Hunger, Horses, and Government Men: Criminal Law on the Aboriginal Plains, 1870–1905 by Shelley A.M. Gavigan (review)

Among the most important public policy issues in Canada today centres on the question “What went wrong in Canadian Indian policy that led to the dismal poverty and high crime rates of most of today’s reserves?” This book takes on the issue in a well-structured and clearly written analysis of the relationship between the Plains First Nations and Canadian criminal law from 1870 to 1905 in what is now Saskatchewan and Alberta. Given the obvious importance of this issue, it is surprising that this is the first book-length legal history of the imposition of criminal law on the Aboriginal peoples of the Plains. While we now have both histories and revisionist histories of the creation of the Royal Canadian Mounted Police in this same period, the introduction of criminal law and the criminalization of First Nations peoples have not been given the same attention. One hopes that this analysis is the beginning of a rich discussion.

Good historical writing begins with a carefully researched marshalling of historical evidence from primary sources. This book is beautifully crafted history, beginning with detailed analysis of archival sources that have not been used before. Gavigan resurrects from historical notoriety stipendiary magistrate Hugh Richardson of the North-West Territories by analyzing thirty years worth of his criminal cases involving First Nations peoples. Richardson, a minor Ontario political actor, lives on in Canadian history as the judge who conducted the trial of Louis Riel and sentenced the Metis patriot to death. However, before and after that famous 1885 case, Richardson sat on the bench in thousands of other trials.

From this record, Gavigan constructs a detailed and complex analysis of the beginnings of criminal law in First Nations communities. There are analytical choices to be made here. Rather than seeing criminal law as simply being imposed on Aboriginal peoples in an effort to coerce them to conform to the demands of Canadian Indian policy, she takes a more nuanced view, arguing both that the application of criminal law was often independent of Indian Act policy, and that Aboriginal peoples used criminal law to deal with conflict in their own communities and to mediate the impact of Canadian society on their traditional ways of life. This is a complicated set of arguments, surely to be tested against all of the evidence as more research progresses, but it is well argued and clearly supported.

This analytical framework is well developed throughout the book, but it does not get in the way of the author’s narrative: this is a good read. Gavigan begins with one warrior’s legal history. Peaychew, a Cree, head man in Red Pheasant’s band living near Battleford, was one of dozens of warriors convicted of treason-felony after the North-West Rebellion in trials that were not fair. But he had already had several other contacts with the criminal law: he had filed a criminal complaint in a case involving the disappearance of his daughter. He had also been charged with fraud for a claim to treaty monies, and he was present at Treaty Six, a legal event of great significance. By the time he was forty years old in 1885, Canadian criminal law had clearly been incorporated into his life and probably had some impact on his existence as a Cree leader.

Continuing this detailed analysis of the impact of Canadian criminal law on the lives of Aboriginal peoples, Gavigan’s analysis concludes with a chapter entitled “Six Women, Six Stories,” which shows how imaginative legal historians can give life to lost cases and provide some detail about Aboriginal women’s experience of the criminal law. Caroline Gouin, a Cree woman who worked as a servant, was charged with stealing a half-sovereign gold coin from her employer. The evidence was circumstantial: she had tried to spend...