Ethnohistorical Evidence and Aboriginal Claims in Canada and the United States

On May 4, 2006, the Wilson Center's Canada Institute and Division of United States Studies hosted a roundtable discussion with a distinguished panel of experts on the role of ethnohistory in aboriginal claims in Canada and the United States.

Arthur J. Ray, Professor, History Department, University of British Columbia; Woodrow Wilson Center Fellow
Alexandra Page, Attorney, Indian Law Resource Center
Dianne Newell, Director, Peter Wall Institute of Advanced Studies, University of British Columbia
Kathleen Bragdon, Professor of Anthropology, College of William and Mary
Darlene Johnston, Professor of Law, University of Toronto, Member of Chippewas of Nawash First Nation
Clem Chartier, President of the Metis National Council of Canada
Lawrence Rosen, William Nelson Cromwell Professor of Anthropology, Princeton University; Adjunct Professor of Law, Columbia Law School; Woodrow Wilson Center Fellow

Summary of the Discussion
Professor Ray presented an overview of past and present experiences with ethnohistorical evidence in Canada and the United States, highlighting the contentious issues, underlying problems, and specific challenges that have emerged from various legal battles in the courts. The PDF version of his paper is available for download.

Ethnohistory, which Professor Bragdon described as "a multidisciplinary, methodological approach [to Native history] that sheds new light on traditional history written and compiled by non-Natives," presents a number of complications when used in the courtroom. Professor Ray explained that ethnohistory often is used by plaintiffs in their efforts to recover lost rights from the defendant—usually the government—which has a strong incentive to "bury the past and move on," rather than revisit history and amend past wrongs. Alexandra Page concurred, noting that the United States Indian Claims Commission (USICC), which operated from 1946 to 1978, based its work on the implicit goal of "termination," not "respect and acknowledgement." As a result, the USICC's approach was to "compensate and award damages." "The underlying assumption," according to Page, "was that the golden age of Indian tribes and nations was long gone."

Since the Supreme Court of Canada ruled that oral evidence was admissible and should be given proper weight, the use of ethnohistory in litigation has become "the new battlefield" for aboriginal claims in Canada. To reclaim their rights, especially economic or territorial rights, the burden of proof for demonstrating "continuity" of residence on a particular land area typically lies with claimants. Courts tend to assess continuity based on written records. In Canada, the Hudson's Bay Company's extensive business records date back to the 17th century, providing a goldmine of information regarding trade and other exchanges between native peoples and European newcomers. But, as Professor Johnston explained, the existence of a written record outside of the well traveled trade corridors often depended on the chance of a missionary establishing an outpost in the area and interacting with the local communities (the Jesuit missionaries typically produced the most accurate records, at least in terms of capturing the names by which Natives identified themselves). Other groups such as the Métis are often underrepresented in written records because discrimination forced them underground. The Métis are a distinct aboriginal nation whose roots go back to the mingling of largely Cree and Ojibwa communities with European newcomers more than 400 years ago. The Métis have their own group identity, language (Michef, which borrows its verbs from Cree and much of its vocabulary from French), dance, and customs.

Oral history is thus often the last remaining thread tying together a group's past with its ancestry—as Professor Johnston demonstrated in the case of the Chippewas of Nawash, who are pursuing claims to their ancestral lands. Professor Ray noted that Native plaintiffs thus often have to use ethnohistorical evidence to reinterpret the accepted historical record and challenge established practices or recover lost rights. Claimants' recourse to ethnohistory often leads to new interpretations, theoretical perspectives, and historical insights. Indeed, the rise in the number of claims that lead to litigation has resulted in new scholarship being generated in the courtroom. In the United States, according to Page, the USICC's work spawned a large body of scholarly research, although it was one informed by the prejudices of the time. Many claimants have not studied a given problem academically before going to court, but conduct valuable academic research to support their cases once litigation begins. Because evidence in support of new interpretations can be introduced only at the trial stage, lawyers tend to introduce every possible bit of information into the record on the chance that it may be relevant—what Professor Ray referred to as the "sandbag approach." New media outlets are also playing a growing role in helping Native groups buttress their ancestral claims: the Internet has galvanized communities to respond to cases, declarations, etc. Professor Newell explained that more and more communities are also filing documentaries, opening museums, and developing a "powerful moral body of evidence" to support their ancestral claims.

The defendant government will marshal the full resources of the state to minimize the impact of a given claim on the established socio-economic order. Government tactics to prevent the recognition of a valid claim range from the use of its own experts to provide testimony to limiting the access of claimants to state-controlled archives. In fact, expert witnesses offer a range of possible interpretations, from "outdated scholarly theory to innovative (or outright 'flight-of-fancy') theory," in order to buttress or refute claims. Hence the importance of transparency: Page noted that all too often expert witnesses fail to explain the theoretical underpinnings of their arguments. As a result, "experts are not trusted by judges," according to Professor Rosen, since too often they appear to be interested only in buttressing the lawyer's strategy. Furthermore, the pressure on judges to reach "timely" decisions leaves little room for theoretical debate and speculation regarding the historical record. Yet a more significant obstacle that often imperils claims by aboriginal groups is the conspicuous lack of judges' training in Native issues, their "aloofness" from Native customs and practices, and the sheer lack of interest on the part of many. As Professor Ray noted, "judges are often uncomfortable with historiography and theoretical debate in the courtroom."

Ultimately, the courts have to make decisions based on evidence heard during the trial, but well before academic consensus emerges on the issue at hand. The emphasis of Western legal systems on "finality of interpretation" (preferably based on written records) further exacerbates the lopsided dynamic between claimant and defendant. Another important consideration is the cost of bringing such cases to trial—the extensive research, which often lasts years, quickly leads to ballooning expenditures. Many groups go bankrupt trying to reclaim land or secure rights or recognition. In the United States, the incentives to pursue a claim are further skewed by the gaming industry. Investors interesting in building a new casino will sometimes go so far as to "look for a tribe" willing to seek recognition in order to create new venues for gaming. Conversely, some tribes with few resources have had to resort to casino backers to get the money needed to engage in the lengthy and costly recognition process. Several panelists bemoaned the tarnishing effect of the gaming industry on Native American groups seeking redress for past wrongs. With the ripple effects of the Abramoff scandal still being felt in Washington, there is a pervasive perception that any group seeking recognition is doing so to open a casino. Gaming will remain an issue in the dynamic surrounding tribal recognition claims as long as the cost of petitions remains prohibitive and the funding for such petitions remains limited.

Economic considerations perhaps explain in part why courts are loathe to grant economic rights that would upset the established socio-economic order, but are more favorable toward recognizing spiritual or ceremonial rights—which often have little cost attached to them. One possible remedy, according to Professor Rosen, would be to consider oral history not for its "truth value," but for what it says about reality. Oral history reflects a tribe's understanding of the past and their past actions—from which the state has often benefited—and thus constitutes proof of that understanding as well as a reference point on which Native peoples have relied to conduct their affairs.

Ultimately, evidence of the Native past is assessed through not one, but two filters: first, it is considered in light of theoretical, academic models, often by expert witnesses; then it is scrutinized by the courts in order to stand the test of litigation. What emerges is often a new interpretation of history, one which may differ from traditional oral recounting of Native histories, but which also lends itself to effective, credible support of a particular right or claim—or to refute such a claim. Page gave the example of the land recovery case recently brought forward by the Senecas in the state of New York, which failed because the state successfully utilized research carried out half a century earlier to defend the United States against a similar Seneca claim. While the federal government subsequently admitted it was wrong in that case, the earlier interpretation still held enough power in the eyes of the judge to defeat the Senecas' recent claim. The problem thus remains, and the Senecas, as other tribes, suffer violations to their fundamental rights even though these rights are enshrined in treaties. Or consider the case of the Oneida nation, which despite being federally recognized and having a thriving culture and economy, saw one of its claims refused because the judge decided that 200 years was too long to "rekindle the embers of sovereignty." As for the Métis, the fight to claim their rights is further muddled by legal uncertainty. The Canadian federal and provincial governments each point to the other as having jurisdiction to deal with Métis affairs. Partly this is because The Indian Act in Canada, which codified Indian relations with the federal government, excluded the Métis. So do the current mechanisms that address other aboriginal claims. It was not until 1982 that the Métis were recognized as such in Canada's Constitution, though they are still not recognized in the United States. As Clem Chartier quipped, "We are 'Constitutional Indians,' not 'Indian Act' Indians."

Of course, the very fact that aboriginal groups must seek redress in Western courts is itself a source of controversy. As Professor Newell remarked, "the Western legal system is the last bastion of colonialism."

David N. Biette
Director, Canada Institute

Philippa Strum
Director, Division of United States Studies

Drafted by Christophe Leroy

Note: Quotes reflect comments made during the discussion.