Book Review: Sidney Harring's, White Man's Law (UTP, 1998)
|Book: White Man's Law: Native People in Nineteenth-Century Canadian Jurisprudence|
ZNet Book Page
Publisher: University of Toronto Press
An introduction to colonial law in 19th century Canada, Sidney Harring’s book White Man’s Law attempts to assess the standard claim within Canadian historiography that “the Canadian frontier was a legally structured frontier,” one that can be accurately “juxtaposed against the violence of the American frontier” (p.7). Harring makes the important point that whatever the actual historical differences in intent and practice, the consequencesof colonialism for indigenous peoples have been the same in both countries: decimation by disease, impoverishment, and dispossession (p.7).
Harring’s book focuses on “three distinct sets of inquiry” related to indigenous legal history: 1) pre-conquest indigenous legal traditions, 2) the interaction of the colonial and indigenous legal orders, and 3) the realm of colonial or “imposed law.” Harring does this by concentrating primarily on Upper Canada (what he calls the book’s “Ontarian core”), which, he argues, set the standard for post-Confederation Canadian Indian policy and law. A central premise of the book is that Canadian Indian policy was characterized by a political and legal policy of “liberal treatment,” which provided for “the orderly purchase of lands,” a relatively non-violent colonial process, and fair treatment of Indian peoples. But Harring argues that, beginning in 1837 with the first of the (proto) Indian Acts, “a policy of paternalism and protection” was superimposed over this earlier framework, and the two policies operated in often contradictory ways (p.11).
A major weakness of Harring’s book is his unqualified use of terms such as “legal,” “illegal,” and “frontier” in a colonial context. Harring seems to adopt a framework of “Natural Law” theory, which defines “Law” as essentially moral. As such, legislation that is clearly unethical, discriminatory, racist, or genocidal is said to be “illegal,” regardless of whether or not it was enacted by means of traditional legislative authority (colonial or otherwise). An example of this is Harring’s discussion of the “pass system” in the Canadian prairies, which attempted to confine Indians to reserves unless they possessed a colonizer-issued “pass” allowing them to leave for a specific, designated purpose. Harring emphatically states that this pass system was illegal, because it did not go through traditional legislative channels, and he has no problem dismissing the attack on Indian religion and cultural practices as a “legal absurdity,” but in other contexts he seems to accept the “legality” of the entire colonial imposition, and the “legality” of land ownership deriving from fraud or “divine right of kings,” if it happened sufficiently long ago. In his conclusion, Harring ends with the muddled statement that “Canadian law is often, to be blunt, illegal” (p.275) – which is a long way from the notions of “liberal treatment” and the “legally structured frontier” he introduced at the outset.
Another problem is Harring’s repeated assertion that Canadian colonialism was characterized by legitimate “land cession” treaties and “purchases,” as well as relative non-violence compared to the United States, despite the fact that the evidence Harring actually provides on a case-by-case basis is in direct conflict with his own claims. For example, even though Harring presents Upper Canada / Ontario as the foundation of Canadian Indian law and policy, and the example of ostensibly lawful and non-violent colonial expansion that became the general rule for the rest of Canada, Harring’s own discussion of the Grand River Six Nations calls this representation into question. Not only does he suggest that the lands “granted” to the Six Nations “for services rendered” during the American Revolution may have been fraudulently taken from the Mississauga Indians (p.36n), but he later states that the Six Nations themselves were “forced” to give up massive parts of this grant, under pretext of Indian “lawlessness,” once the land became coveted by “settlers” (p.158). When he goes on to actually discuss the rest of Canada, which was supposed to follow this lawful and non-violent precedent, Harring acknowledges the brutal “extermination” of the Beothuks in Newfoundland, the violent “gunboat diplomacy” of colonialism in British Columbia, and the use of deliberate starvation and threat of force in the prairies to “pacify” the Plains Indians – but in each case, Harring suggests these examples of violence were “aberrations.” One is left wondering how many “aberrations” are needed to call into question the “rule” of Canadian non-violence and “liberal treatment.”
Harring’s final chapter (“No Recognized Law:” Canadian Law and the Prairie Indians) argues that the prairie treaty-making process “degenerated into oppression, land theft, and starvation” (my emphasis), suggesting that such consequences were accidents, or born of war and the “chaos of the frontier,” rather than design. He also suggests that the arrival of the North-West Mounted Police (NWMP) “held out the promise of greater social stability on the plains,” and that the “most salient single fact in NWMP history is the story of its immediately favourable reception by the western tribes.” As with the rest of Harring’s book, he provides extensive details about colonial law, and colonizer perspectives on the law, which will be of interest and importance to any student of native history. But Harring’s own examples tend to undermine the claims he makes about Canada’s “legally-structured frontier,” and its supposed “liberal treatment” of Indians.
To give merely one example: Harring wonders why the Dominion government’s “efforts” to save the buffalo from extinction were “belated, inadequate, and short-lived,” and yet at the same time, he acknowledges that “Indian Department authorities were given direct orders to starve able-bodied Indian men.” Harring’s evidence clearly shows that colonial authorities wanted to starve Indian populations, break their resistance, destroy their culture, and confine Indians to “reserves” on unwanted lands. He acknowledges that colonial officials were well aware of the importance of the buffalo to Indian self-sufficiency, autonomy, and thus, their ability to resist – pointing to the U.S. policy of deliberate destruction of buffalo as a means of warfare below the “border.” Yet Harring is curious about the “belated, inadequate” measures of colonial authorities to protect the buffalo. Throughout his book, Harring’s premises and conclusions and assertions of government intent, are in conflict, not only with themselves, but with the actual details, evidence, and examples he provides.