Province concedes Dakota here before Confederation

The provincial government is ready to admit that the Dakota First Nations people existed in what is now Manitoba before Canada became a country, according to an email written by a provincial Crown attorney.

"For the purpose of the pre-trial motion challenging the court’s jurisdiction, the Crown is willing to concede that the Dakota people used or occupied southern Manitoba prior to Confederation and before the assertion of Crown sovereignty," reads the email, written by Crown counsel Michael Conner on behalf of Manitoba Justice.

"The Crown is also willing to concede that the Dakota First Nations of Manitoba have not signed treaty with Canada ceding any rights or title to land in southern Manitoba."

The email was sent to Bartley Harris, who is acting on behalf of the owners of the Dakota Chundee Smoke Shop near Pipestone, last Thursday. The Sun obtained a copy of the email on Monday.

This seeming admission undermines the federal government’s long-held position that the Dakota and Lakota peoples are refugees in Canada who were given federal reserve land after entering Manitoba and Saskatchewan in the late 1800s.

Canada’s official position on the matter is that the Dakota/Lakota First Nations do not have aboriginal rights in Canada.

Currently, the Dakota people and their non-treaty status are the subject of a federal court case between Canada and the Canupawakpa and Dakota Plains First Nations.

"To me (the province is) admitting that we are sovereign," Canupawakpa Chief Frank Brown told the Sun on Monday.

"In the defence from Canada, their whole legal argument is that we were refugees," Dakota spokesperson Craig Blacksmith added.

"The province has basically blown that out of the water."

The email between the provincial Crown and the Dakota is part of the ongoing correspondence between the two parties after the province won a temporary court injunction in May to shut down the Dakota smoke shop, which sells cigarettes in defiance of provincial tobacco tax laws.

Members of the Dakota First Nations involved in the smoke shop, including Chief Brown and Dakota Plains Chief Orville Smoke, have boycotted the provincial court proceedings, saying they do not recognize the province’s jurisdiction over the Dakota.

However, while the Crown is ready to concede the existence of the Dakota in Manitoba prior to Confederation, Conner’s letter maintains that "sovereignty is still vested in the Crown" and federal and provincial laws apply to the Dakota people, including the Tobacco Tax Act and the Retail Sales Tax Act.

It also states that any concessions the province makes are "for the purpose of the pre-trial jurisdiction motion only," and can’t be relied upon "for any other purpose," meaning that it would not be admissable as evidence in federal court to prove the Dakota are not refugees.

"It’s Canada that’s playing dumb, and the province that’s playing dumb," Brown said.

"They’re just trying to force us into their jurisdictions by saying Canada’s law is Canada’s law ...

"The question is, how come they have jurisdictions over our territory?"

In an email to the Sun, provincial spokesperson Jodee Mason said Conner’s email appears to be "an accurate reflection of the pre-trial teleconference that took place last week."

The pre-trial teleconference, she said, was meant to help set timelines regarding the accused persons’ preliminary challenge to the court’s jurisdiction, which will be dealt with by way of a preliminary motion.

"The Crown’s position on the preliminary motion will be that all persons, including members of First Nations, are bound by the law," Mason wrote.

"To this end, for the purposes of this particular motion, the Crown has chosen to concede this point in question, in light of the larger circumstances."

Since it opened last November, enforcement officers with Manitoba Finance and members of the RCMP have conducted five raids at the Chundee shop and confiscated thousands of Mohawk cigarettes. Each time the business has restocked its shelves and reopened.

According to Brown, the court’s injunction has yet to be enforced, though in a meeting between Brown, Smoke, and the RCMP last Thursday, Brown says officers told him they were coming under increasing pressure from the province to act against the Dakota.

"They said they’re going to have to come and arrest us and throw us in jail," Brown said. "So I said, well, do it then. Let’s do it and get it over with."

When contacted by the Sun to confirm the meeting, RCMP spokesperson Sgt. Line Karpish said they had no new information to share.

"Our position hasn’t changed from your last request," Karpish wrote in an email.

The next pre-trial teleconference between the Crown and the Dakota is scheduled for Sept. 10.

» mgoerzen@brandonsun.com

Republished from the Brandon Sun print edition August 15, 2012