Social Darwinism and Judicial Conceptions of Indian Title in Canada in the 1880s

38:1 Journal of the West 68-76

5 Pages Posted: 24 Aug 2013

See all articles by Kent McNeil

Kent McNeil

York University - Osgoode Hall Law School

Date Written: 1999

Abstract

Discussions of Indian title to land in Canada usually start with St. Catherine's Milling and Lumber Company v. The Queen, a case that took three years to progress through the Canadian courts before finally being decided in 1888 in London, England, by the Judicial Committee of the Privy Council, then the highest appeal tribunal for the British Empire. Unfortunately, judicial analyses of the St. Catherine's case rarely take into account the impact of the historical context or contemporary attitudes toward the Indian peoples in Canada. While important insights into the case are found in the commentary of historians such as Donald Smith, S. Barry Cottam, and Anthony J. Hall, the case is still cited as a judicial precedent on the meaning of Indian title to land without any consideration of these matters. But one does not have to look very hard to find that the attitudes of Whites toward the Indian peoples in the 1880s were generally based on ignorance of Indian cultures and prejudicial views of human society. Moreover, it is clear that those attitudes influenced judicial conceptions of Indian title to land in the St. Catherine's case, making reliance on that aspect of the case highly problematic.

Originally published in Journal of the West 38:1 (Winter 1999). Copyright Journal of the West ©1999, reprinted with permission of ABC-CLIO, LLC.

Keywords: aboriginal, indian, title, judicial, canada, darwin, land, property

Suggested Citation

McNeil, Kent, Social Darwinism and Judicial Conceptions of Indian Title in Canada in the 1880s (1999). 38:1 Journal of the West 68-76, Available at SSRN: https://ssrn.com/abstract=2315024

Kent McNeil (Contact Author)

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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