"[This] I Know from My Grandfather:

American Indian Law Review Volume 37 | Number 1 1-1-2012 "[This] I Know from My Grandfather:" The Battle for Admissibility of Indigenous Oral History as Proof of Tribal Land Claims Hope M. Babcock Georgetown University Law Center Follow this and additional works at: http://digitalcommons.law.ou.edu/ailr Part of the Courts Commons, Evidence Commons, Indian and Aboriginal Law Commons, and the Property Law and Real Estate Commons Recommended Citation Hope M. Babcock, "[This] I Know from My Grandfather:" The Battle for Admissibility of Indigenous Oral History as Proof of Tribal Land Claims, 37 Am. Indian L. Rev. 19 (2012), http://digitalcommons.law.ou.edu/ailr/vol37/iss1/2 This Article is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in American Indian Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact . "[THIS] I KNOW FROM MY GRANDFATHER:"' THE BATTLE FOR ADMISSIBILITY OF INDIGENOUS ORAL HISTORY AS PROOF OF TRIBAL LAND CLAIMS Hope M Babcock* Abstract A major obstacle indigenous land claimants must face is the application of federal evidentiary rules, like the hearsay doctrine, which block the use of oral history to establish legal claims. It is often oral history and stories that tribes rely upon as evidence to support their claims, reducing substantially the likelihood of a tribe prevailing. Indigenous oral history presents unique challenges to judges when faced with its admissibility. Canadian courts have largely overcome these challenges by interpreting evidentiary rules liberally, in favor of the aborigines. As such, Canadian aborigines have enjoyed greater land claim success than indigenous claimants in the United States, raising the question why United States After examining the courts do not follow the Canadian example. oral history and the indigenous of weaknesses and evidentiary strengths the answer is the finds article this barriers posed to its admissibility in court, willingness of Canada to both recognize the harm done to aboriginal peoples during the country's colonial history and to make amends by opening the courts to these claims. Table of Contents ......... 20 .................................. Introduction Land......23 the to I. Indigenous Peoples and Their Special Relationship 24 A. Aboriginal Peoples and Land........................................................ B. General Background Information on Indigenous Land Claims and 26 How They Are Established in Canadian Courts ................................. :............................30 ........ Importance Its and Telling Story II. Indigenous 30 A . Stories in the Law ......................................................................... * Hope M. Babcock is an environmental and natural resources law professor at Georgetown University Law Center. The idea for this article arose during her representation of a Virginia Indian tribe who tried to use oral history in a lawsuit to stop development on its traditional lands. Professor Babcock is indebted to the assistance provided by the Yale and Georgetown Law Schools librarians and by her indefatigable research assistant, Felicia Barnes. 1. Andrew H. Fisher, This I Know from the Old People: Yakima Indian Treaty Rights as Oral Tradition, MoNT.: MAG. W. HiST., Spring 1999, at 2, 17. 19 Published by University of Oklahoma College of Law Digital Commons, 2012 20 AMERICAN INDIAN LAW REVIEW [Vol. 37 B. Tribal Stories and Oral History .......................... 32 III. The Intersection of Indigenous Oral History and Courts ................. 36 A. Why Native Peoples Do Not Fit the Judicial Paradigm Easily..........36 B. What Makes Indigenous Oral History Particularly Problematic for a Judge..............................................39 1. Different Roles of Courts and Indigenous Story Tellers.............41 2. Cultural Differences ............................... 42 3. Uncertainties About the Reliability of Indigenous Stories.... 44 4. Stories of the Dispossessed .......... ............... 46 IV. Evidentiary Barriers to the Acceptance of Indigenous Oral History in Court ................................................ 48 A. The Hearsay Rule and Canada's Response to It ............................ 50 B. Getting Around the Best Evidence Rule.........................52 C. The Use of Judicial Notice to Bypass Evidentiary Barriers...........53 V. The Striking Difference Between How Canadian and U.S. Courts Treat Indigenous Oral History ..................... .............. 55 Conclusion.................................... .......... 60 Introduction If ourfederal 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 differentfrom their own, speaking in terms shaped by their non-literatecultural heritage. By doing so, the federal courts would be honoring the Western, liberal traditionthat.they inherit based on the idea that everyone benefits by addingvoices to the marketplaceof 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 2. Glen Stohr, Comment, The Repercussions of Orality in Federal Indian Law, 31 Aiz. ST. L.J. 679, 704 (1999). http://digitalcommons.law.ou.edu/ailr/vol37/iss1/2 No. 1] ADMISSIBILITY OF INDIGENOUS ORAL HISTORY 21 record to confirm the recounted events.3 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 5 disrupt the existing economic, social, and political order. Evidentiary rules that block their realization, therefore, frequently have popular and judicial 6 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 8 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. Thi (...truncated)