bad Indian she alone does not love, and them she punishes for their wickedness. The good Indian has nothing to fear from the queen or her officers. You Indians know this to be true. When bad white men brought you whiskey, robbed you, and made you poor, and, through whiskey, quarrel amongst yourselves, she sent the Police to put an end to it. (1877)

Much could be said here about the blatantly paternalistic/maternalistic colonialism reflected in Laird’s evocation of the Queen as a “great mother” who ‘loves all her children’. However, for the purposes of this article, what stands out for me here is how Laird mobilized the experience of the NWMP in stamping out the whiskey trade in Blackfoot country to help generate support for Treaty 7. Further, Laird’s rhetoric around punishing both “white and red man alike”, is clearly an evocation of law, and is focused on laws governing the conduct of subjects, while not directly addressing the fact that, from the Canadian government’s perspective, accepting the “Great Mother’s” rule of law also meant surrendering land.

The positive relationships with MacLeod, then, did not just serve to influence the decision by Blackfoot Confederacy members to negotiate Treaty 7, but informed Blackfoot legal understandings of what the recognition of Canadian law might entail. Macleod’s respect was based on the role of NWMP in curtailing the whiskey trade within Blackfoot Territory. MacLeod asked for permission to set up MacLeod within Blackfoot territory, and later gave assurances the NWMP had no intention to take land. During the making of Treaty 7, Laird continued with this kind of rhetoric as a means of generating Blackfoot support for agreeing to a treaty, talking about the intention of ‘the great mother’ to enforce the law equally.

Blackfoot oral histories of Treaty 7 do not solely reflect positive experiences with the NWMP and MacLeod. Many of the elders interviewed for The True Spirit shared very negative experiences with the NWMP, especially in the years following the making of Treaty 7, including their enforcement of the Pass System and attempts to suppress Sun Dance ceremonies (152). Blackfoot oral histories also include negative experiences with the NWMP during the making of Treaty 7, including stories about the presence of NWMP cannons, where Blackfoot members present at the negotiations asked about why the NWMP brought such artillery to the talks, and requested the NWMP remove the cannons from the site (80). So, in discussing positive relationships between the Blackfoot Confederacy and the NWMP in the years leading up to Treaty 7, my objective here is not to discount the NWMP’s colonial and repressive functions within Blackfoot territory, but to analyze how MacLeod’s words and conduct influenced Blackfoot understandings of law. This represents a critical analysis of the positive reputation of MacLeod and the NWMP without relying on simplistic narratives of ‘naïvety’ on the part of the Blackfoot Confederacy members who agreed to allow the NWMP to operate on their territory.

Conclusion

In this article, I argue Blackfoot oral histories of Treaty 7 call into being a legal relationship between the Blackfoot Confederacy and the Canadian government that is very different from the jurisdiction of the Indian Act, which tends to only incorporate treaty in terms of accepting surrender, while other rights need to be fought for or enacted outside the legal grid of the Indian Act. Blackfoot spatializations, in and outside of treaty relationships, continue to exist, regardless of the Canadian and Alberta governments’ continued insistence that the Treaty was a land surrender agreement. In addition, I use the concept of jurisdiction to provide a legal framework to understand what is meant by ‘sharing the land’ within Blackfoot perspectives on Treaty 7: because the Blackfoot Confederacy members did not see the treaty as one of land surrender, what they were agreeing to was the sharing of parts of their territory with newly-arriving settlers.

I argue, then, Blackfoot ‘recognition’ of Canadian law through Treaty 7 implies recognition of a non-territorial form of Canadian jurisdiction, where, for the Blackfoot confederacy members that negotiated Treaty 7, Canadian law would govern the conduct of settlers, and conduct between settlers and members of the Indigenous nations that signed the treaty, but the Treaty was not a recognition of Canadian territorial jurisdiction across Blackfoot territory. To use Little Bear’s (2004) definition of Blackfoot treaty-making as an arrangement whereby strangers “will respect the relational network in place in the territory,” Blackfoot confederacy members saw Treaty as an arrangement for sharing the territory within a framework of continued Blackfoot jurisdiction (37). This interpretation of Treaty 7 implies a direct challenge to the Canadian government’s definition of Peigan Indian Reserve 147a, in terms of its size, and in terms of which form(s) of legal authority apply across and well beyond reserve lands.

The Blackfoot confederacy members were willing to enter into Treaty 7 because it was a continuation of Blackfoot legal traditions, both in terms of continued Blackfoot jurisdiction across our traditional territory, and in that any recognition of jurisdiction of Canadian law would be distinctly non-territorial, confined to the NWMP’s right, and obligation, to police the conduct of settlers, and to assist Blackfoot in their ability to continue hunting across their territory. Critical theorizations of jurisdiction, then, are not just a means to critique settler colonial expressions of legal authority, but can provide a generative framework for the conceptualization of Indigenous territorialities. Further, jurisdiction as a concept can draw attention to how assertions of Indigenous territorialities can relationally limit the forms of settler colonial law Indigenous people are willing to recognize as legitimate.