Indigenous resurgence in an age of

reconciliation
Author(s) Stark, Heidi Kiiwetinepinesiik; Craft, Aimée; Aikau,
Hokulani K.

Imprint University of Toronto Press, 2023

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ISBN 9781487544591, 9781487544621

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5 Beyond Rights and Wrongs: Towards a
Resurgence of Treaty Relationality

gina starblanket

It was a rude diplomacy at best, the gross diplomacy of the rum bottle and the
material appeal of gaudy presents, webs of scarlet cloth, silver medals, and
armlets. Yet there was the heart of these puerile negotiations, this control that
seemed to be founded on debauchery and licence, this alliance that was based
on a childish system of presents, a principle that has been carried on without
cessation and with increased vigilance to the present day – the principle of the sa-
credness of treaty promises. Whatever has been written down and signed by king
and chief both will be bound by so long as “the sun shines and the water runs”….
The treaty policy so well established when the confederation of the provinces
of British North America took place has since been continued and nearly all
civilized Canada is covered with these Indian treaties and surrenders. A map
coloured to define their boundaries would show the province of Ontario clouted
with them like a patchwork blanket; as far north as the confines of the new prov-
inces of Saskatchewan and Alberta the patches lie edge to edge.1

The Beginnings and Ends of Treaty-Making with the Crown

I include Duncan Campbell Scott’s epigraph from 1906 to highlight the

association between treaties and the creation of Canada.2 This associa-
tion may seem straightforward, with the negotiation of the numbered
treaties commonly understood as bringing Indigenous peoples and ter-
ritories under the legal and political jurisdiction of the newly confeder-
ated Canadian nation state, authorizing westward expansion on a fixed
set of written terms that Indigenous people willingly negotiated and
consented to.3 Yet the function of treaties in relation to the creation/
continuity of the settler state is complex and often contested, giving rise
to inquiries about the role of treaty relative to contemporary Indigenous
political projects.
82 Gina Starblanket

Selectively represented as non-violent means of incorporating Indige-

nous peoples into the Dominion of Canada, popular accounts of treaty as
transaction contribute to the maintenance of colonial mythologies about
the ways in which Canada came to be, but also narratives that inform false
understandings of Indigenous peoples’ contemporary political location rel-
ative to Canada.4 In Scott’s 1906 description, the patchwork blanket repre-
sents frontiers – geographical and political – that incrementally extend the
boundaries of “civilized Canada” with the signing of each subsequent treaty.
These frontiers are conceived of as rigid because settler and Indigenous
ways of life are incommensurable, suggesting that social, legal, and political
orders, and relationships with the land are antithetical and cannot co-exist.
In the creation of Canada, representations of treaties as land trans-
actions are, to use the framing of Patrick Wolfe, both eliminatory and
productive.5 They are eliminatory in their finality, intending to ensure
the end of Indigenous political authority and jurisdiction over the land
and to what Campbell Scott describes as “rude and costly” diplomatic
practices. Tasked with addressing outstanding Indigenous claims to land
following the “purchase” of Rupertsland and the North-West Territories
from the Hudson’s Bay Company, Canada’s assertion of sovereignty and
jurisdiction remained incomplete, even if already presumed. Treaties
thus served a crucial role in what Wolfe refers to as the “inchoate” stage
in the formation of the settler state – the point between the theory and
realization of territorial acquisition.
While Indigenous practices of treaty-making with settlers long
preceded Canadian Confederation, the realization of Canadian sover-
eignty depended upon the reduction of Indigenous peoples’ political
status to that of subjects through the extension of a legal order that
would fully “consummate” and thus promise to maintain the structure of
settler-colonial society. Heidi Kiiwetinepinesiik Stark argues that treaties
provided an ideal vehicle for settler states to negotiate this transition,
as they involved recognition of Indigenous political status necessary to
effect the “cessation” of rights to the land, while also providing a mecha-
nism for Indigenous political subordination.6 Stark observes that efforts
to assert the continuity of Indigenous jurisdiction or political authority
following treaty-making with the Crown were subsequently framed as
criminal acts against the settler state. This framing pitted even the most
modest assertions of rights or authority under treaties as contrary to the
national interest, which in turn justified, normalized, and softened state
violence against Indigenous peoples.
If we return to Scott’s writing, we can see how the parameters of “civi-
lized Canada” were understood to have been incrementally extended as
the “treaty policy” effected the extinguishment of Indigenous lifeways.
 Beyond Rights and Wrongs 83

Even if some Indigenous peoples survived in these spaces, they were to

think, behave, and act in ways that conformed with the dominant social,
political, and intellectual orders. Thus the success of the treaty policy is
illustrated by how it transformed Indigenous lands into “civilized Can-
ada,” which produced a settler state with claims to complete jurisdiction
and a cohesive national identity, or at least a national identity that tran-
scended the differences that constituted it.
Treaties, then, represent a foundational axis of settler colonialism. As
the originary “land transactions” that purportedly allowed Canada to
claim jurisdiction across vast tracts of land, they could not be discarded
by the state, as that would undermine the legitimacy of its legal and polit-
ical formations and invalidate its cultural and moral claims.7 Rather, the
story of treaties as land transactions must be selectively and strategically
retold in order to sustain Crown claims to legal and political authority
over Indigenous people, to jurisdiction over treaty territories, and to the
virtue of non-Indigenous Canadians as contemporary “treaty people.”
Like any story, Campbell Scott’s isn’t the only version. As many In-
digenous and non-Indigenous peoples are well aware, the transactional
interpretation stands in direct contrast to the meaning and intent of
treaties recorded and passed on by Indigenous knowledge-holders.8
The n ­ egotiation of treaties with the Crown followed a tradition of
­treaty-making with other living beings as a way to negotiate land use.
These practices predate the arrival of Europeans, helping to mediate the
relationships between Indigenous populations and other living beings
in shared spaces.
According to Indigenous knowledge-holders, treaties represent the
creation of a relationship that allows Indigenous people and newcomers
to live together in shared spaces under the laws of the Creator.9 As living
agreements, they represent much more than the exchange of material
items for land. They represent a legal and political arrangement where
forms of difference coalesce to create “[an] enduring and lasting rela-
tionship” of “mutual ongoing caring and sharing” between treaty par-
ties,10 representing a continuity and the initiation of a new relationship,
but not an ending. By invoking the sun, water, rivers, grass – and even in
some treaties, the rocks and mountains – Indigenous peoples positioned
the relationship between treaty partners as dynamic, always growing, and
demanding care and attention into the future. Importantly, treaty entails
much more than the terms recorded by the Crown; the sacred laws, doc-
trines, and teachings of Indigenous people serve as the foundation for
new relationships to be created under treaty.11
Like European newcomers, Indigenous people understood treaties as a
beginning of sorts. But this beginning was not intended to supplant what
84 Gina Starblanket

came before. It was a beginning based on continuity; that is, the conti-
nuity of Indigenous ways of being, laws, political systems, languages, ways
of knowing, and relationships with the land and other living beings. Re-
turning to Campbell Scott’s description of treaty territories as a patchwork
blanket, one might juxtapose the purported “blanket extinguishment” of
Indigenous rights and title that flows from a transactional understanding
with the image of fabric created by weaving together Indigenous peoples’
ways of life and the new skills and teachings that settlers brought with them.
Rather than positioning difference as a threat to be eliminated, trea-
ty-making follows from a deep respect for and appreciation of the value
of difference. While living beings have distinct roles and responsibilities,
no single contributions are more important than any others. The ethic
of relationality embodied in treaties gives rise to practices that facilitate
the co-existence and mutual growth of treaty partners through a legal,
political, and spiritual arrangement that allows groups to retain their
ways of being. At the same time, treaty partners learn from one another
and rely on one another in times of need, becoming stronger as they
gain new knowledge and skills. The relational world view expressed in
treaties defies the antagonism inherent in settler colonial logics, allow-
ing for a vision of the future based on multiplicity and balance, not hi-
erarchy or domination. Importantly, treaties are intended to guarantee
the survival, well-being, and continuity of all Creation, not of one nation
at the expense of another. They are about generating something healthy
and liveable from the tensions between ways of life that seem irreconcila-
ble, and believing that out of those tensions new possibilities can be born
that are greater than deteriorating, harmful, or violent relations.
Upon even a cursory comparison of Indigenous and settler under-
standings of treaties, several issues quickly appear: the seemingly insur-
mountable contradictions between continuity and finality, pluralistic and
antagonistic approaches to difference, relationships with and cession of
land, and the affirmation or elimination of Indigenous life. These incon-
gruities form a paradox for Indigenous people working towards resur-
gence; that is, what are we to do with these intergenerational relationships,
negotiated by our ancestors in our collective name, when their vision of
relationship has continually been overwritten by Canadian institutions in
ways that have functioned to perpetuate violence and dispossession?

The Remains of Treaty

When I write on treaty, I refer to the diplomatic practices that Indige-

nous people utilize to negotiate the sharing of land with other living
beings. Contemporary analyses of treaty relations with the Crown that
 Beyond Rights and Wrongs 85

employ this understanding are often steeped in a sense of deficit or

lack, wherein the types of treaty relationships that Indigenous peoples
envisioned in agreeing to share the land with settlers are nowhere to be
found aside our past (and in some respects, future) aspirations.
In the contemporary political and economic climate, state commit-
ments to renew the “nation-to-nation relationship” between treaty na-
tions and the Crown have seldom been accompanied by a demonstrated
commitment to address issues that remain outstanding under treaties
(such as jurisdiction and resources), or to undertake structural changes
such as the redistribution of power, land, and revenues that would be re-
quired to substantially improve the political status of treaty First Nations
relative to Canada. Indeed, advocacy for treaty implementation can seem
to be leading nowhere in light of the disparity in political and economic
power between Indigenous and settler governments in the present day.12
Far from improving Indigenous political subordination, rhetorical com-
mitments to facilitate treaty implementation can be shorthand for new
forms of political domination, incorporation, and co-optation by and for
the settler state that promises only to sustain, even if masking, violence
and dispossession against Indigenous peoples.
For these and other reasons, some argue in favour of writing off treaties
as historical agreements that were entered into and have been rendered
irrelevant as a result of the ways in which they have been dishonoured or
“broken.” Jill St. Germain grapples with the “broken treaties” tradition of
treaty interpretation, explaining how analyses that are preoccupied with
the actualization of the fixed terms of treaties can give the impression
that treaties are meaningless, given state habits of breaking them.13 This
line of thought can position treaty-making with a finality, or at least situ-
ate it as irrelevant, as it provides a “persuasive rationalization for relegat-
ing treaties and treaty relations to the dustbin.”14 She argues for the need
to assess treaties beyond the realm of policy, encouraging appreciation
of Indigenous partners as active agents rather than passive subjects or
recipients in the treaty relationship.15 While it may be a stretch to situate
Indigenous people as active agents in contemporary Indigenous-state re-
lations (at least unaccompanied by acknowledgment of the ways in which
that agency is delegated and heavily circumscribed by the state), St. Ger-
main draws our attention to the implications of analyses that situate
Indigenous parties as non-agential, and/or that gauge the relevance of
treaty to contemporary Indigenous political projects through reference
to the potential for their implementation by the state. Such approaches
obscure the political significance of the meaning of treaty as understood
by Indigenous people, and importantly, the principles and doctrines em-
bodied in our practices of treaty-making. When evaluating the relevance
86 Gina Starblanket

of treaty to contemporary Indigenous political projects, it is crucial that

we distinguish between treaties with the Crown and between treaty-based
modes of relating that have been practised by Indigenous people long
before treaties negotiated with European newcomers.
I can think of no worse fate than for Indigenous peoples to lose sight
of our own political traditions, such as of treaty-making, because they
have been mis-inhabited by settlers and sometimes by Indigenous people
ourselves. This would endow the Crown with even greater power to over-
write how we understand our practices of diplomacy and relationality,
constituting another form of elimination (and one that generations of
treaty activists have worked to refuse). Since their signing, Indigenous
peoples have asserted treaties as relationships that are as important to-
day as they were 100 years ago if, for nothing else, to act as a reminder
of the outstanding nature of issues that the Crown has deemed to be
“settled.” Harold Cardinal explains that while there is “much to quarrel
with in the treaties as they were signed,” they remain important “not
so much for their content as for the principles they imply in their very
existence.”16
Cardinal frames treaties as the Indian “Magna Carta,” in that they in-
form the legal and political order that all partners agreed to live under as
well as the associated responsibilities of both settler and Indigenous pop-
ulations. While he acknowledges many limitations inherent in the pro-
cess of negotiating treaties and in the content of written treaties, he also
redirects our attention to the costly risks of letting them go.17 He shifts
discussion from how they have been misinhabited by settlers, towards the
importance of treaties as they are understood by Indigenous peoples:

We cannot give up our rights without destroying ourselves as people. If our

rights are meaningless, if it is inconceivable that our society have treaties
with the white society even though those treaties were signed by honoura-
ble men on both sides, in good faith, long before the present government
decided to tear them up as worthless scraps of paper, then we as a people
are meaningless. We cannot and will not accept this. We know that as long
as we fight for our rights we will survive. If we surrender, we die.18

Here Cardinal associates treaties directly with survival, depicting the

“fight for our rights” as a process that is constitutive for Indigenous peo-
ple. In contemplating this association, we must recall that he was writ-
ing when Canada’s Indian policy was leaning towards elimination of the
Indian Act, Indian status, and our distinct political location under the
treaties. His words should not be interpreted strictly as a desire to se-
cure recognition of our rights, but instead as speaking to the importance
 Beyond Rights and Wrongs 87

of the continuity of a treaty-based politic that manifests differently over

time and in the face of different social and political contexts. Treaties are
not understood here in the ways they have been interpreted by Canada
(as scraps of paper), or as agreements that give rise to a narrow spectrum
of cultural rights, but rather as vital to Indigenous peoples’ continuity.
They embody a refusal to die, not just physically but also in our social,
cultural, and political survival as peoples. Perhaps the most important
part of Cardinal’s approach is the way in which he prompts us to con-
sider what dimension of our lifeways as Indigenous people we might be
giving up while eschewing a treaty-based politic.
Here we arrive at a familiar place in the theory on decolonization: the
crossroads between political pragmatism and imagination. It is a place
where we must contend with the often prohibitive choice between im-
mediate needs and long-term political visions. Yet this framing is a false
dichotomy, as political decisions are often more complex and nuanced
in practice. The decision to “make or break” treaty relations is not a
new juncture, and we would be wise to recall that our ancestors faced a
similar challenge: they had to make decisions that involved conditions
necessary to ensure their immediate, material survival but also entailed
long-term visions for future generations to thrive and prosper.
Unlike our ancestors, however, we have different resources to draw on
in theorizing contemporary approaches to treaty politics. We can gain
insights from the ways in which they traditionally sought to make politi-
cal decisions while recognizing that we have additional information on
which to draw. We can look to the history of treaty implementation in
Canada and utilize these insights to better understand the possibilities
and pitfalls of varying approaches to treaty. In the next section, I argue
that treaties can have an important role in the contemporary political cli-
mate, in what they can elucidate in the operations of settler colonialism,
and what they can mean for Indigenous political projects in resurgence.

The Rhetoric of Treaty as a Technique of Settler Governance

Let us return to the association between treaty-making and the creation

of Canada described at the outset of this chapter. I described how in un-
dertaking treaty negotiations, settler officials understood treaty-making
as a form of diplomacy that extended the boundaries of settler societies
over and above Indigenous people and our relationships with Creation.
Campbell Scott acknowledges that Indigenous people regard treaty with
a sense of continuity, and the settler acknowledgment of continuity as
a treaty principle indicates that treaties were to provide settler society
with certainty in perpetuity. While I have situated treaty as having a role
88 Gina Starblanket

in the establishment of the settler state, it did not merely facilitate a

one-time instance of Indigenous subordination by and for the settler
state, but an enduring one. Thus, one reason treaties remain important
is that examination of the rhetoric surrounding treaty can elucidate the
inner workings of settler colonial structures and of Indigenous oppres-
sion over time. Rather than enacting a critique of the ways that treaties
have been neglected by the state in the past and present, I am arguing for
a critique of the ways that treaties are invoked and operationalized by settler
governments in present contexts of colonialism to facilitate further dis-
possession through the language of “treaty implementation.”
Today we might turn our attention to the violence that settler govern-
ments are committing when drawing on the importance of treaty relations
while narrowly interpreting and infringing on them. The characteri-
zation of contemporary relations between treaty First Nations and the
Crown as “nation-to-nation” is set against a backdrop of evolving settler
colonial violence that has involved the continuous political subordina-
tion and dispossession of treaty First Nations (even if differently masked
over time). Today, Indigenous political subordination is concealed by the
rhetoric of treaty implementation and of rights recognition, which all
too often results in Indigenous political mobilizations that advocate for
robust conceptions of the fixed terms of treaty as recorded by the Crown.
Mobilizing a critical treaty politic involves more than just turn-
ing to the “spirit and intent of treaty” as understood by Indigenous
­knowledge-holders. It involves being continually mindful of the politics
surrounding how Indigenous understandings are invoked and operation-
alized in movements towards change. For instance, some might draw
on Indigenous understandings of treaty in order to advocate for more
robust readings of written terms. Yet these efforts have a tendency to
contain the breadth of treaty to compartmentalized policy areas and can
inadvertently reproduce a fixed-term understanding in our efforts to
work towards “actual” or meaningful treaty implementation. Theorizing
through the broadest conception of treaty possible can enable a treaty
politic that exceeds a fixed-term approach and can give rise to more
robust critiques surrounding the role of treaty relative to contemporary
settler colonial structures.
Far from historical land transactions, treaties can be understood as
active relations that are continually operationalized by Canada to con-
tain the exercise of Indigenous political orders while legitimating its
own claims to sovereignty in response to shifting socio-political climates.
Understanding these processes can help bring forward a more nuanced
understanding of treaties, not just as agreements that were broken or dis-
honoured, but ones that have been selectively invoked and employed to
 Beyond Rights and Wrongs 89

sustain conditions of Indigenous dispossession, marginalization, and vul-

nerability. This is particularly true within the current era of recognition
and reconciliation, where Indigenous visions of treaty relationships can
be invoked as potential pathways to reconciliation. When we start from
a different understanding of treaty, we are better situated to interrogate
the limits of such invocations. For instance, it allows us to evaluate if the
relatively recent scholarly “turn to treaty” within discourses on reconcili-
ation hold the transformative potential its advocates claim.19
While a “nation-to-nation” relationship between Indigenous and Ca-
nadian governments has never materialized, it remains a crucial part of
Canadian identity. Repeated calls from settler governments for “renewal”
of the nation-to-nation treaty relationship are at once a suggestion that a
nation-to-nation treaty relationship was once a defining feature of Can-
ada and that, despite its lengthy record of repressive and eliminatory
policies aimed at Indigenous peoples, treaties continue to be invoked
by Canada as a symbol of the idealized ethnic and political plurality that
Canada will strive to be yet again. Here we might understand the con-
temporary role of treaties as part of a broader conciliatory project that
Miranda Johnson describes as bound up with ideas of re-founding of
the nation.20 She writes that such movements may have little to do with
transformations of political power but rather are about grafting settler
belonging onto a “postcolonial” nation. The story of treaties, then, can
be understood as playing a crucial role in the beginning of Canada for
settlers, but also in Canada’s rebirth in a neoliberal era of recognition
and reconciliation. As settler governments seek to obtain “certainty”
surrounding jurisdictional questions and legal obligations through the
creation of modern “treaties” and negotiated “self-government” agree-
ments, these rebeginnings are themselves also contingent on the elimi-
nation of ongoing threats posed by Indigenous political life – that is, the
uncertainty occasioned by the potential assertion of an Aboriginal or
treaty right, or by a title claim or jurisdictional dispute. These inquiries
stand to clarify our understanding of the function of treaty in contexts
of settler colonialism, which, in turn, can help inform the direction of
Indigenous political projects.
Such critical conversations can help shed light upon the role that
transactional understandings of treaties have played not just legally and
politically, but also in the construction of what Linda Tuhiwai Smith re-
fers to as the discursive fields of knowledge that imperialism produces.
Part of “writing back” and “theorizing back” against these Western
modes of knowledge-production involves working within our own the-
ories, knowledges, and ways of seeing the world.21 This can help in the
development of a treaty politic that is illegible to Canadian institutions
90 Gina Starblanket

and geared towards purposefully disorienting Canadian interpretations

of treaty rights in law and politics, while also grounding the political
actions of Indigenous treaty partners in the dimensions of treaties that
remain important and significant to us.
At the same time as critiques of colonial violence and abuses, includ-
ing those masked by the guise of treaty implementation, can elucidate
the logics of oppression responsible for Indigenous peoples’ suffering,
we must also be cautious not to allow the state’s invocations of treaties to
direct the entire configurations of our political movements.
This would limit our capacity to theorize strategies of political change
that are grounded upon our own visions of what treaties are and what
they can entail. It is particularly important that Indigenous peoples do
not internalize interpretations of treaties as fixed-term transactions that
give rise to a narrow spectrum of cultural rights, and remain mindful
that these processes inevitably shape our political vocabulary and strat-
egy. This means that we must make concerted efforts to critically reflect
upon the ways in which our own understandings of treaties as Indige-
nous peoples have been changed and contained by colonial narratives of
treaty-making and implementation.
While critiques of the Crown’s interpretation of treaties are important,
Indigenous people should also be weary of focusing the bulk of our time
and energy in seeking justice for the many ways in which treaties have
been and continue to be misinhabited by the state, as this may take away
from our capacity to pursue other political projects. As Dian Million
writes, struggles for justice and self-determination are not the same and
cannot necessarily be achieved through the same avenues for change.22
An oppositional treaty politic may distract from the need to build an
alternative treaty politic instead, as oppositional approaches can run the
risk of limiting movement and self-transformation and can contain our
ability to engage in alternative theorizations that might break free from,
instead of just being differently configured by, colonial power relations.23
When we Indigenous peoples constitute ourselves through opposi-
tional politics rather than what we aspire to be, we inadvertently allow
our own political projects to be shaped by external sources rather than
our own philosophical traditions. Indeed, Indigenous peoples’ ability to
theorize in a way that is not reliant on Western traditions of thought is
severely constrained when we focus our resources and capacities on ad-
dressing the sources of injury rather than actualizing our own political
norms and objectives.24 This severely restricts the scope of dialogue and
theorization around how political action may be conceived of in a way
that reflects our traditional practices and allows for change and adapta-
tion to present and future contexts.
 Beyond Rights and Wrongs 91

Towards a Resurgence of Treaty Relationality

As Indigenous peoples contemplate how to imagine alternative ways of

drawing upon practices of treaty-making within contemporary political
engagements, a treaty-based ethic of relationality may help shift the fo-
cus away from articulations of treaty rights “claims” against the settler
state and towards a community-driven engagement with our own intel-
lectual resources and knowledge of treaties. Such a focus is in no way
intended to harden boundaries or cultivate an internal unity or sense of
homogenous political norms, but instead to invite conversation and cri-
tique around competing collective imaginations. This could strengthen
the capacity for dialogue and engagement with a variety of perspectives
within communities, allowing the space for individual contestation and
involvement in governance while cultivating a more inclusive and par-
ticipatory atmosphere for political engagement. When the politics of
treaty implementation are grounded in Indigenous peoples’ own visions
of what treaties represent, rather than in opposition to the many ways
that treaties have been neglected by the state, we Indigenous peoples
can broaden our collective political involvement and engage in crucial
conversations about how we want to relate to other living beings.
This also means engaging in critical dialogue about the power relations
and internal logics that are at play in treaty advocacy. Such conversations,
in turn, can help mitigate the ways that treaty implementation can be
promoted in delegated self-government structures or economic devel-
opment initiatives that are so frequently presented to Indigenous people
as opportunities for treaty implementation. As I see it, one of the most
important possibilities for a critical treaty politic is to push back against
the tendency among Indigenous leaders and organizations to internalize
and/or reproduce neoliberal, capitalist understandings of treaty imple-
mentation, such as initiatives grounded upon commoditive or possessory
understandings of land and that threaten our ability to carry out our
responsibilities to the living earth or to remain accountable to future
generations. Rather, a critical treaty politic might look to treaties as a way
of drawing out broader notions of responsibility and accountability that
can allow us to contemplate the impacts of the decisions we make today
on the many relations we inhabit now and into the future.
Perhaps the most transformative part of this approach is the process
of renewing and redefining our understandings of our own legal and
political practices within Indigenous communities. An important way of
avoiding approaches that have been frozen in time and instead engaging
treaties in a more creative and future-oriented way is to shift the char-
acter of political discourse away from a focus on the Crown’s record of
92 Gina Starblanket

treaty implementation and towards the question of what treaties mean to

us as Indigenous people. Moving towards the reconfiguration of collec-
tive political pursuits, Dian Million emphasizes the importance of social
and political imagination and of embodying the transformations we en-
vision for our communities through processes that we know are relevant
and important to us. She situates Indigenous philosophies of relation-
ality as distinctly political and explains that they can contribute to the
development of a future-oriented political vision by positioning Indige-
nous people to constitute our political selves not through opposition to
colonial violence but by doing what we have always been doing. Similarly,
Leanne Simpson writes that focused rebuilding using Indigenous pro-
cesses “enacts an Indigenous presence that has the ability to give life to
an Indigenous future and changes not only the actors involved in the
focused rebuilding” but also the power dynamics between involved ac-
tors both internal and external to the community.25 My understanding of
these interventions relative to the topics taken up in this chapter is that
implementation of the terms of treaty should not be an end goal (even
if treaty is understood in a robust way), but that we can look to treaty as
a process that can inform a better model of organizing, living together,
and constituting ourselves politically, not just in external relations, but
perhaps most importantly, internally, within Indigenous communities.
Resurgence may prompt us to direct greater attention to the role of
our everyday interactions in defining and pursuing our political objec-
tives and priorities. A focus on the everyday positions of treaty relations as
dynamic and ongoing comprise a multiplicity of relations and are open
to dialogue and interpretation. While treaty implementation requires
change to macro structures of power, we can engage subversive practices
grounded in treaty relationality in small but meaningful ways. In this way,
we can work to transform, move, renew, and honour our relationships
as we understand our responsibilities within them and importantly, on
terms that we created and agree to.

Conclusion

To some, contemporary treaty implementation can mean advancing In-

digenous political imperatives through “claims” that require us to shape
our political identities and movements through terms imposed by the
settler state. The limits of such approaches have become abundantly
clear over the years, leading some to question to relevance of treaty to
contemporary Indigenous political movements and, particularly, Indig-
enous political movements that are external to the settler political struc-
ture. In my view, treaties are not irrelevant to Indigenous movements
 Beyond Rights and Wrongs 93

towards resurgence and can have an important role in contemporary

Indigenous political projects generally; however, the transformative po-
tential of this role is heavily contingent on the way in which treaties are
interpreted and the contexts in which they are deployed.
When treaties are dismissed because of the way they have been inhab-
ited by settlers, we stand to centre a transactional approach whereby the
state is the provider and Indigenous peoples are the recipients of treaty
rights, while also reproducing notions of boundedness and hierarchy be-
tween communities. Moreover, if we ultimately discard our own practices
of treaty because of the way they have been violated in our engagements
with settlers, we stand to lose some of our most important resources for
how to enact a relational world view and actually begin to attend to living
our interrelatedness in practice.
Dismissals of treaties as irrelevant to the contemporary context con-
tinues to give the state the authority to determine or delimit the ways in
which we theorize about the future and can lead Indigenous peoples to
overlook the possibilities that treaty-based modes of relating can contrib-
ute to the development of alternative political arrangements. Instead,
employing a relational understanding of treaties can facilitate the resur-
gence of values and principles inherent in our customary ways of relating
with other communities and the world we live in.
Theorizing and working towards change through an alternate vision of
treaties that seeks to revitalize the relational ethics and practices embed-
ded in their spirit and intent can represent an empowering shift in Indig-
enous politics. It can inform a politic that is critical of the ways in which
the rhetoric of treaty implementation used by settler governments can
bolster the appearance of reconciliation and/or transformation while
sustaining Indigenous political subordination. And while critical analy-
ses of the Crown’s record of treaty implementation can help deconstruct
and challenge the power relations underlying settler colonialism, Indige-
nous people also require an organizing framework that can help us work
towards the restoration of our ways of life through political action and
discourse that is meaningful to and that has space for involvement and
contestation within our communities. To this end, a critical and relation-
ally oriented treaty politic stands to engage continuous, ­future-oriented
governance practices as affirmed in the treaty relationship, governing
through a renewal of our own resources – those values and principles
that flow from practices of treaty-making that, prior to those negotiated
with settlers, sustained our inter-relatedness. The principle of continuity
does not mean that we cannot critique and disengage from oppressive
relations with the state; it means that we should take care to bring new
life to our own governance practices precisely because of the ways they
94 Gina Starblanket

have been damaged by the state. The renewal of treaty-based modes of

relating represents a crucial form of resurgence – a politics not oriented
by or against the state, but driven and mobilized by Indigenous peoples’
own laws and philosophies.

NOTES

1 Duncan Campbell Scott, “The Last of the Indian Treaties,” Scribner’s Magazine
40 (1906): 573–83.
2 Note that this association isn not exclusive to historical contexts. For instance,
Judge Arnot (former treaty commissioner for Saskatchewan) describes treaties
as “building blocks for our country.”
3 The treaty mythologies of Indigenous cession and surrender of land and
political authority that are outlined in this chapter are also reproduced
by many Indigenous peoples in many contexts, particularly by Indigenous
­peoples who are not parties to the numbered treaties.
4 See G. Starblanket, “The Numbered Treaties and the Politics of Incoherency,”
Canadian Journal of Political Science 52, no. 3 (2019): 443–59.
5 Patrick Wolfe, “Settler Colonialism and the Elimination of the Native,”
­Journal of Genocide Research 8, no. 4 (2006): 387–409.
6 See Heidi Kiiwetinepinesiik Stark, “Criminal Empire: The Making of the
Savage in a Lawless Land,” Theory & Event 19, no. 4 (2016).
7 Stark, “Criminal Empire.”
8 As Michael Asch writes, “The interpretation provided by the contemporary
Elders and leaders of the Indigenous parties to the negotiations more ac-
curately reflects the shared understanding of both parties as it is reflected in the
record of what transpired than does the representation contained in the
written text.” Michael Asch, On Being Here to Stay: Treaties and Aboriginal Rights
in Canada (Toronto: University of Toronto Press, 2014), 82 (emphasis in the
original). See also René Dussault and Georges Erasmus, Report of the Royal
Commission on Aboriginal Peoples (1996), 2, 43; Cardinal and Hildebrandt,
Treaty Elders of Saskatchewan; Walter Hildebrandt, Dorothy First Rider, and Sa-
rah Carter, True Spirit and Original Intent of Treaty 7 (Montreal and Kingston:
McGill-Queen’s University Press, 1996).
9 Cardinal and Hildebrandt, Treaty Elders of Saskatchewan, 15.
10 Cardinal and Hildebrandt, Treaty Elders of Saskatchewan, 15.
11 Cardinal and Hildebrandt, Treaty Elders of Saskatchewan, 15.
12 Harsha Walia, “‘Land Is a Relationship’: In Conversation with Glen
Coulthard on Indigenous Nationhood,” rabble.ca, 21 January 2015, http://
rabble.ca/columnists/2015/01/land-relationship-conversation-glen-coulthard
-on-indigenous-nationhood.
 Beyond Rights and Wrongs 95

13 John L. Tobias, “Canada’s Subjugation of the Plains Cree, 1879–1885,”

­Canadian Historical Review 64, no. 4 (1983): 519–48.
14 Jill St. Germain, Broken Treaties: United States and Canadian Relations with
the Lakotas and the Plains Cree, 1868–1885 (Lincoln: University of Nebraska
Press, 2009), xix.
15 St. Germain, Broken Treaties, xviii.
16 Harold Cardinal, The Unjust Society: The Tragedy of Canada’s Indians (Edmonton,
AB: M.G. Hurtig, 1969), 30.
17 Cardinal, Unjust Society, 24.
18 Cardinal, Unjust Society, 26.
19 Corey Snelgrove, “Treaty and the Problem of Colonial Reification” (paper pre-
sented at Socialist Studies Conference, Regina, SK, 26 May to 1 June 2018).
20 Miranda Johnson, “Reconciliation, Indigeneity, and Postcolonial Nation-
hood in Settler States,” Postcolonial Studies 14, no. 2 (2011): 197.
21 Linda Tuhuwai Smith, “Decolonizing Methodologies: Research and Indige-
nous Peoples” (1999), 21.
22 Million writes, “The international law that enables Indigenous trauma to
appeal for justice is the same sphere in which we articulate political rights
as polities with rights to self-determination,” which, in her view, are not
“necessarily compatible projects.” Dian Million, Therapeutic Nations: Healing
in an Age of Indigenous Human Rights (Tucson: University of Arizona Press,
2013), 3.
23 Million, Therapeutic Nations, 102.
24 Wendy Brown, States of Injury: Power and Freedom in Late Modernity (Princeton,
NJ: Princeton University Press, 1999).
25 Leanne Simpson, As We Have Always Done: Indigenous Freedom through Radical
Resistance (Minneapolis: University of Minnesota Press, 2017), 245.
6 Thawing the Frozen Rights Theory:
On Rejecting Interpretations of
Reconciliation and Resurgence That
Define Indigenous Peoples as Frozen in
a Pre-colonial Past

aimée craft

Resurgence
Revitalization
Reclamation
Reconciliation
Regret

“Re” as a prefix means “to go back or backwards.”1

This chapter considers and problematizes two key concepts that
brought together a group of Indigenous scholars in March 2017: resur-
gence and reconciliation.2 Like other nouns, resurgence and reconciliation
carry deep normative baggage that describe an occurrence, state, or ac-
tion. Each has a diversity of meanings, applied and defined differently
in various contexts and by different interveners, including scholars and
activists, both Indigenous and non-Indigenous, as well as courts and gov-
ernments. Their definitions and applications have been a site of contes-
tation and celebration.
While the concepts of resurgence and reconciliation have been ap-
plied in ways that advance Indigenous thought and practice, at times
these terms have been applied (including as used by courts in jurispru-
dence) in ways that anchor and fix Indigenous identities, cultures, and
political and legal expressions in a distant pre-colonial past. Beginning
with the concept of reconciliation, as applied in law, this chapter aims to
problematize the adoption of reconciliation into Canadian law and po-
litical discourse. It is used in a way that is confused and multiple, and ul-
timately perpetuates and promotes the view that Indigenous expressions
and ways of life exist only in relation to what we can collectively salvage
from a past version of our collective selves. Resurgence, however, has
 Thawing the Frozen Rights Theory 97

remained anchored outside Canadian legal discourse, being assumed

mostly by Indigenous activists and academics as a form of resistance mar-
ried with reappropriation of culture, language, ceremony, lifeways, etc. I
argue that since both terms have been adapted from colonial language
and thought, and most explicitly as concepts derived from the English
language, they can crystallize an assimilative (at best) or extinctionist (at
worst) approach, while sounding very polite and conciliatory.
The language of reconciliation has been taken up by Canadian courts
to define the relationship between Indigenous peoples and Canada in
the “history of Canada’s relationship with its Indigenous peoples.” The
Supreme Court of Canada has stated multiple times that the purpose of
section 35 of the Canadian Constitution is to reconcile the prior occupation
of lands by Indigenous people with asserted and assumed Canadian sover-
eignty. Justice Abella recalls that “the “grand purpose” of section 35 is “the
reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually
respectful long-term relationship.”3 In addition, the court has invoked
reconciliation in a variety of permutations to explain the reconciliation
between Aboriginal culture, peoples, traditions, rights, perspectives, so-
cieties, prior occupation, and Crown and non-Aboriginal interests (the
assertion of Crown sovereignty, Crown interests, other interests, broader
society, the rest of Canadian society, the interests of all Canadians …).
Beginning with the early section 35 jurisprudence on Aboriginal
rights, in Sparrow and Van der Peet, the Supreme Court of Canada has
contained the application of Aboriginal rights protection to practices
and customs that are integral to the distinctive culture of groups. By
distancing the doctrine of Aboriginal rights from self-determination,
self-governance, inherency, and practices that emanate and derive from
relationships with the land, the Court has limited the scope of constitu-
tionally protected rights to the pre-contact and pre-colonial state of In-
digenous peoples in Canada. While they admit that there is space for the
“logical evolution” of a right, they limit the evolution to one that anchors
itself in a pre-contact practice, with no room for an evolving and modern
Indigenous practice without its past manifestation. This in turn supports
the idea, often applied to Indigenous people by the state, that the only
way to be authentically Indigenous is to return to the past. In turn, when
the concepts of resurgence and revitalization of Indigenous life ways are
used in the context of returning to ancestral ways, this lends support the
law’s preference for practices, customs, and traditions that existed prior
to European contact, and subsequently more violence is done to Indige-
nous peoples’ futurities.
To understand the law and interpret it, legal scholars look to linguistic
understandings that illustrate the normative value contained in the word