Atlantic: “Genetic Testing and Tribal Identity”

Here.

An excerpt:

But figuring out where your ancestors came from becomes complicated when it entails a legacy of exclusion of displacement. Tribes each have important cultural histories, that include their origin stories. Many of their histories say that the tribe came from the land, that they arose there and have always lived there. And many of them have more modern histories that include white settlers challenging their right to live where they did. So to many tribal people, having a scientist come in from the outside looking to tell them where they’re “really” from is not only uninteresting, but threatening. “We know who we are as a people, as an indigenous people, why would we be so interested in where scientists think our genetic ancestors came from?” asks Kim Tallbear, a researcher at the University of Texas at Austin, the author of Native American DNA: Tribal Belonging and the False Promise of Genetic Science, and a member of the Sisseton-Wahpeton Oyate tribe.

Tallbear says that from her perspective, researchers offering to tell tribes where they’re from doesn’t look any different than the Christians who came in to tell them what their religion should be. “Those look like very similarly invasive projects to us,” she said. Tribes haven’t forgotten the history of scientists whogathered native skulls to prove that native people were less intelligent, and thus less entitled to the land they lived on than the white settlers. To them, these genetic questions of origin look pretty similar.

South Dakota SCT Remands American Indian Probate Case to Allow Newly-Enrolled Heir to Reopen BIA Probate Decision

Here is the opinion in In re Estate of Flaws.

An excerpt:

Based upon the plain language of SDCL 29A-2-114 and the foregoing authorities, we hold that the trial court did not err in determining that the methods and time limits in the statute for establishing paternity are exclusive. A question remains, however, as to whether Yvette failed to comply with any of them. The trial court found that Yvette had petitioned the Department of the Interior, Bureau of Indian Affairs, Office of Hearings and Appeals to reopen Donald’s probate to include her as an heir. For that reason, the court initially took this matter under advisement to see if Yvette’s petition would be granted. The court subsequently determined it could take more than a year to have Yvette’s petition heard. For that reason, the court issued its decision and this appeal followed. The day after the filing of Yvette’s appellant’s brief, however, the Bureau of Indian Affairs tribunal issued an order directing any parties opposed to naming Yvette as an heir to Donald’s estate to show cause for their objections within thirty days. Thus, Yvette’s efforts to reopen Donald’s probate may still prove successful, permitting her to comply with SDCL 29A-2-114(c) to establish Donald’s paternity. In the interests of justice, therefore, we remand this matter to the trial court to wait for a reasonable time for the Bureau of Indian Affairs’ decision and to proceed accordingly.

Ho-Chunk Tribal Court Addresses DNA testing for Tribal Enrollment Purposes

We imagine the DNA issue will arise again and again in Indian nations all over.

Here is the opinion in Powless v. NCN Enrollment Committee (CV 10-15 Decision).

An excerpt:

The DNA test allowed into evidence by the Committee is hearsay as defined by the FEDERAL RULES OF EVIDENCE (hereinafter FED. R. EVID.) 801(c). It is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. Id. A written assertion is considered a “statement.” FED. R. EVID. 801(a). Thus, the DNA test‟s assertion that Mr. Powless is not the petitioner‟s father is a “statement.” A “declarant” is a person who makes a statement. FED. R. EVID. 801(b). The “declarant” of the results of the DNA test is the Oklahoma State University Human Identity Laboratory (hereinafter OSU Laboratory). At the hearing, no one from the OSU laboratory testified. The DNA test results were offered to prove the truth of the matter asserted; specifically that Mr. Powless is not the father of the petitioner. Therefore, the DNA test results meet the definition of hearsay. Such hearsay is inadmissible. FED. R. EVID. 802. The DNA test does not fall under the business records hearsay exception. FED. R. EVID. 803(6) allows business records to be admitted “if witnesses testify that the records are integrated into a company’s records and relied upon in its day to day operations.” Matter of Ollag Constr. Equip. Corp., 665 F.2d 43, 46 (2d Cir. 1981). Although OSU laboratory may engage in DNA analyses on a daily basis, those analyses are not akin to the running of the day-to-day operations of the business. The necessary witnesses also
did not testify at the removal hearing.