Slate Falls First Nation and the methodology of ethnohistory

Anthropologists in Court: Slate Falls First Nation and the methodology of ethnohistory.

Richard J. Preston

McMaster University

This essay is an opinion piece that may arouse strong feelings in some readers. I can say with certainty that involvement in this court case aroused an unanticipated level of passion in me and challenged my responsibility to read, write, and testify as a professional anthropologist, and as a moral person. It also became a month’s preoccupation and cost me some sleep. There is a big difference between writing for a court and writing for an academic audience. There are conflicts of interests and of professional opinions at stake, and from the outset I declare that my involvement in the case eventuated in substantial compensation. I was, and remain, critical of specific persons who regard themselves as anthropological expert witnesses. They represent the ‘partisan truths’ type of ‘expert’ that may be found in many professions and that, in my opinion, diminish the moral integrity and intellectual credibility of all our professional research and findings. The issues of justice that I will comment upon are of public concern. I emphasize that what follows is a statement of my opinions, not a claim to objective facts. But I feel that I must speak.

The physical setting was an Ontario Superior courtroom arranged with about six rows of six desks facing the podium, and there were about eight black robed lawyers representing “the defense” (federal and provincial ministries and Ontario Power Generation), and fewer representing one remote Ojibwe First Nation.

As my observation of the trial proceeded I came to the conclusion that the defense lawyers were either pretending their remarkable lack of substantial information or in fact knew very little about the Slate Falls First Nation, and understood even less. This struck me as a cynical approach to social justice, and I still hold that opinion. They seemed almost like a flock of crows hopping about, pecking at this and that, in hopes of diminishing the Slate Falls case by challenging anything that looked vulnerable in their witnesses’ statements. The lawyer for Slate Falls, on the other hand, was very well informed, had been to Slate Falls, and spoken with people there. I had no personal contact with two of the three anthropologists hired by the defense, though I had known one some years ago, when he was a graduate student in my department.

Slate Falls First Nation, located northwest of Osnaburgh House, Ontario, went to court for past grievances arising from a dam and headpond constructed by Ontario Hydro. I was asked by Ms. Susan Vella, a lawyer representing Slate Falls First Nation, to read and comment upon four reports prepared by anthropologists with specialties in ethnography and/or ethnohistory. The anthropologist whose case supported the Slate Falls Ojibwe was the late Dr. Krystyna Sieciechowicz, and since she was not able to come to the court, part of my role was to stand in for her in commenting on the reports and answering questions that might have been put to her. My report was submitted to the court through Ms. Vella. I then sent it to three senior Algonquianist colleagues for their comments. Ms. Vella thought my professional representation was suitable for being helpful to the court, the three Algonquianists admired it and one urged publication. It is my hope that this will illustrate the genre of anthropological writing for a court, and perhaps stimulate some discussion and debate about advocacy within Canadian anthropology.

My report was provided to the presiding judge and to the defense lawyers, each of whom may or may not have read it. After part of a day in court being questioned to qualify as an expert witness, I provided a brief “Anthropology 101”. Then I spent another court day being questioned by Ms. Vella, as a means to discussion of my report, and a part of a third day being cross-examined. It was an interesting experience. And yes, I was well paid. I can only assume that the other professionals involved were also well paid.

Since my experience is potentially of interest to anthropologists who may at some time be asked to testify in writing and in person, and since I am concerned that we have already done quite a lot of this with different degrees of professional skill and moral integrity, I wish to provide this as a case study. My opinions are an invitation to discussion of an important use of anthropology.

There are a few prominent questions that arise from this case. First, what are expert witnesses actually expert in? They need not be familiar with the people in the region under consideration, but only with a generalized “culture” that may be assumed to fit the particular case. They need not be well-versed in what has been written about the oral traditions and oral history of the people concerned. The expertise that they brought to the court appeared to be an exclusive, somewhat arcane analytical skill, labeled “methodology for evaluating the truth value of oral testimony”. I saw this as exclusive because the Indigenous people apparently were assumed to have only “folk-knowledge” of how to assess credibility of what people say. The court has more general expertise in assessing credibility of oral as well as written statements, including those of anthropologists, folklorists and historians, who it should be said, are not in unity regarding methodology.

Second, how professional is the expert? The expert witness is in an adversarial context, not a collegial one. Hired by an adversarial party, the expert feels, and to some degree conceals, a partisan stance. I know this experientially. This feeling is available to motivate a self-presentation of being confident in either championing or challenging the believability of people’s statements as oral evidence. The metaphor of an intellectual WMD[JP1] comes to mind. Professional performance is a craft, carried beyond motive by discipline.

Third, what does this “methodology” demand? Corroborating evidence from written records and/or archaeological findings. This does not require methodology. It is common sense to look for these kinds of corroborating evidence. In this case there was a truly remarkable absence of written records from the archives of Ontario Hydro, the Hudson’s Bay Company, and Indian Affairs, all of whom had record-keeping personnel in the area during the period in question. We would very much like to have them to compare with the oral statements. The expert witnesses for governments and Hydro were emphatic that documents are not just desirable; they are held to be essential. These witnesses presumably had resources to access the documents. So, where are the documents? It is my understanding that the Hydro archives are unorganized and virtually inaccessible in the basement at 800 Kipling Avenue in Etobicoke, ON. The HBCo archives are well-organized and quite accessible in the Provincial Archive of Manitoba, but the Post records for the years at issue are missing. The Indian Affairs archives are organized and accessible in the National Library and Archives of Canada.

Fourth, where are the documents? Charles Bishop told me that he found a few pages of the post records on the floor of an abandoned HBCo. Osnaburgh Post. The inaccessibility of Hydro archives is partly the result of downsizing staff, and may reflect a sense that the archives are currently a legal liability. Why there are no Indian Affairs records is a mystery to me. I have found records for other subarctic posts with no trouble. But I do not expect any of these documents to surface at some future time.

Fifth, and finally, how is the “methodology for evaluating the truth value of oral testimony” used? In my opinion, it is used strategically to move the discussion from the immediate setting of a conversation between adversaries, and take it to the podium of the expert witness. That is, it is an exclusionary device. By appealing to the abstract realm of epistemology, the desire for corroborating evidence takes on an aura of being mandatory.

I am an anthropologist, not a lawyer. But I believe that when anthropologists are engaged in legal testimony it behooves us to know something of the law in the area we have been engaged. There is a fair amount of jurisprudence on the legal effect and meaning of oral testimony. While it is the job of the lawyers and the justices to ensure this is factored, surely we as professionals, called in to the court as “experts”, should not ignore this jurisprudence. For the purposes of the Slate Falls case, it is relevant to be aware of[JP2] Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010. In this case, amongst many other relevant paragraphs, para 87 instructs us:

Notwithstanding the challenges created by the use of oral histories as proof of historical facts, the laws of evidence must be adapted in order that this type of evidence can be accommodated and placed on an equal footing with the types of historical evidence that courts are familiar with, which largely consists of historical documents.

My data for this case study is the report I submitted to the court, reproduced here, with some edits for the purposes of journal publication. In my conclusion to this paper, I will cite two court cases that bear directly on the issue, and on one of the expert witnesses.

Preston submission to court, August 29, 2011

OVERVIEW

Four anthropologists with specialties in ethnography and/or ethnohistory have presented reports that I have been asked to read and comment upon.

The ethnographer: Dr. Krystyna Sieciechowicz

We have an ethnographer’s report that is based in part on what some of the people of Slate Falls Nation say

1) about their relations with each other,

2) about where they hunted, fished, fowled and trapped,

3) about the flooding of Lake St. Joseph, a very large lake that was of central importance to their traditional pursuits, and

4) about how these pursuits had to be relocated and adapted.

A note on ethnography:

Literally, the word ‘ethnography’ means ‘writing culture’. Anthropology is the comparative study of past and contemporary cultures, focusing on the ways of life and customs of all peoples of the world. The ethnographer (in this case, Dr. Sieciechowicz) has the primary task of 1) listening carefully and fully to what people of a particular contemporary culture say, 2) understanding what they say “from the Native’s point of view”, and then 3) re-presenting, in what amounts to a cultural translation, what the ethnographer has learned. That is, writing with the goal of portraying the “Native’s point of view” to an audience that is not familiar with the culture and environment of the people s/he has studied.

Without this cultural translation, we may be very likely to be confused by, or sometimes to seriously misunderstand, what the people say, as in the example (quoted on p. 8 below, and on p. 108 of the Sieciechowicz report) of statements by a hunter that he can hunt and/or trap “anywhere.” What sounds like unrestrained physical access to hunting grounds is actually a statement of social standing, claiming that, if he asks, he expects to receive an invitation to use another’s lands. If the request is appropriate and respectful, it will be respected in return. In another example, mentioned on page 4 below, a hunter being sworn in at a court case does not feel that he can honestly swear to tell the whole truth. This is not a refusal of the oath, but a qualification that he can honestly promise to tell only those truths that he knows, and not more.

The general point here, and the general rationale for doing ethnography, is that the potential for misunderstandings across cultures are myriad, and misunderstandings sometimes have serious consequences. In contemporary claims for compensation, problems associated with land ownership and land resource use are a major hurdle. Whether and in what ways land is “owned” and whether land use rights are normally held “individually” or “collectively” is a perennial issue, perhaps because we have been thinking with our own cultural blinders, and have not been asking the right questions about land (Preston 1986). Much of anthropology is built on studies that seek to discern such variations of cultural meanings. My own career has had this focus.

The critics:

We also have three reports (Dr. von Gernet, Mr. Chartrand, Dr. Driben) using the methodology of ethnohistory as explanatory background for critiques of the oral statements regarding the changes brought about by the flooding of Lake St. Joseph. In addition to his comments on methodology, Dr. Driben makes substantial use of documentary evidence in critiquing selected aspects of the ethnographer’s report.

I read the ethnographer‘s report first, and then was surprised at the weight and narrow scope of fault-finding that all three defense experts placed on a single topic: the elder’s statements on the effects of the flooding and hardships that resulted. This is a small part of the full scope of Native statements that Dr. Sieciechowicz recorded and incorporated into her report. I have to wonder why they are not also challenging the pre-flooding statements and the rest of her report. Methodologically, this narrow focus creates a partial and therefore necessarily distorted picture of what the people said and what Dr. Sieciechowicz has written.

The Slate Falls people gave information on land use and occupation (p. 22-29), social organization, kinship and obligations between Anishnabeg, and between them and government people (p. 30-47) and actual land use (p. 48-73) with detailed mapping of this use prior to flooding and after flooding (p. 74-141). But these were topics that were apparently not of so much critical interest.

Because the methodology for evaluating the reliability/veracity of oral statements on the aftermath of flooding Lake St. Joseph (p. 149-167) was given much more prominence than I had expected, I have read much of the ethnographer’s report a second time, and then some of it a third time, with these criticisms in mind. My own conclusions are given at the end of my report, but I will include a brief statement here, as well.

My conclusion:

In my opinion, with regard specifically to the statements of the effects of flooding, neither Dr. Sieciechowicz, Dr. Driben, Dr. von Gernet, or Mr. Chartrand know with certainty the objective facts behind the elders’ statements, and can only offer their own opinions and their own rationale for their opinions. The level of confidence that each of these experts can reasonably claim for their opinion is not high enough to justify their claim to the status of objectively factual evidence. The factual evidence that I can discern is mainly empirical, not oral: substantial flooding did occur, hunting and fishing potential was diminished, and some people were obliged to relocate their hunting and fishing activities to areas other than Lake St. Joseph.

My credentials as a commentator:

First, let me say a few words about my own experience with methodology and with Northern Algonquian hunters’ use of words regarding experiences of hardship.

1) At McMaster University’s Department of Anthropology I taught the required doctoral seminar in the Method and Theory of Field Research for more than twenty years. My competence was based on both intellectual maturity and ethnographic experience. I recommend to these critics of Dr. Sieciechowicz report, a book titled The Method and Theory of Ethnology. Published by Paul Radin in 1933, it is the keystone of the many books on the topic written since. Radin wisely works from the premise that method is a varying process, depending on the nature of the data and the problems posited.

Methodology seeks to diminish this variability in favour of general procedural rules. This is a mark of maturity, but creates the need to balance the needs of general and comparative statements about cultures with the needs of a precise and appropriate representation of a particular cultural time and place. Methodology was not much developed or of much interest in Radin’s time, since the first priority was getting a record of cultures. But his observation of method as a variable remains a good general rule, a part of good methodology, and is found to be necessary by most ethnographers, and I will return to this point. And topically and culturally closer to our present ethnography/ethnohistory discussion, is Radin’s article appraising the strengths and weaknesses of oral tradition, “Ojibwa Ethnological Chit-Chat“. (1924)

2) Dr. Radin is also widely recognized for another keystone book, the life history he collected and edited, of Sam Blowsnake, also named Crashing Thunder, a Winnebago Indian. The method of life history became, and has remained, a genre within anthropology, with some early classics like Son of Old Man Hat (Navaho) and Sun Chief (Hopi) and eventually a very large number of documented lives and a critical literature on the methods of doing life histories. Over the past 80 years, the amount and quality of field research, and of critical attention has grown to maturity and into a genre of relatively generalized and abstract statements of protocols called methodology, for example Gelya Frank’s recent review essay, “Anthropology and Individual Lives: The Story of the Life History and the History of the Life Story.” American Anthropologist 97:145-148. The books are Charlotte Linde, “Life Stories: The Creation of Coherence” and George C. Rosenwald and Richard L. Ochberg, “The Cultural Politics of Self-Understanding.” Most of the statements recorded by Dr. Sieciechowicz are pieces of the life histories of some Slate Falls people.

3) My principal Cree mentor (“informant”) spoke with me for approximately three hundred hours, during the 1960s and 1970s, most of it taped. In the large number of stories he related, only three have given me cause to doubt some point in their veracity, in non-Native terms. The level of reliability that John Blackned maintained over many years of our relationship is singular in my experience with any person, Indigenous or non-Indigenous. Having said that, I have also known Crees, including two chiefs, whose veracity was sometimes much less satisfactory – one chief using words strategically and sometimes carelessly to score political points, and the other romantically depicting a past that never existed. What we can make of this variation is that not all Cree men are equal in their care with words. This should surprise no one. It is a human universal and certainly applies to anthropologists as well.

4) Furthermore, I argue that most full-time Northern Native hunters are very careful about respecting and re-presenting the truth[JP3] , as to live on the land, their very lives depend on truth both from themselves and others. Let me illustrate the hunter’s concern with his words. One Cree hunter testifying before Mr. Justice Albert Malouf 35 years ago, replied through his interpreter to the swearing-in query of telling the truth, the whole truth, and nothing but the truth, “He says that he does not know if he can do that, but he will tell you what he knows.” Who, after all, can tell the whole truth? The ideal that Sieciechowicz defines for us (p. 16-22) is quite an important tradition among hunters, whose speaking will be relied upon for guidance by other hunters, over a lifetime. And will contribute to the oral tradition of useful knowledge. Let us ask about the extent that particular individuals live up to the ideal, and accept that the ideal is quite real.

MY SUMMARY ASSESSMENT OF THE CRITICS:

Dr. von Gernet’s report:

He has, in my opinion, pointed to methodological weaknesses and flaws in a relatively small portion of the Sieciechowicz report, and yet has not given clear definition of just what this methodology consists of, deferring to a “case by case” approach. Case by case makes good sense, but does not define a methodology. At the same time, he apparently found little redeeming value in the ethnographer’s report. I do not agree. This was, I believe, Dr. von Gernet’s personal choice, albeit in the guise of rational necessity. In my opinion, he projects his claims of rational objectivity beyond what I think I can see. It serves the purpose of discrediting, not simply critiquing or correcting, Dr. Sieciechowicz’ work, on the basis of only one part of the work. Yes, she could have done better. But also, he could have done better, and he has by far the easier task. And of course, neither Dr. von Gernet nor the other critics have talked with the Slate Falls people, yet appear tacitly to assume that these elders are not credible, unless there is corroborating written evidence. But there is no known written evidence to either support or challenge the oral statements. No additional evidence should not be a basis for disqualifying the oral statement. [Include Delgamok quote here] A negative view is easy to take, but it is not necessarily justified, and may be seen as a pejorative diagnosis of the credibility of the elders, not a solution to the question of the extent of hardship caused by the flooding. If corroborating written documents were to be found, how would the critics respond to their evaluation of the elders? Clifford Geertz, one of the major 20^th century anthropologists, pointed out that we are much better at the diagnosis of problems than at formulating solutions. I think that we are seeing this manifested here.

Mr. Chartrand’s report is relatively brief, mostly (with the exception of item 1, see my detailed comments on p. 19, below) fair-minded and fairly well informed on ethnohistory. He concludes 1) that Dr. Sieciechowicz gives “unqualified” endorsement to oral history, and therefore is at odds with majority opinion, 2) that oral history should be treated “on a par” with other types of sources, and “subject to the same standards of evaluation”, 3) that no source, whatever the type (oral, written, or material), can simply be taken at face value, 4) that the narratives she collected may evidence several types of distortion, 5) that the narratives may meet community standards, but this is not sufficient, 6) that these narratives should not, and need not be considered a “stand alone” source, 7) that they can and should be complemented with independent sources, including a dozen written sources that he lists, and 8) that the level of confidence that may be placed in these narratives may be potentially great, but this should be established by comparison with the independent sources. Items 2-8 may be considered methodological statements.

It is my impression that matters at issue do not stand or fall on trying to prove the methodological weaknesses of particular points in the ethnographer’s report. For example, there is the empirical evidence of raising the water level of a large lake, flooding some hunting and fishing grounds, and of people under the necessity of shifting their hunting grounds to alternative and not preferable areas. There is the reasonable expectation that the Slate Falls people would not identically exaggerate (whether intentionally or unwittingly) the effects that the flooding had (their accounts are not identical), that the Chief at the time would not simply have made up out of nowhere a complaint in order to have occasion to shout at a Hydro official. So we need to go beyond methodology, into the record of what actually happened, as Dr. Driben does (see below), but with the goal of showing alternative explanations rather than simply disconfirming particular findings.

It is now clear to me that Dr. Sieciechowicz was well satisfied with the mutual respect and personal trust established between the elders she interviewed and herself. It is, in my opinion, no insult to her or to the elders to now place these statements within the context of the written documents and examine the extent of fit or congruence, and in that way achieve a level of more objective confidence established according to the standard that a majority of ethnohistorians expect. Dr. Driben’s manuscript shows us that some of this work has already been done, but he uses it with the limited perspective of casting serious doubt on her claims.

Dr. Driben’s report:

In a 100 page manuscript based on a 10 page bibliography and supported by 14 tables (and on his long career’s research in the region), Dr. Driben offers contrary opinions to those of Dr. Sieciechowicz, and backs them up with relevant documentation. The methodological challenges he offers are similar to those of Dr. von Gernet and Mr. Chartrand. But his report goes into more substantial grounds for challenging Dr. Sieciechowicz’ report.

What are we to make of these challenges?

1) The criticism is aimed at only one of four tasks in Dr. Sieciechowicz’ report, namely the interviews of three individual elders, regarding oral history information that they recall from personal experience and oral history information passed on to them by (specified) others (generally, their parents and grandparents).

2) Dr. Sieciechowicz did a good deal more than this, providing specific and complete detail on the social, cultural and ecological context within which the elders’ statements may be understood.

3) Using both oral statements and documentary resources, she has drawn up a genealogy of the Slate Fall First Nation. To my knowledge there is no other (potentially challenging) genealogy written for this group. Using oral statements and personal observation, she has written a description of the social organization of the Lake St. Joseph people. To my knowledge there is no other (potentially challenging) description written for this group. Bishop’s scope of the Osnaburgh band and the Rogers’ work on the social organization of the Round Lake people is of uncertain generalizability.

4) Using oral statements and elders’ mapping, she has collated a report of the family hunting areas and other land use territories, pre- and post-flooding, and identified specific sites that were flooded. To my knowledge there is no other (potentially challenging) description written for this group, and others’ work on the territories of Northern Algonquians have shown a variety of adaptive strategies. Any comparison with other groups and time periods is subject to proof of generalizability. I count these maps as documentary evidence. They are not written in prose, like trader’s journals or unpublished and published reports. But maps may be regarded as a documentary representation of a peoples’ history. Maps are drawn from data that is taken from oral reports and from Native mapping. They are a genre of history that is written graphically. There is a large critical literature on mapping, and the land use area demarcations are quite important to the Slate Falls people. Dr. Sieciechowicz has compiled and presented them as a part of her report.

5) Dr. Driben has not spoken to these parts of the Sieciechowicz Report, but specifically found three of the thirteen community members’ statements to be unreliable. This leaves a situation that is both negative and vague. It is not clear that further interviews would help to assess what the people say that may be regarded as reliable. As to the possibility of prior interviews, while Dr. Charles Bishop’s ethnohistory of Osnaburgh (Bishop 1974) is important, he does not claim to have made any first-hand observations at Lake St. Joseph.

6) Any “one-size-fits-all” narrow definition of “history” may be challenged on the basis that eye-witness statements given by elders of their own experiences and recollections of what their parents told them perhaps ten years after the fact are not very distant “history”. If I were to read the first paragraph of this report aloud, it would then, by this definition, be history. This term clearly needs qualification of the distance from immediate and remembered experience,

7) Dr. Driben has consulted the Hudson’s Bay Company (HBCo) ledger books, but not all of the HBCo post journals that might be expected to give a more complete account. In fact, some of the HBCo post journals for 1935-40 are missing (see table 10, Driben: p. 73), which is the period in question, and this seriously weakens the possibility of finding appropriate documentary evidence.

8) Dr. Driben’s Table 8 does not show the numbers of animals trapped, only the monetary value.

9) The critics of Dr. Sieciechowicz’ report omit the fact that she cites the HBCo post journal excerpts provided by Dr. Janet Armstrong. In fact, I do not recall that any of the critics cite this documentary evidence.

10)The numerous written sources used by Dr. Driben have yet to be examined in systematic accordance with the methodology of ethnohistory, for the level of probability that can reasonably be claimed of completely representing the situations they speak to. This is not a trivial point, since this is the main criticism made of Dr. Sieciechowicz’ report. The task would be enormous.

11)Ojibwe people coming in to the post or speaking to other non-Indigenous people cannot reasonably be expected to provide full disclosure, that is, to tell everything that they experienced, saw, or heard. Most hunters would not normally report their failings in providing food for their families. In my opinion this is an understatement. In my experience with Crees of the James Bay region (to the east of Slate Falls), people would often be taciturn regarding hardships relating to failures of the hunt unless the consequences were dire, or in some cases if they were negotiating for trade debt with a non-Native, as Rogers has written.

12)Objectively, it remains quite reasonable to expect that some, and probably most, people would undergo deprivation when a move of hunting grounds was necessitated.

13)Concepts such as the significance of distinctions between communal and individual ownership of land are a western-based dichotomy, and arguably inappropriate in this context. The Northern Algonquian land ownership debate is nearly exhausted from a century of arguments that are probably more a reflection of a few early 20^th century anthropologists’ political ideologies of communism vs capitalism that held the attention of several other anthropologists of the Eastern Subarctic, than of perspectives found among the Indigenous peoples. There is no good reason to believe that the Ojibwe used identical distinctions, or that they used any such fixed and defined categories as communal or individual. It is at least as likely that they used social categories that were more adaptable to circumstances. In the 1980s, for example, Dr. Sieicechowicz presented a convincing paper on the flexibility of principles of descent, marriage preferences, and land rights inheritance. These categories were shown to change as concrete ecological or social circumstances changed. Dr. Sieciechowicz makes the same argument in this report. I refer the readers also my introduction to a special issue of Anthropologica entitled “Who Owns the Beaver?” (Preston 1986)

14)Dr. Driben offers a list of alternative factors that account for the changes identified by Dr. Sieciechowicz, but does not give sufficient data to weigh their relative importance as processes of change, to know the time periods of their influence, or to demonstrate their actual dynamics. Time lines are needed to show when these factors were operative. This would require the same methodological rigor that oral accounts are required to pass.

15)There are a great many written documents used, but they each speak to only one or a few of the events at issue. As I have found in my documentary research on James Bay Crees, authors tend to be amateurs who may have very limited knowledge of what s/he reports, and may have reason to either unwittingly or even purposely distort the record of events. This is especially true of HBCo post managers or clerks, who are hired for their will and ability to conduct local business, not for skill as ethnographers. In many cases, there will be only one document relating to a particular issue, so requiring comparisons with other evidence that prove a point can not be taken for granted as an available option.

16)The possibility of ever gaining precise factual evidence that may be taken as having a high level of confidence in litigation is problematic, especially in the sparse northern region where other evidence, written or material, is usually scant. For this reason, even professional ethnohistorical accounts such as Bishop’s, Honigmann’s and my own entries in the Subarctic Volume of the Smithsonian Handbook of North American Indians (Helm 1981), are notably and justly general and tentative.

17)The issue of the credibility of the elders is a very serious one, comparable to the credibility of non-Native professionals, including anthropologists. The importance of knowing your informants well is, as Evans-Pritchard asserted nearly a century ago, fundamentally important, and the awareness of the reputations of these elders (or anthropologists) within their community is important. As her first 22 pages show, Dr. Sieciechowicz is aware of this. In my research with the James Bay Cree, I have been aware of marked differences in the authority that can reasonably be allowed to different individuals. This has ranged from the (regionally recognized) extraordinary veracity and coherence of my principal mentor, the late John Blackned of Waskaganish, to other old persons whose use of words was careless or whimsical and inconsistent. For example, John Blackned’s account of an event in the winter of 1832 has stood up very well in the light of a subsequent M.A. thesis on the topic that made extensive use of documentary evidence[JP4] .

MY REVIEWS OF EACH DOCUMENT

Dr. Sieciechowicz is writing from first-hand knowledge of the people and places she describes and quotes in considerable detail. She has researched this area and the surrounding region for several decades and is generally regarded as speaking with authority. I have heard her give conference presentations that compare and contrast the dynamics of social organization in communities in the region in a useful and interesting way, and years ago I read her Kayahna mapping report.

The picture that emerges in the first 74 pages is quite familiar to anthropologists of the Algonquian-speaking people of the Eastern Sub-Arctic and indicates that the author has done a good ethnographic job of discovering yet another case of 17^th- 19^th C. “traditional” northern Algonquian land use strategies.

The analysis is penetrating of the cultural idioms, some of them obscure to those unfamiliar with these cultures. See especially fn. 54 & 55 on p69 regarding the standard claim by a hunter that he can “go anywhere”. This is a social comment, not a geographical one, and means that he is not socially constrained in choosing which portion of the lands (that are normally known to him from personal experience) will be best suited to his hunting needs, preferences and privileges at this time. Further, it means that, as a visitor he expects that his safety will be the concern of the host.

Dinah Loon’s detail fits well with other descriptions in other regions of the Eastern Sub-Arctic, and this congruence of views over a large geographical area and a time period of two centuries is a basis for according Dr. Sieciechowicz an anthropological authority.

Dr. Sieciechowicz’ account is not perfect, but the flaws are mostly few and trivial. For some odd reason, in fn. 53 on p. 69 she misses the mark on the materials used for lacing snowshoes, which COULD have been gut but probably was simply thin-cut babiche (hide), which looks almost translucent. Other materials might have been used, including gut, or twine from a trading post, but the standard is babiche.

On the other hand, her assertion on p. 81 (mid-page) about the post-1935 maps plus oral tradition equals land use prior to 1934 sounds a bit overconfident. In compensation, there is a gradient of confidence provided by the inclusion of details in the description and discussion of the 2005 sets of family maps, where comparisons to the pre-flooding period are made explicitly or implicitly. The context of more contemporary details shows that, while the information is obviously qualitative, the accuracy provided by the sheer mass of detail indicates that “qualitative” does not mean vague and abstract.

I believe that it is useful to draw attention to this statement by Robert Wesley, “When he had his first child, his territory, because of the flooding was incapable of supporting a growing family and he moved to the Slate Falls area.” (p. 93) is diagnostic of the way that a person can state the facts without engaging in conflict or blaming (then known as) Ontario Hydro for the effects of constructing the dam and its headpond. Instead he explains that his territory was “incapable” – that the land could not provide a living for his family. This, in my opinion, follows the Northern Algonquian rule that the best way to deal with conflict is to avoid engaging in blaming the actions of others, thereby avoiding the risk of increasing the level of conflict, and to get on with whatever adaptation is necessary to deal with the necessity of getting a living for the family. There are sometimes exceptions, as when the Chief confronted the Hydro manager, but he had an exceptional responsibility to speak as the Chief, in a way that would be heard by the Hydro ‘chief’.

And there are sometimes exceptions that prove the general Northern Algonquian rules for land use. On page 103 of her report we are told of a family from an adjacent area that is exclusive, making a log boundary on the edge of their lands so that others will recognize their exclusivity and not go on these lands. The clear contrast is with the normal rule of respect for the family-based stewardship of hunting lands. In my opinion, this is truly exceptional and goes against the widespread and longstanding ethos of fairness and willingness to share, even in times of hardship. For an example of this ethos, see the p. 108 story of Don Loon, who “could trap anywhere” so long as he respected the family with whom he sojourned. Another example is the Reuben siblings who came from James Bay and settled into this area.

The return and production of the 2006 maps, using the intelligent and distinct strategy of identifying place names rather than asking for traditional activities (see pp. 110-112), adds a great deal to the documentation of pre-flooding life in the area, and to the impacts of the flooding. Then her 1978 Slate Falls Land Use maps are used to triangulate, as Sieciechowicz puts it, or cross-verify the statements made 27 years later.

The term triangulation refers to having three sets of evidence on a single problem, obtained at different times and with different ways of asking for information. They do not establish incontrovertible truth, but multiple sources often have more credibility than any one report by itself. The anthropological value is obvious if we consider the value in obtaining information of almost any kind on more than one source, location or date. As proof of verification, it remains wanting for documentary evidence, and well short of a congruence of oral report, documentary report, and physical evidence. But triangulation is a valid anthropological technique. It indicates a consistency of opinion and probability of accuracy that most anthropologists would usually be very glad to achieve. In the present case, while this is not the strongest possible proof, it is useful confirmation of each set of maps.

In summary, and with regard to the claims of past grievances, there was no memory of advance warnings or requests for advice and consent of the Indigenous people, and the angry exchange between Chief Carpenter and Mr. Mitchell followed by assurances of compensation bears this out. I find it reasonable to accept that there was substantial physical and environmental damage, economic losses, and social pressures and a diminished scale of social relationships. This whole scenario is quite typical of hydro projects in Northern Ontario such as the Moose River Basin, for which I have done studies of the cumulative effects on the Crees (Berkes and Preston 1996; Long and Preston 1998).

As the report comes closer to the present time, the detail and somewhat repetitive completeness of exposition gives way to less defined concerns and uncertain rights and responsibilities. The circumstances of the formation of the new Band and the changes of registration numbers has some contentious implications that are only hinted at, and the failure to have new lands designated has an ominous implication (p. 172-173). But this portion is not germane to the question of the effects of the flooding.

Queries and comments:

1) It would be good to have some precise idea of game fluctuations and fur price fluctuations in the period 1905-2005, as the background of the more localized fluctuations that may be attributed to the Hydro project.

2) In my experience in Northern Ontario and Northwestern Quebec, most Cree people do not explicitly attribute hardships to the disruptions caused by Hydro work, referring to it in general adaptive terms rather than oppositional and conflictive terms. Sieciechowicz informants do not emphasize grievances (p. 165-166), though some do mention them. This mirrors my findings for the Moose and TTN First[JP5] Nations, where people seem content to say that they moved to another area to get their living without an attribution of blame. This can be misleading, and may have influenced Dr. Driben’s optimistic emphasis on adaptation. In fact Long and I (1998), and Berkes and I (1996) were able to document the tangible data for considerable grievances in the two cases of Hydro projects in the Moose River basin during the 1930s. This cultural reticence is not helpful for the present purposes of claiming for past grievances, but it is the “traditional” Cree/Ojibwa way of dealing with conflicts by distancing oneself from them. Note that this is not deliberately misleading; it is omitting stories of Hydro’s disrespect for the land use rights of Indigenous peoples, because no one was present to see and hear this disrespect at the time.

3) Much of the written detail on the maps (pp. 74-141) assumes that we are actively looking at the maps while we are reading her prose material. This is a bit labourious but it is required for a precise “reading” without losing the thread of the overall argument. The maps constitute an historical document of detailed information regarding what people did and where they did it. I find them an important source of information on the effects of the flooding.

Dr. von Gernet’s report:

Dr. von Gernet’s manuscript does not identify his employer or any (implicit or explicit) mandate he might have been given as a part of his contract, and in a severe criticism of Susan Vella (see below) he implies that there can be no acceptable mandate of any kind in a contract for litigation research, as it would constitute contamination of research objectivity.

In my opinion, Dr. von Gernet writes very well; he is articulate and cogent. His research is careful and thorough. But it is also deceptively selective, which is to say that he has found and read many sources, choosing adroitly those that support the views he supports and choosing adroitly among those he criticizes. This is “conservative” secure litigation scholarship; not risk-taking and not visibly stacking the deck.

Dr. von Gernet has not felt it necessary or perhaps even desirable to have first hand knowledge of the Indigenous people whose case he now offers expert opinion on. In other words, he regards his “forensic” methodology as suitable for use in legal cases anywhere in the world. His choice of a relatively little used broad definition of forensic, with its unfortunate implication of evidence relating to crime, again exemplifies Dr. Geertz’ concern (see p. 4, above) that anthropologists are much better at diagnosis of problems than at discerning solutions. I think that Dr. von Gernet’s is a view very much within the tradition of the 17^th -19^th century Cartesian vision of a cumulative analytical science. In this he is at variance from most of his anthropologist and historian colleagues, but close to some descriptive linguists, some behaviourist psychologists, and some economists.

He appears (to me) to follow in the controversial footsteps of the late Dr. Harold Hickerson, an influential ethnohistorian who claimed that personal knowledge of contemporary members of the Native groups he studied would serve only to contaminate the perspective that he was able to adduce objectively from the documentary evidence. Perhaps it is worth mention that Dr. Charles A. Bishop, the ethnographer-ethnohistorian who has studied and written about Osnaburgh First Nation, was a student of Dr. Hickerson, but chose to follow his own leading and spent months in the community. Dr. Bishop has also challenged the reliability of oral statements in litigation cases, and it is curious that Dr. von Gernet would not mention this. Perhaps he is unaware of the principal written sources on Osnaburgh, or perhaps he has chosen to omit mention of them, for some reason.

In reading Dr. von Gernet’s report on the Slate Falls controversy, I am concerned at his apparent over-generalization in characterizing of the advocacy subfield of applied anthropology as “contaminated” by passion or opportunism, and claiming a diametrically opposite, rationalist position for his “forensic ethnohistory”. In my opinion he is claiming methodological authority without providing substantive evidence of his participation in the ongoing contestation of the uses of anthropology or of the critiques of the theory and methodology of fundamental social science. Certainly he is at variance from the generally accepted view of anthropology or culture history in particular, for which I refer the readers of this report to the Canadian Encyclopedia definition of anthropology, authored by Marc-Adelard Tremblay, past-president of the Royal Society of Canada, and myself in 1988 and still used in the current edition. Dr. von Gernet’s article in a festschrift for his supervisor, the late Bruce Trigger, and another in an (East) Indian journal of physical anthropology, and a Fraser Institute report are not impressive evidence of peer engagement in these issues or of achieving peer recognition, much less a wide professional acceptance of the legitimacy of his perspective.

In my opinion, his premise is that it is rationally and morally necessary to advocate and practice a dispassionate science of ethnohistory, uncontaminated by the (objectively ephemeral) personal or political pressures of the day. He also is at pains to use his rationalist perspective to vigourously oppose some ‘reckless extremes’ of relativism that he indicates under the label of “post-modernism”. Some of us would regard “rationalism vs post-modernism” as an out-of-date opposition.

To begin, consider his statement ”…to the extent that it is possible, I always examine the evidence without a priori opinions and oblivious to the manner in which my conclusions may be potentially favourable or prejudicial to preferred legal positions taken by any of the parties.” (p. 14). “Oblivious” is a surprisingly strong protest of innocence. This is particularly problematic when we see that he has been a consultant or participant in quite a large number of litigation cases and apparently (he does not mention this, but his critics do), is uniformly a witness for provincial or federal government ministries to serve their goal of discrediting oral evidence and thereby defeating an Indigenous claim. His omission of this detail might be seen as a counterpart of the reproach he levels at some advocacy anthropologists who choose to not mention facts that might be prejudicial to their argument, or their clients.

Of course we can all agree that many, perhaps most Northern Native claims tend to lack corroborating documentary or archaeological evidence. This should not be surprising, since there is little corroborating evidence of any kind available in most remote northern regions. Of course we can all agree that it would be good to have both written and archaeological corroboration of oral testimony, but this is not an ideal world and we must do the best we can to fairly assess what we have to work with.

Dr. von Gernet makes an entirely credible argument that the written and archaeological record is subject to similar criticisms. This is a crucial point I shall return to in my review of Dr. Driben’s report. The written record (whether documents or archaeological sites) begins in orality -- in unwritten words that are set down in document form, and so is necessarily subject to confirmation. For example, I have found that the rich archive of Hudson’s Bay Company (HBCo) post journals and correspondence have many errors of commission and omission, and of disagreement with other post journal authors. HBCo journals were written by men whose jobs were to provide profitable trading and proper accounting, not providing a historical record. For much of the fur trade history, literacy was enough to get a post job above the level of labourer, but there was no necessity for understanding what the Indigenous people were doing beyond the basics of trading for their furs. A very few traders were exceptions to this rule, and history is much in their debt, even though corroborating oral or archaeological evidence is often lacking. And of course archaeologists are famous for disagreements over the significance of the sites that they have studied.

Dr. von Gernet also cogently points out that oral history is a re-presentation of the past that may be skewed or contaminated by values or claims that were not part of the original intent – a long accepted view developed famously by philosopher Hans-Georg Gadamer and other hermeneutical scholars. Dr. von Gernet’s reference to the synoptic gospels is illustrative, though not particularly helpful, in this respect. It is at this point (p. 23) that Dr. von Gernet’s first step towards exclusion of orality is stated, “If the orator or someone else purports that the history or tradition related in the present contains information about an actual past, this must be demonstrated rather than assumed.”

While his statement appears quite sensible on the surface, it opens the way to holding oral history up to a standard of verification that often, perhaps usually, cannot be reached. That is, either the oral statement is “demonstrated” or, as he implies in this “must” condition, it must be invalidated as potentially a present person’s hopeful belief and/or opportunist claim. This opposition of “demonstrated” and “assumed” is plausible until we recognize that the great bulk of oral history must be regarded as existing without adequate confirming evidence. And most of us know that internal coherence is not a basis for confirmation, but only proves that the storyteller (or writer) has some aesthetic skill in laying out the story.

Dr. von Gernet has some preliminary criteria: “who told the story” (in my experience, this is often unknown), “for whom the story was told” (in my experience, often unknown), “and why the story was told” (in my experience, often unknown). And he adds coherence within and between each tradition, which is a large grey area. I have been thinking critically about James Bay Cree oral history/tradition for more than 50 years at the time of this writing, and find Dr. von Gernet’s approach intellectually feeble, unrealistically limiting, and closer to a strategy of minimum regret (accepting only certainties) than a more nuanced strategy for the discovery of aspects of culture.

This statement of criteria is followed by Dr. von Gernet’s remarkable disproof of Mi'kmaq claims about a wampum belt. In this case, a Mi’kmaq elder claimed great antiquity and meaning for a wampum that had been deposited in the Vatican collections. Dr. von Gernet went to the Vatican and, upon examination, determined that the wampum was not of such antiquity, and the discredited elder’s testimony was withdrawn. While this is a very impressive disconfirmation, the gap is very large between his very elementary criteria and his disproof of one elder’s claim of historical events. He fills the gap by saying that he proceeds on a case-by-case basis. I commend him for this good idea, but I am wary of how this has worked out in practice. There is no wampum belt at issue in the present case.

Moving to the report of Dr. Sieciechowicz, Dr. von Gernet starts by separating eye- witness accounts (“oral history”) from accounts told to people by older people (“oral tradition”), or statements by people who had relocated due to the 1935 flooding (no category given). These are narrow definitions, but they are standard in professional discourse.

He then severely criticizes the attorney Susan Vella for directing the course of research with… “gross interference with the objectivity of an expert opinion…” (p. 32-33) and says that he would have terminated the relationship if he had been receiving such directions.

This is a very vigourous, even damning, statement. It casts doubt on the legal ethics of Ms. Vella and the research ethics of Dr. Sieciechowicz. It also seems extreme to me, for I do not recall any of my 30 or so research periods in the James Bay region as entirely free from, or oblivious to, the expectations of funding organizations, Native people, intellectual mentors living or dead, or other academics. I do not believe that this seriously contaminated my research. It has simply been my responsibility to be aware of this and to decide whether and how to incorporate others’ expectations or influences into my thinking and writing. Informed choice is a personal responsibility for any of us. It is my impression that this is a normal state of affairs in research.

Clearly, the issue of an employer’s expectations of their researcher has touched a nerve for Dr. von Gernet, though he makes no mention of his own relations with employers or his perceptions of their expectations (for this we may consult Mr. Chartrand’s and Dr. Driben’s reports), save for his assurances of his scientific respectability. This is another curious omission in his story of his background and qualifications. He not only holds himself aloof from this kind of relationship, but castigates it as illegitimate. In effect, he gives an oral history statement of his own uncontaminated relationship to unidentified employers that could easily have been verified, but then does not provide the corroborating evidence. As such, in my opinion, it remains suspect.

From pp. 33 – 42, Dr. von Gernet takes issue with generalizations and apparent inconsistencies in Dr. Sieciechowicz report regarding “strict conventions” as the ideal criteria for establishing reliability of oral statements, and for several pages presents an excellent overview, with supporting excerpts, of several court decisions and of the explicit approval his statements received in Benoit and Drew. I find his argument to be a cogent cautionary statement, and commend his clarity of exposition. Except for his final line, “In the same vein, any effort by an outsider to subject them to critical scrutiny is more likely to be met by expressions of offense and outrage than regarded as an honest pursuit of truth.” This impresses me as an extraordinary overgeneralization verging on the stereotypical.

I wish to emphasize that “offense and outrage” may be his experience, but it is not mine. In my experience, the respectful pursuit of truth is an attitude that may be shared with Indigenous listeners. If expressed in a manner that appears to some Indigenous listeners to be disrespectful or even deliberately challenging, or with the imposition of foreign criteria, then it defines a situation of serious misunderstanding that could be offensive. I have witnessed this in exchanges between some bureaucrats (and a few researchers) who were attempting to influence some Crees. But in 50+ years I have not had this experience.

It is my impression that Dr. Sieciechowicz, in her first 22 pages, was speaking about the way that people (perhaps people everywhere) are faced with the wish to know whether, and how much, to believe what they are told – and we should take this seriously, not dismissively. At this point, Dr. von Gernet goes surprisingly off the track. When he says, “There is nothing to support…” he makes a sweeping generalization of his own, and I had to ask myself, how could he POSSIBLY know that? Surely there are some people who are mindful of their reputation and responsibility to their mentors and peers, who take it upon themselves to be as accurate as they can in recounting a story. Books in anthropology normally have something to say on this topic. My mentors and peers expressed this to me, and in turn I have expressed my need to respect the integrity of the accounts I was given by my mentors, whether Indigenous or not.

But instead, Dr. von Gernet goes on to a description of the social construction of historical reality, veering close to the post-modern critiques of modernist orthodoxies. Of course no one is immune to making these reinterpretations. People everywhere go off the track. He makes cogent points in critiquing Sieciechowicz’ “characteristics a-f” (pp. 44-51), showing flaws but failing to find the cogencies, or the persuasive evidences that are also there.

Perhaps this is his main strategy – finding any flaw in any assertion is apparently sufficient reason to disqualify it in its entirety. If he lacks a Vatican wampum, he can still assume that a crucial disconfirmation has taken place. This fits well with the Oxford Union Debate strategy of disconfirming your opponent’s argument by exposing any flaw. But the strategy fails the scientific requirement to discover what is accessible in terms not of strict logical consistency but of full inquiry, including data that may have positive ethnohistorical value, or unevaluated potential, or negative value – in other words, to test hypotheticodeductively[JP6] , to modify hypotheses in the light of new data, rather than to discard for any apparent flaw. He claims that he takes a case-by-case approach, but shows us only an abstract strategy for disconfirmation, and no strategy for open inquiry or confirmation.

Like Dr. Sieciechowicz, Dr. von Gernet occasionally indulges in hyperbole. This in itself is no great mischief, but adds to the odd symmetry of an advocacy ethnographer in comparison with a rationalist, avowedly dispassionate ethnohistorian. Hyperbole gathers momentum in his final pages, and then glides down into an assurance of the need for fair minded, dispassionate, uncontaminated evaluation of the evidence. I am not assured.

Dr. von Gernet has, in my opinion, pointed to methodological weaknesses and flaws in a relatively small portion of the Sieciechowicz report, and yet has not given clear definition of just what this methodology consists of, deferring to a “case by case” approach. Case by case makes good sense, but does not define a methodology. [JP7] At the same time, he apparently found little redeeming value in the ethnographer’s report. I do not agree. This was, I believe, Dr. von Gernet’s personal choice, albeit in the guise of rational necessity. In my opinion, he projects his claims of rational objectivity beyond what I think I can see. It serves the purpose of discrediting, not simply critiquing or correcting, Dr. Sieciechowicz’ work, on the basis of only one part of the work. And of course, neither Dr. von Gernet nor the other critics have talked with the Slate Falls people, yet appear to assume that these elders are not credible, unless there is corroborating written evidence. But this is simply a result of there being no known written evidence to either support or challenge the oral statements. It should not be a basis for disqualifying the oral statements. A negative view is easy to take, but it is not necessarily justified, and may be seen as a pejorative diagnosis of the elders, not a solution to the question of the extent of hardship caused by the flooding. If corroborating written documents were found, how would the critics respond to their evaluation of the elders? As already mentioned, Clifford Geertz pointed out that we are much better at the diagnosis of problems than at formulating solutions.[JP8] I believe that we have a case in point, here.

Bibliographic note: There are two major books that are germane to the Slate Falls case that deserved mention, at least in passing: Bishop 1974 and Long 2010. Further, based on his report, he apparently did not look at the ethnohistory of the region.

Mr. J P Chartrand’s report:

His mandate from the department of Justice Canada and the Ontario ministry of the Attorney General apparently led him to focus on Dr. Krystyna Sieciechowicz’ pages 16-22, on methodology.

Mr. Chartrand’s executive summary (two pages) lists his seven main points:

1) Dr. Sieciechowicz does not incorporate ethnohistorians’ consensus regarding the need to treat oral statements with the same standards of evaluation as other sources;

2) Dr. Sieciechowicz limits the scope of information gathering to one type (oral accounts);

3) Dr. Sieciechowicz limits the standards of evaluation to those of the Slate Falls community;

4) While 3) above conforms to the dictates of cultural relativism, this is not an adequate basis for establishing history, because it is lacking in independent confirmation.

5) Oral statements lack the scope of information that is methodologically desirable.

6) Documentary evidence exists, was not consulted, and should have been incorporated in Dr. Sieciechowicz’ report. (This is not quite true.)

7) Without the use of sources other than the perceptions of people at Slate Falls, the historical accuracy of their narratives cannot be established. (This statement should be qualified to refer to determining the level of confidence that may be attributed to particular narratives.)

A detailed (six pages) glossary defines, in his terms, the important concepts used in the report. In my opinion, some of his definitions are problematic, including cultural relativism, ethnography, and integrity.

A detailed (four pages) list of references does not include Dr. von Gernet (methodologist of ethnohistory), Charles A. Bishop 1974 (ethnohistory of Osnaburgh House post) or John S. Long 2010 (comprehensive study of Treaty Number 9)

A detailed (22 pages) critique of Dr. Sieciechowicz’ seven pages on methodology reveals that:

1) Mr. Chartrand agrees that Dr. Sieciechowicz has worked within the broad ethnohistorical research approach of seeking to “reconstruct how a group or people have perceived their own history in the context of contact between different cultural groups” (p. 5)

2) Ethnohistorical reconstructions “rely on both written documents and oral…if available. (Trigger1985:164)” (p.5)

3) Validity is described by Mr. Chartrand by analogy to a game of darts, where darts are clustered at the bulls-eye or off to the side. What I take to be implied here is that the validity of statements of what is purported to have happened is reliant on the exercise of an adequate methodology

4) Integrity as Mr. Chartrand defines it refers to “the scope or range of sources of data”. This is a limited definition, and is apparently intended to emphasize the reasonable point that the more sources of data you have, the better (p.7) It also is separated from “internal source criticism: or credibility of an account.

Section 4.1 of Mr. Chartrand’s report

Page 10, line 2 uses the concept of validity in a more conventional way (as truth value), which seems to me a much better use of the term than Mr. Chartrand gave earlier in this report. In this context I quote what follows:

Contrary to popular opinion (scholarly and non-scholarly), oral stories are no less sophisticated and complex than written literatures. In fact, I would hazard that it is the degree of conversivity and orality that gives literary works their power, depth, and vitality. (Brill de Ramirez 1999:3-4)

And then Mr. Chartrand’s opinion (hermeneutics notwithstanding):

The only inherent advantage of written historical sources over oral history stems from their tangibility, meaning the permanence of written texts, which facilitates assessments of authenticity and modification of contents.” (p. 10)

The consensus of contemporary opinion is that oral and written sources are to be given equivalent standing, and then both are to be regarded critically for their reliability in serving whatever goals there may be set.

First, orally communicated history can supplement written records; second, it can complement what has been documented in formal history; and third, it can provide information about the past that exists in no other form. (Allen and Montel 1981:14-15)(Chartrand p. 11)

The conclusion of this section is that both oral and written sources are subject to their own limitations, and have their own advantages to offer the historical record. I find this both cogent and acceptable.

Section 4.2 of Mr. Chartrand’s report includes a useful discussion of the strengths and weaknesses of semi-structured interviews, which are the most common for ethnographers generally and Dr. Sieciechowicz in particular (p. 12-14). The quotes from Hindley and from Gittins are a good start, but the subtleties that they only touch on are very important to the Native persons I have interviewed, in part because of their frequent sensitivity to the mood and attitude that they usually detect in me. Dell H. Hymes, in his writing on the ethnography of speaking, adds useful depth, and I would also suggest my 1975 paper “Reticence and self-expression: a study of style in social relations” and my book Cree Narrative (2002).

Mr. Chartrand has summarized a number of cautionary points quite well in this section. These do not disqualify oral accounts, but give the ethnographer/ethnohistorian a guide to deciding what qualifies accounts and what level of confidence to put into them.

Section 4.3 of Mr. Chartrand’s report.

The point here is that oral accounts can be examined for 1) internal consistency, 2) for corroboration from other accounts, oral, written or archaeological, 3) congruence in a wider context (p. 18), and 4) knowing the persons being interviewed. (p. 19)

On p. 20 Mr. Chartrand makes perhaps the only dogmatic and exclusive statement in the report. It surprised me to read,

The only method by which to assess the validity of oral history narratives and oral traditions is to compare narratives with outside (independently produced) historical sources. (p. 20)

He then supports his “only” criteria by quoting Jan Vansina (1985:160), but this Vansina quote only says that “the historian should attempt to complete his oral sources by outside sources” which is good sense and less draconian a mandate. The “only” criteria is Mr. Chartrand’s and gives him permission to disallow the elders’ statements. This, in my opinion, is not a methodologically legitimate point.

Section 5 of Mr. Chartrand’s report.

He concludes with the (in my opinion) unacceptable claim 1) that Dr. Sieciechowicz gives unqualified endorsement to oral history, which is at odds with majority opinion. His other conclusions (2-8) are acceptable. Specifically, they are 2) that oral history should be treated “on a par” with other types of sources, and “subject to the same standards of evaluation”, 3) no source, whatever the type, can be taken at face value, 4) the narratives she collected can evidence several types of distortion, 5) the narratives may meet community standards, but this is not sufficient, 6) these narratives should not and need not be a “stand alone” source, 7) they can and should be complemented with independent sources, including a dozen written sources that he lists, and 8) the level of confidence in these narratives is potentially great, but should be established by comparison with the independent sources.

In my opinion, his conclusion 1) that Dr. Sieciechowicz “gives unqualified endorsement to oral history” is an exaggeration that, if taken at face value, obscures the whole story of what the oral statements may say, or may not say, to an ethnohistorical forum. Mr. Chartrand’s other conclusions are fine general statements. But he is tacitly discounting the elders statements in claiming their “unqualified endorsement” and would be in a very embarrassing position if confirming written documentation were found.

Dr. Paul Driben’s manuscript:

Part One is an anthropological elder’s narrative of the values that have inhered, over the centuries, in taking oral and written histories in tandem, rather than separately, from Herodotus of Halicarnassus to Paul Driben of Thunder Bay. This puts him in a good position to persuasively point out the value lost in taking oral history in isolation, to the extent that Dr. Sieciechowicz has done this. Dr. Driben has done his written and oral preparation over most of his adult life, and, like Dr. Sieciechowicz, speaks with authority.

A few points of difference that I have with Dr. Driben’s report:

Please bear with me for a moment of theorizing that has a practical outcome. He references Levi-Strauss to say that the goal of ethnology is to draw general conclusions about…cultures. (p. 12) This is an ambitious goal which I would contrast with Clifford Geertz’ view that the goal is to enlarge the universe of human discourse. These two fundamental and differently ambitious views are expressions of a generalizing science (Levi-Strauss) and of an interpretive humanism (Geertz). For the task at hand, we see Dr. von Gernet’s orientation in the generalizing camp and Dr. Sieicechowicz in the interpretive. Ethnohistory offers us a way to see the two in tandem, rather than to dismiss either in favour of the other.

He cites Dr. Van (sic) Gernet’s claim that “memory is a construction in which past events are recreated anew rather than reproduced or retrieved from some type of storage system…” This “recreated anew” view (sometimes called “post-modern” or “post-structuralist”) is too often taken to an extreme that unjustifiably minimizes continuity in cultural transmission and maximizes the probability of history as an opportunity to invent fictions that serve present values and attitudes. This is a crucial issue and I wish to quote myself in order to speak to it in the abstract, and I will then speak to it in more detail.

Research into the reliability of knowledge in this context has something to do with replicability, but it has even more to do with authenticity and tradition. Currently the legitimacy of the concept of authentic tradition is being challenged on the basis that, because traditions are social constructions, rather than essential and enduring relationships, they are therefore ephemeral re-inventions of the past, often motivated by self-conscious boosting (Keesing 1989) or rejection (Thomas 1992) of current political goals.

I have taken a position in defense of the legitimacy of the concepts of authenticity and tradition, accepting at once that we are indeed talking about social constructions which are, in some cases, ephemeral and presentist, but holding that we humans are mostly unself-conscious of the larger historical domains of experience (tradition) and the deeper symbolic implications of experience (personality-in-culture), most of the time. Traditions are like icebergs; we only see the tip, unless we delve deeper. We can reinvent the appearance of the tip fairly easily, but all that other stuff is still attached, underneath.

The post-structuralists, then, have a good point, but they are scratching the surface. And although the depths are intuited more than they are consciously known, these authentic qualities of tradition and personality are nonetheless there; they are connected to each other; and discerning them clearly and reliably matters a great deal. Individual selves, each of us and all of us, are individuals in social relationships in history, participants in cultural patterns "which a given individual partly knows and directs, partly intuits and yields to, partly is unaware of and is swayed by." (Sapir 1949 [1932]:518) Access to these patterns is the hallmark of the Americanist tradition in ethnography. (Preston 1999)

The “recreated anew” or “social construction” perspective on memory and tradition only partially matches my experience of my past, either personally or ethnographically. Most of us, most of the time, are concerned to remember events accurately and reliably. If we are advertising, paranoid, or attempting fraud, we may intentionally become inventive for presentist reasons. Otherwise, the editing we do of memory is more subtle, and differently motivated, with an eye to our integrity.

A few points of appreciative agreement, and a caution:

1) Quoting Dr. Julie Cruikshank, a respected authority on the topic: “More important than the search for a body of orally narrated texts deemed accurate within a restricted western discourse is the question of how historical consciousness is constructed in societies where essential knowledge has always been passed in by word of mouth.” (p. 21) This is congruent with Dr. Sieciechowicz first 22 pages.

2) “It is for these reasons that the recollections that Sieciechowicz summarizes in her report cannot and should not be regarded as objective statements about past events, but rather as commentaries based on contemporary thoughts and feelings of her informants….” (p. 22)

This means (Preston speaking) that the oral statements were what the person thought at the time of the interview. I have written a book, Cree Narrative, that details my views on this topic (Preston 1976, second edition 2002). I would ALSO expect that it would reflect people’s response to years of travelling over the flooded area en route to Osnaburgh or elsewhere, and remembering what is under the water that was diminished by the flooding, such as grave sites, camp sites, sources of good food, and so on. To put it another way, these are intended as statements of fact, and they are intended to show a non-Native how they experienced these events.

3) Whether these recollections “cannot and should not be regarded” as valid depictions of past events cannot be known objectively by Dr. Driben. On the contrary, they MAY be valid, and on this point he goes beyond what he can reasonably know.

Part Two

Following a sketch of the history of the region, Dr. Driben develops the notions of ownership and use rights that he has discerned from his research. He poses the tension between personal and communal ownership and rights. It is his opinion that individual ownership and rights had displaced communal ones by the time of the hydro projects. This is a part of a long-term debate regarding Northern Algonquian peoples’ concepts and notions of ownership. (p.45) Dr. Driben states a personal choice of the individualist perspective, for the 20^th century Ojibwe of the region. In addition, it is his opinion that the ethic of subsistence, rather than accumulation for profit, has maintained substantial continuity through the whole period of recorded history for this region, evidently adapting from the communal forms to the individual. (p. 47)

In Dr. Driben’s report, subsistence is discussed and analyzed from p. 48-65 with the end of challenging Ds. Sieciechowicz’ claims of food insecurity following the flooding of Lake St. Joseph. In his opinion, adaptation was not difficult and did not include serious deprivation. I have some difficulty following or accepting his reasoning here, though I am familiar with the Bruce Winterhalter book on adaptation that he references. Reasoning aside, Dr. Driben offers excerpts from elders’ testimony that appears to contradict the claims of food insecurity. He concludes that adaptation was required by the hydro project, but that it was apparently successful. I regard this opinion and argument as unsubstantiated.

Commercial considerations

Trapping for furs fluctuated during the period in question, but Dr. Driben documents these fluctuations using a long time interval period and finds no solid evidence for the impacts of the hydro project. Again, he feels that the ability to adapt by changing locations and animals hunted was apparently adequate to meet the challenge of the hydro projects.

Ethnographic considerations

“Slate Falls Ojibwe were committed to a moderate standard of living, which helped to ensure that the land would meet their commercial needs.” (p. 75)

Part Three

Animal statistics have not been created in the context of a flooding impact study. What we have only reflects post-flooding figures at Osnaburgh House. Nonetheless, Dr. Driben is confident that traditional subsistence pursuits in hunting and foraging have become marginal in the household economies of Northern Ojibwe (p. 77). Commercial fishing and hunting are similarly diminished. (p. 78) Wage labour is sporadic and unpredictable, but was consistently sought. Welfare and social assistance, however, is steady and dependable, and hunting motivated by the traditional need to feed a family was greatly diminished (p. 91). Government interventions in economic pursuits (p.91-92) and in education discouraged traditional pursuits (p. 93-6). What is needed here is an interval by year timeline of when and how this adaptation took place.

In my opinion, this adaptation would not have been rapid in the period 1935-50. It was only in the 1950s and 60s that the Canadian north (and indeed the circumpolar north) saw a move from living on the land to living in year-round settlements.

In my view, the objective fact remains that flooding Lake St. Joseph would have markedly diminished the fishing potential, and fish were a major food at that time. Similarly, berry-picking areas and moose habitat were submerged and destroyed.

Part Four - conclusions

Dr. Driben says that cultures are adaptive strategies, and that ethnographers study particular adaptations. This is a narrow, partial definition of culture, and while not wrong, excludes the interpretive side of cultures that has held the major part of the attention of anthropologists since the 1970s. More satisfactory is Dr. Driben’s assertion that ethnologists use ethnographies to reach conclusions at a level of generality that overreaches the first hand information of any ethnography. (p.98) The “recollections that Sieciechowicz summarizes in her report cannot and should not be regarded as objective statements about events, but rather as commentaries based on the contemporary thoughts and feelings of her informants.” (p. 99)

I argue that these commentaries, while subjective, nonetheless may also be valid, essentially accurate statements of what happened.

On the “cultures as adaptive strategies” basis, Dr. Driben concludes that flooding of Lake St. Joseph did not have “severe adverse impacts”, but “permanent settlements, increases in overhead costs, new economic opportunities, government policy, and the residential school system were responsible for the change. These are the facts of the matter.” (p. 100)

This conclusion is reached with insufficient time-specific documentary evidence. It is very likely that the Hydro project was a significant conduit of changes for some years. To regard the flooding as without significant impact is a subjective assertion and may be compared in its subjectivity to the commentaries of the elders. Objectively, it could be valid, but “severe adverse impacts” could also be valid, so we need more and better documentation to substantiate Dr. Driben’s claim.

MY OWN GENERAL CONCLUSIONS

The critics did not have direct experience of the people whose testimony they are challenging. The elders[JP9] who provided information have at least implicitly been maligned by these critics, and this is bad anthropology, based on inadequate documentary evidence and on skepticism about oral commentaries.

The objective “facts” are, in my opinion, not yet established. Before moving to the generalities of ethnology, we can appreciate that, for these people and at this time, the loss of particular food resources and the necessity for relocating to less familiar locations for hunting, are an objective loss.

For example, fish were a staple food at that time and place. Lake St. Joseph was a very good fishery, but access to the fishery became precarious due to sunken debris and people had to move elsewhere to hunt. Other lakes in the region may or may not have been good fisheries, and it may have been difficult to find a good substitute place. Also, hunting for moose in the Lake St. Joseph area was familiar, both in knowing where the moose are likely to be at each season, and in knowing the lay of the land that they must be tracked across if they are not killed on first sight. In another, less-known area, the hunt is much more challenging, tracking is very difficult, and more likely to result in failure. A failure costs a great deal of food for a family, and may also cost several days in tracking.

Is Dr. Driben prepared to discount the statements of the elders, or only to recommend the search for more confirming information before they can be taken as facts in litigation?

In my opinion, with regard specifically to the elders statements, Dr. Sieciechowicz, Dr. Driben, Dr. von Gernet, and Mr. Chartrand do not know the facts behind the elders’ statements, and can only offer their own opinions and their own rationale for their opinions. The level of confidence that each of these experts can reasonably claim for their opinion is not high enough to justify their claim to the status of factual evidence.

And then there are the maps. I count these as documentary evidence. They are not written in prose, like trader’s journals or unpublished and published reports. But maps may be a documentary representation of a peoples’ history. This was shown in the Indigenous land use mapping of the Mackenzie Valley. The Mackenzie Valley Inquiry by Justice Thomas Berger was published in two volumes. Other very credible use of Indigenous land use mapping include the Dr. Milton M. M. R. Freeman mapping of Arctic and the Dr. Fikret Berkes et. al. mapping of Mushkegowuk Region land use, published in two issues of the journal Arctic (Berkes et. al., 1994, 1995). Maps are drawn from data that is taken from oral reports and from Indigenous mapping. They are a genre of history that is written graphically. There is a large critical literature, and they are quite important to the Slate Falls people. Dr. Sieciechowicz has compiled and presented them as a part of her report.

Conclusion

My own concern with other professionals in this case led me to do further research, after my court time was well passed. I found it interesting to discover cases where justices took the opportunity to comment on and criticize the “expert witness” Dr. von Gernet. A Supreme Court justice has commented on issues relevant in the Slate Falls case and on Dr. von Gernet’s position, as follows: Tsilhqot'in Nation v. British Columbia, 2007 BCSC 1700 (BC Supreme Court):

153 Canada says it is not their position, nor the position of Dr. von Gernet, that oral tradition evidence can only be given weight when it is corroborated by documentary or archaeological evidence. Corroboration will, of course, increase the ability of the court to assess historical factual accuracy. However, when oral history cannot be corroborated, it may still bear independent weight and the court must do its best to evaluate its strengths and weaknesses. Canada submits that, even where oral tradition is contradicted by documentary evidence, oral tradition evidence may still prevail and assessments must be made to gauge which, on a balance of probabilities, is more plausible. Such an approach is in keeping with the directions set out by the Supreme Court of Canada.

154 Despite what Canada has argued, I was left with the impression that Dr. von Gernet would be inclined to give no weight to oral tradition evidence in the absence of some corroboration. His preferred approach, following Vansina, involves the testing of oral tradition evidence produced in court by reference to external sources such as archaeology and documentary history. In the absence of such testing, he would not be prepared to offer an opinion on the weight to be given any particular oral tradition evidence. If such testing did not reveal some corroborative evidence, it is highly unlikely that he would give any weight to the particular oral tradition evidence. This approach is not legally sound. Trial judges have received specific directions that oral tradition evidence, where appropriate, can be given independent weight. If a court were to follow the path suggested by Dr. von Gernet, it would fall into legal error on the strength of the current jurisprudence.

156 While Dr. von Gernet's second opinion concludes with a touch of argument, it is an opinion that has been expressed by others in the course of this trial. While I accept much of what Dr. von Gernet has said, I conclude he would not give oral tradition evidence any weight without some corroboration from an outside source. As I have noted, this approach is not supported by the jurisprudence. When I consider the oral tradition evidence about the Tsilhqot'in War, I believe it does give some support to a theory that the Tsilhqot'in people of 1864 intended to maintain some control over the use and occupation of Tsilhqot'in territory by others. I am called upon to weigh that evidence along with all the other evidence I heard concerning the causes of that historic conflict.

168 I agree with the view expressed by Dr. von Gernet that many of the Tsilhqot'in personal narratives or oral traditions are rich in detail and internally consistent with each other. As Dr. von Gernet concludes, some elements of these oral histories and traditions "may be used either independently or in concert with other evidence to reconstruct the lifeways of people in the past, at least in the short term". They are reliable as a record of certain traditional fishing or hunting practices. Contrary to the view he expressed, I find that some oral tradition evidence of Tsilhqot'in people does assist in the construction of a reasonably reliable historical record of the actual use of some portions of the Claim Area at or prior to 1846.

More recently, a federal court justice had this to say about the testimony of von Gernet:

Daniels v. Canada, 2013 FC 6 (Federal Court of Canada):

E. Alexander von Gernet (Defendants' Witness)

175 Von Gernet is an adjunct professor of anthropology at the University of Toronto. He has a BA, MA and PhD in Anthropology. His PhD specialization was in Ethnohistory and Archaeology of Aboriginal peoples in North America.

176 He has been accepted in court as an expert in 25 cases in provincial, state and superior courts as well as in this Court always on behalf of the Crown. He was accepted as an expert qualified to give opinion evidence as an anthropologist and ethnohistorian specializing in the use of archaeological evidence, written documentation and oral traditions to reconstruct past cultures of Aboriginal people, as well as the history of contact between Aboriginal peoples and newcomers throughout Canada, and parts of the United States, which history includes the relationship between government policies and Aboriginal peoples.

177 Von Gernet's Report was far ranging and delved into areas, such as post-Confederation federal policies, which were well beyond his area of expertise. There were three themes to his Report:

(1) Half-breeds or Métis would not have been contemplated as falling within the term "Indian" as it appears in s 91(24).

(2) The Manitoba Act, 1870 does not support the view that the seven framers of the Constitution understood "Indians" to include Métis.

(3) Problems in administering treaties particularly where half-breeds are involved illustrated why the exclusive authority vested in Parliament under s 91(24) could not be effectively exercised without passing the Indian Act defining who was or was not an Indian.

178 Von Gernet came at his task of making his report in an unusual way. He would brook no instructions nor work with counsel; he was there to express his opinions. Regrettably, this was evident in that he exhibited little understanding of the case or the issues for the Court; thus he could not be as helpful as one would have hoped.

179 Von Gernet's evidence suffered from a number of other problems. He relied on a database of documents provided by the Defendants which was not current or updated. He relied extensively on secondary sources which became clear when he did not understand the context in which much of that material arose. His conclusions were often based on faulty understanding; for example, the frailties of the 1871 Census as a reliable indicator of "Indian/half-breed" population.

180 In general, von Gernet's research and conclusions were unoriginal often reflecting virtually regurgitating other people's work such as that of Thomas Flanagan's article "The Case Against Métis Aboriginal Rights" (1983) 9(3) Canadian Public Policy 314.

181 Unfortunately, von Gernet exhibited a shallow understanding of many of the documents he relied upon or was unexplainably selective in his use of evidence. Thus, his evidence stood in sharp contrast to many of the other witnesses on both sides in terms of knowledge, reliability and credibility.

182 While the Court does not discount all of von Gernet's evidence, it places considerably less weight on it where it contradicts other experts. His Report did not stand up well to the glaring light of cross-examination and provided the Court with much less illumination into the issues in this case.

Afterthoughts on the Slate Falls hearing

Only Dr. Driben’s report was accepted by the court for presentation and cross-questioning. I do not know whether my report had a role in Mr. Justice Gans’ decision to decline the von Gernet and Chartrand reports. I was instructed to limit myself to Driben’s report in my discussion. His was the only one of the three to use the literature on the larger region, or to provide an alternative to the hardship claimed by Slate Falls elders (adaptive strategies as a human universal). His choice of Levi-Strauss was surprising and puzzling. His reference bibliography was very large but not much utilized.

Why did I put emphasis on Radin? The defense anthropology emphasized methodology, which abstracts the discussion far over the heads of three elders of Slate Falls First Nation. Abstraction is, in this case (and others) the weapon of the intellectually cloistered who are also experientially weak, by moving away from the level of “the imponderabilia of everyday life” and into the rarified air of theory. One of the defense anthropologists (Driben) emphasized the comparative, generalizing perspective of Claude Levi-Strauss. So, why Levi-Strauss? Does Dr. Driben choose to elevate his intellectual stance as far as possible from the “naïve empiricism” he apparently sees in Dr. Sieciechowicz’ ethnography? Incidentally, I suspect that Levi-Strauss, who in his younger days also wrote ethnographically (Tristes Tropiques), would have rejected the very American preoccupation with methodology; he referred to his own strategy as the structural method, not structural methodology. In any event, Levi-Strauss in his comparative work was not so interested in actual individuals and their everyday life, as he was looking for the structure of the mind. He was, in other words, not a relevant authority for the Slate Falls First Nation trial.

Paul Radin was, and is, relevant: his book was re-issued in 1966 and 1987, and digitized in 2007, a rarity for books on anthropological method and theory. He chastised his colleagues for backing off into generalized persons and events, criticizing even Sapir, who in my opinion saw the merit in Radin’s criticism and moved increasing closer to actual individuals as he developed his “psychiatric science” perspective (Leeds-Hurwitz and Nyce 1986). In this trial, we are manifestly making the central issue the credibility of three individual elders – actual events and individuals who are claiming hardship as a result of the construction of a Hydro generating station on their lands.

Why did I get involved in this case? It was, and still is, my opinion that there was danger of an injustice being done to vulnerable people. It was, and still is, my opinion that the anthropologists for the defense were an embarrassment to Canadian anthropology. The anthropologist who did the actual ethnography was so severely ill that she could not defend her work in court. And how do I know that there was a risk of injustice? I don’t. I have never met the elders, and it is possible that they were reporting events as truthfully as they could, or they may have been speaking opportunistically. But the clear pre-judgment of the Slate Falls elders’ statements by the defense anthropologists is in itself very disrespectful, and in my opinion unprofessional. And in my current correspondence with Charles Bishop, he recalled hearing about hardships when he was there, a half century ago. This recollection tipped the balance for me. I do not objectively know there was hardship, but I believe that the elders were telling their truths.

How do anthropologists wind up in situations like this? They are sought out and offered a high rate of payment for their appraisal of a legal argument. The academic job market is not promising. And perhaps there is a movement away from the anthropological tradition of offering support to the disempowered. I hope to see some discussion of this apparent shift to the political right. Our profession should be mindful when supposed “expertise” can lead to further dispossession of people already deeply affected by the harms of colonization.[JP10]

And now, just too late to include in this paper, I have received a copy of Arthur J. “Skip” Ray’s recent book, Telling It To The Judge (2011).

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[JP1]What is an WMD?

[JP2]This whole section totally your call and perhaps you want to re-write in your own words.

[JP3]I suggest the deletion below because the point you are making is that hunters are generally honest because their lives depend on it.

[JP4]Deleted because it is a repeat of earlier point.

[JP5]What is TTN FN?

[JP6]Wow that is a word

[JP7]This is said above, consider deleting here.

[JP8]This was said previously in the paper – so you need either remove it once or modify as I suggest here

[JP9]I have altered this a bit – see if you agree.

[JP10]Realize this is a big statement and you may wish to reconstruct in your own words.