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Criminal Law on the Aboriginal Plains: the Irf St Nations and the First Criminal Court in the North-West Territories, 1870 - 1903 Shelley A

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Criminal Law on the Aboriginal Plains: the Irf St Nations and the First Criminal Court in the North-West Territories, 1870 - 1903 Shelley A Osgoode Hall Law School of York University From the SelectedWorks of Shelley A. M. Gavigan 2008 Criminal Law on the Aboriginal Plains: The irF st Nations and the First Criminal Court in the North-West Territories, 1870 - 1903 Shelley A. M. Gavigan, Osgoode Hall Law School of York University Available at: https://works.bepress.com/shelley_gavigan/47/ CRIMINAL LAW ON THE ABORIGINAL PLAINS: THE FIRST NATIONS AND THE FIRST CRIMINAL COURT IN THE NORTH-WEST TERRITORIES, 1870 - 1903 by Shelley Ann Marie Gavigan A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science (S.J.D.) Graduate Program in Law University of Toronto © Copyright by Shelley Ann Marie Gavigan (2008) Library and Bibliotheque et 1*1 Archives Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition 395 Wellington Street 395, rue Wellington Ottawa ON K1A0N4 Ottawa ON K1A0N4 Canada Canada Your file Votre reference ISBN: 978-0-494-39845-6 Our file Notre reference ISBN: 978-0-494-39845-6 NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library permettant a la Bibliotheque et Archives and Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par I'lnternet, prefer, telecommunication or on the Internet, distribuer et vendre des theses partout dans loan, distribute and sell theses le monde, a des fins commerciales ou autres, worldwide, for commercial or non­ sur support microforme, papier, electronique commercial purposes, in microform, et/ou autres formats. paper, electronic and/or any other formats. The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in et des droits moraux qui protege cette these. this thesis. Neither the thesis Ni la these ni des extraits substantiels de nor substantial extracts from it celle-ci ne doivent etre imprimes ou autrement may be printed or otherwise reproduits sans son autorisation. reproduced without the author's permission. In compliance with the Canadian Conformement a la loi canadienne Privacy Act some supporting sur la protection de la vie privee, forms may have been removed quelques formulaires secondaires from this thesis. ont ete enleves de cette these. While these forms may be included Bien que ces formulaires in the document page count, aient inclus dans la pagination, their removal does not represent il n'y aura aucun contenu manquant. any loss of content from the thesis. •*• Canada CRIMINAL LAW ON THE ABORIGINAL PLAINS: THE FIRST NATIONS AND THE FIRST CRIMINAL COURT IN THE NORTH-WEST TERRITORIES, 1870 - 1903 Shelley Ann Marie Gavigan Doctor of Juridical Science 2008 Graduate Program in Law University of Toronto Abstract This study undertakes an in-depth analysis of the relationship between the First Nations and the criminal law in the 'Saskatchewan' region of the North-West Territories, taking as its temporal point of departure the creation of the Territories in 1870. Through data derived from criminal court records from Hugh Richardson's tenure on the territorial bench (1876 - 1903), this study analyses the role of Canadian criminal law in a watershed period of social and legal transformation in and for the lives of the First Nations. The dissertation critically engages with discourses of criminalization in the historiography and calls for greater precision in the use of 'criminalization', where distinctions between criminal law and other forms of law are recognized. Specifically, it argues that offences under the Indian Act offences did not criminalize but rather 'Indianized' the First Nations. They were prosecuted as "Indians" - not as criminals - for not conforming to the behaviour required of Indians by the Indian Act. The dissertation departs from a conventional approach to criminal law, as forms of Aboriginal participation, rather than legal categories, were used to identify themes. Through ii an analysis of the criminal cases where Aboriginal people were prosecuted for criminal offences, as opposed to offences under the Indian Act, and in cases where the relationship between Government Indian policy and the administration of criminal justice can be discerned, the dissertation demonstrates the importance of attention to the specificity of different legal forms and actors and the relationship between them. The study has also found that Richardson's court could be a site of resistance to government policy by different actors, including Aboriginal people and even Richardson himself, as he did not always acquiesce to the entreaties of government officials, even as he admonished the Aboriginal people before him. Aboriginal participation in the criminal court is also analysed through court records in which Aboriginal persons were informants, victims or witnesses in criminal prosecutions. The dissertation re-situates criminal law within the law-state relation and concludes that criminal law operated in complex and contradictory ways that included the mediation as well as enforcement of relations of inequality. 111 Acknowledgements In the course of the research and writing of this dissertation I reflected more than once upon the coincidental fact that I was called to the Saskatchewan Bar in July 1976, one hundred years to the month after Hugh Richardson was appointed a Stipendiary Magistrate for the North-West Territories. I had articled in a community legal clinic that provided legal representation to low income people of the Qu'Appelle Region in south - east Saskatchewan, and after my call to the Bar, I practised criminal law for a few eventful years in Saskatchewan community legal clinics. As a law student, articling student and later as a lawyer, I represented accused persons in criminal courts in the Battleford and Qu'Appelle regions, and in the cities of Regina and Saskatoon. Most of my clients were members of First Nations and Metis communities, reflecting even then the over-policing and over- representation of Aboriginal youth and adults in the Canadian criminal justice system. My doctoral research returned me to the people and the issues I encountered as a law student and young lawyer, and to the formidable challenges that my clients encountered within and without the criminal justice system. This research is located in the records of the same level of court, derived from some of the same communities in which one hundred years later I appeared as counsel, replete with Aboriginal accused persons in custody, Mounted Police officers as prosecutors and witnesses, one lay magistrate who was a retired RCMP officer, and local spectators expressing their own forms of judgment. In the course of the writing, I have thought often of my clients and their struggles, of their dignity, humour and grace in the face of impossible odds, of my colleagues who did and iv continue to do this work in Saskatchewan, of myriad lessons it took me long to learn and longer to absorb. I am mindful that but for that experience I would not have found my way to this research project. Many people made it possible for me to undertake and complete doctoral studies. I acknowledge with great appreciation the support of the Graduate Program in Law, Faculty of Law, University of Toronto, Associate Dean David Dyzenhaus, former Assistant Dean Kaye Joachim, as well as the librarians and staff of the Bora Laskin Law Library. I wish especially to express my gratitude to Julia Hall of the Graduate Program in Law for her assistance at every stage of the process. Any student of Canadian legal history would leap at the opportunity to work with Professor Jim Phillips, and I was no exception. I can attest that his reputation as an exemplary graduate supervisor is more than well-deserved. I thank him for his collegial approach to supervision, for his rigour and commitment to excellence, and for all that he did to improve my dissertation. I also thank the scholars who gave generously of their time and expertise to serve as members of supervisory and examining committees: Professors Martha Shaffer and Allan Greer at the University of Toronto, joined at the examination by their colleague, Professor Darlene Johnston, and by External Examiner Professor Hamar Foster of the Faculty of Law, University of Victoria. I benefited enormously from their counsel. Since 1986, Osgoode Hall Law School of York University has been my intellectual and professional home. I express my deep appreciation to my Osgoode colleagues for their support and encouragement of this, my latest adventure. Professor Emeritus and former Dean Peter W. Hogg as always led by example and I express my thanks to him, as well as to Mary Condon, Joan Gilmour, Balfour Halevy, Douglas Hay, Shin Imai, Shelley Kierstead, Janet Mosher, Sidney Peck, Lisa Philipps, and of course Associate Dean Robert Wai and Dean Patrick J. Monahan. When I returned to graduate studies after many years in the legal academy, including chunks of time in academic administration, I encountered a wonderful cohort of fellow graduate students who welcomed me without question as a fellow traveller. Many colleagues gave generously of their time and opened their classes to me. I especially thank Professors Carolyn Strange, Allan Greer and Douglas Hay for allowing me to audit their graduate seminars in criminology, historiography and legal history respectively. The staff and librarians of the Law Library of Osgoode Hall Law School and of Frost Library at York University provided invaluable support and assistance for which I am most grateful. One never learns to love reading microfilm, but Hari Saugh and Wayne Mah in the Osgoode Library made it possible, and chats about sports with John Thomas made it bearable. I owe an enormous debt to the archivists and the staff of the Saskatchewan Archives Board, especially the people in the Regina office.
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