SHAWANAKISKIE, Ottawa and convicted murderer; m. with at least one child; fl. 1813–26 in Upper Canada.
In 1813 Shawanakiskie fled from Amherstburg, Upper Canada, with Major-General Henry Procter’s army when it retreated to the head of Lake Ontario. In the fall of 1821 he killed an Indian woman in the streets of Amherstburg. No details of the case survive, except for a reference to an “atrocious” and “heinous” crime. On 27 October he was lodged in jail at Sandwich (Windsor), pending his trial, which took place in August 1822 before Mr Justice William Campbell. The case was prosecuted by Christopher Alexander Hagerman*, acting counsel for the crown on the Western circuit. The proceedings, according to Shawanakiskie in a later petition, were conducted solely in English, with no attempt to translate them into his native tongue. George Ironside, Indian Department superintendent at Amherstburg, testified, despite threats from the accused against his family. Widely known as a violent individual, Shawanakiskie, according to a statement by Ironside, had “half scalped” a marine stationed at Amherstburg, allegedly murdered an old woman of his tribe, and killed his sister by cutting her throat. Shawanakiskie’s counsel, probably William Horton, argued that in the matter at hand the accused had only avenged the murder of a parent, a custom sanctioned by native law. He further stated that the exercise of native laws and customs was guaranteed by treaty, thus rendering Indians immune from legal proceedings in such circumstances. None the less, Shawanakiskie was found guilty – the case, according to Campbell, having been “fully proved” – and sentenced to death.
Campbell, however, was uncertain about the terms of the supposed treaty and delayed the execution to permit time for Lieutenant Governor Sir Peregrine Maitland* to “ascertain upon what authority such opinion is founded.” Maitland referred the question to Chief Justice William Dummer Powell, whose reply was inconclusive. He then submitted the whole matter to the colonial secretary, Lord Bathurst, who in turn passed it on to the Home Department. Before acting, the home secretary, Robert Peel, requested any information in the colony regarding the existence of such a treaty. Thus in August 1823 Bathurst wrote to Maitland informing him that the contentious legal question was back on his desk. At stake was an important legal issue for both the Indian and the white communities, namely the applicability of English criminal law in cases involving Indians only. Of more immediate concern to local residents living in unsettled areas near the reserve, however, was the question of protecting themselves and their families.
It took over two years to check through the Indian Department’s records. Finally, in November 1825 Maitland reported that “after the most diligent Search . . . there appears to exist no treaty that can give color to the idea that an Indian is not to be considered as amenable to the law for offences committed against another Indian within His Majesty’s Dominions.” Armed with this information, officials at the Home Department quickly concluded that there was nothing to prevent the law from taking its course. Yet because of the possibility of extenuating circumstances of which Maitland alone would be aware, the warrant issued for Shawanakiskie’s execution included a proviso that the lieutenant governor could commute the sentence to transportation for life.
There is no evidence that Shawanakiskie received such a conditional pardon. Given his character and the threats to Ironside, it seems likely that he was executed at the Sandwich jail, probably in 1826. The legacy of his case was the resolution of a vexing legal question. Thereafter, as in the case of George Powlis*, an Indian could gain a pardon only on the grounds of legal cause and not by right of immunity.