“…the land itself, with these small exceptions”: Some Archival Thoughts on

The Vancouver Island Treaties

21 April 2013

The Archival Endeavor

Knowledge - its acquisition, use and preservation - is the basis of the archival endeavor.

Across cultures and time societies have formulated protocols for the memorialization of their lives. The Archivists mission is to make transparent the often vague and uncertain relationships between the record’s formation and the many cultures and traditions that influence the documents creation, use, and preservation.

Aboriginal Treaties in Contemporary Politics

• “real estate conveyances”; • “forms of contract”; • “constitutional documents”;• “a kind of legal self-annihilation”; • “Indian Magna Carta”;• “the hidden constitution of Canada.”

Nootka Sound Crisis 1789-1794

The Meaning of Sovereignty on the colonial margins.

Rapidly changing trade economies.

Technological advancements transforming Native space.

Oregon Treaty, 1846

A division, between Great Britain and the United States, of the Oregon Territory, a free trade area established in 1818 stretching from Mexican to Russian Territory.

An agreement “respecting the sovereignty and government of the territory.”

Built on the Common Law Doctrine of Tenures.

No mention of Native Peoples whatsoever.

Charter of Grant of Vancouver Island 13 January 1849

Established the HBC for ten years as “true and absolute lords and proprietors” of Vancouver Island.

Proprietary rights and exclusive trading rights with Native Peoples.

Not assigned civil jurisdiction as in Rupert’s Land.

No mention of Aboriginal title; however, Grant would promote “protection and welfare” of Native Peoples.

BC Archives, D-05228

Vancouver Island Treaties

The Domesday Book

Completed: 1086

Purpose: To determine how much each landholder held in livestock and land and what it was worth.

Significance: a) Created documentary evidence of land titles across England.

b) Established the Doctrine of Tenures, the legal fiction that all titles were held by Crown grant.

Douglas to Barclay, 3 September 1849,

Fort Victoria Letters, HRBS.

“Some arrangement should be made as soon as possible with the Native Tribes for the purchase of their lands and I would recommend payment made in the shape of an annual allowance…”

Barclay to Douglas, 17 December 1849 BC Archives AC/20/Vi/7

“With respect to the rights of the Natives you will have to confer with the Chiefs of the tribes”

“You will have to keep a register of all sales with a rotation number, with an outline plan and such a description of the boundaries as may be necessary to distinguish the land granted, and hereafter, … the plan and boundaries of such sales will have to be registered in a book in the same manner: such a book may be called the Division Sale Book, and the first named the original sales book. Copies of the entries will have to be sent home regularly…”

Barclay to Douglas, 8 February 1850, BC Archives AC/20/Vi/7

Douglas to J.M.Yale, 7 May 1850 BC Archives MS-0105 A/C/20/Vi 3D

“…I have been lately engaged in buying out the Indian right to the lands in this neighbourhood and to the westward. It is rather a troublesome business but we are getting on very well.”

Douglas to Barclay, 16 May 1850, BC Archives A/C/20/Vi2“…I summoned to a conference, the chiefs and influential men of the Songees Tribe, which inhabits and claims the District of Victoria….as their own particular heritage. After considerable discussion, it was arranged that the whole of the lands, ….should be sold to the company, with the exception of the Village Sites and Enclosed fields, for a certain remuneration….

The Cowetchin and other tribes have since expressed a wish to dispose of their lands on the same terms; but I declined their proposals in consequence of our not being prepared to enter into possession which ought to be done immediately after purchase or the arrangement may be forgotten…

I attached the signatures of the native Chiefs and others who subscribed the deed of purchase to a blank sheet on which will be copied the contract or deed of conveyance, as soon as we receive a proper form, which I beg may be sent out by return of post.”

Barclay to Douglas, 16 August 1850, BC Archives A/C/20/Vi7

“The Governor and Committee very much approve of the measures you have taken in respect of the lands claimed by the Natives. You will receive herewith the form or contract or Deed of Conveyance to be used on future occasions when lands are to be surrendered to the Company by the Native Tribes.”

Douglas’s Textual Order of Aboriginal Societies

1. Teechamitsa (April 29, 1850)

2. Kosampsom (April 30, 1850)

3. Swengwhung (April 30, 1850)

4. Chilcowitch (April 30, 1850)

5. Whyomilth (April 30, 1850)

6. Che-ko-nein (April 30, 1850)

7. Ka-ky-aakan (May 1, 1850)

8. Chewhaytsum (May 1, 1850)

9. Soke (May 10, 1850)

10. Queackar (Februray 8, 1851)

11. Quakeolth (February 8, 1851)

12. South Saanich(February 7, 1852)

13. North Saanich (February 11, 1852)

14. Sarlequun (December 23, 1854)

North Saanich Treaty,11 February 1852BC Archives, MS-772

“Know all men that we the Chiefs and people of the Sanitch Tribe, who have signed our names and made our marks to this deed, the 11th day of February 1852…”

North Saanich Treaty11 February 1852BC Archives, MS-772

“The condition of our understanding of this sale, is this that our village sites and enclosed fields are to be kept for our own use for the use of our children and for those who may follow after us, and the lands shall be properly surveyed hereafter; it is understood that the land itself with these small exceptions becomes the entire property of the white people for ever, it is also understood that we are at liberty to hunt over the unoccupied lands; and to carry on our fisheries as formerly.”

North Saanich Treaty,11 February 1852BC Archives, MS-772

“We have received as payment...”

Archival “Persons” of the North Saanich Treaty

Qualification of signatures: “ … McKay … R. Golledge …” … Clerk, H.B.C’s service.”

Author of the act: British Crown;Author of the document: British Crown;Addressee of the act: James Douglas in his capacity

as “agent of the H.B.C.”;Addressee of the document: “… all men …”Writer: James DouglasWitness(es): Joseph MacKay and Richd. GolledgeName of Act: “sale” of land title.

Archival Elements of the North Saanich Treaty

Extrinsic Elements: Annotation of Registration: “11”

Intrinsic Elements:Title: North SaanichNotification: “Know all men …”Exposition: “That we …”Disposition: “… consent to surrender … boundaries.”Clause of Obligation: “The condition…” Clause of Corroboration: “We have received as

payment..”Attestation: “Hotutstun…”

Blanshard Commission, 1849

Douglas Commission, 1851

North Saanich Treaty, 11 February 1852, BC Archives, MS-772

“The condition of our understanding of this sale, is this that our village sites and enclosed fields are to be kept for our own use for the use of our children and for those who may follow after us, and the lands shall be properly surveyed hereafter; it is understood that the land itself with these small exceptions becomes the entire property of the white people for ever, it is also understood that we are at liberty to hunt over the unoccupied lands; and to carry on our fisheries as formerly.”

Saanich Pioneer Museum

Donated by Premier Tolmie in 1933.

Reported on in the Colonist.

Saanich Pioneer Museum

Referred to as a “treaty” in the header.

Referred to as a “treaty” in the Colonist article.

Powell to Beavan, 7 April 1875, BC Archives GR 1440

“…allow me to inspect the treaties made between the Hudson’s Bay Company and the Indians of the Songhees and Nanaimo Tribes as contained in the Record Book at present at your office.”

Cartographies of Imagination

• Landscapes of Memory• Geographical

Imagination• Ideas of place = a social

process

“The Spatial Politics of Exchange” -- Daniel Clayton

Chart of Vancouver Island, c.1798 BCA A-04700

Times-Colonist January 16, 2013

BC Archives A-04098

Fort Victoria, c.1860

Interim Land Policy, 1864-1887

First official to assert explicitly that BC Natives had never owned land. “[Douglas] made agreements with the various families of Indians…for the relinquishment of their possessory claims in the district of country around Ft. Victoria…but these were …for the purpose of securing friendly relations between those Indians and the settlement of Victoria….certainly not in acknowledgement of any general title of the Indians to the lands they occupy.”

Manufacture of Evidence

“Dr. Helmcken’s Letters,” E. Robson, Daily Colonist, November 26, 1886.

• Moved to the Colony of BC for Gold Rush, 1859

• Campaigned for responsible government and limiting Gov. Douglas’s powers

• First Legislative Assembly 1871, representing Nanaimo.

• Supported Homestead Act, 1872

• Returned to BC Legislature in 1882 and in 1889 succeeded Premier Davies as Premier, a year after he wrote the following letter

John Austen The Provence of Jurisprudence Determined

• the law is command issued by the uncommanded commander—the sovereign;

• such commands are backed by threats of sanctions; and

• a sovereign is one who is habitually obeyed