“You thought the national flag was about a leaf, didn't you? Look harder. It's where someone got axed in the snow.”
Margaret Atwood, Strange Things: The Malevolent North in Canadian Literature (Oxford: Clarendon Press, 1995), 12.On September 25, 1885, Charles Borromée Rouleau, a French Canadian stipendiary magistrate, tried three Cree men for murder in a courtroom in Battleford, a small town in the Canadian Prairies.Footnote 1 Rouleau's court was in the North-West Territories, which stretched from the barren islands of the Arctic Circle to the northern border of the United States, and from present-day Alaska to the eastern shores of Hudson's Bay.Footnote 2 The defendants were Charles Ducharme (alias Charlebois), an eighty-five-year-old laborer, Wawasehowein (Dressy Man), a married man of sixty-five, and Wahsahgamass (Bright Eyes), who was only eighteen. They were accused of murdering an old woman named Riskeyak, known in English as “She Wins.”Footnote 3 At trial, witnesses described how, on the day of her death, Riskeyak was carried to the site of her execution wrapped in an animal skin. She knelt on the hide, surrounded by dozens of onlookers, both Cree and Euro-Canadian. Ducharme struck her on the side of the head with a green poplar stick. She fell to the ground. Wahsahgamass raised his pistol and fired; the powder scorched her bloodied hair. Wawasehowein then approached and buried his axe in her neck.Footnote 4 The prisoners did not contest this account in court.Footnote 5 A jury of six white settlers deliberated for twenty minutes before convicting the two older men of murder.Footnote 6 Their sentence was death. Wahsahgamass, perhaps because of his youth, was sentenced to twenty years' imprisonment for manslaughter.Footnote 7 But Ducharme and Wawasehowein were not hanged. Following their trial, word reached Ottawa, the Canadian capital, that Riskeyak's killing was no ordinary murder, and that she was no ordinary victim. She was a wendigo, a cannibal creature that stalked Cree communities in the snow and ice of the western plains.Footnote 8 Colonial officials expropriated, starved, and assimilated Canada's Indigenous peoples. They did not believe in wendigos. And yet, the wendigo's executioners lived. Why?
What follows is an account of Riskeyak's killing and the fate of her killers, Ducharme, Wawasehowein, and Wahsahgamass. Fragments of their story survive in the letters, petitions, and notes of evidence collected in the defendants' capital case file at the Canadian National Archives in Ottawa, and in the pages of Battleford's Saskatchewan Herald. These are colonial sources, produced during a period of military upheaval and white settler entrenchment. They hint at a tragic and fascinating episode in Cree legal history: the discovery that Riskeyak was a wendigo, efforts to rehabilitate her, and, finally, her judicial execution by three men charged with protecting their people from a supernatural predator. The archive also frames Riskeyak's death as a moment in the history of colonial Canadian, and British imperial, law: a cruel and mysterious crime, a flash of understanding, and the Canadian government's performance of mercy in its commutation of the defendants' sentences. These two legal processes, one Cree, one colonial, had different chronologies and different objects. The first ended with Riskeyak's execution, and the second, with her executioners' imprisonment. Cree law sanctioned Riskeyak's death. Colonial law demanded her killers' lives while doubting its right to take them.
Archival glimmers of a Cree legal history ground my understanding of what happened to Riskeyak and why. However, my quarry in this article is the colonial legalism detectable in the second, Euro-Canadian narrative.Footnote 9 Colonial sources make extrapolations about how nineteenth century Indigenous people understood their lives and their law tenuous and often presumptuous. However, it seems clear that the Cree and Euro-Canadian interpretations of the events surrounding Riskeyak's death were at odds: the Cree saw an execution; white jurors saw a murder. And yet, by November of 1885, when Ducharme's and Wawasehowein's death sentences were commuted, Euro-Canadian legal authorities in Battleford and in Ottawa had come to understand the killing as an act of self-defense, and even bravery. Officials' persistent doubts about the applicability of traditional common law understandings of mens rea and criminal responsibility to non-Britons created an unlikely, although incomplete, consonance between Indigenous and colonial interpretations of the guilt of Riskeyak's killers.
Historians have emphasized the tremendous complexity and pluralism of colonial legal orders.Footnote 10 Canadian authorities in the North-West regularly, if obliquely, acknowledged the persistence of Cree law, as Rouleau did when, after their trial, he argued that Ducharme, Wawasehowein, and Wahsahgamass believed that they were “in duty bound” to kill Riskeyak.Footnote 11 Scholars have used cases in which white settlers called for lenience on the grounds that Indigenous defendants had been acting within their community's customary norms to show how colonial invocations of legal pluralism served racist imperial ideology. Canadian historian Tina Loo writes that colonial authorities, as “cultural pluralists,” often raised what some have called “cultural defenses” in their post-trial reports on homicide cases involving Indigenous defendants.Footnote 12 Loo argues that these references to the cultural and legal difference of Indigenous people bolstered colonial narratives of white supremacy and “native” savagery.Footnote 13 In Law and Colonial Cultures, Lauren Benton describes an 1835 case in which white settlers in New South Wales argued unsuccessfully for clemency for Aboriginal men accused of raping a white woman on the ground that rape was supposedly “customary” among their people. She sees this as an “example of advocacy of legal pluralism as a vehicle for reinforcing cultural distinctions.”Footnote 14 Nineteenth-century British colonial officials and white settlers certainly did not equate acknowledging the existence of Indigenous law with recognizing its morality, sophistication, or legitimacy. For them, adherence to the common law was a badge of civilization; non-adherence, evidence of primitivism.
However, a single-minded emphasis on the role of judicial invocations of pluralism in the colonial construction of “native” inferiority obscures its place in imperial jurisprudence and the legal history of the British Empire. In the late nineteenth century, jurists across the British world became obsessed with the common law concept of mens rea, or fault. Criminal responsibility depended on proof that the defendant had acted deliberately, a prong of the legal test for guilt that new, deterministic medical and anthropological theories seemed to threaten. When colonial legal officials argued that an Indigenous defendant should not be held criminally responsible for his or her actions because of his or her fealty to an alternative legal order, they were intervening in a debate about responsibility and civilization that exercised the British world.Footnote 15 Pluralism discourse cast Indigenous defendants as primitive, but also as unfit subjects for judgment—and, consequently, for punishment—under the common law. Colonial officials in the British world saw a community's legal order, including their own, as a reflection of its people's nature. For them, Indigenous moral and intellectual alterity and legal alterity were sides of the same coin. Legal pluralism, as elaborated by colonial authorities, implied not only the coexistence of different legal orders, but also the coexistence of different categories of person. Pluralism and impunity were twinned in British legal-anthropological thought, and colonial officials knew it. Cases involving Indigenous defendants were sites for the elaboration of a complex and often self-contradictory colonial criminal jurisprudence.
The Ducharme case, as I call it here, exposes a genuine dilemma at the core of common law jurisprudence in the British Empire. The implications of pluralism for criminal responsibility mattered deeply to the lawyers who administered justice in British colonial courts in the late nineteenth century. At stake was the general amenability of non-Europeans to British law, and especially to common law understandings of choice, guilt, and responsibility. Pluralism was a seductive idea, but it was also dangerous. The legal difference of Indigenous people in the colonial imagination cut both ways: it justified conquest while simultaneously undermining the legitimacy of the common law, the British Empire's most potent ideological and administrative tool, as a system of colonial governance. Colonial officials invested in the notion of Indigenous legal alterity could find themselves in the uncomfortable position of arguing that the common law was neither universal nor universally just. Colonial authorities' interest in pluralism led them to debate and even to decide criminal cases according to what they imagined to be the precepts of Indigenous law and belief, even in contexts in which colonial jurisdiction was ostensibly exclusive. Occasionally, as in the case of Riskeyak's killers, this process brought colonial and Indigenous understandings of a defendant's guilt into a degree of unexpected harmony.Footnote 16 Each of the three subsequent sections situates the Ducharme case in a distinct, but related, context: the history of late-nineteenth-century Indigenous–colonial relations in the North-West, the legal history of the wendigo, and the history of British imperial criminal law. Together, they evoke the heterogeneous legal landscape of the Canadian Plains, and show how the wendigo made its way from Cree law into the common law.
In this article, I use both “Canadian” and “British colonial” to describe settler law, evoking the wider world in which the servants of empire attempted to administer the common law. This reflects my effort, as Sally Merry urged legal scholars in 1988, to “understand the particularity of small situations and the interaction of large systems at the same time.”Footnote 17 The circumstances of the Ducharme case are particular to the geography, culture, and history of the North-West Territories. Charles Rouleau, the judge in the Ducharme case, was French-Canadian, a member of a community with an ambivalent relationship to Canadian Confederation and to the English-speaking majority population. Despite its unique history and significant degree of administrative autonomy, the Dominion of Canada remained, in a fundamental way, a British colony in 1885. Charles Rouleau, despite his French heritage, was sent to the North-West to apply British common law principles to the Indigenous people who lived there, just as similar men were dispatched to Madras, New South Wales, or Jamaica.Footnote 18 Situating the Ducharme case not only in the history of Western Canada but also in the broader history of law in the British Empire shows its explanatory power. The people involved did not live their lives on an imperial scale.Footnote 19 They were not particularly cosmopolitan, polymathic, or well-traveled.Footnote 20 However, Riskeyak's death drew them together under the auspices of a legal order that crossed continents, and which its elaborators styled as the thread that bound the empire together.Footnote 21 The central tensions and dynamics of the Ducharme case were repeated in other places, at other times. In this sense, Rouleau's court in Battleford was an imperial space, and the story of Ducharme, Wawasehowein and Wahsahgamass became an imperial case.
Death in the North-West
1885 is a significant year in the history of Canada. That spring, First Nations and Métis rose against an increasingly rapacious Canadian state, which promoted white settlement in the West through the expropriation and pacification of the region's Indigenous peoples. Riskeyak's death was not a direct result of this rising, now known as the North-West Resistance of 1885.Footnote 22 However, her story is inextricable from the broader history of the Resistance. Riskeyak died in April, only days after members of her band led two military assaults on colonial stations. After Canadian forces put down the Resistance and captured its leaders, Ducharme, Wawasehowein, and Wahsahgamass were tried alongside the men accused of killing settlers during the conflict. Their case was heard by Rouleau, who was one of a handful of stipendiary magistrates in the Territories, and Pierre Chrysologue Pambrun, a justice of the peace and the Métis son of a famous French Canadian fur trader.Footnote 23 The Battleford press reported on the Ducharme case as if it were an unremarkable part of the Resistance's legal aftermath, bookended by summaries of cases in which First Nations defendants admitted to stealing settlers' livestock during the siege of a North-West Mounted Police (NWMP) fort.Footnote 24 On the November day that Ducharme and Wawasehowein had originally been sentenced to die, eight First Nations prisoners were hanged in Battleford.
Today, Ducharme and Wawasehowein's capital case file is stored among the ones compiled for those eight men. And yet, because Riskeyak's execution sits uneasily alongside the crimes against settlers with which other First Nations defendants were charged, the case is absent from almost all histories of the Resistance. This is a missed opportunity. The Canadian government saw the 1885 Resistance as a crisis; the criminal cases against Indigenous people who participated in the uprising were, in the words of one official, “very exceptional ones.”Footnote 25 The Ducharme case, in contrast, represented the usual business of colonial justice in the North-West, and exposed its inherent tensions. The men and women who appear in the archive in relation to the case provide a cross-section of the complex social world of the Plains, which included local Cree and Métis people, Catholic missionaries, Hudson's Bay Company (HBC) traders and interpreters, white settlers, mounted police, and a French-Canadian judge. It dramatizes the conflict between Indigenous and common law legal systems that defined colonial governance in the late-Victorian British Empire, and shows that the Resistance did not extinguish or resolve that conflict. Even as the Canadian judicial apparatus targeted some Indigenous defendants for brutal and didactic deaths, legal authorities, such as Charles Rouleau, insisted that the integrity of the colonial system depended on an acknowledgement of Cree tradition. The following section introduces some key moments in the history the Resistance, as well as Rouleau, Ducharme, and Wawasehowein's unlikely advocate.
In 1867, the British North America Act united Nova Scotia, New Brunswick, and the province of Canada, which then consisted of Canada East and Canada West, formerly Lower and Upper Canada (modern Québec and Ontario), creating the Dominion of Canada.Footnote 26 The new Dominion moved quickly to consolidate its power over the West. Rupert's Land and the North-West Territory, the land between Ontario and the British Columbia border beyond the Rocky Mountains, had long been administered by the HBC, which operated a network of trading posts in the region. White settlers poured into the plains, seizing land and resources from the Cree, Assiniboine, and Saulteaux First Nations and Métis peoples who lived and traded there.Footnote 27 In 1870, the HBC purported to sell these territories to the Canadian government, over Indigenous peoples' objections.Footnote 28 That year, Prime Minister John A. MacDonald celebrated the influence of white settlement on the Indigenous peoples of the North-West who were, in his view, “as a whole, quite loyal, though they would have preferred their present wild and semi-barbarous life to the restraints of civilization that will be forced upon them by the Canadian Government and the new settlers.”Footnote 29
In 1869 and 1870, First Nations and Métis communities rebelled against Canadian incursions against their sovereignty in the Red River Resistance.Footnote 30 Louis Riel, a charismatic Métis politician and self-proclaimed prophet, led the revolt.Footnote 31 The 1870 Resistance induced the Canadian government to negotiate with the Métis over individual land claims, and to create the new province of Manitoba.Footnote 32 Over the next several years, North-West Cree leaders, such as Mistahimaskwa (Big Bear) of the Fort Pitt region in the District of Saskatchewan, worked to protect their people's autonomy and to preserve their access to the dwindling buffalo herds.Footnote 33 In 1876, Treaty 6 and the Indian Act reconfigured the legal relationship between the plains First Nations and the Canadian government.Footnote 34 The so-called “numbered treaties,” including Treaty 6, were negotiated between the Crown and First Nations peoples beginning in the late nineteenth century, spurred by the government's desire to secure land for white settlers.Footnote 35 Mistahimaskwa initially resisted entreaties to join Treaty 6, but the disappearance of the buffalo forced him to enter the treaty by adhesion in 1882. However, he thwarted the government's efforts to confine his band to a small, isolated reserve by moving camp regularly. He also worked to unite the region's First Nations into a powerful bloc to demand a single, large territory on the North Saskatchewan River.Footnote 36 Meanwhile, paranoia and resentment defined the relationship between government agents and Cree on the reserves.Footnote 37 The government adopted increasingly punitive policies to force First Nations to conform to Euro-Canadian fantasies of work-discipline and “civilization,” often withholding rations from increasingly hungry, impoverished, and restive people.Footnote 38
In 1885, Riel led another more widespread uprising in the North-West. The Plains Cree resisted government authority by refusing to follow orders, holding gatherings, cooperating across communities, and moving their camps without permission. The government responded with policing, false promises, and strategic starvation.Footnote 39 The Métis declared war. Shortly thereafter, violence erupted at Frog Lake, a small settlement recently established in the District of Saskatchewan, which served as an agency for the Department of Indian Affairs, a trading post, and a Roman Catholic mission.Footnote 40 Mistahimaskwa's band, then consisting of approximately 250 people, approached the settlement.Footnote 41 A group of young Cree men in Mistahimaskwa's camp, convinced that passive resistance had failed, attacked, killing nine of the twelve settlers whom they found at the agency.Footnote 42 Ten days later, after a brief siege, the Cree seized the government station at Fort Pitt, 55 kilometers southeast of Frog Lake. Fort Pitt consisted of six buildings nestled in a grassy plain near the Saskatchewan River. Four were occupied by HBC traders and their families, and two housed a detachment of twenty-four NWMP officers.Footnote 43 Negotiations between the residents of the fort and Mistahimaskwa's men floundered, and one NWMP constable, David Lattimer Cowan, was killed. The twenty-three surviving mounted policemen escaped upriver in a rickety scow, which the HBC traders had hastily constructed in the fort's central square days before.Footnote 44
The twenty-eight civilians who remained behind, both white and Métis, became prisoners of the Cree.Footnote 45 The prisoners were well treated during the six weeks that most would remain with Mistahimaskwa's band.Footnote 46 They were allowed to circulate fairly freely within the camp, becoming familiar and even friendly with their captors.Footnote 47 It was in the camp, in wartime, surrounded by captured HBC agents, that Ducharme, Wawasehowein, and Wahsahgamass executed Riskeyak. She died on or around April 16, 1885, only two days after the capture of Fort Pitt.Footnote 48 The intimacy between the Cree and the Fort Pitt and Frog Lake prisoners that the war precipitated ensured that Riskeyak's execution did not go unnoticed by the colonial state. Within hours of their arrival, the white and Métis outsiders learned of the sick old woman whose plight troubled the Cree. Within days, many witnessed her death. Months later, during Ducharme, Wawasehowein, and Wahsahgamass' trial for murder, they would testify about what they had seen.
In the fall after Riel's defeat, the Cree went to court. Nine members of Mistahimaskwa's band were tried for murder in late September and early October: six for crimes committed against settlers at Frog Lake, and three, Ducharme, Wahsahgamass, and Wawasehowein, for killing Riskeyak. Charles Rouleau was the judge in every case. Rouleau was a French Catholic lawyer originally from Lower Canada (Québec). He had been appointed to his post in 1883, and moving his household from Ottawa to Battleford in the dead of winter. The town of Battleford became the territorial capital of the North-West Territories in 1876. Its homes and government buildings were overshadowed by the hulking Fort Battleford, an NWMP garrison perched on the high ground between the Battle and North Saskatchewan rivers.Footnote 49 Battleford was surrounded by Cree reserves. The 1885 North-West census estimated that the District of Saskatchewan, where Battleford was located, then contained 6,260 “Indian” inhabitants, 2,594 Métis, and only 1,892 whites out of a total population of 10,746.Footnote 50 As discontent mounted among the Indigenous peoples of the North-West, more and more police were stationed at Fort Battleford. The NWMP complement at Battleford, the most heavily manned station in the Territory, grew from 103 men in 1884 to 197 by the end of 1885. The number of police in the whole of the North-West swelled rapidly during the Resistance. Six hundred and eight recruits joined the NWMP in 1885, nearly doubling its forces in the space of a year, to a total of 1,039 men.Footnote 51
As settler pressure and military presence intensified in the region around Battleford, Rouleau settled into his role as a judge. He was contemptuous of the region's First Nations peoples, but proud of what he interpreted as their enthusiasm for his legal services and expertise. Early in his tenure, he complained that he could not make the Cree “understand anything pertaining to the administration of justice.”Footnote 52 And yet, according to Rouleau, First Nations and Métis people seeking legal advice came to his house every day that court was not in session, even though he often had to scour the neighborhood for willing Cree interpreters.Footnote 53 In the spring of 1885, First Nations forces briefly took Battleford. White settlers, including Rouleau and his family, fled. Rouleau watched his house burn down from across the banks of the North Saskatchewan River.Footnote 54 He especially lamented the loss of his impressive library, which included British, American, and Canadian treatises, law reports, and statute books that he had brought with him to the North-West.Footnote 55 As a judge, he was known for his scholarliness and penchant for punitive sentencing. His judgments consistently emphasized jurisprudence over precedent, and he had a long-standing interest in judicial reform.Footnote 56 He was also, according to one biography, “known to dislike Aboriginals.”Footnote 57
In the aftermath of the Resistance, the Canadian government rationed costs and political capital by limiting its harshest retribution to its leaders and anyone accused of murder or “outrage.”Footnote 58 The Indigenous defendants accused of killing whites in what quickly became known as the “Frog Lake Massacre” were singled out for exemplary punishment. It is likely that their trials, like those of many rebels, were only for show. Britton Bath Osler, a prominent Toronto lawyer who assisted in the Canadian government's prosecution of Métis rebels in Regina, observed that another lawyer had “made a very eloquent speech in their [the Métis defendants'] favour, but it had no effect as the sentences had been fixed before the court opened.”Footnote 59
Colonial authorities like Rouleau read the anti-settler violence of the Resistance as political—as earthly and intelligible in a way that wendigos, in their estimation, were not. Euro-Canadian authorities did not doubt their right to punish those whom they labeled political murderers and traitors under Canadian law. Rouleau, who at the time was still waiting for his house to be rebuilt, heartily recommended the speedy execution of the First Nations defendants convicted of killing white settlers at Frog Lake.Footnote 60 Manachoos (Bad Arrow) and Kittimakegin (Miserable Man) were convicted, Rouleau crowed, on the basis of evidence “so direct and conclusive that there can be no doubt as to their guilt.”Footnote 61 The proof in the case of another defendant “cannot be stronger,” wrote Rouleau, “and the prisoner richly deserves also the sentence pronounced on him.”Footnote 62 Louison Mongrain, who was tried for the murder of Constable Cowan at Fort Pitt, declared in court that he pitied Ducharme, “the old man who was sentenced to-day.”Footnote 63 Rouleau shared Mongrain's dismay at Ducharme's conviction, but expressed his horror at Mongrain's alleged crime. “I never heard of anything more cruel than that a man who saw another lying wounded and defenceless should kill him,” Rouleau chastised, before pronouncing Mongrain's death sentence.Footnote 64 Riskeyak's killing did not strike Rouleau as similarly cruel. Rouleau decried the killings of white settlers as uniquely shocking and savage. In contrast, Riskeyak's death inspired curiosity rather than horror. Because all of the parties in the Ducharme case were Cree, Euro-Canadians in the North-West, even in the wake of the Resistance, could interpret her death as a question of “superstition” and Cree tradition, rather than an attack on settler society.
Although Rouleau was not particularly moved by Riskeyak's death, the plight of her killers troubled him. In his instructions to the jury in their case, he raised the possibility that the defendants might be found guilty of manslaughter rather than murder. “The parties were not civilized,” he wrote after the trial, “and may perhaps have thought it was in self-defence; in that case it would be manslaughter.”Footnote 65 Ultimately, the jury found Ducharme and Wawasehowein guilty of murder, but convicted Wahsahgamass only of manslaughter. The archive does not reveal why the jury considered Wahsahgamass to be less culpable than his co-defendants. Like Ducharme and Wawasehowein, Wahsahgamass had no legal representative, and offered no defense. Wahsahgamass was accused of shooting Riskeyak after Ducharme had struck her with the stick, and before Wawasehowein approached with his axe. No evidence was offered to suggest that Wahsahgamass viewed the circumstances of the killing differently from his co-defendants or that he was coerced.Footnote 66 The best explanation for Wahsahgamass' manslaughter conviction is that the jurors were swayed, at least in part, by Rouleau's interpretation of the case: that the defendants executed Riskeyak because they believed that she was a wendigo. For his part, Rouleau thought that the white jurors had convicted Ducharme and Wawasehowein of murder despite the fact that they knew that they had killed Riskeyak in a genuine act of self-defense because “the jury thought that it was time to put down such a superstition.”Footnote 67 Before pronouncing Ducharme's and Wawasehowein's mandatory death sentences, Rouleau expressed his dissatisfaction with the verdict, and his intention to appeal to “a power that [was] higher than [his], to which [he would] send all the evidence.”Footnote 68
Many features of the Ducharme case seem, at least at first, to suggest that it was exceptional. The wendigo rumors that swirled around Riskeyak distinguished the case from the wartime killings of settlers and policemen. Riskeyak was the only Indigenous person whose killers were prosecuted at Battleford in the summer of 1885. In other ways, however, the Ducharme case opens a window into the quotidian operation of colonial criminal justice in the North-West. The case revolved around a set of dilemmas that predated the Resistance, and persisted after it. Whereas the cases against Indigenous people who had killed white settlers during the Resistance struck government officials as simple, even summary, Riskeyak's identity as a Cree woman changed the colonial political and moral calculus. Her death was not a literal assault on white settlers. Without this impetus for revenge, colonial officials could indulge their anthropological interest in Cree culture. They could allow themselves to acknowledge the jurisprudential complexity that Cree legality introduced, unbidden, into colonial criminal courts. Some officials saw the Ducharme case as an opportunity for exemplary punishment. They wanted to use the case to assert the jurisdiction of “civilized” common law over the Indigenous people of the Prairies. In that sense, the plural legal order represented by the case threatened the triumphant, chauvinistic settlerism that was then ascendant. Others, however, acknowledged the genuine difficulties that cultural and legal diversity presented for common law jurisprudence.
The Wendigo and Cree Law
Two features of the Ducharme case marked it as a particularly Cree matter in the Euro-Canadian imagination: the fact that Riskeyak and her killers were Cree, and the specter of the wendigo. Her death was a spectacular demonstration of the vitality of Cree culture and Cree law, which drew the attention of the settler colonial state. By the time of Ducharme, Wawasehowein, and Wahsahgamass's trial, the North-West Resistance had failed in its military campaign against Canadian forces. And yet, colonial authorities could not pretend that their victory had been complete. Killings by people identified as wendigos and executions of accused wendigos were rare, but compelling. In 1885, the wendigo was a symbol of the legal and cultural difference of the Plains Cree in the eyes of Euro-Canadians in the North-West.
The wendigo has a long history. Anishinaabe scholar and storyteller Basil Johnston describes it as a kind of malevolent manitou, or spirit.Footnote 69 The wendigo was a giant predator that concealed itself in blizzards and in the dense, boreal forests of the subarctic. Its hunger for human flesh could never be sated; even as it feasted, it starved. It was, Johnston writes, a loathsome creature, “gaunt to the point of emaciation, its desiccated skin pulled tautly over its bones.…What lips it had were tattered and bloody from its constant chewing with jagged teeth.”Footnote 70 The wendigo was often described as a spirit that parasitized a human being, slowly transforming its host into a monster.Footnote 71
Johnston's contemporary account of the wendigo captures historical reports of the being in the Ducharme case and in similar criminal cases.Footnote 72 Today, some Indigenous scholars have understood the wendigo as a metaphor for greed and selfishness; as a legal category describing those who harmed themselves or their communities by violating taboos, or as an expression of mental illness.Footnote 73 Outside Indigenous communities, the wendigo has been described as a “celebrated” and “perennial staple” of Algonkian mythology, and also as the defining symptom of a culture-specific psychiatric disorder.Footnote 74 Beginning in the 1920s, wendigos became objects of Western social-scientific fascination, evidence of the purported exoticism and primitivism of First Nations peoples. In the 1970s, some scholars argued that the wendigo was a symbolic expression of a community's horror when a member violated taboos against cannibalism.Footnote 75 Others countered that the wendigo was a postcolonial construct, born out of Western racism and fear of Indigenous people who only, if ever, resorted to cannibalism in cases of extreme privation and social disorder.Footnote 76 Some explained the wendigo as a label applied to social outcasts and weak members of Indigenous communities in order to justify their execution.Footnote 77 In the late twentieth century, scholarship on wendigos focused on so-called wendigo “psychosis,” in which a sufferer became convinced that he or she had become, or would become, a wendigo.Footnote 78
The wendigo raises complicated questions for outsiders about what to believe. This was true for nineteenth-century Euro-Canadian authorities, and it is true for scholars now. When the Ducharme case was tried, colonial authorities assumed that the wendigo—at least in its supernatural manifestations—did not exist. It was what Ducharme, Wawasehowein, and Wahsahgamass believed about the wendigo that mattered in assessing their culpability. Cree legal scholar Hadley Friedland has lamented the preoccupation of historians with wendigo executions, and with sensational tales of monsters and cannibals.Footnote 79 She argues that this emphasis on the supernatural aspects of the wendigo and on establishing the “‘honestly held’ belief in the wetiko” detracts from the perceived legitimacy of the legal processes that the concept engaged, and the potential usefulness of these processes in addressing contemporary challenges facing Indigenous communities.Footnote 80 Friedland's position is persuasive, especially from a contemporary policy perspective. Instead, historians might focus their attention not on the “genuineness” of Cree belief in the wendigo, but on how colonial officials formulated, tested, and responded to the idea of this belief.Footnote 81 The controversy in the Ducharme case was about how colonial authorities tried to determine, and to judge, what the defendants thought they were doing when they executed Riskeyak. Rouleau, like many white missionaries, officials, and traders in the North-West, believed in the belief in wendigos.
Ducharme, Wawasehowein, and Wahsahgamass left no personal correspondence by which to gauge their motives for killing Riskeyak, or how they felt about their prosecutions for her murder. We also cannot know how they understood the relationship between Riskeyak and the wendigo. And, keeping Friedland's caution in mind, the nature of their personal beliefs is, in some ways, tangential to an exploration of how colonial authorities debated their guilt. However, some engagement with the question of what the members of Big Bear's band thought about Riskeyak's condition in the spring of 1885 is necessary in order to situate her execution within the realm of Cree law. The archive cannot describe exactly how they understood the wendigo and its place in their spiritual lives. However, contemporary Indigenous scholarship does offer some guidance in how to interpret historical wendigo executions. John Borrows, a scholar of Canadian Indigenous law, has argued that nineteenth century wendigo cases allow us to grasp a valuable and humane strand of Anishinaabe law, in which people acted collectively to evaluate, support, and, in extreme cases, remove persons who threatened the safety of the community.Footnote 82
Who was Riskeyak, and how did she understand what happened to her in the spring of 1885? She appears only in traces in the colonial archive. One Cree witness in the Ducharme case, Paskwyak, said that Riskeyak's daughter reported that her mother refused to eat in the days before her death. Reverend Charles Quinney, a white captive who had witnessed the execution at Fort Pitt, described a meeting with Riskeyak during which he learned that the old woman had not slept for seventeen nights.Footnote 83 She was universally described as elderly and weak from sickness and hunger, although her precise age and the nature of her illness are not specified in the case records. Riskeyak spent her last days confined to her tent, while an anxious crowd lingered outside. She was not alone. Members of her family visited her often, as did many of the white and Métis prisoners taken at Frog Lake and Fort Pitt. François Dufresne, a Métis man who worked as an interpreter for the HBC at Fort Pitt, testified that the Cree urged him and other prisoners to check on Riskeyak. “On the day she was killed,” recounted Mooswar, another Cree witness, “I heard her say that if she were not killed before sundown she would kill all the children & eat them.”Footnote 84
Riskeyak was sick for weeks before her death. Although there is no direct evidence of attempts to cure her, visits by her family and community members over seventeen days suggest some hope of improvement, even if it was ultimately dashed. Her condition and her confinement were not sudden or secret, and her community, including her daughter, seems to have agreed about the nature and danger of her affliction. These reports also suggest that Riskeyak shared her community's belief that she was slowly becoming a wendigo. Many witnesses averred that Riskeyak begged for death before her execution, and that she feared that her transformation into a cannibal was nearly complete. The Cree had tried, one Euro-Canadian lawyer wrote, to persuade their white captives to kill the wendigo for them. When they refused, Ducharme, Wawasehowein, and Wahsahgamass bravely offered to do the dangerous work.Footnote 85 Before striking her, Ducharme reportedly declared, “My friends you asked everybody to kill that woman and nobody would do it. After I strike her, don't say I struck the old woman and laugh at me.”Footnote 86
It is important to note that the impression that Riskeyak welcomed her death is only an inference. The witnesses in the Ducharme case may have had their own reasons for portraying her as a willing victim, and some details cut against this theory. For example, Dufresne testified that a prisoner, Henry Quinn, the nephew of Indian Agent Thomas Quinn who was killed at Frog Lake, was compelled to bind Riskeyak's legs before her execution.Footnote 87 The old woman was carried from her tent to the site of her execution on an animal skin; she did not walk freely to her death, even though Dufresne claimed that she had recently been strong enough to move camp on foot, although with the aid of a walking stick.Footnote 88 This use of restraints troubles the notion that Riskeyak assented to her killing. On the other hand, however, she might have been bound and carried not because she resisted her execution but because, as a wendigo, she was dangerous and unpredictable. It also remains possible that Riskeyak was killed because she was a drain on her community's scarce resources, or because ritually killing her in front of the captured whites was an assertion of the autonomy of Cree custom. W. Prescott Sharpe, the lawyer sent to Battleford to prosecute the Indigenous men accused of murder, wrote a letter to John Sparrow David Thompson, the Minister of Justice, that hints at an ulterior motive for Riskeyak's killing. According to Sharpe, Quinney had been briefly convinced that the old woman “had prophesied the success of the troops over the Indians and hence the feeling of the camp was against her,” although he had later abandoned the theory that Riskeyak was killed out of resentment or because she was a harbinger of defeat.Footnote 89 Although other interpretations of the archival evidence are possible, I believe that Riskeyak's killing was not capricious or cruel; its violence was not inflicted to punish the victim, but to protect the community whose burden two old men and a young one had shouldered. Still, it cannot be known for certain whether or not Riskeyak really wanted to die.
Although non-Indigenous scholars routinely overlooked the legal aspect of wendigo executions in the twentieth century, many nineteenth century observers did not.Footnote 90 In his closing argument in the Durchame trial, Sharpe stressed that the jury must not make the mistake of thinking that Riskeyak's execution was legal. “Even if the woman were mad,” he said, “there was no law for her death.”Footnote 91 Sharpe's intention was, of course, to argue that Riskeyak's killing was not a judicial execution or an act of self-defense, but a murder. However, one might glean from his statements that the prosecution felt that the killing appeared, or risked appearing, to the jury as lawful. Many whites in the North-West did consider the execution of wendigos to be legally justifiable, at least among the Cree. One French Catholic priest argued that Ducharme, Wawasehowein, and Wahsahgamass had been “appointed as executioners” by a Cree community that lacked the carceral institutions to manage people like Riskeyak. “As the Indians have no jail, no asylum, no place to incarcerate & get rid of those dangerous beings [wendigos],” he wrote, “it has always been the use in their Community to kill them for the protection of the rest.”Footnote 92 Rouleau's view was that the defendants in the Ducharme case had acted in self-defense and out of a misguided sense of duty. He described Riskeyak's death as a “killing” rather than as an “execution” in his official correspondence. However, he returned, again and again, to the idea that duty animated Ducharme, Wawasehowein, and Wahsahgamass, suggesting that he also saw the killing as a legal obligation, or at least as analogous to one. Even though the killing brought the defendants within the jurisdiction of colonial criminal law, legal authorities acknowledged their membership in an alternative normative order.
The Ducharme case was not the first time that Charles Rouleau and other Euro-Canadians in the North-West learned of the existence of wendigos. Only six years earlier, one of the most gruesome wendigo cases in historical memory had been tried at Fort Saskatchewan, in present-day Alberta.Footnote 93 In the summer of 1879, Kakisikutchin (Swift Runner), a Cree man, was tried for the murder of his wife, Charlotte, who was also Cree. The judge in Kakisikutchin's trial was Hugh Richardson, a white Protestant. Richardson was Rouleau's predecessor as stipendiary magistrate at Battleford, and he would try Louis Riel and his allies at Regina in the summer and fall of 1885.Footnote 94 The jury included three English-speaking Métis and four white men who were “up on the Cree language.”Footnote 95 Kakisikutchin and Charlotte had been married for several years, and had six children.Footnote 96 That winter, the family had parted ways with the rest of their community on the banks of The Long Lake, about a day's walk from the nearest Hudson's Bay trading post. The Cree struggled to survive in large camps over the long and barren winters of the northern Prairies, and it was their custom to split into small, mobile groups who could seek scarce game over a larger territory.Footnote 97 No one would have been surprised when the family disappeared into the woods.
Kakisikutchin reappeared, alone, in early spring. He told Charlotte's father that the family had slowly starved to death in the wilderness. Kakisikutchin “was the only one left… [H]is wife was brave she had shot herself that two of his children had died and he had buried their bodies as well as he could, and that the rest of his family had then left him.”Footnote 98 But Charlotte's father could not help but notice that his son-in-law “did not look very poor or thin, or as if he had been starving.”Footnote 99 In June, Kakisikutchin and three policemen set out to find the bodies of his wife and children in the forest.Footnote 100 After much cajoling, the prisoner reluctantly brought his escort to the graves. Nearby, the police found skulls, bones, hair, and clothing. In the ashes of campfires, they discovered entrails.Footnote 101 “The skulls and bones had all been boiled,” said one medical man, “and the long ones appeared so broken [sic] that the marrow could be extracted.”Footnote 102 Kakisikutchin had killed and eaten his family. Throughout the trial that followed, Kakisikutchin asked no questions and called no witnesses. Near the end of the proceedings, one of the policemen read out Kakisikutchin's confession. He admitted to shooting, strangling, and chopping up his wife and children with an axe.Footnote 103 They were never more than a day's walk from food and rescue. When asked if he wanted to say anything to the jury, he replied, “No. I did it.”Footnote 104
On the day of Kakisikutchin's execution, sixty First Nations and Métis people trudged through thick snow into the prison yard to watch the hanging.Footnote 105 The case made a stir among government officials in Ottawa as well. Justice Minister Alexander Campbell wrote to the Prime Minister, John A. Macdonald, to share his views on Kakisikutchin's case.Footnote 106 Judicial executions were always likely to attract crowds, but the belief that Kakisikutchin was a wendigo drew Indigenous people to Fort Saskatchewan that winter. Kakisikutchin's legal file contains none of the explicit discussion of wendigos that Ducharme's and Wawasehowein's does. His sentence was not commuted, and there is no evidence to suggest the authorities even considered it.Footnote 107 In this case, Cree and colonial law seem to have been in agreement about how to deal with Kakisikutchin.
Such a crime, and the rumors of supernatural monstrosity that accompanied it, would not be easily forgotten. In 1885, Charles Rouleau, even though he was new to the North-West, took the horror of wendigos as a given. As Hugh Richardson judged Métis and First Nations prisoners in Regina after the Resistance, he might well have thought back on the trial that he had presided over at Fort Saskatchewan.
The Problem of Malice
In common law jurisprudence, the mental element of guilt inheres in the intentionality of a defendant's conduct, not his or her motives. Without a guilty mind—mens rea—a person's act is not a crime.Footnote 108 Nineteenth century British criminal law distinguished between accidents and intentional harm, and also between defendants who were mentally capable of choosing their acts, and those, like infants, the insane, or even the irate, who were not.Footnote 109 American jurist Oliver Wendell Holmes famously captured the reason for the mens rea requirement: “Even a dog distinguishes between being stumbled over and being kicked.”Footnote 110 Mens rea is usually imagined as a cognitive, rather than an emotional, quality, based on a liberal understanding of human beings as fundamentally autonomous and rational.Footnote 111 The Victorians were famously committed to a vision of the ideal self as controlled, independent, and self-contained.Footnote 112 A clean conscience was not a defense to murder. Except, of course, when it was.
Three days after the Ducharme trial, Rouleau wrote to John Sparrow David Thompson, the newly appointed minister of justice, in Ottawa. Rouleau explained that he disagreed with the jury's decision to convict Ducharme and Wawasehowein of murder. “Taking into consideration their degree of civilization; the impression under which they were, that they could and were in duty bound to do away with their victim, I think,” he wrote, “that in law the degree of malice was not sufficient to justify the Jury to bring a verdict of murder.”Footnote 113 He argued that the defendants' low “degree of civilization” was proved by their belief in wendigos and in their duty to execute them. Colonial legal officials such as Rouleau and Thompson wanted the justice they dispensed to be, and to appear to be, just. They also hoped to assert the supremacy of British criminal law, especially in cases of killings.Footnote 114 A dead body was a challenge to state authority, but also an opportunity for a colonial government to meet that challenge with a performance of forbearance, administrative competence, and justice.Footnote 115 By the end of the nineteenth century, the primary project of British rule had mutated from conquest to pacification. The norms of judicial punishment had, in Foucauldian terms, shifted from spectacle to discipline. Criminal law had to be supreme, but it also had to appear to be just.Footnote 116 The twin projects of pacifying Indigenous peoples through the imposition of colonial criminal law and performing the mercy and justice of colonial governance, although generally mutually reinforcing, could clash in homicide cases involving Indigenous defendants.
From the middle of the nineteenth century, common law judges around the world increasingly confronted cases that hinged on a person's capacity to be held responsible for his or her actions.Footnote 117 Criminal cases involving Indigenous defendants were likely to raise mens rea questions. Occasionally, Indigenous defendants succeeded in convincing British authorities that they had committed their crimes while insane.Footnote 118 However, most defendants, whether in Britain or in the empire, could not meet the notoriously strict common law definition of insanity.Footnote 119 Despite their inability to mount a convincing insanity defense, British authorities could be reluctant to apply common law punishments to Indigenous defendants. Many Victorian scientists and social theorists denigrated supposedly “savage” people for their weak wills, ignorance, and uncontrollable passion. Indigenous people seemed, if forced to live under the authority of a British legal system, to have little chance of not committing a crime. In The Pathology of Mind (1895), English psychiatrist Henry Maudsley described the belief among some Victorians that the non-European peoples of the empire were doomed to fall afoul of “civilized” prohibitions against violence: “Being the fit product of his time and place, and his immoral doings the right things for him to do then and there, he [the ‘savage’] is necessarily unfitted to feel, think, and act in the vastly more complex conditions of civilized existence, where his natural ways and doings necessarily cause him to be treated as noxious vermin. [A] low savage in a civilized society must needs fare almost as badly as a carnivorous animal would fare in a land of herbivorous animals which it was forbidden to eat.”Footnote 120
Could it be just, wondered Rouleau, among other colonial authorities, to expect the same degree of self-control, thoughtfulness, and forbearance from “savages” as the law demanded from civilized men? In Rouleau's view, the Cree law that demanded Riskeyak's execution exerted an emotional and moral pull over Ducharme, Wawasehowein, and Wahsahgamass that they, by dint of their primitivism, could not reasonably be expected to resist. Colonial legal authorities, Rouleau argued, should acknowledge the Cree defendants' weakness and credulousness by finding them guilty of manslaughter, not murder. Other officials parried that the only way to bring civilization and justice to Britain's colonial subjects was to declare them guilty and subject to punishment, even if this involved, perversely, abandoning traditional understandings of mens rea and guilt.Footnote 121 Often, authorities' solution to this dilemma was to mitigate a harsh sentence after it had been passed, rather than to encourage judges or jurors to deviate from the strict application of English law at trial. By writing to Thompson, Rouleau hoped to secure this kind of executive mercy for Ducharme and Wawasehowein.
Rouleau's argument that Ducharme and Wawasehowein lacked the malice necessary for a murder conviction was initially met with skepticism in Ottawa. Thompson, the Minister of Justice, had been appointed only days before Rouleau's letter arrived.Footnote 122 Thompson was a former attorney-general of Nova Scotia, and would later become the architect of the Canadian Criminal Code of 1892. He also served as prime minister of Canada from 1892 until his death in 1894 of a heart attack, which he suffered during lunch at Windsor Castle.Footnote 123 But in the fall of 1885, Thompson was new to Ottawa and to Cree culture. His primary objection to Rouleau's argument for clemency was technical.Footnote 124 Rouleau told the jury that Ducharme and Wawasehowein needed to have killed Riskeyak with “actual malice” in order to be guilty of murder. Malice, often used interchangeably with intention in criminal law, refers to the idea that a defendant must have intended to kill or grievously harm the victim in order to be considered guilty of murder. “Actual malice,” on the other hand, moves away from this legal definition toward a more colloquial one, with connotations of wickedness and ill-will.Footnote 125 The defendants in the Ducharme case, in Rouleau's view, had acted out of a sense of duty, not moral turpitude.Footnote 126 However, Thompson rejected Rouleau's suggestion that malevolence was required for a murder conviction.Footnote 127 “It is perfectly clear from the evidence,” Thompson wrote, “that the condemned men fully intended to take the life of their victim, and that they took her life without any lawful excuse or justification. This in law amounts to murder. The design to do such an act is malice. A felonious act done wilfully is done, in the eye of the law, maliciously.”Footnote 128 Thompson did not contemplate the possibility that Cree law might provide a “lawful excuse or justification” for the killing. To him, the fact that Riskeyak was killed deliberately was the only proof he needed of her killers' mens rea.
Thompson also had political reasons to rejected Rouleau's plea for clemency. He had no patience for what he viewed as mere superstition.Footnote 129 To him, the strangeness of Cree culture—and the Resistance to British colonial norms that it represented—called for the harsh imposition of imperial criminal law, not leniency. “If the Indians in that Territory are to be made amenable to the law at all,” he wrote, “it seemed to him [Thompson] that a case of very cruel and deliberate murder of an inoffensive old woman was a crime calling for exemplary punishment.”Footnote 130 The civilizing mission had acquired a new urgency in the wake of the Resistance. At a meeting of the North-West Council, the governing body of the territory, Edgar Dewdney, the Lieutenant-Governor of the North-West Territories, mourned the demise of “the fond hope which Canada had so long entertained of being able to manage the large number of Indians resident in these Territories, without a resort to arms.” Some Indigenous people had remained loyal to the government during the Resistance, and “this loyalty was apparently in the ratio in which they had advanced in civilization under the teachings of good Missionaries and able officials.”Footnote 131 Riskeyak's death seemed to offer the Canadian government an opportunity to flex its legal authority over the Cree, and to continue its efforts to transform its unruly Indigenous subjects into loyal, civilized ones.Footnote 132
“The North” is, as Canadian author Margaret Atwood writes, “a state of mind” as much as it is a place.Footnote 133 To many Euro-Canadians, the North-West was both tantalizing and terrifying: a wild, cold, hostile expanse upon which to project their fantasies. The Indigenous peoples of the North-West mirrored their environment in the colonial imagination: ostensibly conquered, but not subdued. The Ducharme case captures this colonial admixture of arrogance and uncertainty on the frontier. In the nineteenth century, colonial governments questing after what Lisa Ford has called “perfect settler sovereignty,” territorial jurisdictional supremacy symbolized by “the legal obliteration of Indigenous customary law,” sought to assimilate Indigenous peoples and to reconcile them to colonial legal authority, especially on the frontier.Footnote 134 But this process often proved expensive, difficult, and politically incendiary. For example, until 1885, there were never more than three stipendiary magistrates employed in the whole of the North-West Territories; in 1885, a fourth was added to assist with the legal work churned up by the Resistance.Footnote 135 Magistrates like Charles Rouleau rode such enormous circuits, often by sleigh, that it was not unusual for trials to be delayed for half a year while judges made their way to far-flung communities.Footnote 136 With few personnel and limited resources, the dream of perfect settler sovereignty was one perpetually deferred.
There were also barriers to the subjection of Indigenous peoples to colonial law that even men, money, and guns could not overcome. In common law criminal courts, colonial authorities were called upon to interpret the subjectivity of Indigenous defendants—their thoughts, feelings, and beliefs—in order to establish their guilt. Officials often struggled to reconcile their own belief in the inferiority and particularity of First Nations persons with the requirements of a purportedly universal law.Footnote 137 The problems and dynamics that the Ducharme case highlights were repeated across the empire. British colonial authorities who fretted about witch doctors and “lion men” in East Africa, about obeah in the West Indies, about “payback” in Australia, or about sati in India would have found the legal problems raised in wendigo cases familiar.Footnote 138 Colonial authorities across the empire routinely tolerated or even encouraged the persistence of Indigenous legal traditions in civil cases, especially in matters inter se.Footnote 139 However, this flexibility did not, in general, extend to violence; when it came to crime, nineteenth-century Britons came increasingly to believe that the common law was the only legitimate and ethical legal option. And yet, in many criminal cases, imperial authorities noted the persistence of what they sometimes described as systems of customary law, and at other times as religious or spiritual traditions, despite efforts of the colonial state to assert its own, increasingly exclusive jurisdiction over practices that its officials saw as violent, dangerous, or disruptive.Footnote 140 Officials acknowledged the moral jurisdiction that Indigenous traditions continued to hold over Indigenous people. Even if the colonial state aggressively imposed its own law in every criminal matter, in every instance of violence, legal authorities still faced the problem of assessing a defendant's guilt. If defendants acted justly, even selflessly, by the standards of their own community's law, should they be treated as if they were deliberate, or malicious, wrongdoers? If a person didn't feel guilty, was it possible that he or she was not?
At first, Thompson made little of the mentions of cannibalism in the notes of evidence that Rouleau sent him. The notes were cursory, and included the testimony of only two witnesses.Footnote 141 However, given the Kakisikutchin case, the passing mention of a wendigo would have given a North-West official pause. Thompson, who had never sat in a courtroom in the North-West, lacked the necessary context to know that allegations of cannibalism among the Cree were taken seriously, by both Cree and whites alike. Rouleau was not prepared to acquiesce. Despite his ambivalence about the Indigenous peoples of the North-West, Rouleau clearly considered his supposed familiarity with the Cree and with the wendigo to be a mark of his competence as a judge on the colonial frontier. Officials like Rouleau and other whites in the North-West were intermediaries between the Cree and the government authorities in Ottawa. They saw themselves as having privileged access to the minds and cultures of the Cree through their experiences in the remote Prairies. They acted as self-appointed interpreters, translating the wendigo into the language of British imperial criminal law. Rouleau and men like him could demonstrate their value, their authority, and their commitment to common law jurisprudence by educating the Canadian government about the culture and practices of its new subjects in the West.Footnote 142 There was less immediate political impetus to punish the wendigo killers than there was to punish those who had challenged state authority and killed whites to further the war. The Ducharme case was a chance for North-West legal authorities to display their integrity, doctrinal sophistication, and compassion, and that of the law they practiced. This was especially important in light of the fates of the other Frog Lake killers, and of the Resistance's leader, Louis Riel.
A bowl of blood connects the Ducharme case to the trial of Louis Riel.Footnote 143 His life, like the lives of Ducharme, Wawasehowein, and Wahsahgamass, also depended on colonial officials' assessment of the relationship between his indigeneity and his criminal responsibility. Riel was tried in July of 1885 before a jury of six white men, in Regina.Footnote 144 The judge in his case was Hugh Richardson.Footnote 145 Although Riel vehemently proclaimed his sanity, his defense lawyers insisted that only an insanity plea could save him. They worked to show, throughout the trial, that Riel's Métis identity and his French Catholicism made him prone to madness and fanaticism. However, another line of questions implicitly connected Riel's supposed mental instability to a characteristically Indigenous belief in the wendigo. Thomas Mackay, a settler and pro-government military volunteer who took the stand for the defense, testified that during one meeting, Riel yelled, “You don't know what we are after—it is blood! blood! We want blood! It is a war of extermination! Everybody that is against us is to be driven out of the country.”Footnote 146 Riel's counsel seized upon Mackay's mention of blood to suggest that Riel was a habitual blood-eater.Footnote 147 On its face, the allegation that Riel ate animal blood out of a bowl, rather than in a sausage or a pie, might have struck the white members of the jury as odd and distasteful, although not necessarily shocking.Footnote 148 Evocations of blood-eating might also, however, have struck a deeper, more sinister chord among jurors and lawyers who had lived on the North-West frontier. Richardson had surely not forgotten Kakisikutchin, and the rumors of supernatural cannibalism that circulated among the Indigenous communities of the Plains. Journalists had not forgotten the case either, as it was among the handful of capital cases over which Richardson had presided in his career as a prairie magistrate. Footnote 149 Regina jurors, too, were likely to have known about wendigos. Although Riel was not openly accused in court of cannibalism, his defense team might have been making subtle reference to the suspicion that Indigenous people who ate blood and claimed to be wendigos were, in fact, mad.
The insanity defense failed, and Riel was sentenced to hang on November 16, 1885. Riel's defence counsel appealed his case to the High Court at Manitoba without success, and a petition for leave to appeal to the Judicial Committee of the Privy Council was denied.Footnote 150 Although some high-ranking officials feared that Riel's execution would inflame tensions in the West, others argued that he was too disruptive to be allowed to live.Footnote 151 In a letter to the Colonial Office, Lord Lansdowne, the Governor General of Canada, argued that fanaticism and belief in the fantastic were natural among Canada's Indigenous peoples.Footnote 152 To excuse Riel from punishment on the basis of these mental weaknesses would be to invite disaster. He wrote, “The admission, either by the courts or by the Executive, that in a country circumstanced in regard to its settlement as at the North-west Territories any person with a morbid or excitable temperament, and with a mind subject to occasional illusions or accesses of religious or political fanaticism might break the law with a confident expectation of escaping the punishment which the law awards, could not fail to have far reaching and disastrous consequences.”Footnote 153
If all British subjects in colonial Canada who suffered from religious delusions were to be considered irresponsible for their actions, Lansdowne argued, then entire Indigenous communities could find themselves immune to criminal sanction. It was a future that he quailed to contemplate.
Thompson initially saw the Ducharme case as straightforward, perhaps especially so given its place among the highly politicized Resistance trials that crowded his desk. But it did not look that way to legal authorities in the North-West Territories. When W. Prescott Sharpe, the prosecutor dispatched to Battleford to try the alleged murderers of Frog Lake, heard that Ducharme and Wawasehowein would hang, he also wrote to Thompson.Footnote 154 Sharpe explained that the Cree believed that a wendigo, “a crazy person desirous of eating human flesh,” was nearly impossible to kill and possessed powers of resurrection.Footnote 155 Sharpe was “informed by intelligent half breeds that the presence of such a person would strike terror into the hearts of whole camps of Indians.”Footnote 156 After reading Sharpe's letter, Thompson changed his mind. He confessed that he had not initially understood the horror that the Cree faced when they discovered a wendigo among them, such that “killing…such a person appear[ed] a commendable act.”Footnote 157 Rouleau had wrongly “taken for granted that they [the features of the case] would be known in the Department of Justice.”Footnote 158 On further questioning, Rouleau confirmed the intensity of wendigo panic. He told Thompson “there was no doubt that the woman killed was crazy and threatened on several occasions to kill women and children, that [she] herself asked the favor of being killed, in order to avoid such a calamity.”Footnote 159 He sent this last letter on 27 November, the day that the Frog Lake defendants were hanged en masse in Battleford.Footnote 160 On December 9, 1885, the Governor-General-in-Council commuted Ducharme's and Wawasehowein's sentences to life imprisonment.Footnote 161
A few months after Ducharme, Wawasehowein, and Wahsahgamass arrived at Stony Mountain prison in Manitoba, petitions began to arrive at the Ministry of Justice. One 1887 petition, from a First Nations community at Onion Lake near Fort Pitt, encapsulated the colonial government's dilemma in the wendigo case. The petitioners wrote, “As the old woman was dangerous and wanted to kill some children, to eat, it was considered advisable to kill her, and it always has been the custom to kill them, with us: we did not consider we were doing wrong in doing so.”Footnote 162 They added that the prisoners had been urged to kill the “witch” by the whole camp, including the head HBC trader at Fort Pitt, William McLean.Footnote 163 A local missionary joined their plea, arguing that the prisoners had never committed murder in their hearts.Footnote 164 The petition failed. And yet, letters continued to arrive in Ottawa requesting clemency for Riskeyak's killers. Much of the testimony at the 1885 trial and the correspondence about it that followed mentioned McLean's alleged terror of the wendigo. If a white man, it was implied, could succumb to a “superstitious” belief in cannibals, then how could the Cree be expected to resist it? One Catholic priest, writing to request clemency for Wahsahgamass, expressed this sentiment clearly. “There is no doubt,” he wrote, that McLean “counseled and urged the savages to rid themselves of that Wittiko woman, at all costs. If a magistrate [who is] supposed to be the interpreter of the law, counseled and urged a murder, what can we say of a poor child of 16, who shoots a corpse?”Footnote 165 In 1889, the Canadian government began systematically to pardon and release Indigenous prisoners convicted of crimes committed during the Resistance. The Crown had made its point.Footnote 166 Eventually, Wawasehowein and Wahsahgamass were released.Footnote 167 On August 4, 1890, Ducharme, who at 90 years of age was the oldest First Nations prisoner by 20 years, died of “debility” at Stony Mountain.Footnote 168
Conclusion
The Ducharme case is best thought of as revealing rather than determining the course of colonial criminal justice. The case had no obvious afterlife in the annals of Canadian law. It was not reported, and is almost never mentioned in histories of the Plains or of the Resistance. However, other wendigo execution cases continued to make their way into Canadian courtrooms. One, R v Machekequonabe (1897), which involved a wendigo execution in a Western Ontario Ojibwe community, is the only reported wendigo case. It has become one of the best-known “Native law” cases in the common law world, and has been interpreted as authority, in Canada and elsewhere in the former British Empire, for the idea that Indigenous peoples were bound by colonial law regardless of their religious and cultural beliefs.Footnote 169 Some historians might see the result in Machekequonabe and similar cases as evidence of the self-confidence of Euro-Canadian lawyers as they worked to impose the common law the Indigenous peoples of the Plains; as proof that Cree law was successfully excluded from colonial criminal courts. Historian Sidney Harring writes that Machekequonabe shows that “the very real and intricate cultural world of the Ojibwe found no recognition in Ontario courts.”Footnote 170 And yet, Harring notes, many whites were dismayed when the court dismissed the terror felt by the Ojibwe, and Machekequonabe received a manslaughter conviction and a six-month sentence.Footnote 171
How should one understand Machekequonabe's manslaughter conviction, or Wahsahgamass's? What does the fact that Ducharme and Wawasehowein avoided judicial execution say about law in the British Empire? Executive pardons in cases like that of Ducharme, Wawasehowein, and Wahsahgamass served the colonial state: they reinforced settlers' belief in their own mercifulness, declared the primitivism of Indigenous peoples, and shunted cultural considerations away from the supposedly egalitarian common law courtroom.Footnote 172 However, criminal cases involving Indigenous defendants could also show the internal tensions of common law jurisprudence. Wendigo execution cases threw the legal pluralism of colonial Canada into sharp relief. The jurisdiction of colonial criminal law purported to extend to Cree land and Cree people but, when confronted with cases in which Cree law had been duly exercised in those places and by those people, colonial law often cracked. These cracks were generally small, resulting in disagreements among officials, lighter sentences, or pardons, rather than acquittals or explicit deference to non-colonial legality. However, these moments constitute recognition, however scant or partial, by the colonial state of the multiple cultural and legal worlds inhabited by the subjects of the empire.Footnote 173 Judges could force Indigenous peoples to submit to the law through violence, but doubted their ability to become full and loyal subjects of English law. For all their chauvinism and their bluster, colonial authorities were disturbed by the prospect of hanging a person with a guiltless heart.
