TY - JOUR
AU - Johnson,, Miranda
AB - Abstract In settler states such as Canada, indigenous peoples’ claims for sovereignty in the late twentieth century became matters of intense public and political debate. Provoked by widespread indigenous rights activism of the 1970s, the Canadian state embarked on a large-scale examination of claims for rights and restitution. By focusing on the 1962 case of a duck hunter who insisted on his treaty right to hunt as he pleased in a Canadian borderlands region that was becoming more tightly woven into the fabric of the settler nation, this article argues for the value of recovering the discursive strategies of indigenous peoples in making sovereign claims prior to 1970s activism. I suggest that such claims were effective in bending the “settler contract,” which refers to the founding of settler states in dispossession and the silencing of indigenous actors. My approach brings to the fore a distinctive form of non-elite politics, what I call “treaty talk,” or the vernacular stories, civic rituals, and political disputes concerning the treaty promises that Canadian authorities made to northern indigenous communities earlier in the twentieth century. Although treaty talk did not break the settler contract, it posed a significant challenge to settler law and led one judge to reinvent a Canadian myth of benevolent empire. indigenous history, legal history, treaty-making, sovereignty, borderlands Michael Sikyea had not yet taken hold of his kill—a duck shot on a roadside pond in Canada’s Northwest Territories—when a passing police officer pulled him over and confronted him. As the bird floated to shore, the officer informed the sixty-one-year-old Dene hunter that he had broken the law. This ordinary act on a spring day in 1962 provoked a legal case of uncommon, if also underappreciated, effect. Sikyea was fined $10 for breaching Canada’s Migratory Birds Convention Act (1917), and his gun and the dead duck were confiscated.1 But Sikyea immediately insisted on his rights: “We Treaty Indians [can] shoot ducks any time of the year and at any place in the Territories,” he explained, first to the arresting officer and then again in the Yellowknife courtroom.2 His testimony traveled all the way to the highest court of the land in the nation’s capital, along with the stuffed mallard.3 (See Figure 1.) Figure 1: View largeDownload slide The female mallard that was shot by Michael Sikyea [n.d.]. This photograph is included in the Sissons/Morrow Collection of carvings commissioned by Justice Sissons to represent some of the court cases over which he presided. Images from the Sissons/Morrow Collection are reproduced with permission of the Supreme Court of the Northwest Territories. Figure 1: View largeDownload slide The female mallard that was shot by Michael Sikyea [n.d.]. This photograph is included in the Sissons/Morrow Collection of carvings commissioned by Justice Sissons to represent some of the court cases over which he presided. Images from the Sissons/Morrow Collection are reproduced with permission of the Supreme Court of the Northwest Territories. This was a transformative moment in settler colonial history, not only in Canada but in other Anglo settler states, too, including the United States, Australia, and New Zealand (sometimes referred to collectively as the “CANZUS” countries). In these places, recognition of certain rights of indigenous peoples in the late twentieth century challenged state sovereignty and forced a reckoning with the colonial past in ways unimaginable in previous decades. In the process of going up the court hierarchy, “the case of the million-dollar duck” disrupted the liberal assimilatory visions incorporating indigenous peoples into Canadian citizenship. Sikyea’s insistence on his treaty rights helped to generate and make public new accounts of identity and citizenship within his own community of Yellowknives Dene and shift national policy away from assimilation to the recognition of indigenous peoples’ rights. General accounts of indigenous rights and the challenge they have posed to state sovereignties, particularly in the CANZUS countries, underscore the global and transnational dimensions of such a discourse.4 However, we also need to grapple with the emergence of these transformative politics in terms of their local conditions of possibility and constraint. They were not born global but first erupted in sites of local and intense contestation. At the same time, taking their parochial formation seriously also means understanding how the indigenous actors involved, and even some settlers, understood these politics in internationalist terms as a dispute between sovereignties and the histories that explained and legitimized them.5 Moreover, the economic conditions for the intensification of political disputes were driven by the post–World War II global race for minerals; and over time, indigenous political leaders found support for their causes in the globally circulating language of self-determination and decolonization. A close examination of Michael Sikyea’s testimony and the legal case his sovereign action provoked yields all this and more. Sikyea reiterated stories about treaty promises made to his people that had been discussed and ritually embedded in northern communities for decades but were largely ignored by federal authorities. In the process, a distinctive form of non-elite politics, or “treaty talk,” came to have surprising political effects.6 “Treaty talk” refers to the vernacular stories, civic rituals, and political disputes concerning the treaty promises that Canadian authorities made to several indigenous communities in the north in the early twentieth century. Through the use of diverse sources, including legal testimony and case files, oral histories, photographs, and ethnography, we can gain a deeper appreciation for the significance of treaty talk, what it activated, and why it became significant at a range of political scales. Treaty talk created a distinctive and collective political identity, “Treaty Indian,” the term that Sikyea used to identify himself to the police officer and the court.7 This term is often used to denote the imposition of state sovereignty on indigenous peoples.8 From the perspective of state administration, the term refers to the particular status of those indigenous peoples whose nations signed treaties with colonial authorities and later became wards of the state. “Treaty Indians” like Sikyea were subject to the Indian Act, first passed in 1876, which regulated indigenous peoples’ lives in terms of the specific benefits they received and the limits on their enfranchisement. Until 1960, following the passage of the Canadian Bill of Rights, which promised universal equality, indigenous peoples governed by the Indian Act could become full Canadian citizens only by giving up their Indian status.9 However, limiting an understanding of “Treaty Indian” to its construction by settler power misses the ways in which indigenous peoples asserted the status to mark their own authority and citizenship and the distinctive rights they associated with that political claim. This historical understanding merits close attention because, as Anishinaabe/Ojibway legal scholar John Borrows argues, “Aboriginal culture is not static and . . . it develops and re-develops through a wider variety of interactions than is recognized in conventional narratives of citizenship.”10 Identifying an indigenous discourse of treaty talk and associated political identities is critical if we want to understand why and how unequal colonial treaties came to have a second life in settler states. Even in Australia, where no official colonial treaty was signed, the idea of a treaty as potentially recognizing indigenous sovereignty and history is today a matter of prominent debate.11 Treaty talk distinguishes “post”-colonial politics in the CANZUS states—places where the settlers did not go home and where there was no rupture with the colonial past—from postcolonial politics in other former British colonies where colonial treaties were made but do not bear the same political import in decolonized circumstances. With respect to the treaty port system in China or the treaties made with the princely states in India and with African polities, those colonial documents became symbols of oppression or were marginalized from anticolonial political conversation.12 In settler states they carry immense political promise and are even referred to as “covenants” whose “spirit” goes beyond the written words, and which bear a “sacred” meaning.13 The history of treaty-making in North America has spawned a huge scholarly literature, much of it critical of the ways in which colonial authorities at the time of treaty-making or subsequently defrauded indigenous signatories, failed to keep promises, and ignored the needs and wishes of indigenous peoples once they were relocated to reservations. Treaty-making was one of several “instruments of empire,” wrote Lumbee legal scholar Robert A. Williams in The American Indian in Western Legal Thought, his groundbreaking critique of the “discourses of conquest” in North America.14 In these accounts, treaties are historical examples of the “settler expropriation contract.” This concept in political theory was formulated by Carole Pateman to explain how settler societies were founded in the dispossession of indigenous peoples as settlers staked out their own political identities at a distance from imperial metropoles, and how they then silenced the dispossessed in settler national narratives of progress.15 As is explored in the literature known as “settler colonial studies,” the settler contract underwrote a trans-historical and trans-geographical phenomenon, driven by economic and cultural logics of elimination by which settlers sought to replace native peoples on their own lands and then erased them through processes of assimilation.16 This theory of settler colonialism, associated in particular with the work of the historian Patrick Wolfe, has in turn become the subject of critique for its flattening effect on different spaces of settler colonial endeavor, its failure to account for the historical limits of settler colonialism, and its inattention to indigenous agency and historicity.17 We can have it both ways. The agency and historical consciousness of indigenous peoples was structured by settler colonialism in its various and changing formations. But indigenous peoples’ acts, their sovereign claims, and their historical understandings also disrupted colonial logics. By drawing on key insights of “borderlands history,” particularly, as Pekka Hämäläinen and Samuel Truett argue, the resistance to master narratives and nation-state teleologies, we can throw light on the importance of what happens at the margins.18 Borderlands scholarship is more commonly concerned with much earlier periods of time, when encounters between natives and newcomers were rich with possibility as well as etched with violence, and before the hard borders of nation-states had disciplined subjects in more thoroughgoing ways.19 Using this approach to explore what happens at the edges of state law highlights contestations of the “nation-state” even at its apparent high-water mark. By recovering a history of subaltern treaty talk and its encounter with Canadian common law, we can see how a settler social contract began to bend. This approach also pushes back against the violent logic of the legal archive that marginalizes or even disappears some claims because of their lack of pressing juridical impact.20 Canadian legal historians have referred to “the case of the million-dollar duck” only in passing.21 Yet even its colloquial naming tells us something very important. The name refers to what the case was purported to have cost the federal government, which, implementing new policy, even paid the cost of the defense.22 This highlights a moment in the early 1960s when settler legal spaces became more open to the hearing of indigenous claims. In the decades to come, a few “minor” cases became an avalanche as Aboriginal people brought hundreds of claims of treaty breach to specially designed commissions; litigated court cases about land, hunting, and fishing rights; and entered into new treaty negotiations with provincial and federal governments across Canada.23 Redress and recognition of claims is a multi-billion-dollar issue, and the process of legal claiming has stimulated wide-ranging scholarship, both that specifically mounted in the context of individual claims themselves, and more generally as scholarly consciousness of indigenous peoples and their particular histories has increased. This mammoth legal and political transformation and its consequences for scholarship invite us to examine reflexively the making of borderlands histories in the borderlands of history, particularly where the discipline overlaps with anthropology and law in the service of addressing claims.24 However, this productivity has not come without cost. Scholars, often those who work with indigenous claimants or are themselves members of communities subject to claims, have mounted sharp critiques of how this “politics of recognition” has newly burdened indigenous peoples.25 This is so not simply in financial terms, but more in terms of demanding that they present oppressive versions of an authentic “Indianness” that is frozen in time.26 Forced into demonstrating continuity of self and attachment to land in order to win new economic and political opportunities not only limits more complex expressions of identity; it has also generated painful community conflicts about who really is indigenous.27 Weledeh Yellowknives Dene political theorist Glen Coulthard advocates the rejection of state processes of recognition and a turn inward, to attend to indigenous peoples’ own understandings of themselves, their identities, and their cultures.28 If we assume that the terms of an ongoing and asymmetric negotiation between settler and indigenous sovereignties are unsettled, historian Philip J. Deloria’s method of identifying the “unexpected” in alternate archives is particularly useful. Puncturing the effects of an assumed and hegemonic notion of where indigenous people belong in time and space (that is, in the mythic past and outside the domain of modern politics), Deloria’s method helps us to identify and analyze the multidimensional and heteroglossic nature of legal encounters such as this one.29 In the legal encounter involving Michael Sikyea, two unlikely protagonists—the duck hunter and “Treaty Indian” and a white paternalist judge, John (Jack) Howard Sissons—did not come to understand each other fully; nor did they create a new “shared” history. Sikyea pressed his understanding of treaty and what it meant to be a Treaty Indian into the legal archive. Sissons, responding to these assertions, translated Sikyea’s assertions into common law idioms and myths. He did so through the lens of his own settler colonial fantasies of “Indian” life, in the process eliding the very processes of modernization that made Sikyea’s assertions necessary. Placing this encounter in the larger context of political, social, and economic transformation in Canada’s north makes it possible to examine in fine detail the multiplying and unanticipated effects of conflict between indigenous and settler state sovereignties as these played out in legal institutions, and which continue to generate sharp debates today. The thirty-year period from the 1950s to the 1980s was one of momentous political and social change in Canada’s Northwest Territories. In the early 1950s, the Northwest Territories was still largely native space, with a majority indigenous population of around 12,000 out of a total of 16,000.30 A few roads, built primarily by occupying American forces during World War II, connected some settlements, but many were reachable only by plane; there was no court in situ, and the government of the Territories met in Ottawa, more than 3,000 miles from Yellowknife, which did not become the official capital until local self-government was established there in 1967. By the 1980s, the population of the Territories had tripled to around 46,000 (25,000 of whom were indigenous), and it was a hotspot of political debate.31 In 1975, a new political institution and identity was born: the Dene Nation. Also based in Yellowknife, the Dene Nation claimed to represent most indigenous peoples in the north except Inuit. (In 1992, the Arctic region of the Territories became the Inuit-governed province of Nunavut.)32 The 1970s witnessed sharp conflicts between the Dene Nation and the Canadian government over the building of a proposed gas and oil pipeline that would connect Arctic reserves with southern markets. In 1977, the most expensive commission of inquiry to date in Canada’s history, known as the Berger Inquiry, issued recommendations for a moratorium on the project until the land claims of indigenous inhabitants were settled. This commission forced the federal government, along with the Territories government, to engage in land and treaty rights negotiations with First Nations. Few of these changes, particularly the politicization of the north’s indigenous peoples, were anticipated by southern settler authorities in the late 1950s, when the Canadian government began its new program of northern economic transformation. Incorporated into the Dominion of Canada in 1870 without the consent of indigenous inhabitants, Canada’s north was long imagined by whites as a space of frontier exploration and encounter, but not development.33 In a speech at the opening of the 1958 federal election campaign, Progressive Conservative prime minister John Diefenbaker committed his government to the development of Canada’s “northland” in nationalistic terms, as international competition with the United States and the USSR for Arctic oil resources intensified in the Cold War climate.34 In the service of mining-led colonialism, the north was reimagined as promising new extractive opportunities. The idea of the north as a resource frontier was not new; however, in contrast to the gold rushes earlier in the century and the fur trade, which had touched some parts of the north and was dependent on indigenous intermediaries, post–World War II mining and development projects were underwritten by extensive government resources for infrastructure. Conjured as an extension of “one Canada,” Diefenbaker’s vision was made possible by massive post–World War II capital investment and scientific expertise. The role and status of indigenous peoples in the realization of this “nordicizing” vision was not clearly delineated, other than through polices of assimilation by which they would leave behind their “primitive” ways of life and become full Canadian citizens.35 Policies of assimilation in the north provoked new indigenous politics, including the creation of the Dene Nation, which in its 1975 declaration asserted the right of self-determination.36 However, a narrative that jumps from government-led relocations of subsistence communities to permanent settlements—where indigenous peoples could access year-round schooling and employment and receive regular medical attention—to the making of new activist organizations such as the Indian Brotherhood of the Northwest Territories (formed in 1969) misses a key site of sovereign struggle in the 1950s and 1960s, before the language of self-determination and indigenous rights was widely used by indigenous peoples. This is the conflict between indigenous peoples and settler (particularly federal) authorities over the right to hunt. A number of explanations can be supplied for the emergence and increasing bitterness of these conflicts. Indigenous hunters and trappers insisted on their right to continue resource-harvesting both for their own cultural and social reasons and in order to sell furs to supplement their small incomes. Settler authorities aimed to curb these activities, sometimes for stated reasons of conservation management, or under pressure from white game hunters, or because of safety concerns. However, more was at stake that helps to explain why some settler authorities sought to enforce older laws like the Migratory Birds Convention Act even if and when it was not clear that species such as mallards were at risk: sovereignty and the basis for claiming political authority.37 Environmental historian John Sandlos has convincingly demonstrated that the management of large game (bison, muskox, and caribou) in the mid-twentieth-century Canadian north was not simply an exercise in scientific conservation. It was in fact about the imposition of what legal historian Lisa Ford has termed “settler sovereignty”—the unilateral extension of jurisdiction over a territorial domain.38 This imposition played out quite distinctively in the north, which was not suitable for agriculture, as compared to the prairie provinces, where settlers wanted indigenous peoples’ arable land. “The trappings of modern statecraft” were imposed on northern Canada, Sandlos argues, through wildlife conservation polices.39 Administrators argued that large game needed to be protected from indigenous hunters, whom they characterized as corrupt, wasteful, and unruly. Thus indigenous peoples experienced “an erosion of sovereignty over wildlife.”40 The attempt to impose unilateral territorial sovereignty was at stake in efforts to regulate and enforce laws about small game hunting, too, including duck shooting. However, this attempt to supplant indigenous authority with the authority of the settler state was concertedly and quite effectively resisted by local indigenous hunters. Asserting their sovereign rights, indigenous hunters repeatedly questioned settler laws that attempted to stop them from shooting ducks, in particular. They continued to shoot ducks. And they drew attention to their understanding of promises made in historical treaties that they believed recognized their ongoing rights to hunt and trap whenever they chose. Indigenous hunters consistently refused to obey the migratory birds legislation in accordance with which Michael Sikyea was arrested. This act protected several breeds of duck—as well as a host of other migratory species that, in the early twentieth century, were considered to be gravely endangered. The Canadian act ratified a treaty that Canada had made with the United States in 1916, which had been brought into being in large part due to the activism of Progressive Era environmentalists. For environmental historians, this treaty marks the beginning of “international environmental diplomacy” in North America, and it was hailed by environmentalists at the time and subsequently as highly successful in protecting several endangered bird species.41 However, both the treaty and the subsequent legislation were largely silent on the right of indigenous hunters to kill migratory game birds, including ducks.42 As indigenous people pointed out, the “international” diplomacy on which the legislation was based had not involved any consultation with them, and therefore it did not regulate their actions. Around the time of Sikyea’s arrest, another Dene man, also arrested for breaching the migratory birds legislation by shooting a duck, was purported to have claimed that the law did not apply to him. Asking pointedly, “Did the Indians sign the treaty [i.e., with the United States]?” this hunter received a reply in the negative. “Then,” he continued, “we shoot the ducks.”43 Sikyea likewise ignored the legislation and its enforcement. When his legal case went into appeal in late 1962, his lawyers were unable to notify him, as was required, because he was out hunting again (despite the fact that his confiscated gun had not yet been returned).44 Hunting, trapping, and fishing were core to these men’s identity and the reinforcement of their social and economic roles. Michael Sikyea, who was widely recognized according to another witness as “quite a hunter and trapper,” explained in the first hearing of his case that “the only way I look after my family is fishing and hunting.”45 His actions bore out his words. In 1959, Sikyea had been hospitalized for tuberculosis—a common experience for northern indigenous peoples—yet he was back hunting as soon as he was released in 1961.46 He explained in court that he had “not earned a cent” since returning from the sanatorium in Alberta. When Sikyea was arrested for shooting the duck, which he planned to eat himself, he was on the way to his traplines; he intended to trap muskrats for a couple of weeks and then sell the pelts back in town.47 Underscoring the importance that was placed on hunting within his kin network, Sikyea’s son-in-law explained to the court that his elder “didn’t have any grub at home so I brought him flour, bacon and [shotgun] shells.”48 The community to which Sikyea belonged likewise defined themselves and their world in relation to seasonal subsistence and resource practices.49 The traditional area of the Weledeh Yellowknives Dene ranged from the Great Slave Lake (where Yellowknife is located) north to the Coppermine River, along which they journeyed to hunt caribou in winter, and east as far as the Thelon River, where they traveled to summer fishing camps. In the local dialect, Tetsǫ́t’ıné, which translates as “metal or copper peoples,” were known for the pots, knives, and other implements they produced from the metal deposits in their territory, which also attracted gold diggers and mining companies to their lands in the twentieth century.50 By the late nineteenth century, Dene people, including some Yellowknives, were involved in the fur trade as it extended north. Trading posts as well as mission stations, mostly run by Catholic priests beginning in the 1860s, became new focal points for communities, though Dene continued seasonal activities. However, by World War II, the fur trade economy had largely evaporated.51 In the 1950s, many Yellowknives relocated to one of the two permanent settlements established for them on Latham Island (now N’dilo) and Dettah (also Detah), both close to the growing administrative center of Yellowknife. Sikyea, born around 1900 and raised in Fort Resolution south of Yellowknife, where he was looked after by priests after his parents died, moved with his family around this time to government-provided housing on Latham Island. He worked for a while in one of the new gold mines. When it became clear that the mines were polluting the area with arsenic, which was affecting wildlife and berry harvesting and had already killed at least one child, Sikyea’s community mounted considerable protests seeking redress. By then a respected community leader, Sikyea petitioned the government on the issue in the 1970s.52 Figure 2: View largeDownload slide Michael Sikyea holding a filleted fish in a camp setting, 1970. Photograph by Bill Braden. NWT Archives/Michael Sikyea collection/N-2004-016: 0003. Figure 2: View largeDownload slide Michael Sikyea holding a filleted fish in a camp setting, 1970. Photograph by Bill Braden. NWT Archives/Michael Sikyea collection/N-2004-016: 0003. As wildlife populations around large settlements like Yellowknife declined and federal authorities tried to extend the rule of law as quickly and efficiently as possible, indigenous people experienced the challenge to their sovereignty over the hunt that Sandlos analyzes. The fact that there were very different understandings of hunting rights also became clearer. A high-ranking civil servant in the Department of Northern Affairs and National Resources and a northern frontier booster, R. A. J. Phillips, recommended “leniency” where “actual need” for subsistence could be ascertained, but he observed that exercising this kind of discretion was poor policy and could not be followed in the long term. When the new highway was built connecting Fort Rae and Yellowknife, he worried, “any contraventions of Migratory Bird Regulations would be open to the view of the general public,” offering a clue as to why Sikyea might have been apprehended on that highway a few years later.53 Although it is not clear whether the officer who arrested Sikyea had been specifically advised to enforce the Migratory Birds Convention Act, the road was a place where Sikyea was visible to the police officer and to the general public, who were subject to hunting restrictions. This modernizing infrastructure literally brought indigenous people into new networks of power and scrutiny.54 In this colonial context, Dene protested their right to hunt as a matter of urgent and existential necessity. Dene people also insisted on a specific moral claim. This was simply that the promises made to them in historical treaties earlier in the twentieth century be kept. These treaties included a clause stipulating that signatories retained the freedom “to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered.”55 Dene interpreted this as a promise that they were free to continue their seasonal activities according to their own law. However, settler authorities—particularly at the federal level—dismissed the significance of the clause, given that the treaty documents also included the qualification that hunting rights were “subject to such regulations as may from time to time be made by the Government of the country.”56 In any case, as one Dominion Wildlife Service official asserted in 1948, treaty promises about hunting rights no longer matched conditions on the ground. “Indians,” he believed, should be educated instead about the importance of scientific game management.57 Northern indigenous peoples had reason to believe that it was their interpretation of the treaty that mattered. At a “chiefs’ meeting” at Fort Smith in 1957, leaders said they had been told repeatedly that they could continue to take “any game they needed throughout the year.”58 Several Indian agents in the Northwest Territories viewed the subsistence needs of local people as more important than upholding federal law and often deferred to customary practice. This approach was acknowledged in the first court hearing regarding Sikyea’s conviction in 1962. During cross-examination of the hunter, he said a game warden had told the “Indians of Yellowknife” that they were “free to shoot ducks.”59 The white superintendent of the Yellowknife Indian Agency, which had responsibility for Sikyea and his family, confirmed that this was the case. Although the families under his administration were provided various forms of government welfare, including food, firewood, and clothing, he explained that it was “the custom to encourage them to hunt for food if they can.”60 Furthermore, at least one Indian agent agreed that hunting rights were guaranteed by the treaties.61 To understand indigenous peoples’ firmness of belief in the treaties and what they promised, we need to explore further the story of treaty that Sikyea drew on and repeated in the Yellowknife courtroom in 1962. This story disrupted Diefenbaker’s unifying vision of “one Canada” and began to force an acknowledgment of indigenous peoples’ claims, thereby bending the settler contract. The colonial architects of unequal treaties with indigenous peoples did not anticipate that these expropriation contracts would become the basis for sovereign claims. They certainly did not envisage the extensive legal cases and settlement negotiations between First Nations and the state of the late twentieth century regarding treaty promises. Even as late as 1946, T. R. L. MacInnes, an Indian Affairs bureaucrat in Ottawa, explained that while treaties had imposed “an ethical and moral obligation” on the federal government, they were coercive and unlikely to survive the increasing enfranchisement of indigenous peoples in the postwar world.62 MacInnes referred to the particular legal entailments of treaties in Canada, and how they were perceived as turning their signatories into wards of the state, ignoring the local indigenous understanding of treaties and the effects of treaty talk. The specific treaties to which Sikyea and his community referred, Treaty 8 and Treaty 11, certainly exemplify many characteristics of the expropriation contract. They were among the last of the so-called “numbered treaties” in Canada that “opened up” the west and parts of the north to settler farmers and miners.63 Unlike earlier trade or alliance treaties, these late-nineteenth-century agreements—written ahead of negotiations on the ground, according to a template, and reproducing many of the same clauses in vastly different regions—required signatories to cede their rights to extensive tracts of land. The boundaries of these tracts bore little relationship to traditional territories, however; signatories could continue to hunt and fish in surrendered areas until such lands were taken up for development. In return for land surrender, “Indian bands” received small payments in kind, treaty annuities, and reserve lands. The first signing of Treaty 8 was in 1899, in the wake of the Klondike gold rush, as thousands of miners headed west.64 The treaty commissioners determined that only communities directly in the path of the miners should be consulted, negotiations that included Sikyea’s natal community of Fort Resolution, the oldest Hudson’s Bay Company fur-trading post in the Northwest Territories, but not the Dene communities farther north. Treaty 11 was hastily executed during the summer of 1921, following an oil strike at Fort Norman, then rushed around the Mackenzie Valley, to those communities who had been excluded from the Treaty 8 negotiations. In both cases, “chiefs” were expediently appointed, sometimes under duress, for the sole purpose of signing the treaty. As Treaty 11 commissioner H. A. Conroy admitted in his final report, “The Indians seemed afraid, for one thing, that their liberty to hunt, trap and fish would be taken away or curtailed.”65 Treaty terms were translated from English into Athabaskan languages by Métis interpreters with questionable accuracy, according to some who were there. Oblate bishop Gabriel Breynat, one of the members of the Treaty 11 party, complained that the written terms “were prepared in advance to be imposed upon [indigenous people] rather than freely discussed in a spirit of reconciliation and mutual concessions.”66 Reserve lands were included in these treaties, as in other regions of Canada, but they were never laid out in the Northwest Territories, partly because of the resistance of indigenous northerners to them, and also because the north was not suitable for agriculture, and so their lands were not explicitly expropriated. The failure to establish reserves prompted a commission to look into the issue in 1959. The commissioners recommended against creating such reserves belatedly since they believed that “Indians” were being incorporated into the mainstream economy anyway. Awarding reserve lands would only, the commissioners believed, prolong their condition of wardship.67 However, Sikyea’s self-identification as a “Treaty Indian” and his insistence on his treaty rights point to another interpretation of treaties made by indigenous peoples themselves. This understanding contested the notion of treaties as expropriation contracts. Like others in the Territories, Sikyea saw himself as bearing a collective identity, shared with those who remembered, transmitted, and exercised the promises made to them in treaty. In an interview about the duck case on a local radio station in 1962, he emphasized that the law established in the treaty negotiation could not be undone by subsequent laws: “the law what is signed right now [in the treaty negotiation] is going to be forever. That’s what they promise us.”68 In court, he recalled that “when they [were] first talking about these closing seasons, you know, the Indians didn’t want closed seasons.” Treaty officials “said we could hunt anytime, any place, where we could kill anything,” so they signed.69 Indeed, adding further weight to his story, he claimed that he had interpreted for treaty commissioners at Fort Resolution during the negotiation of Treaty 11 in 1921, though today Yellowknives Dene are included in current Treaty 8 negotiations rather than those under Treaty 11.70 Most significantly for local people, both treaties included a clause concerning indigenous peoples’ ongoing rights to hunt, fish, and trap. In his court testimony, Sikyea insisted that his leader, Joe Susie Drygeese, who had been present at the negotiation in 1900, was certain that indigenous peoples’ liberty to hunt had not been curtailed. Yet promises regarding hunting, made “on the Queen’s [i.e., Victoria’s] word,” as other leaders recalled, were not kept as the government began to impose game restrictions.71 By the time Treaty 11 was brought north, indigenous peoples were already so concerned about the curtailment of their hunting rights that Conroy had to admit that he had worked hard to assure them “that this would not be the case.”72 Following the making of the treaties, the government began imposing restrictions on hunting and trapping. Along with the threat posed by the exploitative activities of non-indigenous trappers, Dene were alarmed by the decline of game and access to it. In the 1920s, leaders successfully pressured the Canadian government to create a number of game preserves where indigenous hunters could be free from regulation and competition, adding further weight to their belief that their understanding of treaty mattered.73 Sikyea’s insistence on his “Treaty Indian” identity as recognizing his community’s authority to continue in their hunting practices echoes American historian Alexandra Harmon’s idea that treaties are “modern origin stories” for many indigenous nations.74 The story of treaty that Sikyea reiterated in court correlates with statements of other Dene people around the same time, demonstrating a kind of collective treaty talk that helped to produce this story and embed the identity of “Treaty Indian.” The main features of treaty talk included an insistence on hunting rights, a belief that the government had promised to protect Treaty Indians and provide them what they needed, and the contention that such promises should be unbreakable since they were guaranteed by the Crown. Dene leaders laid out clear expectations about treaty promises in frequent petitions to the federal government. A file in Library and Archives Canada in Sikyea’s name, titled “Indian Village Yellowknife,” includes an unsigned typed petition addressed to the government in 1965, asking it to “remember [its] promises at the first Treaty to let us [be] free to hunt and trap in our land.” The petition continues, “We would like the Government to help us with housing. As we live in a cold country where the winter is long, we would like the Government to provide us with means for hauling our wood—like tractors and trucks.”75 A brief signed by Chief John Lamalice of the council of the Hay River Slavey Band in the same year claimed even more extensive benefits for both Treaty Indians and Métis in the settlement. This included a guarantee of a “minimum price for furs” and the resumption of distribution of free nets and ammunition at the annual treaty payments.76 Chief Lamalice’s brief called attention to another institution key to the transmission of treaty stories and the making of a “Treaty Indian” identity in the north: the annual “Treaty Days.” These were an important social occasion in early summer, after men had returned from their traplines, when communities came together to celebrate and receive their individual $5 annuity from Royal Canadian Mounted Police (RCMP) officers. Oral histories carried out in 1984 with elders at Fort Resolution highlight the coming together of people from different communities to “get treaty” and receive rations: “one cup of bulk tea, a narrow piece of bacon, a little bit of flour, rolled oats and a little bit of powder to make your own shells,” as one elder recalled.77 Photographs show groups gathered under tents or around schoolhouses waiting to receive their payment, playing hand games, and even lining up for x-rays and medical tests. Treaty Days presented an opportunity for indigenous communities to critique government policies at face-to-face meetings with government officials and RCMP officers, particularly regarding the regulation of hunting and trapping. At times these occasions even became the site of protests, such as when Fort Resolution leaders “went into open revolt” in 1920 about an earlier duck hunting case.78 Others boycotted Treaty Days on occasion, again often because of hunting restrictions.79 By the 1960s, Treaty Days had become an established civic ritual. Anthropologist June Helm, who had worked primarily with Dogrib people since the early 1950s, provided an evocative description of a treaty festivity at Fort Rae in 1962. After the food was served, Chief Jimmy Bruneau addressed the community, reminding them of the treaty custom, thanking those who had donated food, and ending his remarks “with a prayer admonishing the people to think of the Virgin and to pray that they would have the same things again, year after year.”80 Figure 3: View largeDownload slide Dene men gathered for Treaty Day at Fort Resolution, ca. 1924. Indian and Northern Affairs, Departmental Library Albums, Libraries and Archives Canada, accession number 1973-357 NPC, copy negative PA-102601. Figure 3: View largeDownload slide Dene men gathered for Treaty Day at Fort Resolution, ca. 1924. Indian and Northern Affairs, Departmental Library Albums, Libraries and Archives Canada, accession number 1973-357 NPC, copy negative PA-102601. The Treaty Indian identity was not simply the product of an administrative category. Treaty talk was an expression of local sovereignty that indigenous peoples believed was recognized in the treaties, a belief that was structured into the ritualized Treaty Days celebrations, which provided a sense of continuity and a framework for expectation. As legal historian Mark Walters has argued for an earlier period, this sense of “law” (as Sikyea emphasized) entailed the blurring of indigenous kinship practices with those of a paternalist state.81 So long as that state was largely experienced in distant terms, the local understanding held firm. However, the identity of Treaty Indian was increasingly challenged as white settlement increased and settler sovereignty was more forcefully imposed in the 1950s and 1960s. In response, ideas about treaty rights changed, and the Treaty Indian identity was folded into new claims. The duck case is a turning point in the dissemination of Dene peoples’ treaty stories. After this case, treaty rights became connected to broader claims for territorial, political, and cultural rights. Prior to this time, treaty stories were not focused on land rights. Indeed, there would have been little reason for land itself to become the object of concern and protest, given the low numbers of whites living in the region until the 1960s. Reserve lands promised in the treaty documents were never created and had been actively resisted when the treaties were first made. In a 1973 legal hearing, Helm, acting as an expert witness, highlighted the change in focus, attributing it to discussions provoked by settler officials. She said she remembered people often complaining about “restrictions on game and shooting of ducks and [they were] saying we were told that we would never have these restrictions and now we have got them . . . Then, in 1967 . . . I encountered . . . Dogrib friends who said they have started to talk about land and they are talking about putting us on a reserve and they said, ‘we can’t live like this, what is this,’ you know. They were expressions of distress.”82 In the same hearings, some indigenous witnesses began to express more uncertainty about what the treaties had established. A Métis man from Fort Simpson who had witnessed the signing of Treaty 11 in 1921 explained, “The Indians didn’t know what treaty was . . . [I]n the treaty book it says that you’ll be subject to the Law, and it says that after the Treaty you had to abide by whatever rules come along, but at Treaty time the Treaty party didn’t tell them that. It was still your country. The Treaty was more or less to keep peace in the family.”83 The case of the million-dollar duck pivots the political history of the Canadian north from stories of customary obligations forged between sovereign peoples to the opening of a rights-based future secured through legislative and constitutional recognition. With this opening up of settler law, treaties came to be regarded, at least by some members of the judiciary, as contracts that should be respected. As the appellate judge who reviewed the initial decision before it went to the Supreme Court of Canada argued, the duck case certainly raised a troubling question about the “breach of faith” with Treaty Indians.84 This was important because conceiving of treaties as bearing political authority required that indigenous treaty talk be taken more seriously than settler courts had done in the past. In turn, indigenous leaders and other supporters saw that settler law might become a space that could be pushed further open. Unlike anticolonial activists in other parts of the world who fought for nationhood through violence, indigenous nations in Canada and other settler states waged their campaigns in the courts, using settlers’ own “means of law,” to rephrase E. P. Thompson, to challenge injustice and, uniquely, press for renewed recognition of their sovereignty.85 However, the risks of taking claims to court also began to be felt; when treaties had been made in the past, as the speaker above put it, it was “still your country.” As indigenous peoples took their claims to court in the 1960s and 1970s, their capacity to assert sovereign independence in the context of settler law was called more sharply into question. Judicial support for Sikyea’s interpretation of treaty came from an unlikely quarter: an avowed “nordicist,” John Howard (Jack) Sissons. The first judge to preside over the Northwest Territories Territorial Court, Sissons was appointed in 1955, when he was already in his sixties. His old-fashioned humanitarian principles led him to oppose what he saw as a “colonial autocratic government.”86 However, he was not a figure one might immediately associate with 1960s liberal, anti-racist cosmopolitanism. Attracted northward by his childhood fantasies of life on the frontier, Sissons was born in Ontario, just twenty-five years after the incorporation of the Dominion of Canada, and raised a Presbyterian in Alberta, where he later worked as a lawyer and judge and briefly served as a Liberal member of Parliament in the early 1940s. In his memoirs, he claimed that he was always destined to live in the remote north.87 As a child, suffering a severe infirmity caused by polio, he had read avidly about the adventurer’s frontier, and his memoirs avow his love of hunting and trapping. He also claimed to be a relative of the Scottish hero and African missionary David Livingstone. “I felt the same affection for our Indians and Eskimos that Livingstone felt for the native Africans,” he explained in his memoirs.88 Drawing out a story of benevolent empire to reinforce Sikyea’s rights, Sissons made it clear from the outset of the initial hearings on the duck case, held in the Yellowknife courtroom above the post office in the early summer of 1962, that he was using the hearings to make a larger point. The case was a matter of importance for “all Indians,” he claimed.89 Sissons overturned Sikyea’s conviction on the pragmatic finding that the duck was probably domestic rather than wild and therefore was not protected by the act. In so doing, however, he strongly criticized the migratory birds legislation and affirmed Sikyea’s understanding of his right to subsistence practices as guaranteed by treaties. By the time Michael Sikyea came into his courtroom, appealing the conviction for shooting the duck, Sissons had already begun to earn himself a reputation for waging an explicit campaign against the federal Department of Justice.90 According to some lawyers who worked in Yellowknife at the time, Sissons was, controversially, pursuing a judicial crusade about indigenous hunting convictions.91 Nonetheless, the judge added a key component to the emerging discussions about treaties and their importance to the Canadian state as well as to indigenous people. Sissons argued that demands for the recognition of specific hunting rights were based in a broader political truth for which indigenous hunters themselves had been arguing: the sovereign rights of indigenous peoples.92 According to Sissons, the constitutional nature of Indians’ treaty and ancient rights meant that they should not be regarded as exceptions to the law of Canada. Nor were these rights similar to those awarded to linguistically or racially marked minorities that could be incorporated into existing settler law. In fact, Sissons proposed that these rights had existed prior to the coming of the settler state and were not created by it. The ancient customs of Indian people, in the judge’s interpretation, were foundational for the state’s condition of possibility, as recognized in treaty-making. In other words, they were social contracts between indigenous and colonial sovereignties. Figure 4: View largeDownload slide Judge J. H. Sissons with a Judge’s Note Book and some carvings by indigenous artists representing notable cases he had presided over [n.d.]. NWT Archives/Henry Busse fonds/N-1979-052: 2769. Figure 4: View largeDownload slide Judge J. H. Sissons with a Judge’s Note Book and some carvings by indigenous artists representing notable cases he had presided over [n.d.]. NWT Archives/Henry Busse fonds/N-1979-052: 2769. In order to make this argument stick, Sissons embedded the juridical argument for the recognition of “native rights” in both ancient common law traditions and imperial practice. Asserting that indigenous peoples had the right to hunt based on their own ancient customs, which had existed since “time immemorial,” Sissons argued that this right had been explicitly recognized in the Royal Proclamation of 1763, a claim he had already made in overturning the conviction of an Inuit hunter, Jimmy Kogogolak, for shooting a muskox in 1959.93 Responding to that decision, the federal Parliament had issued an amendment to the Northwest Territories Act that made all territorial legislation “generally applicable as laws of the federal legislature.” Outraged, Sissons searched for a new case that could create a legal precedent for the recognition of native hunting rights. He found it in Sikyea’s conviction.94 For Sissons, the 1763 proclamation offered the opportunity for retelling a story of empire—it was another “origin story.” Issued at the conclusion of the Seven Years’ War between Britain and France, the proclamation limited legal settlement in the thirteen colonies to the region east of the Appalachian Mountains, recognizing as “Indian territory” lands west of the proclamation line as far as the Mississippi. According to Sissons, the proclamation was a “Charter of Indian Rights,” evoking a time when indigenous rights were recognized by imperial powers.95 The interpretation of the proclamation as a basis for indigenous rights, which drew on nineteenth-century law, was taken up by other lower court judges in hunting rights cases in British Columbia and Ontario in the next few years.96 This uniquely Canadian interpretation of the proclamation as a “landmark” agreement recognizing the autonomy of First Nations is now embedded in scholarship and policy.97 However, historians in the United States have taken a more critical approach. There, the proclamation did not come to serve the purpose of re-founding indigenous-settler relations, and tribal sovereignty is recognized through other legal foundations. Pointing out that the proclamation established the Crown’s right of preemption in buying Native American land, legal historian Stuart Banner argues that it created a land monopoly controlled by colonial government. Further, it undermined tribal sovereignty through its provision allowing British forces to arrest anyone charged with a crime who fled to or committed the crime within indigenous territories. Such provisions extended British jurisdiction into areas that had not yet been colonized and began to erode the robustness of Native American tribes’ jurisdictional authority.98 Sissons’s mythmaking did not stop with the Royal Proclamation. In lending authority to indigenous interpretations, Sissons retrieved a much older image of the Crown. In other decisions, he often invoked the higher authority of the “Royal will and pleasure,” which he claimed was meant to protect indigenous peoples. This royal will, he implied, stood against the assumption that the settler state had exclusive jurisdictional authority over all the lands in its territory and did not need to consult with indigenous people about matters of importance to them. Again, Sissons’s thinking was picked up by other judges. For instance, in a dissenting opinion in the Supreme Court decision in The Queen v. George (1966) about another indigenous hunting conviction, this time in Ontario, Justice John Cartwright, who had been in communication with Sikyea’s lawyer about the duck case, opined that “the honour of the Crown” was at stake when “rights solemnly assured to the Indians and their posterity by treaty” were taken away.99 Cartwright cited Sir Edward Coke in an English case from 1613, in which the revered jurist argued that “if two constructions may be made of the King’s grant . . . then for the King’s honour, and for the benefit of the subject, such construction shall be made that the King’s charter shall take effect.”100 Interpretations of treaty clauses that favored indigenous understandings of them in order to maintain “the honour of the Crown” thus entered into settler legal discourse, though not on equal footing.101 Sissons’s decision had the effect he intended. The federal government immediately sought leave to appeal, and the case now became a matter primarily of legal argument. Seeking out Edmonton-based lawyer William (Bill) Morrow’s expertise in preparing for the next round of hearings in the Northwest Territories Court of Appeal, Betty Hagel, a local lawyer whom Sissons had asked to take the case initially, observed, “all the barrels are going to be wide open and everything is going to be thrown up on behalf of the Crown and, of course, they have access to a great many more sources of information than I do.”102 The Crown, represented by Mark de Weerdt, argued that the federal government had the exclusive right to legislate in respect of “Indians” and game laws. Federal legislation could abrogate rights guaranteed in “Indian treaties,” which were a different kind of instrument than the Migratory Birds Convention and could not be considered part of international law. Flattening the ambiguities and lived experience of “Treaty Indians” and the local recognitions of such identity, de Weerdt insisted that they were Canadian citizens, not members of foreign states. Rejecting Sissons’s argument about the 1763 proclamation, de Weerdt explained in correspondence with Department of Justice officials that the treaties had extinguished any remaining sovereignty. In any case, the proclamation was not a “Charter of Indian Rights” but rather a recognition of “the desirability of maintaining peace among the Indian Nations or Tribes . . . as far as possible in the manner of life to which they were accustomed, pending a just settlement of their claims upon the country and an adjustment to the claims of settlers and of the Crown itself.”103 In other words, it was an example of the settler contract, a means to the end of “quieting title to our lands,” as de Weerdt put it a year later.104 Morrow pushed back, arguing that the recognition of ancient hunting rights was a matter of survival. As Sikyea had emphasized in his testimony, he had killed the duck for food. “I don’t waste anything,” he said, refuting settler characterizations of indigenous hunting, and explained that he had not brought any other provisions with him for his trapping work.105 The federal government was obliged to extinguish hunting rights in express terms, Morrow argued, which it had not done in the Migratory Birds Convention Act, and could not “fetter” them at will. The intention of the act could not have been to breach faith. “It seems far more reasonable to suppose that the intention was, that in hunting for sport or commerce the Indian, like the white man, should be subject to laws which made for preservation of game [sic], but in hunting wild animals for the food necessary for his life, the Indian should be placed in a very different position from the white man, who, generally speaking, does not hunt for food.”106 However, Justice J. A. Johnson of the Court of Appeal of the Northwest Territories overturned Sisson’s judgment on January 24, 1964, reinstating Sikyea’s conviction. Agreeing with de Weerdt that it was well within the government’s power to pass legislation that breached terms reached with “Indians,” he found that Indian treaties were simply “promises and agreements,” not legally enforceable rights. Johnson also rejected Sissons’s argument about the constitutional nature of Indians’ hunting rights, as guaranteed in treaties and recognizable in common law. Instead, he viewed such rights as exceptions to settler law that would themselves have to be explicitly recognized by legislation, and this was currently not the case. Nonetheless, he did so with some regret, noting that the act did constitute a “breach of faith” and was hardly “a minor or insignificant curtailment” of treaty promises. Significantly, he did agree with Sissons’s interpretation of the Royal Proclamation as recognizing indigenous hunting rights.107 Sikyea’s lawyers appealed the Court of Appeal decision, arguing that the duck case raised constitutional matters that needed to be examined by Canada’s Supreme Court. They were buoyed, perhaps, by attention from around the country largely in support of Sikyea’s claim. Press reports took up the idea that Sikyea’s right to hunt was a matter of survival, though interestingly many reports claimed that he had shot the duck “for his family,” not solely for himself, as he had explained in court was in fact the case.108 Introducing the image of a needy family into the reporting added a note of sentimentality and made the issues at stake more recognizable to settler Canadians, who were similarly concerned about their families’ welfare. Inevitable punning headlines tracked the case’s trajectory—and the stuffed duck itself, which traveled to Ottawa as evidence: “Treaty Indian’s Duck Case Shot Down by Appeal Court,” read one; “Dead Duck Becomes a Live Issue,” proclaimed another.109 Having examined the legal arguments, the Supreme Court of Canada issued its decision on October 6, 1964. The court, represented by Justice Hall, upheld Johnson’s findings and took direct aim at Sissons’s application of the law. (In another of Sissons’s decisions that came before the court, Hall was even more explicit, saying that it was “not good law.”)110 However, some of Sissons’s reasoning based in his interpretation of indigenous history found its way into subsequent cases. These judges, with whom Sissons was in correspondence, shared the northern judge’s dislike of overweening federal authority and believed that recognition of hunting rights was a matter of higher justice. While the majority of the Supreme Court continued to find that the federal government had the power to abrogate treaty rights, some of the justices changed their minds. In another hunting case, Daniels v. White and the Queen (1968), Hall chastised “[t]he lamentable history of Canada’s dealings with Indians in disregard of treaties made with them.”111 Then, most famously, in 1973 he upheld the claim of Nisga’a people to their aboriginal title, a legal concept recognizing the rights of indigenous peoples who could show prior and ongoing collective attachment to particular territories. In Calder et al. v. Attorney-General of British Columbia, Hall referred to the “solemnity” of treaties made with indigenous peoples across Canada, including in the Northwest Territories. In agreement with the line of judges, including Sissons (he cited Regina v. Sikyea among several other hunting cases of the 1960s), who had affirmed the foundational importance of the Royal Proclamation, Hall observed that the 1763 proclamation was indeed a “Magna Carta.”112 While Hall may have considered that Sissons’s judicial activism created bad law, nonetheless his broader legal argument had finally found its mark. The case had opened a gap between what the federal government could do legally and the political implications of “breach[ing] its Treaty with the Indians.”113 Federal politicians responded immediately, debating how to reconcile wildlife management with treaty rights and proposing to establish an interdepartmental committee to investigate “inconsistencies.”114 As the Liberal Party’s minister for citizenship and immigration, René Tremblay, admitted in parliamentary debates in 1964, the case raised complicated issues about the nature of Indians’ hunting and fishing rights.115 Arthur Laing, the minister for northern affairs and development, referred to the “law” of treaty, giving credence to indigenous interpretations, and asked what respecting this law might entail while protecting bird species given “the efficiency of modern firearms.”116 Across the House, a Social Credit (conservative) member from Québec argued that treaty rights issues should be negotiated between the provinces and indigenous groups, as “we are proceeding swiftly toward the emancipation of Canada and, at the same time, toward the recognition of the Indians’ rights.”117 In 1966, the Liberal government passed new migratory birds regulations that included special provisions for indigenous hunters.118 With Morrow’s encouragement, Eugène Rhéaume, the first Conservative Métis member of Parliament, representing the Northwest Territories, petitioned the Exchequer Court for compensation for the abrogation of treaty rights. For the first time, this petition included reference to the return of “Indian lands.”119 However, the government asked the petitioners to wait until it had established an Indian Claims Commission with the power to inquire into treaty grievances—along the lines of one that had been operating in the United States since 1946. It would be another five years before such an institution began operating in Canada, opening the floodgates to thousands of claims of treaty breach.120 Finally, in 1982, Sissons’s radical notion that indigenous peoples enjoyed distinct constitutional rights was recognized in Section 35 of the Constitution Act of 1982, an event that Sissons, whom Morrow would later label a member of a tradition of “pioneer judges,” played a role in making possible.121 The epithet referred to those who “had come to the frontier as pioneers in the law just as others had come as pioneers on the land,” and who administered the law based on their perception of local custom and practice that aimed to make the law “coincide with what is just.”122 The story of just and benevolent empire that Sissons crafted did help to bring Sikyea’s claim to the notice of federal Parliament and beyond, and inspired conversations about treaty and hunting rights in particular. A close analysis of the legal case demonstrates that the sympathy of judges such as Sissons and Morrow, along with a number of other white male judges of the period, was significant in gaining recognition of what would come to be called “indigenous rights.” This sympathy was based in these men’s own Rousseauian fantasies of frontier life. The power of hunting, fishing, and trapping to symbolize the simplicity and moral virtues of life far from the centers of national politics and global markets structured the ways they heard the stories told to them and the law stories that they produced. Making that thinking possible and necessary were the dynamic and insistent struggles of Michael Sikyea and other hunters, fishers, and trappers who claimed that recognizing their treaty rights was a matter of justice and sovereignty with which the Canadian state had to reckon. As treaty stories became tied to claims about land rights in the 1970s, they became reconceptualized in the global terms of nationhood and self-determination. This reframing was spearheaded by the new regional organization created in 1969 to represent indigenous peoples across the north, the Indian Brotherhood of the Northwest Territories. Modeled on southern Canadian activist groups, the Brotherhood launched a number of new initiatives. These included collecting oral histories for legal evidentiary purposes, and in order to place these memories on the record for future generations; and mounting legal campaigns against the state.123 The Brotherhood did not reject older claims or identities; Treaty Days continued to be celebrated by local communities even in the Brotherhood’s own hall. But they did pursue claims on a much larger scale. In response to the proposal to build an oil and gas pipeline in 1972, the Brotherhood pursued what they now framed as an aboriginal land title claim to a massive 400,000 square miles of land. In Re Paulette and Registrar of Land Titles (1973), sixteen chiefs and Justice Bill Morrow—he had taken over Sissons’s role on the bench after the latter’s death in 1969—forced the government to reckon with their assertion of territorial rights.124 The case provoked the federal government to create one of the largest and most complex commissions of inquiry into the environmental effects of the proposed pipeline and the rights of indigenous people to that point in Canadian history, which was presided over by Thomas Berger, himself a veteran of the Calder case.125 This moment of legal strategy and public hearing was a crucible for Dene political identity. “Treaty Indians” became members of the “Fourth World,” a term coined by another indigenous Canadian leader, George Manuel, to express the distinctive demands of minority indigenous peoples in majority settler states for the status of nationhood.126 As the Berger Inquiry got underway, in 1975 the Indian Brotherhood declared the “Dene Nation,” asserting its right to self-determination and repudiating the impositions of the Canadian government. “We . . . insist on the right to be regarded by ourselves and the world as a nation,” avowed the declaration. “And as the peoples and Nations of the world have come to recognize the existence and rights of those peoples who make up the Third World the day must come and will come when the nations of the Fourth World will come to be recognized and respected. The challenge to the Dene and the world is to find the way for the recognition of the Dene Nation.”127 Today the term “First Nations” is commonly used by indigenous peoples across Canada. Sikyea’s own community is officially known as the “Yellowknives Dene First Nation,” and they have crafted a history for that assertion of nationhood. Their published account highlights founding figures such as the nineteenth-century leader Akaitcho, or Akeh-Cho, famed throughout Canada for saving the life of British explorer John Franklin in 1821.128 Akaitcho is described as a hero who forged a peace agreement with another Dene leader, the Dogrib man Edzo, following war between them, and the agreement is recalled in the Yellowknives Dene account as a basis for the present-day Akaitcho Tribal Corporation.129 The corporation, which comprises three communities in the area, was established in 1992 “to remind Canada and the Government of Northwest Territories . . . that there was never a surrender of traditional lands and sovereign status by our Dene forefathers under Treaty 8,” and to pursue a treaty land entitlement claim.130 This identity history demonstrates the capacity of Dene peoples to negotiate their own political order and claim their own citizenship outside the hegemonic terms of the settler state, which is crucial as they assert self-determination.131 In becoming a key site for the creation of historical knowledge and identity, state law and political institutions imposed new constraints. The selection of local historical experiences and stories in order to translate claims into the abstracted terms of rights proceeded according to the normative interpretations and expectations of legal actors such as Sissons and Morrow. Their glorification of simple virtues depended on the erasure of indigenous experiences of economic development and social adaptation from their legal tales and an almost exclusive focus on the actions of men. Recuperating documents such as the Royal Proclamation as a founding charter meant that such tools of empire were not critically examined. Yet they were also moved by these encounters, as were other whites who became entangled in this legal-historical enterprise. In the 1970s, a small army of white anthropologists, political scientists, lawyers, and others headed north to offer expertise to Dene and other self-determining peoples and to write about what was going on, a journey that was predicated on colonialism and that threw up considerable challenges to their self-conceptions. As Berger simply and effectively explained in his best-selling inquiry report in 1977, the north was a homeland, not just an extractive frontier. Taking account of this would demand “a fundamental re-ordering of [indigenous peoples’] relationship with the rest of us,” he asserted, continuing, “[Dene] claims must be seen as the means to establishing a social contract based on a clear understanding that they are distinct peoples in history.”132 As well as offering a new avenue for political strategy, for which the duck case had paved the way, legal encounters were provocations to becoming historical in new ways for indigenous peoples, too. Recognition of indigenous peoples’ treaty histories in the terms of common law also, and paradoxically, invited the reassertion of certain images of primordialism and the fixing of indigenous identities. Shortly before his death in 1969, Sissons commissioned local indigenous artists to create a series of small sculptures about key cases he had presided over during his time on the bench. Included in the series is a depiction of the duck case by an Inuit carver, Sam Anavilok. The figure representing Sikyea is not wielding a gun but pulling an arrow back into a bow, as he aims at two flying ducks. (See Figure 5.)133 Figure 5: View largeDownload slide Regina v. Sikyea: Sikyea Hunting Mallards. Artist: Sam Anavilok. Images from the Sissons/Morrow Collection are reproduced with permission of the Supreme Court of the Northwest Territories. Figure 5: View largeDownload slide Regina v. Sikyea: Sikyea Hunting Mallards. Artist: Sam Anavilok. Images from the Sissons/Morrow Collection are reproduced with permission of the Supreme Court of the Northwest Territories. This example of indigenous primitivism might easily be dismissed as an “invention of tradition.”134 In the current context of legal and political claims, such a critique can have difficult, even destructive, consequences for indigenous peoples themselves, forced into conditions of oppressive authenticity. Following the splintering of broad-based claims negotiations in the 1980s, First Nations in the north have pursued their claims against the state in different formations. While several have reached new agreements with the federal and Northwest Territories governments, Yellowknives Dene First Nation have not. The “borderlands” of the Northwest Territories in the 1950s and 1960s was an ambiguous and unsettled space. Existing indigenous political identities entered into new disputes with, as well as drew unlikely support from, diverse white authorities in response to the encroachment of settler sovereignty. New identities were formed out of these encounters. Rather than dismissing emergent forms and thereby playing into a high-stakes adjudication of identity, we should pay attention to both the context for their emergence and what new forms activate, including the purpose of our own writing. In foregrounding the story-making of a hunter like Michael Sikyea and the elicitation and translation of his testimony by a judge like Jack Sissons into legally enforceable rights, I have made a series of narrative and also moral choices about how to represent the ways in which improbable historical actors helped to generate new legal and political possibilities. By emphasizing “treaty talk” and drawing attention to an overlooked political identity of “Treaty Indian”—beyond that of ward of the state—I may run the risk of exposing present-day actors to judgments about their authenticity measured against hoary notions of “Indianness.” In recovering the legal argument of Sissons, I have run another risk. Critics may see this argument as apologizing for paternalist colonialism. However, not bringing encounters between unexpected actors to the fore means that we will continue to rely on incomplete accounts of past possibilities in grappling with present-day power relations and fail to understand the longer and entangled genealogies from which they arise. We need to examine both the effects of and the constraints on these men’s agency, in large part so that we can better understand our own. At the micro level, these actions led to changes in hunting laws, the building of new political organizations, the pursuit of ongoing claims, and so on. In another sense, this story holds open the possibility of rewriting the settler social contract in terms of indigenous treaty traditions. Doing so invites us to consider history’s open-endedness as both a representational and an ethical challenge. Miranda Johnson is a Senior Lecturer in the Department of History at the University of Sydney. She teaches and researches in the areas of comparative indigenous and Pacific histories. She is the author of The Land Is Our History: Indigeneity, Law, and the Settler State (Oxford University Press, 2016), winner of the Australian Historical Association’s W. K. Hancock Prize (2018); and co-editor with Warwick Anderson and Barbara Brookes of Pacific Futures: Past and Present (University of Hawaiʻi Press, 2018). Her new project is a history of indigenous modernity in the context of Pacific empire-states. Many thanks to my colleagues Bain Attwood, Frances Clarke, Chin Jou, Sophie Loy-Wilson, Mike McDonnell, and the Alchemists reading group for their insightful comments on earlier drafts of this article, as well as to Kerry Abel and Mark Walters. Special thanks to Michael Goodman for his incisive and critical feedback. Alex Lichtenstein and the American Historical Review staff went above and beyond, and I am grateful for the thorough responses of the anonymous reviewers. Research for this article was supported by an Australian Research Council grant, DP 150102810. I have shared some of the materials collected for this research with the Yellowknives Dene First Nations office. Notes 1 According to the 1917 act, those who violated its terms could have any equipment used in a violation (including vessels such as boats or skiffs) as well as guns and ammunition confiscated by the apprehending game officer or a justice of the peace. The act also provided for a fine of up to $100 (later increased to $300) and/or a six-month term of imprisonment. Migratory Birds Convention Act, S.C. 1917, R.S.C. 1927, chap. 18, secs. 7 and 12. 2 Examination of Paul Robin, Evidence and Proceedings in the matter Michael Sikyea v. Her Majesty the Queen, RG125-A (R927), vol. 1286, file 9994, Libraries and Archives Canada, Ottawa [hereafter LAC], 16–18; and examination of Michael Sikyea, ibid., 30–31. 3 Sikyea v. The Queen [1964] S.C.R. 642. 4 General and transnational treatments of contemporary indigenous rights movements include Sheryl Lightfoot, Global Indigenous Politics: A Subtle Revolution (New York, 2016); Miranda Johnson, The Land Is Our History: Indigeneity, Law and the Settler State (New York, 2016); Francesca Merlan, “Indigeneity: Global and Local,” Current Anthropology 50, no. 3 (2009): 303–333; Ronald Niezen, The Origins of Indigenism: Human Rights and the Politics of Identity (Berkeley, Calif., 2003); Christa Scholtz, Negotiating Claims: The Emergence of Indigenous Land Claim Negotiation Policies in Australia, Canada, New Zealand, and the United States (New York, 2006). Key edited collections on contemporary indigenous rights discourses include Duncan Ivison, Paul Patton, and Will Sanders, eds., Political Theory and the Rights of Indigenous Peoples (Cambridge, 2000); Nancy Grey Postero and Leon Zamosc, eds., The Struggle for Indigenous Rights in Latin America (Brighton, 2004); Paul Havemann, ed., Indigenous Peoples’ Rights in Australia, Canada, and New Zealand (Auckland, 1999). For definitions of indigenous rights in international law, see S. James Anaya, Indigenous Peoples in International Law, 2nd ed. (New York, 2004); Benedict Kingsbury, “Indigenous Peoples,” Oxford Public International Law (2006), http://opil.ouplaw.com/ (subscription platform); Ben Saul, Indigenous Peoples and Human Rights: International and Regional Jurisprudence (Portland, Ore., 2016). 5 I take this notion from J. G. A. Pocock, an expatriate New Zealander who has written about settler-indigenous political disputes in reference to the Treaty of Waitangi in Aotearoa New Zealand. See Pocock, “The Treaty between Histories,” in Andrew Sharp and Paul McHugh, eds., Histories, Power and Loss: Uses of the Past—A New Zealand Commentary (Wellington, 2001), 75–96. 6 I follow Antonio Gramsci’s instruction to trace every instance of “independent initiative on the part of subaltern groups.” Gramsci, Selections from the Prison Notebooks, trans. and ed. Quintin Hoare and Geoffrey Nowell Smith (New York, 1971), 55. See also Edward Said, who wrote, referencing Gramsci, that “the subaltern alternative is an integrative knowledge” rather than a separatist discourse; the work of subaltern historians occupies “overlapping and curiously interdependent territories.” See Said, foreword to Ranajit Guha and Gayatri Chakravorty Spivak, eds., Selected Subaltern Studies (New York, 1988), v–x, here viii. This article analyzes that overlapping territory. 7 In casting Sikyea as representative of a collective category of identity, I am distinguishing him from other elite and perhaps more singular actors in indigenous history, such as Deskaheh, the Cayuga chief and spokesman for the Six Nations who traveled to Geneva in 1923 to petition the League of Nations for recognition of his people’s right to self-government. On Deskaheh’s diplomacy, see Niezen, The Origins of Indigenism, 31–36; and Ravi de Costa, “Identity, Authority, and the Moral Worlds of Indigenous Petitions,” Comparative Studies in Society and History 48, no. 3 (2006): 669–698. Sikyea was not an elite broker, fashioning an “art of being in-between,” comparable to, for example, the actors in Yanna Yannakakis, The Art of Being In-Between: Native Intermediaries, Indian Identity, and Local Rule in Colonial Oaxaca (Durham, N.C., 2008). For another comparison, see Steve Stern’s argument about the “mastery” of “judicial politics” by indigenous communities in colonial Peru, which nonetheless contributed to the “hegemony of the ruling class.” Stern, Peru’s Indian Peoples and the Challenge of Spanish Conquest: Huamanga to 1640 (Madison, Wis., 1982), 137. For a recent edited collection that examines indigenous claims in British and Spanish colonial spaces in earlier periods, see Saliha Belmessous, ed., Native Claims: Indigenous Law against Empire, 1500–1920 (Oxford, 2011). 8 See J. R. Miller, Lethal Legacy: Current Native Controversies in Canada (Toronto, 2004), especially chap. 1; Mark D. Walters, “‘Your Sovereign and Our Father’: The Imperial Crown and the Idea of Legal-Ethnohistory,” in Shaunnagh Dorsett and Ian Hunter, eds., Law and Politics in British Colonial Thought: Transpositions of Empire (New York, 2010), 91–108; Glen Coulthard, “From Wards of the State to Subjects of Recognition? Marx, Indigenous Peoples, and the Politics of Dispossession in Denendeh,” in Audra Simpson and Andrea Smith, eds., Theorizing Native Studies (Durham, N.C., 2014), 56–98. 9 Until an amendment to the Indian Act in 1985, “Indian status” women who married non-status men lost their status. See Joyce Green, “Canaries in the Mines of Citizenship: Indian Women in Canada,” Canadian Journal of Political Science/Revue canadienne de science politique 34, no. 4 (2001): 715–738. For a revisionist account of women’s work in “modern, Native ways,” see Mary Jane Logan McCallum, Indigenous Women, Work, and History, 1940–1980 (Winnipeg, 2014), 20. 10 John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto, 2002), 158. 11 See, for example, Marcia Langton, Maureen Tehan, Lisa Palmer, and Kathryn Shain, eds., Honour among Nations? Treaties and Agreements with Indigenous People (Melbourne, 2004). For a general summary of contemporary treaty issues focused on the CANZUS states, see Gudmundur Alfredsson, “Treaties with Indigenous Peoples” (2011), Oxford Public International Law. For the effect of treaty talk on Canadian public life in the late twentieth century in particular, see, for example, the wide-ranging Report of the Royal Commission on Aboriginal Peoples, 5 vols. (Ottawa, 1996). See also Michael Asch, ed., Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference (Vancouver, B.C., 1997); Borrows, Recovering Canada; Alan C. Cairns, Citizens Plus: Aboriginal Peoples and the Canadian State (Vancouver, B.C., 2000); Duncan Ivison, Postcolonial Liberalism (Cambridge, 2002); James Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge, 1995). See also work in the field of critical indigenous legal theory, such as that of James Sákéj Youngblood Henderson, Tracey Lindberg, and Val Napoleon, among others. 12 Compare, for example, the ongoing “deeply etched” ideological work of exclusionary signs in Shanghai from the Treaty Port era, which for locals symbolize foreign oppression, as explored by Robert A. Bickers and Jeffrey N. Wasserstrom, “Shanghai’s ‘Dogs and Chinese Not Admitted’ Sign: Legend, History and Contemporary Symbol,” China Quarterly, no. 142 (June 1995): 444–466; the fate of treaties with the princely states in India in the 1930s, as discussed by Barbara N. Ramusack, The Indian Princes and Their States (Cambridge, 2003), especially chap. 8; and the “palavers” made by West African leaders and Great Britain in the mid-nineteenth century, which were far more significant than written treaties, according to Rebecca Shumway, “Palavers and Treaty Making in the British Acquisition of the Gold Coast Colony (West Africa),” in Saliha Belmessous, ed., Empire by Treaty: Negotiating European Expansion, 1600–1900 (Oxford, 2014), 161–185. Moreover, differences within Anglo settler states between indigenous communities that did or did not sign treaties impacted their capacity to leverage political and legal opportunities in the 1950s and 1960s. Alfred McEvoy’s classic account of fishing conflicts in California demonstrates the limited opportunities for Yurok people in California, who did not have a treaty and were therefore in a legally “ambiguous position.” McEvoy, The Fisherman’s Problem: Ecology and the Law in the California Fisheries, 1850–1980 (Cambridge, 1986), especially 212–214. 13 The titles of some key texts in the Canadian context elucidate the point: J. R. Miller, Compact, Contract, Covenant: Aboriginal Treaty-Making in Canada (Toronto, 2009); Treaty 7 Elders and Tribal Council with Walter Hildebrandt, Sarah Carter, and Dorothy First Rider, The True Spirit and Original Intent of Treaty 7 (Montreal, 1996). In 2010, the national Assembly of First Nations in Canada announced an implementation strategy called “Sacred Treaties—Sacred Trust: Working Together for Treaty Implementation and Advancing Our Sovereignty as Nations,” https://www.afn.ca/uploads/files/aga2013/2013_aga_day_3_-_treaty_implementation_dialogue_session.pdf. 14 Robert A. Williams Jr., The American Indian in Western Legal Thought: The Discourses of Conquest (New York, 1990), 6. See also Francis Paul Prucha, American Indian Treaties: The History of a Political Anomaly (London, 1994); Dorothy V. Jones, License for Empire: Colonialism by Treaty in Early America (Chicago, 1982); Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier (Cambridge, Mass., 2005). On treaty-making in other parts of the Anglo world, see Banner, Possessing the Pacific: Land, Settlers, and Indigenous People from Australia to Alaska (Cambridge, Mass., 2007). 15 Carole Pateman, “The Settler Contract,” in Carole Pateman and Charles W. Mills, Contract and Domination (Cambridge, 2007), 35–78. See also Robert Nichols, “Indigeneity and the Settler Contract Today,” Philosophy and Social Criticism 39, no. 2 (2013): 165–186. 16 See Patrick Wolfe, “Land, Labor, and Difference: Elementary Structures of Race,” American Historical Review 106, no. 3 (June 2001): 866–905; Wolfe, “Settler Colonialism and the Elimination of the Native,” Journal of Genocide Research 8, no. 4 (2006): 387–409; and Wolfe, Traces of History: Elementary Structures of Race (London, 2016). His idea that settler colonialism is an ongoing “structure” rather than a one-off event that is premised in the “logic of elimination” of native owners of land has been widely taken up by historians, anthropologists, and cultural studies scholars. See, for example, Alyosha Goldstein and Alex Lubin, eds., Settler Colonialism, Special Issue, South Atlantic Quarterly 107, no. 4 (2008); Lorenzo Veracini, Settler Colonialism: A Theoretical Overview (New York, 2010); and more generally the journal Settler Colonial Studies. For an application of settler colonialism to non-Anglo spaces, and a different definition, see Caroline Elkins and Susan Pedersen, eds., Settler Colonialism in the Twentieth Century: Projects, Practices, Legacies (New York, 2005). 17 A number of scholars have pointed out that settler colonialism is only one variant of colonialism and did not necessarily entail the dispossession of indigenous peoples. For instance, historian James Belich argues that early European interactions with indigenous peoples in the Anglo world, including North America, such as in the eighteenth-century fur trade in Canada, afforded them economic opportunities. However, the “explosive colonization” of the later nineteenth century drove widespread dispossession as settlers flooded onto indigenous lands. See Belich, Replenishing the Earth: The Settler Revolution and the Rise of the Anglo-World, 1783–1939 (Oxford, 2009). For a brief discussion of variants of colonialism (and a critique of the hegemony of settler colonial studies), see Nancy Shoemaker, “A Typology of Colonialism,” Perspectives on History, October 2015, https://www.historians.org/publications-and-directories/perspectives-on-history/october-2015/a-typology-of-colonialism. Other scholars have critiqued settler colonial theory for its historical flattening and its inattention to indigenous action and agency. See, for example, J. Kēhaulani Kauanui, “‘A Structure, Not an Event’: Settler Colonialism and Enduring Indigeneity,” Lateral 5, no. 1 (2016), http://csalateral.org/issue/5-1/forum-alt-humanities-settler-colonialism-enduring-indigeneity-kauanui/; Corey Snelgrove, Rita Kaur Dhamoon, and Jeff Corntassel, “Unsettling Settler Colonialism: The Discourse and Politics of Settlers, and Solidarity with Indigenous Nations,” Decolonization: Indigeneity, Education & Society 3, no. 2 (2014): 1–32; Lisa Ford, “Locating Indigenous Self-Determination in the Margins of Settler Sovereignty: An Introduction,” in Lisa Ford and Tim Rowse, eds., Between Indigenous and Settler Governance (Oxon, 2013), 1–11; and Tim Rowse, “Indigenous Heterogeneity,” Australian Historical Studies 45, no. 3 (2014): 297–310. 18 Pekka Hämäläinen and Samuel Truett, “On Borderlands,” Journal of American History 98, no. 2 (2011): 338–361. 19 Jeremy Adelman and Stephen Aron, “From Borderlands to Borders: Empires, Nation-States, and the Peoples In Between in North American History,” American Historical Review 104, no. 3 (June 1999): 814–841. A classic work is Richard White, The Middle Ground: Indians, Empires, and Republics in the Great Lakes Region, 1650–1815 (Cambridge, 1991). White was himself drawing in part on the notion of “the beach” as a zone of encounter in Pacific historian Greg Dening’s conception. See Dening, Islands and Beaches: Discourse on a Silent Land, Marquesas, 1774–1880 (Melbourne, 1980). For a recent edited collection that makes an argument for borderlands and transborder studies into the twentieth century, see Sterling Evans, ed., The Borderlands of the American and Canadian Wests: Essays on Regional History of the Forty-Ninth Parallel (Lincoln, Nebr., 2006). 20 Renisa Mawani argues that law “produces, expands, and destroys that which comprises its archive and in turn, that which constitutes law . . . By referencing statutes and judgments that came before and by determining which are apposite, law cultivates its meanings and asserts its authority while at the same time concealing and sanctioning its material, originary, and ongoing violence.” Mawani, “Law’s Archive,” Annual Review of Law and Social Science 8 (2012): 337–365, here 341. 21 The few legal scholars who have commented on this legal case see it as an example of ongoing colonialism, perpetuating the invisibility of indigenous peoples and their rights, rather than as creating new possibilities. See Hamar Foster, “Letting Go the Bone: The Idea of Indian Title in British Columbia, 1849–1927,” in Hamar Foster and John McLaren, eds., Essays in the History of Canadian Law, vol. 6: British Columbia and the Yukon (Toronto, 1995), 28–86. Legal scholar Brian Slattery similarly discounts the case’s significance as an example of the longstanding judicial belief at the time that the federal government “had the power to enact legislation inconsistent with the terms of Indian treaties.” Slattery, “The Constitutional Guarantee of Aboriginal and Treaty Rights,” Queen’s Law Journal 8, no. 1 and 2 (1982–1983): 232–273, here 248. 22 According to the minister for citizenship and immigration, who oversaw Indian affairs, it had become a policy of the department to pay these costs in treaty and hunting cases, including in this one. He did not clarify when the policy was initiated. See Hon. René Tremblay, Canada, Parliament, House of Commons Debates, 26th Parliament, 2nd session, November 27, 1964, 10604. This policy marked a considerable shift, since earlier in the century an amendment to the Indian Act had prohibited Indian treaty bands from using band monies to pay legal counsel to defend their rights. See also Richard C. Daniel, A History of Native Claims Processes in Canada, 1867–1979 (Ottawa, 1980), especially chap. 11. 23 For the range of cases, see, for example, the frequently updated Aboriginal Law Handbook published by Thomson Reuters in Canada. The Department of Indigenous and Northern Affairs Canada keeps updated fact sheets and statistics on treaty negotiations and settlements on its website, https://www.canada.ca/en/crown-indigenous-relations-northern-affairs.html. 24 For instance, the creation of the field of ethnohistory was itself a response to the borderlands, when anthropologists were hired to produce expert evidence for the United States Indian Claims Commission (USICC), established in 1946 to investigate longstanding indigenous claims against the state. These expert witnesses included Nancy Lurie, who also worked in the Northwest Territories and is cited in this article. Rather than bringing the borderlands to an end through the settlement of claims, the USICC provoked a range of further claims, political debates, and international comparisons concerning indigenous rights. See Christian W. McMillen, Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory (New Haven, Conn., 2007). For a discussion of this commission’s ethnohistorical work and its influence on later commissions in Canada and Australia, see Arthur J. Ray, Aboriginal Rights Claims and the Making and Remaking of History (Montreal, 2016). 25 Glen Sean Coulthard, Red Skin, White Masks: Rejecting the Colonial Politics of Recognition (Minneapolis, 2014). See also Peter Kulchyski and Frank James Tester, Kiumajut (Talking Back): Management and Inuit Rights, 1900–70 (Vancouver, B.C., 2007); Paul Nadasdy, Hunters and Bureaucrats: Power, Knowledge, and Aboriginal-State Relations in the Southwest Yukon (Vancouver, B.C., 2003); Nadasdy, “Boundaries among Kin: Sovereignty, the Modern Treaty Process, and the Rise of Ethno-Territorial Nationalism among Yukon First Nations,” Comparative Studies in Society and History 54, no. 3 (2012): 499–532. More generally, see Elizabeth A. Povinelli, The Cunning of Recognition: Indigenous Alterities and the Making of Australian Multiculturalism (Durham, N.C., 2002). 26 As John Borrows has cautioned, Canadian courts’ use of an “originalist” idea of history has frozen Aboriginal peoples’ rights in a particular moment in time, which “privileges non-Aboriginal legal and political development and subordinates Indigenous forms of social organization.” Borrows, “Challenging Historical Frameworks: Aboriginal Rights, The Trickster, and Originalism,” Canadian Historical Review 98, no. 1 (2017): 114–135, here 134. 27 On issues of authenticity, see Paige Raibmon, Authentic Indians: Episodes of Encounter from the Late-Nineteenth-Century Northwest Coast (Durham, N.C., 2005); and Jeffrey Sissons, First Peoples: Indigenous Cultures and Their Futures (London, 2005), chap. 2. 28 Coulthard, Red Skin, White Masks. “Weledeh” refers to the river in the southern parts of Weledeh Yellowknives territory, where families traditionally spent their summers. For more on the name and the misrecognition of “Yellowknives” by the explorer Alexander Mackenzie, see the discussion on the Yellowknives Dene First Nation website, https://ykdene.com/about-us/about-land/. 29 Philip J. Deloria, Indians in Unexpected Places (Lawrence, Kans., 2004), especially the introduction. 30 Morris Zaslow, The Northward Expansion of Canada, 1914–1967 (Toronto, 1988), 289. On the need for northern self-government, see Alfred W. R. Carrothers, Report of the Advisory Commission on the Development of Government in the Northwest Territories (Ottawa, 1966). 31 As reported in Canada Year Book 1985: A Review of Economic, Social and Political Developments in Canada (Ottawa, 1985), chap. 2. See also Kenneth Coates, Canada’s Colonies: A History of the Yukon and Northwest Territories (Toronto, 1985), 177–180; and Shelagh D. Grant, Sovereignty or Security? Government Policy in the Canadian North, 1936–1950 (Vancouver, B.C., 1988). 32 See Mel Watkins, ed., Dene Nation: The Colony Within (Toronto, 1977). 33 On the north as a “discursive formation” in the Canadian imagination, see Sherrill E. Grace, Canada and the Idea of North (Montreal, 2001); also Janice Cavell, “The Second Frontier: The North in English-Canadian Historical Writing,” Canadian Historical Review 83, no. 3 (2002): 364–389. 34 John G. Diefenbaker, “A New Vision,” February 12, 1958, Winnipeg, http://www.canadahistory.com/sections/documents/Primeministers/diefenbaker/docs-thenorthernvision.htm. Though Diefenbaker recalled the efforts of farmer settlers in the south in the speech, historian Janice Cavell argues that the prime minister did not so much see himself as an “heir to a great tradition that began at Confederation” as he highlighted the efforts of explorers more marginal to the national story who had emphasized the value of Canada’s north. Cavell, “The Second Frontier,” 365. 35 On “nordicizing,” see John Sandlos, “From the Outside Looking In: Aesthetics, Politics, and Wildlife Conservation in the Canadian North,” Environmental History 6, no. 1 (2001): 6–31. The modernization narrative was expressed, for example, in Ronald Cohen, An Anthropological Survey of Communities in the Mackenzie–Slave Lake Region of Canada (Ottawa, 1962). A similar narrative underwrote the large-scale social science project on “Indians” in the mid-1960s in Canada. See H. B. Hawthorn, ed., A Survey of the Contemporary Indians of Canada: A Report on Economic, Political, Educational Needs and Policies, 2 vols. (Ottawa, 1966). On projects of assimilation in the Northwest Territories, see Zaslow, The Northward Expansion of Canada, 297–305; and Kerry Abel, Drum Songs: Glimpses of Dene History, 2nd ed. (Montreal, 2005), chaps. 9 and 10. For a comparative sociological account of postwar assimilation policies in Anglo settler states, see Andrew Armitage, Comparing the Policy of Aboriginal Assimilation: Australia, Canada, and New Zealand (Vancouver, B.C., 1995). 36 “Declaration of Dene Nationhood, Passed at the Second Joint General Assembly of the Indian Brotherhood of the Northwest Territories, at Fort Simpson, July 19, 1975,” http://www.canadahistory.com/sections/documents/native/Dene%20Declaration.html. 37 Luc Juillet points out that there was very little data on bird numbers and habitats; nor did government administrations in the 1960s examine the effects of the spring harvest by subsistence hunters that the act rendered illegal. The reigning assumption was that harvesting birds in the spring would deleteriously affect breeding. See Juillet, “Aboriginal Rights and the Migratory Birds Convention: Domestic Institutions, Non-State Actors and International Environmental Governance” (Ph.D. thesis, Carleton University, 2000), 150. 38 See Lisa Ford, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788–1836 (Cambridge, Mass., 2010). 39 John Sandlos, Hunters at the Margin: Native People and Wildlife Conservation in the Northwest Territories (Vancouver, B.C., 2014), 241. 40 Ibid., 14. On the turn to scientific administration of game in the north, see Zaslow, The Northward Expansion of Canada, 272–273. See also Michael Asch, “Wildlife: Defining the Animals the Dene Hunt and the Settlement of Aboriginal Rights Claims,” Canadian Public Policy/Analyse de politiques 15, no. 2 (1989): 205–219; Peter Clancy, “State Policy and the Native Trapper: Post-War Policy toward Fur in the Northwest Territories,” in Kerry Abel and Jean Friesen, eds., Aboriginal Resource Use in Canada: Historical and Legal Aspects (Winnipeg, 1991), 191–217. In the prairie provinces, indigenous hunting rights were recognized in the “Natural Resources Transfer Agreements” of 1930, which applied to Manitoba, Saskatchewan, and Alberta. On the vexed legal interpretations and historical context of these agreements, see Frank Tough, “Introduction to Documents: Indian Hunting Rights, Natural Resources Transfer Agreements and Legal Opinions from the Department of Justice,” Native Studies Review 10, no. 2 (1995): 121–149; and Robert Irwin, “‘A Clear Intention to Effect Such a Modification’: The NRTA and Treaty Hunting and Fishing Rights,” Native Studies Review 13, no. 2 (2000): 47–89. 41 See Kurkpatrick Dorsey, The Dawn of Conservation Diplomacy: U.S.-Canadian Wildlife Protection Treaties in the Progressive Era (Seattle, Wash., 1998), especially pt. 3; and Ann-Marie Szymanski, “Wildlife Protection and the Development of Centralized Governance in the Progressive Era,” in Carol Nackenoff and Julie Novkov, eds., Statebuilding from the Margins: Between Reconstruction and the New Deal (Philadelphia, 2014), 140–170. 42 The treaty did make an exception for some indigenous peoples with respect to some non-game birds, primarily aimed at allowing the continuing use of seabirds by those on the Alaskan and northern coasts. This fact has led one historian to suggest that other native hunting rights were intentionally left out of the agreement. See Dan Gottesman, “Native Hunting and the Migratory Birds Convention Act: Historical, Political, and Ideological Perspectives,” Journal of Canadian Studies 18, no. 3 (1983): 67–89, here 72. Juillet contends that the making of the original treaty was a consequence of a “battle between conservationists and mid-west sportsmen,” and explains that the lack of attention paid to indigenous hunting rights was due to the fact that indigenous peoples had no “political clout” in 1916; “Aboriginal Rights and the Migratory Birds Convention,” 102–103. 43 Regina v. Sikyea (1962) 39 C.R. 218 (NWTTC). 44 See Hagel to Morrow, December 17, 1962, W. G. Morrow fonds, MsC 261, University of Calgary Special Collections [hereafter Morrow fonds], file 47.4a, section 10. 45 Superintendent Kerr, Evidence and Proceedings in the matter Michael Sikyea v. Her Majesty the Queen, 28, emphasis added; Michael Sikyea, ibid., 31. 46 More than 3,500 Indians were hospitalized for tuberculosis in 1954–1955. Zaslow, The Northward Expansion of Canada, 287. 47 Sikyea, Evidence and Proceedings in the matter Michael Sikyea v. Her Majesty the Queen, 31. 48 Statement of James Kearney, received October 22, 1962, NWT Archives, Mark de Weerdt fonds, accession number N-2013-009, item number 2-1 [hereafter de Weerdt fonds]. 49 On hunting economies and social obligations in the north, see June Helm, The People of Denendeh: Ethnohistory of the Indians of Canada’s Northwest Territories (Montreal, 2001); Kulchyski and Tester, Kiumajut (Talking Back). Several memoirs by trappers have been published. See, for example, John Tetso, Trapping Is My Life (Toronto, 1970). For other accounts of indigenous entanglements with settler law around hunting and fishing, see Joshua L. Reid, The Sea Is My Country: The Maritime World of the Makahs, an Indigenous Borderlands People (New Haven, Conn., 2015); Michael J. Stevens, “Kāi Tahu me te Hopu Tītī ki Rakiura: An Exception to the ‘Colonial Rule’?,” Journal of Pacific History 41, no. 3 (2006): 273–291; Larry Nesper, “Twenty-Five Years of Ojibwe Treaty Rights in Wisconsin, Michigan, and Minnesota,” American Indian Culture and Research Journal 36, no. 1 (2012): 47–78. 50 See the detailed hunting and trapping maps reproduced in Weledeh Yellowknives Dene: A History (Dettah, 1997), 15–16. See also Phoebe Nahanni, “The Mapping Project,” in Watkins, Dene Nation, 21–27. 51 Arthur J. Ray, The Canadian Fur Trade in the Industrial Age (Toronto, 1990); Zaslow, The Northward Expansion of Canada, 278–279. 52 John Sandlos and Arn Keeling, “The Giant Mine’s Long Shadow: Arsenic Pollution and Native People in Yellowknife, Northwest Territories,” in J. R. McNeil and George Vrtis, eds., Mining North America: An Environmental History since 1522 (Berkeley, Calif., 2017), 302. According to a 1959 commission report, only five Indians worked in Yellowknife mines during the 1950s. See Walter H. Nelson, V. F. Valentine, L. L. Brown, James Kow, and Baptiste Cazon, Report of the Commission Appointed to Investigate the Unfulfilled Provisions of Treaties 8 and 11 as They Apply to the Indians of the Mackenzie District (Ottawa, 1959), 6. 53 R. A. J. Phillips, memorandum for J. R. B. Coleman, October 21, 1957, RG10, vol. 6980, 139/20-4, LAC. See also R. A. J. Phillips, Canada’s North (Toronto, 1967). 54 On the effects of roadbuilding elsewhere in the NWT, see Nancy O. Lurie, “Effects of the Highway, Rae, 1967,” in Helm, The People of Denendeh, 95–99. Interestingly, there is no suggestion in the legal record or media reports about the duck case, or other hunting rights cases, that state authorities considered gun-bearing hunters to pose a threat to human life. Weapons were regularly confiscated as punishment, but this was not because of any perceived threat they posed to settler society or other indigenous people. They were taken in order to stop hunters from shooting more game. 55 Treaty 8, June 21, 1899, and Treaty 11, June 27, 1921. The treaty texts are available at https://www.aadnc-aandc.gc.ca. 56 Ibid. 57 See Harrison F. Lewis, Dominion Wildlife Service, memorandum, February 11, 1948, RG10, vol. 8862, 1/18-11-6, pt. 1, LAC. 58 B. G. Sivertz, Department of Northern Affairs and National Resources, to J. R. B. Coleman, September 18, 1957, RG10, vol. 6980, 139/20-4, LAC. 59 Michael Sikyea, Evidence and Proceedings in the matter Michael Sikyea v. Her Majesty the Queen, 35. 60 Kenneth Kerr, ibid., 29–30. 61 H. M. Jones to B. G. Sivertz, October 30, 1957, RG10, vol. 6980, 139/20-4, LAC. 62 T. R. L. MacInnes, “History of Indian Administration in Canada,” Canadian Journal of Economics and Political Science/Revue canadienne d'economique et de science politique 12, no. 3 (1946): 387–394, here 387. MacInnes pointed out that less than half of the “Indian” population was “under treaty” by the mid-1940s. 63 See Miller, Compact, Contract, Covenant. The most extensive history of treaty-making in the Northwest Territories, and the first based in extensive archival research, was written by local Oblate priest and historian René Fumoleau, As Long as This Land Shall Last: A History of Treaty 8 and Treaty 11, 1870–1939, revised ed. (Calgary, 2004). See also Shirleen Smith, “Dene Treaties, Anthropology and Colonial Relationships” (Ph.D. thesis, University of Alberta, 1999). 64 Morris Zaslow, The Opening of the Canadian North, 1870–1914 (Toronto, 1971), 225. On the continuity of indigenous norms during the nineteenth-century fur trade, see Janna Promislow, “‘It Would Only Be Just’: A Study of Territoriality and Trading Posts along the Mackenzie River, 1800–27,” in Ford and Rowse, Between Indigenous and Settler Governance, 35–47. 65 H. A. Conroy, “Report of the Commissioner for Treaty No. 11,” October 12, 1921, available at https://www.aadnc-aandc.gc.ca. 66 Breynat cited in Fumoleau, As Long as This Land Shall Last, 209. 67 See Nelson, Valentine, Brown, Kow, and Cazon, Report of the Commission Appointed to Investigate the Unfulfilled Provisions of Treaties 8 and 11. 68 Quoted in John Howard Sissons, Judge of the Far North: The Memoirs of Jack Sissons (Toronto, 1968), 151. 69 Evidence and Proceedings in the matter Michael Sikyea v. Her Majesty the Queen, 36–37. 70 According to the memorandum of argument prepared by Sikyea’s lawyers, he recalled “vividly the anxiety of the Indians that their hunting rights should not be disturbed” at the signing of Treaty 11. Memorandum of Argument, November 1, 1962, Morrow fonds, file 48.2. The Crown’s lawyer disputed Sikyea’s claim. See “Factum of the Appellant,” 11, de Weerdt fonds. 71 See the account in Fumoleau, As Long as This Land Shall Last, 95. See also the story told by Susie Drygeese about Treaty 8, “The Signing of Treaty No. 8 at Fort Resolution in 1900,” in Helm, The People of Denendeh, 153–159. 72 Conroy, “Report of the Commissioner for Treaty No. 11.” 73 See Abel, Drum Songs, 219–220. 74 Alexandra Harmon, “Introduction: Pacific Northwest Indian Treaties in National and International Historical Perspective,” in Harmon, ed., The Power of Promises: Rethinking Indian Treaties in the Pacific Northwest (Seattle, Wash., 2008), 3–31, here 26. For discussions of indigenous understandings of treaty elsewhere in Canada, see, for example, references to “Treaty 7 Tribal Council” in Treaty 7 Elders and Tribal Council with Hildebrandt, Carter, and First Rider, The True Spirit and Original Intent of Treaty 7, especially chaps. 1 and 3; Sharon Venne, “Understanding Treaty 6: An Indigenous Perspective,” in Asch, Aboriginal and Treaty Rights in Canada, 173–207. 75 Michael Sikyea (1965/08/30), RG22, vol. 686, file 27, LAC. 76 The Council of the Hay River Slavey Band, “Brief to the Advisory Commission on the Development of Government in the Northwest Territories,” September 1, 1965, RG22, vol. 686, file 31, LAC. 77 “Chiefs and Treaty Days,” in Danny Beaulieu and Gail Beaulieu, eds., That’s the Way We Lived: An Oral History of the Fort Resolution Elders (Yellowknife, 1987), 93. On the symbolic significance of “Treaty Days” generally, see Miller, Lethal Legacy, 143–144. On treaties and gift-giving elsewhere in Canada, see, for example, Jean Friesen, “Magnificent Gifts: The Treaties of Canada with the Indians of the Northwest, 1869–76,” Transactions of the Royal Society of Canada, series 5, 1 (1986): 41–51. 78 Sandlos, Hunters at the Margin, 159. 79 Abel, Drum Songs, 197. 80 “Festivities of Treaty Time in Rae,” in Helm, The People of Denendeh, 328–335, here 331. 81 Walters, “‘Your Sovereign and Our Father.’” 82 Transcript, Re Paulette and Registrar of Land Titles, August 20, 1973, 569–570, Morrow fonds, box 50/166. 83 Quoted in Fumoleau, As Long as This Land Shall Last, 225. 84 Justice H. G. Johnson, “Reasons for Judgment, Her Majesty the Queen and Michael Sikyea,” Court of Appeal of the Northwest Territories, January 24, 1964, in “Sikyea v. The Queen 1964,” RG 125, vol. 1286, file 9994-1, LAC. 85 E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (London, 1975), 261. As Kulchyski and Tester put it in regard to hunting rights cases involving Inuit, “Inuit resistance raised important questions about the legitimacy of the law as a mechanism for ruling in a nation where the citizens affected, contrary to the rationale behind parliamentary democracy, had no voice”; Kiumajut (Talking Back), 102. 86 Brian O. Bucknall, “John Howard Sissons and the Development of Law in Northern Canada,” Osgoode Hall Law Journal 5, no. 2 (1967): 159–171, here 168. 87 Sissons, Judge of the Far North, 19. 88 Ibid., 16. 89 Evidence and Proceedings in the matter Michael Sikyea v. Her Majesty the Queen, 11. 90 In fact, Sikyea might not have appealed his conviction had the judge not heard about it and himself initiated an appeal, asking another local lawyer, Elizabeth (Betty) Hagel, to put her name on the case. Hagel played a limited role in the case, though some correspondence suggested she would have liked a larger part. More generally, the stories told, the issues considered, and the themes involved were ones that tended to exclude women’s labor and political activism. 91 In a 1962 letter to the Fort Smith game superintendent, Mark de Weerdt wrote, “I should like to mention in confidence that I expect some difficulty in the case, particularly since there were three convictions recently at Cambridge Bay in respect of hunting of musk oxen by Eskimos. This has come to the attention of the Court and I am given to believe that your office may be considered in part responsible for the proceedings in question. I have the impression that Mr. Justice Sissons is strongly of the opinion that the convictions were unlawful.” De Weerdt to Bryant, October 5, 1962, de Weerdt fonds. 92 Paul McHugh mentions in passing that Justice Sissons’s decisions in the Northwest Territories influenced Thomas Berger, the lawyer for Nisga’a claimants in the first aboriginal title case in Canada, Calder et al. v. Attorney-General of British Columbia (1973) S.C.R. 313. McHugh, Aboriginal Title: The Modern Jurisprudence of Tribal Land Rights (Oxford, 2011), 71. 93 Regina v. Kogogolak (1959) 28 W.W.R. 376 (NWTTC). 94 Andrea W. Rowe, “Assimilation through Accommodation: Practice, Rhetoric and Decisions in the Territorial Court of the Northwest Territories, 1955–1972” (LLM thesis, University of Toronto, 1990), 235. 95 Sissons was probably informed by Justice Gwynne’s observations in St. Catharine’s Milling and Lumber Co. v. The Queen (1887) 13 S.C.R. 577 that the royal proclamation, in which Great Britain put Indian rights “upon a more just and equitable footing” than they had been under French rule, may be termed the “Indian Bill of Rights.” See also Kenneth M. Narvey, “The Royal Proclamation of 7 October 1763, the Common Law, and Native Rights to Land within the Territory Granted to the Hudson’s Bay Company,” Saskatchewan Law Review 38, no. 1 (1974): 123–233; this interpretation is what Mark D. Walters has argued helped to keep alive the idea of the Royal Proclamation as recognizing Aboriginal rights in Canada. Walters argues that while today “[t]he word of the Proclamation is largely dead as a direct source of written law . . . its unwritten ethic is very much alive and perhaps only just beginning to flourish in our [Canadian] law.” Walters, “The Aboriginal Charter of Rights: The Royal Proclamation of 1763 and the Constitution of Canada,” in Terry Fenge and Jim Aldridge, eds., Keeping Promises: The Royal Proclamation of 1763, Aboriginal Rights, and Treaties in Canada (Montreal, 2015), 49–68, here 67. 96 Justice Norris claimed he was “in complete agreement” with Sissons about the extent of the Royal Proclamation. See Regina v. White and Bob (1964) 50 D.L.R. (2d) 613. See also J. McRuer in Regina v. George (1965) 55 D.L.R. (2d) 386, who argued that the proclamation recognized Indian hunting rights. 97 Report of the Royal Commission on Aboriginal Peoples, 1: 109. Historian James Miller calls the proclamation “the single most important document in the long history of Canadian treaty making”; Lethal Legacy, 117. See also John Borrows, “Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government,” in Asch, Aboriginal and Treaty Rights in Canada, 155–172. Nisga’a leaders referred to the proclamation in their protests about the land and sovereignty in 1919. See Pamela E. Klassen, The Story of Radio Mind: A Missionary’s Journey on Indigenous Land (Chicago, 2018), 157–159. On the revivification of the Royal Proclamation in law, see Brian Slattery, “Understanding Aboriginal Rights,” Canadian Bar Review 66, no. 4 (1987): 727–783, here 729; also McHugh, Aboriginal Title, 280–281. 98 See Banner, How the Indians Lost Their Land, chap. 3. See also Ford, Settler Sovereignty, 180; and Colin G. Calloway, “The Proclamation of 1763: Indian Country Origins and American Impacts,” in Fenge and Aldridge, Keeping Promises, 33–48. 99 As quoted in The Queen v. George (1966) S.C.R. 267. These issues were discussed in correspondence: Morrow to Cartwright, January 31, 1966, and Cartwright to Morrow, February 3, 1966, Morrow fonds, file 48.3. See also A. L. C. de Mestral, “Michael Sikyea v. Her Majesty the Queen,” McGill Law Journal 11, no. 2 (1965): 168–173. According to a later judge who succeeded Sissons on the bench of what was by then called the Supreme Court of the Northwest Territories, the duck case brought national attention to Indian hunting rights. See Dean Burns, “He Who Listens,” The Beaver 75, no. 1 (1995): 16–22. 100 St. Saviour’s Southwark (Churchwardens) (1613), 10 Co. Rep. 366, 77 E.R. 1025. 101 For a critical view of this notion, see Mariana Valverde, “‘The Honour of the Crown Is at Stake’: Aboriginal Land Claims Litigation and the Epistemology of Sovereignty,” UC Irvine Law Review 1, no. 3 (2011): 955–974. 102 Hagel to Morrow, December 12, 1962, Morrow fonds, file 47.4a, section 11. 103 De Weerdt to Christie, Department of Justice, September 24, 1963, de Weerdt fonds. 104 De Weerdt to Christie, October 14, 1964, de Weerdt fonds. 105 Evidence and Proceedings in the matter Michael Sikyea v. Her Majesty the Queen, 31. 106 Memorandum of Argument, William Morrow, November 1, 1962, Morrow fonds, file 48.2. 107 Justice H. G. Johnson, “Reasons for Judgment, Her Majesty the Queen and Michael Sikyea,” Court of Appeal of the Northwest Territories, January 24, 1964, in “Sikyea v. The Queen 1964,” RG 125, vol. 1286, file 9994-1, LAC. 108 “It wasn’t a big duck in size, a skinny four pounds at the most, but big enough to provide a stew for a family on relief.” “Indian’s Hunting Rights to Be Retried,” Edmonton Journal, October 11, 1963, 43. 109 Edmonton Journal, January 25, 1964; Montreal Star, May 22, 1964. By contrast, the case was also covered in the New York Times, where the Canadian correspondent Jay Walz observed that the Canadian government “has on its hands not only the demands of rambunctious French Canadians to the east, but also the renewed cries of an articulate tribe of Indians to the far north and west.” “Canada Debating a Wild Duck Case,” New York Times, October 18, 1964, 26. 110 See Sigeareak El-53 v. The Queen (1966) S.C.R. 645. See also Frederick Vaughan, Aggressive in Pursuit: The Life of Justice Emmett Hall (Toronto, 2004), 215–218. 111 Daniels v. White and the Queen (1968) S.C.R. 517. Hall’s biographer claims that he was a long-time defender of indigenous rights, but his judicial decisions tell a more complex story. See Vaughan, Aggressive in Pursuit, 214–229. 112 Hall cited the NWT Court of Appeal judge’s argument that Indian hunting rights had their origin in the Royal Proclamation, the point that Sissons had made in the original decision. See J. Hall in Calder et al. v. Attorney-General of British Columbia (1973) S.C.R. 313, at 398–399. Hall cited Johnson in Regina v. Sikyea (1964) 43 DLR (2d) 150. On the Calder case, see Hamar Foster, Heather Raven, and Jeremy Webber, eds., Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights (Vancouver, B.C., 2007). 113 Morrow to Gruening, October 7, 1964, Morrow fonds, file 47.4b, section 4.1. 114 This proposal was roundly condemned by members of Parliament, who complained that the proposal made no provision for Indians to represent their own interests to the government; they called instead for a new set of negotiations between Indians and the state. MP Eugene Rhéaume and MP Frank Howard, House of Commons Debates, 26th Parliament, 2nd session, March 29, 1965, 12874–12875. 115 Ibid., November 27, 1964, 10604. 116 Ibid., October 13, 1964, 8973. 117 Gérard Perron, ibid., March 29, 1965, 12875. 118 A change to the Migratory Bird Treaty with the United States that took into account indigenous peoples’ grievances was not ratified until 1995, for complex technical and political reasons explored by Juillet in “Aboriginal Rights and the Migratory Birds Convention.” 119 Petition quoted in Sissons, Judge of the Far North, 157. 120 These were known as “specific claims,” distinguished from “comprehensive claims” to aboriginal title. An Indian Claims Commission had long been discussed in Canada. For a discussion of both, particularly in regard to the historical and anthropological research that these commissions depended on and generated, see Ray, Aboriginal Rights Claims and the Making and Remaking of History. On the politics surrounding the first Indian Claims Commission in Canada, see Johnson, The Land Is Our History, chap. 4. 121 See, for instance, Slattery, “The Constitutional Guarantee of Aboriginal and Treaty Rights.” 122 W. H. Morrow, ed., Northern Justice: The Memoirs of Mr. Justice William G. Morrow (Toronto, 1995), 31. 123 See Dene Nation, Denendeh: A Dene Celebration (Yellowknife, 1984). 124 Re Paulette and Registrar of Land Titles (No. 2) (1973) 42 DLR (3d) 8. 125 See Frances Abele, “The Lasting Impact of the Berger Inquiry into the Construction of a Pipeline in the Mackenzie Valley,” in Gregory J. Inwood and Carolyn M. Johns, eds., Commissions of Inquiry and Policy Change: A Comparative Analysis (Toronto, 2014), 88–112; Johnson, The Land Is Our History, chaps. 3 and 4. 126 George Manuel and Michael Posluns, The Fourth World: An Indian Reality (New York, 1974). 127 See “Declaration of Dene Nationhood,” http://www.canadahistory.com/sections/documents/native/Dene%20Declaration.html. 128 On changing European assessments of Franklin, see Janice Cavell, “Representing Akaitcho: European Vision and Revision in the Writing of John Franklin’s Narrative of a Journey to the Shores of the Polar Sea . . . ,” Polar Record 44, no. 1 (2008): 25–34. 129 Weledeh Yellowknives Dene, Weledeh Yellowknives Dene, 7. 130 Akaitcho Treaty 8 negotiations, http://akaitchotreaty8.com/akaitcho-dene-of-the-nwt/treaty-8-tribal-corporation/. 131 On the Akaitcho and Dogrib wars, see “Akaitcho,” in Helm, The People of Denendeh, 231–233. 132 Thomas R. Berger, Northern Frontier, Northern Homeland: The Report of the Mackenzie Valley Pipeline Inquiry (Ottawa, 1977), xxii. On the possibilities for northern development that takes account of the indigenous mixed economy, see Frances Abele, “The State and the Northern Social Economy: Research Prospects,” Northern Review, no. 30 (Spring 2009): 37–56. On self-government and the indigenizing of politics in the north, see Mark O. Dickerson, Whose North? Political Change, Political Development, and Self-Government in the Northwest Territories (Vancouver, B.C., 1992). 133 For a discussion, see Dorothy Harley Eber, Images of Justice: A Legal History of the Northwest Territories as Traced through the Yellowknife Courthouse Collection of Inuit Sculpture (Montreal, 1997). 134 Eric Hobsbawm and Terence Ranger, eds., The Invention of Tradition (Cambridge, 1983). On debates about representations of the “ecological Indian,” pertinent to this sculpture, see Michael E. Harkin and David Rich Lewis, eds., Native Americans and the Environment: Perspectives on the Ecological Indian (Lincoln, Nebr., 2007). © The Author(s) 2019. Published by Oxford University Press on behalf of the American Historical Association. All rights reserved. For permissions, please e-mail journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - The Case of the Million-Dollar Duck: A Hunter, His Treaty, and the Bending of the Settler Contract
JF - The American Historical Review
DO - 10.1093/ahr/rhy576
DA - 2019-02-01
UR - https://www.deepdyve.com/lp/oxford-university-press/the-case-of-the-million-dollar-duck-a-hunter-his-treaty-and-the-s20c0V4wri
SP - 56
VL - 124
IS - 1
DP - DeepDyve
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