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

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