Tag Archives: feminism

Not Taking a Break from Feminism: Reflections on the Criminal Law on the Aboriginal Plains: Gavigan at the Berks

[Part II in a series.  For part I, click here]

Following the IFLS co sponsored panel at the Berks (Cutting Edge Contributions and Critical Reflections in Canadian Feminist Legal History, featuring Constance Backhouse (University of Ottawa Law), Mary Jane Mossman (Osgoode) Bettina Bradbury, York University (History at York University)  & Shelley Gavigan (Osgoode), the blog is posting texts from the talk.  Earlier this week, we posted Mary Jane Mossman’s  Gender and Professionalization Projects: Rethinking Stories of Early Women Lawyers.  Today, Osgoode’s Shelley Gavigan on….

Not Taking a Break from Feminism:  

Reflections on the Criminal Law on the Aboriginal Plains

*we have left the references intact although they are not clickable. Just scroll down to the bottom of the page for all the references. 

Introduction

My title derives its inspiration from the challenge issued by Harvard Law Professor Janet Halley in her book, Split Decisions: How and Why to Take a Break From Feminism.[1] Professor Halley is an American legal theorist whose book reflects her engagement with what she regards as a number of, fundamental flaws in feminist premises and theorizing with respect to sexuality, notably queer sexuality, and hence the importance of taking a break and to work outside feminist frameworks. When I first heard her present this work in its early stages – on this campus – I confess that I was more provoked than inspired. My research and writing since the mid 1980 has been engaged by and with the concerns of feminist theory and activism in law: the legal regulation of abortion, patriarchal relations, family forms, same sex relationships, lesbian parenting, women and welfare, together with a few forays into social justice, poverty law and clinical legal education. On the feminist spectrum, I have usually pitched my tent in the socialist feminist camp (a camp I might add that did not figure in Professor Halley’s critique of feminist bodies of thought).

For this book,[2] I spent the better part of a decade reading and working through lower criminal court records from 19th century western Canada, trying to understand the context and the events in these records, trying to find something more about the participants, trying to identify themes from within the seemingly mundane, seeking to resist the self-evident ways of organizing criminal law, not wanting to write a token chapter devoted to “women”. The more immersed I became in the court records, the more I was drawn to the ones that in different ways involved First Nations or Aboriginal participants – because I felt that I was seeing something new – or at least new to me – in these records.   Very few of these records involved women as central actors, and only slightly more than a handful involved women as accused persons. So, it is fair to ask: Have I (too) taken a break – or drifted away – from feminism? In some ways, this book does represent a break from my earlier work – both methodologically and in its focus – it represents my first real foray into archival research and into the law-state-First Nations relationship. And, to state the obvious: I am not an Aboriginal woman.

However, in as many ways, it represents a continuity of the pre-occupations and theoretical frameworks that have informed my life and my work: a commitment to interdisciplinarity, to the interrogation of the form and content of law and socio-legal relations, the contradictory nature of law and legal regulation, to historically informed analysis, and the importance of human agency. I do not suggest that this book involved the simple use or application of tried and tested research methods and theoretical frameworks to a new subject matter. On the contrary, it took me a very long time and lots of work to produce what I wanted to be a respectful analysis and representation of the experiences and agency of the First Nations people that I found in the court records. But this project was determined to move me out of my ‘feminist’ comfort zone, where I had only researched and written about expressly feminist issues. I had to sort out how to identify the relevance of gendered relations. I wanted to avoid carving out women (or the cases in which they were involved) or to write discrete chapter(s) on gender or women but rather to attempt to integrate attentiveness to gendered relations throughout the book.

I drew on a wide range of archival, other primary and historical sources while endeavouring at the same time to stay close to my data. And, it was only at the very end of the process, when I was trying to think through why – in spite of my commitment to a particular organization for the book – I found myself committed to writing a separate chapter on six accused women’s stories, that the intellectual penny dropped for me – and I realized that the stories of the six women actually advanced the argument of the book. I say in the book that it tells a little known story, relying on voices seldom heard. It is a study in low law – in the sense that Douglas Hay uses that term.[3] The research for this book derives from the court records of a lower territorial trial court – in its everyday application of ordinary criminal law – where lawyers were seldom present, especially in the early period, where accused persons appeared as prisoners, without counsel, with or without interpreters, where appeals to higher courts were not available, I could go on (and I do in the book). I should also say by way of contextualizing the work – struggling with the possibility that all scholarship is in fact autobiographical – that this research returned me to the kinds of issues and challenges that I had encountered in law as a young feminist lawyer practising criminal law on the Aboriginal Plains in the 1970s: I was a low law lawyer, I teach poverty law (inevitably low law) and I am a legal historian of low law.

Lessons From Feminism?

(i)The Importance of Method in How a Story is Told  I accept completely the insistence that legal historical research into court records work with broader contexts and take a “broad view” of the evidence in court records.[4]   This I attempted to do. Inspired by the insights of feminist legal scholarship, I departed from conventional legal methods to identify and analyze this complex relationship. I decided not to use the analytic and substantive categories of criminal law (e.g. offences against property, offences against the person) as its organizing principle. I was interested in taking an approach that would allow me to identify the relations (familial, property, employment) in the context of the alleged offences contained in the criminal court files. However, the question of how to find, identify, and interpret forms of participation and treatment of subordinated peoples, such as Aboriginal peoples of the Canadian Plains, in the criminal processes required another methodological decision.   I looked beyond the dyadic relationship between the state and the accused in orderto capture a wider spectrum of Aboriginal involvement and participation in the criminal law. And, when I did this – when I moved away from both a preoccupation with particular kinds of offences and a traditional focus on the accused – I found more Aboriginal people in the court records – informants, complainants, interpreters, and witnesses, in addition to accused persons – and notably more women. But I had to read all the records to do this. And, finally, I suppose the important point I want to make here is that even though I was not engaged in a project that might easily, if at all, be characterized as feminist, I never stopped bringing a feminist lens and a feminist sensibility to the research.

 

(ii) Adjusting the Research Questions As I worked my way through the historiography, wrestling in particular with two dominant themes in the literature(criminalization and sexualization) I was struck by a question posed by Jean Barman in a piece in which she analyzed the racialized and sexualized construction of Aboriginal women in 19th century British Columbia, question that raises both epistemological and methodological issues: “… what happens when we turn the past on its head and make our reference point Aboriginal women instead of Aboriginal men?”[5] Historians interested in accepting Barman’s challenge face methodological hurdles not least of which is the fact that the names of First Nations women and children are often ‘hidden from history’[6] or, as Hugh Dempsey has observed in reference to the lost name of the mother of the important Cree leader, Big Bear, they have been “forgotten in the mistiness of the past”.[7]   The women of the First Nations are difficult to locate,their voices almost indiscernible, in the legal history of the Plains. Val Napoleon captures this concern when she argues of the context of aboriginal rights jurisprudence, “it appears that indigenous women have been erased off both the land and the legal landscape.”[8] Of the many methodological and interpretative challenges in historical work concerning Aboriginal people, perhaps, as Sarah Carter has observed, none is more important than the dearth of “first hand voices of the women of this era.”[9] We legal historians are heavily reliant on reported cases, and on official records and documents that were produced by the police and other government men.[10] Not many women’s hands or voices to be found there. Historians of oppressed, marginalized and colonized women -such as Constance Backhouse, Sarah Carter and Joan Sangster to cite but three in the Canadian context – are thus necessarily a resourceful and creative lot, because they are writing about people whom conventional legal and social ‘history’ has ignored or misinterpreted. Backhouse’s case studies document Aboriginal women’s victimization, agency, and resistance; Carter and Sangster make the important point that in these official state records, together with those of the religious and missionary records, the voices and perspectives that are recorded are those of the ‘observers’ – not the Aboriginal women themselves. That said, it seems to me that, paradoxically, the lower court records I study may offer a small rejoinder to ‘observers’, and to the silences, erasures, and dominant images that one finds in the historical or contemporary official documents, records, the media, and so on. I do not suggest that the voices and interpreted words of Aboriginal women in the depositions before the justices of the peace and trial transcripts were unmediated by the context and often involuntary circumstances in which they were spoken and recorded. But, as John Beattie has observed in relation to 18th century court records,[11] while such recorded words surely cannot be taken at face value, they do contain valuable information.

 

Some of the Voices I Found: Six (Women) Prisoners’ Stories

Between 1876 and 1903, only six Aboriginal women and one girl, Julia Cote, (who was charged with stealing the clothes she was wearing when she and Alex Bone ran away from the Regina Industrial School), appeared as accused persons and prisoners before Hugh Richardson, the longest serving and most experienced magistrate and judge in the Canadian North-West Territories.   These six women and one girl represent about 1% of all accused persons (589) and 5% of all Aboriginal accused persons (136) who appeared in Judge Richardson’s courts over the period. They are not the sexualized women that one encounters in some of the historiography; their ‘crimes’ such as they were, reflected the social, material and economic realities of their hard everyday lives. Four women (Caroline Gouin, Margaret Favel, Bone Child, and Marie Martin Daniel) were charged with forms of theft (of white people’s property), mostly small items or (in Caroline’s case) money from her employer’s pocket book. Betsy Horsefall was charged with horse theft – a serious offence – even though it involved a charge that she had stolen her own pony. Scholastique Cardinal was charged with murder and concealment of birth in the death of her newborn infant. The court records of these criminal prosecutions indicate that four women were convicted, and received deferred or suspended sentences; there is no disposition indicated in two cases, and in Horsefall’s case, the prosecution in the end did not proceed. Although the voices of Scholastique and Bone Child are not heard, and even Betsy’s voice is muted, it seems to me that Caroline and Margaret were not intimidated by the legal process or by their status as prisoners such that they did not to participate. They challenged their accusers, and in their challenges can be seen very clear theories of their own defences. And, even without benefit of counsel, they achieved some measure of success. There is no record that Caroline was ever convicted of the theft of Mr. McDougall’s coins, and Margaret Favel – accused of stealing a veritable shopping list of a school teacher’s personal property – in the end was convicted of stealing one solitary silver spoon.

I have been asked by a First Nations historian why I included a chapter on this handful of women. Perhaps he and others wonder if their numbers or stories are of any consequence. Here’s what I have to say: These women’s stories demonstrate the larger context and new relations that had arrived: the sanctity of white men’s property, new laws that changed how property ownership could be asserted, and new, coercive, forms of educating and transforming First Nations children into Indian children: Betsy Horsefall’s lost horse and the transformation of property relations through ordinances administered and enforced through low law officials; Scholastique Cardinal’s hidden pregnancy, and the ongoing role of the community in the new legal order; Margaret Favel and Marie Martin Daniel, on white man’s property, and the importance of the Plain; Caroline Gouin’s industry and employment, and her agency and advocacy in court; and, not least the casually enforced anonymity of the woman alleged to have stolen curtains and bells from a settler’s bachelor shack. Their stories are not a side story, and their numbers serve to remind us that the criminal law was not necessarily the first or most important means of subjugating the First Nations of the Plains in the period. And in the end, I decided that if I did not write about these women, I did not know who would. What they had to say and what they contributed to the development of our knowledge of the operation of criminal law in Western Canada is important.

[1] (Princeton, NJ: Princeton University Press, 2006). Professor Halley’s analysis and argument are developed through her engagement with different strands of feminist theory and thought (notably but not exclusively with what she characterizes as ‘power feminism’) throughout the book.

[2] Shelley AM Gavigan, Hunger, Horses, and Government Men: Criminal Law on the Aboriginal Plains, 1870 – 1905 (Vancouver: UBC Press & The Osgoode Society for Canadian Legal History, 2012).

[3] Douglas Hay, “Time, Inequality, and Law’s Violence” in Austin Sarat & Thomas R. Kearns, eds Law´s Violence (Ann Arbor: University of Michigan Press, 1995) 141.

[4] Stephen Robertson, “What’s Law Got to Do with It? Legal Records and Sexual Histories” (2005) 12 J Hist Sexuality 161 at 171.

[5] Jean Barman, “Taming Aboriginal Sexuality: Gender, Power, and Race in British Columbia” in Mary Ellen Kelm & Lorna Townsend, eds In the Days of Our Grandmothers: A Reader in Aboriginal Women’s History in Canada (Toronto: University of Toronto Press, 206) 270 at 271.

[6] To borrow from Sheila Rowbotham’s early contribution to women’s history: Sheila Rowbotham, Hidden From History: Three Hundred Years of Women’s Oppression and the Fight Against It (Middlesex: Penguin Books, 1975).

[7] Hugh A Dempsey, Big Bear: The End of Freedom (Vancouver: Douglas & McIntyre) 11.

[8] Val Napoleon, “Aboriginal Discourse: Gender, Identity, and Community” in Benjamin J. Richardson, Shin Imai, and Kent McNeil, eds. Indigenous Peoples and the Law: Comparative and Critical Perspectives (Oxford: Hart Publishing, 2009) 233 at 235.

[9]Sarah Carter, “First Nations Women of Prairie Canada in the Early Reserve Years, the 1870s to 1920: A Preliminary Inquiry” in Christine Miller & Patricia Chuchryk, with Marie Smallface Marule, Brenda Manyfingers, & Cheryl Deering, eds Women of the First Nations: Power, Wisdom and Strength (Winnipeg: University of Manitoba Press, 1996) 51 at 55.

[10]See Franca Iacovetta and Wendy Mitchinson, eds, On the Case: Explorations in Social History (Toronto: University of Toronto Press, 1998).

[11] John Beattie, Crime and the Courts in England, 1600 – 1800 (Princeton: Princeton University Press, 1986) at 21-22.

©Shelley AM Gavigan 2014

Osgoode Hall Law School

York University

Toronto, Ontario

M3J 1P3

(sgavigan@osgoode.yorku.ca)

Notes for Presentation at

Cutting Edge Contributions and Critical Reflections in

Canadian Feminist Legal History

Berkshire Conference on the History of Women

Toronto, Ontario, Canada

May 22 – 25 2014

 

'what it says on the tin': Feminism Then and Now

this+is+what+feminism+looks+likeh/t to Sarah Keenan (former IFLS visitor now on Faculty at SOAS) for the text of Camille Kumar’s talk and Sarah’s brief and pointed introduction.  In the digital “pages” of Feminists@Law.  A short read worth your time.

For feminism to be what it says on the tin, it must be continually evolving, shifting and diversifying; where patriarchy seeks to enforce authority, feminism seeks to declare privilege; where patriarchy seeks to create a single ‘rationalised’ truth and repress all else, feminism seeks to simultaneously hold many truths and be the witness bearer to secrets; and where patriarchy seeks to divide, subjugate and conquer, feminism seeks connection, equality and collective struggle.

 

via Feminism Then and Now | Kumar | feminists@law.

Osgoode Feminist Collective (previously known as: Osgoode women's caucus)

Name change: the Osgoode Women’s Caucus is now the Osgoode Feminist Collective (link is to their Facebook page).  Lest you thought that younger women were avoiding the F word en masse, pending rebranding.  Why do people think this?

OFC (love the new acronym almost as much as the new name? i do) announced their name change last week.  If you know or are an alumna of this long lived and fierce organization, what do you think?  Here are a few snippets from the announcement at last week’s feminist tea, with thanks to the current co chairs.

In our efforts to bring a feminist voice to Osgoode and the wider York Campus, Women’s Caucus attempts to work within an anti-oppressive framework. For the past couple of years, we have been discussing the direction of our group and how this relates to our name.  We thought improvements could be made. We would like our name to be more reflective of the anti-oppressive politics and multiple feminisms that the our members embrace, as well as recognizing that feminism is practiced and welcoming to people of all genders.

We narrowed down our choices and recently asked our members to vote. As a result, we are happy to announce that with an overwhelming majority, we have decided to change our name to “Osgoode Feminist Collective.”

The October tradition of the Feminist Tea has celebrated person’s day. Some of you who know me may know that I’ve long had a problem with Person’s Day.  See here for some past rants (i know – the money changed).  The Osgoode Feminist Collective had a set of slides running in the background at the tea to consider the complicated meanings of Person’s Day.  These remind me of my general preference for nuanced critical thought over ranting….

It’s been over 80 years since women in Canada were declared qualified persons, yet as the daughter of immigrant parents, it feels far less distant. The memory of my mother’s pride on her first day as an eligible voter, after 10 years of contributing to her Canadian community, is very close indeed. This memory is one that I reflect on and reminds me why the battle for equality is not yet over.

Persons Day reminds me that we are all complex beings, with complicated relationships to feminism and history. It reminds me of the importance of being able to talk about and through those complicated relationships in order for us to respectfully commemorate the hard work of the five women in Edwards. But also so that we recognize the many other racialized women who had been organizing around their rights as women and racialized persons then, and who continue to organize and advocate for their communities today.

Edwards is an example of how only 5 determined women were able to make such momentous changes, despite the great resistance they faced. Such examples of strength remain an encouragement for current battles.

My gratitude to the women of Women’s Caucus’ past and Osgoode Feminist Collective’s present and future and all the inspiration, knowledge and support they have given.

A set of links offered without comment. On Feminism, the word and the creed.

First msmagazine.com is reporting that more than half of 2012 women voters identify as feminists.  And: “…the study found that women of color are more likely to call themselves feminists. Almost three quarters of Latin-American women and 66% of African American female voters self-identify as feminists.”  (i know, i know.  You want to know more about the polling method – can’t help you there, i don’t have a subscription and I couldn’t find a full report of the poll elsewhere.  I’m sure we’ll see it eventually,  because there aren’t many people who aren’t pretty surprised by this poll – whether happily or unhappily).

and then from the Ontario Bar Association (click for more on the news below):

The Feminist Legal Analysis Section of the OBA has changed its name to “Women Lawyers’ Forum”. The first group in the OBA/CBA to focus on women is celebrating its 20th anniversary and moving forward as part of the national women’s conference of the CBA.

and then, from  babesonbaystreet.com (the blogger and author, Janet Graham, has keynoted networking events for women law students….) this was rather unexpected:

I am a Feminist!! I am a feminist!! There I said it!! Let’s face it, for many, it’s the real “f” word!!  For me, declaring myself to be a feminist simply means I believe in equal rights and opportunities for all, regardless of sex, race, politics etc. What makes this belief so scary or offensive or so hard to acknowledge!!

 

h/t Mary Stokes for the OBA info.

 

"I literally couldn't give a…": Feminist fight on the web.

You don’t need an MA in gender studies to know that race matters to feminism | Chitra Nagarajan and Lola Okolosie | Comment is free | guardian.co.uk:

 

 

In their article “In defence of Caitlin Moran and populist feminism” , Rhiannon and Holly from the Vagenda magazine employ a heady mix of biographical context and anti-intellectualism to defend the indefensible: Moran’s dismissal of the representation of black women. They write that “feminism is, and to an extent always has been, a white, middle class movement”, which must be resuscitated from the “dust and the stuffiness” it has been cocooned within by reinventing itself. To do this the movement has to silence its most “academic [which] is almost incomprehensible” and express “its ideals in a way that thousands of women understand and identify with”.

Nagarajan and Okolosie refer to this piece from the Vagenda Team, in the New Statesman

It almost seems as though some educated women want to keep feminism for themselves, cloak it in esoteric theory and hide it under their mattresses, safe and warm beneath the duck down duvet. As long as that happens, though, the lives of many women and men in this country will remain the same. Feminism should not be a discipline far removed from the lives of ordinary people, but part of a larger social justice movement that strives to achieve a better life for everyone. Caitlin Moran may not be perfect, but she has come closest thus far. In the last few weeks some have been bandying about the oft-quoted phrase “my feminism will be intersectional or it will be bullshit.” We would suggest that anyone with an interest in genuine equality for all adapt that phrase to “my feminism will be comprehensible or it will be bullshit.”

Rhiannon and Holly wrote that Vagenda piece as a defence of Caitlin Moran (author of How to Be a Woman, columnist).  Assigned to interview Lena Dunham, whose show “Girls” has been both much feted for showing something real about the lives of young women and much critiqued for being relentlessly white, Moran was tweeted at by someone asking whether she addressed that lack in the interview.  She tweeted back, “Nope. I literally couldn’t give a shit about it” thus unleashing (come on, it’s the internet, what else could be unleashed) mainly a sh*tstorm but also some thoughtful commentary (see Guardian story which opens this post as one example).

Here‘s Jezebel on the story, here‘s Bitch Magazine.

One of the things I find really curious about the Vagenda “defence” (which they have of course had to defend through twitter now) is that their argument in some ways closely tracks the arguments made in Feminism for Real: Deconstructing the Academic Industrial Complex of Feminism edited by Jessica Yee (now Danforth).  Until it diametrically diverges.  That book (see here for an old IFLS post) also took aim at the academy – but from a very different position.  Yee and her co authors were largely women of colour, deeply concerned about the silencing of particular experiences and concerns by academic feminism, not just the academy’s more general tendency to either exclude or pirate experiences into bodies of work made inaccessible to the subjects of study.

I don’t think the  Vagenda argument has much to it.  They slip between class and race in both their original piece and their defences, and to the extent that they are claiming that intersectionality is incomprehensible, I don’t think they can really run with that…it’s not that hard to understand. Operationalise, detail, capture, yes, but understanding the basic concept?    Please.

So that’s the story.  In other news, British papers are full of articles about the netmum’s survey (if you’re reading this blog, let me warn you that clicking through will probably really piss you off) that found feminism irrelevant and used FeMEnism to “reflect women’s personal choice”. Argh.  See here, here and here for examples of feminist responses.