The Vulnerability of Archaeological Logic in Aboriginal Rights and Title Cases in Canada: Theoretical and Empirical Implications

Abstract

The history of archaeological evidence in Aboriginal rights and title cases in Canada illustrates an alignment between archaeological arguments regarding Indigenous history and recent court rulings. Although there are associations between cases that rule in favor of Indigenous rights and contemporary archaeological thinking and between rulings against Indigenous rights and older forms of archaeological reasoning, we argue that there is a more fundamental similarity. Both Canadian courts and archaeology seem to concur on assumptions of four core legal and historical principles: how were Indigenous societies organized, what was essential to Indigenous culture, what constitutes continuity, and what is the evidence for Indigenous rights. We argue that this convergence has less to do with evidence and instead derives from a shared cultural history, thus creating an ethnocentric bias. If archaeology is to assert its capacity to reveal history within rights and title cases, it must address three issues that emerge from this legal legacy: (1) lingering intellectual naivete regarding interpretive links between material records and cultural identity, (2) associations between archaeological theoretical explanations for Indigenous history and western cultural practices, and (3) a fundamental ethnocentrism in archaeological understanding of humanity that reflects contemporary asymmetries of power. Contemporary archaeologists often valorize collaborative practices with Indigenous communities and subscribe to an ethic of equality and respect. However, its history in legal contexts in Canada suggests that archaeology is not able to achieve this ambition. This inability is particularly problematic given the increasing influence that archaeological experts appear to have in Canadian legal debates over Aboriginal rights and title.