Unjustifiable Expense: Tribal Nations Should be Included in FRE 902(1)

By Crispin South. 

First year law students are often taught that there are two types of governments in the United States: state governments and the federal government. Legal professionals in Arizona are more likely to know that this is a significant oversimplification with a glaring omission. Namely, this overlooks the fact that there are over 570 federally recognized Tribal Nations in the United States, 22 of which are within the State of Arizona. Each one carries out its own sovereign governmental functions.

But anyone reading Rule 902(1) of the Federal Rules of Evidence could be forgiven for making that omission, as the drafters of Rule 902(1) appear to have done the same thing. Rule 902(1) creates an exception to the requirement that parties offer extrinsic evidence to authenticate an item of evidence. Specifically, under Rule 902(1), a document that bears the seal of a listed government entity, along with a signature of attestation or execution, is considered a “self-authenticating document.” These documents may be admitted without any extrinsic evidence to verify their genuineness. Rule 902(1)(A) lists which governmental entities may issue self-authenticating documents.

The rule specifically includes:

•  the United States
•  any state, district, commonwealth, territory, or insular possession of the United States
•  the former Panama Canal Zone
•  the Trust Territory of the Pacific Islands
• a political subdivision of any of these entities; or
•  a department, agency, or officer of any entity named above.

Indian Tribal Nations are notably excluded from this list, so Courts have held that Tribal Nations cannot issue self-authenticating documents under this section. This exclusion imposes unnecessary burdens on Tribal Nations, courts, and federal prosecutors in Indian Country. Rule 902(1)(A) ought to be amended to include Tribal Nations, and Arizona sets an excellent example for how this can be done well.

Burdens

Because Tribal Nations cannot issue self-authenticating documents under this rule, extrinsic evidence must be introduced to prove the validity of documents bearing the seal of a Tribal Nation and an attesting signature of a tribal official. This creates some serious issues, particularly in criminal prosecutions on tribal lands.

For example, when federal prosecutors charge a person with committing a major crime within an Indian Reservation, the prosecution must prove that the defendant is legally considered an Indian. In a recent case from the 10th Circuit, a defendant’s conviction was vacated because federal prosecutors failed to properly authenticate a tribally issued certificate of Indian blood. One of the primary methods of verifying tribal documents such as Tribal membership cards or certificates of enrollment is testimony at trial by a tribal membership officer, who can attest to the accuracy of the documents. This takes valuable time away from these tribal officials, complicates the jobs of prosecutors, and forces courts to dedicate resources to these disputes, even when those resources could be better allocated elsewhere.

This issue is not exclusive to the prosecution and can also theoretically pose issues for defendants. For example, on a tribal reservation, crimes committed by an Indian against a non-Indian fall within the jurisdiction of federal and tribal courts. However, many crimes committed by an Indian against another Indian fall within exclusive tribal jurisdiction. Thus, for many offenses, if federal prosecutors charge an Indian defendant with a crime committed within a reservation, the defendant can prevail by showing that the victim was also an Indian, and that the case must be heard in the tribal court. In such a circumstance, a defendant could have their argument thwarted because of difficulties authenticating tribal documents demonstrating the victim’s Indian status.

The exclusion of Indian Tribal Nations from Rule 902(1)(A) imposes unnecessary burdens on courts, Tribal Nations, federal prosecutors, and potentially defendants.

Arizona As An Example

On January 1, 2024, an amendment to the Arizona Rules of Evidence went into effect, officially adding Tribal Nations as entities which can issue self-authenticating documents. The petition to amend Arizona’s evidentiary rules characterized the exclusionary nature of the old rule as causing “unjustifiable expense and delay.”

When the Advisory Committee on the Arizona Rules of Evidence considered this amendment, it noted that it seemed to be “common sense” to consider these documents self-authenticating. After all, it makes little sense to trust municipalities to issue self-authenticating documents, but not Tribal Nations.

Potential Reform

In 2013, the federal Advisory Committee on Evidence Rules declined to pursue an amendment to include Tribal Nations within Rule 902(1)(A), citing potential impact to rules other than the Evidence Rules. However, the Committee did not cite which other specific rules might be impacted, but rather gestured toward their “wide ranging discussion” on the matter. Since that time, it does not appear that the federal Advisory Committee on Evidence Rules has re-examined the issue.

Granted, this issue is not the largest one facing Tribal communities. However, it is one where there is potential for change, as demonstrated by Arizona’s recent amendment to the state Rules of Evidence. Arizona is not the only state to adopt such an amendment, as Washington and New Mexico both enacted similar changes in recent years. Though the federal Advisory Committee has not yet re-examined the issue, perhaps Arizona’s amendment will spur a change, if not with the Advisory Committee, then perhaps with Congress.

Ultimately, an amendment to the Federal Rules of Evidence would eliminate “unjustifiable expense and delay” currently felt by federal courts, parties appearing in federal court, and Tribal Nations. Further, it would demonstrate that Tribal Nations are trustworthy governments, entitled to the same evidentiary respect afforded to states, municipalities, and the former Panama Canal Zone.