OPTIONAL: Translating Yonnondio by Precedent and Evidence: The Mashpee Indian Case

Relevance often gets treated as an objective concept, but – as you’ve probably already realized - decisions about what facts are “important” are influenced by our personal and cultural perspectives. If you'd like to read more about this, I recommend the excepted text from the article, Translating Yonnondio by Precedent and Evidence: The Mashpee Indian Case, by Gerald Torres & Kathryn Milun. (The link to the full article is also included.)

The article examines the case of Mashpee Tribe v. Town of Mashpee, where “the Indian community at Mashpee on Cape Cod sued to recover tribal lands alienated from them over the last two centuries in violation of [a federal law that] prohibits the transfer of Indian tribal land to non-Indians without approval of the federal government. The defendant, Town of Mashpee, answered by denying that the plaintiffs, Mashpee, were a Tribe. Therefore, they were outside the protection of the [federal law] and were without standing to sue. As a result, the Mashpee first had to prove that they were indeed a ‘Tribe.’” (p. 633)

Discussion of relevance:

“The rules governing how one tells a story in court are supposed to protect the court from wasting its time by listening to immaterial information or testimony that might confuse or prejudice the ultimate decisionmakers about what they are supposed to be deciding. These rules turn on the legal concept of “relevance.”

Typically, a legal claim is composed of elements that each must be proven independently. “Relevant” evidence is a statement or exhibit that tends to demonstrate the relationship between a factual assertion and a particular element of a legal claim. According to the Federal Rules of Evidence: “‘Relevant evidence’ means evidence having any tendency to *646 make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Thus, “relevance,” the foundation for rules permitting the introduction of evidence, controls and is controlled by the existence of other facts, which themselves are controlled by the substantive standard or statute being litigated. Relevance is the guide, but the question remains: Relevant to what?

Treating relevance as though it were a neutral analytic category takes our attention away from the substantive standard being disputed because it requires that the judge making the relevance determination treat the substantive standard as a given. In cases like Mashpee, the underlying standard is often the heart of the dispute. Re-read the definition. Relevance is a probability determination. The judge is to ask herself: “If I let this evidence in, will it add any probitive value to the facts we already know?” This inquiry begs the question of whether the “facts” already admitted are those that ought to be in.

The legal concept of relevance empowers a court to approve or disapprove certain narrative elements of a party's story. A court's evidentiary rulings, however, do not control truth, but rather translate it into the terms of the substantive statute or standard at issue. . . .

The process of legal storytelling and relevance determination is more like a gathering of material for an index than the telling of a classic narrative. Facts are assembled to tell a story whose conclusion is determined by others. Each fact must point to the next, not in a temporal *647 sense, but rather only in the sense dictated by the substantive standard being litigated. The determinations of relevance—what can be admitted as evidence—locate the court as the indexer: The one who determines significance. The story told by the parties must point back constantly to the story told by the court and the precedents, which, of course, are merely the stories deemed acceptable by previous courts. By structuring legal storytelling in this way, questions of power, perspective, and value are evaded.

Application of relevance in the case:

“The defense's main witness, Francis Hutchins, a historian, offered five days of exhaustive testimony. Although he and the Mashpee referred to more or less the same documents, his positivistic account of the Mashpee's history left no room to suggest that certain land deeds in fact reflected white, rather than Indian, notions of land ownership. The very acceptance by the court and the witnesses of the symbology of deeds presupposed a certain structure for the Mashpee story. This structure, framed with the European indicia of ownership, was asserted by the defense as the only basis for the Tribe's *648 claims. In doing so, defendant's counsel translated the Tribe's claims into terms foreign to the Mashpee. This rhetorical move stripped the land claim of nuances that deeds could not replace. The deeds not only reconstituted the Tribe's basic claim, they also temporalized it; deeds set it apart from the evolving tradition of the Indians' relationship to their physical surroundings, and, at once, both elevated and debased their relationship to the land. . . .

The stories that members of the Mashpee Tribe told were stories that legal ears could not hear. Thus the legal requirements of relevance rendered the Indian storytellers mute and the culture they were portraying invisible.”