BKS2000H – Second Oral Presentation

ARTICLE: The Colonial Archive on Trial: Possession, Dispossession, and History in Delgamuukw v. British Columbia.

AUTHOR:  Adele Perry (Twitter: @AdelePerry)

KEYWORDS: Canadian History; Indigenous History; Colonization; Decolonization; Law; Archives;  Oral Stories; Wet’suwet’en; Gitksan; Delgamuukw v. British Columbia; Chief Justice Allan McEachern. 


THESIS

This paper deals with the work of archives, documents, and history in contemporary politics about possession and dispossession in British Columbia. It does so through a close of reading of what is, to local scholars at least, a familiar source, and that is the 1991 decision by the then Chief Justice Allan McEachern in the provincial Supreme Court case on Aboriginal land rights known as Delgamuukw v. British Columbia” (326).

COLONIALISM ON TRIAL 

“The colonial archives can alternately and sometimes simultaneously work to defend or challenge the states that create and sustain them” (327).

The Gitksan and Wet􏰀suwet􏰀en are two distinct peoples that inhabit the territories around the Skeena, Bulkely, and Nechako rivers in what is now northwestern British Columbia. Like most North American peoples, Gitksan and Wet􏰀suwet􏰀en societies convey meaning, knowledge, and history through material and oral mediums. The most significant document in the oral archive of the Gitksan is the adwaak, the verbal records of a house and its history. The Wet􏰀suwet􏰀en kungax or song-series serves a roughly analogous function. The Gitksan and Wet􏰀suwet􏰀en have a substantial history of contact with and resistance to European encroachment, but little of it is documented with the kind of legal archives that have regulated dispossession elsewhere in northern North America and the antipodes” (327).

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British Columbia’s Indigenous people in general and the Gitksan and Wet􏰀suwet􏰀en in particular entered the twentieth century with their Indigenous rights unacknowledged by the state and the particular archive—the treaty—that elsewhere marked colonialism’s small though significant recognition of Indigenous loss” (329).

“It was not their grievance but the scope of their claim that was new: the Gitksan and Wetsuweten asked the court to acknowledge their continued ownership and jurisdiction over a substantial part of British Columbia. This case rested on the argument that [Indigenous] sovereignty was intact unless explicitly otherwise agreed, documented, and archived; since the archive contained nothing that documented Gitksan and Wetsuweten people ceding their land to settlers or the state, Indigenous sovereignty remained in force. This argument had implications well beyond the local. At stake was British Columbia’s long history of denying [Indigenous] land claims and, ultimately, its status as a legitimate settler state” (331).

“The case was not simply a request for recognition, but a challenge for the Court to overcome notions of the superiority of Western culture and its methods of communication, preservation, and legitimation of knowledge” (331). 

Delgamuukw v. British Columbia was thus a literal challenge to the realpolitik of settler hegemony and a direct questioning of the historical methodology that documented, legitimated, and sustained it. It was, in the apt words of some local observers, colonialism on trial” (332).

THE ARCHIVAL ON TRIAL

The trial was a long one that was not only about archives but productive of one unto itself. There were 374 days spent in court and 141 days spent taking evidence out of court. It began in the northern community of Smithers in May 1987 and concluded in the southern metropolis of Vancouver in June of 1990. Sixty-one witnesses gave evidence, many using translators and others relying on ‘word spellers’ to assist with the Gitksan and Wet􏰀suwet􏰀en orthography. Another ninety-eight provided testimony through affidavits or other out-of-court means. After the trial’s completion McEachern commented on the vast amount of paper produced: 23,503 pages of transcript evidence from the trial, 5,898 pages of transcript evidence, 3,030 pages of commission evidence, and 2,553 pages of cross examination on affidavits, all preserved in hard copy and diskette. Roughly 9,200 exhibits were filed at trial, comprising an estimated 50,000 pages; there were 5,977 pages of transcript of argument. The province of British Columbia alone submitted twenty-eight of what McEachern called ‘huge binders’ with excerpts of exhibits referred to in argument, while the plaintiffs filed twenty-three” (332).

Yet it was not the scale and scope of the archive produced by the trial that led McEachern to reject the Gitksan and Wet􏰀suwet􏰀en case. It was what the plaintiffs knew about the history of British Columbia and how they knew it. Like Delgam Uukw, McEachern drew the conclusion that the content and methodology of the colonial past were irrevocably yoked. McEachern deemed the Gitksan and Wet􏰀suwet􏰀en view of the past too emotional and too political. ‘I have heard much at this trial about beliefs, feelings, and justice,’ he wrote, deeming these ‘subjective consideration’ that courts of law were unable to deal with (13). McEachern here adopts an analytic stance that privileges dispassionate and above all ‘objective’ accounts, a stance that is tellingly familiar to historians” (333).

It is of course no accident that the ontological link between orality and savagery on the one hand and literacy and civilization on the other occurred simultaneous to the rapid expansion of European territorial control and cultural hegemony over the non-Western world, including North America and the antipodes” (333).

Those who write and preserve their writing in what Begg calls ‘records’ have history and those who do not have only the misty netherworld of myth. The written archive is here the adjudicator of empire, deciding whose histories, and thus territorial claims, are legitimate and whose are not” (334).

“The diffculty of holding up this rule in a court case primarily about the past of an oral culture was grudgingly recognized by McEachern, who in a preliminary ruling decided the ‘the oral history of the people based on successive declarations of deceased persons was admissible.’ He made this decision, not because he had any particular faith in the oral archive, but because of the pragmatics produced by the legal pluralism that generally characterize imperial regimes. ‘Where there is no written history,’ he wrote, ‘such evidence satisfied the test of necessity.’ Here McEachern does not validate the oral archive as much as he accords it a limited utility in instances where there is no documentary alternative. Thus the practice of colonialism forced a modification in documentary regimes, but it was only a partial one. Oral evidence was also singled out for special considerations of weight. Evaluating oral testimony, according to McEachern, necessitated a distinction between history, myth, and anecdote, one he insisted on making in the face of the Gitksan and Wet􏰀suwet􏰀en’s counsel’s exegesis of E. H. Carr” (334).

“The trial challenged his faith in the ‘convenient but simplistic distinction between what European-based cultures would call mythology and ‘real’ matters’ but reinforced his conviction that textuality was a crucial signpost of civilization” (335).

McEachern adopts the voice of the historian as well as that of the traveler” (337).

The Judgment includes two lengthy historical narratives that might well be taken for a textbook of British Columbia history written between 1880 and 1945″ (338). → The first historical narrative begins with a dismissive nod to ‘the fascinating questions of Viking or other Norse-type explorations’ and quickly moves on to what has traditionally been the originary point of European histories of North America and the ‘new world’ in general, and that is European men’s ‘discovery’ of them” (338).

HISTORY AS JUDGE 

“Gitksan and Wet􏰀suwet􏰀en observers emphasized that Delgamuukw was one incident in a long history of imperial betrayal and that McEachern was merely the most recent colonial authority to refuse to acknowledge the existence and validity of Indigenous cultures, claims, and archives” (340).

This was a studied ignorance that some saw in distinctly gendered terms. A member of the litigation team, Dora Wilson-Kenni, remarked that the fact that McEachern’s decision was delivered on International Women’s Day was highly symbolic, ‘just like slamming our matriarchal system’” (340).

THE PRESENCE OF THE PAST

“In 1997 the Supreme Court of Canada reversed McEachern’s judgment on appeal” and “they did so on essentially archival grounds [which] is worth noting. While they did not find explicit fault with British Columbia’s Court legal decision, they did argue that McEachern had not paid sufficient attention to the oral archive. In doing so they both overturned the 1991 decision and made arguing Indigenous cases on the basis of oral evidence newly possible” (345). 


More information on Wet’suwet’en land defenders and land claims 


SOME TAKE AWAYS:

Example of how absences in the archive can challenge the nation-state. 

“This case rested on the argument that [Indigenous] sovereignty was intact unless explicitly otherwise agreed, documented, and archived; since the archive contained nothing that documented Gitksan and Wetsuweten people ceding their land to settlers or the state, Indigenous sovereignty remained in force” (332).

Example of how the colonial archive can simultaneously challenge and uphold colonial beliefs. 

For better or for worst, there are now more oral stories that have been archived (I say for better or for worst because what does it mean to have oral stories written down — does it limit them in some capacity?)

Delgamuuks versus British Columbia is an example of how easily traditional archives can be manipulated to uphold the nation-state. 

Chief Justice Allan McEachern played the ‘historian,’  in so doing he upheld colonial history. 

In his preliminary ruling, McEarchern decided that “‘the oral history of the people based on successive declarations of deceased persons was admissible.” (334).  However,  he sought to dismiss the oral texts in his final ruling.

McEarchern upheld the belief that there’s a type of  “ontological link between orality and savagery on the one hand and literacy and civilization on the other (333).

“Those who write and preserve their writing in what Begg calls ‘records’ have history and those who do not have only the misty netherworld of myth. The written archive is here the adjudicator of empire, deciding whose histories, and thus territorial claims, are legitimate and whose are not” (334).


HOW THIS ARTICLE RELATES TO OTHER ARTICLES 

RICARDO L. PUNZALAN  – “‘All the things we cannot articulate’: colonial leprosy archives and community commemoration”  → “Two views of archives seem to be most prominent. On the one hand, archives are sources of evidence about the past suitable to be harvested or mined by historians and other arbiters of knowledge about the past. On the other hand, there are an increasing number of claims that archives are the embodiment of and repository for society’s collective memory” (213).

ANN LAURA STOLER – “Colonial Archives and the Arts of Governance” → “As part of a wider impulse, we are no longer studying things, but the making of them” (89). → “For however deep and full the archival turn has been in post-colonial scholarship of the 1990s, what is more surprising is how thin and tentative it can still remain” (90).

BURTON, ANTOINETTE –  “Archive Stories Gender in the Making of Imperial and Colonial Histories” → “By drawing attention to the lived experience of imperial archives, I want to address a dimension of imperial history rarely talked about: the role of such places in shaping the imaginations of historians who rely on them for the stories they tell, the (counter)narratives they craft, and the political interventions they make” (95). → “All manner of impediments produced originally by the protocols of colonial government continue to structure the research experience. As one male historian observed, ‘Non–European women are harder to locate in colonial archives because they’ve been erased from the official records, often not named at all, or only named in partial or anglicized ways that make it difficult to determine their personal identity and social status.’”(100)