A model for the establishment of Treaties

In the Proclamation of 1763, King George III of England declared a British system of governing in the areas that had been surrendered by France, and pronounced that the Indians and their lands would be treated with respect. In practice, the British Crown negotiated with the Indians and arrived at mutually agreeable treaties.

This notion of acquisition of Indian land by consent was not new to North America, and so for existing British colonies the Proclamation of 1763 merely confirmed an established practice. In the territories formerly held by the French, however, much was to change. Prior to 1763, the French maintained that once they discovered and occupied a region, they became absolute sovereigns. According to this approach, the Indians had no title or other rights and hence no position from which to negotiate. French officials left the responsibility of any dealings with the Indians with the Catholic Church, whose role was, through religious instruction, to assimilate them into the European culture. The Proclamation of 1763 clearly marked a new beginning for these Indians, but also established the foundation for future Indian/government relations. Canadian jurisprudence on the Proclamation has held that the principle of treaty negotiations extends not only to the old and new British colonies referred to in the document itself, but to present-day Canada as a whole. In this way it remains a very significant and useful instrument in Indian affairs.

The British promise to reach a consensus peacefully rested on the belief that Indians held rights in North America. Contained within these was the right to land. Any regions found to be essential to the Indians way of life were not to be disturbed. Indian land could be settled only after a formal agreement between Indian leaders and the government had been reached. By negotiating treaties like this, the Crown ensured stability in these territories. After many years of war with Indian tribes that sided with the French, the British realized that if they wished to settle North America, peace with the Indians was essential. The Proclamation of 1763 was the Crowns first expression of good faith.

It appeared that the Proclamation of 1763 had nothing but the most noble intentions. In fact there were some flaws in it at the time, and other ones that have developed recently. For example, it declared that the Crown was best suited to alienate Indian lands. This meant that all leases and sales of Indian lands would be forever conducted through the Crown as an intermediary. Responsibility and control thus lay with the governing officials and the Indians, conveying a hierarchical relationship rather than an equal partnership. This inequality was also evident in the Proclamations implicit preference for written treaties. Unlike the Europeans, who had recognized written agreements for several centuries, North American Indians believed in an oral tradition. Indians formed treaties among themselves by conducting ceremonies marked by the exchange of "wampum" or traditional beadwork. The actual treaty was oral and would be passed on through the generations in this way. In the agreements between the Indians and government officials, attempts were made to combine the two traditions, but over time it became apparent that the written word held greater legal weight than the oral tradition.

Another weakness in the Proclamation of 1763 lies in the nature of the document. Unlike other pronouncements of its stature, it does not have Constitutional status. The Constitutional Act of 1982 contains a schedule of all our constitutional documents, and no materials prior to Confederation in 1867 are included. There is, however, reference to the Proclamation of 1763 in section 25.a of the Canadian Charter of Rights and Freedoms. It states that the rights and freedoms recognized by the Proclamation fall under the Charters protection. Given these conflicting interpretations, the strength of the Proclamation remains unclear.

Treaties created as a consequence of the Proclamation are also in a rather nebulous position. In effect, Indian treaties are only as strong as the respect accorded to them by the various provincial or federal governments in power. This is because treaties are only equal to any other piece of legislation and can be overridden by new enactments. Indeed, laws have been passed that limit the extent of the rights originally granted to certain treaty Indians. This is of particular concern in light of section 25 of the Charter, which states that it will grant protection only to "existing" native rights or freedoms. Modifications to the treaties by way of legislation could mean that former Indian rights would be forever extinguished.

Despite its curious status vis--vis our Constitution and some of its other deficiencies, the Proclamation of 1763 is still considered a very important document for understanding Indian/government relations and for interpreting the treaties that were born from and guided by it. Its enormous value to our documentary history is also supported by the fact that it has been referred to as the "Indian Bill of Rights" or equivalent to the "Magna Carta" for Indian affairs.

In the face of these positive qualities, it is curious to report that the National Archives holds no surviving originals. There are several transcribed copies of both the October 7, 1763, document proclaimed by the King in England and the one later pronounced by the Superintendent of Indian Affairs, Sir William Johnson, in North America on December 24, 1763; the National Archives also has a negative photostat of this latter document. For its part, the Canadian Institute for Historical Microreproductions (CIHM) has determined that there are five known originals. One is held by the Society of Antiquarians in England, another by the Privy Council Library in London, England, a third by the Massachusetts Archives in Boston (CIHM has obtained a microfilmed copy of this one), a fourth by Brown University in Providence, Rhode Island, and the last by McGill University in Montreal in the Lande Room. Individuals interested in conducting research on the Royal Proclamation of 1763 can also consult numerous published versions of the document and contact the National Archives to read correspondence of various people associated with this historical event.

Whereas We have taken into Our Royal Consideration the extensive and valuable Acquisitions in America, secured to our Crown by the late Definitive Treaty of Peace, concluded at Paris. the 10th Day of February last; and being desirous that all Our loving Subjects, as well of our Kingdom as of our Colonies in America, may avail themselves with all convenient Speed, of the great Benefits and Advantages which must accrue therefrom to their Commerce, Manufactures, and Navigation, We have thought fit, with the Advice of our Privy Council. to issue this our Royal Proclamation, hereby to publish and declare to all our loving Subjects, that we have, with the Advice of our Said Privy Council, granted our Letters Patent, under our Great Seal of Great Britain, to erect, within the Countries and Islands ceded and confirmed to Us by the said Treaty, Four distinct and separate Governments, styled and called by the names of Quebec, East Florida, West Florida and Grenada, and limited and bounded as follows, viz.

First--The Government of Quebec bounded on the Labrador Coast by the River St. John, and from thence by a Line drawn from the Head of that River through the Lake St. John, to the South end of the Lake Nipissim; from whence the said Line, crossing the River St. Lawrence, and the Lake Champlain, in 45. Degrees of North Latitude, passes along the High Lands which divide the Rivers that empty themselves into the said River St. Lawrence from those which fall into the Sea; and also along the North Coast of the Baye des Chaleurs, and the Coast of the Gulph of St. Lawrence to Cape Rosieres, and from thence crossing the Mouth of the River St. Lawrence by the West End of the Island of Anticosti, terminates at the aforesaid River of St. John.

Secondly--The Government of East Florida. bounded to the Westward by the Gulph of Mexico and the Apalachicola River; to the Northward by a Line drawn from that part of the said River where the Chatahouchee and Flint Rivers meet, to the source of St. Mary's River. and by the course of the said River to the Atlantic Ocean; and to the Eastward and Southward by the Atlantic Ocean and the Gulph of Florida, including all Islands within Six Leagues of the Sea Coast.

Thirdly--The Government of West Florida. bounded to the Southward by the Gulph of Mexico. including all Islands within Six Leagues of the Coast. from the River Apalachicola to Lake Pontchartrain; to the Westward by the said Lake, the Lake Maurepas, and the River Mississippi; to the Northward by a Line drawn due East from that part of the River Mississippi which lies in 31 Degrees North Latitude. to the River Apalachicola or Chatahouchee; and to the Eastward by the said River.

Fourthly--The Government of Grenada, comprehending the Island of that name, together with the Grenadines, and the Islands of Dominico, St. Vincent's and Tobago. And to the end that the open and free Fishery of our Subjects may be extended to and carried on upon the Coast of Labrador, and the adjacent Islands. We have thought fit. with the advice of our said Privy Council to put all that Coast, from the River St. John's to Hudson's Streights, together with the Islands of Anticosti and Madelaine, and all other smaller Islands Iying upon the said Coast, under the care and Inspection of our Governor of Newfoundland.

We have also, with the advice of our Privy Council. thought fit to annex the Islands of St. John's and Cape Breton, or Isle Royale, with the lesser Islands adjacent thereto, to our Government of Nova Scotia.

We have also, with the advice of our Privy Council aforesaid, annexed to our Province of Georgia all the Lands Iying between the Rivers Alatamaha and St. Mary's.

And whereas it will greatly contribute to the speedy settling of our said new Governments, that our loving Subjects should be informed of our Paternal care, for the security of the Liberties and Properties of those who are and shall become Inhabitants thereof, We have thought fit to publish and declare, by this Our Proclamation, that We have, in the Letters Patent under our Great Seal of Great Britain, by which the said Governments are constituted. given express Power and Direction to our Governors of our Said Colonies respectively, that so soon as the state and circumstances of the said Colonies will admit thereof, they shall, with the Advice and Consent of the Members of our Council, summon and call General Assemblies within the said Governments respectively, in such Manner and Form as is used and directed in those Colonies and Provinces in America which are under our immediate Government: And We have also given Power to the said Governors, with the consent of our Said Councils, and the Representatives of

We have also thought fit, with the advice of our Privy Council as aforesaid, to give unto the Governors and Councils of our said Three new Colonies, upon the Continent full Power and Authority to settle and agree with the Inhabitants of our said new Colonies or with any other Persons who shall resort thereto, for such Lands. Tenements and Hereditaments, as are now or hereafter shall be in our Power to dispose of; and them to grant to any such Person or Persons upon such Terms, and under such moderate Quit-Rents, Services and Acknowledgments, as have been appointed and settled in our other Colonies, and under such other Conditions as shall appear to us to be necessary and expedient for the Advantage of the Grantees, and the Improvement and settlement of our said Colonies.

And Whereas, We are desirous, upon all occasions, to testify our Royal Sense and Approbation of the Conduct and bravery of the Officers and Soldiers of our Armies, and to reward the same, We do hereby command and impower our Governors of our said Three new Colonies, and all other our Governors of our several Provinces on the Continent of North America, to grant without Fee or Reward, to such reduced Officers as have served in North America during the late War, and to such Private Soldiers as have been or shall be disbanded in America, and are actually residing there, and shall personally apply for the same, the following Quantities of Lands, subject, at the Expiration of Ten Years, to the same Quit-Rents as other Lands are subject to in the Province within which they are granted, as also subject to the same Conditions of Cultivation and Improvement; viz.

To every Person having the Rank of a Field Officer--5,000 Acres.

To every Captain--3,000 Acres.

To every Subaltern or Staff Officer,--2,000 Acres.

To every Non-Commission Officer,--200 Acres .

To every Private Man--50 Acres.

We do likewise authorize and require the Governors and Commanders in Chief of all our said Colonies upon the Continent of North America to grant the like Quantities of Land, and upon the same conditions, to such reduced Officers of our Navy of like Rank as served on board our Ships of War in North America at the times of the Reduction of Louisbourg and Quebec in the late War, and who shall personally apply to our respective Governors for such Grants.

And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them. or any of them, as their Hunting Grounds.--We do therefore, with the Advice of our Privy Council, declare it to be our Royal Will and Pleasure. that no Governor or Commander in Chief in any of our Colonies of Quebec, East Florida. or West Florida, do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands beyond the Bounds of their respective Governments. as described in their Commissions: as also that no Governor or Commander in Chief in any of our other Colonies or Plantations in America do presume for the present, and until our further Pleasure be known, to grant Warrants of Survey, or pa

And We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three new Governments, or within the Limits of the Territory granted to the Hudson's Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as aforesaid.

And We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved. without our especial leave and Licence for that Purpose first obtained.

And. We do further strictly enjoin and require all Persons whatever who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above described. or upon any other Lands which, not having been ceded to or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements.

And whereas great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests. and to the great Dissatisfaction of the said Indians: In order, therefore, to prevent such Irregularities for the future, and to the end that the Indians may be convinced of our Justice and determined Resolution to remove all reasonable Cause of Discontent, We do. with the Advice of our Privy Council strictly enjoin and require. that no private Person do presume to make any purchase from the said Indians of any Lands reserved to the said Indians, within those parts of our Colonies where, We have thought proper to allow Settlement: but that. if at any Time any of the Said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony respectively within which they shall lie: and in case they shall

And we do hereby authorize, enjoin, and require the Governors and Commanders in Chief of all our Colonies respectively, as well those under Our immediate Government as those under the Government and Direction of Proprietaries, to grant such Licences without Fee or Reward, taking especial Care to insert therein a Condition, that such Licence shall be void, and the Security forfeited in case the Person to whom the same is granted shall refuse or neglect to observe such Regulations as We shall think proper to prescribc as aforesaid.

And we do further expressly conjoin and require all Officers whatever, as well Military as those Employed in the Management and Direction of Indian Affairs, within the Territories reserved as aforesaid for the use of the said Indians, to seize and apprehend all Persons whatever. who standing charged with Treason. Misprisions of Treason. Murders, or other Felonies or Misdemeanors. shall fly from Justice and take Refuge in the said Territory. and to send them under a proper guard to the Colony where the Crime was committed of which they, stand accused. in order to take their Trial for the same.

Given at our Court at St. James's the 7th Day of October 1763. in the Third Year of our Reign.

GOD SAVE THE KING