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.

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