[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.
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. 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, 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. 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. 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?” 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’ 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”. 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.” 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.” 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. 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, 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.
 (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.
 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).
 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.
 Stephen Robertson, “What’s Law Got to Do with It? Legal Records and Sexual Histories” (2005) 12 J Hist Sexuality 161 at 171.
 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.
 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).
 Hugh A Dempsey, Big Bear: The End of Freedom (Vancouver: Douglas & McIntyre) 11.
 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.
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.
See Franca Iacovetta and Wendy Mitchinson, eds, On the Case: Explorations in Social History (Toronto: University of Toronto Press, 1998).
 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
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