Encyclopedia of the Great Plains

David J. Wishart, Editor


A legal system is one of the forces that shapes a society and gives it structure. This is true whether one considers very informal legal systems, typical of early tribal communities on the Great Plains, or highly formal systems characteristic of modern urban life. In every case, legal systems have been put in place and designed to preserve established values and ways of behaving and also to achieve desired changes in society.a transformative role too often overlooked. One result of the imbedding of legal systems within societies is that there have been as many systems of law on the Great Plains as there have been communities. This great diversity reflects the richness of the history on the region but has also meant that significantly different legal systems have at times had to coexist. This has not always been easy to achieve, and on occasion it has not even been possible. The result has sometimes been disputes amounting to battles for supremacy between systems and between the communities of which they were a part, though on other occasions mutual modification has provided a more peaceful solution. What has emerged in the modern period is to a great extent a legacy from all that has gone before, a legal system derived predominantly from England's but preserving elements from other European traditions and from Aboriginal systems. It is a system that has been and continues to be shaped by the unique experience and diverse communities of the Great Plains.

Indigenous Law

The legal history of the Great Plains may be said to begin with the first appearance of organized communities in the region thousands of years ago and long before the arrival of Europeans. The very persistence of these communities over time makes it obvious that they possessed systems of law su.ciently flexible and sophisticated to answer the needs of societies ranging from sedentary agricultural groups with comparatively large population centers to scattered bands of nomads who depended primarily on hunting and gathering for their survival. To some extent they all possessed, for example, rules governing interpersonal relations and well-developed ideas about property that regulated access to the resources of the land. Archaeologists have demonstrated that small groups (e.g., individual families) frequently had exclusive or at least first access to the resources in a defined locale. Larger groups (e.g., tribes) likewise occupied defined territories from which they endeavored to exclude others. Unfortunately, little except generalities can reliably be set forth in outlining the finer points of this sort of early legal history and the rules these societies developed to give them structure and cohesion because of the lack of accessible and reliable evidence available to the historian. Unfortunately, this problem is only somewhat abated as we come to consider more recent times and even approach the arrival of Europeans.

In some respects, of course, Native peoples on the Great Plains began to feel the first effects of European influence before.in some cases long before–the actual arrival of the Europeans themselves. The introduction of the horse, new trade goods (notably, firearms), and diseases to which they had little resistance disrupted traditional ways of living and patterns of trade and drastically altered power relationships. The effects of these changes were visible wherever Europeans established themselves, but, like the ripples from a rock thrown in a pond, they spread far and wide, affecting Indigenous people far away from Europeans themselves. Precisely how the societies of the Great Plains adjusted their existing practices to respond to the new realities–or even if they did in every case–is very difficult to determine in the light of existing evidence. There is a body of oral tradition preserved among the various peoples who populated the Great Plains in the years before the arrival of the Europeans, but for very early periods this is a difficult source for historians to use, and it is not always seen as reliable without corroboration.

Nor, it seems, can we say much with confidence about the period when Europeans first had a physical presence, in the form of missionaries, traders, and explorers, on the Great Plains. These harbingers of change produced the first body of written material dealing with the autochthonous population of the Great Plains, but even with this often fascinating body of work in hand the legal historian is too often frustrated. The internal ordering of Indigenous societies was not something in which many of these early writers were interested, and even when it was mentioned, the observers were not always su.ciently sensitive to or even capable of understanding what they saw. With the arrival of larger European populations, though, we are on firmer ground because of the increased abundance of written records and more useful oral accounts.

The latter in particular have proven a valuable source for reconstructing the laws of a number of Plains tribes during the nineteenth century. Both tribes that had a long history on the Plains such as the Blackfoot and those that moved into the region only in the eighteenth century such as the Lakota (Sioux) had to adjust to new realities. The result was approaches to law that share certain broad characteristics such as an emphasis on consensus and restitution. Among the Kiowas of the Southern Plains, for example, there were few conflicts over property, the main exception being horses. Food was shared and stealing was rare. Internal family conflicts were also rare and likely to be settled by reason rather than by law. Criminal actions were deterred by the fear of supernatural reprisal (taido). Serious crimes such as murder might result in social ostracism or, if they threatened the integrity of the tribe, in the imposition of the death penalty, a killing "legalized" by the singing of a song, which nullified any supernatural penalty.

There were, however, considerable differences in legal systems (as in most other aspects of life) among Plains Indians. The Kiowas' legal system and, even more so, the Comanches' were rather informal, certainly when compared to the Cheyennes, to whom Llewellyn and Hoebel attributed a "legal genius." In Cheyenne society, for example, the tribal chiefs had exclusive jurisdiction over punishment of a murderer. Punishment generally meant banishment from the society, though remission was possible after a number of years if the perpetrator was penitent. The Cheyenne legal system, it might be added, had a refined classification system of what constituted murder and what might be excused as a justified killing.

The dynamic and varied Indigenous legal systems held on to much that harked back to traditional times but also demonstrated the ability to respond to new needs. The jurisdiction of the chiefs is a good example of the former, and perhaps the best example of the latter in most tribes, including the Cheyennes, is the increasing power of the warrior societies to make and enforce rules. However, the various tribal systems were eventually to come into conflict with ultimately more domineering legal traditions brought to the region by Europeans.

The Impact of European American Legal System

Spain was active in the southern and France and England originally along the eastern and northern parts of the Great Plains. At first directly and later through colonial offshoots in the Americas, these three European powers, with very different legal cultures, began to transform the region. In all cases it was at first the policy of the European and later American powers not to extend their laws to the Indigenous population. In fact, it was recognized, either explicitly or implicitly, that it was neither desirable nor possible to expect the full body of their national law to apply even to those of European extraction. In theory, then, Native peoples would continue to be governed by their own laws, and Europeans and Americans would be subject to "appropriate" European law. In the United States, Indian Country was territory that was outside the organized territories and states. Settlers were forbidden there, and traders could operate only under license. A series of Intercourse Acts, including the 1834 act, which applied to the Great Plains, regulated trade and imposed fines on violations of the rules governing interactions with Native Americans.

This separation of legal domains was often very difficult and sometimes impossible to apply. Which European or American laws were in effect and which were not? Which rules should apply in disputes involving both Indigenous peoples and European Americans? What was to be done with the increasing numbers of people with both European American and Native ancestry? The result of this period of confusion was twofold. In the first place, there is clear evidence that in some cases contact with European Americans and their ways of doing things profoundly modified Indigenous rules and ways of proceeding. For example, alcohol, forbidden through the Intercourse Acts, continued to flow into the Plains through the fur trade and severely disrupted Native American lives.

But it was the second development that was ultimately to prove more significant. The law of the more powerful party, the European Americans, came to dominate, holding sway in most of the region and over most matters. Indigenous law was, by this steady process, largely marginalized. (Marginalized does not, however, mean exterminated. Indigenous law not only survives but in some jurisdictions– for example, rules concerning access to Native American sacred sites–has been rejuvenated and is even modifying the dominant European-inspired legal system.)

It is difficult to overstate the impact on Indigenous cultures and indeed on the entire ecology of the Great Plains itself that was occasioned by the arrival of large numbers of European Americans coming not simply to explore or trade but also to settle and to make lives for themselves and their children in these new lands. This process began in earnest during the nineteenth century and filled the region roughly from east to west. Friction was often impossible to avoid as the new arrivals sought to take control over the lands and water they needed in order to survive and as a result dispossessed the Native peoples. This process, accomplished by a series of treaties sanctioned by existing European and international law, occasionally led to violence and even wars, especially in the United States but also during two brief episodes in Canada (the Red River Resistance of 1869.70 and the 1885 Riel Rebellion). But these were only the most visible evidences of a kind of low-grade battle that had been in progress for some time as European American and Indigenous ideas about the ownership of property competed.

Traders had earlier confronted the fact that Native peoples often had ideas about private property quite different from their own. This was dealt with in a variety of ways; the Hudson's Bay Company's and American Fur Company's practice of trading literally through a hole in the wall so that their customers had no direct access to the trade goods and could not simply walk off with what they wanted is a good example. This fundamentally different view of property rights remained a source of friction between European Americans and Native peoples as the process of settlement continued and affected everything from land to movables. One particular focus was the horse, which had spread rapidly throughout the Great Plains region after the first Spanish imports had been introduced in the south. Horses became an integral part of the life of many tribes, and possession of horses conferred great status. The result of this was, eventually, a period of near constant raiding. which European Americans, as usual not overly sensitive to Indigenous life and values, termed simply "horse stealing"–during which the aim was to control as many horses as possible. Any and every horse was fair game in this passionate activity, with the frequent result that horses owned by European Americans were run off by Indians. Unfortunately, what was a serious though in some respects a sporting activity for Native peoples was seen as a very serious crime by European Americans, and only the efforts of the military in the United States and lawmen on both sides of the Canadian-American border prevented more serious problems from developing. They were occasionally thwarted by knowledgeable raiders, who knew they could not be chased across the international boundary, sometimes referred to as the "medicine line."

A second problem, related in the minds of most European Americans but in fact quite distinct, concerned the safety of cattle kept on the open range. Native peoples in the Great Plains depended to some extent on hunting for their subsistence, and in the northern regions, where huge herds of bison wandered the prairies, they were almost entirely dependent on this important source of food and its secondary products. It was difficult to persuade Indian hunters, especially after the destruction of the great bison herds was well advanced, that they should not take the cattle that had replaced them, since hunger and even starvation were often the only alternative to killing cattle.

However, the picture so often presented, at the time and since, of Indians as cattle killers and horse thieves has been greatly overdrawn. They did take both cattle and horses in some numbers, but careful reading of the records of the time makes it clear that European American criminals often found it easy to blame Indians for their own crimes and that many complained of Indian depredations simply because they hoped their respective governments would make good their "losses." In fact, members of the North-West Mounted Police in Canada frequently complained in their annual reports that settlers reported that their animals had been stolen simply so that the police would go out and round up their herds for them in the fall free of charge. In the United States Indian agents often noted that "depredation claims" by settlers seemed to coincide with the arrival of Native American annuity payments.

From the point of view of many in the dominant society, a solution to these and other problems was finally arrived at in both Canada and the United States when the various tribes were confined to lands set aside for them, called reserves in Canada and reservations in the United States. In the United States these areas have preserved an important legal significance, stemming initially from the judgments of Chief Justice John Marshall in the famous Cherokee cases–Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832) –that established the idea of tribes as "domestic dependent nations" possessing limited sovereignty. This sovereignty was further defined by the U.S. Supreme Court in Ex Parte Crow Dog (1883), where it was ruled that the United States had no jurisdiction over crimes committed by one Indian against another. Congress subsequently acted to limit this sovereignty, notably, in the Major Crimes Act of 1885, which determined that the United States did have jurisdiction over Indians for seven major crimes, including murder, but it remains an important part of the legal apparatus of the American Plains.

The "checkerboard" nature of landownership patterns on Plains reservations, however (a product of the 1887 Dawes Act, which imposed allotments on the Indians and permitted the sale of "surplus" reservation lands to Americans), makes for extremely complicated jurisdiction in Indian Country. On many Plains reservations, non-Indians own most of the land, the lines between tribal and federal jurisdictions are blurred, and individual states also try to assert their legal and political authority. Landmark cases, including Montana v. United States (1981), have revolved around this complex geography and the extent of tribal jurisdiction over nonmembers of the tribe living on or, in that case, fishing and hunting on the reservation. Recent Supreme Court decisions have even led to the "diminishment" of reservations, especially in South Dakota.

In Canada, however, the approach has not been to recognize group rights, and the various tribes and bands have not had any formal power to make and enforce law. This seems to be changing, though, as a result of the current strong movement toward First Nations self-government, a movement at least partly informed by the perception that the American approach has its virtues. This movement was born in the Prairie Provinces, where more than half of Canada's Status Indians reside, but opposition to Native self-government is also greatest in that same region.

The American Legal Frontier

Neither the Spanish nor the French were willing or able to support the large-scale presence in the Great Plains proper that would have led to the institutionalization of their laws there. Texas did later follow some Spanish concepts of family and property laws, including the legalization of adoption and the recognition of woman's rights to property acquired during marriage, and there is a legacy of French civil law, especially in Manitoba. But overwhelmingly, it was English law that was brought to the Plains. The United States, despite its violent separation from England, essentially preserved the English system of laws and extended it to much of the Great Plains. To the north, eventually north of the forty-ninth parallel, the Hudson's Bay Company and later Canada also introduced an English-inspired legal regime.

People of European extraction came to the Great Plains during the nineteenth century in great numbers, and they did so, by and large, to make lives for themselves in this land of endless possibilities. Much has been made of the wild frontier that greeted them, with its violence, its lawlessness, and its "gun-totin'" heroes. Recent scholarship suggests, however, that at least as striking is the underlying "law-mindedness" of its people. Even on the Oregon Trail, cutting through the Central Plains in the 1840s, conduct was regulated by respect for lawful behavior. Constitutions were drawn up to define the rules of traveling, and the sanctity of private property was recognized, even though there was no formal legal machinery governing actions.

Later, during the settlement era, the Great Plains became essentially a ranching and farming frontier inhabited by three related but also distinct groups–cattle ranchers, sheep ranchers, and farmers–and the towns associated with them. It is their often-different needs, and the frequent friction between them, that provides an important backdrop for understanding much of the legal history of the Great Plains during the nineteenth century.

All three systems needed access to land and water. However, the different ways they needed access caused problems that often proved intransigent. The cattle ranchers, who were usually the first on the scene, expected and in fact needed free access to open rangeland and the region's limited water resources. If they had these, their often-huge herds could become the basis of a way of life and also of huge fortunes and great power. However, there were those who threatened all this. Sheep, which cattlemen believed cropped the land so thoroughly that it could not support cattle, and farmers, who plowed the prairie and fenced it in, were perceived as threats to the very survival of cattle ranching, and so the cattle ranchers resisted them (and were in turn resisted by them), resorting to both legal and extralegal means. The legal means included an appeal to appropriate political powers, seeking new laws and better enforcement of existing ones. For one side or the other, this could produce satisfaction or at least livable results. The gradual development of a body of law relating to water rights and water use is the best example of this and a case where the law continues to prove responsive to the ever-changing needs of the region.

The doctrine of riparian rights, whereby the owner of the land bordering a stream had the right to use its water, came west with the earliest settlers. This was, however, a thoroughly inappropriate system in the arid and semiarid lands of the Great Plains and was eventually replaced by what is called the "appropriative system." This system, which was largely put in place by the courts of the western states, protects users of water whether they are located near the source of water or not. The 1882 Colorado Supreme Court case, Coffin v. Left Hand Ditch Company, was a key decision in this transition. This approach to water rights and use, modified somewhat in the case of Native American water rights (see the 1908 decision of the Supreme Court in Winters v. United States, which reserved water rights for reservations from the time of their establishment), has also been adopted in Canada, though the active and controlling role of the provincial governments there has resulted in its being termed an "allocative system."

The law did not always provide an acceptable solution, however, and the sort of ranching operations that developed during the middle years of the nineteenth century had certain characteristics that meant that problems associated with lawlessness were virtually unavoidable. The best example is rustling, a problem that was met head-on by the ranchers. They could not keep their cattle under constant supervision (that was not compatible with open-range grazing), but they did brand them to establish ownership, and they could see to it that they and the men they hired to help manage their herds carried guns and were prepared to use them. This resort to "self-help" made sense in the absence of reliable policing, as did its elaboration in the form of vigilantism, a kind of cooperative self-help. Such tactics no doubt produced good results at times, but they also posed a danger, since the "might is right" approach could easily lead to excesses and abuses. A group of citizens rounding up rustlers and robbers seemed like a good thing, but without the protections afforded by a fully developed legal system mistakes were unavoidable, and sometimes the innocent suffered, not the guilty. And of course there was a dangerous seduction about the whole process that made armed men operating without the sanction of the law seem an acceptable solution to other perceived problems. The result at times was that weaker groups such as farmers and Chinese could also find themselves the targets of what was sometimes referred to as "rough justice"– something that usually had a lot of the former and very little of the latter.

Another focus of lawlessness during this period was the towns, especially those located at the end of the trails used to bring cattle to the railheads prior to shipping them to market. The end of a long drive brought to these towns a large number of men with money in their pockets and guns at their hips, anxious to blow off steam in the first saloon they'd seen for weeks. The results were predictable (though again, the lawlessness of the cattle towns has been overblown) and, in the eyes of the residents of such towns, highly undesirable. County sheriffs were rare, and townspeople could not rely on the comparatively few federal marshals, so in many cases the solution ultimately adopted was to hire a town marshal. The names of many of these have passed into history–and even into legend. In fact, job mobility between outlaws and marshals was high. Some men, like Wyatt Earp and Bat Masterson, walked both sides of the line. To be successful they had to be willing and able to meet force with force, and since they were usually paid, at least partially, according to the number of arrests made or fines levied, they tended to be extremely aggressive in their work. Their results were often crude, but the work of these men and of the few corporate bodies such as the Texas Rangers was all the more important in light of the virtual absence of proper courts and even the most rudimentary of prison facilities during the early years of settlement.

The Canadian Legal Frontier

During the nineteenth century the lands that were soon to form the Prairie Provinces began to fill with settlers, though much later (mainly after 1880) than was the case in the United States. This timing was important insofar as the legal history of the region is concerned, but it is only one of several factors that explain the significantly different legal culture of the Canadian Plains.

The Hudson's Bay Company, whose charter of 1670 granted the great trading company jurisdiction over a huge area and which extended a poorly defined body of England's laws to North America, was not originally active on the Great Plains. That region was at first completely unknown to Europeans and later was seen as little more than a hinterland of the rich fur-trapping land to the north, but as the trade progressed and as competition with Canadian and later American traders became progressively more fierce, the region was divided up by the company into jurisdictional units. The first rudiments of a justice system were established, notably as a result of English statutes of 1803 (the Canada Jurisdiction Act) and 1821 (An Act for Regulating the Fur Trade) and of the establishment of the Red River Colony by Lord Selkirk in 1811. The forced union of the English Hudson's Bay Company and the Canadian North West Company in 1821–the result of a famous br each of the law, the 1816 Seven Oaks Massacre–ended the worst of the violence that had come to characterize the trade and, more completely though not unambiguously, extended English law and legal institutions to the region. Even so, development of the law was still halting. Something approaching a full-fledged though very poorly functioning justice system did develop at Red River, which had been returned to the control of the Hudson's Bay Company by Lord Selkirk's heirs in 1834. But the Métis population of the colony never really accepted Hudson's Bay Company rule. Their open practice of selling robes and furs to American traders led to the Pierre-Guillaume Sayer trial in 1849. Sayer was found guilty of illegal trading, but, with 300 armed Métis protesting outside the courthouse, he was set free. The Hudson's Bay Company monopoly on trading was broken.

The antipathy of the company toward settlement, its desire to keep all costs to a minimum, and the sense that the days of the great monopoly trading companies were numbered all tended to prevent elaboration of the courts, prison facilities, and other institutions of the Red River Colony, with the result that when the area passed from the company's control to Canada in 1869, the new Dominion found itself inheriting a justice system that existed more in theory than in fact.

In taking up responsibility for these new lands, Canadian authorities had to respond to a number of needs: to avoid the mistakes of American policies, which were seen to have led to a great deal of violence and especially to the Indian Wars; to assert sovereignty against what was perceived to be an expansionist United States; to keep control over a fractious population, some of whom had recently taken up arms in an effort to safeguard their rights under the new political order; to prepare the region for settlement; and to do all this as cheaply as possible. The solution arrived at in 1873 was the creation of the North-West Mounted Police (NWMP), a body designed primarily to act as a police force (but some of whose members served as judges) and to provide prison facilities. The NWMP juggled these various roles effectively and ensured that a comparatively well-developed legal apparatus preceded settlement in most parts of the Canadian Prairies. However, having members perform every role from arresting officer, to witness, prosecutor, and judge, to jailer unavoidably left the NWMP open to accusations of conflict of interest and improper conduct. At times, especially when enforcing unpopular laws such as prohibition, the criticism could be fierce. Nonetheless, when the question of dissolving the NWMP was seriously raised in 1905 (the achievement of provincial status by Saskatchewan and Alberta meant that it was questionable whether a federally controlled police force could continue to operate in the West), a constitutional amendment was introduced to preserve what was, after all, an extremely popular and successful institution. And so the NWMP and the independent courts and prisons that had gradually appeared survived to become the basis of the provincial justice systems of the Canadian Prairies.

Twentieth-Century Development

In both the American and Canadian sections of the Great Plains the late nineteenth century witnessed dramatic increases in population, the appearance of towns and cities, and the maturing of economies and important social institutions. These developments allowed the transformation of what had been, in a constitutional sense, territorial lands into states, in the case of the United States, and, by the beginning of the twentieth century, into provinces, in the case of Canada. This change was important in the legal sphere since it made the people of the Great Plains responsible to a much greater extent for their own legal institutions, though they were, of course, constrained in all cases by limits inherent in federal statutes. To a large extent, the outlines were already in place, and they were the base on which the future was built. All Great Plains jurisdictions inherited common-law traditions and the broadly similar structures and ways of proceeding those traditions implied. Law was to be made by democratically elected legislators and to a very limited extent by the courts. Courts, both courts of first instance and appeal courts, were to be presided over by judges who were to be impartial and independent and who were not to take a more active role in proceedings than necessary. (There is, however, an important difference between Canada and the United States here, since in Canada judges of all superior courts are appointed by the federal government.) Prisons, both local jails for those serving shorter sentences– generally less than two years–and penitentiaries for those serving longer terms, were there to punish, rehabilitate, and deter, and they operated along broadly similar lines. Finally, in all states and provinces of the Great Plains, a variety of police forces existed to serve their communities.

These similarities have also extended to include some of the most important uses of law. One of the most long-lived examples of this has been the use of law, albeit not always successful, to protect the perceived collective interests of the inhabitants of the Great Plains. From the Progressives and others in the United States who, beginning in the 1890s, tried to use legal means to control the railways, financial institutions, and other large businesses that seemed to stand against the people's interest to the governments, especially on the Canadian Plains, that pursued some of these same or similar goals during the twentieth century, the Great Plains has produced some of the most significant legal initiatives on the continent (not the least of which is women's suffrage). It should be noted, however, that efforts to use the law to "protect" society have not always been so commendable, and one of the blackest marks on the record of the various Great Plains jurisdictions is the use majorities have made of the full apparatus of the law to deny equality to groups who have at different times been identified as posing a danger. Indigenous peoples had already suffered in this way, but as the nineteenth century came to an end and the twentieth century began other groups–Chinese, Germans, Japanese, and many others besides–were similarly mistreated. For example, all the American Plains states, except Colorado and the Dakotas, introduced "alien land laws" in the early 1920s directed at preventing Japanese Americans from owning land. This is a regrettable record for a region that in other respects–the early achievement of women's suffrage, for example–has been a leader in modern legal development.

Within these broadly similar outlines, however, there was still room for significant variation, which has, in some cases, tended to increase over time, especially when American and Canadian jurisdictions are contrasted. One good example of this is the generally different handling of mineral rights in the two countries. The origin of this difference is that in Canada mineral rights over much of the Great Plains region did not pass to settlers and instead remained vested in the government. This has meant that in Canada the provincial governments (especially since 1930, when the national government finally gave its remaining crown lands to the western provinces) have had a much more direct role to play in the development of extractive industries than is the case in the United States, and it is probably safe to say that there are more differences between Canadian and American law in this area than there are similarities. Moreover, it might be argued that this has contributed to a significantly different perception of the proper role for government in the economy and in society generally and therefore of the proper use of law.

Another instance where there is an apparent difference is in the approach to public policing. In the United States one encounters forces that serve towns and cities, counties, and states as well as various national bodies. a complex system with many intricacies involving separate and overlapping jurisdictions. In the Prairie Provinces there are only municipal police forces and the Royal Canadian Mounted Police, which is rented by the provinces and numerous smaller municipalities. (Provincial police are allowed under Canada's constitution but were found, after a brief experiment, to be too expensive. Moreover, their primary responsibility, enforcing prohibition, did not ensure their credibility.) However, any differences between Canada and the United States with respect to policing mask broad areas of agreement over questions such as what police ought to do (and not do) and what powers they need. It is probably also accurate to say that citizens of both countries share concerns about the limits that must be placed on police in a free society.

Contemporary Issues

The existence of a generally satisfactory legal system in the various jurisdictions of the Great Plains has not meant the end of the development of law or that no new challenges have arisen. One of the most important has been the question of individual rights and the limits freedom must place on the coercive power of the state. In the United States, individual rights have been guaranteed under the Constitution for more than two centuries, and the nature of these rights has been developed and elaborated by courts for most of that time. Such a process has been much less apparent in Canada, until comparatively recent times. But with the enactment of Canada's Charter of Rights and Freedoms in 1982 as well as provincial human rights legislation, Canadian courts have begun to develop an approach to individual rights that is in some ways reminiscent of the American model. Neither country, though, has been completely successful in identifying and protecting group rights, though things like protection of identified groups in rights legislation and in legal decisions, tribal control of the administration of justice on reservations in the United States, the move toward First Nations self-government in Canada, and the very recent innovation of sentencing circles in western Canada seem to indicate that an approach to law that recognizes that both individual and group rights can be accommodated within modern democratic states.

Sign behind bar in Birney, Montana, August 1941

View larger

A second area where both differences and the beginnings of convergence can be detected is in the methods used to choose important officials in the justice system. The strongly democratic character of American selection procedures–either directly through such mechanisms as the election of judges, prosecutors, and high-ranking police officers or more indirectly through public confirmation hearings–has traditionally been rejected by Canadians. Recently, however, a movement, especially strong in western Canada, has begun pushing for a more public appointment process for Canada's judges. But while it seems likely that Canada's traditionally secretive process will soon undergo some reform, it is extremely unlikely that the final result will be closely modeled on American practices, nor does there seem to be any move to "democratize" other elements of the justice system. Instead, there appears to be more support for increasing the role of supervisory bodies such as police commissions, which have mainly civilian members, and corrective bodies, such as royal commissions, which have, with increasing frequency, been created to look at existing and past problems.

One last trend we might note here is a result of the popular perception of an increase in violent crime, despite statistics that show a steady decrease in such crimes over the last two decades or more. In the United States the response has been a huge increase in the prison population, reflecting higher conviction rates, a more frequent resort to prison time in sentencing, and longer sentences. The prison population in Canada has also increased recently, though to nothing like the degree it has in the United States. The fact that Canada has no death penalty is also a significant difference between the two countries. An important similarity, though, and a very worrying one, is the overrepresentation of minority groups in the region's prisons, be they Latinos, Native Americans, or African Americans in American prisons or Natives in Canadian prisons. This reflects the serious societal problems faced by these groups as well as the unequal treatment they receive from the justice system. Members of such groups are more likely than others to be charged, to be convicted, and to be sentenced to time in prison. They also tend to receive longer sentences. Addressing this problem will be one of the most important challenges of the twenty-first century on the Great Plains as in other parts of the United States and Canada.

See also AGRICULTURE: Branding / ASIAN AMERICANS: Asian Exclusion Legislation; Poison Porridge Case; Territory of New Mexico v. Yee Shun / INDUSTRY: Hudson's Bay Company / NATIVE AMERICANS: Sovereignty / POLITICS AND GOVERNMENT: Forty-ninth Parallel / WATER: Appropriation Doctrine; Riparian Doctrine; Winters Doctrine.

Kenneth Leyton-Brown University of Regina

Cutter, Charles R. The Legal Culture of Northern New Spain, 1700–1810. Albuquerque: University of New Mexico Press, 1995.

Knafla, Louis, ed. Law and Justice in a New Land: Essays in Western Canadian Legal History. Toronto: Carswell, 1986.

Llewellyn, K. N., and E. Adamson Hoebel. The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence. Norman: University of Oklahoma Press, 1941.

McLaren, John, et al., eds. Law for the Elephant, Law for the Beaver: Essays in the Legal History of the North American West. Regina: Canadian Plains Research Center, 1992.

Reid, John Phillip. Law for the Elephant: Property and Social Behavior on the Overland Trail. San Marino CA: Huntington Library, 1997.

Richardson, June. Law and Status among the Kiowa Indians. Monographs of the American Ethnological Society, vol. 1. New York: J. J. Augustin, 1941.

Wunder, John, ed. Law and the Great Plains: Essays on the Legal History of the Heartland. Westport CT: Greenwood Press, 1996.

Previous: | Contents | Next: Adams-Onis Treaty

XML: egp.law.001.xml