Tani reviews Jagodinsky, "Legal Codes and Talking Trees"

JOTWELL recently posted my admiring review of Katrina Jagodinsky's Legal Codes and Talking Trees: Indigenous Women's Sovereignty in the Sonoran and Puget Sound Borderlands, 1854-1946. Here's the first paragraph of the review:

In 2016, legal history is a capacious field – one with a catholic view of what counts aslaw and a willingness to find legal significance in a wide range of places. Katrina Jagodinsky’s Legal Codes and Talking Trees challenges legal historians to be even more inclusive, especially in the voices we seek to hear and the sources we mine. By pairing underused state and territorial court records with oral histories, legends, local newspaper records, and intricate genealogical research, Jagodinsky offers an all-too-rare glimpse of the experiences and perspectives of Indigenous women in the nineteenth and early twentieth centuries, as they navigated formal legal systems that were not their own.

Read on here.

The Backhouse Backlist

[We're moving up this updated post.]

Constance B. Backhouse, a Distinguished University Professor on the University of Ottawa's Faculty of Law and an immediate Past President of the ASLH, has posted some of her backlist:

"Pleasing Appearance...Only Adds to the Danger": The 1930 Insanity Hearing of Violet Hypatia Bowyer, Canadian Journal of Women and the Law 17:1 (2005) 1-13

The state's legal authority to detain individuals within insane asylums in early twentieth-century Canada was deeply influenced by factors of gender, class, and race. Violet Hypatia Bowyer, a working-class, white woman who was just twenty-two years old in 1928, was initially incarcerated in Ontario for leading a 'dissolute' life. Wrongly diagnosed as 'insane' by prison officials, she tried valiantly, but failed, to secure her release through legal challenge. The expert testimony of the prison officials, the psychiatric 'experts,' and the decision of the court all testify to the terrifying coerciveness of law in Canadian history.

'Don't You Bully Me - Justice I Want If There is Justice to Be Had': The Rape of Mary Ann Burton, London, Ontario, 1907, in People and Place: Historical Influences on Legal Culture, ed. Jonathan Swainger and Constance Backhouse (Vancouver: University of British Columbia Press, 2003), 60-94.

In 1907, Mary Ann Burton launched a complaint of rape against Joseph Gray in London, Ontario. Judicial decisions and literature at the time claimed that rape was “an accusation easily to be made”, despite the common knowledge that rape was underreported. Mary Ann Burton's case sets no legal precedent; she was treated with suspicion and hostility, and the charges were ultimately dismissed by the court. Yet Mrs. Burton resisted the antagonism she experienced – namely tactics by defence counsel to attack her character, her image as a “worthy victim”, her credibility, and her recollection of every finite detail of the incident. She remained resolute in her testimony and her right to be protected from rape, in the face of pernicious commentary from acquaintances, and a courtroom that systematically discredited and ultimately dismissed her based largely on her gender and class.

The Doctrine of Corroboration in Sexual Assault Trials in Early Twentieth-Century Canada and Australia, Queen's Law Journal 26 (2001): 297-338.

The author compares two early twentieth century criminal cases, one Australian and one Canadian, involving carnal knowledge of a child. The cases illustrate the parallel development of the doctrine of corroboration in sexual assault cases in the two countries – a doctrine which was based on the belief that the testimony of women and girls in such cases was inherently suspect. By requiring that corroborating evidence be independent of the complainant's testimony, and by interpreting that requirement in an extremely rigid way to exclude particular items of evidence that strongly supported the complaints, the courts in both cases imposed unjustified obstacles to the conviction of men accused of sexual offences. This misuse of the doctrine of corroboration contradicted the ideals of evenhanded justice and gender equality in both Canada and Australia.

'I Was Unable to Identify with Topsy' - Carrie M. Best's Struggle Against Racial Segregation in Nova Scotia, 1942, Atlantis 22 (Spring 1998) 16-26.

This paper describes a court case that was buried in Canadian legal archives for fifty-six years. In 1942, Carrie Best brought a civil action for damages against a Nova Scotia theatre, claiming that the owners were enforcing a racially-segregated seating policy. The action was ultimately dismissed. Dr. Best, an African-Canadian who was a teacher, journalist, and founder of The Clarion (a newspaper that she began publishing in 1945) had been a long-time advocate for human rights and activist against racial discrimination and segregation in Nova Scotia. Carrie Best's decorated career as a journal and activist is public knowledge, but the history of her unsuccessful litigation calls for scrutiny. Such cases help us understand Canadian history to be deeply marked with racism. 

I ka ʻōlelo nō ke ola: In speech there is life

“Hawaiʻi has perhaps the largest indigenous language archive in the U.S and the Pacific.”

     Aloha mai kākou. Thank you to Karen Tani, Dan Ernst and Clara Altman for inviting me to guest blog on the LHB. My current project looks at transformations in Hawaiian governance and law during the period of early encounter and foreign settlement in Hawaiʻi, from the late 1790s through the 1830s. Raising questions about early regimes of law in the proto-Hawaiian kingdom (the first constitution was promulgated in 1840), my project argues that Hawaiian aliʻi (chiefs) were not dependent upon foreigners to establish law as a means to introduce order into Hawaiian society; instead kānāwai (published laws) were introduced in the Hawaiian context in order to extend the rule of the aliʻi over an increasingly cosmopolitan mix of transient and settler foreigners. In my research I found that kapu (oral pronouncement, restriction, law) was not abolished, as many historians argue in 1819. Instead, examples of kapu persist, continuing to shape the behavior and morality of Hawaiian subjects, since this form of law applied foremost to Hawaiian subjects in the Hawaiian language, and many kapu were eventually enshrined in kānāwai during the Kingdom period. While my project reveals heretofore overlooked nuances in Hawaiian governance and rule, it also reveals the extent to which the creation of law emerged from the increasing interaction between Hawaiian people and foreigners on Hawaiian soil.

I ka ‘ōlelo nō ke ola

     Today this phrase is employed and understood in Hawaiʻi to relate to the importance of Hawaiian language to the perpetuation of Hawaiian culture and the health of ka lāhui Hawaiʻi, the Hawaiian people. It has been taken up as a motto by the Hawaiian language immersion schools to promote the project of preserving Hawaiian language through the education of Hawaiʻi’s youth. Although many immersion schools struggle day to day for continued support, it is now possible to obtain an education in Hawaiian language from preschool through the Ph.D. This is an important development for my work, since the infrastructure now exists to create scholars fluent in Hawaiian language who are capable of conducting research and begin the important work of interpreting the vast archive of Hawaiian language source material available to historians and legal scholars interested in pre-contact and nineteenth century Hawaiʻi and the U.S.

Ka palapala

     Hawaiʻi has perhaps the largest indigenous language archive in the United States and the Pacific, and yet, most of the histories written about Hawaiʻi have left out these incredible resources. The American missionaries who arrived in the archipelago in 1819 from the American Board of Commissioners for Foreign Missions brought printing presses with them, and the important mandate to give the Bible to Hawaiians in their own language. Hawaiians immediately took to learning the palapala (reading and writing) and began to write and publish in the Hawaiian language, a literary production that persisted well into the middle of the twentieth century. It is because of the introduction of New England print culture and the avid pursuit of publishing and writing among Hawaiians that this huge archive exists today.The information available through Hawaiian language publications and manuscript sources will assist scholars in radically rewriting the legal and political history of the Hawaiian Kingdom and its political, diplomatic, and legal relations with the United States and the world. Hawaiʻi can serve as an example of the kinds of histories that can be written when scholars approach indigenous language sources as authoritative and on par with those written in English or other languages of prestige in the academy.

     In the weeks that follow I hope to introduce interesting developments in legal history that make use of Hawaiian language source material. In the meantime, I hope that you enjoy this link to an important ongoing project which makes Hawaiian language newspapers available online.

http://nupepa.org/

Once you navigate to this page, you may click the upper right hand arrow for site instructions in English.

Me ke aloha,

Noelani Arista