Date: 20060228
Docket: T-617-85
Citation: 2006 FC 261
OTTAWA, ONTARIO, this 28th day of February 2006
PRESENT: The Honourable Madam Justice Hansen
BETWEEN:
MONTANA BAND, Chief Leo Cattleman, Marvin Buffalo,
Rema Rabbit, Carl Rabbit and Darrell Strongman,
suing on their own behalf and on behalf of all other members
of the Montana Indian Band, all of whom reside on the
Montana Reserve No. 139, in the Province of Alberta
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
- and -
SAMSON BAND, Chief Terry Buffalo, Clifford Potts, Frank Buffalo,
Florence Buffalo, Dolphus Buffalo, Lawrence Saddleback,
Larron Northwest, Nancy Yellowbird, Barb Louis,
Keith Johnson, Rose Saddleback and Jim Omeasoo,
Councillors of the Samson Band, sued on their own behalf
and on behalf of the members of the Samson Band of Indians
Third Parties
- and -
ERMINESKIN BAND, Chief Gerald Robert Ermineskin,
and Arthur Morris Littlechild, Earl Ted Ermineskin,
Maurice Wolfe, Richard Leonard Lightening, Carol Margaret Wildcat,
Carol Elizabeth Roasting, Glenda Rae White, Craig Alton Makinaw,
Councillors of the Ermineskin Band, sued on their
own behalf and on behalf of the Ermineskin Band of Indians
Third Parties
- AND -
Docket: T-782-97
BETWEEN:
CHIEF FLORENCE BUFFALO acting on her own behalf
and on behalf of all the members of the
SAMSON CREE NATION AND BAND
- and -
THE SAMSON CREE NATION AND INDIAN BAND
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
and Her Majesty the Queen in Right of Canada as
represented by the MINISTER OF INDIAN AFFAIRS
AND NORTHERN DEVELOPMENT Parliament
Buildings, Ottawa, Ontario
Defendants
- and -
MONTANA BAND, Chief Leo Cattleman, Carl Rabbit,
Darrel Frederick Strongman, Coldy Sr. Dick Rabbit,
Councillors of the Montana Band, sued on their own behalf
and on behalf of the members of the Montana Band of Indians
Third Parties
- and -
ERMINESKIN CREE NATION, Chief Gerald Robert Ermineskin,
Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White,
Councillors of the Ermineskin Band, sued on their own behalf, and
on behalf of the members of the Ermineskin Band of Indians
Third Parties
- AND -
Docket: T-2804-97
BETWEEN:
ERMINESKIN CREE NATION and Chief Gerald Ermineskin,
Earl Ted Ermineskin, Maurice Wolfe, Richard Leonard Lightening,
Carol Margaret Wildcat, Carol Elizabeth Roasting, Glenda Rae White,
Craig Alton Makinaw, Councillors of the Ermineskin Cree Nation, suing
on their own behalf and on behalf of the ERMINESKIN CREE NATION
Plaintiffs
- and -
HER MAJESTY THE QUEEN and
the ATTORNEY GENERAL OF CANADA
Defendants
- and -
MONTANA BAND, Chief Leo Cattleman, Carl Rabbit, Darrel Frederick Strongman, Coldy Sr. Dick Rabbit, Councillors of the Montana Band,
sued on their own behalf and on behalf of the Montana Band of Indians
Third Parties
- and -
SAMSON CREE NATION AND INDIAN BAND, Chief Lena Cutknife,
and Dolphus Buffalo, Florence Buffalo, Kurt Buffalo, Pat Buffalo, Cecile Crier,
Patrick Cutknife, Walter Lightning, Barbara B. Lightning, George Montour Sr.,
Donna Potts Johnson, Rose Saddleback and Marvin Yellowbird, Councillors of
the Samson Cree Nation and Indian Band, sued on their own behalf
and on behalf of all the members of the Samson Cree Nation and Indian Band
Third Parties
REASONS FOR JUDGMENT
Table of Contents
Introduction......................................................................................................... [1]
The Parties and the Actions......................................................................... [5]
The Issues .................................................................................................................. [8]
Overview of the Claims.................................................................................. [10]
Montana's Claim ................................................................................................. [11]
Ermineskin's Claim .............................................................................................. [18]
Samson's Claim .................................................................................................. [24]
The Witnesses ....................................................................................................... [30]
Montana Band..................................................................................................... [32]
Samson Band....................................................................................................... [36]
Ermineskin Band.................................................................................................. [63]
The Crown ......................................................................................................... [86]
Chronology
Introduction ........................................................................................................ [95]
General Background to Treaty 6 ........................................................................ [100]
1876 - The Signing of Treaty 6 .......................................................................... [103]
1877 - Chief Bobtail's Adhesion to Treaty 6 ...................................................... [105]
Big Bear Adheres to Treaty ............................................................................... [107]
1879 - Ermineskin and Samson Recognized as Chiefs ........................................ [111]
1884 - Establishment at Peace Hills ................................................................... [112]
1885 - The Northwest Rebellion ....................................................................... [113]
Policy of "Reward and Punishment" ................................................................... [118]
1885 - Surveys of the Peace Hills Reserves ....................................................... [123]
1885 -1886 Discharges from Treaty and Scrip .................................................. [125]
1886 - Proclamation of Amnesty ....................................................................... [167]
1887 - Readmission Agreement ......................................................................... [168]
1887 - Transfer of the Bobtail Remnant ............................................................. [176]
1889 - Bobtail's Location ................................................................................. [184]
1889 - Peace Hills Reserves Confirmed by Order in Council .............................. [189]
1891 - Railway Right-of-way Surrenders ........................................................... [191]
1893 - Change of name ..................................................................................... [195]
1896 - Deportation ........................................................................................... [196]
1897 - Little Bear Travels to Ottawa ................................................................. [229]
1898 - Chief Samson Dies ................................................................................ [236]
1900 - Chief Bobtail Dies .................................................................................. [237]
1901 - Road Allowance Surrender .................................................................... [238]
1901 - Mounting Pressure to Open Reserves for Settlement ............................... [250]
1902 - 1903 Surrender Attempts ...................................................................... [256]
1904 - Surrender Attempts ............................................................................... [260]
1905 - Chief Little Bear Wishes to Return to Canada ......................................... [264]
1906 - Montana on IR 139 ............................................................................... [277]
1908 - Ermineskin Mineral Surrender ................................................................ [278]
1908 - Further Developments ............................................................................ [279]
1909 - Samson Surrender ................................................................................. [283]
Surrender of IR 139 .......................................................................................... [286]
Oral History Evidence ................................................................................. [312]
Discussion
The First Question ............................................................................................. [314]
The Statutory Definition of "band" ......................................................... [315]
Submissions of the Parties .......................................................... [323]
When does an Indian Act Band Cease to be a Band and What Happens to that Band's Reserve Interest?
Submissions of the Parties ......................................................... [364]
When, if at all, during the relevant time frame, did the Bobtail Band cease to exist?
Submissions of the Parties ......................................................... [383]
Analysis
The Statutory Definition of "band" ......................................................... [428]
When does an Indian Act Band Cease to be a Band and What Happens to that Band's Reserve Interest? [455]
When, if at all, during the relevant time frame, did the Bobtail Band cease to exist? [460]
Were Chief Bobtail and others validly discharged
from treaty? .............................................................................. [461]
Did the transfer of the "Bobtail remnants" to the paylists of the Samson and Ermineskin Bands constitute a valid transfer of band membership? ......................................... [500]
Were there any official transfer policies or procedural requirements in 1887? [501]
Of what significance or effect, if any, is Order in Council P.C. 1151? [512]
Could Indians be members of and have an interest in more than one band? [515]
Did the Crown owe fiduciary or other duties to the "remnants" with respect to IR 139? [521]
Are Ermineskin and Samson successor Bands to the Bobtail Band? [523]
What is the legal effect of the readmission agreement? ................ [535]
Submissions of the Parties ............................................. [536]
Analysis ........................................................................ [576]
Conclusion ................................................................................ [608]
Montana's Claim to IR 139
Submissions of the Parties ......................................................... [611]
Analysis .................................................................................... [642]
Standing ................................................................................................ [664]
Conclusion ............................................................................................ [670]
The Second Question ........................................................................................ [671]
The Third Question ........................................................................................... [673]
Summary ............................................................................................................... [677]
Introduction
[1] Pursuant to the terms of Treaty 6, Indian Reserve No. 139 ("IR 139" or "Bobtail Reserve"), comprising approximately 31.5 square miles, was set apart for the use and benefit of the Bobtail Band of Indians. IR 139 is the subject matter of this multi-party, multi-action litigation. In each of the three main actions, the collective Plaintiffs advance claims to IR 139 and challenge the validity of a June 1909 surrender of IR 139.
[2] In the late summer and early fall of 1885, after completing the survey of IR 139 for the Bobtail Band, Surveyor John C. Nelson surveyed Indian Reserves No. 137 ("IR 137" or "Samson Reserve") and No. 138 ("IR 138" or "Ermineskin Reserve") for the Samson and Ermineskin Bands respectively.
[3] These reserves are situated south of Edmonton between the cities of Wetaskiwin and Ponoka, Alberta at a place initially known as Bear Hills, later known as the Peace Hills Agency, and finally the Hobbema Agency.
[4] The chronology leading up to the surrender at issue begins in the mid-1870s and, for the most part, takes place on these three reserves.
The Parties and the Actions
[5] This case concerns three principal actions and two third party claims within each of the main actions. The Montana Band et. al. ("Montana") commenced its action against Her Majesty the Queen ("Crown") in 1985. The Crown filed its Statement of Defence in June 1990 and commenced third party proceedings against the Samson Band et. al. ("Samson") and the Ermineskin Band et. al. ("Ermineskin").
[6] Samson and Ermineskin commenced their respective actions against the Crown in 1997. The Crown filed defences in both actions and in each action commenced third party proceedings against the Plaintiffs in the other two principal actions.
[7] In June 1999, Justice Hugessen, the case management judge, ordered that the three principal actions and the third party claims would be tried together on common evidence and disposed of by a single judgement.
The Issues
[8] In September 2001, Justice Hugessen ordered the severance of three issues, namely:
a) Up to and including June 12, 1909 which of the Plaintiffs, if any, were entitled to the use and benefit of the lands comprising IR 139?
b) Was the purported surrender dated June 12, 1909 valid?
c) Which of the Plaintiffs, if any, were entitled to the use and benefit of the land comprising IR 139 at the conclusion of the transactions dated June 12, June 14, and June 17, 1909?
[9] As well, Justice Hugessen ordered that the trial of these issues would proceed first and before any proceedings relating to all other issues raised in the pleadings. These reasons arise from the trial of these three issues.
Overview of the Claims
[10] Before turning to a review of the evidence, a brief description of the claims of each of the Plaintiffs is helpful.
Montana's Claim
[11] Although IR 139 was surveyed and set apart for the Bobtail Band in 1885, Montana claims that by 1887 the Bobtail Band had dispersed and ceased to exist leaving no subsisting members with rights to the reserve. As a result, the interest of the Bobtail Band in IR 139 was extinguished. Despite this fact, the Crown continued to recognize IR 139 as a reserve.
[12] In the summer of 1896, the United States deported approximately 500 Canadian Cree Indians to Canada. The majority of these people were individuals (and their children born in the United States) who had fled to the United States during and in the aftermath of the Northwest Rebellion. Although most of these people were escorted to their former reserves, approximately 150 of the deported Cree Indians expressed a desire to go to Hobbema where they were settled permanently on the vacant Bobtail Reserve by Department of Indian Affairs officials. Under the leadership of Little Bear, this group was initially known as Little Bear's Band and later the Montana Band.
[13] Montana claims that IR 139 was set apart for them in 1896. This was subsequently confirmed by government officials when Little Bear met with the officials during a visit to Ottawa in February of 1887.
[14] In 1901, government officials asked Montana to surrender a small portion of IR 139 for the purpose of a road allowance. Montana agreed and executed a surrender agreement. In the following years, the government repeatedly approached Montana for surrenders of a portion of IR 139. On each occasion, Montana refused.
[15] On June 12, 1909, without consulting Montana and without their knowledge, the Crown obtained a surrender of IR 139. The surrender was taken from former members of the Bobtail Band who at the time of the surrender were members of the Samson and Ermineskin Bands. Montana maintains that the former members of the Bobtail Band had no interest in IR 139 at the time of the surrender because they took no reserve interest with them when they joined the Samson and Ermineskin Bands. Montana also maintains that at no time did Samson or Ermineskin have an interest in IR 139.
[16] Montana claims that only the Montana Band was entitled to the use and benefit of IR 139 up to and including June 12, 1909; that the June 12, 1909 surrender was invalid. Accordingly, only the Montana Band had an interest in IR 139 at the conclusion of the June 1909 transactions.
[17] Two other agreements between the "owners of Samson's Indian Reserve, No.137" and the "owners of the Bobtail Indian Reserve, No. 139" and the "owners of Ermineskin's Indian Reserve, No. 138" and the "owners of the Bobtail Indian Reserve, No. 139" dated June 14 and June 17, 1909 respectively which form part of the overall surrender transaction, will be described more fully later in these reasons.
Ermineskin's Claim
[18] Ermineskin claims a joint entitlement to IR 139 with Samson.
[19] In 1885 and 1886, a number of the members of the Bobtail Band including Chief Bobtail withdrew from treaty and took scrip. In 1887, Chief Bobtail and members of his family were readmitted to treaty and returned to the reserves at Peace Hills. Those members of the Bobtail Band who never left treaty were unilaterally transferred by the Indian Agent to the paylists of either the Samson or Ermineskin Bands. After 1886, no paylists for the Bobtail Band were kept. Ermineskin maintains that notwithstanding the discharge and subsequent readmission to treaty of Chief Bobtail and members of his family and the transfers to Ermineskin and Samson of the other members of the Bobtail Band, all of these individuals continued to be members of the Bobtail Band and that the Bobtail Band did not cease to exist as alleged by Montana.
[20] Ermineskin claims that they and Samson recognized and accepted all of these Bobtail members on the basis that the Bobtail members shared the rights and interest of the Ermineskin and Samson members and, in turn, the Ermineskin and Samson members shared the rights and interest of the Bobtail members. Ermineskin acknowledges the existence of three separate bands, but takes the position that this did not alter the close kinship relationships among the three bands. Further, the basis for their recognition and acceptance of the Bobtail members must be understood within the context of Cree social organization and band structure.
[21] Ermineskin also takes the position that even if the Bobtail Band ceased to exist as a practical entity, its collective rights to the Bobtail Reserve, never having been extinguished or surrendered, were transferred to its successors, Ermineskin and Samson, by virtue of their kinship relationships and their recognition and acceptance of them on that basis.
[22] With respect to Montana's claim, Ermineskin submits that the deported Canadian Cree were placed on IR 139 temporarily. By 1898, two-thirds of them had left and those that remained did not acquire an interest in the Bobtail Reserve which had never been surrendered. As well, there is no evidence of an intention on the part of the Crown, prior to 1909, to set aside all or part of IR 139 as a reserve for the Montana Band.
[23] Ermineskin also challenges the validity of the June 12, 1909 surrender.
Samson's claim
[24] Samson claims a joint entitlement to IR 139 with Ermineskin.
[25] In 1877, Chief Bobtail signed an adhesion to Treaty 6. Because Great Britain held sovereignty for Canada and the North-West Territories until 1931, Treaty 6 and the parties to it are subject to the rules of International Law respecting nation-to-nation agreements. In 1885 and 1886, members of the Bobtail Band including Chief Bobtail were granted discharges from treaty and took scrip. In 1887, Chief Bobtail and his family were readmitted to treaty and returned to the reserves in Peace Hills. In 1887, without proper consent or authority the Indian Agent transferred those Bobtail Band members who had not left treaty to the paylists of either the Samson or Ermineskin Band. The Department discontinued the Bobtail Band paylist after 1886. The discharges, transfers, and readmission agreement were invalid and did not change the legal status or entitlement of Chief Bobtail and the other members of the Bobtail Band to be members in both the Bobtail and Samson Bands or the Bobtail and Ermineskin Bands. The Bobtail Band did not cease to exist in law until 1909.
[26] Samson claims that the nature of kinship relations and social organization among the Plains Cree allowed Samson and Ermineskin to recognize and accept the Bobtail Band members into their respective Bands. The Bobtails who joined either Samson or Ermineskin held dual membership as Samson-Bobtails or Ermineskin-Bobtails. They did so with the understanding that they would share the same rights and interest as other Samson or Ermineskin members while members of Samson and Ermineskin would share the rights and interest of the Bobtail Band, including their collective rights as beneficial owners of IR 139.
[27] Samson adopts Ermineskin's argument with respect to successorship.
[28] Samson accepts that because Chief Big Bear adhered to Treaty 6, the Little Bear/Montana Band was also covered by treaty. However, Montana had no right to IR 139 under Treaty 6. In placing the deported Canadian Cree on IR 139 in 1896 and causing them to remain there, the Crown wrongfully ignored the presence and interest of the Bobtail members.
[29] Samson also challenges the validity of the June 12, 1909 surrender for reasons that are considered later.
The Witnesses
[30] All of the Plaintiffs base their claims on a vast historical documentary record. A number of experts were called to identify, analyse and provide the context within which the documents were created. In particular, the parties considered it important for the Court to have an understanding of how the political, cultural, and social dynamics of the time influenced the shaping of Western Canada in the late 19th century; as a basis for understanding the evolution of the relationship between the Government of Canada and the Plains Cree, and the reasons behind the development and implementation of various government policies and objectives in the late 1800's. A large portion of this special knowledge and insight into Western Canadian history was imparted to the Court through expert witnesses and elder testimony.
[31] The Plaintiffs considered it equally important for the Court to have the Cree perspective of this historical record. A number of Cree elders testified in this regard.
Montana Band
[32] The Montana Band called only one expert witness, Dr. Sarah Carter.
Expert Witness: Dr. Sarah Alexandra Carter
[33] The first expert witness to be qualified in the trial was Dr. Carter. Dr. Carter received her Bachelor of Arts and Master's degree in History from the University of Saskatchewan. She completed her doctorate at the University of Manitoba, specializing in the fields of Canadian History, British Imperial/Commonwealth History, and Culture Contact in the Americas. Presently, she is a professor at the University of Calgary in the Department of History.
[34] In addition to having taught numerous university courses, she has published books and refereed journal articles on various topics pertaining to 19th century aboriginal and western Canadian history.
[35] Dr. Carter was accepted as an expert in the field of Canadian history qualified to provide opinion evidence on the historical background to the 1909 surrender of IR 139. She tendered a report titled "The Historical Background to the 1909 Surrender of Indian Reserve No. 139". (exh. 3574)
Samson Band
[36] The Samson Band called four expert witnesses and two elders to testify on their behalf.
Expert Witnesses: Dr. Edward Van Dyke
[37] A graduate of Bethel College in St. Paul, Minnesota, Dr. Van Dyke received a Bachelor of Arts in Anthropology and Theology. At the University of Alberta, he completed both his Master's degree in Social and Cultural Anthropology, and his Ph.D. in Social and Cultural Anthropology/Psychological Anthropology.
[38] For the past thirty years, Dr. Van Dyke has been in private practice working as a consultant and conducting research including research in the area of Plains Cree culture. He has had many years of experience living and working with the Plains Cree as a social and cultural anthropologist.
[39] Dr. Van Dyke was qualified as an expert in the field of cultural and social anthropology with particular expertise in the area of Plains Cree culture. Dr. Van Dyke's main report is titled "The Plains Cree". (exh. 3619) He also submitted a surrebuttal report "Response to Alexander von Gernet". (exh. 3620)
Dr. Hugh Dempsey
[40] Dr. Dempsey was a unique witness in that he testified for both the Samson and Ermineskin Bands.
[41] Although Dr. Dempsey is officially retired from his position at the Glenbow Museum in Calgary, he continues to work as a historian doing research and acts as a consultant.
[42] Dr. Dempsey was hired by the Glenbow Museum in 1956 and given the responsibility of creating the archives. Most of the early material collected by the Glenbow Museum for the archives was collected by Dr. Dempsey. The subject matter of the documentary material he acquired related primarily to western Canadian history including records pertaining to native peoples, the fur trade, exploration, missionaries, land settlement, and urban history. In 1967, Dr. Dempsey moved from being an archivist to the position of Technical Director in charge of all curatorial departments at the Glenbow Museum.
[43] During his career as a historian, Dr. Dempsey wrote numerous books and articles about Plains Cree history, belonged to a number of Native organizations, and received numerous awards including an honourary doctorate from the University of Calgary and the Order of Canada for his contribution to the benefit of native people and the people of Western Canada.
[44] In 1991, Dr. Dempsey retired from the Glenbow Museum, and has since then, been writing books, including a number on various historic Canadian Aboriginal figures, speaking to various professional and nonprofessional groups on subjects of Canadian history, editing the quarterly magazine Alberta History, and doing some consulting on both legal and historical matters.
[45] Dr. Dempsey was qualified to give opinion evidence as a historian with expertise in the history of the Plains Cree, including opinion evidence relating to Big Bear, his family, and his followers.
[46] Dr. Dempsey's report is titled "Big Bear, Little Bear, Treaty Six, and the North-West Rebellion". (exh. 3623) He also submitted a surrebuttal report. (exh. 3624)
Dr. Carl Beal
[47] Dr. Beal received a Bachelor of Arts and a high honours degree, both in economics, from the University of Saskatchewan. From the same institution, he received a master's degree; his thesis was in the area of the history of economic thought. He obtained his Ph.D. from the University of Manitoba. He described his areas of specialization as including economic development with a focus on indigenous economic development and economic history with a focus on indigenous economic history, particularly in Canada, and more particularly, Western Canada.
[48] He is currently an Associate Professor in the Department of Indian Studies and an Institutional Researcher at the Saskatchewan Indian Federated College. He also works as a socio-economic development consultant on a contract basis.
[49] Dr. Beal was qualified to give expert opinion evidence in the area of economics, in particular, economic history, and more particularly, the economic development of Indian reserves.
[50] Dr. Beal submitted two reports: "Expert Report of Dr. Carl Beal" (exh. 3766) and "Sur-Rebuttal Report of Dr. Carl Beal" (exh. 3767)
Dr. David Miller
[51] Samson's last expert witness was Dr. Miller, an Associate Professor of Indian Studies at the Saskatchewan Indian Federated College in Regina. Having received his Bachelor of Arts from Dakota Wesleyan University with a major in history and speech and drama, Dr. Miller moved to the University of North Dakota in Grand Forks, North Dakota, where he completed a Master's degree in American History. Subsequently, Dr. Miller was accepted at Indiana University in Bloomington, Indiana, and completed his doctoral dissertation in anthropology. He specialized in a number of areas, including ethnic identity, ethnohistory, history, kinship and social organization, and religion. Currently, Dr. Miller is an Associate Professor in the Department of Indian Studies at the Saskatchewan Indian Federated College in Regina.
[52] Because of his graduate work in the two fields of history and anthropology, and the type of work he is involved with now, Dr. Miller explained that he considers himself to be a historical anthropologist, and more particularly a Plains ethnologist, within the area of cultural-social anthropology, with a focus on North America.
[53] Dr. Miller was qualified having expertise as a historian and anthropologist, and to provide expert evidence in these proceedings with respect to the Plains Indians, including opinion evidence with respect to the historical record relating to those Plains Indians.
[54] Dr. Miller also submitted two reports: "The 1885 Refugee Crees and their Relatives, and their Sojourn in Montana, 1885-1896: A Survey of U.S. Documentary Sources" (exh. 4672) and "Sur-Rebuttal Report of Dr. David R. Miller" (exh. 4673).
The Samson Band Elders
Eric Tootoosis
[55] Mr. Tootoosis, a member of the Poundmaker Cree Nation, situated west of North Battleford, Saskatchewan, was called to introduce the two elders, Ms. Amelia Potts and Mr. Solomon Stone, and to describe the role of an elder in the Cree Assiniboine community.
[56] He described the elders as constituting a very important group of people in their society. He explained that the elders are relied upon to provide direction, counselling, and a deeper understanding of ceremony and life experience.
[57] Mr. Tootoosis described Ms. Amelia Potts as a well respected elder in the Cree community.
Ms. Amelia Potts
[58] Ms. Potts was born on the Samson Reserve in the Hobbema Agency in Alberta. Her parents and grandparents both being Cree, her first language is Cree. She attended a residential school in the Hobbema area as a child but learned a traditional lifestyle from her grandmother. It was from her grandmother that she learned a number of stories, including a story about the difficult times during the period of the Northwest Rebellion in 1885.
[59] Ms. Potts was presented with a gift of cloth and tobacco as an offering for the telling of the story about the Rebellion.
Mr. Solomon Stone
[60] Mr. Tootoosis also introduced Mr. Stone to the Court. Having known him since he was eight years old, Mr. Tootoosis described Mr. Stone as a member of the Mosquito Reserve, and a respected elder in the Cree Assiniboine community.
[61] Mr. Stone was born on the Mosquito Reserve to a Cree mother and an Assiniboine father. He was raised by his Assiniboine grandparents, and his first language was Assiniboine. Later on, Mr. Stone learned to speak Cree. He too was told stories by his grandmother, and, in particular, she imparted to him a story about events that occurred during the Northwest Rebellion when one of her relatives was hanged.
[62] After receiving a gift of tobacco and cloth, Mr. Stone related to the Court the story told to him by his grandmother about her uncle and her cousin.
Ermineskin Band
[63] Ermineskin called two expert witnesses and two elders from the Ermineskin Band to testify.
Expert Witnesses:
Dr. Hugh Dempsey
[64] Dr. Dempsey also testified for the Ermineskin Band as an expert witness. In this capacity, he was qualified as having expertise in the history of Western Canada and the Plains Cree and able to give evidence on the Plains Cree and the Plains Cree in the Peace Hills area. He tendered two reports; his main report titled "A History of Bobtail and the Bear Hills Crees to 1885" (exh. 4735), and "Surrebuttal Report by Hugh A. Dempsey" (exh. 4736).
Ms. Gwynneth Jones
[65] Ms. Jones received a Bachelor of Arts in History from Queen's University, and a Master's degree in public administration from the same institution. Eight years later, she received a Master of Arts in History from York University.
[66] Ms. Jones testified that the focus of her Bachelor of Arts was on Canadian history and politics and her Master of Arts in public administration involved coursework and papers in various areas, including administrative theory and Canadian public administration.
[67] Ms. Jones also worked as an Indian land claims researcher for the Ontario Native Affairs Directorate. Her work included examining documentary records including RG-10 files, the record group from the National Archives related to Indian Affairs, surveyor general records, and records of the Privy Council and the Department of Justice.
[68] Ms. Jones also obtained a master's degree in History. The focus of her studies was on public policy decisions making in the 19th century and the implementation of public policy at different levels of government. Upon the completion of this degree, Ms. Jones returned to the Ontario Native Affairs Directorate, which was responsible for researching all Ontario claims related to lands and natural resources, including claims related to land surrenders, the validity of surrenders, the validity of treaties, and land sales following a surrender.
[69] She presently works as an independent consultant.
[70] Ms. Jones was qualified as a historian having expertise with respect to the interpretation of the interaction between the Canadian government (including federal pubic officials and civil servants) and Aboriginal peoples based on the historical record.
[71] Ms. Jones tendered three reports: "Chief Bobtail, the Maskwachees Cree, the Department of Indian Affairs and the Bobtail Indian Reserve 139: A Historical Chronology of Developments Prior to the Surrender of June, 1909" (exh. 4749); "Rebuttal Report Re: "The Historical Background to the 1909 Surrender of Indian Reserve No. 139, S. Carter, Ph.D." (exh. 4750); and "Surrebuttal Report" (exh. 4751).
Ermineskin Band Elders
Lester Fraynn
[72] Mr. Lester Fraynn, a member of the Ermineskin Cree Nation, introduced the two elders, Mr. John Ermineskin and Mr. Gordon Lee, and described the role of an elder in his community.
[73] Mr. Fraynn explained that an elder is known for his cultural knowledge and wisdom, for his ability to advise his people with regard to ceremonies and other cultural activities, and for conducting certain ceremonies such as sweats and prayer sessions.
[74] Mr. Fraynn described Mr. Ermineskin as a well respected elder who, because of his knowledge and wisdom, advises the council and chief. As well, he is a pipe holder, a matter sacred to his people.
Mr. John Ermineskin
[75] Mr. Ermineskin, a member of the Ermineskin Cree Nation and the Ermineskin Indian Band, was born on the Ermineskin Reserve. His first language is Cree and he learned to speak English at boarding school. Mr. Ermineskin held the position of chief from 1990 to 1996, and was a councillor of the band from the years 1988 to 1990 and 1996 to 2000.
[76] Mr. Ermineskin's father was Baptiste Ermineskin, his grandfather on his father's side was Pany Ermineskin, and his grandmother was Bella Ermineskin. He explained that Baptiste Ermineskin was Chief Ermineskin, the first chief of the Ermineskin Cree Nation.
[77] Lucy Smallboy was Mr. Ermineskin's mother and Jennie Smallboy was his aunt. Because his mother died when he was a child, he was raised by his aunt. His grandparents on his mother's side were Isabelle Smallboy and Joe Smallboy. Isabelle Smallboy's father was Coyote, the son of Chief Bobtail.
[78] Mr. Ermineskin received information from his elders about Ermineskin history. The individuals who provided these stories to him were his grandmothers, Isabelle Smallboy and Bella Ermineskin, and also his cousin, George Ermineskin.
[79] Mr. Ermineskin testified about what his grandmothers told him about Chief Bobtail selecting the sites for the reserves at Hobbema.
Mr. Gordon Lee
[80] Mr. Fraynn also introduced Mr. Lee to the Court. Mr. Fraynn testified that he has known Mr. Lee for all of his life. He stated that Mr. Lee is a well respected elder in his community and a pipe holder. He conducts different types of sweats and other cultural ceremonies throughout the year, and has also done a sun dance.
[81] Mr. Lee's Cree name is Ki' Kikaw Ksay-Yin, and he is a member of the Ermineskin Cree Nation and was born on the Ermineskin Reserve. Mr. Lee's parents were Pete Cutknife and Marie Rattlesnake. He was brought up by his great-grandparents Susette Ward and Chuwaysis, otherwise known as Joe Roasting. Although his first language is Cree, Mr. Lee went to a residential school on the Ermineskin Reserve when he was eight years old where he learned to speak English.
[82] From the years 1975-1978, Mr. Lee held the position of chief of the Ermineskin Band, and from 1987-1989 and 1991-1993, he was a band councillor. Although currently retired, Mr. Lee was the Assistant Director of treaty research for the Indian Association of Alberta, and was a member of the group responsible for researching Treaty 6. He also worked for the Assembly of First Nations as an elders' advisor.
[83] Mr. Lee received a number of stories about the history and customs of the Ermineskin Cree Nation. Much of this information came from Chief Robert Smallboy, a chief of the Ermineskin Band in the late 1960s and also the great-grandson of Chief Bobtail. Louis Coyote, a traditional Cree elder from the Ermineskin Reserve, Bernard Buffalo, an elder from the Ermineskin Band, and his great-grandfather, Chuwaysis, also told Mr. Lee stories about Ermineskin history.
[84] In describing the role of elders in his community, Mr. Lee explained that the elders are those people who support and hold on to their lands and their way of life. The elders have always been relied upon to remind people of their past history and customs, and to impart knowledge.
[85] Mr. Lee gave evidence about the role of chiefs in Cree culture, about the way the Cree lived in the time before treaty, about Chief Bobtail and his adhesion to Treaty 6, and about the events surrounding the Northwest Rebellion.
The Crown
[86] The Crown called two expert witnesses during this trial.
Dr. Gerhard Ens
[87] Dr. Ens obtained a Bachelor of Arts in History and English and a Master's of Arts in Western Canada and Central/Eastern European history from the University of Manitoba and a Ph.D. from the University of Alberta. His two main areas of study for his Ph.D. were Canadian history and American history. The subsidiaries from these two branches of research were Western Canada and Canadian/American Indian policy.
[88] Currently, Dr. Ens is an Associate Professor in the Department of History and Classics at the University of Alberta where he teaches Western Canadian history and native history.
[89] Dr. Ens was qualified as an expert in the field of history, specializing in the history of Western Canada and able to give opinion evidence about the history of Western Canadian Aboriginal people, including Métis and "half-breeds", and Canadian federal government policy respecting Western Canadian Aboriginal people.
[90] Dr. Ens tendered a rebuttal report titled "Taking Treaty and Scrip: A History of Metis Scrip and the Bobtail Band to 1890." (exh. 4794).
Dr. Clint Evans
[91] After completing a Bachelor of Science in Agriculture at the University of British Columbia, Dr. Evans completed a Bachelor of Arts in History at the same university. Dr. Evans started work on his master's degree in the Department of History, but was accelerated into a Ph.D. program after one year. In his Ph.D. studies, he focused mainly on post-confederation Canadian history with a secondary interest in 18th and 19th century political economy. Dr. Evans has experience teaching a variety of history courses at the post-secondary level; he is currently an Instructor of a third-year distance education course for University of British Columbia, and also works as a historical consultant.
[92] As a consultant, Dr. Evans has conducted extensive research in a variety of records, including the Annual Reports and RG-10 and RG-15 files, of the Department of Indian Affairs, the Department of the Interior, the Secretary of State, the Department of Justice, and the Department of Agriculture. He also has conducted research at the Provincial Archives in Manitoba and at the Glenbow Museum.
[93] Dr. Evans was qualified as a historian with expertise in Western Canadian history and qualified to give opinion evidence on the events surrounding the signing of Treaty 6 and the adhesion to treaty by Chief Bobtail.
[94] He submitted a rebuttal report titled "Placing Treaty 6 and Bobtail's Adhesion into Context: A Rebuttal Report Focussing on the 1870s" (exh. 4814).
Chronology
Introduction
[95] In order to situate the factual and legal issues into context, a chronology of events from the time of the signing of Treaty 6 to the 1909 surrender is necessary. At a number of points in this chronology a greater level of detail will be evident. This additional level of detail is needed to address the issues identified by the parties. Although there are disputes with regard to the interpretations of and the inferences that may be drawn from the various documents and events described in this account, the facts related in this chronology are not in dispute.
[96] Before turning to the chronology, a brief description of the relationships among three individuals, Chiefs Bobtail, Ermineskin, and Samson, is helpful in understanding what transpired at the Hobbema Agency during the time at issue in these proceedings. This information is gleaned from the historical record and the testimony of the Ermineskin elders.
[97] Bobtail is the English translation of Chief Bobtail's Cree name, Kiskayu (there are multiple spellings of this name in the record as is the case with many of the other Cree names appearing in the documents). Born in the mid-1820s, Chief Bobtail is the son of Louis Piché, sometimes known as Jean-Baptiste Piché, and Opetaskewis, a Cree woman. The evidence is reasonably clear that Louis Piché was a person of mixed-ancestry. On Chief Bobtail's scrip application, his mother is described as being of mixed-ancestry, however, there is no other evidence to confirm this fact. In the Oblate baptismal records, Chief Bobtail's name is Alexandre (Alexis) Piché.
[98] Chief Ermineskin is Chief Bobtail's younger brother. In the same baptismal records, he is named Jean-Baptiste Piché.
[99] Chief Samson was born in the early 1830s. He is related by marriage to Chiefs Bobtail and Ermineskin having married one of their sisters. His religious affiliation is with the Methodist church.
General Background to Treaty 6
[100] By the 1870s, the Plains Indians are plagued by epidemic disease, particularly smallpox, and are facing the possibility of starvation due to the diminishing buffalo herds. They also have other concerns. In April 1871, four Plains Cree chiefs, including Chief Bobtail go to Edmonton House where they meet with Chief Factor Christie of the Hudson's Bay Company. In a letter dated April 26, 1871 to Mr. Hill, Secretary, Government House, Chief Factor Christie reports that the purpose of this visit by the chiefs is to express their deep concerns regarding the enormous change taking place in their environment. During the meeting, the chiefs convey to Chief Factor Christie that there are feelings of great uneasiness, and anxiousness among the Cree who are fearful that their way of life and future livelihood are imperilled. Triggered by the Dominion Government's purchase of Rupert's Land from the Hudson's Bay Company, the anxiety among the Plains Indians is augmented by their not knowing how the new administration will affect them; the Cree want to know what is to happen to their lands. They are also very concerned about the depletion in the population of fur-bearing animals, including the buffalo, starvation and smallpox among their people, and the current lack of measures which are needed to control the encroachment of non-aboriginal people in their territory.
[101] By this time, a majority of the Plains Cree Indians are anxious to enter into a treaty with the Government, and to accept assistance in their transition from a hunting-based to an agriculturally-based economy.
[102] The Government is also interested in treating with the Plains Cree. They wish to open up the west for agrarian settlement, to complete the transcontinental railroad, and to avoid any lengthy or costly military campaigns with the Indians.
1876 - The Signing of Treaty 6
[103] In August and September of 1876 at Fort Carlton and Fort Pitt, Treaty Commissioners, on behalf of Her Majesty the Queen of Great Britain and Ireland, negotiate and conclude Treaty 6 with the Plain and Wood Cree Tribes of Indians and other Tribes of Indians inhabiting the territory. The terms of the Treaty provide that in return for the ceding of approximately 121,000 square miles of territory located in present-day central Saskatchewan and Alberta, Her Majesty the Queen undertook to set aside reserves (one square mile for each family of five or in that proportion for larger or smaller families) for the use and benefit of the Indians to be administered and dealt with for them by the Government of the Dominion of Canada. Other key aspects of the Treaty include the continued right to hunt and fish on the ceded lands; the supply of farm implements, livestock, and seed to any band of Indians cultivating the soil; a present of $12.00 to each man, woman, and child of the bands adhering to the Treaty; annual salaries of $25.00 to each recognized Chief and $15.00 to each subordinate officer; a suitable flag and medal to each Chief in recognition of the closing of the Treaty; an annual payment of $5.00 to each Indian person; the maintenance of schools on the reserves; assistance during a general famine or time of pestilence; and a medicine chest kept by each Indian Agent for the use and benefit of the Indians.
[104] Some of the principal chiefs are absent from the Treaty 6 negotiations in 1876. Chief Big Bear arrives late to the negotiations at Fort Pitt. As he does not have his people with him, he does not sign the Treaty but he promises to return the next year after he has told his people what he has heard. Lieutenant-Governor Alexander Morris, one of the Treaty Commissioners asks Chief Big Bear to inform two Cree Chiefs who are not present, one of whom is Chief Bobtail, of what has been done.
1877 - Chief Bobtail's Adhesion to Treaty 6
[105] In September 1877, Chief Bobtail and 431 members of his band go to Blackfoot Crossing where the Treaty 7 negotiations are underway. The Hon. David Laird, the newly appointed Lieutenant-Governor of the North-West Territories, meets with Chief Bobtail. Based on Chief Bobtail's expressed desire to have his reserve near Pigeon Lake, within the limits of Treaty 6, and having regard to the relationship between the Blackfoot and the Cree, the Lieutenant-Governor deems it expedient to treat with him under the terms of Treaty 6. On September 25, 1877, Chief Bobtail and his two Councillors, Sometimes Glad and Passing Sound, on their own behalf and on behalf of the members their band adhere to Treaty 6.
[106] The disappearance of the buffalo, the scarcity of fur bearing animals and other game, and the diminution of fish stocks in the latter part of the 1870s and early 1880s lead to widespread destitution, starvation and suffering among the Aboriginal peoples of the North-West. There are multiple reports of starvation among the Indians throughout the area.
Big Bear Adheres to Treaty
[107] During this time, Chief Big Bear has not adhered to treaty. Concerned that the treaty does not contain adequate provisions to protect Cree autonomy, he is determined to renegotiate the terms of Treaty 6, however, he does not meet with any success.
[108] In the fall of 1879, newly appointed Indian Commissioner Edgar Dewdney, announces that only those people who have taken treaty are to be provided with rations. Suffering from extreme hunger and destitution, with no foreseeable end or improvement to their impoverished conditions in sight, many of Big Bear's followers leave his leadership and join Lucky Man, or Little Pine, in order to receive rations. Lucky Man and Little Pine adhere to Treaty 6 on July 2, 1879.
[109] At the time of the treaty annuity payments in November of 1882, Big Bear continues to refuse to sign the treaty. Increasingly destitute, disillusioned and disappointed by their father's refusal to adhere to treaty, Big Bear's sons, Little Bear and Twin Wolverine, adhere to treaty and accept annuities. A number of Big Bear's followers follow their lead and accept annuities. As the remaining members of Big Bear's band continue to be regarded as non-treaty Indians, they do not receive rations.
[110] As a result of severe poverty and hunger in his camp, Big Bear finally succumbs to growing pressure within his band and agrees to adhere to Treaty 6. On December 6, 1882, Big Bear signs his adhesion however, he does not select a reserve. It is not until March 1885 that Big Bear indicates a willingness to have his reserve at Dog Rump Creek. Due to the outbreak of the North-West Rebellion, Chief Big Bear and his band never settle on the reserve.
1879 - Ermineskin and Samson Recognized as Chiefs
[111] In 1878, annuity payments to individuals identified as members of Bobtail's Band are made at a number of different locations including Blackfoot Crossing where Chief Bobtail and 348 members of the band are paid. Payments are also made at Tail Creek by Agent M.G. Dickinson who reports that three parties of nearly equal strength are paid. He notes that two of the parties are under "Samson" and "Ermineskin" but neither are recognized as chief as they wish to have the election of a chief postponed to the next year. In 1879, separate annuity paylists are established for Samson and Ermineskin, and they are recognized as chiefs of their own bands for the first time.
1884 - Establishment at Peace Hills
[112] By 1880, Chiefs Bobtail, Ermineskin and Samson are settled in the area known as Bear Hills, Battle River, Peace Hills, and later, Hobbema. This is the first year in which the Bobtail, Samson, and Ermineskin Bands all receive annuity payments at Peace Hills. In 1879, a farming instructor, Samuel Lucas, had been appointed to the Peace Hills area; however, the three bands are under the administration of the Edmonton District. In November of 1884, Peace Hills is established as a separate Agency and Mr. Lucas is appointed as the Acting Indian Agent.
1885 - The Northwest Rebellion
[113] An account of the events or an analysis of the causes of the Northwest Rebellion are not necessary to resolve the issues before the Court. Suffice it to say that, the Rebellion erupts on March 26, 1885 with the battle of Duck Lake. The Métis uprisings extend to a number of incidents involving Indians including Chief Big Bear and members of his band, Little Bear, Lucky Man and Little Poplar. The Rebellion ends with Louis Riel's surrender on May 15, 1885. In early June 1885, Big Bear's son Little Bear, Lucky Man and Little Poplar and a number of Plains Cree followers, flee to the United States. Big Bear does not go with his son Little Bear to Montana, and instead makes his way to Fort Carlton to surrender of his own accord where he is arrested on July 2, 1885.
[114] On September 3, 1885, Big Bear is charged with felony-treason for his actions during the Rebellion and is ultimately found guilty and sentenced to three years in the Stony Mountain Penitentiary. However, because of his deteriorating health he is released early and goes to the Little Pine Reserve where he dies on January 17, 1888.
[115] At Peace Hills, Rebellion related activity is relatively brief and takes place in April 1885. The two main incidents involve the Hudson's Bay Company store which is pillaged and the Methodist Missionary's home is gutted. There are few eye witness accounts of what transpired and differing accounts as to those responsible. There are reports implicating members of the Bobtail and Ermineskin Bands.
[116] In May, the North-West Mounted Police ("NWMP") go to the reserves at Peace Hills to investigate the April incidents and make arrests.
[117] At the first treaty annuity payments following the outbreak of the Rebellion, about 25 members of the NWMP accompany Indian Agent Lucas when he makes the treaty annuity payments in October of 1885. After each band is paid, the NWMP arrest those "rebellious" Indians charged with having committed offences, such as the raiding of the Hudson's Bay Company stores. Coyote, Chief Bobtail's son, and Stoney Paul are arrested and taken to Edmonton to stand trial. At the trial, in early November, they are discharged because of insufficient evidence.
Policy of "Reward and Punishment"
[118] In the aftermath of the North-West Rebellion, in early July 1885, Indian Commissioner Dewdney asks Assistant Commissioner Reed to make suggestions regarding the "future management of the Indians" in light of the recent trouble. Mr. Reed prepares an extensive memorandum in which he sets out an extensive list of measures that ought to be adopted in relation to "rebellious Indians". Following a meeting with the Indian Commissioner, the list of proposed measures is modified and forwarded to Deputy Superintendent General Vankoughnet.
[119] In a memorandum dated August 17, 1885, prepared for the Superintendent General and enclosing the recommendations received from the Indian Commissioner, Mr. Vankoughnet states:
With regard to the distinction proposed to be made by Mr. Reed between Halfbreeds who are on the paylists of rebel Bands and the full blooded Indian members of such Bands, the undersigned is of the opinion that it would be well for the Agents to Indians to induce these Halfbreeds to withdraw from the Bands with which they have been connected , as they are alleged to be the cause of nothing but evil among the Indians. They might as an inducement to withdraw be offered Halfbreed grants of land. The Halfbreed as well as the full blooded Indian members of such Bands, in the opinion of the undersigned should not be paid annuity in the future at any rate until the full cost of all depredations committed by them has been repaid to the Government by deducting the same from their annuities. (exh. 606)
[120] On August 29, 1885, Mr. Reed reports to Indian Commissioner Dewdney about his visits to a number of reserves. Among other things, he reports that he has been "... gathering the names of the Western Indians who came down to join the trouble - these I shall advise Lucas & Anderson not to pay." (exh. 617) On the list he has prepared, under the heading for the Peace Hills Agency, the Bobtail, Samson and Ermineskin Bands are considered together with the remark "[s]ame remark applied to Michel No. 132 applies here. A good many of these unsettled and some raiding done, a few individual cases will have to dealt with severely." On the same list for the Michel Band it states: "[u]nsettled ... and acknowledgment that there may be some individuals instances in this and other Edmonton Bands similar to those where rewards should be given."(exh. 4089)
[121] Following and as a result of a consultation with the Superintendent General, a policy of "reward and punishment" is formulated. On October 28, 1885, Mr. Vankoughnet writes to the Indian Commission advising him of the new policy. The policy is extensive, however, for the purpose of this trial it is not necessary to set it out in full. He writes:
With regard to the distinction proposed to be made by Mr. Reed between Half-breeds who are on the Pay lists of rebel Bands and the full-blooded Indian members of such Bands, the Superintendent General directs that the Agents be instructed to endeavor to induce all Half-breeds to withdraw from the Bands with which they have been connected and as an inducement for them to do so they should be offered Half-breed grants of land. Neither Half-breeds nor full-blooded Indian members of rebel Bands are to be paid annuity in future until at least the full cost of the depredations committed shall have been repaid to the Government by deducting same from the annuities that would otherwise have been payable to them. (exh. 4767)
[122] This direction is received after the 1885 annuity payments are made at Peace Hills.
1885 - Surveys of the Peace Hills Reserves
[123] In August of 1885, Dominion Land Surveyor, John C. Nelson arrives at Peace Hills to survey the Bobtail, Ermineskin, and Samson reserves. Conducting his surveys between August 8 and October 12, 1885, Mr. Nelson first surveys Bobtail Indian Reserve No. 139, followed by the Samson Indian Reserve No. 137, and then the Ermineskin Reserve No. 138, (the two latter reserves are surveyed as one block; the boundary line between Samson and Ermineskin's reserves is not established until 1887.) When completed, the Bobtail Indian Reserve measures an area of 31.5 square miles. The Samson Indian Reserve No. 137 is approximately 61.5 square miles, and the Ermineskin Reserve No. 138 measures around 60 square miles. The Ermineskin Reserve is occupied jointly by the Ermineskin Band and the Louis Bull Indians.
[124] Difficulties arise almost immediately in connection with the survey of Chief Bobtail's reserve. There is a dispute over the western boundary of his reserve, over a Methodist mission claim, and a conflict with Samson with regard to the boundary on the north side of the Battle River. Requests for his reserve to be extended to include a certain lake are also met with rejection. Following the completion of Nelson's survey of IR 139 on September 17, 1885, Bobtail is seemingly disappointed in the size of his reserve. Displeased about the outcome, he feels that he has been deprived of favourable fishing resources, grazing lands, people, and improvements that he considers as belonging to him, in favour of the Department's employees, the Methodist Church and Samson's Band.
1885 - 1886 Discharges from Treaty and Scrip
[125] Two statutory provisions are relevant to the recital of the chronology surrounding the discharges from treaty and scrip. Subsection 81(e) of the Dominion Lands Act, 1883, S.C. 1883, c. 17 reads:
81. The following powers are hereby delegated to the Governor in Council:
(e) To satisfy any claims existing in connection with the extinguishment of the Indian title, preferred by half-breeds resident in the North-West Territories outside of the limits of Manitoba, previous to the fifteenth day of July, one thousand eight hundred and seventy, by granting land to such persons, to such extent and on such terms and conditions as may be deemed expedient;
[126] Section 14 of The Indian Act, 1880, S.C. 1880, c. 28 stated:
14. No half-breed in Manitoba who has shared in the distribution of half-breed lands shall be accounted an Indian; and no half-breed head of a family (except the widow of an Indian or a half-breed who has already been admitted into a treaty) shall, unless under very special circumstances, to be determined by the Superintendent-General or his agent, be accounted an Indian, or entitled to be admitted into any Indian treaty; and any half-breed who may have been admitted into a treaty shall be allowed to withdraw therefrom on refunding all annuity money received by him or her under the said treaty, or suffering a corresponding reduction in the quantity of any land, or scrip, which such half-breed, as such, may be entitled to receive from the Government.
[127] In 1884, section 14 was amended to read:
14. No half-breed in Manitoba who has shared in the distribution of half-breed lands shall be accounted an Indian; and no half-breed head of a family (except the widow of an Indian or a half-breed who has already been admitted into a treaty) shall, unless under very special circumstances, to be determined by the Superintendent-General or his agent, be accounted an Indian, or entitled to be admitted into any Indian treaty; and any half-breed who may have been admitted into a treaty shall be allowed to withdraw therefore on signifying in writing his or her desire so to do, - which signification in writing shall be signed by him or her in the presence of two witnesses, who shall certify the same on oath before some person authorized by law to administer the same.
[128] In January 1885, the Minister of the Interior proposes and an Order in Council is passed authorizing the enumeration of "half-breeds" in the North-West Territories entitled to land on the same terms as provided under the Manitoba Act.
[129] In March 1885, a Commission is appointed to investigate and report on the claims existing in connection with the extinguishment of the Indian title preferred by "half-breeds" resident in the North-West Territories outside the limits of the Province of Manitoba, prior to July 15, 1870. Mr. W.P.R. Street, a lawyer from London Ontario is appointed chairman of the 1885 Scrip Commission, and Mr. Roger Goulet, Dominion Land Surveyor, and Mr. A.E. Forget, Clerk of the North-West Territories Council are appointed as members of the Commission. Mr. N. Coté is appointed to be the secretary for the Commission.
[130] At the end of March, a further Order in Council is passed expanding the scope of the Commission's work to also report on the persons entitled to be dealt with under subsection 81(e) of the Dominion Lands Act, 1883 and the extent of their entitlement.
[131] On March 30, 1885, A. M. Burgess, Deputy Minister of the Interior, writes to L. Vankoughnet, Deputy Superintendent General. He states:
In the course of their investigations, claims to participate in the grant to be made to the half-breeds of the Territories on the report of the commission will probably be made by persons who are the recipients of annuity moneys or other grants to Indians under treaty with the Government; and with a view to identifying such persons, it is desirable that the Indian agents should be instructed to attend the meetings of the commission, when sitting at any point within their respective districts, and that these agents should be instructed generally to assist the commission in every possible way in the performance of their duties. (exh. 3846)
[132] On the same day, Mr. Burgess also writes to Mr. Street advising him of his expanded role and gives him instructions which include the following:
The Superintendent-General of Indian Affairs has been requested to cause instructions to be issued to the various Indian agents in the North-West to attend the sittings of the commission at the several points within their respective districts, to enable the commissioners to decide upon the spot any doubt which may arise as to whether any claimant who presents himself is or is not a recipient of an annuity or other grant as an Indian, and therefore not within the purview of the commission. In respect to applications of this class, which may be made in the absence of the Indian agent, which it may be impossible for the commission, upon the evidence before them, to decide upon the spot, the name and an accurate description of the claimant should be sent to the agent for the district within which the claimant may have been residing for the past few years, and the decision of the commission should be based upon the agents report. Care should be taken to give treaty Indians distinctly to understand that they are not eligible to be enumerated as half-breeds but it would be well to explain to them that when, under and in accordance with the provisions of the Indian Act, they make application for enfranchisement, they will be dealt with by the Government equitably and liberally. (exh. 3846)
[133] On April 1, 1885, Mr. Vankoughnet informs Mr. Burgess that he has asked the Indian Commissioner to immediately "instruct the various agents to attend the meetings of the commission... with a view to identifying any persons claiming the right to participate in the grant to be made to the half-breeds of the Territories, who are the recipients of annuity moneys, or other grants to Indians, under treaty with the Government." (exh. 3848)
[134] Between June 25 and July 1, 1885, six members of the Bobtail Band are discharged from treaty and take scrip. (exh. 2631) A number of these individuals are relatives of Chief Bobtail's wife Catherine.
[135] In early August 1885, Indian Commissioner Dewdney writes to the Superintendent General for a "form to be used in obtaining the consent of the Band, and a form of application to be used in asking leave to withdraw from Treaty. We have numerous cases every year of Indian women commuting their annuities and Half breeds withdrawing from Treaty. I should therefore like to have a legal form printed so that we will not only have a uniform system of action but our Agents will know to proceed when cases arise. The wording of the forms I should like to leave to the Department." (exh. 601) This request is forwarded to the Department of Justice for the preparation of the forms.
[136] On August 31, 1885, Mr. Sinclair, on behalf of the Deputy Superintendent General, writes to the Deputy Minister of the Interior responding to a request regarding what was intended by the 1884 amendment to the Indian Act. He states that there is no doubt that the intention was to permit a "half-breed" to withdraw without refunding monies received as a member of an Indian band the idea being to remove "... a bar to the withdrawal of many enterprising Half-breeds who might otherwise cease to be Indians and become self-supporting citizens". He goes on to note:
... Having once withdrawn from Treaty and accepted Half-Breed grants, these Half-breeds became to all intents and purposes Whites, and as such could not be permitted to reside upon an Indian Reserve; while their names having been erased from the paylist would prevent the likelihood of their ever again receiving annuity money as Indians.
Applicants to withdraw from Treaty are expected to obtain as a preliminary thereto the consent of the Band to such withdrawal; and their application must be signified in writing and signed by the applicant in the presence of two witnesses who shall certify the same on oath before some person authorised by law to administer the same.
It is supposed that when applications which have been properly made and to which the consent of the Band has been obtained come before the Commissioners they will be treated in the same manner as the claims of Half-breeds who have never participated in Indian annuities; and there seems to be no doubt whatever that the Amendment of 1884 is intended to relieve a Half-breed withdrawing from Treaty from the necessity of refunding the Treaty money before such withdrawal is permitted. (exh. 618)
[137] In mid September 1885, the Department of Justice sends draft forms for Indians wishing to withdraw from treaty and Indian women wishing to commute their treaty money to the Department of Indian Affairs. (exh. 630)
[138] On September 9, 1885, Agent Anderson in Edmonton writes to the Indian Commissioner in Regina for advise regarding treaty "half-breeds" who have withdrawn from treaty and have left their families in treaty. He wishes to know whether the families are entitled to the land and improvements on the reserve for the use of the family and whether they are entitled to the other privileges of treaty Indians. (exh 3852) There does not appear to be a response to this letter until a March 3, 1886 letter from Mr. Vankoughnet to Mr. Dewdney in which he states that he is advised by the Deputy Minister of Justice that the members of the family of a "half-breed" who has withdrawn from treaty leaving family members in treaty should be dealt with in the same manner as the Indians of the band. (exh. 3853)
[139] On January 20, 1886, Mr. Vankoughnet writes to Mr. Burgess regarding a matter that has been brought to the attention of the Department, namely, that the Scrip Commission in dealing with claims of "half-breeds" in the North-West Territories has admitted claims of "half-breed" women married to treaty Indians and has given scrip to them as "half-breeds". He observes that "under the interpretation clauses of The Indian Act, 1880, subsection 2.3. the term "Indian" means: 1. Any male person of Indian blood reputed to belong to a particular Band; 2. Any child of such person; 3. Any woman who is or was lawfully married to such person". He adds:
Though persuaded that the action of the Half-breed Commission in granting scrip to such parties was illegal, I considered it advisable to submit the question for the sake of certainty in the matter to the Deputy Minister of Justice and he concurs in the view that a Half-breed woman married to an Indian is an Indian within the meaning of the Indian Act, and that she cannot as a Half-breed withdraw from Treaty, and therefore she could not forfeit her right as an Indian by any attempted withdrawal. And I may say that the Deputy Minister of Justice adds that he cannot see how such a person could be allowed to withdraw without the consent of the Superintendent general of Indian Affairs or of some one acting for him.
I consider it proper to inform you to the above effect as serious complications may be caused if this practice has been followed to any great extent by the Half-breed Commission. (exh. 3854)
[140] Mr. Burgess replies to Mr. Vankoughnet on February 13, 1886 that he has been informed by Mr. Coté, Secretary of the Commission, that in no case has the Commission granted a certificate for scrip to treaty "half-breeds" without a certificate of discharge from treaty duly attested by the Indian Agent of the district having been produced. He also encloses a certificate issued to the person referred to in Mr. Vankoughnet's letter noting that the certificate says the person ceased to be an Indian which was sufficient to justify the Commission's action. (exh. 3855)
[141] On April 3, 1886, Deputy Superintendent General Vankoughnet writes to the Superintendent General, Sir John A. MacDonald, stating:
The undersigned has learned casually that inducements are being held out to Half-breeds connected with Indian Treaties to leave the same and accept Half-breed scrip by interested parties who represent to them that their acceptance of such scrip will not deprive them of their right to share in the lands on the Reserves claimed by the Band to which they formerly belonged. These influences are brought to bear upon the most dissolute and improvident Half-breeds connected with the Treaties and they have been, it is stated, successful in causing many such to leave the Treaty and accept of scrip, which they no sooner obtain then they dispose of for a trifle to the interested parties aforesaid and spend the proceeds in dissipation.
The undersigned considers it important to bring this matter under the special attention of the Minister, as doubtless unless some measures are adopted to prevent these loose characters from accepting scrip and improvidently disposing of the same, they and their families, will eventually be thrown as a burden again upon the Government, as they are represented to be quite incapable of supporting themselves. It is to be regretted that the facts of the above stated had not come to the knowledge of the Department at an earlier date with a view to a fuller consideration of the question of introducing legislation to provide against such abuses of the law, but, even now, the undersigned considers that to have such legislation, and he would suggest it would be advisable that the clause of the Act, viz section 4, chapter 27, 47 Victoria, be amended by requiring that the Indian Agents for a Reserve on which a Half-breed resides who desires to leave the Treaty and take Half-breed scrip shall certify that the said Half-breed is in his opinion capable of supporting himself and his family should he be allowed to leave Treaty. It might be well also to introduce a clause prohibiting the purchase from Half-breeds leaving a Treaty, of their scrip within, say, five years from the date at which the same shall be issued to them.
In the mean time, the undersigned with a view to prevent as much as possible a continuance of the abuse above described has instructed the Indian Inspector and Superintendent, Mr. McColl, at Winnipeg, and the Indian Commissioner at Regina to warn all Half-breeds who desire to leave Treaty and accept Half-breed scrip that by so doing they will lose all claims to land in the Reserve of their Band besides forfeiting all other privileges as Indians. (exh. 686)
[142] On April 8, 1886, Assistant Indian Commissioner Reed writes to the Superintendent General acknowledging receipt of his letter of April 2, 1886 regarding "half-breeds" in Treaty 7 who have left and requesting that all "half-breeds" leaving their respective treaties being warned that "they will forfeit all rights to land within the Indian Reserve or to any other advantage as Treaty Indians...". Mr. Reed states his belief that all "half-breeds" who have up to this point in time left treaty have been warned since all of the agents were instructed in the fall in a circular letter which fully covered this ground. He adds that a "large number of Half-Breeds have already left their Treaties but we will again advise our agents to fully explain these matters to all applicants before giving them a discharge". (exh. 689)
[143] In a circular dated April 8, 1886, Assistant Indian Commissioner Reed reminds the Acting Indian Agent at Peace Hills of his circular of November 1885 and requests that the Agent "be most particular in warning every Half-breed when making application for a discharge from Treaty that in leaving the Treaty they will forfeit all rights to land within the Indian Reserve or to any other advantages as Treaty Indians. (exh. 690)
[144] On May 17, 1886, Deputy Minister Burgess writes to Mr. Street informing him that he has been appointed "Sole Commissioner to complete the enumeration of the Half Breeds" in the North-West Territories. His instructions include:
Halfbreed heads of families or children of half-breed heads of families who are participating in the payments to the Indians shall not be entitled but such Halfbreeds on their withdrawal from the Treaty ... and on their producing a Certificate from the Indian agent to that effect you shall treat the claims preferred by such Halfbreeds in the same manner as if they had never accepted Treaty money. It should, however, be distinctly explained to such Halfbreeds who may withdraw from any Indian Treaty to which they belong in order to participate in the Halfbreed grant referred to, that once they have received scrip as Halfbreeds they will not again be allowed to receive any annuity payments as Indians or be permitted to live on the Reserve.
...
Half-breeds who took part in the Rebellion last year, directly or indirectly, shall not be granted certificates for scrip but you shall receive the evidence such Half-breeds may submit to you in support of their claims which evidence you shall refer to the Minister of the Interior for his consideration.(exh. 710)
[145] Indian Agent Lucas reports that Inspector Wadsworth arrived at the Agency on June 3, 1886 and was accompanied by Mr. Lucas on his inspection of the reserves. Inspector Wadsworth left for Edmonton on June 9. (exh. 663)
[146] He also reports that on June 10 four families of Sautteaux camped near the Agency and were joined on June 18 by Chief Bobtail and 5 families all of whom were waiting for the arrival of the Scrip Commission as they all wished to withdraw from treaty and take scrip. He notes that the Sautteaux had given up their cattle and implements in the fall and had received no assistance since that time. As well, Chief Bobtail and his party gave up their cattle and implements in April 1886 and were not provided any assistance after that date. Agent Lucas also reports that discharges were issued to all of these men; that the discharges were issued in the presence of Inspector Wadsworth who assisted him in examining the applicants for discharge; that no discharge was granted without the approval of Inspector Wadsworth. Agent Lucas explains that a few others wish to make application for discharge but were refused as he did not want to create discontent in the reserves by the breakup of families. (exh. 743)
[147] In the same report, Agent Lucas notes that Chiefs Samson and Ermineskin and their people declared their intention of remaining in treaty and asked Agent Lucas to prevent, to the extent possible, any members of their respective bands from leaving treaty. On the day the Scrip Commission began to issues scrip, at the request of Inspector Wadsworth he closed the office and accompanied Inspector Wadsworth on his inspection of the reserves. According to Agent Lucas, this caused some angry comment from those interested in the issue of scrip and from recently discharged "Half-breeds" who were doing their utmost to induce their friends to withdraw from Treaty.
[148] In the diary entry for June 25, 1886, Agent Lucas states that he was taking evidence and writing applications for discharge from treaty for Bobtail's party. He notes that he had to refuse to take any more applications because he had run out of forms. He also observes that many Indians were waiting to be discharged all claiming to have white blood. On June 26, he reports writing applications and getting Indian signatures and giving some discharges. (exh 663)
[149] On June 29, 1886, 38 members of the Bobtail Band including Chief Bobtail apply for scrip and receive scrip certificates. In total, Chief Bobtail received for himself, his family, and eligible deceased children, excluding his son Coyote, $1280.00 in scrip.
[150] On July 1, 1886, Inspector Wadsworth instructs Agent Lucas to stop issuing discharges. As a result, on July 2, 1886, Agent Lucas advises a headman and others from Samson's Band who wish to leave treaty and take scrip that he will not let any others leave until he receives further orders. (exh. 663)
[151] Inspector Wadsworth telegraphs Indian Commissioner Dewdney on July 4 asking whether "... all Indians who represent they are half breeds, and lead same mode of life as Indians, to be allowed discharges, if so there will be a perfect exodus from Bear Hills and probably other places, Agents require positive and immediate instructions." (exh. 748) In his follow-up letter of July 7 to Indian Commissioner Dewdney, Inspector Wadsworth explains his reasons for sending the telegram. "1st the number of applicants for discharges were in my opinion quite beyond any anticipations of the Dept. 2nd Agents appeared to have no option but to grant a discharge upon the alleged half breed making his application in proper form 3rd they appeared to have no difficulty in proving themselves half breeds, the evidence being only in the form of statements by friends." Inspector Wadsworth also notes that his instruction to stop the issuance of discharges "... caused great dissatisfaction among those wishing to withdraw and it was increased by the action of some of the scrip buyers who are interested in having as much as possible issued." He states that" "[a]lready there have been discharges granted to some who as Indians were quite unable to provide a living for themselves and families but Indian like they are contented to let tomorrow look out for itself providing they get the scrip." He adds that the Passpasschase Band as a band and Enoch and many of his band wish to withdraw, but in his view it is unlikely that they will be able to make their own living. He also expresses the concern that if they are allowed to withdraw, the "epidemic" of withdrawals will follow the Scrip Commission from district to district and soon there will be more Indians outside treaty than in treaty. He believes it would be advantageous to have a departmental official attached to the Commission to sign discharges and decide doubtful cases. (exh. 748)
[152] On July 6, Agent Lucas reports to Mr. Goulet that he has been directed by the Indian Commissioner to stop issuing discharges. In his diary entry for the same day, he records that "[a]ll the Edmonton and Stony Plain Indians want go out." (exh. 663)
[153] In a telegram dated July 7, 1886, Indian Commissioner Dewdney poses to the Superintendent General essentially the same question posed to him by Inspector Wadsworth. In his follow-up letter of the same date, he states:
Applications for permission to withdraw from Treaty, are being made in the Peace Hills and Edmonton Districts by persons that have always followed an Indian mode of life. They have never been regarded as being anything but Indians and it was not to be expected that they would ever claim to be anything else: nor it is thought was it the intent of Parliament that legislation enacted for halfbreeds should extend to them.
White blood, however, is admixed to such an extent with the natives particularly in the Saskatchewan Country; that few Indians have difficulty in showing that they are processed of a strain which when they so desire, enables them to term themselves halfbreeds, and is such that are now in consider[able] numbers applying for discharge from Treaty.
Led by a desire for [illegible illegible] acquisition, and undeterred by prudential forethought or [illegible] consideration many now desire to cast away the fruits of their past four or five years labour upon the reserves and avail themselves of the opportunities afforded by the presence of the Halfbreed commission in this [illegible] to withdraw and obtain scrip. It is almost needless to say that they take no heed for the future but are swayed by the expectation of having a few days of comparative prosperity to be obtained from the sale of their scrip.
No doubt, also, they are influenced by the example of halfbreeds and by the specious representations of designing speculators who have their own ends in view.
The question now arises therefore as to what extent it is proper to permit the withdrawals from Treaty of this class referred to. If they are allowed to withdraw indiscriminately, some, probably will be able to sustain themselves no better than they have done in the past, what is to become them? Can such as are unable to make a living be permitted to starve? If the government declares itself free from the responsibility of their affairs, is it not to be feared that [illegible] acts may be resorted to if desperation [illegible] upon lack of food? Sooner or later if discretion is not exercised in granting discharges it is likely that those who now desire to leave the Treaty will fall back upon the hands of the Government as destitute persons or as offenders against the law or they may exercise an evil influence upon reserve Indians and participate surreptitiously in the rations of such as are fed, impoverishing them by doing so.
On the other hand, however, some, owing to their acquaintance with our customs and capacity to labour, may be able to earn their own livelihood away from the reserves. The example of enterprising neighbours, [illegible] for self-exertion, and absence of tribal communications may [illegible] and enable these to become independent citizens.
Discrimination therefore seems to be necessary in granting withdrawals and I desire to be informed as to how this may be exercised under the Act? Perhaps a strict construction of the term "half-breed" as distinguished from persons of quarter or eight breed or blood might justify in some cases a refusal to permit withdrawal.
Pending the receipt of advice from you withdrawals in the Edmonton and Peace Hills Districts have been stopped and I would beg permission, therefore, to recommend this matter to your [illegible] consideration." (exh. 751)
[154] On July 8, Indian Commissioner Dewdney is informed that the Superintendent General wants any action concerning Peace Hills Indians withdrawing from treaty deferred until he reaches Regina at which time he will discuss it with Mr. Dewdney. (exh.754)
[155] In his inspection report for the Peace Hills Agency dated July 8, 1886, Inspector Wadsworth describes the scene at Peace Hills as " those who have already taken discharges take every opportunity of taunting those who are apparently contented to remain Indians by calling them slaves and saying every thing you have belongs to the Government +c. Also those halfbreeds engaged by the scrip buyers are runners ... use their influence to have them seek discharges ... there is an idea among them that should those who have left the treaty ever require assistance they will compel the Govt to extend it to them..." (exh. 755)
[156] On July 12, Mr. Goulet relays to the Deputy Minister of the Interior the contents of Mr. Wadsworth's telegram to the Indian Commissioner and offers his views on the matter. He states:
In my opinion, and it seems general here, Treaty Half-Breeds who can clearly show they are Half-Breeds and who do not lead same mode of life as Indians, should be given every facility to withdraw from Treaty. Other should not be allowed discharge from Treaty. Strongly recommend some person be approved to sign discharges and accompany the Commission down the Saskatchewan and Lac La Biche: suggest Wadsworth now here be approved. Immediate action very important as refusal to grant discharge altogether will create great dissatisfaction." (exh. 758)
[157] Assistant Indian Commissioner Reed's July 26, 1886 letter to the Superintendent General provides a review of the correspondence in relation to withdrawals for the month of July. The content of the correspondence referred to by Mr. Reed not found in other exhibits is quoted in its entirety. In the letter, he first refers to the Commissioner's telegram of the 7th of July. He also refers to the reply from the Minister to defer action pending his arrival at Regina and that Mr. Wadsworth was directed to instruct the Agents at Edmonton, Peace Hills and Victoria not to issue anymore discharges until further advised. The letter continues:
On the matter being laid before the Superintendent General here, he directed that the following telegram be sent to Mr. Goulet.
Superintendent General instructs me to say that Treaty Half Breeds who clearly show that they are Half Breeds and who do not lead the same mode of life as Indians should be allowed to withdraw from treaty. Others should not be allowed. Every person accepting discharge should be informed at the time that he forfeits all Indian rights, that he must leave the Reserve and give up house and all other improvements without compensation and also cattle and implements given to him as belonging to the Band.
Half Breeds consent to conditions should be written on discharge and signed by him. Wadsworth can act with you as suggested in your message, and the following to Mr. Wadsworth.
Superintendent General wishes you accompany Goulet as suggested by him and become jointly responsible as to Half Breeds receiving discharges from Treaty see telegram to him from me instructing.
[158] The following telegram was then received from Mr. Wadsworth:
Your telegram to Goulet reads Half Breeds who do not live the same mode of life as Indians. Please define this. All Indians are engaged more or less in Agriculture. Are Chief Pass-passchase and brothers to be granted discharges, they farm, some live in lodges in summer, houses in winter, the course you direct to be pursued towards them will guide action in other cases.
In answer to which the Commissioner telegraphed.
I think Pass-passchase and brothers might be granted discharges.
On the 23rd inst Mr. Goulet telegraphed:
Does your telegram to me of the 19th authorize Wadsworth to sign discharge to stragglers. Although they are not numerous they are a great trouble to me following commission from place to place and their influence is bad amongst other Indians. It would be well if they could be disposed promptly.
To which the Commissioner replied. Stragglers better receive their discharges from Agent, countersigned by you and Wadsworth where they have last taken payment.
Mr. Wadsworth wired back on the 22nd:
Discharged half breeds where no reserves have been surveyed wish to retain the land they have been cultivating for years.
To which the reply was.
If discharged Half-Breeds have been living on land looked upon as part of a Reserve they cannot retain them.
Mr. Wadsworth also wired as follows:
Half Breeds receiving discharges subscribe to the conditions regarding leaving reserves but request permission to harvest growing crops for their own benefit. and this was answered as follows:
Half Breeds may harvest their crops but should hand over any seed received.
On the 24th inst, the following telegram was received from Mr. Wadsworth:
Are Chippewayans wishing discharges from treaty to be treated according to general instructions or is their case to be made special. Priest says twenty five adults wish to be discharged at Cold Lake and Mitchell says all his expect discharges - all can prove themselves half breeds.
[159] To which the Commissioner replied:
Make every inquiry as to Chippewayans of Cold and Heart Lakes and if you and Goulet deem it best grant them their discharges. (exh. 771)
[160] On July 27, 1886, Inspector Wadsworth writes to Indian Commissioner Dewdney with recommendations concerning withdrawals from treaty. As well, he notes areas of disagreement that have arisen and seeks instructions. First, he recommends "that no treaty halfbreed who has been receiving rations regularly, or pursuing hunting, or leading a vagrant life shall be discharged; exceptional cases may afterwards be taken into consideration by the Department." He then asks for specific instructions regarding certain members of Passpasschase's Band and Enoch's Band. He notes that they "live same mode of life as Chief does. Anderson says 'let them go' Goulet is undecided, I say 'no'." He also observes that "all treaty Indians appear to be able to bring witnesses to swear they are half breeds." and that "about forty heads of families have received discharges since your telegram of the seventeenth. Although instructions to Mr. Goulet (telegram 17th instant) of the Superintendent General sent through you it has been difficult to elect who should be allowed discharge and who should not differences of opinion have occurred between Mr. Goulet and myself therefore my reference to Mr. Anderson ..." He also observes that "almost every Indian wishes to withdraw, and being able to prove themselves half breeds to the satisfaction of the scrip Commissioner demands what he has been told is his right namely his discharge when refused he becomes irate." He goes on to describe some cases such as "...an alleged halfbreed who cannot tell the English or French name of his Father who has been living on a Reserve, receiving regular rations is no fit subject to be turned loose to care for himself and his family." He also offers as examples an Indian hunter who, in his view, if discharged would be unable to support his family "should an accident befall him" and the situation with "vagrant" Indians. (exh. 773)
[161] In his monthly report for July 1886, Agent Anderson states that most of his time was spent working with Inspector Wadsworth and the Scrip Commission giving discharges to "Treaty Halfbreeds". He explains that they had a great deal of trouble as "a large number applied for discharges, however we refused most of them, some who could not prove being halfbreeds, and some who would not have been able to support themselves if they got free from the Treaty, they gave much trouble and it took much time in arguing the points with them ..." (exh. 777)
[162] On August 4, 1886 Inspector Wadsworth writes to Indian Commissioner Dewdney outlining the steps he is taking and the series of questions being posed to applicants for discharge. He states:
I have the honour to attach for your information a list of the questions asked each applicant for discharges from treaty, many other questions arising from their replies to these are also asked. We do not often call witnesses as the Agents are generally sufficiently well acquainted with the circumstance surrounding them to know if they tell the truth or not: some idea is also gained of the intelligence of the applicant from the manner he replies to the questions.
A memo of the examination is made in a book for future reference if necessary.
A copy of the agreement they are required to sign(this is written upon the back of the discharge see your telegram 19th of July to Goulet) I also send you.
A register of the discharges is kept by the Agent.
The attached list entitled "Questions asked half-breeds seeking discharge from Treaty" reads:
1. Produce your pay ticket
2. What is your name
3.1 Give your French and English names
3.2 Give the names of your Father and Mother
4. Where were you born
5. Where did you first take treaty
6. Where were you paid last
7. How many times have you taken treaty
8. How many were you paid for
9. Give the ages of your children
10. How many are married or have been [illegible]
11. What is your wife's name
12. Give your wife's father's name
13. Where are you now living
14. Do you draw rations regularly
15. Have you any private stock
15. Do you live in a lodge - Winter Summer
16. How do you expect to make a living if you get a discharge
17. Will you sign a paper agreeing to give up all your Indian rights [illegible]
I hereby forfeit all Indian rights, I agree to leave the reserve, to give up any house and all other improvements which I may have on the Reserve without compensation, also any cattle or any implements received by me as an individual or as a member of the band.
This is written on the back of the discharge with the following certificate -
I hereby certify the above was read and explained to the parties named herein.
signed ______________
Indian Agent
(exh. 782)
[163] On August 4, 1886, Mr. Goulet reports to Deputy Minister Burgess on the work of the Commission since June 21. He notes that owing to the numerous applications received at Peace Hills from "treaty Half-Breeds who lead the same mode of life as Indians" discharges were stopped at the direction of Inspector Wadsworth. He adds that the instructions since received regarding this class of persons, namely, that "Half Breeds who lead the same mode of life as Indians are not to be granted discharges from treaty" has caused a great deal of dissatisfaction among those who although living like Indians are Half Breeds and claim to be entitled to participate in the grant of scrip. He states that he has consulted with many prominent persons in the area who all agree that if treaty Half Breeds were allowed to leave the reserves where they are fed by the government they would become a burden on the community and an annoyance to the Government but at the same time refusing them discharges and scrip would cause them to be very discontented. (exh. 780)
[164] He adds "[h]owever, quite a number of these Half Breeds were allowed their discharges before any distinction had been made between a treaty Half Breed leading a life identical with that of the Indians - living on the Reserves, receiving rations and treaty payments and a treaty Half Breed receiving the Indian annuities and who provides for his [illegible] by farming, freighting or by living as a labourer ..." (exh. 780)
[165] In a memorandum dated November 11, 1886 prepared for the Superintendent General with respect to a communication from Bishop Grandin regarding the "indiscriminate withdrawal by Indians who allege or prove themselves to be Half-breeds from Treaty ..." Deputy Superintendent Vankoughnet reminds him of the steps he took to restrict the withdrawal of treaty "half-breeds" to those where there was sufficient evidence that they would be capable of supporting themselves and their families without government assistance. (exh. 804)
[166] On March 10, 1887, Deputy Minister of Justice Burbridge in response to a request for an opinion regarding "the right of Indians who have not yet received scrip to remain on the reserves" states:
... that the proper construction of the Act seems to be, that a half-breed who has been admitted into a treaty has the option of withdrawing therefrom, and thereby becoming entitled to any privilege which attached to his status as a half-breed, or of remaining under the treaty and retaining such privileges as he is entitled to thereunder as an Indian, but that he must select one status or the other, and cannot as a matter of right claim the privileges attached to both, and I think that among those which he forfeits by withdrawing from the treaty, and thus ceasing to be an Indian, must be included those conferred by Section 21 of the Indian Act, 1880, (Revised Statutes, Chapter 43, Section 19) under which an Indian, who has, previously to the selection of a reserve, possession of, and has made improvements on, a plot of land which is or shall be included in, or surrendered by, a reserve, as the same privileges in respect of such plot as an Indian enjoys who holds under a location title.
I am inclined to think, however, that under Section 81 subsection (a) of the Act 1880, (Revised Statutes, Chapter 43, section 126, Subsection (b) the Superintendent General may, if found desirable, compensate a half-breed who has withdrawn from a treaty for improvements which he may have made prior to his having become a party to the treaty on such plot of land in the reserve. (exh. 850)
1886 - Proclamation of Amnesty
[167] On July 10, 1886, Canada issues a Proclamation declaring an amnesty for those who committed crimes of a political nature during the Rebellion of 1885. All acts stemming from the North-West Rebellion are pardoned. However, the amnesty does not extend to persons who committed homicide otherwise than in actual warlike conflict.
1887 - Readmission Agreement
[168] By letter dated June 29, 1887, Assistant Indian Commissioner Reed informs the Superintendent General that he had been informed by Father Lacombe "... to the effect that certain Indians whom he knows, amongst whom are ex-Chief Bobtail and his followers, from Bear Hills, who withdrew as Half-Breeds, from Treaty 6, now regret the step they took in withdrawing, and would gladly return to their Reserves and Treaty privileges." (exh. 885) Father Lacombe says that Bobtail has been freighting for the Hudson's Bay Company. Commissioner Reed also states that he has been directed by the Commissioner to note that regarding the discharge from Treaty of "Half-breeds" who followed an Indian mode of life he would beg to refer you to his letter and telegram dated July 7, 1886. (exh. 750 and 751) He notes that discharges were stopped and not started again until they received fresh instructions from the Superintendent General. He adds that:
Ex-Chief Bobtail and his followers are now represented to be destitute, and as was anticipated, desire to be permitted once more to enjoy the privileges that were theirs before they withdrew from the Treaty. These persons withdrew prior to the date of issue of instructions to cease granting discharges to people of their type. (July 7, 1886) ... In view of the circumstances of their condition, and of the obvious objections to leaving an indigent set of persons in a state of destitution away from controlling influences, the Commissioner is of opinion that it would be advisable to re-admit Bobtail and his followers to the Treaty, or at least to allow them to reside upon their old Reserves, upon such terms as the Department may deem it proper to extend to them, and that if annuity money is again paid to them, an amount should be retained, equivalent to the value of the scrip they received. (exh. 885)
[169] On July 11, 1887, Deputy Superintendent General Vankoughnet responds to Indian Commissioner Dewdney stating "relative to the desire to return to Treaty communicated through the Rev. Father Lacombe. ... the Supt. Gen. has been pleased to approve of the recommendation made in the letter from your Office that Bobtail and his followers should be readmitted to the Treaty and that an amount should be retained from the annuity money payable to them equivalent to the value of the Half-breed scrip they received, with a view to the same being refunded to the Govt." (exh. 888)
[170] A marginal note in Exhibit 906 which is a letter from Wadsworth to Dewdney dated Sept. 30, 1887 says "The Supt. Gen. has decided that these people may be readmitted to Treaty, nor does there appear to be any valid reason why a half breed who could be legally admitted originally should not be eligible for readmission ..."
[171] On August 18, 1887, Indian Commissioner Dewdney writes to the Superintendent General regarding the readmissions to treaty. He states:
I have the honor to refer to your letter of the 11th ultimo, authorizing the re-admission to Treaty - privileges, of Chief Bobtail and his followers, conditionally on the retention of an amount from the annuity moneys payable to them, equivalent to the value of the Half-breed scrip they received, with a view to the same being refunded to the Government; and to forward herewith, a copy of an agreement signed by certain of the Indians belonging to the Bands of Bobtail and Samson.
This agreement, as will be observed, embodies a voluntary surrender on the part of the Indians of more than was included in the condition above quoted from the Department's letter, but the Assistant Commissioner, when up in the north a few days ago, found the Indians in question, so desirous of returning to Treaty on any terms, that he judged it advisable to let them throw themselves as much as possible upon the mercy of the Department, and thus enable it to give such better terms as might to it seem fitting, entirely as a matter of grace. Of this, I feel sure that the effect will be good.
In re-admitting those whose names are attached to the enclosed document, great care has been exercised in receiving only such as we consider will be beneficially treated as Indians, and with regard to others who were not seen, but who will undoubtedly make similar application, the same discretion will be exercised, and none re-admitted, without reference to this Office. (exh. 895)
[172] The agreement enclosed with this letter reads:
We, the undersigned, lately Indians of Bobtails Band - No. 139 and Samson's Band - No 138 - as shown in the annexed list, but discharged from Treaty obligations as Half-Breeds at our earnest request, and against the wishes of the officials of the Indian Department and received scrip and minors rights for ourselves, and such members of our families, as were entitled to the same, having since our discharges, found how difficult it is to earn a living among white men, desire to return to our old way of living again, on a Reserve, as Indians, and to recompense the Government in so far as in our power lies, the value of the lands and scrip received by us.
In consideration of being allowed to return, we hereby bind ourselves, and our heirs, that until the Department of Indian Affairs may see fit to direct that we be allowed to draw any annuities, none such shall be claimed by us, or our heirs.
Neither, do we lay claim to any of the lands, formerly held by us as a Reserve, nor to any of the cattle, land, implements, etc. etc. which may be entrusted to us, or any of us, by the Department for the purpose of bettering our condition, unless specially authorized to do so, but desire that we may be treated, in such manner, as to the authorities may seem best, subjecting ourselves, as we do, to the Department, and all its officials, and agreeing implicitly to abide by their direction and guidance.
Signed before us having been first read and thoroughly explained - this 10th day of August 1887.
Paul B. Lucas
Buffalo his X mark chips
John his X mark mens
John Pritchard for James Bird
Bobtail or Alexis Piché his X mark
Coyoté or Francis Piché his X mark
Baptiste Piché his X mark
whose name appears as one of Bobtails Children
Bellmore his X mark Berland
of Sampson's Band
On Pay list 1885 Band no. 139
No 1 Bobtails Band
Alexis Piché or Bobtail
Lisette or Pochen wife of Bobtail
Cecile Daughter aged 34
Angele Daughter aged 22
Michel grandson aged 16
Neanis his granddaughter aged 10
Baptiste Piché nephew aged 18
No 2 Cayote or Francis Piché
Cow-as-at-low-muck-at run wife of Cayote
Susan Daughter aged 7 years
Isabel Daughter aged 5 years
Rosalie Daughter aged 3 years
No 27 Cecile's children - appear on Bobtails list
Michel aged 16 years
Sophie aged 10 years
Pierre aged 8 years
Angele's children - appears on Bobtail list
Rosalie aged 1 year
Samson's band band no 138
Bellevaine Brelau
Catharine Brelau né Cardinal
Neanie Brelau Daughter aged 16
Angelique Brelau Daughter aged 9
Isabel Brelau Daughter aged 5
Lilliane Brelau Daughter aged 2
Jean Baptiste Lambert age 16 (adopted son)
(exh. 895)
[173] In his inspection report dated September 30, 1897, Inspector Wadsworth advises that Bobtail and his followers have been placed on the ration list at Farm 18 and is critical of the Department actions in relation to the readmissions. (exh. 907)
[174] In his annual report dated December 23, 1887, Indian Commissioner Dewdney comments on the readmissions to treaty. He states:
These people were allowed to leave the treaty before I could take steps to prevent it ... This request was, as you are aware, acceded to, on condition that the value of the scrip given them, to be deducted from annuity payments to come, and in my opinion, the wisdom of this decision cannot be questioned by any one cognizant of the circumstances. (exh. 935)
[175] On December 30, 1887, apparently commenting on the September 30 report of Inspector Wadsworth, Mr. Vankoughnet writes to Indian Commissioner Dewdney and states:
The remarks of the Inspector in regard to the reception of Bob Tails Band into the Treaty again are uncalled for and he should be so informed that it is as a matter of Govt-Policy which the Premier, who was then Supt General of Indian Affairs deemed proper to follow and that it is not for any subordinate officer to criticize the acts of his Superior Officer...and those of the Supt General of Indian Affairs. You are aware that the Indians of this Band are to refund from their annuities the value of the land scrip issued to them when they took the scrip as half breeds and that they were not to be paid such annuity in full until the amount of the land scrip has been refunded. (exh. 941)
1887 - Transfer of the Bobtail Remnant
[176] Although a number of Bobtail Band members obtained discharges from treaty and left IR 139, others stayed in treaty. In his report dated August 12, 1886 for the year ending June 30, 1886, Agent Lucas states that "... Chief Bobtail and several of his band left the treaty, leaving the lands idle, one member of his band only worked on his reserve, cropping five acres." (exh. 785)
[177] On September 30, 1886, in response to an inquiry from the Indian Commssioner regarding correspondence from the Methodist missionary and a claim by Chief Samson to the river front on IR 139, Agent Lucas reports that " [a]lthough Chief Bobtail and some of his men have left the Treaty, 101 persons still remain." He notes that three families still work land on the reserve and states that "should the others wish to farm, they will expect to get land to work on Bobtail's reserve, they could be incorporated in Sampson's reserve or given land south of Battle River." The Indian Agent suggests that "they be incorporated in Sampson's Band". In his view, this "would enable Sampson to claim to the River, as he desires." (exh. 798)
[178] According to the Sessional Papers for 1886, the population of the Bobtail Band is 101. (exh. 813) In his Annual Report dated December 1, 1886, Inspector Wadsworth states, in relation to the Bobtail Band, that "the chief and members of this band, with the exception of one family, being half-breeds, ... made application for their discharge from treaty which was granted them ...".
[179] In October 1886, annuities are paid to 34 individuals under 11 family heads in the Bobtail Band. (exh. 3342)
[180] On October 22, 1886, Chief Ermineskin tells Agent Lucas that he "... wanted charge of the new store hours or to have rations issued to any one he asked for he also wants Bobtails men put into his Band". The next day, Chief Ermineskin tells Agent Lucas he is very ashamed that his requests were not granted. Four days later, Chief Ermineskin says he is going away and will not take care of his stock during the winter and that Lucas can harvest his grain if he wants. (exh. 663)
[181] On February 9, 1887, Agent Lucas writes to the Indian Commissioner asking for permission to allow any of Samson's Band to occupy and cultivate the fields in Bobtail's Reserve formerly cultivated by those of Bobtail's Band who took scrip and withdrew from treaty. In the letter, he states that there are four good fields and three houses lying idle on the reserve. As well, he says that "... there are but two families of Bobtail's band who farm on the reserve the others stay about Calgary and the Blackfoot Crossing coming in to the reserve once in the year to draw their Annuity monies". Finally, he suggests that "... the Bobtail band be incorporated in Samson's band it would save some considerable work in the returns, and I don't think any objections would be raised by the Indians. (exh. 845)
[182] On February 17, 1887, Assistant Indian Commissioner Reed approves Agent Lucas' suggestions and states that he "considers it desirable that they be acted upon". (exh. 848)
[183] At the annuity payments in October 1887, 28 individuals under 9 family heads of Bobtail's Band are transferred to the Samson Band paylist and 4 individuals under two family heads of Bobtail's Band are transferred to the Ermineskin Band paylist.
1889 - Bobtail's Location
[184] In August 1889, Agent Lucas reports that Bobtail and his party are living with Samson's and working well. (exh. 1038)
[185] On September 14, 1889, Hayder Reed writes to Agent Lucas with regard to a complaint from the Roman Catholic church that Mr. Lucas was putting "... hindrances... in the way of allowing Bob Tail & others who have been taken back into Treaty to settle down at Ermineskin's and to obtain among other advantages those for their children offered by the R.C. School". In Mr. Reed's view it would be "... well to encourage these people to settle with Ermineskin." He instructs Mr. Lucas to obtain the formal consent of the Chief and the headmen of the Band to the addition of these occupants to the reserve. (exh. 1039)
[186] Mr. Lucas responds on December 26, 1889. He reports:
... Bobtail came here in June or July and asked where he could camp. I placed him near where he used to live, without taking into consideration his religion but solely for the reason that I could obtain the services of his young men. He never intimidated that he wished to go to Ermineskins, or did I know that [illegible] Father Gabillon wished him to do so until informed by letter from the father in the summer.
I then spoke to "Coyote" Bobtail's son and the leader of the party - he told me he would not go to Ermineskins, that he was now amongst his relatives.
Ermineskin I know would be glad to have him join his Band; but as these men were allowed to come to the Reserve again on condition that they would work whenever required, I would prefer handling them myself. Farmer Ross certainly cannot do it, he lacks the necessary tact and patience - should Bobtail go there - there will be constant trouble and disputes for me to settle.
They have worked well and willingly for me, the son "Coyote" has built a fence and stable, and unless removed will put in a crop next spring. If you wish to remove him it will be necessary to stop his supplies, he will then either go to Ermineskins or leave the Agency, and be found hanging about Calgary, I imagine that he will adopt the latter course, I have not said anything to them yet, as they have just come in from hunting and will not until I receive further instructions from you.
I have place no hindrances in way of Bobtail or anyone else joining Ermineskins, had I known it was your wish, I would have placed him there when he first came or refused to assist him. (exh. 1047)
[187] In his report with respect to the Samson Reserve dated November 17, 1890, Inspector Wadsworth states that "Bob Tail is putting up a new house and has broken a nice field for himself." (exh. 1068)
[188] On November 18, 1890, Mr. Reed to the Indians Agent says:
Bobtail & his followers who are Roman Catholics should be moved to Ermine Skin in order that they might be with their co-religionists near their own Church & School. This should be done without unnecessary delay. (exh. 1069)
1889 - Peace Hills Reserves Confirmed by Order in Council
[189] In October of 1887, John Nelson returns to the Bear Hills reserves to survey the Methodist mission claim, and the dividing line between the Samson and Ermineskin Reserves.
[190] On May 17, 1889, the Indian reserves set apart for Chiefs Bobtail, Ermineskin, and Samson are confirmed by Order in Council 1151.
1891 - Railway Right-of-Way Surrenders
[191] In the spring of 1891, construction of the Calgary and Edmonton railway line is approaching the Peace Hills area. Edgar Dewdney, the Superintendent General of Indian Affairs, dispatches Indian Commissioner Hayter Reed to Peace Hills to secure land surrenders for the right-of-way from the Peace Hills Bands. In the letter of instruction, he indicates that "[n]o unnecessary expense need be incurred" since the Treaty provides for the appropriation of reserve lands required for public works. (exh. 1101)
[192] Three weeks later, on April 20, 1891, Mr. Reed forwards the two surrenders he had obtained from the Samson and Ermineskin Bands relinquishing 43 and 60.27 acres respectively. In the covering letter, he writes:
With regard to passing through Bob Tail's Reserve No. 139, a beg to state that no difficulty need be anticipated. As the Department is aware of the majority of this Band left Treaty, and although afterwards re-admitted, this I understand meant their restoration as a matter of grace to certain privileges, calculated to prevent them starving as half breeds and did not give them any claim to the Reserve abandoned when leading Treaty.
Of those who did not leave Treaty there are now only three male heads of families, left, and they were away hunting.
The Indians of both classes strongly desire to join Ermineskin's Band, and the latter are most anxious to have them. They are co-religionists, Roman Catholics, and by allowing the amalgamation, the expense of a separate school and farmer for them would be obviated.
I have instructed the Agent that no transfer be allowed excepting in the form prescribed by the Department. (exh. 1121)
[193] No surrender was sought or obtained for the 50.07 acres within IR 139 required for the right-of-way.
[194] Ultimately, the Department of Indian Affairs and the Calgary and Edmonton Railway Company agree on a price of $3.00 per acre for the required land and compensation of $50.00 for damages on the Samson reserve. Order in Council P.C. 2813 dated October 26, 1892 approves the taking of the required land sale under the authority of section 35 of the Indian Act. The proceeds of the sale for the land on IR 139 are credited to a trust account established in 1893 in the name of "Bob Tail's Reserve". In the following year, the full amount is expend as part of the purchase price for a portable grist mill for the Agency. This trust account is closed out in 1895. (exh. 1241)
1893 - Change of Name
[195] In January 1893, the Department of Indian Affairs approves a change of name for the agency to the Hobbema Agency.
1896 - Deportation
[196] Having fled to the United States after the 1885 Rebellion, a number of Canadian Cree spend the next eleven years in Montana under difficult physical, and economical circumstances. For the first few years after their arrival in Montana, they are reported to be in desperate need of food and clothing. They are so destitute and hungry that in December of 1887, the President of the United States authorizes an appropriation of up to $3,000 to relieve the suffering of the Canadian Cree during the approaching winter.
[197] By the late 1880s and early 1890s, there is a growing movement from the non-Aboriginal residents of Montana to have the Canadian Cree expelled from the state. There are numerous allegations that the Cree are supporting themselves through theft of cattle and other depredations; they are also accused of spreading contagious disease.
[198] In October 1893, Little Bear petitions the American Government to allow him and his followers to become citizens of the United States. This request is unsuccessful, as are his other attempts to secure land in Montana, or to become wards of the State.
[199] As complaints about the Canadian Cree continue, the Governor of Montana, J.C. Rickard, considers it a priority to arrange the return of the Canadian Cree north of the border. In January 1896, Governor Rickard again complains to the United Sates Secretary of State in Washington. He notes that the numbers are increasing due to accessions from relative in Canada; investigations show that only about one hundred came to the United Sates as refugees at the end of the Rebellion; and based on correspondence from 1887 the fugitives numbered approximately 200 men, women, and children. He also states that he has learned from a conference with their chief "Little White Bear" that they now number about 500. (exh. 1376)
[200] As a result of Governor Rickard's correspondence, on February 17, 1896, Deputy Superintendent Reed writes to Indian Commissioner Forget regarding the wish of the United States Government to have the Canadian Cree removed from Montana. He notes that the Department is under the impression that a number of the vagrants must be "half-breeds" and asks the Indian Commissioner to determine how many of its wards left the country after the Rebellion and have not since returned. (exh. 1392)
[201] Indian Commissioner Forget replies setting out the number of Canadian Indians who had entered the United States since 1885 and had not returned. Out of a total number of 905 individuals, 494 are in Montana of which 388 are Cree and 106 are Assiniboine and Stonies. (exh. 1394).
[202] In early March, Deputy Superintendent Reed gives this information to the Superintendent General noting that the majority of the 388 Cree are from the Onion Lake and Battleford districts. (exh. 4806)
[203] On March 14, 1894, Superintendent General Daly instructs Mr. Reed to make arrangements with the Mounted Police, "to receive back and place these Indians on their proper reserves say in May next or whatever time you direct it most suitable". He also directs him to "[s]ee that all [illegible] arrangements are properly made for deporting these people direct to their proper reserves under police escort before any move is made". (exh. 1397)
[204] On March 26, 1896, Deputy Superintendent Reed informs Frederick White, Comptroller of the NWMP, of the government's decision to comply with the request of the United States "to co-operate with it to compel refugee Indians from the North West Territories to leave the State of Montana and return to the Reserves to which they properly belong". He notes that inquiries are being made regarding when the refugees will be returned but in his view the middle of May would be the best time. He relates the Minister's instructions that when the time arrives, a sufficient escort of police are to be sent to take over the refugees and see that they reach their respective destinations. He adds a list setting out as far as can be ascertained the number of Indians and reserves or districts to which they "will have to be escorted". (exh. 1403)
[205] On the same day, Deputy Superintendent General Reed also writes to Indian Commissioner Forget informing him of the government's decision to repatriate the Canadian Cree and the instructions that he has sent to the NWMP. He adds that "I do not know that there is anything further to add than that the Battleford Crees had better be sent to Onion Lake, where they will probably be more closely looked after and made to exert themselves, and of course the various Agents concerned should be warned to expect the arrival of the Indians." (exh. 1404)
[206] On April 1,1896, an Order in Council is passed affirming the government's willingness to cooperate with the authorities in Montana. Indian Commissioner Forget writes to the Governor of Montana asking if the transfer of the Cree at Coutts could be done by May 10. He explains that the government wants to effect the transfer of the Cree at the earliest possible date so that they can be distributed to their various reserves in time for agricultural operations. He also notes that "... not a few of those who passed from this country to your territory as Indians have during the interval changed their status by legal process provided by the laws of the Dominion governing the discharge of halfbreeds from our Indian Treaties. Many of these persons are now therefore not Indians in the eye of the law, as while residing abroad they applied for, through Attorneys, and received from the Dominion Government certificates of the termination of their disabilities as Treaty Indians. These persons having now resided for 10 years more or less on United States soil (principally in Choteau County, Montana, I believe) it is assumed that it is not the intention of the United States Government to disturb them." (exh. 1408)
[207] By May of 1896, arrangements for the return of the Cree are finalized among the Department of Indian affairs, the NWMP, the railway company, and American authorities. Although originally planned for June 2, 1896, the transfer is delayed because of the reluctance of some of the Cree leaders, including Little Bear, to leave until they had received assurance that they would be protected by the 1886 amnesty.
[208] On May 19, 1896, Assistant Indian Commissioner Paget writes to the Commissioner of the NWMP in response to an inquiry regarding the hiring of an individual by the name of Sanderson to accompany the returning Cree to northern Alberta. In the Assistant Commissioner's view, the question of hiring Sanderson should be put off as "... I may say that it is not anticipated that there will be any for points further North than the Hobbema Agency and probably but a few for that point". (exh. 1479)
[209] On June 5, 1896, Indian Commissioner Forget is quoted in a Montana newspaper as saying that "... when the Crees are made to understand that they are welcome at their own home and are not wanted here, and that they may be deprived of their liberty if they stay, it will be no longer difficult to keep them on their reservations where they belong."
[210] In the middle of June 1896, Acting Deputy Superintendent General Scott informs Indian Commissioner Forget of a concern on the part of one of the catholic priests that the return of the Cree Indians from Montana will have a very bad effect upon the Indians in the Battleford districts. He tells him about the priest's view that Indians should not be allowed to go to Eagle Hills in the Battleford district and that he is to prevent them from doing so. (exh. 1519)
[211] At the same time, Mr. Scott also writes to Mr. White of the NWMP. He acknowledges the fears expressed by the catholic priest. With regard to the influence the repatriated Cree will have on those in the Battleford districts, he states:
... undoubtedly there are grounds for apprehension in the direction indicated, on the other hand the very fact that the Indians referred to have been driven out from the States will tend to induce among the Indians generally the impression that they need not look across the border for an asylum in case of misbehaving themselves, which will have a strong tendency to counteract the evil influence apprehended.
The attention of the Indian Commissioner is being directed to what is stated as to Indians going to the Eagle Hills to hold a dance and meet those coming from the other side. (exh. 1520)
[212] Between June and August of 1896, five groups of Canadian Cree are deported from Montana to Canada. The first two groups, consisting of 111 and 87 individuals respectively, arrive by rail at Lethbridge on June 20 and 22. Based on their chosen destinations, they are divided into westbound and eastbound groups by Superintendent Deane of the NWMP.
[213] On June 23, 1896, 98 of the deported Cree are sent by train to Regina. Superintendent Deane reports that they raised several objections to going to Regina and were induced to go there on a promise of having an opportunity to meet with the Indian Commissioner.
[214] The third group of 71 individuals arrives on June 25, 1896. Little Bear and Luck Man are among this group. Superintendent Deane reports that "[t]he man who acts as spokesman of the band and who has so far exerted his influence for the good is I-im-e-cis, "Big Bear's" son, who now calls himself "the Bear" - "Lucky Man" is here also but keeps out of sight as much as possible." (exh. 1537) When it is discovered that they are implicated in the murders at Frog Lake, they are arrested and sent to Regina on June 29 to stand trial on the charge of murder.
[215] On June 26, 1896, 77 individuals leave for Peace Hills. On July 1, another 28 individuals leave for the same destination. The people in this latter group are from the third group that included Little Bear and Lucky Man.
[216] The fourth group arrives on July 22, 1896. Out of the 59 individuals in this group, a family of three adults and two children opt to go to Edmonton. The fifth group of 192 individuals arrives on August 6. After a period of quarantine due to an outbreak of measles, Superintendent Deane reports that 71 Indians left for Peace Hills on September 3, 1896.
[217] Superintendent Deane's Annual Report dated December 1, 1896 gives additional information concerning the repatriated Cree. At the time of his meeting with the group who had arrived on July 22, he reports telling them that "... they would not be allowed to settle along the railway belt, nor to infest towns and villages, but that they would be required to settle in some of the northern reserves and devote themselves to work which would relieve the government of the necessity of supporting them entirely and would in time help them to become as prosperous as their kinsfolk who had never strayed away." (exh. 1713)
[218] The arrival of the repatriated Cree at Peace Hills raised the question as to where they would be placed. On July 23, 1896, Indian Commissioner Forget telegrams Deputy Superintendent General Reed recommending "... locating on sharpheads old reserve wolfcreek as many montana crees as can be induced hundred and five now at Hobbema willing to settle there". (exh. 1576) Deputy Superintendent General Reed replies the next day that: "Think better merge these Indians in other bands. Supervision at Wolf Creek too costly." (exh. 1577)
[219] The following day, Deputy Superintendent General Reed writes to Indian Commissioner Forget explaining his telegram of the previous day. He writes that in the Department's opinion:
... to allow these Indians to band together, would, if it can in any way be avoided be a great mistake, for the confidence inspired by numbers, the sympathy existing between them, and their common experiences must necessarily militate against efforts to get them to forget the past, and encourage them to resist such disciplinary measures as may prove necessary to make them again settle down to such regular work, as for some time to come is sure to be extremely distasteful to them after the nomadic life they have been living since they left their Reserves.
In many ways too if merged among Indians who have already attained to some degree of independence, they can get example and assistance from them which should prove most beneficial.
In any case the idea of locating them at Wolf Creek does not commend itself to the Department, for despite the natural advantages of that Reserve, it would be necessary were they at such a distance from the Agency, to place a thoroughly capable man in charge of them, and the expense connected with the establishment and maintenance of a farm would be very considerable.
On Bob-tail's Reserve to which the original owners have forfeited title through their exodus from Treaty, there is a sufficiency of good land, and the necessary supervision could it is thought be given without engaging another farmer. (exh. 1580)
[220] On August 5, 1896, Indian Commissioner Forget advises Deputy Superintendent General Reed of Little Bear and Lucky Man's release from custody on the 1st of August. He states that after meeting with him, the two left the next day by train for Hobbema to join the party that was waiting for them. He continues that: "... It appears that it was decided upon, at the time of the arrest these men, that the Indians who went to Hobbema and who were largely from the Battleford and Onion Lake districts, should remain at Hobbema until the prisoners should either have been released or the result of their trial known, after which the party would decide whether they should remain at Hobbema or go on to and settle permanently in the Onion Lake Agency. This will now be decided as soon as the Lucky Man and Little Bear reach Hobbema and the Department will be apprised as soon as the decision is known." He refers to Lucky Man being sick and old and not expected to live long and that Little Bear "... In so far as I can see, his influence will be in the right direction if properly handled." (exh. 1596)
[221] During their first winter at Peace Hills, the Indian Agent reports that the repatriated Cree "... lived on the north side of the river, in very roughly constructed shanties." By the spring of 1887, they are "... settled on the old Bobtail Reserve, on the south side of Battle River ..." He notes in the same report that since they "... last spring permanently located on this reserve, they have not been able to raise any grain, but they all have small gardens and have broken land ready for sowing next year." He also observes:
... Since they moved across the river, they have cut, hauled and hewn a set of house and stable logs for nearly every family.
The old farm house on the Wolf Creek Reserve has been pulled down, and is being re-erected by the farmer on this reserve, the logs having been hauled over by these Indians.
As the members of this band were destitute of cattle, the department instructed me to issue some to them. I accordingly issued two bulls, four oxen, four cows, and twenty-six heifers, two and three-year-olds. All these cattle, with the exception of six two-year-old heifers, bought from various Indians of the other three bands, were supplied from the agency herd. (exh. 1819)
[222] For the year ended June 30, 1897, the Deputy Superintendent General, in relation to the deported Cree, reports:
With regard to the refugee Crees, to whose deportation from Montana in the United States and repatriation in the North-West Territories reference was made in the opening of last year's report, it may be stated that every effort has been put forth to reconcile them to their position, and all necessary assistance given to encourage them to resume the pursuit of agriculture on the various reserves upon which, so far as choice could be allowed them, they themselves elected to reside.
These efforts have been partially successful, and particularly so with regard to those who were placed within the Hobbema Agency, most of whom, as well as of those who returned to the Battleford District, appear to have gradually settled down to work in a sufficiently contented spirit. (exh. 1841)
[223] In the fall of 1896, in addition to determining where the repatriated Cree should live, the question as to how they should be treated is considered. In early September, Deputy Superintendent General Reed advises Indian Commissioner Forget of the decision that these Cree should be treated as other rebels were treated and not paid any annuities and the amounts saved from not paying them annuities will be used to purchase implements and cattle to enable them to settle down and support themselves. He also informs him that the Department wants a separate paylist kept for the refugees so that there is no confusion regarding the retention of annuities "... until such time as it may seem fit to allow them the privileges of full membership of the Bands." (exh. 1624)
[224] Responding on September 30, 1896, to Deputy Superintendent General Reed's letter, Indian Commissioner Forget disagrees and argues:
The right of these Indians to their annuities from 1889, when the non-absentee rebels were restored to Treaty rights, being apparently conceded, it may perhaps be assumed that it is also conceded that the right of the absentees also dates back to 1889, when all Indians of the rebel class were restored to Treaty rights with no specified limitation of such act to restoration to those alone who continued to reside in the Dominion.
It may, I am aware, be said that the claim of these now returned absentees, whom I will later on show to be not all ex-rebels, is materially affected by the provisions of Section 10 of the Indian Act, relating to foreign residence, but I would say that in my opinion, even were all these Indians amenable to the provisions of this section, which I will later show to be not the case, there is room for serious doubt as to whether that section alienates the individual right to a perpetual annuity guaranteed under the Treaty, for though the section provides for the forfeiture of right to membership in a Band, which is not a Treaty right, such forfeiture would not seem to lessen in the least the right of the individual to the annuity in perpetuity, the payment of which is obligatory and binding as an arrangement between individuals and the Crown, and not between a number of individuals collectively as a Band and the Crown. The right to annuity is then, apparently, an individual one in no degree dependent upon membership in a "Band" and therefore not affected by subsequent loss of such membership. (exh 1658)
[225] Mr. Reed telegrams Mr. Forget on October 12, 1896 to advise that annuity money may be paid to rebel or other Treaty Indians irrespective of their length of absence and to fresh applicants entitled to enter treaty but no arrears are to be paid or promised. (exh. 1669) In a follow -up letter to Mr. Forget, Mr. Reed explains the conclusion set out in the telegram and that the Department has an opinion prepared by the Department of Justice that differs with his interpretation of section 10 of the Indian Act. (exh. 1670)
[226] In accordance with instructions, a total of 151 people in "Little Bear's Band", are paid treaty annuities at Hobbema in November of 1896. The paylist shows forty-eight heads of families and that ten individuals refused payment. Little Bear is paid $15.00 as headman.
(exh. 3432)
[227] As well as making the annuity payments, the Indian Agent asked the newly arrived Cree where they had last received treaty payments. The Indian Agent's list dated November 15, 1896 indicates that several of the male heads of families were aged between 15 and 27 and had only been paid previously with their parents. Some said they had been paid in 1884 with the bands of Little Pine, Lucky Man, Little Poplar, Strike Him on the Back, Poundmaker, Thunderchild, Moosomin, or Big Bear, while other said they had been paid at various locations including Victoria, Medicine Hat, Fort Pitt, Fort Walsh, Blackfoot Crossing and Bear Hills. At least 6 families claimed to be taking treaty for the first time. (exh. 1709)
[228] The paylist for 1897 reflects annuity payments to 120 individuals under the name "Little Bear's or Montana's Band". In 1898, 47 individuals are paid as "Montana or Little Bear's Band". From 1899 forward, the annuity paylists shows the name of the band as the Montana Band. (exh. 3432)
1897 - Little Bear Travels to Ottawa
[229] In February 1897, Little Bear travels to Ottawa in the company of Rev. McDougall who acts as his interpreter. A number of newspapers report the visit:
-Edmonton Bulletin, February 8, 1897 carries a report from the February 1, 1897 edition of the Nor-Wester. The article reports that "Little Bear is the family name of a stalwart Indian chief who registered yesterday at the Leland. ... Little Bear is on his way to Ottawa to interview the new government on matters vital to his people." (exh. 1771)
-The Ottawa Free Press, February 3, 1897 reports that Mr. A. E. Forget, the Indian Commissioner at Regina, is very ill in his room at the Russel House. It also reports "Mr. Hayter Reed, Deputy Superintendent General of Indian Affairs has been absent from the department this week suffering from cold". Under latest arrivals at Ottawa hotels, it lists the Rev. McDougall from Morley and Little Bear from Hobemma staying at Windsor House. (exh. 3584)
-Calgary Herald, February 3, 1897 states that Rev. McDougall is on his way to Ottawa to act as interpreter for Little Bear, a Cree chief, who accompanies him in the latter's negotiations with the government regarding some "rights of the redmen". The article refers to the Rebellion and that "... a year ago they returned from that country, where they were making a good living, and again settled in the North West, the Government having granted them amnesty. The terms of the agreement are not quite plain and Little Bear is going to Ottawa to press the claims of his tribe. They want a reserve and the privileges enjoyed by other Indians." (exh. 1766)
-Ottawa Daily Free Press, February 4, 1897 reports that "Little Bear, one of the Chiefs of the Cree Indians, arrived in the Capital last evening accompanied by Reverend John McDougall of Morley, one of the Western missionaries of the Northwest. The two had an important conference with the authorities of the Indian department concerning the rights of the Cree Indians, some 300 of whom last year were deported across the international boundary back into Canadian territory from Montana. They had taken part in the rebellion of ten years ago and since then lived in United States from whom they have certificates of good conduct. Amnesty was granted to those who desired to come back to Canadian territory and the tribe has been camped a short distance from Calgary. But they represent to the Indian department that they do not wish to continue their nomadic life having acquired flocks and herds and wagons during their stay in Montana. What they want is a regular reserve set apart for them on the ground which they at present occupy near Calgary and they are prepared to till the farms. Little Bear also wishes to fully satisfy himself as to just what this amnesty to the tribe means on their past and future record. Reverend Mr. McDougall of Morley accompanied the chief to act as interpreter and adviser. Little Bear is an intelligent Indian of medium height and powerful build. He yet holds to the religious traditions of his forefathers". (exh. 3585)
-Ottawa Citizen, February 4, 1897 reports on the arrival in Ottawa of Little Bear, a Cree Indian chief, with the Rev. McDougall. It is noted that Little Bear is one of the band of 300 or 400 Cree recently deported to Canada by United States military authorities. The article sets out some of their history in Montana and return to Canada. The article states that Little Bear was drawn to Ottawa to ascertain the terms or the exact import of the amnesty and that "he is desirous of having an understanding with the Indian department as to the bearing of the amnesty upon their past record as well as its promise for the future. If the government will afford the necessary facilities, the entire band will willingly settle upon reserves, relinquish their nomadic habits and endeavor to become self-supporting, as many of the native bands have already become in the Northwest Territories." The article also notes that originally these Cree lived around Onion Lake and Frog Lake but they are at present camped on the Battle River, 145 miles north of Calgary and would prefer to settle down in that district. The article also indicates that they would have a conference that day with the Hon. Clifford Sifton, Superintendent General of Indian Affairs and Minister of the Interior; Mr. Reed, Deputy Superintendent General; and Mr. Forget, Indian Commissioner. The article also reports "[a] Citizen reporter last evening found Mr. McDougall and his ward in their room at the Windsor. They were talking away earnestly in Cree, going over the chief points of the case they intend to present to the government today, so the missionary explained". (exh. 1767)
-Ottawa Free Press, February 5, 1897 reports "the Cree Indian chief Little Bear who has been around the capital since Wednesday in all the glory of native costume presented himself this afternoon at the office of the Minister of interior for a hearing of the subject of the mission which brought him down to interview with the big chiefs". (exh. 3586)
-Ottawa Citizen, February 5, 1897 reports "Little Bear, the Cree chief, went about sightseeing with his friend and interpreter, Rev. Mr. McDougall. He was unable to have a conference with the Indian officials at headquarters, both the Indian Commissioner, Mr. Forget, and Mr. Hayter Reed, Deputy Superintendent General, being ill. The chief and the missionary called upon Mr. Reed last evening." (exh. 1768)
[230] On February 5, 1897, Rev. McDougall sends a note to the Hon. Clifford Sifton asking if it is possible for Little Bear and himself to meet with the Minister. He states that both Mr. Reed and Mr. Forget are not well and "... if we can we must come direct to you." (exh. 1769)
The newspaper reports continue:
-Ottawa Free Press, February 8, 1897 reports that "Little Bear... has been here during the past week interviewing the government ..." (exh. 3587)
-Ottawa Citizen, February 9, 1897 reports that "Little Bear, the Cree chief, is still in the city. His business with the Superintendent General of Indian Affairs has not yet been put through. Little Bear's anxiety about the purport of the amnesty is probably explained by the fact that he was one of those arrested upon their return to Canada last autumn on the charge of participation in some of the raids during the rebellion of 1885. ... As to the setting apart reservations for the repatriated Indians, it is understood that before they arrived from Montana measures were taken by the government to that end. They will likely be given the choice of reserves near their former homes on the battle River, where they are now encamped. The request of these Indians to be allowed to their arrears of treaty payments for the ten years they have been in exile, however, is quite another matter, but doubtless they will be dealt liberally with." (exh. 1773)
-Ottawa Free Press, February 11, 1897 reports on a public function where those in attendance include the Rev. McDougall, Little Bear, the Hon. Wilfred Laurier, and Mr. Forget. (exh. 3589)
-Calgary Herald, February 24, 1897 reports: "Rev. J. Macdougall of Morley, who accompanied the Indian chief, Little Bear, to Ottawa, as interpreter, returned to the city on Saturday. The mission was entirely successful, and Little Bear returns in a much happier mood, having assurance that the Crees will be given a reservation, paid an annuity, and given the same rations as distributed among other tribes." The article is attributed to the "Free Press" and is also carried in the March 1, 1897 edition of the Edmonton Bulletin. (exh. 1777)
-Edmonton Bulletin, March 15, 1897 reports that the Rev. McDougall arrived on Thursday's train having just returned from Ottawa "... where he has been visiting the government in conjunction with the Indian Chief Little Bear with a view of arriving at an understanding as to what was to be done with the chief and his band". The article notes that Little Bear is the son of Big Bear and that he and others fled to the United States after the Rebellion; while they were in the United States, Little Bear was elected their chief and administered their affairs; they had no treaty rights in the United States; and how they earned a living. The article recites the early history when they were in Montana and their deportation to Canada. The article goes on to say that: "[w]hen they came north, as many as possible were sent to the reserves to which they originally belonged, and the residue which could not be so apportioned was brought to the Battle River reserves under the chieftainship of Little Bear. After the arrival of the Indians there last August many questions arose as to what rights they were to have as Indians under the Canadian government. An amnesty had been granted in 1886, but its terms were vague in many respects, and it was to get these matters settled that Little Bear went to Ottawa, and Rev. John McDougall accompanied him as interpreter and counsellor. It was settled that these Indians numbering about 200 should be recognized as a band under the chieftainship of Little Bear, and should be given the reserve at one time occupied by Chief Bobtail's Band on the Battle River [the latter] having given up their treaty rights and taken scrip. They are to be given a start with stock and implements and rations and to be treated in all respects as other Indians. The treaty money they would have received had they been in Canada is forfeited by their absence." (exh. 1785)
[231] On May 10, 1897, Inspector Wadsworth submits his report on the Hobbema Agency. With regard to the "Little Bears Band", he states that he and the Indian Agent "... located these Indians to their satisfaction and our own, East and South of Battle River on the Bobtail Reserve." He notes that Gilbert Whitford had been placed in charge of the Indians. When they visited the Indians, they observed that many had broken land for gardens. He also reports that Mr. Whitford had built a ration and storehouse and a location had been selected for a farm. He describes the land of the reserve as "... light, but it will be quick in the spring, and will do well for Indians, hay is abundant and timber for building purposes is at convenient distance." He also notes that there is enough left of the farm house at the old Wolf Creek Reserve to make it worth moving "for the farmer at Little Bears Reserve" and recommends moving it. Finally, based on a request by the Indians of all the reserves and the white settlement nearing the reserves, he recommends that the boundaries of the reserves and the iron posts be reset by a surveyor in the summer. (exh. 1796)
[232] On July 20, 1897, Indian Agent Grant informs the Indian Commissioner that Little Bear has resigned as headman and requested permission to join the Onion Lake Band. Little Bear said he wanted to move because he was physically unable to do any work, his young man would not take his advice or listen to him, and he had relatives at Onion Lake. Agent Grant states that he issued him a pass to go to Onion Lake and asks the Indian Commissioner to approve the transfer to the Onion Lake Band and suggesting that it will be an excellent thing for the Band if his transfer to Onion Lake is sanctioned. (exh. 1808)
[233] On July 23, 1897, the Indian Commissioner writes to the Deputy Superintendent General regarding the letter he has received from Agent Grant. He agrees "... with the Agent's view that the removal of this man from the control of the band of as yet somewhat restless Indians, will prove of benefit to them and himself. At the Onion Lake Agency he will be surrounded by an industrious class of Indians whose influence upon him will no doubt prove to his benefit. I am instructing Mr. Agent Mann to admit him to membership in the Onion Lake Band." (exh. 1812)
[234] In response, the Secretary of the Department tells the Indian Commissioner that the Department has no doubt as to the advisability of the move but notes that it is necessary to get the consent of the Onion Lake Band to receive Little Bear into membership. (exh. 1815)
[235] Little Bear leaves the Hobbema Agency; however, instead of going to Onion Lake he returns to Montana.
1898 - Chief Samson Dies
[236] On Christmas Day, 1898, Chief Samson dies. His son, Joseph Samson, is selected as his successor.
1900 - Chief Bobtail Dies
[237] On September 25, 1900, Chief Bobtail dies on the Ermineskin Reserve.
1901 - Road Allowance Surrender
[238] In the spring of 1901, a group of settlers wanted an extension of a roadway along the west boundary of IR 139 to provide better access from the town of Hollbroke to the local school house. The Deputy Commissioner for the North-West Territories writes to J.D. McLean, Secretary of the Department of Indian Affairs, requesting that 1.54 acres being a strip of land 33 feet wide and one quarter mile long be reserved from IR 139 for this purpose.
[239] In June, Mr. McLean writes to Agent Grant regarding the advisability of the proposal. In particular, Mr. McLean wants to know if there are any improvements on the road allowance; if there is any reason not to grant the right-of-way; and whether any compensation by way of damages should be expected.
[240] In his response of June 20, Agent Grant states that there are no improvements near the proposed road allowance. He recommends that no compensation be paid because the Indians who are living and farming at the other side of the Battle River are a considerable distance from the proposed road.
[241] In order to ascertain what steps would be necessary to transfer the strip of land to the government of the North-West Territories, the Department of Indian Affairs requests advise from the Department's law clerk, Reginald Rimmer. In a memorandum dated September 26, 1901, Mr. Rimmer itemizes the requirements for the transfer including the requirement to have a surrender from the Indians in terms sufficiently wide to allow the Governor in Council to make the transfer to the North-West Territories.
[242] On October 8, 1901, Mr. James A. Smart, Deputy Superintendent General of Indian Affairs sends the necessary forms to Agent Grant with instructions to obtain a surrender of the land needed for the road allowance from the Indians. He authorizes Agent Grant to take the surrender in accordance with section 39 of the Indian Act. He also directs him to tell the Indians, if necessary, that because the road is considered to be an advantage to the reserve and the area of land is very small, no compensation will be paid. (exh 2042)
[243] Agent Grants responds to Mr. Smart on October 17, 1901. He states:
... in 1886 Chief Bobtail and a great many of members of his band took scrip whilst the remainder at the payments of 1887 were transferred to Samsons, Ermineskins and other reserves consequently there are no members of the Band left.
The Refugees from Montana who came over in 1896 (as far as I understand) are only allowed to stay on the reserve on the south side of Battle River at the discretion of the Department and have no say whatever as to the disposal of the Road Allowance; I therefore presume the Department can sanction this matter and make the transfer to the North West Territorial government where the road allowance is required, it is six miles from the agency, and the strip of land necessary is of no particular use to Indians.
[244] Agent Grant also notes for Mr. Smart's information that the north east corner of the reserve on the north side of the Battle River is occupied by some members of Samson's Band; the supply of sawlogs for building purposes on the south side of the river is being used for all of the Indians of the Agency; and all the hay required for Agency use and for the Montana cattle is cut on the south side of the river on "Bobtails reserve." (exh. 2043)
[245] Mr. Orr, Clerk of the Lands and Timber Branch of the Department of Indian Affairs, notes on the letter that it might be referred to the law clerk for advice. In his December 4, 1901 memorandum he writes the following with regard to the "Bobtail Reserve":
As I understand the position of affairs a great many members of the band have been adopted into other bands. If adopted under Section 140 as enacted by 53-59 Vic., Cap. 35, Section 8, they cease to be members of the Bobtail Band. However there have returned to the reserve a number of the Montana refugees who now occupy the reserve. These refugees are probably Indians who originally were members of the band; and so far as I can gather from the correspondence in relation to the Montana refugees it is not the policy of the Department to treat them as having ceased to be members of the band because of foreign residence for over five years ... There are also on the reserve some members of Samson's Band, who from Agent Grant's letter may possibly have been members of the Bobtail Band.
Under the circumstances I cannot advise that the lands have ceased to be an Indian reserve and have escheated to the Crown.
I think it would be better to take the surrender from the majority of adult male Indians residing on the reserve in accordance with Section 39 of the Indian Act.
From Inspector McGibbon's report in 1898 such Indians now seem to be reputed members of the band residing on the reserve. (exh. 2053)
[246] On December 7, 1901, Mr. McLean returns the surrender forms to Agent Grant and instructs him that it is "considered advisable to take the same from the majority of adult male Indians residing on the Reserve, in accordance with Section 39 of the Indian Act". He also directs him to carry out the instructions contained in his letter of October 8, 1901. (exh. 2054)
[247] Agent Grant obtains a surrender of the road allowance on December 16, 1901. The surrender document is a typeset form. In the body of the document, the signatories are identified as the "Chief and Principal men of Bobtail's Band of Indians resident on our Reserve on Battle River..." (the words in italics are hand written in the document). The surrender is signed by seven members of the Montana Band. In the accompanying affidavit signed by Agent Grant and one of the signatories to the surrender, Four-Eyes, it states that the surrender "was assented to by a majority of the male members of the said Band of Indians of the Montana on Bobtail Reserve...". The affidavit was twice returned to Agent Grant to have it properly completed and sworn before a justice of the peace. For this reason, the affidavit is dated February 15, 1902. (exh. 2061)
[248] On December 20, 1901, Agent Grant returns the executed surrender to Secretary McLean with a letter stating that it was "signed by the members of Montana Band now residing on Bobtail's reserve ..." (exh. 2064)
[249] Ultimately, the surrender is formally accepted and the road allowance is transferred to the government of the North-West Territories by Order in Council dated April 1, 1902.
1901 - Mounting Pressure to Open Reserves for Settlement
[250] In November 1901, William Pitcairn, the Dominion Lands Agent at Ponoka, writes to the Department of Indian Affairs requesting that IR 139 be opened up for settlement. He observes that homestead lands are eagerly sought by people of the district but they have been shut out of the lands northeast of Ponoka because the land is occupied by three large Indian Reserves, Samson, Ermineskin and Bobtail, the latter being the smallest of the three. He understands that the Indians on the Samson and Ermineskin reserves have good title but those on the Bobtail Reserve do not because they are "Rebel Indians" and there are only fifty of them. (exh. 2046)
[251] This letter prompts the Secretary of the Department of Indian Affairs to write to Indian Commissioner David Laird for his views on the question of "bringing the Bobtail Indian Reserve into the market." (exh. 2057) He, in turn, writes to the Agent at Hobbema on December 28, 1901. He asks for information regarding the Bobtail readmittees, the Bobtail remnants, and the Montana Band. In particular, he asks about the whereabouts of the Indians of Bobtail's Band who took scrip but have since been readmitted to Treaty. He states that he understands these people have joined other bands. He notes that, according to the records in his office, in 1891 there were three male heads of families remaining who did not leave Treaty when the others went out. He wants to know if they have also joined other bands by regular transfer or if they are still residing on Bobtail's Reserve and, if so, how many are currently still living on the Reserve. He also inquires whether the "members of the Montana Band at present residing on the Bobtail Reserve [are] all refugees deported from the United States in 1896 and if so do you think it would be possible to get the consent of some of the other bands in your Agency to allow them to join their bands and remove from the Bobtail Reserve." (exh. 2069)
[252] In the absence of Agent Grant, T.J. Fleetham, the Agency clerk, responds on January 6, 1902. He thinks that those Indians [from Bobtail's] who did not take scrip in 1886 were all transferred to Samson and Ermineskin Bands and those readmitted to treaty joined Ermineskin's Band. He states that there are no former members of Bobtail's Band residing on IR 139. He also states that the members of the Montana Band are all refugees deported from the US in 1896 with the exception of five individuals who have been taken in since that date. He does not think there would be any difficulty in getting Chiefs Samson and Ermineskin and members of those Bands to consent to take them in and that there would not be any objection made by the members of the Montana Band to joining these Bands provided that compensation is paid to them for the rebuilding of their houses, stables, and fences. He notes that fifty-two individuals were paid in 1901, many having returned to the US. He also advises that there is a timber limit on the south east corner of IR 139 where all the logs are obtained for the Agency and the Samson Reserve (exh. 2075).
[253] On January 21, 1902, Indian Commissioner Laird writes to Secretary McLean. He states that Mr. Pitcairn's opinion regarding the title to IR 139 and the Indians residing there is not well founded. He states:
... These Indians were located on the Bobtail Reserve in 1896 and subsequently when the right of way for the Calgary and Edmonton railway was required the Department decided that a surrender of the lands was necessary and it was accordingly taken. I judge therefore that the Department acknowledged these Indians as the owners of the Reserve, otherwise it would not have been necessary to obtain their consent for the surrender of the right of way.
With reference to removing the Indians to Samson's and Ermineskin's Reserve, I believe there is sufficient land to accommodate the small number of Indians residing on Bobtail Reserve (only 52 souls paid last year). But the question of timber and hay lands is the main objection to opening up the reserve for settlement. There is no timber on Samson's reserve and even the supply of firewood required by the Indians is taken from the Bobtail reserve. All building timber used in the Hobbema Agency and cut at the saw-mill comes also from this reserve, so that if the reserve was thrown open the Indians would be left without wood and the saw-mill would be useless. There is not sufficient hay on Samson's reserve to supply the requirements of an additional number of Indians... (exh. 2080)
[254] Commissioner Laird concludes with a recommendation that the action suggested by Mr. Pitcairn should not be taken. Secretary McLean then informs Mr. Pitcairn that because of the timber and hay concerns the Department is not disposed to opening up the reserve for settlement.
[255] On January 27, 1902, Agent Grant writes to Indian Commissioner Laird saying that he has traced the three heads of families referred to earlier as having not gone out of Treaty with Chief Bobtail and had not taken scrip. He states that two were transferred to Ermineskin's Band and one to Samson's Band in the "regular way": MacKinaw with his family of five and White Mud Eye with his family of three are with Ermineskin's Band; and Cut Knife with his family of four are with Samson's Band.
1902 - 1903 Surrender Attempts
[256] Although it had been decided not to open up IR 139 for settlement, on February 7, 1902, Agent Grant informs Indian Commissioner Laird about having approached the Principal men with regard to surrendering part of Bobtail's old Reserve. He relates that he has been talking to them about giving up a strip of land on the west end of the reserve which he told them they could do without. He believes this land could be obtained and would entail moving three houses and two stables. Agent Grant comments on the effect and possible problems associated with opening up the whole reserve for settlement. He goes on to state that the strip of land he is advising the Indians to give up is about two miles wide and six miles long. He describes a number of the features of the strip of land that, in his view, would make it good for settlement. He says that since the Department and the Indian Commissioner seem anxious to open up some of the reserve for settlement, he has been and will continue in a quiet way to obtain the consent of the Indians to give up this two mile or perhaps a two and one-half mile belt. (exh. 2091)
[257] In March of 1902, Mr. Frank Oliver, the local Member of Parliament and publisher of the Edmonton Bulletin, forwards to the Department of Indian Affairs a petition, signed by residents of the district, for a town site surrounding the Hobbema Flag Station on the Ermineskin Reserve. The Ermineskin Band reject the proposal.
[258] In June 1903, David F. Binkley writes to the Indian Commissioner expressing the desire of local settlers to have a railway siding constructed on IR 139. The Indian Commissioner asks the Indian Agent for a report as to whether the siding would be of benefit to the Indians, on what terms they would be willing to give a surrender, and the amount of land that would be required for the siding. The Agent replies that the Indians who have an interest in the land are away but upon their return he will show them what the settlers want. In his report of January 6, 1904 to the Indian Commissioner, Agent Grant reports that when the leading men returned he showed them what the settlers wanted to have. He also told them that the Minister of the Interior and the Indian Commissioner wanted them to let the settlers have enough land for a siding. He also told them they would be paid a fair price for the land. He strongly advised them to either give or sell enough land for this purpose and to think it over. After a few days, the leading Indians returned and positively refused to give or sell any land. He says he delayed sending the letter because he thought they might think it over and have a more favourable reply. He says he talked the matter over many times with them since June but they have positively answered no and seemed angry with him for trying to force the matter. (exh. 2148)
[259] On January 13, 1904, the Indian Commissioner advises Mr. Binkley that the Indians declined to surrender. He states that they are willing to assist the settlers but that nothing can be done without first obtaining the consent of the Indians to a surrender of any portion of the reserve before it can be opened up for sale or settlement. (exh. 2189)
1904 - Surrender Attempts
[260] In the fall of 1904, the new Inspector, James Markle, visits the Hobbema Agency. On October 3, 1904, he reports to the Indian Commissioner that while he was on his inspection, he learned that the Department wanted the Indians to surrender a portion of their reserves. After looking over the lands held by the three bands in the Agency, he concluded that each of the bands could spare a few sections of their reserves without doing themselves any injury. He also reports that Agent Grant told him that the question of surrendering portions of the reserves had already been considered by the Indians and they had positively declined to consider the question. (exh. 2214)
[261] Mr. Markle also reports on a meeting with Chief Samson and the latter's willingness to discuss the matter of surrendering land not being used with the members of his band. When the Chief returned with some of his men, they indicated that they would be willing to give up approximately nine sections in the northeast part of the reserve and about eight sections lying west of the Battle River. Mr. Markle states that he informed them their wishes would be communicated to the Indian Commissioner and, if approved, surrender papers would be forwarded and a meeting would be held to consider the question. Mr. Markle also notes that a discussion ensued concerning the price the Indians expected for the land. The Inspector thought it best not to give an opinion but was of the view that the Indians would be willing to accept market value. The Indians also stated that if approval was given for the sale, they expected to receive some of the sale proceeds at an early date.
[262] The Inspector also expresses the view that if the Samson surrender was approved and they received immediate benefits, then the Indians of both the Ermineskin and Bobtail's Bands would ask to surrender portions of their reserves. He asks the Commissioner what his wishes are and suggests that if he approves and wishes that Samson and Ermineskin do the same, he thinks the whole matter can be done in a year. He adds that both bands can spare a few sections of land that is of little use to them.
[263] In his report dated two days after the letter to the Indian Commissioner, Mr. Markle refers to the Bobtail Reserve as the "Montana Reserve". He notes that about 2500 acres of this reserve west of the Calgary and Edmonton railway is not being used by the Indians for any purpose. He says "[i]f the Indians would consent to surrender this portion of their reserve, and you approve of the surrender and sale of it, and of the investment of a portion of the sale money in fencing and a band of brood mares, I think it would be more profitable than holding land from settlement or use of any kind". Under the heading "Ermineskin's Reserve" he notes that this reserve is also larger than necessary and that his comments in relation to a surrender of a portion of the Montana reserve apply equally to this reserve. (exh. 2218)
1905 - Chief Little Bear Wishes to Return to Canada
[264] In February 1905, Little Bear, "Chief of the Cree Tribe of Indians" who, at this time, is in Havre Montana, writes to the Secretary of the Interior requesting permission to return to Canada with his followers. He says that "[w]e wish to live on the reservation that was formerally our homes and be treated the same as the members of the Cree tribe who have always remained on the reservation set apart for them." (exh. 2237)
[265] In a subsequent memorandum of February 20, 1905, Assistant Secretary S. Stewart, Depatment of Indian Affairs, outlines the history of the repatriated Cree. He suggests that it might be well to ask Little Bear for a statement as to the number of Cree who wish to return and whether they will pay their own expenses if their removal is favoured before further action is taken. (exh. 2239)
[266] The next day, Secretary McLean writes to Little Bear reminding him that a great deal of effort and money was expended to have the Cree from Montana brought back and returned to the reserves to which they formerly belonged, despite the generous treatment many returned to Montana at first opportunity. He asks for answers to the two questions posed by Mr. Stewart. (exh. 2242)
[267] Little Bear replies on March 30, 1905 that they would be in a position to return to Canada in the Fall of 1905 and would pay their own expenses, but he wasn't sure how many Cree would be with him. Among other things, he says he wishes to go Onion Lake where he has brothers and sisters and has an interest with his brothers in horses and cattle. (exh. 2248)
[268] On April 13, 1905, the Deputy Superintendent General of Indian Affairs in a memorandum prepared for the Superintendent General of Indian Affairs provides a history of the Montana Cree and Little Bear's earlier response and recommends that they be permitted to return on the basis described by Little Bear. (exh. 2255)
[269] An Order in Council dated July 22, 1905 authorizes the return of Little Bear and those he represents to the reserves to which they formerly belonged; that they will be put on the same footing as the present members of the various bands to which they wish to return; and that they will pay their own expenses and their goods will come in duty free. (exh. 2275)
[270] Indian Commissioner Laird writes to Little Bear on August 8, 1905 advising him their application to return to Canada has been approved on a number of terms including their agreement to settle in the Onion Lake Agency. (exh. 2281)
[271] On November 7, 1905, Little Bear replies to the Minister of the Interior and Superintendent General. He says the offer would be passably good if better land could be given and outlines the problems with the land at Onion Lake. He says he would be able to leave for Canada in the spring with his following if he were granted a number of requests including that full bloods be given a reserve with more productive land than at Onion Lake where they could earn a livelihood; that annuities due them but not paid since having left Canada be paid; that the Indians be especially helped for such periods as may be necessary until they are able to provide for themselves and the terms of the treaty be fulfilled; and that he and his family and those of his followers who have white blood be given scrip instead of treaty and be allowed to live in Canada with the same privileges enjoyed by other citizens. He adds that he would like an answer from the Minister and not any of the Commissioners in whom he has lost faith. (exh. 2297)
[272] On November 14, 1905, Deputy Superintendent General Pedley advises the Assistant Secretary that he cannot deal with Little Bear's correspondence until he has completed his annual report but suggests that it be referred to the Indian Commissioner "[a]nd snub Chief Little Bear's apparent attempt to dictate fresh terms and tell him to communicate through the Ind Comm'r." (exh. 2299)
[273] Little Bear's letter is referred to in a letter to the Indian Commissioner Laird by Secretary McLean on November 15, 1905. He states that it is out of the question that Little Bear and his followers should be placed in a better position than those Indians who continued to reside on the reserves. He notes, however, that Little Bear appears to be of the opinion that all returning Indians will be compelled to reside on the Onion Lake reserve instead of as the Order in Council provides to return to the reserves to which they formerly belonged. Regarding the annuities, he refers the Indian Commissioner to the letter of the previous Indian Commissioner dated September 30, 1896 and the reply of October 12, 1896. (exh. 2300)
[274] In early January 1906, Indian Commissioner Laird writes to the Secretary of the Department to explain his misunderstanding of the terms of the Order in Council. He says he understood from the letter of March 30, 1905 that Little Bear wanted to return to his former reserve at Onion Lake and that his followers were also formerly members of the Bands in the Onion Lake Agency. He adds that if the Department wishes to allow the Indians to select a special reserve on which to settle, he will amend his instructions to Little Bear. (exh. 2317)
[275] A few days later, Secretary McLean replies that it is not the desire of the Department to allow these Indians to select the special reserve on which to settle but that the provisions of the Order in Council be carried out which authorizes that they be allowed to return to the reserves to which they formerly belonged in Canada. (exh. 2322)
[276] On January 24, 1906, the Indian Commissioner Laird writes to Little Bear that "... it was understood from your letter of the 30th March that you desired to return to Onion Lake, and that the Cree Indians who would accompany you were also formerly members of the bands in that Agency, as it was the intention that the Indians who return should settle on the reserves to which they formerly belonged". He also confirms that, with this exception, they must fully comply with the conditions in the earlier correspondence. Regarding the question of payment of arrears of annuities, he states that they have forfeited their right to such payment by reason of their absence in a foreign country for a continuous period of over five years. Finally, he adds that "[y]ourself, family, and people, who accepted Treaty, having thereby admitted that you were Indians, are not entitled to receive scrip". (exh. 2323)
1906 - Montana on IR 139
[277] On February 7, 1906, Assistant Commissioner McKenna writes to the Secretary of the Department regarding a request by May-ma-que-see to join the Montana Band. He states that in response to an earlier request by this individual and "other vagrant Indians" for admission into the Montana Band, it had been decided that they should only be admitted to bands in the district to which they formerly belonged, however, it was not clear that if they were able to get them there they would remain so the matter was held in abeyance. The Assistant Commissioner states that the Bobtail Reserve became almost depleted of population by the discharge of its members as "half-breeds" and the admission of their claims for scrip in 1886. He adds that three families remained of which two were admitted to Ermineskin and one was admitted to Samson. As well, some who were readmitted joined Ermineskin's Band. He also states:
... there is no Bobtail Band now for whom this reserve was originally set aside. The rights of the original band have been wiped out by the acceptance of scrip or admission to other bands. Refugees of our Rebellion days driven from the United States in 1896 were allowed to settle upon this Reserve, and subsequently there were admitted among them two families from Morley, two individuals from Enoch's Band, and one family from Samson's Band. And by the taking of a surrender of the right of way for the Edmonton & Calgary railway it has been held, I understand, that the legal right of these Indians to the reserve was established.". (exh. 2343)
1908 - Ermineskin Mineral Surrender
[278] On April 20, 1908, the Chief and principal men of the Ermineskin Band executed a mineral surrender for the purpose of the development of a coal mine on the Reserve. One of the signatories, Kennewats, is also one of the signatories to the June 12, 1909 surrender of IR 139. Additionally, although it is not possible to say with certainty due to the poor quality of the document and the legibility of the writing, it appears that another signatory, Mackino, is also a signatory to the June 12, 1909 surrender. (exh. 4127)
1908 - Further Developments
[279] Nothing further occurs regarding Inspector Markle's amalgamation proposal until December 4, 1908 when he raises it and the surrender of IR 139 in a letter to the Secretary of the Department of Indian Affairs. He writes:
You are aware that a number of years ago practically all of the Bob Tail band of Indians withdrew from treaty and that when they did withdraw no action was taken to get them to surrender the land within their reserve, at least I do not know of any action being taken with this object in view. You are aware, too, that since the withdrawal of the Indians referred to from treaty and their reserve that straggling Indians have been allowed to settle on this reserve. These stragglers had, doubtless, rights on some other reserve but no rights on the Bob Tail Reserve. It occurred to me that under the existing conditions here that the Department would be legally justified in cutting off a portion of the reserve as it now stands and to simply retain a sufficient area for the 85 or 90 souls who now comprise the Montana Band. There may be one or more families of the old Bob Tail Band, if so the old annuity sheets should show and the fact should be traceable. If there are such I think they should be located and then if it is necessary to secure a surrender from them of a portion of the reserve I think it should be kept in view until carried out. From the enclosed sketch of the reserve you will notice that the C & E. branch of the C.P. Railway cuts off the north westerly corner of this reserve. I would like to see that portion of the reserve within township 44 lying westerly from the line of railway and that portion of the reserve within township 43 lying westerly of the Battle river cut off and sold for the benefit of either the remaining members, if any, of the Bob Tail Band, or as the band now stands under the name of Montana's. Possibly 3 or 4 sections on the south eastern corner of the reserve could, too, be acquired for sale. The Indians are not using the land, or at least very little, and if that portion westerly of the railway and river, referred to herein, can be sold it would likely mean a station within township 44 and this would be a convenience for the settlers who reside westerly of that point. ( exh 2524)
[280] On the sketch attached to the letter, Inspector Markle writes that all of the land west of the railway and west of the Battle River on the Bobtail Reserve should be cut off. The area described was often referred to as the "wedge". He also writes on the sketch that "[t]here are about 85 souls in this band, now known as "The Montana's" If reserve can be reduced to 18 or 20 sections there will be ample to meet treaty obligations." (exh. 2524)
[281] This letter from Mr. Markle prompted Chief Surveyor Bray to write a memorandum for the Deputy Minister on December 12, 1908. He states:
With reference to letter hereunder dated 4th instant from Inspector Markle, I beg to state that the Bobtail Indian Reserve No. 139 contains 31½ square miles. The reserve is now occupied by the Montana Band which numbers only 92 persons, entitling them to 18 2/5th square miles. There is therefore apparently an excess of land in the reserve of about 13 square miles.
Inspector Markle refers to the fact that many years ago a number of Bobtails Band withdrew from Treaty. This occurred in 1886. In 1887 they regretted the step they took and petitioned to be readmitted. Their petition was granted and they were formally re-admitted (letters 11th July 1887 and 18th Aug. 1887) file 24303-3).
The Inspector states that Indians from other bands have settled on the reserve. The question would then arise in the event of a surrender as proposed by the Inspector, whether the said Indians have the right to vote.
There would appear to be no doubt that a large number of Bobtail's band did not return to the reserve as we have every reason to infer that the reserve was originally laid out for the number of persons that then comprised the band, and it is now nearly twice as large as required for the number of Indians residing on it.
The view may be taken that all the Indians now residing on the reserve and comprising the band in possession have been allowed, although as a matter of fact, to become members of the original Band, and consequently would appear to have the right to vote in any question of surrender. It is also to be noted that by an Order in Council of July 22nd 1905 that Little Bear Chief of the Cree refuegee Indians who went with his followers to the United States after the Riel rebellion were authorized to return to Canada on certain conditions two of which are to the effect that they were to return to the reserves to which they formerly belonged and that they were to be placed on the same footing as the members of the Bands concerned who did not go away.
It appears that up to very recently Little Bear and his followers had not availed themselves of this permission, but they intended to do so. In this event the band occupying the Bobtail reserve may have a number of members added to it.
I understand that it would be in the interest of the public and also the Indians that the portion of the reserve mentioned by the Inspector should be surrendered. I think he might be instructed to endeavour to obtain or arrange for a surrender of an area not exceeding 10 square miles and that the surrender will be taken from the Indians in possession in the ususal manner. He might, however, inform the Indians of the possible doubt regarding their rights to the entire reserve as an inducement for them to surrender in order that the money obtained may be applied for their benefit. (exh. 2530)
[282] On December 23, 1908, Inspector Markle writes to the Secretary of the Department. He says:
Ref. concluding portion of my letter of 4th instant. I was at the Hobbema Reserve last week installing water supply appliances and when there one of the minor chiefs called to talk over the sale of the section of land by the Hudson Bay Company and which had been deeded to this Company in error, and the contemplated surrender of some of the reserve, principally what is known as "the wedge". I was informed by the Chief referred to that Mr. John McDougall had been on the reserve a few days before and was talking surrender to some of the Indians and I learned from other sources that Mr. Farmer Perry had been taking a hand in the same question, to what extent I do not know, and I concluded, therefore, that it would be prudent for me to drop out, until such time, anyway, as I received direct authority from you to treat with these Indians on the question of surrender. My services are not likely to be required, however, as I expect either Mr. McDouglall or Mr. Perry will acquire the surrender referred to. (exh 2532)
1909 - Samson Surrender
[283] On December 30, 1908, Chief Joseph Samson and one of his councillors write to Superintendent General Oliver indicating their willingness to surrender a portion of IR 137 adjacent to the railway line. (exh. 2533)
[284] This letter is followed by a letter from Rev. McDougall to the Superintendent General on January 2, 1909. He refers to the above letter from Chief Samson and comments that if the proposed surrender is accepted and a benefit accrues to them, he has no doubt that, if approached, the Band would surrender some land in the northeast part of the reserve. He suggests that the members of Samson's Band be paid $20.00 per capita. He also recommends that the surrender be put through as soon as possible not only for the "good effect" it will have on the members of Samson's Band but "more so on the adjacent Bands."
[285] Regarding IR 139, he states:
As to that part of the Bobtail's Reserve west of the Battle River I spoke to the "Montanas" as they are termed about this but they refused to consider the matter in any way. However I told them my coming to them was only a matter of courtesy that this Reserve really belonged to the Government and that they were dwelling on it by the grace of the Government and that it was not really necessary in this case to seek for a surrender.
He goes on to suggest:
... that portion west of the Battle River in this Reserve and at the northern point for one half mile east and then south to the River be taken and sold in the interest of these Indians who are now living on this Reserve.
He also raises another matter and states:
When Bobtail and some of his Band took scrip and went out of Treaty others of his Band elected to remain in Treaty and ultimately joined Samson's Band list. While today counted in Samson's Band they did not bring any land with them. These and others of Samson's Band are now and have been dwelling north of the Battle River but in what is known as Bobtail's Reserve. For these and to do simple justice I would recommend that those portions of this Reserve on the north side of the River be merged into Samson's Reserve. ... By doing this the west and north boundaries of the Bobtail's Reserve would be made by the River.
Lastly, with respect to the Ermineskin Band he states:
As to Ermineskin's Reserve some of the Indians are for a surrender - notably Louis Bull and his People and if their portions of this Reserve had been set apart for them in the first place as it should have been they would at this time make a surrender. However Ermineskin's Son on whom he depends was not at home had gone to Battleford and after a talk with the Chief and some of his Band I left them for the present. If your Department acts promptly with Samson's Band at this time I fully believe Ermineskin and his Band will follow. (exh. 2545)
Surrender of IR 139
[286] On January 18, 1909, the surrender forms are sent to the Agent and on January 28, 1909, the Samson Band surrenders approximately 14.54 square miles of land lying west of the railway on IR 137.
[287] In response to Rev. McDougall's suggestion that the portion of IR 139 lying west of the Battle River could be taken and sold for the benefit of the "Montanas", Deputy Superintendent General Pedley writes to him on January 18, 1909 saying:
As regards disposition of portion of the Bobtail Reserve, West of the Battle River, I would say that it would not seem advisable, even if it were possible, to take this line of action without a Surrender obtained in the usual way from the Indians.
As regard the question of the Indians who joined Samson's Band, and who are dwelling North of Battle River, on the Bobtail Reserve, I would say that the portion of land occupied by these Indians could not be merged in the Samson's Band without formal relinquishment by the Bobtail Band, and consent of the Samson's Band. (exh 2549)
[288] On January 23, 1909, Rev. McDougall replies to the Secretary of the Department regarding the disposition of the Bobtail Reserve. He states:
.... As to that portion of the Bobtail's Reserve west of the Battle River this was the suggestion of the Minister himself and doubtless would please the Railway Company and general settlement in vicinity and as the Indians interested now are not the original Bobtail Band but are termed "Montana's" I felt where on the ground that if these portions were taken by the Department and sold in the interest of Indians now dwelling on this Reserve all rights in the case would be conserved. Also, those portions north of the River should with justice come into Samson's Reserve even as the People for whom these were set apart did some years since come into Samson's Reserve. I still believe this arrangement would be just and give general satisfaction. The only parties who might dissent being the "Montana's" who really have not the franchise in the case. (exh. 2553)
[289] As a result of Mr. Bray's memorandum of December 12, 1908, the file is referred to Chief Accountant Scott "... for consideration of the question as to what Indians should vote on the surrender of the Reserve known as Bob Tails No. 139." In his memorandum of January 25, 1909 to the Deputy Superintendent General, Mr. Scott states:
.... As stated by Mr. Bray all but a few Indians of this Band withdrew from Treaty and accepted half-breed scrip in 1886. When they came back into Treaty they signed a document which will be found as No. 41955... in which they waived all their rights to annuities and stated that they would not lay claim to any of the lands formerly held by them as a Reserve nor to any of the cattle or implements etc. etc. I do not think that this document has any binding effect, but the Indians have gradually been re-admitted to Treaty rights with other Bands and the majority of them are now members of Samson's Band receiving annuity and in full enjoyment of Treaty rights. It seems to me highly desirable to endeavor to carry out an amalgamation of the Indians on the three Reserves, Ermineskins, Samson's and Bob Tails. These reserves comprise 162 ½ sq. miles and they have therefore 13 ½ sq. miles more than the area allowed by the Treaty. I would recommend that Inspr. Markle be asked to report on this suggestion. Such combinations have been made with good results in the past, and if the matter were properly presented to the Indians it might carry. The position of each Indian would be improved by a community in land and money interests. If this plan should not carry I think a surrender should be taken from the Indians now resident on Bob Tails Reserve. (exh. 2557)
[290] On January 26, 1909, the Deputy Superintendent General replies to Mr. Scott saying:
It would appear that those Indians who did not leave the reserve preserved their rights therein whatever may be said of those that left or those that came from elsewhere to take up residence.
I would like a list of the members of the Bobtail band that remained on the reserve and also a statement showing clearly the position occupied by the Montana Indians with reference to the land. (exh. 2559)
[291] On February 19, 1909, Mr. Scott responds to the information request. He states that he had a careful search made of the paylists of the Hobbema Agency. He reports the following:
No members of the Bobtails Band remain on the Reserve.
The following members of that Band joined either Ermineskin's or Samson's Band as shown on the following list, and they will participate in the benefit accruing from the sale of Samson's Band lately surrendered:
No. 4 Bobtail Band - 7 persons to Sampson's
No. 9 _ 1 _ _
No. 22 _ 3 _ _
No. 25 _ 3 _ _
No. 26 _ 2 _ Ermineskins
No. 30 _ 2 _ Sampson's
No. 31 _ 2 _ Ermineskins
No. 35 _ 3 _ Sampson's
No. 37 _ 3 _ _
No. 38 _ 1 _ _
No. 41 _ 3 _ _
No. 47 _ 1 _ _
The only Indians now resident on the Bobtail's Reserve are the Montana Band. If we could induce these Indians to merge their interests as suggested in my Memorandum of January 25th, I think it would be very desirable, but local conditions and prejudices may make it impossible.
[The first sentence of this paragraph is crossed out in all of the copies of this exhibit.] (exh. 2587)
[292] The Deputy Superintendent General replies to Mr. Scott on February 23, 1909 that "[i]t would probably be just as well to ascertain what is the legal position of the Montana Band as regards Bobtails Reserve". (exh. 2593)
[293] Mr. Scott's response of March 2, 1909 states:
I have discussed the question of the legal position of the Montana Band as regards Bobtails Reserve with Mr. Campbell. We agree that they have no legal right to the land on this reserve but I think the difficulty will disappear if the action that I proposed be carried out, with the additional clause in the agreement as to merger that the Samsons, Ermineskins, Muddy Bull's and whatever members of Bobtail's Band remain thereupon, adopt the Montana Band into full membership. Then their signatures to any surrender of the joint Reserves will be legal, and as the whole matter will be approved by His Excellency-in-Council, there can in the future be no reasonable criticism of the action. (exh. 2606)
[294] On March 9, 1909, Superintendent General Oliver prepares the following memorandum for Deputy Superintendent Pedley:
The Bobtail Indian Reserve lies south of that of Samson and adjoins it. The Ermineskin Indian Reserve lies north of that of Samson and adjoins it. The three bands were allotted these reserves some time in the late 70's or early 80's.
When halfbreed scrip was issued the Bobtail band left the treaty and accepted scrip as halfbreeds, leaving the reserve vacant. After some years experience as halfbreeds a large number of them decided that they would prefer to be Indians and were admitted to membership in the Samson and Ermineskin bands.
At the present time the members are 25 families in Samson's and 4 in Ermineskin's.
When the members of Bobtail's band took scrip they thereby gave up their Indian rights and this action on their part left the Bobtail reserve on the hands of the Indian Department with no Indian claims against it.
Later on a number of straggling Indians who had emigrated to Montana were gathered together and brought back to Canada and settled on the then vacant Bobtail reserve where they still remain. These people had no treaty rights, did not belong to any specific band, were never given any right of ownership in the Bobtail reserve and are simply occupants of it.
The reserve is much larger than meets the needs of the Indians and it would be sound public policy to dispose of part of it so that it might be settled.
The Battle River cuts a strip off the west and north sides of the reserve. On the north side this strip adjoins the Samson reserve and on the west it adjoins land occupied by white settlers. The Montana Indians occupy the part of the reserve east and south of the Battle River.
According to the area of land allowed to Indians as their right under treaty, if the Montanas had any right in the land their right would only cover a part of the reserve lying south and east of the Battle River. It would therefore seem that under any circumstances the land west and north of the Battle River is available for disposition and the question is who should have the benefit of the proceeds of the disposition if made.
As the Montanas had no rights in the reserve, are only occupants of it and in any case if they were given a reserve would only be entitled to a part of it which would exclude the part north and west of Battle River, they cannot be assumed to have any right to the proceeds from the sale of that part of the reserve.
As the members of the original band took scrip rights as halfbreeds in place of their rights to the reserve as Indians they can have no legal claim, but it having been considered by the Government to be sound public policy to re-admit them as members of the band of Samson and Ermineskin it would seem to be fair that these bands at large should have the benefit of the proceeds of any sales made from the Bobtail reserve in proportion as the members of the Bobtail band are now members of the Ermineskin and Samson bands. That is to say, if there are 29 Bobtail indians in the two bands of Samson and Ermineskin and if the land proposed to be sold from the Bobtail reserve realized $29,000.00, as there are 25 members of Bobtail's original band now identified with Samsons that band should receive the benefit of $25,000.00 while as four members are now part of Ermineskin's band that band should receive $4000.00.
Mr. Pedley to consider the foregoing facts and proposals with a view to deciding whether the latter are or are not within the law. (exh. 2617)
[295] Chief Accountant Scott writes to Deputy Superintendent Pedley on April 1, 1909 stating:
I wish to amend to some extent my memoranda of January 25th, February 19th and March 2nd with reference to the question of Reserves in the Hobbema Agency. In the first memorandum I laid too much stress on the fact that certain Indians of Bobtail's Band after taking half-breed scrip had requested to be received again into treaty. When I said that the Indians had been gradually readmitted to Treaty rights and the majority of them are now members of Samson's Band, receiving annuity etc., I went too far. I have now caused the list of Indians who actually took half-breed scrip and were discharged from Bobtail's Band to be made out from the record, and I attached hereto. You will observe that all these withdrawals took place in 1885 and 1886. A careful search of the Pay-lists has failed to discover the name of any one of these persons. They might be paid under Indian names, but that is doubtful. My memorandum of February 19th gives a list of the Indians of Bobtail's Band now members of Samson's and Ermineskin's, but I cannot discover that any of these Indians took scrip. They are in fact Indians who never went out of Treaty. This makes it clear that the proprietary right in the Reserve is still vested in the members of the old Band, and that if the land is to be sold they must surrender their rights. [Attached to this exhibit is a document entitled "Mr Scott The following members of Bobtail's Band were discharged from treaty and took scrip." The list contains 24 names] (exh. 2631)
[296] On April 3, 1909, Mr. Scott writes another memorandum to the Deputy Superintendent General. He states:
These notes are made immediately after a conversation with the Minister as regards the Bobtail's Reserve. When it was explained that we cannot legally follow the course outlined in his memorandum of the 9th of March he wishes an arrangement to be made if possible along these lines:
Cut out from the Bobtail's Reserve a sufficient amount of land for the present population of the Montana Band under Treaty stipulations, the area to embrace their holdings and to be located with reference to their needs.
To obtain a Surrender from the members of Bobtail's Band now belonging to Ermineskin's and Samson's Band of the remaining portion of the Reserve East of the Battle River. Under this Surrender the individuals formerly belonging to Bobtails Band might be promised a cash payment at the time of Surrender. The balance of the funds derived from the land are to go on a per capita division to the capital funds of Samson's and Ermineskin's Bands.
That the portion of Bobtail's Band west of Battle River be attached to Samson's Band in lieu of the Hudson Bay Sections within the Samson Reserve. As this will adjoin the surrendered portion of the Samson Reserve, it might be well to have them surrender it for sale also.
That the proposal should be worked out and placed in the Rev. John McDougall's hands.
As the claim of the Bobtail's Indians overshadows the whole of the old Reserve, it may be necessary to obtain their consent to the arrangement.
As there is a Hudson Bay section in the Ermineskin's Reserve and also four members of the old Bobtail's Band the difficulty with reference to that section might also be overcome by giving them a share of the proceeds of the sale.
Mr. J. K. McLean should have instructions to survey the Reserve for the Montana Indians. (exh. 2634)
[297] Rev. McDougall goes to Ottawa and receives instructions regarding the reserves and bands in the Hobbema Agency. Two undated memoranda in the Rev. McDougall's handwriting record the instructions. They read:
No. 1
Memoranda Re Remnant of Bobtail's Band
No. 1 Secure if possible from these a Surrender to the Gov't for the Indians benefit of the Bobtail's Reserve.
No. 2 Arrange for their formal and legal acceptance into the Bands to which they have already joined themselves & are recognized as belonging to.
No. 3 Dispose of the Bobtail's Reserve as follows
A. Set apart for the use of the "Montana's" ten sections (more or less) immediately South of the Battle River & in the Eastern portion of this Reserve.
B. Add to Samson's Reserve all those portions of Bobtail's Reserve situated North of the Battle River contained in Townships Nos. 44-24 & 43-24.
C. Subdivide & sell by 1/4 sections or fractional portions thereof the balance of this Reserve.
Memorandum No. 2
Suggesting proposal to go to the Indians with.
Item No. 1 As per Memo No. 1: This would leave approximately 17 sections or 10,880 acres to be sold of the Bobtail's Reserve = at a minimum price of $10.00 per acre to $108,800.00.
_ No. 2 There are 4 Bands of Indians to be affected by this arrangement-
first- the remnant of Bobtail's Band
second- _ portion who joined Samson's _
third- _ _ _ _ Ermineskin's _
forth- _ Montana's living on the Reserve
These 4 Bands total 745 souls if all present Equity of ten percent as above is paid to these 4 Bands at the per capita of $12.00 this would amount to $8,920.00 leaving a bal. of $1,960.00 to divide among the Remnant or Real owners of the original Bobtail Reserve.
_ No. 3 The bal. of equity and the funded monies and interest accruing should then be dealt with as is being done in the case of the Surrender made recently by the Samson's Band. (exh. 2629)
[298] In May 1909, Surveyor McLean is at Hobbema working on the subdivision of the land surrendered by Samson earlier in the year and the division of IR 138 (the reserve occupied by Ermineskin and Louis Bull) into IR 138 and IR 138B for the Ermineskin and Louis Bull Bands respectively. On May 31, he advises Deputy Superintendent Pedley as follows:
With reference to the proposed surrender of Bobtail Indian Reserve it will be necessary to arrange to add all that part of Bobtail IR North and East of the Methodist Mission and North of the Battle River to Samson IR. Sections 6 and 7 Tp 44 R 24 North of River.
A number of Bobtail's Band have been taken in to Samson's Band and he claims he should get this land added to his Reserve on that account. I am doubtful if anything can be done without the influence of Samson.
I think it would be well to advise the Rev. John McDougal that I am now at Samson IR and expect to complete the word in about three weeks. (exh. 2665)
[299] Rev. McDougall telegrams the Deputy Superintendent General Pedley that he will be ready for Hobbema by June 7, 1909. (exh. 2669) Secretary McLean writes to Rev. McDougall the next day. He states:
In accordance with the arrangement made when you were last in Ottawa you will find enclosed herewith form of Surrender for members of Bobtail's Band of a certain portion of their reserve, and Agreement between the owners of Samson's Indian Reserve and the owners of Bobtail's Indian Reserve and an Agreement between the owners of Ermineskin's Indian Reserve and the owners of Bobtail's Indian Reserve; each of the three documents in duplicate.
You will also find enclosed cheque No. 72 for $10,905.00 to provide for the per capita distribution to the Indians. Under separate cover you have been sent a map showing the reserves in the Hobbema Agency, and pay list forms on which to record the distribution of the cash advanced. (exh. 2672)
[300] On June 10, 1909, Chief Surveyor Bray sends a memorandum to the Deputy Minister. It states:
Referring to letter of the 31st ultimo hereunder from Mr. J. K. McLean, recommending that in the event of a surrender of the Bobtail reserve certain portions of the said reserve should be added to the Samson reserve, I have to say that this matter was brought to the attention of the Department January 23, last, by the Rev. Mr. McDougall.
I think that the actual number of the old Bobtail and the Montana band who have joined Samson's band might be ascertained. In the event of the surrender of the Bobtail reserve the area (including the portions desired) to which these persons may be entitled, might be added to the Samson reserve. The said persons should in that event be formally admitted as members of Samson's band. (Rev. Mr. McDougall and Mr. J. K. McLean to be advised accordingly.)
The Department does not appear to have received any advice recently on the progress of any negotiations having in view of the surrender of the Bobtail reserve. (exh. 2676)
[301] On June 11, 1909, Agent Mann reports to Inspector Markle that " ... Mr. McDougall arrived at the Agency on the 9th inst. and is trying to make arrangements re the Bobtail and Montana Reserves. He is prepared to make a payment to all hands but so far things are not settled." (exh. 2678)
[302] Surveyor McLean reports to the Deputy Superintendent General on June 12, 1909 that "[t]he Rev. John McDougal has about completed arrangements for the surrender of the Bobtail IR. Five of those entitled to sign did so yesterday, the remainder about 9 are expected to sign on Tuesday." (exh. 2680)
[303] On June 12, 1909, a surrender of IR 139 is signed. (exh. 2686) The surrender states that it is given by "... the undersigned members of Bobtail's Band resident on our Reserve and on Samson's and Ermineskin's Reserves, (paid annuity as members of the last mentioned Bands), in the Province of Alberta and Dominion of Canada, for and acting on behalf of the whole people of our said Band in Council assembled. ..." The signatories to the surrender identified the "... Chief and Principal men of the said Bobtail's Band ..." are Makina, Cut Knife, Kah-kee-kay-kah-po, and Augustine Makina. The witnesses are George Mann, Indian Agent and John McDougall, Special Agent. The document contains the following terms:
a) a surrender of IR 139, known as "Bobtail's Reserve", containing 31.5 square miles;
b) ten square miles is "allotted to the Montana Band as a Reserve for the Band immediately South of the Battle River in the Eastern portion of the Reserve";
c) portions of IR 139 north of the Battle River in townships 44 and 43 are joined to Samson's Reserve;
d) the remainder of IR 139 is to be sold and the monies received to be distributed in the following manner:
i) the "usual percentage" to be deducted for management;
ii) 12.5% of the estimated value at $8.00 per acre to be paid on a "share and share alike to ourselves [members of the Bobtail Band] and the members of the following Bands of Indians associated with us in the Hobbema Indian Agency, viz:- Samson's, Ermineskin's, Muddy Bull's, and Montana's, no member of the last four mentioned Bands to receive more than Twelve Dollars, and the sum remaining after such per capita division to be divided equally between us the members of the Bobtail's Band";
iii) the balance of the sale proceeds to be paid to the Samson and Ermineskin Bands' trust accounts "... pro rata of our [members of Bobtail's Band] membership in the said Bands upon condition that we are received into full membership with the said Bands to share equally with them in their lands and moneys.";
iv) the interest on the capital accruing from the sale due to the Ermineskin and Samson Bands to be paid in cash.
[304] On June 14, 1909, the "owners of Samson's Reserve No 137" enter into an agreement with "the owners of the Bobtail Indian Reserve, No. 139, ...as represented by the Principle Men of their Band". By the terms of the agreement, the owners of IR 137 agree to admit the owners of IR 139 into their Band and to allow them an undivided interest in all land and other privileges possessed or in future to be possessed by the Band. In return, those being admitted to the Band agree to give to the owners of IR 137 a joint and undivided interest in all benefits which have accrued or may accrue from the sale of the lands surrendered, such benefits to be distributed or allotted to the trust fund accounts of the owners of IR 137 upon a per capita division based upon the "number of Indians of the Bobtail Band who are members of Samson's Band." The signatories to the agreement on behalf of the owners of IR 139 are the same individuals who signed the surrender. (exh. 2693)
[305] On June 17, 1909, a parallel agreement, on the same terms, is entered into between the owners of the Ermineskin Indian Reserve No. 138 and the owners of the Bobtail Indian Reserve No. 139. (exh 2705)
[306] On June 21, 1909, Rev. McDougall sends the surrender documents and the two subsequent agreements to the Department of Indian Affairs and reports:
I am herewith enclosing to you the documents re the Surrender of the Bobtail's Indian reserve also those connected with the acceptance of the Bobtail Indians into Samson's & Ermineskin's Bands.
With the assistance of the Agent & Clerk of the Hobbemma Agency I paid out to the People of the Bands, included in Samsons and Ernimeskins, & Louis Bulls, & Montana $8,914.00 and arranged with the Agent to payout the bal. Being $1,1991.00 taking receipts in duplicate from the Agent for this balance.
The payments were $12.00 to each individual of these Bands. There a sum of $65.00 to each of 22 whom I considered as especially worthy of some as bona fide Survivors of the Bobtail Band. Then as I had a bal. Of $175.00 I divided this between the Chiefs of the two Bands affected namely Samson's & Ermineskin's.
I considered this was both politic & just as these men have had more trouble and responsibility with the Indians of Bobtail's Band from before the Rebellion of 1885.
This work of hunting up the Bobtails and searching out their history also looking on the Reserve in question and laying out same for the Montanas as equitably as he could and arranging with Surveyors on the spot and making payments took both time & work but I believe the whole has been accomplished in justice & with satisfaction to all concerned.
I desire to record my gratitude for help & kindness of Mr. & Miss Mann the Agent & clerk of Hobbema Agency. (exh. 2715)
[307] On June 29, 1909 Secretary McLean returns the IR 139 surrender documents to Agent Mann because the required affidavit of execution under the provisions of the Indian Act was not attached to the surrender. He encloses the surrender documents with forms of affidavit attached for completion by the Agent and the Chief and one of the principal men before a judge, stipendiary magistrate or justice of the peace. (exh. 2726)
[308] On July 8, 1909, Agent Mann returns the surrender documents together with the required affidavit to the Department. The affidavit states:
DOMINION OF CANADA
Province of Alberta Personally appeared before:
County of George G. Mann Of
To Wit: the Agency of Hobbemma
in the Province of Alberta, Indian Agent,
and Makina, Cutknife, Kah-Kee-Kay-Kah-Po and Augustine Makina,
Head menof the said Band of Indians.
AND the said George G. Mann for
himself saith:--
That the annexed release or surrender was assented to by a majority of the male members of the said Band of Indians of the Bobtail Reserve of the full age of twenty-one years then present.
That such assent was given at a meeting or council of the said Band summoned for that purpose and according to its [eligible]
That he was present at such meeting or council and heard such assent given.
That he was duly authorized to attend such council or meeting by the Superintendent General of Indian Affairs.
That no Indian was present or voted at said council or meeting who was not a member of the Band or interested in the land mentioned in the said Release or Surrender.
And the said Makina, Cut Knife, Kah-Kee-Kay-Kah-Po and Augustine Makina
say:
That the annexed Release or Surrender was assented to by them and a majority of the male members of the said Band of Indians of the full age of twenty-one years then present.
That such assent was given at a meeting or council of the said Band of Indians summoned for that purpose, according to its rules, and held in the presence of the said George G. Mann
That no Indian was present or voted at such council or meeting who was not an habitual resident on the Reserve of the said Band of Indian or interested in the land mentioned in the said Release or Surrender.
That they are the head men of the said Band of Indians and entitled to vote at the said meeting or council.
Sworn before me by the Geo G. Mann,
Deponents Makina his X mark
at the Town of Ponoka in Cut Knife his X mark
the Province of Alberta this Kah-Kee-Kay-Kah-Po his X mark
8thday of July A.D., 1909 Augustine Makina his X mark
M. Turner J.P.
(exh. 2656)
[309] On July 20, 1909, Agent Mann reports to Secretary McLean on the distribution of funds to the Indians after the surrender. He reports that a total of $10,905.00 was distributed as follows: $12.00 to 420 Samson, 178 Ermineskin, 83 Louis Bull, and 98 Montana; a special payments of $65.00 to each of the "Indians remnant Bobtail's Band totalled $1,365.00; special payments of $87.00 to each of Chiefs Samson and Ermineskin; and the balance of $17.00 returned to the Department. Agent Mann also reports that of the total amount paid out by Rev. McDougall totalled $8,914.00 between June 16 and 18 and on July 6, he paid out $1,974.00. (exh. 2754)
[310] On July 29, 1909, the surrender of IR 139 is formally accepted by Order in Council P.C. 1674. (exh. 2761)
[311] Agent Mann writes to Secretary McLean regarding a recent meeting between Superintendent General Oliver and "several Indians of the Montana Band" concerning their dissatisfaction with their reserve. In his letter of October 22, 1909, Agent Mann notes that the chief agitator was Ma mee qua see, a discontented individual who is absent from the reserve most of the time and who has no influence with the majority of the band. He reports that a majority of the principal men of the Montana Band came to his office and asked him to inform the Department that they were quite satisfied with the reserve that had been surveyed for them during the summer and did not wish the Department to make any change. (exh. 2845)
Oral History Evidence
[312] As noted earlier, elders on behalf of Ermineskin and Samson testified at the trial. In general, they provided evidence regarding the way Aboriginal people perceived certain matters during the time in question. The evidence included, among other things, an account of the severe hardship Aboriginal peoples faced at the time of the Rebellion; the Cree perception of the value of treaty annuity money; Chief Bobtail's anger because of what happened to his son, Coyote; mistreatment by Indian Agents particularly in relation to rations; the public hangings of two Aboriginal men and the injustice in seeing Aboriginal people punished while the white people "got away free"; the government confiscated all firearms from Aboriginal people with a view to causing them to starve to death; that Ermineskin and Samson were "Bobtail people"; Bobtail's reasons for leaving Bear Hills; the significance of the pipe to the Cree and the sacred nature of the Treaty; the Cree custom of giving names to children; in Cree society families belong to bands and bands belong to nations; family kinship was the most important factor in determining the band with which individuals resided; the consent of the Chief was required for movement from one band to another; Bobtail's reasons for leaving treaty; and individuals living on the Bobtail Reserve being told they had to move because the land had been sold.
[313] Certain aspects of this evidence are corroborative of other evidence adduced at the trial. However, neither the oral history evidence nor the evidence it tends to corroborate are particularly useful in relation to the resolution of the technical issues before the Court. As well, none of this evidence contradicted any of the relevant documentary or expert opinion evidence. For this reason, it is not necessary to engage in an analysis of the weight that ought to be given to this evidence. Having said this, given that the Cree perspective for the most part is absent in the historical record, the oral history evidence provided the Court with an additional context within which to consider the evidence.
Discussion
The First Question
[314] The first question the Court has been asked to answer is:
Up to and including June 12, 1909 which of the Plaintiffs, if any, were entitled to the use and benefit of the lands comprising IR 139?
Having regard to the arguments raised by the parties, a consideration of the following matters is necessary:
1. The interpretation of the Indian Act definition of a "band".
2. Once an Indian Act band exists, under what, if any, circumstances does it cease to be a band within the meaning of the Act?
3. If a band for whom a reserve was set a side ceases to exist, what happens to its reserve?
4. When, if at all during the relevant time frame, did the Bobtail Band cease to exist?
The Statutory Definition of "band"
[315] Central to the Crown's defence in the Ermineskin and Samson actions and underlying Montana's claim is the assertion that the Bobtail Band ceased to exist prior to June 1909. The Crown also maintains that Montana did not become an Indian Act band until June 1909.
[316] These two assertions are grounded on the interpretation of the definition of "band" in the Indian Act the Crown urges the Court to adopt.
[317] The Crown submits that since this litigation concerns entitlement to reserve lands and the validity of a surrender, and the provisions of the Indian Act in relation to reserves and surrenders only apply to a "band" as specifically defined in the legislation and not to an anthropological band, it is important to understand the distinction between these two.
[318] Throughout the course of the trial, the term "band" was used in two senses, and, as is often the case during a long trial, a form of oral shorthand emerged to identify in what sense the term was being used. The parties used the expressions "small b band" and "big B Band". The former to refer to a band in the anthropological sense, and the latter to refer to a band as defined under the Indian Act.
[319] The Crown takes the position that "small b bands" are "bands in fact", but not in law. The Crown submits that an Indian Act band is a creature of statute (Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [2001] 4 F.C. 451 (F.C.A.) at paras. 14-15 and Kingfisher v. Canada (2000), 291 N.R. 314 (F.C.A.) at para. 6), and it is clear that a band as defined in the Act is not the same as an anthropological band. While anthropologists might recognize a group as an anthropological band, or, to use the Crown's expression, a "band in fact", that does not mean the same group would qualify as a band for the purposes of determining entitlement to a reserve.
[320] The term "band" was first defined in section 3.1. of the Indian Act, 1876, S.C. 1876, c. 18. Section 3.1. states:
The term "band" means any tribe, band or body of Indians who own or are interested in a reserve or in Indian lands in common, of which the legal title is vested in the Crown, or who share alike in the distribution of any annuities or interest moneys for which the Government of Canada is responsible; the term "the band" means the band to which the the relates; and the term "the band,"when action is being taken by the band as such, means the band in council.
[321] It is important to note that the definition of "band" found in the subsequent legislation in force within the relevant time period, namely, the Indian Act, 1880, S.C. 1880, c. 28, s. 2.1; the Indian Act, R.S.C. 1886, c.43, s. 2(d) - (f); and the Indian Act, R.S.C. 1906, c. 81, s. 2(d) remained unchanged.
[322] Before turning to the interpretation of the definition of "band" in the Act advanced by the Crown, it should also be noted that there has been no prior judicial interpretation of the definition as articulated in the legislation in force during the relevant period.
Submissions of the Parties
[323] The Crown takes the position that the definition of "band" contains both factual and legal criteria that must be met for a "tribe, band or body of Indians" to be a band in the statutory sense. The Crown submits that the definition has two components or parts with the second part having two alternatives. According to the Crown, the first part of the definition requires that the group qualify as a "tribe, band or body of Indians." Since the term "tribe" is not specifically defined in the Act , the Crown relies on two sources to give meaning to this term: predecessor legislation to the Act, namely, An Act to encourage the gradual Civilisation of the Indian Tribes in this Province, and to amend the Laws respecting Indians, S. Prov. Crown. 1857, c. 26 and Justice Simpson's reasons in Squamish Indian Band v. Canada, 2001 FCT 480 ("Mathias").
[324] In section II of An Act to encourage the gradual Civilisation of the Indian Tribes in this Province, and to amend the Laws respecting Indians, the term "tribe" is defined as including "any Band or other recognized community of Indians."
[325] In Mathias Justice Simpson considered the meaning of the term "tribe" at paragraph 18. She stated:
The documents, both before and after Confederation, make it clear that the term "tribe" was not given any specific meaning. It is common to see the word used broadly to describe a large group of Indians who spoke the same language, and narrowly to describe a smaller group in a single settlement. ... While the anthropologists agreed that a broad tribal consciousness may have existed in pre-contact times among people who spoke a common language or who came from a specific area, the evidence is clear that the concept of a tribe as a cohesive political and social unit evolved after non-native settlements were established.
[326] Justice Simpson went on to say that: "the word "tribe" would be used in the broad sense to describe a large group of Indians who spoke the same language."
[327] The Crown submits that the Court's comments in Mathias are simply of some assistance in determining the meaning of the term "tribe" given the lack of other judicial consideration of the word. The Crown notes that "tribe" in its broadest anthropological sense means a group of Indians who share a common trait such as language, However, they also submit that Justice Simpson's narrower post-contact definition of a tribe, a "smaller group in a single settlement" that is a "cohesive political and social unit", accords more consistently with the definition of tribe "as a band or other recognized community of Indians" found in the 1857 Act to encourage the gradual Civilisation of the Indian Tribes in this Province, and to amend the Laws respecting Indians. The Crown also submits that the term "tribe" would have been understood in its narrower sense as a reference to a "political and social unit" by the time of the enactment of the Indian Act.
[328] With regard to the phrase "body of Indians", the Crown points out that this phrase was not defined in the legislation nor has it been the subject of judicial interpretation. The Crown cites Jack Woodward's text Native Law, looseleaf (Toronto: Thomson Carswell, 1994) at page 18 where he states that "[t]o be a band, a particular group of Indians must first constitute a 'body'," and that the use of the word body "indicates organization or common cause in the affairs of government, in the same sense as in the expression 'body politic'."
[329] The Crown also cites the Concise Oxford Dictionary's (J. Pearsall, ed., The Concise Oxford Dictionary, 10th ed. (Oxford: Oxford University Press, 1999) definition of "body." This dictionary defines "body" as "an organized group of people with a common function." Relying on these two sources, the Crown argues that the term "body of Indians" corresponds with the more narrow definition of "tribe," referencing a group or community of Indians sharing a common interest or purpose.
[330] According to the Crown, this latter definition is consistent with the Concise Oxford Dictionary, supra, definition of the term "band" which is defined as "a group of people having a common interest or purpose or characterized by a common feature." Although "tribe" and "band" share a broad meaning, the Crown submits that it is more appropriate to narrowly interpret the term "band" as a reference to a recognized community of Indians sharing a common interest or purpose, which coincides with the definition of "body."
[331] Given the administrative purpose of the Indian Act and the general rules of statutory interpretation, the Crown submits that the narrower interpretation of the terms "tribe," "band," and "body of Indians" ought to be adopted. With respect to the general rules of statutory interpretation, the Crown refers to Sullivan and Driedger [R. Sullivan, ed., Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham: Butterworths, 2002) at 173], and their articulation of the associated words rule. The Crown also refers to R. v. Goulis (1981), 33 O.R. (2d) 55 (C.A.) at 61 where Justice Martin states:
When two or more words which are susceptible of analogous meanings are coupled together they are understood to be used in their cognate sense. They take their colour from each other, the meaning of the more general being restricted to a sense analogous to the less general.
[332] The Crown submits that since the terms "tribe" "band" or "body of Indians" are terms capable of analogous meaning, applying the rule of statutory interpretation as described above, the narrower construction of these words should be adopted; that is, these terms should be interpreted as meaning a "community of Indians sharing a common interest or purpose." Consequently, one element of the concept of a "band in fact" is that there is a collective, there is no band of one. The second element is common interest or purpose.
[333] The Crown also argues that this interpretation not only allows all three terms to be read in a logically analogous fashion, but also accords with the evidence of Dr. Van Dyke. He gave evidence that Plains Cree bands were small personalized communities.
[334] According to the Crown, the question of whether a "band in fact" exists can be evidenced in several ways. The Crown submits the fact that there is group of Indians living and working together on a reserve is evidence of the existence of a community of Indians sharing a common interest or purpose, and, therefore, is evidence of the existence of an anthropological band, or a "band in fact." As well, the Crown submits that the presence of a leader or a chief is another significant indicator as to the existence of a "band in fact." The Crown concedes that there is no requirement in the Indian Act that there must be a chief in order for there to be a band, however, the lack of a chief is one particular factor that can be used as evidence that there is no longer a band of Indians. The lack of a chief may indicate a lack of cohesiveness or community among the Indians.
[335] According to the Crown, for an anthropological band to be a "band in law", in addition to being a community of Indians who share a common interest or purpose, a "band in fact" must either own or have an interest in a reserve or in Indian lands in common, of which the legal title is vested in the Crown; or share alike in the distribution of any annuities or interest moneys for which the Government of Canada is responsible.
[336] The terms "reserve" and "Indian lands" are defined in sections 3.6. and 3.8. of the Act respectively. They read:
6. The term "reserve" means any tract or tracts of land set apart by treaty or otherwise for the use or benefit of or granted to a particular band of Indians, of which the legal title is in the Crown, but which is unsurrendered, and includes all the trees, wood, timber, soil, stone, minerals, metals, or other valuables thereon or therein.
8. The term "Indian lands" means any reserve or portion of a reserve which has been surrendered to the Crown.
[337] The Crown submits that in order to meet the reserve land requirement in the definition of band, the "tribe, band or body of Indians" must either own or have an inalienable right to occupy and possess reserve lands or Indian lands in common, the title to which is vested in the Crown. In support of their position, the Crown refers to the Supreme Court of Canada decisions in [1984] 2 S.C.R. 335">Guerin v. Canada, [1984] 2 S.C.R. 335 and to Osoyoos Indian Band v. Oliver (Town), [2001] 3 S.C.R. 746.
[338] In [1984] 2 S.C.R. 335">Guerin, supra, at page 379, Justice Dickson held that the interest of an Indian band in reserve land is the same as aboriginal title. He then went on to say at page 382 that:
Indians have a legal right to occupy and possess certain lands, the ultimate title to which is in the Crown ... The nature of the Indians' interest is therefore best characterized by its general inalienability, coupled with the fact that the Crown is under an obligation to deal with the land on the Indians' behalf when the interest is surrendered. Any description of Indian title which goes beyond these two features is both unnecessary and potentially misleading.
[339] In Osoyoos, supra, Justice Iacobucci also examined the nature of aboriginal interests in land. Concurring with Justice Dickson's comments in [1984] 2 S.C.R. 335">Guerin, supra, above, Justice Iacobucci states at paragraph 41 that the aboriginal interest in reserve land is "fundamentally similar" to the nature of aboriginal title, and at paragraph 42 that:
The features common to both the aboriginal interest in reserve land and aboriginal title include the facts that both interests are inalienable except to the Crown, both are rights of use and occupation, and both are held communally. Thus, it is now firmly established that both types of native land rights are sui generis interests in the land that are distinct from "normal" proprietary interests.
[340] Thus, the Crown submits that because the nature of the Indian "interest" in reserve lands is fundamentally similar to the nature of Indian title, both concepts are characterized by a generally inalienable right of occupation and possession, held in common. As a result, in order to meet the reserve land requirement of the definition of a "band," the group of Indians described as a "tribe, band or body of Indians" must either own reserve lands or surrendered reserve lands, or have an inalienable right to occupy and possess such lands in common.
[341] Even if a "band in fact" does not meet the reserve land requirement, it may still be considered a band within the meaning of the Act if the members of the band "share alike in the distribution of any annuities or interest moneys for which the Government of Canada is responsible."
[342] The Crown submits that the "sharing alike" requirement reinforces the communal nature of the interest. The Crown takes the position that this is not a reference to a sum of money that each individual band member is entitled to personally. Instead, it is an entitlement to share alike in the distribution of interest or annuity monies as a result of membership in the "tribe, band or body of Indians." The Crown emphasizes the "share alike" component of the definition, and submits that because of the inclusion of this descriptor, the annuity or interest monies must therefore arise out of membership in the community. For this reason, the Crown takes the position that the reference in section 3.1. to "annuities" is not to the distribution of treaty annuity monies since treaty annuity monies are an individual entitlement of a fixed amount, and are not dependent upon membership in a particular band. The Crown argues that since an individual in treaty is entitled to a specific sum of money regardless of the community to which he or she belongs, or whether he or she even belongs to a specific community, there is no sharing alike in treaty annuities. If a band were "sharing alike" in annuity money, each member would necessarily receive the same amount. However, chiefs and headmen are paid different amounts from other band members.
[343] In further support of their position, the Crown notes the reference in the definition to the distribution of interest monies. The Crown submits that "interest monies" logically implies payment from some sort of communal band account, and that this provides some insight with respect to the reference to annuity monies. The Crown likens the payment of annuities in the definition to payment of annuities in the investment sector. The Crown submits that their interpretation is further supported by the fact that this portion of the definition of a "band" was amended in 1951. Section 2(1)(a) of the Indian Act, 1951, 15 George VI, c. 29, (consolidated as R.S.C. 1952, c. 149) states: "(ii) for whose use and benefit in common, moneys are held by His Majesty..." The Crown suggests that this amendment was made to clarify the provision as stated prior to 1951.
[344] The Crown also drew the Court's attention to the case of [1977] 2 S.C.R. 897">Isaac v. Davey, [1977] 2 S.C.R. 897 which involved the appellants contending that the Six Nations Indians did not constitute a "band" within the definition of section 2(1)(a) of the Act. In considering whether the Six Nations Indians qualified as a "band" at the applicable time, the Court looked to section 2(1)(a)(ii) of The Indian Act, 1951. The Supreme Court of Canada found that there was clear evidence that moneys were held by the Crown for the use and benefit of the Indians of the Six Nations. Therefore, the Six Nations constituted a band under The Indian Act, 1951. In any event, in order to not fall under this provision, it was up to the appellants to plead the nonexistence of the trust fund and to prove that fact, which they did not do.
[345] The Crown submits that [1977] 2 S.C.R. 897">Isaac, supra, is helpful in the interpretation of section 3.1. of the Indian Act, 1876, and the meaning of "share alike in the distribution of any annuities or interest moneys for which the Government of Canada is responsible". The Crown submits it is significant that in determining whether the Six Nations Indians qualified as a band under the Act, the Court did not ever refer to the distribution of treaty annuities as capable of constituting monies held by His Majesty for the band's "use and benefit in common."
[346] Accordingly, the Crown argues that the reference to sharing alike in the distribution of annuity or interest monies in the definition of "band" is intended to reference the sharing of annuity and interest monies earmarked for band accounts held by the Government of Canada and not to the distribution of treaty annuities. The consequence of there being no band account for a specific band would, of course, mean that this component of the definition cannot be met.
[347] While Montana does not challenge the Crown's interpretation of the first part of the Indian Act definition of the term "band", Montana rejects certain aspects of what it refers to as the Crown's "arid, semantic analysis" of the definition including the implication that a band must have a leader to fit within the statutory definition. Montana submits that the importance of a leader or the departure of a leader to a band depends upon all of the circumstances, and the prevailing situation at any given time for any given band anywhere in Canada.
[348] Although Montana does not contest the Crown's submissions concerning the "reserve interest" aspect of the definition, Montana challenges the Crown's interpretation of the second criterion.
[349] Montana submits that the Crown has amended the definition by importing certain conditions or qualifications. First, Montana argues that there is no requirement in the definition for annuity monies to be earmarked and held by the Government in band accounts. Second, Montana submits that the Crown has altered the meaning or nature of the contemplated distribution of annuity or interest monies by converting the terms "share alike" from a verb into an adverb. The Crown submits that the monies are to be distributed on a "share alike basis." However, Montana argues that the definition says simply that the "tribe, band or body of Indians" need only "share alike in the distribution" of funds.
[350] As a result of this subtly altered meaning of the definition, Montana submits that the Crown is able to argue that the payment of treaty annuities is not what is meant by the provision, because treaty annuities are fixed amounts payable to individual Indians, and are not distributed on a share alike basis. Montana, however, argues that the definition merely speaks of the unqualified distribution of any annuities for which the Government is responsible.
[351] As well, Montana disputes that the reference to "any annuities" in the definition excludes treaty annuities simply because they are fixed amounts payable to individuals and are not distributed from a specific band account. According to Montana, the Crown neither presents evidence of any "communal" annuity nor demonstrates that Parliament contemplated the distinction between types of annuities with sufficient clarity to warrant rejecting a clear and plain reading of the phrase "any annuities or interest moneys" in the definition.
[352] Ermineskin submits that the Crown's narrow definition of a band imposes conditions that do not exist within the Indian Act itself. In its analysis of the first part of the definition of a "band", Ermineskin refers to the Collins English Dictionary, 3rd ed. (Harper Collins Publishers, 1992) at page 175 which defines a "body" as "a number of individuals regarded as a single entity; group: the student body; they marched in a body to London." Ermineskin also refers to Black's Law Dictionary, 7th ed. (St. Paul, Minn.: West Group, 1999) at page 167 where "body" is defined as "an aggregate of individuals or groups." Consequently, Ermineskin submits that the definition of "body" does not require a "recognized community" as the Crown argues. Instead, a "body of Indians" simply means an aggregate of individuals or a group of people.
[353] Ermineskin disputes the Crown's application of the narrow meaning of "tribe" as a "cohesive political and social unit" articulated by Justice Simpson in Mathias claiming that her remarks were particular to the Coast Salish peoples in a non-treaty context, and do not apply to the Plains Cree within the treaty environment. Further, no evidence was adduced in the present case that would permit an analogy to be drawn between the two groups.
[354] Ermineskin also submits that there is no requirement that the "tribe, band, or body of Indians" share a common purpose or interest insofar as it imposes a requirement that there exist a "real community of people living and working on the reserve." According to Ermineskin, a "tribe, band, or body of Indians" need only share those interests identified within the second part of the Indian Act definition itself, which does not include any requirement that band members live and work on-reserve. Further, individuals who do not live on-reserve continue to have an interest in the reserve.
[355] In support of this latter assertion, Ermineskin relies on the decision of the Supreme Court of Canada in Corbière v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 in which the Court found that "off-reserve band members" co-own their band's assets, and that the band's reserve "whether they live on or off it, is their and their children's land." As further support for its assertion, Ermineskin cites Justice Gibson's decision in Kingfisher, supra, where, at paras. 89 and 106, he stated that if it had been necessary to do so, he would have found invalid an Order in Council transferring administration of a particular reserve even though the band it belonged to had never settled on it.
[356] According to Ermineskin, to meet the statutory definition of a "band", it is sufficient if there is an aggregate or group (a body) of Indians having an interest in a reserve.
[357] Ermineskin does not dispute the Crown's characterization of the Indian reserve interest as being similar to an aboriginal title interest. However, they disagree with the Crown as to the timing of when an interest in an Indian reserve arises. While Ermineskin and the Crown appear to agree that a band acquires an interest in reserve land when a reserve is set aside for a particular band, the Crown asserts that the reserve interest does not arise until such time as the land is specifically surveyed for the band, that is, upon reserve creation. Ermineskin submits that a "reserve," as defined by section 3.6. of the Indian Act, arises at the time of the treaty, when the promise to a reserve is made, and is confirmed by occupation. In any event, this portion of the definition of "band" does not appear to be a contentious issue among the parties. None of the parties appear to disagree with the proposition that in order for a band to meet the reserve requirement of the definition, it must either own reserve lands or surrendered reserve lands, or have an inalienable right to occupy and possess such lands in common.
[358] Ermineskin concedes, for the reasons stated by the Crown, that the distribution of treaty annuity payments would likely not fall within this criterion of the definition of a "band."
[359] Samson submits that there is no "community" test for determining the continued legal existence of an Indian Act band once it has acquired legal, equitable or sui generis rights and interests recognized by Canadian law. Samson submits that it is not necessary to have a community living together to be an Indian Act band. Samson further claims that the Crown's "community theory" is not the proper test to determine whether a band exists or continues to exist. According to Samson, if there is a "community test", once a reserve has been set apart for a band, so long as there is a single surviving member of that band or issue of such member, there is a "band" or "community" entitled to the use and occupation of the reserve. Agreeing with Ermineskin, Samson argues that nowhere in the Indian Act is the entitlement of a band member to the use and occupation of the band's reserve dependent upon residence on the reserve. Samson also submits that the Crown's "community theory" ignores the fact that there are no provisions in the Indian Acts, 1876, 1880, or 1886 permitting either the band or the Canadian government to dissolve a band.
[360] With respect to the issue of leadership being an indicia of the existence of a "band in fact" Samson disputes the Crown's emphasis on the need to have a chief to prove a "band in fact." Samson submits that if the circumstances do not require a chief or a headman, the band will not create such a leader. In Samson's view, to allow the presence or absence of a leader to be a determinative factor is a Eurocentric view of Cree bands. Relying on Dr. Van Dyke's expert evidence, Samson argues that while leadership is important, it is not determinative. As Dr. Van Dyke states at page 30 of his expert report:
Compared to political structures typical of Euro-Canadian societies, the Plains Cree in the mid nineteenth century displayed political structures in which political authority was extremely decentralized. Such political structures are described ... as being examples of "acephalous" political organization, that is, literally "government without a head".
[361] In part, Samson also bases its position on a novel interpretation of the phrase "reputed to belong to a particular band" in the definition of "Indian" found in subsection 3.3. of the 1876 Act. An Indian is defined as:
First. Any male person of Indian blood reputed to belong to a particular band;
Secondly. Any child of such person;
Thirdly. Any woman who is or was lawfully married to such person:
[362] Specifically, Samson argues that even if the exclusions listed in section 3.3. could regulate the "internal membership" of a band that had entered treaty relations with the Crown, they could not affect the member-status of an irregular band who, as part of that band, had entered treaty and consequently acquired status as an "Indian" within the meaning of section 3.3. of the Act by being persons of Indian blood "reputed to belong to a particular band."
[363] Samson did not take a position regarding either aspect of the second part of the definition of band.
When does an Indian Act Band Cease to be a Band and What Happens to that Band's Reserve Interest?
Submissions of the Parties
[364] As noted earlier, the Crown maintains that the Bobtail Band ceased to exist prior to 1909. This raises two additional questions; when does an Indian Act band cease to exist and what happens to the reserve interest of a band that has ceased to exist.
[365] With regard to the first question, the Crown notes that there is a scarcity of jurisprudence on the issue of when an Indian Act band ceases to exist. As well, the Act itself is silent on this question. According to the Crown, this may be attributed to the fact that the Indian Act at the time in question was based on the assumption that "there was probably more stability in these bands that there actually was" and that, to some extent, the Act "assumes that once there is a band there will always be a band." The Crown suggests that this is an example of legislation being superimposed on an existing system of social organization, namely, band society.
[366] However, the Crown takes the position that as a creature of statute a band can only continue to exist as long as it continues to satisfy the dual criteria in the definition. When a band no longer meets one or both of the criteria, it ceases to be an Indian Act band. For this reason, the Crown maintains that it is necessary to consider the facts in each case to determine if both criteria of the statutory definition are met.
[367] In terms of the second question, the Crown notes that Canadian courts have not yet decided the matter of what happens to a reserve when the band for whom it was set apart ceases to exist nor does Treaty 6 provide for the circumstance of a band ceasing to exist. As an aside, it may be suggested that Papaschase Indian Band No. 136 v. Canada (A.G.), [2004] 4 C.N.L.R. 110 (Alta. Q.B.) at para. 169 represents one such case. Without providing reasons for the comment, Justice Slatter stated that "... when a Reserve is lost, it is likely that a Band will be lost as well, and the opposite is true."
[368] According to the Crown, during the 1830s some treaties in the United States addressed this matter and stated that Indians' right to land continued as long as the "tribe" continued to exist as a nation (F.S. Cohen, Felix S. Cohen's Handbook of Federal Indian Law, 1982 ed. (Charlottesville: Michie Bobbs-Merrill, 1982) at 475). The Crown also notes that the Court of Appeal in Kingfisher, supra at paras. 6-7, held that when the terms "reserve" and "band" were used during the course of negotiating and signing Treaty 6, those terms were used as defined within the Indian Act, 1876, which was in force at that time. The Crown submits that since neither the Indian Act, Treaty 6, nor the jurisprudence in Canada provides guidance as to what happens to a band's reserve when the band itself ceases to exist, it is appropriate to consider other areas of law, namely trust law and property law, in search for analogous principles that may apply to the facts of this case.
[369] Although the jurisprudence has characterized the relationship between Aboriginal peoples and the Crown as "trust-like" and has rejected as inappropriate the strict application of trust law, the Crown submits that it is helpful to consider principles from the law of trusts when examining the "extraordinary circumstances" at issue in the present case ([1984] 2 S.C.R. 335">Guerin, supra, at 386). In doing so, the Crown reviews the three parties to a trust: the settler, the trustee (who may be the same as the settler), and the beneficiary; and the three certainties that are essential to a valid trust: certainty of intention, certainty of subject-matter, and certainty of object. (D.V.M Waters, The Law of Trusts in Canada, 2nd ed. (Toronto: Carswell, 1984) at 91-128) The Crown describes the objects of a trust as "the person or purpose" of the trust and states that trust objects must be ascertainable; if the object of the trust ceases to exist, the Crown claims, the subject matter of the trust results back to the settler. Similarly, the Crown states that if the intention of the trust cannot be realized, there is no certainty of intention and the trust lapses, with the subject matter returning to the settler.
[370] By way of further analogy, the Crown suggests that the interest that bands hold in their reserves are quasi-proprietary in nature. Therefore, the Crown submits, it is helpful to consider the law of property in making sense of the circumstances at issue in this case. The Crown submits that the grant of interest in a reserve to a particular band is a grant of exclusive use and occupation; such a grant is less than a grant in fee simple because the grantor retains the legal title to the estate and has a right of reverter, meaning that when the grantee's interest in the particular estate expires, the estate returns to the grantor. (Bruce Ziff, Principles of Property Law, 2nd ed. (Toronto: Carswell, 1996) at 204) Applied in the Aboriginal law context, the Crown alleges that the Crown's grant of an interest in a reserve to a particular band is a grant of exclusive use and occupation which, while less than a grant in fee simple (the title to which remains with the Crown), nevertheless represents a "perpetual usufruct" (Blueberry River, supra, at para. 25). The grant is for part of the estate not the entire estate. As support for this line of reasoning, the Crown refers to treaties in the United States in the 1830s noted earlier, in which there was an acknowledgement that if a band ceased to exist its interest would revert back to the government, who would then hold the fee simple title free from any other interest.
[371] Montana does not dispute the Crown's conclusion that the tract of land continues to be Crown land. However, Montana submits that as long as the Crown takes no action inconsistent with the land's possible use as a reserve, it remains available for the Crown to fulfill its obligation to provide another band with a reserve. More specifically, Montana claims that because reserves are creatures of statute, the Indian interest in reserve land attaches as a result of and at the time the Crown sets apart the land as a reserve. Montana further alleges that this interest or "burden" attaches to the Crown's fee simple title and is not dependent upon whether the band for whom the reserve was set apart actually exercises its right to use that land. According to Montana, once a tract of land is set apart it gains a new character by becoming "reserve land".
[372] From this, Montana extrapolates further that if a band ceases to exist, a surrender of its reserve becomes impossible. At that point, Montana submits, the only way the tract of land formerly set apart for that band can lose its character as "reserve land" is if the Crown sheds the "burden" or Indian title that attached to the land when it was set apart as a reserve. Until then, Montana alleges, the land remains "reserve land" that can, at the Crown's discretion, be set apart for another band once the original band ceases to exist. As support for this novel argument, Montana refers to both the Trial Division and Court of Appeal judgments in Kingfisher, supra, arguing that neither decision questions the power or ability of the Crown to extinguish a reserve in certain circumstances, even if the matter of whether this would be permissible in law remains subject to scrutiny.
[373] Montana relies on Osoyoos, supra, at paras. 41-42, for the proposition that Aboriginal interest in reserve land is fundamentally similar to Aboriginal title in that both interests are inalienable except to the Crown, both are rights of use and occupation, and both are held communally. Montana argues that once a tract of land is burdened with a sui generis Indian interest, it is subject to a permanent right of use and benefit, even though the fee simple title to that land remains vested in the Crown.
[374] Montana further argues that because title remains with the Crown, it can assert or re-assert its title, encroaching on or diminishing the Indian interest to the extent permissible by law. Montana further suggests that the Crown can "shed the burden it voluntarily assumed and restore its "unencumbered fee simple estate" provided it has demonstrated a clear and plain intention to do so." Finally, Montana claims, the Indians themselves can diminish or surrender to the Crown in whole or in part their interest in reserve lands; this must, however, be done according to the relevant provisions in the Indian Act, R.S.C. 1886, sections 38 and 39.
[375] In response to Montana, the Crown argues that because an interest in an Indian reserve is a collective interest of a particular band, if the band "fails," or ceases to exist, by necessity the reserve interest also fails. The Crown also rejects Montana's claim that a reserve could be set aside for another band after the band for which it was originally surveyed and set apart ceased to exist. In particular, the Crown denies that it is possible for a band to gain an interest in a reserve by default simply because the original holder of the interest no longer exists. Similarly, the Crown disputes the suggestion that once a reserve is set aside for a band it remains a "reserve" preserved for the exclusive use of Indian peoples even if the band for which it was set aside ceases to exist, noting that Montana fails to identify who these "Indian people" are.
[376] The Crown further alleges that counsel for Montana, in their reading ofOsoyoos, supra, blur the line between Aboriginal interest in reserve lands and Aboriginal title and make references that are inconsistent with existing authority. Noting Montana's references to "Indian title to reserve", the Crown states that the Supreme Court of Canada in Osoyoos, supra, did not identify an Aboriginal interest in reserve lands, which, according to the Crown, arises at the time that a reserve is set aside for a particular band, as identical or equivalent to Aboriginal title, which arises as a result of exclusive Aboriginal occupation at the time of sovereignty, as set out in Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 at paras. 143-144. The Crown submits that Aboriginal title is not an issue that is engaged in this trial nor needs to be determined.
[377] With regard to the Crown's submissions concerning when a reserve interest arises, Ermineskin submits that this does not mean that a band does not have a reserve interest until land is specifically surveyed for it; in this regard, Ermineskin notes that the cases upon which the Crown relies in making this argument, namely, [1984] 2 S.C.R. 335">Guerin, supra, and Osoyoos, supra, involved non-treaty Indians. However, Ermineskin points out that this case involves bands that were adherents to Treaty 6, the terms of which expressly indicated that reserves would be set aside for the member-families of treaty bands.
[378] Moreover, Ermineskin claims that not only does the definition of "reserve" in section 3.1. of the 1876 Indian Act state that reserves could be "set apart by treaty", but it also demonstrates the importance of the words expressed at the time that Treaty 6 was signed. Ermineskin submits that the promises made during the signing of the Treaty and those set out in its written text warrant a "large and liberal interpretation" and ought to be read "as the Indians would have understood them". On this basis, Ermineskin argues that the Indian Act definition of "reserve" arose at the time of treaty, when the promise was made, then was confirmed by occupation. Ermineskin cites the Court of Appeal decision in Kingfisher, supra, at paras. 5-6 to argue that the Crown's position in this regard is contrary to existing law in that if treaties are entered into with Indian Act bands as the Court in that case held, then a body of Indians became a band within the meaning of the Act by virtue of entering into or adhering to treaty.
[379] Finally, Ermineskin alleges that a band's interest in its reserve, held by the band's members, has always "received the strongest protection under the law". According to Ermineskin, the Indian Act provided that the interest of a band and its members in the band's reserve could not be alienated except through a formal surrender that received the band's assent in accordance with sections 38 and 39 of the Act. Ermineskin argues that the Cree Indians' interest in their reserves was and continues to be protected by the terms of Treaty 6.
[380] Without citing specific evidence or authority, Samson alleges that once a band has had a reserve set apart for it and has acquired the legal, equitable, or sui generis rights in that land, and as long as a single member of the band or a band member's issue is alive, there exists in law a band or community entitled to the use and occupation of that reserve. As mentioned earlier, Samson submits that the Crown's theory also ignores the fact that the various Indian Acts do not make a band member's entitlement to use and occupy the band's reserve dependent on whether the member lives on-reserve or as part of a "recognized community." Samson claims that as long as band members did not leave Canada without the consent of the Superintendent General of Indian Affairs, they could live alone or off-reserve, return once per year to collect treaty annuities or not return for years, then later return to reside on the reserve. According to Samson, their entitlement to the reserve remains intact in either case.
[381] Samson further argues that the Crown's theory overlooks the fact that there was nothing in the 1876, 1880, or 1886 versions of the Indian Act that would allow either a band or the government to dissolve an Indian band. According to Samson, the only way that a band could cease to exist was if all of its members died without issue; if all the surviving members and their issue became enfranchised; or if all surviving members who were not enfranchised and their issue transferred into other bands after July of 1895 with the consent of Canada and of the bands into which they were transferring.
When, if at all, during the relevant time frame, did the Bobtail Band cease to exist?
[382] Since all of the parties agree that by the fall of 1885 the Bobtail Band was an Indian Act band, a discussion as to when it became an Indian Act band is unnecessary.
Submissions of the Parties
[383] The Crown states that by the time that IR 139 was surveyed in 1885, the Bobtail Band was already greatly reduced in size from when Chief Bobtail first adhered to Treaty 6 in 1877. The Crown alleges that the Bobtail Band dispersed altogether after the survey in 1885 with different members choosing different paths until there was no longer a recognizable community of Indians sufficient to qualify as a band in fact. The Crown claims that this occurred by as early as April of 1886, but that it had ceased to be a band in the anthropological sense by 1890 at the very latest, after which there were no further references to the Bobtail Band in paylists and census records.
[384] The Crown maintains that the Plaintiffs bear the initial burden of proving their claims to IR 139 in fact and in law. Samson and Ermineskin's allegation that the Bobtail Band continued to exist from either 1877 or 1885 up to and including June of 1909 involve questions of mixed fact and law. To the extent that each plaintiff must establish the factual component of their case on a balance of probabilities, the Crown takes the position that both Samson and Ermineskin failed to discharge their burdens of proving on the evidence that the Bobtail Band existed throughout the period in issue.
[385] The Crown acknowledges that although this case is based on documentary evidence, the expert opinion evidence given at trial is also critical. In this respect, the Crown points to the evidence of Dr. Carter who stated that there was no Bobtail Band after 1887. The Crown also relies on the evidence of Dr. Ens who testified that there was no Bobtail Band by 1890 at the latest. From this, the Crown argues that Samson and Ermineskin have failed to establish an essential element of the case they had to make, namely, that there was still a Bobtail Band in fact throughout the period in issue. Instead, the Crown alleges that both Plaintiffs are asking the Court to draw inferences from scattered references in the documentary evidence without having called any expert witnesses to state that in their professional opinion, the Bobtail Band continued to exist at the time in question.
[386] In the Crown's submission, evidence that some members of an alleged band were off-reserve is not fatal to its existence in fact or in law. According to the Crown, the issue is whether there continued to exist a recognized community that shared a common interest or purpose.
[387] With regard to Ermineskin's and Samson's reliance on the Order in Council of 1889 confirming IR 139 as evidence of the existence of the Bobtail Band at that point in time, the Crown takes the position that an administrative action such as the Order in Council does not affect the underlying basis for claiming the existence of an Indian Act band. In other words, the Order in Council could not have made a band in law where there was no anthropological band or band in fact. Similarly, in the absence of evidence that a community of Bobtails continued to exist as a collective with a common purpose or interest, the June 1909 agreements could not and did not factually constitute or reconstitute the Bobtail Band.
[388] With respect to the "sharing alike" provision of the Indian Act definition, the Crown submits that there is no evidence that the Government of Canada was ever responsible for monies that were distributed on a share-alike basis and that were specifically earmarked for the Bobtail Band. The only funds Crown agents distributed to Chief Bobtail and his followers were the yearly treaty annuities, which the Crown claims were individual in nature and neither distributed nor intended to be distributed on a share-alike basis. As support for this argument, the Crown refers to the text of Treaty 6 which stated that individual band members were to receive a certain fixed amount while headmen and chiefs were to receive different fixed amounts in yearly annuities under treaty. According to the Crown, there is no evidence that the Bobtail Band ever met the annuity and interest money criterion of the Indian Act definition of a band.
[389] Montana maintains that the evidence in this case leaves no doubt that the Bobtail Band existed as a band within the meaning of the Indian Act until 1885 or 1886. Neither is there any doubt, according to Montana, that the Bobtail Band ceased to exist; the question is when that happened.
[390] Montana submits that the Bobtail Band ceased to exist as a result of events that took place between 1885 and 1887. First, Montana alleges, many, if not most, band members withdrew from treaty, while many others left the area and disappeared from Department records. Montana further claims that those Bobtails who remained joined the Samson and Ermineskin Bands by 1887 and were paid annuities and enjoyed other entitlements as members of those Bands from that time forward. With respect to the readmittees, Montana submits that although they were permitted to live on the Samson and Ermineskin Reserves, they formally renounced any entitlement that they may have had to annuities or to IR 139 and, therefore, were no longer members of the Bobtail Band or entitled to any interest in the Band's reserve. Neither did the remaining Bobtails who joined Samson and Ermineskin continue to have or take with them any interest in IR 139.
[391] In rejecting allegations that the Bobtail Band ceased to exist before June of 1909, Ermineskin advances two positions. First, Ermineskin submits that the readmittees should have been restored to status and that they continued to hold an interest in the assets of the Bobtail Band just as the many Bobtail Band members who never left treaty, including the Bobtail remnants, also remained entitled to share in the Band's money and reserve land interests. Second, Ermineskin advances the alternative argument that if Court finds that the "Bobtail remnants" were validly transferred into the Samson and Ermineskin Bands in the fall of 1887, then the latter Bands became successors in interest to the Bobtail Band and to its entitlement to IR 139. Ermineskin, like Samson, relies on Blueberry River, supra, and Kingfisher, supra, in advancing its arguments in this respect. Similarly, Ermineskin submits that whether the Bobtail Band had a leader after Chief Bobtail was discharged from treaty did nothing to alter its continued existence as a "band at law."
[392] According to Ermineskin, the remaining Bobtails were a band with a continuing interest in the Bobtail Reserve, not merely a "collection of people," as the Crown alleges; nor has the Crown brought evidence to substantiate a finding to the contrary. The fact that several Bobtails who remained in treaty lived off-reserve but returned to collect their yearly annuities is, in Ermineskin's view, further evidence that the band continued to exist and that its members did not have to be living and farming together on-reserve to retain their membership in the Bobtail Band or their interest in its reserve.
[393] With respect to the discharges, Ermineskin submits that Chief Bobtail was discharged with the understanding that the rest of his Band would remain in treaty and continue to own IR 139. Further, Ermineskin argues, the very fact that there is a paylist for the Bobtail Band after Chief Bobtail's discharge in 1886, is "strong evidence" that the Band continued to exist.
[394] Rejecting the validity of the alleged transfers in 1887, Ermineskin submits that there is no evidence that any of the "remnants" gave their informed consented to being transferred, nor that either the Samson or Ermineskin Bands consented to their transfer until June of 1909. Ermineskin denies allegations by Montana and the Crown that being accepted by fellow Cree in other Bands meant that the Bobtails who remained in treaty formally transferred into those Bands. Ermineskin argues that an act of administrative convenience could not dissolve the Bobtails as an Indian Act band. Nor, in Ermineskin's submission, could it divest the Band of its property rights absent legal authority involving a clear and plain intention on the part of the Crown or an expression of the collective will on the part of the Bobtail Band.
[395] With respect to the "readmittees," Ermineskin claims that there is no authority for finding that the Crown could have granted conditional or limited treaty status to individuals whom it readmitted to treaty. Ermineskin further alleges that until 1951 when the Indian Act was amended to include a class of Indians who were not members of any given band, all Indians were concurrently and by definition members of an Indian band. Therefore, Ermineskin alleges, the Bobtail "readmittees" regained their status as Indians after being readmitted to treaty. Moreover, because there was no other band to which they could have belonged, Ermineskin argues that they were once again members of the Bobtail Band regardless of whether the Crown recognized them as such.
[396] In addressing the Crown's submission that the Bobtail Band ceased to exist by 1890 at the latest, Ermineskin claims that 1890 is nothing more than a date of convenience and is unsupported by the evidence before the Court. According to Ermineskin, if the Bobtail Band continued to exist until 1890, there is no basis for finding that it ceased to exist before June of 1909 because nothing about the Band changed during this time. Ermineskin submits that not even the occupation by the Montana deportees of a portion of IR 139 affected the legal status of the Bobtail Band or its Reserve. In Ermineskin's submission, there was a body of Indians with a continuing interest in a reserve that met the Indian Act definition of a band, as evidenced by the Crown's own repeated references to the Bobtail Band and the Bobtail Reserve during this time. In particular, Ermineskin alleges that in numerous letters, Annual Reports, and inspection reports Department officials referred to IR 139 as belonging to the Bobtail Band, even though in other instances the materials contained references to the Montana Cree and the Montana Reserve or reflect a confusion on the part of certain officials as to the connection, if any, between the Bobtail and the Montana Indians and IR 139. According to Ermineskin, it is reasonable to conclude from the many such references that Department officials saw IR 139 as vested in the members of the Bobtail Band throughout this period.
[397] Ermineskin maintains that once a band had an interest in a reserve, that interest was to be protected under the terms of Treaty 6. Therefore, extinguishing the Bobtail members' interest in IR 139 by alleging that the Band had dissolved or otherwise disappeared and abandoned the reserve requires strict proof. According to Ermineskin, the Crown must either demonstrate that there had been a clear and plain intention to extinguish that interest through, for example, specific legislation or that a valid surrender had been completed in accordance with the procedure set out in sections 38 and 39 of the 1886 Indian Act. In Ermineskin's submission, this did not happen. Ermineskin, like Samson, notes that when the Cree signed Treaty 6, they were specifically promised that their reserve interests would not be lost without their consent.
[398] Regarding Montana's arguments about reserves being creatures of statute and reserve lands being set apart for the exclusive use of all Indians and not for the use and benefit of a specific band, Ermineskin notes that the definition of "reserve" itself indicates that Indian reserves are set apart for "particular bands." (Indian Act, S.C. 1876, c. 18, section 3.6.) Given that the Bobtail Reserve was surveyed in 1885, Ermineskin questions for which band IR 139 could have been confirmed by the 1889 Order in Council if the Bobtail Band had ceased to exist by 1886 or 1887 as Montana and the Crown allege. In this way, Ermineskin argues that Montana's position with respect to reserve interests and reserve creation lacks legal authority and does not support the argument that the Bobtail Band ceased to exist or that its members lost their interest in IR 139. Nor, Ermineskin submits, did the Crown have the authority to unilaterally hand the reserve over to another band, as Montana claims. In fact, Ermineskin alleges, this is precisely the reason the Crown sought a surrender from the Bobtails in 1909.
[399] Finally, Ermineskin argues that if one accepts the arguments advanced by Montana and the Crown that the Bobtail Band ceased to exist in 1887, then the Crown at that time ought to have sought a formal surrender from the Band members of their collective interests in IR 139. According to Ermineskin, "where the effect of a series of transfers is to deplete the membership of the entire Band, no transfer, formal or otherwise, can possibly... deprive the Band of its interest in its reserve." In Ermineskin's submission, to find otherwise would be to permit the Crown, in effect, to destroy the Bobtail Band so that the Crown could claim for its own benefit the Band's reserve. Such an outcome would be entirely inconsistent with the role of the Crown as fiduciary in relation to the Bobtails' Indian interest in their reserve. Until 1982, Ermineskin argues, the Crown could only extinguish the rights of Aboriginal peoples by expressing its clear and plain intention to do so with the onus of proving it resting with the Crown. (R. v. Sparrow, [1990] 1 S.C.R. 1075 at 1099; Osoyoos, supra at para. 47) Ermineskin submits that the Crown has not discharged this burden and cannot have extinguished the rights of the Bobtail Band or its successors in the Bobtail Reserve.
[400] Samson disputes the two premises that it claims underlie the arguments advanced by the Crown and Montana with respect to the existence of the Bobtail Band. First, the Crown and Montana claim that the Bobtail Band ceased to exist between 1887 and 1890; Samson claims that this position is wrong in law and unsupported by the evidence. Second, the Crown and Montana maintain that the Bobtail interest in IR 139 ceased to exist by 1890; Samson submits that this position is wrong in fact and in law.
[401] Samson maintains that even after the Bobtail Band became an Indian Act band, the Band's membership continued to be "governed by Cree custom and practice". Samson argues that members of the Bobtail Band who joined the members of the Samson and Ermineskin Bands did not lose their membership as Bobtails. Instead, according to Samson, they became Samson-Bobtails and Ermineskin-Bobtails, retaining their reserve interest and other rights under treaty, and acquiring dual band membership.
[402] Samson further argues that the Indians who became Samson-Bobtails and Ermineskin-Bobtails acquired dual band membership before 1895 and therefore were not "transferees" into the Samson and Ermineskin Bands. Samson submits that even if they were transferees, their interest in IR 139 was not terminated by the enactment of section 140 of the Indian Act in 1895. According to Samson, section 140 could no sooner end their continued interest in the reserve lands and moneys of the Bobtail Band than could the division of the Beaver Band in Blueberry River, supra, end the rights that the members of the two successor bands had to the reserve lands of the original Band.
[403] Similarly, Samson argues that the Samson-Bobtail and Ermineskin-Bobtail satisfy the analysis required by the Federal Court of Appeal decision in Kingfisher, supra: first, the ancestors of the Samson-Bobtail were members of the Bobtail Band within the meaning of the Indian Act and second, they did not cease to be Bobtail members because of any provision in the Indian Act. From this, Samson alleges that as long as the Samson-Bobtail and Ermineskin-Bobtail were entitled to share in and exercise the Bobtail Band's legal, equitable, or sui generis interest in IR 139, the Bobtail Band could not legally cease to exist before 1890 or thereafter.
[404] Samson also advances the position that the Bobtail Band was not merely a creation of the Indian Act, but a traditional Cree band with an existence prior to the enactment of that legislation, as evidenced by the historical record and expert opinion evidence, particularly that of anthropologist Dr. Van Dyke.
[405] Moreover, Samson alleges, the Crown led no evidence that the community of Bobtails changed between 1886 and 1890 nor that it disappeared during that time. Samson argues that absent any evidence that before or after 1890 the Bobtail Band legally ceased to be the "community" it was in 1885 and 1886, there is no basis for this Court to find that it ceased to exist. Similarly, in alleging that the Crown's "community theory" is not the test of a band's continued existence, Samson further alleges that the Crown's theory ignores the legal reality of both the 1885 survey of IR 139 and the 1889 Order in Council that confirmed it as that set apart for the Bobtail Band.
[406] Samson submits that if there is a "community" test, the question it must answer in the particular circumstances of this case is not whether there is evidence of a "community" of Bobtails after 1890, but whether the community that legally existed in 1885, when IR 139 was surveyed and set apart for the Bobtail Band, and in 1889, when the Bobtail Reserve was confirmed by Order in Council, ceased to exist in legal terms at some later date. As noted earlier, Samson alleges that as long as band members stayed in Canada or obtained the consent from the Superintendent General if they left, they could live off-reserve and either return yearly only to collect annuities or not return for years then return to live on-reserve and in either event continued to hold an interest in the band's reserve by virtue of their membership. In applying its argument to the facts of this case, Samson refers to the report of Agent Lucas, who stated that 101 persons remained after Chief Bobtail and other individuals had left treaty in 1886. Alleging that the Crown only cited part of what Agent Lucas had written, Samson claims that the only land that Agent Lucas could give those who wished to farm south of the Battle River was land on IR 139.
[407] Samson submits that the Crown's community theory requires proof that a band had dissolved because its members and their issue had either died or been enfranchised. Samson further submits that there is no evidence that all members of the Bobtail Band who remained in 1885 and 1886 died without issue or were enfranchised. Instead, Samson alleges the evidence indicates that there were members living on or near the Bobtail Reserve in 1887, 1896, 1901, and 1909. In addition, Samson maintains that even after Chief Bobtail was discharged from treaty, the Department of Indian Affairs did not understand the Bobtail Band to have legally disappeared on the basis that its remaining members transferred into the Samson and Ermineskin Bands. In particular, Samson submits that among other examples, evidence of Chief Bobtail "claiming money on his land" in 1893 and that vagrant Indians reportedly belonging to Peace Hills be "sent back to their Chief 'Bobtail'" who had been allowed "to return to his Reserve with most of his band" support a finding that the Bobtail Band continued to exist throughout the period in issue.
[408] Samson also relies on the Order in Council of May 17, 1889 confirming that IR 139 was set apart for the Bobtail Band, noting that at least two of the men present at the Privy Council meeting in which that Order was passed knew that the Bobtail Band continued to exist.
[409] Samson also takes the position that an administrative action, namely, placing the remaining Bobtails on the paylists of other Bands, nor the Department's refusal to pay other Bobtails such as the "readmittees," could have erased their communal interest in IR 139.
[410] Samson submits that it is possible to analogize from the facts in Blueberry River, supra, to the facts in this case. Samson argues that just as the Beaver Band in Blueberry River, supra, had surrendered its reserve and subsequently divided into two bands, each of which were found to have a continuing collective interest, the Bobtail Band underwent a de facto division before 1890 with the Samson-Bobtails and the Ermineskin-Bobtails having a continuing interest in the Bobtail Reserve. Samson cites the Court of Appeal's findings that "an individual member of a band has an interest in association with, but not independent of, the interest of the other members" and that "the statutory right of use and benefit of reserve lands was a collective right in common conferred upon and accruing to the band members as a body and not to the band members individually" (Blueberry River, supra, at paras. 16 and 3). In advancing the argument that just as the remedies in Blueberry River, supra, accrued to the "two successor bands," Samson claims that any remedies related to the "surrender" of IR 139 in this case accrue to the Bobtails who can be traced through to Samson and Ermineskin.
[411] Samson submits that unless Bobtail members who came to reside with and were accepted into a related band was subject to a "statutory abrogation or expropriation of [their] legal rights," they continued to share a right to the reserve lands and moneys of the Bobtail Band in addition to the rights to reserve lands and moneys that they held communally with other members of the band with which they went to live.
[412] Samson also refers to the rules of statutory interpretation as support for the argument that section 140 of the 1895 Indian Act could not have applied retroactively and that such "double entitlement" was a "perceived defect or oversight in the law," which section 140 was intended to rectify (S.G.G. Edgar, Craies on Statute Law, 7th ed. (London: Sweet and Maxwell, 1971) at 395-403; Ruth Sullivan, Sullivan and Dreidger on the Construction of Statutes, 4th ed. (Markham: Butterworths, 2002) at 201). Samson argues that because the remaining Bobtails were administratively "transferred" in 1887, section 140 did not alter their continuing interest in IR 139. Nor, according to Samson, did the Bobtails' interest cease to exist as a result of the Indian Agent's failure to pay annuities to the "readmittees".
[413] According to Samson, the Crown recognized the Bobtails' dual entitlement when it sanctioned Samson's and Ermineskin's continued use of IR 139 after 1886 and when the Crown created the Bobtail Reserve trust account with respect to the proceeds of the 1891 right-of-way "surrender" and used those trust monies in 1892 to purchase a grist mill for use by the Agency, including Samson and Ermineskin. Samson claims that if there was no dual entitlement, by performing each of these acts, the Crown would have been in breach of its fiduciary duties to the Bobtail Band and its members, who were known to the Agents at the time.
[414] Samson further submits that regardless of whether some members of the Bobtail Band were being paid treaty annuities on other band paylists at that time or that other members were not being paid annuities at all, at no material time was the Reserve vacant; nor did control of it pass to the Department, free of the Bobtails' interest, as Montana alleges. According to Samson, only Parliament could have expropriated the pre-existing legal, equitable, or sui generis rights of the Bobtails to IR 139. Samson submits that this never happened.
[415] In light of the promises made by Lieutenant Governor Morris during the signing of Treaty 6 and the principles articulated by the Supreme Court of Canada for interpreting and applying those promises, Samson claims that the Bobtails' rights and interests in IR 139 continued to exist after 1887 when the alleged "transfers" took place; after July of 1895 when section 140 was introduced; during the winter of 1896-1897 when the Montana deportees arrived in the Agency; in 1901 when part of IR 139 was allegedly surrendered by the Montanas; and in June of 1909 when the alleged "surrender" agreements were signed.
[416] Samson claims that the same legal and historical background applies to this case as applied in Kingfisher, supra at para. 108, in which Justice Gibson could not find that the band in that case had ceased to exist "without clear and convincing proof, in the absence of any decision by the band to surrender the Reserve." According to Samson, there was no such clear and convincing proof by the Crown that the Bobtail Band had ceased to exist in 1896, 1901, or 1909.
[417] Samson alleges that government agents had knowledge that the Bobtails continued to reside on or near IR 139 during that time; moreover, Crown agents could have discovered who and where the remaining Bobtails were at all material times.
[418] Finally, Samson alleges that the Crown misstates trust law by implying that the "trust" over IR 139 failed because the object of that trust had ceased to exist. Samson submits that the object of the trust in this case is the Reserve itself which, like other reserves, was held for the use and benefit of the Indians for whom it was set apart and which, in Samson's view, did not cease to exist. Samson further disputes the notion that when the Bobtail Band ceased to exist, the trust over IR 139 lapsed. Samson contends, that the Reserve continued to be held for the Bobtail Band as confirmed by Order in Council and as recognized by the Department of Indian Affairs and its Special Agent, Reverend John McDougall with respect to the June 12, 1909 surrender.
[419] Samson submits that as long as the Bobtail Band had a legal existence, IR 139 did not "result" back to the Crown. Samson further argues that the law with respect to reserve land under treaties in Canada differs from the law in the United States, and for this reason the Crown's reference to US treaties in Cohen's Handbook of Federal Indian Law has no application to the facts of this case. According to Samson, unlike in the U.S., IR 139 was never held by the Bobtail Band in fee simple. Instead, it was and continued to be held by the Crown in trust for the Bobtail Band. In Samson's view, the reserve could not have escheated to the Crown because the band for which it was set apart did not cease to exist.
[420] In response, the Crown alleges that Samson "muddies the legal water" by mixing up fact and law. In particular, the Crown rejects the implication that once a band exists in law, it can never disperse; that no consequences would follow from a band's dispersal; and that there is no evidence that the Bobtail Band dispersed. The Crown submits, that the expert opinion evidence of Drs. Carter, Ens, and Beal support a finding that the Bobtail Band ceased to exist, and no witness gave evidence at trial to support Samson's argument that there can be a band in fact with only one member. While the Crown alleges that a band was likely able to formally dissolve itself under the Indian Act, this does not appear to have been true of the Bobtail Band which, according to the Crown, "simply dispersed".
[421] The Crown further alleges that neither Samson nor Ermineskin led any oral history evidence with respect to the Indians' understanding of those parts of Treaty 6 that dealt with reserve selection. In the absence of any such evidence or any jurisprudence on point, the Crown disputes Ermineskin's reliance on the terms of the treaty itself as grounds for the submission that it should be read as the Indians understood it and for finding that the Bobtail Band's reserve interest arose at the time of Treaty adhesion and was merely confirmed by occupation. According to the Crown, this approach ignores existing jurisprudence with respect to reserve creation, including Ross River Dena Council Band v. Canada, [2002] 2 S.C.R. 816, which counsel for Ermineskin cite in response to Montana and the creation of its reserve. Similarly, the Crown rejects Ermineskin's reference to the comments of Justice Rothstein in Kingfisher, supra, on the basis that they are obiter. As well, although it is not clear whether he was referring to an anthropological band, he made it clear in his reasons that the Treaty is with a band, which is a creature of statute. In the Crown's submission, what is clear from the decisions in both Kingfisher, supra. and Blueberry River, supra, is that being an Indian Act band requires more than just adherence to treaty. Nor, the Crown argues, is it sufficient for Ermineskin to claim that as a Cree Indian band, the Bobtails defined their own composition, rules, and structure as though this alone made it a band within the meaning of the Indian Act of 1876.
[422] The Crown rejects Ermineskin's arguments regarding the continuity of membership in the Bobtail Band and submits that at issue is how many Bobtails appearing on the 1885 paylist also appeared on the 1886 paylist, not the other way around. While Ermineskin is correct to note that percentages can appear exaggerated when based on small raw numbers, the expert opinion evidence of Dr. Ens is accurate in terms of the raw data it provides and shows that membership in the Bobtail Band was not continuous, but diminished considerably over time. The Crown further denies Ermineskin's claim that a number of Bobtails continued living on IR 139 after Chief Bobtail left treaty in 1886. Instead, the Crown alleges, there is no evidence to this effect and even if Chief Bobtail had understood when he left that remaining members of his band would carry on as before, the evidence shows that they deserted IR 139 and either left the area or joined other bands. The Crown argues that any documents referring to followers of Bobtail in the latter part of 1886 are just that: references to individuals, not to a band in the anthropological sense with a continuing interest in IR 139.
[423] In particular, the Crown denies that the membership figures in the Statistical Appendices to the Departmental Annual Reports should be preferred over those in the paylists. While imperfect, the Crown alleges that paylists are the best evidence available about band membership. Similarly, the Crown claims that Agent Lucas' reference to "others" who did not live on IR 139, but came to receive yearly annuities does not prove that a Bobtail Band continued to exist as a community with an interest in the reserve.
[424] The Crown further submits that even after Chief Bobtail returned in 1887, he and the other "readmittees" were not members of a band within the meaning of the Indian Act because they did not share alike in the distribution of interest or annuity moneys or share a communal interest in reserve land, but were merely gained status on very specific and clearly defined terms in August of 1887. The Crown argues that because Chief Bobtail and the other "readmittees" did not share alike in any annuity or interest moneys and did not have any claim to IR 139 under the August 10, 1887 agreement, they did not constitute a band within the meaning of the 1876 Indian Act. Moreover, the Crown claims that neither Bobtail nor any of the other "readmittees" occupied IR 139 after their withdrawal from treaty; nor did Bobtail resume leadership of any community of Indians after signing the readmission agreement.
[425] According to the Crown, there was no question of the Government granting conditional treaty status because the "readmittees" had severed any relationship they had with the Crown when they withdrew from treaty and simply entered into "a very specific agreement" that only granted them certain treaty privileges and never stated that the "readmittees" were Indians, only that they regained the way of life of on-reserve Indians. Treaty rights, the Crown submits, were limited to signatory bands who were granted such rights communally, with individuals having rights by virtue of their membership in a collective within the meaning of the Indian Act definition of a band.
[426] Further, the Crown argues that the readmission agreement of August 10, 1887 is not meaningless or invalid, but should be given the literal and legal effect as intended. However, the Crown maintains that the agreement was not evidence that the Bobtail Band continued to exist within the meaning of the 1876 Indian Act. In the Crown's view, the Band had already dispersed by the fall of 1887. The Crown further rejects arguments that it should have sought a surrender from the Bobtail Band when the "remnants" transferred into the Samson and Ermineskin Bands for the same reason: the Bobtail Band had ceased to exist before the transfers occurred or as a result of them occurring. At that point, the Crown maintains, it no longer owed any fiduciary obligation to the Bobtail Band or its former members who by then were members of other bands.
[427] Specifically, the Crown's position is that after Chief Bobtail and the others departed in 1886 and the "Bobtail remnants" transferred into other bands in or before the fall of 1887, IR 139 was deserted and there was no band within the meaning of the Indian Act that could hold an interest in the reserve. The Crown alleges that when the Band dispersed its interest in IR 139 lapsed or failed. Similarly, the Crown argues that once the Bobtail Band ceased to exist, any authority upon which Ermineskin seeks to rely with respect to the extinguishment of Aboriginal rights do not apply to the circumstances in this case.
Analysis
The Statutory Definition of "band"
[428] Turning first to the Crown's interpretation of the word "tribe", the Crown argues that Justice Simpson's observations regarding the meaning of the term "tribe" are of general utility given the lack of other judicial interpretation. However, in her reasons at paragraph 18, it is clear that Justice Simpson based her understanding of the use of the word "tribe" on the evidence she heard in Mathias and not on the definition of the term generally. She refers to the use of the term by the experts and counsel at trial, and when she speaks about the "broad tribal consciousness" which existed in pre-contact times, she refers to the anthropological evidence. Based on the evidence she heard, she concluded that the word "tribe" would be used "in the broad sense to describe a large group of Indians who spoke the same language," but even in its narrowest terms, Justice Simpson describes a "tribe" as a "smaller group in a single settlement". Justice Simpson does not find "a common interest or purpose" to be part of the definition of "tribe". As well, it is clear that her understanding of the concept of a tribe "as a cohesive political and social unit" was based on evidence adduced at the trial. Further, as Ermineskin points out, there is no evidence in the present case that would permit an analogy to be drawn between the Coast Salish people and the Plains Cree.
[429] I note as well that the definition of "tribe" contained in section II of the 1857 Act to encourage the gradual Civilisation of the Indian Tribes in this Province, and to amend the Laws respecting Indians did not contain a requirement that there be a common interest or purpose. It simply states that a tribe is "any Band or other recognized community of Indians."
[430] The Crown correctly notes that unlike "tribe," the phrase "body of Indians" is not defined in the legislation or the common law. To give meaning to the phrase "body of Indians", the Crown, in part, relies on a dictionary definition of "body". In response to Ermineskin's English language dictionary definition of "body", the Crown claims that it is not inconsistent with the notion of a common interest or purpose. With respect to Ermineskin's reliance on a legal dictionary definition of "body", the Crown argues that it is only appropriate to turn to a specialized legal dictionary, such as Black's Law Dictionary, supra, when one is attempting to determine the meaning of a purely legal term.
[431] While dictionary definitions are helpful as a starting point in statutory interpretation, they can "only indicate the possible range of meanings that a word or expression is capable of bearing," and "cannot indicate the meaning of a word as used in a particular context, in relation to a particular set of facts." [see R. Sullivan, Sullivan and Driedger on the Construction of Statues, 4th ed. (Markham: Butterworths, 2002) at 29-30]. As pointed out by Ms. Sullivan, one of the problems associated with placing too strict a reliance on dictionary definitions is that the meaning and scope of words can vary from one dictionary to the next. Even minor variations in the definitions may produce incompatible results having a significant impact on the outcome of a case. Additionally, as Ms. Sullivan cautions, dictionary definitions are a-contextual and because they "present words as basic units of meaning" reliance on them encourages an approach premised on disputes about the meaning of individual words. However, what is typically at issue in statutory interpretation is the meaning of a phrase, clause, or an entire provision.
[432] Even though the Crown maintains that Ermineskin's English language dictionary definition of "body" is not inconsistent with the idea of a common interest or purpose, it is also broadly defined as a single entity or group. Additionally, given the context within which these definitions are being considered, in my view, the definition of "body" as found in Black's Law Dictionary, is equally as helpful as a starting point as the other definitions relied on by the parties.
[433] With respect to the Crown's reliance on Woodward's interpretation of "body", I find this problematic for two reasons. First, the passage relied on by the Crown is taken from Woodward's discussion of the modern definition of "band" found in subsection 2(1) of the Indian Act, R.S.C. 1985, c. I-5. It reads:
| 2(1) "band" « bande »
"band" means a body of Indians
(a) for whose use and benefit in common, lands, the legal title to which is vested in Her Majesty, have been set apart before, on or after September 4, 1951,
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2(1) « bande » "band"
« bande » Groupe d'Indiens, selon le cas_:
a) à l'usage et au profit communs desquels des terres appartenant à Sa Majesté ont été mises de côté avant ou après le 4 septembre 1951;
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[434] Notably, the modern Act does not make reference to any "tribe, band, or body of Indians". Instead, the first part of the definition simply states that a "band" means a "body of Indians". Second, after noting that "body" is not defined in the legislation, Woodward relies on definitions 14, 15, 16, and 17 of "body" found in the Oxford English Dictionary to conclude "that the use of the word indicates organization or common cause in the affairs of government, in the same sense as in the expression "body politic"." (Woodward, supra, at 18, fn 67). In my view, Woodward's interpretation is not helpful in the context of this case nor does it lend support to the narrow definition of "body" advanced by the Crown.
[435] I also reject the interpretation of "band" within the phrase "tribe, band, or body of Indians" advanced by the Crown. The Crown's starting point is the dictionary definition "a group of people having a common interest or purpose or characterized by a common feature." Leaving aside the point that other dictionaries define the word in less narrow terms, the Crown narrows the Concise Oxford Dictionary definition even further, by ignoring "or characterized by a common feature" in order to give "band" a meaning that more closely accords with the meanings of "tribe" and "body of Indians" the Crown espouses. Given my earlier comments that the Crown's arguments in support of the narrow interpretations of "tribe" and "body of Indians" are not persuasive, it follows that the Crown's argument that would even further narrow the definition "band" to accord with its interpretations of "tribe" and "body of Indians" is also not persuasive.
[436] I do not accept the Crown's analysis for another reason. There is nothing in the 1876 Act definition of "band" to suggest that Parliament intended for the three terms to be construed narrowly, as though they represent a single, narrow meaning. In particular, there is nothing in the Act or the provision itself that supports the Crown's assertion that "tribe, band, or body of Indians" means an anthropological band. Nor does Dr. Van Dyke's evidence assist the Crown. Although Dr. Van Dyke described an anthropological band as a small, personalized community, it was in the context of his description of a Plains Cree band. No evidence was adduced at the trial that all bands in Canada would have been identifiable as such in 1876. The Indian Act applied to all tribes, bands or bodies of Indians throughout the country who met the additional criteria not just the Plains Cree.
[437] I also note that the dictionary definition of "band" relied on by the Crown gives two alternative definitions, one of them being "a group of people characterized by a common feature." This definition is equally consistent with the broader definitions of "tribe" and "body".
[438] The legal implications associated with being an Indian Act band are potentially far-reaching, especially with respect to rights concerning reserve lands and the surrender of reserve lands. In my opinion, the purpose of the "band" definition is simply to describe the criteria that must be satisfied in order to be regarded as a band under the Indian Act. Once either or both of the criteria found in the second part of the definition are established, a band is then entitled to the rights, benefits and protections contained in the Act. Having regard to this purpose, "tribe", "band", and "body" read in the context of the entire phrase "tribe, band or body of Indians" is simply an enumeration of identifiable groups of Indians who, if they meet either of the criteria will be regarded as an Indian Act band.
[439] With this in mind, I can see no rationale for adopting a narrow interpretation requiring a "common interest or purpose" and a departure from the broad ordinary meaning of these words.
[440] On the contrary, it is conceivable that imposing the narrow interpretation with the associated requirements the Crown argues ought to be adopted, would result in an unacceptable outcome whereby Indians who would receive the rights and benefits due band members if the phrase were given an ordinary meaning interpretation would be denied such benefits if the phrase were interpreted as the Crown suggests.
[441] Returning to the principles of statutory interpretation, it is presumed that the ordinary meaning of legislation is the most appropriate or "intended" meaning, and in the absence of a reason to reject it, the reason is binding on the court (Sullivan, supra at 34, citing Thomson v. Canada (Minister of Agriculture), [1992] 1 S.C.R. 385 at 399). While the presumption can be rebutted by evidence that another meaning was intended or is more appropriate in the circumstances, the arguments advanced by the Crown do not meet this burden (Sullivan, supra at 37). In particular, it is difficult to conceive of legally unacceptable consequences if the ordinary meaning rule is applied when interpreting the phrase "tribe, band or body of Indians."
[442] Nor is there anything within the Indian Act itself, whether in terms of the definition of a "band", in particular, or the statute as a whole, to suggest that Parliament intended the requirements, such as, leadership and common purpose put forward by the Crown. Neither does the Act contain anything to suggest that an ordinary meaning of the phrase "tribe, band or body of Indians" does not help us to understand the provision as a whole or how to apply it. This is significant because the ordinary meaning rule of statutory interpretation does not bind a court if the ordinary meaning of a phrase or term in dispute is so ambiguous that it does not assist the court in determining what it, or the provision in which it appears, entails (Sullivan, supra at 36). Read within the context of an Act created to protect the rights of Indians, an ordinary meaning of that phrase suggests a group of Indians who are interconnected in some way; it does not bring to mind a complex of leadership, residence, work, or other requirements.
[443] For these reasons, I conclude that the phrase, "tribe, band or body of Indians" is intended to refer to an aggregate of individuals or a group regarded as a single entity; all three terms under discussion are capable of this analogous meaning.
[444] Although further comment regarding the Crown's interpretation of the "reserve interest" aspect of the definition is unnecessary since none of the Plaintiffs take issue with the Crown's position, the Crown's submissions with respect to the interpretation of "share alike in the distribution of any annuities or interest monies" require further consideration.
[445] While I agree with the Crown that the use of the phrase "share alike" in this portion of the definition seems to suggest a communal nature to the interest described, I do not accept that its use necessarily implies the payment of annuities or interest monies from band accounts. That the funds must be paid out from a band account maintained by the Government of Canada is not a logical, natural inference upon a plain reading of the definition. When the provision is simply read through, within context, the definition gives no reason to look beyond the ordinary meaning of the words "share alike." In my view, the term "share alike" simply refers to a right shared equally among all members of the band.
[446] I agree with the Crown that treaty annuities are fixed amounts payable to individual Indians, and are not distributed on a share alike basis to a community of Indians. However, the definition in the Indian Act does not state that the funds need to be distributed on a share alike basis. It simply reads that the band of Indians must share alike in the distribution of any annuities. As Montana pointed out in their submissions, there is a clear distinction, albeit subtle. As long as each member of the band possesses the right to receive any amount of annuities or interest moneys, distributed by the Government of Canada, each member is "sharing alike" in that entitlement, thus satisfying this portion of section 3.1. of the Indian Act.
[447] Further, although treaty annuities are payable in fixed amounts to band members as individuals and not all individuals receive the same amount, this is not conclusive proof that Parliament did not intend treaty annuities to be included in the phrase "any annuities".
[448] As Montana notes, the Crown provides no evidence to support a finding that Parliament intended or even contemplated the distinction between treaty and any other type of annuities when it included the phrase "any annuities" in the 1876 definition. Returning to the rules of statutory interpretation, there is no compelling reason to employ any rule but the "ordinary meaning" rule when interpreting the phrase "any annuities or interest moneys for which the Government of Canada is responsible". Applying the Crown's suggestion to exclude treaty annuities from the definition of a "band" within the meaning of the Act could also lead to an unacceptable result. An excessively narrow construction may lead to a failure to preserve the rights and interests the legislation was meant to protect.
[449] This is particularly important in light of the Supreme Court of Canada decision in Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85. In that case, Justice LaForest cautions that despite the importance of the "salutary rule" of resolving ambiguities in favour of Aboriginal peoples, when interpreting statutes concerning Indians, that rule does not require courts to accept a given construction merely because "the Indians would favour it over any other competing interpretation." While he acknowledges that it is necessary for courts "to reconcile any given interpretation with the policies the Act seeks to promote," in this case, it is important to consider his further instruction at paragraph 119:
... in the interpretation of any statutory enactment dealing with Indians, and particularly the Indian Act, it is appropriate to interpret in a broad manner provisions that are aimed at maintaining Indian rights, and to interpret narrowly provisions aimed at limiting or abrogating them. Thus if legislation bears on treaty promises, the courts will always strain against adopting an interpretation that has the effect of negating commitments undertaken by the Crown.
[450] A review of the versions of the Indian Act in force between 1876 and 1909 reveals that Parliament never expressly distinguished treaty annuities from any other type of annuity. On the contrary, the majority of the provisions that mention annuities either make no distinction between the entitlement of bands and that of individuals or include an either/or clause when referring to money that was "paid out of any annuity or interest coming to [a given] Indian, or to the band, as the case may be" (see Indian Act, S.C. 1869, c. 6, s. 5; S.C. 1876, c. 18, s. 71; S.C. 1880, c. 28, s. 82; S.C. 1886, c. 43, ss. 72 and 118; R.S.C. 1906, c. 81, s. 163).
[451] The phrase "as the case may be" strongly suggests that Parliament, rather than drawing clear lines between treaty annuities as individual entitlements and some other form of "communal" annuity, saw the two in comparable terms. At minimum, there is nothing in the various versions of the Act to suggest that Parliament intended or understood treaty annuities as incompatible with references to "any annuities" or simply "annuities."
[452] The Crown also argues that the amendments made to section 3.1. of the Indian Act in 1951, lend support to their position that treaty annuity payments were not meant to be included within the scope of this provision. I do not find this argument particularly helpful in interpreting the meaning of "sharing alike" in the context of the 1876 Indian Act. These amendments were made 75 years after the 1876 Act came into force, and more than 40 years after the relevant time frame in the present case. In addition, it is not only the "annuity and interest moneys" portion of the definition that was amended in the 1951 Act. The phrase "for whose use and benefit in common," upon which the Crown relies to make their argument, has been added to the portion dealing with lands, as well as moneys held by His Majesty. Given the significant changes to the definition of "band" in the 1951 Act, there is no basis for concluding that section 3.1. of the 1876 Act and section 2.1(a) of the 1951 Act should be read and interpreted in the same way. Nor is it logical to conclude, in the absence of any evidence, that the amendments to the definition of a "band" in the 1951 Indian Act were made to clarify the provisions contained in the Indian Act drafted 75 years earlier.
[453] The Crown also relies on the Supreme Court of Canada decision in [1977] 2 S.C.R. 897">Isaac, supra, where the issue before the court was whether the Six Nations Indians qualified as a band at a particular point in time. In my opinion, this case is not helpful in the present analysis. [1977] 2 S.C.R. 897">Isaac, supra, involved a consideration of the 1951 Indian Act referred to above. Given the significant differences in the definition of a band between 1876 and 1951 Acts, the usefulness of the decision, if at all, is limited in scope. In particular, the inclusion of the phrase "for whose use and benefit in common" in the 1951 Act which is not found in the 1876, 1880, 1886, or 1906 Indian Acts, greatly narrows the applicability of the reasons in [1977] 2 S.C.R. 897">Isaac, supra, to the present case. The fact that the Court in [1977] 2 S.C.R. 897">Isaac, supra, did not refer to the distribution of treaty annuities as falling under the scope of "moneys ... held by His Majesty" is not determinative of the current issue. On my reading of the decision, the Court in [1977] 2 S.C.R. 897">Davey, supra, considered the meaning and legal implications of section 2.1(a) only to the extent required by the facts of that case. In my opinion, the reasons in [1977] 2 S.C.R. 897">Isaac, supra, do not provide compelling support for the Crown's argument that treaty annuities are solely individual entitlements and not within the meaning of "any annuities" within section 3.1. of the 1876 Act.
[454] For these reasons, I interpret the Indian Act definition of "band" to mean an aggregate of individuals or a group regarded as a single entity who meet the "reserve interest" part of the definition or who share alike in the distribution of any annuities or interest money for which the Government is responsible including treaty annuities.
When does an Indian Act Band Cease to be a Band and What Happens to that Band's Reserve Interest?
[455] While I accept the Crown's submission that there must be a band in fact in order for there to be a band in law, that is an Indian Act band, as set out above, I do not accept the very narrow interpretation of "tribe, band or body of Indians" advanced by the Crown. Therefore, it follows, that I do not accept the Crown's argument that a band will cease to exist when there is no longer a community of Indians having a common interest or purpose.
[456] Although there were no provisions in the Indian Act that expressly addressed the dissolution of a band during the period in issue, it would appear from the jurisprudence that bands at that time, whether by choice or circumstance, could cease to exist within the meaning of the Act. (see, for example Kingfisher, supra; Blueberry River, supra; Papaschase, supra) Therefore, it seems reasonable to infer that even if the legislation itself did not address the question, this would be the legal as well as factual outcome if, for example, all of a band's members died without issue, if all surviving band members and their issue became enfranchised, or if all of a band's members transferred to other bands, provided the transfers were made in accordance with the existing policy or law in force at the time. In other words, a band will cease to exist when there are no longer any band members, that is, when there is no longer an identifiable aggregate of individuals or a group regarded as a single entity. Having regard to the facts of the present case, it is not necessary to address the question as to whether a single band member would meet the definition.
[457] The next question is what happens to the reserve interest of a band that has ceased to exist. Although the Crown and Montana agree that once an Indian Act band ceases to exist, their reserve interest is lost, as noted earlier, they differ as to what happens to the reserve itself.
[458] I do not accept Montana's argument that land set aside as a reserve becomes burdened with an Indian interest and thereafter constitutes "reserve land" held by the Crown for the benefit of "Indians". The definition of a "reserve" in the Act requires that a tract or tracts of land be set aside as a reserve for "a particular band". The provision does not define "reserve land" by virtue of the character of the land itself, but rather in relation to its designation for the "use or benefit of a particular band". Further, under treaty, "reserves" are set apart for "bands" as both terms are defined in the Act. (Kingfisher, supra at para. 6)
[459] While it is clear that so long as there is a band, any release or surrender of the reserve must be given by the band in accordance with the provisions of the Act, if the band ceases to exist there is no band from whom a release or surrender can be taken. In my opinion, in these circumstances, the reserve interest lapses and the Crown is left with the fee simple estate.
When, if at all, during the relevant time did the Bobtail Band cease to exist?
[460] In order to answer this question, three other questions must first be addressed:
1. Were Chief Bobtail and others validly discharged from treaty?
2. Did the transfer of the "Bobtail remnants" to the paylists of the Samson and Ermineskin Bands constitute a valid transfer of band membership?
3. What is the legal effect of the readmission agreement?
Were Chief Bobtail and others validly discharged from treaty?
[461] Ermineskin submits that having non-Indian blood did not make Bobtail a "Half-breed" in law or in fact. According to Ermineskin, the Crown had no authority to grant discharges to Indians who, by living an "Indian mode of life," were not "Half-breeds." Because Bobtail and his family were culturally Cree and followed a traditional Indian way of life, they were not "Half-breeds" and should never have been discharged; therefore, the discharge documents have no legal effect on the Bobtails' treaty or other rights as "Indians" under the Indian Act.
[462] This argument is not borne out by the evidence. Nor is it substantiated by the cases on which Ermineskin seeks to rely.
[463] With respect to the case law, neither R. v. Howson (1894), 1 Terr. L.R. 492 nor R. v. Thomas (1891), 2 Ex. C.R. 246 do more than confirm what can be inferred from the record with regard to the membership of bands admitted to Treaty 6. First, the cases affirm that being an "Indian" within the meaning of the Indian Act, S.C. 1876, c. 18, s. 3(3) did not preclude an individual from being of "mixed blood." Second, an individual could not be an "Indian" and a "Half-breed" or share in the rights or opportunities available to both "Indians" and "Half-breeds" at the same time (Indian Act, S.C. 1880, c. 28, s. 14).
[464] I have difficulty accepting that even during the early period of treaty relations the Crown's obligation to Aboriginal peoples included keeping them on Reserves or in Treaty as "Indians." This is particularly so with respect to individuals who, though admitted to treaty as band members, wished to live by other means and met existing criteria to be recognized on other terms. To suggest that because Chief Bobtail and his followers were admitted to Treaty as Indians "reputed to belong to a particular Band" they could not avail themselves of the legal criteria for withdrawal as "Half-breeds" ignores a plain language reading of the law in force at the time.
[465] With respect to Chief Bobtail himself, by all accounts he was a competent leader acting with authority as an Indian Chief when he adhered to Treaty 6 in 1877 on behalf of his family and followers known as the Bobtail Band. However, it does not follow from his authority or his actions in doing so that he could not later act as an individual capable of and entitled to make a personal decision to leave treaty and apply for scrip. Nor is there any indication that Chief Bobtail and his family misunderstood that as a result of leaving treaty they had to give up the benefits that they had enjoyed under it.
[466] On the contrary, the record shows that Chief Bobtail expressed his intention to leave treaty as early as March of 1886; gave up livestock and supplies as well as the medal and flag he had received as Chief upon adhering to Treaty 6 the following month; and left IR 139 by early May of 1886. While circumstances surrounding his decision to leave treaty and take scrip may have been unfortunate, the record reveals no legal impediment to his making that choice and acting upon it. I am satisfied that Chief Bobtail and his family were capable of and entitled to make individual decisions to leave treaty and that, in fact, this is what they did in the spring of 1886.
[467] As well, nowhere does the record demonstrate that when Chief Bobtail and the others were discharged in1886, Parliament intended to prevent Indians from leaving treaty, whether because they lived an "Indian mode of life" or otherwise. Nor does it lead me to conclude that those individuals were unaware of the consequences of leaving treaty and accepting scrip, particularly in light of the months that passed between the first record of Bobtail's desire to leave, his departure from IR 139, his surrender of the livestock and farming implements, and his ultimate discharge. Instead, the record reveals instructions and correspondence evincing concern and articulating the need to warn all individuals seeking to be discharged as "Half-breeds" of the significance and consequences before accepting their applications.
[468] Samson claims that the Bobtail withdrawals were void ab initio and advances legal argument alleging that the withdrawals had no legal effect on the basis of unconscionability, undue influence, and non est factum. However, counsel did not indicate on which facts they based such claims.
[469] In my view, the record clearly leads to a contrary finding. The material before the Court supports an inference that the six Bobtails who left treaty in the spring of 1886 would have been warned or otherwise made aware of what it meant to do so before they were granted discharges, in accordance with instructions in effect at that time. Indeed, Agent Lucas noted their upset when he told them that they would have to surrender items belonging to the Band, such as farming implements given them by the Agency. Absent evidence to the contrary, I see no basis upon which to infer that Bobtail and his family were uninformed, incompetent, or otherwise unable to make a decision to leave treaty and to seek written approval from the Indian Agent in doing so.
[470] Samson also alleges that section 14 of the Indian Act was a definitional section that only applied to "Half-breeds" and not "Indians" as defined under the Act and that it did not provide authority for the Government of Canada to grant discharges in 1886. If section 14 had allowed the Crown to discharge Indians from treaty, its effect would have been to modify the terms of Treaty 6 and extinguish individuals' treaty rights, which the Crown was not in a position to do.
[471] I find this argument to be flawed for several reasons, the first being that it presumes that once individuals held status as Treaty Indians in the 1880s, they could never "be" anything other than Treaty Indians, whether by choice or by operation of the law in Canada at that time. Neither Samson or Ermineskin provide any authority for this proposition.
[472] Nor am I persuaded that section 14 modified the terms of Treaty 6. It is my understanding that section 14 formed part of an evolution of Government initiatives aimed at clarifying rights, responsibilities, and relationships between "Half-breeds" and the Crown, including "Half-breeds" who had been admitted to treaty. It made it possible for individuals of "mixed blood" to make a choice: remain in treaty as "Indians" or seek discharges from treaty as "Half-breeds."
[473] Notwithstanding evidence indicating that certain members of the Department questioned the decision to allow certain individuals to withdraw from treaty, there is nothing on the record to indicate that the Crown officially recanted its earlier position or intended to reverse all prior decisions in this respect. Nor did the Department formally alter the practice at Peace Hills with respect to discharges until July of 1886, after Chief Bobtail and the others had already left IR 139 and been discharged from treaty.
[474] The record indicates that the only legal requirements for granting discharges in effect in June of 1886 were those set out section 14 of the Act. In my opinion, the record clearly indicates that the Bobtail Band members discharged in June of 1886 complied with these criteria. As I indicate above, I also infer from the record that they were warned of the consequences of leaving treaty as "Half-breeds" before being permitted to do so, in accordance with Department practice at that time.
[475] With respect to the matter of definitions, the Crown urges this Court to apply the ordinary meaning rule of statutory interpretation to find that section 14 of the Indian Act, 1880, as amended, results in an understanding of the term "Half-breed" as "a person of mixed blood." I am not convinced, however, that this "definition" is immediately apparent or necessarily follows from the language or contexts of section 14.
[476] I prefer, rather, to apply the principle of presumed knowledge on the part of the Legislature, which provides that Parliament operated with knowledge of the historical context and all relevant, necessary, and available information when it enacted and, further, amended that section. I infer from the material before the Court that being a person of mixed "Indian" and "white" blood resulting in application of the term "half-breed" was a matter of which Parliament in the 1880s would have had full awareness, even if in its wisdom it saw no need to define the term as such within the Indian Act at that time.
[477] I accept as given the Government's legislative authority over matters concerning "Indians or lands reserved for Indians" during the period in issue (Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5, s. 91(24)). As I understand it, the purpose of section 91(24) includes the need "to provide a continuing framework for the legitimate exercise of government power" with respect to Indians and lands reserved for Indians ([1984] 2 S.C.R. 145">Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at 155-156). Therefore, I further accept that in 1886 an executive branch of Government such as the Department of Indian Affairs could administer and otherwise give practical effect to the laws that Parliament passed pursuant to section 91(24). In my view, this includes section 13 of the Indian Act, S.C. 1886, c. 43 and its predecessor, section 14 of the Indian Act, S.C. 1880, c. 28, as am. by An Act further to amend the Indian Act, 1880, S.C. 1884, c. 27, section 4, which set out clear criteria for allowing an individual to withdraw from treaty as a "half-breed."
[478] It is my understanding that the purpose of section 14, as amended, was threefold: (i) to exclude any "half-breed" who "shared in the distribution of half-breed lands" from being "accounted an Indian"; (ii) to allow a "half-breed" admitted into treaty to "be accounted an Indian" only "under very special circumstances... determined by the Superintendent General of his agent"; and (iii) to allow "any half-breed who has been admitted into a treaty... to withdraw therefrom" (S.C. 1884, c. 27, s. 4). The legal criteria for an individual's withdrawal from treaty as a "half-breed" were also set out in general terms within the Act: a "half-breed" could withdraw from treaty by "signifying in writing his desire so to do" and by so signing "in the presence of two witnesses, who shall certify the same on oath before some person authorized by law to administer the same." (S.C. 1884, c. 27, s. 4; R.S.C. 1886, c. 43, s. 13)
[479] While this Court is not bound by the decisions of provincial Superior Courts, on this point of interpretation I find persuasive the reasons of Slatter J. in Papaschase Indian Band (Descendants of) v. Canada (A.G.), [2004] 4 C.N.L.R. 110 (Alta. Q.B.). In his view, s. 14 of the Indian Act, 1880 "gave [individuals] an unconditional right to withdraw from treaty" (Papaschase, supra at para. 23).
[480] Parliament amended section 14 (the "Half-breed" provision) in 1884 (An Act further to amend "The Indian Act, 1880", S.C. 1880, c. 27, s. 4). The amendment omitted the requirement that individuals pay back annuities upon being recognized as "Half-breeds" and excluded from treaty. It came into force on January 1, 1885 and was carried forward as s. 13 of the 1886 consolidation (Indian Act, R.S.C. 1886, c. 43). In noting the absence of evidence to the contrary, I infer from the record that Scrip Commissioners and Indian Agents in Peace Hills would have been aware of and acting in accordance with this provision as mended by the time that they met with Bobtail and his family in or around June of 1886.
[481] Samson advances a number of arguments with respect to the legal character of Treaty 6. First, Treaty 6 was entered into by the sovereign nations of the Plain and Wood Cree Indians and Her Majesty the Queen in Right of the United Kingdom and should therefore be subject to British law with respect to treaties. Second, under British law, Treaty 6 is a nation-to-nation agreement equivalent to an international treaty and therefore should be interpreted according to the "law of nations" or international treaty law. Third, because Canada's Dominion Government was not a party to Treaty 6, it was not in a position to end or alter treaty relations without the approval of the Governor General on behalf of the British Crown.
[482] In particular, I find no authority to support the claim that Treaty 6 is an agreement between the Imperial Crown and the Plain and Wood Cree Indians and therefore subject to British, not Canadian law. The law in Canada and Britain are determinative of this matter. First, the Dominion Government did not have the power to enter international treaties in 1867 (A-G for Canada v. A-G for Ontario, [1937] A.C. 326 at 350; In re Regulation and Control of Radio Communication in Canada, [1932] A.C. 304). Second, Indian treaties are not agreements between nations subject to British or international law, but can only be challenged in Canadian courts (Secretary of State for Foreign and Commonwealth Affairs, ex parte Indian Association of Alberta and others, [1982] 2 All E.R. 118 (C.A.) at 129, per Lord Denning and 143, per Lord ). Although Treaty 6 was expressed as an agreement between the Indians and the Queen in Right of the United Kingdom, it "was nevertheless made by her through commissioners" acting as and on behalf of "Her Majesty's government of the Dominion of Canada," which had established a "wholly independent" administration by 1867 and which then was and continues to be responsible for administering and dealing with those Treaties and claims brought forward in relation to them (Secretary of State, supra at 141, per Lord May and at 135, per Lord Kerr). Finally, Indians and Indian nations do not enjoy sovereignty in the international sense; rather, they are subject to the sovereign Crown in right of Canada (Canada (M.N.R.) v. Ochapowace Ski Resort Inc., [2002] 4 C.N.L.R. 76 at paras. 76-77; R. v. Sparrow, [1990] 1 S.C.R. 1075).
[483] Similarly, I find no legal basis to support the argument that Treaty 6, as a nation-to-nation agreement, is subject to interpretation according to international law. It is a basic tenet of international law that only states and some international organizations possess the necessary "international legal personality" to enter into agreements subject to international treaty law (James Crawford, The Creation of States in International Law (Oxford: Clarendon Press, 1979) at 10-26). Clearly, the "Plains and Wood Cree Nations" were not international organizations. Nor did they constitute a "state as a person of international law," which requires a permanent population, a defined territory, a government with effective control over the territory and population, and the capacity to enter into relations with other states (Montevideo Convention on the Rights and Duties of States, 26 December 1933, U.S.T.S. No. 881, 165 L.N.T.S. 19, art. 1).
[484] According to Lord McNair, The Law of Treaties (Oxford: Clarendon Press, 1961) at 52, modern international legal doctrine does not allow for an agreement between a state and "a native chief or tribe" to be regarded as a treaty. Such agreements do not produce the same "international legal effects" as treaties under international law for the very reason that the parties to them lack the necessary international legal personality to be recognized under international treaty law (McNair, supra at 53).
[485] Lord McNair further cautions that although British courts in some cases have considered treaties with Aboriginal peoples as they would treaties made with other foreign states, it is not reasonable to infer that a modern treaty of this nature would be viewed as "an international treaty in the true sense of the term" (Ibid. at 54). The law in Canada in this respect is clear: "An Indian treaty is unique; it iss an agreement sui generis which is neither created nor terminated according to the rules of international law" (R. v. Simon, [1985] 2 S.C.R. 387 at 404, affirmed in R. v. Sioui, [1990] 1 S.C.R. 1025 at 1038).
[486] Samson's third argument, that the Dominion Government was unable to end treaty relations with individuals admitted to Treaty 6, is unsubstantiated. Samson fails to demonstrate how the actions of Department officials in 1886 put an end to treaty relations and it is not clear from the record upon which facts Samson seeks to rely in making this claim. There is no authority for finding that the Government's decision to discharge a given individual from treaty represents an "end" to treaty relations generally. Neither the act of an individual withdrawing from Treaty 6 nor that of the Crown in granting him or her a discharge affects the ongoing treaty relationship between the Crown and the remaining members of the band to which that individual had belonged. An exception may arise if an entire band were to seek and receive discharges at the same time, but such are not the facts here.
[487] A corollary of Samson's international law argument is that Chief Bobtail and the other individuals who left in June of 1886 could not have withdrawn from Treaty 6. Samson submits that according to the law of nations, individuals could not waive or otherwise alter the terms of an agreement to which they were not parties. This argument, too, must fail. Apart from the fact that Treaty 6 is not an international legal agreement and is not subject to British law regarding treaty interpretation, it was within the Dominion Government's constitutionally appointed jurisdiction to pass laws respecting Indians and lands reserved for Indians pursuant to s. 91(24) of the Constitution Act, 1867.
[488] Ermineskin submits that the local Indian Agent recorded no efforts on his part to dissuade Bobtail and his family from leaving treaty in 1886 despite his knowledge of their discontent in the months preceding their discharge. Counsel claims that other than the oral history testimony of John Ermineskin and Gordon Lee, there is limited evidence indicating why Chief Bobtail and his family chose to leave their Reserve and apply for discharges, but that what evidence exists suggests that Chief Bobtail was unhappy and felt that he and his people did not get what they were promised under Treaty 6. Further, Ermineskin contends that the Crown should never have allowed, in fact it should have prevented, Chief Bobtail and the others from leaving treaty. Finally, counsel alleges that for the discharges of Chief Bobtail and his family to be valid, the Crown must provide "strict proof" that by discharging them, the Crown extinguished their "individual treaty rights" so as to have extinguished the "collective treaty rights" of the Bobtail Band.
[489] In advancing this argument, Ermineskin relies on a passage from Simon, supra at 406-407, where the Supreme Court of Canada set out the requirement that extinguishment of treaty rights requires "strict proof." However, the Court in that case did not address the question of individual versus collective extinguishment; the presumption is that extinguishment refers to the annihilation of the rights of an entire body of individuals. Ermineskin cites no authority to substantiate such a reading of the case law. The rights of the Bobtail Band, in my view, remained intact in June of 1886 despite the Band's Chief having been discharged from treaty as a "Half-breed."
[490] Without conceding the Crown's argument that it owes no fiduciary obligations to individuals within a given band, Ermineskin alleges that the Crown breached its duty to the Bobtail Band when it allowed members to withdraw in sufficient numbers to imperil the Band's continued existence and its continuing interest in IR 139. According to Ermineskin, the Crown cannot deny its fiduciary obligation to the Bobtail Band by its own actions in breaching them.
[491] Samson alleges that even if it were possible for the Crown to have permitted Chief Bobtail and other members of his Band to withdraw from treaty or to grant them discharges, the Crown could not cause the dissolution or dispersal of the Bobtail Band or its interest in IR 139. I agree. I see no way in which the Crown could have legitimately exercised its authority to bring about the legal death of an Indian Band.
[492] However, at issue in this analysis of the Bobtail discharges in 1886, after IR 139 was surveyed and set aside for the Bobtail Band is not the extinguishment of treaty rights or the dissolution of the Bobtail Band and its interest in that Reserve. The question, as I understand it, is this: Were the withdrawals and discharges from treaty of Bobtail and other members of his Band in or about June of 1886 valid in law? The question, in other words, pertains to the legal status of six individuals and the validity of the Crown's actions in accepting their application to be discharged from treaty as "Half-breeds". The matter of whether the Bobtail Band dissolved and if so, when and to what effect, demands a separate analysis and engages very different points of fact and law.
[493] As indicated, the Crown denies that it owed individual members of the Bobtail Band a duty to prevent their withdrawal from treaty. In the Crown's submission, the individuals who withdrew in 1885 and 1886 left the Bobtail Band before they were granted discharges. Although I am not certain that this inference can be drawn with certainty from the record, I do not believe that anything turns on whether or not this was, in fact, the case.
[494] What is clear to me from the record is that Chief Bobtail and those who left with him in 1886, after IR 139 had been surveyed and set aside for the Bobtail Band, had contemplated their decision to do so and had made reference to it some months before leaving the Reserve and asking Agent Lucas to discharge them from treaty as "Half-breeds". Once they manifested their intention to leave by surrendering the items that Agent Lucas had requested and made formal applications to be discharged, they were in fact no longer identifying themselves as "Indians" and, upon acceptance of their applications, were no longer recognized as such in law.
[495] More specifically, so long as individuals remained members of the Bobtail Band, for whom IR 139 was specifically set aside, the Crown was obliged to preserve and protect their quasi-proprietary interest in IR 139 (Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245 at para. 104). While the Crown may have been in a general Crown-Aboriginal fiduciary relationship prior to the time at which IR 139 was created for the Bobtail Band, the specific fiduciary duty that the Crown owed the Band was in direct relation to its "legal interest" in the Reserve (Wewaykum, supra at para. 98).
[496] It is well established that individual Band members hold that interest "in association with, but not independent of, the interest of other members" and that once an individual leaves their Band, they are no longer entitled to claim an interest in its Reserve (Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), [2001] 4 F.C. 451 at paras. 16-18). As well, the Crown is "no ordinary fiduciary," but wears many hats and when faced with competing interests, particularly those between Indians and non-Indians, must have regard to both its public law and its unique fiduciary obligations (Wewaykum, supra at para. 96).
[497] Insofar as Parliament saw fit to pass legislation authorizing an individual's change of legal status from one of "Indian" admitted to treaty to one of "Half-breed," I believe that it was open to officials in the Department of Indian Affairs and the Ministry of the Interior to develop ways of administering that legislation. As a "Half-breed" an individual was, at least theoretically, free to homestead like any other citizen of Canada. They were also entitled to apply for "Half-breed" scrip. The Crown, therefore, was in a position to balance the interests of "Indians" in Bands that had signed or adhered to Treaty 6 and individuals within those Bands who sought to withdraw and be granted discharges from treaty as "Half-breeds." In permitting individuals to withdraw from the Bobtail Band, the Crown retained a duty to preserve and protect the remaining Band members' legal interest in IR 139. In my view, it no longer owed any such duty to the individuals so discharged.
[498] In particular, to the extent that individuals chose to identify as "Half-breeds" rather than as "Indians" I am satisfied that whatever the nature of their relationship with the Crown, that relationship was not fiduciary and, more specifically, was not ancillary to the Crown's "undertaking of discretionary control" in relation to a "cognizable Indian interest" sufficient to "invoke responsibility 'in the nature of a private law duty'" (Wewaykum, supra at para. 85). I am also satisfied that once Bobtail and the others chose to leave IR 139 and apply for discharges from treaty and their decision to do so was accepted by the Crown through the actions of its Agent, Samuel Lucas, they could no longer claim any entitlement to IR 139. Nor can the Crown be said to have owed any outstanding fiduciary duty to Bobtail and the others discharged in June of 1886 once they were no longer members of Bobtail's or any other Indian Band.
[499] I find no legal basis for concluding that the Crown's fiduciary duty to the Bobtail Band bound the Crown with respect to individuals who elected to leave the Band and pursue discharges from treaty.
Did the transfer of the "Bobtail remnants" to the paylists of the Samson and Ermineskin Bands constitute a valid transfer of band membership?
[500] One of the key issues surrounding the question of whether the Bobtail Band ceased to exist prior to June 1909 is whether the transfer of the "Bobtail remnants" to the paylists of the Samson and Ermineskin Bands in 1887 constituted a valid transfer of band membership at that time or is more accurately described as a matter of administrative convenience without legal effect. This raises the following questions:
1. Were there any official transfer policies or procedural requirements in 1887?
2. Of what significance or effect, if any, is Order in Council P.C. 1151?
3. Could Indians be members of and have an interest in more than one band?
4. Did the Crown owe fiduciary or other duties to the "remnants" with respect to IR 139?
5. Are Ermineskin and Samson successor Bands to the Bobtail Band?
Were there any official transfer policies or procedural requirements in 1887?
[501] Although prior to 1885 there were directives from the Indian Commissioner regarding matters such as the payment of annuities, the recording of annuity payments, the location for annuity payments, and census taking, the evidence does not disclose any governmental policy or procedure regarding band-to-band transfers. The July 20, 1885 circular from the Indian commissioner advised the Indian Agent at Peace Hills that Indians were not to change from Band to Band unless the Agent considered it advisable and sanctioned the move; that changes between Agencies were not allowed unless expressly permitted by the Commissioner's Office in Regina; and that no Indians who were not in treaty were to be added to pay lists without the Commissioner's permission. Until 1889, apart from the requirement of Agency sanction just noted, the record reveals no reference to a requirement of consent by the affected parties to inter-band transfers.
[502] Up until 1889, the Indian Agents at Peace Hills appear to have recorded the movement between bands after the fact and did not routinely provide details about what motivated the changes or the decision to record them. Agent Lucas' actions in moving the "Bobtail remnants" to the Samson and Ermineskin paylists in 1887 and recording the change without further comment accorded with common practice in the Agency at that time. It also received the approval of his superior, Assistant Commissioner Reed, in a letter dated February 17, 1887 some eight months earlier.
[503] Samson and Ermineskin raise concerns about the reliability and weight that ought to be given to paylist evidence. I acknowledge these concerns and recognize the caution that must be exercised when relying on paylist information. Nonetheless, they are a source of information about who belonged to which band, at least insofar as it was within the awareness of the local Indian Agent. Read together with departmental circulars, the reports and letters written by the Indian Agents and other officials who worked in Peace Hills, as well as correspondence with officials from the Office of the Indian Commissioner and the Superintendent General of Indian Affairs, paylist evidence adds to the historical picture.
[504] The paylists show that at least some of the "Bobtail remnants" not only knew and understood that they had changed bands, but embraced the change and their new membership. This is particularly true of the former Bobtails who, in representing their fellow Ermineskin members, signed the mineral rights surrender agreement with the Crown on April 20, 1908, from which the "remnants" who had joined Ermineskin benefited equally with other members of that Band. Similarly, "remnants" who had joined Samson benefited equally with other Samson members from agreements with the Crown to surrender portions of the Band's Reserve in early 1909.
[505] Even if I accept that local Indian Agents sometimes recorded events and conducted their affairs on the basis of "administrative convenience" and even if this was true of Agent Lucas' approach to the impugned "remnant" transfers in 1887, it does not follow that in doing so he failed to comply with existing practices or Department instructions in this regard. On the contrary: the fact that Agent Lucas sought permission from the Assistant Commissioner indicates his awareness of, and compliance with, the standing instructions in the earlier circular.
[506] On May 3, 1889, the Department distributed circular No. 1777 which set out formal guidelines and imposed strict consent and record keeping requirements with respect to inter-band transfers. No evidence was led from which an inference could be drawn that the Department intended the policy it set out in the circular to apply retroactively.
[507] In particular, I cannot accept Samson's claim that the 1889 transfer policy was in effect, if not expressly set out in Department circulars, in the fall of 1887. The correspondence between Deputy Superintendent General Vankoughnet and Assistant Commissioner Reed in the months preceding the distribution of circular No. 1777 make clear that there was some question and disagreement between them about how and on what grounds inter-band transfers ought to be addressed. Rather than being an affirmation of existing policy and procedure, the consent-based transfer requirements set out in circular No. 1777 introduced novel procedures with which all future inter-band transfers were to comply.
[508] In 1895, Parliament passed An Act to further amend the Indian Act, S.C. 1895, c. 35, s. 8 and added s. 140 to the Indian Act, R.S.C. 1886, c. 43. Section 140 stated:
When by a majority vote of a band, or the council of a band, an Indian of one band is admitted into membership in another band, and his admission therein is assented to by the superintendent general, such Indian shall cease to have any interest in the lands or moneys of the band of which he was formerly a member, and shall be entitled to share in the lands and moneys of the band to which he is so admitted; but the superintendent general may cause to be deducted from the capital of the band of which such Indian was formerly a member his per capita share of such capital and place the same to the credit of the capital of the band into membership in which he had been admitted in the manner aforesaid. While section 140 expresses in law the policy principles and transfer requirements set out in circular No. 1777, it overstates matters to suggest that this new provision restated existing law. There was no legislation with respect to inter-band transfers before 1895. Instead, from 1885 until 1889 movement between bands was subject to Agents' discretion and from 1889 until 1895 it was governed by departmental policy requiring the approval of the parties and the Superintendent General.
[509] A principle of statutory interpretation provides that when interpreting particular provisions within an Act one must consider the Act as a whole, including any amendments that came into force before the matter in issue arose (Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham: Butterworths, 2002) at 281). As well, there is presumption against the retroactive application of new laws ([1977] 1 S.C.R. 271">Gustavson Drilling (1964) Ltd. v. Canada (Minister of National Revenue - M.N.R.), [1977] 1 S.C.R. 271 at 279, as cited in Sullivan, supra at 554). According to this presumption, even when legislation is intended to apply retroactively courts in Canada have held that "the extent of the retroactivity should be minimized" (Sullivan, supra at 554, citing Joe Moretta Investments Ltd. v. Ontario (Minister of Housing) (1992), 8 O.R. (3d) 129 at 145 (C.A.)).
[510] Accordingly, since section 140 was not in force in the fall of 1887 when the impugned "remnant" transfers took place, it neither applied to those transfers, nor could it undermine their validity.
[511] The implications of section 140 with respect to the Crown's and Montana's claims that the Government never intended that individuals could take with them any property interest when they left one band and joined another is examined in more detail later in relation to the issue of dual band membership.
Of what significance or effect, if any, is Order in Council
P.C. 1151?
[512] Ermineskin and Samson point to the 1889 Order in Council confirming IR 139 as evidence of the existence of the Bobtail Band and recognition by the Department of its existence. Whether senior government officials were accurately informed or even aware of events in Peace Hills between 1885 when IR 139 was set aside and surveyed for the Bobtail Band and 1887 when the "remnants" were added to other Band paylists and the "readmittees" appeared on no paylist but had allegedly renounced all rights and claims to the Bobtail Reserve does not alter what happened as a matter of fact or its effect in law.
[513] If circumstances were such that the Bobtail Band dispersed between 1886 and 1887 and thereafter did not reconstitute itself as such, there was from the fall of 1887 no "particular band of Indians" to retain a collective interest in the lands that were specifically set aside for them as IR 139, in accordance with the terms of Treaty 6 and the Indian Act, 1876, c. 18, s. 3(6). No Order in Council could change this unfortunate fact. The issue was not one of "recognition" as Ermineskin suggests. There is no legal basis on which it can be said that this Order in Council operated to bring back into legal existence a body of Indians who in the meantime have, as a matter of fact, separated and gone their own ways or chosen to join and share in the interests of other bands (Wewaykum , supra, at para. 53, citing Ross River Dena Council Band v. Canada, [2002] 2 S.C.R. 816 at para. 50).
[514] In my opinion, the Order in Council simply confirmed that the particular lands had been set apart as reserve lands for the Bobtail Band. It did not confirm or recognize the existence of the Bobtail Band.
Could Indians be members of and have an interest in more than one band?
[515] Samson claims that the "Bobtail remnants" held dual band membership as Bobtail-Samson and Bobtail-Ermineskin members.
[516] Three principles of statutory interpretation are relevant. First, the presumption of coherence assumes that legislative provisions "are meant to work together ... as parts of a functioning whole" and "to form a rational, internally consistent framework". (Sullivan, supra at 168) For example, the Indian Act provisions regarding inter-band marriage, which prohibited a woman who married a man belonging to another band from retaining membership in her original band; rather, she was presumed to be a member of her husband's band (Indian Act, S.C. 1876, c. 18, s. 3(3)(d)). From this I infer that Parliament was cognizant of the issue of multiple band membership and, as it became increasingly aware of potential problems associated with such a prospect, it amended the Indian Act accordingly.
[517] Second, claims that no transfers prior to 1895 were legally valid because the Crown's statutory means of protecting Indian interests did not expressly include individuals or families transferring between bands until that time violate the presumption of knowledge. This presumption is far reaching and provides that legislatures know "all that is necessary to produce rational and effective legislation". (Sullivan, supra at 154) Discovering the Crown's intention in drafting legislation necessarily includes "the precept that Parliament must be taken to be aware of the social and historical context in which it makes its intentions known". (Willick v. Willick, [1994] 3 S.C.R. 670 at 699, cited by Sullivan, supra at 154, n. 12)
[518] Of course, Parliament's knowledge is limited to what is available at the time that legislation is enacted (Sullivan, supra at 155). Hence, there is nothing incongruous about the amendment process that the Indian Act underwent during the period in issue here. As the Crown became more aware and increasingly concerned about the implications of inter-band movement on its duty to uphold treaty promises and protect Aboriginal interests, it modified the relevant legislation accordingly.
[519] Notwithstanding the above reasons, in practical terms Samson failed to properly plead its dual band membership theory. Nor did the Plaintiff discharge its evidentiary burden by establishing on a balance of probabilities that it was possible for Indians to belong to more than one band at the same time in 1887 and throughout the period in issue. Neither membership in "subgroups" nor consecutive band membership, as evidenced by an individual's appearance over time on the paylists of different bands, is synonymous with being a member of two or more bands at the same time. Similarly, the reference to a "joint and undivided interest" in the proceeds of sale of IR 139 in the June 14, 1909 agreement must be considered in light of the spirit and remaining text of that document, which is to effect a transfer of membership that, as a matter of fact, occurred almost twenty-two years earlier.
[520] It is not open to the Court to re-write the law or legal history in Canada by making findings unsupported by authority or cogent and compelling evidence (Mitchell, supra at paras. 51-52; Kingfisher (T.D.), supra at paras. 51-56). Nowhere in Wewaykum, supra did Binnie J. contemplate dual band membership. Nor has any other court found in favour of simultaneous membership in more than one band; indeed, in Papaschase Indian Band No. 136 v. Canada (Attorney General), [2004] 4 C.N.L.R. 110 at paras. 193-209 (Alta. Q.B.) Justice Slatter held that nothing within the Indian Act supports such a finding.
Did the Crown owe fiduciary or other duties to the "remnant" with respect to IR 139?
[521] Samson claims that after surveying IR 139 for the Bobtail Band the Crown had a duty to keep track of band members, track and identify them as beneficiaries, and avoid the invasion, destruction, or exploitation of their interest in the Reserve. Samson also submits that the "cognitive Indian interest" in relation to which the Crown owes these duties is IR 139 itself. Ermineskin adds that the Crown is in breach of its fiduciary duty to the "Bobtail remnants" if, by permitting their transfer in 1887 and denying that it exercised discretion or owed any obligation with respect to their cognizable Indian interest in IR 139, the Crown effected the Band's extinction. The Supreme Court has made clear, however, that the doctrine of fiduciary obligations is not to be invoked as "a plenary source of Crown liability covering all aspects of the Crown-Band relationship". (Wewaykum, supra at para. 81)
[522] It may be true as Samson claims that the Crown did less than it could to keep accurate records and reliable means of identifying the Aboriginal beneficiaries of IR 139. Ermineskin, too, is correct to denounce the Crown's questionable decision making with respect to the alleged surrender of the Bobtail Reserve on June 12, 1909. However, neither of these matters counterbalance the overwhelming evidence in favour of finding that the Bobtail Band ceased to exist in or around October of 1887, when the "remnants" were welcomed and accepted into the Samson and Ermineskin Bands and added to their respective paylists. The Crown's fiduciary duties to the Bobtail Band, particularly with respect to its members' collective interest in IR 139, ended when the "remnants" of the Band entered into other fiduciary relationships with the Crown as members of either Samson or Ermineskin and gained corresponding interests in their respective Reserves. Again, the law with respect to the collective nature of reserve interests is irrefutably clear and leaves no basis upon which to found a claim for successorship on the facts of this case. (Blueberry River (C.A.), supra, at paras. 3 and 16)
Are Ermineskin and Samson successor Bands to the Bobtail Band?
[523] According to Ermineskin, the "Bobtail remnants" were "recognized and accepted" within the Ermineskin and Samson Bands. However, rather than losing their identity, the "remnants" remained members of the Bobtail Band and brought with them their interest in IR 139 when they joined their successor Bands, Ermineskin and Samson.
[524] In Blueberry River (C.A.), supra, Indians who held membership in the original Beaver Band later became members of either the Doig River or Blueberry River Bands, each of whom was a successor to the Beaver Band that ceased to exist, as confirmed by Order in Council. As successors, the members of the Doig and Blueberry River Bands had a collective interest by virtue of their respective successor band memberships in what once belonged to the Beaver Band. On the basis of these facts, which are clearly distinguishable from those in the present case, the Court held that the interest that a given band's members have in that band's reserve is not an individual interest because a reserve is set aside for a particular band, not for individuals. It is worth noting that there is nothing in the Court's analysis of those facts to suggest that successorship depends on membership in two bands at the same time, as Samson alleges.
[525] Instead, the decision in Blueberry River, supra, stands for the proposition that the reserve interest does not follow band members if they leave the band for which it originally was set apart. When individuals leave one band to join another, they gain an interest in the reserve and other rights of the band they join. (Blueberry River (C.A.), supra at para. 16) On the basis of the unique facts in that case, the Court in Blueberry River found that when the Beaver Band divided into two new bands, the collective rights and interests of the former band passed to the members of the new, successor bands.
[526] If, as counsel for Ermineskin suggests, the Bobtail remnants were welcomed by the existing members of their successor bands in or after 1887, the facts of this case are clearly distinguishable not only from the band-division and -creation situation in Blueberry River (C.A.), supra, but from the facts as determined by the trial judge in Kingfisher, supra. In that case, Justice Gibson found that individuals could move onto another band's reserve without ever becoming true members of that band when the facts clearly indicated that they were never "fully accepted by traditional members" of the band, but continued to see themselves and to be seen as "squatters" by the members of the band to whom the reserve belonged. (Kingfisher (T.D.), supra, at para. 92)
[527] Samson and Ermineskin themselves admit that the circumstances in this case are clearly different. It does not follow from the facts in this case that adding the "Bobtail remnants" to the Samson and Ermineskin Band paylists was "nothing more than an administrative convenience". (Kingfisher, supra at para. 91) Rather, as Samson submits, if there is no reasonable basis in law upon which to find that the "Bobtail remnants" could live and work in league with the full members of the Samson and Ermineskin Bands, without themselves becoming members of those Bands, then they became, at minimum, de facto members of those bands.
[528] That said, there was no basis in law for distinguishing de facto from full band membership in 1887. Hence even if the circumstances that led Agent Lucas to consider the "remnants" merely de facto members of Samson and Ermineskin, they were, in fact and in accordance with the legal requirements in place at that time, bona fide members of those Band, receiving benefits and, in some instances, acting and signing agreements with the Crown as representatives not of the Bobtail Band, but of the Bands into which they emigrated.
[529] Absent legal authority or cogent factual evidence to the contrary, there is no basis in fact or law to draw the distinction with respect to membership in this case as Justice Gibson drew in Kingfisher, supra. On the contrary: there is no reason to believe that if Justice Gibson had found that the individuals in that case were welcomed by the members of the reserve onto which they migrated, his finding with respect to their acceptance into full membership would also have been different. Nor is there any basis for accepting that Ermineskin and Samson were at any time successors to the Bobtail Band or its interest in IR 139.
[530] Accordingly, I have reached the following conclusions with respect to the "Bobtail remnants."
[531] First, the evidence in this case, notwithstanding its complexities and apparent contradictions, clearly favours an interpretation of the events of 1887 and thereafter as indicating a valid transfer of thirty-two "Bobtail remnants" into the Samson and Ermineskin Bands. There was no official policy, practice, or legislated requirements with respect to transfers in 1887. Nor did subsequent procedural and statutory criteria apply retroactively or otherwise affect inter-band movement that occurred before their enactment.
[532] Second, Order in Council P.C. 1151, while indicative of the federal Government's uncertainty or limited awareness of circumstances in Peace Hills with respect to the Bobtail Band, confirmed the existence of IR 139, not the Bobtail Band.
[533] Third, there is no factual or legal basis for finding that during the period in issue individuals who transferred between bands took with them any interest in their former Band or its Reserve. Nor are there grounds for finding that individuals could be members of, and hold interests in the reserves belonging to more than one Band at the same time.
[534] Finally, the Crown was in a fiduciary relationship with the Bobtail Band and owed its members specific obligations with respect to IR 139 from the time it undertook to set aside and survey the land as a Reserve for their use and benefit. The Crown's duty to the "Bobtail remnants" ended when they joined other Bands, at which time they entered into a similar but distinct fiduciary relationship with the Crown as members of those Bands.
What is the legal effect of the readmission agreement?
[535] The parties raised a host of issues in relation to the untitled August 10, 1887 agreement, largely in the domain of contract law, including unconsionability, lack of authority, repugnance, severance, and that the agreement is a contract of slavery or servitude. As well, the arguments raise questions regarding the applicability of the principles of treaty interpretation, Crown fiduciary obligations, and standing.
Submissions of the Parties
[536] Montana argues that the Department was not obliged to assist, nor did it owe any fiduciary, treaty, or other obligation to individuals who voluntarily withdrew from treaty. Nor, according to Montana, can a third party now seek relief from agreements between individuals and the Crown in which it had not taken part or pursue an action for an alleged breach of fiduciary duty with respect to the August 10, 1887 agreement. Montana argues first, that fiduciary and treaty obligations flow from the Crown to Indian Bands, not to individuals. Second, that the decision to restore individuals to certain privileges under the agreement was a matter of grace subject to the Department's discretion. Montana alleges that the intention of the Government in accepting former Treaty Indians back onto Reserves and its care was to avoid having large numbers of them living in destitution, unable to support themselves in non-Aboriginal communities after being discharged and spending the scrip they received as "Half-breeds." According to Montana, the intention of Bobtail and his followers was never to be fully readmitted to Treaty 6, because they had nothing to offer in return for the Department's promise to "look after them." Montana disputes that the "readmittees" were restored to Treaty status, and claims that because the agreement fulfilled the reasonable expectations of all of the parties to it, its contents cannot be severed and it must stand or fall as-is.
[537] Samson argues that the discharges of Chief Bobtail and his followers were improper and invalid and, therefore, that the readmission agreement is irrelevant. In the alternative, Samson argues that its effect was twofold. First, in accordance with the written authorization from the Superintendent General, the agreement readmitted Bobtail and his family to Treaty 6, allowing them to "resume" all rights and obligations due under that Treaty as well as all "rights and disabilities" under the Indian Act. Second, under the terms of the readmission agreement, Bobtail and his followers allegedly "surrendered" those same rights. In the process, the "readmittees" and their families were "thrown" on the mercy of the Crown. Samson further alleges that Assistant Indian Commissioner Reed, in drafting the additional terms, was pursuing his own agenda and that if the agreement can be considered a contract at all, it represents a contract of slavery. Samson submits the additional terms in which the "readmittees" agreed that neither they nor their offspring would claim any further treaty entitlements ought to be severed.
[538] As noted earlier, Ermineskin takes the position that Bobtail and his followers were not legally discharged from treaty. In the alternative, Ermineskin seeks to uphold as valid their full readmission to treaty under the August 10, 1887 agreement. Ermineskin alleges that because the "readmittees'" treaty rights were never properly removed, they continued to be members of the Bobtail Band rather than individuals who entered into contractual agreements with the Department. Claiming that the August 10, 1887 document is an agreement regarding treaty rights, Ermineskin denies that contract law applies to its interpretation; rather, it should be examined according to established principles of treaty interpretation. In addition, Ermineskin argues that the terms added by Assistant Commissioner Reed were inconsistent with and repugnant to the Superintendent General's intention to readmit Bobtail and his followers to treaty; that the jurisprudence does not support individual Indians "contracting out" of certain treaty rights; and that the Crown breached its duty to ensure that the assets of the Bobtail Band were preserved and that its members fully understood the implications of any "agreement" to surrender or proscribe future claims to their rights and entitlements under treaty. Ermineskin submits the terms in question should be disregarded or struck from the August 10, 1887 agreement on the understanding that the "readmittees" should have been restored to the position that they would have been in had the Crown not breached its treaty, fiduciary, or other duties to them by allowing them to leave treaty in the first place.
[539] The Crown claims that the decision to leave treaty was an individual choice and that Bobtail and the other individuals who left were validly discharged. According to the Crown, the August 10, 1887 agreement is a valid, formal legal document which indicates that at the time of signing it was read and explained to the parties but which does not indicate that Bobtail or his followers identified themselves as members of any Indian Band or that they intended to lay any claim to IR 139. The Crown alleges that the Department of Indian Affairs fairly treated Bobtail and the other parties, allowed them to return to their former way of life and residence on-reserve, and took care of them for the rest of their lives. The Crown argues that the text of the August 10, 1887 document itself permits the inference that Indians who left treaty had been warned by Department officials before doing so and that Bobtail and the other parties to the readmission agreement had nevertheless decided that returning to their former way of life was preferable to the hardships they encountered off-reserve. The Crown submits the readmission agreement should be upheld as written and consented to by all parties.
[540] Some of the parties advanced contract-law arguments as a means of interpreting the August 10, 1887 agreement. Others, claiming that the law of contract does not apply to Crown-Aboriginal agreements, nevertheless advanced arguments based on principles common to that area of the law, including unconscionability, repugnance, lack of authority, and severance.
[541] Montana argues that when Crown representatives act within their general or apparent scope of authority, the agreements that they enter into are binding contracts. Given that Assistant Indian Commissioner Reed was an employee of the Department of Indian Affairs, Montana alleges that he was acting with authority as the Crown's representative when he drafted the terms of the August 10, 1887 agreement.
[542] Montana relies on the definition section of the 1886 Act to argue that the "readmittees" were persons "of Indian blood ... reputed to belong to an irregular Band" because they did not have an interest in common funds managed by the Crown, own an interest in a reserve or other lands vested in the Crown, or have treaty relations with the Crown. Therefore, Bobtail and his followers were "non-Treaty Indians" at the time of entering the agreement. (Indian Act, supra, ss. 2(g) and 2(i))
[543] Montana further argues that although section 21 of the 1886 Act describes as void any agreement that allows non-band Indians or other persons to live on-reserve, its application is restricted to agreements made by any Indian and does not limit agreements made by the Crown. According to Montana, section 22 of the 1886 Act, read together with a later amendment, authorized the Crown to enter into agreements that permitted non-band members such as Bobtail and his followers to reside on reserve under the authority of the Superintendent General. (Indian Act, S.C. 1894, c. 32, s. 2) Rejecting the idea that only Indians as defined in section 2(h) of the 1886 Act could live on reserves, Montana claims that the Superintendent General or his agent relied on the "very special circumstances" in section 13 of the Act to permit the "readmittees" to live on reserve as "half-breeds" accounted for as Indians.
[544] Both Samson and Ermineskin argue that contract law does not apply to agreements between Aboriginal peoples and the Crown. In the alternative, Samson argues that throwing the "readmittees" on the mercy of the Crown violated both the "instructions" of the Superintendent General of Indian Affairs and section 2(d) of the Act, which defined "Indians" on the basis of their interest in reserve lands, and section 21 that only "Indians" had the right to live on and use reserve lands. Samson argues that the August 10, 1887 agreement could not limit the rights of "readmittees" to claim an interest in the same reserve lands that it allowed them to resume using and living on. Similarly, Ermineskin argues that to the extent that the August 10, 1887 agreement recognized the "readmittees'" status but extinguished their ability to claim certain rights such as an interest in lands and annuities, it was ultra vires the Indian Act.
[545] The Crown claims that although the August 10, 1887 agreement restored the "readmittees" to status as Treaty Indians, it did not ensure them all of the rights and privileges that they enjoyed before they left treaty. According to the Crown, is it not necessary for every person under treaty to be guaranteed the same rights and benefits. Arguing that annuities are merely one form of benefit to which Treaty Indians are entitled, the Crown points to evidence of other individuals who accepted lump-sum payments rather than yearly payments of annuities.
[546] The test for unconscionability, set out in Morrison v. Coast Finance Ltd. et al. (1965), 55 D.L.R. (2d) 710 (B.C.C.A.) at 713, has been applied by both Canadian and English courts (Harry v. Kreutziger (1978), 95 D.L.R. (3d) 231 at 237 (B.C.C.A.); Lloyd's Bank v. Bundy, [1974] 2 All E.R. 757 at 764-765 (C.A.)). For a contract to be found unconscionable, the party bringing a claim for unconscionability must prove both an inequality in bargaining power between the parties "arising out of the ignorance, need or distress of the weaker, which left him in the power of the stronger" and the "substantial unfairness" of the resulting bargain. (Morrison, supra, at 713)
[547] Ermineskin advances the position that the terms by which the "readmittees" gave up their ability to claim treaty rights despite their readmission to treaty are unconscionable and severable from the remainder of the agreement. According to Ermineskin, Mr. Reed took advantage of the desperation among Bobtail and his followers to gain an advantage for the Crown. Ermineskin suggests that Bobtail's unhappiness and willingness to return to life on-reserve may have contributed to his decision to seek readmission because he felt that he was not free to do as he wished and that his life would remain subject to government interference even off reserve.
[548] Samson claims that the concept of unequal bargaining power operates as a contemporary form of the doctrine of unconscionability. Several factors reflect an inequality of bargaining positions, including a lack of independent advice or business experience, limited education, distress or need, and ignorance of the "true effect" that a transaction can have. (Moore v. Federal Business Development Bank, Chipman and Haddad, [1981] 30 Nfld & P.E.I.R. 91 at 98 (P.E.I.S.C.)) Describing the dynamic between Bobtail and his followers and the Assistant Indian Commissioner Reed in the summer of 1887 as a "relationship of dominance," Samson argues that the conduct which resulted in the "surrender" terms of the August 10, 1887 agreement was of such an unconscionable character that upholding it would "perpetuate an injustice and produce an unfair result." (G.H.L. Fridman, The Law of Contract in Canada, 4th ed. (Toronto: Carswell, 1999) at 343)
[549] According to Samson, the Superintendent General of Indian Affairs gave Mr. Reed "instructions" that authorized the readmission of Bobtail and his followers subject only to the requirement that they refund the value of scrip that they had previously received. Samson claims that Mr. Reed exploited the parties' unequal bargaining positions to gain an advantage for the Department through an agreement that was not truly "voluntary," regardless of what the document itself says. Samson argues that the resulting agreement is "substantially unfair to the weaker party" and "sufficiently divergent from community standards of commercial morality that it should be set aside." (Stephenson v. Hilti (Canada) Ltd. (1989), 63 D.L.R. (4th) 573 at 579, cited in Woods v. Hubley (1995), 130 D.L.R. (4th) 119 at 126 (N.S.C.A.)) Samson further alleges that the "surrender" terms of the August 10, 1887 agreement are invalid because Bobtail and the other parties were illiterate and not properly informed about the commitments they were making; because at the time of signing they were in positions of desperation and servitude to the Crown; and because it was unconscionable for an agent of the Crown to take advantage of the "readmittees"' duress and of the inequality among their respective bargaining positions to gain advantage, drafting terms that were more advantageous to the government than those authorized by his superior officer.
[550] Montana rejects claims that Bobtail and the other "readmittees" were subjected to an unconscionable, unauthorized, or illegal agreement, or to a "precondition severable" that required them to surrender their resumed treaty rights as a condition precedent for their entry into the August 10, 1887 agreement with the Crown. Rather than any condition precedent, Montana alleges that the promise not to claim annuities, former reserves, cattle, other land, and implements represents the fundamental consideration that flowed from the "readmittees" to the Crown for its promise to allow them to return to certain treaty privileges. If not for this fundamental consideration, the "readmittees" would have had nothing to offer the Department in exchange for the many benefits it provided them under the agreement. According to Montana, the only thing that the "readmittees" gave up was their ability to claim certain treaty privileges, in exchange for which they were promised and received other others.
[551] The Crown describes the readmission agreement as a clear, unambiguous statement by Bobtail and the other "readmitteees" that they would not make any claim either for annuities or for any part of IR 139. The Crown further argues that the "readmittees" were free and capable of making their own individual decisions to enter the agreement and that they promised not to make future claims "in consideration" of the Department's permission to return to life on reserve, as the text of the agreement itself attests. The "readmittees" did not object to its terms or suggest that any part of it violated existing government policy. Nor did the Department protest the additional terms when it later received a copy of the agreement. Instead, the Crown alleges, the "readmittees" received without objection many of the benefits that they had been promised under Treaty 6, including rations, farming and hunting assistance, a return to life on reserve lands, and, in Bobtail's case, medical assistance. In short, the "readmittees" benefited greatly from the agreement; the only privilege that they did not receive was any right or entitlement to IR 139.
[552] The Crown denies that no interpreters were present or that Bobtail and the "readmittees" did not know what they were agreeing to when they signed the agreement. The Crown points to expert witness testimony that two individuals, John Pritchard and James Bird, were identified in government documents as interpreters with the Peace Hills Agency at the time in question. The Crown further denies that the terms of the readmission agreement are contrary to "instructions" given by the Department of Indian Affairs. Rather, the Crown argues that determining whether the agreement was contrary to "instructions" depends on how one characterizes the content of the correspondence between the offices of the Superintendent General, the Indian Commissioner, and the Assistant Indian Commissioner in the weeks prior to August 10, 1887.
[553] Ermineskin cites Brown Bros. Motor Lease Canada Ltd. v. Ganapathi (1982), 139 D.L.R. (3d) 227 at 231-232, in which the British Columbia Supreme Court held that the doctrine of repugnancy allows courts to reject a proviso or term of an agreement if doing so is the only way in which they can give effect to the real intention of the parties. In that case, the repugnant clause in the agreement appeared to be "an afterthought" and was not in keeping with the other clauses. In this case, Ermineskin claims that the effect of the terms that the Assistant Commissioner added to the readmission agreement is to destroy the liability of the Crown, which formed the basis of the covenant between them. As such, Ermineskin claims that the terms are repugnant and must be severed if the real intentions of the parties to that agreement are to be given legal effect.
[554] Ermineskin argues that the opening words of the August 10, 1887 agreement make clear the "fundamental intention" of all of the parties, including the Crown, which was to readmit Bobtail and the other parties to Treaty 6. According to Ermineskin, it is inconceivable that the parties to the August 10, 1887 agreement intended to readmit Bobtail and his followers to treaty and at the same time to renounce their treaty rights, including their receipt of annuities, reserve land interests, and farming support. Ermineskin claims that the terms written in the field by Assistant Commissioner Reed are not only unjust and unconscionable, but are inconsistent with and repugnant to the government's intentions, as evidenced by the Superintendent General's "instructions." Ermineskin relies on Department records to advance an argument that Department officials long assumed that both government policy and the Superintendent General's intentions had been followed with respect to Bobtail and the other parties to the August 10, 1887 agreement.
[555] According to Ermineskin, government policy allowed officials to decide whether to readmit individuals, but limited officers' discretion once they accepted an individual for readmission by making it conditional on the withholding of annuity monies until the readmitted party repaid the value of scrip they had received. Ermineskin argues that for years officials in Ottawa assumed that its representatives had followed "instructions" with respect to the Bobtail readmissions, despite the correspondence that Commissioner Dewdney sent to Ottawa on August 18, 1887 in which he noted the variation between Deputy Superintendent General Vankoughnet's letter and the terms established by Assistant Commissioner Reed in the August 10, 1887 agreement. Ermineskin suggests that the way in which Commissioner Dewdney characterized the wisdom of withholding annuity payments until individuals refunded the value of scrip they received may have contributed to the Department's misunderstanding of the terms for readmitting Bobtail and his followers, as evident in subsequent correspondence between Mr. Dewdney and Deputy Superintendent General Vankoughnet.
[556] Montana argues that none of the parties to the August 10, 1887 agreement ever intended to readmit Bobtail and his followers into treaty. Montana alleges, first, that correspondence between Department officials in July of 1886 suggest that the government considered accepting discharged individuals for return in order to avoid difficulties it anticipated from their continuing to live in destitution, unable to support themselves in non-Aboriginal communities off-reserve; and second, that it was never the intention, expectation, or desire of Bobtail and his followers to have all of their former treaty rights restored to them. Montana refers to a single reference in Father Lacombe's petition to the Department to consider re-admitting Bobtail and his followers at their request and alleges that Bobtail and his followers did not seek readmission or a full return to Treaty 6, but only wanted to return to their reserves and treaty privileges. Montana also relies on a letter dated April 20, 1891 in which Commissioner Reed expressed his understanding of the August 10, 1887 agreement as having restored Bobtail and the other signatories as a matter of grace to certain privileges. According to Montana, the agreement neither contemplated nor promised anything more. Therefore, the doctrine of repugnancy has no application.
[557] The Crown alleges that although the Department readmitted Bobtail and the other parties to treaty status, its doing so did not ensure them all of the rights and privileges that they enjoyed before they left treaty. According to the Crown, it is not necessary for every person under treaty to be guaranteed the same rights and benefits. Arguing that annuities are merely one form of benefit to which Treaty Indians are entitled, the Crown relies on evidence of other individuals who accepted lump-sum payments rather than yearly payments of annuities to suggest that not all Treaty Indians received the same benefits. In addition, the Crown denies that the government had established any official readmission policy when it accepted Bobtail and his followers as the first "readmittees" and argues that because the August 10, 1887 agreement was the first of its kind it is neither helpful nor necessary to consider subsequent developments, including correspondence, memoranda, or other readmission agreements when determining its significance and effect. According to the Crown, even if the Department subsequently developed a readmission policy, it would not affect an understanding of the events surrounding the August 10, 1887 agreement; nor do events or the Department's relations with other peoples in another place at another time bear any relevance to interpreting the agreement and the historical events in question. The Crown argues that the intentions of the parties to the readmission were met and that by advancing arguments based on the doctrine of repugnancy, Ermineskin is "trying to re-make the agreement entirely, not to understand it."
[558] Samson alleges that the Assistant Indian Commissioner exceeded his authority in imposing the "surrender" terms on the Bobtail "readmittees." According to Samson, Mr. Reed was an agent or delegate of the Department and therefore lacked authority to require, impose, or accept from Bobtail and his followers any surrender of treaty rights as a precondition to the terms of readmission approved by the Superintendent General. Samson relies on two judgments in which courts found that officers employed by municipal councils exceeded their authority by imposing certain conditions on contracts. (274099 Alberta Ltd. v. Development Appeal Board of Sturgeon Municipal District No. 90 (1990), 75 D.L.R. (4th) 326 (Alta C.A.); and Yellowknife v. Yellowknife Development Appeal Board, [1994] N.W.T.J. No. 92 (S.C.)) The courts in each case found the impugned conditions ultra vires and unenforceable because they represented an unauthorized delegation or use of power by individual officers beyond what the scope of their duties as limited by each municipality's governing statutes. (274099 Alberta Ltd., supra, at 332; Yellowknife, supra, at para. 27) From this, Samson argues that to the extent that Mr. Reed's actions in adding or changing the terms of the readmission agreement with Bobtail and his followers exceeded the terms and course of action expressly approved by the Superintendent General his actions, reveal an excessive use of the power delegated to him.
[559] Montana's response to the allegation of severable "preconditions", which it deems to mean conditions precedent, is noted above. The Crown rejects the argument that agency law applies to the readmission agreement and argues that the cases referred to by Samson are clearly distinguishable and of no assistance to its interpretation. The Crown, like Montana, claims that the Department was in a position to have refused to readmit Bobtail and his followers. The Crown alleges that by identifying themselves as "Half-breeds" the year before, they had extinguished any entitlement to Aboriginal rights or interest in reserve lands. The Crown further denies any wrong-doing on the part of the Assistant Commissioner and argues, that he acted within his authority as an employee of the Government of Canada and that the law of agency does not apply to his actions with respect to the August 10, 1887 agreement.
[560] Samson alleges that if the August 10, 1887 agreement was a contract, it was a contract of slavery because Bobtail and his followers were in a position of servitude or effectual slavery to the Department and its officials, including the Agents at Peace Hills. In evidence, Samson refers to the report of Inspector Wadsworth, who in 1887 stated that although he did not see the "readmittees" working for the Indian Agent, the Agent said that "they do whatever work he asks them to do." As further support, Samson cites an Ontario case from 1905 in which the Court of Appeal held that a promise by which an individual surrendered to a religious organization "all the duties and obligations of organized society" was not an enforceable legal contract because "even if voluntary [it was] in effect neither more nor less than slavery." (Archer v. The Society of the Sacred Heart of Jesus (1905), 9 O.L.R. 474 at 490)
[561] Montana and the Crown each reject arguments that the agreement is a contract of slavery or servitude. They, too, cite Inspector Wadsworth's report in their submissions, but note his observation that regardless of what the Indian Agent claimed, the "readmittees" were not asked to do anything by the Agent in the two weeks in 1887 in which Wadsworth himself was in the area. Further, they note that the agreement does not confine the "readmittees" to any given location or position, compel them to work for the Agency, or prevent them from earning money for the work that they did.
[562] Ermineskin submits the terms in question should be severed and effect should be given to the real intentions of the parties to the August 10, 1887 agreement to readmit Bobtail and his followers and to restore their full treaty rights, claiming that those intentions are consistent with the"instructions" of the Superintendent General. Relying on the doctrines of unconscionability and fiduciary obligation, Ermineskin argues that failing to sever the terms added by Assistant Indian Commissioner Reed would be equivalent to condoning a breach of the Crown's fiduciary and treaty obligations. According to Ermineskin, the additional terms renouncing the "readmittees" treaty rights are irreconcilable with the intention to readmit them in the first place and must be set aside if the honour of the Crown is to be upheld and effect given to the "real intentions" of the parties to the readmission agreement.
[563] Samson argues for the August 10, 1887 agreement to be subject to the only condition authorized by the Superintendent General: the gradual repayment of scrip. In a contractual relationship, Samson notes, such repayment would represent a form of legal "set-off" and would not impair the rights that otherwise attached to the relationship between the government and the other signatories. (Lord Hailsham of St. Marylebone, Halsbury's Laws of England, 4th ed. (London: Butterworths, 1983) vol. 42 at 240-241 (paras. 406 and 410); Chitty on Contracts, 27th ed. (London: Sweet and Maxwell, 1994) vol. 1 at 1194 (para. 25-026)) Insofar as the terms of the August 10, 1887 agreement compel the surrender of treaty rights and any right to claim land or other treaty privileges among Bobtail, the other signatories, and each of their issue, Samson alleges that they cannot be enforced because they are contrary to the law in effect in Peace Hills at that time (North-West Territories Act, R.S.C. 1886, c. 50, s. 11) and therefore should be severed.
[564] In support of its argument for those "surrender" terms to be severed, Samson refers to William E. Thomson and Associates Inc. v. Carpenter, [1989] 61 D.L.R. (4th) 1, in which the Court of Appeal for Ontario reviewed established principles for determining whether public policy may prevent courts from severing portions of agreements that are tainted by illegality. The relevant factors set out in that case are whether the object and policy of a particular law would be undermined by enforcing part of the agreement in question; whether the parties intended to break the law; whether they were of equal bargaining power and were advised professionally; and whether one of them would be unjustly enriched if the agreement was not enforced (William E. Thomson Associates Inc., supra, at 8 and 11-12). In applying the reasons in that judgment to the present case, Samson alleges that severing the "surrender" provisions would not subvert public policy; rather, their severance would uphold public policy and the Superintendent General's "instructions." According to Samson, there is no evidence that either Department representatives nor Bobtail and his followers intended to break the law by entering into the agreement, which was not only the product of unequal bargaining positions, but was completed without Bobtail and his followers having received professional advice. Finally, the Department was unjustly enriched in Samson's view by not having to pay any further treaty annuities to the Bobtail "readmittees," by being able to determine where they would live and what benefits they would receive, and by taking advantage of their labour whenever and in whatever manner the Indian Agent chose and asked of them.
[565] Montana responds in two ways. First, Montana claims that the evidence led in this case demonstrates that the Crown always honoured the promises it made under that agreement. Second, Montana alleges that the evidence led at trial establishes that Bobtail and the other parties willingly received the benefits of the Crown's promises and accepted the terms of the readmission agreement. According to Montana, even if the terms drafted by Assistant Commissioner Reed do not follow exactly the instructions given by the Superintendent General, the terms are consistent with and within the scope of those instructions. As noted elsewhere, Montana rejects arguments that the terms added by Assistant Commissioner Reed represent any form of precondition or condition precedent that can be severed while allowing the remainder of the document to stand and argues, rather, that there is no basis to set the agreement aside and that severance of one or more of its components is impossible.
[566] The Crown submits that all terms of the August 10, 1887 readmission agreement should be upheld as written and voluntarily assented to by all of the signatories. If Bobtail and his followers were competent to sign adhesions to Treaty 6 that were reportedly translated and explained to them, the Crown sees no reason to question their capacity to withdraw from or sign agreements readmitting them to treaty in the presence of translators employed under the authority of the Peace Hills Agency.
[567] From its position that the withdrawal from treaty signed by Bobtail Band members was invalid and that the "readmittees" never lost their status as Treaty Indians, Ermineskin argues that the Crown continued to owe the Band an obligation to act in its best interests. Ermineskin alleges that to the extent that the August 10, 1887 agreement deals with treaty readmission, rights, and privileges, rather than being a form of contract, it is treaty-like and therefore subject to principles of treaty interpretation. Ermineskin notes that in the treaty context, the honour of the Crown is always at stake, and implies that the process of drafting and signing the readmission agreement was no exception.
[568] While the August 10, 1887 agreement allowed Bobtail and his followers to resume their Indian status and reside on reserves, Montana maintains that it neither readmitted them into treaty nor restored all of the rights and privileges that they had enjoyed before their withdrawal. Montana further maintains that agents of the Department drafted and subsequently signed a single agreement with several individuals who did not identify themselves as belonging to a particular Indian Band
[569] The Crown similarly rejects Ermineskin's treaty interpretation argument and argues that the August 10, 1887 agreement was negotiated and signed by individuals and the Crown, while treaties are signed by bands on behalf of their members as a collective. The Crown also denies that its honour is a source of plenary obligation and rejects arguments that it owed the Bobtail "readmittees" any specific duties on this basis.
[570] Ermineskin maintains that the fiduciary doctrine applies to the circumstances of this case and that whether as continuing band members or as individuals the Crown owed the "readmittees" a duty to preserve the band's assets; that the only way to bring that duty to an end would have been for the entire band to surrender its sui generis rights and Indian interests, which it had not done on or before August 10, 1887; that existing jurisprudence links the concepts of undue influence and unconscionability to that of fiduciary duty; and that courts can refuse to uphold terms in a bargain by which a fiduciary takes advantage of and enters into an unconscionable bargain with a beneficiary or weaker party. (Hodgkinson, supra, at para. 25) Ermineskin alleges that by not preventing Bobtail and his followers from leaving treaty and by granting them scrip as "Half-breeds" despite evidence that they enjoyed an Indian "mode of life" and were unlikely to be able to survive on their own among non-Aboriginal populations, the Crown breached its duty over members of the Bobtail Band who were "particularly vulnerable" and dependent upon both the mercy of the Crown and its treaty promises.
[571] Ermineskin further agues that in circumstances in which the honour of the Crown was at stake, Assistant Indian Commissioner Reed took advantage of the desperation among Bobtail and the other "readmittees," who were powerless and lacked viable alternatives. In doing so, he extracted from them terms that were unconscionable, exploitive, and contrary to the Crown's duty to act in the best interests of the band and the individual "readmittees" who, according to Ermineskin, continued to share an interest in IR 139 and in any event were readmitted into treaty by the August 10, 1887 agreement. Ermineskin alleges that it is not open to the Crown to take advantage of its own breach by claiming that the Bobtail Band no longer existed, by entering into an unconscionable agreement with some of its members, or by denying that it owed all of them, including the "readmittees," a continuing duty to uphold its fiduciary and treaty obligations.
[572] Samson argues that fiduciary relations only hold between the Crown and Indian Bands, not individuals. However, Samson argues that because Bobtail and his followers were never properly discharged from Treaty 6, they continued to be entitled to the same treaty rights as other band members. Samson rejects the Crown's claim that the Bobtail Band ceased to exist in or before 1890 and that the Crown could not have owed it fiduciary or other obligations when Bobtail and some of his followers accepted scrip after having left Indian Reserve 139. Without applying fiduciary principles, Samson nevertheless alleges that the Crown exploited its superior bargaining position to create an unconscionable contract with the "readmittees."
[573] Montana argues that, in part, the Crown's fiduciary duty towards Aboriginal peoples is based on the considerable discretionary control that it historically assumed over their lives and that its role is as trustee or fiduciary to them. Montana further claims that while the honour of the Crown is always at stake in its dealings with Aboriginal peoples, not all Crown-Aboriginal relationships invoke fiduciary obligations and further, that the Crown can only owe such obligations to bands, not to individuals. Therefore, according to Montana, the Crown was not acting in the role of fiduciary during the events leading up to and including the August 10, 1887 agreement, nor did it owe a fiduciary duty to the individual "readmittees" as a result of that agreement.
[574] The Crown claims that once an Indian band ceases to exist, any former fiduciary duty related to reserve lands in which they had an interest is extinguished and the Crown no longer owes the band or its members any specific fiduciary or treaty obligations. The Crown alleges that Bobtail Band members and other Treaty Indians who left before their reserves were surveyed made their decisions to do so as individuals, meaning that the Department owed them nothing further. According to the Crown, there was no "cognizable Indian interest" that could give rise to a fiduciary obligation when the "readmittees" entered the agreement on August 19, 1887. (Wewaykum Indian Band v. Canada, [2002] 4 S.C.R. 245 at para. 85) In addition, the Crown argues that even if it continued to owe any such obligation to Bobtail and his followers, third parties Samson and Ermineskin lack the necessary standing to establish a claim for its breach.
[575] As the answer to this question is subsumed in the answer to the broader question regarding Ermineskin's and Samson's standing in the litigation, it will be considered separately.
Analysis
[576] With respect to the allegations of unconscionability, it is worth noting that Indian Commissioner Dewdney himself, in a letter to the Superintendent General, noted that Bobtail and his followers were "so desirous of returning to Treaty on any terms" that they were willing to "throw themselves as much as possible on the mercy of the Department" and allow the government to draft "such better terms as might to it seem fitting" in light of the parties' evident desperation. Commissioner Dewdney's observation implies that the bargaining power of Bobtail and his followers may have been "grievously impaired by reason of [their] own needs or desires¼ coupled with undue influences or pressures brought to bear upon [them] by or for the benefit of the other." (Lloyd's Bank, supra, at 765) However, although the evidence before the Court generally supports a finding of unequal bargaining power between the defendant Crown and the "readmittees," it is insufficient to establish that the agreement as a whole was unconscionable.
[577] First, the evidence does not establish that Assistant Commissioner Reed had a personal agenda to remove Bobtail or other specific individuals from treaty. Similarly, on the evidence available it is not reasonable to accept arguments that the "readmittees" were utterly unaware of or unable to understand what they were agreeing to. Bobtail had negotiated his Band's adhesion to Treaty 6, suggesting that he had at least some awareness of the process and the availability of interpreters and other sources of possible assistance, including Father Lacombe. On the whole, the evidence favours the likelihood that interpreters were present in the Agency at the time in question; that the August 10, 1887 agreement was read and explained to Bobtail and his followers as stated in its preamble; and that Agency officials had been advised to warn Indians who sought to leave treaty and were likely to have done so with respect to Bobtail and his followers. Therefore, it is not reasonable to find the readmission agreement unconscionable on these grounds.
[578] In my view, there is no basis on which to accept that the doctrine of repugnancy has any application to the readmission agreement. It cannot reasonably be said that, on its face, the agreement's "dominant purpose" is merely to readmit Bobtail and his followers to treaty as though they had never left. The text of the agreement itself expressly states intentions to the contrary. Moreover, correspondence from Assistant Indian Commissioner Reed in which he recommended that Bobtail be readmitted clearly contemplated the possibility of something other than wholesale readmission. Arguably, the condition of withholding annuities approved by the Department in Ottawa did the same, suggesting that the intention of the Department was to allow Bobtail and his followers back on reserve among other Treaty Indians, but to do so only if they agreed to certain conditions.
[579] Montana argues that the August 10, 1887 agreement resulted in the "readmittees" becoming "non-Treaty Indians." Yet, there is no evidence that such a transformation took place, was documented, or was even contemplated by any of the parties present on the date in question or at any time in the future. In fact, Departmental correspondence originating in Ottawa suggests entirely the opposite: it appears that Ottawa understood that on August 10, 1887 Bobtail and his followers were readmitted to treaty on the terms approved by the Superintendent General MacDonald on July 11, 1887. This evidence does not suffice, however, to support a finding that the Department had contemplated a readmission policy in 1887 or would have found the August 10, 1887 agreement repugnant to any such policy, had one existed.
[580] On the other hand, neither is there compelling evidence to support the Crown's argument that it was open to the government to pick and choose which Treaty Indians were entitled to which treaty rights and obligations, or its further argument that the readmission agreement was a means to an end in the sense that the August 10, 1887 document made it possible for the Agents in Peace Hills to allow non-Indians such as Bobtail and the other "readmittees" to live on and use Reserve lands, including Indian Reserve 139. Nevertheless, even if the Crown assumed a duty to fulfill the promises it made to the Bobtail and his followers by readmitting them to Treaty status, there may be no need for this Court to determine whether the Crown was entitled to exercise discretion over which treaty rights it granted and which ones it withheld from them because at that moment it was contracting with them as individuals who, at least in theory, had the same rights and obligations as any other citizen of the Dominion of Canada at that time. Absent more compelling argument or evidence as to why a prima facie interpretation of the parties' intentions from text of the August 10, 1887 agreement itself and correspondence preceding it fail to make clear its dominant purpose, Ermineskin's arguments with respect to repugnancy cannot succeed.
[581] With respect to contractual relations, G.H.L. Fridman defines agency as the relationship between two individuals in which one, the agent, "is considered in law to represent the other," the principal, "in such a way as to be able to affect the principal's legal position in respect of strangers to the relationship" by making contracts. (G.H.L. Fridman, Law of Agency, 7th ed. (Toronto: Butterworths, 1996) at 11 [Fridman, Agency]) According to Fridman, in determining whether a relationship is one of agency, more important than the conduct of the parties or the language they use is how their conduct "is considered in law," for "the agency relationship is one that is created by the law, not by the conduct of the parties" (Fridman, Agency, at 13; and 21). Therefore, the "test" of whether an agent is endowed with the power to act requires evidence of either an agreement between the agent and principal to the effect that the latter will be bound by the actions of the former, or a demonstration by the principal of an intention to be bound and the agent's reasonable belief that this is so. (Fridman, Agency, at 21)
[582] A critical review of agency doctrine thus suggests that Assistant Commissioner Reed was neither a delegate (servant) nor an agent of the Crown. It is not reasonable to infer on the evidence before this Court that the effect in law of the Superintendent General's approval of the recommendation to allow Bobtail and his followers to return to treaty or at least to live on reserve was to deny Assistant Commissioner Reed the power to bind the Crown and affect its legal position vis-a-vis the Bobtail "readmittees." Rather, the available evidence supports an inference that he was an employee vested with the responsibility of negotiating a readmission agreement with Bobtail and his followers.
[583] There was a clear hierarchy of authority within the Department of Indian Affairs at the time in question. Within that framework Mr. Reed could clearly exercise some discretion in negotiating agreements with the Indians and Agents under his supervision at the Peace Hills Agency. Department correspondence suggests that officials in Ottawa fully anticipated the hands-on application of its general practices and principles by the Indian Commission and Indian Agents. While it may be noteworthy that Mr. Reed did not receive express authorization to draft the terms that he added to those approved by the Superintendent General in July of 1887, there is nothing in the evidence or arguments before the Court to suggest that his power to do so was that of an "agent" as that term operates within Canadian law.
[584] In fact, it is conceivable that the basis, in part, for Commissioner Dewdney's initial letter requesting approval of his Assistant's intended course of conduct and his subsequent letter advising the Department in Ottawa of the amended contents of the actual readmission agreement was to apprise the Crown of how it might be and ultimately was bound by agreements negotiated on its behalf by its employee-representatives. Indeed, if the law of agency has any application to the conduct of the parties to the readmission agreement, it is to affirm the binding nature of the Crown's commitment to do that which it promised it would do and the "readmittees'" commitment to avoid doing that which they promised they would not do. In this respect, on the face of the August 10, 1887 document, each party lived up to its commitments and there is no reason to look to the law of agency for answers to its interpretation or that of the parties' conduct in negotiating it.
[585] With respect to Samson's allegations that the readmission agreement amounts to a contract of slavery, it is worth noting that the Court in Archer, supra, found that the plaintiff's promises to the Society did not represent an enforceable contract. In fact, the Court held that the plaintiff, who had obtained independent advice, signed a release from liability, and accepted payment when she was dismissed from the Society had failed to provide sufficient evidence to prove that the defendants took advantage of her poverty, exercised undue influence, or were liable to pay her damages or other compensation. It is also worth noting that in Archer supra,, access to independent advice was not considered a requirement of ensuring the validity of the waiver of liability or right to further causes of action.
[586] While Archer, supra, at 488 states that courts do not enforce contracts that defy existing law or public policy, it also states that for Samson's argument that the August 10, 1887 agreement is a contract of slavery or servitude to succeed, Samson must discharge its burden of proof. To do so it must establish two things. First, that the agreement is an enforceable contract that does not contradict existing law or public policy. Second, that the Crown either exercised undue influence over or took advantage of the poverty or desperation among Bobtail and his followers in getting them to accept the terms added by its representative, Mr. Reed, in excess of those approved by his superiors. Samson has demonstrated neither.
[587] Neither the readmission agreement itself, the case law brought before this Court, nor the evidence as a whole support Samson's position that the Department indentured Bobtail and the other "readmittees" or placed them in servile positions to Agency officials. There is simply no basis on which to conclude that the readmission agreement was, in effect, a contract of slavery.
[588] The doctrine of severance developed specifically in response to the question of how to address voidness in illegal contracts. If the August 10, 1887 agreement is a form of contract, it has not been established on the evidence that it is an illegal one. Nevertheless, if the doctrine of severance is applied to the facts at hand it is not only necessary, first, to consider whether the object and policy of a law would be infringed or subverted if only part of an agreement were to be enforced; whether one or both parties to the agreement intended to break the law; and whether one party would be unjustly enriched if the agreement were not enforced at all. (G.H.L. Fridman, The Law of Contract in Canada, 4th ed. (Toronto: Carswell, 1999) at 442) According to Fridman, however, it is also necessary to determine "whether the subtraction of the void part of a contract affects the meaning of the remainder, or merely the extent", for a term is not severable if what remains after deleting it "is no longer 'a reasonable arrangement between the parties'" or an 'intelligible economic transaction.'" (Amoco Australia Pty. Ltd. v. Rocca Bros. Motor Engr.Co. Pty., [1975] A.C. 561 at 578 (P.C.), cited in Fridman, The Law of Contract in Canada, 4th ed., at 443-444 [emphasis in original])
[589] If one accepts that the law of contracts applies, then each of the parties to the August 10, 1887 agreement would have sought to protect its own legal and practical interests. With respect, there is no reason to believe that in addition to "looking after" independent actors who were not members of an Indian band with a common interest in reserve or other lands administered by the Crown, the Department would have agreed to readmit Bobtail and his followers to treaty on the condition that they would receive every benefit due those Indians who never voluntarily left treaty. Without the "readmittees'" promise not to claim any interest in land or annuities, the August 10, 1887 agreement would not be an "intelligible economic transaction" as far as the Crown is concerned. Indeed, it is arguable that the "readmittees" would be unjustly enriched if the impugned terms were struck from the agreement. Consequently, the doctrine of severability is both of dubious application to the facts of this case.
[590] To date, principles of statutory interpretation and jurisprudence have not supported the general application of contract law to treaty-like agreements between the Crown and Aboriginal peoples in Canada. Rather, Canadian courts examine such agreements by applying principles for interpreting historic treaties and statutory instruments concerning Aboriginal peoples. (R. v. Sioui, [1990] 1 S.C.R. 1025 at 1035; and Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham: Butterworths, 2002) at 409-419) Also, there exists in Canadian law a presumption against interference with Aboriginal and treaty rights. (Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85 at 143; Simon v. The Queen, [1985] 2 S.C.R. 387 at 401-402; and Sioui, supra at 1035)
[591] Specifically, the law in Canada acknowledges that the honour of the Crown is always engaged in its interactions with Aboriginal peoples; that the Crown is obliged to uphold its honour in those interactions, in particular when acting in its unique capacity to represent Indians' best interests; and that the Crown must avoid even the appearance of sharp dealing in its relations with them. (R. v. Taylor (1981), 34 O.R. (2d) 360 at 367 (C.A.); and R. v. Badger, [1996] 1 S.C.R. 771 at para. 41) Section 88 of the current Indian Act, R.S.C. 1985, c. I-5 reinforces the presumption in favour of preserving Aboriginal and treaty rights by prohibiting Canadian provinces from restricting treaty rights. (Sullivan, supra, at 413) Chief Justice Dickson once noted that courts scrutinize Crown conduct in this way because a fundamental principle that underlies the case law regarding treaty and statutory interpretation is an appreciation of societal responsibility and a concern with remedying disadvantage. (Mitchell, supra, at 99)
[592] There are no hard and fast rules for determining whether a given document is "treaty-like" and therefore subject to principles of treaty interpretation. In Simon, supra, the Supreme Court of Canada found that an agreement between a band and the Crown was a treaty even though it did not cede Indian lands. In Sioui, supra, at 1035-36, the Court held that an agreement in which the Crown promised the Huron Indians the right to exercise freely their religion, customs, and trade with non-Aboriginals in exchange for a promise of peaceful relations was a treaty. Unlike in the present case, however, the Crown in both Simon and Sioui, supra, entered into treaty-like agreements with a band, body, or group of Indians.
[593] If one accepts that Bobtail and the other parties to the agreement were never validly discharged from treaty, there is no reason to doubt that the Crown's duty to preserve Indian interests, avoid sharp dealing, and uphold its honour in all of its interactions with Treaty Indians such as Chief Bobtail and his followers would have been engaged throughout the period leading up to and including August 10, 1887. In short, there would have been no need for any readmission agreement.
[594] If, however, one accepts as this Court does that Bobtail and several of his followers were validly discharged and free to identify as "Half-breeds" rather than as "Indians" in August 1887, any agreement to readmit them to treaty at that time required them to make individual decisions to seek readmission, whether they did so on their own or as a group, with or without assistance from others. From this perspective, the August 10, 1887 agreement is not treaty-like; it is not subject to principles of treaty interpretation or exempt from application of contract-law principles; nor was the honour of the Crown necessarily engaged upon its decision to enter an agreement with Bobtail and the other "readmittees" as a collection of individuals free to make their own decisions.
[595] With respect to allegations that the Crown owed the "readmittees" obligations in the nature of a fiduciary duty, it is necessary to determine as a question of fact whether the relationship between the Department and the "readmitteees" was fiduciary and, if so, whether the Crown has rebutted the presumption that the Department as fiduciary had a duty to act in the best interests of the "readmittees" as beneficiaries. (Hodgkinson, supra, at paras. 30-31) Generally, fiduciary relationships are characterized by circumstances in which the fiduciary has scope to exercise "some discretion or power"; the fiduciary can exercise that discretion or power unilaterally "so as to affect the beneficiary's legal or practical interests"; and "[t]he beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power." (Frame v. Smith, [1987] 2 S.C.R. 99 at 136)
[596] In Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574 and Hodgkinson v. Simms, [1994] 3 S.C.R. 377, Justice La Forest distinguished two types of fiduciary relationship: those in which fiduciary obligations are presumed to exist and those in which particular circumstances give rise to the existence of fiduciary obligations. Although the essence of all fiduciary relationships is the "duty of loyalty" (J.C. Shepherd, The Law of Fiduciaries (Toronto: Carswell, 1981) at 48; and Hodgkinson, supra, at paras. 26 and 117), the specific obligations of individual fiduciaries vary depending on the circumstances, the nature of their undertaking, and the scope of the duty itself and "not every act in a so-called fiduciary relationship is encumbered with a fiduciary obligation." (Hodgkinson, supra, at para. 124)
[597] Apart from relationships that are presumed to be fiduciary, such as doctor-patient or lawyer-client relationships, there are three general situations in which Canadian courts have found relationships to be fiduciary. A fiduciary relationship can be found either when one party, the fiduciary, initiates a specific undertaking in the best interests of another, the beneficiary (Hodgkinson, supra, at para. 33; Canson Enterprises Ltd. v. Boughton, [1991] 3 S.C.R. 534 at 578); when the beneficiary had reasonable expectations about a particular element of the fiduciary-beneficiary relationship (Hodgkinson, supra, at para. 32; Lac Minerals, supra, at 665); or when the beneficiary relied upon a particular aspect of that relationship. (Hodgkinson, supra, at para. 60)
[598] With respect to the August 10, 1887 agreement it is clear from Department records that Bobtail and the other "readmittees" were "peculiarly vulnerable" and dependent on its mercy. Equally clear given the government's superior bargaining position is its scope for exercising discretion over the "readmittees" unilaterally so as to affect at least their practical interests, including their desire to escape destitution, return to living on reserve, and enjoy treaty privileges anew. By the Department's own admission, Assistant Commissioner Reed took advantage of the "readmittees'" willingness to "throw themselves as much as possible upon the mercy of the Department" and gained the government an advantage by securing "such better terms as might to it seem fitting." The evidence further shows that the Department undertook to readmit Bobtail and his followers to Treaty or "at least to allow them to reside upon their old Reserves" due to "the obvious objections to leaving an indigent set of person in a state of destitution away from controlling influences."
[599] Therefore, it is reasonable to infer that all parties to the August 10, 1887 agreement reasonably expected the government to uphold its promise to ensure that the "readmittees" had access to means of survival and places to live on reserve lands in the Agency. Given the "readmittees'" lack of objection or other expression of disagreement, misunderstanding, or discontent at the time of signing or in the years that followed, however, it is not reasonable to assume in the absence of corroborating evidence that they expected more than what they got or believed that they had any right to do so. Although language and cultural barriers may have played a role or even exacerbated historic power imbalances between Department officials and the Bobtail "readmittees," it is not open to the Court to re-write history nor to draw legal or factual inferences that are not substantiated by the evidence before it.
[600] It is simply impossible, for instance, to accept arguments that the "readmittees" failed to be informed about, understand, or voluntarily consent to the terms of the August 10, 1887 agreement. The preamble to the agreement itself offers evidence to the contrary, as do records indicating that the Agency employed the services of two interpreters during the period in issue. Moreover, the government had a responsibility to ensure that the "readmittees" were informed of and understood what they were agreeing to and any party alleging otherwise must provide proof that they failed to do so. The evidence in this regard is far from conclusive and cannot support such a finding.
[601] Not immediately apparent from the evidence is whether the decision to readmit Bobtail and his followers reflects an obligation on the part of the Department to "look after them" as wards of the state or to balance public interests and individual needs. The government assumed a high degree of discretionary control over the lives of the "readmittees" when it chose to readmit them and provide them rations and certain other treaty entitlements. Whether it claims to have done so "entirely as a matter of grace" rather than in their best interests is irrelevant. By undertaking to readmit them to treaty and assuring them the opportunity to escape destitution by living and working on reserve, the government engaged a fiduciary obligation towards the "readmittees" of August 10, 1887. Support for this view can be found in the recommendations sent by Commissioner Dewdney and Assistant Commissioner Reed to readmit Bobtail and his followers to treaty; in writing to the Superintendent General in Ottawa, both men stressed that Bobtail and his followers had been discharged immediately before Ottawa gave instructions to stop allowing treaty discharges among individuals who lived an Indian mode of life and, being unable to look after themselves off-Reserve, would pose risks to society or return in need of further support.
[602] Similarly, although the Department considered future readmission requests on a case-by-case basis, with one exception when approving future requests for readmission, it issued the same instructions as it had in July of 1887. Specifically, government correspondence shows that upon readmitting Indians to treaty, it expected the local Indian Agent to record the value of scrip they had received and the annuities withheld to refund it. The August 10, 1887 agreement was the first of its kind yet, to the extent that it denied the "readmittees" any claim to certain treaty entitlements and resulted in their names never reappearing on any annuity paylist, it appears to be the exception to emerging government practice rather than the rule.
[603] If the August 10, 1887 agreement restored the "readmittees" to treaty status, it seems reasonable to infer that from that point forward as treaty Indians they were subject to the same conditions and due the same rights, privileges, and government obligations as any other status Indian under Treaty 6. In that case, it may be possible to argue that the Crown has not successfully rebutted the presumption that upon accepting the "readmittees" back onto reserves and restoring them to status as Treaty Indians, it owed them some form of fiduciary obligation. However, although the Supreme Court held that "[i]t cannot reasonably be considered that the Crown owed no fiduciary duty during this period to bands which had not only gone into occupation of provisional reserves, but were also entirely dependent on the Crown to see the reserve-creation process through to completion" (Wewaykum, supra. at para. 89), the relevant question is "what that duty contains with respect to the lands occupied by the Band." (Ross River Dena Council Band v. Canada, [2002] 2 S.C.R. 816 at para. 77) Similarly, while the application of fiduciary principles holds between individuals within commercial or private-law contexts, it does not generally apply to public-law relationships such as those between individuals and the Crown. In addition, the Supreme Court of Canada has noted that fiduciary protection of Crown-Aboriginal dealings has only been recognized in relation to Indian Bands and their interest in land. (Wewaykum, supra, at para. 81) While this includes interests in reserves and their creation, to date it has not included the interests of individuals, including those who left treaty then were readmitted and permitted to live on reserve.
[604] The difficulty in applying such principles to the present case is that unlike other Indians who were readmitted to Treaty in the nineteenth and early twentieth centuries, the August 10, 1887 "readmittees" were never restored to any band paylists or recorded as members of a given Indian band. Even if the discharges of Bobtail and his followers in 1886 were valid, however, the Bobtail Band may have continued to exist given that several of its original members remained in occupation and use of IR 139 throughout Bobtail's absence and the "readmittees'" return. When readmitted into treaty status, did the "readmittees" also resume their membership in the Bobtail Band?
[605] One answer is suggested by the evidence of the readmission of certain Sandy Bay Indians who, despite having left their reserve as "Half-breeds" were later readmitted and apparently considered to be band members again. Montana offers another answer: since the "readmittees" neither held nor intended to claim an interest in land or annuities, if they composed a band at all, they were "non-Treaty Indians" of the sort that, according to subsection 2(i) of the 1886 Indian Act, could belong to an "irregular Band." However, subsection 2(g) not only states that irregular Bands own no interest in reserve or other Crown lands and possess no common fund managed by the Crown, but, as well, that they "have not had any treaty relations with the Crown." It seems beyond question that it was within the Department's prerogative to readmit Bobtail and his followers, whether on the basis that it should not have granted them discharges in the first place or on some other grounds. Once the Department undertook to readmit Bobtail and his followers on August 10, 1887, there appears to be no reasonable basis upon which to accept arguments that it did not have any treaty relations with them from that point forward. Is it possible, then, that the Bobtails became de facto band members?
[606] I think not. Even if one accepts that the Crown entered the August 10, 1887 agreement with the "readmittees" as autonomous individuals despite permitting them to live on reserve and enjoy certain privileges as Treaty Indians, it is conceivable that they never became members of any Indian band. In undertaking to readmit Bobtail and his followers, the Crown acted in its public law capacity to balance the needs of society at large and those of individuals who were unable to support themselves within it. In this way, there is no basis for finding that the readmission agreement of August 10, 1887 invoked specific fiduciary obligations in relation to reserve or other land interests, for in signing it, the Crown never undertook to act in the best interests of the "readmittees" as members of a band per se. Rather, it acted on behalf of their practical interests as individuals who needed help - help which was in the Crown's interest to provide, according to Department records. Accepting that the Crown owed the Bobtail "readmittees" a duty to fulfill the promises it made to readmit them to treaty and to provide them with certain privileges does not mean that one must also accept that the Crown owed them the sort of specific fiduciary obligations that can only arise from a "cognizable Indian interest" such as those that they expressly promised not to claim on August 10, 1887. (Wewaykum, supra, at para. 85)
[607] Returning to the question of whether Samson and Ermineskin have standing to challenge the August 10, 1887 document in particular, although as stated earlier standing will be addressed later it does appear to be a simple matter of privity once one accepts the validity of the Bobtail members' withdrawals in 1886, as Montana suggests. At minimum, it seems clear that until the moment when the Crown actually readmitted Bobtail and his followers to Treaty status, it negotiated with them as individuals. As such, there appears to be no reason not to apply the contract-based principle of privity to the negotiation process or to its product, the agreement itself.
Conclusion
[608] As stated earlier, both Ermineskin and Samson take the position that the Bobtail Band continued to exist up until June 1909. As such, they have the burden of proving that the Bobtail Band existed throughout the relevant time. In my opinion, based on the foregoing analysis they have failed to establish on a balance of probabilities the existence of the Bobtail Band after the events of 1887.
[609] Extensive paylist evidence was adduced at trial. This evidence was the subject of extensive analysis by the experts and by counsel during their submissions. Nowhere in the evidence, paylist or otherwise, is there any evidence of the existence of any Bobtail Band members or their issue other than on the paylists of other bands after 1887.
[610] As a result, based on my earlier analysis concerning what happens to the reserve interest of a band that has ceased to exist, I concluded that the reserve interest in IR 139 lapsed.
Montana's claim to IR 139
Submissions of the Parties
[611] The factual basis for Montana's claim to IR 139 can be summarized as follows. Montana claims that it was settled permanently on IR 139 in the summer of 1896 to the mutual satisfaction of the Crown and the Band in fulfilment of the promises made and obligations undertaken by the Crown at the time of the deportation.
[612] Upon being settled, they were given livestock, implements and provisions. In the fall of 1896, they were paid annuities as a band, a paylist was established that continued from that time forward.
[613] In February of 1897, while in Ottawa, Little Bear received confirmation from highest Crown officials that his band was recognized as a band under the Indian Act entitled to the privileges of Treaty 6; and that the band's reserve entitlement was satisfied by having been given IR 139.
[614] Although the Montana deportees had a difficult winter, by the spring of 1897 they had begun to build homes, plant gardens, and brake land.
[615] During the relevant period of time, the Crown acknowledged and consented to transfers to and from the Montana Band.
[616] Over the years, Crown officials consistently, and repeatedly identified and acknowledged Montana as a band under the Indian Act for whom and for whose use and benefit IR 139 was set aside.
[617] This was evidenced by the fact that the Crown sought surrenders from the Band on a number of occasions and took a surrender in 1901; treaty obligations were met without hesitation; the Band's permanent settlement on IR 139 was acknowledged and confirmed by Crown officials throughout the relevant time; and at no time was it even suggested by Crown officials that their settlement on IR 139 was temporary.
[618] With respect to when the deported Cree became an Indian Act band, although the Crown alleges that this did not occur until 1909 when a portion of IR 139 was set apart for them, Montana maintains that this occurred in 1896 when they settled on IR 139, waited for their leader to arrive, and received annuity payments.
[619] Montana claims that their interest in IR 139 arose as a result of their's and the Crown's decision to settle permanently on IR 139 and the representations of Crown officials made at the time. In particular, Montana claims that Deputy Superintendent General Reed and other officials gave the Montana Cree every reason to believe that they were to be located permanently on IR 139 and that the reserve was set aside for them if they wished. Montana points to the July 15, 1896 letter from the Deputy Superintendent General to Indian Commissioner Forget and the August 5, 1896 correspondence from the Indian Commissioner to the Deputy Superintendent General.
[620] Grounded on the argument advanced by Montana and referred to earlier in these reasons, Montana claims that IR 139 had been abandoned by the Bobtail Band and was available to the Crown to set aside for Montana in the summer of 1896. That is, the Crown continued to hold IR 139 as "reserve land" for the exclusive use of the Indians after the Bobtail Band ceased to exist. Because the land continued to be a reserve, the Crown was free to give it to, or set it apart for, another band.
[621] According to Montana, even if IR 139 "was not the Crown's to give", because the Montana Cree who settled there relied on the representations, promises, and actions of the Crown, from that time forward, IR 139 belonged to them, as a band, to the fullest extent possible under the Act and in fulfilment of the Crown's treaty obligations.
[622] Montana takes the position that the Crown owed a fiduciary duty to the Montana Cree from the moment it undertook to return them to their reserves, provide for their settlement, assure their receipt of treaty rights and privileges. Further, the Crown must uphold its honour in all of its dealings with Aboriginal peoples.
[623] With regard to reserve creation, Montana submits that the Supreme Court of Canada in Ross River, supra, at paras. 65-69, states that while there is no single means of creating reserves, with respect to representations made by authorized Crown agents, the honour of the Crown is a stake in the reserve creation process. In addition, Montana submits that the Court in that case strongly implies that the reasonable expectations of the Aboriginal peoples is also at play.
[624] According to Montana, the fact that there was no Order in Council or other government confirmation of the Crown's agents' representations or the treaty promise to set apart the reserve for Montana is not determinative of the issue, particularly since the honour of the Crown is at stake. Relying on the reasons of Justice LeBel in Ross River, supra, Montana argues that if in the eyes of the Montana deportees, Crown agents had made representations that they would be settled permanently and that the reserve would be set aside for them, then the Crown was bound to fulfill the promises its agents had made.
[625] The Crown advanced extensive arguments, based on its interpretation of the Indian Act definition of "band", that the Montana Indians did not meet the Indian Act criteria to be a band until a reserve was set apart for them in June of 1909. Given my earlier conclusions regarding the interpretation of the definition, it is not necessary to review these arguments.
[626] With regard to reserve creation, the Crown takes the position that it was not enough for some Montana Indians to be present on IR 139. They could not gain an interest in a reserve in common until a tract of land was specifically set apart as a reserve for them. In the Crown's view, all of the necessary elements of reserve creation were not met with respect to the Montana Indians until June of 1909 when IR 139 was set apart for them.
[627] As well, the Crown disputes Montana's reliance on the judgment in Ross River, supra, as support for its argument that in the eyes of the Montana Indians there were Crown officials who had ostensible authority and intention to set aside IR 139 for Little Bear's Band. The Crown submits that the part of that decision upon which Montana relies merely clarifies the requirement that a person having authority to bind the Crown must also have had an intention to create a reserve and authority to set apart lands as a reserve or "was reasonably so seen by the First Nation." (Ross River, supra, at para. 69) According to the Crown, there is no evidence that Deputy Superintendent General Reed made any representations to the Montana Cree that he bound the Crown to create a reserve for them or that they considered him to have the authority to do so. The Crown further submits that there is no evidence that Mr. Reed had the necessary authority to set apart lands for reserve creation or that the Montana deportees believed that he had such authority.
[628] Specifically, the Crown rejects Montana's claims that government officials made representations to this effect when Little Bear went to Ottawa in February of 1897, arguing that there is no reliable evidence that any Crown officials made such representations to the Montana deportees or bound the Crown to create a reserve for them, nor that the Montana Cree considered whether any such official had authority either to bind the Crown or set aside land to create a reserve. Therefore, the Crown submits, Montana failed to establish the requirements set out in Ross River, supra, at paras. 67-69.
[629] The Crown acknowledges that the honour of the Crown is a concept common to jurisprudence involving the interpretation of treaties and other agreements with Aboriginal peoples that requires the Crown to act with honour in all of its dealings with them. (R. v. Marshall, [1999] 3 S.C.R. 456 at paras. 49-52) However, the Crown asserts that the honour of the Crown in itself is not an "independent source of obligation" and affords no support for the argument that absent formal evidence the Court can and should rely on that concept to find that IR 139 was set aside for Little Bear's Band in 1896.
[630] Samson agrees with the Crown that there is no reliable evidence to demonstrate that IR 139 was set apart for the Montana deportees. Responding to Montana's claims regarding the evidence of Little Bear's trip to Ottawa in February of 1897, Samson submits that read in context and as a whole, the newspaper accounts are just that and do not support the argument that IR 139 had been granted to the Montana Cree in 1896 when they arrived in Hobbema or that it was given to them the following year as a result of the Ottawa visit.
[631] Specifically, Samson disputes Montana's reliance on newspaper accounts that Little Bear and "the Crees" were to be given a reservation or that they should be given the reservation once occupied by the Bobtail Band. Samson submits that, in the absence of official records, it cannot be inferred from copies of media reports stating what ought to have happened that, in fact, the Crown carried through and gave Montana an unsurrendered reserve that continued to belong to another band. In Samson's view, for the Crown to have done so would have meant breaching its fiduciary duty to the many Bobtails who continued to reside on or near IR 139 at that time and throughout the period ending in 1909.
[632] Samson submits that Little Bear's decision to leave his fellow Cree and depart from Canada later in 1897 further supports a finding that they were not granted a reserve at that time, despite whatever Little Bear might have understood from his trip to Ottawa.
[633] Samson also notes that IR 139 was not confirmed or set apart for the Montana Band prior to 1909. In fact, it was confirmed by Order in Council for the Bobtail Band in 1889.
[634] Finally, Samson submits that the Montana deportees did not gain an entitlement to that reserve by living on part of it for thirteen years nor has Montana led authorities to support its claims to this effect. Moreover, Samson argues, there is no reference to a "band in possession" within the Indian Act that would have permitted the Montana deportees to have acquired such rights through their mere presence on the reserve during the years prior to 1909.
[635] Ermineskin does not dispute that the Montana Cree were entitled to claim treaty rights, but submits that it is not clear that they can claim such rights through either Little Bear or Big Bear. Ermineskin does not address the question of what effect, if any, this has on whether the Montana Cree constituted an Indian Act band before 1909. Instead, Ermineskin advances four principal arguments as to why the Montana Cree were not a band with an interest in IR 139 prior to June of 1909.
[636] First, Ermineskin submits that the evidence does not support Montana's claim that the Montana Cree decided to settle permanently on the reserve in 1896, nor that the Crown intended for them to do so. Second, Ermineskin alleges that the reports in which Crown officials detailed the progress that the Montana Cree were making in their "settlement" of IR 139 is not evidence that the Crown considered their placement there permanent or that they had any rights to the reserve. Third, Ermineskin argues that the Montana Cree only occupied part of the Bobtail Reserve and did not do so until 1897, when they moved south of Battle River and never occupied the entire Bobtail Reserve.
[637] Finally, Ermineskin submits that whether the Montana Cree settled permanently is irrelevant to its claim to have an interest in IR 139. Instead, Montana must show that the criteria for reserve creation set out in the Indian Act and articulated by the Supreme Court of Canada in Ross River, supra, at paras. 48-51, 58, and 64-67 have been met.
[638] Without addressing the question of whether or when Montana became a band under the Indian Act, Ermineskin also disputes Montana's claims that the Indians deported from Montana were permanently settled on IR 139 in 1896 and thereby gained an interest in it prior to 1909. Ermineskin, like the Crown, maintains that reserves are set apart for particular bands, not for Indians generally. Ermineskin further argues that Montana's contentions about the promises that senior government officials in Ottawa made to Little Bear in Ottawa is nothing more than "speculation on the basis of meagre evidence, and not even close to the level of proof required" to support Montana's claims that it was a band with a collective interest in IR 139 long before 1909.
[639] According to Ermineskin, unless the government extinguished the Bobtail Band's interest in its own reserve, or the Bobtail Band itself expressed a collective intention to surrender that interest, IR 139 remained set apart for the Bobtail Band alone, as evidenced by recurring references to the Bobtails Band and its reserve by Department officials.
[640] Ermineskin notes two problems with Montana's characterization of the evidence in support of its claim that, beginning in 1897, Crown officials saw IR 139 as land set apart for the Montana Cree. First, Ermineskin alleges that some Crown officials were unaware that the Montana Cree were distinct from the Bobtail Band. Second, Ermineskin submits that Montana's review of the evidence with respect to references to the Montana Cree and the Bobtail Reserve is incomplete and misleading. According to Ermineskin, the evidence is not clear that officials saw IR 139 as properly belonging to the Montana Cree. Rather, Ermineskin submits that there is no evidence of any Crown officials having expressed the opinion that the Montana Band held interest in IR 139.
[641] According to Ermineskin, all of the criteria set out in Ross River, supra, were met with respect to the setting apart and Order in Council 1159 confirming IR 139 as the Bobtail Reserve, however, there is little palpable evidence that the same reserve was re-set apart for the Montana Cree in or around 1896. Whether the nature of Montana's settlement on IR 139 was permanent is, in Ermineskin's submission, immaterial to the relevant legal test set out in Ross River, supra, at para. 71. As further support for its argument, Ermineskin refers to the judgment in Jeddore v. Canada (2003), 231 D.L.R. (4th) 234, in which the Federal Court of Appeal applied the test from Ross River, supra, and found that the colonial government's intention, insofar as it could be discerned from its actions, were inconsistent with the concept of a reservation based on a communal Aboriginal interest in the land in issue. From this, Ermineskin submits that the evidence in this case does not support Montana's claim that it had an interest in IR 139 before June of 1909.
Analysis
[642] Turning first to the question as to when the Montana Cree became an Indian Act band, based on my earlier analysis, this occurred as early as 1896 when 151 Indians were paid annuities as members of "Little Bear's Band". The fact that the group shrank considerably in size over the next few years is immaterial. It is equally immaterial that Chief Little Bear left the band and returned to Montana. There is no question, however, that it was a band within the meaning of the Indian Act by 1899, when 45 Indians were paid as members of the "Montana Band," as it continues to be known today.
[643] Upon the Government's undertaking to accept the Cree deported from Montana, return them to or otherwise place them on reserves, and treat them in a manner similar to other Treaty 6 Indians, the Crown engaged a fiduciary duty to the Montana deportees. While the scope of its duty at that point was most likely limited to those commitments alone, this would have included the obligation to pay each member of this group of Indians annuities, as set out in the terms of Treaty 6 by which they were, or were deemed to be, covered. It would also have included a commitment to set aside a reserve.
[644] According to Montana, a "tribe, band or body of Indians" can gain an interest in a reserve when, "in the eyes of the Indians," agents of the Crown make representations to the band that include granting it such an interest. The Supreme Court in Ross River, supra, at para. 67 set out a framework for determining reserve creation. To support a finding that an Indian reserve was created, a plaintiff must provide evidence that there was an intention to create a reserve on the part of the Crown; that the intention was possessed by Crown agents with sufficient authority to set aside land as a reserve as well as to bind the Crown; that positive steps were taken to set apart land for the benefit of Indians; and that the band concerned accepted the setting apart and began to make use of the lands so set apart.
[645] Montana is correct that the Court further stated that in the reserve creation context, as in that of treaty creation, an agent of the Crown could make representations to a First Nation about the Crown's intentions and that in doing so the agent could bind the Crown. (Ross River, supra, at para. 69)
[646] However, in observing that the honour of the Crown was invoked to the extent that the Crown was willing and bound to live up to representations made by its agents, the Supreme Court also cautioned that "not just any Crown agent will do." (Ross River, supra, at para. 66) For a given agent to be able to bind the Crown, that agent "must 'have represented [the Crown] in very important, authoritative functions.'" (Ross River, supra, at para. 66, citing R. v. Sioui, [1990] 1 S.C.R. 1025 at 1040) Applying this to the facts in Ross River, supra, at para. 69, Justice LeBel clarified what was necessary in the reserve creation context:
What is critical is whether the particular Crown official, on the facts of a given case, had authority to bind the Crown or was reasonably so seen by the First Nation, whether the official made representations to the First Nation that he was binding the Crown to create a reserve, and whether the official had the authority to set apart lands for the creation of the reserve or was reasonably so seen.
[647] It is important to note that in setting out these requirements, Justice LeBel also makes it clear that rather than advancing "a definition and exhaustive pronouncement ... on the legal requirements for creating a reserve under the Indian Act," the Court was addressing particular facts in a specific legal, historical, and geographic context. (Ross River, supra, at para. 41) Indeed, Justice LeBel expressly stipulates that the process for determining whether a reserve has been created "turns on a very contextual and fact-driven analysis" and "must be performed on the basis of the record." (Ross River, supra, at para. 67) Also worth noting is his comment that it is also necessary to bear in mind that the process of reserve creation itself "requires that the Crown remain mindful of its fiduciary duties and of their impact on this procedure... taking into account the sui generis nature of native land rights." (Ross River, supra, at para. 68)
[648] In Ross River, supra, the Supreme Court stressed that the stringent aspect of the test that must be met to establish reserve creation. Evidence of letters written, recommendations exchanged, or disagreements between Crown officials do not necessarily constitute "representations to the members of the ... Band that the Crown had decided to create a reserve for them." (Ross River, supra, at para. 71) The claimant Band in that case brought forward evidence that led the Court to find that "those Crown officials who did advocate the creation of a reserve, whether or not they made representations to the Band, never had the authority to set apart the lands and create a reserve." (Ross River, supra, at para. 71) It is also important to note that according to the decision in, Ross River, supra, the setting aside land for the use of an Indian band is not synonymous with setting the land apart as a reserve for that band.
[649] In determining whether the evidence in the present case meets the test for reserve creation articulated in Ross River, supra, I am also mindful of the principle that, despite the difficulties associated with historic claims to Aboriginal entitlement, plaintiffs advancing such claims must establish them "on the basis of cogent evidence establishing their validity in the balance of probabilities." (Mitchell v. Canada (Minister of National Revenue - M.N.R.), [2001] 1 S.C.R. 911 at para. 51)
[650] In my opinion, Montana has failed to establish that each element of the "test" for reserve creation articulated in Ross River, supra, has been satisfied.
[651] With respect to Montana's assertion that its interest in IR 139 arose in the summer of 1896, the correspondence shows that a decision was taken to locate the Montana Cree on the IR 139 instead of the Sharphead Reserve, as was initially recommended. The decision was made primely because of the expenses associated with establishing and maintaining a farm and the cost of engaging another farmer on the old Sharphead Reserve which would not be necessary if they were settled on IR 139. While this decision shows an intention on the part of the Crown to make arrangements for the permanent settlement of the Montana Cree at the time the decision was made, a decision to remain at Hobbema had not yet been made by the Montana Cree who were waiting for Little Bear to arrive from Regina before making a decision. In my view, the correspondence between the Indian Commissioner and the Deputy Superintendent General does not demonstrate an intention to set apart the reserve for the Montana Cree.
[652] Precisely when the Montana Cree permanently settled is not material to this analysis. I am satisfied that by the spring of 1897 when the Montana Cree were moved to the south side of the Battle River and started to build homes and brake land for cultivation with the assistance of the Crown that the Montana Cree could conclude that they had been permanently settled on that part of the reserve by the Crown. However, this is not sufficient to support Montana's claim to the reserve. As stated earlier, setting aside land for the use of an Indian band is not synonymous with setting the land apart as a reserve for the band.
[653] I am also equally satisfied the that the numerous Crown requests to Montana for surrenders and the taking of the 1901 surrender would create a belief among the Montana Cree that they had an interest in the land on which they were located.
[654] However, this evidence falls short of establishing that each of the Ross River, supra, criteria were met. In my view, there is insufficient evidence before the Court to establish on a balance of probabilities that, prior to June 1909, there was an intention on the part of the Crown to create a reserve; that any Crown agent with the authority to set apart lands as a reserve and to bind the Crown had an intention to create a reserve on the part of the Crown; or that representations were made to the Montana Cree that IR 139 was being set apart for them by a Crown agent having the requisite authority or "was reasonably seen" by the Montana Cree to have the authority.
[655] In my opinion, the newspaper accounts indicating that Chief Little Bear had received an assurance that "the Crees will be given a reservation" and that "it was settled" that the Montana Cree "should be given the reserve at one time occupied by Chief Bobtail's Band on the Battle River" do not establish a Crown intention to set apart a reserve for Montana and that the intention was possessed by a Crown agent with sufficient authority to set aside the land and bind the Crown.
[656] Although it may be assumed that the newspaper's source for the information was the Reverend McDougall, there is no other evidence that this occurred. While it is not uncommon to find gaps in the historical record for a variety of reasons, given the importance of such an assurance or promise, it is surprising that no documentation to that effect exists. More importantly, nor is it known by whom it was "settled" or assurances were given that the reserve would be set apart for the Montana Cree. Although it can be inferred from a September 11, 1905 letter written by the Reverend McDougall to Sir Wilfred Laurier in which he refers to "an interview" he and Chief Little Bear had with him during their visit to Ottawa in February 1897 that at some time during the visit to Ottawa the three met, there is no evidence that an assurance or promise was made during that meeting or that the question of a reserve was discussed. I also note from another newspaper account that all three were at a public function together. It is possible that the Reverend McDougall was referring to an encounter at that function.
[657] As well, the newspapers report that other meetings took place with individuals other than Sir Wilfred Laurier. Even if the newspaper accounts are taken as accurate, given that there is no evidence regarding the identity of the person who gave the assurance, there is no evidence on which a finding can be made with respect to whether the individual had sufficient authority to set aside land as reserve and bind the Crown or would have reasonably been seen by the Montana Cree to have the authority.
[658] There is ample evidence on which to conclude that the actions of the Crown up until 1909 would lead the Montana Cree to believe that they had been permanently settled on IR 139 by the Crown and, as stated above, would lead them to believe that they had an interest in IR 139. However, none of the Crown actions can be construed as equivalent to a representation of a Crown intention to set apart IR 139 for the Montana Band.
[659] Given this conclusion, it is not necessary to address the argument that the Montana Cree only occupied a portion of IR 139 and, therefore, were not entitled to claim an interest in it, as Ermineskin suggests.
[660] For these reasons, I conclude that Montana has failed to prove on a balance of probabilities entitlement to IR 139 prior to June 1909.
[661] Having said this, I wish to add one further observation. As can be seen from the above analysis, I am satisfied that throughout the relevant period, the Crown intended to permanently settle the Montana Cree on IR 139, gave the Montana Cree every reason to believe that they were permanently settled. As well, the actions of Crown agents could have reasonably been construed by the Montana Cree to mean that they held the interest in IR 139, if not to all of the reserve, at least to that portion of the reserve south of the Battle River.
[662] In my opinion, the honour of the Crown was engaged from the time the Crown met the Montana Cree at the border in 1896. As well, a fiduciary relationship existed between the Crown and the Montana Cree at least from the time the Montana Cree became a band within the meaning of the Indian Act.
[663] Although these facts alone are insufficient to ground a finding of reserve creation in accordance with the jurisprudence, it may be that they are sufficient to engage Crown liability. Given the nature of the first question I have been asked to answer, it is beyond the purview of theses reasons.
Standing
[664] Ordinarily, the question of standing to advance a claim would be the subject of a preliminary discussion before a discussion of the merits of a case. In the present case, two of the bases on which Ermineskin Samson claim to have standing, the successor-band argument and the dual band membership theory, required a consideration of arguments advanced on the merits of the claims. These have already been discussed.
[665] In addition to its claim to have standing as a successor band, Ermineskin also submits that assuming the Bobtail Band still existed as a legal entity on June 12, 1909, the effect of the subsequent transfer agreement was to vest in Ermineskin and Samson not only the existing collective, proprietary rights of the Bobtail Band but also any rights of action that the Bobtail Band may have had, including any rights of action against the Crown for breach of fiduciary duty. Ermineskin argues that although the Bobtail members who never left treaty were added to the Samson and Ermineskin paylists in October 1887 and shared in the same benefits as existing Ermineskin and Samson Band members, they did not cease to be members of the Bobtail Band until June of 1909.
[666] Samson did not advance any other arguments in relation to standing other than those noted above.
[667] In general terms, both Montana and the Crown allege that the Samson and Ermineskin Bands have no standing to advance a claim to the former Bobtail Reserve. Montana asserts that neither Samson or Ermineskin ever had any interest in IR 139 and therefore have no standing to sue the Crown on that basis. The Crown argues that the Bobtail Band, for whom IR 139 was surveyed and set aside, is the only party that could advance a claim to that land or contest its surrender.
[668] The Crown disputes that Samson or Ermineskin gained any interest in the IR 139 as a result of the surrender agreements signed in June of 1909. According to the Crown, those agreements only entitled Ermineskin and Samson to share in the proceeds of the sale of IR 139 and did not transfer any collective interest held by the Bobtail Band in its reserve.
[669] As I have concluded that the Bobtail Band had ceased to exist by June 1909, Ermineskin's claim to standing based on the June 1909 transfer agreements fails. Even if the Bobtail Band still existed on June 12, 1909, I agree with the Crown's submission that the subsequent transfer agreements simply created an entitlement to the proceeds of the sale of IR 139 and did not transfer any collective interest of the Bobtail Band to Ermineskin and Samson.
Conclusion
[670] Finally, based on the above analysis, I conclude that in answer to the first question none of the Plaintiffs were entitled to the use and benefit of IR 139.
The Second Question
[671] The second question the Court must answer is:
Was the purported surrender dated June 12, 1909 valid?
[672] Based on my conclusion that the reserve interest lapsed when the Bobtail Band ceased to exist, a surrender was not necessary. However, if I am in error that the "Bobtail remnants" ceased to be members of the Bobtail Band at the time of the 1887 transfers and that the Bobtail Band ceased to exist, then the purported surrender was invalid. Although Reverend McDougall identified either 21 or 22 bona fide survivors of the Bobtail Band, according to Ms. Jones' paylist analysis and the paylist analysis in Samson's final submissions there were other Bobtail remnants or issue of Bobtail remnant who would have been entitled to vote and would have been entitled to share in the distribution of the sale proceeds. It is evident that neither the Crown nor its agent, Reverend McDougall made any attempt to identify these individuals. From this, I infer that these individuals were not taken into account by the Reverend McDougall when he was determining who was entitled to vote on the surrender nor were they given an opportunity to vote. Accordingly, the surrender requirements of the Indian Act were not met and the surrender is invalid.
The Third Question
[673] The third question the Court must answer is:
Which of the Plaintiffs, if any, were entitled to the use and benefit of the land comprising IR 139 at the conclusion of the transactions dated June 12, June 14, and June 17, 1909?
[674] Based on my conclusion that the Bobtail Band ceased to exist and that the reserve interest lapsed, I conclude that neither Samson nor Ermineskin were entitled to the use and benefit of IR 139 at the conclusion of the June 1909 transactions.
[675] Although I have concluded that the surrender itself is invalid, at the time of the surrender there was a clear intention on the part of the Crown to create a reserve for Montana that was possessed by Crown agents having the authority to set land aside as a reserve and to bind the Crown, and steps were taken to set the land apart for the benefit of the Montana Band. As well, at the time Montana accepted the setting apart and continued to use the lands set apart.
[676] For this reason, I conclude that at the end of the June 1909 transactions, Montana was entitled to the use and benefit of the ten square miles on IR 139 purportedly set aside for it in the surrender agreement.
Summary
[677] The following is a summary of my conclusions:
1. Up to and including June 12, 1909 which of the Plaintiffs, if any, were entitled the use and benefit of the lands comprising IR 139?
None of the three Plaintiffs.
2. Was the purported surrender dated June 12, 1909 valid?
A surrender of IR 139 was unnecessary, however, if it was necessary, it was invalid.
3. Which of the Plaintiffs, if any, were entitled to the use and benefit of the land comprising IR 139 at the conclusion of the transactions dated June 12, June 14, and June 17, 1909?
The Montana Band was entitled to the use and benefit of the ten square miles on IR 139 purportedly set aside for it in the surrender agreement. Neither of the other two Plaintiffs were entitled to the use and benefit of the land comprising IR 139.
"Dolores M. Hansen"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-617-85, T-782-97, T-2804-97
STYLE OF CAUSE: Montana Band and others v. Her Majesty the Queen
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: September 23, 2002 to December 11, 2002
January 6, 2003 to June 25, 2003
October 14, 2003 to November 27, 2003
REASONS FOR JUDGMENT: Justice Dolores M. Hansen
DATED: February 28, 2006
APPEARANCES:
Mr. Michael J. Bailey
Ms. Sylvie Molgat
Mr. Michael Aasen
Mr. James McFadyen
Mr. David Rolf
Ms. Priscilla Kennedy
Ms. Erin Lafuente
Ms. Lynn Angotti
Mr. Marvin Storrow
Ms. Barbara Fisher
Ms. Tina Dion
Mr. Roy Millen
FOR PLAINTIFFS
Mr. Wayne Schafer
Mr. Doug Titosky
Ms. Sheila Read
Ms. Krista Epton
Mr. Paul Henderson
Ms. Maria Mendola-Dow
FOR DEFENDANTS
SOLICITORS OF RECORD:
Sylvie Molgat
Dubuc Osland for Plaintiff Montana
Mr. Michael J. Bailey
Mr. Michael D. Aasen
Miller Thomson as agent for Plaintiff Montana
Mr. James McFadyen
Mr. David Rolf
Ms. Priscilla Kennedy
Ms. Erin Lafuente
Ms. Lynn Angotti
Parlee McLaws for Plaintiff Samson
Mr. Marvin Storrow
Ms. Barbara Fisher
Ms. Tina Dion
Mr. Roy Millen
Blake Cassels & Graydon LLP for Plaintiff Ermineskin
Mr. Wayne Schafer
Mr. Doug Titosky
Ms. Sheila Read
Ms. Krista Epton
Mr. Paul Henderson
Ms. Maria Mendola-Dow
Department of Justice for Defendant HMQ
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