Montana Band v. Canada

Montana Band v. Canada
Court (s) Database
Federal Court Decisions
Date
2006-02-28
Neutral citation
2006 FC 261
File numbers
T-2804-97, T-617-85, T-782-97
Decision Content
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 Departmen