The Penn State Law Review has published “Native American Oral Traditional Evidence in American Courts: Reliable Evidence or Useless Myth?” by Rachel Awan.

Here is the abstract:

American history is rife with conflict between Native American cultures and the Anglo-American legal system. When Native American groups bring claims in federal court, they face a host of biases that fail to consider their distinctive cultural background. One such bias concerns the use of oral traditional evidence as testimony at trial. Because Native American groups were largely non-literate prior to European contact, Native Americans often use oral traditional evidence as testimony if the matter requires evidence extending centuries into the past. Unfortunately, the law regarding Native Americans’ use of oral traditional evidence as testimony has been particularly problematic because the existing jurisprudence has created uncertainty and inconsistency. This generates negative consequences because without the use of oral traditional evidence, Native American groups may lack the means to contend with opposing parties.

American courts have attempted to handle this genre of evidence for almost a century. Their efforts, however, have resulted in an array of cases that are nearly impossible for future claimants and litigants to follow. Specifically, cases from both the U.S. claims court and circuit courts do not detail the methods used in rejecting or admitting the oral traditional evidence. This creates harmful uncertainty for potential claimants who wish to use oral traditional evidence.

This Comment discusses American and Canadian jurisprudence, as the Supreme Court of Canada has explicitly created an evidentiary exception to accommodate aboriginal oral traditional evidence. This Comment then proposes a rule of evidence to guide American courts in making informed decisions regarding Native American oral traditional evidence.