More or Less Human: Colonialism, Common Law, and the Social Construction of Humanity on Vancouver Island, 1849-1864

UNM School of Law Research Paper No. 2018-16

Land, First Nations and James Douglas: Indigenous and Treaty Rights in the Colonies of Vancouver Island and British Columbia (Graham Brazier, Peter Cook, Hamar Foster, John Lutz, and Neil Vallance eds., forthcoming 2020)

53 Pages Posted: 8 Nov 2018 Last revised: 11 Mar 2020

See all articles by Laura Spitz

Laura Spitz

University of New Mexico - School of Law; Thompson Rivers University - Faculty of Law

Date Written: October 18, 2018

Abstract

This Article contributes to contemporary debates about juridical personhood by providing an historical account of early contests over who counted as a legal subject in the colony of Vancouver Island. These early contests were critical to the production of racial categories and racial knowledge that remain relevant today, especially for Indigenous people. Using both primary and secondary sources, the Article engages legal, historical, and Indigenous legal studies scholarship to make several points. First, the construction of early liberal legal categories — Indian, corporation, alien and citizen, for example — was accomplished, in part, through practices of humanization and dehumanization. Second, then-governor of the colony, James Douglas, both exemplified and shaped early iterations of these practices. These practices make clear that, unlike colonial administrators who followed, Douglas viewed Indigenous people as human legal subjects. But while Douglas is sometimes valorized for having recognized Aboriginal title in unceded land and acknowledged the capacity of Indigenous people to enter contracts, the underlying assumption that Indigenous people were in fact human, or at least potentially human, does not reveal a robust and nuanced view of humanity, nor was it especially progressive except in contrast to the even more discriminatory views of others. Finally and most importantly, Douglas’s views would not have resonated with Coast Salish understandings of what it meant to be human. This Article concludes by suggesting some implications of this disconnect for both ongoing struggles and the project of reconciliation in Canada.

Keywords: Indigenous studies, Indigenous legal studies, humanization, dehumanization, colonial studies, constructivism, legal personhood, legal subjecthood, James Douglas, Douglas Treaties, First Nations, Coast Salish, Songhees

Suggested Citation

Spitz, Laura, More or Less Human: Colonialism, Common Law, and the Social Construction of Humanity on Vancouver Island, 1849-1864 (October 18, 2018). UNM School of Law Research Paper No. 2018-16, Land, First Nations and James Douglas: Indigenous and Treaty Rights in the Colonies of Vancouver Island and British Columbia (Graham Brazier, Peter Cook, Hamar Foster, John Lutz, and Neil Vallance eds., forthcoming 2020), Available at SSRN: https://ssrn.com/abstract=3280526

Laura Spitz (Contact Author)

University of New Mexico - School of Law ( email )

1117 Stanford, N.E.
Albuquerque, NM 87131
United States

HOME PAGE: http://https://lawschool.unm.edu/faculty/spitz/index.html

Thompson Rivers University - Faculty of Law ( email )

900 McGill Road
IB2008
Kamloops, BC V2C 5N3
Canada

HOME PAGE: http://https://www.tru.ca/law/faculty-staff/faculty/laura-spitz.html

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