by Shelley A.M. Gavigan. Vancouver: UBC Press. 2012. 274pp. Cloth $95.00/$99.00 US. ISBN: 978-0-7748-2252-7. Paper $34.95/$37.95 US. ISBN:978-0-7748-2253-4
Reviewed by Jeffrey Sanders, Department of Social Sciences and Cultural Studies, Montana State University-Billings. Jsanders [at] msubillings.edu
In this meticulously researched work Professor Gavigan examines the introduction of Canadian criminal law in the western plains of Canada following 1870. In doing so she examines some of the consequences of behavior of two colliding cultures at the interface of time and values; with one culture group being the indigenous people of the western plains of Canada and the other being the Canadian government and its representatives. This volume is part of a series published by the UBC Press for the Osgoode Society for Canadian Legal History.
Gavigan’s first sentence sets the tone for the rest of the book, “This book tells a little-known story, relying on voices seldom heard” (p.3). She researches court records searching for the consequences of criminal law being applied to First Nations people in the years shortly following the implementation of the Indian Act of 1876. Professor Gavigan notes and defines the differences between ‘high law’ and ‘low law’ and acknowledges that, “It is low law, however, that affects most people…and most directly affects the poor, marginalized, the vulnerable and the oppressed….” (p.13). And from here the author takes the reader on a little known, but well researched tour of low law of the Canadian plains in the latter half of the 19th century. She closely examines the court records of Hugh Richardson who was the first magistrate with whom the First Nations of Saskatchewan had to deal. In order to do this she delves into a niche of time and activities with a bifocal lens that combines good legal historical reporting with a look at the dynamics of the indigenous people of that time who had to deal with the newcomers (Canada’s) sense of values and legal power. In doing so Gavigan combines legal history with sociology and anthropology and examines the results of First nations being both defendants and plaintiffs, informers, witnesses and interpreters. The latter role of interpreter is particularly important when dealing with people trying to figure out each other’s world view and sense of values.
It has often been noted how hard and generally inaccurate it is to judge one culture’s behaviors by another culture’s values. This is exactly the focus and goal of this book, that is, an examination of early low court criminalization cases (read people involved) caught in the jaws of relatively newly enforced Canadian laws. And Gavigan is quick to state, and herein lies one of the main contributions of this book, that while the common view of the Indian Act 1876 was seen as an attempt at forced [*67] assimilation (which it partly was) she argues that the activities of the First nations involved were not so much criminalized by the act rather, “They were prosecuted as Indians – not as criminals – for violating the Indian Act, for not conforming to the behavior required of Indians by this legislation” (p.22). In fact she demonstrates that First Nations’ political leaders also used the police and court system to defend and advocate for their people as plaintiffs.
In order to take on the above challenge data were gathered from two major sets of Hugh Richardson’s criminal court records. One is from his time as stipendiary magistrate (1876-1886) and the other is from his tenure as Supreme Court judge of the North-West Territories (1887-1903). Gavigan also analyzed data from other justice of the peace records as well as from prison records and newspaper articles to mention just a few of her many sources, all of which add depth to the accuracy of her findings.
In her first chapter Professor Gavigan describes the legal framework and the introduction of criminal law in the Canadian Plains during the last three decades of the 19th century. In order to do that she contextually describes the history and importance of the Hudson Bay Company (HBC) as the major European agency in the entire Indian Territories until that area was acquired by Canada. When HBC was the primary administering agency First Nations policy was mainly of non-intervention into the social lives of First Nations. However, that dramatically changed when Canada instituted its new legal codes. The personal lives and conduct of First Nations people were tremendously changed and influenced when the economic base of the HBC was supervened by the formal assimilation policies of the Indian Act. Gavigan’s careful and diligent research from individual court and newspaper records amply present this as such. As a case in point her research is so meticulous that she notes different spellings of the same person’s name from different sets of records. She clearly follows the dilemma of a young man who was tried for stealing a horse under the new set of laws while just a few years prior that same behavior would have been culturally appropriate for a young man trying to impress his sweetheart or prove his manhood.
Gavigan continues her argument that First Nations also used the law to try to help themselves as she identifies how chiefs and headmen prepared to use the “new system” (Indian Act and policies) to help their people in a selectively assimilated version of, “if you can’t beat them – join them” in their own legal arena. And in this arena where specific language is so important and cases can turn on a nuanced definition the importance of understanding language as culture is paramount. In doing so Professor Gavigan shows she is not only a fine legal scholar she also demonstrates a keen understanding of the social and cultural dynamics of First Nations. She thus creates a highly readable narrative that combines legal expertise with cultural understanding. In that respect this work has value not only to legal historians but to cultural anthropologists as well as perhaps a reader with a specific interest in the region. In fact, the book is arranged that if one wants a more cursory read of the contents (and thus not a scholarly one) [*68] each of the main chapters has a well-crafted introduction and conclusion that can act as a quick overview. The titles of many of the chapters use parts of direct quotations from the indigenous subjects to indicate the theme of the analysis in that chapter thus providing a glimpse of the issues to be discussed and researched and also providing a motivational aspect to the reader to see the origin of the quote. In her final regular chapter, “Six Women, Six Stories” Gavigan addresses the difficulty of researching women’s history in the context of criminal justice of the time, a time that was clearly male dominated. Yet she uses these stories to further her argument that, “criminal law was not necessarily the first or most important means of subjugating the First Nations of the Plains” (p.182).
The “Afterword” provides an important note about other historians who have also studied lower court records to interpret the relationships between indigenous people and the colonial legal structure imposed upon them. Her methodological note on sources and data also adds to the literature her thoughts, and processes, on using court records and reports, newspaper data, annual returns of the North-West Mounted Police and penitentiary records. This is a book that has great utility value in many disciplines.
Copyright 2014 by the Author, Jeffrey Sanders