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Oral Narratives and Aboriginal Pasts - An Interdisciplinary Review of the Literatures on Oral Traditions and Oral Histories
This report examines Aboriginal Oral Traditions and how they can best be utilized, specifically in regard to conflict resolution.
Having reviewed the oral narratives, the author concludes that we must not generalize about their accuracy or validity. When used as evidence in a conflict, he feels oral narratives must be examined and authenticated like any other evidence.
Chapter 6, entitled “Opinions Gleaned from the Literature” is not available on the website. Anyone wishing to read this 145 page chapter with over 150 quoted sources, may get a hard copy by contacting the Directorate at (819) 997-8153.
Note Concerning the Internet Edition
Chapter 6 of the report has been omitted in the Internet edition for purposes of brevity. It is advised that the persons wishing to consult the compilation of nearly 900 opinions refer to the original document.
Table of Contents
Introduction
This research report is an interdisciplinary literature review prepared for Indian and Northern Affairs Canada. The objective is to compile and synthesize opinions which address a variety of issues relating to oral narratives about the past. The 50-day study commenced January 15, 1996 and ended April 5, 1996.
The need for the present study was stimulated by a recognition that the more than 70 historic treaties, which represent legally recognized solemn arrangements between various Aboriginal peoples and the British Colonial government or Canada, are frequently controversial. The written English texts are oftentimes subject to varying interpretations, partly because their vague and ambiguous language does not lend itself to straightforward application in the modern context. Treaty First Nations regard the treaties as living and evolving agreements and emphasize their spirit and intent. Moreover, occasionally it is claimed that oral promises were made by Crown representatives outside the written texts. Such oral dealings are alleged to have been transmitted by word-of-mouth to descendant generations, at which time they became oral traditions. Many of these traditions, which are now communicated to modern listeners, are not easily reconciled with written documentation and, hence, divergent positions on treaty interpretation have arisen.
While the original objective of the research was to illuminate "oral tradition" as it relates to the interpretation of treaties in the Canadian Aboriginal context, the approach taken here involves an examination on a much broader scale. As such, the research may be of use not only to those parties interested specifically in treaties (see especially Section 6.22 infra), but to anyone struggling with the complex matters relating to the (re)construction of the history of relations between Native peoples and newcomers in Canada. The literature compiled here will assist in the assessment of any oral narratives about the past which are summoned as evidence for or against a variety of claims.
Research was still in its early stages when it became apparent that a thorough scrutiny of all extant literature on the subject would be a massive undertaking and that, in 50 days, one could only hope to compile a representative sample of scholarly opinion. I note with interest that 35 years have elapsed since such a project was first contemplated. Even then--prior to the information explosion--Professor Richard Dorson (the preeminent authority on the subject at that time), was impressed with how much had been written:
As a folklorist trained in history, I have long been intrigued by the question of the historical validity and ethnocentric bias in oral history. In 1961 the Indian Land Claims Commission of the Department of Justice in the United States Government gave me a research contract to investigate this matter. Their interest lay in determining how much credence they should place in the arguments to land title by Indian claimants based entirely or largely on father to son oral tradition. As I pursued the widening circles of research scholarship that dealt with traditional history, I soon discovered that a host of scholarly disciplines had fought bitter intradisciplinary battles over the issue. So many scholars had a stake in the outcome: not merely folklorists and mythologists, but archaeologists, anthropologists, classicists, geologists, historians of every hue, students of religions, the Africanist, the medievalist, the Celticist--and one could keep on adding specialists. [Dorson 1973:7]
Unfortunately, Dorson's unpublished report is no longer accessible and I was obliged to start anew. Most of the useful literature has, in any event, been written in the three and a half decades since Dorson's pioneering efforts. A bibliography compiled by Waserman (1975), while useful, tends to focus on non-Aboriginal oral history rather than Aboriginal oral tradition and is also more than two decades old.
Although I am an independent scholar with no strong, a priori commitment to generalizations about the nature of oral narratives, I hasten to add that complete objectivity is a chimera and that the approach of every researcher is embedded in social process. As a professional anthropologist trained in a variety of methodologies for (re)constructing the past, I do not maintain strict fidelity to any philosophical extreme (e.g., positivism or relativism), but recognize merits in a variety of positions. In selecting and transcribing opinions from the scholarly literature, I have tried to be fair to all sides in contemporary academic debate. If, ultimately, my recommendations tend to favour one position over another, it is because I recognize that I am advising decision makers who are interested in useful guidelines. In the "real world" of conflict resolution practical considerations necessarily must displace the luxury we have in academia of debating a plurality of viewpoints and, in the spirit of postmodern inquiry, accepting them all as equal voices until we are mired in our own collective and debilitating nihilism. My opinions and conclusions, although based on an extensive immersion in the literature, are, of course, my own and do not necessarily reflect the positions of DIAND.
Research Questions
The Department of Indian Affairs and Northern Development requested that I undertake research to answer the following questions:
- How are oral tradition and oral history defined in the literature? Does the literature distinguish between these and modern oral accounts?
- Based on a secondary source review, what are the issues which surround the use of North American oral tradition in mainstream history [and anthropology, as well as related disciplines]?
- Based on a review of contemporary and modern oral accounts of historical events, how consistent do oral traditions remain over time? What factors contribute to the changing expressions of oral tradition?
- What research (or secondary source material) has dealt with oral tradition in a legal perspective?
- Based on a list of summarized court cases which deal with the issue of oral tradition and on a secondary source review, what are the factors that limit, and/or enhance, the utility of oral tradition in the Canadian legal system?
Methodology
The research was conducted by following a systematic procedure:
- a search of my personal, 6,000-volume library of anthropological and historical literature;
- an electronic search of the University of Toronto's massive library system;
- locating and photocopying all articles and book excerpts relating to the research questions;
- scrutiny of all references cited in the collected source materials and repetition of step 3 until time constraints precluded further searches;
- preparation of an alphabetized filing system for all collected source materials;
- compilation of an electronic bibliography of all collected source materials;
- perusal of each article and book extract;
- computerized transcription of opinions expressed by the various authors under preliminary sub-headings; and
- synthesis of opinions in the form of short answers to the research questions.
Output
A total of 168 books and articles were identified as being germane or relevant to the research questions. A complete bibliography of these sources is provided in Section 7 (infra). This bibliography does not include court cases which are listed separately in Section 6.21. Copies of the materials appearing in the bibliography are provided in Volume 2.
Section 6 provides nearly 900 verbatim extracts from the 168 sources. My distillation of the opinions expressed in these extracts, as well as my own opinions, are provided in the form of my answers (section 5) to the research questions.
Answers to the Research Questions
For the most part, my answers are based on an assessment of the opinions transcribed in Section 6 infra. Readers should consult the latter to gain a better appreciation of the debates in the scholarly literature and to draw their own conclusions should this be preferable.
5.1 Question 1
How are oral tradition and oral history defined in the literature? Does the literature distinguish between these and modern oral accounts?
For definitions of oral tradition the reader is referred to Section 6.1. For definitions of oral history see Section 6.2. The definitions vary depending on the disciplinary affiliation and problem orientation of the researcher. Some scholars reject any and all formal definitions, while others have constructed elaborate taxonomies with dozens of sub-divisions. Although there is no universally-accepted set of meanings, the short and simple answer to the first part of Question 1 may be expressed as follows:
Oral traditions are narratives transmitted by word of mouth over at least a generation. Oral histories are recollections of individuals who were eyewitnesses or had personal experience with events occurring within their lifetime.
Occasionally, the term "oral tradition" is used to describe a process of communication, rather than the corpus of communicated messages. Similarly, many scholars recognize oral history as a method or technique of collecting information about the past through the use of interviews. There are professional organizations, institutes and journals devoted to the collection and study of (usually non-Aboriginal) "oral history", and there are specialists who are described as "oral historians." Nevertheless, there are sound epistemological and practical reasons for restricting the definition of oral history (and also of oral tradition) to content, genre of source, or product, rather than method or process. In my view, there is no such thing as oral history as a separate discipline; but there are oral histories and traditions which, together with other evidence, may be used by historians, anthropologists, and others in their efforts to understand past events.
Although most scholars distinguish between oral history and oral traditions, not all do. The objection to a dichotomy comes, in the main, from those who recognize that a single oral narrative may include traditions, eyewitness accounts, hearsay and other forms of evidence, and that narrators may conflate various pasts or a past with a present. While this does indeed happen, I believe the critics offer insufficient grounds for rejecting a widely accepted distinction. Classifications need not always be empirically tenable in order to serve as heuristic devices in scholarly research. Besides, most people do, in fact, distinguish between those events which they, themselves, witnessed or experienced and those which their ancestors told them happened in a more distant past.
As for the second part of question #1, all oral narratives related in the present are "modern oral accounts," irrespective of when the events they purport to describe actually took place. Depending on their content, such accounts fall under the rubrics "oral history" or "oral tradition" as defined supra.
Ultimately, definitions and distinctions only become important if and when particular accounts are assessed and weighed as possible evidence of past events. Until careful analysis is completed, it may be more appropriate to use general terms like "oral narratives," "oral communications," "orally communicated information," or "oral performances."
Finally, it must be kept in mind that, aside from history and tradition, many other terms are used with reference to oral narratives. For details, readers should refer to the definitions of life history (Section 6.3), reminiscences (Section 6.4), commentaries (Section 6.5), testimony or evidence (Section 6.6), oral literature (Section 6.7), folk history (Section 6.8), folklore, myth, and legend (Section 6.9), and ethnohistory (Section 6.10).
5.2 Question 2
Based on a secondary source review, what are the issues which surround the use of North American oral tradition in mainstream history [and anthropology, as well as related disciplines]?
A wide variety of interrelated issues are debated in the literature (for opinions see Sections 6.11 - 6.14). I have organized important opinions under the general headings: Contested Pasts, Orality and Literacy, The Feedback Effect and the Present Past. Additional issues are addressed in my response to Question 3 (Section 5.3).
5.2.1 Contested Pasts (for opinions see Section 6.11)
Historical objectivism, which has been a dominant paradigm in North American historiography, has been challenged as problematic by a critical movement loosely organized under the rubric "postmodernism." This movement has surprisingly little positive to offer, beyond the important reaffirmation that there are multiple locations of historical knowledge and the axiom that all pasts are culturally mediated. It is essentially a form of relativism which holds that truth is perspectival and that there is no neutral, value-free, or objective history. It recognizes that the process of knowledge production is culturally mediated and that "expert" texts about the past which are written by historians, anthropologists and members of other academic guilds are socially constituted as authority and should have no privileged claims on universal truth. This has generated questions about who is authorized to tell the story of the past, who controls the authenticization process, and how various "voices" are included and excluded.
The relativist or postmodernist critique of historical objectivism has important implications for our consideration of oral narratives about the past. It is argued that such narratives help to democratize a history that is otherwise dominated by documents generated by or for elites. Oral narratives compete with academic reconstructions for legitimacy and are used as a challenge to hegemonic history. Reclaiming their "voice" from "expert" academics is a means by which Aboriginal peoples can assert social power and claim rights.
While radical proponents of both objectivist and relativist creeds may be found, most mainstream scholars tend to fall somewhere between the extremes. In other words, while the lessons of postmodernism are regarded as generally useful, there remains an attraction to some of the certainties offered by the older paradigm. Few still cling to a nineteenth-century positivism, but few will go so far as to concede that all history is fiction.
Paradoxically, the postmodernist argument that an Aboriginal voice is just as valid as an academic voice is sometimes construed to imply that an Aboriginal voice is intrinsically more valid. For example, it is argued that by changing the historical interpreter from an external "expert" to an Aboriginal person "the dichotomy between supposedly non-historical Aboriginal societies and 'progressive' European societies will be undone" (Fortune 1993:92). This turns into complete nonsense when one recalls that it was non-Aboriginal anthropologists who demonstrated conclusively that Native cultures were not static prior to European contact and who offered the most vocal challenge to the ethnocentrism of nineteenth-century evolutionism. I agree with Bruce Trigger that no scientific or moral arguments can be advanced for restricting the study of history to members of the group being investigated. The idea that people know best about their own past is, of course, a monstrous fallacy.
The fashionable supposition that history as told by outsiders is inherently biased, politically motivated, and a hegemonic assertion of dominance and power over those whose past is being told, must be rejected as untenable. After all, there are ample instances of stories told that are to the teller's disadvantage. To cite only one example, the sad and painful events surrounding the infamous Cherokee Removal exodus is known to the world almost exclusively from the diaries of white soldiers and other non-Aboriginal eyewitnesses. The absence of Cherokee oral traditions about these traumatic events in their own, relatively recent history does not mean that they did not happen or should be considered non-events. In fact, given that the recitation of past wrongs is an effective means to political gain, it seems unlikely that the Cherokee would refuse to employ this "history," even though it originated in the discourse of their oppressors. Similarly, western science (in the form of archaeological evidence) is regarded as favourable to the aspirations of the Northern Cheyenne and has been used by them as a tool for resistance.
It need hardly be emphasized that, when it comes to the contact between Native peoples and newcomers in the Canadian context, there can be no distinctions between Aboriginal and non-Aboriginal histories since both, by definition, have become part of a single historical trajectory. In my opinion, contested pasts are best resolved (if they need be resolved), not by separating histories based on oral narratives from histories based on written documents, but by recognizing that Aboriginal/ academic or orality/literacy dichotomies are counterproductive. I address this issue in greater detail in the following sections.
5.2.2 Orality and Literacy (for opinions see Section 6.12)
One of the issues that surfaces repeatedly in the literature concerns the relationship between oral and written sources. This relationship is often couched in terms of similarities and differences.
An oral tradition is a perpetual text-making and re-making which, once recorded in print, becomes frozen as a slice or representation of a moment in time. At that point a dynamic oration turns into a static text and the tradition may lose congruence with the changing needs of society. For this reason, it is occasionally argued that oral traditions should never be reduced to writing--that, by definition, they must exist as oral performance. Yet, temporarily "freezing" an oral tradition (and its context) by recording it on tape or in writing does not preclude continued orality, and remains the only practical means of subjecting a tradition to scrutiny, assessing its reliability or validity, and comparing it with other evidence.
If an oral narrative is offered as an insight into a past event that is under dispute (such as a treaty), it no longer serves only intra-group social or psychological functions, but is necessarily transformed into evidence used in support of a position in an inter-group conflict. The oral evidence can be identical, supplementary, complementary, or contradictory with respect to other (usually written) evidence; the only way to find out is to render all evidence comparable. Reducing a dynamic orality to static print for the purpose of fixing content and context for comparison is the most common method of producing comparable evidence; after all, most documents, including those generated within so-called "literate" societies, are orality recorded.
The fact that oral narratives must be "frozen" to be analyzed as evidence suggests that, in at least one important respect, they are different from written sources. Scholars have noted that a written document, while often biased in its original formulation, at least becomes permanent as it is archived and "subtracted from time." The original biases may be compounded by the interpretations of the historian who makes use of the document, but at least the content remains unaltered and may be interpreted by other parties. An oral tradition has additional problems. A primary or "original" version (if such existed to begin with) is lost to modern scrutiny since it is replaced by later versions. What is left may be multiple layers of interpretations which have accumulated over time and a content that may only vaguely resemble an "original" oration.
There is general agreement that oral narratives must be placed in the context of a total speech event. When, for example, oral narratives are collected in the form of an interview or other speech-counterspeech setting (such as examination on the witness stand), the results are a joint intellectual product of several parties. Hence, the questions are as important as the answers. Scholars have also stressed that, since performance is an important part of orality, oral texts cannot be divorced from either the orator or his/her audience. Some even argue that in literate traditions the meaning is the text, while in oral traditions the meaning is in the context. However, since a capable historian will always seek to contextualize documentary materials, I do not see how a text/context dichotomy can serve as a basis for differentiating literate and oral traditions. Context is important irrespective of genre.
I have been far more impressed with similarities, than with differences between oral and written narratives. Both types of sources are selective characterizations of events, both are subject to bias, and both can easily perpetuate fictions. Ironically, the understanding that printed sources can be exceedingly inaccurate has been partly stimulated by a recognition that these are often the records of inaccurate oral narratives.
More important, perhaps, is the growing awareness that orality and literacy form a continuum rather than a dichotomy, and that in modern times they rarely function independently. Even prior to the advent of literacy, many Aboriginal groups were not strictly "oral", but depended on mnemonic aids, such as birch bark scrolls, wampum belts, and condolence canes. Today, anyone who continues to generalize about the orality of Aboriginal peoples has apparently not been exposed to the significant corpus of documentary materials (books, articles, newspapers, etc.) written and published by Native peoples in this country.
By the same token, people in literate traditions are also participants in an oral world and, hence, can appreciate oral traditions as more than an exotic communications genre. For example, while I may assign readings for my students, much of the learning acquired in a course is communicated orally in the form of lectures which I seldom prepare in written form. In fact, much of the communication in my profession occurs orally; hence, the common parenthetical insertion "personal communication" in our published texts.
5.2.3 The Feedback Effect (for opinions see Section 6.13)
In light of the fact that modern oral narrations occur in a literate-technological matrix, it is not surprising to find that written documents are incorporated into oral traditions. I have documented this in my own work among Iroquoians (von Gernet 1995) and it is confirmed by researchers in other fields. This has profound implications, not only because it once again undermines resolute distinctions between oral and literate traditions, but because it affects the assessment of traditions as independent evidence. Since this "feedback effect" is known to be a widespread phenomenon, oral traditions must be subjected to careful scrutiny in the same way that secondary source materials are analyzed for their dependence on previous primary, written materials.
5.2.4 The Present Past (for opinions see Section 6.14)
Most historians understand that each new documentary history is written to serve some present need. Many scholars also appreciate that oral narratives are retrospective, in the sense that the past is characterized in terms that are meaningful in the present. Oral traditions may refer to the past, but they are often told to make statements about the present. Much like written histories, they are interpretations of the past which change as social and political circumstances change. They involve a dialectic in which individuals use insights from current events to help make sense of the past. These are not new revelations, inspired by a trendy postmodernist argument, but have long been acknowledged as axiomatic by historians and anthropologists.
While it is still sometimes argued that the past makes the present, more often it is conceded that the present creates the past by selectively appropriating, remembering, forgetting, or inventing. Where there is no apparent history it invariably is created. Traditions which appear or claim to be ancient, frequently turn out to be recent or invented. Invented traditions usually attempt to establish continuity with a real or imagined past. They are used as political symbols which seek to legitimize group membership, institutions, status, beliefs, or behaviour. It is well known that people resist rapid and imposed change by creating and mobilising memories of unchanging and harmonious pasts. This phenomenon has been documented in many different societies and is common among both Aboriginal and non-Aboriginal peoples.
Scholars have noted that discourses about national histories are often imbued with invented traditions. Indeed, oral narratives, much like their written counterparts, are often employed to help foster national identities. In the late nineteenth century, the Lumbee of North Carolina invented a tradition that alleged they were the descendants of Algonquians who had intermarried with the lost English colonists of sixteenth-century Roanoke. This origin tradition was the only means by which these people could distinguish themselves from other inhabitants of North Carolina. They are now recognized as "Indians" only because they succeeded in convincing their non-Aboriginal neighbours that their self-identification was embedded in history.
As Roger Keesing notes, some oral genres politicize material by casting rival groups in unfavourable light and bathing the raconteur's own group in glory. One need only recall the case of the dramatically different Tolowa and white versions of the Burnt Ranch massacre of 1853. The fact of the matter is that contradictory accounts tend to emerge whenever there is contact between cultures. Such differences in the understanding of past events is by no means confined to divergences between Aboriginal and non-Aboriginal peoples. For example, the Nomlaki and Yuki of California tell completely different oral traditions about past inter-tribal hostilities between them. Similarly, Wabanaki traditions about how they outwitted the Mohawks function to give them a patriotic spirit. A surprising number of oral traditions have been recorded in the context of conflict resolution and there is no reason to believe that such a phenomenon was less common in the past. Oral traditions are and were often used as tools in conflict; as Jan Vansina said, "one fights with tradition." Elites develop a lore to justify their hegemony, while non-elites create pasts to explain their lack of control.
All of this suggests that oral narratives are social actions which cannot be detached from the beliefs of the orators. Saying that oral narratives involve people's beliefs about the past is certainly different from asserting that they are of the past. It should be noted that, for many modern historians and anthropologists, what people imagine or believe might have happened is just as important as what did happen, because historically "untrue" statements are still psychologically or sociologically "true." Since people act in accordance with what they believe is true, this is of great interest to the social scientist.
Some anthropologists go so far as to reject the notion that any evidence about the past can be winnowed from Aboriginal oral narratives, since such traditions are not containers of "facts" to begin with. Instead, they advocate an approach that examines how the past is culturally constituted and how "facts" are culturally mediated in Aboriginal settings. Although some of my colleagues may leave the impression that the latter is or should be the approach adopted by all anthropologists, this is a matter of research interest and emphasis. It parallels an old debate between advocates of an "emic" folk history and an "etic" ethnohistory (see Sections 6.8 and 6.10).
As an anthropologist, I can assure the reader that many of my colleagues are, in fact, interested in winnowing historical "facts" (in a western sense) from oral narratives, and are not merely interested in studying what Aboriginal peoples believe(d) about their past. A good example is Helm and Gillespie's work among Dogrib elders. These researchers found that one class of narratives in Dogrib oral tradition does, in fact, embody historical realities about events in the early nineteenth century and resembles a western-style historicity. It should also be recalled that many Aboriginal peoples themselves have typologies within their own narrative genres. A good example is the distinction the Cree make between atiukan (myths about a remote past) and tipachiman (true stories about a more recent past).
Those anthropologists who assert that oral traditions have no evidential value, claim that one cannot distinguish between what "actually" happened and what people think should have happened in order for the past to conform to the present. Others, however, point out that each generation does not invent a brand new past with entirely new traditions. Rather, there is a process of selection in which some materials are discarded, some are retained, and some are re-interpreted. In other words, infinite variability in invented traditions may be partly constrained by previous traditions. The claim that traditions exist only for the present is an untenable exaggeration, for it fails to account for cultural continuities.
Having reviewed the literature, I can only conclude that just as it is naive to assume that oral traditions are necessarily about the past, it is equally inappropriate to suggest that such traditions, by virtue of being told in the present, are always devoid of any valid evidence about an "actual" past. Once again, sweeping generalizations must be supplanted by careful, case-by-case inquiries. This can only be accomplished with standard scholarly techniques already commonplace in the analysis of documentary materials.
5.3 Question 3
Based on a review of contemporary and modern oral accounts of historical events, how consistent do oral traditions remain over time? What factors contribute to the changing expressions of oral tradition?
In response to these questions, I have assembled opinions under the following broad categories: Memory, Reliability and Validity, Testing, Long-term Traditions, and Short-term Traditions. I summarize each in turn before offering a short answer in Section 5.3.6.
5.3.1 Memory (see opinions in Section 6.15)
No study of oral traditions allegedly describing events of the past can avoid a discussion of human memory. The notion that human memory is wholly unreliable has been disproved by research that suggests some people have a remarkable propensity to accurately recollect events of long ago. This propensity is not limited to members of so-called "oral" societies and, contrary to common belief, there is no evidence that people who depend more on orality have inherently better memories.
Yet, there may be something to the Chinese proverb that "the most retentive memory is weaker than the palest ink." Recent studies have cast doubt even on the popular assumption that eyewitness accounts about relatively recent events are reliable. More importantly, it is now generally acknowledged that memory is not pure recall, but is refracted through subsequent experience and contexts of social dynamics. In essence, memory is a construction in which past events are recreated anew rather than reproduced or retrieved from some type of storage system.
"Accurate" oral traditions, unlike oral histories (see definitions in Section 5.1 supra), depend not only on the ability of an individual to combat memory decay and refraction, but also on the unerring transmission from one individual to another. Oral traditions are essentially memories of memories. Unfortunately, experimental work has shown that significant changes take place during the transmission of oral information between humans.
It has been suggested that recall is facilitated when a memory involves a significant event that meets a social need. What then, are we to make of the Nez Percé who, by the late nineteenth century, could no longer remember how and when they first acquired horses--a momentous event that is known to have occurred only a century earlier and led to a radical transformation from a pedestrian to an equestrian culture?
The concession that some people have remarkably accurate recollections must be tempered with an understanding of the fallibility and selectivity of individual and collective memory. This, in turn, leads to a wider debate on the reliability and validity of oral traditions.
5.3.2 Reliability and Validity (opinions in Section 6.16)
The debate about the reliability and validity of oral traditions mirrors the tension between a positivistic historical objectivism on the one hand, and an anti-historical relativism on the other. The debate also reflects divergent views about whether oral traditions are about the past or the present.
The numerous opinions I have transcribed fall along a continuum. At the one end are those like Robert Lowie whose intransigence on the issue is evident in his oft-quoted dictum that one "cannot attach to oral traditions any historical value whatsoever under any conditions whatsoever." At the other end are those who regard all orally communicated pasts as rooted in historical fact. The majority fall somewhere between these positions.
I have found it useful to distinguish between reliability and validity, although these are not always specifically defined. Generally, the former refers to the consistency with which an oral narrative is told over time or among different tellers. The latter refers to the degree of conformity between the narrative of an event and the event as recorded by other primary sources such as written documents. Hence, an oral tradition can be reliable but invalid from a western positivistic viewpoint.
5.3.3 Testing (see opinions in Section 6.17)
If and when oral narratives are used as evidence in the western historical sense, they must be subjected to testing. Had scholars suspended normal critical canons of historical research, the Walam olum of the Delaware or Lenape Indians may still be regarded as evidence of prehistoric migrations, rather than the recent invention or forgery that it is.
Tests can be classified into two basic types: internal and external. Internal tests evaluate a narrative in terms of its own self-consistency. This may, for example, involve an identification of folklore themes, cross-checking and collation of multiple versions, and allowance for individual or group bias. External tests compare the narrative with other evidence such as written accounts, linguistic reconstructions or archaeological data. The opinions transcribed in Section 6.17 offer numerous useful suggestions.
Although testing is essential, there are many pitfalls. For example, the fact that people try to ensure verbatim replication and strongly believe that their accounts are accurate, does not, of course, mean that they are. Even consistency of accounts over time or among different contemporary informants, while possibly a measure of reliability, is by no means a guarantee of validity or conformity with empirical reality. Diffusion often renders different accounts dependent rather than independent. Some scholars even suggest that, in the case of oral traditions, converging evidence must be regarded as dependent until proven otherwise. Moreover, groups, as well as individuals, can sustain falsehoods, and consistency may have more to do with shared cultural and psychological predispositions than with accurate recollection.
The Creeks, Micmacs, Wyandots, and Lenapees all have oral traditions of a treaty allegedly made with a certain white man who offered a fair price for as much land as could be covered with a cowhide. Once the agreement was made, the white man tricked the Indians by cutting the cowhide into strips which he spread over a much wider area. Although the details of the story appear to be confirmed by the variety of apparently independent narrations, it is highly unlikely that the event actually took place. Among other things, the same story is told in Turkey, Iceland, France, Estonia, Greece, Egypt and Siberia. Folklorists have indexed it as Type 2400 and Motif K185.1, "Deceptive land purchase: ox-hide measure." All of these people may, in fact, have experienced deceptive land purchases at some time in the past. Yet, only by subjecting their oral narrative to in-depth scrutiny and comparison is it possible to asses how much of this may be historically "true" and how much of it is psychologically "true."
Testing Aboriginal oral narratives by comparing them with evidence derived from western scholarship does not necessarily introduce a prejudice against those who offer the oral material as evidence. In fact, comparing oral and written materials is a process of testing both types of sources. There may be cases where oral narratives cast suspicion on written sources, rather than the other way around. The controversy surrounding the escape route used by the Cheyenne during the outbreak of 1879 was partly resolved in favour of the Cheyenne; it was shown that independent archaeological evidence was more consistent with Cheyenne oral traditions than with the non-Aboriginal documentary histories. Alternatively, the oral narratives may fill in gaps in the written record. For example, Abenaki oral accounts resolve contradictory written accounts of the 1759 Franco-British rivalry in Maine. This also illustrates the importance of using sources in methodological conjunction.
Rigorous testing must be performed on all sources, irrespective of their status as oral or written narrative. Ironically, anthropologists such as Toby Morantz have complained that, while some oral narratives (e.g., among the Dogribs) have been subjected to extraordinarily rigorous testing, the written materials have been used uncritically.
5.3.4 Long-term Traditions (opinions in Section 6.18)
How long can historically "accurate" oral traditions be maintained? Long-term traditions, which I define as traditions allegedly describing events millennia ago are said to include references to giant beavers, mammoths, mastodons, and other mega-fauna known to be extinct for thousands of years. I have examined all reported cases and have concluded that, while intriguing, these traditions cannot be used as evidence for the existence and persistence of a long-term cultural memory of Pleistocene North America or of the Paleo-Indian period. Aboriginal and non-Aboriginal proponents of such "fossil memories" stretch credulity to unreasonable limits and offer arguments fraught with non sequitur.
5.3.5 Short-term Traditions (see opinions in Section 6.19)
Evidence has been mounting that many Aboriginal oral traditions contain information on historical realities that are centuries old. These traditions have usually been validated by using the type of external tests described in Section 5.3.3 (supra).
Some traditions in Alaska can be correlated with geological events in A.D. 1400 and even A.D. 720. The Paiute have traditions about the Pueblo peoples of 800 years ago. Modern Abenaki and Cree traditions give details of events which took place in the seventeenth and eighteenth centuries. The Hopi have traditions of the coming of the Spanish and the Pueblo Revolt of 1680. The Inuit of the 1860s had oral traditions of Frobisher's voyages of the 1570s. The Tlingit of the 1880s had similar traditions about the European exploration of the Northwest Coast in 1786. The Passamaquoddy have oral accounts of events which took place during the American Revolution. Twentieth-century Netsilik recalled nineteenth-century European expeditions into the arctic. Dogrib traditions recount events in the 1820s. While details are often exceedingly sketchy and not all cases are incontrovertible, these studies cannot be entirely discounted. Having examined these cases in some detail, I can only conclude that there is sufficient evidence to warrant an a priori assumption that Aboriginal oral traditions may contain evidence of "actual" past events (in a western sense) which occurred centuries ago.
5.3.6 Consistency
Returning to Question 3: how consistent are oral traditions over time? The answer depends on the case, as well as on definitions of "consistency." Athabaskan and Tlingit elders told the same stories in the 1980s that were recorded in the 1880s. Algonquian oral traditions have survived more than 300 years in recognizable form. An account of an Indian invasion of the Southwest from the Plains was given independently in 1525, 1880, and 1935. On the other hand, Hopi eyewitness accounts (i.e., oral histories recorded in the 1890s) about a Navaho attack in the 1850s were significantly altered by the time they became oral traditions in the 1930s. A Crow narrative recorded in 1931 had notable discrepancies when compared with an account of the same events obtained from the same informant in 1912.
When independent evidence is available to permit validation, some oral traditions about events centuries old turn out to be surprisingly accurate. Moreover, when multiple tellings have been recorded over the years and can be compared, some traditions appear to be consistent in many respects. While this may generate spirited optimism among those seeking to maximize the potential historicity of oral traditions, the news is not all good. There is, in fact, overwhelming evidence that many oral traditions do not remain consistent over time and are either inadvertently or deliberately changed to meet new needs. Aside from the fallibility of human memory and inter-individual transmission, the factor that most contributes to the changing expression of any given oral tradition is the social and political context of the "present" in which it is narrated (see Section 5.2.4 supra).
The fact that examples can be found to defend the positions of both advocates and sceptics is a good argument for abandoning any a priori conviction about the reliability or validity of oral traditions. The most prudent strategy is to carefully scrutinize oral narratives on a case-by-case basis.
5.4 Question 4
What research (or secondary source material) has dealt with oral tradition in a legal perspective?
Surprisingly little research has dealt specifically with oral tradition in a legal perspective, partly because oral communications fall under the law of evidence which is an established field of law with a set of existing rules.
The secondary materials I was able to locate (see Section 6.20) were generated primarily in reaction to the manner in which the courts have admitted, weighed and rejected oral narratives from Aboriginal witnesses. Much of the most recent literature on the subject concerns Chief Justice McEachern's landmark decision in Delgamuukw v. B.C. The academic reaction to his reasons for judgement is nothing short of astounding and ranks among the most vehement in recent memory. It dispels any notions people might have that scholars are dispassionate and disinterested parties.
Briefly, the complaints are that the court accepted written evidence uncritically as "factually accurate" information and dismissed oral traditions as being unable to meet standards prescribed by law. In other words, documents, which according to the court "speak for themselves," carry more weight. The court was also chastised for apparently setting written documents as the standard to which oral sources must conform. The presiding judge was accused of positivism, ethnocentrism and various other isms. It was lamented that he failed to account for the problematic nature of history and merely entrenched his own western historicity.
In my view, McEachern C.J. did volunteer some rather unfortunate commentary; while many of the criticisms are justified, some are unfair, and several assertions about the judge's position are demonstrably false. More importantly, the critique consists of a resolute defence of the postmodernist, antipositivist agenda. The critics seem not to be bothered by the fact that theirs is not an Aboriginal perspective competing for equal time in the courtroom, but an ideology emerging from the same western, intellectual tradition and discourse they so ardently oppose. Contrary to the impression left by them, this ideology has not completely replaced older ideologies or achieved hegemony in contemporary academic discourse, but competes with other approaches, including various incarnations of materialism, positivism and historical objectivism. To suggest, then, that our legal system is anachronistic and somehow out of touch with the academic world is disingenuous. For practical and legal purposes, the court simply adopted a framework that, while problematic, is not at all uncommon in the academic world and is reflected in much of the literature examined in this study.
Rather than depending on the secondary reactions to the way in which oral traditions are seen by our legal system, it is best to examine original court judgements. I now turn to the latter.
5.5 Question 5
Based on a list of summarized court cases which deal with the issue of oral tradition and on a secondary source review, what are the factors that limit, and/or enhance, the utility of oral tradition in the Canadian legal system?
I have transcribed numerous excerpts from court cases in which oral traditions were at issue (Section 6.21 infra). These cases do not, by any means, exhaust the case law. Nevertheless, I believe they are representative of the most recent legal thinking on the matter. Parenthetically, it should be noted that in Indian cases rulings made (and precedents set) in other national jurisdictions have transfer value in the Canadian context and are often cited by lawyers and judges. Hence, I have included important cases from the United States and Australia.
There is a recognition in the courts that history has a determinative effect upon issues involving Aboriginal rights. There is no question that legal outcomes often rest on historical interpretations. The courts acknowledge the importance of considering both written and oral narratives in contemplating historical issues relating to Aboriginal peoples.
The testimony of anthropologists who formulate opinions based on information received from Indians as to their oral traditions is generally admissible, although judges are just as liable to disregard any such "expert" evidence as biased. It seems they have also struggled with the problems inherent in the strict orality/literacy dichotomy discussed earlier (Sections 5.2.1 - 5.2.4 supra). For example, McEachern C.J. complained that he had "heard the evidence of numerous scientists who, for the purpose of their disciplines, have relied to some extent upon oral 'material' (a neutral word) even though some of it has now been reduced to writing by anthropologists and others, which adds still another dimension of difficulty to the weighing process."
Oral traditions are, by definition, hearsay evidence. In Uukw (Tait) et al. v. R. in Right of British Columbia and Attorney General of Canada the definition of hearsay included "collections of information or belief, passed on orally from generation to generation, which were also tendered as proof of the truth of the facts stated." Nevertheless, as evidence, oral traditions often fall under an exception to the hearsay rule known as reputation evidence, relating to declarations of deceased persons as to matters of public and general rights. For this reason, (and no doubt the contemporary political climate) there is a tendency to lean towards admissibility.
Although oral traditions may be given in evidence, as a matter of admissibility, they are still subject to considerations of weight. The courts feel obligated to consider what evidence is the best evidence in accordance with "the best evidence rule." Oral evidence must be weighed like any other evidence. Since statements made subsequent to the commencement of litigation are considered in that light, it is not surprising that oral traditions related during trial are often given less weight than information recorded prior to litigation.
In testing the trustworthiness of oral narratives, there is a general tendency to think that "the concurrence of many voices" raises a reasonable presumption that the facts are true. In light of our discussion in Section 5.3.3 (supra), this can only be considered naive. Fortunately, judges do not depend exclusively on this weak test.
In the Delgamuukw case, McEachern C.J. ruled that, while admissible out of necessity as exceptions to the hearsay rule, the oral traditions could not be treated as direct evidence of facts in issue except in a few cases. The presiding judge, himself, subjected the traditions to a number of tests and ultimately decided that the traditions were not "literally true:"
I am satisfied that the lay witnesses honestly believed everything they said was true and accurate. It was obvious to me, however, that very often they were recounting matters of faith which have become fact to them. If I do not accept their evidence, it will seldom be because I think they are untruthful, but rather because I have a different view of what is fact and what is belief. As with so many other cases, this one sorts itself out in such a way that the legal issues fall to be decided not on the validity of the plaintiffs' beliefs but rather by the application of legal principles to what they actually say within the totality of all the evidence.
The bottom line, here, is that "admissibility and weight of evidence are two completely different concepts." Similarly, Justice Muldoon, in Twinn et al vs. the Queen, permitted oral traditional testimony, but then subjected it to considerations of weight. He concluded with his own opinions on "the trouble with oral history," by alluding to the sticky problem (see Section 5.2.4 supra) of a present past:
It just does not lie easily in the mouth of the folk who transmit oral history to relate that their ancestors were ever venal, criminal, cruel, mean-spirited, unjust, cowardly, perfidious, bigoted or indeed, aught but noble, brave, fair and generous, etc. etc. In no time at all historical stories, if ever accurate, soon become mortally skewed propaganda, without objective verity...So saying, the Court is most emphatically not mocking or belittling those who assert that, because their ancestors never developed writing, oral history is their only means of keeping their history alive. It would always be best to put the stories into writing at the earliest possible time in order to avoid some of the embellishments which render oral history so unreliable.
Judges rely not only on previous case law, but also on standard sources (such as Phipson and Wigmore) for guides on evidentiary issues and tests of trustworthiness. The court is also entitled to rely on its own historical knowledge and research and may take judicial notice of opinions made in non-legal contexts. Hence, McEachern C.J. cites a work by anthropologist Bruce Trigger in support of an opinion that oral traditions not subjected to independent verification or critical scrutiny cannot be regarded as accurate historical accounts. He is reminded by "many learned authors" to be cautious. It is clear that our legal system does not operate in a vacuum, but depends in part on the academic research and opinions of the type reviewed in this study.
My review of the legal literature suggests that the main factors which limit, and/or enhance, the utility of oral tradition in the Canadian legal system are similar to those I have already identified in the academic literature. Nevertheless, there are differences. While in the academic literature oral traditions are seriously considered because they are recognized as being similar to documentary sources, the legal system tends to admit them out of necessity. The legal system then operates from within a resolute positivism and a nineteenth-century form of historical objectivism. This is necessitated by the practical exigencies of dispute resolution and has no easy remedy.
The judiciary must be educated on the problematic nature of history and be encouraged to recognize that the pasts told by Aboriginal peoples cannot be accorded respect by slavishly maintaining fidelity to western rules of evidence. At the same time, parties in a dispute must recognize that the context of dispute resolution requires certain ground rules. In my view, these rules should include a requirement to reduce oral traditions (and any relevant contexts) to an accessible record for purposes of comparison and independent testing. Since our legal system entitles parties to a pre-trial examination of the evidence each party hopes to introduce, it is curious that oral traditions often surface only at trial. As is the case with "ancient" documents, it is preferable that analysis be done by qualified scholars prior to trial, so that judges who are compelled to decide on issues of weight can draw on the expert opinion reports prepared by all parties in a dispute, rather than depend solely on the speech-counterspeech discourse of a cross-examination. This does not place a greater burden on those who rely primarily on oral traditions since, as I indicated earlier (Sections 5.2.1 - 5.2.4 supra) the orality/literacy dichotomy is spurious, and, in any event, Aboriginal peoples routinely mobilise western academic "experts" to translate oral as well as written narratives into supporting evidence. It is clear that we have come to the point where some form of manual or other guide should be published to assist those struggling with issues surrounding the use of oral narratives in contested pasts. In the meantime, it is hoped that this preliminary literature review will serve to stimulate further research.
For the most part, I sympathize with the position of those anthropologists who believe it is inappropriate to use oral traditions from Aboriginal cultures as if they were equivalent to historical evidence as defined by western scholarship. Nevertheless, it must be kept in mind that this holds only when such traditions are restricted to the internal discourse of the narrator's own group. Once the tradition is offered as a challenge to another history, is purported to conform to an empirical reality or an "actual" past, or is admitted as "evidence" in dispute resolution, it can no longer be contextualized solely on its own terms. Now an unyielding relativism must give way to an acceptance of at least some positivistic criteria for assessing "truth value." The alternative is no resolution at all.
I leave the final word to Dora Wilson-Kenni, a Gitksan monitor and advisor in the Delgamuukw case:
None of our languages are written; it's an oral history. And I guess this is one of the arguments that was used against us; that there's oral history and nothing is written. I guess it's fine if anthropologists get this history and write it down and then it can be recognized... To me is was a sad day when I heard that decision [by Judge McEachern]. And yet in a way I was happy because in a way it was a victory. A victory in a way that yes, our oral history was slammed around as we were witnesses on the witness stand, but we have it written in black and white now for anyone to see in those transcripts, in those 374 volumes of transcripts. In all of the commissioned evidence, all of those affidavits--it's there written, and that is something that the Gitksan and Wet'suwet'en people have done to further this fight for recognition. [Wilson-Kenni 1992:9-11]
