Scholars often accept without question that Canada’s Indian Act (1876) criminalized First Nations. In this illuminating book, Shelley Gavigan argues that the notion of criminalization captures neither the complexities of Aboriginal participation in the courts nor the significance of the Indian Act as a form of law.
Gavigan uses records of ordinary cases from the lower courts and insights from critical criminology and traditional legal history to interrogate state formation and criminal law in the Saskatchewan region of the North-West Territories between 1870 and 1905. By focusing on Aboriginal people’s participation in the courts rather than on narrow legal categories such as “the state” and “the accused,” Gavigan allows Aboriginal defendants, witnesses, and informants to emerge in vivid detail and tell the story in their own terms. Their experiences -- captured in court files, police and penitentiary records, and newspaper accounts -- reveal that the criminal law and the Indian Act operated in complex and contradictory ways.
By showing that the criminal courts were as likely to include acts of mediation as coercion, Hunger, Horses, and Government Men takes the study of criminal law and criminalization in a new direction, one that challenges conventional wisdom and popular images of relations of power and discrimination in the courts.
This book will be of interest to scholars and students of law, legal history, criminology, sociology, and Native studies and anyone interested in Canadian and prairie history.
- 2013, Winner - Clio Prize for the Prairies, Canadian Historical Association
- 2013, Short-listed - CLSA Book Prize, Canadian Law and Society Association
- 2013, Short-listed - The Sir John A. Macdonald Prize, Canadian Historical Association
An enormously interesting and comprehensive read that does a great deal to provide the legal treatise with the respect that it should be afforded. It is an important book for anybody interested not only in legal history but also its “kissing cousins” such as social and political history. Legal history of this sort is something that has, unfortunately, received short shrift, so it is heartening to find such a well-written and well-edited riposte to those who might feel that the legal treatise is not worthy of the scrutiny of some of the best legal minds out there.
This highly original and compelling study of the complex relationship between Plains First Nations and Canadian criminal law draws on and carefully evaluates a rich but overlooked source, the “low law” of the lower courts where Aboriginal men and women appeared before magistrates not just as the accused, but as informants, witnesses, claimants, and interpreters. These records reveal not only how criminal law was used to punish and discipline, but how Aboriginal people used the courts to redress injuries and wrong. Gavigan revisits, interrogates, and contextualizes the “criminalization” of First Nations. Drawing on new evidence and innovative applications of theory, and advancing fresh interpretations, this book challenges conventional wisdom and assumptions. It is a captivating study that provides a unique window on this era of dramatic transformation in the Canadian West, and it is also a significant and sophisticated contribution to our understanding of law and colonialism.
One of the measures of Canada’s tortured relations with its First Nations peoples is the over-criminalization of Aboriginal peoples. This book is a long time coming, the first detailed analysis of the historical roots of the application of criminal law to the prairie peoples at the time of Canada’s formation. Gavigan writes this story with clarity, a compelling analytical framework, and great attention to historical detail. It is not the expected history, but a highly nuanced narrative that gives full respect to the difficulties that Aboriginal peoples faced as Canada made them subject to the Queen’s law.
Based on a compelling familiarity with the literature and offering a subtle reading of the interplay between First Nations, Métis, and “low law” on the Canadian Prairies, Shelley Gavigan offers a thoughtful and energetic argument challenging the criminalization theme found in recent scholarship. Dispensing with simple polarities, Gavigan raises the interpretative stakes for scholars examining the legal histories of the prairie west and its varied peoples. Her evidence and interpretations simply cannot be ignored.
Introduction: One Warrior’s Legal History
1 Legally Framing the Plains and the First Nations
2 “Of Course No One Saw Them”: Aboriginal Accused in the Criminal Court
3 “Prisoner Never Gave Me Anything for What He Done”: Aboriginal Voices in the Criminal Court
4 “Make a Better Indian of Him”: Indian Policy and the Criminal Court
5 Six Women, Six Stories
Afterword: A Methodological Note on Sources and Data
Crossracial Encounters and Juridical Truths in British Columbia, 1871-1921
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