The transcending motives for voyages to the New World during the sixteenth and seventeenth centuries were not much different for the respective Crowns of Europe. Although the pretense of their missions was to take Christian teachings to the heathen, there remains little question that their piousness was a sham. It was not the Holy Spirit that filled the hearts and minds of monarchs and explorers in the sixteenth century but, rather, a cancerous lust for gold and other valuable resources that could be easily extracted from the land and ferried across the ocean to make monarchs and investors rich. For the Spanish, in particular, the driving ambition was not to conquer and possess new lands but, rather, to find and extract gold. Jack Weatherford has estimated that between 180 to 200 tons, with a contemporary value of $2.8 billion, was ferried from the New World to Europe from the beginning of the sixteenth to the middle of the seventeenth centuries. The treasures of precious metals the likes of gold and silver increased ten-fold in Europe by the beginning of the seventeenth century, expanded Europe into an international market system, and provided the catalyst for the birth of a capitalist world economy.
Following Columbus's 'Arrival' in the New World the Spanish Crown sought to legitimize their claims to territories in the Americas vis-a-vis the other Crowns in Europe (ie: French, English, Dutch and Portuguese) through the support of the Papacy in Rome. Premising their actions with an intention to spread Christian teachings to the Aboriginal inhabitants, King Ferdinand and Queen Isabella convinced the Pope to validate their territorial discoveries through a Papal Bull, the Inter Catera of 1493. This Bull was law within Christendom and was ratified by Spain and Portugal through the Treaty of Tordesillas in 1494. But Bulls and Treaties were not considered as being legally binding on third parties, and "...each nation had to make good its own claim." One such method for doing so under the Law of Nations was the doctrine of Discovery. Since this doctrine proved to be suspect even in its own day, monarchs had to conceive of additional rationalizations to defend the usurpation of territories in the New World. To do so they employed the doctrine of Conquest. The validation of a claim based on Conquest would require the defeat or surrender of a given peoples to the Crown in question as a consequence of warfare or the threat of warfare. Under the Law of Nations a formal declaration of surrender and evidence of occupation would transfer sovereignty from the vanquished to the victors and the acquisition of territories would be legitimized, at least until the next invading army happened along.
Synonymous with the maxim, 'might is right', this doctrine could, in theory, provide validation for the extinguishment of Aboriginal title, if, and only if, it could be established that the Aboriginal peoples in the Americas were 'conquered.' From the research collected for this work it would seem clear that Spanish title to lands in Central and South America could be defended within the Law of Nations during the sixteenth century if the other states of Europe had been willing to acknowledge and accept as a customary rule Spanish territorial acquisitions in New Florida and Peru by the swords and muskets of the Conquistadors. But, while the historical evidence supports the premise of conquest in relationship to battles with the peoples of the Aztec Empire and within the Mississippian cultures routed by Hernando de Soto in the Eastern Woodlands, it is also clear that the other monarchs within Christendom poured scorn on these claims. Even the Papacy discredited the Spanish claims and tried to defend the rights of Aboriginal peoples.
In A.D. 1537 Pope Paul III produced the Bull, Sublimis deus sic dilexit, in which he declared that the Aboriginal peoples of the Americas were not to be treated like "...dumb brutes created for our service...[but] as true men..." and tried to dictate that they not be deprived of their liberty or lawful possession of their property. Pope Urban VIII would try a century later to threaten excommunication for those who deprived Aboriginal peoples of their liberty or property, but the Spanish Crown exerted its influence on the Papacy to ensure that the Bulls did not take affect within the territories they had claimed. The legality and morality of their actions had already been refuted within Christendom and, consequently, within the Law of Nations of their age. When the Reformation witnessed the division of Christendom into Catholic and Protestant denominations by the middle of the century any measure of acceptance for these territorial titles vanished. Following the defeat of the Spanish Armada in 1588 it became more difficult for Spain to make good its claims and parted the waves for England and France to journey the high seas on their own mercantile adventures. The fact that Protestant monarchs, "...could not be expected to acquiesce.." to the claims of Catholic monarchs essentially invalidates the premise of a 'customary rule' accepted by all states in Europe under the Law of Nations. This, in turn, invalidates the doctrine of Conquest as a legitimization for the acquisition of territorial title in the Americas, at least as far as the Spanish Crown is concerned.
As noted previously, the New World comprised a massive region of the globes inhabitable land mass and a multiplicity of societies and cultures across its length and breadth. When European explorers reached its coast-lines at different points during the sixteenth and seventeenth centuries their arrival, and their sphere of initial influence, was somewhat analogous to a mosquito landing on the back of an elephant. Undoubtedly their coming was noticed by the Aboriginal peoples of the age and many stories within the mythology of Aboriginal societies across North America make reference to the strange white beings with hairy faces that had come upon the land. It is pure conjecture on my part, but I suspect that the "moccasin telegraph" spread word-of-mouth accounts about these peoples almost as quickly in the sixteenth century as news about the score of a given hockey or football game can travel across the continent from one coffee house to the next in the twenty-first century. As an example of this communications network, Alan McMillan has noted that when the French explorer, Jacques Cartier sailed into Chaleur Bay on his first voyage to the northern regions of the continent in 1534 his ship was met by the Mi'kmaq peoples who, "...loudly hailed the ship and waved furs on sticks to signal their eagerness to trade - suggesting such relationships had been established for some time." Clearly, claiming sovereignty over such vast territories and diversity of peoples was grandiose rhetoric intended for strategic posturing in the Old World against competing commercial enterprises and had absolutely no correlation to the reality of power in the New World. In fact, it has been noted that, although Jean-Fracois de La Roque (Roberval) was originally commissioned by Francois I, "...to find and subdue the immensely rich Kingdom of Saguenay...", it has also been acknowledged that the French learned very early in their experiences with Aboriginal peoples in the seventeenth century that they, "...would accept neither European claims to land ownership and sovereignty nor French laws and taxes."
Following the hiatus of exploration between La Roque's unsuccessful mission in 1542 and Samuel de Champlain's ventures into the New World in 1603 the engine for French mercantile initiatives was clearly driven by economic considerations relative to the trade in beaver pelts and other furs and had little to do with claims of territorial title. As Margaret Conrad has noted, the French recognized that for the fur trade to be successful they would require the alliance and assistance of the Aboriginal peoples and that they would be forced by diplomatic considerations to abandon any goals of exercising direct sovereignty over the indigenous population. According to Historian, Thomas B. Costain, "...it was clear from the start that the experiment in colonization would be carried out in the face of bitter opposition from the natives." Consequently, the French were, "...obliged to recognize the original inhabitants as "free and independent people" with title to their ancestral lands", and did so through such instruments as the Treaty of Montreal in A.D. 1700, when they, "...recognized the Iroquois as an independent nation." Indeed, both the French and the British would rely upon alliances with the Aboriginal peoples of the New World in order to repudiate and challenge the claims of territorial title made by the representatives of other Christian Princes. In doing so they not only disavowed the claims of their European contemporaries, but they also were compelled by the realities of power in the Americas to acknowledge and tacitly conform to the sovereignty of the nations of Aboriginal peoples they encountered and interacted with.
Under such conditions it would be farcical to profess a legal entitlement based on either the doctrine of Discovery or Conquest. There were as many as fifty million people in the Americas in A.D. 1500. Although several writers have made reference to a dramatic decline between A.D. 1500-1650 in the Aboriginal population to a mere 10% of their numbers at time of first contact - as a consequence of diseases brought to the New World and intensified warfare brought about by ambitions within both New World and Old World power politics to control the terms of trade and achieve territorial supremacy - it should also be noted that by A.D. 1627 the European population of Canada had only reached 107 people. European explorers and imperial representatives ferried back and forth across the Atlantic for a series of mercantile expeditions throughout the sixteenth and seventeenth centuries but made very limited penetration into the lands that they claimed title over. In point of fact, it was not until A.D. 1778 that Captain James Cook made his way as far as the North West Coast to establish trade with the Nuu-chah-nulth in Nootka Sound; as late as the A.D. 1858 'gold rush' on the Fraser River before Aboriginal peoples in the Interior Plateau would have anything but transient contact with traders and explorers; the middle of the eighteenth century before traders began to expand their efforts through the establishment of forts on the northern Plains; and the late-nineteenth century before the Inuit of the Arctic had anything but fleeting contact with 'pale-face' peoples. It should be noted that in all such encounters the primary European motive was the establishment of trade, and not the conquest of territories. The monarchs did not send invading armies first but, rather, merchant ships, and the companies they commissioned, although possessing grandiose pronouncements of territorial grants could not have and would not have survived in the New World had they approached Aboriginal peoples in any other fashion than with a measure of respect for their independence and for their evident control and sovereignty over the lands on which they lived.
Captain Martin Frobisher made the first foray into the New World on behalf of the English Monarchy in A.D. 1578, but it was not until after the defeat of the Spanish Armada in A.D. 1588 that England was able to increase its participation in the plunder of the North American continent. Even then, it would be three-quarters of the way into the eighteenth century before they could assert any claim as the predominant European Crown in the New World. In the early years of colonization, with the establishment of Jamestown in A.D. 1607 and the Pilgrims arrival at Massachusetts Bay in A.D. 1620, it is a stretch of the imagination to assert that any measure of sovereignty under the Law of Nations was achieved over the new lands by either Discovery or Conquest. As well, though the intolerance practiced on the Puritans in Europe became manifest within the treatment they in turn practiced against the Aboriginal peoples they encountered in North America, there were contemporary voices the likes of Roger Williams in their midst who, in A.D. 1643, "...advocated religious tolerance and Indian land rights." When, in A.D. 1644, the English defeated the Dutch, the Covenant Chain between the Dutch and the Mohawks became a political alliance between the English and the Iroquois and stands as affirmation and recognition of the independence and nationhood of the Iroquois Confederacy. Indeed, both the French and the British believed that the Iroquois Confederacy was powerful enough to topple any ambitions of empire building by either Crown and both paid homage to the balance of power they possessed through the practice of diplomatic negotiations and the presentation of gifts in order to curry their favor and support.
In A.D. 1670 the English King, Charles II, established the "Honourable Company of Adventurers of England Trading in Hudson's Bay" (the Hudson's Bay Company). Although there was a Crown grant of territories in the New World to this company, it must be observed from both the name of the company and from the goals it was established to achieve that there was nothing but grand-standing behind the jurisdictional allocation. As Jack Weatherford has noted, the purpose of this company was, "...to extract something for trade or profit." To assert that the Hudson's Bay Company achieved sovereignty over lands in what was to become British North America by the consequence of this grant would be tantamount to concluding that regional sales territories defined by company directors in the board rooms of I.B.M. or Federal Express could also achieve a sovereign title over lands. Aside from the fact that in International Law only a state, and not a corporation, can be recognized as possessing the attributes of a sovereign, it is just plain lunacy to suggest that any measure of 'control' or 'rule' over an area of 3,695,000 square miles of territory inhabited by a plethora of distinct and powerful Aboriginal nations was achieved. As late as A.D. 1772, more than a century later, the traders for the Hudson's Bay Company had still not been able to penetrate into the territories on the northwestern Plains controlled by the Blackfoot Confederacy, and it would not be until David Thompson visited with the Peigan in A.D. 1787 that, "...the Hudson's Bay Company gained the favor of the largest of the Blackfoot tribes." Even then, there was no acknowledgement by the Blackfoot of any subordinate relationship relative to the Hudson's Bay Company or the British Crown as well as no capacity for making good on such a claim by either of the latter mentioned parties. Any pompous orations of such claims would undoubtedly have placed the traders within a circle of unrelenting ridicule, if not imminent demise. Domination over the lives of this proud warrior society would not come about until the collapse of the Bison herds, plagues, and the devastation cast by the European practice of 'Spirit Water' for trade payments on hides and pemmican had devastated their numbers to such a degree that it became possible for settlers within the region to take advantage of their weakness. Until at least A.D. 1839 the balance of power was in their hands on the northwestern Plains, and their independence was well acknowledged by the 'Red Coats' and the 'Long Knives', as well as the Cree, the Assiniboine, and the Kutenai.
By the beginning of the eighteenth century France's interests, under the leadership of King Louis the XIV, had shifted back to the Old World. Determined to place his nephew on the throne in Spain, the War of Spanish Succession in A.D. 1702 served to alter the colonial agendas of the European monarchies. Through the Treaty of Utrecht that ended the war in A.D. 1713 the French Crown agreed to throw its colonial claims into the balance for the peace process and conceded within the treaty that the British Crown was to be acknowledged as possessing sovereignty over the Iroquois in the regions previously claimed as New France. This assertion of sovereignty was rejected out-right by the Iroquois and the British Crown had insufficient resources to make good its claim. Far from being able to achieve supreme rule, this ostentatious presumption of sovereignty went unrecognized and was unenforceable in Iroquois country, and the English knew it. As a consequence, they continued to recognize an allied relationship and maintained the customs of diplomacy and gift giving for services rendered as allies against the French. In addition to an unbroken practice of treating the Aboriginal peoples as independent nations of allies, the British Crown also began the process of formal treaty-making with the Maliseet peoples in the Treaty of Portsmouth of A.D. 1713.
With the first of what are referred to as the "Peace and Friendship" treaties, it is important to note the choice of instrument used to negotiate an end to hostilities between settlers and the Aboriginal peoples. A "treaty", as defined in Webster's Dictionary, is "...a formal agreement between two or more states with reference to peace, alliance, commerce, or other international relations"(italics added). While this definition is taken from a dictionary in the twenty-first century, there is little doubt that the terminology was understood in the same context within the eighteenth century. These were not benevolent grants from 'the Great White Father' who, seeking to be generous and good to his 'subjects', decided to show some kindness toward them through a formal domestic legal instrument, as some might like to suggest. Had that been the case the protections put in place by the treaty would have been recorded instead within a Statute of the British Parliament. Rather, it was an international political compromise under conditions of inter-societal conflict and negotiations that the British Crown undertook in order to prevent the complete destruction of the gains that had been made in the New World. Within this treaty, as well as the A.D. 1725 Treaty of Boston signed between the Mi'kmaq peoples and the British, the Crown in England censured British subjects from the molestation and disruption of Aboriginal peoples in their territories. The British required the cooperation of the Maliseet and Mi'kmaq peoples in order to help achieve the mercantile objectives of the fur trade, and the encroachment of European settlers into 'Indian Territory' seriously threatened that economic cooperation, along with the military alliances required to check the competition of imperial initiatives in New France.
As Chief Justice John Marshall noted in the nineteenth century in respect to the words 'nation' and 'treaty', words the likes of 'peace', 'friendship', 'unmolested', and 'undisturbed' have clearly defined meanings within the English language and their adoption into the political dynamics of the early eighteenth century were intended to serve specific diplomatic purposes; they were utilized in negotiations with the Maliseet and Mi'kmaq peoples and incorporated within formal declarations in order to placate pissed-off allies and prevent them from exercising further wrath against the colonies.
The period between A.D. 1700 and at least A.D. 1814 has been termed the period of the "Middle Ground"; when the dependence on the cooperation and assistance of Aboriginal peoples in the fur trade, the alliance of Aboriginal nations against the French and the emerging threat of warfare in the thirteen colonies of the Americas ensured that the indigenous peoples would be treated with formal recognition of their independence and rights to dominium by all of the immigrants from Europe.
In A.D. 1760 the United Province of Canada was established under assumed British sovereignty following the Articles of Capitulation in Montreal. In Section 40 of the Capitulation the French sought to protect the interests of their Aboriginal allies by asserting that they were to be recognized as independent nations, and the British Crown conceded to these terms. When, in A.D. 1763, the English emerged from the Seven Years War (A.D. 1756-1763) as the dominant European Crown in the New World they still had to face the prospect of a challenge to their universal authority over the lives of the immigrants in the Thirteen Colonies of America. Also, they were facing the threat of Pontiac's Rebellion (1763), which was undermining their control over colonial holdings and threatening the entire mercantile enterprise. Again, rather than through some sense of benevolence, the British Crown was compromised by the pragmatics of politics to concede to the demands for independence and dominium that Aboriginal peoples continued to maintain a strong attachment toward, and was obliged to issue the Royal Proclamation of 1763 in order to censure British subjects from interfering with First Nations allies in their own territories.
This legislative instrument has been considered as part of the domestic law of Britain and carries the weight of a Statute in the English Law tradition. As such, it has been dubbed the 'Indian Charter' and is purported to provide domestic law statutory authority for the claim that Aboriginal peoples maintain the right to be left "...unmolested and undisturbed..." in "...Indian Territory"; since the right acknowledged by King George III has never been repealed or extinguished in the 250 plus years since it was 'granted' by the British Crown. Presuming that one accepts the premise that the British Crown had established effective sovereignty over British North America by this point in history, it is through reference to this Proclamation that Aboriginal rights to self-government and self-determination within Canada are to be legally defended under English Law. As the argument runs, the British Crown, and by extension the Canadian Crown, is legally bound by their own legislative instruments and judicial precedents to acknowledge and defend the right of Aboriginal peoples to self-government and self-determination, since the case of Campbell vs. Hall in A.D. 1774 established that, "...capitulations in general were binding upon the King in Council...", and the "aboriginal right was conceded under both the capitulation and the proclamation." Further, since these rights have never been repealed, they are now "...recognized and affirmed..." as a consequence of their inclusion within the "...existing Aboriginal and treaty rights..." that are protected by Section 35.(1) in the Constitution Act, 1981.
I argue that this Proclamation does serve to define the acceptable legal behavior of colonial subjects toward the Aboriginal allies of the Crown vis-à-vis English Law, and does stand in defence of an Aboriginal right to self-government and self-determination within Canada's Constitution. But, or perhaps I should say 'in addition', I would also argue that the Proclamation does not serve as an acknowledgement of unfettered British sovereignty in British North America, or by extension a subordinate legal stature for Aboriginal peoples which would make whatever rights they are able to garner from the Crown dependent upon it's will and pleasure.
It is my view that, in keeping with the customary rules of politics during the late eighteenth century, this royal prerogative was intended to articulate within domestic laws the 'Protectorate' association that the British Crown had established with its First Nations allies. Subsequent to the pronouncements of this Proclamation, the Crown continued to respect and acknowledge through formal international proceedings the allied relationship of First Nations' peoples vis-à-vis the British Crown, and in so doing gave unequivocal credence to their status as 'Protectorate states' under the Law of Nations. In A.D. 1832 the U.S. Supreme Court concluded that, "...the Indian nations of North America had been protectorates of the British Crown:...", in the case of Worcester vs. Georgia, and Justice C.J. Marshall made reference to the, "...settled doctrine of the law of nations...that a weaker power does not surrender its independence, its right to self-government, by associating with a stronger, and taking its protection." As Maureen Davies has observed, the relationship of "protection" is, "...an ancient principle of the law of nations." She goes on to affirm that "...a sovereign state may exercise its power to create for itself a voluntary state of dependence...," and that, "...[t]he effect of limited association would be to unite two states under one Crown but not under one law."
In A.D. 1928 the United Nations ruled in the Island of Palmas case that, "sovereignty over territory means "the right to exercise therein, to the exclusion of any other state, the functions of a state," but elaborated on this principle by noting that said sovereignty, "...is not necessarily unlimited. Other states may, by treaty or local custom, acquire minor rights over the territory,...". From this brief critique of the status of sovereign title within British North America it is argued that the Crown's sovereignty in these territories was, and continues to be, fettered by the sovereign interest that First Nations' societies maintain in the lands on which they have lived since time immemorial, and that the creation of their 'voluntary state of dependence' through treaties signed during the nineteenth century does not, in any way, preclude them from re-asserting their independence and internationally recognized right to self-government and self-determination vis-à-vis the Canadian Crown under the constructs of the Law of Nations or International Law.
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