Max Katner (Boston University – School of Law) has posted Native American Oral Evidence: Finding a New Hearsay Exception on SSRN. Here is the abstract:
The Federal Rules of Evidence’s hearsay rules unjustifiably exclude legitimate and trustworthy evidence that support many Native American legal claims. While the U.S. legal system presupposes that evidence in written statements provide a greater assurance of accuracy and truth than oral statements, this is not always the case. Writing is as susceptible to forgery, revision, manipulation, and misinterpretation as oral knowledge. However, Native American communities traditionally were not literate and rarely recorded the treaties, contracts, and other legal instruments they drew up or honored in any kind of written format. Traditional Native American accounts of past experiences and realities are not honored in the courtroom and strip authority from the robust institutions Native Americans employ in order to pass down and collectively maintain their own bodies of knowledge. This is a serious problem in Native American jurisprudence today.
This note compares the American legal system’s treatment of oral evidence and history with its treatment in the legal systems of Canada, the Inter-American Court of Human Rights, and Norway. Each of these legal systems has developed methodologies that enable them to admit oral evidence in ways that respect the unique circumstances which often characterize disputes arising between indigenous and non-indigenous people. Canada, for example, has broadened its rules of evidence to admit First Nation (Canadian Native American) oral histories and cultural knowledge at times so that they may be evaluated on par with Eurocentric written evidence. The Inter-American Court similarly admits oral histories from indigenous parties, expert witnesses, and anthropological studies if it finds them legitimately probative in the context of a legal dispute. Norway’s highest court, the Høyesterett, critiqued its own historical treatment of legal disputes involving Sámi land and cultural rights and began adopting Sámi-centric approaches in its jurisprudence that reference Sámi lifestyle and custom. Canadian, Inter-American, and Norwegian legal practices may have persuasive value in U.S. courts deciding how to approach cases involving Native American parties who seek to introduce knowledge and expertise that has not traditionally been admitted in state and federal court systems. In the spirit of increasing access to the courts and advocating for equal justice, U.S. jurisprudence should evolve to consider the evidentiary value of modes of knowledge that many indigenous societies historically developed and preserved to this day.