On July 16, 2016, the Splatsin community near Enderby, B.C. is set to answer the question “Should Splatsin enter into the Fortune Field Specific Claims Settlement Agreement?”
Canada’s offer to settle this issue has two components:
1) A payment of $300,000. Canada offers this payment because it failed an 1877 promise to maintain a three-quarter acre burial ground in Fortune’s Field as a graveyard reserve. A reserve was created but, at some point, it seems to have been decommissioned without notice. Since then, this burial ground has become an indistinguishable part of a farmer’s field.
2) The Crown also undertakes that land surrounding the three-quarter acre will remain protected as an archaeological site under the BC Heritage Conservation Act. Judging by the information website, this exceeds 160 acres and is mostly private farmland.
The information website explaining the Settlement Agreement leaves it somewhat unclear what this $300,000 represents. It says, “The $300,000 compensation is for the value of the three-quarter acre today and as a registered archaeological site.” However, the document also says the settlement “does not relate to any other lands except the three-quarter acre.”
The present market value of a three-quarter acre of Enderby farmland seems less than $300,000. Therefore, Canada’s offer must include either an implicit recognition of loss over time or compensation for some additional loss touching the larger archaeological site.
In any case, on the one hand, $300,000 is more than one would receive for the sale of a three-quarter acre at present prices: if the community wants to give Canada a quit claim to the three-quarter acre burial ground and leave the whole site in control of the Heritage Branch.
On the other hand, it is an insufficient amount for Splatsin to regain control of all the land actually in question: if the community prefers to regain custody of the burial ground and of its former village precinct now designated as an archaeological site.
This same offer was rejected in 2009. It has been brought forward again on the ground of weak consultation with the community at that time.
Whether Splatsin should ratify the Fortune’s Field Settlement Agreement is a wholly internal question. My remarks here are intended only for the information of others. Or, if the vote leaves this issue unresolved, for anyone who may wish to offer Canada’s Minister of Indigenous and Northern Affairs advice and support on how to proceed. In doing so, one should keep in mind respectfully that different communities may have their own range of cultural values in regard to sacred things and in their assessment of community needs.
For a better understanding of the issues, one must begin with the circumstances pre-dating Canada’s 1877 promise. How did Splatsin lose control of the space in the first place so that this burial ground could become part of Fortune’s Field?
As it happens, Fortune’s Field contains a special kind of burial ground. It is one among hundreds throughout B. C. that arose all in just a one-year period, beginning in April 1862 and during which the indigenous population died by the tens of thousands.
Splatsin traditional knowledge has it that, “A large number of our Splatsin Ancestors died of smallpox here in 1862/63 and are buried at the base of Quiliqua Mountain, known now as the three-quarter acre in Fortune’s Field.”
In the history of B.C., as it is told by diverse Elders from diverse indigenous communities, the smallpox epidemics of 1862/63 have a special importance. This is for two reasons.
First, these 1862/63 epidemics were the primary agency through which most autonomous Peoples on the Pacific shelf lost the de facto sovereign control of their traditional territories. These burial sites often now provide a sense of spiritual connection between the last generation that had sovereign control of their lives and later generations who have had to struggle with the effects of subjugation and dispossession that accompanied colonialism. They are a memory of what once was and an inspiration for what might be.
Second, many Elders teach that the 1862/63 smallpox epidemics were not natural tragedies. Based on the evidence available to them, the widespread teaching by Elders always has been that the epidemics of these years were largely artificial in nature. In other words, they were an ethnic cleansing exercise, a war of extermination, an instance of genocide, or however one may wish to term a mass killing of innocents.
There were no settlers at Splatsin in 1862. So this cannot be a case where settlers targeted a location and then created an epidemic to free it of indigenous occupancy.
Nevertheless, if the settler authorities committed criminal acts tending to advance the disease anywhere in the chain of causation, if individual settlers committed such acts under a social license to do so or if settlers knowingly took advantage of such acts in ways that they would not in the case of natural deaths, then the disease did not play out at naturally at Splatsin and this case was just another episode of mass murder within a larger series.
Intentionally advancing the disease or even advancing it just through “incautious” actions were both criminal acts under English law. And the evidence is well beyond a reasonable doubt that the colonial authorities, especially at Victoria, caused the disease to spread and that they were fully aware of the consequences of their actions.
To trace the connection between the creation of artificial smallpox epidemics during 1862 and the loss of this ground as a precursor to the Fortune’s Field claim, it is revealing to follow in the footsteps of its creator, Alexander Fortune.
Fortune arrived from distant Canada in 1862, drawn by the Cariboo gold rush. Arriving at Ft. Alexandria, below Quesnel, on the weekend of Oct. 4/5, Fortune, with two others, would cross Tsilhqot’in and Nuxalk territory to Bella Coola along a road route being promoted by the Bentinck Arm Company. Attorney General George Cary, Governor Douglas’ formal legal adviser, controlled the Bentinck Arm Company.
Tsilhqot’in and Nuxalk Elders are among those who always have taught that settlers created artificial epidemics in their territories during 1862. A Tsilhqot’in leader described this as “germ warfare” in Tsilhqot’in v. British Columbia (2007.) While pursuing reconciliation with the Tsilhqot’in in 2014, the Premier of B. C. formally acknowledged that settlers did create artificial epidemics here during 1862, wiping out whole families and villages.
Much of this “germ warfare” occurred along the Bentinck Arm Company’s proposed road. When Fortune and his companions arrived at the mouth of the Bella Coola River, they stayed for one month with Jim Taylor. Taylor had gone to Bella Coola with Angus McLeod as an agent for Attorney General Cary to help secure a claim that Cary was making to land under the large Nuxalk village at Mile Zero. Within a day or two of his agents introducing smallpox there, Cary would seek registration of his claim, asserting that the land was vacant.
In addition to Taylor and McLeod, Fortune would also meet John McLain and Alex McDonald. Taylor and McLeod each would be said by their contemporaries to have begun artificial smallpox epidemics. McLain would later admit to having done so. The Tsilhqot’in executed McDonald for doing so at Puntzi.
For that matter, the disease had been imported to the colonies in the first place on a boat arriving at Victoria under Cary’s sponsorship and in the company of a committee promoting the Bentinck Arm Company’s route. If these Bentinck Arm interests deliberately imported the disease, with a view to its eventual deployment at Bella Coola as the best evidence shows, then, in effect, everything that followed was one giant “man-made” epidemic, just as the Elders claim although on other evidence more familiar to them.
During the month that Fortune was at Taylor’s cabin, dying Nuxalk were crawling to die on his doorstep. So Fortune had the closest possible vantage point for observing the direct relationship between these smallpox epidemics and dispossessing the indigenous Peoples. It cannot have escaped his notice, therefore, that settlers here had a social license to take advantage of what would otherwise be crimes while claiming land. People ordinarily do not lose any claim to their homes merely because some of their relatives may have been died or been murdered.
Leaving Bella Coola, Fortune arrived at Victoria while the smallpox epidemics were still underway there. He is certain to have learned how the Colonial authorities criminally drove sick and healthy natives from Victoria to begin new epidemics up and down the coast. All these subsequent outbreaks, therefore, also were artificial epidemics on yet another account.
In June 1866, Fortune became the first settler in the indigenous political territory that included Splatsin. On this first short visit, he did not encounter any of the surviving residents and he began the process of pre-empting “a very choice location.” The following May, he returned to build a cabin and, thereby, to establish the occupancy required to gain title under the colonial system.
Fortune told the McKenna-McBride Royal Commission in Oct. 1913 that, when he arrived at Splatsin in 1867 to build his cabin, he found, “…about 22 Indians composed of men, women and children, and they told me that this place was their home.” They even had a garden. These were the entitled occupants under the previous resource allocation system. He was on their land. Yet they were so reduced in economic need that sharing space with this newcomer cannot have seemed an inconvenience.
He said, “They told me that there [had been] quite a large number of Indians [living] here and smallpox had killed most of them…(T)he Indian women showed me some of the bones of the Indians which had just been put under the surface of the ground.”
In other words, this had been the site of a substantial occupation, a village. Fortune’s pre-emption was not vacant as required by the Colonial land statute. Therefore, it was not lawful. Without the social license seemingly given to settlers to take advantage of the smallpox depopulation, Fortune would have been unable to gain title to this land. The sense of a continuous connection with the ancestors would never have been put at risk.
Moreover, when Fortune came here in 1867, this indigenous political territory could not have been part of British Columbia. For no agent of the Crown had ever visited here yet to negotiate a treaty extending the Colony’s jurisdiction to include Splatsin. Nor had the Crown acquired any rights through which, by logic or law, it could convey a title to Fortune.
Fortune can only have lived here with an aura of legitimacy so far as the surviving Splatsin community consented to his presence. And, indeed, he made adjustments in his holding when the Crown’s representatives did arrive in 1871 so that the indigenous residents could accommodate him, such as acknowledging their need to access the fishing ground.
Fortune fenced the area most visibly containing the burial ground. This is how the three-quarter acre site arose. While he argued to the Royal Commission that indigenous Peoples would be better off with less land, he did not complain about the graveyard reserve in his field. It seems only after he died in 1915 that the location became lost.
The institution of colonialism at Splatsin, a movement that began with the smallpox epidemic of 1862/63, saw the first settler arrive in 1867 and the first agents of the Crown begin asserting control in 1871, was finally consolidated in 1877 when the political leaders of this territory realized they could no longer withdraw consent for a settler presence. The traditional authorities of this autonomous sovereign territory retained their moral legitimacy after 1877 because the Crown never concluded a political treaty here to support its rule through some constitutional means. But smallpox had stripped them of their de facto power. It was in their new role as supplicants in 1877 that the local authorities requested protection for this burial ground. What everyone is seeking now are ways to transcend the still-lingering practices and effects of the colonial era.
In essence, the current offer in the Special Claims process would save Canada from any future claim and transfer responsibility to the province, now no longer as a living memorial with an active spiritual connection to the Ancestors but as something of only academic interest. In a sense, the values of provincial bureaucrats would be substituted for the values of federal bureaucrats in managing the site.
While this suits Canada’s interest in achieving finality for the federal government, this result seems unfair: to the farmer on whose land the archeological site is found; to the province which will have to purchase it from the farmer eventually; and to those of Splatsin who have a sense that this is yet another new stage of colonialism, one that represents a further distancing from their cultural traditions. For that matter, Canadians seldom suggest turning non-indigenous burial grounds into archeological sites.
The right thing seems for Canada to purchase the whole archeological site from the farmer, pay Splatsin some reparations for the loss of the village precinct from the time when Fortune was secured in possession not from consent by the community but by the threat of violence from the Crown, and then to assist Splatsin in recovering the burial ground location or however it may otherwise wish to control the whole ground.
This seems a more appropriate post-colonial action, one in line with the Prime Minister’s mandate to the Minister of Indigenous and Northern Affairs and with Article 11 of the United Nations Declaration on the Rights of Indigenous Peoples.
 Information website cited above.
 Traditional community knowledge shared by Jody Leon and Rosalind Williams for the “Protect Splatsin Ancestors – No Consent to removal of Splatsin burial site,” information page at www.facebook.com/groups/276505322700418/. And from the author’s interview with Elder Rosalind Williams, July 10, 2016.
 See discussions about the teachings in various traditional territories in Tom Swanky, The True Story of Canada’s ‘War’ of Extermination on the Pacific, www.shawnswanky.com (2012.) According to the author’s interview with Elder Rosalind Williams, July 10, 2016, the traditional knowledge at Splatsin also occasionally includes notice that the Ancestors were “murdered” but the mechanics of it, beyond a conviction that the smallpox epidemics were artificial in nature, seem vague. The original knowledge may have depended on information received through contacts other Secwepemc Elders.
 In 1865, the Attorney General for B.C., while acting as a judge in the case of R. v. Ahan and Lutas, said that natives in B.C. had a “universal” belief that the settlers had spread the disease intentionally. See, “The Special Assize,” The British Columbian, July 4, 1865, p.3.
 R. v. Vantandillo (1815) 4 M&S 73; 105 ER 762: the leading case in 1862.
 Kamloops Archives, Wade family fonds. Notes of William Wattie, James Wattie and Alexander Fortune, Box. 2. File 12.
 Cary’s control of the Bentinck Arm Company and of the New Aberdeen land syndicate is discussed at length in Tom Swanky, “Chapter 7: The Attorney General and the Ancestors” The Smallpox War in Nuxalk Territory. www.shawnswanky.com (2016.)
 Tsilhqot’in Nation v. British Columbia, Evidence of Ervin Charleyboy, Proceedings at Trial, April 21, 2005 (Day 221) p. 24.
 See Hansard for Oct. 23, 2014.
 “Coast Route Explorer,” The British Colonist, July 22, 1861, p. 3. And see “Threatening Settlers,” The British Colonist, March 31, 1862. Testimony of Edward Green, Bentinck Arm Co. v. Hood, Day 1, Afternoon Session, “The Coast Muddle,” Daily Chronicle, Feb. 12, 1864, p. 3 and “A Trip to the Head of Bentinck Arm…” The British Colonist, Aug. 19, 1862, p. 3
 Cary makes the claim in BCARS. GR-1372. British Columbia. Colonial Correspondence. B01313. F275. George Hunter Cary to B.C. Attorney General Henry Crease, June 4, 1862, delivered at New Westminster June 11. The direct relationship between this claim and the introduction of smallpox at Bella Coola is discussed in Chapters 11 and 12 of The Smallpox War in Nuxalk Territory, www.shawnswanky.com (2016.)
 Kamloops Archives, Wade Family Fonds, Box 2, File 12, “Narrative of James Waittie,” p. 6. Kamloops Archives, Wade Family Fonds, Box 2, File 12, William Wattie, “Lecture Given at Worcester, Mass,” p. 9
 See “The Bute Inlet Massacre and its Causes,” The British Colonist, June 13, 1964, p.3.
 Franklin Memoir as reported in Maurine Goodenough, Only in Nazko, 2008, p.19.
 BCARS. H.P.P. Crease Legal Papers, 1863 – 1895. Add Mss. 54, Box 3 File 12, Supreme Court of New Westminster, Testimony of Ach-pic-er-mous, May 31, 1865.
 Kamloops Archive. Wade Family Fonds. Box 2, File 12, William Wattie, “Lecture Given at Worchester Mass. in 1913, pp. 9-11.
 “Spallumacheen Valley,” Daily Colonist, June 19, 1883, p. 2.
 Enderby and District Museum and Archives. Alexander Leslie Fortune fonds, CA EDM. Referenced at www.memorybc.ca/alexander-leslie-fortune-fonds.
 McKenna-McBride Commission. Agency Testimonies, Okanagan Agency, Meeting with the Spulmacheen or Enderby Band, Alexander Fortune, page, 14.
 Fortune’s testimony cited above.
 The British Colonist nicely summed up the Consolidated Land Act of 1861, which contained the common reference to “unoccupied land” in “Consolidated Land Act,” The British Colonist, Aug. 30, 1861, p. 2.
 He gave up 32 acres so they would have access to the river. Fortune’s testimony, p. 15.
 Interview with Rosalind Williams, July 10, 2016.
 The Crown sent Judge Peter O’Reilly and a surveyor to create the first reserves here in 1871. These men lodged with Fortune, see his testimony to the Royal Commission at p. 15.
 The War Chief prepared for a war to expel settlers over their taking of land but the local headman eventually met the Crown’s agents in 1877 and advised them that he could not support an expulsion policy. Interview with Rosalind Williams, July 10, 2016.