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07/04/1997

Indian Claims Commission Releases Report on Inquiry into Saskatchewan Band's Treaty Land Entitlement (TLE) Claim

Ottawa (April 7, 1997) - The Indian Claims Commission (ICC or the Commission) recently released its Report on the Lucky Man Cree Nation's Treaty Land Entitlement Claim. A Treaty Land Entitlement (TLE) Claim involves an allegation by a First Nation that it did not receive all of the land to which it was entitled under the terms of a Treaty entered into with Canada. TLE Claims are usually quite complicated, with a myriad of factual and legal issues to review.

In this case, the Commission was asked to inquire into and report on whether the Government of Canada fulfilled its treaty obligations by setting aside sufficient reserve land for the Lucky Man Cree Nation. The claim stemmed from events in the late 18th century. Lucky Man was a headman under the legendary Big Bear, one of the most powerful of the Cree Chiefs who later became known for his strong stands against government attempts to erode native rights and autonomy. In 1879, when Big Bear refused to sign Treaty 6, twenty of his lodges, starving and desperate to obtain treaty annuities, splintered off and adhered to Treaty 6 under Lucky Man as their new Chief.

As these people were, first and foremost, prairie buffalo hunters, they did not immediately select and settle on reserves, but sought instead to pursue their traditional lifestyle by hunting buffalo in southwest Saskatchewan and into the United States. Rations were provided by government agents to prevent the Indians from starving caused by dwindling buffalo herds, but they were also withheld from time to time as a tool to encourage compliance with the government's desire to have the bands select reserves and settle down. In these circumstances, Lucky Man indicated in 1880 that he was interested in having a reserve in the north within the boundaries of Treaty 6 near Battleford, Saskatchewan, but in 1882 he suggested a preference for an area near the Cypress Hills within the boundaries of Treaty 4. Nevertheless, he and his people continued to hunt and did not move north to Battleford until they were escorted there by the North-West Mounted Police in 1883.

In 1884, Lucky Man's band split. Some of his people settled on a reserve with Little Pine's band, although, at Little Pine's request, the reserve was not surveyed that year. Others, including Lucky Man himself, continued to roam under Big Bear. This latter group was present during the North-West Rebellion in 1885 when several white settlers and clergy were killed in the Frog Lake massacre. In the turbulent aftermath of the Rebellion, Lucky Man fled to the United States, and Indian Reserve (IR) 116 was not surveyed for the bands of Little Pine and Lucky Man until 1887. Some members of the Lucky Man Band continue to reside on IR 116 today, although, under the terms of a 1989 Settlement Agreement, a new reserve was set apart which provided the First Nation with sufficient land for its 1980 population of 60.

To determine whether the Lucky Man Cree Nation's TLE claim is valid, the Commission was asked to consider one fundamental question - what is the correct date for calculating the First Nation's population for treaty land entitlement purposes? The First Nation proposed three alternative dates for calculating its treaty land entitlement - 1880, 1882 and 1883 - when the Band's paylist population ranged from 366 to 872. In reply, Canada submitted two dates - 1887 and 1980 - when the treaty paylist population was either 62 or 60.

Treaty 6 provides that reserves are to be set apart after Canada has consulted with band members "as to the locality which may be found to be most suitable for them." The Commission concluded that the consultation contemplated by the treaty is more than the band simply indicating a general area in which it would like to have a reserve set apart; rather, Canada and the band must reach a "meeting of the minds" or consensus with regard to the specific lands to be set apart for the band's use and benefit. Canada's completion of a survey and the band's acceptance of the reserve provide conclusive evidence that both parties have agreed that the surveyed land will be treated as an Indian reserve for the purposes of the treaty. Therefore, the Commission found that, as a general principle, the most reasonable interpretation of Treaty 6 is that an Indian band's treaty land entitlement should be based on its date of first survey population, unless there are unusual circumstances that would otherwise result in manifest unfairness.

In this case, the Commission concluded that the appropriate date for calculating the First Nation's treaty land entitlement population is the date of first survey of IR 116 in 1887. The Commission did not consider that the necessary "meeting of the minds" or consensus on the selection of a specific reserve site was reached by Canada and the Band in 1880, 1882 or 1883. In 1884, the Band requested that the survey be postponed, and the 1885 rebellion and its aftermath further delayed the matter. For these reasons, the Commission determined that Canada's failure to survey IR 116 and set apart a reserve for the Band until 1887 was not manifestly unfair under the circumstances.

The Commission recommends that the parties conduct further research to determine the Band's actual 1887 population and its land entitlement under the Treaty 6 formula of 128 acres per person. The Commission was not asked in this inquiry to quantify Lucky Man's outstanding entitlement, if any, to treaty land. If the parties are unable to negotiate a settlement of any outstanding entitlement, the First Nation can request a further inquiry into this aspect of the claim.

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