Gitxaala Indian Reserves and Marine Harvesting

Douglas C. Harris, PhD Nathan T. Nemetz Chair in Legal History Associate Dean Graduate Studies & Research, Faculty of Law, UBC

December 20th, 2011

Questions

Janes Freedman Kyle Law Corporation has retained me to provide an opinion on the following questions:

1. What was the relationship, if any, between the creation process in the of and marine harvesting activities of First Nation communities?

2. What was the relationship, if any, between the reserves established for the Gitxaala (Kitkatla) Nation and the marine harvesting activities of the Gitxaala community.

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1. Indian Reserves and ’ Marine Harvesting in British Columbia

1. British Columbia has an Indian reserve geography that is unlike that anywhere else in North America. Instead of detaching Native peoples from their traditional and placing them on large centralized reserves (a common pattern in the United States) or providing several substantial reserves within traditional territories (as was the pattern in much of ), the Dominion and provincial governments undertook a joint process in British Columbia that resulted in many small reserves. They provided Native peoples with points of attachment within their traditional territories, but little more. In the 1920s, when the reserve allotment process came to an end, there were slightly more than 1500 reserves which together amounted to slightly more than one-third of one percent of the land area of the province.1

2. This was an imposed reserve geography. The Dominion and provincial governments established a series of reserve commissions, beginning in 1876 and ending in the 1920s, with a mandate to consult with Native peoples over the parcels of land to be set aside as reserve, but no requirement to secure Native consent. That consent never came. Instead, Native peoples protested, repeatedly, that the reserved land, which amounted to fragments of much larger traditional territories, was too small and its quality too poor to sustain viable economies in their traditional territories.

3. To the extent that Dominion and provincial officials sought to justify the usually small reserves and reserve acres per person in British Columbia, they did so on the grounds that Native peoples on the Pacific coast were primarily fishing peoples who did not need a large land base. Some agricultural and grazing land would be set aside as reserve, most of it marginal and often without sufficient water rights, but there was little enough viable farmland in the province, and immigrants would occupy most of it. Access to the fisheries was the principal basis on which government officials explained the land policy and on which Indian reserve commissioners allotted Indian reserves. Of the slightly more than 1500 reserves allotted, the Indian reserve commissions identified nearly 750 specifically for their importance in the catching and the processing of fish, shellfish, and marine mammals.2 As a result, the Indian reserve geography of British Columbia, particularly on the coast but also along the major river systems, reflects the importance of and the attempt to secure access to the fisheries for First Nations.

2. Gitxaala Reserves and Marine Harvesting

4. The allotment of Gitxaala reserves spans much of the joint Dominion-provincial process in the late nineteenth and early twentieth centuries. Indian Reserve Commissioner Peter

1 Cole Harris, Making Native Space: , Resistance, and Reserves in British Columbia (Vancouver: UBC Press, 2002), 261. 2 See Douglas C. Harris, Landing Native Fisheries: Indian Reserves and Fishing Rights in British Columbia, 1849-1925 (UBC Press, 2008), including the maps of all the reserves specifically allotted for a fishing purpose on pages 199- 208.

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O’Reilly allotted the first three reserves in September, 1882. He returned nearly a decade later in July, 1891, to allot fifteen more. The last two reserves were allotted by the Royal Commission on Indian Affairs for the Province of British Columbia in 1916.3 Brief consultation preceded these allotments, but the Gitxaala never agreed or consented to the reserve allotments, by or otherwise, as satisfactory resolution of their claim to over their traditional territories.

5. The map of the twenty Gitxaala reserves in Figure 1 reveals the pattern of Indian reserve allotments in coastal British Columbia. Only the Dolphin Island 1 reserve contains a substantial acreage. Otherwise, the Gitxaala reserves, as the vast majority of reserves on the coast, provide small toeholds in a much larger traditional .

Figure 1 Gitxaala (Kitkatla) Indian Reserves.

(Source: Derived from the map in D. Harris, Landing Native Fisheries, 205.)

3 Report of the Royal Commission on Indian Affairs for the Province of British Columbia (Victoria: Acme Press, 1916).

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6. These small parcels of land were intended primarily to secure Gitxaala access to marine resources, particularly the fisheries. In the Field Minutes (part of the official record creating the reserve) for the Dolphin Island 1 reserve, O’Reilly wrote: “The is very conveniently situated to some of the best halibut and herring fisheries, and is within easy reach of the waters most frequented by the fur Seal and sea Otter.”4 In describing Kumowdah 3, O’Reilly wrote: “Except for the fishery, and some good timber, the land is of little value only one small garden has been cultivated, which it would be difficult to enlarge.”5

7. In addition to the written description, O’Reilly also provided a sketch of each reserve. The sketch of Kumowdah 3, reproduced in Figure 2 below, indicated its boundaries and noted some of the principal features of a highly typically coastal reserve. Covering 190 acres, Kumowdah 3 surrounded a fresh water outflow. It included a small village and a cultivated plot, but fishing was the principal activity of the inhabitants and O’Reilly noted one fishing location on the map.

Figure 3 Indian Reserve Commissioner Peter O’Reilly’s sketch of Gitxaala Reserve Kumowdah 3, allotted 21 September 1882.

(Source: D. Harris, Landing Native Fisheries, 99.)

4 Field Minute, 7 November 1882, Federal Collection of Minutes of Decision, Correspondence and Sketches, vol. 10, (Peter O’Reilly *Indian Reserve Commissioner+ June 1882 to February 1885, File No. 29858, Vol. No. 4, [Reg No. B- 64645]), p. 163. 5 Ibid., p. 164.

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8. For their part, the Gitxaala understood that this and the other reserve allotments secured to them their fisheries. In 1890, when a dispute arose over the presence of cannery boats in Lowe Inlet opposite Kumowdah 3, Chief Shukes told the local Department of Fisheries Guardian: “Judge O’Reilly gave this land and water to my people, I do not want any Whitemen to fish here please tell your chief I have fished at Low’s Inlet for 8 years. It is the principal support of myself and my people.”6 The dispute was resolved when the cannery agreed to purchase fish from Gitxaala fishers.

9. In 1891, O’Reilly returned to the north coast. He allotted fifteen more reserves to the Gitxaala, all but one of which he identified as fishing stations: “The reserves recently allotted are with one exception fishing stations, valuable to the Indians but barren and unsuitable for any other purpose.”7 Here, and in many other places on the coast, fish were the one resource that created the possibility of a viable local economy.

10. The Royal Commission on Indian Affairs for the Province of British Columbia allotted the final two Gitxaala reserves, identifying both of them as “fishing stations.” It also indicated that the only two Gitxaala reserves for which O’Reilly had not formally noted the importance of the fisheries—Grassy Inlet 2 and Kul 18—were also important parcels of land for fishing purposes.8

11. In sum, the formal record of the Indian reserve allotment process in British Columbia explicitly connects all twenty Gitxaala reserves with the Gitxaala fisheries. The land set aside as Indian reserve for the Gitxaala was premised on and presumed continuing access to the fisheries and other marine resources. Given the small land base and the nature of the land allotted, there was no possibility of sustaining a local economy without that access.

6 K. Morrison to T. Mowat, 21 August 1890, Department of Indian Affairs, RG 10, vol. 3828, file 60,926 (reel C- 10145), Library & Archives Canada. 7 Field Minute, 3 August 1891, Federal Collection of Minutes of Decision, Correspondence and Sketches, vol. 12, (P. O’Reilly) [Indian Reserve Commissioner], April 1889 to January 1892, File 29858, Vol. 6 [Reg. No. B-64647]), p. 18. 8 For a list of Gitxaala (Kitkatla) reserves and the reserve commission documents identifying their connection to the fisheries, see the table that accompanies D. Harris, Landing Native Fisheries, in Douglas C. Harris, “Indian Reserves Allotted for Fishing Purposes in British Columbia, 1849-1925” (2007), p. 39 (available online at: http://hdl.handle.net/2429/648).

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Bibliography

Harris, Cole. Making Native Space: Colonialism, Resistance, and Reserves in British Columbia. Vancouver: UBC Press, 2002.

Harris, Douglas C. Landing Native Fisheries: Indian Reserves and Fishing Rights in British Columbia, 1849- 1925. UBC Press, 2008.

--. “Indian Reserves Allotted for Fishing Purposes in British Columbia, 1849-1925.” 2007.

Indian Reserve Commission. Federal Collection of Minutes of Decision, Correspondence and Sketches.

Royal Commission on Indian Affairs for the Province of British Columbia. Report of the Royal Commission on Indian Affairs for the Province of British Columbia. Victoria: Acme Press, 1916.

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