Article by David Doyle,
Author LOUIS RIEL, Let Justice Be Done (Ronsdale Press, 2017)
On Friday, February 9, 2018, a jury in Battleford, Saskatchewan, deliberated thirteen hours before finding a Caucasian farmer, Gerald Stanley, not guilty of second degree murder in the 2016 death of Colten Boushie, a resident of the Red Pheasant First Nation. Red Pheasant Chief Clint Wuttunee called the acquittal “Absolutely Perverse… Colten Boushie was shot in the back of the head at point blank range. Nevertheless, an all white jury formed the twisted view of that obvious truth and found Stanley not guilty.” Unfortunately, this tragic trial has many precedents bearing directly on individual Indigenous individuals and families, whole nations and Canada wide.
Colonial Canada
With the Confederation of Canada in 1867 came the transfer of legislative and judicial control to the new Canadian Prime Minister, John A. Macdonald, who immediately began to consolidate his new nation and meddle in the affairs of the Indigenous nations domiciled across the land. In 1869, the new Canadian Parliament passed the now “notorious” Indian Act. Based firmly on the Eurocentric ‘Doctrine of Discovery,’ this most colonial of Acts declared that “Indians” could not be in lawful possession of any land without a permit from the Minister; incredibly, this included the ancient homelands of the Mi’kmaq of the east coast, the Huron of the St. Lawrence region and Great Lakes Regions, the Cree and Dene of the great boreal forests and all others such as the Mohawks of Ontario, and the Cree, Assiniboine and Blackfoot nations of the Plains and the hundreds of nations on the West Coast – all the way up to the Innu of the Arctic. All of these Indigenous peoples had ancient rights to their lands, as well, many had “rights” granted by Britain for services rendered. This monumental interference in the affairs of the Indigenous nations and their right to their hereditary and treatied lands was also contrary to the Royal Proclamation of 1763 and the subsequent treaties made between Britain and the Indigenous nations. In many cases, the British had relied upon these nations for military support in her extended wars with the French and the Americans and guaranteed them certain rights that Canada now rescinded. Not only in natural fact, but also in British law, Aboriginal “Indian ownership” of land, based both on hereditary right and legal right, pre-dated the Canadian Confederation, often by centuries and had been guaranteed by both the British monarchy and legal system. None of this was a concern to the pragmatic John A. Macdonald and the eager Canadian colonialists. Indigenous peoples were completely denied their land and human rights. The “Indians” were now “wards” of the fledgling Canadian state, with no rights, especially property rights.
Destitution and Starvation
With the diminishing buffalo herds of the 1870’s, and the loss of opportunities to supply the fur trade, along with the perdition of the American whiskey traders and wolfers, the situation in the North-West Territories had reached disaster. Not only did the Indigenous peoples not have enough to eat, their clothes and homes were also deteriorating – with no chance of repair as there were few buffalo left to supply the necessities of life.
The First Nations peoples north of the Medicine Line (Canada-U.S. border) began looking towards new means of survival. Initially they looked at protecting the buffalo herds, but this was nearly impossible with American hide hunters slaughtering 80,000 buffalo on the Canadian plains in one winter. In their councils, the People were asking important questions as alternate sources of food and security had to be found. Contrary to cultural stereotypes the Indians were not ignorant of nor opposed to agriculture. They had seen that the settlers could raise large quantities of food and now they too had to seriously consider food production as a means of survival. They also knew it was necessary to come to terms with the Canadian government or possibly lose their all. They knew they had to look at a new question, the question that would determine their fate: their relationship with their “mother earth.”
The Canadian government claimed it would help the People learn to grow crops if they would settle on small parcels of land and give up the rest of their land to the Canadians. The “Great Mother,” as the government fashioned itself, would assist in the next great transition – if the Indian people would but sign a Treaty. It was a life and death decision. The First Nations peoples were not children, as the term “Great Mother” implied. They knew full well that a treaty meant giving up part of their birthright, part of their Indigenous rights and part of their mother; the earth upon which they slept. They also knew that unless they were extremely vigilante, treaties meant submitting to complete political and economic subjugation as had happened so many times to the Peoples in the United States. But, with their children and old people starving, it was necessary to make a deal for survival – there was no more ready food on the whole of the Canadian prairie. They had no choice: treaty or die!
On May 23, 1873, John A. Macdonald’s government received Royal Assent for the formation of a new paramilitary police force. The North-West Mounted Police (NWMP) was a force specifically designed to assert Canadian sovereignty over the North-West. Wearing “Red Coats” as the British had done over the centuries, the NWMP were given a responsibility to gain the “confidence and respect” of the Indians, paving the way for Anglo-Canadian jurisdiction and Prime Minister John A. Macdonald’s dream: a proposed “Canadian” Pacific railway. Although small in number the police would bring British “justice” to the North West. These mounted policemen, known as “Mounties,” initially built Fort Walsh in the Cyprus Hills. They then sent out patrols and circled “Whoop-Up country” only to find that the American banditos and murderers had slipped out of the whiskey shacks and gone back across the border before being arrested by the Canadian police. As time went on, the mounted police would go on to build a number of posts throughout the North-West Territories and take up their other key assignment; settlement of the Indians onto reservations.
Treaties
The British North America Act (BNA Act) stipulated that the new Dominion of Canadian had legislative authority for “Indians and lands reserved for Indians.” Treaty No. 1 & Treaty No. 2 were signed in Southern Manitoba. Treaty No. 3 followed in the Lake of the Woods area in 1873, Treaty No. 4 in the Qu’Appelle Valley, Treaty No. 5 at Beren’s River and Norway House and Treaty No. 6 at Fort Carlton and Fort Pitt in 1876. These post-Confederation treaties recognized Indian tenure on lands that were still in Indian possession, followed by negotiations and termination of tenure with the conclusion of a formal land surrender document and payment by Canada of compensation: financial or material or both. It was a system that served the government, if not the Indians, very well. In these treaties the final agreement stated that the Indians had to:
Cede, release, surrender, and yield up to the Government of the Dominion of Canada for her majesty the Queen and Her successors forever, all their rights, titles and privileges whatsoever to the lands…. the Queen hereby agrees and undertakes to lay aside reserves for farming lands… to be administered and dealt with for them by Her Majesty’s Government of the Dominion of Canada in such a manner as shall seem best.
As word reached the peoples of the Eagle Hills of the problems of those who had previously signed treaty, each group approaching treaty was wiser to the process. In 1876, Treaty 6 was negotiated at the Hudson’s Bay Company’s Carlton House and later at Fort Pitt. The chief concern at Carlton House was preparation for a new future, a future the Cree now knew, with the buffalo all but gone, would have to be agriculture based, relying on support from the government. The interpreter and scribes of the Commissioner recorded these negotiations. They are worthy of attention as they set the tone for the next great transition: Reserve life. There is however a very serious “one-sided” problem with the record of negotiations: Peter Erasmus. A Métis, Erasmus was the interpreter for the Indians. Shortly after the negotiations began Erasmus admitted that as he was in the pay of the Treaty Commissioner: “My sympathies transferred to the Governor’s side.”
After lengthy negotiations, the signing of the treaties was an agreement based on two distinct realities. Within these two realities were two cultures, one oral that gave its bond symbolically and one that used the written word as the basis of legal agreement. One system was based on trust and the other based on the “interpretation” of reality. Historically this means all materials generated out of the treaties is an interpretation of the treaty process from the side of the Anglo-Canadians. For the “Peoples of the Plains” the question at hand was one of survival. Resistance to the Treaties was still high and the People who went onto the little isolated reserves had gone for one reason, to guarantee their survival. Their numbers were not settled and their leadership was often hostile to the terms of the Treaty, but for the People it was a new venture and they felt they needed to follow on their word and live “treaty.” For the Canadian politicians it was not the question of Indian survival that was foremost, but the elimination of the “Indian problem.” The Treaties had solved the key legal problem of how to extinguish Native title to the land in preparation for the construction of the Canadian Pacific Railway and the opening up of British North America to settlement.
The Reserve System
The “Reserve System” was designed to solve the next problem: How to control the Indian! The reserves were to be “a training ground or laboratory for civilizing the Indian.” Less direct than the American solution of extermination, the goal was a form of “assimilation” – not racial assimilation, but cultural genocide. The Reserve system was designed to take control of the “political, social and economic activities” of the Indigenous nations. Behind the scenes, in the boardrooms of Ottawa, far from the reality of the Plains, a structure for the new system was drawn up. It was a structure absorbed from centuries of British colonial experience around the globe. They also incorporated a number of the provisions used in the United States including the introduction of a Reserve Agent who would oversee relations between the government and the People. The “Reserve Experiment” was a synopsis of colonial experience internationally, and as time went on it too would be used as a model in other colonial adventures, most notably apartheid South Africa.
The 1876 Treaty 6, involved land and resources that were loaned, but not sold, in exchange for support in agricultural resettlement. In these early treaty negotiations, the promises included the granting of one bull and one boar to each reserve plus one cow and one sow for each Chief. The government also promised to establish schools, prohibit alcohol on the reserves and to guarantee hunting and fishing rights – on unsettled portions of the land that had been ceded. However, with the large-scale movement onto the reserves, provisions were not forthcoming and the “sweet promises” were not kept. The lack of action, and cutting back on resources by Canada was all an enigma to the People. It was not what they understood or considered to be the nature of a treaty. It also became the basis of their new Aboriginal economy, an economy largely based on what can be called, “outside promises.” These were promises outside of the actual treaty. The government’s treaty obligations left things wide open to neglect and abuse: “administered and dealt with for them by Her Majesty’s Government of the Dominion of Canada in such a manner as shall seem best.” Government policy was deceptive. Time after time they were able to simply ignore their promises on the premise that the Indians “were not ready.” This “excuse” was racially, and economically, motivated, and, as at present, in the on-line ramblings of groups such as “Farmers with Firearms,” rampant chauvinism was used to divide the population on racial grounds.
Rampant Chauvinism
The first newspaper published in Saskatchewan (then the North-West Territories), The Saskatchewan Herald, was published at Battleford in August 1878 by Patrick Gammie Laurie, who had previously worked for the rampant Canadian paper The Nor’Wester opposed to Louis Riel and the Métis in Red River in the late 1860s. Publisher Laurie wrote of the problems of colonial administration in an article entitled “Tribal Relationship of the Indians.” Laurie’s view represented the “new” Anglo-Canadian mood on the prairies and is worthy of note as its editorial stance gives a very clear indication of the “frontier mentality” in British North America that still, unfortunately exists today:
The difficulty of managing the numerous tribes now incorporated in the Dominion is one, which will increase year by year. The present method of treating them as wards, or incapable children cannot be suddenly changed, but neither can it be permanently successful. The hunting grounds will be of necessity circumscribed from year to year, their necessities will be increasing and the dangers of wrongs being perpetrated and outbreaks provoked by rapacious settlers and unprincipled agents will be almost sure to grow to alarming proportions. But more than all, the best interests of the Indians themselves demand that we should aim at something more than merely helping them to prolong a wretched and aimless existence as reservations. Of course, the Government schools and Christian missions are doing something by way of teaching them the arts of civilization. But all this has hitherto been done on the supposition that the tribal relation must be preserved, and the question is whether this is not the great blunder which goes far to neutralize all other efforts… those Indians who exhibit a disposition by their industry and thrift to support themselves… deserving individuals would be separated from the band and from tribal influences… the real obstacle in the way of civilizing them.
Now that the core of their argument was out, the Saskatchewan Herald then went on with a scathing denunciation of what it saw as the problem:
… the baneful influences of the traditional rehearsal of medicine-man and the recital of deeds of sneaking thiefs, and brutal scalping expeditions of past days, inciting the innate dispositions of the young men to acts of savagery.
For those who were indolent and did not subscribe to the new order, the solution was simple: they should be removed from among the industrious members of a band, and placed upon a reserve under military supervision. Why? Because:
Persons who are in a position to know by experience, agree, that even one lazy and indolent family upon a reservation, exercise such a baneful influence at times by their conduct, as to almost frustrate the exertions of both Missionary and Instructors – hence, the necessity of special provision been made for such characters, as also, for stragglers, wandering from one reserve to another, disturbing the harmony of each in turn if possible at the same time thieving from the industrious.
The article concluded that:
… under the present doubtful condition of the Indians in the Southern department, no doubt military supervision is necessary and cannot therefore be avoided.
But the reader was not to worry as:
The fact that the Southern Indians are under military supervision will not disturb the tranquility of the Indians north, as there seems to be a general feeling of contentment amongst them throughout the Northern Department.
For the First Nations peoples on the reserves, life did not improve. Provisions were not forthcoming and in June 1881, Chief Poundmaker made a claim to the Governor-General: “the white man made…Treaty [Six]…I am not accustomed to work on a farm and am short of implements…a reaper, a mower…we cannot work in the winter. It is cold and we are naked. There is much sickness on my reserve and I would like a Doctor there.”
Canadian Aggression
Four years later, as both the Indigenous and settler populations prepared to confront Canadian colonialism in a series of constitutional campaigns, John A. Macdonald would send military forces to invade the North-West; with Major Middleton leading troops to attack Louis Riel and the Métis at Batoche, and Colonels Otter and Strange sent further west and north to round-up and attack Poundmaker in the Eagle Hills and Big Bear in the North Saskatchewan. Although neither Poundmaker or Big Bear participated in the “rebellion,” like Louis Riel, they gave themselves up to Canadian forces seeking justice and were sent to Regina for a Canadian trial. There were also eleven Indians accused of murder during the disturbances. Eight of them, including Wandering Spirit, were hanged, with the entire Eagle Hills population, young and old, forced to assemble and watch the mass hanging and the burial, in concrete, of their loved ones outside Fort Battleford. There were also forty-eight Indians who were sentenced to Stoney Mountain Penitentiary on various charges. They were forced to work at expanding the penitentiary to hold all of the Indians who were incarcerated in this ancient establishment that still, to this day, holds a majority of Indigenous prisoners.
Tragic Trials
The trial of One Arrow is tragic. He was an old man. As the chief of the Willow Cree, whose lands lies alongside the Metis settlements of Batoche, as close as teeth and lips, he was arrested at Batoche and put on trial in Regina for treason. He was tried in English by Magistrate Richardson, a personal appointee of Prime Minister Macdonald, and a member of the Territorial Council. Richardson’s hand chosen jury of six were all Anglo-Saxon farmers, settlers from Ontario with little or no history on relations with First Nations people or politics. One Arrow was subject to a long and complex set of charges contending that:
One Arrow, together with divers other evil-disposed persons to the said Alexander David Stewart unknown, armed and arrayed in a warlike manner, that is to say with guns, rifles, pistols, bayonets and other weapons, being then wickedly and feloniously assembled and gathered together against our said Lady the Queen, most wickedly and feloniously did levy and make war against our said Lady the Queen . . . and against the peace of our said Lady the Queen, her Crown and dignity.
This ancient British gibberish was translated to One Arrow indicating that he was accused of “knocking off the Queen’s bonnet and stabbing her in the behind with a sword.” One Arrow had no defence against such nonsense. When the jury returned a guilty verdict, Magistrate Richardson said he had to punish One Arrow to “make the other Indians of the country know what would become of them if they follow your bad example.” He then sentenced One Arrow to three years in jail.
On September 11, 1885 Big Bear was also brought to trial before stipendiary magistrate Hugh Richardson and a jury of six hand-picked Anglo-Saxons in Regina. Tried in English, Big Bear’s trial was once again a fraud – a show trial orchestrated by Prime Minister Macdonald, Minister of Justice Alexander and Chief Justice Wallbridge of Manitoba to ensure the great Okemah of the Cree was jailed and humiliated. Big Bear’s lawyer, Beverley Robinson, a Winnipeg lawyer appointed by the court, decided not to call all of his witnesses because he did not want to “bore” the jury. A number of these witnesses, including members of Hudson’s Bay Company Factor McLean’s family, had been prisoners of Big Bear’s band under the control of Wandering Spirit and the War Council and were supportive of Big Bear. They could provide evidence telling of his role in ensuring their safety and not participating in military decisions or actions, or being present when the killing happened at Frog Lake. Without this evidence the jury took only fifteen minutes to find Big Bear guilty of Treason Felony. On September 25, 1885 Big Bear too was sentenced to three years in the Stoney Mountain Penitentiary. In his address to the court Big Bear spoke in Cree for two hours:
Your Lordship, I am Big Bear, Chief of the Crees. The North West was mine. It belonged to me and to my tribe. For many, many moons I ruled it well. . . .
When White men were few in this land, I gave them my hand in friendship. No man can ever be witness to any act of violence by Big Bear to any White man. Never did I take the White man’s horse. Never did I order any one of my people to one act of violence against the White man… Everything that is bad has been laid against me this summer, there is nothing of it true. Had I wanted war, I would not be here now. I should be on the prairie. You did not catch me. I gave myself up. You have got me because I wanted justice.”
At Poundmaker’s trial, the key evidence was a letter which was never sent to Louis Riel. After being attacked by, and defeating, Col. Otter at Cutknife Hill, Fine Day’s War Council, seeking safety in numbers, prepared a letter preparing to join the Métis at Batoche. Poundmaker had been there when the letter was written and had signed it, along with a number of others. Although it was known that Poundmaker had prevented retaliation, and the annihilation, of the Canadian forces under Col Otter after their abortive attack on the sleeping Cree camp on Cutknife Hill, he too was convicted of treason. When Poundmaker was sentenced to three years in penitentiary, he stated, “I would rather prefer to be hung than to be in that place.”
Decolonizing Justice
The trials of these great Cree leaders set the stage, and today First Nations peoples continue to face a colonial judicial system that has oppressed Indigenous peoples since the imposition of the unequal, starvation, treaties, the implementation of the notorious Indian Act—in all its permutations, and the imposition of Canadian “Justice” with the establishment of the North-West Mounted Police and the colonial Territorial courts. Each of these leaders was “railroaded” by the Canadian Justice System. These men were not terrorists. All three deserve to have their trials re-evaluated and to be exonerated and recognized for their efforts at reconciliation 133 years ago. At present, there is an opening agreement between Poundmaker First Nation and Canada to see the “great peacemaker” exonerated.
As evidenced by the tragic death of Coulten Boushie and the trial of Gerald Stanley, the First Nations of the Eagle Hills, and Indigenous peoples across Canada, have a long history of racially biased Canadian injustice and marginalization. It is time for change with the Canadian justice system being de-colonized and justice made equal for all Canadians. My deepest condolences to the family and friends of Coulten Boushie.
Article ©: David Doyle, Powell River, BC V8A 3Z6, 604 223 3478, ddoyle.pr@gmail.com
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