From Judging Culture to Taxing 'Indians': Tracing the Legal Discourse of the 'Indian Mode of Life'

Osgoode Hall Law Journal, Vol. 47, p. 399, 2009

39 Pages Posted: 27 Jun 2012

See all articles by Constance MacIntosh

Constance MacIntosh

Dalhousie University - Schulich School of Law

Date Written: June 27, 2009

Abstract

In this article I consider how judicial decision making characterizes Indigenous peoples’ culture outside the context of determinations under section 35(1) of the Constitution Act, 1982. I am concerned with how contemporary jurisprudence sometimes subjects Indigenous people to stereotyped tests of Aboriginality when they seek to exercise legislated rights. These common law tests of Aboriginality tend to turn on troubling oppositional logics, such as whether or not the Indigenous person engages in waged labour or commercial activities. These tests arose in historic legislation and policy that were premised on social evolutionary theory and were directed at determining whether an Indigenous person was to be deemed economically assimilated. Before such legislation and policies were repealed, however, the tests crossed into the common law and have since been read into legislation. As a result, the doctrine of precedent has reinforced and continually renewed this oppressive discourse to the present day. This article is, in essence, a call to critically engage and confront the assumptions that underlie our rubrics of analysis.

Suggested Citation

MacIntosh, Constance, From Judging Culture to Taxing 'Indians': Tracing the Legal Discourse of the 'Indian Mode of Life' (June 27, 2009). Osgoode Hall Law Journal, Vol. 47, p. 399, 2009. Available at SSRN: https://ssrn.com/abstract=2094598

Constance MacIntosh (Contact Author)

Dalhousie University - Schulich School of Law ( email )

6061 University Avenue
6061 University Ave
Halifax, Nova Scotia B3H 4H9
Canada

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