Uniform title: Treaty No. 6 | Map of Treaty 6 area | Indian and Northern Affairs Canada Treaty No. 6 (1876). Medicine chest clause is bolded; there is also a bibliography below. The following is from the appendix of The treaties of Canada with the Indians of Manitoba and the North-West Territories, including the negotiations on which they were based, and other information relating thereto by Alexander Morris. Toronto : Belfords, Clarke, 1880.
[page 351] ARTICLES OF A TREATY made and concluded near Carlton on the 23rd day of August and on the 28th day of said month, respectively, and near Fort Pitt on the 9th day of September, in the year of Our Lord one thousand eight hundred and seventy-six, between Her Most Gracious Majesty the Queen of Great Britain and Ireland, by Her Commissioners, the Honourable Alexander Morris, Lieutenant-Governor of the Province of Manitoba and the North-west Territories, and the Honourable James McKay, and the Honourable William Joseph Christie, of the one part, and the Plain and Wood Cree and the other Tribes of Indians, inhabitants of the country within the limits hereinafter defined and described by their Chiefs, chosen and named as hereinafter mentioned, of the other part.
Whereas the Indians inhabiting the said country have, pursuant to an appointment made by the said Commissioners, been convened at meetings at Fort Carlton, Fort Pitt and Battle River, to deliberate upon certain matters of interest to Her Most Gracious Majesty, of the one part, and the said Indians of the other.
And whereas the said Indians have been notified and informed by Her Majesty's said Commissioners that it is the desire of Her Majesty to open up for settlement, immigration and such other purposes as to Her Majesty may seem meet, a tract of country bounded and described as hereinafter mentioned, and to obtain the consent thereto of Her Indian subjects inhabiting the said tract, and to make a treaty and arrange with them, so that there may be peace and good will between them and Her Majesty, and that they may know and be assured of what allowance they are to count upon and receive from Her Majesty's bounty and benevolence.
And whereas the Indians of the said tract, duly convened in council, as aforesaid, and being requested by Her Majesty's said Commissioners to name certain Chiefs and Headmen, who should be authorized on their behalf to conduct such negotiations and sign any treaty to be founded thereon, and to become responsible to Her Majesty for their faithful performance by their respective Bands of such obligations as shall be assumed by them, the said Indians have thereupon named for that purpose, that is to say, representing the Indians who make the treaty at Carlton, the several Chiefs and Councillors who have subscribed hereto, and representing the Indians who make the treaty at Fort Pitt, the several Chiefs and Councillors who have subscribed hereto.
And thereupon, in open council, the different Bands having presented their Chiefs to the said Commissioners as the Chiefs and Headmen, for the purposes aforesaid, of the respective Bands of Indians inhabiting the said district hereinafter described.
[page 352] And whereas, the said Commissioners then and there received and acknowledged the persons so presented as Chiefs and Headmen, for the purposes aforesaid, of the respective Bands of Indians inhabiting the said district hereinafter described;
And whereas, the said Commissioners have proceeded to negotiate a treaty with the said Indians, and the same has been finally agreed upon and concluded as follows, that is to say:
The Plain and Wood Cree Tribes of Indians, and all other the Indians inhabiting the district hereinafter described and defined, do hereby cede, release, surrender and yield up to the Government of the Dominion of Canada, for Her Majesty the Queen and Her successors forever, all their rights, titles and privileges, whatsoever, to the lands included within the following limits, that is to say:
Commencing at the mouth of the river emptying into the north-west angle of Cumberland Lake; thence westerly up the said river to its source; thence on a straight line in a westerly direction to the head of Green Lake; thence northerly to the elbow in the Beaver River; thence down the said river northerly to a point twenty miles from the said elbow ; thence in a westerly direction, keeping on a line generally parallel with the said Beaver River (above the elbow), and about twenty miles distant therefrom, to the source of the said river; thence northerly to the north-easterly point of the south shore of Red Deer Lake, continuing westerly along the said shore to the western limit thereof; and thence due west to the Athabasca River; thence up the said river, against the stream, to the Jaspar House, in the Rocky Mountains; thence on a course south-easterly, following the easterly range of the mountains, to the source of the main branch of the Red Deer River; thence down the said river, with the stream, to the junction therewith of the outlet of the river, being the outlet of the Buffalo Lake; thence due east twenty miles; thence on a straight line south-eastwardly to the mouth of the said Red Deer River on the south branch of the Saskatchewan River; thence eastwardly and northwardly, following on the boundaries of the tracts conceded by the several treaties numbered four and five to the place of beginning.
And also, all their rights, titles and privileges whatsoever to all other lands wherever situated in the North-west Territories, or in any other Province or portion of Her Majesty's Dominions, situated and being within the Dominion of Canada.
The tract comprised within the lines above described embracing an area of 121,000 square miles, be the same more or less.
To have and to hold the same to Her Majesty the Queen and Her successors forever.
And Her Majesty the Queen hereby agrees and undertakes to lay aside reserves for farming lands, due respect being had to lands at present cultivated by the said Indians, and other reserves for the benefit of the said [page 353] Indians, to be administered and dealt with for them by Her Majesty's Government of the Dominion of Canada; provided, all such reserves shall not exceed in all one square mile for each family of five, or in that proportion for larger or smaller families, in manner following, that is to say: that the Chief Superintendent of Indian Affairs shall depute and send a suitable person to determine and set apart the reserves for each band, after consulting with the Indians thereof as to the locality which may be found to be most suitable for them.
Provided, however, that Her Majesty reserves the right to deal with any settlers within the bounds of any lands reserved for any Band as She shall deem fit, and also that the aforesaid reserves of land, or any interest therein, may be sold or otherwise disposed of by Her Majesty's Government for the use and benefit of the said Indians entitled thereto, with their consent first had and obtained; and with a view to show the satisfaction of Her Majesty with the behaviour and good conduct of Her Indians, She hereby, through Her Commissioners, makes them a present of twelve dollars for each man, woman and child belonging to the Bands here represented, in extinguishment of all claims heretofore preferred.
And further, Her Majesty agrees to maintain schools for instruction in such reserves hereby made as to Her Government of the Dominion of Canada may seem advisable, whenever the Indians of the reserve shall desire it.
Her Majesty further agrees with Her said Indians that within the boundary of Indian reserves, until otherwise determined by Her Government of the Dominion of Canada, no intoxicating liquor shall be allowed to be introduced or sold, and all laws now in force, or hereafter to be enacted, to preserve Her Indian subjects inhabiting the reserves or living elsewhere within Her North-west Territories from the evil influence of the use of intoxicating liquors, shall be strictly enforced.
Her Majesty further agrees with Her said Indians that they, the said Indians, shall have right to pursue their avocations of hunting and fishing throughout the tract surrendered as hereinbefore described, subject to such regulations as may from time to time be made by Her Government of Her Dominion of Canada, and saving and excepting such tracts as may from time to time be required or taken up for settlement, mining, lumbering or other purposes by Her said Government of the Dominion of Canada, or by any of the subjects thereof duly authorized therefor by the said Government.
It is further agreed between Her Majesty and Her said Indians, that such sections of the reserves above indicated as may at any time be required for public works or buildings, of what nature soever, may be appropriated for that purpose by Her Majesty's Government of the Dominion of Canada, due compensation being made for the value of any improvements thereon.
And further, that Her Majesty's Commissioners shall, as soon as possible after the execution of this treaty, cause to be taken an accurate census of all the Indians inhabiting the tract above described, distributing them in [page 354] families, and shall, in every year ensuing the date hereof, at some period in each year, to be duly notified to the Indians, and at a place or places to be appointed for that purpose within the territory ceded, pay to each Indian person the sum of $5 per head yearly.
It is further agreed between Her Majesty and the said Indians, that the sum of $1,500.00 per annum shall be yearly and every year expended by Her Majesty in the purchase of ammunition, and twine for nets, for the use of the said Indians, in manner following, that is to say: In the reasonable discretion, as regards the distribution thereof among the Indians inhabiting the several reserves, or otherwise, included herein, of Her Majesty's Indian Agent having the supervision of this treaty.
It is further agreed between Her Majesty and the said Indians, that the following articles shall be supplied to any Band of the said Indians who are now cultivating the soil, or who shall hereafter commence to cultivate the land, that is to say: Four hoes for every family actually cultivating; also, two spades per family as aforesaid: one plough for every three families, as aforesaid; one harrow for every three families, as aforesaid; two scythes and one whetstone, and two hay forks and two reaping hooks, for every family as aforesaid, and also two axes; and also one cross-cut saw, one hand-saw, one pit-saw, the necessary files, one grindstone and one auger for each Band; and also for each Chief for the use of his Band, one chest of ordinary carpenter's tools; also, for each Band, enough of wheat, barley, potatoes and oats to plant the land actually broken up for cultivation by such Band; also for each Band four oxen, one bull and six cows; also, one boar and two sows, and one hand-mill when any Band shall raise sufficient grain therefor. All the aforesaid articles to be given once and for all for the encouragement of the practice of agriculture among the Indians.
It is further agreed between Her Majesty and the said Indians, that each Chief, duly recognized as such, shall receive an annual salary of twenty-five dollars per annum; and each subordinate officer, not exceeding four for each Band, shall receive fifteen dollars per annum; and each such Chief and subordinate officer, as aforesaid, shall also receive once every year, a suitable suit of clothing, and each Chief shall receive, in recognition of the closing of the treaty, a suitable flag and medal, and also as soon as convenient, one horse, harness and waggon.
That in the event hereafter of the Indians comprised within this treaty being overtaken by any pestilence, or by a general famine, the Queen, on being satisfied and certified thereof by Her Indian Agent or Agents, will grant to the Indians assistance of such character and to such extent as Her Chief Superintendent of Indian Affairs shall deem necessary and sufficient to relieve the Indians from the calamity that shall have befallen them.
That during the next three years, after two or more of the reserves hereby agreed to be set apart to the Indians shall have been agreed upon and surveyed, there shall be granted to the Indians included under the Chiefs adhering to the treaty at Carlton, each spring, the sum of one thousand [page 355] dollars, to be expended for them by Her Majesty's Indian Agents, in the purchase of provisions for the use of such of the Band as are actually settled on the reserves and are engaged in cultivating the soil, to assist them in such cultivation.
That a medicine chest shall be kept at the house of each Indian Agent for the use and benefit of the Indians at the direction of such agent.
That with regard to the Indians included under the Chiefs adhering to the treaty at Fort Pitt, and to those under Chiefs within the treaty limits who may hereafter give their adhesion thereto (exclusively, however, of the Indians of the Carlton region), there shall, during three years, after two or more reserves shall have been agreed upon and surveyed be distributed each spring among the Bands cultivating the soil on such reserves, by Her Majesty's Chief Indian Agent for this treaty, in his discretion, a sum not exceeding one thousand dollars, in the purchase of provisions for the use of such members of the Band as are actually settled on the reserves and engaged in the cultivation of the soil, to assist and encourage them in such cultivation.
That in lieu of waggons, if they desire it and declare their option to that effect, there shall be given to each of the Chiefs adhering hereto at Fort Pitt or elsewhere hereafter (exclusively of those in the Carlton district), in recognition of this treaty, as soon as the same can be conveniently transported, two carts with iron bushings and tires.
And the undersigned Chiefs on their own behalf and on behalf of all other Indians inhabiting the tract within ceded, do hereby solemnly promise and engage to strictly observe this treaty, and also to conduct and behave themselves as good and loyal subjects of Her Majesty the Queen.
They promise and engage that they will in all respects obey and abide by the law, and they will maintain peace and good order between each other, and also between themselves and other tribes of Indians, and between themselves and others of Her Majesty's subjects, whether Indians or whites, now inhabiting or hereafter to inhabit any part of the said ceded tracts, and that they will not molest the person or property of any inhabitant of such ceded tracts, or the property of Her Majesty the Queen, or interfere with or trouble any person passing or travelling through the said tracts, or any part thereof, and that they will aid and assist the officers of Her Majesty in bringing to justice and punishment any Indian offending against the stipulations of this treaty, or infringing the laws in force in the country so ceded.
IN WITNESS WHEREOF, Her Majesty's said Commissioners and the said Indian Chiefs have hereunto subscribed and set their hands at or near Fort Carlton, on the days and year aforesaid, and near Fort Pitt on the day above aforesaid.
[page 356] JAMES MCKAY
W.J. CHRISTIE
Indian Commissioner
MIST-OW-AS-IS His x mark
AH-TUK-UK-KOOP "x"
Head Chiefs of the Carlton Indians
PEE-YAHN-KAH-NIHK-OO-SIT "x"
AH-YAH-TUS-KUM-IK-IM-UM, "x"
KEE-TOO-WA-HAN, "x"
CHA-KAS-TA-HAN, "x"
JOHN SMITH, "x"
JAMES SMITH, "x"
CHIP-EE-WAY-AN, "x"
&nsbp;Chiefs
MASSIN, "x"
PIERRE CADIEN, "x"
OO-YAH-TIK-WAH-PAHN, "x"
MAHS-KEE-TE-TIM-UN, "x"
Councillors of Mist-ow-as-is
SAH-SAH-KOO-MOOS, "x"
BENJAMIN, "x"
MEE-NOW-AH-CHANK-WAY, "x"
KEE-SIK-OW-ASIS, "x"
Councillors of Ah-tuk-uk-koop
PEE-TOOK-AH-HAN-UP-EE-GIN-EW, "x"
PEE-AY-CHEW, "x"
TAH-WAH-PISK-EE-KAHP-POW, "x"
AHS-KOOS, "x"
Councillors of Pee-yahn-kah-nihk-oo-sit
PET-E-QUA-CAY, "x"
JEAN BAPTISTE, "x"
ISIDORE WOLFE, "x"
KEE-KOO-HOOS, "x"
Counsillors of Kee-too-wa-han
OO-SAHN-ASKU-NUKIP, "x"
YAH-YAW-LOO-WAY, "x"
SOO-SOU-AIM-EE-LUAHN, "x"
NUS-YOH-YAK-EE-NAH-KOOS, "x"
Councillors of Ah-yah-tus-kum-ik-im-um
WILLIAM BADGER,
BENJAMIN JOYFUL, "x" JOHN BADGER,
JAMES BEAR,
Councillors of John Smith
[page 357] KAH-TIP-IS-KOOR-AHT, His x mark.
KAH-KEW-EE-KWAHW-AHS-UM,
NAH-PACH,
MUS-IN-AH-NE-HIM-AHN, "x"
Councillors of Cha-kas-ta-pay-sin
BERNARD CONSTANT,
HENRY SMITH, "x"
MAH-TUA-AHS-TIM-OO-WE-GIN, "x"
JACOB McLEAN, "x"
Councillors of Chip-ee-way-an
NAH-WEE-KAH-NICK-KAH-OO-TAH-MAH-HOTE
(or Neeh-cha-aw-asis), Chief "x"
Signed by the Chiefs within named in the presence of the following witnesses, the same having been first read and explained by Peter Erasmus, Peter Ballendine and the Rev. John McKay:
(signed) A.G. JACKES, M.D.
JAMES WALKER,
J.H. McILREE,
N.-W.M.P.
PIERRE LEVAILLER His x mark.
ISIDORE DUMOND. "x"
JEAN DUMOND "x"
PETER HOURIE.
FRANCOIS GINGRAS.
J.B. MITCHELL,
Staff Constable, N.-W.M.P.
J.H. PRICE,
Hospital Steward, N.-W.M.P.
XAVIER LETANGER. His x mark.
WILLIAM SINCLAIR.
A.R. KENNEDY.
R.J. PRITCHARD.
L. CLARK.
W. McKAY.
W.D. JARVIS,
Inspector, N.-W.M.P.
[page 358] Signed by the Chiefs and head men of the Willow Indians near Fort Carlton this 28th day of August, A.D. 1876, the same having been first read and explained by the Honourable James McKay, and Peter Erasmas, in the presence of the undersigned witnesses:
SEE-SEE-QUAM-ISH, His x mark,
NEE-TOO-KEE-WEE-KAH-MAN, " x "
Councillors
KAH-MEE-YIS-TOO-WAY-SIT, " x "
SEE-SEE-KWAHN-IS, " x "
Joint Chiefs of Willow Indians
KAH-NAH-KAH-SHOW-WAHT, " x "
KAH-AH-TEE-KOO-NEW, " x "
KAH-NAH-MAH-CHEW, " x "
MOON-OO-YAHS, " x "
PO-MIN-AH-KOW, " x "
OO-TUK-KOO-PAH-KAH-MAY-TOU-MAY-YET. " x "
(signed) A. G. JACKES, M.D.
JOSEPH GENTON.
JOHN A. KERR.
PIERE
LEVAILLER. His x mark.
W.D. JARVIS,
N.-W.M.P.
Signed by Her Majesty's Commissioners, and by the Chiefs and head men hereafter subscribing hereto, the same having been first read and explained to the Indians by the Honorable James McKay and Peter Erasmus, near Fort Pitt, this 9th day of September, A.D. 1876, in the presence of the undersigned witnesses:
(signed) ALEXANDER MORRIS,[page 359]
Lieut.-Governor, N.-W.T.
JAMES McKAY,
W.J. CHRISTIE,
Indian Commissioners.
WEE-KAS-KOO-KHE-PAY-YIN, His x mark.
PEE-YAS-EE-WAH-KAH-WE-CHAH-KOOT, " x "
JAMES SEENUM," x "
OO-NAH-LAT-MEE-NAH-HOOS," x "
SEE-KAHS-KOOTCH, " x "
TUS-TUSK-EE-SKWAIS, " x "
PEE-WAY-SIS, " x "
KEE-YE-WIN, " x "
Cree Chiefs
KIN-OO-SAY-OO, His x mark.Witness: (singed)
Chipewayan Chief.
SEE-WAS-KWAN, " x "
WAH-WAY-SEE-HOO-WE-YIN " x "
Councillor to Wee-kas-koo-pay-yin
TIP-EE-SKOW-AH-CHAK, " x "
PAY-PAY-SEE-SEE-MOO, " x "
Councillor to Pee-yas-ee-wah-kah-we-chah-koot.
OO-NOW-UK-EE-PAH-CHAS, " x "
MY-NOW-WAY-SEES, " x "
Councillors to See-kahs-kootch
OOS-PWAH-KHUN-IS, " x "
NEE-YE-PEE-TAY-AS-EE-KAY-SE, " x "
Councillors to Tus-tusk-ee-skwais.
MAH-CHAH-MEE-NIS, " x "
ISAAC CARDINAL, " x "
Councillor to Pee-way-oo
ANTOINE XAVIER, " x "
Councillor to Kin-oo-say-oo.
WILLIAM BULL, " x "
Councillor to James Seenum
WAH-KEY-SEE-KOOT, " x "
Councillor to See-kahs-kootch.
CHARLES CARDINAL, " x "
PIERRE WAHBISKAW, " x "
Councillors to Kee-ye-win KI-YAS-EE-KUN, " x "
Councillors to Wee-kas-koo-kee-pay-yin.
CAKE-CAKE, " x "
Councillors to Oo-nah-lat-mee-nah-hoos.
KAM-OO-NIN, " x "
Councillors to James Seenum.
AH-SIS, " x "
Councillor to See-kahs-kootch.
A.G. JACKES, M.D.
JAMES MCLEOD,
Com., N.-W.M.P.
JAMES WALKER,
Inspector., N.-W.M.P.
E. DALRYMPLE CLARKE,
Adjutant., N.-W.M.P.
[page 360] VITAL J. BISH,
Of St. Albert, O.M.J.
CONSTANTINE SCOLLEN
Priest, O.M.J.
JOHN MCDOUGALL,
Methodist Missionary
JOHN MCKAY.
W.E. JONES.
PETER C. PAMBRUN.
A.K. KENNEDY.
PETER ERASMUS.
THOMAS MCKAY.
JAMES SIMPSON.
ELIZA HARDISTY.
MARY MCKAY
In the year 2000, Prospero Books* republished Alexander Morris's1 The Treaties of Canada with the Indians of Manitoba and the North-West Territories, Including the Negotiations on which They were Based, and Other Information Related Thereto. Prospero Books, 90 Ronson Drive, Toronto ON M9W 1C1 Canada. This book was first published in 1880 by Belfords & Co. The modern edition ISBN is 1552671410. Treaty No. 6 is included in this book, in the appendix.
1Alexander Morris, (1826 - 1889) Late Lieut.-Gov. of Manitoba, the
North-West Territories, and Kee-wa-tin.
"The entitlement of the Treaty No. 6 Indians under the medicine chest clause should not be considered as resolved until the Supreme Court of Canada has ruled on a case which presents all the available historical evidence and legal arguments. Until that time, the matter remains in abeyance."And the clause has still not gone before the Supreme Court of Canada
"The suppliant Dreaver was present when the treaty was signed in 1876; he was then approximately twenty years old. He remembers the conversation between the Commissioners representing Her Majesty the Queen and the Chiefs and Headmen acting for the Indians about medicines and says that it was understood that all medicines were to be supplied free to the Indians (dept. Dreaver, pp. 13, 14, 25 and 26). The witness declares that in fact medicines were supplied gratuitously to the Indians from the date of the treaty until the band surrendered land to the Crown (dept. George Dreaver, p. 14). The date of the surrender is not mentioned, but the first charge for medicines is in 1918-1919; this seems to indicate that the witness was referring to the surrenders made in 1919, to wit exhibits 3 and 4."
my emphasis.
Also see: Regina vs. Johnson below.
"CULLITON,C.J.S.:- This is an appeal by the Attorney-General for Saskatchewan by way of stated case.
The respondent was charged on an information dated March 22, 1965, that he, being a resident of Saskatchewan, did unlawfully fail to pay 1963 tax on or before August 31,1963, as required by the Saskatchewan Hospitalization Act, R.S.S. 1953, c. 232 [now R.S.S. 1965, c. 253], and amendments andRegulations thereto. On being arraigned before Judge Policha of North Battleford, a plea of not guilty was entered.
Pursuant to s. 708(5) of the Criminal Code, certain facts were admitted by the respondent, namely: that he, Walter Johnston, was a resident of Saskatchewan and that he had not paid the tax as alleged in the information. It was agreed by counsel for the Crown that the respondent was an Indian within the meaning of the Indian Act, R.S.C. 1952, c. 149. There was filed by the prosecution a copy of the Regulations issued under the Saskatchewan Hospitalization Act. The two pertinent sections of these Regulations are as follows:
21. Where the tax is to be paid by the Government of Canada in accordance with an arrangement to that effect between that Government and the Government of Saskatchewan on behalf of a resident who is an Indian within the meaning of The Indian Act (Canada) and is residing on an Indian reserve or has been residing outside an Indian reserve for less than twelve months, the other provisions of these regulations shall apply to such resident and to the tax payments made on his behalf.
23(1) Subject to the provisions of section 24 the following classes of persons shall be exempt from taxation:
(iv) every other person who is entitled to receive general hospital services from the Government of Canada at the beginning of the tax year, to the extent that he continues to be entitled to such general hospital services during the tax year.
Counsel for the prosecution stated that while there was no written agreement, there was an undertaking between the Government of Canada and the Government of Saskatchewan that the Government of Canada would pay the hospitalization tax for Indians residing on a reserve or who had been residing outside a reserve for less than 12 months. The evidence established that Johnston had permanent employment in the City of North Battleford and had been residing outside an Indian reserve for more than 12 months.
No evidence was called in defence. There was filed by counsel for the respondent a certified copy of Treaty Number 6 ... [Here the medicine chest clause as bolded above is quoted]
In disposition of the charge, the learned Judge of the Magistrate's Court, in a written judgment, said in part:
Referring to the "medicine chest" clause of Treaty No. 6, it is common knowledge that the provisions for caring for the sick and injuring in the areas inhabited by the Indians in 1876 were somewhat primitive compared to the present day standards. It can be safely assumed that the Indians had limited knowledge of what provisions were available and it is obvious that they were concerned that their people be adequately cared for. With that in view, and possibly carrying the opinion of Angers, J., a step farther, I can only conclude that the "medicine chest" clause and the "pestilence" clause in Treaty No. 6 should properly be interpreted to mean that the Indians are entitled to receive all medical services, including medicines, drugs, medical supplies and hospital care free of charge. Lacking proper statutory provisions to the contrary, this entitlement would embrace all Indians within the meaning of the Indian Act, without exception. In my opinion, the accused falls within the exemption from taxation set forth in s. 23(1(iv) of the Regulations and is not required to pay the tax.
I find the accused not guilty as charged.
In stating the case for the Court, the learned Judge found the facts as I have outlined them, and submitted the following questions:
(1) Was I right in holding that Treaty No. 6 applied to the defendant, Walter Johnston?
(2) Was I right in holding that the clause which reads as follows:
"That a medicine chest shall be kept at the house of each Indian Agent for the use and benefit of the Indians at the direction of such agent"
in Treaty No. 6, covered premiums payable under the Saskatchewan Hospitalization Act by the said defendant, Walter Johnston?(3) Was I right in holding that the said defendant, Walter Johnston, is exempt from taxes by virtue of Regulation 23(1)(iv) of the Regulations made pursuant to The Saskatchewan Hospitalization Act, O.C. 1400/62, Saskatchewan Gazette, September 14, 1962, Volume 58, No. 37, and thereby not required to pay the said tax?
It was agreed and so found by the trial Judge that the respondent was an Indian as defined in the Indian Act and that he was a descendant of the Indians on behalf of whom Treaty Number 6 was made. Treaty Number 6 is, in my opinion, a treaty of the type referred to in s. 87 of the Indian Act. He is, therefore, in my opinion, entitled to any rights or immunities under the said Treaty that may have been contemplated by Parliament in enacting s. 87 of the Indian Act, unless the claim to such vested rights and immunities is limited to Indians residing on a reserve. Section 87 reads:
87. Subject to the terms of any treaty and any other Act of the Parliament of Canada, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that such laws are inconsistent with this Act or any order, rule, regulation or by-law made thereunder, and except to the extent that such laws make provision for any matter for which provision is made by or under this Act.
I want to make it perfectly clear that the issue before this Court is not one relating to the general responsibility of the Government of Canada to Indians, but simply whether the learned trial Judge was right in his interpretation of the "medicine chest" and "pestilence" clauses of the Treaty. If I conclude that the learned trial Judge was right in his interpretation, only then would it become necessary to determine whether the respondent, as a non-resident of a reserve, is entitled to the benefits of the terms of the Treaty.
In the interpretation of the clauses of a treaty, one must first look to the words used and give to those words the ordinary meaning that would be attributed to them at the time the treaty was made. To do so, too, it is both proper and advisable to have recourse to whatever authoritative record may be available of the discussions surrounding the execution of the treaty. I agree with the opinion expressed by Norris, J.A., in R. v. White and Bob (1964), 50 D.L.R. (2d) 613, 52 W.W.R. 193 affd 52 D.L.R. (2d) 481n, [19'65] S.C.R. vi], when, at p. 629, he said:
The Court is entitled "to take judicial notice of the facts of history whether past or contemporaneous" as Lord du Parcq said in Monarch Steamship Co., Ld. v. Karlshamns Oljefabriker(A/B), [1949] A.C. 196 at p. 234, [1949] 1 All E.R. 1 at p. 20, and it is entitled to rely on its own historical knowledge and researches, Read v. Bishop of Lincoln, [1892] A.C. 644, Lord Halsbury, L.C., at pp. 652-4.
I have perused the treatise entitled Treaties of Canada with the Indians of Manitoba, North-West Territories, and Kee-Wa-Tin, by the Honourable Alexander Morris, P.C. The learned author, in this work, presents an authoritative record of the negotiations which resulted in the conclusion of a number of treaties, including Treaty Number 6. It is apparent that in the negotiation of Treaty Number 6 the Indians greatly feared both pestilence and starvation.... The learned author, at p. 178, says:
They desired to be fed. Small-pox had destroyed them by hundreds a few years before, and they dreaded pestilence and famine,
and then he went on to say:
The food question, was disposed of by a promise, that in the event of a National famine or pestilence such aid as the Crown saw fit would be extended to them, and that for three years after they settled on their reserves, provisions to the extent of $1,000.00 per annum would be granted them during seed-time.
The undertaking so given was incorporated in the "pestilence" clause of the Treaty. Thus both historically, and on the plain language of the clause, it means no more than it plainly states: the obligation of the Crown in the event of pestilence or general famine, to provide such assistance as the Chief Superintendent of Indians should deem necessary and sufficient to meet the calamity. With every deference to the contrary opinion of the learned Judge of the Magistrate's Court, I do not think this clause of the Treaty has any relevancy in the determination of the question with which he was faced.
There is nothing in Morris' treatise to suggest that any meaning should be given to the words "medicine chest" other than that conveyed by the words themselves in the context in which they are used. The only reference I can find in the treatise is at p. 218, where the author states: "'A medicine chest will be kept at the house of each Indian agent, in case of sickness amongst you.'" The "medicine chest" clause in the Treaty incorporates this undertaking.
Again, on the plain reading of the "medicine chest" clause, it means no more than the words clearly convey: an undertaking by the Crown to keep at the house of the Indian agent a medicine chest for the use and benefit of the Indians at the direction of the agent. (The italics are mine.) The clause itself does not give to the Indian an unrestricted right to the use and benefit of the "medicine chest" but such rights as are given are subject to the direction of the Indian agent. Such limitation would indicate that the obligation was to have physically on the reservations, for the use and benefit of the Indians, a supply of medicine under the supervision of the agent. I can find nothing historically, or in any dictionary definition, or in any legal pronouncement, that would justify the conclusion that the Indians, in seeking and accepting the Crown's obligation to provide a "medicine chest" had in contemplation provision of all medical services, including hospital care.
Mr. Justice Angers, of the Exchequer Court of Canada, in an unreported judgment in Dreaver v. The King gave an extended interpretation to the "medicine chest" clause of the Treaty when, at p. 20, he said:
The clause might unquestionably be more explicit but, as I have said, I take it to mean that all medicines, drugs or medical supplies which might be required by the Indians of the Mistawasis Band were to be supplied to them free of charge.
In reaching the foregoing conclusion, the learned Justice appears to have relied on the evidence of the suppliant Dreaver, who testified he was present during the negotiation of the Treaty and that it was understood that all medicines were to be supplied free to the Indian. There appears to be nothing in his evidence to support any wider interpretation of the clause than that given to it by Mr. Justice Angers. While I express no opinion as to the correctness of the interpretation of the clause as made by Mr. Justice Angers, I do not think, with respect, that the interpretation so given justifies the extended meaning attributed thereto by the learned Judge of the Magistrate's Court.
In light of the conclusion which I have already stated, it is not necessary for me to answer Q. 1 of the stated case, but I must answer "No" to Qq. 2 and 3. I direct that the matter be remitted back to the learned Judge of the Magistrate's Court for disposition.
Appeal allowed; case remitted.
"...the terms of Treaty No. 6 do not impose upon the Government of Canada the obligation of providing, without cost, medical and hospital services to all Indians."
page 626 of the CNLR
The Saskatoon Star Phoenix of January 14, 1986 reported the following article, which is more of a general nature about Treaty 6 but does say a little about the medicine chest clause. This was part of a six part series done by Earl Fowler, of the Star Phoenix, outlining the history, aspirations and frustrations of the James Smith Cree Nation.
Medicine chest provision made Treaty 6 a unique agreement
JAMES SMITH RESERVE - When the Dominion of Canada acquired the Hudson's Bay Company territories in 1870, it immediately began to secure land cessions from Indians in the northwest
It signed 11 "numbered" treaties with band groupings - the first in 1871 and the last in 1921. The main treaty covering central Saskatchewan and Alberta was signed in 1876 by Cree band chief James Smith and leaders of many other bands.
Like the other numbered treaties, Treaty 6 included theses provisions: reserve land in proportion to population (128 acres per person), a token annual payment to each person [$5.00 per year]; farming and agricultural assistance; schools and educational assistance; ammunition and fishing twine; uniforms, medals and flags for the principal chiefs; and a promise that hunting and fishing were to continue as before.
Treaty 6 was unique in providing that a medicine chest should be kept at the house of the Indian agent. This has been interpreted by treaty Indians as a promise of free medical care, although the courts have ruled that it represents a promise of free medicine only...
...Federal promises of peace and support must have seemed more and more attractive to hungry tribal people during the 1870s. The prairie bison on which they had relied on for centuries had been decimated by disease and wholesale slaughter. Prairie Indian tribes were also plagued by epidemics of smallpox, measles, and tuberculosis during the treaty signing years...
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