June 21, 2017 Articles

Storytelling as Testimony and the Rule Against Hearsay

Options for admitting testimony from Native Americans in the form of oral traditions in court

by Zia Akhtar

The oral traditions of Native American tribes are a resource for transmitting histories from memory to the next generation of knowledge keepers. Their testimony in court when pursuing land claims, often without title deeds, has to satisfy the test of admissibility and the exception to the rule against hearsay. These narratives have to "document" the repositories of wisdom in drawing a nexus without the production of a conveyance or root of title. The rendering of stories to establish title to land is sometimes referred to as "oral footnoting."

Federal Rule of Evidence 1002 applies the "best evidence rule" and prioritizes the requirement of the original:

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

In Pueblo de Zia v. United States, 165 Ct. Cl. 501 (1964), the claimants offered evidence from various tribal council members consisting of "oral accounts handed down from father to son . . . from time immemorial." Id. at 504. The Federal Court of Claims ruled that because the opposing party did not proffer any evidence of its own, the court would give the oral tradition "some weight." Id. at 505. However, the court qualified the use of the oral traditional evidence by stating that "corroboration of historical and archaeological evidence and testimony" may be necessary. Id.

In Confederated Tribes of the Warm Springs Reservation of Oregon v. United States,177 Ct. Cl. 184 (1966), the court affirmed that Indian title does not apply to those areas where the tribes had "permanent villages" but included those areas where they had "intermittent control" and that the period of time that they "used and occupied to acquire title" could not be fixed "precisely but had to be long enough to become domestic territory." Id. at 8. The ruling strongly emphasized the importance of cross-checking the oral evidence "since informants can mislead researchers by describing some period . . . besides the aboriginal, pre-treaty period." Id. at 204.

While these two cases establish that tribal claimants could indeed adduce oral traditional evidence in courts, the requirement of corroboration by outside sources still severely limited its probative value. The case law of the Court of Claims does not divulge much information or establish certainty in the manner in which the oral evidence, which is prima facie hearsay, will be admitted. There seems to be an inference for expert opinion testimony to support any contention in the form of oral narratives by Native American litigants. This will carry evidential weight for facts already in the record, and facts not on the record, which provides flexibility because the expert can present an opinion on factual evidence or rely on the facts that may be inadmissible hearsay.

The most significant case decided with the assistance of expert testimony in the Court of Claims was Zuni Tribe of New Mexico v. United States, 12 Cl. Ct. 607 (1987).The plaintiff was the native tribe of New Mexico, who brought a claim for compensation for the alleged taking of lands, and the court had to decide whether the Zuni tribe had aboriginal title to the land in question. The claimants had to prove "actual, exclusive, and continuous use and occupancy for a long time (or from time immemorial)." Id. at 608–9. The court considered the matter and, without any specific discourse in the manner in which it was compiled, admitted the testimony and the claimants succeeded.

The ruling underlined that the oral traditional evidence did not provide any binding authority for other courts to follow, and the court did not explain why exactly it was persuaded that the histories were "of evidentiary probity." Id. at 616. The Zuni's expert witness, Andrew Wiget, was an anthropologist who employed specialized techniques to provide corroboration in the form of compiling the tribe's oral histories, which consisted of 1,300 pages of depositions. This evidence was anecdotal rather than formalized oral tradition, but Widget presented it in a framework that established, through corroboration between different pieces of the oral history testimony, reliability or repeatability, tested through the ability of witnesses to render the story on various occasions, and "consistency," meaning the conformity of testimony with other testimony.

The other option for admitting testimony from Native Americans in the form of oral traditions in court is to use an existing hearsay exception under Federal Rule of Evidence 803(20) that allows the admission of hearsay testimony to prove "reputation concerning boundaries or general history." The text of the hearsay exception in this provision allows testimony going to the "[r]eputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community. . . ."

These were elucidated in greater detail by the Advisory Committee on Hearsay Evidence, which stated the hearsay exception "is based upon the general admissibility of evidence of reputation as to land boundaries and land customs, expanded in this country to include private as well as public boundaries." Fed. R. Evid. 803(20) advisory committee's note (citing McCormick on Evidence § 299 (Kenneth S. Broun ed., 6th ed. 2006) (explaining that "the Circuits appear divided as to whether in typical grand jury situations exculpatory testimony meets this ['similar motive'] requirement of the Rule").

However, the rule is not sufficiently developed, and the courts have had to view the native claims in the circuit courts on the facts of each case. In Sokaogon Chippewa Community v. Exxon Corp., 2 F.3d 219 (7th Cir. 1993), the tribe sought a declaration that it had the right to occupy a particular tract of land rich in mineral deposits. The tribe primarily used oral traditional evidence detailing a promise of a reservation. The issue before the court was whether the Sokaogon had ceded their right after negotiating a treaty during the 1800s. It ruled that "there is no documentation of this tradition, which is at best embroidered (too many ransoms, shipwrecks, lost and stolen maps, and deathbed revelations to be plausible) and at worst fictitious." Id. at 222.

The tribe had failed to state a claim in their oral narrative that could circumvent the documentary evidence, and it was not admissible because "no effort was made by the Sokaogon's counsel to cast it into a form in which it would be admissible in a court of law." Id. at 224–25. This appeared to be taking a more stringent approach compared with the rationale developed in the preceding cases in the Court of Claims since the 1960s when hearsay evidence tendered by the Native American tribes began to receive some credibility in the courts. It also shows that the common-law formulation of the exception was easier to apply than the federal rule, in part because the rules' drafters have provided no criteria to guide judges in its application. This leaves it open to interpretation by the judges, and standard rules of application have not been formulated.

However, the Native Graves Protection and Repatriation Act (NAGPRA) of 1990 does permit the testimony of oral evidence in support of claims for ancestral remains by tribes. The statute has achieved what the courts have been unwilling to set out in rulings by placing oral evidence parallel to documentary evidence on a balance of probabilities based on "geographical, kinship, biological, archaeological, anthropological, linguistic, folkloric, oral traditional, historical, or other relevant information or expert opinion." 25 U.S.C. § 3005(a)(4) (2012). It makes story telling part of the adjudicative process and expressly treats hearsay evidence as admissible by requiring that the "decision maker must consider oral tradition" in evaluating the "strength of a claim of cultural affiliation." Deborah L. Threedy, "Claiming the Shields: Law, Anthropology, and the Role of Storytelling in a NAGPRA Repatriation Case Study," 29. J. Land, Resources & Envtl. L. 91 (2009). The tribal claimants may use oral traditional evidence to repatriate sacred or funerary objects or human remains through the act's provisions.

While this act allows courts to admit oral traditional evidence in some volume, it is not certain if oral traditional evidence would be accepted on its own without the corroboration of any other documentary evidence. The Native American group claimants have attempted to establish through published "folk narratives" and statements from tribal members that either the remains have lineal ancestry and descendants were affiliated with a recognized tribe in the United States or are reliable enough to prove tribal affiliation or ancestry with ancient human remains under NAGPRA.

In Bonnichsen v. United States, 367 F.3d 864, 881–82 (9th Cir. 2004), the "Kennewick Man" case, the Native Americans failed to repatriate a 9,000-year-old skeleton under NAGPRA. "[B]ecause the value of such accounts is limited by concerns of authenticity, reliability, and accuracy, and because the record as a whole does not show where historical fact ends and mythic tale begins, we do not think that the oral traditions . . . were adequate to show the required significant relationship. . . ." Id. at 875.

It is argued that the U.S. courts have generally refused to accept indigenous oral history as proof of Indian land claims based on the hearsay rules of evidence, because the original storyteller cannot be summoned and there is no written record to confirm the recounted events. This is despite the fact that this is the "'best' evidence of such claims" or could be the only available proof in the matter. The outcome is that tribal land claims cannot invalidate the current non-native landowners or require monetary compensation, which prejudices their judicial endorsement. The tribal land claims can dispossess current non-Indian landowners or require the payment of financial compensation to settle such claims, and the courts may be reluctant to disrupt the existing economic, social, and political order.

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