In the past four decades, history has become a matter of fierce public debate in the three settler states of Australia, Canada, and New Zealand. What happened between indigenous people and settler governments in the colonial pasts of these countries has been disputed in popular and scholarly history books, fought out in media history wars, and laid bare in documentary and narrative film. More significantly, how to know what happened has become an important theoretical and practical consideration, particularly in courts and tribunals where indigenous claims are examined and indigenous histories are often presented in evidence. At these sites, arguments about the past have also become arguments about how the evidentiary weight of different historical practices can be assessed. This is often expressed as how indigenous pasts related in oral histories and traditions can be reconciled with the dominant historiographies, which are based on analyses of other written documents.

Differences between historical practices are not valued symmetrically by courts and tribunals that investigate claims, or by state bureaucracies that negotiate settlements, or by most historians trained in the academic disciplines. Oral histories and traditions continue to be disputed according to the standards of verifiability and reliability that have been developed in the disciplines of law and of history to test documentary evidence. However, in the democratizing, multicultural moment in which indigenous claims have made such a national impact, ways of evaluating oral histories have become central to disputes about what happened. This is because different ways of rendering the past also reveal different pasts—pasts that have not always been included in the dominant national historiographies of these settler societies. In this article, I argue that disputes about what counts as history, and how different kinds of historical practice can be evaluated, are disputes about how local pasts can be transformed into public history.

In the first part of this article, I focus on the ways in which indigenous historical evidence is produced and negotiated as a different kind of history in specially designed commissions of inquiry in New Zealand and Canada that have been established to investigate claims about breaches to treaties made in the past between settler colonial officials and indigenous leaders. I suggest that since treaty history is already a kind of public history (and I will discuss why in a moment), there is already a history of translating indigenous pasts and rendering them commensurate with forms of public discourse. In Australia and the Canadian province of British Columbia, where treaties were not made in the past, indigenous groups have mounted Native title cases to areas where indigenous title to land was not explicitly extinguished. These cases are usually tried in court, rather than in commissions or tribunals, and utilize different kinds of evidentiary tests in proof of title. Particularly in Australia, the absence of treaty history means that the translation of indigenous pasts into public history has not occurred. Aboriginal plaintiffs often have to show how their local past is local and incommensurable with public historical discourse.

In the second and third parts of this article, I argue that while legal institutions are not usually conceived of as public spaces, these sites, especially commissions of inquiry, are crucial to making history public and, more particularly, to producing publics out of disputes about history. Legal practices of oath taking, cross-examination, and transcription are deployed to legitimate the historical evidence presented to judges and commissioners. These practices are necessary for constituting out of witness testimony a public record that can then circulate as an authoritative text of legal proceedings. Such practices are also, of course, ways of practicing critical-rational discourse—ways of debating and falsifying truth claims—that not only produce a public record but also disclose the kind of public that critiques historical evidence. Here I am referring not to any public but to the public that, in Michael Warner's terms, "promises to address anybody" and that "commits itself in principle to the possible participation of any stranger."¹

In order to show how their history can be considered public on these terms, demands are made on indigenous witnesses to explain how their history works and how it is evaluated within their community. These demands require witnesses to emulate critical-rational discursive practices, but they also reveal the contradictions of the multicultural discourse in and for which indigenous claims have been considered justifiable in the first instance. Courts and tribunals want to recognize different historical practices, but they also want this difference to be explicable in recognizably hegemonic terms. What happens, then, when indigenous witnesses do not explain their historical practices but actually constitute the court or tribunal as another kind of public that has to listen to and believe in a kind of history that may not address, or produce, a critical-rational subject?

Treaty History

Since indigenous activism in the 1960s brought the question of indigenous "special" rights into national prominence, courts and specially designed tribunals have investigated how indigenous rights can be recognized and whether or not the loss of those rights can be compensated when they were guaranteed or otherwise provided for in historical treaties. In all three countries under consideration here, there have been wide-ranging moral arguments about what happened in the settler colonial past and what the traumatic effects of the actions of the settler state were for indigenous communities. Broadly, these arguments are about the responsibility of settler states and settlers themselves to indigenous people. Many of the terms of this responsibility have been worked out in courts and special commissions of inquiry designed to examine indigenous claims. In these sites, indigenous claimants have argued that the settler state failed to properly carry out its responsibilities to indigenous minorities, and courts and tribunals have developed principles by which to evaluate what settler states' "duty to protect" is and was.²