Completed Inquiries – Reports Released

01/03/2005

James Smith Cree Nation [Chakastaypasin IR 98] - March 2005

In May 1889, in accordance with the terms of Treaty #6, the federal government confirmed Indian Reserve (IR)98 for the Chakastaypasin Band. The reserve, located on the South Branch of the South Saskatchewan River, just south of Prince Albert, encompassed an area of 62 square kilometres.

Events surrounding the Northwest Rebellion in 1885 had an impact on the Chakastaypasin Band whose members were initially branded as ‘rebels’ although no information to suggest a basis for the charge exists. There were statements from elders that Chakastaypasin members left the reserve after threats were made by scouts involved in the uprising. Band members scattered to nearby reserves and to their traditional hunting grounds on the Carrot River near IR 100A.

By June 1885, the Department of Indian Affairs decided that the Band had violated the terms of the treaty made with the government and that it was advisable to break up the band and amalgamate it with others. The department came to rely upon the band members’ "transfer" to other bands as evidence of the abandonment of IR 98. (The majority of members moved to the Cumberland Band’s reserve, IR 100A, and were later allegedly amalgamated with the James Smith Band, along with the other residents of IR 100A.) When the government received contrary legal advice, it had Kahtapiskowat, a headman of the Chakastaypasin Band, and eight other ‘former’ Chakastaypasin members living at IR 100A sign a surrender document. The government claimed these nine names constituted a majority of the Chakastaypasin members. It never consulted other members living on other reserves and as a result, IR 98 was surrendered in 1897. By 1889, the Chakastaypasin paylist had been discontinued, and all of the Chakastaypasin members "transferred" to the paylists of other bands.

The Chakastaypasin reserve was sold in 1901, and the sale proceeds were distributed among the various bands that had accepted Chakastaypasin members. These bands are sometimes referred to by the parties as "host bands".

In May 1984, the James Smith Cree Nation submitted a specific claim challenging the validity of the surrender and sale of the Chakastaypasin reserve. In December 1998, Canada rejected the portion of the claim which challenged the validity of surrender, stating that, by 1888, all Chakastaypasin band members had moved off IR 98, their names had been added to other bands’ paylists, and, as a result, the Chakastaypasin Band had ceased to exist. The government argued that, under these circumstances, no surrender under the Indian Act was required and the government had the authority to dispose of the abandoned reserve, without compensation to the former Chakastaypasin band members. Nevertheless, the Crown argued that the government did comply with the Indian Act surrender provisions and placed the sale proceeds to the credit of the bands to which Chakastaypasin band members had transferred.

In May 1999, the James Smith Cree Nation requested that the Commission conduct an inquiry into the surrender and sale of IR 98. In November 2002, the panel ruled that the other "host bands" would be allowed to submit evidence and legal arguments but would not be included as parties to the inquiry.

In March 2003, Canada communicated its partial acceptance of one aspect of the claim – the post-surrender obligations regarding Sugar Island, a part of Chakastaypasin reserve that was not sold until nearly 50 years after the surrender. The pre-surrender and surrender aspects of the claim regarding Sugar Island remained at issue in this inquiry.

The Commission found there were no valid transfers of Chakastaypasin members into IR 100A at any relevant point in time. At the time of the surrender of IR 98, the Department of Indian Affairs was aware of members residing at other locations, and had an obligation to seek the consent of all eligible voters to the surrender, not just those resident at IR 100A. As such, the Commission found the surrender of IR 98 invalid and that Canada breached its treaty, statutory and fiduciary obligations for its failure to consult the whole of the Chakastaypasin Band. The Commission found Canada also breached those same obligations in the sale of IR 98, when it permitted the sale of 86 of the 114 quarter sections of the reserve at below fair market value. Finally, Canada owes a treaty, statutory and fiduciary obligation to protect reserve land from exploitation. With respect to Sugar Island, the Commission found Canada in breach of these duties for permitting a continuous trespass to IR 98 lands and resources.

Based upon the findings of its panel, the Commission recommended that the James Smith Cree Nation’s Chakastaypasin Indian Reserve 98 claim be accepted for negotiation under Canada’s Specific Claims Policy.

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