Reconstruction and Reconciliation in the Manitoba Act of 1870

The third in MEDIA INDIGENA’s series of graduate student writings from the #UMNATV Colloquium series, the following piece by U of M Native Studies PhD Student Jason Bone was submitted after a presentation by University of Saskatchewan Native Studies professor Adam Gaudry. 

In his well-attended talk entitled “The Manitoba Treaty of 1870: Reconstructing Metis-Canada Confederation Building,” professor Adam Gaudry questioned Canada’s claim in 1869 to have purchased the Northwest Territories from the Hudson Bay Company (HBC), a question he based on the way HBC acquired title to the land in the first place. Citing the Doctrine of Discovery — a key point missed by many, according to Gaudry — the professor identified how the company has not ever truly received legal ownership but rather participated in a long process of opportunistic exploitation of First Nations through trade and politics.

For instance, during the Treaty Four negotiations at Fort Qu’appelle, O-ta-ka-o-nan (or “The Gambler”), raised important questions to Treaty Commissioner Alexander Morris on how HBC received title to the land. He asked specifically why they received payment for land they did not own, leading Gaudry to conclude that it was well understood that much of Manitoba was stolen territory and the legal claims of the HBC were very much in doubt among the area’s Indigenous residents.

Canada has a weak legal position in claiming the Prairie provinces, stated Gaudry, and many scholars question the legal foundation of the Natural Resource Transfer Acts of 1930, which supposedly justified this claim. The problem lies in the earlier Manitoba Act of 1870, which Gaudry argued is a treaty that recognizes over 50 years of Metis land title and gives the community a legal argument and precedent within Canadian law. Using scholars such as James Tully and J.R. Miller and a keen chronological analysis found in the voices of Metis like Louis Riel’s journals, Gaudry aptly explained that the Métis are both a legal and political entity with established governance systems like the Buffalo Hunt Council, along with the capacity to negotiate treaties just as First Nations had.

A basic model to Gaudry’s argument cites these central events on a timeline:

• Early 1869: Canada purchases territorial and governance rights from HBC
• July/August 1869: Metis organize patrols and roadblocks. Buffalo Hunt Government
• November 1869: Metis prevent Canadian Governor from entering. Effectively preventing transfer
• December 1, 1869: Metis declare Provisional Government and intention to negotiate
• February 1870: Metis and Canada agree to negotiate for entry into confederation
• May 1870: Canada passes Manitoba Act. First phase of ratification
• June 1870: Provisional Government ratifies the Manitoba Treaty. Second phase of ratification
• August/September 1870: Arrival of British infantry and Canadian Militia. Systematic attacks and eventual suppression of Metis Self-governance

Most interesting was Gaudry’s question to the audience, “What if Thomas Scott was never killed?” After some equally interesting responses, Gaudry suggested that this act resulted in a reductive treatment of the Manitoba Treaty of 1870 and a long period of “mob justice” enacted by the British infantry and Canadian militia, The Wolseley Expedition. This prevented a true Metis vision of Canada – and Manitoba – from ever being realized, starting cycles of relationships that continue to have an impact today. Gaudry suggests the only solution is to revisit this original vision, recognize Metis land claims and begin a project of redress, to start a process of reconciliation that can re-start relationships based on mutual respect and dialogue. The Manitoba treaty provides a template to do so.

I completely agree with Gaudry’s presentation of the original vision and timeline of critical Metis events prior to Manitoba becoming a province in 1870. It is a realistic, historical view of how Manitoba was settled. The key to this original vision is the spirit and intent for both the Metis and the government. The Metis at this time still had the presence of power and force to resist aggression by any nation. Therefore, the starting point of this relationship was based on equality and partnership. Each needed the other to legitimize the process.

However, I am not totally convinced of Gaudry’s claim that Metis had a treaty with the Crown prior to the treaty making process starting in 1871. This claim appears to say that Metis rights supersede First Nation treaty rights. Take note of the Selkirk treaty of 1816 between First Nations and the Crown. I think Gaudry is piggybacking on the legal perspective of settling outstanding First Nation land claims, as Canadian law is now recognizing Aboriginal title.

In his research, Gaudry relied on Robert Alexander Innes’ book, Elder Brother and the Law of the People. The problem is that Innes relies on existing written literature about the history of First Nations people prior to 30 years ago. By relying on that existing written history of First Nations — which ranges from distorted to completely untrue due to the authors exclusively Western perspective — the foundation of Innes’ book is therefore weakened. When writers do this, they have a fear of alienating themselves from the existing thought of historical writings. To have a balanced way of looking at reconciliation today, I would prefer to include oral history as evidence to be reflective of the First Nations perspective, and recent Supreme Court decisions are now entertaining the concept of Indigenous law (including oral history).