Death, Restitution, and Legal Pluralism in Upper Canada

Nathan Ince

On July 14, 1832, Jacob Sahkeconabe was shot and killed by Joseph Graverod. Both individuals involved in this tragedy were young, variously described as boys, youths, or young men, but otherwise they came from different backgrounds.[1] Sahkeconabe belonged to the Anishinaabe community of Mnjikaning, more often known to outsiders as Yellowhead’s village. For his part, Graverod was described as a “half-breed” who was living at the nearby settlement of Coldwater. It seems likely that he belonged to the métis community that had relocated from Drummond Island to the eastern shore of Georgian Bay in 1828.[2] Despite sharing important cultural elements, including quite possibly the Anishinaabe language, these two individuals nonetheless came from distinct communities that had only become neighbours some four years earlier.[3]

Had Graverod belonged to Mnjikaning or a related Anishinaabe community, it is entirely possible that restitution for Sahkeconabe’s death would have been made without recourse to the legal system of the colony of Upper Canada.[4] Things being as they were, however, the local coroner was summoned, an inquest was made on the body, and a jury was convened, all presumably with the cooperation of the Anishinaabe of Mnjikaning who were eager to see the perpetrator held to account.[5] The jury, however, ruled that Sahkeconabe’s death had been an accident and declared Graverod entirely innocent.

Upon learning the verdict, the relatives of the deceased were “highly dissatisfied,” and Chief Yellowhead lamented that his village now had “greater cause to mourn than it had before.” Rather than accept the ruling of colonial justice, however, Yellowhead proposed an alternative form of restitution. The Anishinaabe ogimaa declared that Graverod “should either live with him to supply the place of the deceased, or be killed.”[6] Restoring balance by taking a life for a life had long been an important principle in Anishinaabe legal traditions, and Yellowhead let those assembled know that he intended to honour this form of justice, either through adoption or revenge.[7]

After being assured he would be well treated in his new life, Graverod accepted Yellowhead’s proposal. With justice having run its course, the local superintendent of the British Indian Department, Thomas Gummersall Anderson, reported these proceedings to his superiors in the provincial capital of York. Anderson’s tone was matter-of-fact. He expressed his belief that Graverod may well have been killed had he not accepted, but nothing in his letter implies that Anderson opposed the adopted resolution. While further archival evidence may come to light, the records of the Indian Department contain no indication of further government involvement in this affair.

 

The Sahkeconabe-Graverod case is a remarkable illustration of the co-existence of diverse legal traditions in Upper Canada, a situation that is often described by scholars as “legal pluralism.” The concept of legal pluralism has become one of the principal frameworks for understanding the history of law in early Canada.[8] By the 1830s, however, historians have noted the increasing disregard of settler jurists and legislators towards Indigenous legal traditions in the colonies of British North America, marking a shift towards a more unilateral system.[9] Nevertheless, the above case demonstrates not only the continued endurance of Indigenous legal traditions into the 1830s, but also their remarkable power. Unlike other prominent examples cited by scholars, there was never a question of colonial jurisdiction in the Sahkeconabe-Graverod case.[10] The incident took place in the “settled” parts of Upper Canada, and the apparatus of settler justice was readily at hand to produce a verdict. It was only once this approach to justice failed to produce results that Yellowhead had recourse to his nation’s own legal traditions. A second remarkable aspect of these proceedings is that they seem to have been endorsed by the government. This suggests that Indigenous forms of conflict resolution could still be viewed as legitimate within the broader imperial order of Upper Canada, even when there were other judicial resolutions available.

Still, there were a number of factors that made this legal dispute unusual. Joseph Graverod’s marginal status in relation to both the Anishinaabe community of Mnjikaning and Upper Canadian settler society was likely one element that contributed to the unpredictable course of the legal proceedings. It is also possible that Graverod’s inability to pay material restitution for the death of Sahkeconabe or his relative lack of kinship connections in the region to protect him from revenge contributed to his decision to accept adoption into Mnjikaning.[11] Yellowhead’s confidence in his own nation’s traditions of conflict resolution and Thomas Gummersall Anderson’s long experience with these same traditions were also necessary preconditions to this remarkable case of legal pluralism.

While it is therefore clear that the Sahkeconabe-Graverod case was not exactly typical, the proceedings at Mnjikaning in July 1832 might still serve to strengthen the case for the prevalence of legal pluralism in Upper Canada and beyond. Even as settler society increasingly disregarded Indigenous political and legal traditions, a senior Indian Department official sanctioned the adoption of an outsider into an Anishinaabe village as restitution for the death of another community member, all within 70 miles of the colonial legislature at York. All this suggests that Indigenous legal traditions were more prevalent, more powerful, and more resistant to outside pressures than has generally been imagined by scholars. Unquestionably, these traditions will play an increasingly prominent role in the legal histories of what is today Canada as similar cases are brought out of the archive and into the light of day.

 

Nathan Ince is a course lecturer at McGill University. His research explores the relationships between Indigenous communities, Imperial agents, settler society, and Canadian state formation in the late eighteenth and early nineteenth centuries. Nathan completed his PhD in history at McGill in 2022. You can find him on Twitter at @NJInce.

 

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[1] This incident is described in T.G. Anderson to James Givins, 18 July 1832, 56543-56545, vol. 51, RG10, Library and Archives Canada (LAC). Additional information can be found in Details of a Meeting at the Narrows, 17 July 1832, 56538, vol. 51, RG10, LAC.

[2] A.C. Osborne, “The Migration of the Voyageurs from Drummond Island to Penetanguishene in 1828,” Ontario Historical Society Papers and Records 3 (1901): 123-166.

[3] The métis of Drummond Island were instead closely tied to the Anishinaabe communities around the Straits of Mackinac. While not completely separate, these communities were also not in the same neighbourhood.

[4] Mark D. Walters, “The Extension of Colonial Criminal Jurisdiction over the Aboriginal Peoples of Upper Canada: Reconsidering the Shawanakiskie Case (1822-26),” University of Toronto Law Journal 46, no. 2 (1996): 273-310. This case can also be contrasted to the Indian Department’s reaction to a murder on the French River wherein both victim and perpetrator were Anishinaabe, see T.G. Anderson to S.P. Jarvis, 29 May 1839, 65764-65765, vol. 70, RG10, LAC.

[5] Yellowhead himself was present at the examination of the witness. For a similar case of an Indigenous community withholding traditional forms of justice in hopes of redress in the colonial system, see George Ironside Jr. to George Vardon, 20 August 1840, 68009-68011, vol. 74, RG10, LAC.

[6] T.G. Anderson to James Givins, 18 July 1832, 56543-56545, vol. 51, RG10, LAC.

[7] Cary Miller, Ogimaag: Anishinaabeg Leadership, 1760-1845 (Lincoln: University of Nebraska Press, 2010), 91.

[8] Mark D. Walters, “The Continuity of Aboriginal Customs and Government under British Imperial Constitutional Law as Applied in Colonial Canada, 1760-1860” (PhD diss., University of Oxford, 1995), 1-2; Philip Girard, Jim Phillips, and R. Blake Brown, A History of Law in Canada (Toronto: University of Toronto Press, 2018), 1:5-9.

[9] Girard et al., A History of Law in Canada, 1:494.

[10] See for example Girard et al., A History of Law in Canada, 1:494.; Walters, “The Extension of Colonial Criminal Jurisdiction.”

[11] Miller, Ogimaag, 91; Girard et al., A History of Law in Canada, 1:38-39.

 

Featured image: Indian Village at Rama, Lake Couchiching, Titus Hibbert Ware, September 1844 (Toronto Public Library).