Oral History on Trial: Recognizing Aboriginal Narratives in the Courts by Bruce Granville Miller (review)

In 1997, the Supreme Court of Canada issued a landmark decision on the admissibility of Aboriginal oral narratives. In Delgamuukw v. British Columbia (Delgamuukw III), the Supreme Court declared that oral tradition evidence should no longer be considered inferior to written sources. Trial judges were to be more flexible and culturally sensitive when evaluating oral narratives and to develop guidelines favoring optimum admissibility. The Court’s decision was hailed by many in both Canada and internationally as a major breakthrough for Aboriginal societies that were trying to use the legal system to regain or protect rights that had been either taken away or were currently threatened.

Unfortunately, as Professor Bruce Granville Miller points out in this thorough and incisive monograph, the promise of Delgamuukw III has been largely unrealized. Although he lays much of the responsibility for this at the feet of the attorneys for the Crown, he also recognizes that courtrooms in English-speaking nations, with their reliance on “black letter law,” are not the ideal forums in which to comprehend and respect the history-making role that oral narratives play in Aboriginal societies. The book offers readers a comprehensive treatment of how and why courts in Canada have failed to fulfill the promise of Delgamuukw III and some limited suggestions on how this might be remedied. But Miller’s primary goal is to explain how the First Nations preserve, value, and articulate their historical past. This emphasis may significantly limit the book’s potential readership among subscribers to the Oral History Review because of their focus upon more contemporaneous oral histories.

Professor Miller’s credentials for this authorship are outstanding. An anthropologist by training with an impressive publication record, he also has spent more than twenty years as a commentator on and participant in the Canadian legal system. Although he acknowledges that there is great diversity in how different Aboriginal societies create and preserve their respective oral traditions, he contends that there is still enough commonality to allow courts to respect the integrity of these narratives.

Miller takes the reader down a long trail of anthropological scholarship and expresses his assessments of both the accuracy and significance of these studies. In doing so, he seeks to establish the fundamental differences between oral narratives and written histories. According to Miller, Aboriginal oral narratives are always “operating on multiple levels simultaneously” and are “living” not dead sources (166). Unfortunately, as he points out, these factors are precisely what the attorneys and experts for the Crown have used to try and discredit or marginalize their evidentiary value in court. While Crown attorneys repeatedly beat on the twin themes of reliability and validity to call into question the evidentiary value of Aboriginal oral narratives, they also look to their experts to discredit narratives by labeling them as “lost” or “invented” (127–30). In chapter 4, Miller assesses these tactics and offers a damning critique. The sacred nature of many oral traditions is often an additional barrier, as tribal elders may refuse to allow these traditions to be publicly aired in a courtroom.

But Miller’s work, as already noted, is far more than just a critique of the Canadian legal system. He provides a host of examples of how and why Aboriginal oral traditions should not be judged untrustworthy simply because they fly in the face of the textual basis of Western societies. Although the focus of Miller’s work is almost exclusively on Canada, he does examine one noteworthy example drawn from American courts. During the 1980s, the Zuni Nation of New Mexico brought in a team of scholars, including Andrew Wiget, an anthropologist, to gather and assemble oral histories for use at trial. In doing so, the team shaped these oral histories and testimony from experts about Zuni mythology into a unitary narrative that withstood evidentiary challenge and was readily understood by the court (Zuni Tribe of New Mexico...