In recent Indigenous political thought, there has been much emphasis placed on the importance of non-Indigenous residents of Turtle Island understanding that, as members of political communities (Canada or the United States), they are involved in treaty relations with Indigenous nations. Sarah Wiebe writes of a conversation with Theresa Spence, the former Chief of the Attawapiskat First Nation, who insisted, “you are treaty, too.” Spence, writes Wiebe, “repeatedly reminded me that treaties are not simply archival documents from the past or static legal agreements – they are animate, embodied, and felt relationships that reverberate through time” (Reference Wiebe2023: 4). A treaty “is not a static relationship, simply a contract, or a finite cession agreement. A treaty is not a one-time transaction” (Reference Wiebe2023: 80). Spence reminds the non-Indigenous population of Canada that we are collectively involved in an ongoing relationship with Indigenous nations that entails continuing forms of obligation and reciprocal responsibility. Since the historical understanding of the Crown and the Canadian government was simply that treaties were land cessions, this insistence on the ongoing, relational nature of treaty represents a radical transformation of perspective. What type of relationality is entailed by treaties and how do these differ from contractual relationships, and in particular debt relationships? What treaty entails in one imaginary—a long-term, perpetually-enacted bond between peoples—appears radically different from the kind of punctual agreements between parties that we know of under the concept of “contract.” Certainly, many of the relationships we think of when we employ the term “contract” have something cold, mercenary and punctual to them. Yet we do also often speak of contracts in instances in which we are solidifying an ongoing relationship, even as we are specifying the terms. A contract with a community one delights in—say my contract with my university—is not a mere document stipulating mutual promise (I will work, they will pay me), but also a written aspect of a bond (we are a community with a common pursuit). Nonetheless, the language of contract does suggest a certain coldness—it is redolent of the prenup rather than the proposal; it has a legalistic flavour that seems devoid of human qualities.
In insisting upon the distinctiveness of treaty relations, Spence and Wiebe are reminding readers of the nation-to-nation equality that treaties entail and are speaking to a particular type of ongoing collective agency and relationality they require. Traditional international relations in North America entailed interactions between collectivities that were governed via relationships forged in gifts, diplomacy and kinship and preserved in ongoing reciprocity structured by ceremony, debate and negotiation. The documents of agreements—wampum, for instance—are devices that serve diplomatic functions in the sealing of agreements, the repeated reenactment and renewal of relationships, and the ongoing maintenance and negotiation of mutual responsibilities.Footnote 1 The question I examine here concerns collective responsibility and how we conceive of long-term collective obligations of political societies. This arises in the context of a study on a relationship that is particularly fraught with moral and historical complexity: the relationship of state debts. Debt relationships are morally ambivalent because they can span from relationships of benevolent reciprocity to neutral equality between strangers to relationships of violent domination and dispossession. State debts are historically complex because some collective debts get remembered while others get easily forgotten. If treaties between colonial powers and Indigenous nations have too often been allowed by settler societies to fade into some distant past, repeatedly abrogated, watered down, or transformed unilaterally by the legal system of the dominant party, monetary historical debts tend to get transmitted for generations with remarkable consistency.
For egalitarians, transgenerational debt continuity is ambivalent. Calls for a jubilee or debt forgiveness for impoverished states indicate a view that some historical debts should not be born by communities who had no place in their creation. But a similar logic of historical discontinuity that would annul historical debt obligations might also be employed to support discontinuity in obligations of powerful states to collectivities they have harmed or to whom they have longstanding debts or treaty obligations. The (in)famous argument of Jeremy Waldron (Reference Waldron1992) that certain historical injustices may be superseded follows this logic: Indigenous nations are, in his view, no longer what they were, whatever rights existed long ago have been extinguished and the descendants of people whose lands were expropriated, however unjustly, have no rights to have such lands returned as conditions have changed drastically.
This paper examines the argument that the logic of contract informing both the social-contract tradition and the way colonial states have tended to view treaty processes fails to capture the type of relationality that many Indigenous thinkers understand treaties to represent. It is not an attempt at a novel intervention into legal theory or Indigenous political thought, but rather an examination of the conceptual categories that contractualist political theorists employ to think of collective obligations. I will not review the way contractualist theory was used to justify colonial dispossessions: that aspect of the theory’s history has been well-documented (Arneil, Reference Arneil1996; Nichols, Reference Nichols2005; Tully, Reference Tully1993). Rather, this article arises out of a project of thinking through the problem of the continuity of state identity and obligation across time (through regime change and population change). In particular, it is an intervention, inspired by Aaron Mills’s critique of contract as colonial ideology, into debates about social contractarian thought. It considers whether social contractarian imaginaries can buttress ongoing collective debts of settler states to Indigenous nations whose land they cohabit. In considering the problem of transgenerational responsibility, we can discern two interrelated issues raised by these critiques of contractualist accounts of treaty. The first concerns the nature of collective identity over time—who the debtors and creditors are. The second concerns the social meaning of agreements themselves. I argue that contractarian visions—and our primary interlocutor is Kant—have internal tensions rendering them unable to account both for the ongoing collective personhood of the nations concerned and for the type of relationality originally sought—and still sought—by many Indigenous diplomats and political philosophers. They can serve a useful heuristic function, highlighting the impermissibility of the treaties as traditionally understood by colonial governments. But figuring political collectivities in the mode of social contract theory poses serious problems for understanding treaty relations in settler-colonial societies, and it transforms the practice of collective transgenerational promising.
From Community to Contract
To treat the terms “treaty” and “contract” as antonyms is somewhat odd: treaties are agreements between contracting sovereign states that have a contractual form. When lawyers argue about whether treaty is a form of contract it is usually in the context of arguments about the distinction between public and private law or questions about the overlying legal order (Stewart, Reference Stewart2023). But conceptually, there is no incoherence in speaking of treaties in contractual terms. What is objected to when “contract” is decried is not the principle of making agreements, but the treatment of the agreements between peoples that ignores the underlying ethical substance of the relationship involved. That is, when “treaty” is held to be different from contract, the claim is rather that contract entails a type of relationality between communities and between individuals that is based on the underlying premise of estrangement and hostility. Aaron Mills writes perceptively about the logic of contract (at least as conceived under social contract theory): “Contract is offered as the solution to what is imagined as the problem of radical disconnection. We’re told that but for the contract we share, we’re disconnected individuals, each left to pursue our own interest” (Reference Mills, Borrows and Coyle2017: 213).Footnote 2 Social contract theory—and Hobbes is the most iconic voice in this tradition—is premised on the notion that we are fundamentally unknown to each other and that this lack of knowledge means that trust is impossible without some nailed-down rules of cooperation, hammered in by the ever-present threat of sovereign violence. On Hobbes’s story, all social life becomes a matter of artifice held together by violence, and even the most apparently natural bonds (such as between mother and child) are redescribed in contractual terms, where obedience is due to the mother because of the protection she provides.Footnote 3 We will return to the oddity of this redescription, but it is enough to notice just how far it differs from almost everyone’s common sense, and particularly how it differs from philosophical schools that are premised on a vision of an underlying connectedness with the land, rivers, fellow creatures and other nations. Under relational frameworks, the solipsistic premise of Hobbesian philosophy is perverse; to craft relations on the basis of such a worldview is a recipe for inscribing violence into social relations themselves. Mills writes of treaty as the opposite of contract, that it “constitutes political community without predication on violence” (Reference Mills, Borrows and Coyle2017: 219). This might appear an exaggerated claim, but Mills is not arguing that the original nations of Turtle Island historically lived in some irenic paradise—conflict is part of the vision of community he offers (Reference Mills, Borrows and Coyle2017: 233, 236). His point is that people, peoples and the natural world exist in webs of reciprocity and mutuality structured by the principle of gift (in the sense described famously if somewhat inaccurately by Marcel MaussFootnote 4 ) rather than in the language of market exchange or legal formalism. Thus, the agreements embodied in treaties certainly have elements of violence they seek to resolve, and they may well entail stipulations about what the contracting parties will do, but they are fundamentally to be understood as relationships of reciprocity, friendship and even kinship. Yann Allard-Tremblay describes Haudenosaunee treaty making thus: “By entering a treaty, the parties become part of the same wider family” (Reference Allard-Tremblay2022: 233). Michael Witgen describes historical Anishinaabe thought as dividing the world into strangers (possibly hostile) and kin, and he describes Anishinaabe diplomacy as a practice of transforming, by means of gifts and ceremonies, possible enemies into relations (Reference Witgen2012: 31).Footnote 5
The difference between market exchange and traditional trade among Indigenous nations is that the vast interconnected trade relationships that stretched across the continent were made possible by diplomacy and relationship-building rather than on the principle of naked commodity exchange. Corey Snelgrove argues persuasively that the colonial powers’ interpretation of treaty tends to fall back into a contractual language, which has an element of fetishism to it (in the Marxian sense). For just as a commodity fetishism hides the human relations of domination involved in capitalist production, so too does understanding treaty in a transactional manner hide the relations between people at stake. That is, “the transactional interpretation [of treaty constitutionalism] naturalizes capitalist social relations, the relational interpretation offers a de-fetishizing critique” (Reference Snelgrove2024: 88). Snelgrove’s analogy between Marxist and Indigenous critiques is extremely clarifying, but the Marxian language of fetishism has certain limitations. Aside from the dubious trope of the “fetish” (a rhetorical strategy dependent on Marx’s readers’ views of “primitivism”), the call to “de-fetishize” suggests the possibility of a transparent social relation unmediated by symbolic forms. If one buttressed the social relations that thinkers like Mills celebrate, one would doubtless avoid being blinded by the frame of transactions and exchange value, but one would articulate a social ontology of which Marx would be unlikely to approve.Footnote 6 While Snelgrove never adopts an univocal Marxian standpoint, it is worth recalling that on Marx’s account, while bourgeois modernity creates illusions, reifying the commodity form, it also breaks apart other forms of social life and relationality that Marx thought naturalized forms of domination, and he praised bourgeois modernity for dissolving such idols (Marx and Engels, Reference Marx and Engels1978: 476) For Marx, attempts to reawaken—even in a modernized form—modes of interaction based on traditional Anishinaabe social structures and cosmology would be nostalgic obscurantism.
What mode of relationality is entailed by the notion of treaty as gift? Mills argues that in traditional Anishinaabe polities, relations between communities were mediated by gifts, with need, respect and honour as the bases for gift-giving and receiving. To give a gift was to establish a relational bond. The continent-wide trade networks were maintained with complex, ever-renewed gift and kinship relationships. Cary Miller writes of the early trade between Anishinaabe nations and European traders as characterized by different perspectives on the nature of their relation, as the one group saw the relation in terms of mutual aid and the other saw it as simple truck: “Anishinaabeg approached Europeans in much the same manner as they approached their tribal neighbors with requests for food, clothing, or other items that emphasized continued mutual reliance through demonstration of dependence between the parties, and they expected such requests to be made of them in return” (Reference Miller2002: 224).Footnote 7 It should be noted that these modes of gift-based relationality are not unique to Indigenous communities. Michael Asch argues that the same clash between the two relationships (what Mills is terming contract and treaty) can be found in Martin Buber’s distinction between the I-It and the I-thou relationship (Reference Asch2001: 201–7). In market society, the relationship of reciprocal care is replaced by a relationship of trade. Another conceptual framework that might be considered is the ethics of care, which privileges relationality and particularity over abstract rights and personhood. Most importantly for our purposes is to consider how these two modes of thought understand debt.Footnote 8 When a friend gives one a gift or does one a favour, one is in their debt, but one does not pay them back according to the terms of a written contract. Such debts cannot be perfectly quantified, and they can never be fully paid. If you help your friend move, she may then take you for pizza. This is an exchange, but it is not an exchange of exact equivalencies, and in any real friendship there are always left-over obligations, because the parties consider themselves connected in an ongoing way in acts of mutual benefit and responsibility. This is not the relationship one has with one’s bank, car dealership or landlord. James Carrier sums up the Maussian distinction between gift and commodity outlooks well: “In gift transactions, objects are inalienably associated with the giver, the recipient, and the relationship that defines and binds them. […] In commodity transactions, objects are alienable private property defined primarily in terms of use value and exchange value rather than the identity of the transactors” (Reference Carrier1991: 121). Again, one should not think of gift and friendship relations as less conflictual than commodity exchange and formal contract—often friendships are more conflictual precisely because they entail the navigation of inexplicit but strongly felt obligations, and often gifts can have competitive elements to them. Gift reciprocation entails complex forms of social power, and the elaborate deliberative and ceremonial procedures of Indigenous diplomacy exist to negotiate and mitigate conflict. But gift and market exchange have different ethical implications.
One historical example of the clash between gift and market cultures can be seen in the way debt was employed in the fur trade. Dalie Giroux illustrates how trading companies advanced goods to Indigenous trappers, thus placing the trappers in a debt that was paid pack in beaver furs (Reference Giroux2018).Footnote 9 The key point for my argument is that Indigenous modes of trade were replaced by market relations, and the form of relationship changed. If on the one side the exchange had traditionally been seen a kind of moral debt to reciprocate gift giving (gifts having interpersonal and intercommunal meaning), on the company side it was seen as a loan to be paid back in precise amounts of the currency of the colonies, beaver pelts. Of course, as trade developed, neither side was truly uncomprehending about the other side’s mode of thought. From the outset, French and English merchants adapted themselves to Indigenous diplomatic practices, which involved acts of making kin-relations (Miller, Reference Miller2009: ch.1), and Indigenous traders grew quite aware of the mercenary nature of company activity. To treat the clash between these worldviews as the expression of complete mutual incomprehension offers an overly exculpatory reading of colonial intentions to mislead treaty partners about the nature of the agreement—colonists deliberately allowed the language of “sale” to blur with the language of sharing (Corbière, Reference Corbière2020: 3).
It is sometimes argued that positive recuperations of traditional Indigenous spirituality and relationship to land are merely repetitions of Rousseauian exoticism (Bens, Reference Bens2020: 199). But it is not dealing in romantic stereotypes to point out that market exchange differs from non-market diplomatic trade, and that the form of community conceived in Hobbesian contractualism differs from that conceived on an ontology of fundamental kinship and relationality. A radical shift took place as relationships thought of more in terms of kinship and diplomacy became displaced by relations of commodity exchange and contract.
Another example of this shift concerns the signs for the relation. Wampum, for instance, was sometimes thought of (and even employed) by colonists as money. Footnote 10 This corrupts the symbolic signification of the object. Coin money and bullion have, on one influential account, their origins precisely in distrust—if most traditional trade took place in relations of personal debts, money (bullion or coins stamped with the violent authority of a ruler) had the basic function of mediating exchange among strangers (say, allowing soldiers to pay for goods where they were unknown) (Graeber, Reference Graeber2011: 213). If this is so, it is exactly the opposite of the function of wampum as employed by Haudenosaunee, Wendat or Anishinaabe nations as modes of communication and the creation of bonds. Alan Corbière cites an Ojibwe authority explaining to a British officer that “the Great Master of Life gave us pipes and Wampum for the purpose of conveying our ideas from man to man” (Reference Corbière2020: 80). “Strings of wampum were also used in council to symbolically bind people together,” writes Corbière (Reference Corbière2020: 90). That is, a coin with a sovereign’s stamp on it is worth something to a stranger because it will be accepted as tax payment by a king. Coins are a mark of estrangement; wampum is a mark of community.
A similar ambiguity between forms of debt can be seen in the early Hudson’s Bay company’s comportment in 1680. J.R. Miller cites the following instruction the company gave to its agents trading with the Indigenous peoples:
wee have caused Iron marks to be made of the figure of the Union Flagg, wth. wch.Wee would have you to burn Tallys of wood wth. such ceremony as they shall understand to be obligatory & sacred, The manner whereof wee must leave to your prudence as you shall find the modes & humours of the people you deal with, But when the Impression is made, you are to write upon the Tally the name of the Nation or person wth. whom the Contract is made and the date thereof, and then deliver one part of the Stick to them, and reserve the other. (2009: 13)Footnote 11
The object they are employing to mark the treaty—and enjoining their agent to use in a similar manner to wampum—is a tally stick. This is a traditional English mode of marking a debt, often employed by the Crown, sometimes circulating as money. The company framed its act in a ceremony of obligation and sacredness, but it left documents of monetary debt.
To notice this tension is the farthest thing from indulging in essentializing Rousseauian reveries of “natural” virtue. The shift we are describing is one that took place in radically different societies as market contractualism transformed other forms of relationality. Karl Polanyi famously argued that pre-commercial European modernity also saw the transformation of mores based on friendship, kinship, honour and gift into relations of debt and exact exchange between strangers (Reference Polanyi2001).Footnote 12 Traditional societies are undermined by market mechanisms creating fictitious commodities (in the case of Turtle Island, land is the most important), and replacing relations of gift regulated by honour with relations of exact transactions, thereby replacing forms of ongoing reciprocity with forms of estrangement. In an account of early modern England, Craig Muldew explores how the growth of market society transformed social relations: “the increasing emphasis on the contractual nature of interpersonal economic relationships […] led to the development of a highly legalistic language of social description which elevated the legalism of contract to a privileged position” (1998: 315). Ongoing debates today (for example, Satz, Reference Satz2012; Sandel, Reference Sandel2012; Anderson, Reference Anderson1993) about the commodification of all aspects of life are simply a continuation of worries that have manifested themselves since the sixteenth and seventeenth centuries when market mores began to displace other forms of social relation. The existence of such debates is testament to the fact that market mores never achieved complete hegemony (to the chagrin of libertarians). We constantly debate what is and is not for sale, and when we should relate to each other with the mores of the market (strangers, bound by state-enforced contract), or the mores of kin, friendship and care (bound by custom, honour, love and moral duty). The situation with regard to Crown-Indigenous relations is not one of market exchange replacing gift, but of a continuing conflict over how treaties should be understood, with some people insisting on a relational understanding and others insisting on an understanding in terms of modern contract. The distinction is not between competing concepts: treaty, contract, covenant, promise, debt all are terms that can have relational or atomistic interpretations. The language of fetishism muddies the waters by intimating the possibility of an escape from illusion. The difference between the two outlooks concerns a difference between ways of understanding the underlying relationships. Social contract theory describes what has previously been thought of in the paradigm of gift, care or community in the paradigm of contract. Let us examine this matter.
Contractarian Confusions
If one wishes to get a laugh out of an undergraduate class, one can find little better than to read them Kant’s definition of marriage: “Sexual union in accordance with law is marriage (matrimonium), that is, the union of two persons of different sexes for lifelong possession of each other’s sexual attributes” (Kant, Reference Kant and Gregor1996: 6:277, 427). To many, nothing so perfectly encapsulates the risibility of Kantian political theory as this vulgarly contractual definition. Faced with mockery, the indignant Kantian might respond by asking whether the students reject the notion of marriage as a voluntary agreement between free, rational individuals or whether they reject the notion that exclusive sexuality is involved. The still-giggling students would doubtless respond that no, they do not, as such, reject those elements of the definition, but that their objection concerns the cold, transactional and exclusively sexual definition of this relationship. It reduces marriage to a formal-legal logic of direct exchange and use. There is a tradition from Marx through to Pateman of arguing that bourgeois liberalism hides domination under the cover of contract, a purportedly free relation. But what I am concerned with here is the transformation of relationships implied in this move. We have noted the Hobbesian origin of this mode of reconfiguring relations contractually. Hegel saw the oddity of the move, arguing that it is “crude to interpret marriage merely as a civil contract, a notion [Vorstellung] which is still to be found even in Kant. On this interpretation, marriage gives contractual form to the arbitrary relations between individuals, and is thus debased to a contract entitling the parties concerned to use one another” (Reference Hegel1991: §161, 201) Marriage, he cautions, should not be understood as pure love either, since it is also structured by right. But while the relationship entails individuals consenting to the union and making mutual promises, the union is more than a mere exchange: it entails a new form of relationality in the ethical bond. That Hegel goes on to fill in the nature of this relationship with assertions having their meaning in the ethical order of a patriarchal Prussian society is disconcerting given the universal pretentions of his thought, but it does demonstrate how we must, if we wish to understand human relationality in terms beyond mere agreement between abstract, rights-bearing persons, import ethical understanding from somewhere.Footnote 13
If it strikes us, as it did Hegel, as counterintuitive to describe relationships like marriage in exclusively contractual terms, we nonetheless have little difficulty thinking of collective agreements between political bodies as legal contracts between collective persons and not as relationships. Hegel himself perceived of international relations in this manner. The relations between nations exist in the realm of abstract right. “The immediate actuality in which states coexist is particularized into various relations which are determined by the independent arbitrary wills of both parties, and which accordingly possess the formal nature of contracts in general. The subject-matter [Stoff] of these contracts, however, is infinitely less varied than it is in civil society, in which individuals [die Einzelnen] are mutually interdependent in innumerable respects, whereas independent states are primarily wholes which can satisfy their own needs internally” (Reference Hegel1991: §332, 368). As a description of the relation between states, this was inadequate to the reality of international interdependence even in Hegel’s day. It would be inappropriate for discussing the relationship between Indigenous nations on Turtle Island before the arrival of Europeans (nations that Hegel, in his myopic celebration of the state form, thought nonhistorical and nonpolitical), and it has little to do with the realities of international interdependence of states today.
Thus, while Hegel was insightful on mere contract’s failure to capture the ethical substance of numerous human relationships, when thinking about the relationship between communities he reverted to the level of abstract right due to the powerful—and misleading—view about states as unified, quasi-autarchic wholes. This is precisely the position that Aaron Mills rejects in his account of treaties as a form of recognized interdependence characterized by the principle of mutual aid. To affirm such a position as Aaron Mills’s is (I repeat for those in the back) not to indulge in reveries about some original relationality untouched by violence: it is rather to assert a different social ontology.
We touched on the atomistic Hobbesian view that frames individuals as strangers and founds relations through the mechanism of contract and sovereign violence. Hobbes had the advantage of telling it like it is—sovereignty (particularly by acquisition) is founded in violence. This avoids the Lockean or Vattelian prestidigitation that covers over violent dispossession in a theory of the right to “rational and industrious” use. But the core of Hobbesian thought that persists in all contractarian thinking is the view that individuals must be thought as fundamentally disembedded from their social fabrics.Footnote 14 Whether treated as a quasi-historical story of origins, an analytical model, an idea of reason, or a thought experiment whose purpose is to determine right relations, contractarian theory always suggests separation and alienation. This observation is naturally at the heart of well-worn critiques of liberalism. The argument has many variants: communitarians demand recognition of particular social practices, neo-Aristotelians decry the triumph of subjective rights over the right, Polanyians deplore the social disembedding of the individual, Patemanites object to the manner in which contract masks patriarchy by denying the social meaning—domination—achieved in contractual relations (particularly contracts based on the notion of self-ownership), Marxists emphasize the manner in which contract hides exploitation under the veil of consensual agreement in conditions of formal equality, care theorists lament contractarian occultation of unchosen, uncontracted relations of mutual dependency that define human existence… in each case there is the observation that under contractualist thought the individual is conceived as an abstract, separate person, and if personified in a collectivity, so too is the collectivity granted the form of abstract personhood.
Can contractarian theory be salvaged from its critics? Some critics of the contractarian tradition think so. Charles Mills proposed a “Black Radical Kantianism,” saving the core ethical doctrine of respect for persons but calling on contractualists to take seriously the racist domination that has been constitutive of modernity (2018; see also Mills, Reference Mills, Patemane and Mills2007: 231). Confronting feminist critiques of contract, Jean Hampton offers a defence of Kantian contractualism premised on the way, as a heuristic, it can allow people to evaluate whether the distributions of burdens and benefits in relationships truly respect the dignity of the persons involved. In contesting Carol Pateman’s view that contractarianism is a dead-end for feminist emancipation, she argues that contractarianism can serve feminist goals because it abstracts away from social forms in which domination is invisibilized (Hampton, Reference Hampton, Anthony and Witt2002: 357). Marriage is doubtless more than a vulgar contract based on self-interest maximization or even a contract for maximizing respect for persons, but the process of asking whether the distribution of burdens within the arrangement would meet with the agreement of rational, self-respecting persons can illuminate the existence of abusive arrangements (that might be less visible if one focused on the apparently more noble qualities of love and care). This is, perhaps, the most appealing version of contractualism—since Hampton’s contract is, in a Kantian manner, treated as an idea of reason rather than a historical fact, it does not hide historical violence under the veneer of voluntary agreement, and its Kantian insistence on the essential dignity of the person serves to challenge exploitative contracts. But all the difficulties of the “disembedded” self attend this contractualism as any other. And the very liberatory move—the move that allows Hampton to challenge the status quo, also begins from a premise that persons are autonomous beings who are responsible to themselves as self-legislators, rather than a premise that people are born in webs of relationship—with family, nation, other nations, the natural world around us—that give us duties. Hampton admits as much, insisting that her theory “helps us to understand what to protect in our relationships with others, but it doesn’t tell us all the ways we should respond to human beings in order to build a fine friendship, a loving marriage, a bond with our children” (Reference Hampton, Anthony and Witt2002: 363). This is a quasi-Hegelian gesture towards an overcoming of the opposition between Moralität and Sittlichkeit, or disembedded and embedded conceptions of duty. But the champions of the embedded conceptions might ask whether the best way to protect people against domination is to take this detour through the fiction of abstract personhood—a fiction entailing all the drawbacks attending the history of contractualism, and in particular, deriving from the fact that contractualist theory allowed land, labour and promising (which is another word for “money”) to be turned into alienable commodities. Nonetheless, perhaps there is a manner of understanding treaty in Kantian terms, with the Hamptonian caveat that contract is a part—but not the whole—of the relationship. Let us consider long-term collective obligations under this framework.
Contractualism, Conquest and Continuity
The charge against contractualism we have canvased is not simply that formal equality masks domination. It is that the transactional way contractualists understand relations between individuals and between collectivities fails to capture—even undermines—the type of relationality and ongoing forms of moral and legal responsibilities that writers such as Aaron Mills think constitutive of treaty relations. In particular, the question that concerns us is one of transgenerational collective obligations and what these obligations say about the transgenerational identity and relationship of those collectivities. On a contractualist vision, can such relationality be cultivated or does contractualism crowd out other forms of relationality?
To see treaties between the nations of Turtle Island and the Crown (or its chartered corporations) as a straightforward sale of land is part of the colonial imaginary that is anchored in eighteenth-century contractualist visions of the laws of nations. Emer de Vattel defended the dispossession of First Nations on the Lockean grounds that those nations are not making sufficiently productive use of their land (Vattel, Reference de Vattel, Kapossy and Whatmore2008: par.81, 129–30), but Vattel clearly recognized some form of jurisdiction for the First Nations, since he praised William Penn for having honourably purchased land from the Lenape (Reference de Vattel, Kapossy and Whatmore2008: par.209, 217).Footnote 15 (Penn’s offspring pursued more land appropriation by fraud and violence.) Vattel justified the dispossession of First Nations on the basis of their unproductive occupation of land—he applied a global distributive justice framework to argue that such monopolization of land was unjust, an argument that persists to this day.Footnote 16 There is a contradiction here—if the land is rightfully owned by those who make the most productive use of it (and one wonders what level of productive superiority grants a nation such rights), why should purchase be necessary? Vattel was both accepting and not accepting Indigenous title. But if Vattel defended dispossession, interpreting treaties with first nations as cession in which the nations had sold property (under a moral necessity derived from their insufficient productivity), other contractualists demonstrated more respect for the moral personhood of the nations concerned. Let us consider Kant’s view of colonization.
Kant famously argued that we have a moral duty to establish and maintain the condition of right (states with coercive authority) because only under such a condition can the freedom of persons be given any guarantee. This duty is so fundamental that even states that began in violence (all actual states) must be defended and people in a state of nature may even be compelled to join a state. This is necessary because freedom requires the possibility of property, and property is something that requires public laws. (Prior to the establishment of a state, such property as one has is only provisional.) Now, given how many social-contract thinkers treated Indigenous nations as if they lived in some pre-political, natural condition, one might expect to see Kant subsequently claim that Indigenous communities occupy a state of nature, and hence may be forced into a civic condition.Footnote 17 But the late Kant did not make that argument; indeed, he saw the injustice of colonial dispossession of Indigenous nations. First, Kant wrote that all the justifications made for taking land from Indigenous people were sophistries (Reference Kant and Gregor1996: 6:353, 490; also 6:266, 418). Since Kant did not accept violently forcing Indigenous people into colonial states, he clearly did not think that they lived in a lawless condition. Thus, they possess something akin to the status of states. And Kant thought that states could have collective ownership of land. He wrote, for instance, of nomadic peoples “with whom there is no private ownership of land.” (Reference Kant and Gregor1996: 6:324, 466) He denied the right of Europeans to “found colonies by fraudulent purchase of their [the nations of the Americas] land, and so become owners of their land, making use of our superiority without regard for their first possession” (Reference Kant and Gregor1996: 6:266, 417–8). And indeed, against Vattel and Locke, Kant insisted that “a hunting people” can “resist a pasturing people or a farming people […] since as long as they keep within their boundaries the way they want to live on their land is up to their own discretion” (Reference Kant and Gregor1996: 6:266, 417). The only means by which colonizing powers may establish themselves on another people’s land—even a land that is not densely populated—he says, is by “contract”:
If the settlement is made so far from where that people resides that there is no encroachment on anyone’s use of his land, the right to settle is not open to doubt. But if these people are shepherds or hunters (like the Hottentots, the Tungusi, or most of the American Indian nations) who depend for their sustenance on great open regions, this settlement may not take place by force but only by contract, and indeed by a contract that does not take advantage of the ignorance of those inhabitants with respect to ceding their lands. (Reference Kant and Gregor1996: 6:353, 490)
There is a difficulty in understanding this contract as a sale, as Kant denied that sovereigns might rightfully sell territory—sovereign territories exist as a basis for making property possible, but they are not alienable property. Kant wrote in Perpetual Peace, “No independently existing state (whether small or large) shall be acquired by another state through inheritance, exchange, purchase or donation.” He continued: “a state is not (like the land on which it resides) a belonging (patrimonium). […] Like a trunk, it has its own roots; and to annex it to another state as a graft is to do away with its existence as a moral person and to make a moral person into a thing” (Reference Kant and Gregor1996: 8:344, 318). To alienate it is to alienate the people themselves, and this would not respect their dignity as autonomous persons. On this account, Indigenous nations would only legitimately be able to alienate such lands as are somehow unconnected to their citizens’ way of life and their traditional occupancy.
Thus, on this contractualist theory, the relationship of the Crown to Indigenous nations is complicated. Of course, a difficulty with the Kantian story is that it has a strong status-quo bias, justifying existing states on the basis that there is an absolute duty to uphold the given state as the basic condition of right. If sovereignty has actually transferred, however unjustly, to a new sovereign, the current sovereign must be obeyed (Reference Kant and Gregor1996: 6:323, 465). Thus, a Kantian might treat Indigenous right as superseded, in spite of the manifest injustice of the usurpation.Footnote 18 However, there is also the possibility, on a Kantian story, of reading the relations between any First Nation and the Crown as relations between two states, neither of whose status has been extinguished. In this story, the Crown has an ongoing duty to uphold the treaty contracts. One might imagine a neo-Kantian articulation of Crown-Indigenous relations that employs the contractualist abstraction to hold the Crown to its agreements and to ascertain whether Indigenous nations are being treated ethically as collective moral persons. On this imaginary, both the Crown and Indigenous nations are independent, continuing, transgenerational sovereign moral persons. But this would continue to contain a difficulty concerning the ceding of land, for on such a reading the transfer of land (never sanctioned by First Nations) would itself be null and void: such lands as the Crown considered “ceded” would really be merely use-right contractually granted by the Indigenous nations, not ownership or sovereignty.
This, however, would be untenable for Kant, as it would leave non-Indigenous Canadian citizens in a bizarre legal situation. But even without trying to fit the unwieldy Canadian constitutional reality into a Kantian mould, we can simply note that this interpretation of the treaties would still be question-begging, as it assumes the underlying logic of contractualism—atomism, global distributive justice, unitary sovereignty, autonomy. The Kantian reason for defending statehood is that it guarantees autonomy; considerations of a spiritual, cultural, philosophical connections to place are excluded by the theory’s methodological individualism.Footnote 19 Neo-Kantian modes of thought are sometimes turned to the defence of Indigenous national self-determination (Stilz, Reference Stilz2015), but the underlying assumption of a relationship between specific nations and lands from time immemorial is excluded at the outset, in spite of the language of rootedness we saw in the previous quotation.
We have contrasted two ways of thinking about collective obligations: the logic of contractualism and of reciprocal gift and relationality. As with the distinction between contract and treaty, the distinction between contract and gift is not conceptual—Kant can speak of gifts in contractualist terms (Reference Kant and Gregor1996: 6:297–8, 444); rather, it is a distinction between two social imaginaries. On both accounts, the parties in the relationship must be considered enduring collective agents, but the contractualist vision runs into difficulties. On the contractualist thesis that First Nations and the Crown remain continuous unitary moral persons involved in an ongoing contract, how should we understand both the contracting partners and the agreements? What is striking in the Crown’s written documents is not simply the power imbalance (the treaties are a mixture of violence and agreement; conquest and contract are two sides of the same coin), but the contradictory way the collectivities are understood.
Take, for example, the written document of the so-called “Rideau purchase” treaty of 1822 between the Crown and the Mississauga. Naturally, the treaty is fraught with illegalities, including the fact that much of the territory apparently ceded is the traditional land of other Anishinaabe nations and the fact that the written treaty (articulated as purchase) represents the Crown’s understanding of the event.Footnote 20 But the way collectivities are understood in this document is revelatory. The Crown claimed that it secured “two million seven hundred and forty-eight thousand acres” in return for an annuity: “it was agreed that in consideration of an annuity of two pounds and ten shillings of lawful money of the Province aforesaid, payable in goods at the Montreal price, to be well and truly paid by His said late Majesty [ie. George III], His heirs and successors, to each man, woman and child of the said Missisagua [sic] Nation and to their posterity forever, provided the number of annuitants and any time should not exceed two hundred and fifty-seven, being the number of persons then composing the said Nation claiming and inhabiting the said tract of land.” (Rideau Purchase, No. 27¼, Government of Canada Treaty Texts, 2024). On the one side we have George III (king at the time of the negotiations in 1819) and his heirs, acting as a corporation sole in perpetuity. The Crown is the personification of the collectivity. The particular people making up this collective person are not defined, and we may assume that the changes in form and population of that entity may vary radically over time. The legal continuity of the Crown fixes their identity—the debtor is this public person. The other side of this agreement is a “nation”—but the nation is dissolved into a fixed number of individual annuitants. And the nation’s growth is contained—it must remain 257 people. One collectivity, in this agreement, is defining the other specifically, and indeed, defining it out of existence. The posterity may never grow, and indeed the collectivity is defined away into particular annuitants.
That the Indigenous partner was treated iniquitously is unsurprising. But notice that even on a classic contractarian account, this entails a contradiction akin to the contradiction of the slave contract. The notion that one might contract away one’s liberty was, as Rousseau insisted, a contradiction. For in so contracting, a person would then become a non-person who could not be an author of a contract (Social Contract I.4). Kant agreed: “No one can bind himself to this kind of dependence, by which he ceases to be a person, by a contract, since it is only as a person that he can make a contract” (Reference Kant and Gregor1996: 6:330, 472). If this were merely a violent conquest, there would be little mystery, but the treaties do not speak of conquest, though the Crown’s documents paradoxically treat Indigenous nations both as independent nations and as subjects. The contract does not pretend to extinguish Indigenous nationality, but it breaks the nation into constitutive parts (annuitants): the state is indebted to individuals. The debtor is a collective agent; the creditor becomes a series of particular people.
Just as Kant’s view of a legitimate colonial contract had internal tensions, so too does the actual Crown-Mississauga document contain tensions. Indigenous nations are paradoxically treated both as persons and non-persons, both collective agents and mere aggregations of individuals.Footnote 21 When the Canadian government in its infamous 1969 White Paper proposed the abolition of the Indian Act, its proposal was consistent with a liberal outlook that could only see Indigenous title and the treaty systems as discrimination. (Indian Affairs and Northern Development, 1969; Turner, Reference Turner2006: ch.1). The White Paper had an intellectual cleanliness that constitutional reality lacks—it eliminated the paradox by simply extinguishing the collective corporate identity of First Nations, proposing to transform the members of these nations into formally equal rights-bearing citizens of the colonial state. This was an outright abandonment of treaty relationships, and it is a testament to the power of ideology that Pierre Trudeau was surprised by the angry Indigenous response to the proposal. Contractarian conceptions of unified sovereignty that are at the heart of the modern state system contain the internal contradictions of treating Indigenous contracting nations as both sovereign and not sovereign, both as perpetual collective agents and as a mere aggregation of annuitants with rights granted to them by colonial law.
We have seen that the Kantian account muddies the relationship between Indigenous nations and the Crown, offering the possibility of a contractual relationship that entails long term confusions. Indigenous nations have the status both of moral persons and non-persons (or rather, their treaties entail contracting away their moral personhood, which itself is illegitimate). Thus, the Kantian frame might serve as a heuristic device revealing how internally contradictory the colonial version of the treaty relationships is—the contracts simply are null and void. However, it might also be used to argue that the Americas were subject to unjust fraud and conquest, but the original right has been superseded and all members of the current states must, in the name of their own individual liberty and autonomy, uphold the current order. Kant himself would certainly frame the treaty process as fraudulent and unjust, but since he thinks the historical origins of states almost always a product of injustice, he would likely sweep up the injustices of the colonial past into the wider “unsociable sociability” that is the motor of human history.
Social contract theory’s detour through abstraction can offer an ambivalent account of treaty, both preserving and erasing the moral personhood of First Nations. Indigenous title cannot, on a Kantian account, be “extinguished by treaty,” for this would be a self-contradictory contract; but a Kantian account allows for historical injustice to be superseded, thus effectively extinguishing collective personhood in spite of the injustice of the action. Its wider difficulty is that even on the reading in which collective personhood and hence collective historical responsibility is conserved, the contractual frame nonetheless deforms the nature of the agreements, neither taking seriously the relationality implied by treaty as gift relations nor offering a way of seeing the complex constitutional interrelationships forged in treaty between peoples with essential connections to particular territory. The contractualist frame envisions states as largely self-sufficient wholes treating with each other on the basis of abstract right. It also reduces the relationality between the nations to one of a strict alienation. If the Crown retains a debt, it is a fixed debt to individuals in money or equivalencies. It is the opposite of the relational understanding of treaty.
Conclusion: The Ambivalences of Treaty as Contract or Gift
Gina Starblanket warns Indigenous leaders and communities to be careful as they negotiate agreements with the Federal government not to fall into the trap of imagining treaties in terms of transactions concerning land as a commodity: “a critical treaty politic might look to treaties as a way of drawing out broader notions of responsibility and accountability that can allow us to contemplate the impacts of the decisions we make today on the many relations we inhabit now and into the future” (Reference Starblanket, Kiiwetinepinesiik Stark, Craft and Aikau2023: 91). Such a relational vision requires that collectivities retain a view of their collective agency over time, but it does not allow the moral persons to conceive of themselves as self-sufficient wholes relating only to other nations on a basis of abstract right. Most importantly, it does not allow the agreements to be understood as a mutual exchange of equivalencies between strangers. It means that the debts owed by the colonial state to the nations with longstanding connection to the land can never be fully paid because they are an ongoing relationship of mutual responsibility. If citizens of Canada or the United States saw their debt in this manner, they might realize both the weight of their duty to reciprocity and the impossibility of treating the debt like a restaurant bill that one can simply pay and be done with. Both the manner of understanding contract (as exchange of equivalencies between strangers) and the manner of understanding collective personhood (as distinct, independent wholes relating to one another on the basis of abstract right) fail to capture the type of relationality that treaty constitutionalism entails in Starblanket or Mills’s accounts.
I have insisted that defences of a relational vision of treaty are not to be confused with nostalgia or idealized portrayals of pre-capitalist modes of relationality. But we must recognize that they pose significant challenges for a capitalist order in which so many of our communities are communities of strangers and so many of our social relations are mediated by money exchange. If there is a large challenge for projects of Indigenous resurgence to recapture collective understandings of place and relationality among nations, there is an even greater challenge of convincing us unrooted denizens of modern urban colonial states to see ourselves as bearers of collective responsibility in an ongoing relationship with Indigenous nations. There is also an ever-present danger of the language of the gift being deployed exploitatively. We saw Jean Hampton’s wariness of care-theoretical celebrations of love. There is something in the relationship of the gift that is not without the possibility of domination. We mentioned the famous account of Marcel Mauss, which placed emphasis on the obligatory nature of giving and reciprocating. Grégoire Mallard indicates that Mauss developed his ideas in the context of thinking both about German reparations and war debts and French colonial policy in the 1920s. Mauss sought to undermine rapacious practices of colonial capitalism, but only by replacing them with more “generous” or altruistic colonialism founded on the metropolis’s “gifts” to the colonies. Mallard can thus speak of “the gift as colonial ideology” (Reference Mallard2019: ch.4). Mallard does not thereby damn the discourse of the gift to the dustbin of “problematic” concepts, since he thinks the gift perspective must be salvaged from this unprepossessing history. But the fact that such concepts can be deployed in a manner that is the very opposite of mutual respect is a reminder that, as Mauss himself had insisted, gift relations are morally ambivalent, involving forms of power and domination. Certainly, there is a longstanding tradition of abusing the language of gift in the Canadian colonial context.
The opposition between the relational and the contractarian is not a Manichean portrait of virtue and vice; it is an account of two ways of seeing collective historical debt. The Kantian contractarian frame can serve the purpose of revealing the incoherence of the treaty-as-cession (the moral persons contract away their personhood), but it tends to be quite unreliable as a means of understanding Indigenous sovereignty and collective continuity since its status-quo bias favours the notion of sovereignty as ceded (however unjustly) to the colonial state. More importantly, its vision of contracts tends towards the transactional. Thought of in those terms, the debts of the colonial states are a fixed amount, retired punctually, like a rent payment, or in lump-sum comprehensive settlements. Honouring the spirit of treaty relations in a non-contractualist manner will require thinking of these debts as an ongoing relationship. But to think of collective promising in relational terms is a tall order requiring members of settler states to see themselves collectively as bearing more than abstract personhood. This entails thinking collective belonging as both stronger (in the sense of entailing deep moral responsibilities) and weaker (in the sense of entailing fewer pretentions to autarchy and sovereignty) than generally understood in a contractualist imaginary.
Competing interests declaration
There are no competing interests concerning this paper.
