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Soon after the Federation's Indian Rights and Treaties Research Program was formed in 1971, its Director, Walter Gordon, was approached by Chief Norman Shepherd of the White Bear Band to help in securing some 13,000 acres of ranch land west of his reserve. This tract, known as Lees' Ranch, was part of the reserve lands alleged to have been surrendered to the Federal Government in 1901. The two Assiniboine Bands, whose entire reserves were taken, were moved by force onto White Bear Reserve, which was held by a community of Cree and Saulteaux descent. The two lost reserves were called after Pheasant's Rump (No. 68) and Ocean Man (69), and had a combined area of over 47,100 acres.
The owner of Lees' Ranch had a mortgage from the Industrial Development Bank, a federal government institution. He did not meet his payments, and the property was repossessed by the Sheriff on behalf of the Bank. Early in 1972 the ranch was advertised as being for sale. The White Bear Band Council passed a resolution in April asking the Federation to stop the sale, and to represent the Band in the research of all the Band's land matters, in particular the two surrenders. David Ahenakew, Chief of the FSI, gave the band full backing, and the IRTR Program began detailed investigations.
Research was begun in the Public Archives of Canada in Ottawa into the circumstances surrounding the surrenders. An account was available by July. This documented four main areas:
the Federal Government's policy of removing Indians to poor land and selling good, agricultural reserves like Pheasant's Rump and Ocean Man to speculators and incoming settlers;
injustices in the Department's dealings with the two bands and their reserves;
the forced amalgamation of the three bands;
the supposed surrenders and sales of the two reserves, about which serious allegations of wrongdoing were raised.
No information confirming that the reserves had been legally surrendered could be found.
Fieldwork was also soon underway on White Bear Reserve to gather testimony from band members who had experience of the events around 1901. Interviews were held with Xavier MacArthur, Alec and James Kakakaway, Kitty Redstar, and Willie Pasap and others. The most immediately pressing issue, however, was how to secure the property for the band, and so begin the restoration of the lost reserves.
The Federation made a submission to John Ciaccia, Assistant Deputy Minister in the Department, urgently requesting his assistance. A case was made for the land to be returned to the band. This was argued strongly on social and economic grounds, as basis for claims on which Pierre Trudeau's government looked favourably. Natural resources on the reserve were totally inadequate in meeting the economic needs of the band. There were severe social and cultural problems which stemmed from the amalgamation of the quite distinct Indian First Nations onto the one reserve. These conditions were not unique to White Bear, but they had become especially acute at this time. In the submission, evidence was presented from Mr. Justice MacPherson, who had presided over the repossession of the ranch land. The judge had much personal experience of the social problems on the reserve, and of the reasons behind them.
Support was forthcoming from the Indian Claims Commissioner, Dr. Lloyd Barber. He advised the Minister that the Band intended to file a formal claim on Lees' Ranch, on the basis that most of the land was originally an Indian Reserve, and that it had been surrendered in an irregular manner.
The land sale was cancelled. Chief Ahenakew and Walter Gordon met the Minister, Jean Chretien, in June, and obtained his assurance that the land would remain in the federal government's possession until the claims work had been completed. If wrongdoing could be shown, restitution would be made. And that fall the land was brought by the Department for $375,000; it was, said a later Assistant Deputy Minister, Peter Lesaux, "necessary for the Crown to have the land available in the event that it forms part of the settlement of the claim."
The band, with the assistance of the Federation of Saskatchewan Indian Nations, made plans for use of the land to create income and employment for band members. Productive occupation of the land would strengthen the Band's hand in seeking its return. Detailed proposals for a cow-calf operation were developed by specialists, and budget submissions were prepared. This was part of a long-range development plan for the reacquisition of all the surrendered lands, not just Lees' Ranch. That property had a sustained carrying capacity of 1500 cow-units. The band intended to buy a basic breeding herd of 600 cows or heifers and bulls over a four-year period. The herd would be increased up to the land's carrying capacity through natural increase over six further years. Jean Chretien repeated his promise to preserve the land for the Band when he met Chief Bill Standingready in May, 1974. Unfortunately, implementation of the band's plan was stalled, partly because of a lengthy dispute over the ownership of the land.
John Lees, the owner, continued to occupy the property, and launched a legal challenge in the fall of 1974 to overturn its purchase by the Department of Indian and Northern Affairs. Lees lost, but was able to lease the land from the Department and continued to press for its return. The revenue from this and subsequent leases has been held by the Department, pending resolution of the band's claim.
By this time, descendants of the Pheasant's Rump band members who had been removed to White Bear had set in motion a legal action to obtain redress for their losses. They were intended to argue their case on the same kind of basis as was being used in another surrender case by the Enoch Band in Alberta, in what turned out to be an unsuccessful action. The Band Council of White Bear itself later filed a Statement of Claim. This was done a few months after completion of an extensive research project financed by the IRTR Program: Ken Tyler and Roland Wright's investigation and documentation put teeth into the claim. These separate legal actions were consolidated, and an amended Statement of Claim was served in February, 1981. The argument was that:
the Crown breached its trust obligation to the bands by securing the two supposed surrenders;
taking the reserves was unconscionable;
taking the lands was done as part of a scheme to defraud the bands.
In 1982 the Federal Government, faced with convincing evidence and argument on these points, asked that the court action be withdrawn. Negotiations began, with Chief Brian Standingready representing his band. Under the terms of the settlement which has been concluded, the Lees' Ranch property is finally to be restored into Indian hands. Action taken by the band and the Federation over a thirteen-year period had ensured that this would occur.
THE WHITE BEAR CLAIM: THE HISTORICAL CONTEXT
The new federal Liberal administration entered office in 1896 lacking any clearly defined policy with regard to Indian Reserve land surrenders. Western Canada was still relatively unpopulated, and there had been no general cry for the alienation of the choice lands held by Indian bands. This situation soon changed. With the massive influx of settlers to the west after 1897, the pressure for the opening of Indian Reserve lands grew intense. The Department of Indian Affairs was bombarded with petitions calling for the removal of this or that Indian band, and for the sale of reserve lands. Newspaper editorials trumpeted such proposals. Chambers of Commerce, local improvement groups and Members of Parliament from both sides of the House of Commons added their voices to the general clamour.
The government was at first reluctant to encourage land surrenders. Departmental policy, said Superintendent General of Indian Affairs, Clifford Sifton in 1899, was merely to procure surrenders of those reserves abandoned by Indian bands. But such a neutral position could not long be maintained in the face of sustained pressure from all sides. In his coincident role as Minister of the Interior, Clifford Sifton was responsible for the settlement and development of the west, and as his efforts in that direction bore fruit, he was often forced to choose between the demands and interests of the settlers on the one hand, and the rights and interests of the Indian population on the other. In such instances, it would have been inexpedient, and politically dangerous, to support Indian bands. Sifton caved in to the pressure. Although never bluntly articulated, the government implemented a policy designed to deprive western Canadian Indians of their land and resource base. Surrender negotiations were encouraged and undertaken wherever they were likely to be successful, with but little thought given as to whether or not a surrender was necessarily in the interests of the band concerned.
By the time Clifford Sifton left office in February of 1905, partial or total surrenders had occurred in each of the three prairie provinces, Thousands of acres of land had been alienated and thrown open for settlement. But this was just the beginning. Sifton's cabinet portfolio was given to Frank Oliver of Edmonton, a man whose views were far more radical than those of his predecessor. Olives saw little or no role for the Indian population in the development of western Canada. He believed that Indian Reserve lands "were needed by better men", and that they should be surrendered and sold, whenever and wherever possible. Such surrenders, he alleged, were in the Indians' "best interests". The money derived from the sale of their land would provide much needed capital for the purchase of agricultural implements, seed, etc, Furthermore, some bands could then move to "more congenial surroundings", far removed from settlement, where their avocations of hunting and fishing could be pursued, undisturbed by white men. Their lands, which for the most part were undeveloped, could then be turned from "tax-eating to tax-paying propositions". Such was the attitude of the newly appointed Superintendent General of Indian Affairs.
Vested with ministerial power and prerogative, Frank Oliver was determined to implement policies which adhered to his own personal views. Foremost on his list of changes was the need to rectify what he saw as an essentially passive policy on Indian Reserve land surrenders inherited from the Sifton administration. Indian Reserve surrenders were to be actively promoted, and vigorously pursued. Less than four month's after assuming office, Oliver hired the Reverend John McDougall, the foremost Methodist Missionary in the west, to act as a special agent to procure surrenders. McDougall, who was paid the exceptional rate of $10 a day plus expenses, began work in the fall of 1905. In 1906 alone he participated in no fewer than seven different surrender negotiations, one a month from May through November. And in order to enhance McDougall's success rate, Oliver carried his policy to a further extreme.
While the policies initiated by Oliver were not as effective as he would have wished, the results were nevertheless startling. By the time the Liberals were swept from power in 1911, over 600,000 acres of Indian Reserve land in the prairie provinces had been alienated, including more than 300,000 acres in Saskatchewan alone. And while there would be other surrenders, and indeed another "surrender period" following World War I, the vast majority of these transactions had occurred by the time the first Conservative Government of Robert Laird Borden took office. The Canadian Government, which had often piously proclaimed the justice and enlightened nature of its Indian policy, had managed to alienate almost a third of the land set aside under treaties signed less than half a century earlier. Many bands would never recover from the economic body blow delivered by this loss of much of their prime agricultural land.
There is more to the history of surrender transactions than this brief description of an ill-conceived and ill-advised policy implemented by the Laurier administration during the early years of the twentieth century. There is more - much more - to the story than the bald fact that the Canadian Government found it expedient to ignore the rights and interests of Indians, and indeed its own special relationship with that population, in order to satisfy the demands of a land hungry white population. The story of the land surrenders which occurred between 1896 and 1911 is also one of fraud and deceit, and of the personal financial gain of high-level government officials and their friends.
Surrenders For Sale In Saskatchewan
|Band #||Name of Band||Year||Approx. Acreage|
|76||Carry The Kettle||1905||5,760|
|64||Cote (Kamsack Townsite)||1904||242|
|110/111||Grizzly Bear's Head/Lean Man||1905||14,400|
|80A||Last Mountain Lake (Fishing Lake)||1918||1,408|
|84||Little Black Bear||1928||12,408|
|85||Muskowequan (Lestock Townsite)||1910||160|
|73A||Sakimay (Little Bond/Leech Lake)||1907||6,976|
|101||Sturgeon Lake (exchanged)||1913||2,145|
|107||Young Chipwayan (Stony Knoll)||1897||19,200|
Archival Research into the history of the White Bear, Pheasant's Rump, and Ocean Man Bands began in about 1973. At that time, Dr. John Tobias, a historian who had obtained his training from the University of Alberta, was employed by the FSI's Treaty Research Program to research the history of Saskatchewan Bands. Dr. Tobias did not concentrate his energies on land claims in particular, but rather was trying to establish the broad outlines of the Canadian government's Indian policies and how they affected particular bands.
Using the files of the Department of Indian Affairs in the Public Archives of Canada, he produced a short history of the three bands, the most valuable part of which dealt with the attempts by the Department of Indian Affairs to turn Indians into agricultural peasants. The surrenders of the Assiniboine reserves were dealt with but were not explored in depth.
In late 1974 the attention of the archival researchers for the FSI turned to the possibility of a land claim by the White Bear Band for the loss of the Pheasant's Rump and Ocean Man Reserves by certain legal proceedings in the Saskatchewan Court of Queen's Bench. Harold Lees, a rancher and business man, had purchased a significant portion of the former Ocean Man Reserve. The land was mortgaged to the Federal Industrial Development Bank, and when Mr. Lees encountered some financial difficulties, the FIDB foreclosed on his mortgage. The land was put up for public auction, and, under some pressure from the FSI, the Department of Indian Affairs and Northern Development purchased the land. The transaction was challenged by Mr. Lees, on the grounds that he was then in a position to pay his arrears on the mortgage, and the FIDB had acted too hastily in foreclosing on the land. Mr. Lees seemed to imply that the foreclosure was made by the bank for the purpose of benefiting the Department. Indian Affairs was not anxious to defend its actions on the basis that the members of the White Bear Band had a claim to the land, but the FSI and the Band were invited to intervene in the court case to make that point.
The FSI hired Leo Morgan, a Regina lawyer to look after its interests. Dr. Tobias and Ken Tyler, another historian who had been trained at the University of Alberta and had worked previously as a researcher for the Indian Association of Alberta and the Enoch Band, were summoned from Ottawa to help Mr. Morgan put together a case. The work was done on short notice, and with little opportunity for additional research beyond that which Dr. Tobias had done in connection with his history of the three bands. Nevertheless, a case was put together. Mr. Morgan argued that the White Bear Band had a claim to the former Pheasant's Rump and Ocean Man Reserves because the federal government, in advising the members of the two Assiniboine bands to surrender their lands had acted in the interests of potential white settlers and contrary to their trust obligations to the Indians. Mr. Lees' application to regain the land was unsuccessful, but the court was not in a position to decide upon the validity of any claim that members of the White Bear Band may have had to the land, and it did not do so.
In the late fall of 1975, Ken Tyler was doing unrelated research work in the files of the Department of Indian Affairs at the Public Archives of Canada in Ottawa. Quite by chance, he happened to notice a small notation, on the back of a file containing tenders for the purchase of Moose Mountain Reserve lands. The notation was headed "RE SMART, PEDLEY AND WHITE", and declared that this file was on exhibit to the testimony of W.A. Orr given in the summer of 1913 before the royal commissioner T.R. Ferguson. Tyler knew that Smart and Pedley were deputy ministers of Indian Affairs in 1897-1902 and 1902-1913 respectively. He also knew that W.A. Orr was the chief clerk in the Department of Indian Affairs in charge of the lands branch of that department. White and T.R. Ferguson he had never heard of. He was curious as to why a royal commission would have been looking into the activities of Smart and Pedley, and asked a couple of his fellow researchers, Roland Wright and Bennet McCardle, who were then working for the Indian Association of Alberta, whether they had ever run across any reference to this matter. Neither had, but both promised to keep their eyes open for further references to the commission.
A few weeks later, Bennet McCardle was doing research in certain old letter books of the Department of Justice. That department had decided that these letter books should be destroyed but by some happy accident they found their way into the public archives. She noticed that a couple of the letters in the letter book dealt with the Ferguson Royal Commission and Mr. Pedley. She brought these letters to the attention of Ken Tyler and Roland Wright. The letters were somewhat ambiguous, but they did hint at the possibility that Mr. Pedley might have been guilty of a criminal offence. They made it clear that the investigation into Smart, Pedley and White had not been concluded until late September or early October of 1913. A check of the Orders in Council passed in October 1913 revealed that Frank Pedley had been removed from office on October 11th, "without prejudice to any charges that might be brought against him". It was not clear that the government considered that Mr. Pedley had been guilty of at least grave improprieties, if not criminal acts.
Linda Ervin, a friend of Tyler's who worked in the National Newspaper Library, then unearthed a newspaper article from the Winnipeg Free Press in 1913 which dealt with Pedley's "resignation". The article indicated that the reason for the dismissal was a finding by the Royal Commissioner, T.R. Ferguson, that Pedley, Smart, and William White, an Inspector of U.S. Immigration Agencies had purchased and speculated in lands from the former Pheasant's Rump and Ocean Man Reserves, as well as the Chacastapasin and Cumberland Reserves in the Prince Albert District.
The Winnipeg Free Press article indicated that the three government officials had not been guilty of any criminal wrongdoing, and that the Indians had received full value for their lands. The Winnipeg Free Press, however, was well known to be a partisan Liberal paper, and both Smart and Pedley were Liberal government appointees. Conservative and independent newspapers checked by Tyler and Wright implied that, on the contrary, the Indians had been cheated by Smart, Pedley and White, who might well have been guilty of criminal acts.
Tyler and Wright realized that they had caught a glimpse of a potentially very important scandal that might have major implications for land surrender claims in western Canada. The question was what to do about it. They approached Noel Starblanket, who was then the FSI's executive member responsible for treaty research, to suggest that a major effort should be made to get to the bottom of this story. They pointed out that the work that would need to be done would likely be hard and time consuming, and that it was important that those working on the project be able to concentrate their full time and effort on the task. The Treaty Research Program consulted with the executive of the FSI, and it was agreed that a one year's contract should be entered into with Tyler and Wright, operating as a partnership to fully research the potential claim. In the end, the task would take three years to complete, and at one point as many as thirteen researchers were working on the project. Although much pressure was placed upon them to divert resources on to other matters, the executive of the FSI, particularly Chief Sol Sanderson, and treaty research director, Anita Cordon, never waivered in their support for this work. All were convinced that the Moose Mountain claim was the best chance to set a precedent on the land surrender issues for all of the bands in the province.
Tyler and Wright began their full time research in the Smart, Pedley and White affair early in 1976. One one occasion several days were invested in trying to trace the surviving relatives of Thomas R. Ferguson. After considerable effort, the surviving granddaughter was found. Only then was it discovered that she was the granddaughter of another Thomas R. Ferguson who, by sheerest coincidence, had moved to Ottawa at almost precisely the same time as Royal Commissioner T.R. Ferguson had arrived in the capital to commence his royal commission investigation.
Despite such set backs, real progress was rapidly made. At first, Tyler and Wright concentrated on tying to uncover the royal commission report on the subject, which would it was hoped have provided proof that the Pheasant's Rump and Ocean Man Bands had been cheated out of their lands. The auditor-general's reports were carefully checked to see what payments had been made to Mr. Ferguson for his royal commission work, and then the names of other persons employed by the commission and anything else that might be relevant to this period. Attempts were made to trace the surviving m families of Mr. Ferguson and other commission employees. While some success was achieved in tracking these people down, none of the persons located was able to add much to what had already been uncovered. One big break came when Tyler and Wright discovered that royal commissioner Ferguson had not completed his work until the end of 1914 or the beginning of 1915. This led to the discovery of the parliamentary debate on Ferguson's findings, which occurred in late April of 1915 and was fully recorded in Hansard. Just prior to that debate, copies of the royal commission reports (there were reports on other scandals, in addition to those involving Smart, Pedley and White) had been laid before the House of Commons in Ottawa and become available to the press. There were therefore several reports on the findings with respect to the activities of Smart, Pedley and White. The parliamentary debate and the newspaper articles made it clear that Ferguson had found that Smart and the two former deputy ministers of Indian Affairs had obtained most of the land in the Pheasant's Rump and Ocean Man Reserves by manipulating the sale of the lands through the public tender system, and had had tenders submitted in the names of others so that they would not be connected with the matter.
But the discovery of this information also led Tyler and Wright to realize that the Ferguson report might never be found. The parliament buildings had been destroyed by fire in February of 1916. Virtually all of the reports, documents, and papers which had been laid before parliament up to that date were destroyed at that time. While Tyler and Wright now knew that Smart, Pedley and White had abused their government positions to make a personal profit from the sale of Indian reserve lands, they were not in a position to prove this legally, since the House of Commons debates and newspaper articles would not be admissible in court.
They pondered this problem for some time before Roland Wright hit upon a possible solution. The newspapers' accounts of Ferguson's findings indicated that tenders for the purchase of the Pheasant's Rump and Ocean Man lands had been prepared by Smart, Pedley and White in Ottawa, and then shipped to Toronto, where Pedley's former law partner, A.C. Bedford Jones, had attached the signatures of some of his acquaintances to them. The tenders for the Pheasant's Rump, Ocean Man, and Chacatapasin Reserves were still in the files of the Department of Indian Affairs in the Public Archives of Canada. It should be possible therefore for an expert in typewriting and handwriting analysis to tell whether or not those tenders were typed on the same typewriter as other correspondence from Smart, Pedley or White, and also whether or not the names on the bottom of them had, in fact, been signed by A.C. Bedford Jones.
Tyler and Wright then contacted Mr. Roy Huber. Huber was a remarkable man who had recently retired from a position as assistant commissioner of the RCMP. He had had a long and distinguished career in identifying forged documents and fighting "white collar" crime.
He also had an international reputation, having been involved in attempts to identify the handwriting of William Shakespeare. It did not take Huber long to conclude that A.C. Bedford Jones had indeed forged the signatures of other persons to the tenders for the Moose Mountain lands. Identifying the typewriters took longer. Eventually, however, after comparing the typing on the Moose Mountain and Chacastapasin tenders with that on several pieces of ordinary correspondence, he was able to conclude that the Moose Mountain tenders had been typed on two typewriters which were ordinarily employed in Frank Pedley's office (Pedley was then Superintendent of Immigration), and that the Chacastapasin tenders had been typed on two typewriters which were ordinarily used in James A. Smart's office - that of the deputy minister of Indian Affairs.
Tyler and Wright now had their proof that Smart and Pedley had indeed been behind the successful tenders for the purchase of the Pheasant's Rump, Ocean Man, and Chacastapasin Reserves. But this still fell short of what they felt they needed to prove. Evidence that Smart, Pedley and White had made money by secretly purchasing reserve lands might lead to a claim that the bands should have received a greater amount of money for the sale of their lands, but it did not support a claim that the surrenders themselves were invalid.
Tyler and Wright therefore entered into an extensive research effort to find every conceivable scrap of evidence concerning the circumstances surrounding the surrender of the Ocean Man and Pheasant's Rump Reserves. The records of the Department of Indian Affairs in the Public Archives of Canada were gone through completely, and every file which could have any possible connection with the subject was carefully studied. Records of the Department of the Interior in both Ottawa and Saskatoon were similarly examined, as were those of the Immigration Branch. Virtually every newspaper from what is now southeastern Saskatchewan and southwestern Manitoba that survives from the period between 1898 and 1901 was read for any clue as to what was happening in connection with the surrender of the Moose Mountain Reserves. Several major national papers were similarly examined. Further, research was done into the various companies incorporated in Manitoba, Saskatchewan, Minnesota, Ontario and by the Canadian government in Ottawa.
One of the most important sources was the Sifton papers, the private collection of documents maintained by the then Minister of Indian Affairs, Clifford Sifton. Those papers contained much value in placing the other information found into a political context. Other documentary collections, such as the private papers of Prime Minister Wilfred Laurier, the private diaries of Prime Minister Robert Borden and the papers of several other politicians of the day were also helpful.
Gradually the picture of what had happened began to emerge. The important thing was not to take any document at face value. It had to be approached in the manner of detectives investigating a crime. Every initial scrawled on the margin of a letter might have significance. So might the typing paper upon which a letter was written. A remarkably successful attempt was made to establish the whereabouts of Smart, Pedley and White on every day during the critical periods when the Moose Mountain and Chacastapasin Reserves were being dealt with. Suspicious letters were referred to Huber for his analysis. He was able to establish that many of them had been signed by persons other than those who had purported to send them, and typed on typewriters that they should not have been if they were to be taken at their face value.
In the end, Tyler and Wright were able to join their findings from the archives with the information that Walter Gordon and others had gathered from their interviews with reserve residents and put together a more or less complete picture of what had happened. It was clear that Smart, Pedley and White had plotted to obtain the Moose Mountain reserve lands for more than twenty years before the reserves were actually surrendered, and that the surrenders themselves were arranged so that those three government officials could make personal profits from speculation in them. Furthermore, the web of corruption had spread outside the Department of Indian Affairs into the Immigration Branch of the Department of the Interior, where several officials in addition to Pedley and White were involved.
Tyler and Wright were joined by Rick Daniel in the fall of 1977 and the new firm of Tyler, Wright and Daniel, Ltd. put together a detailed report on the transaction. In addition to 225 pages of text there were several hundred footnotes and several volumes of copies of all the documents. The final report was presented to the FSI in January of 1979, and near the end of that month Chief Sol Sanderson and other members of the executive of the FSI presented it as a claim to the then Minister of Indian Affairs, Hugh Faulkner. Government officials seemed unwilling to come to terms with the issue on other than a legal basis, so in June of 1979 a Statement of Claim was filed in the Federal Court by Alain Dubuc, an Ottawa lawyer retained by the FSI. The Statement of Claim itself was very detailed, and was put together by Tyler, Wright and Dubuc in Ottawa. At the same time, a committee was formed consisting of Rodney Soonias and Alain Dubuc, lawyers for the FSI, Ken Tyler, William J. Pippipow, the lawyer for the White Bear Band Council, and Thomas Waller, the lawyer representing a faction of the White Bear Band who were descendants from the original members of the Pheasant's Rump and Ocean Man Bands. This committee met to discuss strategy in dealing with the claim, either in negotiations or in the courts. While negotiation of a land claim settlement was always the preferred course, the people involved realized that the Department of Indian Affairs might be unwilling to negotiate unless they were faced with the threat of court action.
Negotiations proved to be long and difficult, and by the time they were completed, Tyler, Wright, Soonias and Dubuc were no longer involved. Nevertheless, the final, successful outcome of the negotiations has in large part been due to the efforts they made in previous years, and to the foresight that the Indian Rights and Treaties Research Program of the FSI had in supporting the massive effort that was required to gather the information necessary to establish the very important precedent of the White Bear settlement.
THE WHITE BEAR CLAIM: THE LEGAL ARGUMENTS AND THE SETTLEMENT
The descendants of the White Bear, Pheasant's Rump and Ocean Man Reserves have for years asserted that there were improprieties involved in both the purported surrenders of the Pheasant's Rump and Ocean Man Reserves in 1901 and the amalgamation of those reserves with White Bear shortly thereafter. Based on extensive research conducted by the Federation of Saskatchewan Indian Nations in the 1970's, evidence of these improprieties was documented and brought to light for the first time in a detailed and comprehensive manner.
On the basis of this historical documentation, two actions, one by descendants of the Pheasant's Rump and Ocean Man Bands and the other by the White Bear Band were commenced in the late 1970's. These were similar but separate Federal Court actions seeking a declaration that the purported surrenders were invalid. After much discussion and considerable negotiation, both actions were eventually consolidated in the action McArthur, Big Eagle, et al. v. The Queen, Federal Court Action 7-3267-79.
Over the next few years this action followed its usual course through the Federal Court process to the stage where the respective parties were preparing for examination for discovery. However, in 1982 the Minister of Indian Affairs and Northern Development requested that the court action be withdrawn and that discussions with a view to settlement be undertaken. It was subsequently agreed to hold the action in abeyance while negotiations toward a possible settlement of the claim be conducted with the Federal Government.
In 1983 the White Bear Band established a land surrender committee consisting of members of the White Bear Band and descendants of members of the original Pheasant's Rump and Ocean Man Bands. This committee was established to organize the preparation of a compensation package. Simultaneously, a political committee, made up of representatives from among the claimants and the Federal Government, whose chief negotiator was a Member of Parliament, was formed to jointly prepare the submission of the claim for presentation to Cabinet and eventually negotiate the final settlement.
The surrender committee met frequently during the summer of 1983, and in the fall of that year further research on the legal basis of the claim was continued by lawyers for the committee and for the Federation. The legal submission was completed in October of 1983-and, along with supporting documentation, was presented to the Minister of Indian Affairs.
His officials exhaustively reviewed the materials presented. In consultation with the lawyers for the claimants, a final document summary, along with the legal submission, was presented to the Department of justice for their opinion on the validity of the White Bear claim.
The legal basis of the claim submitted by the White Bear committee was:
That the Crown, as trustee of the Indians and of Indian lands, breached its trust obligation by securing the purported surrenders. They did this by:
a) the non-fulfillment of its treaty obligations;
b) a breach of an obligation arising out of the Indian Act or other statutes pertaining to Indians and the regulations thereunder;
c) a breach of an obligation arising out of the government's administration of Indian funds or other assets;
d) an illegal disposition of Indian lands.
That the taking of the reserves was, having regard to the circumstances, unconscionable.
That on a balance of probabilities, there was no surrender by the Pheasant's Rump Band and, on the whole, no valid surrender by either band.
Finally, that the taking of the lands was done as part of a scheme to defraud the bands involved.
While the claim was before the justice Department awaiting their response to the legal submission, the White Bear surrender committee and their lawyers decided to immediately proceed with the preparation of the compensation package. Since monies were unavailable from the Department of Indian Affairs until after the claim had been validated, the band was forced to use its assets as collateral to obtain a loan from Peace Hills Trust, in Alberta. This money was used to facilitate the preparation of the compensation package in anticipation that the claim would be eventually validated.
Since the band's position was that there was fraud involved in the acquisition and disposition of the old reserve, that there was conduct on the part of the Department which consistuted a breach of trust, and fianlly that they transaction involving the surrender and amalgamation was unconscionable, they claimed compensation for:
Damages related to loss of the land and its use.
Damages related to the loss of minerals and their use.
Damages arising out of the forced surrender and amalgamation.
Costs incurred in the preparation and negotiation of the claim.
The loan obtained from Peace Hills Trust was used for the following purposes:
Appraisers were hired from Regina to determine the value of the land lost.
Their appraisals were submitted to an actuary to determine the accumulated value of gross income lost from the lands allegedly surrendered.
The appraisal reports were then submitted to experts at the University of Saskatchewan to determine the net economic loss of use involving the two reserves.
Geographical and engineering consultants from Calgary, Alberta, were hired to conduct appraisals on mineral loss and loss of use.
To determine the nature of the damages associated with the forced amalgamation of the three bands, a researcher and SINCO Consulting were hired to conduct field research.
This research was compiled and supplied to a professor from the University of Regina for his professional analysis of the raw data and opinion as to the basis and nature of these damages.
Finally, a retired Queen's Bench judge, with some expertise on these matters, was retained not only for consulting purposes but to fix a cost figure to the type of damages that arose as a result of the amalgamation.
A lengthy review of the claimants' materials was undertaken by the Department of Justice. Based on their opinion, the Minister of Indian Affairs in March of 1984 was prepared to validate the White Bear claim under the "Specific Claims Policy" as one which went beyond a lawful obligation, but was limited to the conspiratorial activities of departmental officials involved in the disposition of the old reserves after they were surrendered.
The basis of the validation was not accepted by the White Bear claimants, since the same conspiratorial actions were involved in the acquisition of the reserve lands. Nevertheless, both parties agreed to negotiate a fair and equitable settlement, which would include compensation for many of the damages enumerated by the claimants and which would attempt, thereby, to remedy past injustices. At that time, the band was also able to obtain loan funding from the government, pay out Peace Hills Trust and continue the negotiations.
Months of negotiations took place through the summer of 1984, involving politicians, committee members, federal negotiators and lawyers for the government and the claimants. An agreement in principle was finally reached on August 31, 1984. In summary, the agreement included the following terms:
The payment of $16,165,000 to the White Bear Band in accordance with a trust agreement.
The transfer of the Kisby or Lees Ranch, consisting of 12,635 acres, to the White Bear Band, with reserve status.
The transfer of title to the buildings and equipment on the ranch to the White Bear Band.
The transfer of the White Bear Band of all funds held in the Reserve Suspense Account created from funds arising out of the Kisby Ranch operation. This represented all the funds earned by Indian Affairs when they owned the land.
The payment of $522.000.00 towards legal fees, negotiation costs and interest costs incurred by the band in obtaining the settlement.
The government can retain, out of the settlement proceeds, the amount they loaned to the band in the amount of $349,000.00.
The cash portion of the settlement is to be held in a form of a trust fund, with some funds to be used to purchase land and the balance to be retained until the band determines what to do with the settlement.
The band is authorized to purchase additional lands with reserve status to replace the acreage lost in 1901.
If the descendants of the Pheasant's Rump and Ocean Man Bands so choose, the Minister has agreed to establish up to two additional bands.
The settlement containing the above terms and the trust agreement were signed by the Federal Government on January 30, 1986, and by the band on January 31, 1986. Over 10 million dollars was received on that date. The remaining monies with interest, in excess of 7 million dollars, will be paid before the end of April, 1986. An Order in Council has been passed granting reserve status to the Kisby Ranch, effective March 1, 1986.
It is hoped that this long and difficult process, which resulted in a complex settlement, will finally resolve, in some small measure, a long outstanding grievance held by the descendants of the White Bear/Pheasant's Rump/Ocean Man Bands.