White Law, Native Norms, and Greed in Canadian History and Literature

12 March 2013

In 1876, a number of Saskatchewan Cree and Chipewyan chiefs, faced with starvation due to a decrease in buffalo and with the dire effects of White colonization, signed Treaty Six without consulting Cree chief Big Bear, who was strategically opposed to a swift acquiescence.  The treaty promised reserved land, farming and carpentry tools, cattle, ammunition funds, money, liquor prohibition, and life annuities for each member of every band in exchange for letting the White man use non-reserved territory at will.  Some of the Native chiefs who signed the treaty were converted Catholics and Methodists who already knew how to farm and they were better acquainted with White ways than the shrewd and traditional Big Bear, who was holding out for better terms for his people.  By 1882, Big Bear’s band was starving and members of his own family urged him to sign Treaty Six (Dempsey 109).  He did so reluctantly (111) and lost influence, notably with his band’s warriors, some of whom began to insist upon a more forceful resolution to their problems.  The result was a Native uprising now known as the North-West Rebellion of 1885, during which White settlers were massacred, prisoners were taken, and Natives themselves suffered fatalities.  The Rebellion quelled, six Natives were sentenced to hang.  Big Bear himself was put on trial.  The jury took only fifteen minutes to come up with a guilty verdict, to which was attached a recommendation of mercy (Queen v. Big Bear 233).  He was sentenced to three years in penitentiary, but was released before the end of his sentence due to his age and failing health.  He died in 1888.

Prairies’ writer Rudy Wiebe’s The Temptations of Big Bear (1973) challenges the historical trial’s methodology and findings.  It documents Native distress in the face of White territorial and economic greed and seeks to prove that Big Bear was not a rebel, but was instead a diplomat, a man who tried by verbal means to keep his band safe and fed while attempting to live in peace with White colonizers.  As a ‘counternarrative’ to a historical trial and to elusive historical narratives, the novel includes insights into White and Native normative universes and visions of justice that might serve us well today as we contemplate the dawning of the Idle No More movement across Canada.

In an article titled “Pluralisms,” legal thinker Martha Minow warns that in neglecting the perspective of insular or marginal groups, official authorities fail to understand that “they themselves seem peripheral to those minority groups” (971).  In other words, minority groups within a larger homogeneous association may live according to a perfectly coherent normative universe of their own and view that of the dominant group as being marginal by comparison.  An example of this can be found during Cree Chief Big Bear’s pre-sentencing speech for treason-felony against the nation in Wiebe’s novel.  In that address, although he has been found guilty, the old chief challenges the Queen’s law and pits it against concepts of Cree justice that he believes to be more merciful.

The historical Big Bear’s recorded words are unfortunately few.  Among his most famous speeches to White Canadians, however, his pre-sentencing address to the Court stands out.  On that occasion, Big Bear spoke through sworn interpreter Peter Houri (or Hourie, as his name is sometimes spelled).  Although he requested that his words be published for posterity (Cameron 224), his speech was excluded from the parliamentary sessional papers that contain the transcript of his trial.  Various second-hand accounts of the event exist, but reveal little of the full account of his address.  The Manitoba Free Press, for example, merely reports that Big Bear spoke “nearly two hours” but that all of the accused Natives “asserted their innocence in speeches more or less laughable” (“Number”).  William Cameron, who had been made prisoner by Big Bear’s warriors yet testified for the defence, noted in a later account that the Cree leader spoke with “the earnestness, the eloquence, and the pathos that never failed to move an audience” (222).  The historical Big Bear’s words were typically exculpatory.  He assured the court that he had done his best to stop his warriors’ actions, but that he had then lost his authority over his band (223).  He also appealed for clemency for those members of his band who awaited a resolution to the conflict in the woods where they were hiding and suffering from hunger.  He ended by emphasizing that the North-West belonged to him and lamented that he would perhaps not live long enough to see it again (224).

In The Temptations of Big Bear, the anonymous narrator recounts the pre-sentencing speech that Rudy Wiebe reconstructed from the historical sources above.  For the fictive Big Bear and his Cree, the land is a symbol of an entire cosmology and distinct normative order, much as the ‘Queen’s law’ represents a secular normative system for Whites.  “This land belonged to me,” he emphasizes in his final address.  Yet the land is not the mere object of an ownership right, but the People’s “great inheritance.”  It descends from the great spirit, “That One,” who “spread it out for [all aboriginals] like a big blanket” (381).  From this “Great Spirit” issue both gifts and obligations.  Big Bear thus tells the Court that “it pleased the Great Spirit for men to do good.”  This option of “goodness” encompasses an obligation of pity and mercy for those who have erred, which obligation, in turn, is radically opposed to the punitive White nomos mandated by the “Grandmother,” Queen Victoria.  North-West Territories Governor Alexander Morris, who negotiated Treaty Six on behalf of the government, “said there is only one law,” Big Bear explains.  “I know about that law now,” he goes on, “but I never wanted to know what I know because I never needed it” (380).  Far from stopping at this rejection of White legal norms, the fictional Big Bear spells out the parameters of Native justice.  “Have you no children?” he asks the Court as he attempts to negotiate an amnesty for those members of his band whose fate remains uncertain:

Is there nothing but punishment in the Grandmother’s law?  When a young man of the River People leads other young men rashly into a bad raid and one of them is left on the plain, that leader returns to camp and falls down before that father, that mother, and he cries for forgiveness.  Then the mother touches him, the father lifts him and holds him to his breast and there is a son again in that empty lodge to make them happy, to care for them when they are old [. . .]. (381)

Beyond its obvious purpose, his speech sketches the outlines of a nomos at variance with the “White law.”

As the fictional Cree chief explains earlier to his son Kingbird, trials are necessary in the White world because “Whiteskins are liars” and therefore need a complex system of testimony and corroboration to shed light on the truth of a tense situation.  But, Big Bear reminds his son, Natives have no reason to lie about their deeds (322).  In his fictive pre-sentencing speech, he makes clear that there is no need for falsehood and evasion of responsibility in a system that recognizes the interconnectedness and interdependence of all beings.  Within such a tight-knit system, along with sins against theirs comes repentance, and with repentance, forgiveness and re-inclusion within the communal circle.  Thus, Big Bear lends credence to his fictional attorney’s assertion that whereas a White man is free to abandon his unlawful community because the law protects him individually, Natives cannot live “apart from [their] little band” (366). Yet whereas both the historical and the fictional defence attorney viewed this Native trait somewhat condescendingly, Big Bear turns it into a virtue.  Interdependence insures cohesion, which fosters a more merciful sense of justice based on apology and forgiveness, which in turn aims at greater cohesion.  From Big Bear’s perspective, the White man’s law, by comparison, merely judges and punishes.  It leaves out the value of contrition and the healing power of absolution; in short, it is pitiless and inhuman.

Faced with such a challenge to his own values and sense of fairness, the fictional Justice Hugh Richardson can but strengthen Big Bear’s suspicion that the Queen’s law is harshly punitive.  Much as he dislikes punishing anyone, Richardson explains to the accused, he would be wanting in his duty to the public and to the Crown if he did not sentence Big Bear in such a way as to “make other Indians of the country know what would become of them if they followed a bad example.”  Thus, two normative orders, the two senses of justice—Native and White—come to a deadlock.  Yet Justice Richardson addresses one more point in Big Bear’s speech.  “I have no objection to what you have to say,” he tells the fictive Big Bear, “but on one point you must be corrected”:

This land never belonged to you.  The land was and is the Queen’s.  She has allowed you to use it.  When she wanted to make use of it, she called you together through her officers and let you decide which of the choicest parts of the country you wanted, to reserve them for yourself.  Your people can live there because the Queen has graciously given it to you.

“The land,” the fictive Justice Richardson repeats at the end of this passage, “belongs to the Queen” (382).  It is unclear whether the magistrate means to ensure that Big Bear understands him perfectly or whether he is instead attempting to believe in his own claims.

As constitutionalist Peter Hogg explains, without irony, “[w]hen an uninhabited territory was settled by British subjects, the rule of the common law was that the first settlers were deemed to have imported English law with them.  In the absence of any competing legal system, English law followed British subjects and filled the legal void in the new territory” (30).  Unlike the territory now comprised of Quebec and Ontario—which belonged to New France and was subsequently conquered by the British—Saskatchewan was “settled.”  Evidently, in the eyes of the British, the Natives who populated the territory hardly counted as its first inhabitants.  The Western legal world thrives on a number of self-serving fictions.  In The Temptations of Big Bear, Justice Richardson’s claim that the land had always belonged to the Queen constitutes an ironically fictive but significant example of this.  His claim is also revealed as a blatant lie since the signed treaties in fact extinguished native rights to the land.

The fictional Richardson’s contention also underscores dominant European views about the land.  To the settlers, the land is something to be colonized, measured, allotted, tamed, farmed, or turned to pasture in order to yield various benefits.  Big Bear’s vision of the land is naturally at odds with that of those acquisitive and profit-oriented settlers.  Throughout the novel, Big Bear counters White utilitarian notions of ownership, investment, and profit with claims to the sacredness and generosity of the land which he personifies and calls “Mother Earth.”  The Cree are nomads and live off the land as they roam it, leaving enough behind for those who follow.  “What can it mean that I and my family will have a ‘reserve of one square mile’?” he asks in disbelief.  “What is that?” (28).  To Big Bear there is little fairness in a system that assimilates others to its norms.  “I have never liked treaties,” he exclaims: “I let the eagle go his own way, and the bear in his!” (142).  Philosophically, Big Bear thus embraces the principle of substantive—as opposed to formal—equality in that he respects difference, as long as it harms no one.

Treaties are also suspicious to Big Bear because he views them as unreliable.  The Cree chief is a man who believes in the authority of words.  The problem with the words of treaties, however, is that they seem immutable (30), yet their meaning shifts as soon as the government changes its mind about its goals or its capacity or willingness to fulfill promises.  At a council Big Bear tells the People (the narrator’s name for all Natives) that chiefs once trusted Whites and signed their names on treaties.  “[T]hen,” he explains, “we found that the words no longer said the same thing; then we found that half the sweet things were taken out and all the sour left in” (191-92).  Governor Morris may tell Big Bear that the law is “the same for red and white,” but the Cree chief now knows that “itself [the law] is only white” (31).  Far from representing a true meeting of the minds, contracts with the government and the promises they contain are easily and unilaterally broken.  By the time he is tried, Big Bear has lost all faith in the words of the White law, the monotonous and morally inconsequential drone of which he characterizes as a “long snore” (341).

If White officials are known in Wiebe’s novel for the legal texts they utilize to manipulate Natives into compliance, the Cree are notorious for the oral expression of their needs, doubts, spirituality, and feelings.  Big Bear himself stands for Cree orality.  Throughout Wiebe’s text, several characters and narrators comment upon his memorable voice:  it would be “unbelievable in Parliament,” we are told; “[its] deep rich timbre alone . . .  would devastate any opposition” (108).  It is not merely that Big bear speaks with a deep, rich voice or that he speaks poetically through metaphors that stun the White men present.  Because it carries the weight of the Cree’s oral heritage, Big Bear’s very voice brings the Cree’s distinct character into prominence and unexpectedly leaves the Caucasian audience stranded, without familiar bearings of their own.  Not surprisingly, legal scholar Gregory Alexander explains that ‘voice’ has in recent years become a metaphor for the empowerment of “those whose difference has been the basis of their lack of political and economic power” (1364).  In other words, according to today’s proponents of the politics of difference, the disadvantaged must fight discrimination by making their voices heard.  Only once such voices are collectively raised can social change occur.  Only then will the marginal acquire normativity in the eyes of the majority.  Because of his thundering voice, which speaks for his people, the fictional character of Big Bear both denotes difference in all its exoticism and expresses the confident normativity of the marginal.

In The Temptations of Big Bear, the Cree chief’s voice is also symbolic of his spiritual leadership.  He is legendary among the Cree for his shamanic visions.  James Miller mentions that the historical Big Bear was a “man possessing that all-important ability to mediate between them and the natural world about them” (28).  As both visionary and intermediary between world and spirit, the fictive Big Bear’s voice is endowed with unusual power when he warns his own people against the forces that may crush them.  Before the Rebellion and during what may be described as his mystical and spiritual journeys, the Cree leader is able to ‘see’ not only the outcome of White actions, but also his braves’ reactions to them.  Three revelations are given to him.  In the first and last, he envisions six Native hanged men.  In the third vision, these men are unclearly revealed; they are as “blackness strung aloft like heads and bodies,” which come apart and spout “black words” (158).  The first and third visions are brought to him by a white wolf and by the mythical thunderbird, respectively.  These guiding spirits show him the execution of the hanged men, those six rebel Cree who were sentenced to death for their part in the rebellion.  Big Bear is led to the second vision by Coyote, the laughing trickster, who confronts Big Bear with the blood about to be spilled during the rebellion.  The novel confirms that, during the rebellion, Big Bear tried to no avail to stop the Frog Lake massacre of nine White men by shouting “Tesqua, tesqua!  Stop!  STOP!” but his commanding voice is suddenly thin amidst “the Rattler war cries of River People” (247).  Thus, to Native seers like Big Bear, myth invites vision, which unveils a plausible future.  Very much like the law itself, which is omnipresent in any modern society, myth and vision, in Wiebe’s novel, form part of the Native world and are overlooked at the Natives’ peril.  Together, they are similar to White law in that they help guide Natives’ actions and determine their future.  At best, this form of Native ‘law’ is admonitory.  At worst, the visions are fatalistic and dictate the definitive outcome of a situation regardless of any action taken.

Throughout The Temptations of Big Bear, then, differences between White and Native nomoi are consistently compared and contrasted in ways that put historians to shame.  Not surprisingly, both normative orders proscribe violence of an unchecked and gratuitous kind.  What is tragic is that the two are considered to be at odds with one another, largely because money, profit, and the notion of progress stand between them.


Works Cited

Alexander, Gregory S.  “Talking About Difference:  Meaning and Metaphors of Individuality.”  Cardozo Law Review 11 (1990): 1355-75.

Cameron, William Bleasdell.  The War Trail of Big Bear.  1926.  Rev. ed.  London: Duckworth, 1927.

Dempsey, Hugh A.  Big Bear:  The End of Freedom.  Vancouver:  Douglas, 1984.

Hogg, Peter W.  Constitutional Law of Canada.  3rd ed.  Scarborough:  Carswell, 1992.

Miller, James Rodger.  Big Bear (Mistahimusqua):  A Biography.  Toronto:  ECW, 1996.

Minow, Martha.  “Pluralisms.”  Connecticut Law Review 21 (1989):  965-78.

“A Number of Prisoners Sentenced.”  Manitoba Free Press 26 Sept. 1885: 1.

The Queen v. Big Bear.  Canada.  Sessional Papers.  4th sess. of the 5th Parliament. Vol. 13.  Ottawa:  House of Commons, 1886.  171-233.

Wiebe, Rudy.  The Temptations of Big Bear.  1973.  Toronto:  NCL, 1995.

Marie-Thérèse Blanc has a law degree and a Phd. in English Literature from McGill University. She is a specialist in Canadian Literature, particularly concerned with Literature and the Law, and she is also a photographer. She teaches in the English Department at Dawson College.