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

Arthur Ray sets himself the task of examining courts, tribunals, and commissions in Canada, the United States, New Zealand, South Africa, and Australia to see how they perform in the highly significant subject of adjudicating rights claims brought by Indigenous peoples. He is the person for the job as a distinguished historian and a notable expert in several key Canadian cases. An additional task for the monograph is to show how litigation over the last half of the twentieth century and up to the present has dramatically transformed the disciplines of history and anthropology. The book is a major entry in the field of the history of litigation and law itself, and in particular, how experts enter into the legal system.

One can see why Ray has been a successful expert in court; his writing is clear, unclouded by bias, powerful, and well supported. To give away my conclusion here: this is an exceptional book, one that I would happily use in history of anthropology courses that I teach. I was riveted by the discussions regarding the nasty fights between neo-evolutionists and scholars in the then-new field of ecological anthropology as people from each side presented opposing testimony in the US Indian Court of Claims. Ray notes that the acrimony threatened the entire discipline of anthropology in North America. In describing the debates over whether Indigenous historic societies had law or merely custom, and whether Indigenous legal concepts could be translated into analogous western legal terms, Ray misses the Gluckman-Bohannan debate within anthropology of that period about folk models. But his title does not claim to be about the remaking of anthropology, although it certainly is. And the book provides evidence for the view, advanced by Daniel Boxberger, among others, that North American anthropology to a significant degree was born in relation to Indigenous litigation.

Ray concludes his work with a summary of the ways in which these often contentious legal processes have advanced history and law, and encouraged innovative research. He observes that theoretical models are sometimes more thoroughly tested (and occasionally subsequently rejected) in court proceedings than in normal academic processes. Research interests have broadened, for example to include economic anthropology, and the cumulative effect of the many land claims cases has created a large body of data over a vast area. Oral histories have been collected in great numbers, and research has become more multidisciplinary, incorporating geography, geology, and many other disciplines within the same studies.

In the pages of Aboriginal Rights, Ray notes that litigation, however, often pushes experts into extreme positions and that punishing cross examination can be alienating for Indigenous elders. But he also shows how new processes have attempted to lessen the problems for these elders and how ways around hearsay evidence rules have been created to give members of litigating communities a chance to properly present their knowledge. Curiously, Ray does not consider a valuable 2011 text that covers some of the same ground: Law's Anthropology: From Ethnography to Expert Testimony in Native Title, by Paul Burke, an anthropologist trained in law. Burke writes that anthropology in Australia plays a subservient role in court, not the expansive one that Ray describes. I think they both have a point. In my experience, litigation, as onerous as it often is, opens new fields of inquiry and new ways of understanding. But in the end, history and law must operate in the court's domain and in the law's language. Still, Ray's book, unlike that of Burke, has an optimistic tone and he carefully notes the many things the tribunals, courts, and commissions have done well. In New Zealand, for instance, the Waitangi Tribunal incorporated Maori concepts and legal practices into its adjudication of land rights, modifying these as the tribunal gained experience. Similarly, the South African Land Claims Commission and...