Aboriginal Rights Claims and the Making and Remaking of History by Arthur J. Ray (review)

Readers of this unique study will be treated to the wisdom of fairminded officials and academics working to achieve restitution and recognition for Indigenous peoples in the United States, Australia, Canada, South Africa, and New Zealand. They will also behold unscrupulous conniving and detect the occasional step backward following several forward. Archives prospecting can unearth damning material. Here and in other publications, Arthur Ray has revealed egregious conduct in and around the early proceedings of the United States Claims Commission. From that rough start, however, the history of restitution and recognition becomes largely one of progressive developments. This evolutionary theme is joined by others. The book, for example, runs on parallel tracks. It recounts the practices and circumstances that explain progress on restitution, and it documents how courtroom confrontations and commission inquiries changed scholarship by fostering a generation of interdisciplinary scholars. A helpful diagram in the final chapter makes explicit the parallel lines, plus the points of mutual influence among jurists and academics. In some respects, Ray has written an intellectual history of the modern era of Native title. His explanations of concepts include, but are not limited to, the notion of continuous occupation, frozen rights, and the responsibilities of expert witnesses. Lastly, Ray is pressing the case for relaxing the strictures of adversarial court proceedings. Procedural fairness is an admirable legacy of the law; such fairness considered in light of the upheavals of colonialism is better still.

When evaluating the procedures, academic research, and thorny legal issues involved with land claims, Ray appraises individuals and the adversarial judicial process in which they operated. The variety of cultures, forms of land seizure, colonial legal doctrines, and political regimes are matters that he handles with erudition. He does not pull his punches; neither does he throw them recklessly. Clear prose prevails. The reasoning of judges and lawyers is made comprehensible. Greatly interested in how litigation provoked fresh scholarship and academic debates, Ray slips developments in historical and anthropological research into his narratives on litigation and negotiation. This layered scheme means that local developments and regional terminology are worked into a transnational tale.

The chapters work as stand-alone studies. Together, though, they testify to a mostly uplifting saga in global affairs, although one strewn with obstinacy and struggles, and hemmed in by the realities of political economy. The second chapter on the United States Claims Commission (1946–78) is a reminder that this agency “acted as the primary catalyst for the interdisciplinary and multisource approach to the subject now known as ethnohistory in North America” (65). At first, this catalyst triggered volatile reactions among American anthropologists. In the third chapter, Ray covers landmark cases in Canada, then concludes with the lesser known activities of the Indian Claims Commission and observes that, although the commission’s low key procedures accomplished a great deal, it had little impact on academic research. Chapter 4 describes the court decisions in Australia that overturned the presumption of terra nullius. Litigation and legislation nevertheless exposed claims to “the tide of history” (140). The Australian Federal Court, for example, determined that “the mere act of colonization can still obliterate the land rights of Aborigines” (141). Specifically, Native title was deemed to have faded if the customs of Aboriginal people in relation to the land were not continuous. In other common law jurisdictions, the state or Crown has argued similarly that a broken connection diminishes the claimants’ entitlement.

A less familiar feature in the Australian story, well-told by Ray, is the separate course of events in the Northern Territory. In 1976, the Liberal Party–Country Party coalition government, acting in its supervisory capacity for the sparsely settled region, created a process for land claims in the territory. The initiatives of two farsighted officials–Edward Woodward who advocated a land commission and Justice John Toohey who served as the first commissioner–created a sensitive environment...