Red Pheasant Cree Nation leadership considering appeal after federal judge annuls 2020 band election

Red Pheasant Cree Nation’s chief and council say they’re considering an appeal after band members took the nation’s 2020 election results to federal court and won.

The case in question named almost all of Red Pheasant’s chief and council, the band’s administration, and members of the chief and council’s family.

Mary Linda Whitford and Alicia Moosomin alleged those involved bought votes, forged mail-in ballot requests and voter declaration forms, forged mail-in ballots and deceived the community’s electoral officer by using the forged documents.

They also alleged community members were able to vote both in-person and by mail-in ballot, despite being limited to one vote in the election.

Judge Henry S. Brown determined the elections of Chief Clinton Wuttunee and Coun. Gary Nicotine were to be annulled due to vote buying and related activities, which Brown said corrupted Red Pheasant’s elections in 2020.

Based on the balance of probabilities, the judge found Couns. Lux Benson, Jason Chakita, Mandy Cuthand, Henry Gardipy, Samuel Wuttunee and Shawn Wuttunee engaged in “serious electoral fraud, though on a lesser scale.”

Their elections “might be” annulled, but Brown did not do so — and dismissed Whitford’s and Moosomin’s case against them.

The decision said that, based on the balance of probabilities, supporters of Couns. Leroy Nicotine Jr. and Shelley Wuttunee engaged in “multiple instances of serious electoral fraud,” though the First Nations Election Act gave no legal remedy.

The First Nations Elections Act outlines a process that First Nations and Indigenous communities can opt into to elect Band Council members. Red Pheasant Cree Nation’s council voted to opt in on Nov. 5, 2015, and were formally recognized by the federal government on Jan. 4, 2016.

A spokesperson for the Cree Nation said no further comment would be provided about the decision unless an update about an appeal was provided from the community.

The scheme

According to court documents, votes were purchased from a variety of Red Pheasant people on and off-reserve.

In some instances people were paid to apply for a mail-in ballot, and then again when their blank ballots arrived. The ballot would be fraudulently filled in and signed before being submitted to the electoral officer.

In some cases, the court found, payments were made under the guise of “Band Member Assistance,” money supposed to be reserved to help band members in various financial situations.

Though the band has a formal process to record payments made to band members in need of financial assistance, Brown found the supporting documentation was often missing in the alleged cases of vote buying he reviewed.

In some instances, Brown found those who participated in purchasing votes filled in mail-in ballots of incarcerated people themselves.

In one case, Chief Clinton Wuttunee was alleged to have paid a family $700 for one man’s ballot, under the guise of helping the family bring the man whose vote was faked back from the United States to Red Pheasant.

Wuttunee testified he did not know the man whose family was allegedly paid, or anything about his ballot. But when looking through messages from Clinton Wuttunee to the community’s electoral officer, the courts found the chief himself had submitted the man’s application for a mail-in ballot.

In total, the courts ruled that Clinton Wuttunee participated in five instances of electoral fraud.

“A First Nation chief should be expected to be one of the bulwarks of First Nation democracy,” the decision said.

“Here Chief Wuttunee was not.”

Clinton Wuttunee’s use of band funds to purchase votes of band members was a grave electoral fraud, Brown’s decision said.

Coun. Gary Nicotine was found to have committed seven instances of electoral fraud via vote buying, Brown’s decision said.

Like chiefs, Brown’s decision said councillors are expected to be bulwarks of First Nations democracy, a role he said Gary Nicotine failed in.

“In my view Councillor Gary Nicotine’s conduct was on a par and only slightly less egregious than that of Chief Wuttunee,” the judge wrote.

“In my respectful view, Councillor Gary Nicotine’s conduct seriously corroded the integrity of the election. Such conduct must not be met with impunity.”

Like the chief, the councillor’s election was annulled by the federal judge.

Leadership considering appeal

Red Pheasant’s chief and council have not relinquished their positions, despite the ruling.

The leadership sent a news release sent to CBC News on Monday morning saying there was a “strong likelihood” they would challenge the March 30 decision, though no final decision had been made.

The release said factual errors in the court decision are being carefully considered.

Chief Wuttunee said in the prepared statement that misinformation surrounding the appeal was shared in the community, but that he was only able to make limited comments on Monday due to the possibility of more legal proceedings.

“This court proceeding has unfortunately taken far more time than the leadership believed was necessary,” Wuttunee’s statement said.

“Although this decision is a temporary setback, your leadership still in office will continue to work diligently on important [Red Pheasant Cree Nation] business matters.”

Red Pheasant is about 100 kilometres northwest of Saskatoon.