On May 3, 2023, Whitecap Dakota Nation and Canada signed “A Self-Government Treaty Recognizing the Whitecap Dakota Nation / Wapaha Ska Dakota Oyate.” This Treaty is the first ever stand-alone, treaty-protected self-government agreement in Canada, and the culmination of more than a decade of work and negotiations beginning in 2009.

The Treaty is also the first Indigenous self-government agreement in the province of Saskatchewan.

A crucial recognition in the Treaty

Crucially, the Treaty recognizes Whitecap as an "Aboriginal people of Canada" within the meaning of s. 35 of the Constitution Act, 1982. It also recognizes Whitecap's inherent and constitutionally-protected right of self-government, and provides treaty (and therefore constitutional) protection to Whitecap's jurisdiction over a wide range of matters affecting its lands and people. The Treaty is expected to become effective on September 1, 2023.

The Dakota/Lakota are the only Prairie First Nations that are not parties to any of the historical numbered treaties, having been systematically denied treaty rights and recognition by Canada on the false premise that they were "American Indians."

The formal recognition of Whitecap as an "Aboriginal people of Canada" is particularly significant, as Whitecap and other Dakota Nations were historically not accepted by Canada as such. Despite having used and occupied land in what is now Canada for millennia, and despite a long history of alliance with Britain, the Dakota were unjustly denied recognition, instead considered as "American Indians" and as strangers in their own lands and a country they helped build, develop, and defend.  The false premise that the Dakota were not "British Indians" led to their exclusion from treaty.

Among other impacts, the Dakota were stripped of their vast traditional territories, and herded onto tiny reserves that were and remain a small fraction (by a factor of eight) of what surrounding First Nations secured under treaty.  These poor-quality plots of land were also a fraction of what non-Indigenous settlers received at little or no cost, carved from Dakota territory.

 A history of injustice

While denied recognition and treaty on the false premise that they were not "British Indians," the Dakota were deemed sufficiently "British Indian" to be subjected to the Indian Act, the unlawful reserve pass system, residential schools and the long list of harmful laws and policies visited upon Indigenous peoples in Canada. Denied the recognition and rights in virtue of their Indigeneity, they were nevertheless subjected to all the indignities and harms devised by government because of their Indigeneity.

The notion that the Dakota were "American" and not "British" Indians was simply false. To the contrary, the Dakota not only used and occupied lands on both sides of the 49th parallel for thousands of years, they were perhaps the British Crown's fiercest and most loyal allies. Indeed, the words "Dakota" and "Lakota" mean "ally" in their languages. The Dakota fought on the British side in every major continental war since the 1700s; a Dakota Chief, Wabasha, was commissioned a general in the British Army during the American Revolutionary War.  When in 1812 the United States launched its invasion of British North America, the former US President Thomas Jefferson famously stated that taking the Canadas would be "simply a matter of marching."  With 7 million Americans to fewer than 350,000 British settlers, and with the bulk of British attention and firepower absorbed with fighting the Napoleonic Wars in Europe, Jefferson's calculus seemed inevitable. 

But it was not; it failed to account for the bravery, the valour, the skill and the fierce loyalty of the Crown's Indigenous allies, who answered the plea to help defend Canada. And history leaves no doubt on this score: without the Indigenous participation in defence of Canada, Jefferson's prediction would almost certainly have come to pass.  There likely would not be a Canada today.  Fully 8 out of the 39 First Nations recognized by Canada for their ancestors' critical role in defending Canada during the War of 1812 were Dakota First Nations of Canada.

The Dakota participation in the War of 1812 was secured and conditioned on an explicit promise: that the Crown would in turn defend and protect their lands and their way of life. That promise was soon betrayed: in the Treaty of Ghent in 1814 that ended the war, and at other conferences to which the Dakota were neither invited nor informed of, their lands were promptly delivered over to the Americans – coldly bartered, without their knowledge or consent. 

Acknowledgement, recognition and steps to the future

This historical injustice continued for over 150 years, with Canada refusing the acknowledge the place of the Dakota in Canadian history until very recently.  Following a pipe ceremony in Whitecap Dakota First Nation on April 13, 2023, Canada at last recognized the rightful place of the Dakota as "Aboriginal peoples of Canada" with corresponding rights.  

In addition to enshrining this historic recognition, the Treaty implements Whitecap's right of self-government by moving Whitecap out from under the Indian Act, giving it increased control over the decisions affecting its community. Among other things, the Treaty recognizes that Whitecap has jurisdiction and law-making powers on its lands over governance, land, natural resources, membership, cultural matters, language revitalization and preservation, education, financial management and accountability, health and social services. The Treaty enhances Whitecap's ability to build on its success in creating economic opportunities and improving community well-being for the benefit of its members and neighbouring communities.

Gowling WLG has been honoured to advise and work alongside Whitecap Dakota Nation in negotiating its Self-Government Treaty and in securing Canada's recognition of Whitecap as an Aboriginal people of Canada.