Proclamation differentiated Indian title to land in North America from non-Indian title in five significant ways. First, it reflected the fact that, in 1763, the Crown understood that it must at least formally recognize the legitimacy of, and negotiate on equal political grounds with, “Indian Nations.” The Royal Proclamation is guided by the doctrine of conquest set out in the Memorandum of the Privy Council in 1722.
Second, under the Proclamation, Indian title is defined as being collectively or communally, not individually, held. Furthermore, this title is limited to use rights, like hunting and fishing, that are comparable to perpetual leases rather than to ownership. The uses in question must be only those practiced before European arrival. The Royal Proclamation therefore acknowledges First Nations as having some form of interest in their lands and resources. Whether, by legal interpretations, or cultural assumptions, this “Indian title” is of equal value to “Crown title,” or is some less valued form of property right that constitutes “a burden” on the Crown’s title, is a subject of ongoing controversy. Third, the Proclamation dictates that Indian title can be only be transferred to the Crown. A number of debates have arisen concerning both the intent and the consequences of this clause. Many historians have argued that the insertion of this clause was primarily motivated by a humanitarian, paternalistic concern to protect Indians from unscrupulous frontier land speculators. Others argue that this clause reflects a power struggle between the Crown as state, and corporate and private interests, for monopoly over lands and resources. Still others focus on competition between international imperial interests and those of the emerging local, colonial governments.
Fourth, the Proclamation identifies Indians as “Nations or Tribes”18 and guarantees Indians the protection of the Crown. This would later come to be expressed as a “fiduciary duty.” Ongoing debates involve whether or not this fiduciary duty and the obligations it entails should be interpreted as resulting from a negotiated, trust-like agreement between equal parties, or as reflecting a relationship of dependency analogous to the parent/child relationship which is also classified, in law, as a “fiduciary duty.”
Fifth, the Royal Proclamation requires that Indigenous land rights can only be surrendered at a public assembly at which Indians give their consent. This issue comes up particularly in treaty litigation where some Aboriginal claimants argue that, whatever negotiations and agreements are claimed by the Crown to have been reached with their ancestors, the representatives who signed the treaties had not been mandated to do so by their constituencies, and there was insufficient knowledge of and/or participation by the required majority of the Indigenous land holders to render the treaty legal.
In these interpretations, the possibility that Aboriginal peoples may not have wanted to sell, cede or by treaty give sovereignty or lands to anyone is not provided for in the written words of the Royal Proclamation of 1763. Nor is the possibility entertained that Aboriginal sovereignty could remain dominant, or could co-exist with Crown sovereignty.
Another significant debate about the Royal Proclamation of 1763 centres on the degree to which both British and Aboriginal intentions and understandings should inform contemporary interpretations. United States Native American legal scholar Robert Williams Jr. argues that the proclamation’s “two goals—facilitating the profitable Indian trade and protecting Indian lands to prevent costly hostilities—were viewed as complementary halves of a self-serving colonial policy put forward by mercantilist interests and their advocates in the British Ministry at Whitehall in the 1760s.” “Its discourse,” Williams continues, “was one of interest and expediency as articulated by armchair empire builders in the Old World, who viewed the honoring of promises made to savages in the New World as the cheapest, most ‘expedient’ means of containing both frontier defense costs and inland expansion by British American colonists.”19
Canadian First Nations legal scholar, John Borrows, reiterates Williams’ points about British intentions, but argues that interpretations of the Royal Proclamation limited to the words written in the document alone do not take into account the negotiations, gift-exchanges and other events that took place surrounding the production of the written text and recorded in First Nations oral traditions that reveal their intentions and interpretations. Ignoring the oral history of the Royal Proclamation, Borrows charges, “privileges one culture’s practice over another.” He goes on to argue that his inter-cultural interpretation of the Royal Proclamation suggests that “The Proclamation uncomfortably straddled the contradictory aspirations of the Crown and First Nations when its wording recognized Aboriginal rights to land by outlining a policy that was designed to extinguish these rights…. The different objectives that First Nations and the Crown had in the formulation of the principles surrounding the Proclamation is the reason for the different visions embedded within its text. Britain was attempting to secure territory and jurisdiction through the Proclamation, while First Nations were concerned with preserving their lands and sovereignty.”20
1. Calvin’s Case 1608 cited in Walters 1993: 360.
2. For a thorough, and very readable, account of the application of terra nullius in Canada, see Richardson 1993.
3. For a comprehensive analysis of this argument see Asch and Macklem 1991. The authors conclude: “We believe it abhorrent that Canada was constituted in part by reliance on a belief in the inequality of peoples and that such a belief continues to inform political and legal practice in 1991” (510).
4. For a very thorough articulation of this argument see Derrida 1992. See also Hunt 1993; and Sayer 1987.
5. Aboriginal legal scholar James Youngblood Henderson, for example, explains that “Canadian law is not impersonal but racially biased; its legitimacy is threatened if not destroyed by its denial of order and freedom to Aboriginal people…” Henderson and Henderson 1985: 186.
6. See, for example, Hamilton and Sinclair (eds.) 1991; and Turpel 1991(c).
7. See Dyck 1991.
8. See Venne 1997; and Chamberlin 1997.
9. Dickason 1992.
10. Henry 1809 quoted in Jones 1982; and Slattery 1985: 119.
11. The phrase, “Imperialist Nostalgia,” is taken from Rosaldo 1989, who defines it as the yearning for that which one has destroyed.
12. Laslett (ed.) 1964.
13. Francis 1992; and Trouhillot 1991.
14. Tully 1993(b).
15. Tully 1993(c): 10.
16. There have been a number of published versions of the Royal Proclamation of 1763, and wording varies in different publications. The quotation cited here is taken from Chief Justice Allan McEachern’s 1991 Reasons for Judgment, in Delgamuukw v. R., 313.
17. For a survey of debates about both the historical context in which the Royal Proclamation was negotiated and the legal consequences for Canadian Aboriginal peoples in the present see Borrows 1992, 1997; Slattery 1991; Walters 1993. For analysis from a Native American (U.S.A.) perspective, see Williams, R. A. 1990(b).
18. The intended meaning of this language has also been hotly contested, with some arguing that the British Crown thereby recognized the sovereignty of Indian Nations, and others asserting that the words were used rhetorically or insincerely by the British to appease the Indians.
19. Williams, R. A. 1990: 237.
20. Borrows 1997: 160-161.
PART III
TERRA INCOGNITA
(UNKNOWN LAND)
Chapter 5: The Great Chain of Precedent
Suddenly, even the most hardened land-market capitalist assumed the mantle of zealous advocate of the Indians’ natural-law right to engage in unregulated real estate transactions. Neither the King, nor the landed colonies “owned” the lands on the frontier, argued these speculators. The Indian tribes occupied these lands as free and sovereign peoples. By natural law, the Indians could therefore sell their rights to