Some people eat, sleep and chew gum, I do genealogy and write...

Tuesday, February 7, 2017

Genealogy in the Court Room: Gristede's Foods, Inc. v. Unkechuage Nation,45

Historians and legal practitioners who specialize in Native American Law would likely be interested in the decision in this lawsuit that decided whether or not the Unkechauge Nation a/k/a Unkechauge Poospatuck Tribe was entitled to tribal sovereignty under the laws of the United States.Genealogists, on the other hand, would be more interested in the fact that one of the witnesses in the case was qualified as an expert.

The main issue in the case was whether or not the Tribe could qualify to operate tax-free businesses. One of the issues as to whether or not the Tribe was qualified involved a legal criterion imposed by prior case law that the tribe be composed of people "of the same or similar race." Here is what the court wrote on that issue.
The court heard evidence from all four witnesses about the first Montoya criterion for tribal determination: "of the same or similar race." The parties' experts dispute the definition of "race" as used by Justice Brown in Montoya's "same or similar race" criterion. Defendants' expert, Dr. Strong, testified that Justice Brown used the "conventional understanding of race of 1900: Caucasoid, Mongoloid, Negroid, Australoid, etc." (9/3 Tr. at 20.) According to Dr. Strong, Justice Brown was "referring to a body of Indians of diverse ancestry . . . [of the] same or similar race." (9/3 Tr. at 20.) The experts relied on genealogy, historical documentation of race relations and interactions between Indians and the first Europeans, and the geographic location of the Unkechauge. Dr. Strong concluded that the Unkechauge is a group of people of the same or similar race. (9/3 Tr. at 21-22.) Mr. Lynch applied a sociological approach to race, under which individuals of the same or similar race are those "who claim descent from an individual or from a kinship group" (9/8 Tr. at 64), and concluded that those claiming to be Unkechauge were not of the same or similar race. (9/8 Tr. at 70.)
I am surprised that the parties opposing the status of the Tribe did not raise issues relating DNA testing. In any event, the Tribe was compelled by the Plaintiffs' use of expert witness testimony to have their own experts. One of those experts was qualified as a genealogist. I think many of us in the genealogical community would be interested to read the basis the court used to qualify the witness as an "expert genealogist." Here is what the court had to say on the subject.
Additionally, the court heard testimony from plaintiff's experts, Joyce Davis and James Lynch. Ms. Davis was qualified as an expert in the field of genealogy, which she defined as the "study of families generationally." (9/4 Tr. at 186, 239-240.) Ms. Davis received her Associate's Degree in Language Arts in 1971 from West Valley College in Campbell, California and completed her Bachelor's Degree in Native American Studies in 1995 at George Mason University in Fairfax, Virginia. Ms. Davis testified that she took some genealogy "classes through extension" while she was in college and through "historical agencies." (9/4 Tr. at 186-188.) From 1993 until 1996, Ms. Davis was an Assistant Genealogical Researcher at the Bureau of Indian Affairs ("BIA") at the Department of Interior. (9/4 Tr. at 189.) Upon leaving the BIA, Ms. Davis has done independent genealogy consulting projects for tribes, among other jobs unrelated to genealogy. She has a genealogy consulting business in Net Lake, Minnesota. (9/4 Tr. at 185.)
Expert witnesses can be qualified either by education and academic achievement or by work experience. Meanwhile, genealogists may also be interested in the criteria for inclusion in the Tribe that was established by the testimony of the Chief.
  • Chief Wallace testified that the Unkechauge has a "one drop" blood quantum requirement for tribal membership, which means that any degree of Unkechauge blood would establish tribal membership. (9/4 Tr. at 172; Ex. 1 at 78.) As Dr. Strong states in his expert report, the "one drop" rule was also used by Americans in the southern slave states to determine the racial status of African Americans and later Indians, and those born of mixed parentage. (Ex. 1 at 78.) Chief Wallace explained the procedure for establishing blood right membership in the Unkechauge tribe, which was codified in the tribal customs, rules and regulations, but was in practice prior to the adoption of that document. (9/4 Tr. 89-90, Ex. 307.) The procedure for establishing blood right membership includes submitting an application, personal information and documentary proof. The application and supporting information are reviewed by the Unkechauge tribal council. (9/4 Tr. at 90-91; Ex. 307.)
Genealogists are more commonly involved in court actions pertaining to probates and similar property and inheritance issues. But it is possible that the issue of relationships can arise in other contexts. The court decided in favor of the sovereignty of the Tribe. Here is that part of the decision pertaining to the issue of sovereignty.
For the reasons that follow, and in light of the extensive evidence presented, the court finds that the defendant Unkechauge Nation has met its burden of establishing, by a preponderance of the evidence, that the Montoya criteria are satisfied and that the Unkechauge Nation is a "tribe" pursuant federal common law. Based on the court's finding, the Unkechauge enjoys sovereign immunity unless it has been waived or abrogated by Congress. "[A] waiver of sovereign immunity cannot be implied but must be unequivocally expressed." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978). There is no evidence in the record of a waiver or congressional abrogation of the Unkechauge's tribal immunity. Thus, the defendants' motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) is granted with respect to the Unkechauge Nation and Chief Harry Wallace, to the extent that he is sued in his capacity as a senior tribal official.
If you are thinking that you might want to become an expert witness, you might want to review Rule 702 of the Rules of Federal Procedure:
Rule 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case. 

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