Re Eskimos
Encyclopedia
Re Eskimos


Supreme Court of Canada


Decided April 5, 1939
Full case name: Re Eskimos (sub nom. Re Term "Indians")
Citations: [1939] 2 D.L.R. 417; [1939] S.C.R. 104
Prior history: None (reference question
Reference question
In Canadian law, a Reference Question is a submission by the federal or a provincial government to the courts asking for an advisory opinion on a major legal issue. Typically the question concerns the constitutionality of legislation....

)
Holding
For the purposes of section 91(24) of the British North America Act, 1867, the Inuit are Indians.
Court membership
Chief Justice Lyman Poore Duff
Lyman Poore Duff
Sir Lyman Poore Duff, GCMG, PC, QC was Chief Justice of the Supreme Court of Canada and briefly served as Acting Governor General of Canada in 1931 and 1940....

Puisne Justices Lawrence Arthur Dumoulin Cannon
Lawrence Arthur Dumoulin Cannon
Lawrence Arthur Dumoulin Cannon was a Canadian lawyer, politician, and Puisne Justice of the Supreme Court of Canada....

, Oswald Smith Crocket
Oswald Smith Crocket
Oswald Smith Crocket was a Canadian lawyer, politician, and Puisne Justice of the Supreme Court of Canada....

, Henry Hague Davis
Henry Hague Davis
Henry Hague Davis was a Canadian lawyer and Puisne Justice of the Supreme Court of Canada.Born in Brockville, Ontario, the son of William Henry Davis and Eliza Dowsley, he received a Bachelor of Arts in 1907, a Master of Arts in 1909 and a Bachelor of Laws in 1911 all from the University of Toronto...

, Patrick Kerwin
Patrick Kerwin
Patrick Kerwin, PC , was a Chief Justice of the Supreme Court of Canada.Kerwin was born in Sarnia, Ontario to Patrick Kerwin and Ellen Gavin. After graduating from the Sarnia Collegiate Institute at the age of 16, he enrolled at Osgoode Hall Law School in 1906. He articled in Sarnia with R. V...

, Albert Hudson
Albert Hudson
Albert Blellock Hudson was a politician and judge from Manitoba, Canada. He served in the Legislative Assembly of Manitoba from 1914 to 1920 as a member of the Manitoba Liberal Party, and was a cabinet minister in the government of Tobias C. Norris...

Case opinions
Majority by: Duff
Joined by: Hudson and Davis
Concurrence by: Cannon
Joined by: Crocket
Concurrence by: Kerwin
Joined by: Crocket

Re Eskimos [1939] S.C.R. 104, is a decision by the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...

 regarding the constitutional status of Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...

's Inuit
Inuit
The Inuit are a group of culturally similar indigenous peoples inhabiting the Arctic regions of Canada , Denmark , Russia and the United States . Inuit means “the people” in the Inuktitut language...

 people, then called "Eskimo
Eskimo
Eskimos or Inuit–Yupik peoples are indigenous peoples who have traditionally inhabited the circumpolar region from eastern Siberia , across Alaska , Canada, and Greenland....

s." The case concerned section 91(24) of the Constitution Act, 1867
Constitution Act, 1867
The Constitution Act, 1867 , is a major part of Canada's Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system...

, then the British North America Act, 1867, which assigns jurisdiction over "Indians, and Lands reserved for the Indians" to the federal government. The Supreme Court found that for the purposes of section 91(24), Inuit should be considered Indians.

Background

The case arose due to controversy as to whether Inuit in Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....

 were under federal or provincial jurisdiction. The Supreme Court noted that when the British North America Act was originally adopted, there were "few, if any" Inuit in Canada, which was then a much smaller country. However, the Constitution
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...

 always left open the possibility of joining Canada with other lands, and thus the Inuit in Rupert's Land
Rupert's Land
Rupert's Land, or Prince Rupert's Land, was a territory in British North America, consisting of the Hudson Bay drainage basin that was nominally owned by the Hudson's Bay Company for 200 years from 1670 to 1870, although numerous aboriginal groups lived in the same territory and disputed the...

 were now within Quebec's borders.

The federal government at the time of this case did not want to take responsibility over the Inuit. It argued that the term "Indians" as defined by the Royal Proclamation of 1763
Royal Proclamation of 1763
The Royal Proclamation of 1763 was issued October 7, 1763, by King George III following Great Britain's acquisition of French territory in North America after the end of the French and Indian War/Seven Years' War...

 would not include the Inuit, and that this document could be used to help interpret the British North America Act.

Duff

Chief Justice
Chief Justice of Canada
The Chief Justice of Canada, like the eight puisne Justices of the Supreme Court of Canada, is appointed by the Governor-in-Council . All nine are chosen from either sitting judges or barristers who have at least ten years' standing at the bar of a province or territory...

 Lyman P. Duff, in his opinion, consulted what he believed to be "the most authoritative" evidence, namely evidence from the Hudson's Bay Company
Hudson's Bay Company
The Hudson's Bay Company , abbreviated HBC, or "The Bay" is the oldest commercial corporation in North America and one of the oldest in the world. A fur trading business for much of its existence, today Hudson's Bay Company owns and operates retail stores throughout Canada...

. That company used to govern Rupert's Land, and a government committee under the British House of Commons
British House of Commons
The House of Commons is the lower house of the Parliament of the United Kingdom, which also comprises the Sovereign and the House of Lords . Both Commons and Lords meet in the Palace of Westminster. The Commons is a democratically elected body, consisting of 650 members , who are known as Members...

 in 1856 and 1857 examined how the company dealt with the Inuit. The Hudson's Bay Company prepared a report for the committee, and as Duff noted, the report referred to Inuit as a type of "Indian." Later, after the British North America Act was adopted, the Parliament of Canada
Parliament of Canada
The Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...

 declared in December 1867 that if it gained jurisdiction over Rupert's Land, it would take responsibility for the Indians there. In 1870, the territories were awarded to Canada.

Duff then added that the Inuit of Labrador
Labrador
Labrador is the distinct, northerly region of the Canadian province of Newfoundland and Labrador. It comprises the mainland portion of the province, separated from the island of Newfoundland by the Strait of Belle Isle...

, as well, had been widely referred to as Indians from around 1760 and were when the British North America Act was adopted. Official records from 1762 called Inuit "savage
Savage
- Places :Canada* Lower Savage Islands, Nunavut* Middle Savage Islands, NunavutSlovenia* Savage Lake, a karst lakeUnited States* Savage, Maryland* Savage, Minnesota...

s", and Duff compared this to how Indian tribes such as the Montagnais and Huron were called savages. In 1869, a judge from the Court of Labrador prepared a report for the Governor of Newfoundland which referred to "Esquimaux" (Inuit) as a type of Indian. Duff also found some missionaries referred to Inuit as Indians. In this context, Duff found it important that in 1879, John A. Macdonald
John A. Macdonald
Sir John Alexander Macdonald, GCB, KCMG, PC, PC , QC was the first Prime Minister of Canada. The dominant figure of Canadian Confederation, his political career spanned almost half a century...

, one of the chief negotiators of the British North America Act and Prime Minister of Canada
Prime Minister of Canada
The Prime Minister of Canada is the primary minister of the Crown, chairman of the Cabinet, and thus head of government for Canada, charged with advising the Canadian monarch or viceroy on the exercise of the executive powers vested in them by the constitution...

, discussed the Inuit with Sir Hector Langevin, and the discussion referenced the Inuit as Indians.

As defined by the Royal Proclamation of 1763, Indians are "the several nations or tribes of Indian with whom We are connected and who lived under Our protection." The federal government argued this would not include the Inuit, as the words "nations" and "tribes" were not used to describe Inuit communities. However, Duff found evidence contradicting this. Duff also said the Inuit under the Hudson's Bay Company to an extent lived under the "protection" of the Crown, "under either charter or license from the Crown." Duff also doubted that the Royal Proclamation of 1763 could guide interpretation of the British North America Act.

Justices Albert Hudson
Albert Hudson
Albert Blellock Hudson was a politician and judge from Manitoba, Canada. He served in the Legislative Assembly of Manitoba from 1914 to 1920 as a member of the Manitoba Liberal Party, and was a cabinet minister in the government of Tobias C. Norris...

 and Henry Hague Davis
Henry Hague Davis
Henry Hague Davis was a Canadian lawyer and Puisne Justice of the Supreme Court of Canada.Born in Brockville, Ontario, the son of William Henry Davis and Eliza Dowsley, he received a Bachelor of Arts in 1907, a Master of Arts in 1909 and a Bachelor of Laws in 1911 all from the University of Toronto...

 each wrote brief opinions concurring with Duff.

Cannon

Justice Cannon
Lawrence Arthur Dumoulin Cannon
Lawrence Arthur Dumoulin Cannon was a Canadian lawyer, politician, and Puisne Justice of the Supreme Court of Canada....

 wrote his own opinion finding the Inuit should be considered Indians. He noted the report by Sir George Simpson
George Simpson (administrator)
Sir George Simpson was a Scots-Quebecer and employee of the Hudson's Bay Company . His title was Governor-in-Chief of Rupert's Land and administrator over the Northwest Territories and Columbia Department in British North America from 1821 to 1860.-Early years:George Simpson was born in Dingwall,...

 in 1857 calling Inuit Indians. Cannon then concluded, "the report of the Committee must have been known to the Legislature at Westminster in 1867." He also pointed to the Quebec Conference
Quebec Conference, 1864
The Quebec Conference was the second meeting held in 1864 to discuss Canadian Confederation.The 16 delegates from the Province of Canada, Nova Scotia, New Brunswick, and Prince Edward Island had agreed at the close of the Charlottetown Conference to meet again at Quebec City October 1864...

 of 1864, in which Resolution 29(29) of the Quebec Resolutions declaring the (Federal) Parliament should govern "Indians and Lands reserved for the Indians," in which the latter term was translated into French
French language
French is a Romance language spoken as a first language in France, the Romandy region in Switzerland, Wallonia and Brussels in Belgium, Monaco, the regions of Quebec and Acadia in Canada, and by various communities elsewhere. Second-language speakers of French are distributed throughout many parts...

 as "Les Sauvages et les terres réservées pour les Sauvages." This meant all natives in British North America
British North America
British North America is a historical term. It consisted of the colonies and territories of the British Empire in continental North America after the end of the American Revolutionary War and the recognition of American independence in 1783.At the start of the Revolutionary War in 1775 the British...

, including Newfoundland.

Kerwin

Justice Patrick Kerwin
Patrick Kerwin
Patrick Kerwin, PC , was a Chief Justice of the Supreme Court of Canada.Kerwin was born in Sarnia, Ontario to Patrick Kerwin and Ellen Gavin. After graduating from the Sarnia Collegiate Institute at the age of 16, he enrolled at Osgoode Hall Law School in 1906. He articled in Sarnia with R. V...

 also wrote an opinion finding that Inuit were Indians. He felt the British North America Act, in referring to Indians, was intended to mean aboriginals. He noted evidence that Samuel de Champlain
Samuel de Champlain
Samuel de Champlain , "The Father of New France", was a French navigator, cartographer, draughtsman, soldier, explorer, geographer, ethnologist, diplomat, and chronicler. He founded New France and Quebec City on July 3, 1608....

, missionaries and others classified Indians as "sauvages" and Inuit as "sauvages esquimaux." Books which Kerwin speculated that the Fathers of Confederation
Fathers of Confederation
The Fathers of Confederation are the people who attended the Charlottetown and Quebec Conferences in 1864 and the London Conference of 1866 in England, preceding Canadian Confederation. The following lists the participants in the Charlottetown, Quebec, and London Conferences and their attendance at...

 and the British Parliament in 1867 might have seen also used this classification. Editions of Webster's Dictionary
Webster's Dictionary
Webster's Dictionary refers to the line of dictionaries first developed by Noah Webster in the early 19th century, and also to numerous unrelated dictionaries that added Webster's name just to share his prestige. The term is a genericized trademark in the U.S.A...

 from 1913 and the 1920s did not count the Inuit as Indians, but earlier dictionaries did.

Crocket

Justice Oswald Smith Crocket
Oswald Smith Crocket
Oswald Smith Crocket was a Canadian lawyer, politician, and Puisne Justice of the Supreme Court of Canada....

 wrote an opinion briefly concurring with Justices Cannon and Kerwin.

See also


Canadian Aboriginal case law
  • Numbered Treaties
    Numbered Treaties
    The numbered treaties are a series of eleven treaties signed between the aboriginal peoples in Canada and the reigning Monarch of Canada from 1871 to 1921. It was the Government of Canada who created the policy, commissioned the Treaty Commissioners and ratified the agreements...

  • Indian Act
    Indian Act
    The Indian Act , R.S., 1951, c. I-5, is a Canadian statute that concerns registered Indians, their bands, and the system of Indian reserves...

  • Section Thirty-five of the Constitution Act, 1982
    Section Thirty-five of the Constitution Act, 1982
    Section thirty-five of the Constitution Act, 1982 provides constitutional protection to the aboriginal and treaty rights of Aboriginal peoples in Canada. The section, while within the Constitution Act, 1982 and thus the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms...

  • Indian Health Transfer Policy (Canada)
    Indian Health Transfer Policy (Canada)
    The Indian Health Transfer Policy of Canada, provided a framework for the assumption of control of health services by Aboriginal Canadians and set forth a developmental approach to transfer centred on the concept of self-determination in health. Through this process, the decision to enter into...


External links

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