No Further Obligation Owed to James Smith Cree Nation, Says ICC Panel

OTTAWA, ONTARIO–(March 22, 2007) – The Indian Claims Commission (ICC) has concluded its inquiry into the treaty land entitlement claim of the James Smith Cree Nation near Fort a la Corne, Saskatchewan and it found that the James Smith Cree Nation has sufficient reserve land on Indian Reserve (IR) 100.

The panel, composed of Chief Commissioner Renee Dupuis and Comissioner Alan C. Holman, concluded that there is no outstanding treaty land entitlement owed to the James Smith Cree Nation.

“As a result of an invalid surrender and amalgamation in 1902, the Cumberland House Cree Nation has been deprived of its interest in IR 100A,” said Chief Commissioner Dupuis. “Given that the amalgamation is, in our view, invalid, the IR 100A lands should not have been transferred to the James Smith Cree Nation. The result is that a surplus, not a shortfall, exists in favour of the James Smith Cree Nation.”The panel also examined issues regarding the quality and location of the land set aside as a reserve for the James Smith Cree Nation. The evidence shows that the Crown set aside the land chosen by the First Nation to support multiple uses, such as farming, hunting and fishing, and that some settlers were moved to accommodate its choice.

The panel found that the First Nation was adequately consulted, that the lands chosen were agreed to by both the Crown and the First Nation and that Canada owes no further obligation to the James Smith Cree Nation regarding the quality or location of land selected as IR 100.

The James Smith Cree Nation alleged that an outstanding treaty land entitlement existed under the terms of Treaty 6, which provided 128 acres for each band member. In 1884, the population of the James Smith Cree Band (the present day James Smith Cree Nation) was determined to be 139. The First Nation claimed that this was incorrect and that a shortfall of land existed.

Following research conducted during the course of ICC’s inquiry, both the Crown and the First Nation agreed on a total population figure of 155, representing a 16-person shortfall. Canada’s position throughout the inquiry was that this shortfall was more than adequately fulfilled when the James Smith Band at IR 100 and the Cumberland Band at IR 100A were amalgamated in 1902.

In March 2005, the panel of Commissioners found this amalgamation was invalid, and that the Crown had failed to fulfill its treaty and fiduciary obligations to the Cumberland House Cree Nation. The panel also found that a surplus of reserve land in favour of the James Smith Cree Nation was created when 2,048 acres were transferred to it at the time of amalgamation. In the panel’s view, the Crown acted improperly when IR 100A lands were added to IR 100.

These recommendations conclude the Commission’s inquiries into four separate, but related claims, submitted by the James Smith Cree Nation and the Cumberland House Cree Nation. These inquiries proceeded concurrently. In March 2005, three of the inquiries were concluded. The report released today brings to a close the fourth inquiry, into the James Smith Cree Nation’s treaty land entitlement claim.

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

A copy of this release and of the inquiry report can be found on the Indian Claims Commission website at www.indianclaims.ca

Historical Background

The James Smith reserve (IR 100) straddles the Saskatchewan River, 58 kilometres east of Prince Albert, Saskatchewan. The land provided good hunting and fishing and was ideal for the hunter/gatherer economy of the James Smith Band (the present-day James Smith Cree Nation). Various fur-traders set up posts after the mid-1700s and Fort a la Corne was established in the area by the Hudson’s Bay Company in 1850.

Treaty 6

When Chief James Smith and others signed Treaty 6 on August 28, 1876, on behalf of the Fort a la Corne Indians, they agreed to provisions for annuities, schools, agricultural implements, animals, a medicine chest and reserves. With respect to the reserves, government officials, in consultation with the band, would select land for agricultural and other purposes, to measure in total one square mile for each family of five (128 acres per person).

Indications are that members of the James Smith Band were sufficiently educated and understood the treaty. Band leaders were interviewed in October 1876 to determine where they wanted their land and they requested a reserve near Fort a la Corne.

Determining Reserve Boundaries

When the surveyor began to survey the land in 1878, he noted that Chief James Smith and the band were not satisfied with the proposed boundary of the reserve. During an 1881 visit to the district by the Governor General of Canada, the Chief asked him to help his band in getting a survey of good agricultural land for his reserve, and “…that it should be left to me where the survey runs to satisfy my people. I want good lands not sand hills. I would like to tread on good soil.” In 1883, only half of the reserve had been surveyed.

In 1884 the Indian agent visited the reserve and recommended that the trial lines be changed on the north side since it was unfit for cultivation. Later that year the survey was repeated, making the reserve considerably larger with the majority of the additional land south and west. The surveyor felt that the new boundaries were suitable for the band since they provided a combination of good soil and an abundance of fish and game.

The reserve was surveyed for the band in July 1884, and IR 100 was confirmed by Order in Council PC1151 on May 17, 1889. It consisted of 27.8 square miles, satisfying the treaty land entitlement for 139 people.

Alleged Amalgamation

On July 24, 1902, an agreement was signed amalgamating the James Smith Band and some members of the Cumberland Band. Those Cumberland people occupied IR 100A located immediately south of the James Smith IR 100. On the same day, they surrendered 22,080 acres from the southern portion of its reserve, stipulating that the land was to be sold and the proceeds “placed to the credit of the amalgamated Bands James Smith and Cumberland.” Oral reports indicate that the band didn’t want to surrender the land and it has not been possible to locate a voters list or record of any surrender meeting.

Conclusion

The report released today brings to a close the last of four separate, but concurrent inquiries, into claims by the James Smith Cree Nation and the Cumberland House Cree Nation involving Indian Reserves 98, 100 and 100A. Three of the claims were submitted by the James Smith Cree Nation in the spring of 1999, a fourth claim for some of the same land was received from the Cumberland House Cree Nation the following winter. Reports issued by the Commission in March 2005, concluded three of the inquiries. For more information, please visit the Indian Claims Commission website at http://www.indianclaims.ca/media/news-en.asp.

Issues

1. Paylist (population)

What was the population of the James Smith Cree Band for the purposes of calculating land entitlement under Treaty 6, starting with the date of the first survey of 1884?

Canada and the James Smith Cree Nation agreed to further paylist analysis and agreed to 155 as the population of the band. The original treaty land entitlements were based on a figure of 139, creating a 16-person shortfall.

2. Quality of Lands

Does Treaty 6 obligate Canada to provide treaty lands of specific quality and, if so, what lands did Canada actually provide of specified quality? Did Canada breach any obligation in setting aside IR 100?

Canada did not breach its obligation as it set aside land chosen by the band, including land that supported agricultural use and other portions that supported band members’ desire to continue to fish and hunt.

3. Lands Occupied Prior to the Treaty

Does Treaty 6 and/or the Indian Act of 1876 exclude lands occupied prior to treaty from treaty land quantum calculations? If so, what land should have been excluded? Based on the response to these questions, did Canada breach any obligation?

A band’s treaty land entitlement is a collective right of the band based upon its population and therefore land under cultivation by an individual band member is not relevant to determining nor does it diminish the Band’s treaty land entitlement. No lands should have been excluded from treaty land quantum calculation. Therefore Canada did not breach an obligation regarding lands occupied prior to the treaty.

4. Alleged Amalgamation

Was there an amalgamation of the Peter Chapman Band and the James Smith Band? Did the Peter Chapman Band have a surplus of treaty land at the time of the alleged amalgamation? If so, what effect if any did Peter Chapman’s surplus treaty land have on the entitlement of the James Smith Band?

The Peter Chapman Band was not created at any point prior to the alleged amalgamation of IR 100A. Therefore there could not be a surplus of treaty land. Furthermore, the panel concluded that IR 100A was set aside as a reserve for the whole of the Cumberland Band and not just those members resident at the time of its survey, as determined in ICC’s Cumberland House Cree Nation IR 100A Inquiry. At this time the panel concluded that the “amalgamation” of the James Smith Band and the Peter Chapman Band was invalid, based on all evidence.

5. Sufficiency of Treaty Lands

Did Canada provide sufficient treaty lands to fulfill its obligations to James Smith Cree Nation under Treaty 6?

The James Smith Cree Nation today has more than the sufficient acreage required by Treaty 6. This is the result of the transfer of IR 100A that occurred when the Cumberland Band amalgamated with the James Smith Band. In March 2005, the panel of Commissioners for the inquiry found that the amalgamation of these two bands was invalid. However, IR 100A remains in the possession of the James Smith Cree Nation.

In the view of the panel of Commissioners for this inquiry, there is an outstanding obligation owed to the Cumberland House Cree Nation. This obligation includes the 2,048 acres now in the possession of the James Smith Cree Nation.

CONTACT INFORMATION

Indian Claims Commission
Manon Garrett
Communications Coordinator
613-947-3939