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Heart of Ice: Indigenous Defendants and Colonial Law in the Canadian North-West

  • Catherine L. Evans
Abstract

In 1885, in the midst of the North-West Resistance in which Indigenous people took up arms against the colonial Canadian state, three Cree men executed an elderly Cree woman. At their trial for murder, the defendants were found guilty. They avoided execution because colonial authorities became convinced that they believed that their victim was a wendigo, a cannibal spirit. Killing a wendigo was justified under Cree law and so, argued one judge, the defendants lacked the mens rea necessary to sustain a murder conviction. The history of this case shows the limits of colonial legal jurisdiction and sovereignty. Scarce resources, hostile territory and Indigenous resistance hampered the colonial state's efforts to consolidate its legal control over the Canadian frontier. This essay notes the importance of these forces, but also argues that common law jurisprudence itself could impair the ability of the state to hold Indigenous defendants criminally responsible. Colonial officials regularly invoked the idea that Indigenous people adhered to different legal and normative orders in order to illustrate their supposed inferiority. However, this official recognition of the legal pluralism of the North-West could undermine a defendant's responsibility and cut against efforts to assert the exclusive jurisdiction of Canadian criminal law.

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catherine.evans@utoronto.ca
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She thanks Princeton University; the Joint Center for History and Economics at Harvard University and Magdalene College, Cambridge; the American Society for Legal History; and the members of the Preyer Prize selection committee for their support and encouragement. She also thanks Hendrik Hartog, Michael Witgen, Gwendolyn Gordon, Padraic X. Scanlan, Thomas A. Green, and the three anonymous reviewers for Law and History Review whose comments have shaped this article and its many earlier instantiations.

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1. Terminology can be complicated when describing Aboriginal Canadian communities. In general, both Métis (people of mixed European and First Nations heritage) and groups sometimes known as “Indian” can be accurately described as Aboriginal or Indigenous. First Nations is often preferred today when referring to “Indian” groups in Canada, although First Nations does not, usually, include the Métis. Here, I have referred to both the Métis and the Cree as Indigenous and Aboriginal, but have restricted “First Nations” to the Cree and Ojibwe. For more on terminology, see: Hedican, Edward J., Applied Anthropology in Canada: Understanding Aboriginal Issues (Toronto: University of Toronto Press, 2008), 58.

2. Colonial administrators and other Euro-Canadians consistently referred to the parties in question in this case as Cree. To the degree that the colonial archives preserve their testimony, it seems that the defendants and witnesses in this and related cases involving members of the same community also identified themselves as Cree. There is a close relationship between the Cree and Ojibwe peoples of the Canadian Prairies, whose identities Michael Witgen has described as “interlocking” and fluid. Witgen writes that Cree identity was “situational,” especially in the early colonial period. See: Witgen, Michael, An Infinity of Nations: How the Native New World Shaped Early North America (Philadelphia: University of Pennsylvania Press, 2011), 94. The Ojibwe belong to the larger sociocultural Anishinaabe group of nations. Reflecting the connection between the Cree and Anishinaabek, scholars writing about Indigenous peoples in the North-West Territories often refer to a common, “Ojibwe-Cree” or “Northern Algonkian” identity. Therefore, although I have used “Cree” throughout to describe the ethnic and linguistic heritage of the Indigenous defendants in this article, many of the scholars whose work I rely on here variously describe themselves as experts in Cree, Ojibwe, or Anishinaabe history and culture.

3. Stony Mountain Penitentiary Admissions Book, 1885, Library and Archives Canada (hereafter LAC) RG 13, T-11095. The defendants' and the victim's Cree names were given these spellings in the information filed by Alexander Stewart, the Chief of Police, which became part of their capital case file. However, English renderings of Cree names varied widely. In this article, I have used people's Indigenous names where possible, with their English names in parentheses in the first instance. I also use Indigenous names in the notes except in my references to archival documents that are organized using parties' English names. There are no other names used in the archive for Charles Ducharme except for Charlebois. See: Ducharme Capital Case File, LAC RG 13, vol. 1423, file 207A (hereafter, Ducharme Capital Case File). Other cases involving Wahsahgamass and Wawasehowein in the archive are: R v Dressy Man (1887), LAC RG 18, vol. 1075, in which Wawasehowein was accused of killing a North-West Mounted Police officer at Frog Lake; and Wahsahgamass' 1918 trial for another murder, this one allegedly committed at the Saddle Lake Agency. See: Re-Trial of Bright Eyes for Murder, LAC RG 10, vol. 7469, file 19118–3.

4. Testimony of François Dufresne, Ducharme Capital Case File.

5. Rouleau's Notes of Evidence, forwarded to the minister of justice on September 28, 1885, Ducharme Capital Case File.

6. Saskatchewan Herald, Vol.7, No. 36, September 28, 1885, in Clink, William L., ed., Battleford Beleaguered: 1885, The Story of the Riel Uprising from the Columns of the Saskatchewan Herald (Willowdale, Ontario: W.L. Clink, 1984), 5758. The jurors in the trial of Ducharme, Wawasehowein, and Wahsahgamass were Charles Phipps, Charles Atherson, Hugh Cinnamon, George H. Clouston, John Connor, and Hartley Gisbourne. See: Ibid., 57.

7. Rouleau's Notes of Evidence, forwarded to the minister of justice on September 28, 1885, Ducharme Capital Case File.

8. There are several alternative forms and spellings of wendigo used by various First Nations peoples. Common variants include witiko, witigo, windigo, wintigo, and wittikow. Variations on the Cree form, wihtikow, spelled witigo, are generally used in the Ducharme capital case file. However, I have adopted the most common English form—wendigo—throughout this article. On the linguistic origins of the term wendigo, see: Brightman, Robert A., “The Windigo in the Material World,” Ethnohistory 35, no. 4 (October 1, 1988): 337–79.

9. Recent histories of the relationship between British colonial and Indigenous law in the settler empire include: Ford, Lisa, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788–1836 (Cambridge, MA: Harvard University Press, 2010); Gavigan, Shelley A. M., Hunger, Horses, and Government Men: Criminal Law on the Aboriginal Plains, 1870–1905, Law & Society (Vancouver: University of British Columbia Press, 2012); and Dorsett, Shaunnagh and McLaren, John, Legal Histories of the British Empire: Laws, Engagements and Legacies (London: Routledge, 2014).

10. See, for example: Benton, Lauren, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (Cambridge: Cambridge University Press, 2002); Tomlins, Christopher L. and Mann, Bruce H., The Many Legalities of Early America (Durham: University of North Carolina Press Books, 2012); and Benton, Lauren and Ross, Richard J., Legal Pluralism and Empires, 1500–1850 (New York: New York University Press, 2013). Interestingly, not all contemporary commentators are convinced that Indigenous law survived the colonial encounter. Scholarly arguments for the survival and vitality of Canadian Indigenous legal traditions are still necessary, and important. See: Borrows, John, Canada's Indigenous Constitution (Toronto: University of Toronto Press, 2010).

11. Rouleau to Thompson, September 28, 1885, Ducharme Capital Case File.

12. Loo, Tina, “Savage Mercy: Native Culture and the Modification of Capital Punishment in Nineteenth-Century British Columbia,” in Qualities of Mercy: Justice, Punishment, and Discretion, ed. Strange, Carolyn (Vancouver: University of British Columbia Press, 1996), 111. Recent literature on the “cultural defense” includes: Claes, Erik and Vrielink, Jogchum, “Cultural Defence and Societal Dynamics,” in Multicultural Jurisprudence: Comparative Perspectives on the Cultural Defense, ed. Foblets, Marie-Claire and Renteln, Alison Dundes (Portland, OR: Hart Publishing, 2009), 301–19; Kanter, Andrew M., “The Yenaldlooshi in Court and the Killing of a Witch: The Case for an Indian Cultural Defense,” Southern California Interdisciplinary Law Journal 4 (1995): 411454; D’Hondt, Sigurd, “The Cultural Defense as Courtroom Drama: The Enactment of Identity, Sameness, and Difference in Criminal Trial Discourse,” Law & Social Inquiry 35 (2010): 6798; Goel, R., “Can I Call Kimura Crazy—Ethical Tensions in the Cultural Defense?,” Seattle Journal of Social Justice 3 (2004): 443; Goldstein, Taryn F., “Cultural Conflicts in Court: Should the American Criminal Justice System Formally Recognize a Cultural Defense,” Dickinson Law Review 99 (1994): 141–68; Fournier, Pascale, “The Ghettoisation of Difference in Canada: Rape by Culture and the Danger of a Cultural Defence in Criminal Law Trials,” Manitoba Law Journal 29 (2002): 81; Renteln, Alison Dundes, The Cultural Defense (New York: Oxford University Press, 2004); Woo, Deborah, “Cultural ‘Anomalies’ and Cultural Defenses: Towards an Integrated Theory of Homicide and Suicide,” International Journal of the Sociology of Law 32 (2004): 279302; and Wong, Charmaine, “Good Intentions, Troublesome Applications: The Cultural Defence and Other Uses of Cultural Evidence in Canada,” Criminal Law Quarterly 42 (1999): 367–96.

13. Loo, “Savage Mercy,” 110.

14. Benton, Law and Colonial Cultures, 198–99. The case was R v Mickey and Muscle [1835] NSWSupC 5.

15. The British preoccupation with responsibility and its complex interactions with developments in anthropology, natural science, and, especially, psychiatry also extended to the United States. On the efforts of nineteenth-century American jurists to square common law notions of responsibility and determinism, see: Blumenthal, Susanna L., Law and the Modern Mind: Consciousness and Responsibility in American Legal Culture (Cambridge, MA: Harvard University Press, 2016).

16. This harmony was by no means complete, given the defendants' criminal sentences and prison terms.

17. Merry, Sally Engle, “Legal Pluralism,” Law & Society Review 22 (1988): 891.

18. Rouleau, like other lawyers in the British Empire, was acutely conscious of his participation in a dense professional network that extended to Britain and to other colonies. Recent British imperial scholarship that has emphasized professional and other networks includes: Laidlaw, Zoë, Colonial Connections, 1815–45: Patronage, the Information Revolution and Colonial Government (Manchester: Manchester University Press, 2005); Colley, Linda, Captives: Britain, Empire and the World, 1600–1850 (New York: Anchor Books, 2004); Colley, Linda, The Ordeal of Elizabeth Marsh: A Woman in World History (New York: Pantheon Books, 2007); Rothschild, Emma, The Inner Life of Empires: An Eighteenth-Century History (Princeton: Princeton University Press, 2011); Lambert, David and Lester, Alan, eds., Colonial Lives Across the British Empire: Imperial Careering in the Long Nineteenth Century (Cambridge: Cambridge University Press, 2006); and Ogborn, Miles, Global Lives: Britain and the World, 1550–1800 (Cambridge: Cambridge University Press, 2008).

19. Unlike the subject of, for example: Colley, The Ordeal of Elizabeth Marsh.

20. For an example of a microhistorical approach to a traveller and polymath, as well as a critique of some trends in the writing of global microhistories, see: Ghobrial, John-Paul A., “The Secret Life of Elias of Babylon and the Uses of Global Microhistory,” Past & Present 222 (2014): 5193.

21. Haldane, Richard, “The Work for the Empire of the Judicial Committee of the Privy Council,” The Cambridge Law Journal 1 (1922): 143–55.

22. The terminology is in flux with respect to the Resistance, which is also referred to as the North-West Rebellion, the 1885 Rebellion, and the Riel Rebellion. The University of Regina's Encyclopedia of Saskatchewan uses “North-West Resistance.” See: Mein, Stewart, “North-West Resistance,” in The Encyclopedia of Saskatchewan (Regina: University of Regina and Canadian Plains Research Center, 2007). The Gabriel Dumont Institute, a Métis educational, employment, and cultural institute based in Saskatchewan, recommends “Resistance” rather than “Rebellion.” See: 1885: Rebellion or Resistance?Back to Batoche (Saskatoon: Gabriel Dumont Institute, 2005–6).

23. Karamanski, Theodore J., Fur Trade and Exploration: Opening the Far Northwest, 1821–1852 (Norman: University of Oklahoma Press, 1988), 240. Pambrun's father was Pierre Chrysologue Pambrun Sr. See: Allaire, Gratien, “Pambrun, Pierre-Chrysologue,” in Dictionary of Canadian Biography, vol. 7 (Toronto: University of Toronto/Université Laval, 2003).

24. Saskatchewan Herald, Vol.7, No. 36, September 28, 1885, in Battleford Beleaguered, 56–58.

25. George Wheelock Burbidge to Alexander Campbell, August 10, 1885, LAC RG 13, vol. 2132, part 15.

26. Martin, Ged, Britain and the Origins of Canadian Confederation, 1837–67 (Vancouver: University of British Columbia Press, 2011), 1, 8.

27. Gavigan, Hunger, Horses, and Government Men, 28.

28. Tobias, John L., “Canada's Subjugation of the Plains Cree, 1879–1885,” Canadian Historical Review 64 (1983): 526.; and Asch, Michael, Aboriginal and Treaty Rights in Canada (Vancouver: University of British Columbia Press, 2011), 184.

29. MacDonald to Henry Herbert, the fourth Earl of Carnarvon, April 14, 1870, TNA Add MS 60803, Carnarvon Papers.

30. The Métis described in this article were, like Louis Riel, French-speaking and Catholic. However, there were other Métis groups in the nineteenth century of Scottish and English heritage, many of whom were Protestant Christians and spoke English. Hedican, Applied Anthropology in Canada, 7–8.

31. MacDonald to Carnarvon, April 14, 1870, TNA, Add MS 60803, Carnarvon Papers.

32. On economic booms in the settler colonies, see: Belich, James, Replenishing the Earth: The Settler Revolution and the Rise of the Anglo-World, 1783–1939 (Oxford: Oxford University Press, 2009).

33. Tobias, “Canada's Subjugation of the Plains Cree, 1879–1885,” 521.

34. For a succinct account of the changes to the legal framework of the Northwest Territories during this period, see: Gavigan, Hunger, Horses, and Government Men, 26–33.

35. For an exploration of the Cree perspective on Treaty 6, see: McLeod, Neal, Cree Narrative Memory: From Treaties to Contemporary Times (Vancouver: Purich Publishers, 2007), 3537.

36. Rudy Wiebe, “Mistahimaskwa,” in Dictionary of Canadian Biography, vol. 11.

37. Report of Hayter Reed, sent to the Indian commissioner, December 28, 1883, LAC RG 10, vol. 3668, file 10644.

38. Fort Pitt Historical Society, Fort Pitt History Unfolding: History of the Hudson Bay Post and the School Districts of White Eagle, Harlan, Frenchman Butte, Rock Bottom, Onion Lake, Fort Pitt (Fort Pitt: Fort Pitt Historical Society, 1985), 37.

39. Tobias, “Canada's Subjugation of the Plains Cree,” 536.

40. Sylvia M. Van Kirk, “Kapapamahchakwew,” in Dictionary of Canadian Biography, vol. 11.

41. Wiebe, “Mistahimaskwa.”

42. The three survivors were William Bleasdell Cameron, an HBC trader, and two white women, Theresa Gowanlock and Theresa Delaney, whose husbands were killed in the attack. Although the victims of the assault on Frog Lake are often described as white settlers, it seems that at least two were of mixed Indigenous and Euro-Canadian ancestry. Indian Agent Thomas Quinn was, according to one historian, part Sioux. Another victim, carpenter Charles Gouin, was also apparently part Sioux. Norman Fergus Black, History of Saskatchewan and the Old North West (Regina: North West Historical Company, 1913), 288–89.

43. Fort Pitt Historical Society, Fort Pitt History Unfolding, 3.

44. Ibid., 43.

45. Hildebrandt, Walter, Views from Fort Battleford: Constructed Visions of an Anglo-Canadian West (Regina: Canadian Plains Research Centre, 2008), 73. Hildebrandt describes how, following the end of the siege of Fort Pitt, the twenty-three surviving NWMP officers took refuge at Fort Battleford.

46. The prisoners of the Cree either escaped or were released as Canadian forces closed in on them between the end of May and mid-June of 1885. Mistahimaskwa surrendered to the NWMP in June. Fort Pitt Historical Society, Fort Pitt History Unfolding, 48.

47. Ibid., 47.

48. Crown Prosecutor D.L. Scott to the officer commissioner NWMP, January 26 1887 (copy), LAC RG 18, vol. 1075, R v Dressy Man.

49. Hildebrandt, Views from Fort Battleford, 19–20.

50. Census of Part of the North-West Territories of Canada, August, 1885,” Journal of the Statistical Society of London 49 (1886): 476.

51. Annual Report of the Commissioner of the North-West Mounted Police Force, Dominion of Canada Sessional Papers, vol. 6 (1886; 8a), 13. At the end of 1884, the NWMP had a total force of 557. See: Annual Report of the Commissioner of the North-West Mounted Police Force, Dominion of Canada Sessional Papers, vol. 13 (1885; 153a), 66. In 1885, there were two divisions (“D” and “K”) stationed at Battleford, each consisting of approximately 100 men. See: Royal Canadian Mounted Police, Law and Order: Being the Official Reports to Parliament of the Activities of the Royal North-West Mounted Police Force from 1886–1887 (Toronto: Coles Publishing Company, 1973), 26.

52. Rouleau to Campbell, December 4, 1884, LAC RG 13-A-2, volume 61, file 1315. Rouleau complained about many aspects of his new life in the Northwest. See: Letters between Charles Rouleau and the Ministry of Justice, November 1883–February 1884, LAC RG 13-A-2, volume 58, file 1594.

53. Rouleau to Campbell, December 4, 1884, LAC RG13-A-2, volume 61, file 1315.

54. Bowker, Wilbur F., “Stipendiary Magistrates and the Supreme Court of the North-West Territories, 1876–1907,” Alberta Law Review 26 (1988): 169; and Knafla, Louis A. and Klumpenhouwer, Richard, Lords of the Western Bench: A Biographical History of the Supreme Court and District Courts of Alberta, 1876–1990 (Calgary: Legal Archives Society of Alberta, 1997), 161.

55. Rouleau to Campbell, September 21, 1885, R-996, Attorney General's Files, 283 L, Saskatchewan Archives Board, Regina (hereafter SAB-Regina).

56. Rouleau was elevated to the Supreme Court of the Northwest Territories in 1887, on which he served until his death in 1901. Louis A. Knafla, “Rouleau, Charles-Borromée,” in Dictionary of Canadian Biography, vol. 13.

57. Knafla and Klumpenhouwer, Lords of the Western Bench, 161.

58. Gavigan estimates that eighty-one First Nations and forty-six Métis prisoners were tried in 1885 for offenses allegedly committed in connection with the Resistance. Gavigan, Hunger, Horses, and Government Men, 12.

59. Osler to Burbidge, August 16, 1885, LAC RG 13, vol. 2132, part 11. See also: Patrick Brode, “Osler, Britton Bath,” in Dictionary of Canadian Biography, vol. 13.

60. Rouleau to Campbell, September 21, 1885, R-996, Attorney General's Files, 283 L, SAB-Regina.

61. Rouleau to Thompson, October 5, 1885, Bad Arrow Capital Case File, LAC RG 13, vol. 1421, file 197A.

62. Ibid.

63. Saskatchewan Herald, Vol.7, No. 36, September 281885, in Battleford Beleaguered, 58.

64. Ibid. Ultimately, Louison Mongrain's sentence would be commuted to life imprisonment. William McLean and other settlers from the Frog Lake/Fort Pitt region petitioned the Department of Justice for mercy on the ground that Mongrain had assisted whites during the Resistance. There were also allegations that Wawasehowein, and not Mongrain, was responsible for killing Constable David Cowan. See: Louison Mongrain Capital Case File, LAC RG 13, vol. 1421, file 200A.

65. Saskatchewan Herald, Vol.7, No. 36, September 28, 1885, in Battleford Beleaguered, 58.

66. Thompson also made this point, that there was “no reason why a distinction should have been made between [Wahsahgamass's] case and that of his fellow prisoners,” in his report on the case: Thompson's Report, November 5, 1885, Ducharme Capital Case File.

67. Rouleau to Thompson, November 27, 1885, Ducharme Capital Case File.

68. Saskatchewan Herald, Vol.7, No. 36, September 28, 1885, in Battleford Beleaguered, 58.

69. Johnston, Basil, The Manitous: The Spiritual World of the Ojibway (New York: HarperCollins Publishers, 1995), xxii. Although Johnston points out that the word “manitou” could refer to a large number of transcendent, divine qualities or beings in Algonkian tradition, and that Europeans misinterpreted the concept when they assumed it always described spirit creatures that resembled European goblins or leprechauns.

70. Ibid., 221.

71. Brightman, “The Windigo in the Material World.”

72. Scholarly works describing nineteenth-century wendigo cases include: Harring, Sidney L., White Man's Law: Native People in Nineteenth-Century Canadian Jurisprudence (University of Toronto Press, 1998); Hadley Louise Friedland, “The Wetiko (Windigo) Legal Principles: Responding to Harmful People in Cree, Anishnabek and Saulteaux Societies—Past, Present and Future Uses, with a Focus on Contemporary Violence and Child Victimization Concerns” (LLM Thesis, University of Alberta, 2009); Borrows, Canada's Indigenous Constitution; and Smallman, Shawn, “Spirit Beings, Mental Illness, and Murder: Fur Traders and the Windigo in Canada's Boreal Forest, 1774 to 1935,” Ethnohistory 57 (September 21, 2010): 571–96. The wendigo was important to the mythologies of many Algonkian-speaking peoples, including the Cree, Ojibwe and Saulteaux. See: Borrows, Canada's Indigenous Constitution, 77. Scholars have noticed a concentration of wendigo cases in the late nineteenth century, and a rapid tailing off of wendigos in the colonial archive in the first half of the twentieth century. See: Smallman, “Spirit Beings,” 587–88.

73. Johnston, The Manitous, 235.; Borrows, Canada's Indigenous Constitution, 84.; Friedland, “The Wetiko (Windigo) Legal Principles,” 39.

74. Brightman, “The Windigo in the Material World,” 337.

75. Ibid.

76. Bishop, Charles A., “Northern Algonkian Cannibalism and the Windigo Psychosis,” in Psychological Anthropology, ed. Williams, Thomas R. (The Hague: Mouton, 1975), 237–48.

77. Marano, Lou, “Windigo Psychosis: The Anatomy of an Emic-Etic Confusion,” Current Anthropology 23 (1982): 385–97.

78. Brightman, “The Windigo in the Material World,” 346.

79. Friedland is referring especially to the work of Sidney Harring, although she praises his sensitive engagement with the wendigo as part of the Cree, Ojibwe, and Saulteaux spiritual order. See: Harring, White Man's Law.

80. Friedland, “The Wetiko (Windigo) Legal Principles,” 42.

81. This pivot away from probing the genuineness of nineteenth century Indigenous belief in wendigos is especially important when the evidence for and against this belief is primarily contained in colonial archives, which are notoriously problematic sources for accessing non-colonial culture, spirituality, and consciousness. See: Spivak, Gayatri Chakravorty, “Can the Subaltern Speak?” in Marxism and the Interpretation of Culture, ed. Nelson, Cary and Grossberg, Lawrence (London: Macmillan Education UK, 1988), 271313.

82. Borrows, Canada's Indigenous Constitution, 83.

83. Saskatchewan Herald, Vol.7, No. 36, September 28, 1885, in Battleford Beleaguered, 57–58. Charles Quinney was the Church of England missionary at Onion Lake, who had fled with his wife to Fort Pitt to escape disturbances there. Fort Pitt Historical Society, Fort Pitt History Unfolding, 42.

84. Sharpe to Thompson, November 24, 1885, Ducharme Capital Case File.

85. Sharpe to Andrew Power, November 24, 1885, Charles Ducharme Capital Case File.

86. Testimony of François Dufresne, Ducharme Capital Case File.

87. Henry Quinn had arrived at Fort Pitt on April 3 from Frog Lake. He left the Frog Lake agency, where he had worked as a blacksmith, shortly before the killings. Fort Pitt Historical Society, Fort Pitt History Unfolding, 42.

88. Sharpe to Thompson, November 24, 1885, Ducharme Capital Case File.

89. Ibid.

90. Tina Loo also argues that European judges who wrote to government officials to ask for mercy for Indigenous defendants acknowledged the persistence of Indigenous law. See: Loo, “Savage Mercy,” 112.

91. Saskatchewan Herald, Vol.7, No. 36, September 28, 1885, in Battleford Beleaguered, 58.

92. G. Cloutier to R. Sedgewick, Esq., December 18, 1889, Charles Ducharme Capital Case File. Cloutier also mentioned the case of a man named “Court Oreille” whose murder conviction for killing his wife, a suspected wendigo, had been commuted the previous spring.

93. Brightman, “The Windigo in the Material World”; Marano, “Windigo Psychosis”; Smallman, “Spirit Beings,”; and Thomson, Colin A., Swift Runner (Calgary: Detselig, 1984).

94. Thomas Flanagan, “Richardson, Hugh (1826–1913),” in Dictionary of Canadian Biography, vol. 14.

95. Richardson to James McDonald, August 20, 1879, Swift Runner Capital Case File, LAC RG 13, vol. 1417, file 138A (hereafter, “Swift Runner Capital Case File”).

96. Testimony of Kis-Sie-Ko-Way, Notes of Evidence, August 6, 1879, Swift Runner Capital Case File.

97. Smallman, “Spirit Beings,” 572.

98. Testimony of Kis-Sie-Ko-Way, Notes of Evidence, August 61879, Swift Runner Capital Case File. See also, testimony of George Washington Brazian in the same file.

99. Testimony of Kis-Sie-Ko-Way, Notes of Evidence, August 6, 1879, Swift Runner Capital Case File.

100. Testimony of George Washington Brazian, Notes of Evidence, ibid.

101. Testimony of Inspector Gagnon, ibid.

102. Testimony of George Herchmer, ibid.

103. Kakisikutchin's Testimony, ibid.

104. Ibid.

105. Edward Richard to James McDonald, February 4, 1880, Swift Runner Capital Case File.

106. Alexander Campbell to Sir John A. Macdonald, October 24, 1879, Swift Runner Capital Case File.

107. This may be because both Cree and Canadian law would have punished Kakisikutchin with execution for his crimes. Gavigan suggests that the case might also indicate a “shared conundrum with respect to mental illness” among colonial and Indigenous groups. See: Gavigan, Hunger, Horses, and Government Men, 63.

108. Black, Henry Campbell, A Dictionary of Law: Containing Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern [1891] … (New York: The Lawbook Exchange, Ltd., 1991), 31. On the importance of mens rea in the common law from the medieval period, and even before it had acquired a legal definition separate from that of a criminal act or actus reus, see: Kamali, Elizabeth Papp, “Felonia Felonice Facta: Felony and Intentionality in Medieval England,” Criminal Law and Philosophy 9 (2013): 125. Although it is important to note that the majority of crimes in English law impose strict liability, in which a person's intention does not have to be proved. Major crimes, however, such as murder, rape, and robbery, embody what Andrew Ashworth calls the “paradigm fault requirement” of intention. Ashworth, Andrew, Principles of Criminal Law, 6th ed. (Oxford: Oxford University Press, 2009), 136–37.

109. In strict liability offenses, the mens rea of the defendant is not essential for a conviction.

110. Holmes, Oliver Wendell, The Common Law (The Lawbook Exchange, Ltd., 1881) [1881] (Clark, NJ: The Lawbook Exchange, 2005), 3.

111. Ashworth, Principles of Criminal Law, 155.

112. See: Reed, John R., Victorian Will (Athens: Ohio University Press, 1989); and Smith, Roger, Free Will and the Human Sciences in Britain, 1870–1910 (London: Pickering & Chatto, 2013).

113. Rouleau to Thompson, September 28, 1885, Ducharme Capital Case File.

114. On this dynamic in colonial Kenya, see: Luongo, Katherine, Witchcraft and Colonial Rule in Kenya, 1900–1955 (Cambridge: Cambridge University Press, 2011), 104.

115. On the colonial politics of capital punishment, see: Hynd, Stacey, “Killing the Condemned: The Practice and Process of Capital Punishment in British Africa, 1900–1950s,” The Journal of African History 49 (2008): 403–18.

116. Foucault, Michel (trans. Sheridan, Alan), Discipline and Punish: The Birth of the Prison, (New York: Vintage Books, 1977), 8. In his 1975 essay in Albion's Fatal Tree, Douglas Hay argues that the performance of mercy through pardoning and the exercise of wide-ranging discretion in criminal cases were planks in an elite campaign to terrorize the working classes through the instrument of the criminal law in eighteenth century England. There are important parallels to the working of criminal law in the empire. See: Hay, Douglas, “Property, Authority and the Criminal Law,” in Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, 2nd ed. (London: Verso, 2011), 1764.

117. Works on nineteenth century criminal responsibility cases include: Rosenberg, Charles E., The Trial of the Assassin Guiteau: Psychiatry and the Law in the Gilded Age (Chicago: University of Chicago Press, 1968); Eigen, Joel Peter, Witnessing Insanity: Madness and Mad-Doctors in the English Court (New Haven: Yale University Press, 1995); Moran, Richard, “The Origin of Insanity as a Special Verdict: The Trial for Treason of James Hadfield (1800),” Law and Society Review 19 (1985): 487519; Farmer, Lindsay, “Criminal Responsibility and the Proof of Guilt,” in Modern Histories of Crime and Punishment, ed. Farmer, Lindsay and Dirk, Markus Dubber (Stanford: Stanford University Press, 2007), 4265; Green, Thomas Andrew, Freedom and Criminal Responsibility in American Legal Thought (Cambridge: Cambridge University Press, 2014); and Walker, Nigel, Crime and Insanity in England: The Historical Perspective (Edinburgh: Edinburgh University Press, 1968).

118. Queen Empress v Lakshman Dagdu (1886), Bombay Law Reports, 512–19.

119. M'Naghten's case [1843] UKHL J16 (June 19, 1843).

120. Maudsley, Henry, The Pathology of Mind: A Study of Its Distempers, Deformities, and Disorders (London: Macmillan and Co., 1895), 29.

121. On exceptions under English law, and on common law as a tool of civilization, see: Ward, Damen, “A Means and Measure of Civilisation: Colonial Authorities and Indigenous Law in Australasia,” History Compass 1 (2003): 124.

122. Peter Busby Waite, “Thompson, Sir John Sparrow David,” Dictionary of Canadian Biography, vol. 12.

123. Ibid.

124. Rouleau to Thompson, November 27, 1885, Ducharme Capital Case File.

125. Holmes, Oliver Wendell Jr., “Privilege, Malice, and Intent,” Harvard Law Review 8 (1894): 2.

126. Rouleau to Thompson, September 28, 1885, Ducharme Capital Case File.

127. Thompson's Report, November 5, 1885, Ducharme Capital Case File.

128. Ibid.

129. Ibid.

130. Ibid.

131. Minutes of the North-West Council, November 5, 1885, North-West Territories Government, Record Books, Minutes of the Council, NWT, 1877–1886., Vol. II, 1879–1885, Saskatchewan Archives Board, Saskatoon (hereafter SAB-Saskatoon).

132. Bonny Ibhawoh describes a similar colonial crackdown on what he calls “medicine murders,” that is, executions related to accusations of witchcraft, in mid-twentieth-century East Africa. These cases increasingly resulted in capital sentences, intended to send a political message to Indigenous peoples about the strength and inflexibility of colonial justice. Ibhawoh, Bonny, Imperial Justice: Africans in Empire's Court (Oxford: Oxford University Press, 2013), 95.

133. Atwood, Margaret, Strange Things: The Malevolent North in Canadian Literature (Oxford: Clarendon Press, 1995), 8.

134. Ford, Settler Sovereignty, 2. Colonial administrators in India used violence and aggressive criminal law to similar ends, although with less success, on the Indian frontier. See: Kolsky, Elizabeth, “The Colonial Rule of Law and the Legal Regime of Exception: Frontier ‘Fanaticism’ and State Violence in British India,” The American Historical Review 120 (2015): 1218–46.

135. Bowker, “Stipendiary Magistrates,” 270.

136. Ibid., 267–68.

137. See: Gavigan, Hunger, Horses, and Government Men, 125.

138. Luongo, Witchcraft and Colonial Rule in Kenya; Ibhawoh, Imperial Justice; Cannon, William J., “The Lion-Men of Tanganyika,The Police Journal 32 (1959): 2845; Paton, Diana, The Cultural Politics of Obeah: Religion, Colonialism and Modernity in the Caribbean World, Critical Perspectives on Empire (Cambridge: Cambridge University Press, 2015); Finnane, Mark, “‘Payback’, Customary Law and Criminal Law in Colonised Australia,” International Journal of the Sociology of Law 29 (n.d.): 293310; and Mani, Lata, Contentious Traditions: The Debate on Sati in Colonial India (Berkeley: University of California Press, 1998).

139. It is important to note, however, that British efforts to codify or to formalize Indigenous law in a plural jurisdictional context often resulted in the wholesale reformulation of the local traditions in questions. See: Cohn, Bernard, Colonialism and Its Forms of Knowledge: The British in India (Princeton: Princeton University Press, 1996).

140. On British efforts to assert a monopoly over judicial violence and the punishment of crime, see: Singha, Radhika, A Despotism of Law: Crime and Justice in Early Colonial India (Oxford: Oxford University Press, 1998).

141. Rouleau's Notes of Evidence, Ducharme Capital Case File.

142. Knafla describes Northwest Territories judges as “deeply immersed in English law,” but also as conscious of the need to adapt common law tradition to the necessities of frontier life. See: Knafla, Louis, “Introduction,” in Laws and Societies in the Canadian Prairie West, 1670–1940, ed. A., Louis Knafla and Jonathan Swainger (Vancouver: University of British Columbia Press, 2005), 31. Lauren Benton argues that competing authorities routinely invoked their relationship to Indigenous peoples, whether through claims to special expertise or allegations of corruption, in efforts to assert the legitimacy of their jurisdiction in colonial contexts. See: Benton, Law and Colonial Cultures, 3.

143. For some examples of Riel's continuing prominence in Canadian media, public history, and popular culture, see “Visitors May Do Double-Take at Exhibit of Famed Canadians,” Kamloops Daily News (Kamloops, BC), March 26, 2013, B.5.; “Louis Riel has Left a Complicated Legacy,” Peterborough this Week (Peterborough, ON), April 17, 2013, 1; and Christopher Curtis, “A New Take on Louis Riel's Role; Metis at Core of Canada, President Says,” Calgary Herald (Calgary, AB), December 28, 2012, A. 17.

144. Riel was tried under the provisions of a Canadian statute, An Act to Amend and Consolidate the Several Acts Relating to the North-West Territories (1880), 43 Victoria, c. 25.

145. Richardson had recently been promoted from his post in Battleford, where he was replaced by Rouleau. Rouleau to Campbell, December 4, 1884, LAC RG 13-A-2, volume 61, file 1315.

146. Testimony of Mackay, Thomas, The Queen vs. Louis Riel: Accused and Convicted of the Crime of High Treason (Ottawa, 1886), 19.

147. Ibid., 25.

148. Riel claimed in a letter to James Wickes Taylor, the United States Consul in Winnipeg, that he had, in fact, been eating stewed blood all winter because he was unable to digest anything else. Riel to J.W. Taylor. Regina. August 1, 1885, Stanley, George F.G., ed., The Collected Writings of Louis Riel (Edmonton: University of Alberta Press, 1985), 157.

149. “Riel's Trial: The Rebel Ringleader Brought Before a Jury,” The Globe (Toronto), July 21, 1885, 2.

150. Louis Riel v The Queen (Manitoba) [1885] UKPC 37 (October 22, 1885).

151. For example, Henry Herbert, the fourth Earl of Carnarvon, tried to persuade Lord Salisbury, the Prime Minister, to intervene on Riel's behalf. Carnarvon to Salisbury, October 22, 1885, TNA, PRO/30/6/130. Gordon, Peter, “Herbert, Henry Howard Molyneux, fourth earl of Carnarvon (1831–1890),” Oxford Dictionary of National Biography, Oxford University Press, 2004 http://www.oxforddnb.com.ezp-prod1.hul.harvard.edu/view/article/1303 (October 24, 2015).

152. “Case of Louis Riel: Reasons for Non-Commutation of his Sentence,” Lansdowne to Stanley, November 13, 1885, TNA, PRO/30/6/130.

153. Ibid.

154. Sharpe to Power, November 24, 1885, Ducharme Capital Case File.

155. Ibid.

156. Ibid.

157. Thompson to the governor general in council, November 16, 1885, Ducharme Capital Case File.

158. Ibid.

159. Rouleau to Thompson, November 27, 1885, Ducharme Capital Case File.

160. Report of the Privy Council of Canada, John J. Magee, Clerk, November 6, 1885, Ducharme Capital Case File.

161. Report of the Privy Council of Canada, John J. Magee, Clerk, December 9, 1885, Ducharme Capital Case File.

162. Petition from the Onion Lake Cree, November 16, 1887, Ducharme Capital Case File.

163. Ibid.

164. Père Mérer to Daniel H. McDowell, November 17, 1887, Ducharme Capital Case File.

165. Albert Lacombe to Thompson, August 10, 1889, Ducharme Capital Case File. Translation mine. The original, longer passage, in French, reads: “Il est hors de doute que chef traiteur magistrat (que je n'ose nommer) par crainte, conseilla et poussa les sauvages à se défaire de cette femme Wittiko, à tout prix. Si un magistrat supposé être l'interprète de la loi, conseille et pousse un meurtre, que peut-on dire d'un pauvre enfant de 16 ans, qui tire un coup de fusil sur une cadavre? Et certes, Charlebois et Dressy-Man ne sont guère plus coupables.”

166. Burbidge to Campbell, August 10, 1885, LAC RG 13, vol. 2132, part 15.

167. Stony Mountain Penitentiary Admissions Book, 1885, LAC RG 13, T-11095.

168. Report on Ducharme's Death, August 3, 1890, Ducharme Capital Case File.

169. For more on Machekequonabe as a landmark case in “native” law, see: Erickson, Lesley, Westward Bound: Sex, Violence, the Law, and the Making of a Settler Society (Vancouver: University of British Columbia Press, 2011), 53.

170. Harring, Sidney L., “The Liberal Treatment of Indians: Native People in Nineteenth Century Ontario Law,” Saskatchewan Law Review 56 (1992): 323. For documents related to the original trial, see: The Queen v Machweekequonabe, LAC, RG 13, vol. 2089. For the record of the case as it was appealed, see R v Machekequonabe (1897) 28 O.R. 309. For more on Machekequonabe and other wendigo cases, see: Harring, White Man's Law.

171. Harring, “Liberal Treatment of Indians,” 323.

172. Loo, “Savage Mercy,” 108. See Strange, Carolyn, Qualities of Mercy: Justice, Punishment, and Discretion (Vancouver: University of British Columbia Press, 1996); Hay, “Property, Authority and the Criminal Law.” For an example of how one scholar has applied Hay's argument to the North-West Resistance, see McCoy, Ted, “Legal Ideology in the Aftermath of Rebellion: The Convicted First Nations Participants, 1885,” Histoire Sociale / Social History 42 (2009): 175201.

173. Gavigan, similarly, argues that “oppressive relations are still relations.” Gavigan, Hunger, Horses, and Government Men, 187.

She thanks Princeton University; the Joint Center for History and Economics at Harvard University and Magdalene College, Cambridge; the American Society for Legal History; and the members of the Preyer Prize selection committee for their support and encouragement. She also thanks Hendrik Hartog, Michael Witgen, Gwendolyn Gordon, Padraic X. Scanlan, Thomas A. Green, and the three anonymous reviewers for Law and History Review whose comments have shaped this article and its many earlier instantiations.

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Law and History Review
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