The Archivist

^{no. 16}
The Proclamation of 1763
A model for the establishment of Treaties

Although treaties between the Indians and the colonial officials were reached prior to the Royal Proclamation of 1763, the latter served as a model for the establishment of such arrangements. When an agreement is reached between two nations, it is signed and sealed, giving rise to a contractual obligation to fulfil it. Early treaties between Indian nations and colonial governors were usually resolutions of "peace and friendship." From approximately the nineteenth century, these arrangements typically involved an Indian tribe ceding land to the Crown and, in return, the Crown promising the Indians reserves of land as well as special rights in areas such as hunting and fishing.

In the Proclamation of 1763, King George III of England declared a British system of governing in the areas that had been surrendered by France, and pronounced that the Indians and their lands would be treated with respect. In practice, the British Crown negotiated with the Indians and arrived at mutually agreeable treaties.

This notion of acquisition of Indian land by consent was not new to North America, and so for existing British colonies the Proclamation of 1763 merely confirmed an established practice. In the territories formerly held by the French, however, much was to change. Prior to 1763, the French maintained that once they discovered and occupied a region, they became absolute sovereigns. According to this approach, the Indians had no title or other rights and hence no position from which to negotiate. French officials left the responsibility of any dealings with the Indians with the Catholic Church, whose role was, through religious instruction, to assimilate them into the European culture. The Proclamation of 1763 clearly marked a new beginning for these Indians, but also established the foundation for future Indian/government relations. Canadian jurisprudence on the Proclamation has held that the principle of treaty negotiations extends not only to the old and new British colonies referred to in the document itself, but to present-day Canada as a whole. In this way it remains a very significant and useful instrument in Indian affairs.

The British promise to reach a consensus peacefully rested on the belief that Indians held rights in North America. Contained within these was the right to land. Any regions found to be essential to the Indians’ way of life were not to be disturbed. Indian land could be settled only after a formal agreement between Indian leaders and the government had been reached. By negotiating treaties like this, the Crown ensured stability in these territories. After many years of war with Indian tribes that sided with the French, the British realized that if they wished to settle North America, peace with the Indians was essential. The Proclamation of 1763 was the Crown’s first expression of good faith.

It appeared that the Proclamation of 1763 had nothing but the most noble intentions. In fact there were some flaws in it at the time, and other ones that have developed recently. For example, it declared that the Crown was best suited to alienate Indian lands. This meant that all leases and sales of Indian lands would be forever conducted through the Crown as an intermediary. Responsibility and control thus lay with the governing officials and the Indians, conveying a hierarchical relationship rather than an equal partnership. This inequality was also evident in the Proclamation’s implicit preference for written treaties. Unlike the Europeans, who had recognized written agreements for several centuries, North American Indians believed in an oral tradition. Indians formed treaties among themselves by conducting ceremonies marked by the exchange of "wampum"or traditional beadwork. The actual treaty was oral and would be passed on through the generations in this way. In the agreements between the Indians and government officials, attempts were made to combine the two traditions, but over time it became apparent that the written word held greater legal weight than the oral tradition.

Capitulations and extracts of treaties relating to Canada: with His Majesty’s Proclamation of 1763 …
Quebec: P.E. Desbarats, 1800, pp. 26-27.
(C-130523)

Another weakness in the Proclamation of 1763 lies in the nature of the document. Unlike other pronouncements of its stature, it does not have Constitutional status. The Constitutional Act of 1982 contains a schedule of all our constitutional documents, and no materials prior to Confederation in 1867 are included. There is, however, reference to the Proclamation of 1763 in section 25.a of the Canadian Charter of Rights and Freedoms. It states that the rights and freedoms recognized by the Proclamation fall under the Charter’s protection. Given these conflicting interpretations, the strength of the Proclamation remains unclear.

Treaties created as a consequence of the Proclamation are also in a rather nebulous position. In effect, Indian treaties are only as strong as the respect accorded to them by the various provincial or federal governments in power. This is because treaties are only equal to any other piece of legislation and can be overridden by new enactments. Indeed, laws have been passed that limit the extent of the rights originally granted to certain treaty Indians. This is of particular concern in light of section 25 of the Charter, which states that it will grant protection only to "existing" native rights or freedoms. Modifications to the treaties by way of legislation could mean that former Indian rights would be forever extinguished.

Despite its curious status vis-à-vis our Constitution and some of its other deficiencies, the Proclamation of 1763 is still considered a very important document for understanding Indian/government relations and for interpreting the treaties that were born from and guided by it. Its enormous value to our documentary history is also supported by the fact that it has been referred to as the "Indian Bill of Rights" or equivalent to the "Magna Carta" for Indian affairs.

In the face of these positive qualities, it is curious to report that the National Archives holds no surviving originals. There are several transcribed copies of both the October 7, 1763, document proclaimed by the King in England and the one later pronounced by the Superintendent of Indian Affairs, Sir William Johnson, in North America on December 24, 1763; the National Archives also has a negative photostat of this latter document. For its part, the Canadian Institute for Historical Microreproductions (CIHM) has determined that there are five known originals. One is held by the Society of Antiquarians in England, another by the Privy Council Library in London, England, a third by the Massachusetts Archives in Boston (CIHM has obtained a microfilmed copy of this one), a fourth by Brown University in Providence, Rhode Island, and the last by McGill University in Montreal in the Lande Room. Individuals interested in conducting research on the Royal Proclamation of 1763 can also consult numerous published versions of the document and contact the National Archives to read correspondence of various people associated with this historical event.

Jackie Henry
Government Archives Division