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26/02/1997

Indian Claims Commission Report Calls 1907 Kahkewistahaw First Nation Land Surrender "Tainted in its Concept, Passage and Implementation"

"In conclusion, we find that this surrender transaction was foolish, improvident, and exploitative, and that the consent of the Governor in Council [to the Surrender]...should properly have been withheld."

Ottawa (February 26, 1997) - Commissioners from the Indian Claims Commission were in Regina today to release their report on the Kahkewistahaw First Nation's treaty land surrender claim. In clear, strong language, the report condemns the federal Government's conduct in appropriating 33,281 acres of prime land - almost three-quarters of the 46,816 acres in the original reserve - from the Kahkewistahaw First Nation.

"We are recommending that the government accept the claim of the Kahkewistahaw First Nation for negotiation under the Specific Claims Policy," stated Commission Co-Chair James Prentice. "Our decision relies on case law, legal precedents and a thorough examination of the historical record. Yet the simple facts surrounding this situation should be enough to convince anyone that the people of Kahkewistahaw were exploited."

The surrender took place in 1907, a time when the Canadian government was actively promoting settlement in Canada's western regions as a way to open up the country to economic development. It was almost inevitable that, in some areas, tensions would arise as non-aboriginal farmers coveted some of the prime agricultural land held by First Nations communities.

In the area around Kahkewistahaw's Reserve No. 72, on the south shore of the Qu'Appelle River some 130 kilometres east of Regina, local settlers pressured the Government to obtain a surrender to free up some of the First Nation's land. The Government's duty to protect the First Nation from exploitation ran headlong into its desire to see the west populated and developed. It was against this backdrop that the Kahkewistahaw surrender took place.

"Of course the interests of the people must come first and if it becomes a question between the Indians and the whites, the interests of the whites will have to be provided for." - Minister of the Interior and Superintendent of Indian Affairs Frank Oliver March 30, 1906

The surrender took place in January 1907, in the middle of winter when the First Nation's resolve had been weakened by illness and the need for rations. Disease, deprivation and starvation had already contributed to reducing the First Nation’s population from 365 to 84 in the 30 years since the First Nation had adhered to Treaty 4. Chief Kahkewistahaw - who had adamantly opposed earlier surrender offers - had recently passed on, and the First Nation was still without a leader. In these trying circumstances, the Government agent arrived at the surrender meetings with cash in hand, determined to obtain a surrender, promising immediate payment for the land if the First Nation agreed. Even so, the First Nation rejected the surrender by a vote of 14 to 5 at the first surrender meeting. But just five days later, inexplicably, the First Nation reversed itself after 22 years of refusal and approved the surrender by an 11 to 6 majority.

The surrender resulted in Kahkewistahaw losing close to three-quarters of its original land-base, and what was left was almost completely unsuited for cultivation. The people of Kahkewistahaw were left to survive on the steep escarpment and lower benches of the Qu'Appelle Valley with little viable agricultural land from which to derive income.

Technically, the surrender procedures were properly followed, and for this reason it is not open to the Kahkewistahaw First Nation to reclaim the lands surrendered in 1907. But the Commission's report shows that the Government breached its fiduciary obligation to protect the First Nation's interests by pressuring the First Nation to surrender its heritage.

"The difference between the surrendered lands and what was left is, in a word, shocking," said Commissioner Roger Augustine. "The Band not only surrendered the majority of its land, but it was asked to give up the very best land on the reserve. The First Nation provided expert evidence from a professional agrologist who confirmed the superiority of the surrendered lands. He noted that the difference in quality would have been as obvious in 1907 as it is today."

"The Government has a fiduciary - a protective - duty to First Nations. In this case, the evidence indicates that not only did Canada fail to protect the Band from sharp and predatory practices in dealing with its reserve land, but that Canada itself initiated these tainted dealings. Indian Affairs officials used their power and influence to pry valuable and viable lands away from the people of Kahkewistahaw, lands the government had been after for two decades," said Commission Co-Chair James Prentice. "In our view, this event surely marks a moral low ebb in the relationship between aboriginal and non-aboriginal Canadians on the western prairies. We hope that our report provides the Canadian government with an opportunity to accept responsibility for these events and to resolve them in a just and fair manner."

The ICC was established in 1991. Its mandate is: to inquire, at the request of a First Nation, into specific claims that have been rejected by the federal government or where the First Nation disputes the compensation criteria being considered in negotiations; and to provide mediation services on consent of the parties at any stage of the claims process.

To download the report PDF