Kahkewistahaw First Nation [1907 Surrender]

February 1997

This inquiry concerned the surrender of 33,281 acres from the Kahkewistahaw First Nation's reserves in 1907. The surrender amounted to almost three quarters of the First Nation's original land-base of 46,816 acres, and the land that was left for the First Nation was almost completely unsuited for cultivation. The Kahkewistahaw First Nation claimed that the surrender was invalid because of the presence of duress, undue influence, and negligent misrepresentation, and because the surrender bargain was unconscionable. It also alleged that the surrender was invalid because the Crown failed to comply strictly with the requirements of the Indian Act, breached its fiduciary obligation to the First Nation by the manner in which it obtained the surrender, and violated a requirement of Treaty 4 by failing to obtain the consent of all Kahkewistahaw members interested in the reserve.

The surrender took place in January 1907, in the middle of winter, when the First Nation had been weakened by illness and hunger. In addition, Chief Kahkewistahaw - who had adamantly opposed earlier surrender offers - had recently died, and the First Nation was still without a leader. In these circumstances, the Inspector of Indian Agencies arrived at the surrender meetings with cash in hand, determined to obtain a surrender, and promising immediate payment of a portion of the estimated purchase price if the First Nation agreed. Even so, the First Nation rejected the surrender by a vote of 14 to 5 at the first surrender meeting. Five days later, however, the First Nation reversed its decision and accepted the surrender by an 11 to 6 majority.

In its final report, released in February 1997, the Commission concluded that the 1907 surrender was valid and unconditional because there was technical compliance with the Indian Act. However, the Commission also concluded that the Crown owed pre-surrender fiduciary obligations to the First Nation and that it breached those obligations. It found that, in procuring the surrender, the Crown's agents engaged in "tainted dealings" by taking advantage of the First Nation's weakness and lack of leadership to induce its members to consent to the surrender. Moreover, the First Nation effectively ceded or abnegated its decision-making power to or in favour of the Crown with respect to the surrender, but the Crown failed to exercise that power conscientiously and without influencing the outcome of the surrender vote. Finally, the Governor in Council had an opportunity to prevent the surrender, which was clearly foolish and improvident and constituted exploitation, and failed to do so.

Response: In December 1997, the government accepted the claim for negotiation.

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