Pueblo Of Jemez v. U.S. (366 F. Supp. 3d 1234, 2018)

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) the Defendant the United States of America's oral objection to hearsay contained in America Indian oral tradition evidence testimony of Jemez Pueblo member Paul Tosa, and (ii) the Plaintiff Pueblo of Jemez's Memorandum of Law: Native American Oral Traditional Evidence at 1, filed October 29, 2018 (Doc. 320)("Oral Evidence Memo."). The Court held a hearing on October 29, 2018. See Trial Transcript -- Day 1 at 1:4-6 (Court)("Trial Tr."). The primary issue is whether the Court should admit hearsay statements contained in oral tradition evidence pursuant to the Federal Rules of Evidence, or, in the alternative, pursuant to four hearsay exceptions: (i) rule 803(19), Reputation Concerning Personal or Family History; (ii) rule 803(20), Reputation Concerning Boundaries or General History; (iii) rule 803(21), Reputation Concerning Character; and (iv) rule 807, the Residual Exception. Oral Evidence Memo. at 1-8. The Court concludes that the Federal Rules of Evidence do not permit admission of out-of-court statements contained in American Indian oral tradition evidence when offered for the truth of the matter asserted, because the rule against hearsay prohibits such statements. See Fed. R. Evid. 802 ("Hearsay is not admissible unless any of the following provides otherwise: a federal statute; these rules; or other rules prescribed by the Supreme Court."). The Court may adopt oral tradition evidence for non-hearsay purposes, if Jemez Pueblo can establish a non-hearsay purpose, such as background, for why Jemez people believe things, do things, draw or paint things. The Court also will admit hearsay statements in oral tradition evidence for the truth of the matter asserted pursuant to the hearsay exceptions enumerated in rule 803, provided such statements conform to the limited scope of each enumerated exception, as the Federal Rules of Evidence define the exception. See Fed. R. Evid. 803. The Court will not admit hearsay, however, in oral tradition evidence pursuant to rule 807, the residual exception to the rule against hearsay, because the Court concludes that oral tradition evidence is not sufficiently exceptional to warrant admission pursuant to this rule. See Conoco Inc. v. Dep't of Energy, 99 F.3d 387, 392 (Fed. Cir. 1996) (concluding that the residual hearsay exception is "meant to be reserved for exceptional cases," and is "not intended to confer 'a broad license' on trial judges 'to admit hearsay statements that do not fall within one of the other exceptions contained in rules 803 and 804(b) ' " (quoting S. Rep. No. 94-199, at 20 (1975) ) ).

FACTUAL BACKGROUND

In 2012, Jemez Pueblo filed suit under the federal common law and the Quiet Title Act, 28 U.S.C. § 2409a ("QTA"), seeking a judgment that Jemez Pueblo "has the exclusive right to use, occupy, and possess the lands of the Valles Caldera National Preserve pursuant to its continuing aboriginal title to such lands." Complaint to Quiet Title to Aboriginal Indian Land, Prayer for Relief ¶ 1, at 14-15, filed July 20, 2012 (Doc. 1)("Complaint"). Specifically, Jemez Pueblo alleges aboriginal title to "that certain parcel of land commonly known as Baca Location No. 1 located in Sandoval and Rio Arriba Counties, New Mexico ... containing 99,289.39 acres, more or less." Complaint at 27.

PROCEDURAL BACKGROUND

Jemez Pueblo's Valles Caldera claim proceeded to trial beginning on October 29, 2018. See Trial Tr. at 1:4-6 (Court). During the first trial day, Jemez Pueblo elicited oral tradition evidence testimony from Jemez Pueblo Tribal Council member Paul Tosa. See Trial Tr. at 136:25 (Solimon). Tosa provided extensive testimony regarding historical Jemez Pueblo activity in and around the Valles Caldera; for example, Tosa stated that "in the fall it was time to collect [medicinal herbs,] that's what grandpa told us[,] that the obsidian valley[,] the campsite at the entrance to the gate[,] that's where that big area was...." Trial Tr. at 165:23-166:5 (Tosa). In response to such testimony, the United States raised a hearsay objection, arguing that "the case law is fairly clear [that] oral histories are hearsay[.] [I]t's plain hearsay and doesn't come in if under any exception." Trial Tr. at 166:10-16 (Dykema)(citing Bonnichsen v. United States, 367 F.3d 864, 881-82 (9th Cir. 2004) ; Sokaogon Chippewa Cmty. v. Exxon Corp., 2 F.3d 219, 222 (7th Cir. 1993) (Posner, J.) ). Specifically, according to the United States, what Tosa learned "at his grandfather's knee" is inadmissible hearsay. Trial Tr. at 167:5-7 (Dykema). Jemez Pueblo responded that oral traditional evidence "has been held admissible in ... federal Indian law cases including cases within the Tenth [Circuit Court of Appeals]." Trial Tr. at 167:9-12 (Solimon). Moreover, Jemez Pueblo asserts that it is aware of no "case right now that would ... exclude this type of testimony where we are dealing with a dispute involving things like migration, land use, traditions involving land use." Trial Tr. at 167:13-16 (Solimon). Jemez Pueblo argued that, "in cases that have considered oral tradition regarding [ancient] migration, sacred landmarks, shrines which have continuing importance in Tribal lifestyles, courts have [consistently] ... accepted it." Trial Tr. at 168:2-6 (Solimon)(citing Zuni Tribe of N.M. v. United States, 12 Cl. Ct. 607, 608 (Ct. Cl. 1987) ). Jemez Pueblo adds that

the way courts typically accept this evidence is it's to be read in context with other issues that are presented, including objective evidence such as expert witness testimony. In terms of it being hearsay ... there is a hearsay exception specifically concerning customs affecting lands in a community. That's 803[ (20) ]. That exception reads reputation in a community arising before the controversy as to boundaries of or customs affecting lands in the community and reputations show events of general history important to the community or state or nation in which it is located.

Trial Tr. at 168:10-21 (Solimon).

The Court acknowledged that it is "not an expert in [ rule] 803 [20]," but expressed skepticism that rule 803(20) would "cover all the history that ... Mr. Tosa is going to want to testify about. He's not going to testify just about the boundaries, but he's going to talk about something much more extensive." Trial Tr. at 169:6-9 (Court). The Court then inquired whether the cases that Jemez Pueblo cites address an objection or merely rely on unopposed oral history. Trial Tr. at 169:9-14 (Court). In response, Jemez Pueblo directed the Court to Pueblo De Zia v. United States, 165 Ct. Cl. 501 (1964), in which, according to Jemez Pueblo,

the [Indian Claims Commission] Court was reversed because it did not consider oral history, oral evidence that was not corroborated by written documents. And that was in itself hearsay[.] [W]e haven't found a case indicating that a hearsay objection to oral evidence or oral testimony, [or] Tribal traditions that are passed down orally ha[s] been accepted and sustained to prevent a witness from testifying. I think what courts have done is they've given the appropriate ... amount of weight based on the other objective evidence in the case.

Trial Tr. at 169:15-170:2 (Solimon)(citing Pueblo De Zia v. United States, 165 Ct. Cl. at 501 ). The Court reiterated its skepticism that "oral history can pass a hearsay objection" and proposed that the Court will take such evidence subject to making a formal ruling. Trial Tr. at 170:3-11 (Court). The United States assented to the Court's proposal and stated its understanding that the Court of Claims in Pueblo De Zia v. United States held that oral traditional evidence was not necessarily worthless when corroborating evidence supports the oral testimony. See Trial Tr. at 170:12-171:3 (Dykema).

The Court inquired about the quantity of oral traditional evidence that Jemez Pueblo intends to introduce during trial. See Trial Tr. at 171:7-9 (Court). Jemez Pueblo responded that the Court "will be hearing information about societies that use the Valles Caldera. And part of their testimony will involve oral traditions within those societies." Trial Tr. at 171:10-13 (Solimon). Moreover, Jemez Pueblo expressed that such oral traditional evidence "provides ... context to understand ... the testimony that both sides will be presenting about [how] it is that Jemez people came to this area and why they settled in this area." Trial Tr. at 171:20-24 (Solimon).

The Court inquired whether the United States saw any use for oral traditional evidence "other than it being offered for the truth of the matter asserted." Trial Tr. at 172:23-25 (Court). The United States responded that it is "happy to hear" Jemez Pueblo's migration story, despite relevance concerns, but objects to testimony regarding Jemez Pueblo's Valles Caldera use as learned from Tosa's grandfather, which the United States argues is relevant only for its truth. Trial Tr. at 173:1-13 (Dykema). The Court instructed the United States to object to what the United States considers offensive testimony, and the Court stated that it will likely conclude that it will not consider such testimony for the truth of the matter asserted. See Trial Tr. at 173:14-18 (Court).

Jemez Pueblo asserted that, because "it's going to ... cover many witnesses on this exact same issue," it had prepared a bench memorandum further delineating its position on the oral traditional evidence issue. Trial Tr. at 173:21-25 (Barnhouse). The Court accepted the bench memorandum and instructed Jemez Pueblo to file its bench memorandum on the docket. See Trial Tr. at 174:2-3 (Court). The United States responded that it would also file a bench memorandum on this issue. See Trial Tr. at 174:4-6 (Dykema). The United States, however, ultimately decided not to file a bench memorandum, see Trial Tr. at 275:6-8 (Dykema), and instead directed the Court to four cases that, according to the United States, discuss the relevancy and admissibility of oral traditional evidence: Pueblo De Zia v. United States; Bonnichsen v. United States, 367 F.3d 864, 881-82 (9th Cir. 2004) ; Sokaogon Chippewa Community v. Exxon Corp.; and Coos Bay, Lower Umpqua & Siuslaw Indian Tribes v. United States, 87 Ct. Cl. 143 (1938), see Trial Tr. at 275:6-25 (Dykema).

Jemez Pueblo argues, in its bench memorandum, that oral tradition evidence from lay witnesses is admissible. See Oral Evidence Memo. at 2. Jemez Pueblo asserts that courts have admitted such evidence "with and without considering corroborating evidence" to support factual findings, thereby "essentially ignor[ing] any application of the hearsay rule in their factfinding." Oral Evidence Memo. at 3. For example, according to Jemez Pueblo, the United States District Court for the Western District of Oklahoma in Comanche Nation v. United States, No. CIV-08-849-D, 2008 WL 4426621 (W.D. Okla. Sept. 23, 2008) (DeGiusti, J.), relied on lay witness testimony, "at times without the specific need for corroborating evidence," to establish that a geographic site was sacred to the Comanche Nation. Oral Evidence Memo. at 3 (citing Comanche Nation v. United States, 2008 WL 4426621, at *7 ("Testimony from several members of the Comanche Nation established that the [Medicine] Bluffs remain a sacred site for the Comanche people.") ).

Jemez Pueblo adds that courts have admitted oral traditional evidence from tribal members who themselves received such evidence from tribal elders. See Oral Evidence Memo. at 3 (citing United States v. Michigan, 471 F.Supp. 192, 219 (W.D. Mich. 1979) (Fox, C.J.)("The oral testimony of the tribal witnesses educated in the history and customs of their people by tribal elders [was] found to be reasonable and credible factual data regarding certain relevant aspects of Indian life at and after treaty times."); United States v. Washington, 384 F.Supp. 312, 379 (W.D. Wash. 1974) (Boldt, J.), aff'd, 520 F.2d 676 (9th Cir. 1975) ).

Jemez Pueblo argues that courts also consider lay witness oral traditional evidence "in the context of all other evidence." Oral Evidence Memo. at 4. According to Jemez Pueblo, the United States Claims Court in Zuni Tribe of New Mexico v. United States stated that it "considered all the evidence including testimony by several expert witnesses, source material relied upon by witnesses and accompanying their written reports, and the documentary evidence, and considered the lay testimony in that context." Oral Evidence Memo. at 3 (quoting Zuni Tribe of N.M. v. United States, 12 Cl. Ct. at 608 ). Moreover, according to Jemez Pueblo, the Honorable Edward J. Lodge, United States District Judge for the District of Idaho, held that the Coeur d'Alene Indian Tribe owned the lands in question after considering "oral traditional evidence in conjunction with expert testimony, documentary evidence and scientific studies...." Oral Evidence Memo. at 4 (citing United States v. Idaho, 95 F.Supp.2d 1094, 1101 (D. Idaho 1998) (Lodge, J.) ). Similarly, according to Jemez Pueblo, the Honorable Warren K. Urbom, Chief United States District Judge for the District of Nebraska, relied on "the testimony of '[m]any traditional Indians' " to assist in his interpretation of an 1868 treaty between the United States and the Sioux people. Oral Evidence Memo. at 4 (citing United States v. Consol. Wounded Knee Cases, 389 F.Supp. 235, 242 (D. Neb. 1975) (Urbom, C.J.) ).

In the alternative, Jemez Pueblo asserts that oral traditional evidence falls within rule 803(20) of the Federal Rule of Evidence, Reputation Concerning Boundaries or General History. See Oral Evidence Memo. at 6. Jemez Pueblo concedes that rule 803(20)'s application "has been limited," but nevertheless cites two unpublished cases wherein, according to Jemez Pueblo, federal courts admitted reputation evidence to establish real property boundaries. Oral Evidence Memo. at 4 (citing United States v. Booth, No. 90-5748, 1991 WL 119530, at *5 (6th Cir. July 3, 1991) ; Ariel Land Owners, Inc. v. Dring, No. 3:CV-01-0294, 2008 WL 189644, at *8 (M.D. Pa. Jan. 18, 2008) (Caputo, J.) ). Jemez Pueblo further argues that state courts have applied analogous state hearsay rule exceptions to admit boundary and general history evidence. See Oral Evidence Memo. at 6-7 (citing Sacrison v. Evjene, 388 Mont. 144, 398 P.3d 273, 279 (2017) (justifying the general reputation exception, because "[i]t is unlikely that a falsehood could become generally accepted in a community as the truth" (quoting Goodover v. Lindey's, Inc., 232 Mont. 302, 757 P.2d 1290, 1294 (1988) ) ) ). Jemez Pueblo also cites to Egli v. Troy, 602 N.W.2d 329 (Iowa 1999), wherein the Supreme Court of Iowa stated that, when reputation evidence regarding "controversies concerning boundaries or customary usage" is "the only evidence available," such evidence "is better than no evidence at all" despite being "multiple hearsay." Oral Evidence Memo. at 7 (quoting Egli v. Troy, 602 N.W.2d at 334 ).

Jemez Pueblo further asserts that rule 803(19), Reputation Concerning Personal or Family History, and rule 803(21), Reputation Concerning Character, "also depend on reputations and community knowledge, and apply to oral traditional evidence." Oral Evidence Memo. at 7-8 (citing Fed. R. Evid. 803(19) ; Fed. R. Evid. 803(21) ). Moreover, according to Jemez Pueblo, rule 807's residual exception to hearsay applies to oral traditional evidence, pursuant to Tenth Circuit caselaw, if the Court "is satisfied that the evidence offers guarantees of trustworthiness and is material, probative and necessary in the interest of justice." Oral Evidence Memo. at 8-9 (citing United States v. Farley, 992 F.2d 1122, 1126 (10th Cir. 1993) ).

LAW REGARDING HEARSAY

"Hearsay testimony is generally inadmissible." United States v. Christy, No. CR 10-1534 JB, 2011 WL 5223024, at *5 (D.N.M. Sept. 21, 2011) (Browning, J.)(citing Fed. R. Evid. 802 ). Under rule 801(c) of the Federal Rules of Evidence, "hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."

Fed. R. Evid. 801(c). Hearsay bars a party from presenting its own statements, such as "a defendant ... attempt[ing] to introduce an exculpatory statement made at the time of his arrest without subjecting himself to cross-examination." United States v. Cunningham, 194 F.3d 1186, 1199 (11th Cir. 1999) (Carnes, J.). A statement that is otherwise hearsay, however, may be offered for a permissible purpose other than to prove the truth of the matter asserted, including impeaching a witness. See United States v. Caraway, 534 F.3d 1290, 1299 (10th Cir. 2008) (Hartz, J.)("We have already explained why the content of the statement, if used substantively, would be inadmissible hearsay. If admitted for impeachment purposes, however, it is not hearsay."). Rule 805 of the Federal Rules of Evidence recognizes that "[h]earsay within hearsay" -- commonly referred to as double hearsay -- may be admissible "if each part of the combined statements conforms with an exception to the rule." Fed. R. Evid. 805. See United States v. Edwards, No. CR 16-3068 JB, 2017 WL 4857441, at *16 (D.N.M. Oct. 25, 2017) (Browning, J.).

1. Rule 803(3).

One of the hearsay exceptions -- rule 803(3) -- excepts from the general bar on hearsay "[a] statement of the declarant's then existing state of mind [or] emotion." Fed. R. Evid. 803(3). Rule 803(3) permits the introduction of "hearsay ..., even though the declarant is available as a witness," for a statement of the declarant's "[t]hen existing mental, emotional, or physical condition":

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

Fed. R. Evid. 803(3).

For the statement to qualify under the exception, it "must relate to the declarant's state of mind during" the incident in question. United States v. Netschi, 511 F. App'x 58, 61 (2d Cir. 2013) ("To admit statements of one's state of mind with regard to conduct that occurred ... earlier as in this case would significantly erode the intended breadth of this hearsay exception." (quoting United States v. Cardascia, 951 F.2d 474, 488 (2d Cir. 1991) )(internal quotation marks omitted). This requirement is not to say that the statement must be said at the very moment of the incident, but for intent to be proved, it must be "contemporaneous" to the act. Mutual Life Ins. Co. of New York v. Hillmon, 145 U.S. 285, 295, 12 S.Ct. 909, 36 L.Ed. 706 (1892). To be contemporaneous and therefore admissible under the present state-of-mind exception, a statement must be "part of a continuous mental process." United States v. Cardascia, 951 F.2d at 488. In addition to the requirements that the statement be contemporaneous to the incident at hand and relevant to the case's issues, it must also be established that there was no opportunity for the declarant to "fabricate or to misrepresent his thoughts." United States v. Jackson, 780 F.2d 1305, 1315 (7th Cir. 1986) ). The intent statements must reveal information or details about the future, which has been contrasted with memory statements or looking back to the past. See Shepard v. United States, 290 U.S. 96, 104, 54 S.Ct. 22, 78 L.Ed. 196 (1933). When statements entail issues of looking into the past combined with other concerns, it can often be too confusing for a jury to extract, upsetting the balance of advantage, and ultimately making the evidence inadmissible.

See Shepard v. United States, 290 U.S. at 104, 54 S.Ct. 22. "The most obvious risk of prejudice is that the jury will consider the hearsay statement not as proof of state of mind and the subsequent conduct of the declarant, but rather for the truth of the facts that are related in the statement." Stephen A. Saltzburg et al., Fed. Rules of Evidence Manual § 803.02, at 4-803 (11th ed. 2017).

2. Rule 803(19).

Hearsay statements are also permissible pursuant to rule 803(19), if the statement concerns "[a] reputation among a person's family by blood, adoption, or marriage -- or among a person's associates or in the community -- concerning the person's birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history." Fed. R. Evid. 803(19). As the Advisory Committee Note highlights, rule 803(19)

is concerned with matters of personal and family history. Marriage is universally conceded to be a proper subject of proof by evidence of reputation in the community. 5 Wigmore § 1602. As to such items as legitimacy, relationship, adoption, birth, and death, the decisions are divided. Id. § 1605. All seem to be susceptible to being the subject of well founded repute. The "world" in which the reputation may exist may be family, associates, or community. This world has proved capable of expanding with changing times from the single uncomplicated neighborhood, in which all activities take place, to the multiple and unrelated worlds of work, religious affiliation, and social activity, in each of which a reputation may be generated. People v. Reeves, 360 Ill. 55, 195 N.E. 443 (1935) ; State v. Axilrod, 248 Minn. 204, 79 N.W.2d 677 (1956) ; Mass. Stat. 1947, c. 410, M.G.L.A. c. 233 § 21A ; 5 Wigmore § 1616. The family has often served as the point of beginning for allowing community reputation. 5 Wigmore § 1488.

Fed. R. Evid. 803 advisory committee's note. Weinstein's Federal Evidence further articulates the need for this exception:

Other evidence of family matters is frequently unavailable, and it is likely that these matters have been sufficiently inquired about and discussed with persons who have personal knowledge so that a trustworthy consensus has been reached. No requirement of unavailability is imposed, because of the likelihood that on questions of this kind -- such as birth, adoption, and legitimacy -- other available witnesses would also be testifying from reputation, rather than personal knowledge....

The rule does not require that reputation in question have been formulated before the controversy arose, since a false reputation as to birth, death, or marriage is not likely to arise at any time. However, there is a greater possibility of inaccuracy concerning other aspects of family history, such as an ancestor's travels.

5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence, § 803.21[2] at 803-140 (Mark S. Brodin ed., 2d ed. 2018).

Rule 803(19) provides that reputation evidence is admissible to prove personal or family history, and that family members or close associates can establish the reputation. See Fed. R. Evid. 803(19) ; Saltzburg, supra, at 803-93. Reputation in the community often serves to provide evidence of marriage. See 5 Wigmore on Evidence § 1602, at 569 (Chadbourn rev. 1974)("[I]t has been universally conceded that reputation in the community is always admissible to evidence the fact of marriage;

there does not seem to have been any time when this was disputed."). The Advisory Committee on Evidence Rules notes that that this exception contemplates, as proper subjects of proof, marriage, legitimacy, relationship, adoption, birth, and death. See Fed. R. Evid. 803(19) advisory committee's notes. See United States v. Jean-Baptiste, 166 F.3d 102, 110 (2d Cir. 1999) ("[ Rule 803(19) ] plainly contemplates that members of a family may testify with regard to the common understanding as to the birth of another family member."). No matter the purpose, reputation testimony requires a reliable foundation. See Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 100-01 (3d Cir. 1999) (concluding that, to admit reputation evidence among a work community, the proponent must establish that reputation testimony "arises from sufficient inquiry and discussion among persons with personal knowledge of the matter" to constitute trustworthy reputation; rumors and speculation are insufficient). The exception's rationale "is that 'the natural effusions of those who talk over family affairs ... are trustworthy.' " Saltzburg, supra, at 803-93 (quoting Johnson v. State, 737 S.W.2d 901, 905 (Tex. App. 1987), aff'd in part and vacated on other grounds in part, 784 S.W.2d 47 (Tex. Crim. App. 1990) (en banc)(construing the state counterpart to Federal Rule 803(19) ) ).

3. Rule 803(20).

Under the rule 803(20) hearsay exception, an out-of-court statement is admissible if the statement concerns "reputation in a community -- arising before the controversy -- concerning boundaries of land in the community or customs that affect the land, or concerning general historical events important to that community, state, or nation." Fed. R. Evid. 803(20). The Advisory Committee Note to rule 803(20) states that,

[t]he first portion of Exception [paragraph] (20) is based upon the general admissibility of evidence of reputation as to land boundaries and land customs, expanded in this country to include private as well as public boundaries. McCormick § 299, p. 625.[ ] The reputation is required to antedate the controversy, though not to be ancient. The second portion is likewise supported by authority, id., and is designed to facilitate proof of events when judicial notice is not available. The historical character of the subject matter dispenses with any need that the reputation antedate the controversy with respect to which it is offered.

Fed. R. Evid. 803 advisory committee's note. The Federal Rules of Evidence Manual states that,

[t]o qualify for admission under Rule 803(20), the testimony must report a general consensus in the community, an assertion of the group as opposed to one or a few of its constituents. The fact that the information has been considered by and was subject to the general scrutiny of the community is an essential guarantee of reliability for the exception. Consequently, if the statement is a personal assertion of a single declarant, it will not be admitted under Rule 803(20).

Saltzburg, supra, at 803-94. The Advisory Committee Note to rule 803 discusses the rationale behind reputation-based exceptions to the rule against hearsay:

Trustworthiness in reputation evidence is found "when the topic is such that the facts are likely to have been inquired about and that persons having personal knowledge have disclosed facts which have thus been discussed in the community; and thus the community's conclusions if any has been found, is likely to be a trustworthy one." 5 Wigmore § 1580.... On this common foundation, reputation as to land boundaries, customs, general history, character, and marriage have come to be regarded as admissible. The breadth of the underlying principle suggests the formulation of an equally broad exception, but tradition has in fact been much narrower and more particularized, and this is the pattern of these exceptions in the rule.

Fed. R. Evid. 803 advisory committee's note.

To have significant probative value to qualify for admission under rule 803(20), the matter in question "must be one of general interest, so that it can accurately be said that there is a high probability that the matter underwent general scrutiny as the community reputation was formed." McCormick on Evidence § 322, at 554 (Kenneth S. Broun ed., 7th ed. 2013) (quoted by the Honorable Bruce S. Jenkins, United States District Judge for the District of Utah, in Ute Indian Tribe v. State of Utah, 521 F.Supp. 1072, 1149 (D. Utah 1981) (Jenkins, J.), rev'd in part on other grounds, 716 F.2d 1298 (10th Cir. 1983) ). See Mont. Power Co. v. Fed. Power Comm'n, 185 F.2d 491 (D.C. Cir. 1950) (admitting newspaper accounts and histories describing river's navigable nature during the nineteenth century to prove river's reputation for navigability during the nineteenth century). Wigmore states this "general interest" component even more emphatically:

[T]he facts for which such an opinion or reputation can be taken as trustworthy must ... be such facts as have been of interest to all members of the community as such, and therefore have been so likely to receive general and intelligent discussion and examination by competent persons, so that the community's received opinion on the subject cannot be supposed to have reached the condition of definite decision until the matter had gone, in public belief, beyond the stage of controversy and had become settled with fair finality.

5 Wigmore on Evidence, supra, § 1598, at 564-65.

Regarding the "general historical events important to [the] community" clause, Fed. R. Evid. 803(20), the Honorable Marvin E. Frankel, United States District Judge for the Southern District of New York, stated: "It is generally recognized that reputation is acceptable as proof of historical events of general interest in the community, despite the fact that such evidence is hearsay." Pan Am. World Airways, Inc. v. Aetna Cas. & Sur. Co., 368 F.Supp. 1098, 1104 n.5 (S.D.N.Y. 1973) (Frankel, J.). Hence, the rationale for this clause is: (i) a need for the evidence, because of the likelihood that other evidence cannot be obtained; and (ii) reliability, because the testimony represents the consensus of the community. See Advisory Committee's Note to Original Rule, reprinted at § 803 App. 01[2] ("[ Rule 803(20) ] is designed to facilitate proof of events when judicial notice is not available."). See Pan Am. World Airways, Inc. v. Aetna Cas. & Sur. Co., 368 F.Supp. at 1104 ("We have made pragmatic judgments in ruling from time to time that dubious or suspect evidence should be taken from all sides, however skeptically, when the practical alternative was to have no evidence of any kind.").

Courts are inclined to permit testimony pursuant to rule 803(20), although indicia of bias limits its probative value. See United States v. Belfast, 611 F.3d 783, 794 (11th Cir. 2010) ; Ute Indian Tribe v. State of Utah, 521 F.Supp. at 1075. In Ute Indian Tribe v. State of Utah, which involved a dispute about reservation boundaries, Judge Jenkins concluded that "reputation in a non-Indian community as to Indian boundaries, rights, etc., is indeed a treacherous ground for decision," because reputation evidence admitted pursuant to rule 803(20) is reliable only when it is of general interest, and the American Indian boundaries in that case were not of general interest before the dispute arose. 521 F.Supp. at 1149 ("While, as counsel for the counties points out, [boundary] reputation evidence is generally admissible in federal court under Rule 803(20), its reliability in these specific circumstances is suspect."). In United States v. Belfast, the United States Court of Appeals for the Eleventh Circuit affirmed a conviction for torture offenses committed in Liberia while the defendant's father was Liberia's President. See 611 F.3d at 783. The United States Court of Appeals for the Eleventh Circuit held that the district court did not abuse its discretion in admitting testimony by a Liberia Desk Officer at the United States Department of State when the testimony was limited to Liberian political party descriptions. See 611 F.3d at 821. The "testimony concerned nothing more than historical background about Liberia and its political structure, as necessary to educate the jury," and thus satisfied rule 803(20). 611 F.3d at 821.

4. Rule 803(21).

Hearsay statements are admissible under 803(21) when such statements concern "reputation among a person's associates or in the community concerning the person's character." Fed. R. Evid. 803(21). According to the Advisory Committee's Note, rule 803(19)

recognizes the traditional acceptance of reputation evidence as a means of proving human character. McCormick §§ 44, 158. The exception deals only with the hearsay aspect of this kind of evidence. Limitations upon admissibility based on other grounds will be found in Rules 404, relevancy of character evidence generally, and 608, character of witness. The exception is in effect a reiteration, in the context of hearsay, of Rule 405(a).

Fed. R. Evid. 803 advisory committee's note.

For a statement to qualify under the rule 803(20) hearsay exception, the offering witness must demonstrate that he or she "knows the person and is truly familiar with the 'community' in which the reputation has been formed, and that the basis of the reputation is one that is likely reliable." Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 101 (3d Cir. 1999). The character evidence hearsay exception for reputation as to character ensures that a hearsay objection will not bar reception of otherwise inadmissible, but sometimes desirable, evidence. See United States v. Penson, 896 F.2d 1087, 1092-93 (7th Cir. 1990) (concluding that a co-conspirator's testimony that "he knew of a man named Keith who in turn had a customer named Gene 'who had a truck driver [defendant] that had provided him with this exact service' " was admissible to show defendant's reputation within the drug-trafficking community). Cf. United States v. Arroyo, 406 F.3d 881, 887-88 (7th Cir. 2005) (holding that informant's statement that defendant was believed to have "ripped" two kilos of cocaine during a drug sale was not admissible under rule 803(21), because statement was not related to "reputation of [defendant's] character among associates or in the community," but to a rumor about a specific prior act and others' intentions to harm informant); Dick v. Phone Directories Co., Inc., 397 F.3d 1256, 1266 (10th Cir. 2005) (holding that hearsay testimony, that defendant's office was known as "the lesbian factory," was not admissible under rule 803(21), because testimony concerned neither a person nor her character).

5. Rule 807.

Rule 807, the Residual Exception to the rule against hearsay, provides that,

[u]nder the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804 : (1) the statement has equivalent circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and (4) admitting it will best serve the purposes of these rules and the interests of justice.

Fed. R. Evid. 807. Furthermore, this rule requires that "the statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant's name and address, so that the party has a fair opportunity to meet it." Fed. R. Evid. 807(b). The United States Court of Appeals for the First Circuit has summarized the policies that the residual hearsay exception serves:

1. To provide sufficient flexibility to permit the courts to deal with new and unanticipated situations.

2. To preserve the integrity of the specifically enumerated exceptions.

3. To facilitate the basic purpose of the Federal Rules of Evidence: truth ascertainment and fair adjudication of controversies.

United States v. Sposito, 106 F.3d 1042, 1048 (1st Cir. 1997) (citing 11 Moore's Federal Practice § 803(24)[7] (2d ed. 1994 & Supp.1996-97) ). These purposes are consistent with the suggestions of many of the leading evidence scholars over the past century and further rule 807's objective to make relevant evidence admissible. See United States v. Moore, 824 F.3d 620, 624 (7th Cir. 2016) ("The purpose of Rule 807 is to make sure that reliable, material hearsay evidence is admitted, regardless of whether it fits neatly into one of the exceptions enumerated in the Rules of Evidence.").

Given that rule 807 authorizes hearsay admission not within the precise confines of a recognized exception, the courts interpret the residual exception to admit hearsay evidence of high probative value in individual situations, but not to create new exceptions. See United States v. Doe, 860 F.2d 488, 491 (1st Cir. 1988) (concluding that the residual exception criteria "involve considerations which are very trial-specific, such as the relative probative value of the hearsay statement and whether admitting the statement will best serve 'the interests of justice' ")(quoting Fed. R. Evid. 803(24) ). But cf. Garner v. United States, 439 U.S. 936, 940 n.3, 99 S.Ct. 333, 58 L.Ed.2d 333 (1978) (Stewart, J., dissenting)("It seems to me open to serious doubt whether [the residual exception] was intended to provide case-by-case hearsay exceptions, or rather only to permit expansion of the hearsay exceptions by categories."). The residual hearsay exception is "meant to be reserved for exceptional cases," and is "not intended to confer 'a broad license' on trial judges 'to admit hearsay statements that do not fall within one of the other exceptions contained in rules 803 and 804(b).' " Conoco Inc., v. Dep't of Energy, 99 F.3d at 392 (quoting S. Rep. No. 94-199, at 20 (1975) ). See United States v. Trujillo, 136 F.3d 1388, 1395-96 (10th Cir. 1998) (stating that, because residual hearsay exceptions are intended for "exceptional circumstances," offerors of such evidence bear a "heavy burden" of presenting the trial court with sufficient indicia of trustworthiness). Hence, evidence admitted pursuant to rule 807 must have "circumstantial guarantees of trustworthiness" comparable to those of the enumerated rule 803 exceptions.

United States v. Harrison, 296 F.3d 994, 1004-07 (10th Cir. 2002) (holding that child sexual abuse victim's statement to Federal Bureau of Investigation ("FBI") agent had circumstantial guarantees of trustworthiness, even though victim recanted her statement, because the statement was consistent with her earlier statements and was specific, and victim was old enough to have the ability to remember the events). See United States v. Trujillo, 136 F.3d at 1395-96 ; United States v. Tome, 61 F.3d 1446, 1453 (10th Cir. 1995) (concluding that child's statement to caseworker identifying abuser, made a year after attack, lacked guarantees of trustworthiness); United States v. Farley, 992 F.2d 1122, 1126 (10th Cir. 1993). In United States v. Farley, for example, the Tenth Circuit admitted, pursuant to rule 807, a child sexual abuse victim's assault account, as given to victim's mother, even though some statements were made the morning after the assault, because the victim was still suffering pain and distress from the assault, the victim employed childish terminology, and the victim's youth reduced the likelihood that the statements were fabricated. See 992 F.2d at 1126.

In determining the trustworthiness of hearsay offered under the residual exception, the Tenth Circuit considers factors such as: (i) the statement's character; (ii) whether the statement is written or oral; (iii) the parties' relationship; (iv) the declarant's probable motivation in making the statement; and (v) the circumstances under which the statement is made. See United States v. Lawrence, 405 F.3d 888, 902 (10th Cir. 2005) (concluding that statements made to FBI agents by physician at defendant's clinic, including that he did not believe he was legally required to be at the clinic to supervise medical work, were not admissible under rule 807, in defendant's Medicare fraud trial, because statements had no circumstantial guarantees of trustworthiness, statements were taken shortly after FBI executed search warrant on clinic, and physician was the subject of the same investigation that eventually led to charges against defendant); Fed. Trade Comm'n v. Kuykendall, 312 F.3d 1329, 1343 (10th Cir. 2002) (concluding that consumer declarations and complaints had sufficient circumstantial guarantees of trustworthiness to warrant admission under rule 807 in a civil contempt proceeding arising from the defendants' violation of a permanent injunction, because they were made under oath and subject to penalty of perjury). For admissibility under rule 807, a statement must be "more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts." Fed. Trade Comm'n v. Kuykendall, 312 F.3d at 1343 (concluding that consumer declarations and complaints were trustworthy and most probative evidence available, and therefore admissible under rule 807, provided defendants had adequate notice); United States v. Zamora, 784 F.2d 1025, 1031 (10th Cir. 1986) (concluding that hearsay statements were properly excluded in absence of showing of statement's probative value or any effort to obtain information from other sources). The Tenth Circuit considers a statement "more probative" if the district court determines that the hearsay is relevant and reliable, and that no other evidence, or little other evidence, is available on the same point. See Marsee v. U.S. Tobacco Co., 866 F.2d 319, 324-25 (10th Cir. 1989) (concluding that reports were not admissible, because much of their contents were already admitted through expert testimony).

Rule 807 requires the district court to consider the availability of other admissible evidence through reasonable efforts, which depend on matters such as the importance of the evidence and the proponent's ability to provide it. See Calderon v. Presidio Valley Farmers Ass'n, 863 F.2d 384, 391-92 (5th Cir. 1989) (concluding that answers to interrogatories were admissible pursuant to rule 807, because relevant records were lost or destroyed, trial was held several years after violations took place, and witnesses were illiterate); United States v. Shaw, 824 F.2d 601, 610 (8th Cir. 1987) (stating that exceptional circumstances generally exist when child relates abuse details to adult). Courts must consider the need for the evidence in light of the basic assumption underlying the rule against hearsay -- that statements made directly in the courtroom are more reliable than hearsay; in other words, courts must balance need against trustworthiness. See United States v. Harrison, 296 F.3d at 1004-07. Admission of evidence under the residual exception must accord with "the purposes of these rules and the interests of justice." See New England Mut. Life Ins. Co. v. Anderson, 888 F.2d 646, 650-51 (10th Cir. 1989) (concluding that district court properly excluded statements reported in newspaper article, because district court found no guarantees of trustworthiness and plaintiff failed to show that admission of the article without opportunity to cross-examine witness would serve interests of justice); Marsee v. U.S. Tobacco Co., 866 F.2d 319, 325 (10th Cir. 1989) (interests of justice did not require admission of reports at issue).

LAW REGARDING AMERICAN INDIAN ORAL TRADITION EVIDENCE

American Indian oral tradition evidence "consist[s] of oral accounts handed down from father to son in continuity -- from generation to generation from time immemorial. Traditionally, this has been the principal tribal record of the history of all Indian tribes." Pueblo De Zia v. United States, 165 Ct. Cl. at 504. Because oral tradition evidence purports to prove historical events based on out-of-court statements offered for their truth, such evidence implicates reliability concerns attendant to hearsay and thus may be inadmissible in courts of law. See Sokaogon Chippewa Community v. Exxon Corp., 2 F.3d at 222 ("The oral tradition of a promised reservation is not evidence, that is, evidence admissible in a court of law." (emphasis in original) ). Hearsay is an out-of-court statement "offer[ed] in evidence to prove the truth of the matter asserted in the statement," Fed. R. Evid. 801(c), and is generally inadmissible as evidence "because it is considered unreliable," United States v. Lozado, 776 F.3d 1119, 1121 (10th Cir. 2015) (citing Williamson v. United States, 512 U.S. 594, 598, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994) ). See Fed. R. Evid. 801(c) (defining hearsay as an out-of-court statement offered "to prove the truth of the matter asserted in the statement."). Although the rule against hearsay is subject to numerous exceptions, see Fed. R. Evid. 801 - 807, neither the Tenth Circuit nor any other Court of Appeals has permitted American Indian oral tradition evidence pursuant to any codified exception to the rule against hearsay.

American Indian oral tradition evidence is seen primarily in (i) land claims and (ii) funerary repatriation claims. Land claims require Tribal claimants to show that they have occupied the land in question for a significant period, which claimants can often accomplish only through oral tradition evidence. See Sokaogon Chippewa Cmty. v. Exxon Corp., 2 F.3d at 222 ; Zuni Tribe of N.M. v. United States, 12 Cl. Ct. at 616 ; Confederated Tribes of the Warm Springs Reservation of Or. v. United States, 177 Ct. Cl. 184, 204 (1966) ; Pueblo De Zia v. United States, 165 Ct. Cl. at 505 ; Coos Bay Indian Tribe v. United States, 87 Ct. Cl. at 152-53 ; Assiniboine Indian Tribe v. United States, 77 Ct. Cl. 347, 368 (1933). Furthermore, Tribal claimants may use oral tradition evidence to repatriate sacred funerary objects or human remains pursuant to the Native Graves Protection and Repatriation Act of 1990, 25 U.S.C. §§ 3001 - 3005, ("NAGPRA"). Bonnichsen v. United States, 367 F.3d at 875. NAGPRA places oral tradition evidence on the same plane as documentary evidence by requiring the return of funerary objects upon a showing of cultural affiliation, by a preponderance of the evidence, based on "geographical, kinship, biological, archaeological, anthropological, linguistic, folkloric, oral traditional, historical, or other relevant information or expert opinion." 25 U.S.C. § 3005(a)(4). The statute makes oral tradition evidence part of the adjudicative process and expressly treats hearsay evidence as admissible by requiring that the decision maker must consider "oral tradition" in evaluating the strength of a claim of cultural affiliation. 25 U.S.C. § 3005(a)(4). See Deborah L. Threedy, Claiming the Shields: Law, Anthropology, and the Role of Storytelling in a NAGPRA Repatriation Case Study, 29. J. Land, Resources & Envt'l. L. 91, 109 (2009).

1. Admitted, Discredited Oral Tradition Evidence.

The American courts that have admitted or considered uncontroverted oral tradition evidence have historically discredited this evidence. See Bonnichsen v. United States, 367 F.3d at 881-82 ; Sokaogon Chippewa Cmty. v. Exxon Corp., 2 F.3d at 222 ; Coos Bay Indian Tribe v. United States, 87 Ct. Cl. at 152-53 ; Assiniboine Indian Tribe v. United States, 77 Ct. Cl. at 368. Several United States Court of Claims and United States Court of Appeals decisions address oral tradition evidence although such discussion is limited to passing mention in dicta. See Bonnichsen v. United States, 367 F.3d at 881-82 ; Sokaogon Chippewa Cmty. v. Exxon Corp., 2 F.3d at 222 ; Coos Bay Indian Tribe v. United States, 87 Ct. Cl. at 152-53 ; Assiniboine Indian Tribe v. United States, 77 Ct. Cl. at 368. What these cases share is the decision to give no weight to oral tradition evidence.

a. United States Court of Claims Cases.

In Assiniboine Indian Tribe v. United States, Tribal claimants sought the right of occupancy to two tracts of land, one of which fell under the Fort Laramie Treaty of 1851. See 77 Ct. Cl. at 362-63. The claimant American Indian Tribe was required to prove by a preponderance of the evidence that it had occupied the land in question by "immemorial possession." 77 Ct. Cl. at 358. Although the Court of Claims was not explicit in the particulars of the evidence that the Tribe submitted, to include whether such evidence was controverted by formal objection, it stated that the "[p]laintiff ... introduced the greater number of witnesses giving oral testimony." 77 Ct. Cl. at 366. The Court of Claims, however, refused to credit this evidence, stating that "much of the evidence ... is from a source that lessens its weight[,]" 77 Ct. Cl. at 366, and emphasizing that the witnesses "were either ... children at the time of the signing of the treaty or very old men at the time when they gave their testimony, and on account of age having at best a very incomplete recollection of matters that occurred fifty years prior thereto," 77 Ct. Cl. at 369. The Court of Claims concluded that "[t]he circumstances of the case make this testimony so unsatisfactory as to be unworthy of any credit." 77 Ct. Cl. at 369. In place of the oral tradition evidence, the Court of Claims favored the testimony of "Government agents," 77 Ct. Cl. at 369, asserting that the agents were less biased and had lived with the Tribe for a considerable period of time, thereby adding to their credibility, see 77 Ct. Cl. at 367. The agents alleged that the Tribe had migrated often during their history and that they had never excluded other Tribes from the land in question. See 77 Ct. Cl. at 360. The Court of Claims concluded that the Tribe did not occupy the land for the requisite period of time and thus denied its occupancy claim. See 77 Ct. Cl. at 368.

In Coos Bay Indian Tribe v. United States, the Coos Bay Indian Tribe resided on a reservation over which they did not have treaty rights. See 87 Ct. Cl. at 148. In 1855, the Superintendent of Indian Affairs in Oregon, authorized by an act of Congress, negotiated a treaty with the Tribe for the possession of the Tribe's land. See 87 Ct. Cl. at 150. The treaty was never ratified, and the Tribe therefore sought to prove its occupation of the land through oral tradition evidence. See 87 Ct. Cl. at 152. Similar to its decision in Assiniboine Indian Tribe v. United States, the Court of Claims in Coos Bay Indian Tribe v. United States did not describe the oral tradition evidence in its opinion, to include whether the evidence was controverted or introduced absent objection. See 87 Ct. Cl. at 150-53. Instead, the Court of Claims stated that "[i]f this testimony is to prevail in every way over documentary and historical evidence it is sufficient to observe that it does prove by hearsay that plaintiffs did occupy the lands claimed from time immemorial[,]" thereby suggesting that the Court of Claims may not have applied the rule against hearsay to oral tradition evidence as it did to most oral evidence. 87 Ct. Cl. at 152. Nevertheless, the Court of Claims concluded that the oral testimony was insufficient on its own to carry the Tribal claimants' burden of proof. See 87 Ct. Cl. at 152-53. The Court of Claims emphasized that "at least seventeen of the twenty-one witnesses produced ha[d] a direct interest in the outcome of the case"; thus, according to the Court of Claims, the oral tradition evidence could not overcome the written evidence that the United States presented. 87 Ct. Cl. at 152.

b. United States Court of Appeals Cases.

In Sokaogon Chippewa Community v. Exxon Corp., the United States Court of Appeals for the Seventh Circuit refused to admit oral tradition evidence because of concerns over oral tradition reliability. 2 F.3d at 222. In Sokaogon Chippewa Community v. Exxon Corp., the Sokaogon Indians sought a declaration that the Tribe had the right to occupy a particular tract of land rich in mineral deposits. See 2 F.3d at 220. The issue before the Seventh Circuit was whether the Sokaogon had ceded its aboriginal right after negotiating a treaty during the 1800s. See 2 F.3d at 221. The Tribe primarily used oral tradition evidence to detail the United States' promise to include the land in question in a reservation for a discrete of Chippewa Indian band, the Post Lake band. See 2 F.3d at 222. The Honorable Richard A. Posner, Circuit Judge for the United States Court of Appeals for the Seventh Circuit, stated that "there is no documentation of this tradition, which is at best embroidered (too many ransoms, shipwrecks, lost and stolen maps, and deathbed revelations to be plausible) and at worst fictitious." 2 F.3d at 222. Moreover, Judge Posner continues, "[n]o government document so much as hints at any such promise ... and several government documents state that the Post Lake bands are not entitled to their own reservation." 2 F.3d at 222. Judge Posner thus held that the Sokaogon had failed to state a claim sufficient to survive summary judgment. See 2 F.3d at 224. Judge Posner concluded that the oral tradition evidence was not admissible, because "no effort was made by the Sokaogon's counsel to cast it into a form in which it would be admissible in a court of law." 2 F.3d at 224-25.

In Bonnichsen v. United States, the United States Court of Appeals for the Ninth Circuit examined the use of oral tradition evidence within NAGPRA's context. See 367 F.3d at 881-82. The claim in Bonnichsen v. United States involved approximately 9,000-year-old human remains that were found in the State of Washington. See 367 F.3d at 868. Because of the remains' extreme age, archaeologists and other scientists desired to study the body. See 367 F.3d at 868. A coalition of Indian Tribes, however, sought to have the remains, known popularly as the " Kennewick Man," repatriated under NAGPRA. 367 F.3d at 869-70. A Department of the Interior final decision awarded the remains to the American Indians, and, in Bonnichsen v. United States, a group of scientists sought judicial review of that decision. See 367 F.3d at 875. In ruling for the scientists on appeal, the Ninth Circuit stated that,

because the value of [oral tradition] accounts is limited by concerns of authenticity, reliability, and accuracy, and because the record as a whole does not show where historical fact ends and mythic tale begins, we do not think that the oral traditions ... were adequate to show the required significant relationship of the Kennewick Man's remains to the Tribal Claimants.... 8340 to 9200 years between the life of Kennewick Man and the present is too long a time to bridge merely with evidence of oral traditions.

367 F.3d at 875. Hence, Bonnichsen v. United States indicates that, although NAGPRA allows courts to admit oral tradition evidence, it remains unclear whether courts will give weight to oral tradition evidence without corroboration by other evidence.

2. Admitted, Credited Oral Tradition Evidence.

In at least three cases brought before the Indian Claims Commission ("ICC"), and a fourth arising by special jurisdictional act of Congress, the Court of Claims, and its successor court, the United States Claims Court, explicitly recognized and assigned evidentiary weight to oral tradition evidence. See Wally v. United States, 148 Ct. Cl. 371, 373-74 (1960) ; Confederated Tribes of the Warm Springs Reservation of Or. v. United States, 177 Ct. Cl. at 184 ; Pueblo De Zia v. United States, 165 Ct. Cl. at 505 ; Zuni Tribe of N.M. v. United States, 12 Cl. Ct. at 616 n.12.

In Pueblo De Zia, the Tribal claimants appealed from an ICC decision which held that oral tradition evidence from various Tribal council members was insufficient to prove aboriginal title to land that the United States had taken. See Pueblo De Zia, 165 Ct. Cl. at 503-04. The testimony consisted of "oral accounts handed down from father to son ... from time immemorial." 165 Ct. Cl. at 504. The United States' brief stated that the evidence was "literally worthless." 165 Ct. Cl. at 505. The Court of Claims, in contrast, emphasized that, because the United States did not proffer any evidence of its own, and because the oral tradition evidence was corroborated, the oral tradition evidence was therefore "entitled to some weight; it cannot be ignored or discarded." 165 Ct. Cl. at 505 (emphasis in original). As support for this conclusion, the Court of Claims cited Rapid Transit Co. v. United States, 295 F.2d 465, 466-67 (10th Cir. 1961), wherein the Tenth Circuit adopted the rule that the Supreme Court of Kansas enunciated in Gibbs v. Central Surety and Insurance Corporation, 163 Kan. 252, 181 P.2d 498, 499 (1947), as follows:

[W]here plaintiff produces two witnesses who testify on every material element of plaintiff's cause of action, and such testimony is not inherently improbable or uncandid, and the cross-examination does not develop any conflict, and the defendant produces no testimony in opposition, the trier of fact is not justified in arbitrary or capriciously disregarding such testimony.

Gibbs v. Central Surety and Ins. Corp., 181 P.2d at 499 (quoted by the Tenth Circuit in Rapid Transit Co. v. United States, 295 F.2d at 466-67 ). Nevertheless, the Court of Claims qualified the use of the oral traditional evidence by suggesting that "corroboration of historical and archaeological evidence and testimony" may be necessary. 165 Ct. Cl. at 504.

In Confederated Tribes of the Warm Springs Reservation of Oregon v. United States, the Tribal claimants sought to prove aboriginal title to land ceded to the United States under the Treaty of June 25, 1855, 12 Stat. 963. See Confederated Tribes of the Warm Springs Reservation of Or. v. United States, 177 Ct. Cl. at 184. Although the Court of Claims followed the reasoning in Pueblo De Zia v. United States, by stating that oral tradition evidence "is entitled to some weight, and is not to be deemed worthless, particularly when it is corroborated by documents and the testimony of others," the Court of Claims added that "[t]he importance of corroboration and cross-checking cannot be undervalued since informants can mislead researchers by describing some period (usually the reservation one) besides the aboriginal, pre-treaty period." Confederated Tribes of the Warm Springs Reservation of Or. v. United States, 177 Ct. Cl. at 204. Thus, although Pueblo De Zia v. United States and Confederated Tribes of the Warm Springs Reservation of Or. v. United States established that Tribal claimants could use oral traditional evidence in the Court of Claims, the requirement of corroboration by outside sources severely limits such use.

In Wally v. United States, the Court of Claims allowed testimony as to reputation about facts that Tribal witnesses did not know personally to show the extent of American Indian land boundaries:

Community reputation about facts which are no longer available to individuals or susceptible of other proof has long been admissible to show the location of ancient boundaries.... The reason for this rule is not only caused by the perishable nature of boundary markers, but also because general reputation about facts of community interests are generally trustworthy. It is unlikely that a falsehood could become generally accepted in a community as the truth. The prolonged and constant exposure of these facts to observation and discussion by the community sifts out the possible errors and gives to the residual facts which are generally accepted by the locality a trustworthiness which allows these facts to be presented as evidence in a court of law.

148 Ct. Cl. at 373-74. The ICC thus permitted uncontroverted oral tradition evidence as testimony to prove the reputation of facts about past events that are known by the community as a whole, but are no longer available to individuals. See 148 Ct. Cl. at 373-74.

In Zuni Tribe of New Mexico v. United States, Tribal claimants sought compensation for the United States' alleged taking of tribal lands. See 12 Cl. Ct. at 607. The Claims Court admitted large amounts of oral tradition evidence, and the Tribal claimants ultimately succeeded in proving their claim to the lands in question. See 12 Cl. Ct. at 641. Notably, the Claims Court accepted the oral tradition evidence against the United States protestations:

Defendant conjectures, but offers no evidence to contradict or impeach the Zuni recounting of their history. And, given the imp