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Gilbert Malcolm Sproat, British Columbia Indian reserve commissioner (1876-1880), and the "humanitarian… Pike, Sarah P. 2018

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 GILBERT MALCOLM SPROAT, BRITISH COLUMBIA INDIAN RESERVE COMMISSIONER (1876-1880), AND THE “HUMANITARIAN CIVILIZING” OF INDIGENOUS PEOPLES  by Sarah P. Pike  LL.B., University of Toronto, 1994 A.B., Stanford University (Honors), 1990  A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF  MASTER OF LAWS in THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES  THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver)  March 2018  © Sarah P. Pike, 2018   ii  Abstract  Gilbert Malcolm Sproat (1834-1913) was one of British Columbia’s first post-confederation Indian reserve commissioners.  He served two years as the joint commissioner to the Joint Indian Reserve Commission (1876-1878) and then two more years as the sole commissioner of a reconstituted commission (1878-1880).  In these capacities, Sproat left thousands of handwritten pages analyzing his decisions allotting Indian reserves and providing his thoughts more generally about Indigenous peoples and their relationship to the new settler society.  His legacy remains today most obviously in surveyed Indian reserve boundaries that represent more than just lines on maps:  they also represent the ideas, beliefs, and reasoning that generated them.  Through a comprehensive review of Sproat’s writing and an attention to his “intellectual history,” I analyze Sproat’s own explanations to elucidate what he believed about Indigenous peoples and why, and how those beliefs affected his reserve-allotment decisions.   I conclude that two fields of 19th-century thought influenced Sproat most strongly:  the push for Indigenous “civilization” and humanitarianism.  Further, the idea at the core of Sproat’s beliefs is that the only way Canada’s Indigenous “civilization” program would succeed is if Indigenous people were the primary actors in their own “civilization.”  By reviewing Sproat’s adult life prior to becoming reserve commissioner and his four-year tenure as reserve commissioner with these new insights, one can see his drive for the “humanitarian civilizing” of Indigenous peoples running throughout his decisions.  This broader knowledge about Sproat’s influences, in turn, provide additional perspectives on the Indian reserve-creation process in British Columbia.  Whereas previous scholars have addressed Sproat as an adjunct to other primary investigations, I begin with Sproat.  I approach him from the perspective of a legal historian interested in the intersection of land; Indigenous occupation, rights, and ownership of land; and settler law about land and Indigenous people.  I conclude that he was very much a man of his time, not of ours, and he can be best understood in light of his intellectual, legal, social, and cultural context, including as part of the liberal order framework, an emerging paradigm through which to analyze and understand Canadian history.       iii  Lay Summary  This thesis is a study of Gilbert Malcolm Sproat (1834-1913), a British Columbian Indian reserve commissioner, 1876-1880, and his beliefs about Indigenous people, land, and law.  It focuses on what Sproat believed and why, and how his beliefs influenced his Indian reserve-allotment decisions as part of the first post-confederation, bi-governmental effort to establish Indian reserves in the province.  Contrary to past scholarship that has posited Sproat as embodying ideas from the twentieth century, this thesis concludes that two 19th-century ideas predominantly influenced him:  a drive to “civilize” Indigenous people but humanitarianism in carrying out this “civilization” project.  In light of this new insight, this thesis re-examines Sproat’s Indian reserve-allotment decisions, the role Indian title played in his decisions, and his support for an 1879 Indigenous self-government initiative, to bring a deeper understanding of how and why some of British Columbia’s Indian reserve boundaries came to be established.      iv  Preface  This thesis is original, unpublished, independent work by the author, Sarah Pike.       v  Table of Contents  Abstract ..................................................................................................................................... ii Lay Summary ........................................................................................................................... iii Preface ...................................................................................................................................... iv Table of Contents ...................................................................................................................... v Acknowledgements ................................................................................................................ viii Chapter 1: The “imaginative presentment” of Gilbert Malcolm Sproat ................................ 1 1.1 The Joint Indian Reserve Commission ......................................................................... 2 1.2 Sproat as an historical subject .................................................................................... 13 1.3 Methodology and structure of this thesis .................................................................... 29 Chapter 2: Sproat and the settler experience, 1860-1876 ...................................................... 35 2.1 Sproat as a businessman ............................................................................................ 35 2.2 Sproat as an ethnographer .......................................................................................... 43 2.3 Sproat as a government official .................................................................................. 55 2.4 Sproat, the man who would be reserve commissioner ................................................ 71 Chapter 3: The Joint Indian Reserve Commission’s creation and first circuit, 1876-77 ..... 74 3.1 Dominion and provincial instructions to the reserve commissioners........................... 76 3.2 The JIRC and Indian title ........................................................................................... 79 3.3 The JIRC’s first circuit around the south coast ........................................................... 84 3.4 Sproat and the “humanitarian civilizing” of Indigenous peoples................................. 88      vi  Chapter 4: The Joint Indian Reserve Commission’s second circuit, 1877............................ 96 4.1 The JIRC in Secwépemc territory .............................................................................. 96 4.2 The JIRC in Syilx territory ...................................................................................... 112 4.3 The JIRC’s approach to reserve-allotment in its second circuit ................................ 131 4.4 Sproat and the “humanitarian civilizing” of Indigenous people ................................ 134 Chapter 5: Sproat and Indian title ....................................................................................... 137 5.1 The JIRC’s second circuit, 1877 .............................................................................. 137 5.2 A legal opinion on Indian title, January 1878 ........................................................... 148 5.3 Sproat’s first solo circuit, 1878 ................................................................................ 152 5.4 Sproat’s remaining circuits, 1878-1880 .................................................................... 158 Chapter 6: Sproat and reserve-allotments ........................................................................... 163 6.1 Sproat in Nlha7kápmx territory ............................................................................... 163 6.2 Chief Chilliheetsa .................................................................................................... 173 6.3 Sproat’s reserve allotments for Chilliheetsa’s people ............................................... 185 6.4 Sproat’s approach to reserve-allotment in his first solo circuit, 1878 ........................ 203 Chapter 7: Sproat and Indigenous self-government............................................................ 208 7.1 Nlha7kápmx planning.............................................................................................. 208 7.2 The Nlha7kápmx meeting ........................................................................................ 221 7.3 The end of Sproat’s tenure as reserve commissioner ................................................ 245 Chapter 8: A “notable man” ................................................................................................ 257 8.1 Sproat and the “humanitarian civilizing” of Indigenous peoples after 1877 .............. 258 8.2 The Indian Advancement Act, 1884 .......................................................................... 266 8.3 Sproat, the law, and the liberal order framework ...................................................... 275 8.4 Describing a notable man ........................................................................................ 293    vii  Bibliography .......................................................................................................................... 295 Appendices ............................................................................................................................ 311 Appendix A -- Nlha7kápmx Rules and Regulations .......................................................... 311 Appendix B -- Nlha7kápmx Resolutions .......................................................................... 314 Appendix C -- Dominion instructions to Anderson (and Sproat) ....................................... 316 Appendix D -- Provincial instructions to Sproat ............................................................... 318      viii  Acknowledgements  In this thesis, I re-assess an aspect of British Columbia history.  To the extent I have been successful in doing this, it is due in large part to learning how from professors with whom I had the pleasure of speaking while completing this project.  This thesis had three turning points, all arising from such conversations.  In the first, University of Manitoba History Professor Dr. Adele Perry used a term I didn’t recognize to describe the perspective of another “Sproat scholar.”  I asked, “what’s that?,” and, as a result of the ensuing conversation, I gained a new perspective on writing about history and, in particular, this history.  In the second, Dr. Douglas Harris, my University of British Columbia thesis supervisor, suggested that Victorians believed themselves to be at the pinnacle of civilization; I responded, “did they?”  In the third, Dr. Harris referred to liberalism; I again responded, “what’s that?”  These snippets of these conversations give some idea of the extent to which I have benefitted from discussing the history and ideas I canvas in this thesis with those vastly more knowledgeable and experienced than I.  I am indebted to everyone who contributed in this way to this thesis. One of the greatest experiences of “going back to university” was the privilege of learning from UBC History Professor Dr. Tim Brook.  Though our substantive areas of historical interest do not overlap in the slightest, I was lucky enough to get Tim’s agreement to sponsor my Directed Research into historiography, and I could not have asked for a better guide.  I also benefitted from the discussions I had with and the encouragement I received from Dr. Ronald Stevenson of the federal Department of Justice:  he helped me to stay afloat amidst the tsunami of ideas that came at me as I researched and wrote this thesis.  But among my most important academic discussions were with University of Victoria Law Professor Emeritus Hamar Foster, Q.C., the author of Gilbert Sproat’s entry in the Dictionary of Canadian Biography and the second reader of this thesis.  I am indebted to Hamar for the time he gave, the thoughts he shared, and the generosity he showed in considering and responding to my many questions. Others helped me with research and editing:  thank you Christina Clemente for the former and Hanako Masutani for the latter.  Anne Seymour, another “Sproat scholar,” also supported me by, among other things, providing me with transcriptions of some key historical documents that Robin Fisher prepared in the 1970s.  I am grateful to both Anne and Robin for their shoulders to stand on.  Others propped me up during the past eighteen months.  Most notable among these    ix  women of my “village,” without whom I could not have completed this thesis, was Stephanie McHugh, the best unwavering supporter and friend I could ask for.   I was fortunate enough to receive scholarship support from both the Law Society of British Columbia through the Law Society of British Columbia Scholarship for Graduate Legal Studies (2016) and from the UBC Allard School of Law through the UBC Allard School of Law History Project LL.M. Scholarship (2016).  I appreciate the support of both entities immensely. Finally, of course, there are two people without whom this thesis would not have been possible.  The first is my thesis supervisor, UBC Law Professor and Nathan T. Nemetz Chair in Legal History, Dr. Douglas Harris.  Having another “Sproat scholar” as my mentor on this project was such a privilege.  When I moaned to Doug that I no longer knew what my thesis was about, he reassured me that he did and then led me back to the path.  I also appreciate Doug schooling me in what good writing really is.  Doug:  thank you so very much.  Your breadth and depth of knowledge have been invaluable. My final thanks go to my husband and my children.  They have cheerfully tolerated my annexation of first the dining room and then the living room tables, my inability to do my fair share, and my grumpiness about having to read a book a week in that darn History course!  My husband, Will, has been infinitely supportive in hundreds of ways I noticed and in countless ways I know I didn’t.  Will:  I dedicate this thesis to you.    1  Chapter 1: The “imaginative presentment” of Gilbert Malcolm Sproat  I have less faith than many seem to have in the educational value of “history”, there is so much … outside the records, and it is so difficult even to get men to think of the past at all.  A writer, to overcome this indifference, is tempted to give a certain heroic, or at any rate interesting, cast to his presentations.  At the same time, as a supposed expositor of the veritable, he is under responsibilities from which the novelists and dramatists, who deal with historic subjects, largely are free.  He, more than they, has to realise, actuatingly, the ideals of the old time in relation to his characters and their surroundings, putting himself, as far as may be, by an imaginative effort, in the midst of those things, and in the place of those men that are to be described.  This is a rare faculty, which, in the degree of its possession, implies sympathy according to the writer’s own bent, but, then, sympathy means an unconscious bias.  So, you never can have real history, but only a series of more or less imaginative presentments.1   Gilbert Malcolm Sproat wrote this passage, around 1900, in a draft “History of British Columbia.” More than one hundred years later, Sproat’s words capture the problem that Sproat, as a subject, poses.  Sproat was many things throughout his lifetime, including a British settler and businessman on Vancouver Island, a British Columbian official in London, and a prolific, versatile author.  However, this thesis concerns Sproat’s most important role as far as British Columbia is concerned:  his four-year tenure, 1876-1880, as an Indian reserve commissioner jointly-appointed by the British Columbia and Dominion governments.  In this thesis, I analyze Sproat’s motivations for his reserve-allotment decisions and his beliefs about Indigenous people, trying to refrain from giving Sproat a “heroic cast” and to “realise … the ideals of the old time in relation to [Sproat] and [his] surroundings.”2  Yet, as Sproat himself pointed out, my efforts are inevitably tainted, by the general biases of my time and place, as well as by my own personal biases.  I strive, therefore, for the best “imaginative presentment” of Sproat I can give, acknowledging these biases.                                                 1 Sproat, draft “History of British Columbia” (c. 1900), Victoria, B.C. Archives (Add. MSS 257, file 7 at 35).  2 In a not dissimilar way, historian DJ Hall has recently reviewed Canadian “Indian policy,” particularly surrounding the signing of Treaties 6 and 7 in Alberta in the 1870s.  He urged the importance of incorporating both Indigenous and settler experiences, cultures, values, beliefs, and worldviews when analyzing past relationships and interactions:   D.J. Hall, From Treaties to Reserves:  The Federal Government and Native Peoples in Territorial Alberta, 1870-1905 (Montreal & Kingston: McGill-Queen’s University Press, 2015) at 5-9, 323-326.    2  1.1 THE JOINT INDIAN RESERVE COMMISSION British Columbia joined the Canadian confederation in 1871 pursuant to the British Columbia Terms of Union in which the Dominion and the province agreed, in Article 13, that, “tracts of land … shall from time to time be conveyed by the Local Government to the Dominion Government in trust for the use and benefit of the Indians on application of the Dominion Government.”3  After 1871, as governmental negotiations over the implementation of Article 13 began, then faltered, the Dominion came to understand that the province had a radically different notion of its obligations, particularly with respect to the size of Indian reserves and the need to extinguish Indian title through treaties.4                                                3 British Columbia Terms of Union, RSC 1985, App II, No 10, Art 13. 4 For a discussion of the governmental negotiations between 1871, when B.C. joined Confederation, and 1876, when the governments established the Joint Indian Reserve Commission, see Robin Fisher, Contact and Conflict: Indian-European Relations in British Columbia, 1774-1890, 2nd ed. (Vancouver: UBC Press, 1992) at 175-188 [Fisher, Contact and Conflict]; Cole Harris, Making Native Space: Colonialism, Resistance, and Reserves in British Columbia (Vancouver: UBC Press, 2002) at 71-103 [C Harris, Making Native Space]; and Robert E. Cail, Land, Man, and The Law: The Disposal of Crown Lands in British Columbia, 1871-1913 (Vancouver: UBC Press, 1974) at 105-208.    “Indian title” was a term used in the 19th and 20th centuries to describe an Indigenous interest in land recognized by British policy.  At the Privy Council in 1888 in the St. Catherine’s Milling case, Lord Watson, for the court, described Indian title in Canada as, “a personal and usufructuary right, dependent upon the good will of the Sovereign,” though, despite the “great deal of learned discussion at the Bar with respect to the precise quality of the Indian right, … their Lordships [did] not consider it necessary to express any opinion upon the point”:  Reference re:  British North America Act, 1867, s.109 (Ont.) (1888), 14 App. Cas. 46 at 54-55 (PC).  When the Supreme Court of Canada rendered its own judgment in St. Catharines Milling and Lumber Co. v. Ontario (Attorney General) (1887), 13 S.C.R. 577 at 607-608 (from which an appeal was taken to the Privy Council), Justice Strong, in dissent but not on this point, described Indian title in this way:  … we must refer to historical accounts of the policy already adverted to as having been always followed by the crown in dealings with the Indians in respect of their lands.  In the Commentaries of Chancellor Kent and in some decisions of the Supreme Court of the United States we have very full and clear accounts of the policy in question.  It may be summarily stated as consisting in the recognition by the crown of a usufructuary title in the Indians to all unsurrendered lands.  This title, though not perhaps susceptible of any accurate legal definition in exact legal terms, was one which nevertheless sufficed to protect the Indians in the absolute use and enjoyment of their lands, whilst at the same time they were incapacitated from making any valid alienation otherwise than to the crown itself, in whom the ultimate title was, in accordance with the English law of real property, considered as vested.    In this thesis, I use the term “Indian title” to reflect the term used and to describe the interest discussed by the historical figures in the time period about which I am writing.  For a discussion of the nature of Indian title in the context of the St. Catherine’s case (and, in particular, the “significant contribution [Minister of the Interior] Mills made to the legal concept of Indian title” (at 250), see S. Barry Cottam, “Indian Title as a ‘Celestial Institution’:  David Mills and the St. Catherine’s Milling Case” in Kerry Abel & Jean Friesen, eds, Aboriginal Resource Use in Canada:  Historical and Legal Aspects, Manitoba Studies in Native History (Winnipeg, Manitoba: University of Manitoba Press, 1991) 247.  Cottam also provides a brief interesting discussion of the    3  After years of sometimes acrimonious discussion about how to implement Article 13 and address the “Indian Land Question” (as it had become known amongst government officials), the two governments agreed to create a commission to determine the lands the province was to convey to the Dominion for Indian reserves.5  The governments established the three-man Joint Indian Reserve Commission (JIRC) in 1876, each appointing one commissioner and jointly-appointing Gilbert Malcolm Sproat.  The Orders-in-Council creating the commission did not mention Indian title, and they did not contemplate treaties for its extinguishment, because the province refused to recognize Indian title, as had the former Colony of British Columbia.  When the Deputy Superintendent General of Indian Affairs (Deputy Superintendent General), the second-most senior Dominion Indian Affairs official, submitted his annual report for the year ending in June 1876, he described the JIRC’s establishment but noted:  “[t]he question of the rights of the Indians in all the lands in British Columbia in which their rights have not been extinguished by treaties between themselves and the Crown is still unsettled.”6 After their appointments in the spring and summer of 1876, Sproat and his two fellow commissioners, Alexander Anderson (the Dominion appointee) and Archibald McKinlay (the provincial appointee), travelled together on two circuits:  one around the south coast of British Columbia between November 1876 and March 1877, and one through the province’s interior, in the Shuswap and Okanagan valleys, between June and December 1877.  They travelled from one Indigenous community to another, meeting with each group, hearing their concerns about settler encroachment in traditional territories and their land claims, meeting separately with “white settlers” and sometimes missionaries, and then making their decisions about which existing Indian reserves to extend and which new ones to allot.  The commissioners did not have authority to take away lands that the province or former colony had already vested in settlers,                                                                                                                                                        spelling of “St. Catherine’s” at footnote 1.  I have adopted Cottam’s approach to the spelling, using the Privy Council’s and the company’s spelling of “St. Catherine’s” except where citing a judgment below the Privy Council, where the courts used “St. Catharines.” 5 PC 1875-1088; British Columbia, “Report of a Committee of the Honorable the Executive Council, approved by His Excellency the Lieutenant Governor on the 6th day of January, 1876” [BC OIC 1876] reproduced in Parliament, “Annual Report of the Department of Interior for year ended 30 June 1875 – Special Appendix” (Ottawa:  Parliament, 1876) at 50 [June 1875 Department of Interior Annual Report]. 6 Canada, Department of Interior, Annual Report of the Department of the Interior for the year ended 30th June 1876 (Ottawa:  Department of Interior, 1877) at xvii.  Robert Cail, I think, misattributes this passage to “the Order in Council establishing the Commission”:  Cail, supra note 4 at 208.  I cannot find an Order-in-Council containing this passage.    4  although they did push settlers to “compromise” if their claimed rights appeared questionable.  The commissioners usually left each Indigenous community with a rough sketch map of the newly-allotted reserves.7  Afterward, sometimes a year or more later, a survey crew would arrive to confirm and formalize the reserve boundaries.  Although the governments probably at least initially intended the commissioners’ allotments to be final, the commissioner who came after Sproat, Peter O’Reilly (who held the position from 1880 to 1898), sometimes adjusted the reserves.  And, although the Dominion and provincial governments largely treated the lands as if they were Indian reserves, the province did not transfer the administration and control of the lands to the federal Crown until 1938.8 As the commissioner appointed by the Dominion and provincial governments, Sproat viewed himself as the “Chief Commissioner,” though no governmental direction or instruction expressed this status and Sproat never seems to have acted explicitly as such.9  Indeed, somewhat surprisingly, the three commissioners always seemed to have arrived at consensus; during the JIRC’s second circuit, Sproat explained that he had found “no difficulty in getting agreement…  There have been no protests, and only short lasting differences of view.”10  Nonetheless, from at least the middle of the second circuit in 1877, Sproat angled to become the sole commissioner of the Indian Reserve Commission, denigrating both of his fellow commissioners in a letter to the                                                7 Although “tribe” is the word used in the historical documents to describe an Indigenous community, I have chosen to use the word, “community,” following Marianne Ignace & Ronald E Ignace in Secwépemc People, Land and Laws : Yerí7 re Stsq’ey’s-kucw, McGill-Queen’s Native and Northern Series 90 (Montreal & Kingston: McGill-Queen’s University Press, 2017).  I considered several other terms, including, “First Nation,” which seems too modern a term and, based on the University of British Columbia’s “Indigenous Peoples:  Language Guidelines,” may reference a reserve-based group, which seems too narrow a word for my context:  University of British Columbia, version 1.0 “Indigenous Peoples:  Language Guidelines” (2016), online:  <http://assets.brand.ubc.ca/downloads/ubc_indigenous_peoples_language_guide.pdf>, accessed 4 October 2017, at 8.  Peter Carstens uses the term “confederacy,” which I have not adopted because it seems to imply political relations, and I do not consider myself not familiar enough with the historical political relationships:  Peter Carstens, The Queen’s People:  A Study of Hegemony, Coercion, and Accommodation among the Okanagans of Canada (Toronto: University of Toronto Press, 1991) at 5.  At other times, Carstens seems to use the word “band” in place of “confederacy” (see, for example, at 15), though “band” suggests to me an entity described by the Indian Act, first passed in 1876.    While not using the term “tribes,” I have chosen to use t