Event151-2Cd20427.Pdf (James Smith Cree Nation.Pdf)
Total Page：16
File Type：pdf, Size：1020Kb
INDIAN CLAIMS COMMISSION JAMES SMITH CREE NATION IR 100A INQUIRY PANEL Chief Commissioner Renée Dupuis Commissioner Alan C. Holman COUNSEL For the James Smith Cree Nation William A. Selnes For the Government of Canada Robert Winogron/Uzma Ihsanullah To the Indian Claims Commission Kathleen N. Lickers March 2005 CONTENTS SUMMARY vii KEY HISTORICAL NAMES CITED ix TERMINOLOGY xiii PREFACE xvii PART I INTRODUCTION 1 MANDATE OF THE COMMISSION 3 PART II HISTORICAL BACKGROUND 7 CLAIMANTS’ ADHESIONS TO TREATY 5 AND 67 Geography and Claimants 7 Cumberland Band Adhesion to Treaty 5, 1876 7 James Smith Band and the Signing of Treaty 6, 1876 9 Cumberland Band Requests Reserve at Fort à la Corne 10 Survey of IR 20 at Cumberland Lake in Treaty 5 16 CONDITIONS AT FORT À LA CORNE, 1883–92 20 Creation of the Pas Agency in Treaty 5, 1883 20 Department Permits Move to Fort à la Corne, 1883 20 Movement from Cumberland to Fort à la Corne, 1883–86 21 Setting Aside Land for IR 100A, 1883–85 25 The North-West Rebellion and the Cumberland Band 30 Scrip Offered at Cumberland 31 Paylist for Cumberland Band at Fort à la Corne, 1886 33 Other Treaty 5 Bands at Fort à la Corne 33 Survey of IR 100A, 1887 34 Department Support for Agriculture at Fort à la Corne 35 Cumberland Band Movement, 1887–91 37 Return to the Cumberland District, 1886–91 38 Leadership of Cumberland Band at Fort à la Corne, 1886–92 39 Request for Separate Leadership at IR 100A, 1888 40 BAND MEMBERSHIP 41 Department Practice for Transfers of Band Membership 41 Settlement of Chakastaypasin Band Members at Fort à la Corne, 1885–91 44 Transfers to Cumberland Band, 1891 48 Death of Peter Chapman, 1892 50 Paylists for Big Head and Cumberland Bands at IR 100A, 1892–96 50 Commutation of Annuity, 1892 50 Transfers into Big Head’s Band, 1892–95 51 Farm Instructor Appointed, 1893 52 Surrender of 640 Acres at IR 20, 1894 53 Creation of Section 140 of the Indian Act, 1895 54 Requests for Transfer from Cumberland House, 1896 54 Transfer of Chakastaypasin Members to Cumberland Band 100A, 1896 55 Consents to Transfer Signed by Cumberland Band 100A 57 Applications for Admission to Cumberland Band 100A and James Smith Band 60 EVENTS AT FORT À LA CORNE, 1897–1902 65 Surrender and Exchange of 960 Acres at IR 100A, 1899 65 Petition for Councillor, 1900 68 Commutations of Annuity, 1900 69 Requests for Transfer from Cumberland House, 1900 70 ALLEGED SURRENDER AND AMALGAMATION, 1902 71 Events Preceding 71 Alleged Surrender and Amalgamation, July 24, 1902 74 Documentary Evidence 74 Testimony of Elder Angus Burns 77 Annuities Paid, 1902 79 Laird’s Report on Alleged Surrender and Amalgamation 80 Acceptance of Surrender by Order in Council 81 Status of James Smith Band Leadership, Post–1902 81 Church Official Questions Surrender 82 Community Understanding of Events of 1902 86 Establishment of Trust Fund and Expenditure of Land Sale Proceeds 89 The IR 100A Strip 90 IR 100A LAND SALES 100 Requirements of the Indian Act and Land Sale Regulations 100 Advertisement of Sale 101 Tenders for Land 105 Menary Group 105 Prendergast Group 108 Mossom Boyd Group 114 Ferguson Commission 115 PART III ISSUES 117 IR 100A SURRENDER AND BAND AMALGAMATION 117 Validity of Surrender Issues 117 Validity of Amalgamation 117 Land Disposition Issues 117 IR 100A STRIP 118 Validity of Surrender Issues 118 Land Disposition Issues 119 PART IV ANALYSIS 121 CUMBERLAND HOUSE CREE NATION INQUIRY FINDINGS 121 JAMES SMITH CREE NATION CHAKASTAYPASIN IR 98 FINDINGS 121 INDIAN RESERVE 100A 122 Issues 1–4: Validity of Surrender 122 The Crown’s Obligations under Treaty 6 130 The Crown’s Obligations under the Indian Act 132 Authority of Surrender Signatories 133 Compliance with the 1886 Indian Act 137 Issue 5: Validity of Amalgamation 139 Issues 8–10: Land Disposition 144 Fraud 149 IR 100A STRIP 149 Conclusion to the IR 100A Strip Issues 154 PART V CONCLUSIONS AND RECOMMENDATION 155 APPENDICES A James Smith Cree Nation: Treaty Land Entitlement and Cumberland 100A Reserve Inquiries – Interim Ruling, May 2, 2000 157 B Ruling on Application for Leave to Intervene, June 4, 2001 163 C James Smith Cree Nation: Peter Chapman IR 100A Inquiry and Cumberland House Cree Nation: IR 100A Inquiry – Interim Ruling, January 24, 2002 167 D James Smith Cree Nation: IR 100A Inquiry – Chronology 169 MAPS 1 Claim Area Map 6 2 Cumberland IR 100A and James Smith IR 100 26 3 Cumberland IR 100A: Reserve Boundaries and Township Lines (1892), and IR 100A and Surrounding Townships, Creating the IR 100A Strip (1903) 91 4 Land “Surrendered” in 1902, Showing Land Sales 104 5 IR 100A, Surrounding Townships, Creating the IR 100A Strip (1903) 151 SUMMARY JAMES SMITH CREE NATION IR 100A CLAIM Saskatchewan This report may be cited as Indian Claims Commission, James Smith Cree Nation: IR 100A Inquiry (Ottawa, March 2005). This summary is intended for research purposes only. For a complete account of the inquiry, the reader should refer to the published report. Panel: Chief Commissioner R. Dupuis (Chair), Commissioner A. Holman Treaties – Interpretation – Treaty 5 (1876) – Setting Aside Reserves under Treaty – Band Division – Evidence of Separateness – Band Amalgamation – Surrender – Royal Prerogative – Land Disposition – Fraud THE SPECIFIC CLAIM On January 24, 1991, the James Smith Cree Nation (JSCN) submitted a specific claim regarding the surrender and sale of the southern portion of Indian Reserve (IR) 100A totalling 22,080 acres. The First Nation claimed that Canada breached its statutory, treaty, trust, and fiduciary duties in taking the alleged surrender and further argued that Canada breached its statutory, treaty, trust, and fiduciary duties in its unlawful disposition of IR 100A. On March 13, 1998, Canada rejected the First Nation’s claim regarding the validity of the surrender, while accepting for negotiation an outstanding lawful obligation with respect to the sale of the surrendered lands. The Indian Claims Commission (ICC) accepted the May 18, 1999 request of the JSCN to conduct an inquiry into the surrender and subsequent sale of IR 100A. BACKGROUND Chief James Smith and four councillors signed Treaty 6 in August 1876 on behalf of the James Smith Band. On May 17, 1889, IR 100 was confirmed for the James Smith Band by Order in Council 1151 and consisted of 27.8 square miles. On July 24, 1902, Canada took a surrender of 22,080 acres from IR 100A and sought to amalgamate the “owners of the James Smith’s Indian Reserve No. 100” and the “owners of Cumberland Reserve 100A.” For both the surrender and amalgamation, Canada relied upon two signatories who had allegedly transferred to IR 100A in 1896 from the Chakastaypasin Band. With this amalgamation, IR 100A lands were joined with IR 100, and any outstanding treaty land entitlement owed to the James Smith Band at IR 100 was, in Canada’s view, cured by the addition of IR 100A to IR 100 lands. In 1903, Canada subdivided the surrendered land for sale. The majority of the quarter sections were purchased by government officials who were investigated in 1913 and found to be in breach of their duties. All quarter sections were sold for less than their appraised value. ISSUES What were Canada’s obligations in taking the 1902 surrender at IR 100A? Is Canada in breach of any such obligations, and, if so, is the surrender valid and does Canada owe an outstanding obligation? Was there an amalgamation of the “Peter Chapman Band” and the James Smith Band? What were Canada’s obligations in disposing of IR 100A? Was there a surrender of the IR 100A Strip, and, if so, what were Canada’s obligations in disposing of it? viii Indian Claims Commission FINDINGS Canada today concedes that IR 100A was set aside for the Cumberland Band. We agree. Based on the totality of the evidence, a separate band was not created at any time. The Cumberland Band that adhered to Treaty 5 resided at two locations: IR 20 and IR 100A. The Cumberland Band continues to exist and continues its treaty relationship with the Crown. This relationship and the terms of Treaty 5 limit the exercise of the Crown’s royal prerogative, especially where that prerogative is being exercised to deprive a band of its reserve land. Thus, a transfer of an interest (i.e., a reallocation) in reserve lands to some other group triggers the requirements, under treaty, that Canada seek and obtain the consent of the Band to dispose of its interest in its reserve lands. On the evidence, no such consent was sought. Canada’s failure to have sought the informed consent of the whole of the Cumberland Band to the transfer of people into IR 100A, to the surrender of the southern portion of IR 100A, and to the agreement to amalgamate its interest in IR 100A with the James Smith Band at IR 100 is breach of treaty, statute, and fiduciary duties. Upon the surrender of reserve land, Canada has treaty, statutory, and fiduciary duties in disposing of this land by sale. Canada has admitted its breach of fiduciary duties in accepting prices below the appraised value and for failing to enforce the terms of sale. Canada has admitted it breached its statutory duty for its failure to have immediately dismissed its employee for his conduct involving the sale of IR 100A and for its failure to have cancelled the sales attributable to him. In the absence of clear and unequivocal evidence, the panel is unable to make a finding of fraud.