Anishinaabe Nation in Treaty No. 3

The Anishinaabe Nation in Treaty No. 3 became distinct as a political, cultural, and linguistic group from other Anishinaabe peoples through the circumstances of its traditional territory around Lake of the Woods and Rainy River. "Abundant natural resources were the foundation for the Anishinaabe government. During the 18th and 19th centuries, large groups gathered during harvest seasons, at maple sugar groves, fishing stations, berry patches, garden sites, and rice fields. ... Organized through a Grand Council, they asserted sovereignty over their territory."[3] By the latter 1800s, the Grand Council's insistence on territorial integrity was obstructing westward expansion to the Prairies. In the 1870s, Crown authorities pressed for a treaty.

In 1873, Alexander Morris was one of three Commissioners empowered by the Privy Council to make a treaty that would open up safe passage from Upper Canada via Lake Superior and the Rainy and Winnipeg Rivers to the Prairies. He understood the political structure of the Nation and dealt with the Council as the government of a people: "I then told them that I ... wished to treat with them as a nation and not with separate bands...."[4] The North-West Angle Treaty (also known as Treaty 3) with the Crown was signed on 3 October 1873, thus securing access for the settlers to vast areas of land in what was to become modern Canada, and giving constitutional definition within both Anishinaabe law and Canadian law to the Anishinaabe Nation in Treaty No. 3. In his 1880 book on the Treaties of Canada with the Indians, Morris recounted that when, after difficult negotiations, the Treaty was concluded, the Council's "principal spokesman, Mawedopenais, came forward and drew off his gloves, and spoke as follows: 'Now you see me stand before you all: what has been done here today, has been done openly before the Great Spirit, and before the nation.'"[5] Treaty 3 is the only one of the eleven Numbered Treaties of Canada that was made with a single distinct aboriginal people.

The Treaty covers traditional territory of the Anishinaabe people extending from Lake Superior in the east into what is now Manitoba to the west. With a stroke of the pen, Treaty 3 extended by 55,000 square miles (140,000 km²) the area over which the Crown could, with apparent legitimacy, assert its sovereignty.[6] Of immediate strategic significance, it secured friendly passage for Canada to open up the West.[7]

Three years after Treaty 3 was solemnly signed, Canada enacted the Indian Act, which provided the legal and administrative basis for more than a century of colonial policies of dispossession, oppression and attempted cultural extinguishment of the Canadian Indian peoples.[8] In 1998, Minister of Indian Affairs Jane Stewart,[9] and in 2008, Canadian Prime Minister Stephen Harper,[10] publicly acknowledged and apologised for central elements of these policies.

The constitution of the Anishinaabe Nation in Treaty No. 3 is based on customary law that includes both sacred law and traditional law.[11] It is mostly uncodified. The making of Treaty 3 fundamentally affected the constitution of the Nation.[12] The Anishinaabe Nation in Treaty No. 3 is one of few sovereign Anishinaabe Nation whose constitutionally-distinct identity was confirmed in making Treaty with the Crown.[13] The making of Treaty 3 constitutionally severed the Anishinaabe Nation in Treaty 3 from its Anishinaabe relatives and set it on a distinct future path. Significantly, not all the Chiefs were present for the momentous Treaty 3 decision. Others subscribed to it later.[14] These events illustrated a unique and foundational principle of the Nation's constitution: the primacy of its communities.[15] According to this principle, while laws and national policy of the Nation do not require consent of its communities to become effective for the Nation, they become effective for and in each community only when the community has consented.

The Crown has fundamental rights under Treaty 3. These include the right of Canadians to enter and live peacefully in Treaty 3 territory and to share its natural resources. Because Treaty 3 was made with a single aboriginal people, it is clear that the Anishinaabe Nation in Treaty No. 3 is the "rights-holder" for the collective aboriginal and treaty rights of its citizens. In general, such rights are held by an aboriginal people of Canada (not a Band[16]). Aboriginal rights of the Nation include specific (local) rights and generic rights such as:

• the right to conclude treaties,
• the right to customary law,
• the right to the fiduciary protection of the Crown,
• the right to an ancestral territory,
• the right of cultural integrity,
• the right to a moderate livelihood, and
• the right of self-government.

Since 1982, the Nation's aboriginal and treaty rights, including its treaty right to exist as an aboriginal people in Canada, have been recognized and affirmed by section 35 of the Constitution Act, 1982.[17] Responsibilities of the Nation's government include protection of aboriginal rights and honoring Treaty relationships with the Crown and with other aboriginal peoples. When the Crown proposes actions that may affect treaty or aboriginal rights, such as changes to governance laws or child protection laws, or licenses for forestry or permits for mining in Treaty 3 territory, it must consult with the Nation through its government and accommodate or compensate potentially affected rights.

Grand Council Treaty No. 3 is the traditional government of the Nation.[18] Alexander Morris' records of his dealings with the Grand Council in 1873 recount details of his dealings with what he called "the Indian Council": "The nation had not met for many years, and some of [the Chiefs] had never before been assembled together." The origins of the Grand Council may predate written records. Historically, "The sturgeon during spring spawning season supported the assembly of up to 1,500 people at fishing stations on Rainy River. At Couchiching Falls (present-day Fort Frances), the Anishinaabe national government met each spring, relying upon abundant spawning runs of sturgeon and stored supplies of manoomin, maple sugar and Indian corn."[19] Traditionally, "Anishinaabe of Lake of the Woods and Rainy Lake had many different types of leaders, including Grand Chief, first and second rank civil chiefs, first and second rank soldiers, war chiefs, pipe bearers and messengers." The government of the Nation derived from and rested upon consent of the people. "Traditional values featured a distrust of excessive power and an emphasis upon consensual, rather than representative, democracy."[20] The Midewiwin Society, though systematically persecuted by colonial authorities, was also an integral part of the Nation's government: "The Midewiwin or Grand Medicine Society, a ranked curing society, operated in conjunction with the Grand Council, and many of its healers were also powerful chiefs such as Powawassin and Mawintopinesse. The annual spring Grand Council on Rainy River was also the occasion of Mide ceremonial activity."[21]

Today, Grand Council Treaty #3 continues to be composed of the many councils of the Nation.[22] Government of the Nation continues to be based on consensual democracy. The National Assembly, comprising leaders sent by each community according to its own determination, including elders, women and other leaders assembled in the presence of constitutional symbols of the Nation, determines national policy by consensus.[23] The National Assembly selects the Ogichidaa/kwe.[24] There is no fixed term; the National Assembly may reconsider its selection at any time. The Ogichidaa/kwe appoints members of an Executive Council and answers to the National Assembly for their performance. The Executive Council exercises the executive authority of the Nation. While its members may be local political figures, in their executive capacity they have fiduciary duties to the Nation as a whole. There is also an administration of similar name (Grand Council of Treaty 3) that is supposed to be dedicated solely to preserve and protect the Treaty and its rights, but against the opinion of many Chiefs has branched out into service delivery.

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