Native American Oral Evidence: Finding a New Hearsay Exception

49 Pages Posted: 17 Feb 2019 Last revised: 7 Feb 2021

See all articles by Max Virupaksha Katner

Max Virupaksha Katner

Georgetown University Law Center; Boston University - School of Law

Date Written: April 1, 2020

Abstract

The Federal Rules of Evidence’s hearsay rules unjustifiably exclude legitimate and trustworthy evidence that support many Native American legal claims. Native American communities traditionally were not literate and rarely recorded the treaties, contracts, and other legal instruments they drew up or honored in any kind of written format, oftentimes recording their histories and diplomatic events in other ways; take for example wampum belts used by the Haudenosaunee Confederacy, among others. While the U.S. legal system presupposes that evidence in written statements provides a greater assurance of accuracy and truth than oral statements, this is not always the case. Writing is as susceptible to forgery, revision, manipulation, and misinterpretation as oral knowledge. Traditional Native American accounts of past experiences and realities are not honored in the courtroom, which strips authority from the robust institutions Native Americans employ in order to pass down and collectively maintain their own bodies of knowledge. This is a serious problem in Native American jurisprudence today.
This article compares the American legal system’s treatment of oral evidence and history with its treatment in the legal systems of Canada, the Inter-American Court of Human Rights, and Norway. Each of these legal systems has developed methodologies that enable it to admit oral evidence in ways that respect the unique circumstances that often characterize disputes arising between indigenous and non-indigenous people. Canada, for example, has broadened its rules of evidence to admit First Nation (Canadian Native American) oral histories and cultural knowledge at times, so that they may be evaluated on par with Eurocentric written evidence. The Inter-American Court similarly admits oral histories from indigenous parties, expert witnesses, and anthropological studies, if it finds them legitimately probative in the context of a legal dispute. Norway’s highest court, the Høyesterett, critiqued its own historical treatment of legal disputes involving Sámi land and cultural rights and began adopting Sámi-centric approaches in its jurisprudence that reference Sámi lifestyle and custom. Canadian, Inter-American, and Norwegian legal practices may have persuasive value in U.S. courts deciding how to approach cases involving Native American parties who seek to introduce knowledge and expertise that has not traditionally been admitted in state and federal court systems. Failure to accommodate these parties not only violates the trust doctrine that federal and state governments are responsible to uphold for their relationship with sovereign indigenous nations, but also perpetuate cycles of injustice Native Americans have endured for the last 400 years. In the spirit of increasing access to the courts and advocating for equal justice, U.S. jurisprudence should evolve to consider the evidentiary value of modes of knowledge that many indigenous societies historically developed and preserved to this day.

Keywords: Evidence, Native American Law, Indian Law, Hearsay, Federal Rules of Evidence, Indigenous Rights

Suggested Citation

Katner, Max, Native American Oral Evidence: Finding a New Hearsay Exception (April 1, 2020). New Mexico Tribal Law Journal, Forthcoming Vol. 20, Spring 2020, Available at SSRN: https://ssrn.com/abstract=3323923 or http://dx.doi.org/10.2139/ssrn.3323923

Max Katner (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

Boston University - School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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