Aboriginal title and treaty rights research: A comparative look at Australia, Canada, New Zealand and the United States

New Zealand Journal of History

Volumn 37, Issue 1, 2003, Pages 5-21

  Ray, Arthur J ^a  

^a NONE

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EID: 60949926956     PISSN: 00288322     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (50)

1. Prior to the establishment of the ICC, this court handled legal disputes between Indians and the federal government. One of its most important decisions regarding historic treaties concerned the suit of the Choctaw Indians. This case was appealed to the United States Supreme court in Choctaw Nation v. United States, 119 US 1. The judgment can be viewed at http://www.usscplus.com/ online/case/hcase.asp?mpage=search.
2. One of the classic works of this period was Alfred L. Kroeber, Cultural and Natural Areas of Native North America, Berkeley, 1939.
3. A.L. Kroeber, 'The Nature of the Land-holding Group', Ethnohistory, 2, 4 (1955), pp.303-14.
4. Kroeber's Handbook of California Indians, which was published in 1925 by the Smithsonian Institution Bureau of American Ethnology, was the definitive work on California Indians.
5. Locke developed the labour theory of property. See Barbara Arneil, John Locke and America: The Defence of English Colonialism, Oxford, 1996.
6. Kroeber to Luttrell, 28 August 1952, Kroeber Papers, Reel 150, Folder 7.
7. Arthur J. Ray, 'Kroeber and the California Indian Claims: Myth and Reality', unpublished paper presented to Anthropology/History Colloquium, University of Illinois-Urbana, October, 2001.
8. Ralph Linton, The Study of Man: An Introduction, New York, 1936, pp.209-11.
9. Their expert divided tribal territories into three zones: nuclear areas (settlement sites), intermediate areas (adjacent to settlements and continually used for subsistence), and outlying areas (used only occasionally). Stuart A. Chalfant, 'Ethnological Field Investigation and Analysis of Historical Material Relevant to Coeur d'Alene Indian Aboriginal Distribution: A Report', Defendant's Exhibit 13, Claim 81: 153. Research for this report began in the summer of 1952. 'Briefs and exhibit digests before the Indian Claims Commission' (microform), New York, 1976.
10. Sheree Ronaasen, Richard O. Gemmer, and Mary Elizabeth Rudden, 'Rethinking Cultural Ecology, Multilinear Evolution, and Expert Witnesses: Julian Steward and the Indian Claims Commission Proceedings', in Richard Clemmer, Daniel Meyers and Mary Elizabeth Rudden, eds, Julian Steward and the Great Basin: The Making of an Anthropologist, Salt Lake City, 1999, pp.171-2.
11. This concept was articulated in Julian Steward, 'The Concept and Method of Cultural Ecology', in Theory of Culture Change: The Methodology of Multilinear Evolution, Urbana, 1955, pp.30-42.
12. Subsequently, Ralph Beals and Joseph Hester published the government's expert report. See Ralph Beals and Joseph Hester, Indian Land-use and Occupancy in California, 3 vols, New York, 1974.
13. Robert Heizer, who was a co-witness with Kroeber for the Indians, subsequently adopted the approach. See ch.3: 'Ecological Types of California Indian Cultures' in Robert Heizer and Albert B. Elsasser, The Natural World of the California Indians, Berkeley, 1980.
14. In his trial judgment, Chief Justice of the Supreme Court of British Columbia, Allan McEachern held that it took place between 1803 and 1858. Delgamuukw v. Regina: Reasons for Judgment, Supreme Court of British Columbia, Smithers Registry 0843, 8 March 1991, viii.
15. The documentary evidence was presented by Robert Galois, 'The History of the Upper Skeena Region, 1850-1927', unpublished report, February 1989
16. and Arthur J. Ray, 'Fur Trade History of Gitxzan and Wet'suet'en Territory', Proceedings At Trial, Supreme Court of British Columbia, Smithers Registry No. 0843, 20 March 1989, Exhibit Number 963.
17. Sheila Robinson, 'Protohistoric Developments in Gitksan and Wet'suet'en Territories', unpublished report, 12 May 1987, p.5.
18. The following works were most central to the Crown's case: Vernon Kobrinsky, 'The Tsimshianization of the Carrier Indians', in Problems in the Prehistory of the North American Subarctic: The Athabaskan Question, Calgary, 1977, pp.201-10;
19. Charles A. Bishop, 'Limiting Access to Limited Goods: The Origin of Stratification in Interior British Columbia', in The Development of Political Organization in Native North America, Proceedings of the American Ethnological Society, New York, 1979, pp. 148-61;
20. Julian Steward, 'Recording Culture Changes among the Carrier Indians of British Columbia', Explorations and Field Work of the Smithsonian Institution in 1940, Washington, 1941
21. and Julian Steward, 'Carrier Acculturation: The Direct Historical Approach', in Jane C. Steward and Robert F. Murphy, eds, Evolution and Ecology: Essays on Social Transformation by Julian Steward, Urbana, 1977, pp. 188-201.
22. This essay originally appeared in Stanley Diamond, ed., Culture in History: Essays in Honor of Paul Radin, New York, 1961, pp.732-44.
23. A.J. Ray, 'Creating the Image of the Savage in Defense of the Crown: The Ethnohistorian in Court', Special Issue, Native Studies Review, 6, 2 (1993), pp.13-28.
24. Delgamuukw v. Regina: Reasons for Judgment, ix.
25. Delgamuukw v. British Columbia, 1997. The court held: 'Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive aboriginal cultures'.
26. A.R. Radcliffe-Brown, 'Review: The Diffusion of Culture in Australia', Oceania, 1 (1930), pp.366-70.
27. Adam Kuper, The Invention of Primitive Society: Transformations of an Illusion, London, 1988, p. 174. According to Kuper, like Maine and Bronislaw Malinowski before him, Radcliffe-Brown was attracted to the study of the indigenous people of Australia in the belief they had 'primitive societies'.
28. L.R. Hiatt, Arguments About Aborigines: Australia and the Evolution of Social Anthropology, Cambridge, 1996, p.22. Hiatt provides an excellent history of the use of term horde, pp.20-26. The term was first used by the evolutionary anthropologists L. Fision and A. Howitt, who had strong ties with American anthropologist Lewis Henry Morgan.
29. nd ed., Canberra, 1998, 'Chapter 7: Traditional Aboriginal Owners and Anthropology'.
30. As early as the 1930s, anthropologist Olive Pink raised questions about the universality of Radcliffe-Brown's model by pointing out that men played obligatory roles in the ceremonial affairs of their mothers' territories. Reeves, pp. 133-4.
31. Anthropologist Nancy Willams has written an excellent account of the trial and its significance for Aboriginal people. See Nancy Willams, The Yolngu and Their Land: A System of Land Tenure and the Fight for Its Recognition, Canberra, 1986.
32. Mr Justice Toohey discusses the evolution of his thinking in the early claims cases in Report by The Aboriginal Land Commissioner for the Year Ended 30 June 1981, Canberra, 1982, pp.3-4.
33. His first book was a collection of early observers' and writers' accounts of Aborigine-newcomer relations and documents pertaining to government policies. Henry Reynolds, Aborigines and Settlers: The Australian Experience, 1788-1939, Melbourne, 1972.
34. Henry Reynolds, The Law of the Land, Ringwood, 1987 (reprinted 1992).
35. Bruce Rigsby, Department of Anthropology and Sociology, University of Queensland, personal communication, September 2001.
36. Julie Finlayson, 'Sustaining Memories: The Status of Oral and Written Evidence in Native Title Claims', in J. Finlayson, B. Rigsby and H.J. Bek, Connections in Native Title: Genealogies, Kinship and Groups, Centre for Aboriginal Economic Policy Research the Australian National University, Research Monograph No. 13, Canberra, 1999, pp.89-90.
37. Issues regarding effective use and occupancy arose nonetheless. In the Ngai Tahu claim, for instance, they arose regarding Maori and Pakeha understanding of the term mahinga kai. These were tracts that were supposed to be reserved for the Maori. Colonial officials defined them as plantations or cultivated lands, a definition that the Ngai Tahu claimants regarded as being too narrow. The claimants considered that mahinga kai included all food gathering/producing areas. Waitangi Tribunal, The Ngai Tahu Report, Wellington, 1991, I, pp.66-7.
38. W.H. Oliver, 'The Future Behind Us: The Waitangi Tribunal's Retrospective Utopia', in A. Sharp and P. McHugh, eds, Histories, Power and Loss: Uses of the Past - A New Zealand Commentary, Wellington, 2001, p.11.
39. See, for example, Ann Parsonson, 'The Fate of Maori Land Rights in Early Colonial New Zealand: The Limits of the Treaty of Waitangi and the Doctrine of Aboriginal Title', in Diane Kirkby and Catherine Coleborne, eds, Law, History, Colonialism: The Reach of Empire, Manchester, 2001, pp.173-89
40. and M.P.K. Sorrenson, 'Giving Better Effect to the Treaty: Some thoughts for 1990', New Zealand Journal of History (NZJH), 24, 2 (1990), pp.135-19.
41. Michael Belgrave has noted that academic history programmes mostly have not provided historians with the language skills and training in oral history research that they need to undertake tribunal research. Michael Belgrave, 'Something Borrowed, Something New: History and the Waitangi Tribunal', in Bronwyn Dalley and Jock Phillips, eds, Going Public: The Changing Face of New Zealand History, Auckland, 2001, p.97.
42. Constance Backhouse, Ann Curthoys, Ian Duncanson and Ann Parsonson, '"Race", Gender and Nation in History and Law', in Kirkby and Coleborne, pp.283-4.
43. An example is David V. Williams, 'Te Kooti tango whenua': the Native Land Court 1864-1909, Wellington, 1999, pp.7-29.
44. Anne Salmond, 'The Study of Traditional Maori Society: The State of the Art', Journal of the Polynesian Society, 92, 3 (1983), p.316.
45. nd edn, Wellington, 1959 (1929).
46. Erik Olssen, 'Where to From Here?: Reflections on the Twentieth-Century Historiography of Nineteenth-Century New Zealand', NZJH, 26, 1 (1992), p.64. Olssen notes that a very few historians had begun this work in the 1970s, most notably Ann Parsonson and Judith Binney.
47. Alan Ward, An Unsettled History: Treaty Claims in New Zealand Today, Wellington, 1999, p. 171. Ward notes that the tribunal has produced 30 major reports since 1985 and that there are an additional 29 unpublished reports.
48. Michael Belgrave also notes that little of the tribunal evidence has found its way into the academic literature. Belgrave, 'Something Borrowed, Something New', p. 102.
49. Julian Steward, 'Theory and Application in a Social Science', Ethnohistory 4 (1955), p.300.
50. Alan Ward, 'History and Historians before the Waitangi Tribunal: Some Reflections on the Ngai Tahu Claim', NZJH, 24, 2 (1990), pp.157-8.