lecture 14: seven years war & the royal proclamation

Seven Years War: (4)

• last of the major french-english conflicts that affected north america

• largely due to french expansion in the ohio valley & mississippi valley - american colonists felt the french were blocking their westward expansion - conflict quickly drew in various First Nations

• capture of Louisbourg (french) in 1758 and then the Battle of the Plains of Abraham and the fall of quebec of 1759

• french surrendered in the treaty of paris in 1763 turning over all their territories in turtle island to the english

after the treaty of paris (1763) the english had 4 problems to deal with immediately after the end of the Seven Years War:

1. they had to organize the governance of their newly acquired colonies in quebec, florida, and cape breton island

2. they had to deal with the desire of the 13 colonies to expand westward

3. there had been many unfair and illegal land transactions begween the First Nations and the colonists in the 13 colonies (americans) which led to ongoing conflict and warfare - had to deal with the discontent of the First Nations over this issue

4. many of the First Nations, especially further west, did not see that the surrender of the french meant their surrender and so did not see that they had to subject themselves to british rule

the problems the english had to face after the treaty of paris led to the promulgation of…

the Royal Proclamation of 1763

the Royal Proclamation of 1763: (4)

half the proclamation deals with the reorganization of quebec/florida

• first thing it does is set a westward boundary to the 13 colonies, basically along the Appalachians

• beyond this boundary is Indigenous territory

• this greatly upsets the american colonists as they wanted to expand westward and some, like george washington had already speculated on some lands to the west (this is one of the key factors leading to the american revolution)

3 things clearly stated in the Royal Proclamation of 1763:

1. no private person may purchase any lands from Indians or reserved to said Indians within those parts of our colonizers where we have settlement

2. if at any time the Indians want to dispose of their lands, they shall be purchased only for us, in our name

3. at some public meeting/assembly of the Indians, to be held for that purpose by the governor or commander of our colony respectively within which they shall lie

the Royal Proclamation of 1763 interpretations:

• clearly lays out that Indigenous lands can only be bought by the crown, at a public meeting and fair price - this is the basis for all future treaty making in Canada and thus has been referred to as the Indigenous bill of rights (with constitutional force in Canada and is referred to in the construction act of 1982)

• note that the crown in this sense refers entirely to the government authority and not simply the king alone

but there are problems with this interpretation

3 main problems with the interpretation of the Royal Proclamation of 1763:

1. does the royal proclamation recognize Indigenous rights in land or does it create them?

2. where does the royal proclamation apply?

3. does the royal proclamation imply that First Nations are sovereign or self-governing?

1. does the royal proclamation recognize Indigenous rights in land or does it create them? (2)

• it seems to be a straight reading that suggests that the Indigenous people have rights in the land and they can choose to then sell those rights to the crown - so there are existing rights that are then being transferred to the crown

• but recall the doctrine of discovery - under it, the country that first plants its flag acquires the underlying title to the land - meaning the crown already has the title to the land and the proclamation creates some kind of Indigenous interest in the land that then must be settled by the crown

2. where does the royal proclamation apply? (2)

• at the time of the proclamation, the lands to the west of the mississippi river and to the north were largely unknown to the europeans - can the proclamation be said to apply in unknown lands such as BC? (since it has constitutional force in Canada it is generally accepted that it applies across Canada)

• after the american revolution (which was largely fighting against these terms) the royal proclamation no longer applied (leading to a different history of legal land relations)

3. does the royal proclamation imply that First Nations are sovereign of self-governing? (4)

• says “nations with whom we are connected” which seems to suggest sovereign nations

• also says, “tribes… who live under our protection” and would thus be subjects or wards of the crown

• seems that the first applied to those nations still in the Indigenous territory and thus sovereign, while those who live within the 13 colonies are under protection of the crown

• cannot be resolved with the present evidence

royal proclamation tested - St. Catherine’s Milling case of 1883: (4)

• treaty 3 had been signed, and the federal government felt that this transferred the land to themselves and thus granted a logging license - ontario disagreed, saying that the Indigenous peoples only had a kind of partial ownership of the land that the federal government bought out and only ontario had the right to issue a license

• taken all the way to the judicial committee of the privy council - rules: “the tenure of the Indians was a personal usufructuary right, dependent on the good will of the sovereign”

• Indigenous people have a limited title, no outright ownership, that acts as a burden on the crown - crown has underlying title and Indigenous people gave a kind of surface title to hunt and fish over the land

this was the legal position that remained in place until 1973

Treaty of Niagara 1764: (4)

• led by Pontiac and the “Delaware Prophet,” the First Nations around the southern great lakes resisted the defeat of the french and subjection to the english - took multiple forts in the interior including fort detroit and fort pitt

• Sir William Johnson called together some 1700 people from 24 nations - basically to ratify the royal proclamation

• Pontiac does not attend but ratifies a year later

• since the treaty is oral and written in wampum the Canadian government does not recognize it