The adoption of this policy, so different to that of the United States, was not due to differences between the Indian populations north and south of the line. Some differences, it is true, there were: a great part of the natives of British Columbia had been more uninterruptedly under the tutelage of the Hudson's Bay Company than those across the Boundary, and were somewhat more inclined to work; no one tribe in the Colony was so powerful or so well organized as the Nez Perces; nor did the Indians of the Interior of British Columbia possess so many horses as did those to the south. Yet Kootenays, Pend d'Oreilles, and Okanogans crossed the Line at pleasure; the Shuswaps were very like the Coeur d'Alenes or the Cayuses; and the untameability of the nomads south of the Snake was matched by the wildness and ferocity of the Indians to the far north. In numbers, organization, and character it is difficult to see why the natives of the one section were the more adapted to any certain system than those of the other.[53]
The initiation of this policy (especially with respect to the non-recognition of Indian title and the withholding of compensation) was in part due to pressure for funds in the Colony and to the refusal of the Imperial Government to assume any financial responsibility in the matter. Governor Douglas before the founding of the Colony had acted, apparently, on a different principle when, as agent for the Hudson's Bay Company, he had bought in 1850-51 considerable areas from various tribes in Vancouver's Island.[54] Compensation of some sort to Indians on the mainland was at least tentatively endorsed by the colonial office of the Home Government while it was in charge of Sir E. B. Lytton; yet Lytton was careful to state that he did not adopt the views of the Aborigines' Protective Society as to the means for extending protection to the natives.[55] This society was an organization in England which had "taken for many years a deep interest in the welfare of the Indian Tribes to the west as well as the east of the Rocky Mountains," and it may be looked upon as a British manifestation of the same sort of philanthropic sentiment in regard to Indians as existed among certain classes in the eastern part of the United States. The Secretary of the Society, in a long letter to Lytton, after quoting a long extract from a New York paper relative to the extreme cruelty of miners to Indians in California and characterizing the Indians of British Columbia as a "strikingly acute and intelligent race of men," "keenly sensitive to their own rights," and "equally alive to the value of the gold discoveries," claimed for them protection against wanton outrages and asked that "the Native title should be recognized in British Columbia, and that some reasonable adjustment of their claims should be made by the British Government."[56] The policy of compensation to Indians was further endorsed by Governor Douglas in regard to lands on Vancouver Island, on the occasion of the transmission of a petition from the House of Assembly of Vancouver Island, "praying for the aid of Her Majesty's Government in extinguishing the Indian title to the public lands in the Colony." The money then needed amounted to £3000, and Douglas proposed that it be advanced by the Imperial Government, payment to be made from the proceeds of sales of land. But the Duke of Newcastle, then Secretary of State for the Colonies, replied tersely that he was "fully sensible of the great importance of purchasing without loss of time the native title to the soil of Vancouver Island; but the acquisition of the title is a purely colonial interest, and the Legislature must not entertain any expectation that the British taxpayer will be burdened to supply the funds or British credit pledged for that purpose."[57]
Whatever the reason, however, for denying recognition of title to the Indians both of the Island and of the Mainland, and for withholding compensation, there can be no doubt of the fact: "The title of the Indians in fee of the public lands, or any portion thereof," wrote an eminent colonial official, "has never been acknowledged by Government, but, on the contrary is distinctly denied."[58]
The beginnings of a positive Indian policy in British Columbia may be traced in an early letter of Governor Douglas to Sir E. B. Lytton, March 14, 1859. This letter was in reply to one from the latter (Dec. 30, 1858), in which Lytton inquired whether a plan for settling the Indians in permanent villages, like the plan used by Sir George Grey with the Kaffirs in South Africa, might not be feasible.[59]
Douglas endorsed the plan as of advantage both to the Indians and to the Colony and then sketched the principles upon which he proposed to establish reserves on the mainland. In the first place, the reserves should "in all cases include their cultivated fields and village sites, for which from habit and association they invariably conceive a strong attachment, and prize more, for that reason, than for the extent or value of the land."[60]. Such settlements, in the second place, were to be entirely self-supporting. The Governor here adverted to the plan pursued in the United States with regard to Indian reservations, but stated that that plan was expensive to the Government and debasing to the Indians. The system followed by the Spanish missions in California, likewise, he regarded as defective, in that it kept the Indians in a state of pupilage and did not train them to self-government and self-reliance. He would avoid the evils of both these systems and, in particular, cultivate the pride of independence. He proposed to that end, that each family have title to its own plot of ground, but without power of alienation; that they should be encouraged to add to their possessions by purchasing property apart from the reserve; "that they should in all respects be treated as rational beings, capable of acting and thinking for themselves; and, lastly, that they should be placed under proper moral and religious training and then be left, under the protection of the laws, to provide for their own support."[61] "I have impressed upon the miners," wrote Douglas to Lytton, "the great fact that the law will protect the Indian equally with the white man, and regard him in all respects as a fellow subject."[62] "The Indian population," he wrote to another, "are considered by the laws of England as fellow subjects, entitled to protection and punishable, when guilty of offenses, through the sole action of the law."[63] In a review of the Colonial Indian policy, written in 1875, the Attorney General stated that that policy "was based on the broad and experimental principle of treating the Indian as a fellow subject."[64]
It now remains for us to inquire how this Indian policy, so based, was applied by the Colonial Government to this class of Her Majesty's subjects; not omitting, as we do so, to notice contrasts to administration in the United States.
In the administration of justice the courts of British Columbia treated the Indian as the white man was treated. "When Indians commit offenses," ordered Governor Douglas, "they are to be dealt with impartially and to receive a fair trial before the proper authorities, and not to be treated like the wild beasts of the forest."[65] We get a glimpse of the way in which the law was administered with respect to Indians from the terse records of the old Ft. Hope Police Book. An Indian, for stealing money from another was sentenced to two days in jail. Two Indians, for being drunk and disorderly, were sent to jail for twenty-four hours. Simon B. McClure was charged by an Indian with assaulting him and was fined forty shillings. William Welch, charged by another Indian with the same offense, claimed that the Indian had beaten his dog and attacked him with a knife; Welch was let off, and the Indian was reprimanded. An Indian who struck an Indian woman in the face with a gun had his hair cut off. J. Spencer Thompson, for selling about one pint of liquor to an Indian had to pay a fine of $100, with costs, and lost his license to sell liquor. The sentences, it will be observed, were generally light for minor offenses, but not for selling liquor to Indians. Whites and Chinamen, the records reveal, were treated exactly as the Indians. Of course for grave offenses Indians, as well as others, were bound over to the assizes. In a number of cases Indians were hung for murder. This even-handed, carefully adjusted dealing out of justice to Indians, whites, and Chinese alike, contrasts plainly with the carelessness, ruthlessness, and lack of system in the territories. One could scarcely imagine an event like the following occurring on an American frontier: "May 28, 1862. Chas. Millard, Capt. of the Ft. Hope (steamboat) appeared to answer the complaint of Jim (an Indian) for having on the 16th inst. broken and otherwise damaged his canoe at Union, valued at twenty-five dollars ($25.00).
"Ordered to pay four pounds ($20.00) being the damage sustained by the Indian as sworn to by C. C. Craigie & Wm. Yates. Paid. P. O'Reilly, J. P."[66]
It is difficult in the mining regions south of the Line to find satisfactory records as to how justice was administered to the Indian. The reservation system, as it was being applied in the Pacific Northwest, weakened the ancient tribal authority; the "subsidy plan" tended to alienate the people from the chiefs, and the presence of Agents lessened their prestige in the eyes of the young or of those inclined to be bad. The Agents, on their part, had no authority for the punishment of criminal acts. If they had possessed magisterial powers, both with regard to whites and Indians, justice might have been better administered. Local authorities had no jurisdiction over Indians who were on reservations, although they sometimes punished those who were off of them.[67] Only United States courts had full power, but these courts were slow in action, and could not be expected, moreover, to take cognizance of minor cases. Indian criminals, finally, were sometimes arrested by army officials and tried by army courts with scanty consideration.[68] For the Indian, indeed, there seems to have been at this period practically no real protection before the law in the American procedure.
In case of Indian outbreak the British Columbia system aimed to punish offenders as individuals and not to take revenge on tribes. One of the marked features of the history of the Colony of British Columbia is that there was but one serious Indian outbreak during the colonial period.[69] This happened in April, 1864, when some Chilcotin Indians killed roadmakers and settlers to the number of fourteen. The whole tribe went on the warpath, but were subdued by volunteers from New Westminster and Cariboo. Rewards of $250 each were offered for the individual murderers, the aim being, as Governor Seymour expressed it, "to secure justice, not vengeance."[70] Too often, south of the Line, in case of Indian depredations, there was no discrimination between the tribe and guilty members of the tribe.[71]