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Thursday Thinkpiece: Gavigan on Criminal Law on the Aboriginal Plains

Each Thursday we present a significant excerpt, usually from a recently published book or journal article. In every case the proper permissions have been obtained. If you are a publisher who would like to participate in this feature, please let us know via the site’s contact form.

Hunger, Horses, and Government Men: Criminal Law on the Aboriginal Plains, 1870-1905
Shelley A.M. Gavigan
Vancouver: UBC Press, 2012

[Footnotes have been converted to endnotes.]

[Note: UBC Press has kindly offered Slaw readers a 20% discount on this book. The discount code to enter when ordering is SLAW-20.]

Excerpt #1, Poundmaker’s Horse Race, pages 88-91

On 7 August 1878, a man named Oo-pie-too-kah-han-up-ee-weyin, also referred to in the court file as “The Pondmaker” swore an Information accusing another man of stealing his horse.1 “The Pondmaker” of this court case was surely the man now known to us as Poundmaker (Pihtokahanapiwiyin), headman of the River People, spokesperson at Treaty 6 negotiations, one of the most prominent First Nations leaders of his generation, and one of the chiefs convicted of treason-felony in 1885 and sentenced to three years in the penitentiary.2

Poundmaker’s Information was sworn before Stipendiary Magistrate Hugh Richardson in Battleford and interpreted by Peter Erasmus;3 in it, he accused one John Ballendine of having stolen his horse. The horse in question had been the subject of a wager between Ballendine and Poundmaker on a horse race that they had agreed would be run over the distance of a mile. Sporting events involving horse races were popular in Battleford. Ballendine told Poundmaker that twenty-seven telegraph poles measured the distance of one mile; however, Pierre Daignault, a Metis man in Poundmaker’s party (and occasional interpreter in the criminal court) disputed this, saying that in fact thirty-one poles comprised one mile. Ballendine stood by what he had said, and Poundmaker accepted his word. They shook hands on the wager. The race was run and Ballendine’s horse won.

After the race, Poundmaker recounted, a man named Todd approached him and said that he had heard that he had lost the race and “that there was some foul play about it.” With the assistance of the surveyor’s camp crew, a measure was taken, and indeed a further seven poles beyond the twenty-seventh made up the distance of one mile. Ballendine had lied when he gave his word to Poundmaker. Poundmaker then went to Ballendine, told him where the horse was, but proposed another race, as he was satisfied that a mile had not been run. Ballendine declined to race his horse again, and no new race was run.

Faced with Ballendine’s intransigence, Poundmaker “consulted Mr. Brelland who told me to go to Mr. Richardson and lay a complaint. I was afraid to do so as I had heard from Daignault and others I might be punished for gambling. Mr. Brelland insisted I should go and I went.” Poundmaker continued: “After seeing Mr. Richardson I went with Lazare to Ballendine and Lazare told him as I understood what Mr. R had directed. Ballendine made rough reply in English. Ballendine afterwards in my absence went to my camp and took my horse.” Ballendine, apparently neither moved nor awed by the indirect intervention of the magistrate, responded by surreptitiously making off with the horse when Poundmaker was not at his camp. And here the court file ends. There is no evidence in it that Ballendine ever faced this charge in court. As is often the case, however, the process is perhaps of more interest than the resolution.

In this matter, Poundmaker had been assisted by the white and Metis men of Battleford: Todd, the telegraph survey crew, Peter Erasmus, Lazare (possibly Richardson’s emissary), and, apparently, Richardson himself. He had access to and invoked the highest levels of authority in Battleford, consulting with “Mr. Brelland” (likely Paschal Breland, Metis member of the North-West Territories Council), who sent him to Magistrate Richardson (who was also a member of the Council).4 Clearly, Richardson had sent a message to Ballendine through Lazare, and Poundmaker’s English was sufficiently good to understand Ballendine’s “rough reply.” Poundmaker’s Information had been laid not before a justice of the peace but before the more senior and recently arrived magistrate. Whether or not he experienced being cheated as a humiliation, Poundmaker’s indignation at the “foul play” is matched by the unresolved nature of the matter in the court file. And, regardless of the unresolved state of the criminal file, one can well imagine that a man of Poundmaker’s stature, intelligence, and ability would have found a path to resolution and to his stolen horse. Seven arduous years later, Poundmaker would again be in front of Richardson, but this time as a prisoner in his court in Regina, facing the charge by the Crown that he had committed treason-felony in the 1885 North-West Rebellion. He was convicted by a jury on disputable evidence and sentenced to three years in prison.

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1 John Ballendine (1878), Saskatchewan Archives Board, Department of the Attorney General, Regina Judicial Centre: Court Records First Series, 1876-86, Files 1-282 [hereinafter SAB AG CR-Regina, 1st Series, 1876-86], file 29.

2 I conclude that “The Pondmaker” and “Poundmaker” are one and the same man for several reasons, despite the fact that the Informant was described as a “Christian Indian” (and I understand that Poundmaker is said to have converted to Christianity later, while in prison). The Informant in this file was clearly a Cree man of standing, given the prominent men he was able to mobilize on his behalf (Peter Erasmus, Hugh Richardson, Mr. Brelland) in his attempt to retrieve his horse. The court file refers to The Pondmaker’s brother as “Yellow Earth Blanket”; Poundmaker’s brother was known as Yellow Mud Blanket. Alexander Morris names him as “Oo-pee-too-kerah-han-ap-ee-wee-yin” (The Pondmaker): The Treaties of Canada with the Indians of Manitoba and the North-West Territories, facsimile reprint (Toronto: Prospero Books, 2000; original ed. Toronto: Belfords Clarke, 1880) at 210; at 219, he appears as “Oo-pee-too-korah-hair-ap-ee-wee-yin” (The Pond-maker). The many spellings of Poundmaker’s name in translation illustrate how difficult it is to assert with confidence the identity of the persons named in the court files. Poundmaker himself arguably illustrates, as well, the fluidity of relations among the First Peoples of the Prairies, and why it is a trap for the unwary to insist upon rigid distinctions between “Indian” and “Metis,” Cree and Saulteaux. Even the description of him as a “Cree” may not be one that he would have used: he was the son of Sikakwayan, an Assiniboine shaman, and a mixedblood Cree mother, nephew of the prominent Chief Mistawasis (his mother’s brother), and adopted son of the chief of the Blackfoot, Crowfoot. See Christian Thompson, “Poundmaker” in Christian Thompson, ed., Saskatchewan First Nations: Lives Past and Present (Regina: Canadian Plains Research Center, 2004) at 108-9. His brother, Yellow Mud Blanket (or, as he was named in the court file, Yellow Earth Blanket), like Poundmaker was also prosecuted after the 1885 North-West Rebellion. Unlike Poundmaker, who was sentenced to three years in the Manitoba Penitentiary, Yellow Mud Blanket was released by the court on the recommendation of Crown counsel; see Sandra E. Bingaman, The North-West Rebellion Trials, 1885 (MA Thesis, University of Saskatchewan [Regina], 1971) [unpublished] Appendix A at 206; see also Sandra E. Bingaman, “The Trials of Poundmaker and Big Bear, 1885” (1975) 28 Saskatchewan History 81; Blair Stonechild and W.A. Waiser, Loyal till Death: Indians and the North-West Rebellion (Saskatoon: Fifth House, 1997); Bob Beal and R.C. Macleod, Prairie Fire: The 1885 North-West Rebellion (Edmonton: Hurtig Publishers, 1984).

3 Peter Erasmus had acted as interpreter for the First Nations during the Treaty 6 negotiations: see, e.g., Morris, ibid. at 196.

4 Lewis H. Thomas, The Struggle for Responsible Government in the North-West Territories, 2nd ed. (Toronto: University of Toronto Press, 1978).

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Excerpt #2 Marie Martin Daniel’s Windblown Frock, pages 176-78

One can well imagine the distress experienced by Robert Williams, secretary of the Central Assiniboia Agricultural Association, when a severe summer storm blew through Fort Qu’Appelle on 2 August 1900. On this very day, the Agricultural Association was holding its annual summer Agricultural Show and Competition. Many local people had entered items, which were on display in a number of tents. Helena L. Symons, for instance, had on exhibit a photograph frame, among other articles. And then the storm struck. Tents were blown down and exhibits scattered by the wind, an always present force of nature on the Plains, powerful and unrelenting in a storm, and often accompanied by its fearsome companions, destruction and pandemonium. Many exhibitors lost to the wind the things they had entered in the show, such as hats, frocks, and blouses.

Williams said he and the association directors did their best to retrieve the windstrewn exhibits; he himself made a public announcement from the judges’ stand, presumably in English, “that articles lost or found should be made known to us. I also had a notice inserted in the Vidette.” Several exhibitors subsequently made applications for missing items, some of which had been found and returned.

Later that month, Constable Henry Hamilton Crigan of the NWMP received a complaint from Williams, as a result of which he visited two homes at File Hills (Reserve). He found some articles that had been exhibits, specifically a frock and blouse, at Joseph Daniel’s home. He also found three ladies’ hats at the home of “an Indian named Bellegarde” at File Hills. He was told by Bellegarde’s daughter that she had purchased one of the hats from Marie Martin Daniel, and that Marie Martin had given her two others. In his deposition at the hearing into the charge before Justice of the Peace Guernsey, Crigan said that Marie Martin Daniel had stated that “she picked the articles up on the show ground and took them home.”48

In Williams’s Information and complaint of 24 August, Marie Martin Daniel was charged with stealing from the Exhibition Ground three ladies’ hats, one photo frame, one pink frock, and one flannelette blouse, the property of exhibitors. Marie Martin Daniel is not identified in the court documents as an Aboriginal woman, but Joseph Martin was sworn to interpret the 25 August hearing at Fort Qu’Appelle into the charge against her, presumably into Cree. She is reported to have waived the reading of the depositions against her, and when asked by the justice of the peace whether she had anything to say in answer to the charge, she said simply, and probably honestly (when silence might have served her better), “I was told by ladies to take the hats as they were no use that is all I have to say.”

She was committed for trial by Guernsey, and on 28 August she was indicted by T.C. Johnstone on the charge of theft. She entered a plea of not guilty and was released on bail with two sureties, Joseph Daniel and Alexander Laroque, in the amount of $100. Her trial was set for the November sittings of the North-West Territories Supreme Court at Fort Qu’Appelle, and it took place on 9 November 1900. No record of the evidence taken appears in the court file, but she was convicted by Judge Richardson, notwithstanding the weaknesses in the Crown’s case concerning both the actus reus and mens rea of the offence, and possibly the evidentiary basis itself.

But for the disruption of the exhibition by an act of nature, and the inability of the white folk to catch the wind, Marie Martin Daniel would never have found herself arrested and prosecuted. One can suppose that for items carried farther afield by the prairie storm, others who found things left by the wind were spared the indignity of criminal prosecution. As for Marie Martin Daniel, any reasonable doubt the court should have entertained as to her formal criminal liability was reflected in her sentence to patriarchal control and supervision. Her sentence was deferred, “convict’s husband entering into a recognizance of $50.00 to produce her for sentence when and if required to do so.”

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48 Marie Martin Daniel (1900), SAB SCNWT (Crim.), Coll. R1286, file 229.

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