First Nations’ merger ruled unlawful
REGINA The creation of Ochapowace First Nation more than 135 years ago was unlawful, according to a recent court decision that found the federal government broke treaty promises by fusing two pre-existing bands without consent.
It’s unclear what the declaration will mean for the future of Ochapowace, located about 150 kilometres east of Regina. But its chief celebrated a historic ruling that some band members hope will lead to the rebirth of a longlost First Nation in Saskatchewan.
One of the plaintiffs was moved to tears by the decision. “I just about fell over when he said that we are recognized. You are a band. You always were a band,” said Sharon Bear.
A Chacachas elder who shared oral history during the case, Bear is a descendent of Wasimosis, also known as Little Assiniboine, a band headman at the signing of Treaty 4.
Chiefs Chacachas and Kakisheway signed Treaty 4 in 1874, and were granted separate reserve lands.
But their bands were later amalgamated and moved to a single, smaller reserve. By 1884, their people were all treated as members of Ochapowace.
But the Federal Court of Canada concluded in a Jan. 28 decision that the Chacachas band never consented to surrender its former reserve and merge.
Many members continued to identify with the Chacachas band, and still do.
The court found that the federal government failed to consult the band, acted unreasonably and failed to protect the interests of band members.
The court also accepted its own limits in what it called an “extraordinary situation.” Judges cannot “rewrite history” after 135 years.
While the court agreed Chacachas remains a distinct treaty band, it refused to grant it legal status as a separate band under the Indian Act.
It also found that band members are barred from seeking any additional money for their lost reserve, since Ochapowace has already concluded an agreement and used funds to buy back some former lands.
Heather Bear, a Federation of Sovereign Indigenous Nations vice-chief who is also an Ochapowace member, proclaimed: “This is a great day for Treaty.”
She argued the recognition should entitle Chacachas members to Treaty 4 benefits that she said they’ve been excluded from.
“I think there should be a very hefty settlement for Chacachas to build their nation and start their governance,” she said.
The only relief the court agreed to grant was a declaration, in the hopes of providing a foundation for negotiation to help the different factions “fashion a view of their future as communities.”
The declaration reads: “That the amalgamation of the Chacachas and Kakisiwew Bands was unlawful by virtue of the failure of the federal Crown to implement the promises of Treaty 4 in accordance with the honour of the Crown.”
Ochapowace has been supportive of the quest of the Chacachas members for decades. The Ochapowace council passed a resolution in 1999 recognizing Chacachas as a separate band.
But Ottawa insisted any division would have to take place according to the Indian Act.
On the Ochapowace website, Chief Margaret Bear called the declaration a “historic court judgment” that should be celebrated.
She said council is reviewing it and will consult with the community on next steps.
There may be significant difficulties in deciding who belongs to which band.
The court rejected the claim of several plaintiffs to speak for the former Kakisiwew band.
It found Kakisiwew has simply continued to exist as Ochapowace, and noted significant overlap in membership and family relations.
But Sharon Bear said the people of Chacachas are ready to take on the hard work of establishing the infrastructure of the re-born band “from scratch.”
“We’re fighters. We’re strong people,” she said.
“We’ll carry on. I’m 70 now and we’ve got to get our young people moving on this,” she added.
She said there is so far no concrete plan on moving forward, and a “transition period” is necessary.
Heather Bear called the decision an important precedent that should set an example across the country. “This is a big testament to our country, and I think this is a good message for other nations that are out there trying to get that recognition too, for their own bands, their lost reserves,” she said.