Telling It to the Judge: Taking Native History to Court (review)

Reviews NAIS 1:2 FALL 2014 190 CAMIE AUGUSTUS Telling It to the Judge: Taking Native History to Court by Arthur J. Ray McGill-Queen’s University Press, 2011 SINCE THE LANDMARK CALDER DECISION was handed down in 1973, there has been no shortage of literature on Aboriginal rights and the courts. Most of it, however , has been written by legal scholars. More recently, we have witnessed a growing body of commentary from other scholars, especially historians, anthropologists, and geographers. It is particularly those who have been directly involved in the process of claims as expert witnesses who are slowly uncovering another perspective on Aboriginal law. Arthur Ray’s Telling It to the Judge: Taking Native History to Court is one such example. A well-respected historical geographer with a long academic career and author of numerous fur-trade histories, Ray’s experience as an academic expert to the courts on significant cases such as Horseman, Delgamuukw , and the more recent Powley makes him the ideal candidate for this task. A foreword by lawyer Jean Teillet and introduction by legal scholar Peter W. Hutchins outline some of the problems with the Canadian legal system as the venue for settling Aboriginal claims. Ray goes on to detail these very challenges throughout the book—indeed, one of its strengths—while also providing a narrative of his experiences. He shows how, in case after case, the problem of the courts is a problem of historical interpretation. It demands more than the strict legal interpretation of documents: it demands the inclusion and contribution of non-legal scholars, namely historians. The book’s chapters are organized thematically: all revolve around a central issue in Aboriginal law and a specific case. Chapter 1 begins with Ray’s first experience as an expert witness in the 1986 Horseman case, told in the context of the Aboriginal commercial right to trap. Chapter 2 focuses on Delgamuukw and the problems of interpreting evidence. Chapter 3 considers fisheries and harvesting rights through the Ontario case Wassaykessic, while chapter 4 examines treaty interpretation in Victor Buffalo. Chapters 5 and 6 examine Métis rights and identity from the Powley case in Ontario, while chapter 7 examines Métis harvesting rights cases that followed. Chapter 8 rounds off the book with some closing commentary regarding the challenges of expert witness work—one of the most analytical (and interesting) chapters of the book. Throughout Telling It to the Judge, Ray makes a strong and convincing ar- NAIS 1:2 FALL 2014 Reviews 191 gument for the importance of historical context to law as it applies to Aboriginal rights. He brings a historical perspective to the interpretation of law—­ something that is still underappreciated in the courts. Indeed, it is in the historical interpretation of legal issues where the greatest potential of the booklies;wemighthaveseenmorehere.Thewritingsometimestendstoward a description of events rather than an analytical critique of the process—­ perhaps this reflects the difficulty of transitioning to semi-­ autobiographical writing. But the meaning and intent of such detailed description without the larger context of analysis can be lost on the less-versed reader. There are times when Ray seems almost hesitant to offer his own interpretations, and he qualifies them when he does. But it is this much-needed historical interpretation of law that has the potential to bridge the culture gap between the practice of Aboriginal rights by Aboriginal people and the interpretation of them by the courts. Ray does well to explain the challenges of the mere logistics of the court process. Aboriginal rights cases tend to constitute seemingly endless streams of paper evidence, “sometimes presented . . . without the benefit of any context” (16). He also points to the differences that documentary evidence holds for the courts and for academics: the courts see documents as positive­ evidence—evidence that is submitted to demonstrate the truth. Indeed, documents are taken literally, at their face value (33). Academics, on the other hand, use documents to support their arguments—and often refute the face value of those documents. Documents are meant to be interpreted, not simply read, and cannot always be believed. Indeed, this difference in the use of documents illuminates one of the fundamental epistemological differences...

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