Indian Claims Commission

Indian Claims Commission

August 16, 2007 11:00 ET

ICC Panel Finds that Canada Should Negotiate Part of Blood Tribe / Kainaiwa's Big Claim

OTTAWA, ONTARIO--(Marketwire - Aug. 16, 2007) - An Indian Claims Commission (ICC) panel has found that Canada did not breach its fiduciary obligation to the Blood Tribe / Kainaiwa when it created the Blood reserve that did not include all of the "Big Claim" lands, or through the surrender of the Blood Tribe's stake in a shared reserve created along the Bow River.

However, the panel recommended that Canada accept the claim that the Blood Reserve was created in 1882, and that a surrender was required when it was reduced in size in 1883 with the move of its southern border. The panel's third recommendation was that the date of first survey be accepted as 1882.

These findings were part of an inquiry report on the Blood Tribe's Big Claim, released today. The panel that conducted the inquiry consisted of Commissioners Daniel J. Bellegarde (Chair) and Alan C. Holman.

"Knowledge of the events at the time the Crown signed Treaty 7 with the Blood Tribe was a significant part of this inquiry," said Commissioner Bellegarde. "Hearing the oral history from the Blood Tribe Elders during the community sessions held by the Commission, was a crucial element towards understanding the meaning and intention of Red Crow and his people when the Treaty was signed. This testimony was then incorporated into submissions by Legal counsel representing both the Blood Tribe and the Crown. Based on this evidence, the panel found that parts of the claim were invalid, but other aspects of the claim should be accepted."

As a result of Treaty 7, signed in September 1877, a joint reserve along the Bow River was set aside for the Blood Tribe, the Sarcee and the Blackfoot. Following the conclusion of Treaty 7, Red Crow, Chief of the Blood Tribe, broke camp and returned to the Tribe's home base in southern Alberta. The Blood Tribe never moved to the joint reserve at Bow River. Eventually, a reserve was set aside for the Blood Tribe within their traditional territory. This reserve included a part, but not all, of the Big Claim lands. An Order in Council was passed by Canada in 1880 which specified a surrender of the Blood Tribe's portion of the joint reserve at Bow River.

The Blood Tribe alleges that it never intended to surrender all of the lands described as the Big Claim lands, which are described as the entire area in southern Alberta between the Kootenay (Waterton) and St Mary Rivers at the international boundary.

The Blood Tribe submitted its claim to the Department of Indian Affairs and Northern Development in July 1996, and made further submissions in March 2000 and November 2001 regarding the location of the southern boundary of the reserve and an outstanding treaty land entitlement. All parts of the claim were rejected by Canada in November 2003. The Blood Tribe formally requested that the ICC conduct an inquiry into its rejected claim in January 2003. For the purposes of the inquiry, the Big Claim specifically focussed on the area between the Kootenay (Waterton) and Belly Rivers, the location of the southern boundary of the reserve and an outstanding treaty land entitlement.

The panel found that while some of the statutory requirements set out in the Indian Act had not been met, the surrender of the Bow River lands was still valid because both the Blood Tribe and Canada agreed to an exchange of the Tribe's interest in the joint reserve along the Bow River, for a reserve in the vicinity of Fort Kipp - near the Tribe's homelands.

As for the reserve that was set aside for the Blood Tribe, the panel concluded that it was established by the 1882 survey. A second survey, which took place in 1883, moved the southern boundary north, resulting in a smaller reserve. Because the reserve had been established in 1882, the panel concluded that a surrender was required when the southern boundary was moved. As a surrender for this land was never taken from the Blood Tribe, Canada breached its fiduciary obligation. In addition, since the panel concluded that the reserve was established in 1882, it also finds that the date of first survey for treaty land entitlement purposes is 1882.

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 accepted claims where the First Nation disputes the compensation criteria being considered; and to provide mediation services on consent of the parties at any stage of the claims process.

Backgrounder

The Blood Tribe is a member of the Blackfoot Confederacy, which also includes the Siksika, the Piikani (Peigan), and the Blackfeet Nation. The traditional territory of the Blackfoot Confederacy is the area between the North Saskatchewan River and the Yellowstone River from the Cypress Hills to the mountains in the west, and the home base of the Blood Tribe is the area between the Kootenay (Waterton) and St Mary Rivers extending to the mountains at the international boundary.

Today, the Blood Tribe's reserve in southern Alberta (Indian Reserve 148) is the largest Indian reserve in Canada. The reserve's northern boundary is located at the confluence of the St Mary and Belly Rivers at Kipp, and extends southward to an east-west line located 14 miles north of the international boundary.

The Blood Tribe is governed by a clan system that exists to this day. Traditionally, the Blood Tribe was known as "the Tribe of Many Chiefs." Sixteen clans and four sacred societies exist today, and include the Lone Fighters, Many Children, Blackened Lodge Door Flaps, Fish Eaters, All Short People, All Tall People, Little Robes, and Crooked Wheels. Each clan had its own particular areas within the home base. Every year, in the summer, all of the clans would gather for the Sundance and, in the winter, all of the clans would share wintering grounds.

The Blood Tribe's traditional customs have always included consensus in decision making and innaihtsiini, a peacemaking approach to treaty. Essentially, a course of action is not chosen until consensus is reached. According to Blood Tribe custom, when consensus is reached, how the decision is made is not questioned and everyone is responsible for the decision. Innaihtsiini involves two disparate parties coming together and reaching an agreement to maintain peace.

By the time Treaty 7 was concluded on September 22, 1877, the Blood Tribe's way of life was in transition; the buffalo were becoming extinct, and settlement had brought whiskey traders and new diseases to the area. One of the terms of Treaty 7 included a joint reserve set aside for the Blood Tribe, the Blackfoot and the Sarcee along the Bow River. Following the conclusion of Treaty 7, Red Crow, Chief of the Blood Tribe, broke camp and returned to the Blood Tribe's home base.

The Blood Tribe never moved to the joint reserve at Bow River. Instead, in 1880, an Order in Council authorized a surrender of the Blood Tribe's portion of the joint reserve, with a view to setting aside a reserve near Fort Kipp. In September 1880, a surrender of the Bow River reserve was taken from the Blood Tribe; however, there is no evidence that it was taken in accordance with the 1876 Indian Act provisions. A month later, Red Crow, Indian Agent N.T. MacLeod, and others selected the area for the Blood Tribe reserve. Indian Agent MacLeod reported that he did not agree with Red Crow's selection for a reserve, and he selected other lands, which now form the current reserve.

The Blood Tribe's reserve was surveyed twice. In 1882, a 650-square-mile reserve, large enough for 3,250 people and located between the Belly and St Mary Rivers with the southern boundary located nine miles north of the international border, was surveyed by John Nelson, Dominion Land Surveyor. Nelson's second survey, in 1883, moved the southern boundary of the reserve farther north, resulting in a 547.5-square-mile reserve surveyed for approximately 2,737 people.

In 1887, a group of Mormons arrived from Utah and settled near Lee's Creek at what eventually became the town of Cardston. The Mormons were camped within the boundary of the reserve as surveyed in 1882, but outside the boundary as surveyed in1883. Much confusion surrounded the reserve's southern boundary, with the result that Indian Agent William Pocklington requested a map showing its exact location. After Pocklington met with Red Crow, the Department of Indian Affairs considered the confusion over the location of the southern boundary resolved, and, in 1888, the Mormons obtained Crown grants to the lands they had camped upon. An 1889 Order in Council confirmed the Blood Tribe reserve as surveyed in 1882 and amended in 1883.

As part of the inquiry, the Commission panel held two community sessions at which it listened to the testimony of the Blood Tribe Elders, community leaders and citizens. It also considered the parties' written and oral submissions.

The ICC panel concluded that, although a reserve in the Blood Tribe's home base was not formally set aside by Treaty 7, the Crown was nevertheless obligated to set aside a reserve for the Blood Tribe. Historical events show that the Crown and the Blood Tribe agreed that the reserve would at least be located within the Blood Tribe's home base and, presumably, subject to the other terms of Treaty 7, including the treaty land entitlement formula. From the panel's perspective, the Blood Tribe held what could be described as a cognizable interest in its lands in the home base.

With respect to the surrender of the Blood Tribe's interest in the Bow River reserve, the panel found that a surrender was required. The panel further found that the statutory requirements of a meeting and a vote on the surrender did not take place, and, as a result, the Indian Act was breached. However, the effect of a breach of these statutory requirements is technical in nature and did not invalidate the surrender.

As for when the Blood Tribe's reserve was established, the panel concluded that John Nelson's 1882 survey established the reserve. Because the reserve was established in 1882, a surrender was necessary in 1883 to move the southern boundary. The panel concluded that the Crown failed to fulfill its fiduciary obligations with respect to the movement of the southern boundary.

With respect to the treaty land entitlement (TLE) portion of this inquiry, the panel noted that the parties had agreed to limit their arguments to the date of first survey (DOFS) only and not address the remaining TLE issues. As the panel concluded that the Blood Tribe's reserve was established in 1882, the panel also concluded that the DOFS is 1882.

A copy of this news release, as well as the report, is available upon request. It can also be found on the Indian Claims Commission web site at www.indianclaims.ca.

Contact Information

  • Indian Claims Commission
    Manon Garrett
    Communications Officer
    613-947-3939