Innovations in First Nations Health: Exploring the Effects of Neoliberal Settler Colonialism on the Treaty Right to Health
by Rita Merrick
BA, University of Victoria, 2013
A Thesis Submitted in Partial Fulfillment of the Requirements for the Degree of
MASTER OF ARTS
in the Department of Political Science
ã Rita Merrick, 2019 University of Victoria
All rights reserved. This thesis may not be reproduced in whole or in part, by photocopy or other means, without the permission of the author.
We acknowledge with respect the Lekwungen peoples on whose traditional territory the university stands and the Songhees, Esquimalt and WSÁNEĆ peoples whose historical
Innovations in First Nations Health: Exploring the Effects of Neoliberal Settler Colonialism on the Treaty Right to Health
by
Rita Merrick, 2019 BA, University of Victoria, 2013
Supervisory Committee
Dr. Heidi Kiiwetinepinesiik Stark, Department of Political Science
Co-Supervisor
Dr. Jeff Corntassel, Department of Indigenous Studies
This thesis explores a recent innovation in First Nations health, the formation of Canada’s first provincial-wide First Nations Health Authority (FNHA). Analyzing this service model against Indigenous assertions of a Treaty Right to Health expressed in the Numbered Treaties, I argue that the realizations of the Treaty Right to Health cannot solely be met under neoliberal models of increased Indigenous capacity in health care service administration. I assert that these models of devolution do not enable Treaty First Nations to achieve Indigenous self-determination in accordance with Treaty rights, relationships and responsibilities. The current discourse on First Nations health care only minimally accounts for the Treaty Right to Health, and where it does, it is devoid of Indigenous understandings of a Treaty Right to Health that encompasses access to healthy lands, waters, and livelihood for an achievement of holistic wellness. Mobilizing an Indigenous autoethnographic approach which accounts for my own embodied positionality, this thesis problematizes the exclusion of holistic visions of health and well-being against settler governments’ orientations toward a neoliberalized health care system. This thesis extends a comparative analytical lens to the political mobilizations of Indigenous advocacy bodies in the province of British Columbia, whose efforts under the New
Relationship paradigm in Indigenous-state relations has resulted in an unprecedented practice of health care devolution.
SUPERVISORY COMMITTEE ... II ABSTRACT ... III TABLE OF CONTENTS ... IV LIST OF TABLES ... VI ACKNOWLEDGMENTS ... VII INTRODUCTION ... 1
THE TREATY RIGHT TO HEALTH ... 1
THE CASE OF THE BCFIRST NATIONS HEALTH AUTHORITY ... 6
TERMINOLOGY ... 10
THEORETICAL FRAMEWORK ... 11
METHODOLOGY ... 15
CHAPTER ONE ... 1
TREATY APPLICABILITY ... 3
Indigenous Legal Orders ... 5
Sharing of the Land ... 8
The Medicine Chest ... 10
TEKKUNDERSTANDINGS OF THE TREATY RIGHT TO HEALTH ... 13
Medical Provisions ... 14
Livelihood ... 16
CHAPTER TWO ... 20
STATIST NUMBERED TREATY DISCOURSE ... 20
The Production of State-Determined Treaty Discourse ... 21
Rearticulating the State’s Relationship to Treaty ... 31
CONCLUSION ... 37
CHAPTER THREE ... 40
CANADA’S HEALTH SYSTEM ... 40
Federalism ... 41
Bifurcation in First Nations Health ... 43
Decentralization ... 46
FIRST NATIONS HEALTH ... 48
Indian Health Policy, 1979 ... 50
Health Transfer Policy, 1989 ... 51
CONCLUSION ... 53
CHAPTER FOUR ... 54
THE BCFIRST NATIONS HEALTH AUTHORITY (FNHA) ... 54
Sociopolitical Context ... 54
The mechanics associated with the FNHA’s creation ... 57
Governance Model ... 63
ANALYSIS ... 71
Neoliberalism and Health Care Policy ... 72
BC First Nations Health Authority ... 75
CONCLUSION ... 87
Table 1 - Significant moments of relationship-building in the year 2005 ... 57 Table 2 - Key documents and partnerships leading up to the BC FNHA ... 60 Table 3 - Governance bodies and significant moments in time ... 64
Miigwech to my committee: Dr. Heidi Kiiwetinepinesiik Stark for your auntie-like guidance and attention to rigour. Your undergraduate political sciences courses harnessed much of my early critical awareness and left me feeling nourished. I am grateful to have had the opportunity to expand on this and learn from you at the graduate level. Miigwech Dr. Jeff Corntassel for your invaluable friendship and guidance. Your insight and support in the final months of my program have helped immensely.
I am grateful for the funding that supported my graduate studies: A Social Sciences and Humanities Research Council research assistantship under Dr. Stark; the Department of
Political Science; the Office of Indigenous Affairs; Indspire; Irving K. Barber. Miigwech Chief Todd Peigan, Lorraine Cyr, Jessica Gordon, Paula DuBois, and the Pasqua First Nation
Education Committee and support staff for your ongoing support. Nimishoomis, your love, encouragement of my educational pursuits and your feisty energy keep me going. I am indebted to Sharon Venne, whose generosity of time and teachings greatly expanded my comprehension of this topic early on and provided a grounding that I returned to throughout the process. Any errors found in this thesis are solely my own. Chi miigwech.
Nimaamaa, miigwech for being my first teacher in Treaty advocacy. The humility with which you take on this work at the grassroots level leaves me quietly awestruck. I cherish our car conversations on Treaty politics as we travel the highways to Pasqua, to the next pow wow or between Treaty 4 and Treaty 6 territory. I am so proud to be of you. Miigwech to my mentors and friends along the way: Tasunkezi, Keetsahin, to colleagues and students in the Indigenous Gathering Space at snəw̓eyəɬ leləm̓ – your gift is in your being.
Lastly and perhaps most profoundly, Miinan, you joined me in the last leg of this journey and the assuredness of your spirit and gentleness of your wisdom accelerated my drive to dive deeper into this work. You bring that next generation medicine. Miigwech for choosing me and for sharing your mom’s attention with this project. Miigwech Peptitsut Kinem, for keeping us nourished in body and heart whilst I dove head-first into new motherhood and toward thesis completion. You took on the mindset of completion alongside me and pushed aside barriers so that I did not have to – for that I am abundantly grateful. I love you both.
Introduction
My journey in my mother, biinesiik, started as a water journey. It was a journey saturated in prayer of the old ones from generations past. My mother’s bringing me forth was an act of living treaty. This act of regeneration was an embodied resurgence, one that is rooted in Treaty consciousness for Treaty had been secured in perpetuity; that is, as long as the waters flow. In my years I have travelled through Saskatchewan Treaty territories which precede the creation of provincial bounds. I spent my childhood travelling the network of highways between Winnipeg and Regina, whose branching capillaries lead straight to the heart of our own versions of home in Indian Country. As a treaty person the validity of my knowledge stems from this network of
connectivity. In the Summer of 2016, as I drive the four-lane highway from Treaty 4 and pass through the bounds of Treaty 6, I sit in contemplation with the skies of Treaty 6 homelands. Traveling through Treaty bounds is contemplative, it is dialogical, and it is prayerful. It was in this state of prayerful travel that I initiated my relationship to Treaty 6. As I make my first solo trip between Treaty 4 and Treaty 6 I approach rolling skies, pregnant with the promise of water nourishment for the lands. As I drive past acres of agricultural plots I question with frustration why treaty peoples suffer poor access to lands our own. I spent a year in Saskatoon, Treaty 6 for reasons that were unclear to me prior to my arrival. I know now it was to become closer to this work.
The Treaty Right to Health
Treaty was secured in perpetuity, that is, for as long as the waters flow. Sharon Venne, a Nehiyaw iskwew Treaty 6 legal scholar, explains that the common Treaty slogan, “As long as the
waters that run within our mothers, and to that which flow within us. Venne explains, “Because the Treaty is supposed to last for as long as water flows when women give birth, these words tie Cree women like me to the Treaty process” (2007, 1). The sacredness and connectedness of women and Treaty are sealed in the continuation of Treaty descendants.
This thesis argues that Treaty First Nations and the tenets which reflect the spirit and intent of the Treaty Right to Health are implicated by a recent innovation in Indigenous political
relations in what is now known as the province of British Columbia: the formation of the BC First Nations Health Authority. The Treaty Right to Health encompasses a fiduciary obligation of settler governments to provide medical services to Treaty First Nations as a fulfilment of the Medicine Chest. The Medicine Chest clause derives of the written interpretation of Treaty 6 (1876), as well as of oral negotiations of Treaties 1, 2, 3, 4, 5, 7, 8, 9, 10, and 11 (Lavoie 2016, 66). The Medicine Chest has been translated to equate the receipt of health care services by Treaty First Nations from the Federal government on behalf of the Crown. For Treaty First Nations this occurs, in part, via the Non-Insured Health Benefits (NIHB) program administered by Health Canada, save for those First Nations within the province of British Columbia. In addition to direct access to health care services, the Treaty Right to Health is understood by Treaty Elders and knowledge keepers to encompass the continual enactment of wellbeing that is derived of livelihood. Livelihood, that is, living in good reciprocal relations with all living things, exceeds the definition of a western biomedical lens which favours individualistic orientations, and
contributes to a wholistic understanding of individual and communal health. Livelihood has been excluded from the discourse surrounding the Treaty Right to Health and is rarely taken up in public health research and in public policy today.
Treaty Right to Health since the time of treaty negotiations in the 1870s. Discourse on the Treaty Right to Health centres around its interpretability and implementation, which has cemented the role of policy in its contemporary enactment. This occurs through the Non-Insured Health Benefits program, under which Status First Nations access health care services from the Federal
government. However, a dispute by settler governments as to whether these medical services are tied to the medicine chest clause persists (Lux 2016, 161; Daschuk 2013, 80). The presence of medical doctors who accompanied government agents to treaty negotiations (Waldram, Herring, and Young 2006, 177) and the emergence of Indian hospitals in the mid-twentieth century (Lux 2016), are regarded as symbolisms of the Treaty Right to Health.It is noted, however, that the attitude of governments toward this obligation was one of parsimony or outright denial (Waldram, Herring, and Young 2006, 173; Lux 2001).
Far from its original understanding at the time of Treaty negotiations, discourse surrounding the Treaty Right to Health has become contained in a world of health systems governance, policy and recognition politics. Access to this Treaty right is complicated by race-based legislation such as the Indian Act, 1876, which determines who is a Status Indian and therefore who can access Non-Insured Health Benefits. Medical historians and legal scholars have outlined the ways in which, since early interpretive and administrative considerations of treaty implementation were initiated, settler governments have denied its legal obligation to provide health care services to First Nations as a direct link which stem from Treaty (Lux 2016; Lavoie et al. 2016; Boyer 2004).
The realm of Treaty enactment has therefore been within a rights and recognition
Treaty Right to Health that exist in the hearts, stories, prayers and oral histories of Treaty First Nations peoples that has yet to hold proper space in state discourse: that of access to healthy lands, waters, medicines, and food sustenance which substantiates livelihood and are essential for good health.
This thesis is premised on the notion that policy as a driver of government ideology can and has had lasting harmful effects on Treaty First Nations. While renewed consideration of Treaty is occurring on a grand scale (Borrows and Coyle 2017; Asch, Borrows and Tully, 2018), policies and strategies of governance rooted in neoliberal order continue to impede the ability of Treaty First Nations to receive and reciprocate the rights, relationships, and responsibilities imparted unto them via Numbered Treaty negotiations. Public health researchers, legal scholars, and government agents have contemplated the role of the Treaty Right to Health in health services provided by Health Canada to First Nations people. Confusion or outright denial by Canadian governments that health services are rooted in an obligation to the Treaty Right to Health has limited the possibilities of this Right from being fully enacted today. Where Treaty
implementation is taken up by governments it is done so on the basis of textual interpretation and disregards the extra-textual, lived interpretation of Treaty that lives in the hearts and lands of Treaty First Nations in Saskatchewan.
In January 2017 the province of Saskatchewan announced its intention to amalgamate all existing health authorities into one central body, igniting a flurry of response from health groups, regions and Indigenous political leadership in the province as to what the new centralized body meant for the regional needs of health care recipients and their service providers. In response, Chief Bobby Cameron of the Federation of Sovereign Indigenous Nations (FSIN) called for a
province (The Canadian Press 2007). What is more, on February 23, 2017, after her visit to Regina and Saskatoon to promote her new book, Better Now: Six Big Ideas to Improve Health Care for All Canadians, Dr. Danielle Martin, an MD and health systems analyst from Toronto made the proclamation that of all the provinces in Canada, Saskatchewan is the most “fertile” place to host health systems change.1
In a First Nations health system susceptible to imminent change, in a geographic region noted for its unique possibilities, and amidst a Canadian state narrative of reconciliatory politics, the need to examine how settler states and policy makers engage Treaty is nigh. Considerable thought has been extended to what effective engagement of Treaty rights and relationships look like in Canadian legal doctrine. For example, scholars explored what treaty federalism could look like, calling on Canada to recognize a third order of government (Henderson 1994). Furthermore, the Royal Commission on Aboriginal Peoples ignited discussion on the need to re-engage
relations between Indigenous peoples and the state on a nation-to-nation basis (1996). And more recently, calls for Treaty and Indigenous constitutionalism (Borrows 2017; Mills 2016) have renewed the idea that at its foundation, Canada was built upon Treaty principles of relationality, shared co-habitation and Indigenous legal orders, and could therefore shapeshift to accommodate these principles into existing legal doctrine and praxis. While macro-level efforts are occurring that hope to enact a more effective realization of Treaty relationships in Canadian governance, on a micro level, examination of the implications that policy and frameworks of federal and
provincial governance have on Treaty, specifically the Treaty Right to Health, deserves renewed attention.
First Nations continues to exist between First Nations and settler governments. Borrows and Coyle explain, “… decades of inattention to the treaty relationship have left a legacy of confusion and disagreement about the implications of treaty-making in the modern world” (4). The Treaty Right to Health is indeed caught in a web of precariousness, nestled between the tines of a
neglected and confusing treaty understanding (Borrows and Coyle 2017), and a patchwork of First Nations health care policy (Lavoie 2013). Herein lies the justification to delve into the work of attempting to untangle the complicated web of contemporary First Nations health care and the Treaty Right to Health. This research is timely as there is a critical need to address treaty rights and responsibilities in this era of reconciliation politics, as well as a shifting health care policy environment in Canada wherein First Nations health policy is undergoing significant change.
The Case of the BC First Nations Health Authority
It will be argued that Indigenous-state relations within British Columbia poses challenges to the pre-existing diplomatic relations and associated obligations in Numbered Treaty country.2 The BC context represents a unique site of opportunity for relationship renewal that has been explored by both state and Indigenous governments through various routes (modern agreements, self-government agreements, new tripartite relationships, etc.). In particular, the inroads that have been made of tripartite relations headed by political representatives, and not by Indigenous Nations themselves, are positioned to have significant influence on the political relations across the spectrum of Indigenous-state engagement from coast to coast. These innovations have the power to influence the relations and outputs of Numbered Treaty contexts. Therefore the necessity
2 While the study examines the implications of provincial-wide devolution in Saskatchewan, similar
contexts, is high. The case of First Nations health in British Columbia is the chosen site of analysis for its recent and unprecedented political mobilizations and policy outputs in the area of First Nations health.
In 2013, The British Columbia First Nations Health Authority (FNHA) received delegated authority to administer the Non-Insured Health Benefits (NIHB) program from Health Canada. The FNHA is the first of its kind in Canada. It is an Indigenous-run, provincial-wide health organization which oversees fiscal responsibility for the design and delivery of First Nations health on and off reserve. The seed of this thesis was planted in my conscious in the summer of 2013, when I completed a three-month internship at the BC First Nations Health Authority as part of my year with the BC Indigenous Youth Internship Program (formally the Aboriginal Youth Internship Program). During this time, the organization was preparing for an October 2013 transfer date. This transfer date was significant in that it marked the unprecedented transfer of the provincial-wide administration of First Nations health from Health Canada to the then interim-FNHA. Upon my scheduled departure in late August, internal communications directed to me signalled a proposed similar transfer that may occur in my home province of Saskatchewan. I thought to myself: What does this mean for our Numbered Treaty right to health? What political assumptions are made under this provincial-wide model of health program devolution,
particularly ones that are unique to BC given the differing political and historical context of Indigenous-Crown and Indigenous-state relations in my home Treaty territory?
In British Columbia there are five regional health authorities (Fraser Health, Interior Health, Island Health, Northern Health, and Vancouver Coastal Health), the First Nations Health Authority, and the Provincial Health Services Authority (PHSA). Together these bodies
the Ministry of Health. Given the unprecedented nature of the organization and its relative
infancy, the literature on this endeavour is limited and even less research exists on its applicability in other provincial settings. Where literature does exist, it does so within the realm of public health studies, and where Treaty is taken up in this arena it often relies upon statist interpretations of Indigenous-state relationships, thereby failing to properly regard Treaty in its fullest
comprehension. The necessity to engage with public health discourse as it centres on First Nations Treaty rights from an Indigenous conceptualization of Treaty rights, responsibilities and
relationships is therefore heightened. This is particularly heightened given the perceived influence the formation of a BC FNHA is said to have on the rate of change in other Indigenous health jurisdictions across Canada (O’Neil et al. 2016). Herein lies the justification for a study that critically analyzes the assumptions that undergird historic and contemporary health care policy as it relates to the Treaty Right to Health. These innovations in First Nations health governance are explored amidst a renewed discussion of Treaty implementation in the twenty-first century.
Within the existing literature which explores systematic response to the variance that persists between First Nations health outcomes and that of settler Canadian populations, the BC FNHA is regarded as an innovative solution amid a new era of First Nations health policy (Kelly 2011) and is elsewhere heralded for its liberatory potential where community concerns over self-government and self-determination are continually pressed for state self-government recognition (Gallagher, Mendez, and Kehoe 2015). What is more, the possibility of this model’s expansion to other provincial jurisdictions is regarded by public health researchers as a marked opportunity for those First Nations communities interested in expanding its governance capacity (Kelly 2011;
rests.
The overarching query guiding this work is taken up in a context of diverse political tripartite relations between diverse Indigenous nations across Turtle Island. I ask: What is the current state of the Treaty Right to Health, as Treaty First Nations understand it and as it relates to First Nations health policy? Micro-level queries guiding the work are: What implications do transfers of authority, such as the BC FNHA, have on the Treaty Right to Health in the Saskatchewan context? Is the BC First Nations Health Authority an appropriate model for the Numbered Treaty context of Saskatchewan? How have settler governments interpreted the Treaty Right to Health and their role in the provision of services, and how are said services accessed by Treaty First Nations today? Finally, what possibilities for Treaty enactment exist under neoliberal governing orders?
What started as an exploration of the oral interpretation of the TRTH from Treaty Elders and knowledge keepers in Saskatchewan, has shifted the analytic lens to the institutions that uphold asymmetric and hegemonic assumptions of the Numbered Treaties that effectively suppress a fuller iteration of Treaty from being carried out. How settler governments are able to choose when, if, and how to engage in Treaty, and the embedded asymmetrical power they hold in the implementation of Treaty rights and relationships is an overarching query which drives this study. The intention of this thesis, therefore, is to outline neoliberalism’s reach in the
contemporary enactment of the TRTH within two contexts: Treaty relations under settler
colonialism, and within Canada’s health governance system. Each system play a particular role in quashing a full conceptualization of Treaty, and each context has had a particular influence on the state of the TRTH today. Those will be explored below.
minds of Treaty Elders and knowledge keepers. The intention of this chapter is to introduce the asymmetrical powers that exist in the numbered treaty discourse, particularly so in the area of health. Chapter two examines the role of neoliberalism in advancing a statist treaty discourse. Chapter three explores the historical context of First Nations health among Canada’s health system, which leads into chapter four on the BC FNHA. Chapter five is a critical analysis within the Numbered Treaty context, and the final chapter is an exploration of the conditions that
necessitate a rebalancing of Numbered Treaty discourse, and specifically that of the Treaty right to health, when contemplating the future of Treaty First Nations health in Saskatchewan.
Terminology
Throughout the thesis the usage of Treaty First Nations refers to Indigenous peoples who are of the Numbered Treaty context of Saskatchewan. Indigenous nations to have entered into Treaty in Saskatchewan include the Dine, Nakota, Cree, and Saulteaux peoples. It also, encompasses those who identify as a registered Indian under the Indian Act, 1876, for the purposes of aligning with the provisionary boundaries of First Nations health services policies. Although, it should be stressed that legal status obtained through the Indian Act does not make a Treaty First Nations person, nor does the Indian Act have anything to do with Treaty rights, peoples, and their livelihood. For Indigenous Treaty peoples the Act is but one means through which treaty rights and relationships are infringed upon by Canadian governments.
Establishing the spatial bounds of this thesis in accordance with provincial demarcations present a particular contention. To fuse this discussion to accommodate the federalist arrangement of settler governments and the imposed borders atop and across Treaty territories is but one
subsumed within and undermined by the Canadian bi-party jurisdictional framework. Given that the provinces are charged with certain aspects of public health of its citizens, given that First Nations peoples are implicated by provincial health insurance programs, and given that First Nations advocacy has become piecemealed into provincial representational bodies, the borders of the provinces are heeded in this work.
Additionally, where big-T Treaty is mentioned throughout the thesis, it is in reference to the Treaty First Nations conceptions which view Treaty as an extra-textual, living agreement encompassing relations with human and non-human parties and to which responsibilities and rights are derived. Small-t treaty is used to refer to treaty as it is taken up narrowly to encompass only those provisions contained in its written form and as it is incorporated in policy and political relations by settler governments, namely Canada.
Theoretical Framework
Eve Tuck proposes a desire-based framework of research to counteract damage-affirming narratives of Indigenous populations (416). To that end, this thesis is positioned within a desire to counter the statist treaty discourse with an antidote that explores possibilities for a fuller extension of the treaty right to health. To do so, I wish to extend a critical outlook of Treaty bureaucratizing in the areas of rights, relationships, and responsibilities, which remove Treaty from its original understandings and closer toward state-preferred models of implementation. I call upon the analytical framework provided in critical discourse analysis to engage with this settler state-securing discourse.
production and reproduction of ideas through communicative channels is a strategic move to power (O’Sullivan 1993; Hogan and Howlett 2015). In the case of state governments, power-securing ideas are expressed and sustained through political campaigns and speeches, in language of policy and agendas of the government in power, and party paradigms. For discourse analysts, language is the tool through which power and ideology is sustained. For political discourse analysts, law and policy is the mechanism through which that power is enacted (Howarth and Stavrakakis 2000).
Where the Numbered Treaties are concerned, discrepancies have arisen in their
interpretation both at the time of negotiations and in the time thereafter. The documentation of negotiations by Alexander Morris was arguably the first instance of Numbered Treaty alteration away from its fullest iteration, which encompassed Indigenous “dialogue, protocols and context” that influenced Indigenous negotiations and undergird relationship (Starblanket 2017, 88). This relational aspect, as will be spelled out in the following chapter, is at the crux of Indigenous understandings of Treaty and enactment of this Treaty responsibility necessitates relationship with human and non-human parties in Treaty. The act of producing a written record of oral negotiations and the associated provisions specific to each numbered treaty region, as proponents of discourse analysis would suggest, is not without prejudice. The current state of Numbered Treaty discourse in the context of Saskatchewan Treaty areas is one that favors textual interpretation over fuller, extra-textual conceptions. These extra-textual conceptions of Treaty exist in the hearts, minds, landscapes, and oral tradition of Numbered Treaty peoples. Despite this, the textual interpretation has held much weight over Indigenous conceptualizations of treaty negotiations and the
on this asymmetrical power-over dynamic which is currently at play in Numbered Treaty discourse.
Critical discourse analysis is a subfield of discourse analysis, of which the central project is to account for the presence of power in social and political relationships within a society (van Dijk 1993). Power in this sense refers to the asymmetrical representations of thought, expression, ideas, epistemologies present in the relationships between parties, particularly where one benefits from the subjugation and inferiority of the other. As Michael Howlett points out, Indian policy is the oldest policy area this country knows (1994, p. 631). And Sally Weaver notes a shift in paradigm over time that governments have exerted in their approach to Aboriginal policy (1980). The necessity to therefore deconstruct policy paradigms, and the epistemological powers that define the Indigenous-state relationship, from a critical Numbered Treaty perspective is needed in an area already lacking on its critical analysis of First Nations policy decision-making and the ideas of their founding.
Dale Turner (2006) argues that the Canadian state operationalizes its relationship to and responsibility for Indigenous peoples via three areas of discourse: the rights discourse, the
sovereignty discourse, and the nationalism discourse. In contemporary Indigenous-state relations, Paul Nadasdy (2003) deconstructs the power inherent in the language of statist approaches to self-government negotiations and land claims agreements in the Yukon. Nadasdy’s critical
examination of the asymmetrical power embedded in the processes upon which Indigenous nations seek empowerment, demonstrates a significant flaw in contemporary political relations whereby Indigenous law and self-determined futures are limited. Similarly, I explore the
provincial governments of British Columbia and Saskatchewan. Focusing the study on an analysis of the political discourse surrounding contemporary means of Treaty implementation will allow for a fuller assessment of the trajectory Treaty relationships have taken since their negotiation, and whether the understanding of Treaty is a symmetrical representation of what all parties to Treaty know it to mean, particularly around the Treaty Right to Health.
As far as discourse concerns the political wills of governments, Howarth and Stavrakakis explain:
We take discourse or discourses to refer to systems of meaningful practices that form the identities of subjects and objects… discourses are concrete systems of social elations and practise that are intrinsically political, as their formation is an act of radical institution, which involves the construction of antagonisms and the drawing of political frontiers between ‘insiders’ and ‘outsiders’. In addition, therefore, they always involve the exercise of power, as their constitution involves the exclusion of certain possibilities and a
consequent structuring of the relations between different social agents. Moreover, discourses are contingent and historical constructions, which are always vulnerable to those political forces excluded in their production, as well as the dislocatory effects of events beyond their control. (2000, p. 4)
Sarah Wiebe accounts for power produced and enacted through an “… ensemble of institutional, linguistic, practical, visual, and embodied sign systems” in her analysis of the constructivist character of government paradigm and policy (14). Bridging the intentional role of policy in securing a particular discourse in praxis, Wiebe classifies Canada’s structural and discursive approaches to controlling Indigenous lands, bodies, narratives and futures, as a thoughtful and multifaceted policy assemblage (17). Indeed, legislation and policy are affective means by which settler governments construct and cement discursive narratives surrounding Treaty. Language is the tool through which power and ideology is sustained. Where Treaty is concerned, the textual interpretation holds much weight over Indigenous conceptualizations of
negotiations comes to bear the responsibility of Treaty enactment, similar queries of relational implementation within existing settler institutions come to the fore. In an era of reconciliatory politics, the pan-Indigenous approach to Indigenous-state relations will not suffice. And since policy and legislative structures play a role in securing a statist treaty discourse, it is necessary to interrogate the ways in which they play a role in subsuming and undermining Treaty and the Treaty Right to Health.
Methodology
I utilize Indigenous autoethnography to centre my Numbered Treaty subjectivity, and that of my child, to critically engage what it means for two generations of Treaty descendants to hold rights and responsibilities that are rooted in Treaty, in this time and place of Indigenous-state relations which favors neoliberal orders in both politics (political relations) and policy (First Nations health). Indigenous autoethnography supports my engagement of this topic by privileging experience and mechanisms of knowledge transmission that centre the cultural and experiential knowledge of the Indigenous subject. Speaking to the bridge between autoethnography and Indigenous research and authorship, Paul Whitinui writes:
Indigenous autoethnography by its very definition asks us to consider epistemological perspectives equally and to draw together self (auto), ethno (nation), and graphy (writing). It also asks researchers interested in this method to consider their own level of
connectedness to space, place, time, and culture as a way of (re)claiming, (re)storing, (re)writing, and (re)patriat-ing our own lived realities as indigenous peoples. In many instances, merely telling our stories is not sufficient; we must also be prepared to show how stories are lived in authentically as well as meaningfully ways (2014, 467). As Onawa McIvor demonstrates, the lived experience of Indigenous authors is often inextricably linked to the subject matter and political analyses we produce. Inserting the self
Indigenous research (2010). By centering our subjectivities as an act of Treaty, lived, the methodologies I call upon both realign power symmetry toward ongoing Treaty fulfilment and critically engage the structures which prevent this from occurring. Indigenous autoethnography aids in this re-centering of Indigenous knowledge and experience. Critical discourse analysis, as the primary theoretical framework of this thesis, will enable a critical reworking of statist
numbered treaty discourse in order to re-center Treaty knowledge. Doing so is in alignment with methodological scholarship that seeks to re-centre Indigenous worldviews and knowledge systems (Smith 1999; Grande 2008; Wilson 2008; Absolon 2011) particularly against extractivist research practices (Gaudry 2011).
Treaty exists beyond the measurements and outputs produced of a textual interpretation. Instead, Treaty is lived (Mills 2017; Starblanket 2017; Craft 2013). This conception of Treaty is denied, however, amidst discourse that relegates it to an act of transaction of early settler colonial times. Not only that, doing so cements the state-derived narrative of treaties as contracts, which operates in opposition to the “treaty-as-relationship” understanding held by Treaty Indigenous peoples (Starblanket 2017; Mills 2017, 22). Therefore, in employing the call to embodied treaty relationality (Starblanket 2017, 130), it is with focused intention that my autoethnographic experience grounds what may be perceived as Treaty theory throughout the thesis, in a prayerful and thoughtful act of intentional human and Treaty regeneration.
Manulani Aluli Meyer eloquently speaks to the epistemological hegemony that permeate the minds of Indigenous peoples in nearly every aspect of life that we encounter. This
‘hermeneutics hazing’, as it is described, has long had Indigenous peoples, and intellectuals in this context, searching for ways to become more like the system within which we have become
these processes and toward a reclamation of our personhood through a reclamation of our own epistemological roots. Rooting the thesis in my and my daughter’s subjectivity is as much a methodology as it is a living engagement with Treaty. It is a statement against contemporary political relations which favor statist orientations and participate in the marginalization of a truer understanding of the Treaty Right to Health.
The thesis, therefore, is very much aligned with what Eve Tuck calls a desire-based framework of research (2009, 216). Under this framework, rather than prioritizing a damage-centered narrative of Treaty First Nations as victims of perpetual state infraction against Treaty possibilities, a desire-based framework is mobilized not only by my and my child’s subjectivities as Treaty descendants and proof of ongoing Treaty relationality and responsibility, but also in a sincere belief that possibilities for fuller Treaty enactment exist. While the desire to reconfigure Treaty narratives is rooted in disappointment of existing narratives, it remains hopeful of the work yet to occur. As Tuck writes, “Desire, yes, accounts for the loss and despair, but also the hope, the visions, the wisdom of lived lives and communities. Desire is involved with the not yet and, at times, the not anymore” (2009, 417). Treaty exists and is enacted in ways beyond settler state’s current comprehension. It is precisely this linkage to what was and what continues to be, perhaps if only on the periphery of politically-charged relationships, that Treaty is centered and lived throughout the study.
The journey of my own birth represent not only the continuation of Treaty relationality – relation to Creation, to human and non-human realms, and to one another – but also my
introduction to Western biomedical care. From the oral understanding of Treaty, the presence of western medical care signals the ongoing relationship Treaty First Nations hold with the Queen
understanding that the provision of health care services was secured through Treaty, and that the provision of health care services, among other Treaty provisions, is done so in exchange for the ongoing shared use of land by settler peoples. I recall from my childhood discussions of this right accompanying various doctors and dentist appointments, as well as the dismay on the voices of my mother and grandmother about the ever-shifting changes in policy that would alter the scale of care I was able to receive. Even as an adult, I easily recall how health services have altered over my lifetime, often in the form of clawing back on service allotments or prescription coverages.
My existence as a Treaty First Nation individual is under heavy administration given the status I hold as an “Indian,” a legally-sanctioned term ascribed to me upon my assignment in the Indian Registry shortly after my birth. Through legislation and policy, my subjectivity is
transformed at the will and the whim of the state. My positionality to the topic of this paper is therefore rich with overlap – I am a Treaty 4 person but I “access” health services through the BC First Nations Health Authority as dweller upon the lands of the territory of the Musqueam,
Squamish and Tsleil Watulth nations (i.e. a resident of British Columbia). The imposition that provincial powers have on Treaty is one point of analysis throughout this thesis.
What is more, this introduction was written as a descendant of Skwxwú7mesh matriarchs and her ancestors gathered in the waters of my womb. The unique positionality of her existence as a Numbered Treaty person is also implicated by the political maneuverings of the untreatied territories she is born unto. Her positionality as a descendant of Treaty 4 and as a descendant of the Skwxwú7mesh and Wet’suwet’en coastal peoples, carries forth the inter-Indigenous
Chapter One
My own birth was a water journey. A journey that was coated in prayer of the old ones from generations past. The physical and spiritual extension of my mother carrying me and supporting my entry into this realm was an act of Treaty, lived. My matrilineal ancestry is of Anishinaabe and Cree descent whose ancestral relations partook in the negotiations of Treaty 4 (1874). Treaty 4 covers lands in what is presently known as southern Saskatchewan and a sliver of western Manitoba. Like the ancestors before me, I was born upon Treaty 4 lands in Regina, a city named after one human party to treaty. The original name of these lands, Pile of Bones, refer to the bison bones found along the Wascana. This re-narration of the lands is a key feature of territoriality under settler colonial pursuits– that is, the act of asserting domination over lands such that its resources and original peoples are controlled (Kornelsen 2015, 69), or eliminated to suit state interests in capitalist expansion (Wolfe 2006). I spent my childhood travelling the network of highways between Manitoba and Saskatchewan, and the capillaries that lead straight to the heart of our own versions of Indian Country. As a Treaty person the validity of my
knowledge stems from this network of connectivity.
The Treaty Right to Health
The aim of this chapter is to uncover the conditions that prevent a fuller comprehension of the Treaty Right to Health from being fully enacted, by both settler governments and Treaty First Nations. It explores a growing discontent in the shared understanding of the Treaty Right to Health, and traces the root of this disagreement to the earliest iterations of Indian health policy of the Canadian state. Namely, that settler government believes it holds a non-obligatory role in the
provision of health benefits as tied to the medicine chest clause of Treaty 6 (1876), or any oral provision on health exchanged at the time of treaty making. This is in opposition to the
awareness that Treaty First Nations hold in the tenets which undergird their access to health care services through governmental programming, such as the Non-Insured Health Benefits Program (NIHB). The position of the Canadian state on Indian health, including the history of NIHB and other programming, is discussed in chapter three. For now, a discussion of Treaty First Nation conception of the TRTH is discussed.
In addition to a disagreement of the state’s role in the provision of health services that stem from numbered treaty negotiations, a second means preventing the enactment of a fuller conception of the Treaty Right to Health, as it is understood by Treaty Elders and Knowledge Keepers (TEKK) in the numbered treaty contexts of the Prairie West, is in the inability of Treaty First Nations to access their land and waters as a means to fully enact Indigenous conceptions of livelihood. Livelihood, as will be discussed, can be regarded as synonymous with categories of public health’s social and Indigenous determinants of health. This extra-textual understanding of the Treaty Right to Health is effectively stymied amidst a discourse of state-determined self-government, which, it will be argued, settler and Treaty First Nations political representational bodies are operationalized to uphold.
After a review of the current state of literature on the implementation of so-called historic treaties and what it means for Indigenous-state relations in this current neoliberal era, this
chapter turns to a discussion of the Treaty Right to Health in accordance with Treaty Elder and Knowledge Keeper oral history. This uncovering will inform the possibilities of Treaty futures amidst neoliberal governmental relations with Indigenous peoples and neoliberal governance of national health care laid out in the conclusion.
Finally, this chapter closes with an examination of the Treaty First Nations response to the role of policy and government in the enactment of Treaty rights, relationships and
responsibilities. This closing discussion will inform the discussion of the following chapter, which explores the role of provincial Indigenous advocacy groups in advancing state or Treaty First Nations conceptions of Treaty in a time of neoliberal Indigenous-state relations.
Treaty Applicability
Exploration of this topic is supported by the contributions of Indigenous and non-Indigenous scholars to the reframing of treaty discourse away from state-favouring
interpretations and toward an understanding that more fully encapsulates the spirit and intent of these sacred covenants. Since the time of treaty making, there has been considerable unrest amongst Indigenous treaty negotiators and their descendants as to the state’s tendency to mitigate its Treaty responsibilities through the use of a limited or narrow conception and enactment of their meaning. Nehiyaw iskwew scholar Sharon Venne asserts that if we are to understand the nature of treaty in its fullest comprehension, it is necessary approach the subject beyond its written scope. She writes, “the written text expresses only the government of Canada’s view of the treaty relationship: it does not embody the negotiated agreement” (1997, 173). Venne goes on to say, “[f]ortunately, Treaty Nations have also kept a record of the treaties in their oral histories, and these can provide another understanding of treaty agreements” (ibid.). Similarly, Nehiyaw scholar Neal McLeod urges a pushing back against discourses of Treaty that secure hegemonic epistemic certainty of statist views of treaty over Cree perspectives (37).
The written interpretation of numbered treaties presented by Alexander Morris, Treaty Commissioner and Lieutenant Governor charged with leading negotiations of Treaties Three,
Four, Five and Six, has been the authoritative point of reference in discussions of treaty interpretation and implementation. Indeed, Canada takes the position that only stipulations confirmed by the written version of treaty contained in documents of the Queen’s Printer are considered to be formal “articles of treaty” (Cardinal and Hildebrandt 2000, 49). An article of treaty, particularly in the judiciary, lends to definition of what constitute existing treaty rights.
Whereas the non-Indigenous party to treaty relies upon the written scope of the treaty negotiations, the Indigenous side held more emphasis over the aspect of relationality that stem over the course of said negotiations. Gina Starblanket, a nehiyaw iskwew scholar from Treaty 4, writes of the relationality embedded within treaty negotiations in response to “treaty
mythologies” that perpetuates the narrative of the numbered treaties as land cessation agreements (2017;18). Rather than one-time transactions, Treaties are viewed by Treaty First Nations as living agreements that invoke relations between human and non-human parties in Treaty (Starblanket 2019)
The denial of Treaty’s relational components is an active feature of what Anishinaabe legal scholar John Borrows refers to as Canada’s colonial narrative (2017). Under this narrative, Canada’s founding story is supported by “legal fictions,” which predicated the occupation of settlers and the unquestioned establishment of colonial governments atop Indigenous lands and waters. According to Borrows, Canada’s legal foundations, and therefore its interactions with aboriginal and treaty rights, are founded on a colonial narrative that harbors a deficit-based outlook of the positioning of Indigenous peoples on Turtle Island. If a righteous colonial
narrative were to be expressed it would better encapsulate not just the violent colonial doctrines of conquest and force, but this nation’s founding principles of “persuasion, reason, peace, friendship, and respect” (2017, 19), which are rooted in treaty relationality of the late eighteenth
century. The Royal Proclamation, 1763, and the Treaty of Niagara, 1764, provide the backdrop of Borrows’ assertion that this nation-state’s formation occurred via diplomatic consent of Indigenous peoples. These international diplomatic exchanges are “sources of authority” that Canada has strategically denied its awareness of.
In The Right Relationship: Reimagining the Implementation of Historical Treaties, John Borrows and Michael Coyle consider what a fuller invocation of the so-called historical treaties could entail in their current implementation. The authors state that the relational feature of treaty making was asserted in the use of kinship identifiers by both parties to secure the nature of the treaty process. They further stress that inattention to the kin-like relationship of treaty making has “… left a legacy of confusion and disagreement about the implications of treaty-making in the modern world” (2017, 3-4). This inattention that the authors speak to has manifested in asymmetrical power exerted in a privileging of the policy and political relationships of settler governments between government and Treaty First Nations. Further complicating matters is the trend toward national political advocacy groups charged with balancing the interests of diverse First Nations across Turtle Island. A critical look at the manufacturing of NGO-like entities as they have been utilized to support the neoliberal agenda of settler states is taken up in the next chapter. For now, it is worth noting that the current discourse of the numbered treaties has
centered around their interpretability and applicability in contemporary Indigenous-state political relations.
Indigenous Legal Orders
Numbered treaty negotiations were entered into with the tenets of Indigenous legal orders intact. Summarizing the conversation of revered Treaty Elders and knowledge keepers in
that “[t]he traditional law of First Nations peoples has spiritual, moral and legal aspects that are inseparable. The Treaties entered into from the late 18th century to the first half of the 20th century were, and are today, regarded as sacred documents by First Nations because of the ceremonies that accompanied the act of Treaty-making and because spirituality, morality and law are fused under First Nations cultural traditions” (AFN 2008, 15). Alexander Gray, invited guest to an Elders and Treaty Six Chiefs' meeting with the Special Rapporteur to the United Nations, Miguel Alfonso-Martinez in Onion Lake, Saskatchewan, reports on his witnessing of Treaty history and its ongoing sanctity throughout the meetings proceedings. Gray explains that the ceremonial components of the treaty negotiations in the late 18th century are those which led the proceedings of the treaty conference. He writes, “[w]e must consequently understand the
ceremonies as complementary to the Treaty, reinforcing the indigenous interpretation which came afterwards” (41). Here, Gray elucidates the extra-textual components to Treaty and
challenges the temporal frames that settler states have attributed to treaty interpretation. “Kept in secret, empowered by certain songs handed down from father to son, the Elders explained that the truth of the Treaty lay in the pipe, not in the document” (1997, 33).
To that end, in summarizing his interviews with Treaty Elders as part of the Treaties and Aboriginal Rights Research series, Gordon Lee explains that truth and sanctity is embedded in pipe ceremonies. He writes, “In the presence of the pipe, only the truth must be used and any commitment made in its presence must be kept” (111). Furthermore, as Turtle Mountain Ojibwe scholar Heidi Kiiwetinepinesiik Stark explains, “[t]he use of pipe and other diplomatic traditions incorporated the Creator into the treaty negotiations. Therefore, treaty rights are not restricted to those mentioned expressly in the written agreements, but must also account for pre-existing relationships and responsibilities across Anishinaabe aki (the Earth) that were impacted by these
agreements.” Stark further explains that, “[t]he use of the pipe in treaty-making incorporated the Creator into the treaties and established a commitment between the various parties to the treaty” (2017, 256). Indeed, Treaty Elders and knowledge keepers often assert that the Treaties were not only made between Indigenous and non-Indigenous human entities, but that the Creator was a present party to Treaty. This is represented through the smoking of the pipe leading up to and throughout many numbered treaty negotiations. This extra-textual understanding of the sanctity and associated responsibilities attached to Treaty is effectively left out of the Canadian state’s efforts to implement Treaty today.
Alexander Gray lends helpful analysis to the conditions of the Canadian state’s mentality that has contributed to asymmetrical interpretation. He explains, the Canadian state interprets Treaty as a one-dimensional transaction. The Indigenous parties to Treaty, however, exceed the temporal and spatial configurations of an interpreting settler state. “The meaning of the Treaty lies not only in the text but even more in the whole process of creating that text which the Cree and Dene captured through their spiritual world” (Gray, 48). In reference of the Indigenous approach to Treaty that encompasses and privileges relationship to the Spirit World, Gray writes, “… we have here an example of a people who collapse duration and extension into an invisible world. The effect of this is to alter radically the hermeneutic and post-modern preoccupation with interpretation as ‘difference.’ Rather than being a text which changes over time, the Treaty becomes a prayer in the hands of the spirit beyond time and space. Instead of being based on difference, the spirit world of the Treaty is based on sameness.”3 Here Gray is moving the conversation beyond the typical portrayal of textual observation and is extended its understanding beyond temporal frames.
He continues, “Whereas radical political stands by Indigenous Peoples are assumed to be borrowed from non-indigenous cultures, the Onion Lake meeting showed that the radicals are the spiritual traditionalists. The Indigenous Peoples who signed Treaty Six use spiritual means to by-pass the contingencies of history. They see their territory as providing a spatial framework for temporal change through the spiritual principles which flow from the Treaty” (50). Gray summarizes that it was on an equal footing that Cree and the British sovereignties entered
Treaty: “The Cree want to preserve their sovereignty while the Canadians wish to destroy it. The implications of these conflicting perspectives go right to the heart of the notion of interpretation” (45-46). Treaty as it has been taken up by governments asserts the placement of one sovereign power over the other. Therefore, power play an important role throughout the time of Treaty-making and thereafter.
The privileging of statist interpretation of Treaty over that of Treaty First Nations is captured in what Gray refers to as “state power versus spirit power” (28). The absence of spirit from the Commissioners interpretation of treaty and the explicit interest in a language of land cessation in the treaty text make up a discourse that support state power over the diplomatic exchange and Indigenous lands at the time of treaty and thereafter where considerations of its interpretation, and later of its implementation, are concerned. A discussion of the strategic production of power in the formation of discourses is taken up in the next chapter. For now, Gray’s analysis that so long as the state dissects spiritual power from Treaty, and the relationality embedded in spirit, a discussion of Treaty’s applicability in contemporary form is devoid. Sharing of the Land
Speaking to the common discourse of numbered treaties as mechanisms of land
the time of the Treaty signing, the Chiefs and Headmen agreed to share their lands with the non-indigenous people. The Chiefs and Headmen only agreed to share the top soil to the depth of the plough. Indigenous Peoples never surrendered, sold or otherwise alienated the land, water, trees, mountains, resources above and below the ground, animals, birds, fish and all over living
things.” She continues, “The Chiefs, Headmen and citizens are the caretakers of the land, the resources and all living things for the future generations. The Creator never gave any authority or privilege for anyone to sell, cede or surrender the lands which are for the future generations. The only authority which was possessed by the Chiefs and Headmen under the laws of the
Indigenous people was the share the lands” (Venne 1997, 6). This element of land-sharing extends from the rationale of continual access to livelihood, in perpetuity, for all parties to treaty – that is, both human and non-human life were accounted for.
Gail Bear explains that shared use of the land was an understanding of Indian leadership at the time of treaty negotiations (1976, 4). Furthermore, the Office of the Treaty Commissioner explains that shared use of the land, continued livelihood, and education amidst a changing world on the prairie landscape were some of the components secured by Indigenous negotiators (2007, 11). At no point in the negotiations was land discussed as a surrender, but the manner through which it is taken up in treaty text and in government agenda post-treaty is one way in which a move to state power is exerted over the Indigenous perspective of treaty and treaty negotiations (Gray, 27-28). This understanding, however, has been quelled within a state-favouring, or statist, numbered treaty discourse that operates to secure settler permanency and parsimony to the ongoing Treaty relationship.
This section explored the tenets of treaty-making that undergird Treaty First Nations stance at the time of Treaty and in the time thereafter. Mainly, that treaty-making carried out
long-existing tenets of relationship-making which were present among Indigenous nations prior to treaties with the Crown (Venne). That this relational aspect of treaty stem from Indigenous legal orders; legal orders which were actively invoked throughout negotiations. That the lands, waters, resources, and Indigenous livelihood were never discussed in terms of cessation. Rather, that a principle of shared usage of the land undergird negotiations, and that these considerations of Treaty live in perpetuity. Now that the context of Treaty-making in the minds of Treaty First Nations has been explored, the chapter turns to a discussion of the Treaty Right to Health and its meaning which extend beyond that found within a statist treaty discourse.
The Medicine Chest
Nestled between the tines of a neglected and confusing Treaty understanding (Borrows and Coyle 2017) and a patchwork of First Nations health care policy (Lavoie 2013), the Treaty right to health is caught in a web of precarity. Where divergent understandings are held between settler governments and Treaty First Nations as to the reason that provisions for medical health benefits to First Nations exist, there also exist a complex realm of policy concerning the health outcomes of First Nations on and off-reserve that complicates the question of the treaty right to health in contemporary relations.
For instance, health care policy concerning First Nations encompasses both a federal and a provincial responsibility. What is more, health care policies differ depending upon the province in which a First Nations individual resides. To complicate matters further, the federal
government holds a responsibility to First Nations on reserve, whilst provincial governments are charged with the health care of First Nations off reserve. First Nations access health services as claimants through the Non-Insured Health Benefits (NIHB) program. Where individual claims
present jurisdictional overlap between the federal and provincial governments, the result is a sometimes deadly battle between governments over fiscal responsibility.4
Finally, these individual policy considerations are all caught under a structure of health care governance which favours neoliberal, market-driven and biomedical models of healthcare. Not only is the TRTH undermined by statist interpretations of Treaty, but it is further undercut by national health care discourse, yet another arena wherein Elder and knowledge keepers’ understandings of the Treaty right to health are unheeded. Herein lies the justification to delve into the work of attempting to untangle the complicated web of contemporary First Nations health care and as it relates to the TRTH. To do so, the following section explores the TRTH as it is understood by Treaty First Nations. Elsewhere in the thesis the state and its judicial view on the TRTH, and the creative use of the policy relationship, is explored.
The Treaty Right to Health is contested in its interpretation (Favel-King 1993, 121). Negotiated into Treaty 6, 1876 by Cree negotiators at Fort Carlton, the medicine chest clause was captured in written record by Alexander Morris and his associate scribe. The Treaty Right to Health is held by Treaty First Nations to mean that, in its broadest sense, provisions for the continued health of Treaty First Nations were secured by Indigenous negotiators of the numbered treaties (Lavoie, Kornelsen, Boyer, and Wylie 2016, 66-68; Waldram, Herring, and Young 2006, 175-175), and that non-interference on Indigenous ways of life, including traditional means of ensuring health and wellbeing, however derived by the Indigenous nation in question, could be enacted in perpetuity (Lux 2016, 161-163; Boyer 2003, 17-21).
The promise of provisions and non-interference in Indigenous livelihood surrounds the inclusion of the medicine chest clause, which is reflected in the textual interpretation of Treaty
4 For further reading see Cindy Blackstock (2012). “Jordan’s Principle: Canada’s Broken promise to First Nations
Six, 1876. However, as Lavoie et al. demonstrates, said promises were also implied through oral commitments of Treaties 1, 2, 3, 4, 5, 7, 8, 9, 10, and 11 (Lavoie 2016, 66). The Treaty Right to Health is partially reflected in the medicine chest clause, but not to the level of the fulsome meaning expressed by Indigenous leaders. Interestingly, despite having “legally binding” relationships and obligations which stem from numbered treaties (Boyer 2014), the government of Canada holds the view that its responsibility to the provision of health services is strictly a matter of policy which stem from benevolent efforts of an early government (Health Canada 2011, 2; Lux 2016). In other words, it is a service untied to any legal obligation which stem from numbered treaty provisions (Lux 2016; Lavoie et al 2016; Boyer 2004).
Amongst Treaty First Nations, there exist a growing discontent with what is regarded as a slow erasure, or clawing-back, of Treaty health care provisions. Early investigation into what conditions led to this slow eradication, and approximately when this approach began, has led medical historians to conclude that settler governments were never intent on providing health care services to First Nations beyond the grounds of humanitarian relief (Lux 2016, 148); relief that was undoubtedly in the interest of securing the health of a growing settler population. For Treaty First Nations, however, the provision of health care services administered via the NIHB program of Health Canada that is distinct from Canadian citizens is a demonstration of the TRTH, enacted. What is more, prior to the existence of the NIHB program, the presence of Indian Hospitals throughout the Prairie West were thought by Treaty First Nations to represent this access to the Treaty right to health. As Maureen Lux explains, the emphatic denial of the government that Indian hospitals represented an acknowledgement of state-obligation to the Treaty Right to Health was an attitude of early Indian health policy (Lux 2016, 144).
While the receipt of health services make up one component of the Treaty Right to Health, there exists a multi-layered understanding of this Treaty right that has become subsumed within a neoliberal public health domain. That domain is explored later in the thesis. For now, a discussion highlighting that the Treaty right to health is a lived extension of a relationship with all of creation – relations with human and non-human parties in Treaty – and that this
understanding encompasses Indigenous conceptions of health and wellbeing is critical for our understanding of Treaty fulfilment today. This definition of the TRTH is effectively left out of any advocacy towards a fuller implementation of the Treaty Right to Health from both settler governments and First Nations political advocacy groups.
Instead, under neoliberalist paradigms of health care governance, First Nations advocates are caught within a discourse of self-governed administration of existing and shifting Canadian health governance. The possibilities for an altered Treaty reality remain couched within the comfort of the state in paradigm and practice. There exists a need, therefore, to properly heed a fuller conception of the TRTH and to critically examine the politics of recognition and
reconciliation which limit a fuller enactment of the TRTH from being carried out. Before delving into an analysis of contemporary Indigenous-state relations in the implementation of Treaty, the next section will uncover what a fuller conception of the Treaty Right to Health entails.
TEKK Understandings of the Treaty Right to Health
This section is informed by published interviews conducted with Treaty Elders and knowledge keepers in Saskatchewan and Alberta. Interviews drawn from include those
conducted by the Treaty and Aboriginal Rights Research program in the 1970s. An intention of the TARR program was to capture Indigenous interpretations of treaty from Alberta Elders, as a means to combat the one-sided view of treaty interpretation (Hickey, Lightening and Lee 1999,
103), a subject which became of increased focus in Indigenous-state relations in the latter third of the 20th century. Other sources utilized are published accounts of oral interpretations of the numbered treaties within the bounds of what is now referred to as Saskatchewan, found in secondary source materials.
Additionally, reports of various political advocacy groups meetings where numbered treaty interpretation and implementation are a central theme are explored; including reports of various gatherings hosted by the Assembly of First Nations (AFN), the Indian Association of Alberta (IAA), and the Federation of Sovereign Indigenous Nations (FSIN; née Federation of Saskatchewan Indian Nations).
In a review of interviews and reports, the following themes emerge in the shared interpretation of the Treaty Right to Health: that medical provisions were to be provided to Treaty First Nations; that that which was negotiated in one numbered treaty area extend to other numbered treaty areas; that health encompasses access to traditional livelihood in perpetuity; and that an enactment of the Treaty right to health necessitates a responsibility of Treaty First
Nations to the relationship with land, waters, medicines, and non-human life that coincided with the positive “health” of Indigenous groups before Treaty. The intention of highlighting this understanding is to disrupt the statist numbered treaty discourse that limits true extensions of Treaty relationality from occurring today, and to disrupt the persistent pattern of First Nations treaty advocacy, which is to cement discussions of the TRTH within the limited realm of policy. Medical Provisions
According to TEKK, the Medicine Chest Clause of Treaty 6 should not be interpreted from a literal reading of its textual representation. Following her interviews with Treaty Elders of Alberta, Lynn Hickey explains, “[w]hat was promised is variously referred to as ‘doctors’,
‘medicines’, ‘hospitals’, a ‘medicine chest’ and a ‘medicine bag’, all of which may be translations of the same thing” (1976, 12). Hickey continues, “Any elders who discuss the subject, state that treaty Indians were promised that they would not have to pay for doctors, hospitalization, medical services, however it is stated, and feel this is the other area in which promises were broken” (ibid.).
Writing in 1976 and amidst an increasing discussion of the role of health insurance policies as they relate to the receipt of health services by Treaty First Nations, Hickey concludes with the following statement on Medicare: “The Indians apparently had some discussions in length regarding medicare. The Indian interpretation of a medicine chest as mentioned in Treaty six includes everything in the area of medicare, medical services. A medicine bundle for an Indian at the time was everything in terms of medicare. Reason for that is: whereas that time there was not as much diseases among the Indians and what diseases there was among them, they had their own medicine for it. So when the Queens’ representative negotiated with the Indians (Medical Services), that meant full coverage to the understanding of an Indian. Whereas the agent would keep the medicine chest. So as the Indian would have easy access to medicine. Where any new disease would be treaty first hand” [sic.] (ibid., 15). The influence of health insurance programming is taken up more extensively in chapter four. For now, it is significant to highlight that Treaty Elders and Knowledge Keepers regard medical provisions of the biomedical model as one facet of the Treaty Right to Health.
Furthermore, the Indian Association of Alberta (IAA) highlights a significant concept voiced by Morris at the time of Treaty Seven negotiations, whereby the "principle of equal treatment" amongst all numbered treaty areas was applied throughout negotiations (5). The IAA report on Indian Health Care states, "We must derive from this statement that all the numbered
