In the assertion of their ways of living to governments formed in the European fashion, and in the absence of any written language or documentation, Native Americans initially struggled with the requirement that they prove their sometimes 10,000-year-old customs.
To accommodate this, the Courts, led by Canada, have developed an innovative process to receive evidence of ancient customs by the tool of oral histories, best delivered by elder members of the particular aboriginal or Indian group, and corroborated by secondary evidence such as anthropologists.
As with any new legal tool, the process has taken some time to develop.
In the Nisga'a Final Agreement, a 1999 internal treaty the Government of Canada signed with one of its largest native groups, the preamble states (emphasis added):
"The Parties acknowledge the ongoing importance to the Nisga'a Nation of the hereditary chiefs and matriarchs continuing to tell their oral histories relating to their family hunting, fishing, and gathering territories in accordance with the Nisga'a traditional laws and practices."
Cases evolved until the 2011 case of Mitchell v Minister of National Revenue, in which Chief Justice Beverly McLachlin of Canada's Supreme Court used these words to succinctly digest the relevant law on the admission of oral history in a court of law:
"Courts render decisions on the basis of evidence. This fundamental principle applies to aboriginal claims as much as to any other claim. Van der Peet and Delgamuukw affirm the continued applicability of the rules of evidence, while cautioning that these rules must be applied flexibly, in a manner commensurate with the inherent difficulties posed by such claims and the promise of reconciliation. This flexible application of the rules of evidence permits, for example, the admissibility of evidence of post-contact activities to prove continuity with pre-contact practices, customs and traditions and the meaningful consideration of various forms of oral history.
"The flexible adaptation of traditional rules of evidence to the challenge of doing justice in aboriginal claims is but an application of the time-honoured principle that the rules of evidence are not cast in stone, nor are they enacted in a vacuum. Rather, they are animated by broad, flexible principles, applied purposively to promote truth-finding and fairness. The rules of evidence should facilitate justice, not stand in its way.
"Underlying the diverse rules on the admissibility of evidence are three simple ideas. First, the evidence must be useful in the sense of tending to prove a fact relevant to the issues in the case. Second, the evidence must be reasonably reliable; unreliable evidence may hinder the search for the truth more than help it. Third, even useful and reasonably reliable evidence may be excluded in the discretion of the trial judge if its probative value is overshadowed by its potential for prejudice.
"In Delgamuukw, mindful of these principles, the majority of this Court held that the rules of evidence must be adapted to accommodate oral histories, but did not mandate the blanket admissibility of such evidence or the weight it should be accorded by the trier of fact; rather, it emphasized that admissibility must be determined on a case-by-case basis.
"Oral histories are admissible as evidence where they are both useful and reasonably reliable, subject always to the exclusionary discretion of the trial judge.
"Aboriginal oral histories may meet the test of usefulness on two grounds. First, they may offer evidence of ancestral practices and their significance that would not otherwise be available. No other means of obtaining the same evidence may exist, given the absence of contemporaneous records. Second, oral histories may provide the aboriginal perspective on the right claimed. Without such evidence, it might be impossible to gain a true picture of the aboriginal practice relied on or its significance to the society in question.
"Determining what practices existed, and distinguishing central, defining features of a culture from traits that are marginal or peripheral, is no easy task at a remove of 400 years. Cultural identity is a subjective matter and not easily discerned.
"The second factor that must be considered in determining the admissibility of evidence in aboriginal cases is reliability: does the witness represent a reasonably reliable source of the particular people’s history? The trial judge need not go so far as to find a special guarantee of reliability. However, inquiries as to the witness’s ability to know and testify to orally transmitted aboriginal traditions and history may be appropriate both on the question of admissibility and the weight to be assigned the evidence if admitted.
"In determining the usefulness and reliability of oral histories, judges must resist facile assumptions based on Eurocentric traditions of gathering and passing on historical facts and traditions. Oral histories reflect the distinctive perspectives and cultures of the communities from which they originate and should not be discounted simply because they do not conform to the expectations of the non-aboriginal perspective. Thus, Delgamuukw cautions against facilely rejecting oral histories simply because they do not convey 'historical' truth, contain elements that may be classified as mythology, lack precise detail, embody material tangential to the judicial process, or are confined to the community whose history is being recounted."
One of countless but better known and colourful examples of oral history of aboriginal people is that of the formation of the Iroquois
Confederation, aka the Six Nations. Douglas Sanderson writes:
"According to Iroquois oral history, the
League's founder was Hiawatha, a high-ranking Onondaga chief who, distraught over the loss
of life due to inter-tribal wars, traveled from council fire to council fire in order to convince the
great nations of his area to bury the hatchet and create a type of permanent government to facilitate
the abolishment of war. While the histories of the tribes vary as to the exact sequence of events,
it is commonly held that the hatchets of each head of tribe were literally buried under the earth,
and a tree was planted on top of the hole under which the hatchets."