Hunger, Horses and Government Men: Criminal Law on the Aboriginal Plains, 1870-1905

Excerpt from Introduction, Page 22-23:

"In conclusion, the “self-evidence” of criminalization is a trap for the unwary. Criminal law becomes all law; criminalization becomes an umbrella that covers all manner of legal forms (from liquor violations, to hunting and fishing offences, to the Indian Act, and sometimes even criminal law). In critical legal historical work on criminal law, criminal law is depicted “in one dimensional terms” – criminal law “acts against” subordinate people (women, indigenous peoples, workers, and so on). This is the dominant account in the critical literature – inequalities of class, race, and gender are reinforced as the criminal law bears down on those brought before it. And yet some of the literature may also be read to offer a more relational notion of criminal law, even in a colonial context. 

This book takes a different view and makes a different argument: the offences and prosecutions under the early Indian Acts did not criminalize the First Nations; rather, they “Indianized” the First Nations. They were prosecuted as “Indians” – not as criminals – for violating the Indian Act, for not conforming to the behaviour required of Indians by this legislation.

The question of how to identify and interpret forms of participation and treatment of subordinated peoples, such as Aboriginal peoples of the Canadian Plains, in criminal processes is important. Against the “coercive domination” story of criminal law is set and celebrated instances and forms of “resistance” to it. It is clear from the literature, and appears to be con-firmed by the court records I have examined, that the experiences transcend one-dimensional notions of oppression coupled with victimization. Few historians today would suggest that the Aboriginal peoples were the passive victims of the new dominant order that was being established in the Territories. At the other extreme, it is also an error to regard every act of defiance or criminal activity as a form of resistance. The challenge is to identify forms and expressions of resistance while resisting an impulse to portray every act in heroic terms. In the middle is the vexing matter of participation, and here again the challenge is to avoid the worst excesses of misunderstanding.

This book reinserts criminal law into criminalization and, through the stories yielded by the court records, offers new evidence – and a new interpretation – of its role and relationship with the First Nations on the Aboriginal Plains." (22-23).

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