Placing Indigenous and European Knowledge on Equal Footing in the Delgamuukw Land Claim

The s that is now often added to turn the history of knowledge into the history of knowledges marks a huge challenge. While scholars working within European academic traditions increasingly recognize in principle that there are many kinds of knowledges and endeavor to respect them, any attempt to bring fundamentally different kinds of knowledge into sustained contact is extremely difficult.

This challenge is particularly acute in the case of indigenous land claims. Such claims generally appeal to the principle that a people has the right to continue using land in the ways its ancestors did and so depends upon knowledge of a distant past. The indigenous record of past land use is usually oral, not written, and the record is maintained through cultural practices that may be very alien to a court working in a European legal tradition. The differences run deep. What sustains many indigenous land claims is not just a difference of culture but a different way of knowing, hence the relevance of Wissensgeschichte. The challenge is all the sharper because with land claims it is not enough just to treat various ways of knowing with respect. The courts must make decisions. Land claims often overlap and conflict, and the courts cannot temporize; they must apportion the land and the rights to its use. The law therefore becomes an epistemological forcing ground. The courts must negotiate conflicting claims to truth even when there are fundamental differences between cultures as to how truth itself is understood.

The various depositions and legal arguments that culminated in the Supreme Court of Canada’s ruling in Delgamuukw versus Regina in 1997 are a case in point. In 1984, the Gitxsan and Wet’suwet’en peoples of northwest British Columbia launched a claim for their traditional territories that is now generally known simply as Delgamuukw, the hereditary chief’s name of the first of the plaintiffs.¹ The original trial judge rejected the claim and in his ruling showed scant sympathy or respect for indigenous culture. In its 1997 decision overruling the original decision, the Supreme Court not only held that the traditional knowledge of the Gitxsan and Wet’suwet’en should have been given greater weight, but established as a general principle that in similar cases oral evidence should be given the same weight as written, that is, that it should be “placed on an equal footing with the types of historical evidence that the courts are familiar with, which largely consists of historical documents.”²

The principle of “equal footing” raises issues that will be familiar to those working on the history of knowledges. “Equal footing” requires that the courts recognize the socially embedded nature not just of indigenous knowledge but of European knowledge, that is, that the courts’ basic procedures are culturally specific, or, as Simone Lässig puts it, that knowledge is “a product of human activity.”³ So John Burrows, a prominent expert on indigenous law, argues that the Supreme Court’s judgment in Delgamuukw does not go far enough in meeting the challenge it has set itself because it does not sufficiently recognize the social construction of European law. As he writes, the “description of the social role of Aboriginal oral histories is striking not because it is inaccurate—indeed the court is sensitive to the various roles these traditions can play—but because it betrays the court’s lack of awareness of the social function of common law.”⁴

When two ways of knowing are brought into forceful contact, their fundamental differences become more apparent. Both the Gitxsan and Wet’suwet’en, on the one hand, and the Canadian courts, on the other, preserve their legal records through long-standing rituals which reflect deeply engrained cultural norms. In the Supreme Court, for example, the judges wear scarlet robes and are seated on a raised platform. The lawyers appear before them in black robes, marking their position in the legal hierarchy as learned legal experts who are subordinate to judges. The hearings proceed according to an adversarial model, with strict rules both explicit (a pre-assigned list of those who are allowed to speak and limits on how long they have to do so) and implicit (the language must be precise and technical, the tone temperate, gestures subdued). Above all, the sober ritualistic exchange of the Supreme Court revolves around texts. The judges and the lawyers are surrounded by mounds of black folders. A typical intervention by one of the lawyers often begins as follows: “My lords, my lady (Justice Beverley McLachlin was at the time the one woman on the Supreme Court), if you will turn to binder three at tab four of my submission…”⁵

The Gitxsan and Wet’suwet’en also have distinctive protocols and rituals for the performance of their law. This drawing by Don Monet, who covered the trial as a free-lance artist, captures one of the moments highlighting the cultural difference, when, to the consternation of the trial judge, Mary Johnson, chief Antgulilibix of the Firewood clan, sang part of the oral tradition known as the adaawk (which is part of Gitxsan ayook or law).⁶

Much of the practice of the Supreme Court and the principles of English common law can be traced back to the seventeenth century.⁷ The underlying epistemological paradigm, however, is even older. Any medievalist watching the footing of the 1997 Supreme Court hearings will be struck by how scholastic the argumentation is. Knowledge, according to the scholastic paradigm, is not just what is written but what can be divided. Knowledge consists of homologous units that can be ranked, numbered, and indexed. This is the approach of the medieval scholastics that developed in the cathedral schools and universities of the twelfth and thirteenth centuries. As the great art historian Erwin Panofsky put it,

We take it for granted that major works of scholarship, especially systems of philosophy and doctoral theses, are organized according to a scheme of division and subdivision, condensable into a table of contents or synopsis, where all parts denoted by numbers or letters of the same class are on the same logical level; so that the same relation of subordination obtains between, say, sub-section (a), section (1), chapter (I) and book (A) as does between say, sub-section (b), section (5), chapter (IV) and book (C). However, this kind of systematic articulation was quite unknown until the advent of Scholasticism.⁸

The massive body of written legal judgments used by a modern court is organized according to this principle of division and subdivision. This is a fundamental principle of what, in the context of indigenous land claims, is often called white man’s law.

While the term Wissensgeschichte or history of knowledge is not widely used in the writings on indigenous land claims, at least not in the Canadian context, Canadian jurisprudence faces many of the same issues. Above all, the history of knowledges helps us understand why people are so deeply embedded in their various ways of constructing knowledge and how hard it is for them to think outside these constructions.

Andrew Taylor is Professor, Department of English, University of Ottawa, and Coordinator of Medieval and Renaissance Studies.