Court rules Ochapowace First Nation created through amalgamation without consent

The Ochapowace First Nation was once two distinct bands, and a federal judge recently decided they were merged in 1884 without the bands' consent.

Ruling found the Crown failed to 'uphold the promises in Treaty 4': Judge Phelan

Ochapowace First Nation hosted a historic federal court hearing within its reserve last week. The court is hearing arguments for the nations of Chacachas and Kakisiwew to be recognized and reestablished, with plaintiffs saying these two nations were amalgamated and became Ochapowace, without consultation. (Ochapowace First Nation/Website)

The Ochapowace First Nation was once two distinct bands, and a federal judge recently decided they were merged without the bands' consent.

A recent federal court ruling found the Chacachas Band and the Kakisiwew Band were illegally amalgamated under the Indian Act in 1884. They became the Ochapowace First Nation, located about 156 kilometres east of Regina. 

Judge Michael Phelan decided on the matter in late January. 

"In amalgamating two Treaty 4 bands, the Chacachas Band and the Kakisiwew Band, without their consent, the Crown breached its fiduciary obligations owed to the two bands and failed to honourably fulfill and uphold the promises in Treaty 4," Phelan wrote in the decision. 

"By causing the two bands to share a reserve, receive treaty annuities together and share a band governance structure without consent, the Crown prevented the bands from exercising their treaty rights as separate rights-bearing collectives."

Both bands were promised own reserve

Four elders — representing both amalgamated bands — Sharon Bear, Wesley Bear, Sam Isaac and Ross Allary, provided oral evidence for the case.

A transcribed conversation with the late Cameron Watson was also used as evidence, along with arguments for both sides from historians and archeologists.

Watson's combination of stories from elders and his historical research found Chief Chacachas and Chief Kakisiwew were each promised their own reserve under Treaty 4.

Each band's respective chief signed onto Treaty 4 on Sept. 15, 1874. 

Land for each band was surveyed in 1876, however that was thrown out in 1881. The two bands were officially amalgamated in 1884 into one band under Chief Ochapowace — the son of Chief Kakisiwew.

The Chacachas Band never agreed to amalgamate, and courts found band members never stopped recognizing Chief Chacachas as their chief. 

"The Chacachas Band has continued as a distinct rights-bearing collective, even if not a band under the Indian Act," Phelan's decision said. 

"To this extent, the Chacachas Band continues as a 'distinct treaty band' and it is entitled to assert treaty rights under Treaty 4 as a separate rights-bearing collective."

However, the Kakisiwew Band has not been continued as a rights-bearing collective according to court documents, and the Ochapowace Band is its legal successor, which continues to exercise the treaty rights of the Kakisiwew Band.

90 day period to 'digest' decision

Representatives of the Chacachas and Kakisiwew Bands are not able to seek further treaty land entitlements from Canada due to previous settlements between Ochapowace and the federal government. 

Courts ruled representatives from both bands can seek to divide from Ochapowace, although the courts could not declare Indian Act bands to exist; only the minister responsible for Crown-Indigenous relations can create a band. 

Phelan gave both parties 90 days — as of Jan. 28, 2020 — to "digest" the decision and contact the court to decide how to consider costs associated with the case. 

CBC has contacted the Ochapowace band office for comment.