Reference Re Eskimos
is a decision by the Supreme Court of Canada regarding the constitutional status of Canada's Inuit, then called "Eskimos." The case concerned section 91 of the Constitution Act, 1867, 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, Inuit should be considered Indians.
Background
The case arose due to controversy as to whether Inuit in Quebec 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 always left open the possibility of joining Canada with other lands, and thus the Inuit in Rupert's Land 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 would not include the Inuit, and that this document could be used to help interpret the British North America Act.
Decision
Duff
Chief Justice Lyman P. Duff, in his opinion, consulted what he believed to be "the most authoritative" evidence, namely evidence from the Hudson's Bay Company which governed Rupert's Land. A British House of Commons committee examined how the company dealt with the Inuit in 1856 and 1857. 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 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, 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 "savages", 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" 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, Prime Minister John A. Macdonald, one of the chief negotiators of the British North America Act, discussed the Inuit with 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 and Henry Hague Davis each wrote brief opinions concurring with Duff.