Some Indigenous histories are preserved in stories, songs, ceremonies and elder testimony that are passed down orally - rather than with written records. These histories can constitute important evidence of past events. But they're sometimes ruled inadmissible as evidence in the American justice system.
That's what happened when lawyers for the Jemez Pueblo presented oral histories as proof of its aboriginal claim to land in the now federally managed Valles Caldera National Preserve in Northern New Mexico's Jemez Mountains. A federal district judge dismissed those histories under what's known as the "hearsay rule," and in 2019, struck down the Pueblo's land claim.
The Pueblo filed an appeal with the 10th U.S. Circuit Court of Appeals, and in February, nine scholars of Indian law signed onto a brief arguing for Jemez oral histories to be considered in any future trial. More broadly, the scholars argued that current rules and procedures surrounding trial evidence serve to "erase" facts preserved in Indigenous oral histories, and should be amended.
"It is a trick, and it is another tool of conquest, to exclude [traditional knowledge]," said Robert Hershey, a professor emeritus with the University of Arizona's Indigenous Law and Policy Program and the brief's lead author.
Hershey said there is a "prejudice" in non-Native society that casts oral histories as less credible than testimony provided by non-Native anthropologists, ethnographers and historians.
"You can't divorce these stereotypes from the colonial structures, and by colonial structures I mean, for example, evidentiary rules that prevent the admission of a great amount of oral and traditional history in court," Hershey said.
The land in question in the Jemez case was declared "vacant" and sold to a private owner by the federal government in 1860, an event Jemez leaders described as a "a culture shock" in court filings. The federal government re-acquired the land in 2000. The Jemez Pueblo made its first legal claim to aboriginal title in 2012, after plans were announced to transfer management of the land to the National Parks Service.
A federal district judge ruled in 2019 that the Pueblo's title to the land had been extinguished, and rejected an appeal of that decision in 2020. It's not clear when the 10th Circuit will make a decision on this latest appeal.
This story was produced by the Mountain West News Bureau, a collaboration between Wyoming Public Media, Boise State Public Radio in Idaho, KUNR in Nevada, the O'Connor Center for the Rocky Mountain West in Montana, KUNC in Colorado, KUNM in New Mexico, with support from affiliate stations across the region. Funding for the Mountain West News Bureau is provided in part by the Corporation for Public Broadcasting.