Overview of Critique of Hearsay Evidence as Applied to Indigenous Peoples’ Claims

Overview of critique of U.S. law:

The prohibition on hearsay evidence, as you know, is a prohibition on using out of court statements as evidence.  The hearsay doctrine poses “[a] major obstacle [to] indigenous land claimants” because “[t]t is often oral history and stories that tribes rely upon as evidence to support their claims, reducing substantially the likelihood of a tribe prevailing.” Hope M. Babcock, “[This] I Know from My Grandfather:” The Battle for Admissibility of Indigenous Oral History as Proof of Tribal Land Claims, 37 AM. INDIAN L. REV. 19, 33 (2013). In addition to using oral history to prove land claims, “tribal claimants may use oral traditional evidence to repatriate sacred or funerary objects or human remains [note 1] . . . to prove their status as an Indian tribe in order to proceed with a substantive claim,” and “to obtain or maintain aboriginal rights, such as hunting or fishing.” Rachel Awan, Comment, Native American Oral Traditional Evidence in American Courts: Reliable Evidence or Useless Myth?, 118 PENN ST. L. REV. 697 (2014).

Courts’ rejection of oral history reflects “the deeply ingrained Eurocentric bias of valuing the written record over oral evidence. Peter Whiteley describes this phenomenon as ‘the Western cult of the written word,’ characterized by ‘engrained--though largely unexamined-- ideas about the supposed instability and unreliability of oral narratives.’” Cathay Y. N. Smith, Oral Tradition and the Kennewick Man, 126 Yale L. J. F 216, 219 (2016). “These ingrained ideas are usually concerned with uncertainty about whether oral tradition may have been altered over time, whether its conveyance through hundreds of intermediaries over thousands of years may have created errors within the narrative, whether language changes may have altered the meaning of the oral tradition, and whether the narratives have been influenced by biases or politics. These ideas explain why anthropologists, archaeologists, and historians in the past largely ignored Native American oral tradition but were wholly willing to take literally colonial records that were written in missionaries' or government officials' diaries or journals--even though such diaries, journals, and reports were equally ‘interpretively problematic,’ were likely to be influenced by biases or politics, and often included ‘self-serving  documents, ... edited and doctored diaries, and memoranda written for the record’ with a deliberate eye toward posterity.” Id. at 219-21 (footnotes omitted). 

A different approach in Canadian Law:

“Canadian courts have largely overcome these challenges by interpreting evidentiary rules liberally, in favor of the aborigines. As such, Canadian aborigines have enjoyed greater land claim success than indigenous claimants in the United States, raising the question why United States courts do not follow the Canadian example.” Babcock, 37 AM. INDIAN L. REV. at 33. Professor Hope Babcock concludes that “the answer is the willingness of Canada to both recognize the harm done to aboriginal peoples during the country's colonial history and to make amends by opening the courts to these claims.” Id.

The different approach was reflected in a 2001 decision of the Canadian Supreme Court, described below.

Description of Minister of National Revenue v. Grand Chief Michael Mitchell also known as Kanentakeron, 2001 SCC 33 (Canadian Supreme Court 2001)

In this Canadian case, the respondent, “a Mohawk of Akwesasne and a descendant of the Mohawk nation” claimed he “had an aboriginal right to cross the border freely without having to pay customs duties on goods destined for personal and community use as well as for noncommercial scale trade with other First Nations.”

So the question before the court was whether such an aboriginal right existed, that is whether “[t]he practice, tradition or custom [was] . . . integral to the distinctive culture of the aboriginal people in the sense that it distinguished or characterized their traditional culture and lay at the core of the aboriginal people’s identity. ” The evidence the respondent provided to support the existence of the aboriginal right included oral history, that is, hearsay evidence.

Although the court ultimately denied the claim, it recognized that oral histories needed to admitted as evidence, notwithstanding the prohibition on hearsay evidence.

Aboriginal rights claims give rise to inherent evidentiary difficulties.  However, the rights . . .  should not be rendered illusory by imposing an impossible burden of proof.  The rules of evidence must therefore be applied flexibly, in a manner commensurate with the inherent difficulties posed by aboriginal claims. Since claimants must demonstrate features of pre-contact society in the absence of written records, oral histories may offer otherwise unavailable evidence of ancestral practices and aboriginal perspectives. Oral histories are admissible as evidence where they are both useful and reasonably reliable, subject always to the exclusionary discretion of the trial judge.  In determining the usefulness and reliability of oral histories, judges must resist facile assumptions based on Eurocentric traditions of gathering and passing on historical facts. Here, the parties presented evidence from historians and archeologists.  The aboriginal perspective was supplied by oral histories of elders such as the respondent. The respondent’s testimony, confirmed by archaeological and historical evidence, was useful and the trial judge did not err in finding the respondent’s evidence to be credible and reliable.

(The full case is listed in the optional reading section for this class.)

Note 1: The U.S. statute regarding “Repatriation of Native American human remains and objects possessed or controlled by Federal agencies and museums” does permit the use or oral tradition to establish cultural affiliation. 26 U.S.C. 32 § 3005(a)(4) (“Where cultural affiliation of Native American human remains and funerary objects has not been established in an inventory prepared pursuant to [other sections of this] title” then “such Native American human remains and funerary objects shall be expeditiously returned where the requesting Indian tribe or Native Hawaiian organization can show cultural affiliation by a preponderance of the evidence based upon geographical, kinship, biological, archaeological, anthropological, linguistic, folkloric, oral traditional, historical, or other relevant information or expert opinion.”)