Oral History On Trial: Recognizing Aboriginal narratives in the courts by Bruce Granville Miller (review)

Indigenous oral histories have occupied an important niche in Canada. Anthropologists were among the first outsiders to note their value. Between 1880 and 1940, Franz Boas, John Swanton, Edward Curtis, Marius Barbeau and others sought out knowledgeable Indigenous narrators for their traditional stories and then systematically published their results in learned journals and monographs. With the introduction of cheap, portable recording technology in the 1960s and 1970s, Indigenous peoples began adding their own recordings to the mix. This mass of material gained new standing some twenty-five years ago when land-claims lawyers, historians, anthropologists and judges carried it into the courts.

In a new book, Oral History on Trial: Recognizing Aboriginal narratives in the courts, University of British Columbia anthropologist Bruce Miller examines the latest phase of this process, now a huge, multi-million-dollar industry. His straw dog is the Canadian Department of Justice, the official body charged with “defending Canada in litigation brought by Aboriginal communities” (2). Miller’s goal is to shift the dialogue “beyond technical, legal arguments about evidence rules… by considering the nature of the narratives themselves and how they might be evaluated from other disciplinary and Aboriginal perspectives” (7). He targets the “hearsay rule,” which bars lay witnesses from presenting what they have heard from others. This rule, he argues, limits both what the bearers of these oral materials might present and the importance given them. Another problem is that although Canada is the only common-law jurisdiction providing constitutional recognition and protection of Aboriginal rights, it does not have specific rules regarding elders’ oral history testimony (5). Miller urges all parties involved in the land-claims process to consider what happens to oral narratives when they move from the community into the research offices of bands and law firms and finally, into the Canadian courts (9).

Miller writes with authority. At the time of the publication of Oral History on Trial, he had spent twenty-one years as a member of the Department of Anthropology at the University of British Columbia, where he taught courses a range of courses on Indigenous culture. In addition to running an ethnographic field school in Sto:lo territory in the Lower Fraser Valley for nine summers, he served as an expert witness in various courts, tribunals and commissions (both in Canada and the United States). Within months of the contentious 1991 Delgamuukw v. British Columbia decision, he assembled a team ofhis own “experts” to give critical feedback on the case. He published their submissions in a 1992 special issue of BC Studies entitled “Anthropology and History in the Courts.”¹

Miller draws on ethnography to make his case. For example, in Chapter Two, “The Social Life of Oral Narratives,” he takes his readers into the offices of the Sto:lo Research and Resource Management Centre on the Sto:lo Reserve in Sardis, British Columbia, where he interviews its managers, Tracey Joe and Tia Halstad. Here he learns firsthand about the sensitivities and protocols at the community end of the recording process. “We don’t transfer ownership—it’s not our [archive’s] ownership,” they explained. It “belongs to the person”(69). Miller notes that oral historical recordings and transcripts in the contexts of Indigenous bands, especially those on spiritual topics, are often treated with special care because of their connection to a special life-force. In Sto:lo territory this life-force is known as shxweli (72).

Miller then takes us into the world of Crown researchers, noting their request for anonymity. After defending the ethics of the Crown lawyers, this group airs some of its concerns. For example, one researcher described her discomfort with having to sift through large numbers of audiotapes dealing with a complex mix of myth, family history and other material to find details pertinent to the case at hand. “It’s cherry-picking to haul out portions relevant to a legal issue,” she said (75). Another spoke of the frustration of dealing with...