Binnema, "Protecting Indian Lands by Defining Indian: 1850-76"

In the current issue of Journal of Canadian Studies/Revue d'études canadiennes , an article by Ted Binnema of UNBC entitled "Protecting Indian Lands by Defining Indian: 1850-76". 

Here's the abstract:

Abstract:

In 1850, the government of the Province of Canada defined Indian for the first time. In the twentieth century, the legal provisions by which generations of status Indian women in Canada lost their status when they married non-status men became among the most controversial aspects of Canadian legislation relating to First Nations peoples. The government’s decision to define Indian, and its actual definitions, came to exemplify the coercive nature of Canadian Indian policy. This essay challenges many assumptions regarding the history of Canada’s definition of Indian. A close examination shows that officials only reluctantly decided to define Indian in law in 1850 in efforts to protect Indian land in Lower Canada. The evidence also shows that the first legal definition ofIndian was intended to conform to the “ancient customs and traditions” of these Indigenous communities. Furthermore, government officials consulted meaningfully with Aboriginal leaders when they revised the definition between 1851 and 1876. During the entire period, the Aboriginal political elite were effective advocates for their own interests.

Abstract:

En 1850, le gouvernement de la Province du Canada a défini le terme indien pour la première fois. Au XX^e siècle, les dispositions légales qui avaient entraîné la perte du statut de plusieurs générations de femmes indiennes au Canada lorsqu’elles avaient épousé des non-Indiens en viennent à représenter un aspect parmi les plus controversés de la législation canadienne visant les Premières nations. La décision du gouvernement de définir le terme indien, et sa définition même, ont fini par illustrer la nature coercitive des politiques indiennes du Canada. Le présent article questionne plusieurs des hypothèses sur l’historique de la définition canadienne du terme indien. Un examen approfondi montre que les autorités ont finalement décidé avec beaucoup de réticence de définir le terme indien dans la loi en 1850 afin de pouvoir protéger les terres indiennes dans le Bas-Canada. Les éléments probants montrent également que la première définition légale du terme indien visait à se conformer aux « coutumes et traditions anciennes » des communautés indigènes. Les représentants du gouvernement ont consulté véritablement les leaders autochtones lorsqu’ils ont révisé la définition entre 1851 et 1876. Pendant toute cette période, l’élite politique autochtone a plaidé efficacement en faveur de ses propres intérêts.

Harris and Au on the Abolition of Notice in Title Registration of Real Property in BC in SSRN

Doug Harris of UBC Faculty of Law and former student May Au have posted "Title Registration and the Abolition of Notice in British Columbia" on SSRN. The article will be published in The UBC Law Review. 

Abstract:

Systems of land law must balance competing goals of securing title for existing interests in land with facilitating their transfer. Title registration systems operate to facilitate transfers of interests in land. They reflect a choice to enhance the security of transfers of interests, providing what has been characterized as dynamic security at the expense of the static security of existing interests. One of the cardinal principles of title registration is the abolition of the doctrine of notice. In equity, if purchasers of a legal interest have notice of a prior equitable interest, then they take their interest subject to that prior interest. To do otherwise is to perpetrate a fraud. Most title registration systems abolish notice; prior unregistered interests do not affect purchasers who register their interests, whether or not they have notice of the prior interest, except, so many title registration statutes provide, in the case of fraud. This article investigates the evolution of provisions purporting to abolish notice in Torrens title jurisdictions, it describes the variety of provisions that emerged, it reviews the longstanding uncertainty in British Columbia over the extent to which the doctrine of notice is abolished, and it considers a number of proposals for reform. It concludes that the uncertainty is a function of an unresolved policy choice between static and dynamic security, and that the British Columbia Court of Appeal or the legislature needs to intervene to clarify that choice.

McNeil on Indigenous Rights Litigation, Legal History, and the Role of Experts

Kent McNeil of Osgoode Hall Law School has what looks like an intriguing article in the Summer 2014 issue of the Saskatchewan Law Review, "Indigenous Rights Litigation, Legal History, and the Role of Experts."
Abstract unavailable.

Updated Fall 2014 Schedule for Legal History Group

2014 Fall Schedule: Osgoode Society Legal History Group

** All sessions will be held at the University of Toronto, in Victoria College (Old Vic building) Room 211 except October 1, which will  be held in Northrup Frye Hall, Room 008 **
Exit the subway at Museum Station, east exit. Old Vic is to the southeast of the Birge-Carnegie Library, where we met last year. The Northrup Frye building is to the south of the Birge-Carnegie Library and Emmanuel College, backing on Queen's Park Circle. For a map of U of T, see here.

Wednesday September 10 - Ian Kyer, "Equity and the Private Sector Service Provider: The Battle between the City of Toronto and the Toronto Railway Company in the Privy Council"

Wednesday September 24 - by author request, name dedacted,  “Testamentary Archeology in Late-Victorian Ontario: William Martin’s Little, Posthumous Legal System"

Wednesday October 1 –*new* Paul Craven, York University, "Imagining a low law history of labour arbitration in Ontario"

Wednesday October 15 - Sam McLean, King's College, London: "Courts-Martial and the Creation of the Early-Modern Royal Navy"

Wednesday October 29 - Joseph Dunlop, University of Toronto: "The Catholic Legislator in a Pluralistic Society: From Pierre Trudeau to Paul Martin."

November 5 - Reading Week

Wednesday November 12 - Philip Girard, Osgoode Hall Law School: TBA

Wednesday November 26 – Art Linton, Magna Carta Canada, TBA

***Wednesday December 3 – Dennis Molinaro, University of Toronto, "Liberal Communists and Communist Liberals: Section 98 and Civil Rights in Canada." ** Note new date

Rueck on Commons, Enclosure, and Resistance in Kahnawá:ke Mohawk Territory, 1850-1900

In the new issue of the Canadian Historical Review, an article by Daniel Rueck, entitled, "Commons, Enclosure, and Resistance in Kahnawá:ke Mohawk Territory, 1850-1900".

Here's the abstract:

Historical communities that have held lands in common have, without exception, had strict regulations for using those lands. This was true also in Kahnawá:ke, a Mohawk community near Montreal, where community leaders articulated and enforced customary land laws until the last decades of the nineteenth century. Although a few Mohawks contested these laws in the nineteenth century, the Canadian government undermined, dismantled, and replaced customary land law in the 1870s and 1880s. This article reveals the way the Canadian Department of Indian Affairs exacerbated resource and land shortages in its attempts to undermine Kahnawá:ke leaders, gain control of the land, and ultimately to disperse the community. It describes a chaotic transition from regulated common property to a form of private property under the Indian Act and argues that this transformation was part of a global enclosure movement that continues to this day. Nevertheless, the Canadian government was unable to bring its project to completion, in large part the result of effective resistance offered by Kahnawá:ke Mohawks. The article draws attention to the extraordinary nature of this successful Indigenous resistance to the Canadian state in the late nineteenth century.

CFP from the Law & History CRN of the Law & Society Association

A call for panels and panelists in legal history at the 2015 meeting of the LSA to be held in Seattle in May.

Greetings from the LSA’s Law & History CRN. The next LSA meeting will be held May 28-31, 2015 in Seattle (http://www.lawandsociety.org/aboutmeetings.html). The theme of the 2015 LSA annual meeting has been announced (see below); the website for submissions will open August 18, and the deadline for submissions will be October 15.

There are now more than 250 members of this Google Group, from all over the world, and we encourage you to use this resource to organize panels for this year’s LSA meeting. There are a few ways to do this: 

If you have a complete panel and would like to have it listed as a CRN-sponsored panel (so that people looking for legal history panels can find it more easily), please let us know. 

If you have an idea for a panel and want to find some like-minded folks, or want to complete an existing panel, feel free to send an email to the group. 

Finally, we (the organizers) are also happy to put panels together from papers; feel free to send us your paper submissions and we will attempt to create panels from the papers we receive. Please send us your submission by October 1, so that we have time to do this; we will then be able to let you know in plenty of time if we cannot, so that you may submit your paper to LSA on your own. 

We look forward to hearing from you; please let me know if you have any questions.

Sincerely, 

Joanna Grisinger

Senior Continuing Lecturer 

Center for Legal Studies, Northwestern University

joanna.grisinger@northwestern.edu

Kimberly Welch

Assistant Professor  

Department of History, University of West Virginia 

Kimberly.Welch@mail.wvu.edu

Logan Sawyer

Assistant Professor

University of Georgia Law School

lesawyer@uga.edu

Kathryn Schumaker

Assistant Professor

Department of Classics and Letters, University of Oklahoma

schumaker@ou.edu

LSA 2015: Law’s Promise and Law's Pathos in the Global North and Global South

What has law accomplished in the Global North and Global South? Its champions have promised much—the spread of human rights and the rule of law, the elimination of discrimination and the protection of the vulnerable, the lure of economic development and the fostering of global trade, endowments of human dignity and restraints on economic rapacity. Its critics observe law as an instrument for repression, hegemonic control and infringements on privacy and intrusive surveillance (in the context of a never-ending and ubiquitous ‘war against terror’), as a weapon against free speech or political opposition, as a tool of economic exploitation and domination, and as a retreat from politics. The 2015 LSA annual meeting will engage law’s promises and law’s pathos in domestic and transnational contexts, through plenaries addressing the roles of law in the war on terror, in climate change, in emancipation and protection of the world’s most vulnerable populations, and in law’s relationships with religions.

Legal History Group Fall Schedule: Spaces available!

Jim Phillips sent around the tentative fall schedule for the Osgoode Society Legal History Group a few days ago. As you can see, there are several spots available. If you are an academic of whatever discipline who is going to be in the Toronto area on one of those dates, and have a paper you would like to present, please email Jim at j.phillips@utoronto.ca. Note that the subject has to be legal history, or at least legal-ish history, but of any time period and geographic area. Location to be confirmed--probably Victoria College again. Time 6:30 p.m.

This is what we have so far:

Wednesday September 10 - Ian Kyer, "Equity and the Private Sector Service Provider: The Battle between the City of Toronto and the Toronto Railway Company in the Privy Council"

Wednesday September 24 - Available

Wednesday October 1 - Available

Wednesday October 15 - Sam McLean, King's College, London: "Courts-Martial and the Creation of the Early-Modern Royal Navy"

Wednesday October 29 - Joseph Dunlop, University of Toronto: "The Catholic Legislator in a Pluralistic Society: From Pierre Trudeau to Paul Martin."

November 5 - Reading Week

Wednesday November 12 - Philip Girard, Osgoode Hall Law School: "A History of Law in Canada, 1750-1815"

Wednesday November 26 - Jim Phillips, University of Toronto: "A History of Law in Canada, 1815-1850"

Wednesday December 10 - Available