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Hope M. Babcock

Hope M. Babcock, “[This] I Know from My Grandfather:” The Battle for Admissibility of Indigenous Oral History as Proof of Tribal Land Claims, 37 American Indian Law Review 19 (2012-2013)(321 footnotes)


If our federal courts are to respond to this nation's commitment to cultural diversity, they must be prepared to hear and really listen to Native American voices, quite different from their own, speaking in terms shaped by their non-literate cultural heritage. By doing so, the federal courts would be honoring the Western, liberal tradition that they inherit based on the idea that everyone benefits by adding voices to the marketplace of ideas.

Both the United States and Canada have faced similar judicial hurdles in determining land title claims between Indian and non-Indian claimants. The results have varied greatly between the two court systems, largely because of different evidentiary rules and different attitudes toward indigenous claimants.

U.S. courts have typically closed their doors to indigenous oral history as proof of Indian land claims based on the hearsay and best evidence rules, because the original story teller cannot be produced and there is no written record to confirm the recounted events. Yet these stories often are the “best” evidence of such claims; in fact, they may be the only evidence. Because tribal land claims can dispossess current non-Indian landowners or require the payment of large sums of money to settle such claims, they disrupt the existing economic, social, and political order. Evidentiary rules that block their realization, therefore, frequently have popular and judicial support - even in Canada, where oral history has been more accepted. The fluctuating and ever-shifting federal policies toward Indians, a pendulum between assimilation and self-determination, makes it is easy to see why the United States would be hesitant to grant Indian claimants a right to use oral history in court - allowing such evidence could make Indians successful in their land claims.

Despite the commonality between the United States and Canada's early experience with its indigenous peoples and shared attitudes toward them, Canada's recent history with its indigenous peoples is quite different from the United States. This departure is due principally to a 1982 constitutional amendment recognizing the rights of First Nation peoples. This constitutional reconciliation has had a positive impact on aboriginal claimants, leading Canadian courts to make admissible indigenous oral history when proffered in support of an aboriginal land claim.

A close examination of what constitutes tribal oral history, how it is developed, and how it is passed between generations shows it is more reliable and enduring than one might believe. Tribal stories are not equivalent to the utterances barred under the hearsay rule, and are frequently better evidence than what the written historical record contains. While questions remain about the trustworthiness of oral history and the fitness of courts to deal with evidence from indigenous cultures, the Canadian experience shows that there is sufficient flexibility in the rules of evidence to enable courts to accept oral history and weigh its probative value, as with any other evidence. Sufficient safeguards can also be put in place to establish authenticity and improve reliability.

But, unlike Canada, the United States does not have a constitutional directive to “reconcile” indigenous and non-indigenous interests. Without this type of constitutional amendment in the United States, U.S. courts have little motivation to lend evidentiary credence to tribal oral history in support of Indian land claims.

This article discusses the challenges a common law court faces when dealing with indigenous oral history in a tribal land claim proceeding and how those challenges can be overcome. The primary goal of this article is to showcase the injustice of the current evidentiary barriers to tribal oral history in the United States and to expose the lack of a rational basis for maintaining those barriers, especially in light of the Canadian judicial experience.

The first part of this article explains the importance of land to indigenous peoples, and exposes some fundamental differences in the judicial approach of Canada and the United States toward the legal basis of indigenous claims. This part also lays out how Canadian aboriginal claimants establish a land claim. The second part, after briefly introducing the tribal practice of legal storytelling, discusses indigenous oral history, its various purposes, the forms that it may take, the ways in which it may be transmitted over time, and the important role land plays in those stories. Part three looks at the uneasy fit between oral history evidence and the type of evidence usually presented in court. Part three also discusses the additional complexities that tribal language and cultural differences bring to a land claim adjudication. Part four examines the barriers to the introduction of oral history presented by the best evidence and hearsay rules, and the adoption by Canadian courts of a “principled exception” to the most serious of these barriers, the hearsay rule. Included in this discussion is the creative use by Canadian courts of judicial notice and other evidentiary procedures to authenticate oral history in aboriginal land claim proceedings when a written record or first-hand observer is unavailable. This part also identifies the measures Canadian courts have enacted to authenticate aboriginal oral history sufficiently to allow its use in court without disrupting the integrity of the judicial process. The fifth part of this article discusses the differences between the experience of Canadian courts with aboriginal oral history and that of courts in the United States.

There is no objective reason why U.S. courts could not take the same path as Canadian courts. This article concludes that the U.S. has not adopted the Canadian evidentiary rule due to the federal government's fluctuating and fickle approach to the “Indian problem.” Unlike Canada, which has made efforts to address evidentiary barriers with its First Nations peoples, the United States has only recently entered an era of indigenous Self-Determination, and the jury is still out on the benefits of this era.

* * *

“The battle between orality and literacy is a battle over what constitutes truth[,]” and the “triumph of literacy is a triumph of certainty over It is also a battle over memory and what “constitutes history,” and the stories nations preserve to ensure their survival. The battlefield has been the courthouse, and the weapons employed by courts to block the admission of indigenous oral history have been the rules of evidence.

Despite invasion and obstruction brought by contact with Europeans, indigenous peoples have preserved their history through stories, artifacts, and rituals. But everything about oral history evidence presents a challenge to a court accustomed to written and recorded evidence. Canada has encouraged its courts to surmount these problems by amending its Constitution to require the reconciliation of the interests of its indigenous peoples with non-indigenous Canadians. In response to this mandate, Canada's courts have adopted a liberal vision of the exceptions to the best evidence and hearsay rules and used judicial notice to put indigenous oral history on equal footing with written evidence.

Canada's 1982 amendment of its constitution set the country's courts on a mission to make amends for what it did to its indigenous peoples throughout much of that country's colonial and post-colonial history. The country recognized that indigenous peoples had been wrongly displaced from their lands and restitution required opening the courts to claims for the return of those lands. Oral history became a critical component of establishing those claims, and the constitutional mandate could not be fulfilled if that evidence was not allowed to be heard. The story in the United States is quite different. There has been no formal recognition of wrongs done to Indians by removing them from their ancestral lands.

There is no procedural reason that U.S. courts cannot follow Canada's lead. No evidentiary rule stands in our way, and there is no evidentiary exception that cannot be liberally interpreted to favor indigenous rights. What Canadian courts have done since 1982 is not revolutionary from an evidentiary rule perspective; it is only revolutionary from the standpoint of its substantive impact. The U.S. must also reconcile and allow procedural and evidentiary rules to achieve fair outcomes for its indigenous peoples.

Hope M. Babcock is an environmental and natural resources law professor at Georgetown University Law Center.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law