Disentangling Law and History

Abstract

This article juxtaposes the history of Japanese immigrants in Canada—which parallels that of Japanese immigrants to the United States in significant ways—with that of Canada’s Indigenous people, who were also marginalized, to explore larger issues related to the way in which history is deployed in court actions. Although it uses a Canadian case—the 2008 decision of Canada’s Supreme Court in R. v. Kapp (which upheld an exclusive 24-hour communal sales fishery established on behalf of three First Nations)—to frame this discussion, the questions raised are relevant on both sides of the U.S.-Canada border. The article speaks, for example, to ways in which efforts to meet the elements of a given legal test can lead to the distortion of historical evidence, also a danger for U.S. courts. In reviewing the historical arguments made by the Japanese Canadian Fishermen’s Association in R. v. Kapp, which invoked two earlier cases from the 1920s in which Japanese immigrants challenged their exclusion from Canadian fisheries on race-based grounds, the article also provides a summary of that history of exclusion. It highlights the importance of reading immigration and Indigenous histories together in order to develop a more comprehensive understanding of the complex ways in which racialized groups have negotiated racial divides. These negotiations produced a far more intricate set of alignments and divisions among and within various racialized groups than is often recognized.