The Importance of Oral and Extrinsic Historical Evidence in Understanding Indian Treaties

In recent years, the Courts have instructed Canadians about the importance of oral testimony and other extrinsic historical evidence in providing context and insight into the meaning and interpretation of Indian treaties. The author reviews three books that explore how this genre of historical information assists both Native peoples Oral and Extrinsic Historical Evidence in Indian Treaties 123 and non-Natives in gaining a better understanding of Treaty No. 7 in southern Alberta, as well as the importance of the six numbered Indian treaties in Saskatchewan. This article also examines the courtroom role of historians and the creative use of extrinsic documentation in the Supreme Court of Canada trial of Donald Marshall Jr. in which senior justices breathed new life and substance into the Maritime Peace and Friendship Treaties. The author advises archivists and historians of an increased burden on their activities, as oral testimony and other types of extrinsic evidence will be used increasingly by adjudicative bodies to provide a modern interpretation to provisions of Indian treaties. This judicial activism has had, and will continue to have, a significant impact on the Canadian polity. These are three important and timely books on a subject – Canadian Indian treaties – which twenty years ago would not have generated much public attention or scholarly interest. Today, Indian treaties and the implementation of their historic provisions are a topic for intense public discussion. What factors have contributed to this increased public awareness? First, Indian treaties are now constitutional documents protected under Section thirty-five of the Constitution Act, 1982. Second, recent judicial activism has breathed new life and meaning into ancient treaty promises which, when implemented by government, have had a significant impact on local economies and fostered a sense of unease among natives and non-natives from the Maritimes to British Columbia. Given this situation, there is a need for books that will inform and contribute to the public debate on the role and place of Indian treaties in Canadian society. Each of the these books has a different analytical approach to Indian treaties and related issues. A unifying theme is that a simple reading of the written treaty text will not suffice to gain an understanding of the purpose, historical context, content, and expectations of the negotiating parties. The oral traditions of aboriginal participants and other extrinsic evidence associated with the treaty must be included in the analysis. This approach places a burden on archivists and historians to locate, preserve, and document all contemporary records, written or oral, relating to Indian treaty negotiations. The authors of The True Spirit and Original Intent of Treaty 7 have done an admirable job of presenting the oral historiography surrounding the negotiation of Treaty 7 in southern Alberta in 1877. The book represents the “collective memory” of over eighty elders from the Blood, Peigan, Siksika, Stoney, and Tsuu T’ina First Nations who recorded their thoughts and insights on the meaning of Treaty 7 on separate occasions in the 1970s and 1980s. According to the elders, Treaty 7 was a peace treaty, not a land cession treaty, in which Indian signatories agreed to “share” the land and resources with European settlers in exchange for education, annuity payments, reserve lands, and medical assistance. Thus the treaties were a form of social contract. The authors make it clear that different world views, conflicting agendas, and linguistic differences affected each party’s subsequent interpretation of

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