Telling it to the Judge: Taking Native History to Court by Arthur J. Ray (review)

The pursuit of history, it seems, involves greater self-awareness now than a generation ago. Autobiography, whether in book form or in the pages of leading journals, is a recognized form of communication, especially for senior figures in the discipline. Closely related, though more specifically focused, is the recounting of courtroom experiences by historians – or, in the case of Arthur J. “Skip” Ray, a historical geographer – who have been called to testify in legal cases. Most such cases have involved aboriginal and treaty rights, and Ray’s extensive experience encompasses the crucially important Delgamuukw case as well as an extended series of other First Nation and Métis proceedings in locations stretching from British Columbia to Ontario. His memoir is a welcome addition to a specialized but growing historical genre. A doctoral graduate of the University of Wisconsin, supervised there by the magisterial Canadian historical geographer Andrew Hill Clark, Ray testified first in the Horseman case in Alberta in 1985. The final case to be covered in the book is another tried in Alberta, this time in 2009, that of Hirsekorn and Jones, meaning that Ray’s experience spans a crucial era during which the roles of the courts and of academic expert witnesses underwent a profound transition.

The considerable strengths of Ray’s book include a succession of astute observations on the way the courts work and the extent to which they form an arena in which any academic witness needs to make an enforced adjustment in order to be effective. Lawyers and judges, Ray notes, tend to take a “textual rather than contextual approach” to evidence (p. 14). A document, in this view, can be taken to be “plain on its face” (p. 72) – that is, free of the nuances and at times the contradictions that historians would routinely identify in, say, treaty texts. And, correspondingly, historians themselves may have to be forceful in their testimony as interpretive scholars in order to avoid the presumption that they are “little more than highly-educated clerks … [with] the special ability to ferret out relevant documents for the courts to interpret” (p. 34). Cross-examination is another facet of the trial process with which Ray deals extensively and revealingly. It is, he observes, “an inquisition” (p. 30) and an often-painful experience – notably in Delgamuukw – far removed from the ambience of a PhD defence, where at least the inquisitors hope at some level that the candidate will succeed. In a cross-examination, the purpose of the opposing lawyer is to discomfit and even to discredit, and, as Ray indicates, a witness who has published extensively has to be especially wary, as earlier works can be mined for the inevitable contradictions that arise in an extended body of evolving scholarship (p. 37). Yet, all cross-examinations are not the same, and Ray documents some that were downright friendly. The most intriguing account he gives is of a searching cross-examination in Hirsekorn and Jones. Here, Ray consistently uses the first person plural to encompass himself and Thomas Rothwell, the Crown prosecutor – “our exchange” (p. 136), “we returned to the subject” (p. 140), and so on. A cross-examination, among other things, is a dance that takes two partners.

A further strength of Telling it to the Judge is the scholarly framework within which Ray consistently situates his account. Some courtroom memoirs can gravitate into war stories told for their own sake, but this one never does. Ray’s archival work, notably in the records of the Hudson’s Bay Company, is highlighted throughout, and two substantial appendices exemplify the sources on which his testimony was based. The relationships between evidence and interpretation, and between primary and secondary evidence – as explicated by, among others, Edward Hallett Carr – are given their due, and other reflections on the nature of evidence both scholarly and legal give thought-provoking insights. For example, because historical testimony in court is...