Oral History and Archaeology in Court

Abstract Debate about the relationship between oral history and archaeology, and the suitability of each as evidence in Indigenous litigation, takes on significance when these forms of evidence inform actual litigation. Canadian law following the Supreme Court decision in Delgamuukw (1997) grants oral history the same footing as written history. However, archaeologists who refute the possibilities of oral history as evidence have directly informed the position of the Crown in defending Canada in litigation brought by Indigenous nations seeking treaty rights, land title, and resource rights, as well as for various other issues. The Stó:lō nation oral historian Sonny McHalsie (Si:yémiya) offers a counterposition and addresses some of the issues repeatedly raised by the Crown in litigation. These are the “contamination” of oral historians, history and chronology, the “floating gap,” lost oral narratives, and variations in stories. The conclusion considers the pairing of oral materials and archaeology in a new and significant case in British Columbia, Canada, Cowichan Tribes, 2025, in which the Crown did not intervene with these arguments that have been shown to be inconsistent with the anthropological record. One final critical issue regarding the nature of oral history and its relevance as evidence is presented.