Backgrounder

In the summer of 1871, several Anishinabe and Swampy Cree bands negotiated Treaty 1 with Canada at the Stone Fort (Lower Fort Garry) in Manitoba. Among them were the Pembina and Fort Garry Bands (later known as the Roseau River Band), which were represented by  Kewetayash, Wakowush, Nanawananaw and Nashakepenais. Canada would later recognize these men and their successors as Chiefs and headsmen, even though the bands were organized by the clan system in which specific roles and responsibilities were entrusted to each clan, and key decisions affecting the community were made by consensus.

Although the Roseau River Band was made up of clans or groups who had settled at different sites along the Roseau River, the Crown initially set aside only one reserve for it, IR 2, at the confluence of the Red and Roseau Rivers. The reserve measured approximately 13,350 acres, based on the formula of 160 acres for each family of five as specified in Treaty 1.

The Chiefs had not understood that the Crown intended to set aside only one reserve for them. This misunderstanding became important because a significant number of band members had little connection to the land at the mouth of the Roseau River, having settled farther east along the river near Dominion City, at the Roseau Rapids, or northeast of the river prior to the treaty. The Chiefs from these areas expected at the very least to have reserves set aside for them at those sites.

The Chiefs at Roseau Rapids believed that Treaty 1 promised them a separate reserve, and petitioned for years to have their rights recognized. In 1888, the government set aside one and one-quarter sections, or approximately 800 acres, of reserve land at the Roseau Rapids (IR 2A) in return for an agreement that extinguished all claims to lands other than IR 2 and IR 2A.

In 1889, settlers and the communities near IR 2 began requesting that the government open up all of IR 2 for purchase. The pressure intensified over the next 14 years and came from individuals, municipalities and politicians alike. Initially, the Minister of the Interior resisted the pressure, citing the excellent quality of land and wooded areas needed by band members. The Indian Agent  also defended the Band’s interests, reporting that. with the wildlife declining, the Band was well situated, possessing a reserve with excellent agricultural land, hay lands, fishing, and timber. He noted in 1895 that band members were putting in crops on the land and that, when he asked the leaders about surrendering the reserve, they declared that they would never consent to give it up as it was the only thing that they and their children had to depend on for a livelihood.

Between 1895 and 1903, the documentary record shows that the Band held a consistent position that it would not surrender any of IR 2. When pressed to surrender the eastern part of the reserve, the Band refused, because it contained the highest land on the reserve, farthest away from the Roseau River. In fact, five weeks before the surrender, Roseau band leaders told the Indian Commissioner that the land was the only dry land on IR 2, which was needed for their cattle during the floods, and that they planned to cultivate it in the future. Yet, on January 30, 1903, 10 days after the Band’s latest refusal to consider a surrender, three Chiefs and nine headmen signed a document surrendering 12 sections of land, or 7,698.6 acres, on the eastern side of IR 2 – roughly 60 per cent of the reserve.

Although no records of the surrender meeting exist, Inspector Marlatt (the official responsible for the Roseau River Band), stated that the surrender was obtained with difficulty and only after the band members were promised that the proceeds would be available immediately after the sale of the lands. In the years following the sale, a dispute arose regarding interest payments to band members, and it was suggested that Marlatt had promised the Band payments of about $3,000 per year.
 
The panel found that Canada breached its fiduciary duty to the Band in several respects. When faced with persistent lobbying by non-Aboriginal interests to open up the land for settlement, Canada failed to properly manage the Band’s legal and other interests in its reserve. Instead of protecting the Band’s position, officials tried to influence it to reverse its decision. The Roseau River Band rejected proposals for a surrender at least 10 times over a 14-year period – up to a week before the surrender. This fact, coupled with statements by Inspector Marlatt that he had quiet influences at work, and that it was the wish of the department, not the Indians, that the land be surrendered, shows a flagrant disregard for the Band’s interests and is sufficient proof of tainted dealings.

The panel concluded that the 1903 surrender was, above all, a foolish, improvident, and exploitative agreement. The Crown knew that the Band’s land base was already small under the Treaty 1 formula; that the eastern surrendered portion of IR 2 was prime agricultural land, superior in quality to the remaining reserve land; that the Band was utilizing the eastern portion prior to 1903, in particular as a safe place to keep cattle during floods, and planned to cultivate it in future; and the 40 per cent of IR 2 remaining after the surrender was lowland, prone to regular flooding from the Red and Roseau Rivers. Yet, at a time when the Band was struggling to adapt to a way of life based on farming, in accordance with federal policy, the Crown actively promoted and in the end, consented to the surrender of 60 per cent of the Band’s main reserve. Any possible gains to the Roseau River Band from this surrender would be far outweighed by what it stood to lose. For these reasons, the panel recommends that Canada accept this claim for negotiation.

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