A Possible Solution to the Problem of Diminishing Tribal Sovereignty
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 courts do not follow the Canadian example. After examining the evidentiary strengths and weaknesses of indigenous oral history and the barriers posed to its admissibility in court, this article finds the answer is the 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.