Aboriginal Rights Claims and the Making and Remaking of History 9780773599109

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AboriginAl rights ClAims And t h e m A k i n g A n d r e m A k i n g o f h i s to r y

m c g i l l - Q u e e n ’ s n At i v e A n d n o r t h e r n s e r i e s

(In memory of Bruce G. Trigger) Sarah Carter and Arthur J. Ray, Editors 1

2

When the Whalers Were Up North Inuit Memories from the Eastern Arctic Dorothy Harley Eber The Challenge of Arctic Shipping Science, Environmental Assessment, and Human Values Edited by David L. VanderZwaag and Cynthia Lamson

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Lost Harvests Prairie Indian Reserve Farmers and Government Policy Sarah Carter

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Native Liberty, Crown Sovereignty The Existing Aboriginal Right of Self-Government in Canada Bruce Clark

10 Strangers Among Us David Woodman 11 When the North Was Red Aboriginal Education in Soviet Siberia Dennis A. Bartels and Alice L. Bartels 12 From Talking Chiefs to a Native Corporate Elite The Birth of Class and Nationalism among Canadian Inuit Marybelle Mitchell 13 Cold Comfort My Love Affair with the Arctic Graham W. Rowley

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Unravelling the Franklin Mystery Inuit Testimony David C. Woodman

14 The True Spirit and Original Intent of Treaty 7 Treaty 7 Elders and Tribal Council with Walter Hildebrandt, Dorothy First Rider, and Sarah Carter

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Otter Skins, Boston Ships, and China Goods The Maritime Fur Trade of the Northwest Coast, 1785–1841 James R. Gibson

15 This Distant and Unsurveyed Country A Woman’s Winter at Baffin Island, 1857–1858 W. Gillies Ross

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From Wooden Ploughs to Welfare The Story of the Western Reserves Helen Buckley

16 Images of Justice Dorothy Harley Eber

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In Business for Ourselves Northern Entrepreneurs Wanda A. Wuttunee

17 Capturing Women The Manipulation of Cultural Imagery in Canada’s Prairie West Sarah Carter

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For an Amerindian Autohistory An Essay on the Foundations of a Social Ethic Georges E. Sioui

18 Social and Environmental Impacts of the James Bay Hydroelectric Project Edited by James F. Hornig

19 Saqiyuq Stories from the Lives of Three Inuit Women Nancy Wachowich in collaboration with Apphia Agalakti Awa, Rhoda Kaukjak Katsak, and Sandra Pikujak Katsak 20 Justice in Paradise Bruce Clark 21 Aboriginal Rights and Self-Government The Canadian and Mexican Experience in North American Perspective Edited by Curtis Cook and Juan D. Lindau 22 Harvest of Souls The Jesuit Missions and Colonialism in North America, 1632–1650 Carole Blackburn 23 Bounty and Benevolence A History of Saskatchewan Treaties Arthur J. Ray, Jim Miller, and Frank Tough 24 The People of Denendeh Ethnohistory of the Indians of Canada’s Northwest Territories June Helm 25 The Marshall Decision and Native Rights Ken Coates 26 The Flying Tiger Women Shamans and Storytellers of the Amur Kira Van Deusen 27 Alone in Silence European Women in the Canadian North before 1940 Barbara E. Kelcey

28 The Arctic Voyages of Martin Frobisher An Elizabethan Adventure Robert McGhee 29 Northern Experience and the Myths of Canadian Culture Renée Hulan 30 The White Man’s Gonna Getcha The Colonial Challenge to the Crees in Quebec Toby Morantz 31 The Heavens Are Changing Nineteenth-Century Protestant Missions and Tsimshian Christianity Susan Neylan 32 Arctic Migrants/Arctic Villagers The Transformation of Inuit Settlement in the Central Arctic David Damas 33 Arctic Justice On Trial for Murder – Pond Inlet, 1923 Shelagh D. Grant 34 The American Empire and the Fourth World Anthony J. Hall 35 Eighteenth-Century Naturalists of Hudson Bay Stuart Houston, Tim Ball, and Mary Houston 36 Uqalurait An Oral History of Nunavut Compiled and edited by John Bennett and Susan Rowley 37 Living Rhythms Lessons in Aboriginal Economic Resilience and Vision Wanda Wuttunee

38 The Making of an Explorer George Hubert Wilkins and the Canadian Arctic Expedition, 1913–1916 Stuart E. Jenness 39 Chee Chee A Study of Aboriginal Suicide Alvin Evans 40 Strange Things Done Murder in Yukon History Ken S. Coates and William R. Morrison 41 Healing through Art Ritualized Space and Cree Identity Nadia Ferrara 42 Coyote and Raven Go Canoeing Coming Home to the Village Peter Cole 43 Something New in the Air The Story of First Peoples Television Broadcasting in Canada Lorna Roth 44 Listening to Old Woman Speak Natives and Alternatives in Canadian Literature Laura Smyth Groening 45 Robert and Francis Flaherty A Documentary Life, 1883–1922 Robert J. Christopher 46 Talking in Context Language and Identity in Kwakwaka’wakw Society Anne Marie Goodfellow 47 Tecumseh’s Bones Guy St-Denis 48 Constructing Colonial Discourse Captain Cook at Nootka Sound Noel Elizabeth Currie

49 The Hollow Tree Fighting Addiction with Traditional Healing Herb Nabigon 50 The Return of Caribou to Ungava A.T. Bergerud, Stuart Luttich, and Lodewijk Camps 51 Firekeepers of the Twenty-First Century First Nations Women Chiefs Cora J. Voyageur 52 Isuma Inuit Video Art Michael Robert Evans 53 Outside Looking In Viewing First Nations Peoples in Canadian Dramatic Television Series Mary Jane Miller 54 Kiviuq An Inuit Hero and His Siberian Cousins Kira Van Deusen 55 Native Peoples and Water Rights Irrigation, Dams, and the Law in Western Canada Kenichi Matsui 56 The Rediscovered Self Indigenous Identity and Cultural Justice Ronald Niezen 57 As affecting the fate of my absent husband Selected Letters of Lady Franklin Concerning the Search for the Lost Franklin Expedition, 1848–1860 Edited by Erika Behrisch Elce

58 The Language of the Inuit Syntax, Semantics, and Society in the Arctic Louis-Jacques Dorais 59 Inuit Shamanism and Christianity Transitions and Transformations in the Twentieth Century Frédéric B. Laugrand and Jarich G. Oosten 60 No Place for Fairness Indigenous Land Rights and Policy in the Bear Island Case and Beyond David T. McNab 61 Aleut Identities Tradition and Modernity in an Indigenous Fishery Katherine L. Reedy-Maschner 62 Earth into Property Aboriginal History and the Making of Global Capitalism Anthony J. Hall 63 Collections and Objections Aboriginal Material Culture in Southern Ontario, 1791–1914 Michelle A. Hamilton 64 These Mysterious People Shaping History and Archaeology in a Northwest Coast Community Susan Roy 65 Telling It to the Judge Taking Native History to Court Arthur J. Ray 66 Aboriginal Music in Contemporary Canada Echoes and Exchanges Edited by Anna Hoefnagels and Beverley Diamond

67 In Twilight and in Dawn A Biography of Diamond Jenness Barnett Richling 68 Women’s Work, Women’s Art Nineteenth-Century Northern Athapaskan Clothing Judy Thompson 69 Warriors of the Plains The Arts of Plains Indian Warfare Max Carocci 70 Reclaiming Indigenous Planning Edited by Ryan Walker, Ted Jojola, and David Natcher 71 Setting All the Captives Free Capture, Adjustment, and Recollection in Allegheny Country Ian K. Steele 72 Before Ontario The Archaeology of a Province Edited by Marit K. Munson and Susan M. Jamieson 73 Becoming Inummarik Men’s Lives in an Inuit Community Peter Collings 74 Ancient Pathways, Ancestral Knowledge Ethnobotany and Ecological Wisdom of Indigenous Peoples of Northwestern North America Nancy J. Turner 75 Our Ice Is Vanishing/ Sikuvut Nunguliqtuq A History of Inuit, Newcomers, and Climate Change Shelley Wright

76 Maps and Memes Redrawing Culture, Place, and Identity in Indigenous Communities Gwilym Lucas Eades 77 Encounters An Anthropological History of Southeastern Labrador John C. Kennedy 78 Keeping Promises The Royal Proclamation of 1763, Aboriginal Rights, and Treaties in Canada Edited by Terry Fenge and Jim Aldridge 79 Together We Survive Ethnographic Intuitions, Friendships, and Conversations Edited by John S. Long and Jennifer S.H. Brown 80 Canada’s Residential Schools: The History, Part 1, Origins to 1939 The Final Report of the Truth and Reconciliation Commission of Canada, Volume 1 81 Canada’s Residential Schools: The History, Part 2, 1939 to 2000 The Final Report of the Truth and Reconciliation Commission of Canada, Volume 1

82 Canada’s Residential Schools: The Inuit and Northern Experience The Final Report of the Truth and Reconciliation Commission of Canada, Volume 2 83 Canada’s Residential Schools: The Métis Experience The Final Report of the Truth and Reconciliation Commission of Canada, Volume 3 84 Canada’s Residential Schools: Missing Children and Unmarked Burials The Final Report of the Truth and Reconciliation Commission of Canada, Volume 4 85 Canada’s Residential Schools: The Legacy The Final Report of the Truth and Reconciliation Commission of Canada, Volume 5 86 Canada’s Residential Schools: Reconciliation The Final Report of the Truth and Reconciliation Commission of Canada, Volume 6 87 Aboriginal Rights Claims and the Making and Remaking of History Arthur J. Ray

Aboriginal rights Claims and the making and remaking of history A r t h u r J . r Ay

mcgill-Queen’s university Press montreal & kingston | london | Chicago

© McGill-Queen’s University Press 2016

ISBN 978-0-7735-4742-1 (cloth) ISBN 978-0-7735-4743-8 (paper) ISBN 978-0-7735-9910-9 (ePDF) ISBN 978-0-7735-9911-6 (ePUB) Legal deposit second quarter 2016 Bibliothèque nationale du Québec Printed in Canada on acid-free paper that is 100% ancient forest free (100% post-consumer recycled), processed chlorine free This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Awards to Scholarly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada. McGill-Queen’s University Press acknowledges the support of the Canada Council for the Arts for our publishing program. We also acknowledge the financial support of the Government of Canada through the Canada Book Fund for our publishing activities.

LIBrary aND archIveS caNaDa cataLogUINg IN PUBLIcatIoN Ray, Arthur J., 1941–, author Aboriginal rights claims and the making and remaking of history / Arthur J. Ray. (McGill-Queen’s Native and northern series ; 87) Includes bibliographical references and index. Issued in print and electronic formats. ISBN 978-0-7735-4742-1 (cloth). – ISBN 978-0-7735-4743-8 (paper). – ISBN 978-0-7735-9910-9 (ePDF). – ISBN 978-0-7735-9911-6 (ePUB) 1. Indigenous peoples – Claims – History – 20th century. 2. Indigenous peoples – Legal status, laws, etc. – History – 20th century. 3. Indigenous peoples – Government policy – History – 20th century. 4. Indigenous peoples – Colonization – History – 20th century. 5. Indigenous peoples – History – 20th century. 6. Great Britain – Colonies – History – 20th century. I . Title. II . Series: McGill-Queen’s Native and northern series ; 87

K3248.L 36r39 2016

346.04’3208997

c2016-901061-9 c2016-901062-7

Set in 11/14 Warnock Pro with Libertad Book design & typesetting by Garet Markvoort, zijn digital

for diAnne

Contents

Figures and Text Boxes | xiii Acknowledgments | xvii Preface | xxi 1 Taking Indigenous Peoples’ Lands | 3 2 The United States Indian Claims Commission | 29 3 Litigating and Negotiating Native Title and Treaty Rights in Canada | 67 4 Anthropologists, Historians, and the Title Claims of Aborigines in Australia | 105 5 The Waitangi Tribunal and New Zealand History | 143 6 Redressing Race-Based Dispossessions in South Africa | 173 7 The Métis in Court: Problems of Discrimination, Identity, and Community | 207 8 Courts, Commissions, and Tribunals as Forums for Interpreting and Making History | 242 Notes | 257 Bibliography | 297 Index | 319

F i g u r e s a n d t e x t B ox e s

figures

1.1

Map of land surrenders in the United States to the 1880s. By Barry Levely | 7

1.2

Map of treaty and claims areas in Canada. Source: Arthur J. Ray, I Have Lived Here since the World Began: An Illustrated History of Canada’s Native People, 3rd ed. (Montreal and Kingston: McGill-Queen’s University Press, 2011), 213 | 9

2.1

Diagram of Justice Department research teams in the mid-1950s. By Barry Levely | 35

2.2 Map of Royce land cession areas for Illinois. Source: Charles C. Royce and Cyrus Thomas, Indian Land Cessions in the United States (Washington, Dc : Bureau of Ethnology, Smithsonian Institution, 1899). Courtesy of Library of Congress | 38 2.3

Harold Hickerson’s map for the Justice Department regarding the Ojibwa claim concerning Royce Area 242 of Minnesota and Wisconsin. Courtesy of United States Indian Claims Commission, National Archives and Records Administration | 46

2.4 Map of Royce land cession areas for Iowa. Source: Charles C. Royce and Cyrus Thomas, Indian Land Cessions in the United States (Washington, Dc : Bureau of Ethnology, Smithsonian Institution, 1899). Courtesy of Library of Congress | 50

xiv | Figures and Text Boxes

2.5

Map of land cessions of California. Source: Charles C. Royce and Cyrus Thomas, Indian Land Cessions in the United States (Washington, Dc : Bureau of Ethnology, Smithsonian Institution, 1899). Courtesy of Library of Congress | 56

3.1

Photograph of Songhee potlatch near Victoria, British Columbia, n.d. Image F -07618, courtesy of Royal Bc Museum and Archives | 86

3.2

Map of Gitxsan-Wet’suet’en territories. Source: Supreme Court of British Columbia, reproduced in Arthur J. Ray, Telling It to the Judge: Taking Native History to Court (Montreal and Kingston: McGill-Queen’s University Press, 2011), 19 | 87

3.3

Photograph of Hagwilget fish-drying station, circa 1890s. Image a -06052, courtesy of Royal Bc Museum and Archives | 96

3.4 Map of Cold Lake claim area. Source: Indian [Specific] Claims Commission, ICC Proceedings, 1994 (Ottawa: Minister of Public Works and Government Services, 1994), 14 | 102 4.1

Map of Australia. By Barry Levely | 106

4.2 Photograph of Edward Woodward with Roy Marika at Yirrkala, 1973. Courtesy of Ted Woodward, Senior Counsel | 112 4.3 Photograph of members of the High Court of Australia at the time of Mabo (1992). Courtesy of Australian National Archives | 135 5.1

Photograph of sheet 1, Treaty of Waitangi, signed 1840 at Waitangi, Bay of Islands. Courtesy of Archives New Zealand | 142

5.2

Map of New Zealand. By Barry Levely | 149

6.1

Photograph of members of the first Land Claims Commission and Land Claims Court, South Africa, circa 1994–95. Courtesy of Cherryl Walker | 180

Figures and Text Boxes | xv

6.2 Map of South African claim areas. By Barry Levely | 188 6.3 Photograph of commission hearings with claimants, St Lucia, South Africa, 1998. Courtesy of Cherryl Walker | 192 7.1

Painting of “A Halfcast and His Two Wives” at Red River by Peter Rindisbacher, circa 1825–26. Image r 8203-2-4-e , courtesy of Library and Archives Canada | 209

7.2 Photograph of Métis homesteads, Sault Ste Marie, n.d. Image F1132-2-1-2 St 1224, courtesy of Ontario Archives | 211 7.3

Photograph of Métis land scrip. Image rg 15, vol. 1410, c140133, courtesy of Library and Archives Canada | 213

7.4 Sketch of the Battle of Batoche (1885) by J.W. Curzon for the Illustrated War News, 1885. Image N 9300, courtesy of Library and Archives Canada | 225 7.5

Photograph of members of the Métis defence and community members in Regina v. Donald Joseph Belhumeur (2007) on the grounds of the Provincial Court of Saskatchewan, Fort Qu’Appelle, September 2006, by author | 232

7.6 Photograph of healing ceremony at Batoche, Saskatchewan, 2005, by author | 240 8.1

Diagram of aboriginal claims processes. By Barry Levely | 248 text boxes

2.1

Portion of the plaintiffs’ exhibit aLK -28 showing a word list from the Luiseño language. Reproduced from Transcripts of the United States Indian Claims Commission, dockets 138 and 153, courtesy of National Archives and Records Administration | 32

2.2 Partial list of Alfred Kroeber’s questions for Ralph Beals respecting the California Indian claims. Reproduced from Alfred Kroeber Papers, courtesy of Bancroft Library Archives, University of California, Berkeley | 60

aC k n o w l e d g m e n t s

This project and the travel associated with it would not have been possible without the generous financial support of various granting agencies: the Killam Program of the Canada Council for the Arts through a Killam Research Fellowship (2000–02); the Institute of Social Change and Critical Inquiry, University of Wollongong, Wollongong, Australia, through a Visiting Senior Fellowship (May–June 2002); the Social Sciences and Humanities Research Council of Canada through the 2005 Bora Laskin National Fellowship in Human Rights Research; the Woodrow Wilson International Center for Scholars, Washington, Dc , through a Woodrow Wilson International Fellowship (2005–06); and the Stellenbosch Institute for Advanced Study, Stellenbosch, South Africa, through an StIaS Fellowship (2012). Over the long course of this project, I have become indebted to many individuals who were involved in indigenous rights claims in various capacities and agreed to be interviewed by me about their experiences. In Australia these research participants were anthropologist Nicolas Peterson, who was anthropological advisor to the Aboriginal Land Rights Commission (1973–74) and served as an expert witness before the Aboriginal Land Commission for the Northern Territory; the late Justice John Toohey, who was inaugural aboriginal land commissioner (1977–82) for the Northern Territory and justice of the High Court (1987–98); and the late Sir Edward Woodward, who was senior legal counsel to the Yolngu in Milirrpum v. Nabalco (1971) and head of the Aboriginal Land Rights Commission (known as the “Woodward Commission”). The other participants were, in New Zealand, historian and Waitangi Tribunal

xviii | Acknowledgments

member Ann Parsonson; in South Africa, sociologist and former regional land claims commissioner for KwaZulu Natal Cherryl Walker; and in the United States, anthropologist Nancy O. Lurie and the late historian Helen H. Tanner, both of whom appeared over the years as experts before the United States Indian Claims Commission. Scholars from diverse fields in Australia, Canada, New Zealand, South Africa, and the United States have been very encouraging and have generously helped me in many ways. I would like to thank John Bern (who gave me free reign in his “annex library” and answered endless questions during my fellowship at the University of Wollongong in 2002), Cecil Chabot, Hendrik Geyer, Fred Hoxie, Peter Hutchins, Ann McGrath, Kenichi Matsui, Jim Miller, Sir Tipene O’Regan (who kindly introduced me to the Maori landscape of the South Island), Ann Parsonson (who agreed to be interviewed and invited me to the Waitangi Tribunal hearings at Gisborne, New Zealand, and explained the protocols), Nicolas Peterson (who not only agreed on several occasions to be interviewed but has also continued to promptly answer my countless e-mail questions over the years), Henry Reynolds, Bruce Rigsby, Larry Rosen, Stuart Rush, Jean Teillet, Frank Tough, and Cherryl Walker (who agreed to several interviews, answered follow-up questions, and provided two of the photographs included in my study). These debts recognized, I alone am responsible for any errors and ommissions. I would like to thank the staffs of the following libraries and archives for their help and assistance: Bancroft Library, University of California, Berkeley (Alfred Kroeber Papers and Robert Heizer Papers); British Library, London; Indiana University Archives, Bloomington (Great Lakes and Ohio Valley Ethnohistorical Research Project Records); National Archives and Records Administration, Washington, Dc (United States Indian Claims Commission Records); National Library of Australia, Canberra; National Anthropology Archives, National Museum of Natural History, Smithsonian Institution, Washington, Dc (Ralph Beal Papers); Library of Congress, Washington, Dc ; Stellenbosch University Library, Stellenbosch, South Africa; University of British Columbia Library; and

Acknowledgments | xix

University of Illinois at Urbana-Champaign Archives (Julian Steward Papers). My biggest debt of all is to Dianne Newell, who encouraged me to undertake this project, has supported me throughout, and has been my most patient, penetrating, yet positive critic.

P r e FaC e

Thirty years ago I was drawn into the world of aboriginal and treaty rights litigation in Canada. Lawyers representing the GitxsanWet’suet’en of British Columbia asked me to research and write a report on the economic history of their clients’ traditional territories from the eve of European contact to the late nineteenth century. The lawyers knew of my published research on the economic histories of various First Nations from central Canada and the Prairie West, and they needed a similar study for the Gitxsan-Wet’suet’en as part of their preparation for the aboriginal title suit (Delgamuukw v. Regina, 1997). Delgamuukw would prove to be a massive and daunting affair, the most fiercely contested claim to that date in the history of Canadian aboriginal rights litigation. It took fully 369 trial days over a three-year period to complete the proceedings, which involved not only the three teams of lawyers representing the plaintiffs and the federal and provincial governments but also a phalanx of elders and expert witnesses who testified. I was one of the first historical expert witnesses to take the stand. It was my experience in Delgamuukw that started me down the path to this present study. I became intrigued about the ways that opposing parties in this aboriginal title litigation drew upon the existing scholarly literatures from archaeology, ethnography, and history, as well as research such as my own, which was specifically commissioned for the litigation, to put forward conflicting interpretations both about the traditional cultures of the GitxsanWet’suet’en and their neighbours and about the ways that the lives of the plaintiffs’ ancestors had been changed as a consequence of

xxii | Preface

their socio-economic interactions with Europeans during the late eighteenth and early nineteenth centuries. I had always thought that questions on these topics were of interest only to academics. It was not until my involvement in litigation as an expert witness that I discovered that native and fur trade history had practical relevance to the lives of the descendants of indigenous people who had lived so long ago. My involvement in Delgamuukw and numerous other cases over the next twenty-five years also peeked my interest in the ways that the rituals of the courtroom influenced the presentation and substantiation of historical evidence. As an expert witness, I was in effect a participant observer in a process that was as different as night and day from the academic world I knew. In the academy the honour system prevails, and ideally research is evaluated through peer-reviewed discussions at conferences and is peer-reviewed before being published in scholarly journals, book chapters, and books. In Vancouver, in Courtroom 53 of the Supreme Court of British Columbia, where most of the Delgamuukw trial took place, distrust prevailed. The primary reason was that evidence is tested in court through the adversarial method, which features cross-examination of witnesses. Under this scheme, lawyers typically challenge the reputations of opposing witnesses and vigorously contest their evidence. My own experience with being cross-examined in Delgamuukw and on later occasions made me realize that the courtroom was also a place of theatre. Opposing lawyers often proved to be far less hostile than their courtroom personas at first made them seem. I also became aware that all too often opposing lawyers had little real interest in the historical issues their questions raised. Their questions were invariably parts of a larger scripted cross-examination strategy that was aimed at producing “historical facts” that were favourable to their clients’ interests. This is to be expected, considering that trial judges are required to make fact-based decisions about the issues that are brought before their court. Certainly, searching for nuanced interpretations of the past is not a primary goal in litigation.

Preface | xxiii

My sense of frustration and irritation in the witness box in Delgamuukw led me to attend most of the subsequent court proceedings in that case. I also helped the members of the Gitxsan-Wet’suet’en’s legal team to develop their cross-examinations of many of the government’s key historical experts. One of the government’s experts had relied heavily on the publications of the American anthropologist Julian Steward. As a graduate student in anthropology, archaeology, and historical geography at the University of Wisconsin-Madison in the 1960s, I had been strongly influenced by Steward’s pioneering research in cultural ecology. When revisiting Steward’s published work and examining his career for the purpose of developing cross-examination questions for the plaintiffs’ lawyers, I learned to my surprise that Steward had been heavily involved as a government expert before the United States Indian Claims Commission (1946–78) in the 1950s. Congress had created this pioneering, long-lived commission to provide American Indian tribes with a place to bring their outstanding historical grievances against the federal government. Once I decided to delve into the commission’s massive records, I learned that Steward had not been alone in his participation. On the contrary, during the 1950s and early 1960s, nearly every prominent anthropologist of American Indians had appeared as an expert, either for the federal government or for the tribal petitioners, making the enterprise a professionally complicated affair for the academic participants. What surprised me most was that one of my undergraduate and graduate anthropology teachers and members of my doctoral supervisory committee, David Baerreis, had also been involved. Yet, somehow during all my university student years, and especially during the preparation of my dissertation on the historical geography of Indian involvement in the early fur trade of Canada, he had never mentioned his participation in the claims commission. Furthermore, even though the claims commission process made research funding for American Indian history available on an unprecedented scale during the 1950s, the historiography and methodology courses in anthropology and archaeology that I took in the late 1960s never mentioned the commission or

xxiv | Preface

discussed the voluminous research that it had generated. Furthermore, several of the seminal scholarly publications that I had read as a student, including those of Steward, had been based on claims research, but the anthropologists who authored them had either failed to make this connection clear or had mentioned the fact only in passing. Even to the present day, the scholarly literature about the claims commission is relatively limited. This is especially the case with regard to its impact on the anthropology and the history of American Indian tribes. I found all of this puzzling. Why had the work of the commission and the role of anthropologists not been discussed while I was a student? How had research for claims commission cases influenced – for it must surely have – the development of scholarship about American Indians? By 2000 my research into the United States Indian Claims Commission was fully underway, and it raised questions that led me into a more international, comparative study of claims processes that included, in addition to the United States, the experience in Australia, Canada, New Zealand, and South Africa. These five former British colonies have intertwined, although divergent, legal and intellectual traditions and, in addition to the courts, have developed various alternative claims venues. I have also been particularly interested in the roles of historical evidence (broadly defined) in claims processes within and beyond the courtroom. This is in part because, prior to my becoming involved in litigation, a law faculty colleague at the University of British Columbia pointed out to me in the early 1980s that native law was a comparatively undeveloped field in Canada and, thus, one of the few areas where historical evidence played a major role in the development of case law. I discovered during my research that historical evidence has also been crucial to the work of claims commissions and tribunals. Furthermore, although commissions and tribunals have been established as alternative venues for claims adjudication, the courts have remained important. Indeed, in the countries under review in this present study, evolving case law and court procedures have influenced the types of issues that commissions and tribunals address. Evolving case law also has affected the ways that commissions and tribunals approach historical

Preface | xxv

evidence and interpret historical treaties. Furthermore, decisions of courts, and also of commissions and tribunals, sometimes have provoked legislative responses that are aimed at placing limits on the claims process. In other words, claims adjudication is a multistage, interactive, and cumulative process. It is this interactive dimension of aboriginal and treaty claims processes that is my primary concern here. I highlight how statements of claims are framed in reference to current case law, prevailing rules of evidence, claims legislation, and existing scholarship. I look at the research that is undertaken for the purpose of either reinforcing or challenging existing historical perspectives that are relevant to the claim at hand. I note that, with the exception of South Africa, claims research has often been revisionist in terms of uncovering new information and/or providing new anthropological and/or historical perspectives. In South Africa, claims tended not to have the revisionist impact that they did elsewhere. This is because apartheid opponents and supporters alike had already raised important fundamental issues about the country’s racist past during their political battles of the preclaims era. Also, claims in South Africa are based on the unique circumstance of dispossessions that took place in the twentieth century as a consequence of explicit racism. In my examination of the adjudication stages of claims processes, I note that there have been, and in some cases still are, considerable variations in the extent to which courts, commissions, and tribunals have attempted to accommodate the customs and practices of indigenous claimants and disparate lines of evidence. I also explore how evidence gathered for a claim is subject to scrutiny of varying intensity either in a courtroom or in a commission or tribunal hearing, depending on the extent to which the adversarial testing of evidence is rigorously applied or curtailed. Finally, I consider the extent to which claims rulings have set important legal or procedural precedents or have provoked legislative responses that have impacted subsequent claims and/or altered scholarly understandings of the historical experiences of indigenous peoples. As this comparative study encompasses five countries and multiple disciplines, it has not been possible to cover all of the issues

xxvi | Preface

that I raise with the nuance and detail that regional or disciplinary specialists would undoubtedly hope for. My goal here is to provide a single-volume introduction to the use of historical evidence in the varied aboriginal rights and treaty claims settings of Australia, Canada, New Zealand, South Africa, and the United States. I also consider how claims rulings have “made history.”

AboriginAl rights ClAims And t h e m A k i n g A n d r e m A k i n g o f h i s to r y

ChaPter one

taking indigenous Peoples’ lands

In the former British colonies of Australia, Canada, New Zealand, and the United States, newcomers and their descendants demographically overwhelmed the indigenous inhabitants. In doing so, they also dispossessed the latter peoples of most of their land. Even in South Africa, where white newcomers have remained in the minority of the country’s population, they displaced the indigenous blacks nonetheless. Colonists put forward various rationales for their acts of doing so. Where indigenous peoples had been defeated in armed conflicts, newcomers claimed title by right of conquest. Where colonists did not come as conquerors, they employed alternative rationales and legal methods. One prevalent method involved claiming land by right of discovery according to international law developed by and for the benefit of European colonial powers. This acquisition, usually conducted in a fairly bloodless way, established the newcomers’ right to colonize vis-à-vis other European states. Most commonly, settler colonists operated on the assumption that they had the legal right to seize indigenous land and were morally justified in doing so on the grounds that they put the latter to more intensive, productive use than the indigenous peoples had done. In British colonies, this kind of thinking was deeply rooted in the writings of eighteenth-century English natural law and social contract theorists such as John Locke and Thomas Hobbes. Locke’s labour theory of property was especially important because it posited that property rights arose only when people invested their labour in land.1 Hobbes, in his classic treatise The Leviathan (1651),

4 | Aboriginal Rights Claims and the Making and Remaking of History

imagined that the lives of primitives (or human beings living in a “natural state”) were “poor, nasty, brutish, and short.”2 People living in such a state lacked the order they needed to protect their possessions or to be recognized by the laws of colonizers as having a right in land. Although this eighteenth-century philosophical perspective may seem quaint and outdated today, it remains powerful in the legal realm, as has been evidenced in court rulings in aboriginal title litigation even into the twenty-first century.3 Colonial north America When Europeans arrived in North America, they discovered a continent in the northern hemisphere that was completely inhabited by indigenous peoples of highly diverse languages and cultures, who occupied climate regions ranging from the cool Arctic environs to the warm tropics and from tropical and mid-latitude rainforests to diverse arid lands. They lived in rugged mountain regions, along varied ocean coastlines and drainages, and on rolling to flat plains. The economies they had developed were highly varied. Some depended heavily on the resources of the mountainous coastal margins and islands, such as the populous salmon fishers of the North Pacific Coast; some, particularly those of the American southeast, relied heavily on horticulture; many, especially those of the American northeast and southern Ontario, combined horticulture with fishing, hunting, and collecting; a large number focused very heavily on the hunting of large game, such as the bison hunters of the Great Plains grasslands; and others, particularly the acorn gatherers of California, were primarily collectors. Social and political organizations were also highly varied. Some indigenous North Americans lived in hierarchical societies, where status and rank were clearly demarcated and inherited. The village dwellers of the North Pacific Coast are a prime example. Elsewhere, most lived in what anthropologists refer to as egalitarian small-scale societies. Many of the dwellers of the vast evergreen (or Boreal) forests of the Canadian Subarctic are examples. Environmental, cultural, and economic diversity of such immense magnitude meant that the indigenous peoples of North America

Taking Indigenous Peoples’ Lands | 5

also had very diverse land tenure regimes, which eventually had critical significance for land claims. Although land tenure was never of major interest to Americanist anthropologists before the 1950s, as I will elaborate later in my discussion of the United States Indian Claims Commission, it would become a central concern in the era after the Second World War, when the treaty and title claims of American Indian tribes and Canadian native peoples – First Nations, Inuit, and Métis – raised the issue. Claimants found that they had to address basic questions about whether their ancestors’ lands were communally or individually controlled? Did their ancestors have notions of ownership and trespass? And did they have the institutions and means to enforce whatever rules were in place regarding access to lands and resources? The British in North America

In British North America the European newcomers who took up indigenous lands invoked the idea that the British Crown had gained sovereignty vis-à-vis other European powers by right of conquest, discovery, and/or occupation. In keeping with evolving notions of the English common law, however, unless an indigenous people had been defeated in war, their aboriginal (or native) title remained in place as a “burden” on the Crown’s title. This “burden” was an acknowledgment that indigenous peoples had used and occupied the lands before Europeans arrived and that they had the right to continue to do so until they formally surrendered the land to the Crown. Prior to the end of the Seven Years’ War (1755–62) between Britain and France for empire in North America (commonly referred to as the French and Indian War in the United States), the colonists’ acquisition of aboriginal title was not systematic. Indeed, it was often fraudulent in that factions of indigenous communities were duped or otherwise persuaded to sell land that was communally held. Dubious transactions of this sort stirred up unrest among native groups. Anxious to retain its native allies in the case of any future struggles for empire in North America, the imperial government moved to put a stop to fraudulent land dealings or seizures through force of arms. Accordingly, when the Seven Years’ War

6 | Aboriginal Rights Claims and the Making and Remaking of History

ended, the victor, Britain, set out a formal process for acquiring native lands in the Royal Proclamation of 1763. This edict specified that only the Crown could acquire aboriginal title. It ruled further that colonial officials could do so only when they convened public meetings explicitly for that purpose. Appropriate native leaders had to be in attendance. The proclamation also divided North America into areas that were open for colonization and those that were reserved for indigenous peoples until the Crown acquired the land. Thirteen Colonies/United States

The severe constraints on colonial expansion posed by the Royal Proclamation enraged most of the colonists, who eventually rebelled to create the United States. They were angry because the proclamation blocked expansion by reserving lands lying west of the Appalachian Mountains for Indians.4 These reserved lands encompassed the vast inland territory bounded on the east by the Ohio River and on the west by the Upper Mississippi River – the present-day American Midwest.5 American colonists were angry because they had believed that helping Britain to defeat the French would open this continental heartland for their development schemes. When the Thirteen Colonies successfully broke free from Britain through force of arms in the Revolutionary War (1775–83), the newly created United States of America developed its own laws about the acquisition of Indian lands and the relationships of Indian tribes to the federal government. In landmark judgments that he made in the 1820s and 1830s, United States Supreme Court Chief Justice John Marshall developed the idea that American Indian tribes were domestic dependent nations. Unless they had been conquered or had surrendered their lands through treaties with the United States, they retained Indian title, which could be surrendered only to the federal government.6 Over the next several decades, through the hundreds of treaties that it negotiated with Indian tribes under diverse circumstances, the federal government acquired Indian lands. The terms varied but generally involved some sort of financial compensation and the establishment of reserves. The latter normally comprised only small fractions of the surrendered territories.

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Land surrenders before 1814 Land surrenders 1814–46 Land surrenders California 1851–89 (never ratified by Congress)

0

Land surrenders 1851–89

0

400 km 400 miles

1.1 | land surrenders in the united states to the 1880s

But because the United States government held the right of preemption, it had the power to take Indian title without even having to pay compensation.7 A further limitation for Indian tribes was that they could not sue the United States for losses without first obtaining permission to do so through special acts of Congress – an extraordinary hurdle, indeed.8 The US government’s acquisition of Indian lands occurred in great waves throughout the nineteenth century. Through a series of treaties concluded from 1817 to 1842, the young nation gained Indian title to most of the upper Midwest.9 During the same period, land surrender treaties blanketed all of Florida away from the coast, most of Alabama, central and northern Mississippi, western Tennessee, central and southern Arkansas, and most of eastern Oklahoma and Nebraska. The next round of treaty making took place from 1851 to 1864 in the Far West in the alluvial gold rush territories of the present states of California, Oregon, and Washington, although Congress never ratified the California treaties of the early 1850s.

8 | Aboriginal Rights Claims and the Making and Remaking of History

This fact did not hinder newcomers to the state, however, especially the international gold seekers it attracted, from taking California Indians’ lands, sometimes through extermination of the local populations. Then, following the conclusion of the American Civil War in 1865, warfare and treaty making with tribal groups took place in the plains, the interior west, and the southwest regions from 1865 to 1886 in order to open up farmlands and establish the great cattle ranches. During this period, tribal groups ceded almost all of the remaining territory of the present-day continental United States. For a variety of reasons, most of these nineteenth-century land surrender treaties became the subject of Indian claims in the twentieth century.10 Sometimes it was because the tribes had made the agreements under extreme duress. Sometimes it was because the tribes had been duped. Often it was because the terms of the treaties were flagrantly violated by federal and state governments and by local white settlers. The most famous examples were the forced removals in the 1830s of the tribes of the American South from their ancestral homelands to the Oklahoma territory.11 British North America/Canada

To the north of the United States, in what was known as British North America and would later become Canada, the first land surrender treaties after the War of 1812 (1812–15) between Britain and the United States – the last imperial struggle on the continent – took place in the area of present-day southern Ontario in advance of the agricultural frontier. Then copper discoveries in the Upper Great Lakes region of British North America in the 1840s led the Province of Canada (1841–67), as the western-most settler colony was known,12 to negotiate two key treaties in 1850. Known as the Robinson Treaties, they alienated from Indians most of the lands draining into Lakes Huron and Superior from the north – a vast area rich in minerals but of marginal importance for agriculture. In contrast to the previous treaties, the Robinson Treaties did provide small parcels of land for Indian reserves. This set a precedent for subsequent treaties. By the time of Canadian Confederation in 1867,

1.2 | treaty and claims areas in Canada

10 | Aboriginal Rights Claims and the Making and Remaking of History

almost no part of present-day southern Ontario was untouched by treaties.13 On the Pacific Coast of British North America, the governor of the Colony of Vancouver Island (1848–66) negotiated fourteen small land surrenders known as the Douglas Treaties in the vicinities of the present-day cities of Victoria, Saanich, Sooke, Nanaimo, and Port Hardy, British Colombia, to facilitate agricultural development and coal mining. A colony was formed on the mainland following rich discoveries of alluvial gold in the 1850s that eventually led international gold seekers north into the Alaska-Yukon region in the 1880s and 1890s. Important for the history of land claims in British Columbia, no treaties were signed in the province at that time apart from Treaty 8 (1899). The next critical round of treaty making in British North America took place after Canada acquired Rupert’s Land from the Hudson’s Bay Company in 1870. Charles II had granted the company this vast territory, which encompassed all of the lands draining into Hudson Bay, two hundred years earlier. According to a complex agreement involving Britain, Canada, and the company, Canada gained Crown sovereignty over the former Rupert’s Land, with the promise that it would make adequate provision for the interests of the indigenous peoples.14 From 1871 to 1876, Canada negotiated seven treaties known as the Numbered Treaties with various Indian groups living in the grassland-parkland sections of the former Hudson’s Bay Company territory to make way for government-led transcontinental railway projects, agricultural settlement, and ranching. The unplanned stampede of miners to the Klondike led to the commencement of the last wave of treaty making in the vast woodlands to the north of the Great Lakes and Prairie West areas extending into northeastern British Columbia. Treaty 8, which was negotiated in 1899 in response to the Klondike international gold rush to the Alaska-Yukon territories in 1896–98, hearlded the beginning of this new phase, which continued until 1929. In addition to mining, these early twentieth-century Canadian treaties facilitated transportation expansion, hydroelectric projects, and forestry development. When this phase ended, large tracks of the Canadian Great Plains and much of the north had been brought under treaty, and Indian

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reserves had been established across the country. Yet it is important to note that substantial portions of Canadian territory remained outside of land surrender treaty areas. These included all of Atlantic Canada and Quebec,15 the Far North (i.e., north of sixty degrees north latitude, or most of the Arctic region), most of the mainland portion of the province of British Columbia, all of Vancouver Island except for the small Douglas Treaty areas, and the Queen Charlotte Islands.16 Continuing Losses of Land in North America

Even after the historic treaty-making phase ended in the United States during the late ninetheenth century and in Canada during the early twentieth century, losses of indigenous peoples’ lands continued for a variety of reasons. From the early nineteenth century onward, it had been a practice for Amercian and Canadian native groups to retain fractions of their former territories as communally held reserve lands, called “tribal reservations” in the United States and “reserves” in Canada.17 The American and Canadian federal governments ultimately had the fedicuary responsibility to protect these residual holdings. The problem for American Indian tribes and Canada’s First Nations, however, was that these federal obligations often conflicted with other objectives of these governments, most notably the promotion of settlement by newcomers and programs that aimed to forceably assimilate native peoples. In Canada, for example, this goal led to various federal actions that encouraged and/or forced Indian groups to yield up the most valuable portions of their reserves, thereby adding to their marginalization in the emerging economic order. Indians living in the former buffalo-hunting territories of the Prairie West were particularly affected at the close of the nineteenth century and the beginning of the twentieth century.18 In the United States the federal government implemented assimilationist schemes that aimed to persuade and/or force reserve Indians to abandon their communal titles for ones held individually (or land in severalty). In particular, Congress passed the Dawes Severalty Act of 1887, which it stengthened through amendments in 1891

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and 1906, for the explicit purpose of assimilating Indians. Understanding that communal title and tribal social cohesion were closely linked, the lawmakers intended to undermine tribes by authorizing the American president to have Indian lands surveyed and divided into allotments for individual Indians. The added benefit for newcomers was that through this means Indian lands would become available for purchase by non-Indians living in settlements adjacent to reserves and for transportation development, farming, cattle raising, and mining. The results were staggering. Within forty years of the passage of the Dawes Act in 1887, American Indian tribes had lost almost three-quarters of their reservation lands (or over 90 million acres).19 This complex treaty history, which created groups who held treaty rights and those who did not, had important ramifications for American and Canadian Indian claims. When the modern claims era began in the United States and Canada in the late twentieth century, the two categories of claimants had different agendas. The former brought forward claims that have raised many treaty issues. Paramount are (1) questions about the legitimacy of many historic treaties, (2) issues about their meaning and intent, (3) questions about whether aboriginal title has survived in areas lying outside of treaty territories, (4) uncertainties about what rights have survived and/or are protected by treaties, and (5) questions about whether governments have fulfilled their treaty obligations. The nontreaty claimants have raised questions about (1) the nature of Indian title in the United States and aboriginal title in Canada, (2) the presence or absence of aboriginal tenure regimes, and (3) whether aborignal title in Canada has survived the establishment of effective Crown sovereignty. new Zealand and the treaty of Waitangi Similar to what had occurred in North America, treaty making was a key aspect of the colonization process in New Zealand. The setting in which it unfolded, however, was markedly different in two crucial respects. First, the indigenous people, the Maori, who are of Polynesian ancestry, were themselves relatively recent to the land,

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having arrived in approximately aD 800, and they were not as diverse culturally as the native peoples of North America. Compared to North Amnerica, New Zealand is a tiny territory mostly comprising two major islands and a total land area of just over 268,000 square kilometres (approximately one-quarter the size of the province of Ontario, Canada).20 The Maori spoke a single language, although there were local dialects. Social and political structures were well established and broadly similar across the population. Throughout the islands, chiefs of local iwi (tribes), which were comprised of hapū (clans) and whānau (extended families), controlled the rohe (iwi land) on behalf of the members. The economies of iwi varied in terms of the degree to which they depended on the resources of the sea and land. Agriculture was more important to those living on the North Island than it was to most of those who lived on the cooler South Island. All iwi, however, engaged in some collecting, fishing, and hunting. So, although there was some economic diversity among the Maori, it was not remotely as great as that among North American native peoples. Second, and probably the most significant contrast with North America, is that the broad terms of colonization for New Zealand were set forth in a single treaty, the Treaty of Waitangi of 1840, involving a single colonial power, Britain. By contrast, there are hundreds of treaties in North America involving multiple colonial powers.21 British colonial authorities and 150 Maori chiefs from the North Island agreed to the Treaty of Waitangi on 6 February 1840 at the Bay of Islands on the North Island. Over the next eight months, colonial officials sent copies of their agreement around the country to obtain the signatures of groups who were not present. By September 1840 another 500 chiefs had joined. As I discuss in greater detail in chapter 5, the treaty acknowledged the Maori as owners of the land and its resoures, including the fisheries of the coastal waters, but it also gave the Crown pre-emption rights to lands that the Maori were willing to sell. According to officials of the Crown, this provision was supposed to protect the Maori from dubious land transactions and incursions by European (or Pakeha) settlers. Some land alienations, however, had already taken place prior to the Treaty of Waitangi. Most of these transactions had occurred in various parts

14 | Aboriginal Rights Claims and the Making and Remaking of History

of the North Island where local depopulation, caused by intertribal warfare, had left some areas temporarily vacant. Also, the Maori themselves had made land concessions and sales to missionaries, traders, and other early newcommers. Some of the Maori losses that took place from the 1810s to the 1830s were the consequence of the so-called Musket Wars. These were intertribal conflicts that led to the depopulation of various districts, which subsequently were settled by Pakeha. But it is clear that the treaty of 1840 failed to offer the intended protection against these types of losses of land. A little over a century after it was signed, the vast majority of Maori lands had changed hands through a variety of concessions, sales, or Crown confiscations. Most of the confiscations occurred after a series of Maori conflicts with settlers and colonial authorities, the most notable of which were the Taranaki and Waikato Wars (1860–64). Providing the catalyst for these clashes were both the increasing unwillingness of Maori to sell land, which was signalled by the Maori King (Kingitanga) Movement beginning in 1858, and the fast-growing population of Pakeha.22 The government took many measures to unlock Maori land for settlement and economic development. Key among these efforts was the passing of the Native Lands Act of 1865, which created the all-important Native Land Court of New Zealand (renamed the Maori Land Court in 1954). The government’s objective, as stated in the preamble of the 1865 act, was nothing less than to promote the extinction of traditional Maori land tenure customs. This was to be accomplished by reducing the authority of chiefs with respect to land, favouring individual rather than collective ownership, and transforming Maori holdings into individual land titles cognizable under English common law. These measures in combination would assure the owners of former Maori lands that they had secure titles. The government not only encouraged the Maori to sell their land but was also the biggest category of buyer. Thus it was that land alienations continued in a wholesale fashion. In the last decade of the nineteenth century alone, the Maori sold 3.1 million acres, mostly to the government.23 Losses of control and use of their land by these various means were paramount among the grievances that Maori iwi held against the government. Until the establishment of

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the Waitangi Tribunal in 1975, however, the Maori would achieve virtually no success in pressing their petitions for redress. Australia and the doctrine of Terra Nullius The colonization of Australia unfolded very differently from that of North America and New Zealand. It is now understood that the indigenous peoples of mainland Australia, known as Aborigines, have the oldest continuous-occupation cultures known to us. They have lived on the subcontinent for over 40,000 years. Emphasizing fishing, hunting, and especially gathering, Aborigines had long been adapted to environments ranging from the tropical rainforests of Northern Australia to some of the driest deserts on earth located in the heart of the country. Only the indigenous people living on the Murray Islands in the Torres Straight off of the northeast coast of Australia relied heavily on gardening.24 The problem for Australian Aborigines was that those British colonists who began arriving in the late eighteenth century (1788), who were mostly convicts, and those who came after them regarded Aborigines as ranking too low on the cultural evolutionary scale to have had any notions of ownership of land or resources. The newcomers also assumed that Aborigines roamed over the land and did not use it with sufficient intensity to have established a property right. Indeed, until the late twentieth century, even many academics in Australia and elsewhere who studied Aborigines regarded them as being the archetypical primitive and entirely nomadic hunter-gatherers. But, in fact, as claims research would confirm beginning in the 1980s, Aborigines had complex rules that governed individuals’ access to land and resources. Before that time, however, the prevalence of non-Aborigines’ ethnocentric perspectives meant that colonial settlement effectively proceeded according to a legal fiction derived from Roman law called terra nullius (empty land). This meant that, in the eyes of the common law of Australia before the 1990s, the continent had belonged to no one when colonists first arrived. It also supported the notion that newcomers effectively established British sovereignty simply by taking up and using the land for agriculture, ranching, and other purposes. Thus, in contrast to North

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America and New Zealand, treaty making simply was not a part of colonial expansion in Australia. Having not recognized that prior occupation served to establish an aboriginal title as a burden on Crown title, colonial governments had no need to negotiate land surrender treaties. Aboriginal land rights received no legal recognition in Australia until 1992, when in Mabo v. Queensland (No. 2) the High Court gave legal recognition to aboriginal title, thereby casting out the myth of terra nullius. By this time, however, Aborigines had been pushed off of their lands in most areas of the continent. The Aborigines who were not displaced from their ancient homelands remained only at the pleasure of the colonists and usually as poorly paid workers in the agricultural, ranching, and mining enterprises owned by settler colonists. race-based dispossession in south Africa In South Africa, as in Australia, indigenous land rights were mostly ignored by successive colonial governments, despite the relatively small white colonial population vis-à-vis the black Africans. Colonization began in the Cape area in 1652, when the Dutch East India Company established a colony. When these Europeans arrived, the indigenous population included Khoikhoi (or Hottentot) herders, with whom the Dutch settlers initially traded. Subsequently, the newcomers simply took Khoikhoi lands, often through force of arms, justifying their actions by claiming that they put the land to more productive use. When the British took control of the colony from the Dutch in 1806, circumstances did not improve for blacks. On the contrary, the arrival of the British provoked many of the Dutch settlers and their descendants – the Afrikaans-speaking whites, or Boers – to disperse into new areas to the east and north that were populated by farmers and herders who spoke various Bantu languages, most notably the Xhosa and Zulu. The Boers’ movement inland in a series of waves referred to as “treks,” which began on a large scale with the Great Trek of 1836, eventually led to the formation of the Boer Natalia Republic and the Boer colonies of the Orange Free State and the Transvaal, all of which eventually became part of South Africa.25 These developments took place with extreme

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violence. The colonizing efforts of the Afrikaans-speaking Boers and the English provoked a series of major armed conflicts both between the Boers and the English colonists and against the Xhosa, Zulu, and other blacks. Similar to what occurred in North America and New Zealand, the disruptions caused by the newcomers also triggered intertribal conflicts that undermined the various black groups’ abilities to withstand the advances of the Boers and the English. The spectacular diamond discoveries of the late nineteenth and early twentieth centuries led to rushes that brought massive waves of immigrants to the interior and northern regions of present-day South Africa, including the Kalahara Desert region along and north of the lower Orange River, where the hunting and gathering San (or Bushmen) and their mixed-race descendants (known as Basters) were slaughtered and violently pushed aside. By the end of the South African (or Boer) War of 1899–1902 between the Afrikaners and the British Empire, and with the creation by Britain of the Union of South Africa eight years later, many of the indigenous blacks of the new country had already been forced off of their lands. The new Union of South Africa quickly ushered in a series of race-based dislocations, beginning in 1913 with the enactment of the Natives Land Act. This act, passed by the minority white government, defined “natives” as anyone who was of an “aboriginal race or tribe,” and it prohibited them from buying or leasing (called “hiring”) land in over 90 per cent of South Africa. In 1936 the passage of the Native and Land Trust Act marginally increased the portion of lands available to “natives” to 13.5 per cent. However, this act limited “native” Africans to buying and selling land on designated “reserves or scheduled areas.” In these fundamental respects, in South Africa “native reserves,” which were later referred to as “Bantustans,” or “native homelands,” were very different in orgin from North American Indian reserves.26 As noted, most reserves in the United States and Canada were the result of negotiated treaties and were fragmentary portions of the aboriginal homelands of the people who signed specific treaties. Under the apartheid regieme of the National Party Government (1948–94), massive forced population dislocations occurred, especially after 1961 under the new independent Republic of South Africa. The apartheid scheme divided the country’s

18 | Aboriginal Rights Claims and the Making and Remaking of History

population into four racial categories – “black,” “white,” “coloured,” and “Indian”27 – and forced everyone to live separately in segregated residential areas. This division led to the forced relocations of over 3.5 million black and coloured South Africans. The majority of the latter two populations were forced out of urban centres to so-called townships, most of which are located on the urban fringes. Most blacks and coloured people remain there to this day. Following the end of apartheid in 1994, when the African National Congress Party led by civil rights leader Nelson Mandela came to power through democratic elections, the national government faced the daunting challenge of redressing the dispossessions and dislocations that had resulted from past racist practices. the limitations of the Courts as forums for Addressing rights grievances of indigenous Peoples Although the five countries under review had these different colonial histories, their indigenous peoples shared the common experience of having been dispossessed. They felt a deep sense of injustice. Prior to the second half of the nineteenth century, courts of these former British colonies provided, in principle, a public forum for them to air their grievances. Nonetheless, litigation was not always available to indigenous peoples. In the United States, for example, Indians could sue the federal government in the United States Federal Court of Claims but only after obtaining congressional approval to do so. Accordingly, each petitioner had to pursuade Congress to pass a special act in order to proceed.28 Not surprisingly, only a small percentage of tribal groups gained this approval; even fewer obtained favourable rulings from the court of claims. In Canada, infamously, from 1927 to 1951, amendments to the federal Indian Act forbade Canada’s native people from hiring lawyers to pursue their land claims through litigation. They were barred from doing so because the federal government feared that claimants might win appeals of Canadian court decisions if petitioners took them to the British Privy Council, which was the highest court of appeal for Canada until the Supreme Court of Canada became the country’s final arbiter in 1951. As previously mentioned, the New Zealand

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government created the Maori Land Court in 1865, but its primary purpose was not to protect Maori land rights according to the terms of the Treaty of Waitangi. Rather, the government intended for this body to free up Maori lands for Pakeha settlement. And, in Australia, the law of the land did not recognize aboriginal title until 1992. In South Africa the courts upheld the racist apartheid regime until 1994. Even when indigenous people did have their day in court, they found themselves pleading for recognition of their rights according to the terms of a legal system that was both foreign to them and favoured the European settler colonists and their descendants. Of particular importance, the rise of legal positivism in the late eighteenth century in Europe, which emphasized law as it is, or is perceived to be, meant that indigenous claimants could obtain protection of their rights only if the latter were based on practices that the common law as currently developed could recognize. This approach did not take into account moral and social considerations to develop the law as “it ought to be,” which a “natural law” perspective takes into account rather than merely relying on authority.29 While legal positivism held sway, indigenous law was mostly regarded “as a body of habits, conventions and moral standards, which could be ignored by policy makers, lawyers, and government officials.”30 In Canada and South Africa this view changed when constitutional reforms gave recognition to indigenous law.31 To advance their cases, initially indigenous claimants had to retain lawyers who were accustomed to litigation practices rooted in common law. Until the late twentieth century, most lawyers lacked any specialized understanding and appreciation of indigenous land use and tenure customs and practices. Particularly troublesome, the rules of evidence developed in the former British colonies under discussion here, notably the hearsay rule, made it difficult for indigenous people and their lawyers to bring forward cases that relied heavily on historical evidence. The hearsay rule was an obstacle primarily because it restricted witnesses to the presentation of evidence that they had gathered by first-hand observation. This limitation precluded presenting historical accounts that had been passed down through the generations orally by native elders, as was

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customary in oral-based, or nonliterate, societies. The hearsay rule also limited the inferences that academic experts appearing before the courts could draw from accounts contained in documentary records. Only since the rules of evidence were relaxed, a practice that did not begin in a significant way until the late twentieth century, has it been possible for indigenous people to make extensive use in court of a wide array of documentary, oral, and other lines of historical evidence to advance their land and treaty claims or to defend themselves in harvesting rights cases where they have been charged with violating various sections of wildlife protection legislation. Even when nondocumentary lines of evidence are admitted by the courts, judges have the responsibility of deciding how much weight is to be given vis-à-vis documentary records. Until the turn of this century, judges were (and many remain) reluctant to give weight to oral sources whenever they conflicted with documentary ones, especially those that had been authored by government officials and missionaries. In the past, courts were disposed to give special weight to the latter. The reluctance of many lawyers and judges to give significant weight to indigenous people’s testimonies was (and often still is) manifest in their treatment of expert witnesses and elders. Until late into the twentieth century, judges were predispossed to give more weight to the testimonies of social scientists – whether archaeologists, anthropologists, historical sociologists, political scientists, or social historians – than to those of elders from the societies involved in litigation. As I discuss in chapter 4, for example, in the landmark title suit of the Yolngu of Arnheim Land in Australia’s Northern Territory (Milirrpum v. Nabalco Pty Ltd, 1971), the trial judge of the Supreme Court of the Northern Territory, Richard Blackburn, received conflicting accounts of the nature of the traditional social organization and related land tenure practices of the plaintiffs. One came from the testimony of the elders and the other from the two anthropologists retained by the plaintiffs as their experts. In the end, Justice Blackburn felt compelled to side with the anthropologists. The latter experts’ style of presentation and the manner in which they answer questions in court are often more compatible with the expectations of laywers and judges than are those of elders. For example, whereas social

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scientists tend to respond directly to questions put to them, elders often do so seemingly indirectly and/or only after making long preambles that are aimed at orally establishing their authority and credentials on the issue at hand. For these reasons, indigenous defendants and plaintiffs have faced an uphill struggle in their attempts to have desparate lines of evidence fairly weighed by the court. It has been particularly difficult to have the courts accept that elders are the paramount authorities about their own cultures and histories. This problem was overtly manifest in Canada by the order in which witnesses were called before courts. Before the mid-1980s, it was the common practice to call the academic experts first. The elders followed afterward, if they were called at all. This ordering reflected judges’ and lawyers’ beliefs that elders served secondary roles as lay witnesses. As I highlight in chapter 4, Australian judge John Toohey,32 who was the first aboriginal land commissioner of the Northern Territory, led the way in recognizing that this was a problematic practice. After the initial claims hearings, he put the elders first. This reordering had the crucial, positive impact for indigenous people of reducing the tendency to consider their presentations in reference to frameworks put forward by anthropological experts. In the 1980s land title suit brought by the Gitxsan-Wet’suet’en of British Columbia, Canada, which I detail in chapter 3, the plaintiffs made an explicit, and for Canada precedent-setting, decision to lead off with the oral testimony of their elders. They used their academic experts, myself among them, only in supporting roles. The way that evidence is normally tested in the courtroom is also highly challenging for indigenous witnesses. The courts rely on the adversarial method. This involves subjecting witnesses to crossexamination by opposing lawyers, who challenge both the credibility of witnesses and the evidence that they present. In sharp contrast, the elders, who are the carriers of traditional knowledge, are shown great respect in indigenous peoples’ cultures. The knowledge they pass on through stories, songs, and by various other means are validated according to other methods. In the case of collective (or “official”) traditional narratives rather than personal histories, validation is usually accomplished by holding appropriate

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public gatherings where others who hold relevant knowledge can make interventions as they deem necessary so that a consensus can be reached. My own experience as an expert on behalf of First Nations and Métis plaintiffs and defendants in numeous aboriginal and treaty rights cases in Canada has made it clear to me that cross-examination certainly is a problematic way to attempt to gain understandings of history.33 Most of the questions are not aimed at elaborating historical perspectives or furthering discussion. Rather, often their object is intended to undermine a witness’s credibility in the eyes of the court and to put forward alternative interpretations that favour the interests of the opposing side. As an expert witness, cross-examination is also very frustrating because you are allowed to answer only the questions that are put to you by opposing counsel, no matter how irrelevant or misleading you may think them to be for gaining understandings of the historical issues before the court. Claims research as revisionist scholarship Prior to the advent of the eras of aboriginal and treaty rights claims in the former British colonies under review here, with the exception of South Africa, as I explain below, academic historians had shown little inclination to research and write about the indigenous sides of colonial frontiers. Rather, scholarship about indigenous peoples was primarily the domain of anthropologists. The latter had mostly collected data about indigenous cultures through archaeological and ethnographic fieldwork for the purpose of developing and testing various theories about human migration and cultural origins, patterns, and change. Research tended to emphasize material culture, kinship and social organization, and religious and spiritual beliefs. These studies normally were explicitly or implicitly conceived in reference to metanarratives that imagined various indigenous peoples represented certain stages of socio-economic complexity or evolutionary development. Apart from South Africa, before the 1960s few anthropologists had been interested in indigenous peoples’ experiences with colonialism, particularly the economic dimension, and few were interested in aboriginal claims.

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Yet it is the economic dimension of indigenous peoples’ experiences that has been the focus of claims from the outset. Claims have emphasized indigenous political and socio-economic systems as they relate to land use and tenure regimes and to the economic aspects of indigenous peoples’ encounters with newcomers. On the one hand, acting as experts before claims commissions, tribunals, and the courts, anthropologists have had to broaden their horizons and explore new sources, most notably documentary records. On the other hand, historians who subsequently joined in the process had to take into account the methodologies and theoretical perspectives that were current in a variety of the social sciences that study indigenous peoples and their cultures. The inter- and multidisciplinary research that resulted came to be known as ethnohistory in North America in the 1950s. This work challenged some of the basic conceptual frameworks that Americanist anthropologists had used in their studies of American Indian tribes until that decade. Early claims research had a comparable impact on anthropologists’ models of Aborigines’ societies in the Northern Territory of Australia, something that I consider in chapter 4 in my account of the early operation of the Aboriginal Land Commission in that territory. In New Zealand historians engaged in claims research on behalf of petitioners, or the Waitangi Tribunal ultimately challenged the nation-building metanarratives prevalent in their field. These older, traditional histories commonly glorified the deeds of the newcomers, while either largely ignoring or casting in a negative light the Maori who resisted and were adversely affected by colonization. In some countries, most notably Australia and New Zealand, revisionist perspectives on settler-indigenous relations, particularly those put forward by Australian historian Henry Reynolds and in the testimonies and writings surrounding the Waitangi Tribunal, have sparked the so-called history wars that have grabbed the attention of the public and scholars.34 In these well-publicized debates, defenders of older approaches have charged that the new more inclusive and/or native-centred histories are steeped in political correctness, that they are ultimately divisive, and that they demean settler colonists’ contributions to nation building. They also assert that these perspectives undermine modern efforts to create bi- or

24 | Aboriginal Rights Claims and the Making and Remaking of History

multicultural states. In part, this adverse reaction is reflected in the fact that claims-generated revisionist histories, especially those produced by the Waitangi Tribunal, began to appear in the 1990s, just as the postmodern and postcolonial approaches to history were gaining favour in some quarters. For those who were uncomfortable with these new approaches to history, claims-based histories were suspect because they were often bi- or polyvocal narratives and involved critical re-examinations of older nation-building metanarratives from the perspectives of the indigenous peoples.35 South Africa stands somewhat apart from the above countries in terms of the impact of claims research on its historiography.36 Here, where the indigenous African population continued to vastly outnumber that of the newcomers and their descendants, it was not possible for historians to push the former people into the background, as commonly happened elsewhere. From the early nineteenth century, an influential faction of the anglophone intellectual community was very concerned about the socio-economic impacts of colonialism and racist policies on indigenous Africans. As I highlight in chapter 6, this group of scholars emphasized ethnic/ racial group interactions and economic and socio-political change. Afrikaner nationalist scholars adopted a different approach and perspective. They emphasized what they regarded as being the traditional elements of African societies, justified Afrikaner colonialism, and from 1948 to 1993 provided intellectual support for the apartheid policies of the National Party government. The very different intellectual and political orientations of these two communities of scholars meant that by the time apartheid ended in 1993 and the land restitution era began a year later, most of the historical issues that land claims subsequently raised had been thoroughly debated and explored. Therefore, land restitution claims did not initiate history wars to the extent they did elsewhere. Rather, they drew on and perpetuated those already underway. toward a Comparative history of Claims research Although there is a considerable literature concerning the history of aboriginal and treaty rights claims in Australia, Canada, New Zea-

Taking Indigenous Peoples’ Lands | 25

land, South Africa, and the United States, few authors have provided a comparative perspective. Typically, studies are framed in national contexts and emphasize administrative and legal issues as well as specific legal cases and processes of negotiation.37 I have focused on selected critical periods and/or cases drawn from the major claims venues to explore common themes and highlight foundational cases that established basic operational procedures, set precedents, and point to similarities and differences in the use of historical evidence. I begin by looking at the first decade of the United States Indian Claims Commission’s operation in the 1950s, when prominent American anthropologists served as the primary expert witnesses. The creation of this commission hearlded the beginning of the modern claims era internationally and represents the first attempt in a former British colony to move hearings from the adversarial setting of the courtroom into places that were intended to be less confrontational. As my discussion highlights, the commission unfortunately failed to achieve this basic objective. It became a lawyer-dominated and fiercely adversarial place – like a courtroom – where native voices were rarely heard directly and where the American anthropological community became embroiled in debates over how best to characterize Indian cultures as they related to land use and tenure. The commission’s polarized proceedings became drawn-out affairs that forced Congress to repeatedly renew its five-year mandates until 1978. Thirty to fifty years passed before Australia, Canada, New Zealand, and South Africa would follow the lead of the United States and create quasai-judicial processes to address the land claims of their indigenous peoples. As I will show, with varying degrees of success, they intentionally attempted to avoid the United States Indian Claims Commission’s fundamental shortcomings. In particular, they made significant efforts to listen to native voices directly by calling elders, they relaxed the hearsay rule both to admit oral history evidence and to give it weight, they moved some or all hearings to claimants’ communities, and in some instances they incorporated aboriginal dispute resolution practices into proceedings. In Canada the Métis pose a relatively new development in indigenous claims and rights litigation, so I have included a section

26 | Aboriginal Rights Claims and the Making and Remaking of History

about Métis rights in this study. The Canadian Constitution Act of 1982 is possibly unique in the world for its recognition of this people of mixed aboriginal-European descent as being a rights-bearing indigenous people. The act raised the thorny issue of cultural-ethnic identity formation or invention by not defining who qualified as Métis, nor did it specify the nature of their rights. Furthermore, none of the Canadian federal claims resolution schemes, which I discuss in chapter 3, provided for Métis claimants. This omission has meant that the Métis have had to resort to Canadian courts exclusively in order to have their identity defined in law and to have their rights established and protected. As an expert witness on their behalf, I have been involved in this process in Ontario and the prairie provinces of Alberta, Saskatchewan, and Manitoba. My discussion of Métis litigation focuses on the cases in which I took part. Consideration of Métis rights litigation provides us with an opportunity to discuss some of the ways that Canadian courts have attempted to become more “native-friendly” and to reflect on these efforts in light of the approaches and procedures previously implemented by various claims commissions and tribunals in other countries. In the histories that follow, my primary concern is with the interactive nature of claims processes. I highlight how statements of claims are framed in reference to current case law, prevailing rules of evidence, extant claims legislation, and existing scholarship. I look at the research that has been undertaken for the purpose of either reinforcing or challenging existing historical perspectives that are relevant to the claim at hand. I note that, outside of South Africa, claims research has often been revisionist in terms of uncovering new information and/or has provided new anthropological/ historical understandings. As noted, in South Africa claims tended not to have the revisionist impact that they did elsewhere because opponents and supporters of apartheid had raised fundamental issues about the country’s troubled colonial past in their political battles during the preclaims era. Also, in this country, claims are based on dispossessions that took place during the twentieth century as a consequence of racism. In my examinations of the adjudication stages of claims processes, I note that there have been considerable variations in the

Taking Indigenous Peoples’ Lands | 27

extent to which courts, commissions, and tribunals have attempted to accommodate the customs and practices of indigenous claimants and disparate lines of evidence. I also explore how evidence gathered for a claim is subject to scrutiny of varying intensity either in a courtroom or in a commission/tribunal hearing depending on the extent to which the adversarial testing of evidence is rigorously applied or curtailed. Finally, I explore the extent to which claims rulings set important legal or procedural precedents or provoked legislative responses that impacted claims and/or altered scholarly understandings of the historical experiences of diverse indigenous peoples. Since this is a comparative study that encompasses five countries and multiple disciplines, it has not been possible to cover all of the issues that I raise with the nuance and detail that regional or disciplinary specialists undoubtedly would like. As stated in the preface, my goal here is to provide a single-volume introduction to the use of historical evidence in the varied aboriginal and treaty rights claims settings of Australia, Canada, New Zealand, South Africa, and the United States. issues of terminology A comparative look at the processes of aboriginal and treaty rights claims poses terminological challenges. The countries under review have established different practices for referring to their indigenous peoples. For example, today in the United States, they are most commonly referred to as Indians, and politically independent groups of them are labelled tribes. From the 1970s in Canada, these groups have identified themselves as First Nations. The Canadian Constitution of 1982 recognized three groups of indigenous people: First Nations, Inuit, and Métis. The term “First Nations” has roughly the same meaning as “tribes” does in the United States. In Canada, as in the United States, the term “Indian” is also used to specify people of indigenous ancestry who have legal rights and privileges that are based on that ancestry. Many “Indians” also hold treaty rights. Technically speaking, Canadian Métis do not have treaty rights, as their aboriginal land rights were addressed unsatisfactorily in the

28 | Aboriginal Rights Claims and the Making and Remaking of History

Manitoba Act of 1870 and in Indian treaties beginning in 1873. In Canada since 1939, the Inuit (or Eskimo) have been regarded as “Indians” in the eyes of Canadian law.38 Elsewhere, the common practice is merely to differentiate between those who are designated as being indigenous and those who are not, even though racial and cultural mixing occurred everywhere. In Australia indigenous people are referred to collectively as “Aborigines,” even though they are linguistically and culturally diverse. In New Zealand indigenous people are to varying degrees of Maori biological and cultural ancestry and self-identify with that ancestry.

ChaPter two

the united states indian Claims Commission

When in 1946 the United States Congress passed Public Law 726 creating the United States Indian Claims Commission, it marked the end of a sixteen-year political battle. The commission was supposed to provide a forum where Indians, as members of tribes, bands, and “other recognizable groups,”1 could bring their grievances against the federal government. The act established very broad grounds for Indian claims. Specifically, it allowed for petitions that addressed five types of grievances: (1) those arising under the Constitution, laws, treaties, and executive orders of the president; (2) others arising in law or equity (including torts) for which the United States is generally liable; (3) claims that would result if treaties, contracts, and agreements with tribes were revised on the grounds of fraud, duress, unconscionable consideration, mutual or unilateral mistake, or any other ground recognizable by a court of equity; (4) claims arising from the United States taking Indian lands by treaty or other ways without payment of compensation agreed to by the complainant; and (5) petitions arising from issues regarding fair and honourable dealings.2 During the long political battle culminating in this act, the Justice Department had vigorously opposed the idea of creating the commission, fearing the potential liability the government would face. The department particularly objected to the last clause of the act, pertaining to “fair and honorable dealings,” believing that it set a dangerous precedent by making the federal government liable for moral claims for which it otherwise would enjoy immunity.3 The

30 | Aboriginal Rights Claims and the Making and Remaking of History

Interior Department, on the other hand, had long advocated establishing a commission with broad powers such as this one had.4 This department was responsible for Indian affairs and was convinced it could not move forward with its assimilationist agenda until the federal government addressed the longstanding grievances of the tribes. the formative years of the 1950s The decade of the 1950s was undoubtedly the formative period in the thirty-two-year life of the commission, so it is important to take a closer look at the submission and hearing process at that time. Although Congress had created the commission in 1946, the enabling legislation gave Indian claimants up to five years to file their petitions. The government had sixty days to make an initial response. Tribal groups acted hesitantly at first, submitting only 261 claims by early 1951; but as the filing deadline drew close during the last six weeks of the year, they flooded the commission with another 530 for a total of 852. Subsequently, the commissioners consolidated the petitions into 360 dockets representing approximately 600 claims from across the country, but mostly from the American Midwest and West, which had been blanketed with Indian treaties in the nineteenth century. Being swamped by the claimants’ rush to deadline, the Justice Department asked for and received thousands of extensions. This meant that hearings did not commence until 1951, or five years after the passage of the Indian Claims Commission Act.5 As noted, Congress had originally wanted to minimize the involvement of lawyers in its Indian claims process in order to prevent the lengthy delays they would cause through the procedural manoeuvring they were accustomed to pursuing during adversarial litigation. The problem was that all the commissioners, who were initially appointed by President Harry Truman, were former lawyers and judges.6 Not surprisingly, they decided to conduct affairs as though they were presiding over a court. Accordingly, they never exercised their authority to undertake or commission research according to the terms of the act of 1946. The result was that lawyers for the plaintiffs and the government retained the experts. In the

United States Claims Commission | 31

early years of the claims commission, the plaintiffs’ experts presented their evidence to the commission orally, whereas the department’s experts did so in written reports and through testimony during hearings.7 Opposing counsel challenged the experts and their presentations through cross-examinations. Very quickly, hearings became highly adversarial and drawn-out affairs where experts were tag-teamed in cross-examination by several opposing lawyers. Once a battle of experts concluded, the rival legal teams submitted alternative “proposed findings of facts” to the commissioners, who subsequently made their decisions. Engaging in these and other litigation practices was one of the reasons why the affairs of the commission dragged on for decades beyond the five years that Congress had originally envisioned. The act creating the claims commission provided only for financial compensation; lost lands could not be reclaimed. Petitioners for financial compensation had to endure a complicated two-stage process. The first stage focused on deciding on the merits of a petition. The second stage involved estimating the market value of the lands in question at the time when dispossession took place. From this amount, the commission was supposed to deduct any “offsetting” payments that claimants had received from the federal government in previous years. The focus on financial compensation led the Justice Department to press its experts to identify territories that claimants’ ancestors had effectively and exclusively used and occupied for subsistence purposes. Department lawyer Ralph Barney reasoned that these were the only kinds of uses that could be evaluated properly for the purpose of paying compensation.8 The current American case law that guided the commission supported Barney’s position about the kinds of losses that Indian tribes could claim. The Supreme Court’s ruling in United States v. Santa Fe Railroad (1941) was particularly relevant for the claims commission.9 In this decision, the court held that Indian title exists where it is established, as a fact, that a tribe occupied the specific tract of land to the exclusion of others.10 The court did not say what kinds of evidence were needed to prove occupancy, but clearly the lands used for subsistence purposes, particularly places where tribes had made physical modifications when doing so, carried considerable

32 | Aboriginal Rights Claims and the Making and Remaking of History

2.1 | Portion of the plaintiffs’ exhibit Alk-28 showing a word list from the luiseño language. kroeber provided an array of historical and cultural data to support his thesis that the California indians had notions of ownership. ex-la no-ex o’–ex cham-ex pom-ex

earth, land my land your land our land their land

no-mix mix mix-kat mix-lac mix-anic

mine, it is mine to be, to own owner place where it is, belongs clothes, effects, belongings

tuki neup tukik

belong to it belongs to me

aw’ aw’-kat qal

live, inhabit, be in, be at inhabitant live, be in (plural)

yaw ay hoti

have, hold, inherit (one thing) have, hold (many) have, hold, take, possess (living things)

Note: x = hh, or Spanish j

weight given the Lockean underpinnings of property law in the United States. This was the notion that investments of labour on the land established property rights. Other types of evidence that could support title claims included tribal notions of trespass, words in various Indian languages connoting ownership, and the existence of socio-political systems that facilitated the defence of territory and property. Contrary evidence that could defeat title claims might be the absence of the above types of data, recent migrations, depopulation, overlapping tribal territories, and the presence of “noman’s lands,” which were places where no group seems to have held effective control when newcomers took possession. In these ways, the emphasis on paying compensation for lost territories skewed

United States Claims Commission | 33

claims research toward searching for information about past subsistence practices, about tenure schemes and supporting cultural institutions, and about conflicts over territory. the Justice department fights back Having lost its struggle to block the creation of the commission, the Justice Department chose to vigorously defend the government against all tribal claimants. It did so by massively funding claims research and by challenging every petition brought before the commission. To handle the claims commission cases, the department created the Indian Claims Section within its Lands Division. By 1953 the department had transferred Ralph Barney from the trial division, where he had been assistant chief, to the claims section as the director. He held this position for the duration of the commission’s existence from 1946 to 1978. In addition to providing continuity for the claims process, Barney played a central role in organizing and shaping the claims research for the department. The effort was massive, and it meant that he was very influential during the formative period in the development of the path-breaking interdisciplinary approach to American Indian history known as ethnohistory. Today, however, Barney remains a shadowy figure in the history of the claims commission and in the historiographies of ethnohistory. The latter mostly have featured the contributions made by the experts his department retained. Anthropologists Ralph Beals, Harold Driver, Walter Goldschmidt, Julian Steward, and Erminie Wheeler-Voegelin11 were among the most notable of them.12 As I will discuss, Barney worked especially closely with Steward and Wheeler-Voegelin. He both sought their advice and offered advice to them on a regular basis. Initially, the Justice Department hired individual experts on a case-by-case basis. Soon overwhelmed, it also funded major collaborative projects to assist the department in its work: these were the project on Great Lakes and Ohio Valley Ethnohistorical Research (gLover ), situated at Indiana University, and the project on Indians of California Claims Research, located at the University of California, Los Angeles.

34 | Aboriginal Rights Claims and the Making and Remaking of History

Undoubtedly, gLover is the better known of the two research teams because of the role that it played in the development of ethnohistory and because the journal Ethnohistory began under its umbrella. Although Erminie Wheeler-Voegelin is remembered as the director, it was the University of Wisconsin archaeologist David Baerreis who first proposed the gLover project. Baerreis did so after preparing a brief for the Justice Department for one of the early claims concerning the Potawatomi of Illinois.13 This experience was a mixed success, leading Baerreis to recommend to department officials that they persuade a number of universities in the region to take part in claims research, with one institution acting as coordinator and supervisor of the entire project. Such a team could deal with the large number of midwestern claims.14 Federal attorney Jay A. Jones welcomed Baerreis’s suggestion concerning university-based research projects. In April 1953 Jones, who would become a key player in this endeavour, promoted the idea in a department memo in which he noted that over one-quarter of all of the claims filed to date were from the Great Lakes area. Jones added that there were a number of overriding regional historical questions that arose from the Iroquois Wars of the seventeenth century and from the population disruptions that they had triggered. This topic, he observed, “had been of little interest to anthropologists in the past and studies have generally been directed to the movements of single groups for limited periods of history.” Jones thought that the department needed to commission “a broad history of the entire area” that used all available primary source material, with “the goal of eventually being able to draw a definitive picture of the period of the seventeenth to nineteenth centuries in the Great Lakes Region.”15 This order was an extraordinarily tall one. Jones acknowledged that the sweeping approach he was proposing would mark a departure from Justice Department practices, which until 1953 had involved hiring individual experts to focus on a single group and produce individual reports. Continuing in this fashion was simply too expensive. Besides, briefs produced by individual researchers were not entirely satisfactory. Scholars had relied too heavily on “known materials.” More original, archival-based research was clearly needed, but Jones understood that making sense

United States Claims Commission | 35

Justice Department Land Section (Indian claims) Director Ralph Barney

Great Lakes and Ohio Valley Ethnohistorical Research Project Director Erminie Wheeler-Voegelin Researchers: Emily Blasingham Harold Hickerson Jay Jones

California Indian claims Director Ralph Beals Key research associates: Harold Driver Walter Goldschmidt W.W. Will Julian Steward W. Duncan Strong Erminie Wheeler-Voegelin

Researchers for other claims (partial list only) Davide Baerrels Stuart Chalfant Julian Steward Mildred Wedel Gordon Wiley Erminie Wheeler-Voegelin

2.1 | Justice department research teams in the mid-1950s

of archival documents pertaining to any single tribe was a complex endeavour. It “necessarily involves a through knowledge and evaluation of the history and movements of all other tribes in the area.”16 Until the early 1950s, budget restrictions had precluded the type of long-term planning Jones proposed. Pressure was mounting, however, for the department to bring the midwestern cases to a swift resolution. Jones stressed that “this could not be done until the Department is in possession of the facts necessary to defend the government.” He argued that the integrated approach envisioned by Baerreis seemed to offer the best way to get the most amount of research done at the least cost. Since Baerreis had produced a good report for the department on the Potawatomi, Jones recommended that Baerreis be asked to submit a cost estimate and be invited to direct the project. The department accepted Jones’s recommendation, but, for unknown reasons, it seems that Baerreis never took on the position of director. Two months after Jones filed his recommendations, it was Erminie Wheeler-Voegelin’s husband, the linguist and Indiana University Anthropology Department chairman Carl F. Voegelin,

36 | Aboriginal Rights Claims and the Making and Remaking of History

who made a proposal for such a research project on her behalf.17 He proposed setting up a research unit at Indiana University that would collect published and unpublished materials, collate and analyze the materials collected pertaining to each of the midwestern plaintiff groups, and produce preliminary reports to be finalized and submitted in evidence before the commission by “competent” anthropologists. Voegelin proposed an initial budget of $100,000 per year, which in the early 1950s was an extraordinary amount of money to spend on American Indian history.18 Included in the cost was a budget to hire graduate students as research assistants for Wheeler-Voegelin and to cover the costs of office support. The acting assistant attorney general of the Lands Division, J. Edward Williams, recommended the Indiana University proposal to the attorney general, stressing that the project would emphasize title issues and be guided by the United States Supreme Court’s United States v. Santa Fe Railroad decision of 1941. According to Williams, this meant that Wheeler-Voegelin’s team would need to tackle five tasks: (1) identify the area each claimant actually occupied when dispossession took place rather than the area claimed, (2) determine what groups actually signed treaties,19 (3) identify commonly used areas to eliminate them as claimable areas according to the Santa Fe ruling, (4) identify areas that were not effectively occupied by any group, and (5) determine whether the Iroquois had any residual rights in the Great Lakes area that could affect other tribal claimants. Immediately after gLover ’s creation, Jay A. Jones left the Justice Department to join the gLover team at Indiana University. Although the scope of the project in Indian history was precedent-setting, and despite the fact that Wheeler-Voegelin had the services of Jones and two excellent graduate student research assistants, Harold Hickerson and Emily Blasingham, the staffing proved insufficient to carry out research and write reports at the rate that the department had wanted. During gLover ’s first year, WheelerVoegelin’s team did not produce a single report; after two years, they had completed only one. The reason for this slow beginning was that no one on Wheeler-Voegelin’s team had prior experience undertaking archival research. Thus they grossly underestimated

United States Claims Commission | 37

how time-consuming it would be. Yet, by July 1955, less than two years after the project had began, Wheeler-Voegelin reported that the basic document collecting was nearly completed, and she optimistically expected that she and her researchers could produce seven to nine reports a year thereafter.20 Her optimism, however, proved to be unfounded. Unrealistic timelines plagued the gLover team. The claims commission hearings were often lengthy, which meant that WheelerVoegelin and her colleagues lacked the time to present and defend their completed reports before the commission and, at the same time, continue with their research and report writing at the pace that the Justice Department required. Making matters worse, WheelerVoegelin was herself involved as an expert in claims concerning the Pacific Northwest and California.21 These competing demands on Wheeler-Voegelin’s time meant that additional scholars had to be retained to present some of the gLover reports as co-authors. This need, in turn, raised questions about the authenticity of their research and led to authorship issues before the commission. WheelerVoegelin and her team were clearly feeling their way through a maze of findings and demands for ever more quality reports. Wheeler-Voegelin took two approaches to the co-authorship issue. The first solution involved having the Justice Department hire anthropologists to present gLover reports as though they had been the primary, or even solo, researcher and author. This led to at least one very embarrassing incident that deeply troubled Barney. Based on the recommendation of Wheeler-Voegelin, the Justice Department hired an archaeologist named David Stout to present a gLover report for the Sac and Fox claim (docket 83), concerning western and northern Illinois. Stout was an associate professor of anthropology at Iowa State University and an expert on the Kuna Indians of Panama, who were not American Indians of the Midwest.22 He apparently had met Wheeler-Voegelin only briefly to discuss the submission while it was in draft; he had not taken part in either the research or the writing of it.23 Worse, during cross-examination, Stout admitted he had not received the report until she handed it to him on a back staircase of his hotel two days before the hearing. Initially, Stout did not seem concerned about this late transmission,

2.2 | royce land cession areas for illinois. united states indian Claims Commission docket 83 concerned royce Area 50 to the west and northwest of the illinois river.

United States Claims Commission | 39

nor was he worried about the questions of authorship that would likely arise before the commission. All this inside information is clear from a letter he wrote to Wheeler-Voegelin while presenting his direct evidence before the commission. In it Stout informed her that his testimony was going well and that the government lawyers had said “his” report was one of the best ever produced. Stout added, “for my part, I must say that I get infinite comfort from having in my hands so excellent a piece of research as you have produced. It couldn’t be better.”24 During cross-examination, however, things went very badly. The Indians’ lawyers, who Stout derided as “real sons of bitches and undiluted bastards, as well as hypocrites and sycophants,” sensed he had not written the report and forced him to admit it in court, thereby throwing doubt on his credibility and that of the gLover report.25 The second approach to the authorship issue involved sending a selection of the documents that Wheeler-Voegelin’s team had collected to the scholar who had agreed to present a gLover report as one of its co-authors. It remains unclear, however, how much actual collaboration of the hired co-authors actually took place on these occasions. For example, David Baerreis co-authored with WheelerVoegelin and one of her research associates, Remedios WycocoMoore, two reports for several consolidated dockets concerning northeastern Illinois.26 In a letter to Wheeler-Voegelin about the report dated 18 November 1955, Baerreis essentially admitted that he had had very little prior involvement with the research or writing, other than to skim a few documents, and revealed that he did not know one of his co-authors. Baerreis wrote to Wheeler-Voegelin, “the box of verifaxed material arrived safely and will keep me busy a few hours to read through it so that I can in honesty say I have read the original materials.” He then asked, “can you give me some of the background of Dr. Moore who participates as co-author of the report? I believe you did tell me this but it has slipped from my mind. I do not know whether questions will be raised about qualifications of the team of workers but, if so, I should be prepared.”27 After he had been savaged during cross-examination for not having actually researched and written the report that he presented to the commission regarding the Sac and Fox claim, Stout wrote

40 | Aboriginal Rights Claims and the Making and Remaking of History

to Barney and made several recommendations aimed at preventing such embarrassments from ever happening again. Stout stated that a longer period of consultation between Justice Department witnesses and the authors of reports had to be provided, that at least ten days were needed so that the witness, as he put it, “will be in a more defensible position when queried by the plaintiff ’s lawyers in the hearing concerning the amount of time spent on preparing the report.”28 Stout additionally suggested to Barney that reports should include an index of the tribal names and dates mentioned and should provide a detailed map. He added that in the project’s headquarters in Bloomington, the research team should compile a map of all overlapping claims because the existence of overlapping claims had become a major government argument in defence.29 After receiving this letter and one from Wheeler-Voegelin about Stout’s experience, Barney replied that the cross-examination of Stout in the Sac and Fox case had unquestionably risked the outcome of the proceedings and had potentially undermined the possibility in the future of finding experts who were willing and able to give testimony on behalf of the government in the remaining cases. Barney wanted things done differently thereafter. Experts were to be, and seen to be, fully involved with the reports they presented to the commission. After noting that his department had made provisions to allow for retaining experts on the Midwest cases, in addition to those on the gLover staff, Barney stated that this provision had been made “in the expectation that the selected and employed expert would be in a position to collaborate in the preparation of the report.” He continued, “I appreciate that it would not be practicable for the ‘expert’ to come to Bloomington, except in the summer, but I do not see why that it [sic] necessary. Why could not the material be sent to the witness … for his consideration long before any final draft was written?” For Barney, if an expert was chosen far enough in advance, such as when documents were first discovered, that expert “would be in a position to say that he was employed by the Department many months prior to his testimony; that he had examined the ethnographic and historical material on the subject; had made (or at least concurred in) the selection of the material to be introduced in evidence; [and] had written or at least collaborated

United States Claims Commission | 41

in the preparation of the report from its very inception.”30 At the time Barney gave this strong advice to Wheeler-Voegelin, a formidable backlog of some thirty to forty reports was still pending for the projects that the Justice Department had assigned to the gLover team.31 However, getting the additional experts that the Justice Department needed to present reports was problematic. From the outset, the claims commission hearings had been highly adversarial. This adversarial atmosphere had the effect of dividing the small anthropological community into two hostile camps, one working for the Indian claimants and the other for the government.32 Many potential anthropological experts were simply unwilling to join in the fray. Northwest Coast anthropologist Frederica de Laguna’s refusal to be an expert witness for the federal government in cases involving the Tlingit and Haida of Alaska is an excellent case in point. De Laguna was an established academic expert on these people. In a February 1956 letter to the assistant attorney general for the Lands Division, de Laguna declined the government’s offer by voicing what many other anthropologists were feeling: “I have moral scruples against appearing either for or against the Indians, or for or against the government, since what knowledge I might have has been acquired through my researches as a scientist and should not, I believe, be used to further one party against another.”33 De Laguna’s letter infuriated and puzzled Barney as a lawyer. He condemned this line of thinking among anthropologists. In March 1956 he wrote a lengthy letter to Wheeler-Voegelin discussing de Laguna’s response: “you will remember that when I was in Bloomington we discussed Frederica de Laguna as one possible witness in the Tlingit and Haida case. Enclosed is a copy of her reply. This attitude is completely incomprehensible to me. Just why knowledge gained through ‘researches as a scientist’ should not be used in litigation where there is no attempt to dictate or even change or slant the results of such research is more than I can fathom.” Barney also expressed his personal feelings: “the attitude of higher morality is what really galls me … If I were in private practice I would probably write to her and suggest that I doubted if Julian Steward, Ralph Beals, Duncan Strong, Erminie Voegelin, Walter Goldschmidt, and

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a host of others whose reputation[s] as scientist[s] were as good if not better than hers had not felt that they were prostituting them selves by advising the courts what they, as scientist[s], had discovered as a result of their researches.” Barney even advised WheelerVoegelin to confront de Laguna on this score at an upcoming professional meeting.34 When venting his anger in the letter, Barney raised issues that are still with us. Does litigation (or various claims processes) taint the research it generates? Should scholars make available to either parties of a dispute the knowledge that they have gained through the close ties they have established with aboriginal claimants or defendants? And here in Barney’s letter we also see the beginnings of the great rift in the American anthropological community created by the claims commission process as early as the mid-1950s. Almost a year earlier, Barney had already written Julian Steward on the subject of securing experts after yet another failed attempt. Shortly after the meeting of anthropologists in Bloomington that had been called to discuss the contentious issues that claims commission cases were raising, Barney reported that an unnamed witness his department had lined up for its defence against the Sac, Fox, and Omaha petition had backed out. According to Barney, the would-be witness had been intimidated at the Bloomington event by fellow anthropologists. Barney complained to Steward, “the thing which disturbs me is that it is becoming increasingly difficult for the government to get anthropologists to testify.” He added, “I think that you know better perhaps than anyone else that all we have ever asked you to do was to tell the facts as you found them to be and I am completely unable to understand why anyone would consider that by doing so he was ‘putting his professional reputation in jeopardy.’”35 Steward replied sympathetically to Barney, saying that he thought the harassment of government witnesses at the meeting was very troubling. Steward added that he had received letters from several government witnesses, all of whom claimed that fellow anthropologists had harassed them. He mentioned that Erminie Wheeler-Voegelin and archaeologist Mildred Wedel were among the government’s experts who had been subject to harassment.36

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the Petitioners’ Approach If the Justice Department, acting on behalf of the federal government, found itself in difficulty preparing and presenting reports, the petitioners met with even more challenges. Whereas the Justice Department had the financial and manpower resources to develop and coordinate long-term regional research projects as the representative of the sole defendant – the United States government – Indian tribes lacked these resources. This was because tribes usually acted individually or in small groups. Many of their communities were impoverished. Consequently, their financial resources were very limited at best. This meant that in the early 1950s, which is the period I am highlighting here, tribes retained their experts on contingency fee bases. Experts undertook research and provided testimony for claimants on the understanding that some or all of their expenses and fees would be paid if their clients succeeded. For example, the lawyers representing the Indians of California retained Alfred Kroeber at the rate of either $50 per day or $100 per day if the petitioners were successful.37 Department experts, in contrast, were paid whether the government won or lost. The problem for plaintiffs’ experts was that their contracts raised issues of conflicts of interest given that, on the surface, they had a financial interest in the outcome of their clients’ petitions.38 The existence of hundreds of petitioners and their limited means meant that the tribes were usually not able to mount large research programs to offset those of the Justice Department. In at least one instance, however, law firms representing various tribes in a region did combine resources. This occurrence involved the Joint Efforts Group, which was a collaborative effort comprised of attorneys representing the Six Nations, Delaware, Shawnee, Illinois, Miami, Sac and Fox, Iowa, Kickapoo, Potawatomi, and Ottawa. On behalf of this collective, the legendary lawyer and legal scholar Felix Cohen, who had authored the foundational Handbook of American Indian Law (1941) and had helped to draft the Indian Claims Commission Act, approached social anthropologist Anthony F.C. Wallace “to make studies, with a view to ultimate testimony, of the several

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tribes of the Old Northwest Territory and adjacent parts.”39 In February 1975 Wallace produced the report Cohen requested under the title “American Indian Land Tenure and Political Organization in the Northeastern Agricultural Area, 1650–1830.”40 He presented aspects of this report before the commission as an expert for tribal claimants in the Iowa case discussed below. opposing theoretical Perspectives and historical interpretations Given the emphasis on exclusive use and occupancy of specific territories and given the tests that had to be met to establish or defeat a claim on that basis, the research and interpretations that experts put forward for the opposing parties to a dispute were predictable. Those appearing for plaintiffs tended to argue that Indian groups customarily lived in contiguously bounded territories rather than ones that overlapped. Few, if any, “no-man’s lands” existed according to this view of the aboriginal world. Such a perspective was in keeping with the culture area approach to culture-environment relations that held sway in Americanist anthropology during the first half of the twentieth century. From the early twentieth century, it had been customary for anthropologists to divide North America into vast cultural areas by taking into account key elements of regional cultures, most notably language, kinship and social organization, and material culture, and by considering the regional environments of the continent, which were defined primarily in terms of climate, vegetation, and landforms.41 This approach, which still has a lingering influence, portrayed culture-environment relationships on a macro scale. “Tribal territories” were one of the key elements that anthropologists considered when mapping their culture areas. The long-held assumption was that territorial boundaries were contiguous.42 Although scholars paid attention to primary subsistence activities and the material culture artifacts associated with them, they paid comparatively little attention to economic systems and their related tenure regimes prior to the establishment of the claims commission. By the early 1950s a relatively new alternative that offered a more dynamic approach to American Indian culture-environment ques-

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tions appeared. This was cultural ecology, which at the time was also described as anthropogeography and ecological anthropology.43 Ralph Linton and Julian Steward had pioneered it in separate publications in 1936.44 Their perspective departed from the culture area model primarily by emphasizing subsistence activities and technologies in relation to local environmental niches. They imagined that “primitive people” obtained most of their subsistence needs from a small portion of their traditional territory, usually places (or niches) near their primary habitat sites. Linton and Steward assumed that hunter-gatherers would have visited other portions of their traditional territories infrequently. According to this conceptual model, tribal boundaries would not have been sharply defined and likely overlapped. Needless to say, this conceptual model was ideally suited for the government’s purpose because it held the prospect of undermining petitioners’ claims that they had exclusively used and occupied all of the territories they claimed. For this reason, the department encouraged all of its experts to adopt and elaborate the cultural ecology approach in their claims research. Julian Steward did so for the government against claimants in California (dockets 31 and 37) and in the Great Basin claims;45 Stewart Chalfant deployed it for the department in opposition to the Coeur d’Alene (docket 81) of the Pacific Northwest;46 Harold Hickerson employed it in the Chippewa cases of the Upper Great Lakes region; and Ralph Beals and his team of experts, who included Steward, used it in building a case against the California Indians (dockets 31 and 37).47 However, the specific application of the cultural ecology model to claims research by the government’s experts was not uniform. Chalfant, for example, imagined that land use intensity diminished away from core habitation-harvesting areas, which meant that the borders between groups would have been indistinct and that their territories would have overlapped and been lightly utilized.48 Steward, who was very interested in explaining regional variations in cultural evolution in cultural ecological terms, contended that “primitive” hunter-gatherers who lived in arid environments in small, scattered groups did not develop concepts of ownership because they had no reason to do so. For Steward, such notions, if they were present, were likely learned through interactions with Euro-Americans. Beals and

2.3 | harold hickerson’s map for the Justice department regarding the ojibwa claim concerning royce Area 242 of minnesota and Wisconsin. he applied the cultural ecology approach to identify conflict and “no-man’s land” zones along tribal borders.

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his colleagues, who had to deal with most of California, divided the state into ecological-economic zones of varying land use intensity. Hickerson, in contrast, focused on what he saw as conflict zones, especially those separating the southwestern Chippewa from their Siouan-speaking neighbours.49 In these ways, research for the Justice Department stimulated and promoted a materialistic cultural ecology approach to ethnohistory. As intended, this perspective also gave department briefs a scientific aura. Most important, in terms of the claims process and the federal defendant, the culture ecology approach provided a rationale to argue that the government was not liable to pay compensation for large portions of the former American Indian estate on the basis that many areas had presumably been of little economic value to the tribes at the time of dispossession, or that they had not been used and occupied by one group to exclusion of all others, or that they were vacant. time immemorial or a “reasonable length of time”? If use and occupancy proved to be one of the critical historical questions tribal claims raised, another concerned the length of time claimants’ ancestors were required to have exclusively used and occupied a clearly defined territory prior to its alienation to the United States. There was considerable confusion about this issue in the early 1950s, which meant that experts were uncertain what the exact temporal parameters of their research should be. This confusion is evident from the correspondence between Ralph Barney and Erminie Wheeler-Voegelin. The gLover project had begun in 1953, and for the first three years, Wheeler-Voegelin had operated on the assumption that Indian claimants had to prove “aboriginal occupancy” or “immemorial possession” – time beyond memory – to be eligible to receive compensation for lands lost. In August 1956 Barney informed Wheeler-Voegelin that she was “under a complete misapprehension” about this issue. He noted that these two terms were not mentioned in the Claims Commission Act and that the United States Federal Court of Claims had never ruled that tribal claimants had to meet such a test. Barney added that if that were the case, few tribes, if any, would be successful in their petitions. He

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told Wheeler-Voegelin that her confusion probably had arisen from the frequently very loose use of these terms by the claims commission and the Federal Court of Claims. According to Barney, neither the commission nor the court had used the terms in a “critical sense” before 1956.50 Barney informed Wheeler-Voegelin that the United States Federal Court of Claims only made the definitive statement on this issue in its judgment regarding the Snake, or Paiute, Indians’ appeal of the claims commission decision regarding their claim (docket 17). In its ruling, the court held that “the issue is whether the appellants exclusively used and occupied … the land in question … not only at the time of the alleged taking or deprivation of use, but for a long time prior thereto.” For Barney, this vague idea gave researchers little temporal guidance. So he advised the gLover team that, for the Justice Department, it was critical to determine who occupied a given tract of land at the time the United States established sovereignty. Two additional questions then had to be addressed. First, did the claimants have exclusive occupancy “for some considerable period of time” before the date of United States sovereignty? Second, did their exclusive occupancy continue until “the alleged taking of the land”? In summing up his letter to Wheeler-Voegelin, Barney emphasized that “there is one criterion which should always be kept in mind [when gathering evidence], and if it is, much of the difficulty would, I think, disappear; that is, will the evidence under consideration assist the Commission in answering the question: ‘were these Indians in exclusive possession of a definable area of land at the time of cession (or acquisition) and for a long time prior there to?’”51 Answering this basic question about the length of occupancy would become thereafter key to the work of all involved in the claims process. It meant that anthropologists acting as experts in claims commission cases now faced two major new challenges: (1) for the first time, they had to focus a substantial portion of their research effort on archival records pertaining to the postcontact period of American Indian history, and (2) they had to emphasize tribal land use practices.

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Case studies The Iowa Claims of the Early 1950s and Questions of Scholarly Authority

The midwestern claims concerned an area of the country blanketed with land surrender treaties that mostly dated to the first half of the nineteenth century. In these claims, experts faced a regional pretreaty era history that had involved profound population dislocations due to sweeping intertribal conflicts in the face of early colonial settlement. These clashes began with the Iroquois Wars of the sixteenth and seventeenth centuries, which affected the eastern Great Lakes and Illinois country. Afterward, other intertribal conflicts continued into the treaty-making era of the early nineteenth century. In part, these battles were one of the many consequences of ongoing indirect and direct economic intercourse with EuroAmerican fur traders, who had introduced firearms to the region. All of this meant that the population map of the region and the cultures, especially the economies of the various tribes, had changed substantially before land alienations through treaties began. Claims researchers had to pay particular attention to the ways that land use practices and resource allocation schemes had changed. A central issue of concern was whether contact with these newcomers had led Indians to develop distinct notions of boundaries and trespass or, perhaps, had even blurred those notions.52 The claim of the Iowa tribes, which had been moved onto reserves in Kansas, Nebraska, and Oklahoma in the nineteenth century,53 illuminates how competing theories played out before the commission concerning the impacts that the fur trade and changing regional demographics had on tribal occupancy and notions of ownership. Claims dockets were framed in reference to land cessions that staff ethnologist Charles C. Royce had mapped for the Smithsonian Institution at the end of the nineteenth century.54 The petition concerned lands that were located in the state of Iowa (Royce land cessions 175, 244, and 262). Originally, they had been the traditional territories of the Omaha but were subsequently encroached upon by the Iowa, Fox, Sac, and Sioux. The government’s

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2.4 | royce land cession areas for iowa

key expert was the young archaeologist Mildred Wedel.55 The Justice Department chose her because she had had just completed a master of arts degree on the archaeology of Iowa.56 As was becoming a common practice in archaeological research, she used available documentary records to help interpret the archaeological record pertaining to the period on the eve of direct European contact. The trouble for Wedel, who clearly was a well-trained local expert, was that she was put in the extremely challenging and very uncomfortable position of having to face off against University of Pennsylvania social anthropologist Anthony F.C. Wallace and two cultural-social anthropologists, Nancy Lurie and Irving Hallowell, who supported Wallace’s testimony. At the time, Hallowell, who was Wallace’s doctorate supervisor, was one of the leading figures in the field of American Indian anthropology, being a past president of the American Anthropological Association. In contrast to the novice

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researcher Wedel, however, none of these more senior scholars had expertise on Iowa prior to the claim. In this way, the Iowa claim featured opposing experts whose voices had very disparate claims to scholarly authority. This varied standing among experts continues to be an ongoing aspect of claims disputed before commissions, tribunals, and the courts today. In the Iowa claims, the basic problem confronting the opposing experts concerned determining how much of the territory of the claim, if any, the various tribes had occupied and used exclusively before they ceded them to the Unites States in the 1830s and 1840s. Wedel provoked a major controversy when she challenged one of the maps Wallace had submitted to the commission as evidence in support of the plaintiffs. Through the use of dashed lines on his exhibit map, Wallace purported to show how the tribes formerly occupying Royce cession 262 would have divided the lands among themselves in 1825 if they had held a conference for that purpose.57 Wedel strongly objected to the map because no such conference had ever taken place. As an archaeologist, she was accustomed to collecting data and drawing inferences from it; she testified that she had found no documentary evidence that led her to conclude that the Sac or Fox would have chosen the boundaries depicted by Wallace. Provocatively, she argued further that it was unlikely Wallace would ever present his map to a scholarly meeting – because it was pure fiction. Wedel cast further doubt on Wallace’s claims by arguing the impossibility of making meaningful sweeping generalizations about Indian land tenure in the claim area because it had included both “nomadic” plains tribes with fluid and overlapping boundaries and “more sedentary” groups with villages and gardens.58 In what would become the adversarial practice of anthropological experts that marked the history of the claims commission, and ultimately contributed to the fracturing of the field in postwar America, Wallace vigorously defended himself and assailed Wedel. He justified introducing the map showing the boundary lines that the hypothetical Indian conference would have produced by arguing that such a gathering clearly had been anticipated in the treaty that local tribes had signed with the United States in 1825. Wallace then tackled some fundamental assumptions about the field,

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making the novel, if controversial, argument that it was an accepted practice in applied anthropology to make predictions, noting that he had himself written on this issue in a publication of the respected Bureau of American Ethnology, where he had predicted the likely outcomes of new government Indian policies on reservations. For Wallace, it was just as reasonable, or scientific, to make predictions backward in time.59 In support of Wallace, Nancy Lurie argued that this type of “what if ” history was acceptable as long as it was based on appropriate theoretical models.60 In his testimony, Irving Hallowell went even further on behalf of Wallace’s “thesis” about what was accepted anthropological practice: “if Dr. Wallace had brought all of this material together, not with reference to this case, but as an exercise in methodology, it seems to me that if he had presented this at a meeting of our American Anthropological Association that everyone would consider this to be an extremely brilliant performance.”61 This episode involving Wallace and his supporters demonstrates just how far claims research was forcing anthropologists to push the methodological boundaries of interdisciplinary research into American Indian history of the day. Wallace also put forward an elegant applied social science defence of his hypothetical map. He stated that the map was a graphic portrayal of the conclusions that he had reached on the question of local tribal boundaries after collecting pertinent documents and analyzing them according to what he argued were the “standard accepted principles of social, political organization and custom and usage as regards land tenure among the tribes.”62 Although Wallace conceded that there was “not as much in the way of general publication on the Indian principles of land tenure as one would wish,” he claimed that enough had been written on the subject to make crucial generalizations possible. After a lengthy discourse about the various ways anthropologists used the terms “tribe,” “band,” “community,” and “confederacies” in the Plains, Eastern Woodland, and Subarctic cultural areas, Wallace focused on the relevance of these terms to the tenure issues at hand. He declared that it was widely accepted that throughout the Northeastern Woodlands cultural area, “the principle of land tenure was that the tribe was the proprietor and owner of a definable tract of country to the exclusion of

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other tribes.”63 When a claims commissioner challenged him about the applicability of this sweeping generalization to the Iowa case, Wallace replied, “my assertion would be that this concept was general within this whole area and if it did not apply to this particular territory, it would be extremely surprising. It would be an anomaly and it would be necessary to have evidence to show that it did not apply.”64 In other words, Wallace thought that general assumptions about Indian land tenure could be applied as facts to a specific situation. Wedel, of course, held the opposite perspective. For her, research on specific locales could challenge those assumptions, or at least reveal exceptional cases where they did not apply. The lawyers representing the Sac and Fox claimants then called Hallowell to the stand not only to support Wallace’s methods and theoretical premises but also to comment on the disagreement between Wallace and Wedel about the presence or absence of tribal boundaries in the claim area. Hallowell, who had not undertaken any research of his own for the claim, replied in great generalities: “I must … confess that I have been somewhat surprised at the nature of the debate about this since I would assume as an anthropologist that not only do we accept the notion that all of the American Indians would have tribal boundaries, but that people all over the world, any human group, whether in Africa, Oceania, even in Australia would have something of this sort.”65 Hallowell added, “as a general concept I think that we have always assumed in anthropology that such boundaries actually did exist.” In response to the question of whether he thought tribal territories ever overlapped, as Wedel had argued, Hallowell answered, “I never heard of this [idea] until I read the testimony.”66 Finally, when asked whether either the Sac or the Fox were a “nomadic Indian tribe,” he responded in the negative: “they are not considered nomadic primarily because they belong to this Eastern Woodlands Region or cultural area, in which there are no nomadic tribes.”67 In other words, Hallowell was predisposed to accept completely Wallace’s interpretations because they accorded with accepted anthropological wisdom at the time. Wallace’s and Hallowell’s arguments notwithstanding, there was a problem with Wallace’s position. Wedel had presented documentary evidence that cast doubt on the applicability of this longstand-

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ing theoretical premise that all American Indian tribes lived in contiguously bounded territories, a premise that she pointed out was not based on substantive archaeological or historical research. On the contrary, Wedel stressed that there were documentary records of early-nineteenth-century Euro-American observers who had stated that some of the local tribes did not claim or use any definable tracts of country and also that the territories of other tribes overlapped. Wallace dismissed her evidence with the counterargument that ongoing warfare and movement had temporarily blurred the boundary lines. In addition, he advanced the novel and interesting thesis that Indian leaders had learned that “tribal exclusiveness” made them more vulnerable to white efforts to take their lands. Wallace contended that the history of other areas had shown that Indians formed alliances and confederacies that blurred tribal boundary lines and precluded member tribes from making surrenders without the consent of their neighbours.68 Finally, he claimed that by the early nineteenth century, it had become a common defensive practice of Indians to obfuscate their boundaries when talking to land-hungry whites. In other words, Wallace argued that the documentary record could not be taken literally: it was “not plain on its face,” to use a lawyer’s expression. Wallace believed it had to be filtered through particular theoretical lenses. He had provided a new and thought-provoking one. Although the adversarial setting of the hearing drove Wedel and Wallace to extreme positions, it is clear also that their clash resulted partly from the disparate ways that they approached the documentary sources. Wedel worked inductively, emphasizing archaeological data and ethnographic descriptions contained in documentary records,69 whereas Wallace (and Hallowell) worked deductively, accentuating the importance of current anthropological theory, introducing the scientific legitimacy of “applied anthropology,” and questioning the bias of the documentary records. The confrontation of experts also serves to highlight an issue that remains with us today, namely the problematic relationship that exists between facts and theory. The distinction between the two continues to be blurred in claims litigation research and testimony.

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Also, because the claims process promotes new research, it often yields new data that challenge established theoretical constructs. In this way, claims research often undermines existing academic consensuses. Finally, the Iowa claims illustrated the problem that arises when experts of disparate scholarly authority are involved in the presentation of evidence. The California Indian Claims: A Battle of Perspectives

In contrast to the midwestern claims, those of the California Indians of the mid-1950s (dockets 31 and 37) concerned an area where land alienations had taken place without ratified treaty surrenders. The California claims involved two groups of petitioners who were descendants of numerous historical tribes. This fact meant that neither group had links to an “identifiable historical group” according to the terms of the Indian Claims Commission Act. Furthermore, few of the claimants had sustained contact with even a fraction of their ancestral lands. Nonetheless, the commissioners allowed claimants to go forward collectively in two groups as the Indians of California. The commissioners allowed them to do so for the purpose of expediting proceedings. Otherwise, the commission would have had to deal with many groups represented by competing law firms. The two combined dockets covered a substantial part of the state. Alfred Kroeber headed up the team of experts who appeared on behalf of the plaintiffs. He persuaded archaeologist Robert Heizer to join him. Heizer was his colleague at the University of California, Berkeley and at the time was the leading expert on the archaeology of the state. Omer Stewart, who was an undergraduate student of Julian Steward and had completed a doctorate with Kroeber, also became a key player. When he began his involvement in 1955, Kroeber was already seventy-nine years old and previously had suffered a heart attack. In the event that he suffered a recurrence, or other health problems, Stewart was to take over as the primary witness. Already, Stewart was a seasoned expert, having been involved in numerous claims cases on behalf of various tribes, including those in the Midwest.

2.5. | land cessions of California

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Kroeber and his team contended that California Indians had been divided into hundreds of small, “identifiable” groups living in contiguously bounded territories prior to being alienated from their land. Unlike Wallace, they did not advance a theoretical model to justify this idea of bounded territories. Rather, they presented an array of ethnographic and historical evidence, which they organized in terms of the cultural areas. This was understandable given that Kroeber had played a major role in promoting and standardizing this perspective in the anthropology of American Indians during the first half of the century.70 Of particular relevance, he had used this perspective as the organizational framework for his 1925 classic text, the Handbook of the Indians of California. In this work, Kroeber had divided aboriginal California into regions largely based on linguistic criteria and cultural element data, which he and his students had collected on countless field surveys over the previous half-century. When preparing for his appearance, and during his testimony before the commission, Kroeber noted that the political anthropology of North America was not a well-developed field. This meant that he had to confront basic problems of terminology when presenting his evidence. Similar to Wallace, Kroeber emphasized that anthropologists had not ascribed common meanings to such crucial socio-political terms as “band,” “tribe,” and “nation.” Kroeber was particularly troubled by the term “band” because scholars commonly applied it to small politically independent groups. These small units were typical of most of California. He noted that it was highly prejudicial to apply the label “band” to the socio-political groupings of his clients’ ancestors because it implied that they had lived nomadic lifestyles and had not maintained close ties to particular tracts of land. On the other hand, Kroeber also did not think that the word “tribe” was applicable to California Indian groups either because it signified a large politically autonomous group. Faced with these conceptual-terminological problems, Kroeber coined the term “triblet” to describe the identifiable ancestral groups of the petitioners in dockets 31 and 37.71 This was yet another example of an anthropological expert challenging the way his colleagues conceptualized native cultures. Kroeber’s concept of the triblet, however, never gained acceptance beyond the hearing

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room. Nonetheless, his objection to the use of the term “band” to describe indigenous societies in claims hearings was valid. In raising this concern, Kroeber pointed to a related issue that remains problematic: cultural evolutionary schemes are generally prejudicial to indigenous claimants, such as most of those of California, whose economies had been oriented to fishing, hunting, and gathering. Kroeber provided a visual framework for his presentation and his team members by preparing two cultural/triblet territory maps that drew heavily on his own Handbook (exhibits aLK -1 and aLK 2).72 On these maps, Kroeber portrayed triblet boundaries as having been contiguous. As noted, this had been a standard approach in anthropology since the beginning of the twentieth century.73 Besides creating the visual impression that there were no vacant lands in aboriginal California, Kroeber’s maps masked differences in the intensity of subsistence land use. Kroeber’s former students, who comprised most of the Justice Department’s team, challenged their mentor’s evidence. One of them, Ralph Beals, who at the time was chair of the Anthropology Department at the University of California, Los Angeles, led the group. It was Kroeber who had recommended Beals to the Justice Department. Julian Steward, Harold Driver, Walter Goldschmidt, and Erminie Wheeler-Voegelin were among Kroeber’s other noteworthy former students.74 At the outset, Beals and Ralph Barney had profound disagreements about the nature of the report to be submitted to the commission in the government’s defence. Beals’s team wanted to produce an all-encompassing human ecology of the state. Barney objected, pointing out that the research was for claims purposes rather than an academic project. In May 1955 he wrote to Wheeler-Voegelin and Jay A. Jones at Indiana University to express his frustrations. Barney complained that he “spent all day with Beals and his principal asst. Joseph Hester, and am going back tomorrow, and Friday, and Saturday, and Sunday if necessary to try to get across the idea that this is not a learned anthropological report on the Calif. Indians intended to make unnecessary any and all further anthropological reports on the Indians of Cal., but was intended to present the data on which the I.C.C. could draw a valid conclusion as to the ‘use and occupancy’ of the area of the case.”75 At Ralph

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Barney’s insistence, Beals’s team took an economic, or utilitarian, approach that focused on land use intensity from an ecological perspective. From the outset, however, Beals understood that his team faced a major challenge in advancing this perspective because it represented a major departure from the culture area approach to California Indian history that Kroeber had already popularized in the field.76 Drawing on various approaches to cultural ecology, Beals and his fellow experts on the government side proposed that there had been six basic land use systems, or cultural “eco-types,” in aboriginal California before 1848, when the United States gained sovereignty over the territory. They defined these eco-types in terms of environmental zones, primary subsistence resources, and economic practices.77 Beals’s team calculated the total portion of the environment that Indians inhabiting a given eco-type would have needed to be self-sustaining. For the Justice Department, this figure represented the portion of California that the claimants’ ancestors had used with sufficient intensity to legitimate their claim based on effective use and occupancy before 1848. In aggregate, this amounted to a fraction (or 20 per cent) of the area under claim. The statistical work utilized by Beals’s colleagues to reach their determination made their approach seem to be more scientific than that of Kroeber. To support their main argument, Beals and his colleagues, especially Steward, also asserted that the more “primitive groups” (such as the desert collectors) of eastern California did not have any notions of ownership. Whereas the government experts regarded these groups as having been too low on the evolutionary scale to have developed any ownership regimes, they argued conversely that in the northwestern part of the state, salmon fishers had advanced to the point that they had developed private ownership regimes. It was Walter Goldschmidt who put forward this argument, which the government wanted to advance because the Claims Commission Act recognized only communal title. Finally, Beals and his colleagues argued that postcontact depopulation in California meant that the Indians had ceased to effectively use and occupy large portions of the state before they were dispossessed by the gold rushes in the territory.

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2.2 | Partial list of Alfred kroeber’s questions for ralph beals respecting the California indian claims. the questions here were intended to force beals to admit that cultural ecology was not a new perspective but one that kroeber had already applied. Q

Are you familiar with Defendant’s Exhibit 67, a book by A.L. Kroeber titled Cultural and Natural Areas of Native North America (first published in 1939 and carrying the date of 1953 for the third printing)? Submitted in 1931.

Q

Is it true, Dr. Beals, that although the name ecology does not occur in the title of the book, would you characterize this book as an example of the ecological approach to the study of American Indians?

Q

Is it not true that Dr. Kroeber reproduced in this book a map showing the physiographic areas of California?

Q

Is it not true that Kroeber reproduced in this book: a. A map of Russell’s climates of California, the map essentially as Def. Ex. 155? b. Four maps representing four different authorities’ classifications of vegetation? A. Yes. c. A map showing precipitation and evaporation ratio of California? d. A map showing distribution of creosote bush and sagebrush in California? A. Yes. e. A Map showing distribution of chaparall in California? A. Yes.

Q.

Might we safely, Dr. Beals, characterize the publication by Dr. Kroeber referred to as Def. Ex. 67 as an ecological monograph?

On the witness stand, particularly when giving rebuttal testimony during the closing phases of the hearings, Kroeber assailed his former students’ basic approach, even though it was almost identical to the one he had proposed to the Justice Department in 1952, when officials approached him before they turned to Beals.78 One aspect of the defence that particularly irked Kroeber was the implication on the part of the government’s experts that their approach to the study of culture-environment relations, which they branded as cultural ecology, was a new way of approaching American Indian cultural history. Kroeber maintained that cultural ecology (or ecological anthropology) had always been an aspect of his own work

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even though he never described it in those terms. Of more immediate relevance, he pointed out that primate and human ecology studies, which were in their infancy at the time, had demonstrated that the notion of “territoriality” (or a sense of territorial ownership) was a universal trait among humans and primates.79 Furthermore, Kroeber argued that the government’s experts’ emphasis on an economic, or utilitarian, approach to Indian land tenure questions was completely inadequate because it did not consider that Indians, similar to humans everywhere, had aesthetic and spiritual ties to the land.80 According to Kroeber, these ties meant that even the most inaccessible mountain peaks or arid deserts contributed to local peoples’ sense of place and belonging.81 In other words, all parts of the state had been used in various ways, some economically and others spiritually. Kroeber also rejected the depopulation thesis that Beals and his colleagues had put forward to argue that Indians had abandoned large parts of the state prior to the arrival of newcomers. Kroeber pointed out that historical demographic studies of California Indians were in their infancy. This fact meant that the government’s sweeping conclusions based on this new research were, at best, grossly premature. Where depopulation had taken place, Kroeber hypothesized that it was equally reasonable to suppose that it had not led groups to reduce the size of their territories, as Beals had suggested. Rather, lower densities probably would have merely reduced pressures on resources and made the survivors’ harvesting efforts more productive.82 Regarding the salmon fishers of the northwestern part of the state, Kroeber contended – without offering substantial data – that individual and/or family titles to resources were dependent on underlying communal, not individual, title.83 Kroeber further chiselled away at his opponents’ evidence by helping the plaintiffs’ lawyers formulate the questions they used for the cross-examination of the government’s experts. He was particularly intent on casting doubt on the notion that the Justice Department’s experts’ approach to tribes’ use and occupation of their environment was a more rigorous scientific approach than the one he had used on behalf of the plaintiffs. Accordingly, Harold Driver received particularly pointed questions from the plaintiffs’ lawyers,

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urged on by Kroeber, about the statistical approach that he and his colleagues had used. The plaintiffs’ lawyers paid particular attention to Driver because he was the best-qualified quantitative anthropologist on the government’s team.84 Also, he had worked the most closely with Ralph Barney and his team of Justice Department lawyers as they developed their cross-examination strategy for Kroeber. In any event, it was Driver who had developed the formulas to calculate land use intensity. In their cross-examination of him, the Indians’ lawyers forced Driver to admit that many of the seemingly precise scientific calculations were, in fact, merely guesses.85 Driver admitted to having formulated some of them on the back of napkins during his long flights to the West Coast from Indiana University. In these and other ways, Kroeber and the plaintiffs’ lawyers created the impression that cultural ecology, as presented to the claims commission by Beals and his associates, was little more than a pseudoscience.86 In the end, Kroeber, as the pre-eminent anthropological authority and master performer in the hearing room, carried the day. There is no doubt that the hearings had been a stressful event for the Berkeley anthropologists. Nonetheless, Kroeber admitted in a letter to one of the California Indians’ leading lawyers that he had thoroughly enjoyed the experience.87 The claims battle had featured two ways of interpreting California Indian history. Although Kroeber’s older perspective swayed the commissioners, the claims also promoted newer approaches to cultural ecology, including quantitative analyses. the short-term and long-term impact of the indian Claims Commission on the Anthropology and history of native Americans The work of the claims commission had immediate and long-term impacts on the study of the history of North American native peoples, and in turn it shaped the evidence that was presented in claims litigation in Canada and the United States many years later. Initially, the impact was notably negative. The battles of experts before the commission fractured the small community of Amer-

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icanist anthropologists into two feuding camps. One comprised those who acted on behalf of the various tribes that had petitioned the commission; the other comprised those who were on contract to the federal Justice Department. By 1955 the acrimony between the two groups had reached the point where it was threatening the credibility of anthropology in the United States altogether.88 Anthropologists took several major steps to curtail this threat. For one thing, they convened two special sessions as part of national professional meetings in 1955 for the purpose of addressing the basic problems they faced when presenting anthropology in the adversarial settings of the commission hearings. The first session took place in Detroit, Michigan, and the second at Indiana University in Bloomington, Indiana. At the Detroit meeting, experts who had appeared before the commission for plaintiffs and the defendant presented scholarly papers. Eventually, they published these papers in a special issue of the new scholarly journal Ethnohistory.89 In many respects, this journal arose from the claims process. Wheeler-Voegelin was the first editor, and Ethnohistory was housed at the gLover offices during its early years of operation. Prominent anthropologist Sol Tax, who had recently become head of the Anthropology Department at the University of Chicago,90 chaired the Bloomington meeting. Although a strong proponent of applied anthropology, which he labelled “action anthropology,” Tax was not involved as an expert in the claims cases. He had become alarmed, however, at the harm that feuding claims researchers were beginning to do to the public perception of his discipline.91 Accordingly, in his opening remarks as chair of the Bloomington meeting, he issued a strong warning to his colleagues: “anthropologists have got themselves in a position where they are impugning the motives of other anthropologists. Anthropology is in a bad position right now. The bickering and accusations that result from claims cases threaten the whole profession, especially when it is all kept underground.”92 Tax went on to observe that battles over these cases had led his colleagues to become polarized into two theoretical camps regarding the nature of aboriginal tenure systems. Tax failed, however, to bring his feuding colleagues together through his admon-

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ishments. The correspondence of some of those who attended these meetings indicated that in the hallways and backrooms rival experts continued their efforts to recruit others to their respective sides. The efforts of the opposing groups to validate their research findings through scholarly publications had also provoked conflict. Particularly worrying to the Indian claimants and their lawyers was that Wheeler-Voegelin, who was such a central figure in the research effort on behalf of the government, was the editor of Ethnohistory.93 In that capacity, she published numerous articles that were based on reports that both she and her associates had prepared for the government. She justified this potential conflict of interest for her as editor on the grounds that the journal was extremely short of material during it first few years of operation.94 Yet the fact that some of these articles appeared in print before the claims commission had ruled on the cases for which they had been prepared led to accusations by lawyers representing the plaintiffs that WheelerVoegelin and her associates were using the new journal to lend an aura of academic respectability to their advocacy research.95 That the anthropologists retained by Indian claimants, most notably Kroeber, Lurie, and Stewart, were also presenting academic papers and publishing academic articles (some in Ethnohistory) based on research that they had undertaken for claims that were still underway led to counteraccusations by Wheeler-Voegelin and the government lawyers.96 The battle lines remained clearly drawn. These battle lines were all too evident at the Bloomington meeting, where Sol Tax noted that the publication controversy even affected him as editor of the American Anthropologist – the leading academic publication in the field. He told the delegates, “I received a paper on one side of this issue. Then I received several letters saying ‘Don’t you dare publish it.’”97 Significantly, these issues took place in the immediate aftermath of the passage of the American Anthropological Association’s resolution on the freedom of publication in 1949. That resolution called on the government and private institutions that sponsored anthropological research to guarantee scholars the rights of freedom of interpretation and publication.98 The resolution did not, however, offer association members guidelines

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for dealing with each other regarding the politics of disseminating the results of claims research through academic outlets. All the acrimony aside, there was a very positive side to the creation and operation of the claims commission in that for the first time ever in the United States substantial research funds were available for Indian history, funding that nurtured many early careers in the field. The gLover project, for example, began with an annual budget of approximately $33,000. Twelve years later, the annual total was slightly in excess of $32,000.99 The budget for Beals’s project based at the University of California, Los Angeles was $25,100 in 1954.100 This figure did not include fees paid to the experts he retained. Given that these projects were undertaken well before the creation of the National Endowment for the Humanities in 1965, these were unprecedented amounts of funding for research in American Indian history. One of the gLover graduate researchers, Harold Hickerson, subsequently gained prominence as an ethnohistorian of the Great Lakes Ojibwa based on the foundational documentary research he undertook about these people for the Justice Department.101 In many other parts of the country, claims-oriented research had similar path-breaking impacts. Undoubtedly, the most lasting and widespread impact that claims research had on scholarship about American Indians was that it acted as the primary catalyst for the interdisciplinary and multisource approach to the subject now known as ethnohistory in North America. The increased use of documentary records to supplement archaeological and ethnographic sources encouraged more dynamic approaches to the study of postcontact culture change. Cultural ecology was one of these approaches. Also, rather than explaining postcontact culture change primarily as a process of acculturation inferred from artifacts, as had been the custom, the use of archival records enabled scholars to consider the roles of native individuals in the dynamics of cultural exchange with newcomers. In turn, this led the generation of scholars, myself among them, who followed in the late 1960s and 1970s to focus on “native agency” rather than merely regarding Indians as being hapless victims who were swept up in the tides of Euro-American expansion. Likewise,

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many of the questions that were central to claims cases, such as the impact of trade, warfare, migration, epidemics, and depopulation on Indian land use and tenure, became the focus of scholars in the late 1960s and 1970s. In Canada these concerns would receive a boost after 1973, when the Supreme Court of Canada decision in the Nisga’a title suit, Calder et al. v. Attorney-General of British Columbia sparked the beginning of the modern claims era in that country.

ChaPter three

litigating and negotiating native title and treaty rights in Canada

Although Canada took note of the creation of the United States Indian Claims Commission in 1946, it did not follow suit and create a similar forum to address the grievances of its indigenous peoples for over thirty years. It took increasing political and legal pressure from these peoples to make it happen. The political battle began in earnest in the 1960s during the civil rights era, and by the 1970s indigenous people had forced Canadians to reimagine their country as a nation that had been built not only by two European nations – the British and the French – but also by the native nations that were there first. By the late 1970s Canadians had accepted the latter nations’ self-identification as Canada’s “First Nations.” The modern legal rights battles of the latter nations began twenty-two years after the establishment of the American claims commission, when in 1968 tribal elder Frank Calder and the Nisga’a (formerly Nishga) Tribal Council filed a partially successful aboriginal title claim in the Supreme Court of British Columbia. The suit was the culmination of their century-long struggle to have the federal and provincial governments recognize the continued existence of their aboriginal title to their traditional territory located in the Nass River area of the northern coast of British Columbia. The Nisga’a legal action heralded the beginning of the modern claims era in Canada. Shocked by the success that the Nisga’a achieved at the Supreme Court of Canada in 1973, when the justices reached a split decision on whether aboriginal title survived in the Nass area, politicians

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suddenly felt the need to develop new forums for claims dispute resolution. By that time, Canada lagged far behind not only the United States but also Australia and New Zealand in experimenting with alternatives to the courts. Nonetheless, Canadian politicians and government officials remained reluctant to develop any procedures that were not controlled by the federal government. It took the ongoing successes of First Nations in the courts to force the federal government to develop more equitable processes. In this way, Canada’s development of alternative dispute resolution forums were closely tied to advances in Canadian native law. Beginning with Calder, cultural and historical evidence of the types presented to the United States commission played ever more important roles in Canadian courts, commissions, and tribunals. Some of the types of clashes of experts that happened in Canada in the 1980s and afterward recall those that had taken place before the Indian Claims Commission in the United States in the 1950s. Issues about how best to conceptualize native tenures also arose. Calder et al. v. Attorney-General of British Columbia (1973) and the issue of unextinguished Aboriginal title In their landmark title suit, the Nisga’a sought a declaration from the attorney general of British Columbia acknowledging that “aboriginal title, otherwise known as Indian title, of the Plaintiffs to their ancient tribal territory … has never been lawfully extinguished.”1 At trial before Supreme Court of British Columbia Justice J. Gould, the provincial attorney general readily admitted that neither the plaintiffs’ nor their ancestors had ever surrendered “Indian title”; but in keeping with provincial tradition, he also denied that such a title had ever existed.2 Making this partial concession at the outset meant that the trial focused on two crucial questions about aboriginal title: Was there any ethnographic evidence showing that the Nisga’a’s ancestors had notions of property? Were there precedents in the common law for recognizing aboriginal ownership? As we have seen, similar concerns had arisen before the claims commission in the United States, and as will be discussed, in the Gove

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land rights case they would arise before the Supreme Court of the Northern Territory of Australia a year after Calder went to trial. In preparing for trial, legal counsel for the Nisga’a, Thomas Berger,3 hired anthropologist-archaeologist Wilson Duff from the University of British Columbia to collect and present relevant ethnographic material. By the time Berger retained him, Duff was one of the province’s leading experts on the archaeology and ethnohistory of the Northwest Coast. He was also one of the few ethnohistorians of the region who had paid considerable attention to land tenure questions. Duff ’s interest in British Columbia’s northern coast began in 1958 when he received a Canada Council research fellowship to organize the massive field notes of pioneering ethnographers Marius Barbeau and the latter’s assistant, William Beynon.4 In 1914 these two men had begun working in the Tsimshian-speaking area, which included the Gitxsan (formerly Gitksan), Nisga’a, and Coast Tsimshian territories. Prior to working on the Barbeau-Beynon collection, Duff had concentrated on the Coast Salish area of the Fraser River Valley on the southern coast of British Columbia, where he had undertaken fieldwork for his master’s thesis. Duff ’s refocusing on the Nass and Skeena River Basins led the Gitanyow,5 a Gitxsan First Nation, to hire him as a consultant in 1960. They wanted him to help them research their history and laws.6 This project led Duff to edit the pioneering collaboration History, Territories, and Laws of the Kitwancool in return for the relocation of their totem poles to the British Columbia Museum.7 Until that time, most of the extensive published ethnography on the Northwest Coast culture area, including that of his graduate supervisor, Viola Garfield, had emphasized material culture and art, kinship, mythology, and potlatch ceremonies. The latter are complex and multipurpose public ceremonies that captured the imagination of anthropologists and the public because hosting families bestowed lavish gifts on their guests.8 In this respect, the history of ethnographic research in British Columbia prior to Calder paralleled that of California before the California Indian claims of the 1950s. While conducting his evidence-in-chief, Berger questioned Duff for the purpose of defining the plaintiffs’ traditional land use and

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tenure system in terms that were cognizable in the eyes of American and Canadian case law on aboriginal rights. First, Berger asked him whether neighbouring First Nations had recognized the territory that the Nisga’a claimed as being their traditional homeland. Duff replied, “all of the surrounding tribes knew the Nishga as the homogeneous group of Indians occupying the area delineated on the map. They knew of them collectively under the term Nishga. They knew they spoke their own dialect, that they occupied and were owners of that territory and they respected these tribal boundaries of the territory [marked on the map].”9 In other words, the Nisga’a people were a distinct group who used and occupied a defined territory to the exclusion of others. Having made this important point, Berger then enquired about how the Nisga’a exploited the land. Duff described their practice as follows: The general pattern … would be that the ownership of the mouth of the stream and the seasonal villages, or habitations that were built there, signify the ownership and use of the entire valley. It would be used as a fishing site itself and a fishing site on the river, but in addition to that the people who made use of this area would have the right to go up the valley for berry picking up on the slopes, for hunting and trapping in the valley and up to forest slopes, usually for the hunting of mountain goats. In other words, they made use, more or less intensive use of the entire valley rather than just the point at the mouth of the stream. Finally, Berger asked Duff whether the Nisga’a merely roamed over the land or owned it. Duff responded by quoting from his recently published History of the Indians of British Columbia: “It is not correct to say that the Indians did not own the land but only roamed over the face of it and used it. The patterns of ownership and utilization which they imposed upon the lands and waters were different from those recognized by our system of law, but were nonetheless clearly defined and mutually respected.”10 Duff continued in a way that recalled the testimonies of Kroeber in the Cali-

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fornia Indian claims and Hallowell in the Iowa claims, telling Berger and the court, Even if they didn’t subdivide and cultivate the land, they did recognize ownership of plots used for village sites, fishing places, berry and root patches, and similar purposes. Even if they didn’t subject the forest to wholesale logging, they did establish ownership of tracts used for hunting, trapping and food gathering. Even if they didn’t sink mine shafts into the mountains, they did own peaks and valleys for mountain goat hunting and as sources of raw materials. Except for barren and inaccessible areas which are not utilized even today, every part of the province was formerly within the owned and recognized territory of one or other of the Indian Tribes.11 During cross-examination Douglas McKenzie Brown, who appeared as counsel on behalf of the Crown, asked Duff to comment on the sources that he had relied on to reach his conclusions. Duff gave a lengthy reply in which he discussed his use of ethnographic documentation: I am, of course, familiar with the great bulk of the published material on this area, some of which will be entered into evidence. I have myself discussed these matters with many Indians, both Nishga and their neighbours, but my main source of information is the great, abundant body of unpublished anthropological and historical material which was assembled in the National Museum of Canada [Museum of Civilization] by the anthropologist Marius Barbeau, who worked in this area between 1914 and the late ’40’s, and continued to assemble it until just a couple of years ago. He also referred to “a Tsimshian gentleman who actually thought of himself as a Nishga chief, William Beynon, who lived the greater part of his life at Port Simpson, who was an interpreter and assistant of Barbeau and other anthropologists and who, himself, until

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his death in 1967, recorded hundreds and hundreds of pages of anthropological information and family tradition and narratives having to do with the Nishga and the Gitksan peoples.”12 Brown did not think that Duff had provided the quality of evidence he was searching for and remarked, “I was asking you as to what documentary or other evidence there was that justifies you in using the word ‘ownership.’ I suggest that that was a concept that was foreign to the Indians of the Nass Agency?” Duff stood his ground, saying that he was an anthropologist and that the kind of evidence he worked with was “largely not documentary evidence. It is verbal evidence given by people who didn’t produce documents and it is turned into documentary form in anthropological and historical reports and in the reports of various commissions.”13 His comment echoed one that Steward had made at the meeting of anthropologists in Detroit in 1955 and subsequently published in Ethnohistory, when he remarked that an anthropological expert cannot “tell the truth, the whole truth, and nothing but the truth” in a literal or absolute sense, as none of the data are obtained firsthand. This fact led Steward to contend that, “in using this secondary, or predigested evidence, both from the Indian informant and the historical source, the anthropologist re-digests it according to his own point of view. He himself becomes ‘evidence’ in that his testimony is based to an incalculable extent upon his theory (explicit or implicit), his experiences among the people, his travels over the territory, his reading of the historic documents and his broader knowledge of primitive people.”14 Although Duff ’s reaction had brought up important issues concerning the blurred boundaries between oral and documentary lines of evidence and the relative weights that should be given to each – issues that would loom large in subsequent title litigation in British Columbia and elsewhere in Canada – Brown did not pursue them. Rather, he was anxious to discover whether Duff could cite a passage from a book that would support the latter’s definition of aboriginal “ownership.” In pressing him to do so, Brown noted in passing that Duff had mentioned Philip Drucker’s 1965 book Cultures of the North Pacific Coast.15 In reply, Duff stated that Drucker (who

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was yet another former student of Kroeber) did use the term. He added, “another is a book by Viola Garfield as to the Tsimshian Indians16 in general and in this sense it includes the Nishga which would use a concept of ownership.”17 After Duff provided the brief biography of Garfield that the judge had requested, Brown asked him to cite a passage from her book that described land tenure practices on the Northwest Coast. Duff complied by turning to page fourteen and reading the following: “It was characteristic of the Tsimshian, as of other Northwest Coast Tribes, that [the] exclusive right to exploit the resource districts were claimed by kin. Lineages of the Tsimshian were the owners of rights to hunt, fish, pick berries or gather raw materials from geographically defined territory. Lineage properties were listed at an installation potlatch of a new head, hence were in his name. Lineage heads could and did designate certain areas as actually his and pass them on as private property to his successors.”18 Brown was still not satisfied. He contended that Duff ’s citation from Garfield did not provide documentary evidence but merely offered the opinion of another anthropologist. Having made this point, Brown asked Duff a series of questions about matrilineal inheritance, which was typical of Nisga’a and their Northwest Coast neighbours, about lineages, and about family territories. He particularly wanted to know whether a family would defend its rights against other families. Duff affirmed that they would and noted that he had reached this conclusion by studying unpublished material that he had submitted. In essence, he said that having internalized this information, he had become part of the evidence.19 Brown pressed on. He returned to the issue of Duff ’s heavy use of Drucker’s book about the cultures of the North Pacific Coast as a published source for his assertion that localized kinship groups (or lineages) worked together and considered themselves joint owners of tracts of land where they obtained food and other prime materials. Duff directed Brown to the following passage from Drucker’s monograph: Distinctive of North Pacific coast culture is the inclusion of natural resources and items of wealth, the foodstuffs, the

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materials for dress, shelter and transport and the places from which these things were obtained. Each group regarded the areas utilized as the exclusive property of the group. Group members used habitation sites, fishing grounds, clam beaches, hunting and burying grounds, that is in the sense of getting buried, forest areas where timber and bark were obtained through right. Outsiders entered by invitation or in trespass. Bounds were defined by natural landmarks with a precision remarkable for people with no surveying equipment.20 After Duff had read this quotation into the record, Brown pointed out to the court that in this passage Drucker was referring to the Northwest Coast culture area in general, not to the Nisga’a in particular. In rejoinder, Duff reminded the court that the plaintiffs were one of the groups who lived in this culture area. When Duff completed his evidence-in-chief and cross-examination, Justice Gould asked him a series of questions that were aimed at determining whether Duff ’s “anthropological studies” had yielded any indications that the Nisga’a’s notions of ownership of “real property” were similar to those of the common law. In particular, Justice Gould wanted to know whether Duff had found evidence for (1) the “Specific delineation” of property, (2) exclusive occupancy or possession, (3) the right of alienation, (4) an individual’s right to destroy it, and (5) the right of individuals to pass on property to heirs.21 These were all questions that had arisen previously during the California Indian claims hearings. Gould and Duff spent considerable time on the issue of alienation. Duff noted that individuals could transfer rights to others but explained that normally the transactions had to involve members of the same kinship group or tribe. After hearing lengthy testimony from Duff and Nisga’a elders about the plaintiffs’ notions of tenure,22 and after listening to Duff ’s replies to his questions on this issue, Justice Gould paid little attention to the topic when rendering his judgment. He decided instead to concentrate on the question of whether Nisga’a title would have survived if it had ever existed. Gould concluded that this outcome

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was unlikely because British Columbia, through legislation, had excercised its sovereignty throughout the province, thereby extinguishing aboriginal title if it ever existed.23 In this way, Justice Gould supported the province’s longstanding position. On appeal to the British Columbia Court of Appeal, the Nisga’a obtained an even less sympathetic hearing from Chief Justice Herbert William Davey, who upheld the trial judge. When doing so, Davey made the gratuitous and hurtful remark that the Nisga’a’s ancestors “were undoubtedly at the time of settlement a very primitive people with few of the institutions of civilized society, and none at all of our notions of private property.”24 The Nisga’a subsequently appealed to the Supreme Court of Canada, with a mixed result. For the first time in Canadian law, the court acknowledged that aboriginal title predated colonization,25 but it was divided evenly (three to three) on the question of whether Nisga’a title survived. One group agreed with the lower courts that the government’s exercise of control over lands would have extinguished it; the other group thought that greater proof of extinguishment was needed. Justice Emmett Matthew Hall wrote for the latter.26 In his opinion, Hall rebuked Chief Justice Davey for his comment about the plaintiffs’ ancestors, noting that, “in so saying this in 1970, he was assessing the Indian culture of 1858 by the same standards that the Europeans applied to the Indians of North America two or more centuries before.”27 Hall added, “The assessment and interpretation of the historical documents and enactments tendered in evidence must be approached in the light of present-day research and knowledge disregarding ancient concepts formulated when understanding of the customs and culture of our original people was rudimentary and incomplete when they were thought to be wholly without cohesion, laws or culture, in effect a subhuman species.”28 Just over a decade later, in the 1980s, the Gitxsan-Wet’suet’en, who were inland neighbours of the Nisga’a, would initiate a title litigation in which the issues Hall raised were central. Once again a British Columbia court would demonstrate an unwillingness to revise its outdated understanding of the history and culture of the province’s First Nations. Reflecting the emphasis on issues of law in

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the trial judgment and appeals, little of the ethnohistorical evidence that Duff had provided in Calder received much public or scholarly attention in the 1970s and afterward. federal responses to indian Claims after Calder The Supreme Court’s unanimous finding in Calder that aboriginal title arose from precontact occupation was a major triumph for the Nisga’a and for Canada’s First Nations more generally. Likewise, it was a clear warning for the federal and provincial governments. Equally ominous was the court’s split decision about whether that title survived to the present in areas where First Nations had not surrendered it through treaties or where the government had failed to extinguish it through legislation having that goal as its explicit intention. Especially worrying for Prime Minister Pierre Elliott Trudeau (1968–79, 1980–84) was the fact that the opinions of the justices he most respected suggested the likelihood that native title survived in many parts of Canada. Bora Laskin, who Trudeau subsequently appointed as the chief justice (1973–85) of the Supreme Court, was included in this group. While Calder was approaching its climax, another monumental legal and political struggle of indigenous peoples was unfolding that also upset the legal status quo. For several years, the James Bay Cree of Quebec and their northern Inuit neighbours had been battling with the Quebec government over a vast hydroelectric project in their territory that threatened to destroy their traditional way of life. When planning for the project and during the initial phases of construction, the provincial government had refused to acknowledge the title claim of these Cree and their Inuit neighbours. Frustrated at being ignored, these two groups took the Quebec government to court in 1972. Lawyers for the province did not think they had to answer the petitioners. To their great shock, Quebec Superior Court Justice Albert Malouf thought otherwise. Malouf held six months of hearings about the plaintiffs’ relationship with and use of the land before ruling in their favour and issuing an injunction stopping the James Bay Hydroelectric Project. For the first time, lawyers for the provincial government had to take native rights litigation seriously.

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Although the Quebec Appeal Court quickly overturned Malouf ’s ruling, the Cree-Inuit litigation coming at the time of Calder served as an added warning to the federal and provincial governments that they no longer could ignore aboriginal title or other native claims. Federal politicians had recognized that aboriginal rights claims posed serious problems long before Calder, but there was insufficient political will to find solutions. For example, the year after the United States Congress created the Indian Claims Commission in 1946, the Canadian government established a special joint Commons and Senate committee to examine the Indian Act, which had been enacted by Parliament in 1876 and amended periodically thereafter. This act allowed the federal government to control all aspects of Indians’ lives. The joint committee recommended the immediate establishment of a commission similar to the United States Indian Claims Commission “to enquire into the terms of all Indian treaties and to appraise and settle in a just and equitable manner any claims arising thereunder.”29 In 1959 the Conservative government of Prime Minister John Diefenbaker (1957–63) convened another joint committee to re-examine the problem. Acting on its recommendations, Diefenbaker’s government made the first of several abortive attempts to bring forward legislation to create a claims commission.30 When Diefenbaker’s government fell in 1963, the Liberals came to power under Prime Minister Lester B. Pearson (1963–68), and they revisited the issue of Indian grievances. His government brought to Parliament An Act to Provide for the Disposition of Indian Claims (Bill c -123). In several key respects, it was the most comprehensive proposal put forward by any Canadian government before 2008, when Parliament finally passed the Specific Claims Tribunal Act. The Pearson government proposed to create a five-man commission comprised of at least one Indian member, which would have had the authority to adjudicate five types of claims: (1) land where aboriginal title had not been extinguished, (2) disputes about the disposition of reserve lands where Indians either had not received any compensation or had not been adequately recompensed, (3) issues arising from Crown mismanagement of band trust funds, (4) failures of the Crown to fulfil treaty obligations or those arising

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from other agreements and undertakings, and (5) transactions in which the Crown failed to act “fairly or honourably” toward Indians, thereby causing them harm.31 Decisions of the commission were to have been final and binding, albeit subject to appeals to an Indian Claims Appeal Court, which the legislation would also have created. In addition to allowing for appeals based on issues of fairness, Bill c -123 included other critical provisions that subsequent governments were reluctant to approve. Key among them were that no limits were to be set on the amount of any claim, that the commission would not be bound by the usual rules of evidence so that oral histories could be considered, and that the commission would be required to provide written reasons for its decisions.32 Although it would have represented a step forward for Canada, especially with respect to accepting aboriginal oral history evidence, it fell short of the United States Indian Claims Commission Act in critical respects. Most notably, the Pearson government had not allowed for the revising of treaties on the grounds of fraud or duress. Also, Bill c-123 would not have allowed for the consideration of unconscionable land transactions in the past.33 In any event, the bill proceeded through a second reading in the House of Commons, but similar to the fate of the bill of Diefenbaker’s government, it died on the order paper. Until 2008 subsequent Canadian claims regimes and legislation fell well short of what Bill c -123 attempted. As a result, Canada would lag behind Australia, New Zealand, and South Africa with respect to making innovative and transparent administrative or quasi-judicial approaches to claims resolutions. The central problem was that, until 2008, Canadian politicians and government officials from the Department of Indian Affairs34 and the Department of Justice were unwilling to relinquish control of the process and establish a truly independent commission or tribunal that had the authority to make binding decisions on a broad range of claims. The succeeding Liberal government of Prime Minister Trudeau made the first of several half-hearted efforts to deal with First Nations’ grievances after the Pearson government’s failed initiative. In

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1969 Trudeau’s minister of Indian affairs, Jean Chrétien (1968–74),35 issued the “White Paper” on Indian policy (or Statement of the Government of Canada on Indian Policy), which was a blueprint for government action on Indian affairs. Without consulting the First Nations when drafting this document, the government proposed to make Indians “equal citizens” by removing their “special status.” This would have involved repealing the Indian Act, eliminating the Department of Indian Affairs, abrogating historic treaties, transferring jurisdiction of Indians to the provinces, and granting reserve lands to individual band members in fee simple.36 In other words, it was a forced assimilation policy. Needless to say, the White Paper proposed to dismiss aboriginal title claims advanced by First Nations people whose ancestors had never surrendered their aboriginal title through treaties. The government asserted that “aboriginal claims to land” were “so general and undefined it is not realistic to think of them as specific claims capable of remedy except through a policy and program that will end injustice to Indians.”37 Nonetheless, the White Paper stated, “The Government has concluded that further study and research are required by both the Indians and the Government. It will appoint a Commissioner who, in consultation with representatives of the Indians, will inquire into and report upon how claims arising in respect of the performance of the terms of treaties and agreements formally entered into by representatives of the Indians and the Crown, and the administration of moneys and lands pursuant to schemes established by legislation for the benefit of Indians may be adjudicated.”38 The highly controversial White Paper outraged First Nations, and one of their leading spokespersons, Harold Cardinal, who at the time was a twenty-five-year-old Cree political leader from Alberta, replied on behalf of the Alberta Indian Association with his “Red Paper.” Cardinal and native leaders denounced the federal government for attempting no less than cultural genocide. He argued that First Nations should be regarded as “citizens plus.” That is, citizens who had special rights deriving from their being descendants of the aboriginal occupants of the land who had special relationships

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to the Crown. Those special relationships arose from historical treaties, Crown proclamations, and other agreements between the Crown and First Nations.39 In the face of these blistering attacks, the Trudeau government promptly withdrew the White Paper. Nonetheless, it proceeded to appoint Saskatchewan scholar and politician Lloyd Barber as Indian commissioner (1969–77). In spite of Barber’s popularity with the First Nations, he was not able to win their support for his commission.40 The First Nations associated the commission with the hated White Paper. Also, they thought Barber’s mandate was too restricted because his terms of reference did not include an examination of aboriginal rights issues. These problems meant that Barber operated informally, for eight years, in a variety of capacities, including facilitator, mediator, middleman, ombudsman, and sounding board.41 Of major importance, the Supreme Court of Canada’s Calder decision came down at a time of heightened political activity by First Nations in the late 1960s and early 1970s, which was stimulated in part by the White Paper debacle in Canada, the Red Power movement that originated in the United States, and postcolonial movements across the globe.42 The conjunction of these events put added pressure on the federal government to revisit its approaches to aboriginal title and other claims. By developing an administrative regime to address claims, the Trudeau government and successive administrations hoped to be able to control the focus and pace of negotiations and conclude settlements largely on their own terms rather than running the uncertain risks that are associated with litigation. Accordingly, the year after Calder, in 1974, the Trudeau government established the first federal claims process by creating the Office of Native Claims within the Department of Indian Affairs and Northern Development.43 Reflecting the thinking expressed in the White Paper, however, it specified that the federal government would consider two broad categories of claims: comprehensive and specific. The former concerned aboriginal title that had not been surrendered, and the latter comprised issues arising from the failure of the federal government to discharge any of its various “lawful

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obligations” to First Nations arising from treaties, other agreements, or legislation. Under this administrative regime, First Nations were required to submit their petitions to the Office of Native Claims. After receiving a submission, this office consulted with the Department of Justice before unilaterally deciding whether to reject a First Nation’s petition outright or to accept it and proceed to negotiations. In the latter instance, the Office of Native Claims had the responsibility of determining what evidence claimants were required to provide in order to proceed with their claim. The office also decided how much funding it would make available to claimants for researching and negotiating their petitions. In the end, the Office of Native Claims made the final decision. It did not provide reasons, and appeals were not allowed.44 From First Nations’ perspectives, it was an unfair system. Not only was the government in complete control, but it also had an inherent conflict of interest.45 During Prime Minister Trudeau’s second term in office, Minister of Indian Affairs John Munro (1980–84) released a revised comprehensive claims policy statement in 1981, entitled In All Fairness – A Native Claims Policy. According to this document, Department of Indian Affairs and Northern Development officials had looked at regimes in Australia, the United States, New Zealand, and Greenland as part of their review of the federal claims scheme. Officials paid particular attention to the Alaska Native Claims Settlement Act of 1971 and to Australia’s Aboriginal Land Rights (Northern Territory) Act of 1976 “because in both cases major settlements of aboriginal claims have been achieved and because there are many similarities to our own situation.”46 In his statement, Munro noted that these two regimes provided for “marked input” by indigenous people regarding the forms settlements should take. In the case of Alaska, he noted that a congressional committee had held hearings and made the final decision. In the Northern Territory, the aboriginal land commissioner made nonbinding determinations. Munro, however, favoured Canada’s negotiation approach. He reasoned that “it is a process which allows a good deal of elasticity in approach to the concerns of the Indigenous People, it is at once an expression and mutual appreciation of the rights and values of all parties in

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Canada.”47 With this justification, which failed to acknowledge that there was an inherent imbalance in the process, the federal government made no substantial changes in the comprehensive claims policy that it had established in 1973 in the immediate aftermath of Calder.48 litigating Claims Baker Lake (1979)

Apart from issues of fairness, for First Nations there were other serious problems with Canada’s comprehensive claims program. In the beginning, it moved at a snail’s pace, especially when claims involved provinces that held title to Crown lands. British Columbia was especially problematic, given that the provincial government continued to deny the existence of native title and was unwilling to make land available to settle claims. Even in Canada’s Northwest Territories, where the federal government controlled the Crown lands needed to settle disputes, indigenous peoples continued to resort to the courts. The Inuit of Baker Lake were famously one of them. In 1978 they sought a restraining order to prevent the Government of Canada from issuing land use permits with respect to their traditional lands. Through their elders and a cultural geographer,49 the Baker Lake Inuit presented evidence about their culture and land use practices in Toronto to Justice J. Mahoney of the Federal Court of Appeal (Trial Division). In his ruling, Hamlet of Baker Lake v. the Minister of Indian Affairs and Northern Development (1979), the Calder decision notwithstanding, Justice Mahoney turned to a 1919 decision of the British Privy Council, Re Southern Rhodesia, for guidance. In the latter ruling, the Privy Council had denied an aboriginal title claim with the observation, “some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot be bridged.”50 Taking this as his cue, Mahoney determined that to establish their title claim, petitioners must demonstrate that their ancestors lived

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in an “organized society” at the time England asserted sovereignty and that they used and occupied a defined territory to the exclusion of others.51 On this basis, he ruled in favour of the Baker Lake Inuit, having determined that they had an organized society, albeit one without very elaborate institutions. Yet it was a society organized to exploit the resources available on the barrens (or treeless tundra) and able to sustain human life there. Although Mahoney’s judgment was never appealed to the Supreme Court, his test (or model), which clearly was very similar to the one applied by the United States Indian Claims Commission, became the standard in Canada. It meant that henceforth not only did native plaintiffs have to demonstrate the presence of their ancestors in specific territories before the assertion of British/Canadian sovereignty, but they also had to provide ethnohistorical evidence about their society and land use practices. Baker Lake also afforded the Crown opportunities to argue yet again that the ancestors of plaintiffs had been too primitive to meet Mahoney’s standard. It would also encourage respondents in future claims cases to ignore Justice Hall’s warning in Calder that aboriginal cultures should be assessed in terms of current scholarly knowledge rather than the outdated evolutionary perspectives that courts applied in the past. In this way, Baker Lake set the stage in British Columbia for a fierce battle in the landmark aboriginal title case, Delgamuukw v. British Columbia. (1997) concerning whether the Gitxsan-Wet’suet’en societies of early European contact times were sufficiently advanced for the plaintiffs to have valid title claims in the eyes of Canadian law. Delgamuukw v. British Columbia (1997)

From the time the Nisga’a went to court until the Gitxsan-Wet’suet’en followed them, several crucial developments had taken place that strongly influenced aboriginal title litigation. Most important, the increasingly effective political actions of aboriginal groups in the aftermath of the White Paper had forced politicians to include section 35 in the Constitution Act of 1982. This section protected unspecified existing aboriginal and treaty rights. Politicians left it to the

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courts to determine what those rights were. A flood of precedentsetting litigation soon followed that ultimately forced the federal government to make revisions in its claims policies. Also important, by the 1980s scholarship about aboriginal Canadians had made substantial advances. When the Nisga’a had gone to court in the late 1960s, ethnohistorical research in Canada was in its infancy. In British Columbia Wilson Duff was one of the few scholars who were engaged in the field, which mostly remained the domain of anthropologists. Twenty years later historians, geographers, and scholars from an array of other disciplines had joined in. Native history had become an important component of academic programs not only in anthropology but also in Canadian history and native studies departments. As elsewhere, the native rights and postcolonial movements were among the key catalysts for the change. Another factor in Canada was the growing awareness of the availability of new documentary sources, especially those of the Hudson’s Bay Company Archives (hBca ). Chartered by Charles II in London in 1670, the company expanded from its base on the Hudson and James Bays in the late seventeenth and the eighteenth centuries to operate fur-trading operations from coast to coast by the late nineteenth century. Of great relevance for native rights litigation in Canada, the company had always been a diligent record keeper, and it amassed a vast archive that provides a wealth of documentary information about all aspects of indigenous peoples’ social and economic life and their relations to the land from the times of local European contact to the twentieth century. Because of their different histories, Australia, New Zealand, South Africa, and the United States do not have a comparable set of records. As it happened, the hBca – housed in London until 1970, when it was moved to Winnipeg, Manitoba, where it was made accessible in 1974 – became readily available to Canadian scholars on microfilm at the National Archives in Ottawa (presently Library and Archives Canada) only in 1967 on the eve of the Calder litigation. The availability of Hudson’s Bay Company records would prove to be of critical importance to the Gitxsan-Wet’suet’en plaintiffs and to the many other First Nations from across the country that followed them to court.

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The new and rapidly growing ethnohistorical research of the 1970s had many repercussions for post-Calder claims in Canada. As the previous discussion highlighted, claims research in the United States in the 1950s had focused on aboriginal land use and occupation. These topics continued to be of major interest to ethnohistorians in the 1960s and 1970s. In part, this was a consequence of the increasing popularity of the cultural ecological approach, which had been bolstered by claims research in the United States. In Canada the early twentieth-century scholarship of economic historian Harold Innis had sparked an abiding interest in native economic history with the publication of his classic study The Fur Trade in Canada (1930).52 Subsequently, economic historian Karl Polanyi’s theories about “primitive” economies provided a renewed interest in the topic of native economic history in the late 1970s and the 1980s.53 Canadian scholars paid particular attention to issues concerning the fur trade’s impact on the economies and cultural ecology of aboriginal people. Competing theories about this industry’s affect on aboriginal tenure systems have sustained an ongoing debate. Scholars have taken opposing positions on the question of whether aboriginal tenure systems featuring clearly demarcated territories and well-developed notions of ownership and trespass originated in precontact times or were the product of indigenous peoples’ involvement in the Euro-American commercial fur trade.54 The availability of the hBca records after the late 1960s made it possible to address these topics in a level of detail that previously had not been possible. Notions about the cultural dynamics of aboriginal people had also changed. Until the time when the American Congress established the claims commission in 1946, cultural element surveys, salvage ethnology, and archaeology had led scholars to focus on what they considered to be “traditional aspects” of native culture; these tended to be those features that changed most slowly. Their work commonly presented a static image of the aboriginal people they studied. Or, when studies of postcontact change were undertaken, scholars usually adopted an acculturation perspective that typically cast indigenous people in the reactive role of having adapted to more dynamic Europeans.55 The increasing availability of documentary

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3.1 | songhee potlatch near victoria, british Columbia, n.d. these ceremonies played many central roles in Pacific Coast societies and captured the imaginations of anthropologists during the pre-Calder era.

records made it possible to consider the roles of individuals, or specific groups of indigenous people, such as trading specialists or middlemen, in bringing about cultural transformations. By the early 1970s the role of native agency in postcontact cultural change became a major interest. In Canada these various developments created tensions between two groups of scholars. One group continued to emphasize continuity and tradition and usually focused on the noneconomic realms of aboriginal life; the other emphasized cultural dynamics. These latter scholars, myself among them, frequently concentrated on the economic and material spheres. These various fundamental tensions manifested themselves in the ethnohistorical evidence and testimony that were presented in Delgamuukw, even though the debate unfolded in an unexpected manner. Similar to the California Indian claims, Delgamuukw involved a number of different Indian Act bands that had joined together as two groups: the Athapascan-speaking Wet’suet’en of the Bulkley Valley and their northern neighbours, the Tsimshian-speaking Gitxsan,

Generalized Map of British Columbia showing Territories claimed by Gitxsan and Wet’suet’en Peoples (not to scale).

british Columbia land Claim Area

3.2 | gitxan-Wet’suet’en territories

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who lived along the middle and upper Skeena River.56 They sought legal recognition of their aboriginal title57 and the right of selfgovernment. In their action, the Gitxsan and Wet’suet’en raised many of the same fundamental historical issues that had been addressed in the California Indian claims and in Calder. Also, there were some parallels in terms of the legal context in which Delgamuukw unfolded given the influence of many American legal precedents. Nonetheless, there were also important differences that influenced the collection and presentation of ethnohistorical evidence for the case. Among the most important of these differences was the role of the so-called “frozen rights” doctrine in Delgamuukw. This was the legal theory that aboriginal rights were limited to traditions of pre-European contact times – the mythical “time immemorial” of Canadian law. According to this idea, any cultural practices that had been extensively modified or created as a consequence of interactions with the newcomers were thought to be ineligible for legal protection as aboriginal rights. This presumption held sway until 1990, when the Supreme Court of Canada rejected this notion in Regina v. Sparrow.58 By the time the court made this ruling, however, the Delgamuukw trial was in its final phase, and most of the ethnohistorical evidence had been presented and examined. This meant that the “frozen rights” doctrine influenced researchers who supported the opposing parties. The Baker Lake test and the “frozen rights” doctrine were additionally problematic in Delgamuukw because the courts had not determined when the Crown had established effective sovereignty over the plaintiffs’ territory. During the trial, the operating assumption was that it had occurred sometime between the arrival on Vancouver Island of British explorer Captain James Cook in 1778 and the creation of the colony of British Columbia in 1858 (or possibly even later in more remote areas). This ambiguity precluded ethnohistorical experts from tying their claims research to a specific date. In the United States Indian Claims Commission cases, the crucial date was the time when land dispossession had taken place.59 Given this uncertainty, the Gitxsan and Wet’suet’en had to play it “safe” and demonstrate that their ancestors had lived as organized societies in specific territories throughout the period from the

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eve of Cook’s visit to the coast until at least the end of the nineteenth century. This involved amassing evidence of a nature very similar to that presented by Duff on behalf of the Nisga’a almost two decades earlier. In particular, the Gitxsan and Wet’suet’en needed to establish that their people traditionally lived in villages comprised of a number of land-owning lineages (houses) led by hereditary chiefs. It was essential to demonstrate that house territories were clearly defined, that lineage heads effectively managed these territories on behalf of the house, and that customary laws and oral histories – the Adaawk of the Gitxsan and the Kungax of the Wet’suet’en – underpinned the system. Finally, the Gitxsan and Wet’suet’en needed to prove that their house-territory system was not a creation of the European-based fur trade and had not been transformed significantly by their participation in this industry before the mid-nineteenth century. To make their case, the Gitxsan and Wet’suet’en experts employed all the same lines of evidence that had been brought into play in the California Indian claims and in Calder. Additionally, they advanced a perspective that recalled those put forward earlier by Alfred Kroeber and Wilson Duff, namely the idea that house territories were not merely “roamed over” solely for utilitarian purposes. Rather, they were effectively used and occupied for a wide range of purposes to the exclusion of outsiders unless the latter obtained permission to enter for specific reasons. Otherwise, the owners of house territories regarded entry by outsiders as trespassing. By the early 1980s, when the Gitxsan and Wet’suet’en took preliminary steps to launch their legal action, a massive archaeological and ethnographic literature had accumulated about the Northwest Coast that extended back to the late nineteenth century, when Kroeber’s mentor, Franz Boas, did pioneering fieldwork there beginning in 1886. This literature included works based on cultural element distribution surveys and salvage ethnology. The latter research had aimed to collect artifacts that anthropologists thought were representative of traditional known cultures. Berkeley-trained anthropologists had carried out some of these studies. Drucker had been among them. This record, however, posed several problems for the Gitxsan and Wet’suet’en. Mostly, the ethnographers had studied

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their coastal neighbours, and for reasons discussed above with respect to the California claims, most anthropologists had given little consideration to land tenure issues. An additional problem for the plaintiffs was that ethnohistorical research in northern British Columbia lagged behind that of other areas of Canada. For example, there were no detailed ethnohistories of First Nations’ participation in the regional fur trade comparable to those for the Subarctic, Plains, or Great Lakes culture areas. To address these deficiencies, the Gitxsan and Wet’suet’en, with the help of anthropologists, undertook a vast oral history project to map the various house territories, record their histories, and explain how their tenure system operated. The hereditary elders took the precedent-setting step in Canada of leading off expert testimony by presenting their “house” histories to the court over 109 trial days. In the end, Chief Justice Allan McEachern gave little weight to their testimony because of his discomfort with oral history evidence.60 Also, he believed that the participant-observation methodology employed by anthropologists had compromised their objectivity as scientific experts.61 The Gitxsan and Wet’suet’en also commissioned documentary research projects to be undertaken independently from the oral history project. One of their primary objectives was to obtain a picture of the local native economy during the early postcontact period. They asked me to participate in this phase of the research. They wanted me to provide them with a background report that discussed their ancestors’ involvement in the European fur trade from the late eighteenth century to the mid-nineteenth century and that paid particular attention to their relationship with the Hudson’s Bay Company. They made this request because I was an established expert on the historical geography of the land-based fur trade and had extensive experience researching in the company’s vast records. The most important documentary research discoveries were from the Hudson’s Bay Company records pertaining to Fort Kilmaurs (Old Fort Babine). This post was located on Babine Lake just to the east of the Wet’suet’en territory. Especially important were the post journals and district reports of Scottish chief trader William Brown, who had established the post for the Hudson’s Bay Company. He provided a remarkably detailed account of the house-territory and

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feast systems of the Gitxsan, Wet’suet’en, and Babine – particularly the latter. The Babine were close relatives and eastern neighbours of the Wet’suet’en. Brown noted that each village included “nobles or men of property,” who controlled access to the resources of their house’s territory.62 Brown’s narrative independently confirmed what the traditional oral histories related.63 It was after it became clear that Justice McEachern was paying little regard to the elders’ testimony that the plaintiffs’ legal team asked me to present the report that I had prepared. Brown’s observations raised crucial questions in the twilight of the “frozen rights” theory of Canadian aboriginal rights. Were the tenure practices that he described in his journals and district reports rooted in the precontact past, or were they products of the European-market-oriented fur trade? Also, why did Brown describe the system in such detail? Significantly, these were not new questions. In 1932, when acculturation studies were popular, ethnologist Diamond Jenness had suggested that Western Carrier groups such as the Babine and Wet’suet’en had borrowed many cultural features from their Tsimshian-speaking neighbours.64 In 1941 Irving Goldman explored this idea with respect to the Alkatcho Carrier, who lived to the south of the Wet’suet’en and the Stuart Lake Carrier. He concluded that the European fur trade provided the key stimulus for the alleged modification of their land tenure system.65 At about the same time, Julian Steward became interested in the Western Carrier, particularly those of Stuart Lake, because their houseterritory scheme was so different from the communal tenure system that was common to other Athabascan-speaking groups. He conducted fieldwork in the area in 1939–40, but except for publishing a brief field report in 1940 and a short article in 1941, Steward did not write about the Carrier again until 1955 and 1961. By then, he was acting as a government expert in claims cases in the United States.66 We have seen that his claims work had encouraged him to theorize about the interrelationships between levels of sociopolitical organization and tenure systems. It also peeked his interest in the impact of European contact on those relationships. These issues had been central in the Great Basin cases of the American

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Southwest, where he argued before the Indian Claims Commission on behalf of the United States Justice Department that the cultures of tribes from this region were not sufficiently advanced for them to have had a property system before European contact.67 More generally, Steward postulated that common cultural patterns normally emerged when the environmental settings, technologies, and economic orientations of groups were broadly similar. This was the case throughout most of the Athabascan-speaking portion of the Subarctic culture area. He thought that local historical processes, such as diffusion, and particular ecological circumstances (or the “effective environment”) probably explained most of the cultural exceptions. These theoretical perspectives no doubt attracted Steward to the diffusionist explanations of Jenness and Goldman for the Western Carrier house-territory system. In his elaboration of their ideas, Steward too embraced the European fur trade as the catalyst. He thought that the local environment facilitated the adoption of a tenure system similar to that of the Nisga’a and Tsimshian because the region abounded in salmon and had limited populations of large game. According to Steward, these factors favoured settled village life over the nomadic hunting ways common to most other Athabascan people. There was a fundamental flaw, however, with Steward’s theorizing. He failed to test his hypothesis against data that were available in the published and unpublished accounts of the North West Company fur traders who had been in the area before 1821. These records, and the Brown materials, which would not have been unknown to Steward,68 make it clear that the Wet’suet’en and their eastern relatives, the Babine, did indeed carefully manage their beaver stocks. According to the documentary record, the reason they did so, however, was to assure themselves of a supply of beaver meat rather than to hoard beaver pelts for trading purposes. Beaver meat was a very important ceremonial food. It was consumed at funeral feasts when hereditary rights passed from one generation to the next.69 This fact suggested to me the probability that the houseterritory system, and the beaver conservation measures that were

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associated with it, had originated during the precontact period. The fur trade would have provided an additional reason to perpetuate the scheme. In my report and testimony, I argued that other considerations supported the conclusion that the Wet’suet’en and Babine houseterritory system was much older than Steward had surmised. The historical record indicates that the European fur trade, which began on a large scale on the West Coast with the trafficking in sea otter shortly after Captain James Cook’s visit in 1778, did not have a major impact in the upper Skeena River homelands of the Gitxsan and Wet’suet’en until well after the beginning of the nineteenth century.70 Given that the house-territory and feasting systems were such core features of Western Carrier societies, I argued that it was highly unlikely that it was a product of the European fur trade. What the records of the North West Company traders and those of William Brown suggested to me was that the greatest impact of the early fur trade was in the realm of external relations. This was because hereditary chiefs jockeyed for control of the ancient trading networks. In Brown’s time, this involved the Coast Tsimshian chiefs, particularly a succession of them bearing the hereditary name Legiac, who sought to draw the trade of the Gitxsan and Wet’suet’en down the Skeena River and away from the northwestward expanding Hudson’s Bay Company. Of course, the Crown’s lawyers vigorously challenged this interpretation, using several lines of attack. They noted that my previous research about the impact of the early fur trade on native economies east of the Rocky Mountains had emphasized change, not stability. They stressed that Brown had mentioned the husbanding of beaver only in Gitxsan and Wet’suet’en territories. Finally, drawing on archival records (mostly from the late nineteenth century), they cited many instances of interhouse and intervillage conflicts to suggest that the chiefs did not have the authority they would have needed to enforce a land tenure and conservation scheme.71 In reply, I took a particularistic stance, which was similar to the one Kroeber had taken in the California Indian claims and was in keeping with the historical geography training I had received. I

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stressed the importance of undertaking detailed empirical research that focused on the territory in dispute. The cultural and environmental circumstances of the Skeena River country were radically different from those of the Subarctic and Plains cultural areas that I had written about previously. For these reasons, I thought that it was unsound to assume that the postcontact histories of interior cultural regions paralleled that of the Northwest Coast. I observed that Brown’s own experience prior to 1821 made this point. Before coming to the Babine Lake area, he had gained his trading experience east of the Rocky Mountains among the band societies of the Subarctic Cree, Ojibwa, and Dene. Brown’s Fort Kilmaurs journals indicate that he faced major challenges learning how to deal with the Gitxsan and Wet’suet’en hereditary chiefs. Regarding Brown’s focus on Wet’suet’en and Babine beaver conservation practices, I noted that this was readily explained by taking into account that his primary goal as a Hudson’s Bay Company trader had been to expand the local trade of beaver pelts in order to offset the diminished returns in the company’s older trading districts east of the Rocky Mountains, where overtrapping was an acute problem. For this reason, other resources, with the exception of salmon, were not of interest to him.72 In reply to the Crown’s contention that Gitxsan-Wet’suet’en country had been a lawless place and that these people were “truculent” by nature, I observed that most of the examples of violence cited by the Crown’s lawyers had taken place during the late nineteenth century when epidemics, alcohol trading, missionary activities, and settler encroachment had created increasing social instability.73 These conditions postdated Brown’s time. In its defence, the Crown proposed that there was no conclusive evidence to establish that Gitxsan-Wet’suet’en lineages and families held ownership rights to large demarcated tracts of land. Instead, Crown experts advanced the idea that the ancestors of the claimants exercised control only over fishing sites, villages, trails, and other places where they had invested their labour on the land.74 This perspective accorded with those that had been held by successive colonial and provincial governments prior to Delgamuukw.

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In support of the Crown’s theory, its experts mostly turned to the older ethnographic literature, little of which had focused specifically on the claimants’ territory. In particular, they relied on the scholarship of anthropologists Goldman and Steward, as well as on more recent elaborations of their work in the 1970s.75 Significantly, both Steward and his successors explicitly stated that they were being speculative. Also, as noted, none of them had examined trader Brown’s district reports and post journals. In other words, in Delgamuukw the Crown was relying on speculative theories about the culture history of the Western Carrier rather than presenting the results of detailed primary research commissioned for the litigation. Paramount among these theoretical speculations was the idea first put forward by Steward that the European fur trade must have brought about major transformations of Wet’suet’en land tenure systems based on his presumption that it had done so elsewhere. The primary difficulty with the latter outlook is that ethnohistorians have failed to reach a consensus on this issue elsewhere in Canada even though they have been addressing this topic since the beginning of the twentieth century.76 After having presided over a 369-day trial spread over three years, which produced 23,503 pages of transcripts and over 50,000 pages of exhibits (an aboriginal rights litigation record at the time), the chief justice of the Supreme Court of British Columbia, Allan McEachern, decided that the Gitxsan-Wet’suet’en house-territory system was likely not a product of the fur trade. Nonetheless, he held that the aboriginal interests of the plaintiffs at the time the British asserted sovereignty “were rights to live in their villages and to occupy adjacent lands for the purpose of gathering the products of the lands and waters for subsistence and ceremonial purposes. These aboriginal interests did not include ownership or jurisdiction over the territory.”77 In other words, Justice McEachern accepted the Crown’s colonialist “lines and nodes” perspective regarding land use and title. He reached this decision in part because he had concluded that the Gitxsan-Wet’suet’en people were salmon fishers who located their villages near their fisheries. McEachern acknowledged that they also did some hunting and trapping, but he speculated

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3.3 | hagwilget fish-drying station, circa 1890s. in Delgamuukw v. British Columbia (1991), the provincial government asserted that aboriginal title, if it existed, was limited to areas where the claimant’s ancestors had invested their labour on the land, mostly at village and fishing sites and along trails.

that “there was no reason for them to travel far from their villages or rivers for this purpose, or to take more animals than were needed for their aboriginal subsistence.”78 Significantly, Justice McEachern accepted an ecological theory about native land tenure that was even more restrictive than the model that had been advanced for the Justice Department’s defence against tribal petitioners before the United States Indian Claims Commission. It was a perspective that the commissioners had repeatedly rejected. When doing so in the California claims, for example, the commissioners stated, The testimony and ethnographic literature … show that the Indian groups ranged throughout their respective territories in their gathering, hunting and fishing exertions. While these

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Indians were never considered nomads, their exploitation of the available resources in a given territory required frequent and extended traveling within the territories claimed. We believe it unrealistic and contrary to the Indian mode of life to restrict Indian territorial rights to the lands which would simply provide adequate subsistence and disallow their land claims to the areas which were of secondary importance or supplemental to the main sources of supplies.79 In the end, Justice McEachern’s ruling did not stand. On 11 December 1997 the Supreme Court of Canada held that he had made a fundamental error at trial by giving no weight to the oral testimony of the Gitxsan and Wet’suet’en. Their stories were their history. The Supreme Court ordered a new trial. This marked a milestone in Canadian aboriginal rights jurisprudence regarding the use of oral evidence in litigation. To guide courts in future aboriginal title litigation, for the first time the country’s highest court defined some of the aspects of such titles.80 Nonetheless, the federal and British Columbia governments held fast to the notion that aboriginal title existed only at places where First Nations had had a marked impact on the land, such as habitation sites, burial places, along trails, and wherever else they visibly altered the landscape. It was not until 2014 that the Supreme Court of Canada made it abundantly clear that the latter approach was wrong-headed. In Tsilhqot’in Nation v. British Columbia (2014), the court held that aboriginal title had to accommodate the reality that many First Nations had been nomadic and semi-nomadic people who regularly and exclusively used their traditional territories for fishing, hunting, and other purposes.81 negotiating Claims While Delgamuukw was proceeding through the courts, other First Nations were pursuing their aboriginal title grievances through the federal comprehensive claims process. They were making very slow progress. For example, less than a year after the Delgamuukw ruling, the auditor general of Canada reported that, of a potential 200 claims, only 12 had been settled.82 Half of these were part of the

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Yukon Final Umbrella Agreement (1993) reached in the Yukon Territory.83 As of June 1998, most of the unsettled claims were in British Columbia. The British Columbia Treaty Commission was addressing these claims. It had been created in 1992 as a response to Delgamuukw. Just three months after the trial judgment, the First Nations of British Columbia met sequentially with the prime minister of Canada and with the premier and cabinet of British Columbia to press for the creation of a tripartite task force to develop a modern treaty negotiation process. Two outcomes of their efforts were the establishment of the First Nations Summit, comprised of the majority of First Nations and tribal councils in the province, and the treaty commission.84 Under the umbrella of the British Columbia commission, claimants negotiate with the federal government and the province. To date, however, this commission has proven to be as slow as the federal claims process. For example, the British Columbia Treaty Commission’s twentieth anniversary annual report for 2013 stated that sixty First Nations comprising 104 Indian Act bands were involved in the process, but by early 2015 only five of these nations had concluded final agreements.85 By that time, the First Nations of British Columbia had amassed a collective debt of a half-billion dollars as a consequence of treaty negotiations.86 the Canadian indian Claims Commission Although First Nations continued to press for an independent commission that had the authority to address comprehensive and specific claims, the federal government steadfastly resisted the idea. The issue of specific claims came to a head in 1990, however, with the Oka-Kahnesatake armed standoff in Quebec. This shocking crisis grabbed international attention. It took place four years after the federal government had rejected the Kahnesatake First Nation’s specific claim and after the land in question at Oka had come under threat by proposed development. Another problem for the federal government was that ongoing aboriginal rights litigation had articulated the nature of federal fiduciary obligations toward First Nations, it had established legal principles for liberal interpretations of historic treaties in favour of First Nations, and it had determined

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that pre-Confederation treaties between the Crown and First Nations remained in force.87 These various developments led the Conservative government of Prime Minister Brian Mulroney to attempt to expedite claims settlements by reconsidering federal specific claims policy.88 With that objective in mind, his government asked the Assembly of First Nations (aFN ) to make a submission on the issue. The aFN ’s Chiefs Committee on Claims studied the problem and made recommendations. Most notably, the chief ’s again called for the establishment of an independent specific claims commission that would have the authority to ensure the expeditious resolution of claims submitted.89 In 1991, without further consultation with the aFN , the government passed an order-in-council to establish the Indian Specific Claims Commission (remembered as the Indian Claims Commission) as an interim claims resolution measure. Understandably, the aFN was outraged at the lack of consultation. It also strongly objected to the order-in-council because it adopted much of the wording of the government’s specific claims policy paper, Outstanding Business: A Native Claims Policy – Specific Claims, which the Department of Indian Affairs and Northern Development had released in 1982 (the year the Constitution Act was proclaimed). Previously, the aFN and others had sharply attacked this initiative for several reasons.90 The policy paper stated that specific claims mostly arose from instances when the federal government had not fulfilled its “lawful obligations” to First Nations.91 Issues of fairness were not included. Also, the minister of Indian affairs, acting on the advice of the Department of Justice, still retained the power to decide what claims were eligible for negotiation. In other words, the federal government would continue to have an inherent conflict of interest by being the defendant, judge, and jury in claims proceedings. There were other menacing aspects of the Outstanding Business policy paper. For example, guideline 10, regarding the submission of claims, warned that “the acceptance of a claim for negotiation is not to be interpreted as an admission of liability and, in the event that no settlement is reached and litigation ensues, the government reserves the right to plead all defenses available to it, including limitation periods, laches and lack of admissible evidence.”92 At

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the time, this would have meant that whenever claimants failed to reach a negotiated settlement and resorted to the courts with their historic grievances, the government would argue that time limits for legal action had expired. Also, it would argue that oral history evidence was not admissible in court. Finally, Outstanding Business asserted that the government would entertain no claims “based on events prior to 1867 (Confederation of Canada) unless the federal government specifically assumed responsibility therefor.”93 This ran against Supreme Court of Canada rulings that had upheld the validity of these pre-Confederation treaties.94 So, if First Nations agreed with the policy statement, they would also relinquish rights they had won through hard-fought litigation. In the end, the government abandoned the policy document. In 1992, after subsequently consulting with the aFN , the Mulroney government passed a revised order-in-council that addressed the jurisdiction and powers of the Indian Claims Commission.95 The government also agreed to appoint three of the five commissioners from a list of prospective candidates provided by the aFN .96 According to the orders-in-council of 1991 and 1992, the Indian Claims Commission was mandated to review the minister of Indian affairs’ decisions whenever the latter rejected claims or whenever there were disputes about the amounts of compensation. Its recommendations, however, were not binding. The commission was also responsible for providing mediation services whenever both parties to a claim agreed. As noted, prior to the establishment of the Indian Claims Commission, one of the aFN ’s primary objections to the federal specific claims process had been the government’s unwillingness to consider issues of fairness. In 1991 the minister of Indian affairs effectively broadened the commission’s mandate to include this issue by stating that he would welcome the commissioners’ recommendations in instances where they concluded that government policies had been implemented correctly but where “the outcome was nonetheless unfair.”97 His successor reaffirmed this commitment, and thereafter the Indian Claims Commission considered issues of fairness as part of its mandate.98 The commission’s first full year of operation was 1993–94.99 A claim inquiry commenced when the commission received a pe-

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tition from a First Nation whose claim had been rejected by the Department of Indian Affairs. If the Indian Claims Commission determined that an appeal fell within its mandate, it proceeded and appointed three commissioners to the case. Their first step was to call a planning conference with all of the parties involved and their legal councils. Their objectives were to determine the legal issues of concern and to establish timetables for gathering evidence, holding community sessions, and scheduling a hearing on legal arguments. In addition to receiving evidence from the parties to a dispute, commission staff undertook research, and when required the commission retained experts to address specific issues.100 As my following discussions of claims processes in Australia and New Zealand illustrate, many procedures of the Canadian Indian Claims Commission were similar to those already established by the Aboriginal Land Commission in the Northern Territory of Australia and by the Waitangi Tribunal of New Zealand. The commission’s first enquiry concerned the claim of Cold Lake First Nation and Canoe Lake Cree Nation to adequate compensation for lands that the federal government had taken from them in 1951 to create the Primrose Lake Air Weapons Range in northern Alberta and Saskatchewan.101 This confiscation had destroyed their viable bush economy, leaving them impoverished.102 The Indian Claims Commission’s mandate specified that it was to hold public hearings. Beginning with the inaugural Cold Lake and Canoe Lake claim, it adopted the practice of holding some of these sessions near the petitioners’ communities for the purpose of taking oral history and evidence from the elders and other relevant community witnesses. Because the commission was not bound by the traditional rules of evidence, the commissioners structured community sessions and oral hearings “in a manner conducive to obtaining as full an understanding of the claim and its impacts as possible.”103 A key aspect of doing so involved showing respect for the elders and community lay witnesses. This meant taking precautions to assure that the hearings did not become the highly adversarial events that had been characteristic of those of the United States commission and Canadian courts. To accomplish this, the Canadian commissioners required the legal councils for the parties taking part to submit their

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3.4 | Cold lake claim area

queries in writing. The commissioners asked the witnesses questions of clarification with great care in order to avoid giving any sense that they were undertaking a critical cross-examination.104 A practice that the Indian Claims Commission adopted, which was similar to one already pioneered by the Waitangi Tribunal, involved having the research staff members create a single documentary record for each claim. These records were shared equally with all parties. They also produced annotated versions of all historical documents that consisted of excerpted portions that were relevant to the claim at hand. The research staff put these documents in chronological order. This practice was very different from the common approach in Canadian aboriginal and treaty rights litigation. During trials, opposing parties normally submit complete copies of all of the documents they rely upon. In doing so, they include countless pages of little relevance and often duplicate records introduced by their opponents. This practice helps to explain why

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the Delgamuukw trial generated over 50,000 pages of documents, a total that subsequent Canadian litigation has exceeded by a wide margin. It is unreasonable to suppose that a single trial judge can cope adequately with such a vast record when rendering a decision. Apart from these considerations, the commission noted that an additional advantage of producing a unified evidentiary record was that sometimes these compilations made it clear that additional research was needed.105 Occasionally, research convinced the federal government to reconsider its previous rejection of a claim. In their final annual report, the commissioners looked back over the eighteen years of the Indian Claims Commission’s existence with considerable satisfaction. The commission had investigated and reported on eighty claims and mediated another twelve. As of 2008, the government had accepted twenty-six (or approximately 26 per cent) of the commission’s recommendations to negotiate, and it had rejected nineteen (or approximately 24 per cent). The outcomes of another nineteen were pending at the end of 2008. Many of the latter involved inquiries that had been held from 2005 to 2008, but some were from Indian Claims Commission inquiries that had taken place from 1995 to 2000. The total value of claims recommended for negotiation and settled amounted to $351,674,138 by 2008.106 Most of the claims that came before the commission raised one or more topics. Among the most common (in order of frequency) were issues about federal fiduciary responsibilities, land surrenders, treaty land entitlements, treaty rights, and adverse environmental impacts. Most of the latter were the result of flooding caused by hydroelectric developments.107 In their retrospective observations, which the commissioners included in their final annual report, they stated that they were particularly pleased with the Indian Claims Commission’s approach to oral history evidence. The commissioners remarked that the Indian Claims Commission “has been a pioneer in the legal recognition of First Nations’ oral history evidence, prior to the courts granting it equal status with documentary evidence.”108 In this respect, although it had actually followed behind claims commissions in other countries, most notably Australia and New Zealand, the Canadian

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commission certainly did act in advance of the country’s courts. For example, the Supreme Court of Canada did not issue its Delgamuukw decision until 1997. Furthermore, the order in this judgment to relax the normal rules of evidence in order to facilitate the admission and proper weighing of oral history did not settle the issue. Battles about the weight to be given to this line of evidence have continued unabated in Canadian courts. Judgments have made it clear that some Canadian justices readily embrace the idea of giving weight to oral history evidence, whereas others remain very reluctant to do so.109 In contrast to major court rulings, such as Calder, Delgamuukw, and Tsilhqot’in, decisions of the Indian Claims Commission have received little public attention and have not been the subject of scholarly commentary. Largely, this reflects the nature of the commission’s mandate. It focused on very specific issues, most of which did not raise major theoretical issues about the nature of native societies before and after contact. In fact, commission research staff members were discouraged from engaging with theoretical or methodological issues.110

ChaPter Four

Anthropologists, historians, and the title Claims of Aborigines in Australia

About the same time that the precedent-setting Calder litigation was getting underway in Canada, the Yolngu Aborigines of Australia’s Northern Territory launched their aboriginal title suit – Milirrpum v. Nabalco Pty Ltd (1971) – in the Supreme Court of the Northern Territory. Similar to Calder, the Yolngu’s action marked the beginning of the modern era of title litigation in Australia. Although the petitioners failed when in 1973 the court flatly denied the existence of aboriginal title, key individuals inside and outside of the legal community felt that something had to be done to address the fact that Australian law had not acknowledged that the Yolngu and other Aborigines had been dispossessed unfairly. In the aftermath of Milirrpum, these sentiments led to the creation of a land claims process in the Northern Territory. Ultimately, Milirrpum also played a role in the eventual overturning of the draconian foundational Australian legal narrative of terra nullius (empty land), which had been instrumental in defeating the Yolngu petitioners. This was the bogus notion that, in the eyes of Australian law, the continent had been effectively uninhabited when colonization began. the gove land rights Case The traditional homeland of the Yolngu is located in the Gove Peninsula of Arnhem Land near the settlement of Yirrkala. For this reason, their title claim is often referred to as the Gove land rights

106 | Aboriginal Rights Claims and the Making and Remaking of History PA P UA NEW GUI NEA

I N D O N E S I A Boroloola people Timor S e a

Darwin

Indian Ocean

Arnhem Land

Yolngu people Yirrkala

Murray Islanders

Gulf of Carpentaria

N O R T HE R N T E R R I TO RY

Port Hedland

Coral

Warlpiri Country

Kariera people

Sea

Alice Springs

A U S T R A L I A Perth Adelaide

Indian Ocean

Yorta Yorta people Canberra

Sydney

Melbourne

Ta s m a n S e a

0 0

Brisbane

1,000 miles 1,000 km

Hobart

4.1 | Australia

case. The petitioners brought their title suit in the hope of blocking a bauxite-mining project in their traditional territory. The trial in the Supreme Court of the Northern Territory, which was conducted before Justice Richard Blackburn in Darwin in 1970, raised a number of issues about law and facts concerning the culture of the plaintiffs. Reminiscent of the Indian Claims Commission cases in the United States, the suit essentially asked the fundamental question of whether the Yolngu had any kind of an aboriginal land tenure system. Once again, the parties to the dispute called on leading anthropologists for their expertise on Aborigines’ traditional culture. For their support, the plaintiffs called William Stanner and

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Richard M. Berndt, who were leading anthropological authorities at the time. Additionally, a number of Yolngu lay witnesses testified on behalf of the community. A key problem at the trial was that the latter witnesses’ notions about the key issues at hand clashed with those of their own anthropological experts. As in the American claims almost twenty years earlier, their differences served to raise difficult questions about the way anthropologists conceptualized and theorized about the socio-political organization of huntergatherer societies and about the ways these societies related to the land before and after European contact. In another way that recalled the circumstances of the earlier hearings in the United States, the trial came at a time when significant divisions were developing within the small Australian anthropological community over the best way to characterize land tenure and land use practices among Aborigines. These divisions would play out in court. As in North America, anthropology in Australia had begun with a cultural evolutionary orientation; however, the subsequent development of the field on the two continents diverged substantially. The reason was that the founders of the discipline, Franz Boas in North America and A.R. Radcliffe-Brown in Australia, both rejected evolutionary theories of their time for being based on pure speculation. The two scholars, however, chose dissimilar alternative research perspectives. Boas focused on explaining local culture histories. Boas and his students, Alfred Kroeber being paramount among them, paid attention to the roles that diffusion and migration played in bringing about local culture change.1 As noted in greater detail earlier, mapping the distribution of culture traits was a key aspect of this work, and it led to the formulation of the culture area approach in North American anthropology. In sharp contrast, Radcliffe-Brown eschewed historical studies altogether in the belief that they would necessarily always be highly conjectural. Certainly, the historical and archaeological record for Australia was very thin when Radcliffe-Brown began his research. In any event, he thought that ethnologists should ignore the cultural pasts of non-European societies and, instead, focus their attention on the surviving structural features of those societies.2 His perspective is remembered as the “structural-functional” approach

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because it was based on the idea that the function that a particular trait served in a culture accounted for its existence. This idea also meant that it was not necessary to search for historical explanations of cultural traits. Radcliffe-Brown regarded Australian Aborigines as being very attractive research subjects because he assumed that they were archetypical “primitive” hunter-gatherers. Many anthropologists shared his perspective. Prominent among them was American cultural evolutionary anthropologist Julian Steward. Although Radcliffe-Brown’s influence and his disdain for cultural historical research meant that the culture area approach did not gain popularity in Australia, a few Australian anthropologists did briefly explore the approach nonetheless. Nicolas Peterson was one of them. He also explored it as a means to consider adaptations of Aborigines to varied physical environments.3 From 1910 to 1952 Radcliffe-Brown formulated the foundational anthropological model of Aborigines’ traditional societies. Although he was unwilling to make temporal speculations, RadcliffeBrown did not shy away from making sweeping generalizations about the essential structure of aboriginal societies based on field data that he gathered from a single group, the Kariera from the Port Hedland area of Western Australia. His model became the accepted standard. It had two key elements that would be crucial to claims cases beginning with the Gove case: (1) “tribes,” which were comprised of exogamous local patrilineal totemic (or clan) groups that spoke a common language, and (2) the “horde.” According to Radcliffe-Brown’s understanding, clans owned the land and controlled its sacred sites, whereas the horde was the local residential land-using group. Hordes were comprised of men, unmarried female members, and the wives of clansmen.4 Radcliffe-Brown thought that each horde had an estate, whose boundary was well known to members and outsiders. The proprietary rights of the estate and its products were held in common.5 Beginning in the 1950s, and gaining momentum in the early 1960s, Australian anthropologists began to question the universality of Radcliffe-Brown’s model in light of a handful of additional ethnographic fieldwork projects. In particular, they raised doubts about the existence of the “horde.”6 Lester R. Hiatt was one of the

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leading revisionists. In a series of articles that he published in the 1960s, Hiatt argued that critical aspects of Radcliffe-Brown’s conception of the horde were not supported by anthropological observations.7 Of particular relevance to the subsequent title claims of Aborigines, Hiatt contended that anthropological researchers had uncovered little evidence that Hordes exclusively used and occupied bounded estates. Hiatt reached this conclusion because ongoing field research had showed that clans did not live separately on their own estates for most of the year, as Radcliffe-Brown had imagined. Instead, Hiatt pointed out that new research showed that adjacent clans shared their lands and resources. This led him to conclude that the local resource-using group included members of several adjacent and related clans and that this group ranged over the estates of its members. On this crucial issue, Hiatt’s perspective was the opposite of that of Radcliffe-Brown. Not all anthropologists, however, accepted Hiatt’s revisionist conclusions. The Yolngu’s legal team, which included senior counsels Edward Woodward and F.X. Purcell, had hired two of them: W.E.H. Stanner and R.M. Berndt.8 Stanner, who was a strong advocate of aboriginal rights,9 was very worried that Hiatt’s approach had adverse implications for the claimants because he feared that it could suggest to the court that Aborigines lacked a tenure system in which local groups owned and exclusively used and occupied clearly defined territories. Evidence to that affect would defeat the plaintiffs’ claim that they had a proprietary interest in the land that could be recognized according to Australian property law. The problem for Hiatt was that he had concluded that Stanner’s own research, which he had undertaken almost forty years earlier in 1934 among the Warramunga desert people of the Tennant Creek and Alice Springs area of Central Australia, had raised problems with Radcliffe-Brown’s model. According to Hiatt, rather than questioning the model, Stanner assumed that the aberrations were the result of local European colonization.10 This was a historical question that Stanner had not pursued. Aware of the differences that existed among anthropologists on these crucial land tenure issues, the Crown Solicitor’s Department approached Hiatt to see whether he would be willing to appear on

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behalf of the government in the Gove case. This move by the Crown alarmed Stanner, who expressed his concern directly to Hiatt in a phone call and a letter. Hiatt told Stanner that he had no intention of appearing on behalf of the Crown. He also told Stanner that he too hoped the Yolngu would succeed. Acting on this exchange, Hiatt wrote to Purcell and told him about his interaction with Stanner. Hiatt informed Purcell that Stanner was especially worried about the problems that he feared were likely to arise at trial as a consequence of the ongoing debate about Radcliffe-Brown’s land tenure model. In a letter to Purcell, Hiatt stated that Stanner specifically warned, [T]he Crown and Company will obviously study the anthropological literature in search of disagreements and dubieties, with the intent to make much of them. There are statements in things you (and Meggitt, Elkin and Berndt)11 have written in recent years which can be turned to the Crown and Company interest … I have no doubt that you will be asked or required to say again, or to unsay, a number of things which counsel will argue to mean that the Yirrkala clans are “uncertain and fluctuating bodies” (which, therefore, strictly cannot “own” or have “rights” in anything); that, since “hordes” or “bands” are anthropological fictions, they’re only variable and shifting “communities” with vague territorial connections so that (as argued at Darwin) there is no real land-holding “system” at all; and other things of the kind.12 Hiatt was convinced that Stanner had misunderstood his disagreements with Radcliff-Brown, telling Purcell, “My argument with Radcliffe-Brown is not about land ownership but about residential associations, exploitation of resources and group movements.” He added, “Although we always find clear and unequivocal concepts of clans and clan estates, we do not often find that each clan lived separately on its own estate for most of the year. Nor was there any expectation that it should. Instead we find regular associations of contiguous clans, forming more or less stable communities that roamed over and exploited the resources of constituent clans.”13

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Hiatt also expressed his own apprehensions about the forthcoming trial and noted the important role that anthropological evidence could play in securing a positive outcome for the plaintiffs: The Court may be faced with three possibilities relating to natural resources on leased land [i.e., leased to a mining company]: (a) recognize the rights of the two owning clans to compensation; (b) recognize the rights of the whole Yirrkala community to compensation; (c) recognize no rights to compensation. It may be that the Court will be reluctant to concede the first possibility seeing in it a dangerous precedent, but may feel some sympathy for the second if an anthropological case of the kind I have indicated were to be made out of it.14 At trial, the plaintiffs’ anthropologists, Stanner and Berndt, presented Radcliffe-Brown’s model and did so as though it were an uncontested anthropological fact. In their testimony, the Yolngu witnesses contradicted this model by emphasizing that the composition of the local land-using groups was fluid and that their movements were not restricted to a single horde estate. In other words, what they described seemed more compatible with the scheme that Hiatt had been advocating. Curiously, almost twenty years later in 1998, when attempting to explain to a federal enquiry into the Aboriginal Land Rights (Northern Territory) Act of 1976 about why the anthropologists and the Yolngu elders had presented seemingly conflicting testimony to Justice Blackburn at trial, Woodward wrote, “As senior counsel for the Aboriginal plaintiffs I had put the case to Justice Blackburn on the basis of the clan, because that was the evidence I was able to call from the two pre-eminent anthropologists of the day, Professors Stanner and Berndt. It was also the clear instruction I had from my aboriginal clients. Throughout all the preparation for and hearing of that case, I heard no other view put by an Aboriginal or anthropologist.”15 Woodward did not mention the warning that Hiatt had sent to his partner, Purcell, about the conflicting evidence that the judge

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4.2 | edward Woodward with roy marika at yirrkala in 1973. roy marika was a key player in the move toward land rights legislation.

would likely have to confront in the Gove case. Puzzling also is the fact that almost twenty years later Woodward stated that, at the time of the trial, Berndt and Stanner were aware that the landowning and land-using groups were not identical.16 In any event, given the conflicting testimony that was presented to him, especially the testimony of the Yolngu plaintiffs, it seemed to Blackburn that the groups living in the claimed area did not have proprietary rights based on exclusive use and occupancy. Another problem for Justice Blackburn was that Yolngu as individuals or a group could not alienate land. This was an essential characteristic of private property in the eyes of Australian law and the common law more generally.17 The plaintiffs, similar to other Aborigines, could not alienate the land because it jointly belonged to, and was a part of,

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past, current, and future generations.18 According to Woodward, these problems meant that Justice Blackburn “found that the relationship between Aboriginal people and land was one of obligation rather than ownership.”19 Similar to the Iowa and California cases, the Gove litigation highlighted a potential downside of having anthropologists serve as experts. The models (or generalizations) of the anthropologists of the day highlighted idealized systems and practices and downplayed the adjustments that local groups made to suit ever-changing local circumstances, a point made by anthropologists Nancy Williams and Les Hiatt.20 Another anthropologist, Kenneth Maddock, added that anthropologists have terminology in mind that is drawn from their “natural terminology” (or disciplinary discourse) and that this terminology, in turn, influences their selection of data.21 It is understandable why Stanner emphasized the formalized model of Radcliffe-Brown given Australian law at the time. As his exchange with Hiatt reveals, Stanner thought that it was essential to prove to the court that it was an anthropological, and hence scientific, fact that the Yolngu’s tenure scheme was based on formulized laws that gave the “horde,” or local land-using group, the right to exclusively use and occupy the territory it owned.22 Stanner feared that unless this argument was accepted, the Yolngu would not win their case. Subsequently, Australian anthropologists have given considerable thought to the evidentiary issues that arose at the Gove trial regarding the effort to assess the actual land use practices of the plaintiffs in terms of an idealized model. Nancy Williams, who attended the trial as an observer, noted that at the time the trial was held in 1970, insufficient research had been completed in the varied environments of Australia to determine the range of practices that were characteristic of Aborigines’ societies. Undertaking comparative work in the absence of these studies, which is essentially what happened at trial in comparing Yolngu practices with the RadcliffeBrown model derived mostly from the Kariera, meant that the Gove case became a sort of “presence-absence” study wherein the practices of the plaintiffs were compared to a model that was derived from Aborigines who lived on the other side of the continent in a very different cultural-environmental circumstance.23

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Another problem at the time was that, until the early 1970s, nearly all of the informants interviewed by anthropologists were men. Not surprisingly, researchers had emphasized their male informants’ ties to the land. They were particularly interested in the ways that patrilineal clans controlled the sacred sites and dreaming tracks that connected them. This spiritual landscape determined the outlines of the estates. In the end, Radcliffe-Brown’s idealized abstraction based on a small sample was reified in the Gove case and was the standard against which Yolngu testimony, which told a different story, was evaluated.24 Reflecting on Stanner’s and Berndt’s testimony some twenty years later, Nicolas Peterson observed that it raised the issue of whether Aborigines’ relationships to their land was fluid and changeable. It also raised the question of the degree to which the way that aboriginal people thought and talked about land corresponded to what they actually did in practice with their land.25 After hearing all of the testimony, Justice Blackburn concluded that the evidence presented to him at trial clearly demonstrated that Yolngu clans had spiritual connections to the land and ritual obligations to it based on these links. However, he did not consider such connections to constitute proprietary interests. Regarding the relationship of the clan to the “horde” or “band,” the judge was impressed that “not one of the ten witnesses, who were from eight different clans, said anything which indicated that the band normally had a core from one clan.”26 Woodward later wrote that he thought Justice Blackburn had reached this crucial decision in part because he did not understand the problems the plaintiffs’ lawyers faced in presenting their evidence. One key problem, which has been manifest in aboriginal land claims litigation ever since, concerned the difficulties inherent in cross-cultural and cross-disciplinary (or social sciences and law) communication in the courtroom. About this issue, Woodward remarked, “His Honour was probably unaware of the difficulty of counsel in trying to direct the minds of uncoached and elderly witnesses, giving evidence through interpreters (who were strong either in English or in the relevant native dialect, but seldom in both), to a subtle point about the strength of particular clan mem-

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bers in the bands they remembered in their childhood or had been told [about] by their fathers.”27 Woodward continued: “the task was made more difficult by the narrow view which His Honour took about how far counsel could go in directing the mind of a witness to a particular issue before the question became an inadmissible leading question, and by the problems of terminology when one could never be sure how the idea of a band or ‘territorial group’ (Stanner) or ‘co-resident group’ (Berndt) would be translated into any particular Aboriginal dialect.”28 About the problem of appearing to lead aboriginal witnesses, Woodward elaborated, “It was extremely difficult to bring witnesses’ minds to a particular issue such as what they had been told by their parents, or grandparents or other elders, about a particular piece of land, without referring in some detail to the land in question.” He noted that “the risk of course is that you seem to be suggesting the answer by giving the detail necessary to bring their minds to such a comparatively abstruse piece of evidence, because they were being asked to cast their minds back virtually to their childhood, to about the time of their initiation, and to explain what they were then told about the limits of their land. As I say, to do that without asking leading questions was extremely difficult.”29 It is highly likely that some of the problems Woodward highlighted had been exacerbated by the fact that the trial was held in Darwin and Canberra, far removed from the lands in question. In any event, there is little doubt that in the Gove case the witnesses, the court, and the lawyers failed to reach common understandings about crucial issues and terminology. It is unclear the extent to which this problem played a crucial role in leading Justice Blackburn to conclude that membership in the local resource-using group was highly fluid and, therefore, caused him to decide that the plaintiffs did not hold a proprietary interest in the land. Almost twenty years later, during a discussion with anthropologist Nicolas Peterson and Australian philosopher Max Charlesworth,30 the latter asked Woodward whether there was any aspect of the testimony of the aboriginal witnesses that had positively impressed Justice Blackburn. Woodward thought that the consistency

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of their testimony had been most impressive: “Well, I think one would have to say the consistency of the evidence and the fact that it wasn’t contradicted, that there was no suggestion from Aborigines of any doubt about any particular piece of land. They were always able to say that ‘that land,’ when a particular area was referred to, ‘is Gumatj land’ or ‘is Riratjingu land,’ even in a case where it might have seemed strange that it was so because it may have been a small enclave in the middle of a much larger area belonging to a different clan.”31 He added, “And yet whoever you asked, whether it was members of the clan that owned the surrounding land, members of the clan who were supposed to own the enclave or members of other clans who had no particular interest in that area, they would all say, without doubt and without contradicting each other, just who it belonged to. That consistency, as it ran through a series of witnesses, was I think impressive.”32 Having asked about the problems Woodward had faced presenting evidence at trial, Charlesworth then turned to the question of whether Woodward thought there had been any positive aspects of the Gove judgment even though it had held against his clients. Woodward affirmed there were. Most important for him, the judgment acknowledged that there was an aboriginal legal code: “certainly there was one very important aspect to it, which was that he found that the Aboriginal relationship to land did involve an identifiable code of law. That was the positive finding and it really provided the basis, I think, for the pressure that then arose for appropriate legislation.”33 Woodward thought that the primary negative finding was Blackburn’s view that “the nature of that Aboriginal relationship to land was not a proprietorial relationship such as we are accustomed to in British Common Law or in other European codes.”34 Because Blackburn’s acknowledgment of the existence of an aboriginal code represented a major step forward in Australian law, Woodward decided not to appeal the judgment: The finding, though, that there was an identifiable legal system which delineated packages of land, however im-

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precisely, was I think a vital one, and indeed it was one of the reasons why I advised against any appeal. I felt firstly that it was most unlikely that the High Court, as it was then constituted, would go any further than Mr. Justice Blackburn had been prepared to go. We’d received from him an extremely sympathetic and careful hearing and I just couldn’t see a Court of Appeal upsetting his decision on that main issue about the nature of Aboriginal relationships to land. What I was afraid of was that we might lose what we had already gained and the High Court might not be prepared to find, as Mr. Justice Blackburn had done, that there was an identifiable code of Aboriginal land law.35 Aboriginal land rights Commission (Woodward Commission), 1973–74 It seems that Woodward was correct to suggest that Blackburn’s finding concerning an identifiable core of law among the Yolngu would lead to pressure for appropriate legislation to address the rights issues that the Gove litigation raised. Indeed, after rendering his judgment, Justice Blackburn took the extraordinary step of writing a confidential memorandum to the federal Labour government of Gough Whitlam (1972–75) and the Opposition to express his opinion that it was “morally and socially expedient” to establish a scheme for recognizing aboriginal land rights.36 His memorandum received a positive reception from the Whitlam government. Immediately after being elected, Whitlam appointed Woodward to head up an Aboriginal Land Rights Commission (commonly remembered as the Woodward Commission) as a first step toward drafting beneficial legislation that would grant land rights to Aborigines on Crown lands in the Northern Territory that currently were not under pastoral, mining, or other types of long-term leases. He was expected to recommend a scheme for recognizing aboriginal peoples’ traditional rights and interests on undeveloped Crown land in the Northern Territory. The small Department of Aboriginal Affairs, which Whitlam had just created and was comprised of only one full-time and two part-time members, had pushed for the com-

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mission and recommended that Woodward lead it. Anthropologist William Stanner was one of the part-time members of the new department. He and his colleagues drew up Woodward’s terms of reference. They also recommended to Woodward that he appointment a young anthropologist – Nicolas Peterson – to assist him.37 In preparation for their task ahead, Woodward and Peterson travelled to the United States and Canada in 1973 to consider these two countries’ experiences with addressing aboriginal land claims. According to Woodward, American officials showed little interest in Australian aboriginal rights issues, so he quickly moved on to Canada.38 Woodward remembered being warmly received in Ottawa by Jean Chrétien, who was then the minister of Indian affairs (1968–74) under the Liberal government of Pierre Trudeau. Woodward found officials in Chrétien’s ministry to be very cooperative even though they were in the midst of coming to terms with the Calder case of 1973, which involved, as we have seen, establishing a federal claims program. While Woodward visited Ottawa, Peterson travelled to the Yukon, where by 1973 the Yukon Indian Chiefs had organized a grassroots land claims movement and presented a petition to Prime Minister Trudeau.39 Woodward came away from this trip convinced that the North American experience demonstrated that awarding cash settlements to Aborigines in order to settle their land claims was a bad idea.40 As for the United States Indian Claims Commission, he thought that it was much too litigious. For him, it was not a model for Australia to emulate. Woodward was a politically savvy individual who understood that for any land redistribution scheme to work in the Northern Territory, it would be absolutely essential to obtain support from the nonaboriginal Australian community.41 To achieve this objective, Woodward believed that clear criteria had to be established for determining legitimate aboriginal claims. Rigorous procedures would also be needed to make it clear to the public that successful claimants had met whatever criteria were specified.42 Wanting input from Aborigines before he made his recommendations, Woodward took two steps toward this objective: he recommended the establishment of two land councils, and he took his

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hearing to the communities. Regarding the land councils, Woodward later explained, “What I was looking for was some sort of a grouping of Aborigines who would then be able to brief lawyers and, if necessary, employ other professional assistants so that a positive case could be put before me which would broadly reflect their aspirations, but at the same time put them into a form which would be of assistance in making recommendations.”43 His path-breaking decision to take the commission out to Aborigines’ communities was based on his belief that hearings should take place in an environment that was less formidable and remote than had been the case in the Gove trial, which took place in courtrooms in Darwin and Canberra.44 Even though Justice Blackburn had departed from normal procedures by allowing the Yolngu men to produce their sacred objects with the appropriate invocations in his chambers in the absence of any females, as was their customary practice, this was not sufficient to make the court Aborigine-friendly.45 In his first report as commissioner, which he filed in 1973 during his first year, Woodward noted that the federal government’s commitment to grant land rights to the Aborigines of the Northern Territory meant that his primary task as commissioner was to determine what was the best way to achieve this objective. He thought it was essential to begin by obtaining an understanding of Aborigines’ tenure practices. Already he had gained some perspectives on this critical issue and the problems it posed in his former role as the lead council for the plaintiffs in the Gove land rights case. His visits to the Northern Territory as head of the Aboriginal Land Rights Commission, where he had interviewed Aborigines, and his conversations with his anthropological advisor, Nicolas Peterson, shaped the views he expressed in his report of 1973. Woodward concluded that he faced a number of serious problems, some of which arose from the difficulties inherent in attempting to express aboriginal concepts in English terms, especially terms cognizable in law, a difficulty he had confronted as counsel for the Yolngu in the Gove case. He explained, “On enquiry, it soon becomes clear that the social organization of the Aboriginal people is highly complex. The problem of understanding it is made worse by

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a number of factors. These include, firstly, the difficulty of expressing many Aboriginal ideas and arrangements in English terms. Even simple words, such as ‘owner’ and ‘tribe’ can be misleading.”46 Woodward continued, Some aboriginal concepts related to land-owning have no parallel in European law. The most important and widespread of the rights in land that lie outside European arrangements is the managerial interest of a nephew in the country of his maternal uncle. Everywhere the religious rites owned by a clan were the “title deeds” to the land and could only be celebrated by clan members. Such rites, however, could not be held without the assistance of the managers, whose essential task it was to prepare the ritual paraphernalia, decorate the celebrants and conduct the rite. The agreement of the managers had to be secured for the exploitation of specialized local resources such as ochre and flint deposits and for visits by the clan owners to their own sacred sites.47 The conflicting terminology that anthropologists used to describe the basic socio-political units that were essential components of local land tenure regimes complicated Woodward’s task further, recalling an issue that anthropologists Alfred Kroeber and Anthony Wallace had raised in the United States Indian claims cases in the 1950s. About this problem, Woodward wrote, “some words used by anthropologists such as ‘horde,’ ‘clan,’ and ‘band’ have been given more precise meanings [than those of common usage] in their writings on the subject, but they have not always been used in the same way and so require definition each time they are used.”48 He elaborated, “it is common to speak of Aboriginal ‘tribes’ … The distinguishing marks of such a group are a common language, a commonly used name for that language and thus for the people speaking it, and an identifiable tract of country where those people live or used to live.”49 The problem for Woodward was that the term “tribe” commonly “has also been used for a group of related peoples, speaking different languages but living in adjacent areas.” Given this confusion, Woodward, as Kroeber had done in the 1950s, coined his

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own term in an effort to eliminate confusion. Woodward applied the label “ethnic bloc” to a group of related Aborigines living in adjacent territories.50 His understanding was that the tribe, or ethnic bloc, did not seek to achieve political or social unity and, therefore, was not the basis of aboriginal social organization. Rather, smaller groups had to be identified for this purpose.51 A related difficulty Commissioner Woodward faced concerned the ongoing disagreement among anthropologists about the exact nature of the relationship that existed between aboriginal landholders and land-using groups.52 He surmised that the lack of professional agreement among anthropologists about this crucial issue stemmed from the lack of reliable information about the situation that had existed before newcomers arrived: “In almost every case, detailed study by trained anthropologists has occurred a number of years after Aboriginal ways of life have been influenced, if not radically changed, by contact with Europeans.”53 Here, Woodward flagged an issue concerning the flawed historical record on traditional cultures that researchers of claims in all of the countries under review have often had to face. He also identified a commonly related problem, which concerned the gender bias of most of the extant ethnographies. The bulk of the recorded information about the past came from older men, most commonly involving male anthropologists talking to men. An added problem was that most interviews had taken place at some distance from the scene of the events being discussed. The “lower level social” units were another of Woodward’s concerns. He noted that some tribes, or ethnic blocs, consisted of groups of people who spoke distinct dialects of a local language and that “in some cases the dialect group within the tribe does represent the key social unit. In other cases this is to be found one step lower down the scale at the level of the clan.”54 According to his understanding, “membership of such a clan is determined by birth, since for land-owning purposes, the child automatically becomes a member of his father’s clan.” Of particular importance, “the members of a clan retain that membership throughout their lives and, indeed, thereafter. The link between an Aborigine’s spirit and his land is regarded as being timeless. The land-owning clan is merely a

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group of people who share the same links with the same land.”55 In elaborating on the spiritual ties of Aborigines to their land, Woodward emphasized that “their religion or mythology teaches them that particular areas were given to them, or claimed on their behalf, by their spirit ancestors in the Dreamtime. For this reason there are specific stories, songs and ceremonies linking these spirit ancestors with particular places. The more important the place is to the legend, the more sacred it is.”56 Although Woodward understood, therefore, that places were of unequal spiritual significance, and that boundaries could be blurred, he also knew that “all country is of some importance and is identified with some clan or other groupings.”57 Further, spiritual connections between that land-owning unit and its land involved rights and duties: “the rights are to the unrestricted use of its natural products; the duties are of a ceremonial kind – to tend the land by the performance of ritual dances, songs and ceremonies at the proper times and places.”58 Although Woodward clearly had come to appreciate that Aborigines had very complex and well-codified land tenure systems that had been passed down orally through countless generations, he also understood that their traditional regimes could adapt to the kinds of local emergencies that befell all small-scale societies sooner or later. And although these responses might look to outsiders like evidence of a breakdown of traditional tenure regimes, this was not the case: It is apparent that a clan, being of only moderate size, can die out. This must have happened on occasions in the days before white contact. With the coming of the white man, such instances must have occurred more frequently even in the [more remote] Northern Territory. Since the produce of all land is important, and, in Aboriginal belief, good seasons depend upon ritual observances, it was normal for the sacred objects and ceremonies of that clan to be taken over or cared for by another closely related clan. Since, as I have said, the connection of Aborigines with their land is timeless, commencing before birth and continuing after death, this taking over should be seen as a form of trusteeship rather than a transfer of rights.59

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In other words, as Alfred Kroeber had argued in the California claims, Woodward was convinced that local depopulation did not necessarily lead to the extinguishment of Aborigines’ land rights when viewed from their perspective. Whereas Kroeber had also argued that spiritual uses of the land should be considered as important as those of a subsistence nature when assessing title claims, Woodward had come to accept that spiritual ties to the land were essentially the foundation of the tenure regime. Furthermore, Aborigines had devised the means to sustain those links. Having come to a sophisticated understanding of the Aborigines’ land tenure practices and of the divisions among anthropologists about how best to describe them, Woodward decided that it would not be possible to write legislation that could protect all the different rights and entitlements given by aboriginal law. Accordingly, for him, the most sensible strategy was to recognize the authority of the elders of the clan that was the primary owner of the land and to rely on them, in turn, to recognize and respect the lesser rights of others on that land.60 In coming to this conclusion about the centrality of the clan, Woodward acknowledged the scholarly influence of anthropologists Radcliffe-Brown, Stanner, and Berndt.61 establishment of the Aboriginal land Commission and its formative years under Commissioner Justice John toohey Through his successive roles as legal counsel to the Yolngu and as head of the Aboriginal Land Commission of 1973–74, Woodward played a central role in shaping Australia’s approach to the land claims of Aborigines in the Northern Territory. Of particular importance were his recommendations as commissioner, many of which were incorporated into the Aboriginal Land Rights (Northern Territory) Act of 1976. The act enshrined into law a significantly modified version of Radcliffe-Brown’s conceptual model of Aborigines’ societies. Part 1 of the 1976 act states, “‘Traditional Aboriginal owners,’ in relation to land, means a local descent group of Aboriginals who: (a) have common spiritual affiliations to a site on the land, being affiliations that place the group under a primary spiritual responsibility for that site and for the land; and (b) are entitled by

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Aboriginal tradition to forage as of right over that land.” Of crucial importance for the subsequent operation of the Aboriginal Land Commission, this section of the act did not specify that the “local descent group” had to be patrilineal, nor did it mention the “clan.”62 Also, section b opened the possibility that rights inherited from the male line would not be the only determining factor. Woodward told me that this vagueness in the definition of the “local descent group” was intentional. He wanted it to be open to interpretation. Indeed, these clauses gave aboriginal land rights commissioners the flexibility when defining eligible claimants to allow for spatial variations in spiritual and custodial ties to lands claimed as well as for foraging rights to those lands.63 In his final recommendations in 1974, Woodward had proposed creating a land commissioner’s office to deal with traditional land claims in the Northern Territory. This office was included in the Aboriginal Land Rights (Northern Territory) Act of 1976. The act specified that an aboriginal land commissioner was to be appointed by the governor general and had to be a member of the Supreme Court of the Northern Territory. Section 50 of the act gave the commissioner the paramount responsibility of ascertaining whether the Aborigines who filed a “traditional land claim or any other Aboriginals are the traditional Aboriginal owners of the land” in the terms specified in the legislation. The aboriginal land commissioner was expected to report his findings to the minister of aboriginal affairs and to the minister for the Northern Territory and advise them whether land grants should be made. Northern Territory Supreme Court Justice John Toohey received the initial appointment as land commissioner. He proved to be highly innovative and open to accommodating Aborigines’ traditions. In his first report, Toohey emphasized that the Aboriginal Land Commission was procedurally unusual in several crucial respects: Proceedings under the Act are not truly analogous to those of conventional court proceedings nor to those of Royal Commissions. With the latter there are no parties in the sense in which that term is ordinarily understood and often no one upon whom any onus of proof lies. A Royal Commissioner is

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entrusted with the task of inquiring into a particular matter and ordinarily he is assisted by counsel as the only or at any rate the most appropriate way of ensuring that the necessary facts are brought to his attention. Under the Land Rights Act there are applicants who presumably prefer to present their case in the way that they think best with witnesses whom they decide to call and with such counsel as they engage.64 Not only would the applicants have the latitude to present their own case before the commissioner, but as had been the case with the United States Indian Claims Commission, Toohey also had authority under the act to conduct his own investigations of the claims.65 And, in contrast to his American counterparts, he chose to do so from the outset. In the first claim that came before him, which was that of the Borroloola from Arnhem Land, Toohey hired his own anthropologist, Marie Reay from the Australian National University. He explained that, “having heard evidence from an anthropologist, from individual Aboriginals, and indirectly from a large number of Aboriginals through videotapes, it seemed to me that the most appropriate method of checking the claim was to submit the evidentiary material to an anthropologist, preferably someone familiar with the area.”66 Toohey circulated Reay’s report to all parties before she testified in the closing days of the hearings. Although Toohey cautioned that this approach might not always be correct, in subsequent claims he continued the practice of hiring his own anthropological expert. To minimize the risk of his office developing a particular bias, he retained different ones in successive cases. Usually, Toohey chose his experts from among those who had appeared before him in previous cases. On 8 June 1977, months before the first claims hearings began the subsequent autumn, Toohey issued a path-breaking practice guideline for the presentation of evidence before his commission. There would be no strict adherence to the ordinary rules of evidence: “In particular, as a general proposition hearsay evidence may be admitted, the weight to be attached to it to be a matter for submission and determination … witnesses will be asked to take an oath or make an affirmation before giving evidence and ordinarily will be subject

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to cross-examination.”67 He also agreed to allow the presentation of videotapes of large meetings of claimants, such as those held by the Northern Land Council on behalf of the Borroloola petitioners, even though this precluded cross-examining those who testified in this manner. Toohey reasoned that without submitting testimony via videotapes, many claimants would never have an opportunity to be heard in a reasonable length of time. The claim of the Borroloola from the northeastern coastal region of the Northern Territory was the first test of Toohey’s relaxed rules of evidence. His relaxation included accepting some of the Aborigines’ traditional ways of testing the claims of individuals and of coming to a consensus about their rights claims through public meetings. Toohey discussed this in his report for the Borroloola claim. He noted that this approach helped him to weigh the evidence in a fairer way than would have been possible following standard courtroom procedures. For instance, when discussing the transcript of a meeting of about 200 plaintiffs and experts, he observed, “No doubt there are defects in this sort of material. It was suggested for instance that some of the questions put by Mr. Avery [the petitioners’ anthropologist] at the meeting were leading in nature but I accept that for the most part leading questions were only used for confirmation or clarification of basic information already offered spontaneously.” Toohey added, “It is possible too that some persons may dominate a meeting to the exclusion of others. With all that in mind the important thing is that people spoke in front of the community of matters relating to their own country such as the locations of places and dreaming paths about which others would have a general knowledge.” He acknowledged the presence of a group dynamic within individual testimony but saw that as being positive: “There were instances where people spoke and later corrected themselves or were corrected by others, but it is fair to say that out of that meeting a general consensus arose regarding the identity of owners of land and the territory to which their ownership related.”68 Following Woodward’s lead with the land commission of 1973– 74, Toohey took his hearings to the communities, beginning with the very first claim, which was that of the Borroloola. Hearings commenced in Darwin but then moved to Borroloola to take evidence

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before concluding back in Darwin. Toohey also adjusted operating procedures to accommodate changing circumstances. In the Borroloola and next three hearings, for instance, it was the anthropological experts appearing for the various parties who led off the testimony. Aboriginal witnesses followed them. By the time of the fifth claim, that of the Yingawunarri, for which hearings took place in July and August 1979, Toohey had reversed the order in which witnesses testified.69 Toohey explained that he wanted to accommodate aboriginal witnesses by having them go first “because the claimants were employed on Montejinni Station and taking their evidence first left them free to return to work with the least possible interruption.”70 He quickly saw that there were unanticipated advantages of hearing witnesses in this order, explaining in his report on the Yingawunarri claim that hearing the anthropological evidence first could have privileged that evidence over aboriginal knowledge: It cast the anthropologists more truly in the role of recorders. A comprehensive and helpful claim book was available to give a broad picture before the evidence began, but there was not the same tendency to see the anthropological model as one into which the evidence of all witnesses should fit. For instance, there were some children in an adoptive relationship. While it is true that in other hearings the anthropological model has referred to actual and classificatory relationships, the position of these children emerged more naturally than it might have done had the anthropological evidence been taken first.71 After explaining that he did not want to overstate the merits of this approach or suggest that hearings should always proceed in this fashion, Toohey noted that “Dr. [Francesca] Merlin, an anthropologist called by counsel assisting the Commissioner, thought that the procedure followed [for the Yingawunarri claim] had been useful. She also made the point that there had been a tendency to confine the evidence of Aboriginal witnesses to traditional ownership when some may have been able to speak with authority on such matters as the use of roads, dips and bores in the area.”72

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reconceptualizing land tenure regimes and land rights The definition of “traditional owners” in part 1 of the Aboriginal Land Rights Act required the aboriginal land commissioner and the anthropological experts who appeared before him to address three questions when assessing the legitimacy of a claim: (1) Were the claimants a “local descent group?” (2) Were they the owners of the sacred sites on the land? (3) Were they entitled by aboriginal tradition to forage over the land? In his Borroloola land claim report, Toohey observed that the words “group” or “groups” were used in the act in several places and raised the question of whether it was necessary for him to identify the traditional owners (or members of the groups) by name. He concluded that it was necessary for him to do so.73 Accordingly, beginning with the Borroloola hearings, participants focused considerable attention on the genealogies of the claimants, the presence or absence of named or unnamed clans, and other social divisions, such as moieties. The latter are descent groups that are divided into two equal parts and often have reciprocal relations to each other. In the Borroloola claim, the evidence emphasized the existence of patrilineal clans divided into “semi-moieties,” which the claimants considered to be to the landowners. The claimants referred to members of these groups as nimaringki, which Toohey understood to mean “owner of land.” This evidence convinced Toohey to accept them as such according to the terms of the act. Other subjects arose during the Borroloola hearings that would loom even larger in subsequent claims because they related to the issue of who had foraging rights to a given tract of land and thus should be regarded as being a traditional owner. In his report on the claim, Toohey discussed this issue, noting that there may be “other Aboriginals with some interest by way of ownership, but who do not possess the primary spiritual responsibility for sites and land as spoken of by the Act.”74 These “other interests in the land” arose from a variety of circumstances. The Borroloola hearings raised one of these: “conception filiation.” This was the Aborigines’ belief that at the time of conception a spirit child (ardiri) enters the mother. When this occurs outside of the father’s own clan territory, but in

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an area where he is a nimaringki, the child is recognized as an owner of the land even if he or she is not a member of the clan having primary ownership. Toohey also learned in Borroloola that members of the local society who were not nimaringki had management responsibilities for sacred sites. Thus, by not restricting the definition of “traditional aboriginal owners” solely to the local descent group that owned sacred sites on the land, the act enabled Toohey to broaden the pool of potential owners of particular tracts of land. By doing so, Toohey also provided an incentive for claims researchers to expand their research beyond determining patrilineal rights. There were very practical reasons for including these other rights. Whereas initially the claims emphasized the rights that men inherited from their fathers, the sorts of “secondary” land use rights and obligations described above received more attention as the claims process continued to unfold. The primary reason for this shift in direction was that the Aboriginal Land Rights Act specified that only unalienated Crown lands could be claimed. As of 1976 these lands were spread out as an uneven patchwork over the landscape. If rights that descended down the patriline had been the sole determinants of aboriginal title, many local descent groups would not have been able to file a claim because some or all of their lands had already been taken up by newcomers. On the other hand, aboriginal claimants might successfully petition for unoccupied lands if they could assert other rights, such as those deriving from responsibilities for managing ritual practices and sites. The cultural reason for including these other rights was that this broader perspective recognized the reality of traditional aboriginal practices, which had always provided local groups with the spatial flexibility that they needed to survive.75 Particularly important, for example, was the tradition of children’s inheritance from their mother’s brother. Included in the inheritance were guardianship responsibilities for the dreaming sites. In the claim of the Warlpiri and Kartangarurru-Kurintji of the arid Alice Springs area of Central Australia, Nicolas Peterson, the anthropologist who had worked on the Woodward Commission, explained the relationship between kirda and kurdungurlu and sacred sites: “the owners or Kirda join

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with their relatives in other clans, in particular some of the female clan members, known as Kurdungurlu or workers, in carrying out the religious activities connected with the land.”76 In his sixth annual report to the mininster of aboriginal affairs, Toohey commented about the increasing consideration he was giving to the “secondary rights” holders, the kurdungurlu: “in earlier claims there was a tendency to proffer the patriline as the ‘local descent group’ for the purposes of the Act.”77 The best example, he said, was the Warlpiri claim.78 By the sixth claim, however, which the Central Land Council of the Northern Territory filed on behalf of the Anmatjirra and Alyawarra from arid Central Australia (referred to as the Utopia claim),79 for the first time the kurdungurlu were put forward as claimants along with members of the patriline. Regarding the kurdungurlu, Toohey reported, Although, on the material advanced during the hearing, I was not satisfied that the Kurdungurlu should be included among the traditional owners, I accepted that in principle they might well qualify. In fact, they did so in the next claim to be heard, the Willowra Land Claim.80 In the Limmen Bight Land Claim81 there were difficulties in the way of including the Djunggaiyi, the counterpart of the Kurdungurlu. But again I accepted in principle their entitlement to be listed. I have included the Kurdungurlu among traditional owners in later reports. In addition, as early as the Uluru Land Claim [claim number 4],82 persons were said to be traditional owners through their mothers. This was accepted as consistent with the Act.83 Regarding this more expansive definition of who qualified as traditional owners according to the Aboriginal Land Rights Act, Toohey concluded that the notion had expanded from what anthropologists originally envisoned: “In general, the somewhat restricted approach to the notion of local descent group taken by anthropologists in the earliest claims has broadened.” He explained that this was “not to say that the term ‘local descent group’ has ceased to have any real meaning under the Aboriginal Land Rights Act. The characteristics

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of local, descent and group remain as necessary components, but it is possible to take a wider approach to the notion than was offered in the earliest claims.”84 Writing two years after Toohey made this observation, Les Hiatt applauded the commissioner for being open-minded when weighing the evidence brought before him and shifting his outlook accordingly. Hiatt also observed, “hearings conducted by the Aboriginal Lands Commissioner in accordance with the Land Rights Act have confirmed again and again that neighbouring clans range over each other’s territory as a matter of custom and right.”85 Furthermore, Hiatt concluded that none of the claims research undertaken in the Northern Territory after 1976 upheld the concept debated in the Gove trial of the patrilineal “horde” as having exclusive rights to particular tracts of land. On the contrary, he thought that claimsoriented work “even raised doubts as to whether patrilineality was always the pre-eminent qualification for ownership.”86 Although Hiatt may have taken an extreme view, claims research had demonstrated that the traditional model of Radcliffe-Brown had largely ignored the land use rights of women and the reciprocal obligations that moieties had toward one another with regard to the protection of sacred sites and the performance of the crucial ceremonies that were associated with them. This sensitivity to gender bias in research was influenced and reinforced by the growing strength of the international women’s movement and feminist scholarship. Indeed, by the early 1990s some Australian anthropologists had criticized the Aboriginal Land Rights (Northern Territory) Act for its gender bias and the fact that it made aboriginal women secondclass citizens.87 In contrast to Hiatt, Australian anthropologist Kenneth Maddock was more critical about what had transpired in these early claims cases. For him, they highlighted the general problem of codifying in statutes anthropological concepts, which had been intended for other purposes, and using anthropologists as experts to interpret them. Maddock’s basic concern related to what he called the “anthropologist’s problem of translation.”88 This was the challenge of deciding how to express the ideas of one society in terms belonging to another. Julian Steward had discussed this issue at Detroit

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in 1955. He saw it as being a key problem of the Indian claims process. In particular, Steward thought it was very problematic to take legal concepts drawn from Anglo-American cultural tradition and attempt to apply them uniformly to tribal societies no matter how varied the latter had been. He thought that anthropologists added to the problem by being inconsistent and often conflicting in the application of concepts such as “band,” “nation,” “chief,” and “property.” He thought that anthropologists had particular difficulty with the concept of “property.”89 Maddock thought that this was also a major problem in Australia. He was particularly troubled by the fact that anthropologists did not seem to have a common understanding of the ownership systems that they had ascribed to the Warlpiri and other claimants.90 Other Australian anthropologists, most notably Bruce Rigsby, have pointed to the more general problem of relating common law property theory to the notions held by anthropologists and other social scientists, especially resource economists, regarding joint and communal ownership.91 Maddock highlighted an additional problem, that of trying to “convey a reality which is apparently not expressed in the society studied.” He was particularly concerned about the use of the term “kirda” before the Aboriginal Land Commission. He thought that roughly translating this term as “owner” was wrong.92 Twenty years later, anthropologist Dianne Bell revisited this issue of cultural translation. She noted that the glosses “owner” for “kirda” and “manager” or “worker” for “kurdungurlu” are misleading if taken literally. Bell noted that for Aborigines, who draw on their cattle station work experience for analogies, “work” is consistently applied to the spiritual domain. They refer to ceremonial activity as “business” and to the ritual storehouse as the “office.”93 Just as Indian claims cases had forced American anthropologists to pay more attention to the spatial dynamics of tribal territories, the Aboriginal Land Commission of the Northern Territory had forced Australian anthropologists to think more about the spatial aspects of estates. As early as the second claim concerning the Warlpiri and Kartangarurru-Kurintji, for example, research raised questions about the universal applicability of the idea that local descent groups had clearly demarcated estates.94 As noted, these claimants

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were from the central desert region near Alice Springs. Toohey remarked that the Borroloola, who had been the first claimants he had dealt with, lived in Arnhem Land, where they had abundant river, sea, and woodland resources. In this setting, the Borroloola could live within well-defined estates. This was not the case, however, for the claimants from desert country. In the Alice Springs area, widely scattered water resources became the places of significance for the smaller and more dispersed land-owning groups. Prior to the hearings for the Warlpiri and Kartangarurru-Kurintji, William Stanner, who appeared as an expert assisting Toohey in the case, had coined the term “heartland” to describe the areas adjacent to water sites. However, Toohey reported that, when appearing before the commission, Stanner “was disposed to eschew the use of the term now on the grounds that it may tend to suggest that places of significance are found only where there is good water and food and because it may imply that the country of a particular clan is less extensive than it really is.”95 In contrast, Nicolas Peterson, who appeared as an expert for the Warlpiri and Kartangarurru-Kurintji petitioners and was co-author of their claim book,96 used the term “heartland” repeatedly in his testimony. Based on the testimony of Peterson, his co-author of the claim book, and on that of the aboriginal witnesses, Toohey concluded that “traditional ownership focused on heartland areas and dreaming paths,” but following Stanner’s argument, he added that “the right to forage extended to associated communities, justifying the conclusion that … there exists a right within each land-owning group … to forage over the whole of the land.”97 The spatial pattern of the Warlpiri and Kartangarurru-Kurintji spiritual links to the land and their foraging recalls the tenure models put forward in the 1950s by Justice Department experts in cases before the United States Indian Claims Commission, which envisioned that there were areas of primary subsistence use, where claims cases were strong, and those of secondary or marginal economic significance, where claims were weak. The significant difference with the Australian model is that it put great weight on spiritual and ceremonial uses of the land. As noted, the United States Justice Department’s experts, who were addressing the terms of a very different land claims

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act, emphasized subsistence considerations. What the Aboriginal Land Rights Act and the United States Indian Claims Commission Act had in common was that neither enshrined aboriginal outlooks. Rather, both acts were based on outsiders’ interpretations of traditional social structures that had been filtered through anthropologists’ current theoretical lenses and were expressed in terminology that did not convey common meanings. Claims research both highlighted the deficiencies of the models as they had been translated into statutes and led to more nuanced understandings of indigenous tenure systems. Mabo (1992) and Aboriginal title litigation in Australia Abandoning the Notion of terra nullius

A major unanticipated long-term impact of the Gove case was that it raised questions about the interconnected legal and frontier histories of Australia – particularly the notion of terra nullius, which had been instrumental in defeating the Yolngu claimants. This was a topic that Nancy Williams had taken up in her outstanding and provocative eyewitness account and analysis of the trial.98 Paramount among those who followed her lead on this issue was prominent Australian historian Henry Reynolds. Reynolds was interested in exposing the country’s discriminatory legal history as one aspect of his interest in looking at the “other side” of the settlement frontier. In 1972 he published the first in his series of books that have focused on the troubled side of the aboriginal dimension of Australia’s frontier history.99 In these works Reynolds recounts colonial injustices to aboriginal people, and he attacks the terra nullius legal doctrine as being wrong-headed and at variance with British colonial practices elsewhere. For the ongoing claims struggle, Reynolds’ most important work has been The Law of the Land, which first appeared in 1987.100 The High Court of Australia cited this work in its landmark aboriginal title decision of 1992, Mabo v. Queensland, which is remembered as Mabo 2. This ruling overturned the doctrine of terra nullius and established in the country’s law the principle of common law

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4.3 | members of the high Court of Australia at the time of Mabo (1992).

native title.101 The case began in the mid-1980s when Eddie Mabo, with Reynolds encouragement, and the Meriam people of Mer (or Murray Island) off the northern tip of the Cape York Peninsula of Queensland, challenged the state’s Queensland Coast Islands Declaratory Act of 1985. This act had declared the island to be Crown land. Mabo and his people asserted that they held title to the island as the original and long-time possessors and occupiers. The nature of this and subsequent title legislation in Australia meant that claims research no longer was aimed at establishing whether or not customary practices conformed to a specific tenure model enshrined in a statute, as previously had been the case in the Northern Territory. Rather, title litigation aimed to establish (or in the case of the defendant, disprove) that Aborigines had continued to use and occupy traditional territories from a time before the arrival of newcomers (or “time immemorial”). In other words, in the wake of Mabo 2, there were two types of claims research areas in Australia: one was the Northern Territory, where researchers addressed the

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proscriptive model of the Aboriginal Land Rights (Northern Territory) Act of 1976, and the other included the rest of the country, where the paramount questions concerned Australia’s legal history, the varied ways that local Aborigines were tied to the land, and the local impacts of settler colonialism on those linkages. This meant that after Mabo 2 historians became more involved, although anthropologists continued to play major roles too. Mabo 2 shocked the country because it upended the doctrine of terra nullius and established in Australian law the concept of common law native title.102 In doing so, it challenged the legal position of landholders by throwing doubt on the foundational historical myths that had given apparent legitimacy to key aspects of the land title regime of the country. To calm landholders’ fears about the validity of extant titles and leases and to establish procedures for addressing aboriginal title claims, Aborigines and politicians engaged in consultations that resulted in the passage of the Native Title Act of 1993. The act had numerous important provisions. Of particular relevance here, it created a National Native Title Tribunal and designated the Australian Federal Court as the venue for hearing native title claims. The act also provided that aboriginal groups that would be affected by proposed developments on lands under claim had to be consulted if it appeared likely that their claim would succeed in court. The tribunal was given the authority to make those determinations and formally register claims. For this to happen, claimants had to pass a title test as set out in the 1993 act. The key aspects of the registration test were (1) reasonable identification of the area subject to the native title claim, (2) sufficient description of the persons in the native title group so that they can be identified, (3) a description of the native title rights and interests claimed so that they can be readily identified by the registrar, (4) a sufficient factual basis for the rights and interests claimed, including that the group has a continuing association with the area claimed, (5) evidence of traditional laws and customs giving rise to the rights and interests, and (6) evidence that the native title group continued to hold the native title in accordance with those traditional laws and customs. To meet these requirements, claimants had to muster an array of archaeological, documentary, genealogical, and oral evidence.103

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Although the Native Title Act sought to address the worries of nonaboriginal people about the security of their tenures, the fears and political outrage of these people were rekindled by the subsequent ruling of the High Court in The Wik Peoples v. State of Queensland & Ors; The Thayorre People v. State of Queensland & Ors (1996), which is popularly remembered as Wik. In this judgment, the High Court of Australia concluded that pastoral leases granted by the government to nonaboriginal settlers, which often are very spatially extensive, do not necessarily extinguish native title to the lands involved. Rather, those rights could co-exist with the rights of the nonaboriginal leaseholders. At the time, it was estimated that Wik was relevant to almost 40 per cent of the country’s territory. To address the concerns that this judgment raised, the federal government amended the Native Title Act in 1998. A key provision of the act provided security of tenure to nonaboriginal leaseholders. It streamlined the claims process established in 1993 and placed some restrictions on native title claims. Most notably, state governments were given the authority to extinguish native title over Crown lands for matters of “national interest,” and the right to claim that native title in or around urban areas was removed. Les Hiatt and fellow anthropologist Bruce Rigsby note that the ever-widening reach of claims-oriented research in Australia following evolving case law and native title legislation has led to new understandings of aboriginal land use and tenure systems.104 The work has helped to demonstrate that there was and remains far greater spatial diversity in aboriginal social organization and tenure systems than Radcliffe-Brown ever imagined or than could be codified in a single law, such as was attempted for the Northern Territory in 1976. As noted, one result in the latter territory has been that aboriginal land commissioners have had to make very liberal interpretations of the act. Claims work has also influenced the methodologies of Australia anthropologists and their conceptions of Aborigines’ societies in ways that recall the impacts that Indian Claims Commission research in the United States in the 1950s and litigation-oriented research in Canada since Calder in 1973 have had on approaches to and understandings of the histories of North American native

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peoples. Australian anthropologist Julie Finlayson, for example, notes that documentary evidence has played an increasingly important role in native title cases in Australia.105 This trend began after the Gove case and accelerated with the passage of the Native Title Act of 1993, and its amendment in 1998, because this legislation called for increased documentation from petitioners about the basis and nature of their claims. Shortly after Mabo 2, Australian historian Bain Attwood observed that the decision would have a monumental impact on Australians’ understanding of their history. The High Court decision had, in effect, added 40,000 years to the country’s history by shifting Australia’s origin story from Britain to the Aborigines. This shift had the effect of weakening the country’s connection to the British past, a linkage that had been a fundamental aspect of conventional whiggish histories of Australia. The new concern with the Aborigines’ dimension of postcontact history necessarily would have to include a narrative about the sufferings these people had experienced because of past white settler policies. Previously, this story had received scant attention from historians.106 Anthropologist and aboriginal rights activist William Stanner had called this omission “the great silence” in Australian history.107 Attwood predicted accurately that the new Australian history to follow Mabo 2 would provoke a strong backlash from social and political conservatives by upending traditional views of the country’s development.108 These harsh critics referred to this newer historical work as “black armband” history because it cast colonists from Europe and their descendants in a much less favourable light than had been the practice of previous historians, who had tended to paint a heroic picture of settler colonists and ignore the Aborigines. These naysayers also feared that revisionist histories threatened to fragment the country.109 The most outspoken critic of the new history has been historian Keith Windschuttle, who in a series of books has argued that, contrary to the interpretations of Reynolds and other revisionist historians, newcomers were not particularly racist, or violent, toward Aborigines. Also, Windschuttle contends that Aborigines never had notions of proprietorship comparable to those of the newcomers.110

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Twenty years after making his prediction that post-Mabo history would provoke a hostile reaction from conservative academics and politicians, Attwood himself expressed an important reservation about the research of one of the key pioneers of the new history, Henry Reynolds. Attwood criticized Reynolds landmark study, The Law of the Land, for imagining that Australia could have had a different history if only colonial officials and the courts had applied more appropriate notions about Aborigines’ occupation and title drawn from common and international law instead of operating under the assumption that terra nullius was the applicable concept. Borrowing a notion from the New Zealand political scientist Andrew Sharp,111 Attwood characterized Reynolds’ approach as being a kind of “juridical history” because it had an “instrumental presentist” perspective that aimed to provide Australian courts with a new historical narrative, or myth, to legitimate revolutionizing the foundation of Australian law in a way that conformed with late-twentieth-century human rights perspectives. A key problem, for Attwood, was that this perspective implied that the dispossession of Aborigines was the product of the legal system rather than the result of the inherent nature of colonialism, of which the legal system was only a part.112 The “history wars,” as the ongoing debate has been labelled in Australia, have captured the attention of the public and reached deep into the political sphere. Politicians have joined in the reaction against Reynolds and like-minded historians and have not welcomed the greater open-mindedness of the courts, as evidenced by Mabo 2. From the perspective of claims research, the most important response of politicians has been their enactment of an amendment to the Native Title Act in 1998 that required the Australian Federal Court to adhere to the normal rules of evidence, including the hearsay rule, when adjudicating title claims. This action arose from the fear of legislators that the court’s effort to accommodate Aborigines’ perspectives and historical approaches would become prejudicial to those of non-Aborigines who are affected by ongoing land rights litigation. The revised legislation still allows the courts to take into account the cultural and customary concerns of aboriginal

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peoples “but not so as to prejudice unduly any other party to the proceedings.”113 This requirement means that local land use histories of newcomers must be given weight as well as those of Aborigines. Julie Finlayson worries that the weighting of the oral evidence obtained from aboriginal people will likely be diminished by these developments. She has expressed the hope that the Supreme Court of Canada’s Delgamuukw decision, which ordered Canadian courts to give weight to aboriginal oral histories, will lead the Australian courts to act to mitigate this threat. Perhaps it will. As we have seen, however, in Canada Delgamuukw did not settle the issue about the relative weights that courts should assign to documentary and oral evidence. 114 Rather, the ruling simply intensified the battle. Perhaps more problematic is the decision of Australian courts that the common law aboriginal title burden on Crown title, which the High Court recognized in Mabo 2, could be washed away “with the tide of history.” The Australian Federal Court made this determination in Members of the Yorta Yorta Aboriginal Community v. Victoria & Ors (1998), which the High Court affirmed. In Yorta Yorta the federal court stated, Of course, since European settlement of Australia, many clans or groups of indigenous people have been physically separated from their traditional land and have lost their connexion with it. But that is not the universal position. It is clearly not the position of the Meriam people. Where a clan or group has continued to acknowledge the laws and (so far as practicable) to observe the customs based on the traditions of that clan or group, whereby their traditional connexion with the land has been substantially maintained, the traditional community title of that clan or group can be said to remain in existence. The common law can, by reference to the traditional laws and customs of an indigenous people, identify and protect the native rights and interests to which they give rise.115 The federal court then made the ominous warning that if Aborigines’ ties to particular tracts of land had been severed for whatever reason, they could not be reclaimed:

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However, when the tide of history has washed away any real acknowledgment of traditional law and any real observance of traditional customs, the foundation of native title has disappeared. A native title which has ceased with the abandoning of laws and customs based on tradition cannot be revived for contemporary recognition. Australian law can protect the interests of members of an indigenous clan or group, whether communally or individually, only in conformity with the traditional laws and customs of the people to whom the clan or group belongs and only where members of the clan or group acknowledge those laws and observe those customs (so far as it is practicable to do so). Once traditional native title expires, the Crown’s radical title expands to a full beneficial title, for then there is no other proprietor than the Crown.116 In other words, even though the notion of terra nullius no longer holds sway, in the eyes of the courts, the mere act of colonization can still obliterate the land rights of Aborigines.

5.1 | sheet 1, treaty of Waitangi, signed 1840 at Waitangi, bay of islands.

ChaPter Five

the Waitangi tribunal and new Zealand history

The colonial history of New Zealand differed from that of North America and Australia in ways that strongly shaped its approach to the grievances of the Maori. Most striking is that a single treaty, the Treaty of Waitangi, concluded between representatives of the British Crown and Maori chiefs in 1840 set the broad terms for subsequent colonization and Maori-newcomer relations. In sharp contrast, hundreds of treaties spanning two centuries had facilitated settlements by newcomers in Canada and the United States, and negotiating treaties was not part of colonization in Australia because of the doctrine of terra nullius. Although this should have made Maori-newcomer relations less complicated than native-newcomer relations were in North America and Australia, arguably this has not been the case. The Treaty of Waitangi is not “plain on its face.” There are two official versions: one is written in Maori and the other in English. Neither is an exact translation of the other.1 Almost immediately, disputes erupted about whether the colonial government and European newcomers were acting according to the intent and meaning of the agreement. The Maori were particularly concerned about the steady erosion of their land base and the state’s usurpation of the tino rangatiratanga (authority of the chiefs). Also, as colonization accelerated after 1840, they increasingly resented the assumption by Pakeha (white settlers) and their courts that the Treaty of Waitangi had become irrelevant (or a legal nullity).2

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establishing the tribunal Similar to what happened in Canada and the United States, international civil and aboriginal rights movements of the 1960s and early 1970s and local native activism led the New Zealand government to abandon its longstanding policy of assimilation and instead seek reconciliation with the Maori. The passage of the Waitangi Tribunal Act of 1975 creating the Waitangi Tribunal as a permanent commission of enquiry was its most important step in that direction.3 The primary responsibility of the tribunal is to investigate whether Crown-Maori relations are unfolding in accordance with the intentions of the treaty. Initially, the Waitangi Tribunal’s authority was limited to hearing claims arising from 1975 and afterward.4 Also, it was restricted to making only nonbinding recommendations for the resolution of grievances that it deemed to be legitimate. Subsequently, it received legislative authority to make binding decisions regarding claims for state enterprise and forestry lands. The Maori considered the Waitangi Tribunal Act of 1975 too restrictive in limiting claims to those arising after 1975. They pressured the government to amend the legislation in order to grant the tribunal the power to consider historical grievances dating as far back as the date when the Treaty of Waitangi had been signed in 1840. Politicians who opposed granting the tribunal retrospective jurisdiction feared that an avalanche of claims would be the result, creating a heyday for lawyers.5 These concerns notwithstanding, in 1985 the government acquiesced to the Maori’s demand and amended the act to allow for historical claims. The original and amended legislation charged the tribunal with determining whether claimants had been disadvantaged by past and present failures of the New Zealand government to adhere to the principles of the Treaty of Waitangi. Most important, the act gave the tribunal the responsibility for determining what those principles are. Since 1985 the tribunal has focused on Maori-Pakeha relations from a historical perspective that accommodates, if not emphasizes, Maori views and concerns, focusing on the issues of the loss of traditional territories and the erosion of Maori control over their own affairs. This has had several important consequences for the

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ways that the tribunal has conducted and reported on its historical enquires. Refracting New Zealand’s colonial and modern history through the lens of the Treaty of Waitangi has meant that historians have dominated the claims process as experts to a much greater extent than they ever did in North America before the 1970s or in Australia before the 1990s, where anthropologists and other social scientists had always been the key players. Consequently, research for Maori historical claims has had strong repercussions for the history profession of New Zealand that are reminiscent of those anthropologists faced in the United States in the 1950s and in Australia after the mid-1970s. Ethnohistorians faced similar issues in Canada beginning in the 1980s. New Zealand’s academic history community was very small prior to 1985. Furthermore, as discussed by Giselle Byrnes’s study The Waitangi Tribunal and New Zealand History, New Zealand’s historians had emphasized newcomers’ contributions to nation building, often lionizing colonial officials and Christian missionaries.6 In this regard, their work was similar to that of historians writing national histories in settler colonies elsewhere prior to the 1970s. They had paid relatively little attention to the topics that became the focus of the tribunal’s investigations. Indeed, according to Michael Belgrave, New Zealand historians had largely ignored Maori perceptions of the Treaty of Waitangi before the path-breaking study by Claudia Orange in 1987.7 Soon after 1985, however, “Waitangi Tribunal history” came to dominate historical research and writing in the country, provoking ongoing public and scholarly debates about which historical methodologies and interpretations are appropriate. This has been largely the result of the tribunal gaining far greater national prominence than claims commissions and tribunals had achieved elsewhere. In North America, for instance, few citizens ever knew of the existence of the United States Indian Claims Commission or the Canadian Indian Claims Commission. the scope of the tribunal According to the Waitangi Tribunal Act of 1975,8 any Maori can be an eligible claimant. The act defines those eligible as being anyone

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“of the Maori race of New Zealand; and includes any descendant of such a person.” In contrast to the United States Indian Claims Commission Act and Australia’s Aboriginal Land Rights (Northern Territory) Act, eligible claimants are not defined in reference to “identifiable” groups and/or traditional land use practices. Nonetheless, most claims have been filed on behalf of an iwi (tribe), hapū (subtribe or clan), or whanau (extended family). The New Zealand act (as amended in 1985) states that the tribunal is to be comprised of a chairperson, a vice chairperson, and up to twenty members.9 The tribunal act specifies that the chairperson has to be either a judge or a retired judge of the High Court of New Zealand. Other members are selected for their relevant expertise. From its inception to the present, tribunal members have been of divergent backgrounds. Professional historians have served as members since 1986.10 Half of the members are Maori. In this key respect, the tribunal’s composition is very different from that of the commissions in the other countries considered in this study. Section 2 of the act requires that “the Tribunal shall have regard to the 2 texts of the Treaty … and, for the purposes of this Act, shall have exclusive authority to determine the meaning and effect of the Treaty as embodied in the 2 texts and to decide issues raised by the differences between them.” The key challenge for the tribunal is that the discrepancies between the two versions are substantial. Most important, the English text states that the Maori had ceded the sovereignty of Aotearoa (or New Zealand) to Britain and given the Crown the exclusive right of pre-emption of the lands that the Maori were willing to sell. In return, the latter were granted full rights of ownership of the lands, forests, fisheries, and other resources. The Maori were to receive the rights and privileges of British subjects and Crown protection.11 The problem was that there were multiple drafts of the English text, only one of which colonial officials had translated into Maori for the chiefs’ signatures. The English text that they used has not survived.12 In any event, although the translators, a minister and his son, knew the Maori language, apparently they were inexperienced translators. Making matters worse, the two men believed that the treaty, as it stood, would benefit the Maori. For this reason, the translators would have had a good reason to

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translate the document in terms that the latter would find acceptable.13 As a result of these problems and considerations, the significance of the annexation by Britain, the granting of pre-emption rights to the British, and the duties and obligations that were associated with the rights and privileges of British citizenship were not adequately described in the Maori text of the treaty.14 Conversely, as will be discussed, some Maori terms used in the treaty are not readily rendered into English. As a consequence, the Waitangi Tribunal faces the challenging task of reconciling the very different Maori and Pakeha understandings of the meaning and intent of the 1840 agreement. As an authority of inquiry, the tribunal has the power under section 5 of the act to commission, or authorize a claimant to commission at the expense of the tribunal, any person to investigate (1) any matter related to a claim, (2) proposed legislation that may affect Maori treaty rights, (3) lands transferred to state-owned enterprises, and (4) any other matter related to the functions of the tribunal.15 In contrast to the United States Indian Claims Commission, but similar to the Aboriginal Land Commission of Australia’s Northern Territory, the Waitangi Tribunal exercised its investigative powers from the outset. Under section 6 of the act, the tribunal was charged with investigating every instance where claimants asserted that they were “prejudicially affected” by (1) any federal or provincial legislation passed on or after 6 February 1840, (2) regulations, orders, proclamations, notices, or other statutory instruments made on or after that date, (3) any policies of the Crown on or after that date,16 and (4) any act done or omitted by or on behalf of the Crown on or after that date. In accordance with this section of the act, whenever the tribunal determines that a claim has merit, it can recommend that the Crown pay compensation, or remove the prejudice, or prevent other persons from being similarly affected in the future. In other words, for claimants to succeed, the tribunal must conclude that past and/or current practices of the Crown, or officials acting on its behalf, have violated the meaning and intent of the Treaty of Waitangi as currently understood by the tribunal. This means that the tribunal’s present-day understandings of the treaty are used to

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evaluate past actions of the Crown and its representatives. It also means that, unlike the United States Indian Claims Commission and the Aboriginal Land Commission of Australia’s Northern Territory, the tribunal does not have to address a specific model of aboriginal societies that is laid out in enabling legislation. the nature of the hearings Section 5 (6) of the Waitangi Tribunal Act specifies that the chairperson or a person designated by him or her from the Maori Land Court or from the tribunal must preside over claims hearings.17 For a quorum, at least two (but no more than six) other members of the tribunal must take part. At least one member must be Maori. The tribunal has the authority to determine where and how hearings will be held. Under its first chair, the tribunal adopted a legalistic and monocultural outlook that did not take into account the cultural traditions of its Maori plaintiffs.18 This approach changed abruptly in 1980 with the appointment of Edward Taihakurei Durie as chief judge of the Maori Land Court and chair of the tribunal. Durie directed a fundamental change of course that involved adopting a bicultural approach that accommodated relevant traditional Maori cultural practices.19 A key aspect of this effort has involved taking evidence from Maori claimants in their communities, usually in marae, which are community buildings used for ceremonial and social purposes. This practice is illustrated by two important historical claims: the Muriwhenua fishing claim and the Ngai Tahu land claim. Both were filed within a year of the 1985 amendment to the Waitangi Tribunal Act, which allows for historical claims. The Muriwhenua, who are a group of six iwi, filed their petition in June 1985. They live in the northern half of the Northland Region of the North Island. Traditionally, they had relied heavily on ocean fisheries. Their petition maintained that fisheries legislation had contravened the Treaty of Waitangi by eroding their access to marine resources to the point that they had become limited to harvesting shellfish along the seashore solely for subsistence purposes. The nature of their claim meant that the tribunal had to investigate

Cape Reinga Ninety Mile Beach Bay of Islands

Kaitaia No rt hl an

NORTH ISLAND

d

NGĀTI KURĪ TE AUPOURI NGĀI TAKOTO NGĀTI KAHU

i-M

Taranaki

rh

Haw

nu

ke s

nga

Bay

Wa

NGĀPUHI

bo

Bay of Plenty

Waikato

Gis

NGĀTI KAHU / NGĀPUHI

e

Auckland

ana wa gt

on

Wellington

rlb

or

ou

in

W

es

tC

oa

st

Ma

Ne

lso

n

gh

tu

C ook Strait

W

ell

Kaiapoi Christchurch Canterbury

SOUTH ISLAND Otago Southland

STEWART ISLAND 0 0

5.2 | new Zealand

100 km 100 miles

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whether there was historical evidence for spatially more expansive harvesting of a variety of marine resources.20 The Muriwhenua hearings commenced on 8 December 1986 in the Te Reo Mihi Marae. The next day, the tribunal held site visits so that the local people could provide tribunal members with direct familiarity of their traditional land and seas. Four months later, the hearings resumed in the claimants’ principal marae near Ninety Mile Beach. Subsequently, the tribunal held sessions in the nearby town of Kaitaia and in Auckland and Wellington. According to the tribunal report, the claimants’ gave most of their evidence on their ancestral lands in the Maori language “and in the manner with which the kaumatua (elders) where accustomed.” A Maori member of the tribunal, who was an acknowledged elder and an expert on Maori protocol, chaired those parts of the hearings.21 Regarding the Maori traditions that the tribunal followed, the report noted, From the first karanga [welcome call] of the women of the marae, to the exchange of whaikorero [formal speechmaking] and waiata [Maori song], the karakia [incantations and prayers] and the traditional offer of hospitality in eating, sleeping and speaking together, we were reminded that mutual respect and understanding are born out of the bonds of kinship, and survive the best laid plans conceived in isolation, or the most enlightened of independent judgments. Yet the home people, conscious of the restrictions on a Tribunal charged with an official inquiry in accordance with state laws, and concerned lest the inquiry be prejudiced by the ancestral laws of that marae, presented the Tribunal with a parchment conveying the authority of the marae to the Tribunal for the duration of its sittings, enabling the Tribunal to maintain such other rules of procedure as might be needed.22 Adding that these Maori traditions greatly facilitated the work of members of the tribunal, the report explained, “It was most helpful to us that the marae people extended the courtesy described. Though we have the authority of our Act to ‘adopt such aspects of te kawa o te marae’ as we think appropriate, and may regulate

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our procedures in such manner as we think fit (clause 5(6), second schedule, Treaty of Waitangi Act 1975 as amended), the procedure adopted enabled us to balance marae and legal proceedings.”23 The Ngai Tahu of the South Island filed their claim in August 1986,24 which was about a month later than the Muriwhenua. Their submission covered over 200 grievances about events that had occurred over a century and concerned traditional lands that encompassed most of the South Island. This claim also dealt with fisheries disputes.25 The vast scope of grievances over so many years and the number of interested parties involved meant that the tribunal, which was comprised only of seven members, faced the daunting task of holding twenty-three hearings in various Maori and Pakeha communities from 17 August 1987 to 10 October 1989. During this two-year period, it held twenty-five weeks of hearings and received over 900 submissions and exhibits as well as evidence from 262 witnesses and 26 organizations and government departments. It was the largest undertaking in the tribunal’s history.26 Before community hearings commenced, the tribunal held a preliminary conference where all parties agreed that evidence would be presented in written form to ensure that the tribunal had comprehensive and carefully prepared detailed statements. It provided these submissions to all interested parties before each hearing began. At first, the tribunal required witnesses to read their submissions at hearings so that all who were in attendance could comprehend the evidence. This departed from the usual practice in litigation where trial judges object to witnesses reading reports they have submitted to the court. Subsequently, the tribunal ended this practice as being impractical and had the kaumatua (elders) and expert witnesses summarize, or speak, their reports rather than read them.27 To make the hearings accessible to the various claimant groups, the tribunal visited nine marae, beginning with the Tuahiwi Marae, located approximately eighteen kilometres north of Christchurch near Kaiapoi. This marae served the local and larger Ngai Tahu communities. As had happened during the Muriwhenua hearings, the tribunal followed the traditional Maori protocols when taking their evidence. In contrast to courtrooms, where the trial judge’s place is physically elevated, the tribunal decided that the seating

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at this and subsequent hearings should be arranged so that everyone was positioned on one level and in such a way that all of the participants and observers who attended would have a sense of involvement and informality. The Waitangi Tribunal encouraged any person who was present and wished to speak or make a presentation to do so. The necessity of admitting Maori oral histories and traditional knowledge posed some very practical problems that recall the challenges that Justice John Toohey faced earlier in the Northern Territory of Australia. Most acute was the issue of the confidentiality of this type of evidence. By Maori custom, some traditional knowledge was not shared with outsiders. To encourage the claimants’ communities to present restricted knowledge, the tribunal took steps to guarantee confidentiality. In its Muriwhenua report, among others, the tribunal explained what procedures were adopted: “Some groups also insisted that their evidence remain confidential to the Tribunal and counsel and it was given on condition that their evidence of the precise location of favoured fishing grounds, the time to fish there and the methods employed would not be disclosed, save to a court of law upon review.”28 Accordingly, in the Muriwhenua report the submissions made by the claimants about confidential information were listed in an appendix and marked by asterisks to indicate that they were not available to the public. This protection extended to related oral testimony recorded on tapes. This procedure was a standard of the tribunal and demonstrates that where there is a will, there is a way. How the oral and other lines of evidence would be examined and weighed, however, was an even greater challenge. In the early years of its operations, the tribunal made a concerted effort to avoid having its hearings become adversarial affairs, such as characterize courtroom trials and as had been typical of United States Indian Claims Commission sessions of the 1950s.29 It partly accomplished this objective by adopting Maori protocols where appropriate, even though the tribunal is supposed to assess evidence in accordance with the current New Zealand Evidence Act.30 Most important, the tribunal placed limits on cross-examinations. In the Muriwhenua fishing claim,31 for example, it curtailed the cross-examination of the kaumatua. The tribunal explained why

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and how: “It is not an easy task to capture elders’ recollections of the past and the descriptions passed on to them. It requires a patient researcher spending time in people’s homes. We adapted our procedures as far as we could to accommodate the many Maori witnesses who spoke, and to remove some constraints, we restricted the cross-examination of elders’ evidence, requesting counsel to state their concerns so that we ourselves might invite a reply.”32 In other words, members of the tribunal, rather than legal counsel, posed questions of clarification to Maori witnesses. The tribunal relaxed other constraints that rules of evidence common to the courts would have imposed: “We accepted group evidence and allowed some discussion as tribal members assisted elders in their recall of events and matters of oral tradition. We dispensed with sworn testimony having regard to the nature of the evidence, the inevitable mixture of fact and opinion, and the presence of kinfolk on a marae to provide the necessary sanction against errors or slanted accounting.”33 Allowing group testimony in this way is another practice that recalls those pioneered in the 1970s by Justice Toohey in the Northern Territory of Australia. Another modification of the traditional rules of evidence involved curtailing the adversarial approach. The tribunal reported that during the claimants’ presentations in the Ngai Tahu hearings, the oral and written evidence of the Maori people, including that of the kaumatua, was also not subject to cross-examination. Once again, however, the commission allowed counsel to put questions of clarification through the chairperson.34 In this case, the tribunal also decided not to allow lengthy cross-examinations of expert witnesses for practical reasons. The vast scope of the claim meant that this approach to the testing of evidence would have been much too time-consuming. Furthermore, the tribunal concluded that many of the experts’ reports dealt with very complex evidence that could not be dealt with through “a process of immediate questions and answers.” To compensate for the lack of cross-examinations, the tribunal allowed opposing legal counsel to pose questions of clarification and file a written memorandum that commented on the evidence and presented any contrary perspectives. In addition, the tribunal retained two experts to provide written evaluations of all of

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the evidence that the various parties had submitted to the hearings. One of these, Dr George Habib, was an expert on fisheries and the other was Australian history professor Alan Ward, who is one of the leading experts on the history of Maori-Pakeha relations. The lawyers for the Crown and Maori were permitted to cross-examine Habib and Ward on their reports. While the Ngai Tahu hearings were underway, litigation before the New Zealand Court of Appeal regarding the use of evidence in the Muriwhenua report raised the issue about how tribunal reports should be weighed by courts given the absence of crossexaminations. The Court of Appeal ruled that, during the Muriwhenua hearings, the failure to employ standard courtroom procedures for testing evidence and establishing the veracity of witnesses meant that “due allowance will be appropriate for absence of cross-examination and features making it impossible to test adequately some of the base material.”35 In reply to this cautionary warning, the Waitangi Tribunal defended the approach it had taken in the Ngai Tahu hearings with the observation that, “while acknowledging that the well-tried system of cross-examination has strong merit, we respectfully consider that the procedures used in this claim, to provide opportunity for researched responses, resulted in a closer and more effective examination of the lengthy and complex evidence.”36 The tribunal also noted that Habib and Ward had been cross-examined about their overviews. In time the limitations on cross-examinations were relaxed. By the 1990s this method of testing evidence had increased considerably, which according to Michael Belgrave, who was formerly a research manager for the tribunal, was due to the claimants’ demands for access to legal aid. Granting this request meant that lawyers became more involved.37 The October 2000 practice guidelines issued by the tribunal reflected this change but also sought to continue to make the hearings “user-friendly.” These guidelines state, “the extent of cross-examination will depend on each situation and counsel are to be mindful and respectful of the forum in which questioning occurs.”38 The tribunal cautioned: “Extensive oral examination may not assist the resolution of complex historical issues, and, where historical research is in contention, it may be better addressed by the submission of an alternative research opinion. Where it is ne-

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cessary to question research in detail or to obtain more particulars, the Tribunal may, in addition to cross-examination, allow time for written questions and responses to be made. In those instances, written questions are to be filed with the Tribunal.”39 Regarding the examination of Maori witnesses, the guidelines stated, When the Tribunal is sitting on a marae and following marae protocol, it may be appropriate for counsel to avoid direct questioning of kaumatua and instead make a statement of a possible position and invite the kaumatua to respond to it. Any problems associated with personal evidence on marae can generally be covered in subsequent legal argument on the weight to be given it. However, the right of direct crossexamination remains, and all witnesses are to be forewarned that they are liable to cross-examination if they elect to give evidence.40 The year after the tribunal issued these guidelines, I had the privilege of attending a portion of the hearings of the Turanga (Gisborne, North Island) claims.41 These were landmark hearings in that the tribunal adopted a number of practices, subsequently referred to as the “Gisborne model,” to expedite the growing backlog of historical claims. This model grouped claims for concurrent inquiry by geographic areas called inquiry districts. The new approach also introduced a formal pleadings process that followed the conclusion of claimants’ research and was conducted before hearings began. In their pleadings, claimants were required to identify and carefully document their grievances in fully particularized statements of claim. For the first time, the Crown was obliged to file a statement of response. The tribunal’s objectives for establishing these requirements were to expedite the claims process by identifying areas of common ground between the parties “and to identify whether any differences relate to primary historical facts, or opinions drawn from agreed facts, or the application of treaty principles.”42 Based on these pleadings, the tribunal identified subjects of agreement and contention and drew up a statement of issues to be addressed in the hearings.

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The Gisborne district hearings took place in 2001 and 2002. They involved multiple claimants and the Crown, who collectively presented a massive amount of documentary and oral historical evidence. Twenty-one expert witnesses appeared for the claimants and filed thirty research reports. Ten experts appeared for the Crown and filed twenty-four reports. In addition to all of these experts and reports, forty-seven witnesses appeared from claimant communities. The tribunal report stated that most claimant witnesses presented evidence orally or by reading their submissions. Some of these community witnesses were cross-examined by counsel, and some were asked questions by members of the tribunal. Some of the questions by the tribunal would probably have been considered to be of a leading nature in the court proceedings in which I have been involved in Canada.43 An example is follow-up questions that sought to clarify what a witness intended to say. This practice recalls the problems that Edward Woodward faced in the Gove trial. Although tribunal hearings had become complex events by this time that blended Maori practices with common law legal traditions, Richard Boast cautioned that it is important not to romanticize tribunal procedures. Writing about these procedures from the benefit of having served as co-counsel for plaintiffs and as an expert witness in various hearings, including those in the Gisborne district, he emphasized that the tribunal is, above all else, a judicial body. Boast noted that visiting American or British lawyers might find the opening ceremonies in a marae “quite novel,” “but should that same lawyer attend a hearing mid-session, they would see lawyers [and] see processes at work that are familiar to common lawyers all around the world.” Boast added, “They would see lawyers reading submissions, expert witnesses – usually not Maori – giving evidence on all manner of complex historical events, or the same witnesses being thoroughly cross-examined by a battery of lawyers or questioned by tribunal members.”44 developing Principles of treaty interpretation As noted, the Waitangi Tribunal Act gave the tribunal two critical interpretation responsibilities. One responsibility concerned determining the intent and meaning of the Treaty of Waitangi based on

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the equal consideration of the English and Maori texts. The other involved determining whether past or current actions of the government, or officials acting on its behalf, violated the intent of the treaty as interpreted by the tribunal. The exercise of these interrelated responsibilities by the tribunal has generated a great deal of controversy in and beyond the academic history community about the consequential histories that are contained in many of the tribunal’s reports that have been published to date and are available on its comprehensive website.45 In developing a principle-based approach for interpreting the Treaty of Waitangi, the tribunal considered international treaty law, jurisprudence regarding the interpretation of Indian treaties in North America, historical scholarship about the Treaty of Waitangi, and New Zealand case law concerning this accord. Regarding international treaty law, in its report on the MotunuiWaitara claim (1983),46 the tribunal considered and accepted the recommendation of the Department of Maori Affairs that general principles for treaty interpretation should be applied to the Treaty of Waitangi rather than those commonly employed for the construction of statutes. In its submission to the tribunal, the department referred to Lord Arnold McNair’s classic and authoritative study, The Law of Treaties (1961), to argue that in treaties with bilingual texts, neither one is superior to the other.47 In this work, McNair also stated that multiple texts “should help one another so that it is permissible to interpret one text by reference to another.”48 The Department of Maori Affairs contended that whenever the tribunal was interpreting the Treaty of Waitangi, “should any question arise about which text should prevail the Maori text should be treated as the prime reference.” The department reached this determination based on the fact that the Maori text played a central role in obtaining the signatures of the chiefs. This approach is also in accordance with the Vienna Convention on the Law of Treaties (1969), which New Zealand joined in 1971. Furthermore, this approach accorded with the Law of Treaties’ rule of contra proferentem, a precept holding that, “in the event of ambiguity, a provision should be construed against the party which drafted or proposed that provision.”49 Finally, the department noted that the United States Supreme Court had established an “indulgent rule”

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requiring that treaties made with Indian tribes be construed “in the sense which they would naturally be understood by the Indians.”50 The Department of Maori Affairs regarded the American approach as being a reasonable extension of the contra proferentem rule. The Waitangi Tribunal agreed with the Department of Maori Affairs and adopted the liberal approach to treaty interpretation that it had recommended. In addition to the reasons put forward by the department, the tribunal thought that such an approach was envisaged by the Treaty of Waitangi Act, which requires it to determine “whether certain matters are inconsistent with the principles of the Treaty” rather than “with the provisions of the Treaty.”51 In subsequent reports, most notably those concerning the Manukau (1985) and Orakei (1987) claims, the tribunal again took up these arguments for a liberal interpretation of the treaty that favoured Maori perspectives in cases of ambiguities. In the Orakei report, for instance, which was the tribunal’s first historical report, it revisited Lord McNair’s The Law of Treaties regarding the issues of interpretation that arise when “it is impossible to make sense of the plain terms of the treaty, or where they are susceptible of different meanings.”52 The tribunal noted that McNair had emphasized that a treaty should be interpreted to give effect to the parties’ intentions as “expressed in the words used by them in the light of the surrounding circumstances.” Also, McNair had warned against overly reling on “the plain terms of the treaty.” Rather, he thought that it was essential to bear in mind what the overall aim and purpose of the treaty had been.53 In the Muriwhenua fisheries dispute, the tribunal paid a great deal of attention to case law regarding North American Indian treaties, especially those of the United States. When doing so, the Waitangi Tribunal focused at length on United States v. State of Washington (1974), which is remembered as the Boldt decision. Boldt raised many key issues that were similar to those of the Muriwhenua fisheries dispute and other claims. The very notable exceptions were that the American treaties were written solely in English, that the tribes had not surrendered their sovereignty to the federal government, and that the United States Constitution made treaties a part of the supreme law of the land.54 The key issue of rel-

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evance in this American case was whether the state of Washington had the unilateral authority to curtail Indians’ off-reserve fishing rights. The Indians claimed that the land surrender treaties their ancestors had signed in 1854–55 protected these rights. The central historical question for Justice George Hugo Boldt involved determining the meaning and intent of the ambiguous wording in the nineteenth-century treaties, which stated, “the right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians in common with all citizens of the territory.”55 After considering the minutes of the treaty negotiations, Justice Boldt determined that the phrase “in common with” meant that the tribes and the settlers should have equal shares in the fisheries. Therefore, Indians should have 50 per cent of any quotas established for conservation purposes.56 In coming to this ruling, Justice Boldt went beyond the words of the treaty to consider its context by consulting the documentary records submitted by the parties. In addition to determining intent by weighing historical evidence, Justice Boldt made several other determinations, which the Waitangi Tribunal thought were important principles for treaty interpretation. These were his conclusions that (1) treaties were grants of right from, rather than to, Indians, (2) treaty fishing was a reserved right, not merely a privilege, (3) treaty rights were distinct from the rights of other citizens, and (4) treaty fishing rights could be curtailed only for conservation purposes. Subsequently, in the British Columbia fishing rights case, Regina v. Sparrow (1990), the Supreme Court of Canada also held that aboriginal and treaty rights could be curtailed for conservation purposes.57 Evolving case law in New Zealand also pushed the Waitangi Tribunal to develop a liberal interpretation of the treaty. The most important domestic court judgment was that of the Court of Appeal in New Zealand Maori Council v. Attorney-General (1987), which is also remembered as the “lands case.”58 This case arose when the Maori Council asked the court whether government plans to transfer land to state-owned enterprises violated the principles of the Treaty of Waitangi. For the first time, a New Zealand court defined treaty principles in some detail. The court prefaced its decision with the observation that “this case is perhaps as important for the future

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of our country as any that has come before a New Zealand Court. Accordingly we have reached a unanimous decision.”59 Of crucial relevance here, the court held (1) that the treaty was a partnership between Pakeha and Maori that required each party to act reasonably and in the utmost good faith toward the other and (2) that the Crown’s duty to the Maori was not just passive but extended to active protection of their use of their lands and waters to the fullest extent possible.60 As I discuss below, these principles of interpretation led the tribunal panels to write histories that its critics have deemed judgmental and presentist. the impact of a Principle-based Approach In its sixth report, the tribunal addressed the fundamental problems it faced when exercising its authority to reconcile the two very brief treaty texts. The tribunal noted that the Maori language is more metaphorical and idiomatic than English because it commonly uses words that have multiple meanings that cover a range of possibilities. English tends to use words more precisely.61 The dissimilarity is illustrated by the difference between two versions of the first article of the treaty regarding land and sovereignty. The English version specifically guaranteed the chiefs and tribes of New Zealand “exclusive and undisturbed possession of their lands and estates, forests, fisheries and other properties,” which they may “collectively or individually possess so long as it is their wish and desire to retain the same.” The Maori version makes no specific references to forests or fisheries but rather refers to their lands (o ratou wenua), their habitations (o ratou kainga), and all of their treasured things (me o ratou taonga katoa). Considering that taonga katoa covers a variety of possibilities, the tribunal took the position that it would be wrong to conclude that the Maori would not have thought the treaty protected the fisheries or forests for them even though these resources are not specifically mentioned in the Maori text.62 Regarding the British assumption of sovereignty and the continued authority of Maori chiefs, the English version of the first article states, “the Chiefs of the Confederation of the United Tribes of New Zealand and the separate and independent Chiefs who have

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not become members of the Confederation cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty.” In contrast, as noted, the second article of the Maori text promised the chiefs and hapū (subtribe or clan)63 authority and control over all of their treasured tangible and intangible things. However, in the English text of the treaty, this broad notion of Maori chiefly authority was expressed inadequately because it merely implies the chiefs retained property ownership rights. From the time it issued its Muriwhenua fishing report in 1988, the tribunal has held that tino rangatiratanga (authority of the chiefs) meant tribal self-regulation or management.64 Of great importance for Maori claimants, this treaty right is not predicated on ownership.65 To reconcile the issues about ongoing state and chiefly sovereignty,66 which the English and Maori texts raise, the tribunal developed the basic principle that British colonial officials and the Maori chiefs who signed the treaty intended to establish a permanent partnership for the development of New Zealand.67 The tribunal relied on various historical documents, Maori oral histories, academic research, and case law to arrive at this conclusion.68 According to the tribunal’s understanding of this partnership, the Crown won the right to govern and promote development, but it also took on the obligation to act reasonably and in good faith toward the Maori and to protect their interest in taonga katoa.69 To fulfil this obligation, the tribunal determined that the Crown must follow two courses of action. First, it must actively protect Maori rights rather than merely not hinder them.70 Second, following the lead of the Appeal Court of New Zealand in 1987, the tribunal holds that the Crown has always had the duty to consult with the Maori before taking actions that may adversely affect their treaty rights.71 Through a series of claims, the tribunal has expanded the meaning of taonga katoa.72 According to political scientist Janine Hayward, taonga katoa comprises “tangibles” such as fishing grounds, harbours, and foreshores, including estuaries and the seas, together with the use and enjoyment of the flora and fauna adjacent to these places, as well as a wide range of “intangibles” such as Maori culture and language, intellectual property, including traditional knowledge,

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and even radio frequencies. Academics have attacked this sweeping interpretation of taonga katoa. Political scientist Andrew Sharp, for example, doubts that most of the latter resources and concepts were contemplated in 1840.73 Indeed, expanding on his objection, Sharp argues that “the very idea of ‘cultural values’” was a twentiethcentury creation of the disciplines of cultural and social anthropology. According to him, the tribunal had to resort to counterfactual reasoning to infer that the treaty makers had intended to cover such intangible resources. Sharp sites as an example the Teo Reo report concerning the protection of the Maori language. In this report, the tribunal argued, “We think it is unlikely that many Maori signatures would have been obtained if it had been said by Captain Hobson74 that the Royal guarantee of protection would not include the right to use Maori in any public proceedings involving Maori.”75 Sharp finds it hard to imagine that Hobson thought about disallowing the language in 1840 or that the Maori perceived that their language was under threat at that time. Certainly, most academic historians would, like Sharp, reject this kind of counterfactual, or “what if,” approach to history. Particularly indicative of the tribunal’s expansive interpretations of the meanings of the Maori concepts of tino rangatiratanga and taonga katoa is the report on the amalgamated Maori claims regarding the allocation of radio frequencies (claims 26 and 150). The petition arose from Maori fears that the government would allocate the radio spectrum without taking into account Maori interests and treaty rights. They feared that if this happened and the airwaves were flooded with English-language broadcasts, the preservation of their language and culture would be adversely affected. Accordingly, the New Zealand Maori Council asserted that “whether discovered or not, the chiefs and tribes had absolute chieftainship over all resources, discovered and undiscovered in New Zealand in 1840, just as a sovereign state makes similar claims in respect of such resources within its own borders.”76 The tribunal agreed that the Maori Council’s claim had merit. Accordingly, it rejected the Crown’s argument that the Maori had no rights to the spectrum other than a general public right. Siding with the petitioners, the tribunal stated, “the use of the radio spectrum is so intimately tied

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up with the use of Maori language and culture, and the protection and development of these things, that the Maori right to access must amount to more than this. Tribal rangatiratanga gives Maori a greater right of access to the newly discovered spectrum. In any scheme of spectrum management it has rights greater than the general public.”77 finding fault: the rise of Waitangi tribunal history One of the tribunal’s primary responsibilities has involved considering whether past and current actions of the Crown or its representatives have violated, or will violate, the intent of the treaty to accommodate state and chiefly sovereignty. Given that the majority of claims raise historical issues, the tribunal necessarily has been involved in a massive re-examination of the history of Maori-Pakeha relations since 1840. As might be expected, the histories contained in its reports are the subject of ongoing debates in the country’s historical community and the public at large. In 2001 William Oliver, who is one of New Zealand’s pre-eminent historians and previously had served as an expert before the Waitangi Tribunal, criticized it for taking a “presentist” approach to history that was “less concerned to recapture past reality than to embody present aspirations.”78 According to Oliver, this presentist perspective was a consequence of the tribunal having declared that its objective was to rewrite New Zealand history from a Maori perspective.79 For him, another explanation is that in the “new histories” contained in tribunal reports, in keeping with what the tribunal believes the treaty promised the Maori in 1840, “the future” is weighed against the subsequent course of events as they have been detailed in the evidence presented to or gathered by the tribunal. In Oliver’s view, this goal and historical practice have led tribunal panels to produce reports that are paradoxical in that they usually exhibit a “common sense respect for evidence” about past events and actions of the Crown yet also contain an “instrumental presentism which is remarkably evidence free.” This instrumental presentism presumes that the Crown should have and could have honoured its binding treaty obligations. The conundrum, of course, is that traditional

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historical approaches, which consider past actions of government officials solely in the context of their times, have effectively served to explain away those past practices that had adverse consequences for the Maori. To substantiate his harsh critique of Waitangi Tribunal practices, Oliver focused on two major reports from the 1990s, The Taranaki Report: Kaupapa Tuatahi (1996) and The Muriwhenua Land Report (1997). When released, the Taranaki report was considered to be the most important tribunal report to date.80 The case concerned twenty-one land dispossession claims in the Taranaki Region of the southwestern portion of the North Island. The losses had resulted from confiscations by the Crown during the Pakeha-Maori wars of the 1860s. Based on the evidence available, the tribunal concluded that the government had been the aggressor by illegally seizing Maori land, sending in an armed constabulary, and passing legislation that suspended the civil and political rights of the Taranaki Maori.81 Although at the time the Crown had promised to return sufficient lands for the hapū to survive, it never did so, forcing the local Maori to become squatters on Crown land. The tribunal also faulted past colonial governments for not having actively supported traditional Maori institutions during the land wars. In its report, the tribunal observed, “The option, never pursued, was to support or develop customary institutions to provide a negotiating face. Not only was that not pursued but it was opposed. Maori collectivities were branded as unlawful combinations; for without collectivity, the Government could divide and rule and Maori could not be strong.”82 With this consideration in mind, the tribunal concluded that the dispossessions, and the actions by successive governments to facilitate them, had steadily undermined the autonomy of local Maori groups, which the treaty was supposed to protect. To address this violation of treaty principles, the tribunal recommended endowing the claimants with land rather than providing individuals with financial compensation for past losses. It reasoned that the restoration of an adequate land base could protect the autonomy of Taranaki hapus in the future.83 According to Oliver, this recommendation made in 1996 concerning the Taranaki Maori demonstrated the influence of the Draft Declaration on the Rights of Indigenous Peoples that the United

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Nations had issued only two years previously. The United Nations declaration emphasized aboriginal peoples’ rights to autonomy and self-government. In New Zealand the tribunal equated these fundamental rights with tino rangatiratanga and mana motuhake (independence or autonomy).84 Making this association was a clear example, for Oliver, of the tribunal’s presentist outlook because it involved reconstructing an alternative past based on late-twentiethcentury notions of human rights.85 The other major historical claim that Oliver thought was illustrative of the presentist orientation of the tribunal was its Muriwhenua report dealing with these Maori’s land claim in the country’s most northerly district.86 He had appeared as an expert in these hearings. Oliver noted that the lengthy tribunal report provided detailed descriptions of various land transactions that had taken place before and after the Treaty of Waitangi. While doing so, the report emphasized that the government executed most of the transactions without regard to the impact they might have on the local Maori’s future. Worse, many irregularities were associated with these land transfers. The tribunal blamed a resident government magistrate for most of the bad dealings. This official had been neither a lawyer nor a competent surveyor, and he did not possess the authority to conduct these transactions.87 The tribunal went on to contend that the government should have delayed Pakeha settlement until a sufficient number of properly trained agents were available to conduct land transfers. Presumably, this would have prevented such abuses. But, Oliver argued, such a conclusion presupposed a colony that had been administered by an extremely interventionist, highly bureaucratic, and well-informed state that was devoted to protecting Maori interests. For Oliver, this notion was completely at variance with the realities of colonization in New Zealand and other European colonies during the nineteenth century.88 Oliver raised other issues with tribunal histories. A paramount concern for him was the issue of historical perspective and voice.89 According to the tribunal, the hearings for the seven Muriwhenua petitioners were about “the acquisition of land under a show of judicial and administrative process. They concern Government programs instituted to relieve Maori of virtually the whole of their land, with little thought being given to their future wellbeing or to their

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economic development in a new economy.”90 The tribunal declared at the outset that it intended to give preference to Maori understandings of past events that were associated with local dispossessions: “the fact that Maori had their distinctive and time-honoured laws, policies, and methods of doing business needs constant emphasis,” and “some historical focus on the records of government agents could suggest that official edicts and opinions had more influence on Maori than they did in fact, as though Maori had no more than blank minds awaiting intelligence.”91 Expanding on this idea, the tribunal raised concerns both about what documentary evidence had survived and about what weight it should be given: “there are problems with the surviving documentary record. Its one-sided nature has hindered a bicultural understanding of the societies that existed at the time. Further, the documentary record may be given a higher status than it deserves.” Making very significant points about the inability to cross-examine authors of historical documents regarding their cultural perspectives, the tribunal continued, “since the authors cannot be cross-examined, their opinions may appear more reliable than they are, and views may be perpetuated that in fact reflected personal agendas, temporary aberrations in public opinion or individual eccentricities. In addition, the pervasive written account presents only a European view.”92 The tribunal even regarded with suspicion the written translations of Maori accounts, arguing that “‘a Maori account’ may in fact represent a European understanding of a Maori position … As linguists have pointed out, translations reflect the bias and understandings of the interpreter, not the speaker.”93 In the end, the tribunal concluded that, all of the above problems notwithstanding, it had been customary to privilege written accounts and view oral traditions with suspicion. As an example, the Muriwhenua regarded all past dispossessions as being confiscations, whether the land was taken by “a trick of Western law” or through warfare. The state, in contrast, asserted that the notion of confiscations was appropriately applied only to those who had lost lands because they had taken up arms against the government. Having made these points about differing perspectives of land alienations, the tribunal stated its intention to emphasize Maori points of view and oral traditions: “in reviewing Muriwhenua hist-

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ory, therefore, our greater concern has been not with the vagaries of oral tradition, but with the power of the written word to entrench error and bias.”94 In its Muriwhenua report, the Waitangi Tribunal presented definitive conclusions about historical events, particularly Maori understandings of historic land transfers, which Oliver did not think were supported by the evidence. In his opinion, the expert reports and testimony, particularly the crucial linguistic evidence, were too conflicting to warrant the tribunal’s crucial conclusion that the Crown had failed to recognize that the Muriwhenua Maori had not regarded land transfers as sales. Oliver thought that this was but one of many examples where the Waitangi Tribunal had not made the kind of “empirically minded” decisions that should be expected. He surmised that, at best, if the evidence regarding the nature of land transactions in Muriwhenua territory had been presented in a history journal, “it would have been the occasion for a useful discussion, concluding with a call for further research.”95 The problem, of course, is that the Waitangi Tribunal has to make firm, rather than tentative, decisions in a timely manner based on the balance of probabilities indicated by the whole of the evidence presented. In any event, after his experience as an expert in the Muriwhenua land claim, Oliver came away suspecting that the tribunal had been predisposed to find for the plaintiffs because it had the “occupational obligation to find the Crown always wrong” given the nature of the Waitangi Tribunal legislation. Historian Grant Philipson, who has served as chief historian for the tribunal, offers a point of view that is sharply different from Oliver’s regarding the assessment of nondocumentary sources in the Muriwhenua and other claims reports. Philipson argues convincingly that it is incorrect to contend that the tribunal privileges oral evidence. In his view, such a perspective rests on an overly simplistic notion that there is a fundamental conflict between oral history and history based on written documents. He notes that this notion presupposes that oral histories, and the Maori and the social scientists (most notably anthropologists) who interpret them, read current Maori understandings of historical events backward into the past to create an imaginary history that lacks the accuracy of one generated from documents that were written during the era at issue.96 Rather,

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he argues that the bulk of the evidence presented in Muriwhenua consisted of testimony from Maori elders and written reports of historians, anthropologists, linguists, and Maori scholars. Contrary to what critics, Oliver among them, have often alleged, Philipson maintains that there was no direct conflict between oral sources and written documents.97 The core historical debate was between historians representing the Crown and those representing the Maori about how documents ought to be interpreted. Land deeds written in the Maori language were key among the latter. Linguists battled over the literal and contextualized meanings that should be ascribed to these deeds. In this contest, the plaintiffs’ interpretations were informed by the oral traditions presented in a wealth of oral testimony. Philipson notes that the tribunal is in an especially good position to assess debates of this sort because its panels include Maori elders and because relevant evidence of Maori contexts is presented. In Philipson’s opinion, another problem with Oliver’s criticisms of the tribunal for its reliance on oral evidence is that it failed to highlight the shortcomings of documentary evidence as it pertains to the Maori. Key among them is the fact that contemporary written accounts by non-Maori make assumptions about Maori culture and understandings that are based at best on fragmentary knowledge. If the tribunal relied solely on such records, it would run the risk of “making large judgments on Maori affairs with only a little knowledge of Maori matters.”98 The other problem with the documentary record is that it is not complete. Of particular relevance for the tribunal, government records often provide information about the promises and actions of the Crown but are sketchy, if not silent, about how they unfolded on the ground and their impacts on the Maori.99 Giselle Byrnes, who has also appeared before the tribunal as a historical expert, has expressed reservations about tribunal reports as histories when viewed from an academic perspective. She shares Oliver’s disquiet about the tribunal’s presentist view of the past. She also worries about its attempt to rebalance historical narratives about New Zealand for claims settlement purposes. This rebalancing exercise, according to Byrnes, has led the tribunal to produce

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histories that are full of caricatures of Pakeha and Maori actors and are riddled with cultural stereotypes: Both Maori and European historical figures (both as individuals and as groups) are treated in a fairly cursory manner. For European characters, this includes the inversion of colonialist personas, where they are transformed from heroes to villains; the vague and rather thin descriptions of Crown officials; the negation of difference with the European settler community, and the assumption that all settlers thought and therefore acted in the same manner; the polarisation of Maori and European world views and habits of thought as mutually exclusive; and finally, the passing of moral judgments and the creation of “good” and “bad” characters.100 Historian Michael Belgrave, who has also written extensively on tribunal history, shares many of Oliver’s and Byrnes’s reservations but offers other important insights. He notes that most criticisms of the Waitangi Tribunal are directed at its reports, not at the process of generating them. Most important, Belgrave argues that critics of the Waitangi Tribunal generally fail to appreciate that its writing of history is part of a very long tradition of judicial investigations of past events in New Zealand. Of particular relevance, Belgrave points out that the Waitangi Tribunal is but one in a succession of commissions that have looked into past wars and confiscations, land purchases, and Maori Land Court proceedings. He notes that previous court hearings and commissions of inquiry have dealt with virtually every case that has come before the Waitangi Tribunal. According to Belgrave, these prior findings and recommendations have influenced tribunal decisions even though the parameters of the Treaty of Waitangi Act (as amended) freed it from the limitations placed on earlier courts and commissions of inquiry.101 Belgrave accepts that an element of presentism is inevitable in Waitangi Tribunal decisions, not only because it is charged primarily with determining whether the Crown has abided by the principles of the Treaty of Waitangi but also because advocacy plays such a crucial role in the adjudication of claims. Commissions, as

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Woodward understood in Australia, need to convince politicians and the public about the reasonableness of their findings if current conflicts are to be addressed. Evidence about the past is essential ammunition. Also, lawyers, who have played increasingly important roles in the tribunal process, press to have evidence directed to current legal arguments.102 A key issue that Belgrave raises about tribunal histories concerns the question about the degree to which the Waitangi Tribunal takes into account postcontact cultural change. He believes that the tribunal has not dealt adequately with this issue and cites four major historical claims to illustrate.103 Once again, the Muriwhenua land claim is a key example. Belgrave says that these hearings were highly adversarial and involved intensive cross-examinations of witnesses, with the opposing sides presenting very different perspectives about the issue of whether the Maori and Europeans had similar or very different understandings of the land transactions that had taken place locally, both before 1840 and from 1840 to the early 1860s. Belgrave believes that after hearing a mass of conflicting evidence on this issue, the tribunal reached the rather simplistic conclusion that Maori and Pakeha had talked past each other about the meaning of land transfers ever since the time of early European contact. In the Waitangi Tribunal’s view, the Maori regarded them as arrangements to share land, whereas the Pakeha thought of them as real estate transactions. Belgrave, similar to Bryne, thought the tribunal’s conclusion was an outgrowth of its stereotypical views of Maori and Pakeha cultures. Also, Belgrave thought that a contributing factor was the Waitangi Tribunal’s belief that the perceptions of individuals from either side had not changed significantly over a long period after initial contact. He too thought that these perspectives and conclusions served the purpose of the forceful chairperson and pre-eminent legal authority on the Treaty of Waitangi, Eddie Durie, who used the hearings as an opportunity to advance his belief that Maori had a system of law that has persisted to the present.104 Not all New Zealand historians share the disquiet of Byrnes and Oliver about tribunal histories. Jim McAloon is one of them. Although he accepts that tribunal history, similar to all history, is shaped to some degree by today’s perspectives, he rejects the as-

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sertion of Byrnes and Oliver that the tribunal sees the past entirely in the light of present concerns and agendas. McAloon also thinks that critics have focused too heavily on the written reports and have not paid enough attention to the evidence and submissions upon which they are based, a perspective that Belgrave shares. McAloon cites numerous examples of claims in which the historical evidence presented to the tribunal provided abundant documentation about Maori and government expectations during the nineteenth century. The Muriwhenua and Taranaka land claims singled out by Byrnes and Oliver are among the examples McAloon provides.105 He argues that in both of these cases the tribunal based its decision on established scholarship about key historical issues and ongoing debates in the academy.106 McAloon further emphasizes that the tribunals’ accounts of historical events and circumstances generally do not depart significantly from mainstream historiographical treatment.107 McAloon also takes exception to Oliver’s charge that the tribunal, in its effort to rebalance New Zealand history, always gives preference to oral evidence over documentary records. McAloon cites the largest land claim to come before the Waitangi Tribunal, that of the Ngai Tahu of the South Island, to make his point. He notes that the Waitangi Tribunal’s report on this claim discounted crucial oral history evidence about promises that the Crown allegedly made to the Maori at the time of the Otakou (or Otago) Purchase in 1844 because the claimants’ accounts were based on the Ngai Tahu reading things backward from the 1870s.108 In the Muriwhenua and Taranaki reports, according to McAloon, the oral evidence is relied upon primarily for information about Maori customs and tradition. He concludes that it is used with great caution with respect to matters that are of a strictly historical nature.109 Philipson, in defence of the tribunal, makes the additional point that criticisms of its histories arise in part because reports cannot convey in writing what is central and unique about the hearing process. Tribunal panels must assess the credentials of the claimants and determine whether they have demonstrated that their cultures, especially their tino rangatiratanga and tikanga (customs), are living things. Tribunal panels achieve these objectives by operating partly

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in a Maori environment with the guidance of their senior Maori members. Focusing solely on the tribunal’s written reports fails to consider the contexts in which panels made their decisions. In the end, conflicting opinions about “tribunal history” were probably inevitable given that Maori perspectives and voices had been largely absent from the scholarly histories Pakeha wrote prior to 1985. In this respect New Zealand history was similar to that of Canada and the United States prior to the 1970s. Any significant effort to include Maori voices was bound to challenge old understandings and require historians to consider new lines of evidence, particularly oral history. For these reasons alone, tribunal histories were bound to be discomforting to many academic historians. As we have seen, the added problem is that these new histories were written to serve a political end: reconciliation with the Maori. Usually, when this issue is raised as a point of criticism, little consideration is given to the ways that past scholarly histories of Maori-Pakeha relations had also served former academic and political agendas regardless of whether those were the authors’ intentions.

ChaPter six

redressing race-based dispossessions in south Africa

As a former British colonial territory, South Africa differs fundamentally from Australia, Canada, New Zealand, and the United States in many important respects. Descendants of the indigenous Africans vastly outnumbered and still do those of European ancestry, and in the postcolonial era they suffered massive, continuous, explicitly race-based dislocations following the passage of the Natives Land Act in 1913. The act launched the first in a series of laws and regulations that led to massive forced population displacements and reduced the ownership rights of black South Africans to but a fraction of the country’s total land area. During the apartheid government period from the 1960s to 1993 alone, 3.5 million African “Blacks” and “Colored” people were forced out of those urban and rural areas that the apartheid government under the National Party (1948–93) determined to set aside for the exclusive occupation of the country’s officially “white” minority.1 With the end of apartheid and the democratic election of the African National Congress (aNc ) government in 1993, the country began to redress the wrongs that black Africans had suffered for nearly a century. The promised Restitution Land Rights Act of 1994 was one of the cornerstones of that effort. This crucial legislation established a claims process for all Africans who had been dispossessed of land on grounds of race. This act also aimed to avoid the type of lengthy and fractious litigation involving competing and overlapping claims that were evident in countries such as Canada.

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Culture, race, and intellectual debates in south Africa In South Africa the long-troubled trajectory of race relations had a profound impact on the development of historical writing and academic scholarship in ways that during the subsequent postapartheid era influenced the development of the land restitution regime and the involvement of scholars in the restitution process. Most important, from the beginning of the twentieth century, the scholarly community of South Africa was divided into two very isolated and increasingly hostile white African camps; one was comprised of English speakers and the other of Afrikaans speakers. These two groups were diametrically opposed to one another in their approach both to race relations and to the study of the country’s black South African population. Some of the English-speaking amateur historians of the nineteenth century lionized the early Dutch and English newcomers and justified their dispossession and economic enslavement of black South Africans; others were sharply critical of the settlers for these actions. George M. Theal, who was among the former group and is considered the “grandfather of South African history,” published the first comprehensive history of South Africa (1892–1919).2 His eleven-volume work was an extended justification of white rule, a study that imagined whites had come to a land of backward, brutal people, whose internecine conflicts had depopulated parts of the interior and Zululand, thereby opening the way for pioneers (called Voortrekkers) in the 1830s and 1840s.3 Typical of the era in which it was written, his history had a strong social Darwinist underpinning. Although Theal’s massive study had widespread appeal, especially in translation later among Afrikaner nationalist historians of the 1930s and 1940s,4 his work – and that of like-minded historians, such as George Cory’s five-volume The Rise of South Africa (1910– 30)5 – provoked a strong reaction from the nascent liberal Englishspeaking historical community, which emerged in the immediate aftermath of the First World War. The leaders of this group were trained overseas, initially mostly at Oxford University. Eric Walker was one of the most important of

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these scholars. A political historian at the University of Cape Town (and later Cambridge), he produced the first historical atlas of the country, Historical Atlas of South Africa (1922), and wrote one of the country’s most comprehensive histories before the Second World War, A History of South Africa (1928). He was one of the first to challenge Theal’s perspective.6 In 1930 he presented an important lecture, which he subsequently published as The Frontier Tradition in South African History (1930), championing the idea that the settlement frontier had been the incubus for racist and segregationist thinking.7 Eventually, historians rebutted his thesis.8 Another Oxford-trained historian, W.M. Macmillan, viewed the country’s past from a social history perspective and supported the notion first put forward by nineteenth-century missionaries that blacks had been the victims of colonization.9 Thus in South Africa challenges to heroic nation-building narratives written by the likes of Theal began well before the claims era of the late twentieth century, and they would continue to be produced throughout the reign of the increasingly repressive National Party government of the apartheid era. By the 1970s the histories of race relations, especially apartheid, had taken a neo-Marxist turn, with revisionist historians explaining black oppression in terms of class domination by capitalists and the processes of industrialization in South Africa. Jeff Guy’s histories of the Zulu are important examples.10 From its inception in the 1920s, the anglophone community of anthropologists-sociologists in South Africa was likewise troubled about the historical impact of colonialism and racism on Africans and their societies.11 Beginning with the celebrated Englishman A.R. Radcliffe-Brown, who held the first chair of social anthropology at the University of Cape Town (1920–25) before taking up his post in Australia, British-trained social anthropologists of the interwar years were sharply critical of segregationist ideology.12 They opposed the use of anthropology to provide apparent scientific validity for this doctrine, and they challenged the ideology that race and culture were correlated. Typical of their approach, they engaged in lengthy fieldwork among African societies that took into account the interaction of these societies with whites. The highly acclaimed

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work of anthropologist Hilda Kuper on the Swazi is probably the best-known example. In An African Aristocracy (1965), Kuper focused on traditional Sawzi social relationships, and in Uniform of Colour: A Study of White-Black Relationships in Swaziland (1947), she focused on Sawzi interactions with whites. The two volumes were based on her doctoral dissertation at the London School of Economics, where she served as a research assistant to the famous Bronislaw Malinowski. Others included Max Gluckman and Isaac Shapiro. Given their shared concerns, the liberal, anglophone historical and anthropological-sociological intellectual communities were closely interconnected. Historian Leonard Thompson and anthropologist Monica Wilson, for example, eventually teamed up to edit and contribute to the influential two-volume The Oxford History of South Africa (1969–71).13 A renowned sociologist and vocal opponent of apartheid, Leo Kuper, the partner of Hilda Kuper, had his contribution to this study banned from the South African edition.14 The government had previously banned Leo’s two classic studies of South African societies: Passive Resistance in South Africa (1957) and An African Bourgeoisie: Race, Class and Politics in South Africa (1965). Most liberal, anglophone scholars, such as Leo Kuper, have historically been politically very active in their opposition to South Africa’s racist policies, including and especially during the apartheid era. One of these scholars, sociologist Cherryl Walker, worked as the first paid staff member of the Association for Rural Advancement. Established in 1979 by a group of volunteers (mostly former members of the disbanded Liberal Party), this organization aimed to expose the apartheid government’s forced population relocation programs across the province of Natal.15 The following year, Walker became involved with the Surplus People Project (SPP ). This project arose from a seminar of community workers and academics who had gathered together in February 1980 to plan a response to rumours about government plans to forcibly relocate a quartermillion people from Cape Town to a place thirty kilometres away.16 Those present pledged to organize a national project that publicized forced locations countrywide. The SPP researched the issue in the early 1980s and managed to publish a five-volume report, even

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though the government had jailed some SPP members under the Terrorism Act of 1967 and had harassed its fieldworkers.17 Threats and intimidation of this sort eventually drove many activist scholars, such as the Kupers, from the country, but they continued their attacks on the apartheid regime from overseas.18 Walker remained in the country and in 1995 would become a regional land claims commissioner under the aNc government led by Nelson Mandela. In stark contrast to the anglophone amateur and professional historians and social scientists, Afrikaner scholars, especially ethnologists, possessed a very different intellectual pedigree and orientation. The founders of this school all studied in Germany, particularly Hamburg, in the 1920s and 1930s. At that time, Germany was a leader in both ethnology and the study of African languages.19 The next generation was trained in Afrikaner universities, primarily in Stellenbosch and Pretoria. Several characteristics of the Afrikaner school were crucial to the development and implementation of apartheid. The foundational idea was that every volk (nation or people) had a unique and bounded culture that should be preserved. The concept of “culture,” albeit only vaguely defined, was the central concern of Afrikaner ethnologists, who became known as volkekundiges. With some notable exceptions in the early years, most of them believed that culture and race were closely linked.20 Volkekundiges were particularly anxious to preserve and separate the cultures of Afrikaners and black Africans. Accordingly, they vehemently opposed racial and cultural assimilation. Well before apartheid became official policy, volkekundiges worried that the racial-cultural mixing, which was accelerating as a consequence of the large-scale rural-urban migration that had begun in the early twentieth century, would eventually lead to the assimilation of whites into the much larger black African population. The only way to prevent this from happening, they argued, was to isolate racial-cultural groups from one another. According to historian Robert Gordon, volkekundiges’ paranoia of assimilation was such that it affected their research on African cultures, or their “bantuology,” to use their terminology. This meant that volkekundiges did not follow the common ethnographic practice of gathering data through extended fieldwork using participant-observer

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methodology, which had become commonplace among their English social anthropology counterparts in South Africa. According to Gordon, their fear of assimilation even led them to regard social anthropology as part of the “English liberal and communist threat.”21 Most volkekunde professors were ardent Afrikaner nationalists and, similar to the English liberal anthropologists, were very active politically. They were, for example, deeply involved in Afrikaner nationalist organizations, most notably the Afrikaner Broederbond (Brotherhood) and in political lobbying groups, such as the South African Bureau for Racial Affairs. The latter was founded in 1948, the same year that the Afrikaner National Party came to power. The bureau advocated for “total apartheid,” by which it meant social, economic, and territorial segregation.22 With the election of the National Party, volkekundiges began to play important roles in postwar government, formulating and defending racist policies and programs. They contributed heavily to the apartheid government’s effort in the 1960s through the 1980s to project the image to the world that South Africa was a multiethnic state in which whites simply formed the largest minority.23 As the state became ever more repressive, the South African Defence Force became the largest employer of volkekundiges. The fundamental division in the historical-anthropological community of South Africa over the race-culture issue from the 1920s to the end of apartheid in 1993 manifested itself again in the processing of claims after 1993. My discussion below notes that South African land restitution legislation avoided drawing on the language of indigeniety, which was common to cultural anthropology and native studies and was included in claims legislation and legal discourse in Australia, Canada, New Zealand, and the United States. Nonetheless, the troublesome concepts of “tribe,” “tribalism,” and the legitimacy of traditional chiefs – which had become problematic for those who opposed apartheid, its volkekunde underpinnings, and government manipulation of “traditional” chieftainships – resurfaced in claims. Even aboriginal title issues arose, and rival claimants occasionally invoked evidence based on ethnology to advance their interests.

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After Apartheid: establishing a land restitution Process The establishment of a democratic government in 1993 dominated by the aNc and led by Nelson Mandela brought past official racist practices to an end. Since the 1950s the aNc had pledged to redress those who had been dispossessed of their land by the racial discrimination policies and practices of previous white governments. Upon being elected, the aNc acted on its commitment by passing, as its very first piece of legislation, the Restitution of Land Rights Act of 1994. Under this legislation, the grievances of the dispossessed would proceed through negotiation, mediation, and settlement of land claims. The act created the Commission on Restitution of Land Rights, which was placed under the authority of a national land claims commissioner, whose office included five regional commissioners. The regional commissioners were primarily responsible for helping petitioners to file their claims, investigating the validity of their petitions, and preparing them for settlement or adjudication. The existing Department of Land Affairs appointed commissioners and provided them with the resources they needed. This department also represented the government in claims negotiations and settlements. Within two years of the passage of the Restitution Land Rights Act, the government established a Land Claims Court of South Africa to approve negotiated agreements, grant restitution orders, and adjudicate disputes on the basis of claims investigations presented to it. Mostly, this court engaged in reviewing submissions of claims commissioners. Petitioners could bypass the claims commission, however, and take their cases directly to the Land Claims Court.24 Until 1999 this court also had to authorize all claims settlements and to issue court orders that put them into effect. This complex bureaucratic-legal arrangement was problematic from the outset.25 For one thing, serious frictions existed between the claims commission and the old Department of Land Affairs stemming from the very different and often competing responsibilities of the two bodies. The commission for its part was charged with addressing claims. Although the land affairs department was

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6.1 | members of the first land Claims Commission and land Claims Court, south Africa, circa 1994–95. standing, left to right: Cherryl Walker (Comm), Justice moloto (lCC), Wallace mgoqi (Comm), Antoine gildenhuys (lCC), Peter mayende (Comm), Alan dodson (lCC). sitting, left to right: fikile bam (lCC, judge and president), Joe sereman (Comm), emma mashini (Comm).

supposed to support that effort, it was also charged with promoting economic development, a goal usually at odds with restitution objectives. Another problem in the early years was that the the Department of Land Affairs was the very body that had carried out the land dispossessions of black South Africans during apartheid. When the aNc took power, it grandfathered the positions of existing civil servants for a five-year period in the hope of facilitating a peaceful transition to a democratic state. Thus civil servants who remained in the Department of Land Affairs had to assist in the process that redressed the land losses suffered by black South Africans as a consequence of its policies during the apartheid era. Furthermore, as Cherryl Walker points out, all of the initial land claims commissioners were former anti-apartheid activists.26 In addition to this complication, there were frictions as the claims commission and the five commissioners under its authority struggled to define the limits of their respective national and regional authorities. At

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the outset, the authority of the South African claims commission was highly centralized, but over time the regional commissioners on the ground gained substantial authority.27 Not surprisingly, the government took steps to bring harmony to the restitution process and to streamline it. A key move in that direction took place in 1999 when the commission became a separate division within the Department of Land Affairs.28 The same year, the national government amended the Restitution Land Rights Act, eliminating the necessity for the Land Claims Court to sanction negotiated settlements before they could be implemented.29 Thereafter, the claims court handled only disputed claims. Appeals against its judgments could be taken to the Supreme Court of Appeal of South Africa and from there to the Constitutional Court of South Africa.30 Ruth Hall argues that this crucial separation of the adjudicatory function from the land restitution commission was based on the experience of land commissions and tribunals in Australia, Canada, and New Zealand, as well as on a deep distrust of the South African judiciary, a distrust that despite the country’s dramatic change of political and legal regime lingered on from the apartheid era.31 The aNc government wanted claims settled quickly so that the country could turn from its racist past and move forward quickly with economic development. For this to occur, a stable land tenure regime was essential. Accordingly, and in a manner that recalls the American congressional act that created the United States Indian Claims Commission in 1946, the Restitution Land Rights Act of South Africa placed unrealistic time limits on the claims process. The overly optimistic South African legislators imagined that the commission could complete its work in five years.32 The latter act originally stated that all claims had to be filed by 1998. Subsequently, the government extended the filing period by one year. The majority of the over 64,000 claims that had been filed since 1995 were still being processed three years later in 2000. Indeed, many thousands of claims were still awaiting settlement a decade later. According to T.A. Maphoto’s progress report on land tenure claims, as of 7 February 2012 there were 8,770 outstanding claims, of which 3,346 needed to be researched.33

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Before I turn to selected land claims cases in order to illustrate and highlight how the claims process unfolded in South Africa, it is worth noting that the apparatus created by the Restitution Land Rights Act has to be considered in relation to other long-term aNc government goals, such as the promotion of economic development, urban development and renewal, environmental conservation, and the protection of traditional African cultures.34 Any aggressive land restitution process that disrupted the current spatial economic order, which was the product of apartheid laws and policies, had the potential to disrupt the path to these goals by causing uncertainty about existing land tenures. Yet this “disruption” has not occured. Why? Simply put, the bulk of settlements have been for urban area claims, and the vast majority of urban claimants have accepted financial compensation as individuals, not communities.35 The aNc ’s concerns about conservation and the promotion of traditional tribal chieftanships have mostly affected the process for settling rural claims. The case studies I will discuss concern the rural claims. The emphasis on arriving at financial settlements for the bulk of the claimants – rural or urban – in South Africa means that the Restitution Land Rights Act has yielded results that are different from those produced by the land claims schemes of Canada and New Zealand, where settlements, such as Canada’s Nisga’a Agreement, have often been very complex, involving for example the return of portions of traditional territories to claimant communities, payment of substantial financial compensation for lands surrendered, and even resource co-management and revenue-sharing agreements for the lands retained and/or given up.36 In South Africa, only the land settlements encompassing national park lands and conservation areas have yielded these types of co-management and/or revenue-sharing settlements. making a Claim under the restitution land rights Act As noted, South Africa differs markedly from Australia, Canada, New Zealand, and the United States in that its land restitution legislation does not use the language of indigeniety. The primary reason

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is that the aNc , since its inception in 1912, has held that all “black Africans” and “coloureds” are indigenous South Africans who have suffered from racial discrimination. Its longstanding commitment to the creation of a liberal democratic state was an additional reason why it was not willing to privilege the claims of people of aboriginal descent who had distinct territorial and cultural identities and communitarian political institutions.37 Accordingly, the land restitution legislation of 1994 specified that the only claims eligible for consideration were those that arose from the explicitly race-based land dispossessions that had taken place after the passage of the Natives Land Act of 1913, which had reserved most of the country for whites. Limiting eligibility to the post-1913 period was additionally attractive to the aNc government because it held the promise of minimizing the likelihood of black African claimants battling each other. The risk of creating divisions within the black African community itself was a particular concern because of the extensive conflict between indigenous groups on the margins of the expanding English and Boer colonial frontiers before 1913.38 Similar to what had happened on the colonial frontiers of North America and New Zealand, colonial warfare in South Africa was partly the consequence of black Africans taking advantage of the arms and military assistance that the newcomers readily offered to help them battle against their traditional foes. Thus allowing claims from the colonial era would open the possibility of receiving many petitions that were based on these early intertribal conflicts that had been fostered by the “divide and conquer” practices of the English and Boer settlers. This sort of troubled colonial history often underpinned the competing claims that came before the United States Indian Claims Commission, surfaced in litigation in United States and Canada, and was an aspect of overlapping claims brought before New Zealand’s Waitangi Tribunal. Competing claims have surfaced in South Africa too, the intent of claims legislation notwithstanding, although perhaps they have been less common than elsewhere. Also, some South African claimants have advanced traditional cultural identities to bolster their chances of success.39 In these ways, the South African land claims process has some similarities with

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those of the other countries in the present study. Yet it is markedly different because the South African claims process has emphasized dispossessions that were caused by the country’s former explicitly racist legislation and policies, which were implemented by the state in the early twentieth century. Both identifying eligible claimant groups and delineating their traditional territories have been central, interrelated concerns in the major land restitution cases in nonurban areas of South Africa. Addressing these interrelated concerns has required regional claims commissioners to undertake research into the cultural practices of claimant communities on the eve of their removal, paying particular regard to their land use patterns and customary political systems. Some claimants have even raised the issue of aboriginal title, even though the relatively recent cut-off date supposedly made this course of action irrelevant. Because the framers of the Restitution Land Rights Act avoided arguments about indigeniety, section 2 (1) of the act specifies that claims are to be filed by “communities.” The act defines a “community” as “any group of persons whose rights in land are derived from shared rules determining access to land held in common by such a group, and includes part of any such group.” And to be successful, under section 1, claimants need to establish that their interest in the land prior to dispossession meets one or more of several criteria: “any right in land whether registered or unregistered, and may include the interest of a labour tenant and sharecropper, a customary law interest [meaning a long-established practice in a given locale], the beneficiary under a trust arrangement and beneficial occupation for a continuous period of not less than 10 years prior to the dispossession in question.”40 Reflecting the intention of the law, the definition of “community” does not make explicit reference to “any tribe, band, or other identifiable group” or to any local descent group of “traditional aboriginal owners,” unlike claims legislation in the United States and the Northern Territory of Australia and unlike the ongoing Waitangi Tribunal. By using the term “community,” the South African act addresses the reality that after 1913 most rural blacks were forced to make their livelihoods over long periods on lands owned by white landowners or the state.

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In South Africa, as elsewhere, ambiguities about who constitutes bona fide claimant groups have provoked a great deal of controversy. Well before the end of apartheid, South African scholars had raised questions about the likelihood that traditional communities and cultural practices could have survived the sorts of massive population dislocations that intergroup warfare caused during the colonial era, or the disruptive racial policies of successive colonial and South African governments, or the widespread use of migrant male labour in the mining sector of the economy beginning in the late nineteenth century and continuing to this day. In Leroy Vail’s edited collection of essays The Creation of Tribalism in Southern Africa (1989), for example, historians explored the roles that the introduction of European education models, missionaries, and “divide and rule” strategies of colonial powers in the region had played in the invention and/or accentuation of ethnic-tribal identities and the creation (or invention) of “traditional” chiefs or leaders.41 Skeptics of cultural survivals who are familiar with the “invention of tradition” literature have charged that some of the claimant communities that have come forth in South Africa since 1994 are either creations of the claims process42 or have invented traditions specifically to improve their chances of success before the land commission and/or the land court in advancing their economic interests.43 Charges of this sort are of course not unique to South Africa. They have surfaced in North America and New Zealand also.44 Despite all precautions taken in drafting the legislation to avoid having to deal with competing claims by rival factions within ethnic groups, this has occurred in South Africa, and its presence has served to highlight controversies about the legitimacy of various claimant communities in that country. Some of these competing claims have been high-profile disputes because they have concerned territories located in touristic national parks that are governed by what are, in essence, co-opted (or state-sanctioned) local chiefs. This process of co-option of local chiefs began well before apartheid, when in the late nineteenth century British colonial governments established reserves to segregate black South Africans from whites. The South African government established additional reserves in 1913 and again in 1936. By the 1940s these reserves were referred to

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as “Bantustans.” When the South African government passed the Native Administration Act of 1927, the authority of traditional chiefs and headmen on these reserves was significantly boosted for the purpose of undermining the popularity and influence of the aNc of the day.45 The Bantu Authorities Act of 1951 further enhanced the traditional chiefs’ powers and provided them with an incentive to support apartheid policies by making them salaried government officials.46 Beginning with this 1951 act, the national government expanded and accelerated its retribalization scheme.47 In deciding where to locate Bantustans, how to allocate groups to them, and who should be recognized as “traditional chiefs” for the purpose of governing these areas, the government was guided by a rather large body of volkekunde ethnology. Of particular relevance to land restitution claims in the postapartheid era, the statesanctioned tribal authorities created during apartheid continued to exist. Indeed, the current Constitution and legislation have enhanced their authority. For example, chapter 11 of the South African Constitution recognizes and protects traditional leadership and customary law. Legislation passed in 1997, 1998, 2000, and 2009 regarding the Council of Traditional Leaders (1997–99) and the National House of Traditional Leaders (2000-present) also promotes traditional chiefs. In some of the more widely known claims cases, government-recognized “traditional chiefs” have challenged the right of dispossessed groups to file independent claims. The interventions by “traditional chiefs” again flagged issues seen elsewhere over the use and meaning of the term “tribe,” but in South Africa it carried the political baggage of the apartheid era. selected land Claims In keeping with my emphasis when examining other countries, my focus is on rural claims.48 Two of the South African claims selected are high-profile cases involving national park lands: those of the Bhangazi (also know as Mbuyazi) of the Eastern Shores region and those of the Makuleke of Kruger National Park.49 These two groups of claims represent places where “undeveloped lands” should have been readily available for restitution to dispossessed blacks who

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wanted to return to them. However, various interest groups, most notably conservationists, the tourism industry, mining companies, and the South African Department of Land Affairs itself generally opposed restitution of land if it meant that successful claimants could resume the farming, grazing, and other land use practices of their tradition. The Bhangazi and Makuleke examples also featured government-recognized chiefs filing counterclaims. In addition, I also discuss the Richtersveld community claim in the northwestern part of the Northern Cape area. The Richtersveld people were the first to bring the aboriginal title issue to the Land Claims Court and subsequently to the Constitutional Court. The Bhangazi/Mbuyazi Claim

The land claim of the Bhangazi people, whose name derives from a small lake located near Cape Vidal in the Indian Ocean coastline region of Lake St Lucia and the Eastern Shores, was an early, highprofile land claim that highlighted the complex historical-cultural and economic development issues that arose when the Restitution Land Rights Act was applied in national park areas. The claim concerned the southern portion of the province of KwaZulu-Natal’s Eastern Shores region, which lies between Lake St Lucia and the coast. It is part of the Greater St Lucia Wetland Park.50 The Bhangazi claim also illustrates how the act provided sufficient latitude for a very committed regional land claims commissioner, Cherryl Walker, whom I introduced earlier, to play a crucial role in finding a negotiated resolution that managed to address the competing interests of the various groups who were affected by the claim without any of them having to resort to the courts. Commissioner Walker first visited the region and began her active involvement in the claim in 1995. She and her staff conducted historical research that involved interviewing the claimants about their oral traditions and personal experiences. They then checked out this oral history evidence against available archaeological and documentary records. Walker also consulted historical experts, most notably Jeff Guy, a South African Marxist historian who had written the definitive histories of the Zulu and had, like Walker, been

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a member of the English activist community during the 1970s.51 Walker and her colleagues also interviewed other residents in the area to gain a fuller picture of the recent history of the region. The Bhangazi claimants are members of the Mbuyazi clan (and are often referred to by that name).52 Their claim concerned land that had been part of a national park from 1895 to 1928 and again from 1938 to the present. According to Commissioner Walker, successive colonial and South African governments created and sustained the park on the presumption that it was a pristine wilderness area. As was typical of South Africa and of colonial eras generally, government officials had paid no regard to the local black African population when they had set aside the land for the park in 1895. Initially, the Bhangazi were not adversely affected by this action because they were allowed to continue grazing their cattle, practise shifting cultivation, and engage in collecting, hunting, and fishing along the Indian Ocean coastline and inland. Subsequent developments, particularly the establishment of the all-white resort town of St Lucia from 1928 to 1934 and the expansion of the tourism industry afterward, eventually forced the Bhangazi to move northward and disperse. As a result, the “community” of claimants coming forward were geographically and socially scattered long before they filed their claim. Nonetheless, research undertaken by fieldworkers from Commissioner Walker’s office established that the Bhangazi continued to maintain cultural ties with the region. For members of the Mbuyazi clan, doing so involved returning to baptize their infants in the sea and maintaining totemic relations with the hippo living in the lake system. A key interview conducted by Walker was with Phineas Mbuyazi, who from the 1970s had been one of the leaders to press hardest for a return of his people to their traditional homeland. Mbuyazi confirmed that he had three reasons for wanting to go back to the place where his people’s social identity was intertwined with the land: isiko (local clan-based customs), ulwandle (the sea), and the lake with its hippo.53 Research by Commissioner Walker and her staff also revealed that the Greater St Lucia Wetland Park was not the pristine wildlife area imagined by conservationists. The archaeological record indicated that iron-using people had been present in the region from

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as early as aD 300 to 400. The Bhangazi claimants were not suggesting they were direct descendants of these ancient inhabitants. On the contrary, their oral histories revealed that it was during the early nineteenth century that the claimants’ ancestors had migrated northward into the area from the vicinity of present-day Richards Bay, fifty kilometres to the south-southwest.54 Walker found supporting evidence for this oral history from the Reverend A.T. Bryant’s ethnography of the Zulu, published in 1929. She noted that Bryant provided information that made it clear that the ancestors of the Mbuyazi had developed into an independent “clanlet” after migrating into the claim area. In his narrative, Bryant writes that these people later called themselves the “aba-kwaSokana,” which meant “they of Sokana.” Sokana was the name that their inkosi (chief ) had adopted by the second decade of the nineteenth century.55 Jeff Guy’s report for Commissioner Walker provided additional supporting evidence by stating that local “native commissioners” and magistrates gave some recognition to the Bhangazi/Mbuyazi following the creation of an independent South Africa in 1910. However, the local Mpukonyoni Tribal Authority under the leadership of Chief Mkhwanzi did not accept this version of Bhangazi/Mbuyazi history. Accordingly, Mkhwanzi filed a counterclaim that insisted the Bhangazi people had always been led by a headman who was subordinate to the chief of the Mpukonyoni. The contemporary dispute between these two groups originated in the long and twisted history of British colonial and South African governments’ treatment of traditional cultural-political groups in the region, according to Guy’s report for Commissioner Walker. In the nineteenth century the British had awarded control of the Lake St Lucia area to the Mpukonyoni Chiefdom, only to revoke that award when the colonial government annexed the Zulu Kingdom and declared the Eastern Shores region to be British Crown land. When the Bantu Authorities Act of 1951 reconstituted tribal chiefs and councils across South Africa as part of the country’s ongoing scheme to create separate “homelands” for black African groups,56 the legislation also established direct political continuity between

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the tribal authority and its nineteenth-century antecedents. The Mpukonyoni foregrounded this act of the apartheid government of the National Party as major evidence for their contention that the Bhangazi had never been independent and therefore lacked the authority to make an independent restitution petition.57 In addition, they asserted a right in the land by claiming that Mpukonyoni headmen had formerly grazed their cattle in the Eastern Shores region. When checking on the Mpukonyoni counterclaim, which rested on the assertion that Bhangazi people had always been subordinate to the chief of the Mpukonyoni, Walker and her staff found evidence to the contary. Guy’s research revealed that the local magistrate and native commissioner both had recognized the Bhangazi occupancy of the land in the 1940s and 1950s, during which time these officials had invited representatives of the Mbuyazi to attend the Quarterly Meetings of Chiefs, Headmen and People.58 Walker also interviewed and received a submission from a National Parks Board conservation officer who had worked in the Eastern Shores region in the 1960s and testified he had known that the Bhangazi were present there but had never seen any Mpukonyoni in the area. This evidence notwithstanding, the Mpukonyoni continued to press their rival claim. In the end, Commissioner Walker played the decisive role in resolving the dispute by taking the position that only prior occupants of the claimed area should have standing in the claim. According to Walker, “the claimants were those who had formerly lived on the Eastern Shores (or their descendants), not the two people who had signed claim forms allegedly on their behalf.”59 The key political advantage of taking this position was that her office was able to avoid having to reject one claim in favour of the other and thereby intensify the local animosities that the rival claims had already generated. Aggravating either side would have reduced the chances of reaching a negotiated settlement. Walker’s strategy also enabled her office to consider all of the claimants included on the two lists that the rival parties had submitted. The names on the two lists did not match even though both supposedly included the names of people who had lived in the disputed territory. Having made the decision

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6.3 | Commission hearings with claimants, st lucia, south Africa, 1998.

to create a definitive list of claimant households “quite literally from the ground up,”60 Commissioner Walker then took the novel, if costly, approach of travelling over the claim area with a large and varied team composed of community elders, a lawyer, a surveyor, an anthropologist, and staffs from her office, the Department of Land Affairs,61 and the National Parks Board. Over a few weeks, the team’s fieldwork identified 381 sites in the claim area where Bhangazi families had previously lived. They tracked down living beneficiaries for 242 (64 per cent) of these sites. Subsequent negotiations with the concerned parties led Walker’s office to add another 175 beneficiaries. Reflecting on her final list, Walker thought that the fieldwork and negotiations had produced a credible claimant list, which met her “good enough” standard.62 Next Walker formed a single committee to negotiate a settlement with the people who were on the list she had created. She reasoned that these people constituted a “community” in terms of the Restitution Land Rights Act because they and their ancestors had actually used and occupied the land according to customary practices

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prior to being dispossessed.63 Her staff then polled this community to determine what kind of settlement they wanted. Most of the community members favoured receiving financial compensation. A financial settlement made more sense because land restitution in the park was not an option: the government simply was fully committed to maintaining the park as a nature preserve and to promoting ecotourism. Nevertheless, a few Bhangazi wanted to return to their ancestral homeland, Phineas Mbuyazi among them. In the end, each of the claimant families accepted 30,000 rand in compensation (worth Cnd$3,110 in August 2014). In addition, the government agreed to create the Bhangazi Community Trust, which was to be the major beneficiary – to receive 75 per cent for seventyfive years – of a community levy on tourists visiting the Eastern Shores. The settlement allocated a 20 per cent share of the proceeds of the levy to the Mpukonyoni Tribal Authority and the remaining 5 per cent to the central community fund of the Kwa-Zulu Natal Conservation Board.64 In these ways, the competing interests of the claimant groups were addressed, and the government retained control and use of the land. The courts never became involved because none of the parties challenged Commissioner Walker’s negotiated settlement. The Makuleke Claim

In 1994, the year before Commissioner Walker began her fieldwork and interviews for the Bhangazi claim began, the Makuleke tribe filed a claim for what is known as the Pafuri Triangle in the northern most portion of South Africa’s iconic Kruger National Park near the border with Zimbabwe. The tribe also claimed a strip of land to the west of the triangle known as the Madimbo Corridor. The petitioners are a Tsonga-speaking Shangaan people whose claim is yet another example of a restitution petition that provoked counterclaims by other tribal chiefs. A different set of circumstances in the Makuleke case prevented the rival claimants from reaching an accord that was as amicable as the one achieved in the Bhangazi claim. In this instance, there were two challengers. The first was Chief Jack Mutele, who was the leader of a traditional community located in

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the Madimbo Corridor. The other was Chief Mhinga, who was the leader of another Tsonga-speaking Shangaan people living in the territory of the former Bantustan of Gazankulu. This territory lies outside of Kruger National Park south of the Madimbo Corridor. Similar to what happened in the Bhangazi claim, in this case Chief Mhinga contended that the Makuleke’s leaders were subordinate to him and therefore lacked the authority to file an independent claim. In making this assertion, Mhinga was raising the central issue of a dispute that had been simmering between the two groups from at least the mid-twentieth century. The conflict had its roots in former apartheid policies and legislation. According to the anthropologists Steven Robins and Kees van der Waal, for the Makuleke, the land claims process provided an avenue to advance their position in this ongoing political quarrel.65 The Makuleke based their petition to the Land Claims Commission on the fact that in 1969 they had been forcibly ejected from the 23,700-hectare Pafuri Triangle region of Kruger National Park. Documents submitted in support of their claim indicated that the Makuleke had lived in scattered villages in this region for 150 to 200 years before that event. By the middle of the twentieth century, they had developed a mixed economy that included Makuleke men being engaged as migratory labourers in the mines and factories far off in the Transvaal during the dry season. During the rainy season, they returned home and worked their fields in the Pafuri Triangle. Many of their wives were from the neighbouring countries of Mozambique and Zimbabwe (formerly Southern Rhodesia).66 The relatively remote location of the Makuleke homeland and its proximity to two foreign borders meant that smuggling, poaching, and other illegal activities were commonplace in the region. These realities, combined with the cross-border kinship linkages and the migratory habits of the men, led Kruger Park officials to regard the Makuleke with suspicion and seek to have them relocated elsewhere. As early as 1947 the Parks Board argued that the Makuleke had no property rights in the park area because they lived on unregistered state land that was administered by the South African Development Trust according to the terms of the Native Trust and Land Act of 1993.67 The board also asserted that the Makuleke did not constitute

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a proper (or official) chieftaincy based on the board’s supposition that they were vassals of Chief Mhinga. Chief Mhinga had gained government recognition during the apartheid era because he (and his father) had willingly participated in the administration of the Gazankulu Bantustan.68 In any event, in 1969 the Parks Board succeeded in having the Makuleke forcibly removed and relocated to Gazankulu. As was common practice for dislocation at the time, the government paid no compensation to the Makuleke for their losses or costs of relocating.69 Two years after filing their claim, the Makuleke negotiated a complex settlement with the help of the regional land claims commissioner for the Northern Province (now called Limpopo), Emma Mashinini, which the Land Claims Court sanctioned.70 The bulk of their ancestral land that they had claimed in Kruger Park was handed back to them on the condition that it could be used only for conservation purposes and ecotourism. Accordingly, the Makuleke entered into a joint management arrangement with South African National Parks in order to derive economic benefits from their “restored” lands. Chief Mhinga contested this settlement. For that purpose, he hired anthropologist Chris J. Vuuren of the Afrikaner University of South Africa to prepare a report on the province of Mpumalanga and the Northern Province for the regional land claims commissioner. The report supported the chief ’s proposition that the Makuleke were his subordinates and therefore should not have been allowed to file a claim independently. Vurren, relying heavily on the research of two volkekunde ethnologists who had been prominent during the apartheid era, Henry Junod and Nicholas J. van Warmelo, reached the questionable conclusion that Mhinga’s tribal territory had been subdivided into six areas in the 1930s, each of which had been ruled by subordinate headmen. According to Vurren, the Makuleke had occupied one of these. Mhinga’s appeal failed in spite of Vurren’s efforts. Commissioner Mashinini simply did not regard the issue of tribal authority as being relevant to claims under the Restitution Land Rights Act.71 For Commissioner Mashinini, the only relevant fact was that the Makuleke community had been forcibly dispossessed by the apartheid government.

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The Richtersveld Claim and the Question of Aboriginal Title

In the northwestern corner of the Northern Cape area of South Africa, the claim of the community of Richtersveld brought up historical and legal issues that were very different from the issues of the previous two cases. For one thing, the community raised the matter of aboriginal title even though the timeframe for claims specified in the Restitution Land Rights Act was intended to exclude this possibility.72 The Richtersveld community is located in the semi-arid region of the Little Namaqualand part of the northwestern corner of the province of the Northern Cape. The community is ethnically diverse, being comprised of people of Khoikhoi (Hottentot), San (Bushman), and Boer ancestry. These people took the unusual step of filing a title claim with the Land Claims Court against the diamond-mining company Alexkor Limited and the Republic of South Africa. Previously, nearly all claimants brought their petitions to the Land Claims Commission for investigation and referral to the Land Claims Court. In their claim, the Richtersveld community asserted that long before 1913, and for at least a decade afterward, their people had lived a nomadic existence in the vicinity of the lower Orange (Gariep) River. In fact, their way of life was not disrupted to a significant degree until the discovery of rich alluvial diamond deposits at Port Nolloth, Alexander Bay, in 1925. Following this discovery the government awarded diamond claims to prospectors-miners on the presumption that it held Crown title to the lands in question. Much later, in 1989, the government consolidated mining rights in the area in the Alexander Bay Corporation and, in 1991, in its successor, Alexkor. The problem for the Richtersveld people was that the expansion of mining in the region after 1925 eroded any chance of them continuing their traditional use of the land. In light of the provisions of the Restitution Land Rights Act, the Richtersveld people filed a community claim in 1998. As is typical in land rights litigation under the act, the plaintiffs had covered all of the possible bases on which they could establish a valid claim. The community asserted that their members’ rights in land were based on “[1] ownership; alternatively [2] a right based on aborigi-

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nal title allowing them the exclusive beneficial occupation and use of the subject land, or the right to use the subject land for certain specified purposes; alternatively [3] ‘a right in land’ over the subject land acquired through their beneficial occupation thereof for a period longer than 10 years prior to their eventual dispossession.”73 The “specified purposes” for which the Richtersveld people claimed to use their land included cultural and religious practices, grazing, cultivation, hunting, fishing, water trekking, and the harvesting and exploitation of natural resources, including minerals. the ClAims triAl | The petitioners presented their case before

the Land Claims Court through three senior lay witnesses from the community (who provided oral histories), two historians, and four anthropologists. Collectively, the experts considered the mining history of the region, government administration of the area from the earliest colonial period, and the social structures, history, and practices of the Richtersveld people. Of the four anthropologists, E.A. Boonzaier of Cape Town University was the main witness. He dealt extensively with the Richtersveld community in the old days and with the social structures, history, and practices of its people. Two historians, Richard Turrell and Sean Field, also gave evidence. One of them focused on government involvement in the region, particularly as it related to mining development, and the other undertook an oral history project that concentrated on the social history of the community.74 In support of their testimony and written briefs, the plaintiffs’ experts submitted abundant documentation, described by the trial judge as comprising “bundles containing a large number of documents, consisting of archival records, articles, journals and extracts from writings on the 19th and early 20th century.” The plaintiffs and defendants agreed that these bundles could be accepted by the court “without formal proof ” because they concurred that the documents were what they were purported to be.75 This agreement was somewhat unusual. In litigation opposing legal teams typically challenge submissions of evidence by the other side. Willem J. Cloete, who was the chairperson of the Richtersveld Transitional Council, the local governing institution, was one of the senior community members who testified as a lay witness.76

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Eighty-nine-year-old Elias Links was another. A descendant of the traditional chief of the community, Links testified about the movement of his people in the area with their livestock and about other aspects of land use before and during the twentieth century. Finally, Paul Phillips, who was fifty-nine at the time, presented the oral history of the Richtersveld community as it had been passed down to him through the generations.77 The anthropologists presented evidence to show that the Khoi Khoi had established themselves as the dominant group in the Namaqualand region well before Dutch colonization began there in the 1600s; included were Little Namaqualand to the south of the Orange River and Great Namaqualand to the north. The huntinggathering San were also present. Traditionally, both groups had migrated over the land with the changing seasons in response to shifting patterns of rainfall. During the nineteenth century other groups moved into the region, especially Little Namaqualand, and intermarried with the local Khoikhoi and San. These were nomadic white herders mostly of Dutch descent, known as the trekboere, and people of mixed white-Khoisan descent, called basters. At the beginning of the nineteenth century, the Richtersveld people were part of the Witbooi tribe, led by Captain Kupido Witbooi, who claimed most of Little Namaqualand. He divided his territory into three subdistricts, two of which were under the control of “assistant captains” and raads (councils) comprised of the chiefs of the local clans. Paul Links was the assistant captain of the westernmost territory, which came to be known as Richtersveld.78 The land belonged to the community as a whole, and members were entitled to reasonable use and occupation as determined by the captain and the raads. These traditional leaders apparently also regulated the access of outsiders to the territory and dealt with government officials. By the mid-nineteenth century, missionaries had arrived in the region, most notably the Reverend Johan Hein, a Renisch missionary, who established a station at Kudoes in 1844. According to the diary he kept there, which the plaintiffs’ experts presented in evidence, Khoisan herders and recently arrived basters were the pri-

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mary occupants of the Richtersveld area. Hein’s mission became the nucleus of a settlement. According to Justice Antonie Gildenhuys, Hein’s journal also indicated that as early as the nineteenth century local missionaries had promoted the idea of having the Richtersveld people make land claims.79 In the eyes of the court, key among the documents submitted in evidence for the existence of a Richtersveld community before its displacement beginning in the early twentieth century was a 30 June 1890 report of the second assistant surveyor general to the South African Parliament. This document spoke of the existence of the mission station at Kuboes and its associated settlement. Regarding the latter settlement, the surveyor’s report stated, “the inhabitants of Richtersveld count only 47 families, comprising say 380 souls, nearly all of whom are Hottentots, with Paul Links, son of the late Captain Paul Links, as their headman; their live-stock consisting of about 50 horses, 560 horned cattle, 3,200 sheep and goats. Most of them are very poor.”80 In summary, the historical evidence presented at trial in the forms of government documents and missionary records, the testimony provided by anthropologists, and the oral histories of lay witnesses Cloete and Phillips spoke to the existence of a core land use community that had continued to exist from at least the late nineteenth century until the time of dispossession. Notwithstanding the volume of documentary and oral evidence about the existence of a community occuping the claimed land before 1913, Justice Gildenhuys held that any rights the claimants might have held in the claimed land had been extinguished when the British extended the northern boundary of the province of the Northern Cape to the Orange (Gariep) River in 1847.81 He reasoned that Little Namaqualand, including the area of the Richtersveld community, had become Crown land as a result of the annexation because, according to current colonial law, all land not granted under some form of tenure belonged to the Crown. Justice Gildenhuys did accept, however, that the plaintiffs’ ancestors had beneficially occupied the subject land for not less than ten years prior to displacement.82

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Having determined that the plaintiffs met this key eligibility criteria specified by the Restitution Land Rights Act, Justice Gildenhuys turned to the question of whether their dispossession after that date had been the consequence of racial discrimination. He decided that this had not been the case and, on that basis, denied the Richtersveld claim. Justice Gildenhuys concluded in the negative because he reasoned that the evidence indicated that, from colonial times, government officials had failed to protect the land rights of the plaintiffs’ ancestors in the belief that the latter occupied Crown lands. This presumption of colonial officials was based on the principle of terra nullius. Put simply, they thought the local Khoisan were too primitive to hold a cognizable right in land according to South African common law. Although Justice Gildenhuys acknowledged that the outdated terra nullius legal rationale was racist, he concluded that it had been part of the law of the land before 1913.83 Regarding the aboriginal title question raised by the plaintiffs, Justice Gildenhuys provided a brief overview of the development of the concept in Australia, Canada, and New Zealand but concluded that his court simply did not have the authority to advance the common law of South Africa by accepting the Richtersveld people’s aboriginal title claim. He also believed that if the claim were allowed it would violate the meaning and intent of the Restitution Land Rights Act and could be very disruptive to the country.84 In support of his reasoning, he quoted at length South African legal scholar Theunius Roux: [T]he choice of the [cut-off ] date 19 June 1913 … illustrates one of the fundamental differences between the land restitution process being attempted in South Africa and the superficially similar policies being pursued in Australia, New Zealand and Canada. In those countries, where only a small minority of the population can claim descent from the aboriginal occupiers of the land, and where an even smaller percentage can actually show that they have maintained their ancestors’ traditional way of life, it has proven possible to extend the land claims process right back to the time of colonial settlement.

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Roux continued, “in South Africa, of course, such a policy would have proven disastrous. Not only would the entire land surface of the country have become subject to claims, the very ethnic tensions which the land claims process hopes to resolve would simply have been exacerbated.”85 Justice Gildenhuys’s judgment would not withstand the scrutiny of the Supreme Court of Appeal or that of the final court of appeal, the Constitutional Court. the APPeAls | On appeal, the Supreme Court of Appeal and the Constitutional Court took the opportunity to look closely at international case law concerning aboriginal law. They overturned Justice Gildenhuys’s conclusions in Richtersveld (2001) that the colonial notion of terra nullius was relevant to the issues before his court. The Constitutional Court also rejected his finding that racially discriminatory legislation or practices had not caused the dispossession of the Richtersveld people. Likewise, both courts of appeal revisited the issue of aboriginal title. In so doing, the courts took into account the precedence set by the United States, Canada, Australia, and New Zealand. When the Supreme Court of Appeal took up the Richtersveld appeal, it observed at length that courts in the United States, Canada, Australia, and New Zealand had developed their common law to protect indigenous communities’ rights to occupation and use of land “by recognizing the rights of these communities to continue to occupy and use their communal lands as their forebears had done even when it was not underpinned by any rights at common law.”86 In its review of the nature of aboriginal title, the Supreme Court of Appeal turned to two landmark rulings of the Supreme Court of Canada: Calder (1973), for the notion that aboriginal title is based on “exclusive use and occupation” at the time the Crown acquired sovereignty; and Delgamuukw (1998), for the principle that aboriginal title amounts to more than simply the right to engage in site-specific activities that are aspects of the practices, customs, and traditions of distinctive aboriginal cultures. Rather, “[what] aboriginal title confers is the right to the land itself.”87 The Supreme Court of Appeal also cited the Yorta Yorta (2002) decision of the

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High Court of Australia for the principle that aboriginal title is the “creature of traditional laws and customs.”88 After discussing the evolution of the concept of aboriginal title in other countries, the South African Supreme Court of Appeal turned to the question of whether the concept of aboriginal title ought to be applied in South Africa. It noted that legal scholars were divided over this question. It acknowledged, as Justice Gildenhuys had done, that some academics had expressed the view that the 1913 cutoff date for claims specified in the Restitution Land Rights Act was intended to preclude claims based on aboriginal title. The Supreme Court of Appeal also noted, however, the strong arguments of other scholars for the proposition that aboriginal title could be a legitimate and workable part of South African law, citing papers published in the South African Journal of Human Rights by T.W. Bennett and C.H. Powell and by Australian legal scholar Alexander Reilly.89 The Court of Appeal concluded that some aspects of aboriginal title did not fit comfortably into the country’s common law but that it was unnecessary for the court to decide the title issue at the time because on appeal none of the parties had challenged the Land Claims Court’s ruling that the Richtersveld community had a customary law interest in the disputed land. The Restitution Land Rights Act specified that claims could be based on such an interest.90 The customary law interest of the Richersveld community amounted to a right to exclusive beneficial occupation and use of the land akin to the right of ownership under the common law of South Africa.91 On appeal to the Constitutional Court, however, the mining company Alexkor Limited asked for leave to revive the title question, which it had previously abandoned before the Supreme Court of Appeal. Because of the importance of the title question to this and potential future cases, the Constitutional Court agreed to Alexkor’s request. One of the issues that the lower courts had addressed concerned questions about the nature of the Richtersveld community’s land rights prior to the British annexation of its territory in 1847.92 In pursuing this legal question, the Constitutional Court in Alexkor Ltd (2003) noted that it had consistently made use of comparative law where appropriate. In this instance, it too cited key legal decisions in Australia, Mabo 2 (1992) and Yorta Yorta (2002), and

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in Canada, Calder (1973), Hamlet of Baker Lake v. the Minister of Indian Affairs and Northern Development (1979), Regina v. Adams (1996), Regina v. Van der Peet (1996), and Delgamuukw (1997).93 In Richtersveld the Constitutional Court departed considerably from the courts below, however, in terms of the legal analysis that it applied to the aboriginal title issue. Most important, it emphasized the need to consider indigenous law on its own terms, holding that “the nature and the content of the rights that the Richtersveld community held in the subject land prior to annexation must be determined by reference to indigenous law. That is the law which governed its lands. Those rights cannot be determined by reference to common law.” The court continued, “while in the past indigenous law was seen through the common law lens, it must now be seen as an integral part of our law. Like all law it depends for its ultimate force and validity on the Constitution.”94 Regarding the Constitution of South Africa, the court noted that section 211(3) obliged courts to apply customary law when it is applicable.95 Aboriginal title is an aspect of aboriginal law. Having clarified that aboriginal rights in South Africa could no longer be defined as they had in the past, the Constitutional Court acknowledged the centrality of historical evidence to establishing the nature and content of aboriginal rights for particular communities, stating that “the determination of the real character of indigenous title to land therefore involves the study of the history of a particular community and its usages.”96 With this observation, it turned to the specifics of the Richtersveld case. First, it upheld the Supreme Court of Appeal’s overturning of Justice Gildenhuys’s ruling that the evidence originally submitted at trial had not established that the Richtersveld people had held rights in land before being dispossessed.97 The Constitutional Court quoted at length the Supreme Court of Appeal’s review of the trial evidence, especially the key point about the effectiveness of the customary laws of these peoples: One of the components of the culture of the Richtersveld people was the customary rules relating to their entitlement to use occupation of this land. The primary rule was

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that the land belonged to the Richtersveld community as a whole and that all its people were entitled to the reasonable occupation and use of all land held in common by them and its resources. All members of the community had a sense of legitimate access to the land to the exclusion of all other people. Non-members had no such rights and had to obtain permission to use the land for which they sometimes had to pay … The captain and his ‘raad’ enforced the rules relating to the use of communal land and gave permission to newcomers to join the community or to use the land.98 The Constitutional Court noted that the experts who had testified for the plaintiffs had stated that traditional land use had included the mining and smelting of copper for adornment purposes. At least one historical account had mentioned that the people of Namaqualand also had engaged in the mining and smelting of iron. The court added, “the evidence established that the Richtersveld Community granted mineral leases to outsiders between the years 1856 and 1910.”99 Accordingly, the Constitutional Court ruled that the aboriginal title of the community extended to mineral rights. When the Constitutional Court turned its attention to the question of whether aboriginal title to the subject lands had been extinguished before 1910, it ascertained that title had not been extinguished: “there is nothing either in the events preceding the annexation of Richtersveld or in the language of the annexation Proclamation, which suggests that annexation extinguished the land rights of the Richtersveld Community. The contention to the contrary by Alexkor was rightly rejected by the South African Supreme Court of Appeal.”100 The Constitutional Court also rejected Alexkor’s argument that the Crown Lands Acts of 1860 and 1887 supported the proposition that the Richtersveld community’s land rights had been extinguished. The Constitutional Court held – as the courts in the United States and Canada had – that aboriginal title could be extinguished by legislation only if that was the clearly stated intention of that legislation. The Constitutional Court cited with favour the Supreme Court of Appeal’s observation that, even

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though the post-1847 colonial government may have assumed the subject lands belonged to the Crown, “at best for them it can be said that the legislature assumed that all land not allocated by means of the grant of title deeds belong to the Crown but the implied assumption cannot be elevated to a legislative act with that consequence.”101 The Constitutional Court concluded that the Precious Stones Act of 1927 was the first piece of legislation that impacted native title on the subject lands by providing for state authorized alluvial diggings of diamonds by proclamations. The government issued the first of a series of proclamations in 1928. By 1963 the latter blanketed the whole of the Richtersveld community’s traditional lands. Each proclamation expressly stated that the land it described was Crown land. The Constitutional Court held that “in so doing, each Proclamation may well have extinguished the indigenous law ownership of the Richtersveld Community to that part of the subject land and rendered the state the owner of the land.”102 Finally, the Constitutional Court addressed the critical question of whether the Precious Stones Act and the government actions arising from it were racist. It found in the affirmative. The court observed that the legislation of 1927 had failed to recognize the Richtersveld community as owners of the land under indigenous law. In the years after 1927, the government had treated the two forms of “ownership” differently: “owners of land whose ownership was registered in the deeds office and on which state alluvial diggings were established were treated differently from those who held their land according to indigenous law, where no system of registration was required.”103 It was in view of this practice that the Constitutional Court ruled in favour of the Richtersveld appellants: “we, therefore, disagree with the conclusion of the Lcc [Land Claims Court] that neither the Proclamations nor the Precious Stones Act were racially discriminatory laws.” The Constitutional Court explained its reasoning: “given that indigenous law ownership is the way in which black communities have held land in South Africa since time immemorial, the inevitable impact of the Precious Stones Act’s failure to recognize indigenous law ownership was racially discriminatory against black people who were indigenous law owners.”104

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Conclusion Anthropological and historical evidence has been central to determining the outcome of all land restitution claims in South Africa. Claims research, however, has not had the impact on scholarship that it has had elsewhere, namely on scholarship about the black South African claimants and plaintiffs or about the histories of the colonial experience of the country. This is likely because in South Africa most of the central historical issues in restitution petitions had already been the subject of considerable scholarly debate and research well before the establishment of the land restitution program in 1994. The land restitution program emphasized the importance of dispossession on the basis of racial discrimination after the passage of the Natives Land Act of 1913. From its earliest development, the liberal, anglophone anthropological-sociological and historical communities had been concerned with the adverse impact of colonialism and National Party government policies on indigenous Africans. They had also paid considerable attention to the ways that these forces impacted African societies and politics, particularly with respect to ethnic and tribal identity reformulation. The land restitution program of South Africa was a latecomer internationally. It differs sharply from those of Australia, Canada, New Zealand, and the United States in its focus on dispossessions arising from racist practices of past governments rather than on the aboriginal rights of distinctive ethnic groups. Given the country’s racist past, this emphasis is understandable. As we have seen, this emphasis was also intended to avoid the pitfalls of schemes that had been developed elsewhere before 1994, especially their litigious aspects and the divisions that aboriginal rights claims could generate. These goals notwithstanding, issues of indigeniety have arisen, such as aboriginal title, tribal identity formation and reformation, and the spatial parameters of traditional chiefly authority. And, as elsewhere, they have created divisions within and between ethnic groups.

ChaPter seven

the métis in Court: Problems of discrimination, identity, and Community

For the Métis of Canada, the Constitution Act of 1982 was pivotal in their long claims struggles because it recognized them as one of the country’s three rights-bearing aboriginal peoples. Born of the fur trade, they are of mixed aboriginal, English, French, and Scottish ancestry and had developed their own distinct cultural traditions at least as early as the beginning of the nineteenth century. Although in 1982 they gained constitutional recognition in Canada as an aboriginal people, along with the First Nations and the Inuit, the drafters of the constitutional legislation did not specify what distinguished the Métis from these two other groups, nor did the politicians make clear the nature of their “existing aboriginal rights.” Furthermore, since the passage of the Constitution Act, the Canadian government has not established a claims regime for Métis people. This has meant that the Métis have had to resort to the courts to clarify issues about identity qualifications and their rights. Their recent court battles began with the landmark Regina v. Powley (2003) hunting rights case concerning the Métis of the Upper Great Lakes, who lived at Sault Ste Marie, Ontario. This case was the first Métis rights litigation to reach the Supreme Court of Canada after the adoption of the new Constitution in 1982, and, importantly, it defined who qualified as Métis in the eyes of Canadian law. This case and their subsequent court battles offer a glimpse of the Canadian judiciary’s evolving approach to aboriginal claims in the late twentieth and early twenty-first centuries. It also affords a

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comparison of litigation with the commissions and tribunals that I have already examined. For these reasons, Canadian Métis litigation and evolving case law warrant examination here. the métis in Canadian history The Métis are unlike the native groups discussed previously in that they are a group bearing aboriginal rights whose members are a product of European contact. Throughout most of North America, contact between indigenous peoples and Europeans began as a trading frontier. Across the northern United States and in Canada, the exchange of animal hides, skins, and peltries dominated early commercial transactions. For this reason, it has become the practice in Canada and the United States to refer to this commercial frontier as the fur trade. This frontier was of varying duration in different parts of North America. In the grasslands and parklands of western Canada, where equestrian buffalo hunters lived,1 the fur trade lasted 150 years or more before the bison herds were destroyed and the agricultural frontier arrived beginning in the 1870s. In Canada’s sprawling Subarctic woodlands, which extend from Hudson and James Bays west-northwest to the Yukon and were the homeland of fishers, hunters, and gatherers, this industry remains important today except in very small and scattered pockets where mining and hydroelectric developments have taken place. Before Europeans arrived, it had been the customary practice of the indigenous peoples to cement trading and other relationships with outsiders through an exchange of gifts and intermarriage. The European traders quickly adopted these practices. French traders based in the St Lawrence Valley were one of the earliest of these groups. They pushed into the Great Lakes region during the midto late seventeenth century, expanding northwest from there into the parklands and woodlands bordering the Saskatchewan River in western Canada during the first half of the eighteenth century. English and Scottish traders, who operated under the banner of the London-based Hudson’s Bay Company, pushed into the same region from western Hudson Bay beginning in the late eighteenth century. During the late eighteenth and early nineteenth centuries,

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7.1 | “A halfcast and his two Wives” at red river by Peter rindisbacher, circa 1825–26.

these two groups of fierce rivals extended their respective trading networks into the Peace River area, the northern interior of presentday British Columbia, and the middle of the Mackenzie River Valley in the western Subarctic and Arctic regions. By the early nineteenth century, marriages between male traders and local native women, according to the custom of the country, meant that a population of mixed ancestry developed throughout the region. Outsiders referred to this population variously as “mixed bloods,” “half-breeds,” “bois brulé,” “freemen,” “people who are free,” and “Métis” (I use the latter term). None of these terms was meant pejoratively before the middle of the nineteenth century. By the end of the century, “half-breed” had taken on very negative connotations, reflecting the racist attitudes of incoming European and Canadian settlers toward these native people.2 The Métis often settled adjacent to the numerous trading posts that were situated along the vast trading networks that extended from the fur-trading community of Sault Ste Marie in the eastern

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Upper Great Lakes region west-northwest to the Pacific Slope and the Mackenzie River Basin. Métis settlements typically had mixed economies that often combined small-scale farming with hunting, trapping, trading, and working for trading companies either on boat and canoe brigades or at trading posts as seasonal or permanent labourers. By the early nineteenth century, the Métis had developed cultural traditions that were distinct from those of their aboriginal and European ancestors. In the prairies, parklands, and bordering forests of the Canadian West, the Métis developed a unique language that has survived called Michif.3 By this time, some of these groups, especially those living in the Red River Valley area of present-day southern Manitoba, had also developed a political self-consciousness and sense of nationhood. Today the Métis nation, which is represented by the Métis National Council, extends from the Upper Great Lakes to the lower Mackenzie River and into northeastern British Columbia. the métis rights struggle before Regina v. Powley The Métis have had a troubled history with Canada. They are the only indigenous people who took up arms against Canada three times in the nineteenth century. The first skirmish took place in 1849 at Mica Bay, located 102 kilometres north of Sault Ste Marie on the eastern shore of Lake Superior. The clash was a response to the colony of Canada’s failure to extinguish Indian and Métis titles in the area before issuing copper-mining licences. A mixed party of Métis and Anishinabe (dominated by the former) seized a mining property. The local Métis spread rumours that their western relatives at Red River would join them the following year if Canada did not come to the bargaining table.4 To avoid further troubles, the Province of Canada sent the commissioner of public works and former fur trader William Benjamin Robinson to negotiate a treaty during the summer of 1850.5 Métis attended treaty negotiations at Sault Ste Marie. Some of them lived in the community, and others came from as far as Fort Michipicoten, situated on Lake Superior over 200 kilometres north of Sault Ste Marie. The Métis were particularly concerned to protect the lands

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7.2 | métis homesteads, sault ste marie, n.d. Customarily, scholars have regarded the physical aspects of métis settlements as the expression of the european (civilized) dimension of the culture of this aboriginal people. the Crown has sought to equate the physical expanse of settlements with the spatial limits of métis communities.

that they had developed as small farms at Sault Ste Marie and other fur-trading settlements. Robinson’s authority, however, was limited to negotiating with the local First Nations chiefs. Consequently, the two treaties that he negotiated in 1850 – the Robinson Huron and Robinson Superior Treaties – failed to explicitly protect or otherwise address Métis aboriginal title interests. In the end, although Robinson submitted a petition on behalf of the Métis, as he had promised to do, Canada took no action other than offering to sell the Métis their traditional farmsteads at discounted prices. Eventually, the Métis of Sault Ste Marie lost or sold their farms. Many of those who remained in the area joined their Anishinabe First Nations relatives on Indian reserves. The next clash between the Métis and Canada took place twenty years later in the Red River Valley, where in 1812 the Hudson’s Bay

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Company had established a small agricultural settlement – the Selkirk Colony – along the banks of the Red River. After 1821 increasing numbers of Métis families settled in the colony, many as retirees from the fur trade. By mid-century they were the numerically dominant group by a wide margin and played key roles in the economic, social, and political life of the settlement. When, after Canadian Confederation in 1867, the Hudson’s Bay Company sold to Canada the territory called Rupert’s Land, which it been granted by the English Crown in 1670, the colony at Red River was transferred along with it. Neither the Métis nor the First Nations, however, were party to the negotiations of the British government with Canada and the Hudson’s Bay Company, even though Canada and the Hudson’s Bay Company did raise the issue of “Indian” interests in the territory.6 Also, in the Rupert’s Land Act of 1868, which the British Parliament passed to facilitate the transfer of Hudson’s Bay Company lands to Canada, responsibility for any future “Indian claims” was to be assumed by Canada.7 Once again, the Métis were not mentioned explicitly. Nonetheless, the British North America Act of 1867 (retitled the Constitution Act of 1867) included section 91 (24), which extended Canada’s authority to “Indians, and Lands reserved for the Indians.” Ever since 1867, there had been a lingering question of whether the term “Indian” was meant to be used broadly to include anyone having aboriginal ancestry. In other words, did “Indian” have the same meaning as the present-day expressions “aboriginal people,” “native people,” and “indigenous people”? In any event, when they learned of the sale of Rupert’s Land to Canada, the Métis and First Nations were outraged. The Métis strongly objected to becoming a colony of Canada as part of the North-West Territories. Also, they were extremely worried about not having had their land rights explicitly protected. Accordingly, in 1869 the Red River Métis took up arms and blocked Canada from taking control of its new colony. Led by Louis Riel, they established a provisional government at Red River and promptly commenced negotiations with Canada.8 These talks led the Canadian Parliament to pass the Manitoba Act of 1870.9 This act, which was an amendment to the Canadian Constitution, allowed for the entry into Con-

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7.3 | métis land scrip. the federal government issued scrip to métis individuals to address their aboriginal title. scrip records can provide important documentary information about the settlements and movements of métis applicants and their families.

federation of the colony at Red River and the adjacent territory as the tiny province of Manitoba.10 Under clause 31, developed lands in Manitoba would be protected, and Canada promised to set aside an additional 1.4 million acres for Métis children. Additionally, clause 23 included education and French-language protections. Canada was slow to implement the land-granting process, and in the end, not enough land was made available for Métis children. The slow and flawed land-granting process and the sudden influx of settlers from eastern Canada, especially Ontario, led many Métis to move farther west into present-day Saskatchewan in order to establish new settlements or join relatives who already lived there. Even in this part of Canada’s North-West Territories beyond Manitoba, the Métis needed to fight to protect their aboriginal interests in land and self-governing rights. This was because Canada was negotiating treaties with their plains relatives from 1871 to 1876, while ignoring the Métis. Canada finally signalled its intention to address the issue of Métis “Indian title” in the Dominion Lands Act of 1879,

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but a further six years passed before the federal government took any action. After having failed to respond to several Métis petitions from the North-West Territories during this period, in 1885 the government finally announced that it would make land grants to those Métis who were undisputed occupants by virtue of residence and that it would issue scrip to those who were not. Scrip could be redeemed for land or cash.11 By the time the federal government made this announcement and authorized the creation of a claims commission, the North-West Rebellion had broken out at Duck Lake in the vicinity of the confluence of the North and South Saskatchewan Rivers. Several Métis communities were located there. In the armed clash with Canada, the Métis and those Prairie West First Nations that joined them suffered a crushing military defeat. Afterward, Canada implemented its scrip scheme. Unfortunately, from the outset it was a flawed program and plagued by corruption. As a consequence, many Métis living in the North-West Territories never received any land. Overt expressions of Métis nationalism all but disappeared in the immediate aftermath of the defeat of the Métis in 1885. This was in part because they had become very marginalized in the Canadian economy and society. Social marginalization was mainly the consequence of widespread racist attitudes toward the First Nations and the Métis, especially the latter, during the late nineteenth and early twentieth centuries. Not until the early twentieth century did Métis nationalism and political activism re-emerge. By the time of the negotiations that led to the Constitution Act of 1982, the Métis had regained a political voice and sense of purpose that were sufficient to convince federal and provincial political leaders to include them in section 35 of the Constitution as one of the three rightsbearing aboriginal peoples. This gave them a critical legal means to address issues that had remained unresolved since the late nineteenth century. Prelude to Regina v. Powley From the time of the passage of the Constitution Act of 1982 and the commencement of the Powley litigation, several important precedents were established in Canadian aboriginal and treaty rights

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law that affected this case and subsequent Métis legal challenges. This evolving case law also determined the types of historical evidence that were central to Métis rights litigation. One important ruling arose from litigation concerning the aboriginal fishing rights of the Stō:lō First Nation of the lower Fraser River in southwestern British Columbia. In Regina v. Sparrow (1990), the majority of the Supreme Court of Canada justices held that “the ‘existing aboriginal rights’ mentioned in Section 35 (1) of the new Canadian constitution must be interpreted flexibly so that those rights are affirmed in contemporary form ‘rather than in their primeval simplicity and vigour’ before Europeans arrived on the scene.”12 In other words, Canada’s highest court openly rejected the “frozen rights” theory. This ruling ended the practice of attempting to defeat aboriginal rights petitions by showing that indigenous claimants/defendants had adopted some Euro-Canadian cultural items and practices. Those opposing this approach to defeating claimants referred to it as the “pizza Indian argument” because this outlook would support the idea that any indigenous person who ate pizza ceased to be an “Indian.” Sparrow has relevance in modified form, as I discuss below. Within a decade, in another Pacific Coast First Nations fishing case, the Supreme Court of Canada made a further ruling about section 35 (1) and (2). In Regina v. Van der Peet (1996), the court instructed that, when courts below are assessing an aboriginal claim, they must begin by determining whether the right at issue concerns a practice that is “integral to the distinctive culture of the aboriginal group claiming the right.”13 The court specified, “To be integral, a practice, custom or tradition must be of central significance to the aboriginal society in question – one of the things which made the culture of the society distinctive. A court cannot look at those aspects of the aboriginal society that are true of every human society (e.g., eating to survive) or at those aspects of the aboriginal society that are only incidental or occasional to that society. It is those distinctive features that need to be acknowledged and reconciled with the sovereignty of the Crown.”14 This ruling has meant that Métis litigation calls for a culture element approach that is reminiscent of early-twentieth-century American anthropology and was one of the types of evidence brought before the United States Indian Claims Commission in the 1950s.

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In Van der Peet, the Supreme Court of Canada considered the implications that its decision might have for future Métis rights litigation: “Basing the identification of aboriginal rights in the period prior to contact is not inconsistent with the inclusion of the Métis in the definition of ‘aboriginal peoples of Canada’ in s. 35(2) of the Constitution Act, 1982. The history of the Métis and the reasons underlying their inclusion in the protection given by s. 35 are quite distinct from those relating to other aboriginal peoples in Canada. The manner in which the aboriginal rights of other aboriginal peoples are defined is not necessarily determinative of the manner in which the aboriginal rights of the Métis are defined.” The court explained, “At the time when this Court is presented with a Métis claim under s. 35 it will then, with the benefit of the arguments of counsel, a factual context and a specific Métis claim, be able to explore the question of the purposes underlying s. 35’s protection of the aboriginal rights of Métis people, and answer the question of the kinds of claims which fall within s. 35(1)’s scope when the claimants are Métis.” The court added, “The fact that, for other aboriginal peoples, the protection granted by s. 35 goes to the practices, customs and traditions of aboriginal peoples prior to contact, is not necessarily relevant to the answer which will be given to that question. It may, or it may not, be the case that the claims of the Métis are determined on the basis of the pre-contact practices, customs and traditions of their aboriginal ancestors; whether that is so must await determination in a case in which the issue arises.”15 It turned out that Powley was the case that the Supreme Court of Canada was awaiting. On the specific problem of determining the rights of Métis, who came into existence after European contact, the court held, Moreover, when examining the wording of the constitutional provisions regarding aboriginal rights, it appears that the protection should not be limited to pre-contact or presovereignty practices, traditions and customs. Section 35(2) of the Constitution Act, 1982 provides that the “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada. Obviously, there were no Métis people

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prior to contact with Europeans as the Métis are the result of intermarriage between natives and Europeans … Section 35(2) makes it clear that aboriginal rights are indeed guaranteed to Métis people. As a result, according to the text of the Constitution of Canada, it must be possible for aboriginal rights to arise after British sovereignty, so that Métis people can benefit from the constitutional protection of s. 35(1).16 Once again, basing rights on historical practices and traditions inevitably raised questions about the need to demonstrate continuity. In her dissenting opinion in Van der Peet, Supreme Court Justice Beverley McLachlin (later chief justice) turned to the High Court of Australia’s ruling in Mabo 2 (discussed in chapter 4) and cited Justice J. Brennan regarding the “tides of history” principle and the erosion of aboriginal rights in Australia. Brennan had concluded that aboriginal ties to lands could be severed with the passage of time, thereby dissolving the basis for an aboriginal title claim.17 Nonetheless, McLachlin also understood that petitioners could face impossible evidentiary problems documenting cultural practices. Therefore, she emphasized that “the continuity requirement does not require aboriginal claimants to provide a year-by-year chronicle of how the event has been exercised since time immemorial. Indeed, it is not unusual for the exercise of a right to lapse for a period of time.” She elaborated, “Failure to exercise it does not demonstrate abandonment of the underlying right. All that is required is that the people establish a link between the modern practice and the historic aboriginal right.”18 What Justice McLachlin did not address was that people who were driven underground and denied official access to land because of intense discrimination in the past face problems when they attempt to document the continuity of traditional harvesting and other land use practices. Regina v. Powley defines métis Communities in Canadian law The landmark Powley decision concerned the aboriginal hunting rights of Métis who live in the vicinity of the old fur-trading community of Sault Ste Marie, Ontario. Steve and Roddy Powley had

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shot a moose in violation of the Ontario Fish and Wildlife Conservation Act by failing to obtain a moose tag before doing so.19 The Powleys claimed they had an aboriginal right as Métis to harvest moose without having to conform to the act. In the aftermath of Sparrow and Van der Peet, the Powleys’ legal defence raised a number of historical questions and documentary issues: (1) When did a Métis community first develop in the Sault Ste Marie area? (2) Has the community survived to the present? (3) When did Britain or Canada establish effective control in the area? (4) Was game hunting (more particularly moose harvesting) a defining cultural practice of the Métis in the region before that date? And (5) if the answer to the latter question is yes, did it remain so to the present? Appearing as an expert for the defendants, I was asked to address questions 1, 3, and 4 based on my expertise regarding the history of the Canadian fur trade and the economic history of the country’s First Nations and Métis. Victor Lytwyn, another historical geographer, dealt with questions 2 and 5 pertaining to continuity after 1850. On 27 April 1998 the trial commenced in Sault Ste Marie in an impressive restored nineteenth-century wood-panelled courtroom of the Ontario Court (Provincial Division). Local elders and members of the Métis Nation of Ontario testified during the first phase. They included a local Métis hunter from the area, a Métis fisherman from nearby Batchewana Bay, a local Métis businessman who dealt in wild meat and spoke about his life in the community as a Métis, and the president of the Métis Nation of Ontario. A genealogist who specialized in Métis family history also appeared for the defendants. She provided the court with a genealogy of the Powley family and the other Métis witnesses who appeared. Lead council for the Powleys, Jean Teillet, the grand niece of Louis Riel, who led the Métis battles with Canada in the 1870s and 1880s, asked me to examine the economic history of the Robinson Treaties area prior to 1850, emphasizing the period from 1820 to 1850. My written submission,20 which drew heavily on the Hudson’s Bay Company archives, presented evidence to establish that French traders and explorers had entered the Upper Great Lakes region by the second half of the seventeenth century, when intermarriages with local native people likely began.21 Well before the turn of

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the ninteenth century, a fur-trading settlement developed along both the north and south banks of the St Marys River (historically spelled “St Mary’s River”) near the rapids (or sault). The settlement was comprised of three groups of people: those of mixed ancestry, French Canadians, and English speakers. These groups tended to cluster their residences adjacent to one another. The families of mixed ancestry, who were referred to as “half-breeds” in the Hudson’s Bay Company journals for Saint Mary’s Post, had developed a mixed economy. Family members engaged in small-scale agriculture on farms comprised of long-lots running inland from the banks of the river; they fished in Saint Marys River and along the southeastern shores of Lake Superior during the open water season and hunted and trapped inland from autumn to spring; and most of the male family members also worked seasonally or permanently at the local trading post and/or on boat and canoe brigades during the open water season. A few “half-breed” men operated as independent fur traders in competition with the Hudson’s Bay Company and the Americans. At trial I affirmed that a Métis community had emerged at Sault Ste Marie by the early nineteenth century, judging from the Hudson’s Bay Company records, the observations of passersby, and government records. The establishment of effective British or Canadian control had likely occurred sometime between 1821 and the 1850s. Prior to 1821 the unbridled competition of the Hudson’s Bay Company and its archrival of the late eighteenth and early nineteenth centuries, the North West Company, had brought thirty years of ruinous animosity that had spawned violence and lawlessness. Even after the merger of the two companies in 1821, the presence of American rivals in the region thwarted the effective establishment of law and order. In light of this history, it seemed to me that the government did not establish effective control until shortly after the negotiation of the Robinson Treaties in 1850. These treaties marked the beginning of that achievement because the treaty texts state, “the said chiefs and principal men do freely, fully and voluntarily surrender, cede, grant and convey unto Her Majesty, Her heirs and successors forever, all their right, title and interest in the whole of the territory above described [the area drained by rivers flowing into Lakes Superior and Huron], save and except the reservations

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set forth in the schedule hereunto annexed.”22 Although the Robinson Treaties stand apart from later treaties in that they lack clauses that explicitly state that the chiefs and their followers accepted the authority of the Crown, the wording states that the chiefs had yielded up all rights and interests in their traditional lands apart from those portions they retained as reserves. What remains uncertain is whether the chiefs understood the implications of this surrender clause. Then came the moose-hunting question. The problem was that the period of intensive rivalry between the Hudson’s Bay and North West Companies from the 1780s to 1821 had led to the depletion of moose and woodland caribou throughout the region by 1821. The animals did not recover until the late nineteenth century. Consequently, neither the Métis nor their First Nations relatives hunted moose to any significant extent during the mid-nineteenth century. Evidence in the Hudson’s Bay Company records, however, indicated that both groups harvested whatever game was available, with black and brown bear being the principle species.23 This shift in target species pointed to one of the problems of aboriginal and treaty livelihood rights litigation when viewed from the perspective of native claimants or defendants and the historical experts they retain. Until Powley, the approach had always been species-specific because harvesting rights litigation inevitably arises from aboriginal people being charged with violations of particular clauses of federal and/ or provincial conservation legislation, which are species-specific. This approach made no sense when considered in the context of traditional aboriginal economies, which were by necessity adaptive and fluid. As happened around the world, flexibility in harvesting practices was the key to the survival of small fishing, hunting, and trapping groups. This was the case because the annual populations of all species of wildlife fluctuate significantly for a host of reasons – most notably fire, epidemic diseases, overcrowding, and overhunting. Some wildlife population cycles are of short duration and limited spatial extent, but others can be very protracted and spatially extensive. The decline of moose populations in the area of Lakes Superior and Huron in the mid-nineteenth century was an example of the

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latter. For these reasons, at trial I argued that the aboriginal hunting rights ought to be framed in general terms as the right to harvest wildlife rather than as a specific right to hunt moose or any other species of animal. Crown counsel did not accept this proposition about aboriginal harvesting rights. Instead, he repeatedly emphasized that “half-breeds” had not hunted moose for many years during the mid-nineteenth century. Hence, even if it had been a traditional practice before that time, the continuity had been broken. This episode served to highlight another of the problems associated with the Crown’s application of what amounted essentially to a cultural element approach. As anthropologists noted long ago, cultural practices can be broadly or narrowly construed, and a culture is more than the some of its parts. For the Métis, their cultural distinctiveness in a large measure is reflected in the ways that they have knitted diverse traditions into patterned and distinctive lifeways. When fellow historical geographer Victor Lytwyn took the witness stand after me, he too talked about the fur trade history of the region, giving extensive consideration in his report and testimony to the relations of local natives with the French before 1763 and the British afterward.24 He paid particular attention to gift-giving practices, which were central to aboriginal diplomatic relationships with outsiders. He noted that when the War of 1812 ended, the latter people were no longer valued as potential military allies by Americans and the British. This led the British to look for ways to curtail annual gift-giving expenses in the Upper Great Lakes area. One way of doing so was to stop giving presents to “half-breeds.” So in records for the post-1812 period, officials began to distinguish Métis from other “Indians.” Prior to that time, the term “Indian” was often used more generally in the sense we presently use the expressions “aboriginal,” “indigenous,” or “native.” Then, after 1850, the efforts of English Protestant settlers to gain a toehold in the area were an additional reason to identify the members of the local “half-breed” community because the Métis were staunchly Roman Catholic. Lytwyn discussed at length the negotiations for the Robinson Treaties, emphasizing that the “half-breeds” were present and distinguished as one of the native groups and that they had acted as a

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community by holding council meetings among themselves to determine how to pursue their rights at the proceedings.25 He then detailed the economic activities of the Métis throughout the areas of eastern Lake Superior and northwestern Lake Huron after 1850, thus helping to establish the continued existence of the local Métis community into the twentieth century. The Métis witnesses themselves spoke to the continued existence of the community today. The Crown’s cross-examination of Lytwyn sought to portray the local Métis as having been primarily fishers and small-scale farmers for whom hunting was of minor importance. After considering the testimony and evidence put before him, Ontario Court Justice Charles Vaillancourt ruled in favour of the defendants. He held that Métis had existed at Sault Ste Marie at least since the early nineteenth century and determined that effective control of the area by the Crown had taken place sometime between 1815 and 1850. He also concluded that the species-specific approach to Métis hunting was wrong-headed. Accordingly, Justice Vaillancourt held that hunting game was a key trait of Métis culture in the region.26 The Province of Ontario promptly appealed Justice Vaillancourt’s decision. The Ontario Superior Court and the Ontario Court of Appeal, however, unanimously rejected the Crown’s position. Writing for the latter court, Justice Robert J. Sharpe emphasized, “The appellant’s case was essentially that the historic Sault Ste. Marie Métis community dispersed in the mid to late 19th century, resulting in a break in continuity that is fatal to the claim of an aboriginal right. The appellants also argued that the right at issue was game specific and that during crucial periods, moose were virtually non-existent in the area and that as there was no Métis moose hunting, there was no established aboriginal practice, integral to Métis culture, capable of supporting the right claimed.”27 Regarding the hunting question, the Court of Appeal’s judgment stated, “The trial judge found that one would have to ‘suspend common sense’ to accept the appellant’s proposition that the scarcity of moose during the period 1820 to 1890 eliminated moose hunting as part of the aboriginal culture.”28 The Court of Appeal noted with approval that Justice Vaillancourt

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had decided that the proper way to conceptualize the issue before the court was in terms of hunting for food, which he understood as a broad practice that continued to the present. The Court of Appeal then turned to Justice Vaillancourt’s handling of the evidentiary problems that historical discrimination had posed for the Métis in their efforts to establish their continuing identity and presence as a community: The trial judge noted that the visibility of the Métis at Sault Ste. Marie waned after the Robinson-Huron treaty in 1850 when many Métis families moved on to reserves and into the surrounding areas. However, he rejected the contention that there had been a fatal break with the past. The trial judge accepted the evidence that discrimination and consequent shame had created a situation in which the local Métis people became “an invisible entity within the general population” and that it was only in the early 1970s “that individuals became more public as to their heritage.” He rejected the contention that the community had disappeared.29 Writing for the Court of Appeal, Justice Robert J. Sharpe not only upheld this aspect of Justice Vaillancourt’s ruling but also emphasized that it would have been wrong not to take into account the impact of past discrimination: Not only was the trial judge entitled to take into account the evidence of the severe prejudice and discrimination inflicted upon the Métis: it is my view that it would have been quite wrong for him to ignore it. The constitutional recognition of the existence of the Métis as one of Canada’s aboriginal peoples may not be capable of redressing all the wrongs of the past, but it cannot be that when interpreting the constitution, a court should ignore those wrongs. As noted by Dickson C.J. and La Forest J. in Sparrow, at 1103, “[f ]or many years, the rights of the Indians to their aboriginal lands – certainly as legal rights – were virtually ignored.”

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Justice Sharpe continued, It is undeniable that past practices, including those of government, have weakened the identity of aboriginal peoples by suppressing languages, cultures and visibility. It would be completely contrary to the spirit of s. 35 [of the Constitution Act of 1982] to ignore these historical facts when interpreting the constitutional guarantee. For this reason, the continuity test should be applied with sufficient flexibility to take into account the vulnerability and historic disadvantage of the Métis. The trial judge was entitled to conclude that the Sault Ste. Marie Métis community had suffered as a result of what was at best governmental indifference, and to take the historically disadvantaged situation of the Métis into account when assessing the continuity of their community.30 In this way, the Powley case served to highlight problems that indigenous people may face when attempting to address cultural and community continuity requirements of the courts. This case and subsequent litigation also point to hazards Métis face if confronted with the “tides of history” argument, first raised in Australia, which posits that links to the land and the rights arising from them can be lost with the passage of time. Often Métis simply do not appear in official historical records, such as censuses, because in the past they feared the likely adverse consequences of self-identifying as Métis. In Canada, especially in Ontario and the prairie provinces, the Métis faced harsh discrimination after the Red River Uprising of 1869–70 and the North-West Rebellion of 1885. But the absence of documented connections to lands in specific places does not necessarily mean that the Métis were absent. In 2003 the Supreme Court of Canada upheld the lower courts on Powley.31 Being its first opportunity since Van der Peet to address a Métis claim falling under section 35 of the Constitution Act of 1982, the high court took the opportunity to clarify how Métis were to be defined and communities delimited. Regarding the unresolved question of who qualified as Métis, the Supreme Court of Canada recognized that “the Métis of Canada share the common experi-

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7.4 | The Battle of Batoche (1885) by J.W. Curzon. métis were involved in three armed clashes with Canada in defence of their rights. the first took place at mica bay on lake superior in 1849, the second at red river in present-day manitoba in 1869–70, and the third in present-day saskatchewan in 1885, with the decisive Canadian victory coming in the battle of batoche.

ence of having forged a new culture and a distinctive group identity from their Indian or Inuit and European roots. This enables us to speak in general terms of ‘the Métis.’” Having noted that rights had to be linked to communities rather than individuals, the Supreme Court of Canada defined a community as being “a group of Métis with a distinctive collective identity, living together in the same geographic area and sharing a common way of life.”32 The court stated further that there could be multiple groups of Métis: “we would not purport to enumerate the various Métis peoples that may exist. Because the Métis are explicitly included in s. 35, it is only necessary for our purposes to verify that the claimants belong to an identifiable Métis community with a sufficient degree of continuity and stability to support a site-specific aboriginal right.” The Supreme Court of Canada also thought it was likely that these communities were culturally diverse. The court stated, “given the vast territory

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of what is now Canada, we should not be surprised to find that different groups of Métis exhibit their own distinctive traits and traditions. This diversity among groups of Métis may enable us to speak of Métis ‘peoples,’ a possibility left open by the language of s. 35(2), which speaks of the ‘Indian, Inuit and Métis peoples of Canada.’”33 In other words, in the eyes of the court, there could be many different groups of Métis. The court’s notion that there could be many different Métis groups came as a shock to many Métis, especially to those who are members of the Métis Nation of Canada. They do not regard other culturally distinctive groups of mixed Euro-Canadian-aboriginal ancestry as being Métis. This aspect of the ruling was also a worry to federal and provincial government officials, who suddenly faced the prospect of having to face claims from parts of the country that previously had not been associated with the Métis.34 The Supreme Court of Canada’s definition of a “Métis community” became a focus of contention in subsequent litigation. On the one hand, the Métis as defendants and plaintiffs pressed for spatially expansive definitions; on the other hand, provincial governments advanced highly restrictive characterizations that essentially equated communities with physical settlements. As for the test individuals have to meet to qualify as Métis in the eyes of Canadian law, the Supreme Court of Canada identified three essential criteria. First, a claimant must self-identify as a member of a Métis community, but this self-identification should not be “of recent vintage.” Second, claimants must present an ancestral connection to the community in order to establish that they are connected to a historic community. Regarding this criterion, the court cautioned that it did not expect claimants to meet a “minimum ‘blood quantum’” standard, but they would need to demonstrate links by birth, adoption, or other measures. Most post-Powley litigation has featured genealogical evidence. Finally, in Powley the Supreme Court of Canada determined that claimants must be accepted by the modern community, “whose historic community provides the legal foundation for the right being claimed.”35 In other words, Métis rights do not travel with individuals but are tied to communities and specific places.

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Post-Powley métis litigation: identifying métis Communities I was involved as an expert witness in three western Canadian Métis harvesting rights cases in the immediate aftermath of Powley, which addressed issues raised by the Supreme Court of Canada. They involved Métis claimants from Fort Qu’Appelle in Saskatchewan, Brandon in Manitoba, and Medicine Hat in Alberta. Whereas the Powley litigation dealt with a woodland Métis community, all three of these post-Powley cases concerned communities with historical links to nineteenth-century bison hunters. Prior to Powley, scholars had primarily focused their research and writing on the latter people. When viewed from the perspectives of the claimant communities, much of the existing scholarship on the prairie Métis was highly problematic. The reason was that the foundational studies of the Métis of western Canada had been undertaken in the 1930s and 1940s, when cultural evolutionary studies remained popular. Most important were Marcel Giraud’s classic The Métis in the Canadian West (1945)36 and George Stanley’s The Birth of Western Canada: A History of the Riel Rebellions (1936).37 These works cast the Métis as being a half-primitive and half-civilized people, who were necessarily doomed to disappear. Scholars portrayed the physical settlements of the Métis – places where they invested their labour in the land in the form of houses, barns, and cultivated fields – as representing the civilized dimension, whereas fishing, hunting, and trapping activities represented the primitive “nomadic” or aboriginal aspect. The terminology used in the foundational works, and carried forward in subsequent scholarship, reflected this dichotomist outlook. These works tell us that the Red River Valley is where the Métis maintained “rude settlements” of houses, whereas when they “roamed” on the Prairies, they lived in “temporary camps” comprised of tents and “log huts.” This mindset is problematic for Métis litigants because it is compatible with the Lockean concept that property is created by visible labour investments in land, which is an idea familiar to the courts.38 In Métis rights cases, the Crown, which has traditionally been intent on defining Métis rights as narrowly as possible, advanced the idea that Métis communities were spatially limited to

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physical settlements or, at best, to the areas immediately adjacent to them. This notion would exclude the all-important hunting ranges that the Métis frequented as “nomads” and the places that they routinely visited as carters and canoe or boat brigade men. Meanwhile, after Powley the Métis Nation of Canada had received research funding from the Office of the Federal Interlocutor for Métis and Non-Status Indians, located in the Department of Indian Affairs and Northern Development, to conduct long-term historical research projects, including my study with Kenichi Matsui of the historical economic geography of Métis involvement in the fur trade in the woodlands, parklands, and grasslands of central and western Canada before 1870. Our goal in this research project was to develop spatial models of these settlements. We sought to identify the range of economic activities that characteristically took place at these settlements and considered the spatial implications of these economic activities for determining the spatial boundaries of Métis communities. Similar to Sault Ste Marie, many trading post settlements of the parklands and grasslands of western Canada had multiethnic communities comprised of Euro-Canadians, Métis, and First Nations.39 Concentrating on the daily journals of Hudson’s Bay Company trading posts at selected locations from Sault Ste Marie to the country of the upper North Saskatchewan and Peace Rivers, we extracted from each post information about the activities of “half-breeds,” noting the dates and number of times (or days) they were involved in particular tasks such as fishing, hunting, trapping, collecting and cutting firewood (a very labour-intensive activity), construction, transport brigade work, boat building, canoe building, or collecting wild rice, birch bark, spruce root, and the like. We also recorded where these various activities took place. This temporal and spatial information enabled us to develop a picture of the seasonal cycle of activities that were typical of settlements situated in an array of ecological settings and to map out various settlement hinterlands, or primary interaction spheres. Not surprisingly, the data assembled revealed that the hinterlands of woodland settlements were less extensive than those of the parklands. This reflected the fact that fishing increasingly anchored woodland economies as woodland

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caribou and moose populations diminished during the nineteenth century. For people of the parklands and grasslands, in contrast, the migratory bison herds on which they depended were in retreat due to overhunting and other causes. As bison ranges contracted, hunters had to travel farther and farther afield during the summer and winter in pursuit of their quarry. Mapping out the hinterlands of settlements, and noting the frequencies of interactions between communities on the fur-trading networks, also made it clear that communities were often regional and comprised of two or more settlements. In the eastern Lake Superior area, for example, Sault Ste Marie and Michipicoten were closely linked and likely comprised a single community. Thus, in retrospect, it is not surprising that Métis from the latter trading post settlement came to the Robinson Treaty talks at Sault Ste Marie in 1850. The data also suggested that the buffalo-hunting Métis settlement at Fort Edmonton, located on the North Saskatchewan, was closely linked with woodland fishing communities to the north in Athabasca country. This economic interaction pointed to the presence of a woodland-parkland regional community. Even the Métis community anchored at Red River was comprised of several settlements. In my appearances in the prairie Métis trials, I drew on this research, among other sources. The first case was that of Regina v. Donald Joseph Belhumeur (2007). This trial took place in the Provincial Court of Saskatchewan in the small town of Fort Qu’Appelle, situated in the Qu’Appelle River Valley. The community began as a Hudson’s Bay Company trading post settlement. The province charged the defendant with ice fishing for food in nearby Katepwa Lake without a licence in violation of the Fisheries Act (Saskatchewan) of 1994. Belhumeur, who had formerly lived in the Qu’Appelle Valley but had later moved to nearby Regina, asserted that as a Métis he had an aboriginal right to fish there. Katepwa Lake is approximately eighty-eight kilometres from his home. The trial opened with the testimony of Belhumeur and other local Métis. He spoke French as well as some Cree and Michif. His parents also spoke Michif. Belhumeur told the court that he and his family had always obtained a portion of their food from the land in

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traditional ways. Other local Métis also testified to the existence of the community and made the point that they too engaged in traditional harvesting practices. Provincial Court Justice D.I. Morris listened intently. A past president of the Fort Qu’Appelle Historical Society, she clearly was very interested in all aspects of local Métis history. I provided three types of evidence: (1) a historiography of scholarship about the Métis, (2) an overview of the economic history of the Métis based on the Métis Nation of Canada’s research project, and (3) data that Matsui and I had collected from the post journals of Fort Ellice (1831–74) concerning the movements of local Métis. Many of them lived at the settlement of St Lazar, situated near the site of this former Hudson’s Bay Company trading post, near the confluence of the Qu’Appelle and Assiniboine Rivers, approximately 230 kilometres east of Fort Qu’Appelle. I concluded that the Métis living at these two settlements, and along the valley between them, had constituted a community by the second half of the nineteenth century. Their movements, which I was able to map, showed that their hunting and trading ranges encompassed most of present-day southern Saskatchewan as well as the United States territory as far south as the upper Missouri River. From the earliest post-European contact times of the seventeenth century, it had been the practice in summer for buffalo-hunting First Nations to visit trading rendezvous sites on the Missouri River. The construction of American trading posts on the Missouri River during the mid-nineteenth century provided an additional incentive to do so. Subsequently, their Métis relatives did likewise. This was the first time I had discussed at some length the problems with extant scholarship about the Métis. I did so in the belief that it was important for the court to be able to contextualize my interpretation and appreciate that academic outlooks had changed since the time when the history of these people had been written from the evolutionary perspectives common for the first half of the twentieth century. Crown counsel regarded this discussion as an opportunity to argue that scholarly interpretations change over time and that thus there was no reason for the court to put any more weight on my opinion than those of previous scholars.

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Fiddle music was (and remains) a central part of Métis culture. It played important roles in the development and preservation of individual and community Métis identities. For this reason, counsel for the defendant brought in a renowned Métis fiddler, Oliver Boulette. Following in a Métis tradition, he proved to be a highly engaging raconteur in court, who used amusing stories in his testimony to illustrate how Métis fiddle music differed from other fiddle music traditions.40 Boulette explained that fiddles were always present when Métis gathered together and that fiddlers made their instruments from materials that were locally available. Boulette stated that there were songs for every occasion. After describing his fiddle in great detail, he proposed to play one of the great Métis classics, the Red River jig, which is virtually a national anthem for the Métis of western Canada. Crown counsel strongly objected. He argued that playing the jig in court had no relevance to Belhumeur’s defence since the defendant had been charged for violating provincial fish conservation legislation. The Crown counsel argued further that it was not appropriate to play music in court. He exclaimed, “to actually have him play a song for us, this is – this is a courtroom, this is – this is a court of law, we’re here to deal with legal issues, it’s not a concert.”41 A very similar episode had taken place in the Delgamuukw trial fifteen years earlier. According to the cultural traditions of the Gitxsan-Wet’suet’en, many of their oral histories have always been presented in chants. When one of the elders asked to present her evidence in this fashion, Chief Justice Allan McEachern objected, saying it was inappropriate to sing in court. He quipped further that it would be a waste of time, as he had a tin ear. In the end, he relented. In Belhumeur it was clear that the trial judge wanted to hear the Red River jig. After patiently listening to Crown counsel’s objection, she let Boulette play his fiddle. The episode serves as one example of the kinds of adjustments that I have seen Canadian courts make to accommodate native cultural practices. Another instance involved the treaty rights of Samson Cree of Alberta. In Victor Buffalo v. Canada (2005), brought to the Federal Court of Canada by the Samson Cree, the trial judge allowed the plaintiffs to offer opening and closing prayers and to place a medicine bundle in the courtroom for the duration of the trial, and he

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7.5 | members of the métis defence and community members in Regina v. Donald Joseph Belhumeur (2007) on the grounds of the Provincial Court of saskatchewan, fort Qu’Appelle, september 2006. left to right: Clement Chartier, lawyer, legal council, and president of the métis nation of Canada; michelle leclair-harding, lawyer; oliver boulette, métis fiddler and witness; and a few members of the local métis community. the statue in the background commemorates the signing of treaty 4 on these grounds in 1874.

travelled to their community to take the oral evidence of the elders. In these ways, Canadian courts have adapted in a manner pioneered by Justice John Toohey in Northern Australia almost forty years ago and by New Zealand’s Waitangi Tribunal more recently.42 In the end, Justice Morris held that the defendant did have a constitutional right to fish for food in the Qu’Appelle River as a Métis and a member of a historic Métis community even though he no longer lived near his fishing place. She did not address the issue of whether the territory of the historic Métis community of that valley included the whole of present-day southern Saskatchewan. The legal question before her required her to determine only whether

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the Qu’Appelle Valley community had extended as far south as Regina, where Belhumeur currently lived. So, in keeping with the general judicial practice of not making rulings any more sweeping than necessary for the litigation at hand, she merely affirmed in her judgment that Regina was within the orbit of the historic Métis community.43 The next two cases were essentially replays of Belhumeur. In Regina v. Goodon (2009), the defendant, who was descended from a famous Red River Métis family, had been charged with violating provincial conservation regulations by hunting waterfowl in the Turtle Mountain area straddling the Canada-US border in violation of provincial conservation legislation. These heavily wooded hills are located about eighty kilometres south of William Goodon’s home in Brandon, Manitoba. Two historical issues received a lot of attention at Goodon’s trial. The first concerned determining the spatial extent of the historical Métis communities of Manitoba. I argued in court that western Métis studies had suffered from Red River myopia, meaning the scholarly tradition of regarding the agricultural settlement along the banks of the Assiniboine and Red Rivers as representing the concrete attachment of the Métis to the land and regarding their buffalo-hunting ranges as being ephemeral. The problem with this “core-periphery” perspective is that the nineteenth-century Métis buffalo hunters spent most of their time away from the Red River Settlement on their hunting ranges. It seems misleading to talk of the Red River as the place where they settled and of their winter and summer hunting ranges as locales where they “roamed” and lived in tent “camps.” I emphasized that during the early to mid-nineteenth century, the Turtle Mountain area had been the focus of the summer and winter hunts. Given that the Métis used this extensive wooded area for sustained lengths of time, arguably the area was as much a permanent habitat for them as were their settlements situated along the Red River. As one local historian suggested, it made as much sense to refer to the Turtle Mountain area as the winter hunting camp area of the nineteenth-century Red River Métis as it does to speak today of the city of Winnipeg at the confluence of the Red and Assiniboine Rivers as being the winter settlement of Turtle Mountain summer cottagers.

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In this way, Métis claims raised an issue that was similar to the one Alfred Kroeber had discussed in the California Indian claims in the 1950s. The conceptual models and terminology that academics customarily use can prejudice native petitioners when these are brought into claims venues, where common law property rights concepts hold sway. Similar to the application of the term “band” before the United States Indian Claims Commission, the expressions “nomadic,” “temporary camps,” “log tents,” and “roamed” imply an ephemeral and sporadic contact with particular places or locales, when, in fact, many hunting, fishing, and trapping places were used seasonally for extended periods. In my expert opinion, there had been one Métis community comprised of several settlements in the southern Manitoba area during the nineteenth century. Goodon raised a second historical question about whether Métis remained in the Turtle Mountain area after the mid-nineteenth century when the bison herds were no longer there. The Crown’s expert, historian Clint Evans, presented various records, particularly historical census returns, journals of government exploring expeditions, Canada-US boundary survey reports, and Métis scrip applications,44 to argue that the Métis had abandoned the area by the late nineteenth century and that the Sioux had taken over.45 For the defendant, another historical expert, Gwynneth Jones, challenged the Crown’s contention that the Métis had abandoned the Turtle Mountain area by the late nineteenth century. Drawing on many of the same documents Evans had used, she noted that the Métis were underrepresented in various government records pertaining to the area, particularly Canadian manuscript census records, for many of the same reasons that Victor Lytwyn had documented in Powley.46 She also drew on documents from the United States, particularly census and Indian reservation data for the Turtle Mountain area on the North Dakota side of the international boundary. She presented evidence that Métis, including the Goodon family, remained in the Turtle Mountain area. In the end, the trial judge, who had grown up in the area, concluded that the whole of southern Manitoba had been part of the territory of a single Métis community comprised of multiple settlements. He dismissed the charges against Goodon. Regina v. Hirsekorn (2010) took place just over 800 kilometres to the west of Brandon in a court house near the banks of the South

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Saskatchewan River in Medicine Hat, Alberta. This case arose because the Province of Alberta had charged the defendant, Garry Hirsekorn, with violating game regulations by shooting a mule deer near Elkwater, Alberta, in Cypress Hills Interprovincial Park. This is approximately 80 kilometres to the southeast of the defendant’s home in Medicine Hat, Alberta. The experts who appeared for the plaintiffs and the Crown were the same as those in Goodon, and both sides submitted similar types of documents. At trial the central historical issue was whether the eastern Cypress Hills were part of the hunting range of an identifiable Métis community prior to the assertion of effective Canadian control there, which the court decided had taken place in 1874, when the North-West Mounted Police arrived on the scene.47 Similar to the Turtle Mountain area, this partially wooded area straddles the Canada-US border, encompassing land in southern Alberta, southern Saskatchewan, and northern Montana. A key difference from the previous three Métis harvesting rights cases that I have already discussed is that in Hirsekorn the Siksika (Blackfoot) First Nation intervened against the Métis. The Siksika asserted that the area in question had been part of their historic territory and that their ancestors had barred Métis and other First Nations from hunting, trading, and camping there. Although there is no doubt that the Siksika had, in fact, traditionally hunted in the western Cypress Hills, and visited the eastern portion on occasion, I testified that the documentary record did not support their claim of exclusive use and occupancy of the eastern portion of these hills during the mid- to late nineteenth century.48 The key problem for Hirsekorn’s defence was that the documentary record pertaining to the region for the crucial period of the late 1860s and early 1870s was sparse. The Hudson’s Bay Company records that I presented were mostly from Fort Edmonton, situated approximately 550 kilometres to the northwest of present-day Medicine Hat. The journals make it clear that the substantial Métis population living in the vicinity of the fort travelled over 400 kilometres to the south-southeast in pursuit of bison herds during the late 1860s. The difficulty was that these documents did not indicate precisely where the Métis buffalo hunters of the North Saskatchewan River area went. The only certainty was that the hunting

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range of these Métis was expanding to the south-southeast as the plains bison ranges contracted to the vicinity of the Cypress Hills. This area was the last refuge in Canada for these animals. Another historical expert for the defendant documented that Canadian Métis from the area were travelling well into US territory to trade with Americans.49 In the end, the trial judge ruled against the defendant. He did not think that the evidence presented at trial demonstrated a sufficient Métis presence in the area to establish that the Métis effectively used and occupied the eastern Cypress Hills prior to the establishment of effective Canadian control in the area, which he determined happened when the North-West Mounted Police arrived in 1874. Are métis indians? More recent Métis litigation has highlighted additional problems associated with historical interpretations in aboriginal rights litigation. Key among these is Daniels et al. v. Regina (2013).50 This case arose because of questions about whether the federal government has the same fiduciary responsibilities toward Canadians who are of mixed aboriginal and other ancestry as it does toward status Indians. As Federal Court of Canada Justice Michael Phelan noted in his reasons for judgment in Daniels, “one of the more difficult issues in this matter is the question of what is meant by non-status Indians and Metis for purposes of the interpretation of s 91(24) [Constitution Act of 1867].” He added, “there is a clear difference of opinion as to the composition and geographic base within the Metis community. The term ‘non-status Indian’ must mean something other than any person not having status under the Indian Act as that would cover almost everyone in Canada whether they had native connections or not.”51 The litigation required to answer this basic question about whether Métis are Indians under the meaning of the latter term in the Constitution of 1867 was drawn out and costly: it took twelve years from the time of the initial filing of Daniels et al. v. Regina for the Federal Court to render its judgment, and it cost in excess of $6 million. Five historical experts appeared: three for the plaintiffs

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and two for the government. In court, experts are supposed to help the trier of facts rather than act as advocates for the parties who retained them. In fact, the Federal Court of Canada now requires experts to sign an acknowledgment of that responsibility.52 It also has become a standard practice in native rights litigation in Canada for trial judges to offer thumbnail assessments in their judgments of the expert witnesses who appeared. When doing so in his reasons for judgment in Daniels, Justice Phelan noted the number of consultancies that the experts who appeared before him had previously held. Although he stated that these track records did not cast doubt on the objectivity of these experts, they did point to a problem in aboriginal and treaty rights litigation in Canada today. Experts remain largely divided into opposing camps, with one tending to represent First Nations and Métis and the other tending to side with federal and provincial governments, something that recalls the division among American anthropologists who appeared before the United States Indian Claims Commission in the mid-1950s. In Daniels historian Gwynneth Jones, who also appeared for the plaintiffs, was the exception in several respects. She was the only consultant without a university affiliation, and compared to her fellow experts, she had the least courtroom experience, having appeared on only four prior occasions (Powley, Goodon, and Hirsekorn among them), during which she had worked for native groups and for the Crown. Justice Phelan was impressed by her impartiality, remarking that “the balance in her portfolio of consultancy reinforced the Court’s impression of her as a knowledgeable witness, balanced, fair and objective, independent of even the subtle pressures of being identified with one client or type of client.”53 As usually happens in litigation,54 the opposing experts in Daniels offered the court conflicting expert opinions about how to interpret the use of the term “Indian” in the historical records of Canada from the time of initial European contact in eastern Canada to the second half of the nineteenth century. Justice Phelan favoured the approach of the plaintiffs’ experts over that of the Crown. What the justice particularly liked about one of the plaintiffs’ experts, William Wicken, was that he focused his attention on determining what goals the framers of Confederation had in mind when they made “Indians

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and Lands Reserved for Indians” a federal, rather than provincial, responsibility. Wicken convinced Justice Phelan that the framers’ primary goal was to promote the economic development of the new dominion. For Canada to be able to do so, the federal government needed to have broad powers to deal with two key “Indian” realities at the time of Canadian Confederation in 1867: (1) there was considerable diversity within aboriginal populations and communities, and (2) there was considerable variety in the colonial administration of “Indian” affairs in British North America. Wicken’s evidence and testimony focused on eastern and central Canada and on the 300 years of post-European contact prior to Confederation. Gwynneth Jones’s evidence independently supported that presented by Wicken. Justice Phelan found her evidence “particularly helpful because it examined the conduct of the federal government towards natives and especially Metis along with the shifting policies and their impact.” He added, “she examined how the federal government used its ‘Indian’ power – Canada’s administration of Aboriginal people from just before Confederation with emphasis on the post-Confederation era until approximately the 1930s.”55 Justice Phelan thought that her period of analysis and geographic scope, which emphasized central and western Canada, “dovetailed well with the evidence of Wicken.” He put considerable reliance on her evidence, saying that “she was obviously a highly credible witness and her evidence was particularly helpful in determining what was actually done by the federal government particularly in its treatment of Metis or ‘half-breeds.’”56 Justice Phelan had major reservations about the Crown’s experts. Although he found one of them, Stephen Patterson, to be a credible and well-prepared witness, he thought that his evidence was not as relevant as that of Jones and Wicken to the central issues of the litigation. His reason was that Patterson had limited his evidence and analysis mostly to the pre-Confederation era and geographically had restricted his focus to Atlantic Canada. Justice Phelan did not find the Crown’s other expert, archaeologist Alexander Von Gernet, to be a credible witness. He thought Von Gernet’s report “was far ranging and delved into areas, such

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as post-Confederation federal policies, which were well beyond his area of expertise.” Justice Phelan also concluded that “Von Gernet came at his task of making his report in an unusual way. He would brook no instructions nor work with counsel: he was there to express his opinion.” In Justice Phelan’s opinion, “regrettably, this was evident in that he exhibited little understanding of the case or the issue for the Court; thus he could not be as helpful as one would have hoped.”57 More serious, Justice Phelan expressed grave reservations about the quality Von Gernet’s research and his command of the evidence that he presented in court: “Von Gernet’s evidence suffered from a number of other problems. He relied on a database of documents provided by the Defendants which was not current or updated. He relied extensively on secondary sources which became clear when he did not understand the context in which much of that material arose.” Justice Phelan continued, “His conclusions were often based on faulty understanding; for example, the frailties of the 1871 Census as a reliable indicator of [the] ‘Indian/half-breed’ population.” After noting that most of Von Gernet’s research and conclusions “were unoriginal” and “virtually regurgitat[ed] other people’s work,” Justice Phelan returned to the problems of this witness’s use of documentary records. He commented critically, “unfortunately, von Gernet exhibited a shallow understanding of many of the documents he relied upon or was unexplainably selective in his use of evidence. Thus, his evidence stood in sharp contrast to many of the other witnesses on both sides in terms of knowledge, reliability and credibility.”58 Justice Phelan concluded by determining that, although he did not “discount all of von Gernet’s evidence,” he placed “considerably less weight on it where it contradicts other experts. His Report did not stand up well to the glaring light of crossexamination and provided the Court with much less illumination into the issues in this case.”59 In the end, Justice Phelan held that “the case for inclusion of nonstatus Indians in s 91(24) is more direct and clear than in respect of Metis. The situation of the Metis is more complex and more diverse and must be viewed from a broad perspective. On balance, the Court also concludes that Metis are included in s 91(24).”60

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7.6 | healing ceremony at batoche, saskatchewan, 2005. the ancestors of the two families embracing had fought at this site on opposite sides during the north-West rebellion of 1885.

litigating history Métis rights litigation highlights some of the major ongoing problems with evidence and with the historical experts who present it in aboriginal and treaty rights litigation in Canada and elsewhere.61 In spite of Delgamuukw, which established that oral evidence must be given independent weight, many Canadian judges remain more comfortable with documentary records than they are with oral history evidence. Until very recently, judges were inclined to give more weight to documentary evidence whenever these two lines of evidence pointed toward opposite conclusions. This bias means that an aboriginal community’s chances of being successful in litigation improves substantially if it is fortunate enough to have a good set of documentary sources available. This was the case in Powley,

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where a substantial documentary record was available because Sault Ste Marie was situated along a major transportation corridor and became a major settlement. It was true in Belhumeur because the records for Fort Ellice were excellent. And it was the situation in Goodon, where there was a wealth of surviving fur-trading and other records that documented the Métis presence. In Hirsekorn, in contrast, records pertaining to the crucial latter part of the pre-sovereignty era were sparse and lacked sufficient detail and relevant information. Métis litigation also highlights the fact that the adversarial approach to native claims still tends to divide experts into opposing camps in ways that it did in the United States in the 1950s. Finally, Daniels shows the dangers that expert witnesses face when they stray from their areas of expertise, when they do not play a central role in conducting the research that they present in court, and when they do not direct their evidence to the central questions that a trial judge has to address in the litigation at hand.

ChaPter eight

Courts, Commissions, and tribunals as forums for interpreting and making history

Often I have been asked which aboriginal rights restitution or reconciliation scheme is best. This is a difficult question to answer even when limiting the consideration of commissions, tribunals, and the courts to their function as forums for history, which is my concern here. All of the regimes that I have examined faced two fundamental and conflicting challenges. They had to address the claims of those who were dispossessed by colonization and racist governments in ways that both meaningfully addressed petitioners’ sense of grievance and, ideally, ameliorated their economic situation. But the restitution regimes had to be politically acceptable to the larger electorate. To meet this latter requirement, claims regimes had to strive to achieve four objectives. First, they had to avoid being too disruptive of the economic order, which was the result of past dispossessions.1 Second, claims assessment procedures had to be clearly articulated and rigorously applied so that the public had confidence that successful petitioners had proven their claims. Third, settlement processes had to set timelines so that the quest for resolution appeared to be reasonably expeditious. Fourth, the settlements reached were expected to bring closure (or finality) to longstanding grievances. Whether legislated or developed by the courts, claims procedures sought to meet these very difficult challenges by defining who could make a claim, specifying what could be claimed, establishing procedures and venues for claims adjudication, and stating how findings or rulings would be treated.

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We have seen that defining who is eligible to file claims according to legislation or evolving case law has meant that cultural historical experts and lay witnesses have had to address their research and submissions to establishing or disproving that petitioners meet the criteria specified. With the exception of South Africa, this has involved addressing a critical question: were the claimants’ ancestors members of an identifiable aboriginal cultural group that held communal title to a specific territory for “a reasonable length of time” prior to dispossession? To answer this question, claims research has typically focused on identifying pre- and postcontact landholding groups and determining the boundaries of their territories. In sharp contrast, South African research was different because restitution legislation aimed to redress racially motivated land alienations that had taken place on or after 1913. Claimants did not have to establish aboriginal ancestry and title, albeit some groups have raised these issues nonetheless. Rather, research in South Africa primarily had to demonstrate that claimants were individuals who had been dispossessed of a right in land as a result of past racially discriminatory laws or practices of the state, or were direct descendants of such persons, or were members of a community or part of a community whose rights in land had been derived from shared rules determining access to land held in common. These rules had to have been operating for at least ten years before race-based dispossession took place on or after 1913. The four legislative regimes that I have examined all specified what could be claimed. The pioneering United States Indian Claims Commission Act of 1946 restricted the commission to recommending financial compensation for losses. Thirty years later the Australian Aboriginal Land Rights (Northern Territory) Act of 1976 specified that the aboriginal land commissioner’s authority was limited to making recommendations for awards of unalienated Crown lands or of alienated lands held in trust for Aborigines. In New Zealand the Waitangi Tribunal (1975–present) had the legislated authority to recommend financial compensation and/or the awarding of grants of certain categories of Crown lands. In South Africa the Commission on Restitution of Land Rights (1994–present) was empowered to recommend financial and/or land settlements. The

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Canadian Indian Specific Claims Commission (1991–2009) had the most limited authority of all, being restricted to making nonbinding recommendations to the federal government to rectify the latter’s specific violations of treaty obligations or its breaches of fiduciary obligations to Indians. Canadian courts, in contrast, make rulings about whether aboriginal title survives in areas beyond treaties or, in cases concerning treaty areas, make determinations of whether federal and/or provincial governments have lived up to their treaty obligations toward claimants. It is left to the federal and provincial governments and the claimants to negotiate settlements based on these court rulings. The emphasis on land and/or financial compensation has meant that claims research has focused on historic land use, tenure regimes, and the manner in which claimants’ ancestors were dispossessed. All the countries under review sought to provide claimants with venues that were more user-friendly and less costly than the courts. Most of the commissions and tribunals that were created, however, were hybrids that combined many, if not all, of the dispute resolution procedures of the courts with practices that aimed to accommodate indigenous customs. There were many reasons why these hybrid approaches developed. Key among them was the fact that, with the exception of South Africa, politicians turned to active or retired justices to head the commissions and tribunals. Once these bodies were operating, lawyers became increasingly involved as counsel for parties to claims. South Africa’s Commission on Restitution of Land Rights was the notable exception. This largely resulted from the African National Congress government’s suspicion of the courts and the legal profession more generally because of the roles that lawyers and judges had played in upholding the apartheid regime before 1994. So it is not surprising that the first land commission included activist scholars who had fought against apartheid laws and racist dispossessions. The heavy involvement of legal professionals elsewhere, however, meant that many of the practices to which they were accustomed inevitably became integral parts of the claims process. Most notably, the adversarial method of testing evidence through cross-examinations remained a central feature, although with the exception of the United States Indian Claims

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Commission, attempts were made to moderate its application. Typically, this involved having opposing counsel put its questions to witnesses through commissioners or tribunal members. Less commonly, as first happened in the Northern Territory of Australia before the aboriginal land commissioner, petitioners were allowed to make group submissions via videotape or other means. In litigation the submission of evidence is typically governed by the hearsay rule. Apart from court-recognized experts, this rule limits the testimony of witnesses to offering eyewitness accounts, which can be cross-examined. Commissions, tribunals, and even courts have had to make significant exceptions to this rule in order to allow for the fact that claims are of a historical nature and are based on lines of evidence – derived most notably from archaeology, documents, oral history, and oral traditions – that extend beyond the lives of the experts and lay witnesses who present it. Modifying customary Western legal practices for presenting and weighing evidence in ways that accommodate indigenous practices and the historical nature of claims has been a delicate balancing act. When developing their procedures, adjudicators have had to be careful not to lose the support of politicians and the public, or that of indigenous communities, by being too accommodating or too rigid. Claims-oriented research has been controversial since its inception in the late 1940s in the United States. Criticism arose and persists partly because the work has repeatedly divided academic disciplines by proposing competing historical narratives and theoretical frameworks, many of which challenge the current dominant disciplinary discourses. For many, claims-oriented research is also open to suspicion because the objective is to provide anthropological and/or historical evidence and interpretations to advance the competing interests of parties to a dispute. As we have seen, as early as the 1950s, some American anthropologists refused to take part in the process because they believed that it was wrong to use their scholarly research for such a purpose. Finally, the results of this research are often attacked as presentism for interpreting the aboriginal past in reference to present-day claims. These considerations raise two central questions: Is claims research more suspect

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than scholarly research? Has the claims process encouraged innovative research? Both academic and claims research usually address current theoretical models of aboriginal societies and perspectives on their postcontact historical experiences. The models that claims research addresses are expressed or implied in existing case law or in the legislation that established various claims processes. Although it addresses issues arising from these models, the claims research undertaken by witnesses for specific cases is not intended to challenge them. Presumably, this would set claims research apart from that undertaken in the academy, where the scientific approach calls for the testing of theoretical models. In reality, scholarly research too often does not test the theoretical narratives that are currently popular but merely seeks evidence to provide examples of their validity. One instance that comes to mind are the theoretical debates that took place in Canada and the United States in the 1970s and 1980s as to whether native North Americans engaged in exchange to maximize returns on their labour prior to economic intercourse with Europeans.2 The longstanding scholarly debate about the nature of aboriginal land tenure regimes in Subarctic Canada is another instance.3 In both cases, scholars’ economic ideologies and philosophical perspectives about non-Western people determined the data that they collected and the ways that they interpreted them. The discussion about the schools of anthropological thought that existed in Australia and North America before claims research began is an additional instance. As we have seen, claims research in Australia has demonstrated that, prior to the mid-twentieth century, many of the commonly held assumptions about the nature of Aborigines’ cultures had been based, at best, on insufficient evidence. Such unsubstantiated viewpoints did not hold up when subjected to detailed examination before the Aboriginal Land Commission and the courts. An additional reason why scholars often criticize claims research is that they conflate the histories contained in the judgments and reports or recommendations that have been written by justices, commissioners, and tribunal members with the evidence submitted by witnesses. The Waitangi Tribunal offers a good example of

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this problem. New Zealand historian Michael Belgrave and political scientist and historian Jim McAloon have noted that tribunal history is often attacked for being written from an “instrumental presentist” perspective because critics commonly focus almost entirely on reports of tribunal panels. The latter address the Waitangi Tribunal’s primary responsibility, which is to evaluate the historical evidence that it has received in order to determine whether the Crown has violated Treaty of Waitangi principles according to its current understanding of these principles. Belgrave and McAloon note that critics have paid comparatively little attention to the evidence and reports that tribunal panels consulted when writing their histories. McAloon argues that most of the historical reports that experts have submitted to the tribunal meet the scholarly standards expected of professional historians.4 Although claims research has been the subject of considerable criticism, there is no question that it has had a number of positive effects in the realm of aboriginal rights and scholarship regarding native peoples. Most notably, perhaps, it has had the cumulative impact of generating new knowledge and understandings about aboriginal cultures and history. Overtime, this knowledge has served to challenge current laws or statutes and has led commissioners and tribunal panels to modify their interpretations and applications of claims legislation. For example, the United States Indian Claims Commission initially expected claimants to prove that their ancestors had belonged to an identifiable group that had used a specific territory to the exclusion of others for a “reasonable length of time” prior to dispossession. This expectation accorded with the predominant anthropological assumption circa 1950 that all American Indian tribes had occupied contiguously bounded territories. However, the evidence generated for a succession of Indian Claims Commission cases, particularly that presented by government experts, demonstrated to commissioners that groups often jointly used and occupied territories. In the case of the Northern Territory of Australia, we have seen that the Aboriginal Land Rights (Northern Territory) Act of 1976 enshrined a model of Aborigines’ societies that reflected the dominant anthropological perspective of the time. The model (and the act) imagined that patrilineal clans constituted both

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New revised (1) Case law (2) Aboriginal rights / claims legisation (3) Rules of evidence

Claims ruling

Revised scholarship

Claims hearing / trial

Claims research

Statement of claim (1) Theory of case (2) Models / concepts

Current (1) Case law and / or (2) Claims legislation (3) Rules of evidence

Current anthropological and historical scholarship

8.1 | Aboriginal claims processes

the core land-owning and land-using group in Aborigines’ societies. Claims research demonstrated that this notion was wrong-headed: there were two groups and they were not synonymous. This change in thinking came about, in part, because the claims process had encouraged the broadening of the research focus to include women and to consider their land use rights and obligations. As a result, it soon became clear that land-using groups were often comprised of members of adjacent clans. In the sixth claim, these developments led Aboriginal Land Commissioner Justice John Toohey to take women’s rights and obligations into account in his application of the Aboriginal Land Rights Act even though the latter legislation had emphasized the rights men inherited.

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Claims research has also had a cumulative impact on the development of aboriginal rights law. In Canada, for example, evidence presented on behalf of Indian plaintiffs in Calder (1973), Delgamuukw (1998), and Tsilhqot’in (2014) dramatically undermined outdated evolutionary notions that had backed up the Crown’s assertions that indigenous hunting and fishing people were too primitive to have had tenure systems that were recognizable in common law. Faced with mounting evidence to the contrary, the Supreme Court of Canada first acknowledged the existence of aboriginal title in Calder. In Delgamuukw and Tsilhqot’in it subsequently specified the characteristics of this title in ways that accord with the past and current aboriginal realities that had been portrayed in the anthropological and historical evidence that expert and lay witnesses had presented in the trial phases of these three cases. In their judgments, Supreme Court justices pointed to the need to abandon old understandings of aboriginal societies. Beginning with Delgamuukw, the court also held that the courts below had to give oral histories due weight as a line of evidence. In doing so, it set the courts down paths already blazed by the first aboriginal land commissioner of the Northern Territory of Australia, the Waitangi Tribunal, and the Canadian Indian Specific Claims Commission. In the realm of scholarship about aboriginal people, claims-oriented research has made several types of contributions. Although it has generally not generated new theoretical approaches and methodologies, it has often promoted those that were in their infancy in the academy. The cultural ecology approach is an example of claims research promoting a newer perspective in anthropology. We have seen that this methodology was advanced by many of the experts who had been retained by the United States Justice Department in the 1950s. Harold Hickerson and Julian Steward are probably the most notable anthropologists who did so. At least a decade before the establishment of the Indian Claims Commission, some anthropologists, Steward among them, had begun to advocate this approach as an alternative to the culture area method for studying the relationships of American Indian tribes to their local cultural and physical environments. Proponents of this theoretical perspective thought that it offered a more dynamic way of examining these

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relationships and studying culture change more generally. Working as experts for the federal government gave Hickerson and Steward a practical reason and the financial resources to apply the new methodology. In Australia anthropological research began to cast doubt on aspects of A.R. Radcliffe-Brown’s model of Aborigines’ societies as early as the 1930s and quite vigorously challenged it in the 1960s. This shift in thinking was well underway by the time of the creation of the aboriginal land commissioner’s office in 1976, but claims research gave it a further stimulus as more groups of Aborigines came forward with petitions, thereby broadening the anthropological gaze from a handful of groups to many.5 Horizons expanded even further beginning with Mabo 2 in 1992, when increasing numbers of Aborigines living beyond the Northern Territory filed claims. Likewise, the revisionist and polyvocal national histories being written in Australia and New Zealand were not merely the result of claims research, but they were bolstered by it. In these two countries, as elsewhere, new ways of looking at indigenous peoples and colonial history were influenced by postmodernist and postcolonial approaches to history that were gaining ground beginning in the 1980s. These new intellectual outlooks favoured including, and sometimes even privileging, Aborigine and Maori perspectives of native-settler experiences in historical narratives in ways that that coincided with claims-generated histories in these two countries. In Canada, Métis history and rights claims are additional examples. The claims brought forward by this people of mixed ancestry have often pitted newer research and perspectives on Métis culture against older evolutionary-based ideas that were common in the scholarly literature and the public at large during the first half of the twentieth century. Scholars of that era had imagined that the conflicts between Métis and Canada in the nineteenth century, and their economic marginalization afterward, were the inevitable result of a clash of civilizations, which pitted the semi-primitive “halfbreed” Métis people against the more advanced and industrializing state society of white settlers. This dated outlook was losing ground well before Powley (2003). This changing viewpoint resulted partly from the resurgence of Métis nationalism and political activism in

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the twentieth century. Also, growing scholarly interest both in political and economic history and in native agency were factors. In any event, although claims research has not always generated new theoretical perspectives and alternative historical narratives, it has certainly acted as a catalyst for their development. On national and international levels, the claims process has stimulated public and scholarly interest and awareness in indigenous peoples and their experiences with colonialism. Often claimant groups had received little, if any, prior attention from academic researchers. In Australia, for example, the classic model of Aborigines’ societies was based on an extremely small sample. Most of the groups who came forward to file claims had not been included in that sample. In Canada the Gitxsan and Wet’suet’en similarly had received relatively little attention prior to filing their claim in the mid-1980s. Before that time, most anthropological research had focused on their Tshimshian and Nisga’a neighbours to the west, who lived on the Pacific Coast. Before Powley (2003), the Métis of Sault Ste Marie in central Canada had received hardly any attention from scholars of the Métis because researchers had focused mostly on the buffalo-hunting Métis of the parklands and prairies of the Canadian West. Furthermore, this research had highlighted the Métis of Red River in present-day Manitoba rather than the Métis from communities located farther west who filed rights claims after Powley. Claims research has thus provided the funding to increase the number of aboriginal communities that have been studied intensively, thereby substantially broadening our database and knowledge about diverse native cultures. In addition to focusing on groups that had not been featured in academic discourses prior to the claims era, claims research emphasized hitherto understudied topics. Alfred Kroeber pointed this out as early as 1955. He observed that anthropologists who studied American Indians had paid comparatively little attention to land use and land tenure questions prior to the creation of the United States Indian Claims Commission. Rather, studies of the social, religious, and material culture dimensions of tribal societies abounded. The research about aboriginal peoples of the preclaims eras of the other

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countries studied in this present work had similar histories. Thus claims research has given a boost to the economic history and economic anthropology of indigenous peoples, as well as to the study of their land tenure practices. In New Zealand, prior to the creation of the Waitangi Tribunal, academic historians had showed little regard for the Treaty of Waitangi or for Maori concerns about whether it had been implemented in ways that their ancestors had intended. Another important general contribution of claims research has been the shift in focus from formulating idealized structures of indigenous societies (or orthodox models) to considerations of how specific groups adapted to (1) highly varied local environments, (2) cyclical and long-term demographic and environmental fluctuations, and (3) changing relations with other aboriginal and nonaboriginal groups. South Africa was an exception in the latter respect because politically liberal, English-speaking scholars had focused on the social and economic interactions of indigenous blacks with European newcomers and their descendants. In any event, claims research has generally favoured a shift in focus from static and highly abstract models of aboriginal societies to ones that emphasize internal and external cultural dynamics. This move has been facilitated by two other important developments that claims-oriented research has fostered: an increased diversity in the lines of evidence used to study native peoples, as well as interdisciplinary or multidisciplinary approaches to that work. We have seen that, until the eve of claims research, the study of indigenous peoples in Australia, Canada, New Zealand, South Africa, and the United States had primarily been the domain of anthropologists. They collected their data mostly from field ethnography, archaeology, and physical anthropology. As noted, aboriginal claims, which began with the United States Indian Claims Commission during the era preceding the civil rights movement, raised questions about land use practices and tenure regimes that had not been central to this earlier work. Most of the native informants who had been consulted by field ethnographers for scholarly purposes during the late nineteenth and early twentieth centuries were no longer living when claims arose with their fresh historical questions. Furthermore, as noted, the bulk of foundational ethnographic research had primarily involved

Forums for the Interpretation and Making of History | 253

male researchers interviewing male informants. This was a critical limitation not only in Australia but elsewhere as well. Claims researchers were, therefore, forced to undertake new oral history research with a later generation of male and female informants. Too often, however, these new informants possessed only indirect knowledge of tenure practices prior to land alienations because they had long been removed from the lands claimed and because, in North America, many also had undergone forced acculturation in residential schools. To fill in gaps in indigenous knowledge, anthropological experts increasingly conducted document-based historical research. Although archaeologists had undertaken some documentary research to facilitate their interpretation of artifact collections that they had dated to the late precontact and early contact periods, claims research was, without question, a catalyst for the rapid expansion of the use of archival records. This line of evidence enabled anthropologists to move beyond discussions of abstract general processes of culture change, such as acculturation, diffusion, and migration, to considerations of native agency and the roles of specific individuals in these processes. Soon the claims process drew in geographers, historians, and other social scientists, thereby promoting a new multisourced and interdisciplinary approach to the history of indigenous peoples known, in North America, as ethnohistory. Although claims research has encouraged data collection on a vast scale and the development and testing of innovative approaches to research, there is no question that the adversarial setting in which it is often presented has also had negative impacts. Most notably, hearings and trials have frequently polarized debate over methodologies and interpretations and often driven opposing expert and lay witnesses to take extreme positions that go beyond the bounds indicated by their evidence. This latter tendency can produce “bad” history. The problem arises from the fact that parties to a claim “test,” or challenge, the evidence of opposing witnesses by cross-examination, which is a central feature of litigation in English common law countries. I have demonstrated how, in the 1950s, the extremely adversarial proceedings of the United States Indian Claims Commission, with their extensive cross-examinations and,

254 | Aboriginal Rights Claims and the Making and Remaking of History

sometimes, even re-cross-examinations, divided the small community of American anthropologists who studied Indian tribes into two warring factions. Although decades later the Waitangi Tribunal initially downplayed cross-examinations, they would become more important over time as lawyers became increasingly involved. Some of them would even specialize in tribunal law. As they gained skill in cross-examining anthropological and historical experts at tribunal hearings, the historical community became more skeptical of the Waitangi Tribunal process. In Canada claims litigation has had a similarly divisive effect on the pool of experts who participate: most of them choose to appear either for the Crown or for aboriginal groups but rarely for both. This division has been especially sharp between those anthropologists who hold academic appointments and contract researchers who do not. For practical and ethical reasons, over the years many of the former have been unwilling to appear as experts for the Crown in opposition to native claimants, especially when the latter have happened to belong to communities where the anthropologists have built their expertise and scholarly reputations through fieldwork.6 Appearing against their informants posed the risk of alienating the latter. Alfred Kroeber was the first prominent anthropologist to confront this problem. In 1952 the United States Justice Department asked him to act on its behalf in the California Indian claims. He was initially inclinded to accept but ultimately declined when Indian tribes with whom he had contact expressed that they would be very troubled if he did so.7 The testing of evidence through cross-examination is also highly problematic because it is a culturally insensitive practice that has made it difficult for indigenous people to participate in claims hearings. Many of these witnesses are elders who are treated with great respect in their communities and are accustomed to settling disputes in public forums where the goal is to gain a consensus among those present. I have looked at the various attempts by commissioners and justices to address these problems associated with crossexamination by either curtailing its use or moderating the practice. In Australia, Justice John Toohey led the way in the late 1970s and early 1980s by allowing Aborigines to make video presentations even though this form of testimony did not allow for cross-examination.

Forums for the Interpretation and Making of History | 255

He also permitted the presentation of evidence before claimant communities and allowed those in attendance to make interventions for clarification or correction. In its early years, the Waitangi limited the direct cross-examination of native elders and, instead, required opposing counsel to submit its questions to commissioners or tribunal members, who in turn redirected their queries to the elders as questions for clarification and/or information. Much later, the Canadian Indian Claims Commission adopted this practice. Although these efforts have ameliorated some of the worst aspects of cross-examination for indigenous witnesses, they have not eliminated them. In the courts, of course, cross-examination remains the essential method for testing evidence. On the positive side, there is little doubt that witnesses facing the prospect of rigorous cross-examination are disposed to make as strong a case as the evidence permits, but they are also aware that their conclusions (or opinions) will be subject to a level of detailed and intense scrutiny that the peer review process of the academy rarely provides. Returning to my opening question about which claims regime has offered the best venue for native history, it is clear that all of the systems that I have examined have had varying success in providing appropriate forums for dealing with the messy nature of the history that lies behind aboriginal claims. The United States Indian Claims Commission accommodated a massive interdisciplinary re-examination of American Indian tribal histories based on extant ethnography and new documentary research. But, reflecting its time, oral history evidence was not significant and hence the native voice was largely absent. With varying degrees of success, subsequent commissions and tribunals, and more recently Canadian courts, have attempted to avoid this shortcoming and thereby provide a more balanced perspective. Most notably, oral history evidence has been given increasing weight since the 1990s, and claimants now speak directly to commissions, the Waitangi Tribunal, and the courts.

n ot e s

ChAPter one

1 Arneil, John Locke and America. 2 Hobbes, Leviathan. 3 Probably the most celebrated example can be found in Chief Justice of the British Columbia Supreme Court Allan McEachern’s reasons for judgment in Delgamuukw v. British Columbia (1991). In his ruling, Chief Justice McEachern cited Hobbes as part of his rationale for denying the land title claim of the Gitxsan-Wet’suet’en. McEachern, Delgamuukw v. Regina. 4 Ray, I Have Lived Here, 129–30. 5 The American Midwest had been the Northwest Territory of the United States from 1787 to 1803. It was named in reference to the lands northwest of the Ohio River. Subsequently, the territory was divided into the states of Ohio, Michigan, Indiana, Illinois, and Wisconsin. It also included the northeastern portion of Minnesota. 6 These decisions were Johnson v. McIntosh (1823) 21 US 543 and Worcester v. Georgia (1832) 31 US 515. Of particular importance, in the first ruling, Marshall held that Britain had gained “radical title” by right of discovery, but the United States inherited it by declaring independence. Therefore, only the United States could obtain aboriginal title directly from Indian tribes. Private citizens were precluded from doing so. Subsequently, in Worcester v. Georgia, Marshal ruled that only the United States government could deal with Indian tribes on a nation-to-nation basis. 7 This idea was confirmed by the United States Supreme Court in TeeHit-Ton Indians v. United States (1955) 348 US 272. In this case, the court ruled that the petitioners from Alaska were not entitled to compensation for logging in their traditional territory because the United

258 | Notes to pages 7–14

8 9

10 11 12 13 14 15 16

17 18 19 20 21

22

States permitted them to occupy these lands and could withdraw that privilege at any time. Rosenthal, Their Day in Court, 14–16. Harvey Rosenthal notes that prior to 1881, even this small window into the American judicial system had been closed to Indians. These treaties encompassed northwestern Ohio (1803), all of lower Michigan (except the southeast), central and northern Indiana (1816), Illinois (1818), most of Iowa (1846), all of Wisconsin (1848), upper Michigan (1837), and a portion of east-central Minnesota (1858). The dates indicate the time when statehood was achieved. Kagan, American Heritage Pictorial Atlas, 148–9, 250. This tragic event is remembered as the Trail of Tears. The imperial government created this province in 1841 by combining the colonies of Upper Canada (or present-day southern Ontario) and Lower Canada (or present-day southern Quebec). The Williams Treaty of 1923 covered one small area outside of these early treaties. Presently, this treaty is under dispute in the federal court of Canada in Alderville Indian Band et al. v. Regina et al. The negotiations for this agreement and its content are discussed in Ray, Miller, and Tough, Bounty and Benevolence, 45–57. This area had not been set aside as Indian territory by the Royal Proclamation of 1763. Northeastern British Columbia was encompassed in Treaty 8, which was concluded in 1899 and 1900. For a discussion of the Numbered Treaties of western Canada, see Ray, Miller, and Tough, Bounty and Benevolence; and Ray, “Treaty 8.” In Canada reserve lands are vested in the Crown and set aside for the use and benefit of First Nations. Ray, I Have Lived Here, 259–62. Gunn, “Indian General Allotment Act.” The North American land mass totals almost 28 million square kilometres. New Zealand legal historian R.P. Boast notes that, in fact, the Treaty of Waitangi was not the only agreement to have been negotiated between groups of Maori and the state. Boast, “Treaties Nobody Counted On.” For a synopsis of these conflicts, see New Zealand History Online, “New Zealand’s Nineteenth Century Wars.” The King Movement also aimed to end intertribal conflicts, which were sapping Maori strength

Notes to pages 14–28 | 259

23 24

25

26 27 28 29 30 31 32 33 34 35

36 37 38

in the face of the Pakeha onslaught. For an online account of this movement, see Papa and Meredith, “Kingitange.” The government bought 2.7 million acres and private individuals 400,000 acres. In his classic study of these people in the early 1960s, Wolfgang Leade noted that the village-dwelling Miriam were master gardeners of rich volcanic soils who were not fond of seafood. Laade, “Ethnographic Notes,” 36–7. The Boers and others of Cape-Dutch origin are collectively referred to as Afrikaners. Their native language is Afrikaans, which is Germanic and developed in South Africa from seventeenth-century Dutch. For an overview of these conflicts, see Thompson, History of South Africa, 69–107. For a discussion of where these two acts fit into the evolution of racially based dispossessions in South Africa, see South African History Online, “Land Act.” These people were of East Asian ancestry. Rosenthal, Their Day in Court, 14–16. Pienaar, “Methodology Used,” 156–7. Ibid., 159–60. Ibid., 160. He served concurrently as justice of the Federal Court of Australia and the Supreme Court of the Northern Territory (1977–87) and of the High Court of Australia (1987–98). I have discussed my participation at length in Ray, Telling It to the Judge. Henry Reynolds’s exploration began with his The Other Side of the Frontier. Giselle Byrnes offers one of the most balanced discussions of the strengths and weaknesses of tribunal histories/reports when viewed from various perspectives, particularly as juridical, postcolonial, and liberation histories. Byrnes, Waitangi Tribunal. For summary overviews, see Wright and Saunders, “Writing of the History,” 390–409; and Worden, Making of Modern South Africa, 1–6. For a comparative examination of the policy dimensions of claims resolution processes, see Scholtz, Negotiating Claims. The Supreme Court of Canada made this decision in Re Eskimos [1939] 2 DLr 414; [1939] Scr 104. The case arose out of a dispute

260 | Notes to pages 28–34

between the Province of Quebec and the federal government about who had obligations respecting Inuit affairs. The court concluded that these affairs were a federal responsibility even though the Inuit were not mentioned in the British North America Act of 1867, which created the Canadian Confederation. ChAPter tWo

1 Indians could not bring suits as individuals. The phrase “other recognizable groups” was ambiguous and often determined on exigencies of a case, as in the California Indians’ claim (dockets 31 and 32). In the latter case, the commission merged various claimants from the state into a single docket. 2 Barney, “Legal Problems,” 316–18; Rosenthal, “Indian Claims,” 67–8. 3 Barney, “Legal Problems.” 4 Harvey Rosenthal discussed this resistance in his Their Day in Court, 47–94. 5 Ibid., 111–13, 115–16. 6 President Harry Truman appointed the first three commissioners. They were Chief Commissioner Edgar Witt, a former lieutenant governor of Texas and past chairman of two Mexican claims commissions under President Franklin D. Roosevelt; Assistant Commissioner Louis O’Marr, a former attorney general of Wyoming; and William M. Holt, an attorney from Nebraska. 7 Nancy O. Lurie, interview with author, October 2001. 8 He specifically objected to considering ceremonial, religious, aesthetic, or other uses. Ralph Barney, Re-cross-examination of Kroeber, summer 1954, dockets 31 to 38, United States Indian Claims Commission, National Archives and Records Administration (USIcc -Nara ). 9 United States v. Santa Fe Pacific R. Co. (1941) 314 US 339. 10 Ibid. 11 For a short biography of Wheeler-Voegelin, see H. Tanner, “Erminie Wheeler-Voegelin.” 12 Ronaasen, Clemmer, and Rudden, “Rethinking Cultural Ecology.” 13 “Memo from J.A. Jones to Mr Ralph A. Barney, Assistant Chief, Trial Section,” 1 April 1953, box 3/3, Great Lakes and Ohio Valley Ethnohistorical Research Project, Indiana University Archives (gLover IUa ). The report by Baerreis to which Jones refers in this memo was likely Baerreis, Wheeler-Voegelin, and Wycoco-Morre, Indians of

Notes to pages 34–7 | 261

14

15 16 17

18 19 20 21 22

23

Northeastern Illinois, prepared for the United States Indian Claims Commission (consolidated dockets 13L , 15K , 181, 29J , 40J , and 217). A memo dated 1 June 1953 from Acting Assistant Attorney General J.E. Williams to Assistant to the Attorney General S.A. Andretta, box 1/3, gLover -IUa , stated that there were 100 claims from the region concerning 200 million acres. “Memo from J.A. Jones to Mr Ralph A. Barney, Assistant Chief, Trial Section,” 1 April 1953, box 3/3, gLover -IUa . Ibid. C.F. Voegelin to J. Edward Williams, Acting Assistant Attorney General, Lands Division, 1 June 1953, box 3/3, gLover -IUa . Voegelin had founded the Anthropology Department at Indian University in 1946. Ibid. The supposition was that some nations came into being solely for treaty-signing purposes. Erminie Wheeler-Voegelin and J.A. Jones to Ralph Barney, 20 July 1955, box 3/3, gLover -IUa . Julian Steward and Wheeler-Voegelin co-authored an unpublished report for docket 87 titled “A Report on the Northern Paiute in Nevada, Oregon and California, 1826–1880.” Stout appeared as an expert again in docket 153. When asked about his qualifications, he noted that he had done archaeology in Wisconsin in 1934–35, Kentucky in 1937–38, and Panama in 1940–41. He stated that his publications consisted of several papers on property concepts and physical anthropology and two monographs about the Kuna of Panama. He indicated that his knowledge of Iowa archaeology was gained largely through the work of his students. Testimony of David Stout in Docket 153, United States Indian Claims Commission, transcript, Wc 030, box 27, folder 7, 327–9, McCarter and English Collection, Seeley G. Mudd Manuscript Library, Princeton University (Mec -PU ). A letter from Wheeler-Voegelin to Stout indicated that the “fifteenday research period” that Stout had agreed to with the Justice Department would be comprised of the time Stout spent in Bloomington over Christmas break in 1956 – from 15 December 1956 until the New Year – and the two days he spent in Washington, Dc , with a Justice Department lawyer preparing for his testimony. Erminie WheelerVoegelin to David Stout, 13 November 1955, box 1/3, gLover -IUa .

262 | Notes to pages 38–42

24 David Stout to Erminie Wheeler-Voegelin, 31 January 1956, box 1/3, gLover-IUa . 25 Ibid. Subsequently, Stout appeared for the government in docket 153. The plaintiffs’ lawyers again asked him about the role of gLover in preparing his report for docket 83. They asked him whether he was the author of the thirty-three-page, typed report “An Anthropological Report on the Indian Occupancy of Royce Area 262,” dated January 1957, which included a map. This was defence exhibit 262 for docket 153. During cross-examination, Stout stated that he researched and wrote this report “in consultation” with gLover staff over a total of seven days. Testimony of David Stout in docket 153, Wc 030, box 27, folder 7, 327–61, Mec -PU . 26 Claims commission dockets 13L , 15K , 181, 29J , and 217. These reports appeared in the 1974 publications of claims commission reports as Baerreis, Wheeler-Voegelin, and Wycoco-Morre, Indians of Northeastern Illinois. 27 In reply, on 23 November 1955 Wheeler-Voegelin informed Baerreis that Wycoco-Moore was a Filipino immigrant who had received a doctorate in folklore and had served on the project as a secretary and researcher. The report referred to was Baerreis, Wheeler-Voegelin, and Wycoco-Morre, Indians of Northeastern Illinois. 28 David Stout to Ralph Barney, 24 February 1956, box 1/3, gLover IUa . 29 Ibid. 30 Ralph Barney to Erminie Wheeler-Voegelin, 5 March 1956, box 1/3, gLover-IUa . 31 In their memo to Barney, Wheeler-Voegelin and Jones indicated that forty reports were needed and that they hoped to finish seven to nine of them that year. The report referred to was Baerreis, WheelerVoegelin, and Wycoco-Morre, Indians of Northeastern Illinois. Erminie Wheeler-Voegelin and J.A. Jones to Barney, 20 July 1955, box 3/3, gLover-IUa . 32 Ray, “Anthropology, History, and Aboriginal Rights.” 33 Frederica de Laguna to Perry W. Morton, 16 February 1956, box 1/3, gLover-IUa . 34 Ralph Barney to Erminie Wheeler-Voegelin, 5 March 1956, box 1/3, gLover-IUa . 35 The anthropologist-archaeologist to decline on these grounds was Reynold J. Ruppe, who was in the faculty at the University of Iowa from 1953 to 1960 before moving to Arizona State to establish a de-

Notes to pages 43–5 | 263

36 37

38

39 40

41

42 43 44 45

partment of anthropology. Copy of Ruppe to Barney, 12 May 1955, box 1, Julian Steward Papers, University of Illinois Archives (JSP -UIa ). Julian Steward to Ralph Barney, 2 June 1955, box 1, JSP -UIa . More specifically, he received $500 up front for agreeing to act as a witness and $50 per day plus expenses until the case was decided. A copy of Kroeber’s contract is located in film 2106, reel 121, carton 26, folder 17, 296–302, Robert Heizer Papers, Bancroft Library Archives (BaNc ). Later, this practice was discontinued, as was the hiring of claimants’ lawyers on that basis. A fund was created to provide tribes with the resources they needed to pursue their claims. Nancy O. Lurie, interview with author, October 2001. The Old Northwest Territory refers to the present midwestern states between the Ohio and upper Mississippi Rivers. Anthony F. Wallace, “American Indian Land Tenure and Political Organization in the Northeastern Agricultural Area, 1650–1830,” February 1955, Wc 030, box 39, folder 8, Mec -PU . Felix Cohen had retired from the federal government and relocated to the Washington law office of Riegelman, Strasser, Schwartz, and Spielberg. The practice began with Clark Wissler, who, for research and display purposes, organized the collections of North American Indian artifacts held at the American Museum of Natural History in reference to the geographic regions of the continent. He published an early culture area map in 1914 that emphasized material culture variations. Wissler, “Material Cultures.” In 1939 Alfred L. Kroeber published the classic Cultural and Natural Areas of Native North America. Six years later, one of his students, Harold E. Driver, published another culture area synthesis of North America titled Indians of North America, a more quantitative work that appeared in several editions. Kroeber and Driver are examples. In the United States scholars with a Marxist bent often worked under this heading during the 1940s and 1950s. Linton, “Land Tenure in Aboriginal America”; Linton, Study of Man; Steward, “Economic and Social Basis.” Steward used this approach to argue for the government that some groups, such as the Shoshone of the Great Basin, were too primitive to have developed notions of territorial ownership. For a discussion of the link between Steward’s theory and his work as an expert witness, see Ronaasen, Clemmer, and Rudden, “Rethinking Cultural Ecology.”

264 | Notes to pages 45–53

46 47 48 49

50 51 52

53 54 55

56 57

58 59 60 61 62 63 64 65 66

Chalfant, “Ethnological Field Investigation,” 153. Beals, Indian Occupancy. Chalfant, “Ethnological Field Investigation.” He speculated in his briefs for the government, and later in print, that these “no-man’s lands” served to conserve wildlife because adjacent tribes could not hunt there safely. See Wheeler-Voegelin and Hickerson, Chippewa Indians I . Ralph Barney to Erminie Wheeler-Voegelin, 29 August 1956, box 1/3, gLover-IUa . Ibid., emphasis underlined in original. Anthony F. Wallace had suggested the latter possibility in “American Indian Land Tenure and Political Organization in the Northeastern Agricultural Area, 1650–1830,” February 1955, Wc 030, box 39, folder 8, Mec -PU . Transcripts of the United States Indian Claims Commission, dockets 138 and 153, USIcc -Nara . Royce, Indian Land Cessions. She was the spouse of established plains archaeologist Waldo Wedel, who also served as an expert for the Justice Department in other cases. A brief biography of Wedel is available at http://uipress.lib.uiowa.edu/bdi/DetailsPage.aspx?id=400. This topic had been the focus of her master’s thesis. She published an abridged version of it in the July 1939 issue of the Iowa Journal of History and Politics. Wallace had picked that year because the Treaty of 1825 contemplated such a conference. Anthony F. Wallace, The Iowa Tribe et al. v. the United States, United States Indian Claims Commission, transcript, Wc030, box 39, folder 8, 738, Mec-PU. Ibid., 740–1. Ibid., 782. Ibid., 850. Lurie held a doctorate in anthropology from Northwestern University. Ibid., 876. Ibid., 740. Ibid., 748–52. The secondary source on which he relied for this statement was Cooper, “Is the Algonquian?” These plaintiffs’ lawyer registered this article as Sac and Fox exhibit 165. Ibid., 761. Ibid., 768. Ibid., 869. Ibid., 871.

Notes to pages 53–61 | 265

67 Ibid. 68 Ibid., 834–8. 69 In their testimony, Lurie and Wallace suggested that archaeologists were not well equipped to address the central issue of the claim. Delegates also raised this issue at the Bloomington meeting. 70 He published his classic on the topic just prior to becoming involved as an expert for the California Indians. Kroeber, Handbook of the Indians. 71 He wrote a lengthy paper on this topic. Alfred Kroeber, “The Nature of the Land-Holding Group,” film 2049, reel 152, file 28, series 4, Indian Land Claims, 1904–62, Alfred Kroeber Papers, BaNc . Subsequently, in 1955, he published it in Ethnohistory. Kroeber, “Nature of the Land-Holding Group.” Kroeber’s concept never gained popularity in the discipline. 72 Linguistic data were of particular importance in identifying different groups. 73 During her testimony in The Iowa Tribe case, Nancy Lurie noted that it had been the practice to map the political geography of native North America in this fashion since the days of James Mooney (1861–1921). Nancy Lurie, Testimony, The Iowa Tribe et al. v. the United States, Transcripts of the United States Indian Claims Commission, docket 138, microfiche (New York: Clearwater, [1976]), 844. 74 She had completed her master’s degree under Kroeber. Subsequently, Wheeler-Voegelin completed her doctorate at Yale University under the supervision of Edward Sapir. H. Tanner, “Erminie WheelerVoegelin,” 61. 75 Ralph Beals, “Memo to Consultants, Department of Justice Research Project, Indians of California,” n.d., copy in box 4, JSP -UIa ; Ralph Barney to Erminie Wheeler-Voegelin and J.A. Jones, 4 May 1955, box 1/3, gLover -IUa , emphasis underlined in original. 76 For example, in a letter to Barney, Beals expressed the fear that confusion would arise from the proposed approach because “often ethnographic reports cover linguistic groupings rather than our ecological types. The skills of our consultants tend to follow these lines also.” Ralph Beals to Ralph Barney, 19 July 1955, copy in box 1, 1954–57, JSP -UIa. 77 This report was later published. Beals and Hester, California Indians. 78 Ray, “Kroeber and the California Indian.” 79 Alfred Kroeber, Rebuttal Testimony, 27 June 1956, dockets 31 to 37, 1170–215, USIcc -Nara .

266 | Notes to pages 61–3

80 Kroeber made reference to Japanese culture. 81 In a letter to Steward, Barney sarcastically remarked, “What I am worried about however is the way Kroeber and Barrett have gone all out for Indian ‘possession’ of all of the lands in California. Heizer finally admitted that while they might not have actually used the top of Mt. Whitney nevertheless it was effectively in their possession. Heizer specifically refused to exempt the desert area. Kroeber was not so explicit.” Ralph Barney to Julian Steward, 3 July 1954, box 1, 1954–57, JSP -UIa , emphasis underlined in original. 82 United States Indian Claims Commission, Testimony, California Indian Claims, dockets 31 and 37, 28 September 1955, 3346–8, USIcc-Nara. 83 Ray, “Kroeber and the California Indian.” 84 It should be noted that Driver had the primary responsibility for helping lawyers prepare to cross-examine Kroeber. The relationship between these two men had been strained from the time that Kroeber had refused to support Driver’s effort to develop a quantitative approach to the study of Indian culture. Ibid. 85 United States Indian Claims Commission, Cross-examination of Harold Driver by Mr Gleason, California Indian Claims, dockets 31 to 37, 2200–301, USIcc -Nara . 86 Although Kroeber had strong reservations about quantitative techniques, they were being applied in anthropology and the other social sciences. In anthropology they were being used to provide comparative analyses and syntheses of the cultural element distribution data that had been collected during the first half of the twentieth century. George P. Murdock’s Human Relations Areas Files would be an example. 87 Ray, “Kroeber and the California Indian.” 88 Ray, “Anthropology, History, and Aboriginal Rights.” 89 Ethnohistory 2, no. 4 (1955). 90 Tax was committed to “applied anthropology” that helped people to solve problems in ways that enabled anthropologists to “learn something.” He termed it “action anthropology.” For a biography of Sol Tax, see http://chronicle.uchicago.edu/950119/tax.shtml. 91 In part, this was from an 18 April 1955 letter he had received from Mildred Wedel, who had complained to him about how she had been treated before the commission by opposing council and experts. Wedel had studied at Chicago, and Sol Tax was the newly selected department head. A copy of her letter is in box 1/3, gLover -IUa .

Notes to pages 63–4 | 267

92 Nancy Lurie took the minutes of the meeting. Nancy Lurie, Transcript of Joint Meeting of American Ethnological Society and Central States Anthropological Society, Bloomington, Indian, 5 May 1955, 1, copy in microfilm reel 158, frames 414–505, series 4, Indian Land Claims, 1904–62, Alfred Kroeber Papers, BaNc . 93 She served as the journal editor for volumes 1 through 11. Her protégé, Harold Hickerson, edited volumes 13 through 15. Both of these anthropologists also contributed to the journal. 94 In the summer of 1955, for example, she wrote Mildred Wedel and said, “I’m going to send you a copy. Please don’t judge from its contents that I write most of the journal; it just so happened that, being a new specialized publication, I was short on copy (very short!).” Erminie Wheeler-Voegelin to Dr Mildred Mott Wedel, 3 May 1955, box 1/3, gLover -IUa . 95 One complaint came from the Chicago law firm of Brown, Dashow, and Ziedman, which represented the Peoria tribe of Oklahoma (dockets 65, 66, 289, 313, and 388). They objected to the two-installment article written by Emily Blasingham entitled “The Depopulation of the Illinois Indians,” which had appeared in two parts in the summer and autumn issues of Ethnohistory in 1956. Blasingham was a project research associate and a journal editor. The lawyers charged that her article, “pretending to be objective, contains selective data.” Brown, Dashow, and Ziedman to Herbert Brownell, Attorney General of the United States, 3 June 1957, copy in box 1/3, gLover -IUa . The other complaint to the Justice Department was from a lawyer named Jay H. Hoag about an article Harold Hickerson had published in November 1956 entitled “The Genesis of a Trading Post Band: The Pembina Ojibwa,” which appeared in Ethnohistory. Hickerson’s article was based on research he and Wheeler-Voegelin had undertaken for the claim of the Red Lake and Pembina bands (docket 18a). 96 The articles she mentioned were Kroeber, “Nature of the LandHolding Group”; and Lurie, “Indian Claims Commission Act.” She noted that Omer Stewart had presented a paper to the International Congress of Anthropological and Ethnological Sciences on 29 September 1956 that was based on the evidence he had given in the claim of the Red Lake and Pembina bands. Erminie Wheeler-Voegelin to Brown, Dashow, and Ziedman, 13 June 1957; Erminie WheelerVoegelin to Herbert Brownell, Attorney General of the United States, 12 June 1957; and Harold Hickerson and Erminie Wheeler-Voegelin to

268 | Notes to pages 64–5

97

98 99

100

101

Herbert Brownell, Attorney General of the United States, 18 January 1957, all in box 1/3, gLover -IUa . Nancy Lurie, Transcript of Joint Meeting of American Ethnological Society and Central States Anthropological Society, Bloomington, Indiana, 5 May 1955, 1, copy in microfilm reel 158, frames 414–505, series 4, Indian Land Claims, 1904–62, Alfred Kroeber Papers, BaNc . Beals, Politics of Social Research. The resolution also had the proviso that the publication should protect the interests of the subjects of the research. Box 3/3, gLover -IUa . In 1955, following her separation and divorce, Wheeler-Voegelin proposed to move the project to Albuquerque, New Mexico, with an annual budget of $90,000, of which $65,000 would be for her salary, as well as those of an associate director, three research associates, and three graduate research assistants. Erminie Wheeler-Voegelin to Ralph Barney, 7 July 1955, box 1/3, gLover-IUa . The budget breakdown was as follows: (1) Beals received $50 per day for a maximum of 100 days; (2) a secretary-stenographer could be hired at $1.33 per hour for a maximum of $2,772; (3) Beals was authorized to hire an assistant director who held a doctorate for a maximum of $4,980 based on a rate of $2.39 per hour; (4) Beals was authorized to hire three “Grade 2” anthropology graduate student assistants for a maximum of $5,115 based on a rate of $1.97 per hour; and (5) Beals had the authority to hire an additional three graduate student assistants ranked “Grade 2” or lower in anthropology, biology, history, or geography as needed for a maximum of $2,387. Ralph Barney, “Memo: Proposed Budget from Ralph Barney [to Ralph Beals],” 10 January 1954, box 30, File Department of Justice Research Plains, Correspondence, Ralph Beals Papers, National Anthropology Archives, National Museum of Natural History, Smithsonian Institution, Washington, Dc . He authored or co-authored all of the Justice Department reports on these people. He was solo author of reports dealing with claims 18-b, 18-c, and 18-u. These claims concerned the following Chippewa (Ojibwa) bands: Minnesota Chippewa, White Earth, Leech Lake, Mille Lac, and Lake Superior. With Wheeler-Voegelin, he coauthored the report for 18-a concerning the Red Lake, Pembina, White Earth, and Minnesota Chippewa bands. He also authored reports for claims 360 and 362 of the Lower Sioux and the Sisseton and Wahpeton interveners.

Notes to pages 67–73 | 269

ChAPter three

1 Supreme Court of Canada, Calder et al. v. Attorney-General of British Columbia [1973] Scr 313, 314. 2 Ibid., 358. 3 Thomas Berger continued to play major roles in aboriginal rights litigation for First Nations and Métis. 4 Marius Barbeau also did pioneering research on First Nations of eastern Canada and the folk culture of Quebec. The Canadian Museum of History has a massive collection of his research notes. William Beynon was a Tsimshian hereditary chief of mixed ancestry. His mother, from who he inherited his title, was Nisga’a, and his Welsh father worked for the Hudson’s Bay Company. Beynon also worked for Franz Boas during the 1930s. 5 This First Nation was known as the Kitwancool until 1991. 6 He had begun working on the Tsimshian-speaking area with a Canada Council fellowship in 1958–59. This fellowship facilitated his organizing of the massive ethnographic field notes of Marius Barbeau and his assistant, William Beynon, concerning the region. These records are part of the Canadian Museum of History (formerly the Canadian Museum of Civilization) ethnographic collections in Ottawa. 7 Duff, ed., Histories, Territories and Laws. 8 Diamond Jenness’s 1943 study of the Bulkley Valley Wet’suet’en was probably the most notable exception. Jenness provided a lengthy discussion of this people’s house-territory system. See Jenness, Carrier Indians. 9 Calder et al. v. Attorney-General of British Columbia [1973] Scr 313, 360. Subsequently, the Nisga’a and Gitxsan did dispute their borders. 10 Duff, History of the Indians. This had been entered as exhibit 25. 11 Calder et al. v. Attorney-General of British Columbia [1973] Scr 313, 362. 12 Ibid., 365. 13 Ibid., 366. 14 Steward, “Theory and Application,” 300–1. 15 Drucker, Cultures of the North Pacific Coast. Drucker received his doctoral degree from the University of California, Berkeley in 1936. Kroeber had been his supervisor. 16 Garfield, Tsimshian and Their Arts. She had studied with Franz boas and Ruth Benedict.

270 | Notes to pages 73–8

17 Calder et al. v. Attorney-General of British Columbia [1973] Scr 313, 362–3. 18 Ibid., 367. 19 Steward, “Theory and Application,” 300–1. 20 Calder et al. v. Attorney-General of British Columbia [1973] Scr 313, 371. 21 Ibid., 372–3. 22 These elders included Frank Calder, James Gosnell, Morris Jacob Nyce, William David McKay, and Anthony Robinson. At the time, Calder was president of the Nishga Tribal Council, and the others were elected chief councillors of the constituent Nishga bands. Calder and Gosnell gave the most extensive testimony. 23 Calder et al. v. Attorney-General of British Columbia [1973] Scr 313, 333. 24 Ibid., 347. 25 Previously, the presumption was that Indians had a personal and usufructuary right to their lands that was dependent upon the good will of the British sovereign that had been granted in the Royal Proclamation of 1763. The authority for this was a ruling by the Judicial Committee of the Privy council known as St Catherine’s Milling and Lumber Co. v. The Queen (1888) 14 App. Cas. 46 (JcPc ). 26 They were Bora Laskin and Wishert Flett Spence. Prime Minister Pierre Elliott Trudeau appointed Laskin to the Supreme Court on 19 March 1970 and three years later elevated him to chief justice, a position he held until his death in 1984. Spence had been appointed to the Supreme Court in 1963. 27 Calder et al. v. Attorney-General of British Columbia [1973] Scr 313, 347. 28 Ibid., 346. From this perspective, Hall noted that the famous and still influential judgments of United States Supreme Court Chief Justice John Marshal were based in part on then current, but erroneous, notions about American Indians. For instance, in Johnson v. McIntosh (1823) 21 US 543, Marshal had said that “the tribes of Indians inhabiting this country were fierce savages whose occupation was war.” Hall stated, “we now know that that assessment was ill-founded.” 29 Government of Canada, Specific Claims in Canada. 30 Prime Minister John Diefenbaker struck such a committee in 1959. This committee reiterated the call for an independent claims commission. The cabinet approved a three-man commission, for which Bill c -130 included a provision, but failed to bring it forward before

Notes to pages 78–83 | 271

31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51

the fall of Diefenbaker’s government. Indian [Specific] Claims Commission, Final Report 1991–2009, 5–6. Ibid., 6–7. Ibid. Henderson and Ground, “Survey of Aboriginal Land Claims,” 211–12. Henderson and Ground worked for the Indian Claims Commission in 1993. At the time, the department was part of the Department of Indian Affairs and Northern Development. Presently, it is the Department of Aboriginal Affairs and Northern Development. Subsequently, he served as prime minister from 1993 to 2003. Henderson and Ground, “Survey of Aboriginal Land Claims,” 212. Government of Canada, “White Paper,” 20; Henderson and Ground, “Survey of Aboriginal Land Claims,” 197. Government of Canada, “White Paper,” 20. Although his response is remembered as the “Red Paper,” it was entitled “Citizens Plus.” In 1969 Cardinal published The Unjust Society, which articulated many of these ideas. He was made an honorary Saskatchewan Indian chief in 1980 and received the Aboriginal Order of Canada in 1985. Government of Canada, Specific Claims in Canada. Henderson and Ground, “Survey of Aboriginal Land Claims,” 212. These authors, among others, argued that the White Paper marked the beginning of the “modern era” of national aboriginal politics. This department was created in 1985 to replace the Department of Indian and Northern Affairs. Henderson and Ground, “Survey of Aboriginal Land Claims,” 212. In its 1998 audit of the comprehensive claims program, the Office of the Auditor General of Canada noted this problem. Auditor General of Canada, September 1998 Report, para. 14.25. Sawchuk, “In All Fairness,” 172. Ibid., 170, 173. This was Peter Usher, who did pioneering work on the economic geography of Inuit and First Nations economies. Re Southern Rhodesia 1919. Elliot, “Baker Lake,” 656. Mahoney also took note of the Privy Council’s ruling two years later in Amodu Tijani v. Southern Nigeria (Secretary) [1921] 2 ac 399, which upheld a title claim and noted the necessity of studying the history of the particular community and its usages in each case. For an

272 | Notes to pages 84–92

52 53 54 55 56 57 58 59

60 61 62 63 64 65 66 67 68

69

anthropological and legal analysis of Baker Lake, see Bell and Asch, “Challenging Assumptions.” Innis, Fur Trade in Canada. See Ray, “Introduction,” v–xix; and Ray and Freeman, “Give Us Good Measure.” These issues are surveyed in Ray, “Introduction,” xi–xxxii; and A. Tanner, “New Hunting Territory Debate.” A classic example of this genre is Spicer, ed., Perspectives. This work presented acculturation studies of six North America Indian groups by prominent anthropologists. These groupings were a creation of the Canadian Department of Indian Affairs. Prior to the lawsuit, they were known as the GitksanCarrier Tribal Council. They did not challenge the radical title of the Crown. The court acknowledged that traditional rights could exist in modern forms. In his judgment, McEachern stated that it took place between 1803 and 1858. McEachern, Delgamuukw v. Regina. In cases before the United States Indian Claims Commission, the relevant date was normally the time when a particular treaty had been signed. Ibid., 47–59. McEachern, Delgamuukw v. Regina, 49–51. The irony, of course, is that the traditional, pre-1980s scholarship relied on by the Crown and favoured by McEachern was based on the same methodology. Ray, “Early Economic History”; Ray, “Fur Trade History.” The research on oral history and documentary history was undertaken as separate projects. Experts did not collaborate so that their findings could stand independently. Jenness, Indians of Canada, 365. Goldman, “Alkatcho Carrier.” Steward had done research in the Stewart Lake area in 1940. Steward, “Recording Culture Change.” Ronaasen, Clemmer, and Rudden, “Rethinking Cultural Ecology,” 174–6. Likewise, he did not explore government and missionary archives for information about the long-running land claim disputes of the local indigenous people and about the ways those disputes influenced their reactions to government conservation schemes. Ray, “Fur Trade History.”

Notes to pages 93–8 | 273

70 Some goods, especially ironware, likely filtered into the region earlier from the Russians in Alaska. 71 Ray, “Creating the Image.” 72 I have reproduced the district reports of William Brown in Ray, Telling It to the Judge. It is important to note that the reports Brown had filed for the districts he had managed before 1821 make it clear that he emphasized local issues, which were most relevant to his performance as a fur trader. He had not focused on native land tenure practices previously because they had not had adverse consequences for him. 73 For an extended discussion, see Ray, “Creating the Image.” 74 Primarily, the Crown relied on the report of cultural geographer Sheila Robinson, “Protohistoric Developments in Gitksan and Wet’suet’en Territories.” 75 Kobrinsky, “Tsimshianization of the Carrier Indians”; Bishop, “Limiting Access to Limited Goods.” 76 For an excellent discussion of this debate, see A. Tanner, “New Hunting Territory Debate.” 77 McEachern, Delgamuukw v. Regina, ix. 78 Ibid., viii. 79 “Findings of Fact, 31 July 1959,” reproduced in Beals and Hester, California Indians, 426–7. It should be noted that the commission also rejected this thesis in other claims. 80 Delgamuukw v. British Columbia [1997] 3 Scr 1010. 81 Specifically, the court faulted the court of appeal for overturning the trial judge’s spatially expansive definition of “aboriginal title.” In paragraph 29 the Supreme Court of Canada noted, “for seminomadic Aboriginal groups like the Tsilhqot’in, the Court of Appeal’s approach results in small islands of title surrounded by larger territories where the group possesses only Aboriginal rights to engage in activities like hunting and trapping. By contrast, on the trial judge’s approach, the group would enjoy title to all the territory that their ancestors regularly and exclusively used at the time of assertion of European sovereignty.” The Supreme Court preferred the trial judge’s approach. Tsilhqot’in Nation v. British Columbia 2014 Scc 44, paras 29 and 38. 82 Of these twelve, six were part of an umbrella claim of fourteen Yukon Territory First Nations. Auditor General of Canada, September 1998 Report, para. 14.11. According to the report, as of June 1998, seventy

274 | Notes to pages 98–100

83

84 85 86 87

88 89

90 91

92 93 94

claims were in various stages of negotiation, or with “accepted statements of intent to negotiate,” and 123 “bands” had registered their intention to proceed (paras 14.1 and 14.12). This agreement involved the federal government and the Council for Yukon Indians. The accord came into force in 1992, when four First Nations reached settlements. Four years later, the number rose to six. By 2005 ten of the fourteen First Nations covered by the agreement had done so. First Nations Summit, “About the First Nations Summit,” http://www.fns.bc.ca/about/about.htm. British Columbia Treaty Commission, Annual Report 2013. “First Nations, Province Seek a New Way to Make Deals,” Globe and Mail, 10 February 2015, S 1. In 1984 the Supreme Court of Canada established the Crown’s fiduciary obligation to First Nations in Guerin v. Regina [1984] 2 Scr 335. In 1990 the decision of the Supreme Court in Regina v. Sparrow [1990] 1 Scr 1075 expanded on this concept. Also important were decisions holding that treaties and statutes related to Indians should be liberally construed, with doubtful expressions being resolved in favour of the Indians (Nowegijick v. Regina [1983] 1 Scr 29), and that pre-Confederation (1867) treaties of First Nations with the Crown remained in force (Simon v. Regina [1985] 2 Scr 387). Indian [Specific] Claims Commission, Annual Report 1991–1992 to 1993–1994, 8. Chiefs Committee on Claims, “First Nation’s Submission on Claims,” 14 December 1990, recommendation 15. This report is included in Indian [Specific] Claims Commission, ICC Proceedings, 1994, 187– 201. This policy paper is reproduced in Indian [Specific] Claims Commission, ICC Proceedings, 1994, 171–86. Ibid., 179–81. In addition to claims arising from unfulfilled lawful obligations, the document stated that the government would also consider cases arising from its failure to provide compensation for reserve lands taken or damaged and cases of fraud involving the acquisition or disposition of Indian reserve land by government agents. Indian [Specific] Claims Commission, ICC Proceedings, 1994, 184. Ibid. For example, in 1985 the court had held that a treaty signed by the Micmac of New Brunswick in 1752, which protected their hunting rights, remained in force. Simon v. Regina [1985] 2 Scr 387.

Notes to pages 100–4 | 275

95 Indian [Specific] Claims Commission, Annual Report 1991–1992 to 1993–1994, 9. 96 Ibid. 97 Ibid., 16. 98 This was Pauline Browes, who in 1993 served as minister of Indian affairs in the short-lived Conservative government of Prime Minister Kim Campbell. 99 The commission commenced operations under the leadership of Harry LaForme. He is an Anishinabe from the New Credit First Nation of southern Ontario. Previously, he had served as Indian commissioner of Ontario (1989–91) and as co-chair of the Chiefs Committee on Claims of the Assembly of First Nations. Subsequently, he was appointed as a justice of the Ontario Court. 100 Indian [Specific] Claims Commission, Annual Report 1991–1992 to 1993–1994, 18. 101 The Indian Claims Commission agreed to proceed with this claim on 31 October 1992. It commissioned one expert to research the historical context of Treaties 6 and 10 and another to investigate the agricultural potential of the reserve lands in question for purposes of valuation. Indian [Specific] Claims Commission, ICC Proceedings, 1994, 9. 102 Indian [Specific] Claims Commission, “Cold Lake and Canoe Lake,” 22–3. 103 Indian [Specific] Claims Commission, Annual Report 1991–1992 to 1993–1994, 19. 104 Cecil Chabot, personal communication with author, 19 October 2013. Mr Chabot was a member of the Indian Claims Commission research staff from 2001 to 2006 and attended many hearings during that time. 105 Indian [Specific] Claims Commission, Annual Report 1991–1992 to 1993–1994, 21. 106 Indian [Specific] Claims Commission, Annual Report 2007–2008, 70–80. 107 Ibid., 85–91. 108 Ibid., 42. 109 An example of a justice willing to accept this evidence is British Columbia Supreme Court Justice David Vickers in Tsilhqot’in Nation v. British Columbia 2007 BcSc 1700, Victoria Registry 90-0913. One who was reluctant to do so was Federal Court of Canada Justice Max Teitelbaum in Victor Buffalo v. Canada (2005) Fc 1622. 110 Cecil Chabot, personal communication with author, 19 October 2013.

276 | Notes to pages 105–10

ChAPter four

1 Boas’s approach was termed “historical particularism.” 2 This perspective is remembered as the “structural-functional” approach. The idea was that the function served by a particular trait in the whole of a culture accounted for its existence. Therefore, it was not necessary to search for historical explanations. 3 Peterson, “Natural and Cultural Areas.” 4 Hiatt provides an excellent history of the use of the term “horde” in his Arguments about Aborigines, 20–6. 5 Reeves, “Traditional Aboriginal Owners.” 6 Hiatt, Arguments about Aborigines, 20–6. 7 See Hiatt, “Local Organization”; and Hiatt, “Lost Horde.” His latter article was a sharp attack on Radcliffe-Brown’s model. 8 For a biography of Berndt, see Robert Tonkinson, “Berndt, Robert Murray (1916–1990),” Australian Dictionary of Biography, 2007, http://adb.anu.edu.au/biography/berndt-ronald-murray-12202. 9 He studied anthropology at the University of Sydney and the London School of Economics. Beginning in the 1950s, he campaigned to educate Australians about Aborigines and their cultures. He is best remembered for his 1968 Boyer Lectures, in which he coined the phrase “the great Australian Silence” in reference to the lack of public discussion about aboriginal history and culture. For a brief biography of Stanner and a listing of his papers that are available at the University of Melbourne, prepared by Ann McCarthy and Gavan McCarthy, see http://www.austehc.unimelb.edu.au/guides/barw/BARS0019.htm. 10 Hiatt, “Traditional Land Tenure,” 14. 11 From 1953 to 1979 Mervyn Meggitt undertook research among the Warlpiri initially as a graduate student at the University of Sydney and later as a professor of anthropology at City University of New York. From the 1920s Adolphus Peter Elkin (1891–1979) championed the rights of Aborigines. Beginning in the early 1930s, after RadcliffeBrown left for the United States, he was the leading figure in Australian anthropology. Similar to Radcliffe-Brown, he was functionalist but also believed in the importance of diffusion and evolution as forces for culture change. Ronald M. Berndt was a social anthropologist who, with his wife, Catherine Berndt, studied the Ooldea of the Great Victoria Desert of South Australia (1941), groups at cattle stations in the Northern Territory (1944–46), and the Balgo, who lived

Notes to pages 110–13 | 277

12 13 14 15 16

17 18

19 20

in a small desert community in Western Australia (1957–81). He promoted the legal protection of the sacred sites of Aborigines. L.R. Hiatt to F.X. Purcell, Solicitor, University of Sydney, 23 August 1969, box 3, item Q , Woodward Papers, University of Melbourne Archives (WP -UMa ). Ibid. Ibid. Sir Edward Woodward, “Submission [No. 47] to the Inquiry into the Reeves Report on the Aboriginal Land Rights (Northern Territory) Act,” n.d., para. 12, WP -UMa . At the Reeves Inquiry, Woodward stated, “Profs Stanner and Berndt accepted the distinction between the land-owning clan and the landusing band, an extended grouping of family and friends which lived together while hunting and gathering food, but which could be added to or subtracted from at any time by new arrivals or departures. These comparatively small bands always consisted of members of more than one clan – necessarily so because husbands and their wives had to come from different clans.” Woodward added, “However, in Prof Stanner’s opinion, which I accepted, there would always be an identifiable segment of one clan at the core of each band, and the band would spend some, but not all, of its time on the land of that clan.” According to Woodward, the main piece of Stanner’s evidence that the court rejected was his idea that each band had a core from a particular clan. Ibid., paras 18 and 19. Anthropologist Nancy Williams has written an excellent account of the trial and its significance for aboriginal people. Williams, Yolngu and Their Land. Reflecting on the judgment afterward, Hiatt remarked that the Yolngu had faced two formidable cultural obstacles: (1) they had an ethic of generosity regarding the land and its resources, and (2) individuals had spiritual bonds to the land. The ethic of sharing meant that they could not meet the exclusivity standard the court imposed to prove title. The strong spiritual ties that individuals had to the land precluded individuals, or the groups to which they belonged, from alienating it. Hiatt, “Traditional Land Tenure.” Woodward, “Submission [No. 47] to the Inquiry,” para. 11. Nancy Williams made this point in her Yolngu and Their Land, 4–5. Hiatt made a very similar observation in his “Submission [No. 55] to the House of Representatives Select Committee on Aboriginal and Torres Strait Islander Affairs: The Reeves Report” (1999).

278 | Notes to pages 113–18

21 Maddock, Anthropology, Law, 123. 22 Sometimes, the term “band” was applied to this group. 23 Ibid. For example, the Kariera live in an area that receives only 100 millimetres of rain per year, whereas the territory of the Yolngu receives over 600 millimetres per year. 24 Hiatt, “Traditional Land Tenure,” 14. 25 Woodward, Peterson, and Charlesworth, “Royal Commission,” 4. This is an unpublished and undated transcript given to the author by Nicolas Peterson. Peterson indicates in a marginal note that the discussion took place in the early 1990s prior to the Mabo 2 ruling of 1992. Remarks in the transcript affirm this approximate date. 26 Woodward, “Submission [No. 47] to the Inquiry,” para. 21. 27 Ibid., para. 23. 28 Ibid. 29 Woodward, Peterson, and Charlesworth, “Royal Commission,” 7. 30 His areas of specialty included the philosophy of religion and studies of Aborigines’ religions. 31 Ibid., 5. 32 Ibid. 33 Ibid., 7. 34 Ibid., emphasis underlined in original. 35 Ibid. 36 “Milirrpum v Nabalco Pty Ltd,” Wikipedia, http://en.wikipedia.org/ wiki/Milirrpum_v_Nabalco_Pty_Ltd. 37 Woodward, Peterson, and Charlesworth, “Royal Commission,” 10. The other two members of the department were senior public servant Barrie Dexter and retired governor of the Australian Reserve Bank Dr Herbert Cole Coombs. 38 Sir Edward Woodward, interview with author, 22 October 2002. 39 Negotiations dragged on until 1993, when an Umbrella Final Agreement was signed. 40 Subsequently, the Land Rights (Northern Territory) Act, which was fashioned after Woodward’s report, banned cash settlements. Toohey commented on this restriction. Woodward had observed that in the United States cash settlements had not had a positive impact on Indian tribes. Sir Edward Woodward, interview with author, 22 October 2002. 41 Ibid. 42 Ibid.

Notes to pages 119–25 | 279

43 Ibid. According to Nicolas Peterson, the idea originated from his visit to the Yukon. As noted, the various groups had come together in a brotherhood to formulate and promote their collective claims. Nicolas Peterson, personal communication with author, May 2002. 44 Woodward explained that the closing phase took place in Canberra so that counsel could have ready access to all of the records and law reports that it needed. Sir Edward Woodward, interview with author, 22 October 2002. 45 Ibid. 46 Edward Woodward, “The Facts 1: Aborigines and the Land,” para. 27, Report 1, 1973, accession no. 102/26, box 2 of 3, item 31, WP -UMa . 47 Ibid. 48 Ibid., para. 28. 49 Ibid., para. 33. 50 Ibid., para. 34. 51 Ibid., paras 34–5. 52 Ibid., para. 29. 53 Ibid., para. 30. 54 Ibid., para. 37. 55 Ibid., para. 41. 56 Ibid., para. 42. 57 Ibid., para. 44. 58 Ibid., para. 45. 59 Ibid., para. 46. 60 Ibid. 61 Ibid. When doing so, he noted that Radcliffe-Brown referred to the clan as a “local group” and later as a “horde,” whereas Stanner applied the term “patrilineal descent group.” Berndt’s usage was less clear. He differentiated the clan from the “local descent” group because the former did not necessarily infer actual genealogical ties but was a classificatory group that often had a mythical common ancestor, whereas the latter expression does signify such linkages. See also Maddock, Anthropology, Law, 122. 62 Maddock noted that this wording in the act was somewhat surprising given that Woodward referred to the “local descent group” only once in his commissioner’s report but used the term “clan” fifty-four times. According to Maddock, the latter terminology was not in common usage by Australian anthropologists at the time. He thought that the wording of the act reflected Woodward’s use of the term “clan” and

280 | Notes to pages 125–31

63 64 65 66 67

68 69 70 71 72 73 74 75

76 77 78 79 80 81 82 83 84

“local descent group” as though they were interchangeable; Maddock thought this confusion likely arose from Berndt’s usage. Maddock, Anthropology, Law, 122–3. Edward Woodward, interview with author, 22 October 2002. Toohey, Borroloola Land Claim, 3. Examples of the latter would be cattlemen and mining companies with leases on Crown land. Ibid. Ibid. Toohey indicated that the Ranger Enquiry (1975–79) was his precedent. This enquiry addressed issues that arose when the Australian Atomic Energy Commission joined with Peko Mines and Electrolytic Zinc Company of Australasia to form Ranger Uranium Mines in order to exploit a uranium deposit in the Alligator Rivers Region of the Northern Territory. Fox, Kelleher, and Kerr, Ranger Uranium Environmental Inquiry. Toohey, Borroloola Land Claim, 12. Toohey, Yingawunarri. Ibid., para. 20, 4. Ibid. Ibid., paras 21 and 22, 4. Toohey, Borroloola Land Claim, para. 27, 7. Ibid., para. 39, 9. John Reeves noted that the “corporate groups” identified by anthropologists were too small to survive over the long term. The overlapping rights and responsibilities that were common to local descent groups addressed this problem. Reeves, Building Land Rights, 145. Reeves had been commissioned to review the act. Toohey, Land Claim by Warlpiri (1996), para. 28, 4. Toohey, Report by the Aboriginal Land Commissioner, 20. Ibid.; Toohey, Land Claim by Warlpiri (1996). Stanner was one of the experts in this case, as was Nicolas Peterson. It concerned an area of 1,963 square kilometres associated with the Utopia Station Pastoral Lease. It is located 200 kilometres northeast of Alice Springs. This claim concerned a pastoral lease. Toohey, Lander Warlpiri Anmatjirra. Toohey, Limmen Bight Claim. Toohey, Uluru (Ayers Rock). Toohey, Report by the Aboriginal Land Commissioner, para. 20, 3. Ibid., para. 21, 3–4.

Notes to pages 131–6 | 281

85 Hiatt, “Traditional Land Tenure,” 14. He added that the research for some twenty doctoral theses completed between 1971 and 1980 challenged the older Radcliffe-Brown model. This new generation of anthroplogists included Nicolas Peterson, John Bern, and Peter Sutton. 86 Ibid., 31. 87 See Rose, “Women and Land Claims.” 88 Maddock, “Warlpiri Land Tenure,” 85. 89 He argued that the law and anthropology had major difficulty finding common ground in the use of basic concepts and terms. Steward, “Theory and Application,” 292. 90 He made his comment in reference to the works on this group by Mervyn Meggit in 1969 and 1972, Nicolas Peterson in 1969, and Nancy Munn in 1973. Maddock, “Warlpiri Land Tenure,” 89. 91 Rigsby, “Survey of Property Theory.” 92 He noted that anthropologist Nancy Munn was one of the scholars who had suggested “kirda” meant “owner.” But Maddock claimed that the Warlpiri rendered it in English as “boss.” Maddock, “Warlpiri Land Tenure,” 90. 93 Bell, Daughters of the Dreaming, 139. 94 Toohey, Claim by the Warlpiri (1979). 95 Ibid., para. 27. 96 Peterson, Wild, and McConvell, Claim to Areas. 97 Toohey, Claim by the Warlpiri (1979), para. 30. 98 N. Williams, Yolngu and Their Land. 99 Reynolds, ed., Aborigines and Settlers. 100 Reynolds, Law of the Land. 101 Mabo v. Queensland (No. 2) (“Mabo case”) [1992] hca 23; (1992) 175 cLr 1 (3 June 1992). 102 It created shock waves in Canada too. I was sitting in the back of Court Room 53 in the British Columbia Supreme Court building in Vancouver listening to testimony in the Delgamuukw trial when a lawyer for the Crown showed me a fax of the Mabo 2 ruling he had just received. He expressed his belief that the ruling would have a positive impact for title claimants in Canada. 103 For an excellent discussion for the layperson of the implications of the Native Title Act and the Wik case, see Human Rights Council of Australia, “Native Title.” A description of the National Native Title Tribunal’s test procedures for native title claim registration is available at http://www.nntt.gov.au/Policy%20and%20Procedures/ Registration%20Test%20Procedures.pdf.

282 | Notes to pages 137–44

104 Bruce Rigsby, Department of Anthropology and Sociology, University of Queensland, personal communication with author, May 2001. 105 Finlayson, “Sustaining Memories,” 89–90. 106 Attwood, “Mabo, Australia,” 101–7. 107 Stanner first put forward this notion in 1958 but popularized it in his famous Australian Broadcasting Commission Boyer Lectures of 1968 titled After the Dreaming: Black and White Australians – An Anthropologist’s View. 108 Attwood, “Mabo, Australia,” 100–16. 109 Macintyre and Clark, History Wars, 45. 110 Windschuttle’s chief works include The Fabrication of Aboriginal History, vol. 1, Van Diemen’s Land, 1803–47; The White Australia Policy; and The Fabrication of Aboriginal History, vol. 3, The Stolen Generations, 1881–2008. 111 Sharp, “History and Sovereignty,” 160; Sharp, “Recent Juridical and Constitutional Histories,” 31–5. 112 Attwood, “Law of the Land?” 113 The guidelines regarding the rules of evidence that the Federal Court was required to follow are included in section 82 (1 and 2) of the Native Title Act of 1998, http://www.comlaw.gov.au/Details/ C2004A00354. 114 In Canada, as in Australia and New Zealand, there has been an ongoing debate about the weight to be given to oral and documentary sources in aboriginal and treaty rights litigation. See Miller, Oral History on Trial; and Ray, Telling It to the Judge. 115 Members of the Yorta Yorta Aboriginal Community v. Victoria & Ors [1998] Fca 1606 (18 December 1998). 116 Ibid. ChAPter five

1 Waitangi Tribunal, report 6, Motunui-Waitara, section 10.1. 2 In the landmark case Wi Parata v. Bishop of Wellington [1877] 3 NZ Jur (NS ) 72, Supreme Court Justice James Prendergast ruled that the Treaty of Waitangi was a legal nullity because it had been signed by “primitive barbarians.” This decision set a precedent for subsequent treaty cases. See Orange, Treaty of Waitangi, 186–7. For an extended discussion, see D. Williams, Simple Nullity? 3 It operated under its own act and under the Commission of Inquiry Act of 1908.

Notes to pages 144–7 | 283

4 Michael Belgrave notes, however, that virtually every case that came before the tribunal after 1985 involved instances that previously had been the subject of court proceedings and commissions of inquiry. Belgrave, Historical Frictions, 3. 5 Hamer, “Quarter-Century of the Waitangi Tribunal,” 6. 6 Byrnes, Waitangi Tribunal, 34–5. Claudia Orange wrote the pathbreaking history of the treaty in 1987. Orange, Treaty of Waitangi. 7 Belgrave, Historical Frictions, 48–52. Belgrave was referring to Claudia Orange’s The Treaty of Waitangi (1987). The publication was based on her doctoral dissertation, which she completed in 1984. 8 The texts of the act and the treaty are available at http://www.legislation.govt.nz/act/public/1975/0114/latest/ DLM435368.html. 9 Initially, the tribunal was comprised of three members and was later expanded to seven. The revised act allowed for an increase in the size of the tribunal, and it numbered seventeen members in 1988. Hamer, “Quarter-Century of the Waitangi Tribunal,” 6. 10 Since 1986 eight historians have been appointed but not concurrently. Belgrave, Historical Frictions, 14–15. 11 Orange, Treaty of Waitangi, 1. 12 Waitangi Tribunal, report 6, Motunui-Waitara, section 10.1. In recalling this aspect of the history of the Treaty of Waitangi, the tribunal relied on Ross, “Te Tiriti of Waitangi,” 129. According to Ruth Ross, colonial officials forwarded five different English drafts to Sydney or London. There were differences between them. 13 The two men were Church Missionary Society minister Henry Williams and his son Edward. According to Orange, Edward Williams had only a spoken knowledge of a regional dialect (Ngaphui) of Maori. Orange, Treaty of Waitangi, 39–40. It should also be noted that the Williams family had acquired land from the Maori before 1840. Ibid., 42–3. 14 Ibid. 15 Section 8 (1) of the act states that the Waitangi Tribunal is a commission of inquiry according to the terms of the Commissions of Inquiry Act of 1908 and is subject to the provisions of this legislation. 16 Lawyer Geoff Melvin has noted that legal orthodoxy holds that the “Crown” refers to the executive branch of the central government, not to the legislative or judicial branches. Likewise, local governments are excluded. Yet claims often concern Native Land Court judgments and those of local authorities. Melvin considers the ways that the tribunal

284 | Notes to pages 148–54

17 18 19 20 21 22 23 24 25

26 27 28 29

30

31 32 33 34 35 36 37 38

has managed to circumvent these limitations. Melvin, “Jurisdiction of the Waitangi Tribunal,” 21–3. Section 5 (2) of the Waitangi Tribunal Act further stipulates that only members of the tribunal who have been on the High Court for at least seven years can serve as presiding officers. Hamer, “Quarter-Century of the Waitangi Tribunal,” 4. Ibid. Waitangi Tribunal, report 22, Muriwhenua Fishing, “Summary,” section 1.5. Ibid., section 1.8.1. Ibid. Ibid. This claim was filed by the Ngai Tahu Maori Trust Board. This was an umbrella claim comprised of nine parts, which the Ngai Tahu referred to as the “Nine Tall Trees.” They concerned eight different land claims and a general petition concerning their food resources. Waitangi Tribunal, report 27, Ngai Tahu. Hamer, “Quarter-Century of the Waitangi Tribunal,” 7. Waitangi Tribunal, Guide to Practice and Procedure, section 5.8. Waitangi Tribunal, report 22, Muriwhenua Fishing, section 1.8.3. Former tribunal member Dr Ann Parsonson told me that the tribunal wanted to avoid the litigious approach of the United States Indian Claims Commission. Ann Parsonson, interview with author, December 2001. The Waitangi Tribunal Act of 1975 specified that the New Zealand Evidence Act of 1908 applied. In 2007 this was amended to provide that the revised Evidence Act of 2006 applied. Waitangi Tribunal Act, schedule 2, section 6 (3); New Zealand Evidence Act (2006), schedule 2, part 1. They filed their claim in 1986, and the tribunal issued its report in 1988. Waitangi Tribunal, report 22, Muriwhenua Fishing. Waitangi Tribunal, report 45, Muriwhenua Land, section 1.8.2. Ibid., section 1.8.3. Waitangi Tribunal, report 27, Ngai Tahu, section 1.6.7, 38. In ibid., section 1.6.9, 39, the tribunal quoted the New Zealand Court of Appeal’s judgment in Te Runanga o Muriwhenua v. the Attorney General [1990] 2 NZLr 641. Ibid. Belgrave, Historical Frictions, 10. Waitangi Tribunal, Guide to Practice and Procedure, section 5.10.

Notes to pages 155–60 | 285

39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56

57 58 59 60

61

Ibid. Ibid. I attended the hearings held in Gisborne from 10–14 December 2001. Quoted in Boast, “Waitangi Tribunal Procedure,” 59. I make this observation based on having attended the session in Gisborne and from my experience as an expert witness in Canadian rights litigation. Boast, “Waitangi Tribunal Procedure,” 53–66. There were over 1,200 reports at the end of 2013. At least thirty of these are substantial historical reports according to Belgrave, Historical Frictions, 1. This claim concerned the adverse affects of the discharge of sewage onto or near the claimants’ traditional fishing grounds. The Treaty of Waitangi guaranteed Crown protection of traditional fisheries. McNair, Law of Treaties. Waitangi Tribunal, report 6, Motunui-Waitara, section 10.1. Ibid. In making this argument, the Department cited Jones v. Meehan (1899) 175 US 1. Waitangi Tribunal, report 6, Motunui-Waitara, section 10.1. Waitangi Tribunal, report 9, Orakei, section 11.3.1. See also Hamer, “Quarter-Century of the Waitangi Tribunal,” 6 Here, the tribunal was quoting McNair, Law of Treaties, 365, emphasis added. United States v. State of Washington (1974) 384 F. Supp. 312; Waitangi Tribunal, report 45, Muriwhenua Land, section 9.2.2. Emphasis added. For a brief history of this case, see http://www.historylink.org/ index.cfm?DisplayPage=output.cfm&File_Id=5282. The tribunal also discusses it at length. Waitangi Tribunal, report 45, Muriwhenua Land, section 9.2.2. Regina v. Sparrow [1990] 1 Scr 1075. New Zealand Maori Council v. Attorney-General ca 54/87 [1987] NZca 60; [1987] 1 NZLr 641; (1987) 6 NZar 353 (29 June 1987). Ibid., 2. Additionally, the court ruled that the Crown should remedy past grievances and that, if the Waitangi Tribunal finds merit in a claim and recommends redress, the Crown should grant some form of redress unless there are reasonable grounds for withholding it. Waitangi Tribunal, report 6, Motunui-Waitara, section 10.2 (a).

286 | Notes to pages 160–2

62 63 64 65 66 67

68 69

70 71 72

73 74 75

Ibid. This is the basic unit of traditional Maori society. Waitangi Tribunal, report 22, Muriwhenua Fishing, 187. Waitangi Tribunal, report 262, Ko Aotearoa Tēnei, sections 1.5.1, 3.3, 3.4, 4.1.2; Ward, National Overview Report, 3. The latter interest included the continuing exercise of “the highest chieftainship over all of their treasured things.” For the Maori, this means local autonomy, or self-government. The tribunal first expressed the notion of a partnership in its Manukau report (1985) and subsequently elaborated on the idea in the Te Roroa (1986), Orakei (1987), and Ngai Tahu sea fisheries (1992) reports. Waitangi Tribunal, report 8, Manukau; report 11, Te Reo; report 9, Orakei; and report 27a, Ngai Tahu Sea Fisheries. See also Ward, National Overview Report, 484–6. See, for instance, Waitangi Tribunal, report 9, Orakei, 37; Ward, National Overview Report, 1–4; and Hayward, “Appendix.” Waitangi Tribunal, report 262, Ko Aotearoa Tēnei, 23. See also Hayward, “Appendix,” 488–9. Janine Hayward notes that the tribunal fully developed the idea that the Crown was obliged to actively protect Maori rights after the decision of the Appeal Court of New Zealand in New Zealand Maori Council v. Attorney-General ca 54/87 [1987] NZca 60; [1987] 1 NZLr 641; (1987) 6 NZar 353 (29 June 1987). Janine Hayward considers the political implications for New Zealand of the duty to actively protect Maori rights, especially the rights of tino rangatiratanga and taonga katoa. Hayward, Guaranteed. Hayward, National Overview Report, 490. Political scientist Andrew Sharp notes that the tribunal developed an expansive understanding of the meaning of “taonga katoa” beginning in 1978 in a series of reports: Waitangi Tribunal, report 2, Waiau Power Station; report 4, Kaituna River; report 6, Motunui-Waitara; report 8, Manukau; and report 11, Te Reo. By the latter report, the concept had been extended to include Maori cultural and spiritual values, equality in education, and protection of the Maori language. Sharp, Justice and the Maori, 134. Hayward, National Overview Report, 486; Sharp, Justice and the Maori, 134–5. Captain William Hobson (1792–1842) was the first governor of New Zealand and one of the negotiators of the Treaty of Waitangi. Sharp cited Waitangi Tribunal, report 11, Teo Reo, para. 4.3.6, 22.

Notes to pages 162–71 | 287

76 Waitangi Tribunal, report 26, Allocation of Radio Frequencies, section 5.3, para. 28; section 8.3. 77 Ibid., section 8.4. 78 Oliver, “Future behind Us,” 9. 79 Oliver notes that this was the stated objective of tribunal chairman Sir Edward Taihakurei Durie (1980–98). Ibid., 10. 80 Waitangi Tribunal, report 143, Taranaki. 81 Ibid., section 1.5. 82 Ibid., section 1.4; Oliver, “Future behind Us,” 14. 83 Waitangi Tribunal, report 143, Taranaki, section 1.3. 84 Oliver, “Future behind Us,” 15; Waitangi Tribunal, report 143, Taranaki, section 2.1. 85 Oliver, “Future behind Us,” 15. 86 Waitangi Tribunal, report 45, Muriwhenua Land. 87 This was W.B. White, who is the subject of frequent commentary and criticism in the 445-page report. 88 Oliver, “Future behind Us,” 19–20. 89 He had presented an expert report during the latter hearing for the Crown Forestry Rental Trust. Oliver, Looking for Phoenix, 157. 90 Ibid., 7. 91 Waitangi Tribunal, report 45, Muriwhenua Land, 24. 92 Ibid., 2. 93 Ibid., 2–3. 94 Waitangi Tribunal, report 45, Muriwhenua Land, 3. 95 Oliver, Looking for Phoenix, 160–2. 96 Philipson, “Talking and Writing History,” 46–7. 97 Ibid., 47. 98 Ibid., 44. 99 Ibid., 51. 100 Byrnes, Waitangi Tribunal, 122. 101 Belgrave, Historical Frictions, 3. 102 Ibid., 5–7. 103 He cites the Muriwhenua land claim report, the Ngai Tahu report, the Taranaki report, and the Chatham Islands report. Waitangi Tribunal, report 45, Muriwhenua Land; report 27, Ngai Tahu; report 143, Taranaki; and report 64, Chatham Islands. 104 Belgrave, Historical Frictions, 125–35. 105 McAloon, “By Which Standards?” 198–200. 106 Ibid., 200.

288 | Notes to pages 171–6

107 Ibid., 195. 108 Ibid., 202. 109 Ibid. ChAPter six

1 Under apartheid, “Blacks” included various indigenous black South African groups. “Cape Colored” populations were of mixed “Asian” (many of slave ancestry) and African descent. 2 Crais, “Vacant Land,” 266. 3 Theal, South Africa. See also Crais, “Vacant Land,” 267. 4 Crais, “Vacant Land,” 267. 5 George Cory’s work was largely restricted to the eastern part of the Northern Cape area. 6 Cory, Rise of South Africa. 7 E. Walker, Frontier Tradition. 8 Wright and Saunders, “Writing of the History of Canada,” 403. 9 Macmillan, Cape Colour Question; Macmillan, Bantu, Boer and Briton. Previously, he had pioneered the writing of the country’s history from a social history perspective. Macmillan, South African Agrarian Problem. 10 For a discussion of his work, see Elphick, “Historiography and the Future,” 168. See also Guy, Destruction of the Zulu Kingdom; and Guy, Remembering the Rebellion. 11 An example is Monica Wilson’s influential work Reaction to Conquest: Effects of Contact with Europeans on the Pondo of South Africa (1936). 12 See, as an example, Cocks, “Max Gluckman.” 13 Wilson and Thompson, eds, Oxford History of South Africa. 14 Kuper’s chapter focused on African nationalism in South Africa. The acknowledgment page at the front of the Oxford history states that Kuper’s contribution was excluded from the South African edition of the work because it violated South African law by making references to books and articles about African nationalism, policy statements of the banned African National Congress, and statements by African leaders. 15 C. Walker, Land-Marked, 2. 16 Platzky and C. Walker, Surplus People, xxii–xxi; Cherryl Walker, personal communication with author, 28 July 2015. In 1983 the gov-

Notes to pages 177–83 | 289

17 18

19 20

21 22 23

24 25 26 27 28 29 30 31 32 33 34 35 36 37 38

ernment instituted its plan, creating the township of Khayelitsha (a Xhosa word meaning “new home”). Platzky and C. Walker, Surplus People, xxii–xxiii. Hilda was a founding member of the Natal branch of the Liberal Party, and her husband, Leo, was chairman. The Kupers immigrated to the United States to take up positions at the University of California, Los Angeles in the early 1960s. Gordon, “Apartheid’s Anthropologists,” 535–6. Probably, the most notable exception is Werner Eiselen, who founded the volkekunde school at Stellenbosch beginning in 1926. He believed that behaviour was the result of culture, not race. From the 1940s onward, the volkekunde school became more concerned with raceculture. Ibid., 540, 543. Ibid., 538. Ibid., 545. For discussions about the development of this perspective and its deployment in support of apartheid, see ibid.; and Pugach, “Carl Meinhof.” Nicolaas Jacobus van Warmelo was a government ethnologist whose major work, A Preliminary Survey of the Bantu Tribes of South Africa (1935), was a basic reference that officials used in determining tribal distributions. Chapter 3a of the Restitution Land Rights Act provided for this possibility. C. Walker, Land-Marked. Ibid., 7. Ibid. Ibid., 12–15, 133. C. Walker, “Finite Land,” 2. Hall, “Reconciling the Past,” 21. Ibid., 22. C. Walker, “Finite Land,” 2. Cherryl Walker, interview with author, 7 February and 3 October 2012; Maphoto, “Progress Report.” See also C. Walker, Land-Marked, 18. C. Walker, “Finite Land,” 4. Ibid. For details, see http://www.nisgaanation.ca/treaty-documents. Robins, “Ngo s, ‘Bushmen,’ and Double Vision,” 847–8. An example would be the battles in the area of the Limpopo and Fish Rivers. Thompson, History of South Africa, 79–86.

290 | Notes to pages 183–91

39 Robins, “Land Struggles,” 69. 40 Emphasis added. 41 Vail, ed., Creation of Tribalism. Subsequently, one of the contributors, an English historian of Zimbabwe, Terrence Ranger, co-edited with Eric Hobsbawm the international landmark The Invention of Tradition (1983). 42 Fay, “Property, Subjection and Protected Areas,” 28–9. 43 See Robins, “Land Struggles”; Robins, “Whose Modernity?”; Robins and van der Waal, “‘Model Tribes’?”; and Ellis, “≠khomani San Land Claim.” 44 An example, cited by Robins, was the land claim of the Mashpee tribe of Cape Cod, Massachusetts. For a discussion of their case, see Clifford, Predicament of Culture. 45 Platzky and C. Walker, Surplus People, 88. 46 Ibid., 111. 47 Worden, Making of Modern South Africa, 121–2. 48 It should be mentioned that most of the compensation paid to individuals has been for urban claims. One of the largest urban claims was that of Cato Manor in Durban, South Africa. Although Cato Manor was perhaps not as notorious as District Six in Cape Town, 5,734 claims for Cato Manor had been filed with the land claims commission. For a discussion of this claim, see C. Walker, Land-Marked, 145–73. 49 Many of the 54,000 claims filed by the end of 1998 related to conservation lands. Steenkamp and Uhr, “Makuleke Land Claim,” 3. 50 The Mkhuze Game Preserve is situated on part of the western boundary of the park. 51 Guy, Destruction of the Zulu Kingdom. See also Guy, “Gender Oppression.” 52 C. Walker, Land-Marked, 260n4. 53 Ibid., 115. 54 Ibid., 112. 55 Apparently, Mabodla was the leader’s name when they moved into the area. Bryant stated that he was unsure whether “Sokana was Mabodla’s other name, or that of his grandfather, or that perchance of his son, or even of some superior officer.” Bryant, Olden Times, 105. 56 The intention was eventually to make these quasi-independent states into “nationals” rather than into citizens of South Africa. 57 According to Walker, civil servants working for the Department of Land Affairs who had worked for the Department of Regional and

Notes to pages 191–7 | 291

58 59 60 61 62 63 64 65 66 67

68 69 70 71

72

73

74

Land Affairs in the waning days of the apartheid government supported Mbuyazi. C. Walker, “Finite Land,” 10. Guy, “Political Power and Land Distribution,” cited in C. Walker, Land-Marked, 115. C. Walker, Land-Marked, 128. Ibid., 130. Officials of this office were backing the rival claim of the Mpukonyoni. C. Walker, “Finite Land.” C. Walker, Land-Marked, 131. Cherryl Walker, interview with author, 3 October 2012. C. Walker, Land-Marked, 135. Robins and van der Waal, “‘Model Tribes’?” 168–9. Ibid., 166. The Makuleke Community Concerning the Pafuri Area of the Kruger National Park and Environs, Soutpansberg District, Northern Province, Judgment of J. Dodson, Land Claims Court of South Africa, 15 December 1998, case 90/98. The act of 1936 provided for an increase of lands set aside for reserves from 7.3 per cent to 13 per cent of the country’s total land area. The latter figure was never attained. Robins and van der Waal, “‘Model Tribes’?” 166–7. Ibid., 165. Makuleke Community, Judgment of J. Dodson, Land Claims Court of South Africa, 15 December 1998, case 90/98. The dispute over whether the government should recognize the independent status of Makuleke leadership continued after the land claim. For a discussion of this political contest, see Robins and van der Waal, “‘Model Tribes’?” 169. The Makuleke were one of the groups that raised the issue. They did so during claims negotiations. Because they reached an agreement, the Land Claims Court did not have to address the issue. Makuleke Community, Judgment of J. Dodson, Land Claims Court of South Africa, 15 December 1998, case 90/98, 2. The Richtersveld Community, the Kuboes Community, the Sanddrift Community, the Lekkersing Community, the Eksteenfornten Community and the Adult Members of the Richtersveld Community v. Alexkor Limited and the Government of the Republic of South Africa, Judgment of A. Gildenhuys, Land Claims Court of South Africa, 22 March 2001, case 151/98, 4. They were, respectively, Richard Turrell and Sean Field, both of Cape Town University.

292 | Notes to pages 197–202

75 Ibid., 11. 76 In 1913, when the Communal Reserves and Mission Stations Act of 1909 was locally enforced, the independent tribal council, or raad, was replaced by a management board that was subordinate to the Government of South Africa. 77 Richtersveld Community, Judgment of A. Gildenhuys, Land Claims Court of South Africa, 22 March 2001, case 151/98, 10. 78 Anthropologist Peter Carstens provides a history of the changing political dynamics of the area during the nineteenth century. Carstens, Social Structure, 18–36. 79 Richtersveld Community, Judgment of A. Gildenhuys, Land Claims Court of South Africa, 22 March 2001, case 151/98, para. 24, 12. 80 Ibid., para. 26, 13. 81 Ibid., para. 43, 23–4. 82 Ibid., para. 48, 27–8; para. 65, 37; paras 55–76, 31–42. 83 Ibid., para. 37, 18. 84 Ibid., para. 42, 22; paras 84–94, 48–53. 85 Theunius Roux, “Juta’s New Land Law,” 3-a -15, cited in Richtersveld Community, Judgment of A. Gildenhuys, Land Claims Court of South Africa, 22 March 2001, case 151/98, para. 94, 53. 86 Richtersveld Community and Others v. Alexkor Limited and the Government of the Republic of South Africa, ScaSa 488/2001, para. 36. 87 In making this observation, the Supreme Court of Appeal also observed that in Delgamuukw the Supreme Court of Canada had held that “site-specific rights can be made out even if title cannot.” Ibid., para. 39. 88 Ibid., para. 37. 89 Ibid., para. 42. Bennett and Powell, “Aboriginal Title”; Reilly, “Australian Experience.” 90 For the same reason, the Supreme Court of Appeal concluded that it did not have to address the issue of whether the Land Claims Court had the authority to develop the common law with respect to aboriginal title. Richtersveld Community and Others v. Alexkor Limited and the Government of the Republic of South Africa, ScaSa 488/2001, para. 42. 91 Ibid., para. 111. 92 Alexkor Ltd and the Government of the Republic of South Africa v. the Richtersveld Community and Others (cct 19/03) [2003] Zacc 18; 2004 (5) Sa 460 (cc ); 2003 (12) BcLr 1301 (cc ) (14 October 2003), para. 18 (c), 10.

Notes to pages 202–12 | 293

93 Ibid., paras 33–4, 17fn21. 94 Ibid., paras 50–1, 24–5. 95 The court additionally noted that the country’s Evidence Act of 1988 (amended 1996) had for the first time authorized courts to take notice of indigenous law. Ibid., para. 52, 26. 96 Ibid., para. 57, 29. 97 Because the courts took up this issue, the Richtersveld claim has received considerable attention from legal scholars. See Pienaar, “Methodology Used.” 98 Alexkor Ltd and the Government of the Republic of South Africa v. the Richtersveld Community and Others (cct 19/03) [2003] Zacc 18; 2004 (5) Sa 460 (cc ); 2003 (12) BcLr 1301 (cc ) (14 October 2003), para. 58, 29. 99 Ibid., para. 61, 30. 100 Ibid., para. 68, 33–4. 101 Ibid., para. 71, 35. 102 Ibid., paras 85–6, 43–4. 103 Ibid., para. 94, 47. 104 Ibid., para. 94, 47; para. 96, 48; Richtersveld Community and Others v. Alexkor Ltd and Another 2001 (3) Sa 1293 (Lcc ). ChAPter seven

1 The Spanish introduced horses to this part of the continent. These animals had spread to the Canadian Prairies by the early eighteenth century. 2 Brown, “Linguistic Solitudes.” 3 Michif has roots in French and in native languages, especially Algonquian. Both Michif and Afrikaans of South Africa had emerged by the early nineteenth century. 4 Ray, “Economic History of the Robinson Treaties.” 5 Robinson also served as an elected member of the Legislative Assembly of the Province of Canada for ten years (1844–54). 6 Ray, Miller, and Tough, Bounty and Benevolence, 51–4. 7 Ibid., 50. 8 Ibid., 54–7. 9 Originally, this act of the Canadian Parliament was entitled “An Act to amend and continue the Act 32-33 Victoria, chapter 3; and to establish and provide for the Government of the Province of Manitoba.”

294 | Notes to pages 213–26

10 At the time, it was dubbed the “postage stamp province.” Also, in contrast to the other provinces of Confederation of 1867, Canada retained control of Crown lands. 11 For a discussion of scrip commissions, see http://www.collectionscanada.gc.ca/metis-scrip/005005-3200-e.html. 12 Regina v. Sparrow [1990] 1 Scr 1075. 13 Regina v. Van der Peet [1996] 2 Scr 507. 14 Ibid. 15 Ibid., para. 67. 16 Here, the Supreme Court of Canada inserted the following notation: “See Pentney, ‘The Rights of the Aboriginal Peoples of Canada in the Constitution Act, 1982, Part II – Section 35: The Substantive Guarantee,’ supra, at pp. 272–74.” Ibid., para. 169. 17 Ibid., para. 249. Paragraph 65 is the relevant reference in Mabo 2. 18 Ibid. 19 The current version of this act is available at https://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_ 97f41_e.htm. 20 Ray, “Economic History of the Robinson Treaties.” 21 Ontario Court (Provincial Division), Her Majesty the Queen against Steve Powley and Roddy C. Powley, Transcripts from Trial, registry no. 999 93 3220, vol. 2. 22 A typed copy of the full text of these treaties is available at http://www.aadnc-aandc.gc.ca/eng/1100100028978/1100100028982. 23 Ray, “Economic History of the Robinson Treaties,” table 6. 24 His testimony can be found in Ontario Court (Provincial Division), Her Majesty the Queen, registry no. 999 93 3220, vol. 3, 4–219. For his report, see Lytwyn, “Historical Report on the Métis.” 25 Prior to our testimony, neither of us had discussed the case, nor had we read each other’s report. 26 Ray, Telling It to the Judge, 102–3. 27 Regina v. Powley (2001), Ontario Court of Appeal, docket c 34065, para. 25, 7. 28 Ibid., para. 33, 10. 29 Ibid., para. 35, 11. 30 Ibid., para. 136, 40. 31 Regina v. Powley (2003) Scc 43. 32 Ibid., para. 12, 216. 33 Ibid., para. 11, 216.

Notes to pages 226–39 | 295

34 For example, in the immediate aftermath of Powley, the Department of Justice commissioned a series of historical reports to determine where Métis communities might be located. 35 Ibid., paras 31–3, 224. 36 Giraud, Métis in the Canadian West. 37 Stanley, Birth of Western Canada. 38 As noted earlier, English philosopher John Locke developed this idea. Arneil, John Locke and America. 39 Ray and Matsui, “Towards an Historical Geography.” 40 I describe this episode at length in Ray, Telling It to the Judge, 116–20. 41 Ibid., 116. There, I provide a lengthier quotation from the court transcript. 42 I discuss my experience in this trial in ibid., 66–87. 43 Ibid., 119–20; Morris, “Regina v. Donald Joseph Belhumeur.” 44 These were government-issued certificates redeemable for land or cash. They were intended to address individual Métis land claims. 45 Evans, “R.V. William Neal Goodon.” 46 Jones, “Reply Report R.V. Goodon.” 47 Fisher, “Reasons for Judgment.” 48 I had made this point many years earlier in Ray, Indians in the Fur Trade, 184, 226–7. 49 Jones, “Historic Métis.” 50 Phelan, “Reasons for Judgment,” para. 1, 4. 51 Ibid., para. 111, 35. 52 Experts must sign form 52.2 acknowledging that they will adhere to the Code of Conduct for Expert Witnesses. Federal Court of Canada, “Rules Amending the Federal Court Rules,” section 52.2. 53 Phelan, “Reasons for Judgment,” para. 162, 48–9. 54 Sometimes this is not the case. In Powley, the Crown’s first expert, Joan Holmes, wrote a report that drew many of the same conclusions that I had. Subsequently, the Crown withdrew her report and hired Gwynneth Jones. 55 Ibid., paras 163–5, 49. 56 Ibid., para. 165, 49. 57 Ibid., paras 177–8, 52–3. 58 Ibid., paras 179–80, 52–3. 59 Ibid., paras 181–2, 54. 60 Ibid., para. 600, 167.

296 | Notes to pages 240–55

61 I have been involved in First Nations aboriginal and treaty rights litigation in Alberta, British Columbia, and Ontario. I discuss these experiences in Ray, Telling It to the Judge. ChAPter eight

1 My focus is directed at the schemes used to evaluate claims. On the larger theoretical issues that land restitution schemes raise, see Fay and James “Giving Land Back.” 2 Ray and Freeman, “Give Us Good Measure,” 3–8. 3 A. Tanner, “New Hunting Territory Debate.” 4 McAloon, “By Which Standards?” 201. 5 Hiatt, “Lost Horde,” 82. 6 Some anthropologists believe that acting against claimants in adversarial proceedings violates their discipline’s code of ethics, which enjoins them to do no harm to the dignity and material well-being of their subjects. For a statement of the American Anthropological Society on this issue, see http://ethics.aaanet.org/ethics-statement1-do-no-harm. 7 Kroeber went as far as proposing a strategy for the federal government’s defence, ironically one that the government’s experts adopted. Ray, “Kroeber and the California Indian.”

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index

Aboriginal Affairs Department (Australia), 117–18 aboriginal and treaty rights: existing, 83, 207, 215 aboriginal land commissioner of the Northern Territory of Australia, 21, 23, 81, 124–5, 137, 243, 245, 249, 250; as commissioner of enquiry, 125 Aboriginal Land Rights Commission of South Africa, xvii, 117–23 Aboriginal Land Rights (Northern Territory) Act (1976) of Australia, 81, 123–4, 130, 136; federal inquiry regarding, 111; traditional owners defined, 123–4, 128 aboriginal title in law and legislation, 4, 5–6; Australian property law and, 109–12, 114–16; common law and aboriginal title, 5, 14–16, 19, 74, 117, 123, 132, 139, 200, 203, 249; continuity/survival of, 74–6, 123, 135, 137, 140, 204, 210; extinguishment of, 76, 205; legal tests for, 59, 31–2, 44, 47–9, 58–9, 61, 70–2, 74, 82–3, 97, 112. See also tribal territories

Aborigines: as archetypical primitives, 15, 108; relationships to land, 112–14, acculturation studies, 85, 91, 253, 272n55 Adaawk, 89 adversarial approach, xxii, xxv, 21, 25, 27, 30–1, 41, 51, 54, 63, 170, 241, 253; curtailed, 101, 152–3, 244–5. See also cross-examination African National Congress Party, 18, 173, 179–80, 244 Afrikaans speakers, 16–17, 174, 259n25, 293n3 Afrikaner: Broederbond (Brotherhood), 178; nationalist scholars, 24, 174, 177–8, 195; universities, 177 Afrikaner National Party, 17, 173, 175, 178, 191, 206 Alaska Native Claims Settlement Act (1971), 81 Alexkor Ltd and Another v. Richtersveld Community and Others (2003), 203–6 Alkatcho Carrier, 91 allotment. See severalty Alyawarra, 130

320 | Index

American Anthropological Association, 50 American Anthropologist, 64 American anthropologists: divided by United States Indian claims, 42–3, 62–5, 237; pre-claims research focus, 22–3; problems of, 114; publish claims research for validation, 63–4; refuse to act as experts before United States Indian Claims Commission, 40–2 anglophone liberal intellectuals of South Africa, 24, 175–6 Anmatjirra, 130 apartheid, xxv, 17–19, 26, 173, 176–9, 180–2, 185–6, 191, 194, 244 ardiri, 128–9 Assembly of First Nations, 99–100 assimilation: fears of, 177, 178; policies and programs, 30, 79, 144 Association for Rural Advancement, 176 Attwood, Bain, 138–9 Baerreis, David, xxiii, 34–5, 39, 260n Baker Lake. See Hamlet of Baker Lake v. the Minister of Indian Affairs and Northern Development (1979) Baker Lake test, 88–9 band. See social/political anthropology terminology Bantu Authorities Act (1951), 190 Bantu speakers, 17 Bantustans (native reserves), 17, 186, 194–5 Barbeau, Marius, 69, 71

Barber, Lloyd, Indian Commissioner, 80 Barney, Ralph, 33, 35, 37, 41–2, 58, 62 Basters, 17, 198 Bay of Islands, 13 Beals, Ralph, 35, 41, 58–60 Belgrave, Michael, 145, 154, 169–71, 247, 283n4 Belhumeur, Donald Joseph, 229, 231–3 Bell, Dianne, 132 Berger, Thomas, 69–71 Berndt, Richard M., 107, 109 Beynon, William, 69, 71 Bhangazi, 186–94 Bill c -123, 78 black armband history. See history Blackburn, Richard, Supreme Court of the Northern Territory Justice, 20, 106, 111–17, 119 Blasingham, Emily, 35–6 Boas, Franz, 89, 107 Boer Natalia Republic, 16 Boers, 16 Boer War. See South African (Boer) War (1899–1902) Boldt, George Hugo, United States Federal Court Justice, 158–9 Boldt decision, 158–9 Borroloola claim, 125–9, 132 Boulette, Oliver, 231–2 Brandon, Manitoba, 227, 233–4 Brennan, J., High Court Justice, 217 British Columbia Treaty Commission, 98 British North America Act (1867). See Constitution Act (1867) Brown, Douglas McKenzie, 71–4 Brown, William, 90–5

Index | 321

Bureau for Racial Affairs, 178 Byrnes, Giselle, 145, 168–71, 259n35 Calder, Frank, 67 Calder v. Regina (1973), 66–76, 83–5, 88–9, 104–5, 201, 203, 249; federal response to, 77, 80–2, 85, 104, 118, 137 California Indian Claims, 55–62, 87–8, 90 California Indian Claims (dockets 31 and 37), 35, 45, 55–62, 69, 74, 86, 144, 88–90, 96–7 California Indian Claims research project at the University of California, Los Angeles, 33, 35; budget of, 268n100 Canadian Confederation (1867), 8, 100, 212, 238, 260 Canadian Indian Claims Commission, 100–4; as commission of enquiry, 101–2 Cardinal, Harold, 79–80, 271n39 Carrier (Western) First Nations, 91–3, 95 Chalfant, Stewart, 35, 45 Charlesworth, Max, 115–16 chiefs/chieftainships, 14, 89, 161, 211, 220; the state and land claims in South Africa, 178, 185–6, 190–1, 193, 198 Chippewa claims, 45, 47 Chrétien, Jean, Minister of Indian Affairs, 79, 118 claims categories: comprehensive claims (Canada), 12, 80, 82, 97–8; racism-based, 179, 183; specific claims (Canada), 12, 80–1, 98–9, 126–7, 104, 204;

defining eligibility, 55, 88, 99, 124, 143, 146, 183–4, 243, 247 claims research: as revisionist research, xxv, 22–4, 26, 55, 57, 129–35, 137–8; development of native law, xxiv; divisive impact of, 62–5, 253; focus of, 23, 31, 34, 47–8, 52, 59, 68–9, 85–6, 104, 128, 144–5, 243–8, 252; histories of, 24–5, 76; impact on funding for research on indigenous peoples xxiii, 33, 65, 81, 228, 251 claims rulings and history, xxvi, 48, 83 Cloete, William J., 197, 199 Coeur d’Alene claim (docket 81), 45 Cohen, Felix, 43–4, 289n40 Cold Lake First Nation and Canoe Lake Cree Nation claim, 101–2 colonialism, 22–4, 136, 201, 206, 251. See also frontier history and indigenous peoples Commission on Restitution of Land Rights (South Africa), 179, 181–2 common law, 14–15, 19, 68, 74, 112, 116, 132, 139, 200–3, 234, 249, 255; common law aboriginal/native title, 5, 134–6, 140; common law traditions, 156 community as a right’s bearing group, 184, 187, 196–8, 202–5, 218–19, 221–7, 229, 230–5, 243 conception filiation, 128 confiscations of land by governments, 14, 101, 164, 166, 169 Constitution Act (1867), 212, 236, 260; section 91 (24), 212, 236, 239

322 | Index

Constitution Act (1982), 26–7, 99, 207, 214–16; section 35, 83–4, 214–17, 224–6 Constitutional Court (South Africa), 181, 187, 201–5 continuity of cultural practices, 86, 190, 218, 221; legal requirement for, 217, 222, 224–5. See also tide of history contra proferentem rule. See treaty interpretation Cook, James, Captain, 88–9, 93 copper discoveries and indigenous peoples, 8, 210 Cory, George, 174, 288n5 Council of Traditional Leaders. See National House of Traditional Leaders courts: attempts to accommodate indigenous practices, xxv, 26–7, 97, 119, 165, 231–2, 245; communication and language issues, 114–15; limitations of, 18–22; rituals of, xxii cross-examination, xxii–xxiii, 21–2, 31, 37, 39–40, 61–2, 71, 125, 170, 222, 244, 253; moderated, 102, 126, 152–4, 255; problems of, 22, 154–5, 254 cultural distribution surveys, 44, 57, 85, 89, 215, 221, 266n86 cultural/human ecology, xxiii, 45–7, 58–62, 65, 85, 92, 249, 260; cultural eco-types of California, 59 cultural translation problems, 131–2, 134, 192 culture area approach, 44–5, 57, 59–60, 74, 90, 92, 107–8, 120, 249. See also Kroeber, Alfred L.

culture traits, 107–8 customary law, 89, 186, 202–3 Cypress Hills, 235–6 Daniels et al. v. Regina (2013), 236–9, 241 Davey, Herber William, British Columbia Supreme Court Chief Justice, 75 Dawes Severalty Act (1887), 11–12. See also severalty de Laguna, Frederica, 41–2 Delgamuukw v. Regina (1997), xxi– xxii, 83–97, 102–4, 140, 201, 203, 231, 240, 249 Department of Aboriginal Affairs (Australia), 117–18 Department of Indian and Northern Affairs (Canada), 78–82, 99–101, 228 Department of Justice (Canada), 78, 81, 99 Department of Justice (United States), 30–1, 33–7, 40–1, 43, 48 Department of Land Affairs (South Africa), 179–81, 187, 192 Department of Maori Affairs (New Zealand), 157–8 depopulation, 14, 59, 61, 123, 174, 267n95 diamond: discoveries, 17, 196; mining and dispossessions, 205 Diefenbaker, John, Prime Minister: government of, 77 diffusion, 92, 107, 253, 302n11 dispossessions, 12, 14–15, 18; forced removals in American southeast, 8; fraudulent treaties, 5. See also international law djunggaiyi, 130

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documentary records. See evidence (lines of ): documentary Dominion Lands Act (1879) of Canada, 213 Douglas Treaties. See treaties of Canada Draft Declaration on the Rights of Indigenous Peoples (United Nations), 164–5 Driver, Harold, 33, 35, 58, 61–2 Drucker, Philip, 72, 89 Duck Lake, 214 Duff, Wilson, 69–74, 84, 89 Durie, Edward Taihakurei, 148, 170, 287n79 Dutch East India Company, 16 Eastern Shores region, South Africa, 186–7, 190–3 effective control/sovereignty. See sovereignty elders as witnesses. See witnesses: elders as English liberal academics in South Africa, 174–7 ethnic bloc, 120–1 ethnogenesis, 25–6. See also invention of culture and tradition ethnographic data: gender bias of, 121, 131–2 ethnohistory, 23, 33–4, 47–8, 65, 69, 84–5; stimulated by claims research, 65–6, 253 Ethnohistory (journal), 34, 65, 72 Evans, Clint, 234 evidence (lines of ): aboriginal evaluation of oral history, 21–2; boundaries of documentary and oral blurred, 72; documentary, 20, 50–1, 80, 65, 72–3, 84–5, 90,

92, 159, 166, 168; documentary as “plain on its face,” 54, 143; documentary as problematic, 121, 166, 168, 224; experts as the evidence, 72–3; genealogical, 128; linguistic, 57, 167, 265n72; oral history and tradition, 19–22, 25, 89–90, 97, 103–4, 136, 152–3, 161, 166–8, 171–2, 187, 190, 197–9, 245; oral history as performance, 62, 231–3; weighing, 20–1, 25, 32, 72, 90, 97, 104, 125–6, 131, 140, 152, 154–5, 159, 166–7, 230, 239, 240, 245, 249, 255, 282n114 evolutionary models, 22, 45, 58–9, 83, 107–8, 227, 230, 249–51; as rationale for dispossessions, 15, 82; as problematic for claimants, 45, 58–9, 75, 82–3, 92, 227 exclusive use and occupancy. See tribal territories expert witnesses. See witnesses federal claims process (Canada), 80–1, 98–104 Federal Court of Claims (United States), 18, 47–8 fiduciary and treaty obligations of governments to indigenous peoples, 11–12, 77, 81, 98–9, 160–1, 163, 244 Finlayson, Julie, 138 First Nations Summit, 98 Fort Edmonton, 229, 235 Fort Kilmaurs (Old Fort Babine), 90, 94 Fort Qu’Appelle, 227, 229–30, 232–3 French and Indian War. See Seven Years’ War (1755–62)

324 | Index

frontier history and indigenous peoples, 22, 134, 175. See also colonialism frozen rights legal doctrine, 88, 91; rejected, 215 fur trade: histories of, xxii–xxiii, 85, 90, 214, 221; impact on aboriginal economies and land tenure, 49, 85, 89, 90–5; the Métis and, 207–12, 214, 218–19, 228–31; records about, 84, 241. See also Hudson’s Bay Company Garfield, Viola, 69, 73 gift exchange as diplomacy, 208, 221 Gildenhuys, Antoine, Land Claims Court Justice, 180, 199–203 Giraud, Marcel, 227 Gisborne, New Zealand: hearings at, xviii, 155–6, 285n41 Gisborne model, 155 Gitanyow, 69 Gitxsan-Wet’suet’en, xxi, xxiii, 21, 69, 75, 83–4, 86–91, 93–5, 97, 231, 251; economy postcontact, 90; impact of fur trade on, 90–5 gold rushes, 7–8, 10 Goldman, Irving, 91–2, 95 Goldschmidt, Walter, 33, 35, 41, 58–9 Goodon, William, 234–5 Gordon, Robert, 177–8 Gould, J., British Columbia Supreme Court Justice, 68, 74–5 Gove land rights case. See Milirrpum v. Nabalco Pty Ltd (1971) Great Basin claims, 45, 91–2, 263n45

Great Lakes and Ohio Valley Ethnohistorical Research Project, 33–4; budget of, 36, 65; reports and authorship issues, 38–40 great silence of Australia, 138 Great Trek of 1836, 16 Greater St Lucia Wetland Park, 187–90, 192 Guy, Jeff, 175, 187, 190–1 Habib, George, 154 half-breeds. See Métis Hall, Emmitt M., Supreme Court of Canada Justice, 75, 270n28 Hall, Ruth, 181 Hallowell, Irving, 50, 53–4, 71 Hamlet of Baker Lake v. the Minister of Indian Affairs and Northern Development (1979), 82–3, 88, 203, 271–2n51 Handbook of American Indian Law, 43 Handbook of the Indians of California, 57–8 hapū, 13, 146, 161, 164 harvesting rights, 20, 148, 150, 197, 218, 220–1, 227, 229–30, 235 Hayward, Janine, 161–2 hearsay rule, 19–20, 25, 139; relaxation of, 78, 101, 104, 125–6 heartland concept, 133 Heizer, Robert, 55 Hester, Joseph, 58 Hiatt, L.R., 108–11, 131, 137 Hickerson, Harold, 35–6, 45–7, 249–50, 267n93; establishes career based on claims research, 65 Hirsekorn, Garry, 235

Index | 325

historical/ethnohistorical interpretations, xxi–xxii, 22, 44, 53, 75, 98, 138, 145, 156–9, 230, 236–9 history: black armband, 139; counterfactual/what if, 139, 162; frontier histories, 22, 134, 175; history wars, 23–4; instrumental presentist/juridical, 139, 163, 247; presentist, 139, 160, 163, 165, 168 Hobbes, Thomas, 3–4, 283n3 honour of the Crown, 78 horde. See social/political anthropology terminology Hottentot. See Khoikhoi/Hottentot Hudson’s Bay Company, 10, 94, 208, 211–12, 219–20, 230; records of, 84–5, 90, 218, 228–9, 235 hunter-gatherer societies, 15, 45, 107–8, 208 hunting/equestrian societies, 4, 208, 227, 233, 235–6 hunting rights. See harvesting rights identifiable historical group, 55, 57, 146, 184, 243, 247 identity issues: identity formation and reformulation/ethnogenesis, 26, 206; identity and land, 189; problems documenting, 223–5. See also invention of culture and tradition; tribalism and colonialism In All Fairness: A Native Claims Policy, 81 Indian Act of Canada, 18, 77 Indian Claims Commission (Canada): as a commission of inquiry, 102–3; created, 99; early

bills for, 76–8; limited scope of, 100, 104; procedures of, 101–2; treatment of oral evidence, 101, 103 Indian commissioner (Canada), 80 Indian removals. See dispossessions Indian reserves/reservations, 11, 17 Indian title. See aboriginal title in law and legislation Indian tribes (United States), 29 indigeniety, language of, 182, 184 indigenous law, 19, 116, 123; Australian Aborigines, 116–18, 137, 141; in Canada, 68–9, 75; problems of expressing in English, 119–20; in South Africa, 203–5. See also customary law Innis, Harold Adams, 85 Interior Department (United States), 30 intermarriage of First Nations and Europeans, 208, 217–18 international law, 3, 139, 157. See also treaty interpretation Inuit, 5, 27 invention of culture and tradition, 26, 178, 185, 211 Iowa claims, 49–55 Iroquois Wars as potential claims issue, 34, 36, 49 isiko, 189 iwi, 13–14, 146, 148 James Bay, 83, 208 James Bay Cree, 76–7 Jenness, Diamond, 91–2 Joint Efforts Group, 43 Jones, Gwynneth, 234, 237–8 Jones, Jay A., 34–6

326 | Index

juridical history. See history Justice Department (United States), 29–30; Indian claims section of, 33 Kariera, 108, 113, 278n23 Kartangarurru-Kurintji, 129, 132, 133 Katepwa Lake, Saskatchewan, 229 kaumatua, 150–3, 155. See also witnesses: elders as Khoikhoi/Hottentot, 16, 196, 198, 199, 200 Khoisan, 198 kirda, 129, 132, 281n92 Klondike international gold rush. See gold rushes Kroeber, Alfred L., 32, 43, 55–62, 64, 70, 73, 89, 93, 107, 120, 123, 234, 251, 254, 263n37, 266n80, 296n7 Kruger National Park, 186, 188, 193–5 Kungax, 89 Kuper, Hilda, 176–7 Kuper, Leo, 176–7, 288n14 kurdungurlu, 129–30, 132 KwaZulu-Natal, xviii, 187 land claims and aboriginal politics, 194 Land Claims Court (South Africa), 179–81, 195–7, 200, 202 Land Commission (Northern Territory, Australia), 21, 124–5, 127, 131, 137 land tenure regimes: Aborigines and, 15, 108–9, 133; anthropologists and, 5, 44–5, 69, 251; California Indians and,

59; Carrier (Western) and, 91; claims issues about, 12, 23, 33, 45–6, 51, 70, 91, 95, 106, 253; conceptualizations/models of, 5, 25, 61, 68, 73, 96, 128–34; debates about, 52–3, 63, 107–10, 246; efforts to eradicate, 14; GitxsanWet’suet’en and, 89–97; Iowa and, 43–4, 49–55; Maori and, 12–13; Nisga’a and, 73–4; Yolngu and, 20, 111–17, 119–23, 131 Laskin, Bora, Supreme Court of Canada Chief Justice, 76 Law of the Land, The, 134, 139 Law of Treaties, The, 157, 158 lay witnesses. See witnesses legal nullity: treaty as, 143 legal positivism, 19 Legiac (hereditary Tsimshian chiefs), 93 Limpopo, South Africa (formerly Northern Province), 195 Links, Paul, Captain, 198–9 Linton, Ralph, 45 local descent group. See Aboriginal Land Rights (Northern Territory) Act (1976) of Australia Locke, John: property theory of, 3, 35; and aboriginal land, 31–2, 227 Luiseño word list, 32 Lurie, Nancy, 50, 52 Lytwyn, Victor, 218, 221–2, 234 Mabo, Eddie, 135 Mabo and Others v. Queensland (No. 2) (1992), 16, 134–6, 140, 202, 217, 250; impact on Australian historiography, 138–9; impact on claims research, 136–7

Index | 327

Macmillan, W.M., 175 Maddock, Kenneth, 113, 131–2 Madimbo Corridor, South Africa, 193–4 Mahoney, J., Federal Court of Appeal Justice (trial division), 82–3 Makuleke tribe, 186–8, 193–5 Malouf, Albert, Quebec Superior Court Justice, 76 Mandela, Nelson, 18, 177, 179 Manitoba Act (1870), 28, 212 Maori, 13–15, 143 Maori King (Kingitanga) Movement, 14 Maori Land Court (formerly Native Land Court), 14, 19, 148 marae protocols, 150–1. See also Waitangi Tribunal Marshall, John, United States Supreme Court Chief Justice, 6, 257n6 Mashinini, Emma, Regional Land Claims Commissioner, 195 Matsui, Kenichi, 228, 230 Mbuyazi, Phineas, 189, 193 Mbuyazi clan/people, 186–7, 189–91, 193 McAloon, Jim, 170–1 McEachern, Alan, Supreme Court of British Columbia Chief Justice, 90–1, 95–7, 231 McLachlin, Beverley, Supreme Court of Canada Justice (later Chief Justice), 217 McNair, Arnold, Lord, 157 Medicine Hat, Alberta, 227, 235 Meriam people, 135, 140 Merlin, Francesca, 127

Métis: communities defined in law, 25–7; half-breed, 209, 219, 221, 228, 238–9; historical terms for, 209; impact of claims on historical writing about, 227–8; scrip, 213–14, 234. See also fur trade Métis National Council, 210, 228 Mhinga, Chief, 194–5 Michif language, 210, 229, 293n3 Michipicoten, 210 midwestern claims, 34 Milirrpum v. Nabalco Pty Ltd (1971), 20, 105, 119, 131 Morris, D.I., Provincial Court of Saskatchewan Justice, 230, 232 Motunui-Waitara claim, 157, 283n12 Mpukonyoni Tribal Authority, 188, 190–3, 195 Mulroney, Brian, Prime Minister: government of, 99, 100 Munro, John, Minister of Indian Affairs and Northern Development, 81 Muriwhenua claims: fisheries, 148–51, 152, 154, 158, 161; land, 164–8, 170–1 Murray Islands, 15, 135 musket wars, 14 Mutele, Jack, Chief, 193–4 Namaqualand (Little and Great), South Africa: 198–9, 204 National House of Traditional Leaders (formerly Council of Traditional Leaders), 186 National Native Title Tribunal (Australia), 136

328 | Index

National Party government (South Africa), 17–18, 24, 173, 175, 178, 191, 206 nation-building narratives, 23–4, 145, 174–5 Native Administration Act (1927) of South Africa, 186 native agency, 65, 86 Native and Land Trust Act (1936) of South Africa, 17 native history/studies, 84 Native Lands Act (1865) of New Zealand, 14 native title. See aboriginal title in law and legislation Native Title Act (1993) of Australia, 136–7; amended (1998), 139 Native Trust and Land Act (1993) of South Africa, 194 Natives Land Act (1913) of South Africa, 17, 183 natural law, 3–4, 19 New Zealand Maori Council v. Attorney-General (1987), 159–61 Ngai Tahu claims, 148, 151, 153–5, 171, 284n24 nimaringki, 128–9 Nisga’a/Nishga, 66–70, 73–6, 83–4, 89, 92, 251 Nisga’a Agreement, 182 nomadism/roaming, 15, 53, 57, 70, 89, 97, 110, 196, 227–8, 233–4, 273n81 no-man’s lands, 35, 46 “non-status” Indians, 228, 236, 239 Northeastern Woodlands culture area, 52–3 Northern Territory (Australia), 20–1, 23, 117–19, 122, 131

Northwest Coast culture area, 4, 69, 74 North West Company, 219–20 North-West Rebellion, 224 North-West Territories (Canada), 212–14 Office of the Federal Interlocutor for Métis and Non-Status Indians, 228 Office of Native Claims. See federal claims process (Canada) Oka/Kahnesatake crisis, 98 Old Northwest Territory (midwestern United States), 44 Oliver, William, 163–5, 167–71 Orakei claim, 158 oral history. See evidence (lines of ) Orange, Claudia, 145, 283n6 Orange Free State, 16 “organized society,” 83 Outstanding Business: A Native Claims Policy – Specific Claims, 99–100 overlapping claims/territories, 35, 40, 44–5, 51, 53–4, 173, 183 Pafuri Triangle, South Africa, 188, 193–4 Pakeha-Maori wars (1860s), 164 participant-observation methodology challenged, 90, 177–8 Patterson, Stephen, 238 Pearson, Lester B., Prime Minister: government of, 77–8 Peterson, Nicholas, 108, 114–16, 118–19, 129–30, 133 Phelan, Michael, Federal Court of Canada Justice, 236–7, 238–9

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Philips, Paul, 198–9 Philipson, Grant, 167–8, 171 “pizza Indian argument,” 215 Polanyi, Karl, 85 political correctness, 23 postcolonial movements, 80, 84 postmodern and postcolonial histories, 24, 250, 285n35 Potawatomie claim, 34–5 potlatch/feast ceremonies, 69, 73, 86, 92–3 Powley, Steve and Rody, 217–18 practice guidelines, 154, 155, 282n113 Precious Stones Act (1927), 205 pre-emption right of the Crown, 7, 13, 146–7 presentist history. See history primitive people. See evolutionary models privy council of Great Britain, 18, 82, 296n25, 297n51 Proclamation of 1763, 6 property law, 3, 35, 75, 109, 112–13, 132 Public Law 726. See United States Indian Claims Commission (1946–78) Purcell, F.X., 109–10 quantitative anthropology, 62 Qu’Appelle Valley, Saskatchewan, 229–30, 232–3 Queensland Coast Islands Declaratory Act (1985), 135 raads, 198 racisim and indigenous peoples, xxv, 18–19, 24, 26, 138, 175–6, 178–9, 181, 184, 200, 205–6, 209,

214, 242, 244; impact on documentary records, 224, 234 Radcliffe-Brown, A.R., 107–9, 113–14, 123, 131, 137, 175, 250 Ray, Arthur J., 22, 90–4, 227–30, 235 Reay, Marie, 125 Red Paper, 79–80 Red Power movement, 80 Red River myopia, 233 Red River Valley, Manitoba, 210–11, 227, 229–30, 232–3 Regina v. Donald Joseph Belhumeur (2007), 229–33 Regina v. Goodon (2009), 233–4 Regina v. Hirsekorn (2010), 234–6 Regina v. Powley (2003), 207, 210, 214–18, 220, 224, 226–8, 237, 240, 250–1 Regina v. Sparrow (1990), 88, 159, 215, 218, 223 Regina v. Van der Peet (1996), 203, 215–18, 224 relocations. See dispossessions Re Southern Rhodesia (1919), 82 Restitution Land Rights Act (1994) of South Africa, 173, 181–4, 187, 195–6, 200, 202 Revolutionary War (1775–83), 6 Reynolds, Henry, 23, 134 Richtersveld community claim, 187, 196–205; issue of aboriginal title, 196–7, 200–3. See also Alexkor Ltd and Another v. Richtersveld Community and Others (2003) right of conquest. See international law right of discovery. See international law Rigsby, Bruce, 132, 137

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Robins, Steven, 289–93 Robinson, William Benjamin, 210 Robinson Treaties. See treaties of Canada Royce, Charles C., maps of Indian land cessions, 38, 46, 49–51 Rupert’s Land, 10, 212 Rupert’s Land Act (1868), 212 Sac and Fox claim (docket 83), 37–40 Sac, Fox, and Omaha petition, 42 Saint Lazar, Saskatchewan, 230 salvage ethnology, 89 Samson Cree, 231–2 San/Bushmen, 17, 196 Sault Ste Marie, Ontario, 207, 209–11, 217–19, 222–4 scholarly community of South Africa, 174–8 scrip. See Métis section 35. See Constitution Act (1982) section 91 (24). See Constitution Act (1867) Selkirk colony, 212 Seven Years’ War (1755–62), 5 severalty, 11–12, 14. See also Dawes Severalty Act (1887) Shangaan people, 193–4 Sharp, Andrew, 162 Sharpe, Robert J., Justice, 222–4 Siksika/Blackfoot, 235 Snake Indians/Paiute claim (docket 17), 48 social Darwinism, 174 social/political anthropology terminology: band, 57, 120, 132; horde, 108–9, 120, 131; property,

132; tribe, 27, 52–3, 57, 108, 120; triblet, 57 Sokana, 190, 290n55 South African (Boer) War (1899– 1902), 17 sovereignty, 75, 83, 95, 146, 158, 160–1, 163, 201–2, 217; effective control/sovereignty, 12, 15, 88, 218–19, 235–6 Specific Claims Tribunal Act (2008), 77 Stanley, George, 227 Stanner, William, 106–15, 118, 123, 133, 138, 276n9, 277n16, 279n63, 282n Steward, Julian (1902–72), xxiii– xxiv, 33, 35, 41–2, 45–6, 55, 58–9, 72, 91–3, 95, 108, 131–2, 249–50 Stewart, Omer, 55, 64, 267n96 Stout, David, 37, 39–40 Strong, William Duncan, 35 structural-functional (structuralism) approach, 107–8 Supreme Court of Appeal (South Africa), 181, 201–2 Supreme Court of Canada, 18 Supreme Court of the United States, 6 Surplus People Project, 176–7 taonga katoa, 160–2 Taranaki and Waikato Wars (1860–64), 14, 164 Taranaki claim report, 164–5, 171 Tax, Sol, 63–4 Teillet, Jean, 218 Te Reo Mihi Marae, 150 terra nullius, 15–16, 105, 134–6, 139, 141, 143, 200–1

Index | 331

territoriality. See tribal territories Terrorism Act (1967) of South Africa, 177 Theal, George, 174 Thompson, Leonard, 176 tide of history, 140–1 time immemorial (reasonable length of time), 47–8, 88, 135, 217 tino rangatiratanga, 143, 161–3, 165, 171 title. See aboriginal title in law and legislation Toohey, John, Aboriginal Land Commissioner Justice, 21, 124–34 Torres Straight, 15 traditional knowldege protected, 152, 161 “traditional owners.” See Aboriginal Land Rights (Northern Territory) Act (1976) of Australia Transvaal, 16 treaties of Canada, 9, 11; Douglas Treaties, 10; Numbered Treaties, 10–11; Robinson Treaties, 8, 210–11, 218–19, 221, 223, 229; Treaty 8, 10 treaties of the United States, 6–7, 11 treaty interpretation: contra proferentem rule, 157–8; determining intent and meaning, 12, 147, 156–7, 159. See also Waitangi Tribunal Treaty of Waitangi (New Zealand), 12–14, 19, 143; translation issues, 143, 146–7, 166 trespass, notions of, 5, 32, 49, 74, 85, 89

tribal territories: contiguous boundaries, 44, 51, 54, 57; exclusive use and occupancy of, 31–2, 44, 47–8; overlapping boundaries, 35, 44, 51–3; spatial dynamics of, 132; spiritual ties to, 120, 128–9, 133; subsistence use, 58–9 tribalism and colonialism, 178, 185 Trudeau, Pierre Elliott, Prime Minister: government of, 76, 78–9, 118 Truman, Harry, President, 30 Tsilhqot’in Nation v. British Columbia (2014), 97, 104 Tsimshian (Coast), 69, 93 Turtle Mountain, Manitoba, 233–5 Uluru claim, 130 Union of South Africa, 17 United States Indian Claims Commission (1946–78), xxiii– xxiv, 30, 77–8, 83, 88, 96–7, 125, 137, 152, 237; histories of, xxiv; impact on historical research, xxiii–xxiv, 31–3; Justice Department opposes creation of, 29–30; nature of proceedings, 30–1, 41; as a negative model for commissions, 25, 118; Public Law 726 and United States Indian Claims Commission Act, 29–30, 47; research emphasis, 31–2, 48; United States v. Santa Fe Railroad (1941) as a guide, 31, 36 United States v. State of Washington (1974). See Boldt decision use and occupancy. See tribal territories

332 | Index

Utopia claim, 130 Vail, Leroy, 211 Vaillancourt, Charles, Ontario Court Justice, 222–3 Vancouver Island, Colony of, 10 van der Waal, Kees, 194 van Warmelo, Nicholas J., 195, 289n23 Vienna Convention of the Law of Treaties, 157 Voegelin, Carl F., 35–6 volk, 177 volkekunde ethnology, 177–8, 186, 195, 289n20 volkekundiges, 177–8 Von Gernet, Alexander, 238–9 Voortrekkers, 174 Vuuren, Chris, 195 Waitangi Tribunal, 24, 101, 144–7; determinations of intent and meaning of the treaty, 143, 147, 156–7, 163; fault finding, 167, 169, 189–90; principle-based treaty interpretation, 144, 147; protocols for hearings, 148–56, 151–4; reports as histories, 163–71 Waitangi Tribunal Act (1975), 144–6; amended (1985), 144 Waitangi Tribunal and New Zealand historians, 145 Waitangi Tribunal and New Zealand History, 145 Waitangi Tribunal reports: Allocation of Radio Frequencies report, 162; Manukau report, 286n72; Te Reo report, 162

Walker, Cherryl, 176–7; as regional land claims commissioner, 180, 187, 189–93 Walker, Eric, 174–5 Wallace, Anthony F.C., 43–4, 50–5, 57, 120 Warlpiri claim, 129–30, 132 War of 1812 (1812–15), 8 Warramunga desert people, 109 Wedel, Mildred, 35, 42, 50–5 whānau, 13, 146 Wheeler-Voegelin, Erminie, 33–7, 39–42, 47–8, 58, 63–4 White Paper, 79, 83 Whitlam, Gough, Prime Minister: government of, 117 Wicken, William, 237–8 Wik Peoples v. State of Queensland & Ors; The Thayorre People v. State of Queensland & Ors (1996), 137 Wiley, Gordon, 35 Williams, Nancy, 113, 134 Williams, Edward, United States Assistant Attorney General, 36 Willowra Land Claim, 130 Wilson, Monica, 176 Windschuttle, Keith, 138 Witbooi tribe, 198 witnesses: academics as experts, xiii, 20–1, 41; credibility of, 20–1, 51; conflicts of interest of, 43; elders as, 20–2, 111; frustrations of, 22; order of testimony, 21, 90, 127; problems of, 114–15; questioning of, 115, 126; reluctance of, 40–2 Woodward, Sir Edward, 109, 111–24

Index | 333

Woodward Commission. See Aboriginal Land Rights Commission of South Africa Wycoco-Moore, Remedios, 39 Xhosa, 16–17

Yolngu, 20, 105–12 Yorta Yorta Aboriginal Community v. Vixtoria & Ors (1998), 106, 140, 201–2 Yukon Final Umbrella Agreement (1993), 98

Yingawunarri claim, 127

Zulu, 16–17, 174–5, 190