Anishinaabe Nation in Treaty No. 3
The Anishinaabe Nation in Treaty No. 3 is a sovereign Anishinaabe Nation in Canada. It has existed as a self-governing people with its own laws and governance institutions since time immemorial, before the arrival of European settlers. "America, separated from Europe by a wide ocean, was inhabited by ... separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws." "The territory included in Treaty #3 in 1873 was governed by a Grand Council of Anishinaabe Chiefs. ... This civil leadership was responsible to other political ranks and ultimately to the constituent families." The Nation is, by constitutional definition, the Anishinaabe people that entered into Treaty 3 with the Crown in 1873.
The Anishinaabe Nation in Treaty No. 3 became distinct as a political, cultural and linguistic group from other Anishinaabe peoples through the circumstances of its traditional territory around Lake of the Woods and Rainy River. "Abundant natural resources were the foundation for Anishinaabe government. During the 18th and 19th centuries, large groups gathered during harvest seasons, at maple sugar groves, fishing stations, berry patches, garden sites, and rice fields. ... Organized through a Grand Council, they asserted sovereignty over their territory." By the latter 1800s, the Grand Council's insistence on territorial integrity was obstructing westward expansion to the Prairies. In the 1870s, Crown authorities pressed for a treaty.
Making of the Treaty
In 1873, Alexander Morris was one of three Commissioners empowered by the Privy Council to make a treaty that would open up safe passage from Upper Canada via Lake Superior and the Rainy and Winnipeg Rivers to the Prairies. He understood the political structure of the Nation and dealt with the Council as the government of a people: "I then told them that I ... wished to treat with them as a nation and not with separate bands...." The North-West Angle Treaty (also known as Treaty 3) with the Crown was signed on 3 October 1873, thus securing access for the settlers to vast areas of land in what was to become modern Canada, and giving constitutional definition within both Anishinaabe law and Canadian law to the Anishinaabe Nation in Treaty No. 3. In his 1880 book on the Treaties of Canada with the Indians, Morris recounted that when, after difficult negotiations, the Treaty was concluded, the Council's "principal spokesman, Mawedopenais, came forward and drew off his gloves, and spoke as follows: 'Now you see me stand before you all: what has been done here today, has been done openly before the Great Spirit, and before the nation.'" Treaty 3 is the only one of the eleven Numbered Treaties of Canada that was made with a single distinct aboriginal people.
The Treaty covers traditional territory of the Anishinaabe people extending from Lake Superior in the east into what is now Manitoba to the west. With a stroke of the pen, Treaty 3 extended by 55,000 square miles (140,000 km2) the area over which the Crown could, with apparent legitimacy, assert its sovereignty. Of immediate strategic significance, it secured friendly passage for Canada to open up the West.
Three years after Treaty 3 was solemnly signed, Canada enacted the Indian Act, which provided the legal and administrative basis for more than a century of colonial policies of dispossession, oppression and attempted cultural extinguishment of the Canadian Indian peoples. In 1998, Minister of Indian Affairs Jane Stewart, and in 2008, Canadian Prime Minister Stephen Harper, publicly acknowledged and apologised for central elements of these policies.
The constitution of the Anishinaabe Nation in Treaty No. 3 is based on customary law that includes both sacred law and traditional law. It is mostly uncodified. The making of Treaty 3 fundamentally affected the constitution of the Nation. The Anishinaabe Nation in Treaty No. 3 is one of few sovereign Anishinaabe Nation whose constitutionally-distinct identity was confirmed in making Treaty with the Crown. The making of Treaty 3 constitutionally severed the Anishinaabe Nation in Treaty 3 from its Anishinaabe relatives and set it on a distinct future path. Significantly, not all the Chiefs were present for the momentous Treaty 3 decision. Others subscribed to it later. These events illustrated a unique and foundational principle of the Nation's constitution: the primacy of its communities. According to this principle, while laws and national policy of the Nation do not require consent of its communities to become effective for the Nation, they become effective for and in each community only when the community has consented.
Aboriginal and treaty rights
The Crown has fundamental rights under Treaty 3. These include the right of Canadians to enter and live peacefully in Treaty 3 territory and to share its natural resources. Because Treaty 3 was made with a single aboriginal people, it is clear that the Anishinaabe Nation in Treaty No. 3 is the "rights-holder" for the collective aboriginal and treaty rights of its citizens. In general, such rights are held by an aboriginal people of Canada (not a Band). Aboriginal rights of the Nation include specific (local) rights and generic rights such as:
- the right to conclude treaties,
- the right to customary law,
- the right to the fiduciary protection of the Crown,
- the right to an ancestral territory,
- the right of cultural integrity,
- the right to a moderate livelihood, and
- the right of self-government.
Since 1982, the Nation's aboriginal and treaty rights, including its treaty right to exist as an aboriginal people in Canada, have been recognized and affirmed by section 35 of the Constitution Act, 1982. Responsibilities of the Nation's government include protection of aboriginal rights and honoring Treaty relationships with the Crown and with other aboriginal peoples. When the Crown proposes actions that may affect treaty or aboriginal rights, such as changes to governance laws or child protection laws, or licenses for forestry or permits for mining in Treaty 3 territory, it must consult with the Nation through its government and accommodate or compensate potentially affected rights.
Grand Council Treaty No. 3 is the traditional government of the Nation. Alexander Morris' records of his dealings with the Grand Council in 1873 recount details of his dealings with what he called "the Indian Council": "The nation had not met for many years, and some of [the Chiefs] had never before been assembled together." The origins of the Grand Council may predate written records. Historically, "The sturgeon during spring spawning season supported the assembly of up to 1,500 people at fishing stations on Rainy River. At Couchiching Falls (present-day Fort Frances), the Anishinaabe national government met each spring, relying upon abundant spawning runs of sturgeon and stored supplies of manoomin, maple sugar and Indian corn." Traditionally, "Anishinaabe of Lake of the Woods and Rainy Lake had many different types of leaders, including Grand Chief, first and second rank civil chiefs, first and second rank soldiers, war chiefs, pipe bearers and messengers." The government of the Nation derived from and rested upon consent of the people. "Traditional values featured a distrust of excessive power and an emphasis upon consensual, rather than representative, democracy." The Midewiwin Society, though systematically persecuted by colonial authorities, was also an integral part of the Nation's government: "The Midewiwin or Grand Medicine Society, a ranked curing society, operated in conjunction with the Grand Council, and many of its healers were also powerful chiefs such as Powawassin and Mawintopinesse. The annual spring Grand Council on Rainy River was also the occasion of Mide ceremonial activity."
Today, Grand Council Treaty #3 continues to be composed of the many councils of the Nation. Government of the Nation continues to be based on consensual democracy. The National Assembly, comprising leaders sent by each community according to its own determination, including elders, women and other leaders assembled in the presence of constitutional symbols of the Nation, determines national policy by consensus. The National Assembly selects the Ogichidaa/kwe. There is no fixed term; the National Assembly may reconsider its selection at any time. The Ogichidaa/kwe appoints members of an Executive Council and answers to the National Assembly for their performance. The Executive Council exercises the executive authority of the Nation. While its members may be local political figures, in their executive capacity they have fiduciary duties to the Nation as a whole. There is also an administration of similar name (Grand Council of Treaty 3) that is supposed to be dedicated solely to preserve and protect the Treaty and its rights, but against the opinion of many Chiefs has branched out into service delivery.
- Worcester v. State of Georgia, per Marshall, C.J., (1832), 31 U.S. 530, cited in Calder v. Attorney-General of B.C.,  S.C.R. 313.
- Leo Waisberg & Tim Holzkamm, working paper (2001), "Traditional Anishinaabe Governance of Treaty #3", p. 1, in which other opinions are reviewed; http://www.gct3.net/wp-content/uploads/2008/01/trad_gov.pdf, accessed 6 October 2008.
- Leo Waisberg & Tim Holzkamm, "Traditional Anishinaabe Governance of Treaty #3", working paper (2001), pp. 2 - 3, accessed 10 September 2008.
- Alexander Morris, official dispatch to the Minister of the Interior, October 14, 1873, in Alexander Morris, The Treaties of Canada with the Indians, Belfords , Clarke & Co., Toronto (1880), pp. 47 - 49.
- Alexander Morris, The Treaties of Canada with the Indians, Belfords , Clarke & Co., Toronto (1880), p. 45.
- I.e., nearly 90,000 sq. km.
- "[A]nd so was closed, a treaty, whereby a territory was enabled to be opened up, of great importance to Canada, embracing as it does the Pacific Railway route to the North-West Territories - a wide extent of fertile lands, and, as is believed, great mineral resources." Alexander Morris, The Treaties of Canada with the Indians, Belfords , Clarke & Co., Toronto (1880), p. 46.
- Indian Act, R.S., 1985, c. I-5 (Can.); http://laws.justice.gc.ca/en/I-5/, accessed 6 October 2008.
- "The assistance and spiritual values of the Aboriginal peoples who welcomed the newcomers to this continent too often have been forgotten. ... As a country, we are burdened by past actions that resulted in weakening the identity of Aboriginal peoples, suppressing their languages and cultures, and outlawing spiritual practices. We must recognize the impact of these actions on the once self-sustaining nations that were disaggregated, disrupted, limited or even destroyed by the dispossession of traditional territory, by the relocation of Aboriginal people, and by some provisions of the Indian Act." See: Jane Stewart, "Statement of Reconciliation", The Globe and Mail, Toronto, Thursday, January 8, 1998.
- "For more than a century, Indian residential schools separated over 150,000 aboriginal children from their families and communities. ... First nations, Inuit and Métis languages and cultural practices were prohibited in these schools. ... The government now recognizes that the consequences of the Indian residential schools policy were profoundly negative and that this policy has had a lasting and damaging impact on aboriginal culture, heritage and language." Stephen Harper, "Apology to Former Students of Indian Residential Schools", Hansard, Wednesday, June 11, 2008, http://www2.parl.gc.ca/HousePublications/Publication.aspx?DocId=3568890&Language=E&Mode=1&Parl=39&Ses=2, accessed 7 September 2008.
- Customary law of aboriginal peoples of Canada is incorporated by the common law of Canada and is enforceable in its courts; see: Campbell v. British Columbia, 2000 BCSC 1123, paras. 83 - 87; http://www.courts.gov.bc.ca/jdb-txt/sc/00/11/s00-1123.htm, accessed 9 September 2008.
- Most fundamentally, under Treaty 3 it became unconstitutional for the Nation to make war upon the Crown. While controversy remains about terms of the Treaty, this point was pivotal and both parties clearly understood it.
- Others include the Nisga'a people of the Nass River watershed in north-western Canada and the Pimicikamak people of the upper Nelson River watershed north of Lake Winnipeg in central Canada.
- See: Adhesion of Lac Seul Indians, Alexander Morris, The Treaties of Canada with the Indians, Belfords, Clarke & Co., Toronto (1880), p. 329.
- Currently, the Nation has 28 communities; it retains the power to establish communities within its territory.
- In Canada, Parliament created Bands and gave them limited powers and rights as quasi-governmental entities under the Indian Act; these powers do not include aboriginal or treaty rights: "While band level organization may have meaning to a Canadian federal bureaucracy, it is without any meaning in the resolution of Aboriginal title and rights...." Tsilhqot'in Nation v. British Columbia, 2007 BCSC 1700, per Vickers, J., at p. 148; http://www.courts.gov.bc.ca/Jdb-txt/SC/07/17/2007BCSC1700.pdf, accessed 6 October 2008.
- Constitution Act, 1982, Schedule B to the Canada Act, 1982 (U.K.), 1982 c. 11, s. 35.
- The government of Canada recognizes self-government of aboriginal peoples as a continuing right that is recognized and affirmed by the Constitution of Canada; "Aboriginal Self-Government: The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government"; see http://www.ainc-inac.gc.ca/pr/pub/sg/plcy_e.html, accessed 10 September 2008.
- Leo Waisberg & Tim Holzkamm, "Traditional Anishinaabe Governance of Treaty #3", working paper (2001), p. 2; http://www.gct3.net/wp-content/uploads/2008/01/trad_gov.pdf, accessed 10 September 2008.
- Leo Waisberg & Tim Holzkamm, (2001), "Traditional Anishinaabe Governance of Treaty #3", p. 4; http://www.gct3.net/wp-content/uploads/2008/01/trad_gov.pdf, accessed 6 October 2008.
- Leo Waisberg & Tim Holzkamm, "Traditional Anishinaabe Governance of Treaty #3", working paper (2001), p. 3; http://www.gct3.net/wp-content/uploads/2008/01/trad_gov.pdf, accessed 6 October 2008.
- In the widest use of the term, the Grand Council includes national, regional and community councils.
- Constitutional symbols include drums, pipes and other sacred items, treated with due respect.
- Selection is made by traditional stand-up vote. When female, as in 2008 for the first recorded time, she is "the Ogichidaakwe".