Linguistics Expert Witness Services When Foreign Language Dictionaries Cannot Help
Qualified translators, interpreters, linguistic experts are sometimes asked to serve as expert witnesses in legal proceedings dealing with rare languages and uncommon cultures, especially in the cases where simply consulting a foreign language dictionary is either impossible, or insufficient.
Case #1: Indigenous Treaties and Customary Fishing Rights: When a Fish is more than a Fish
The case Makah Indian Tribe v. Quileute Indian Tribe is a landmark case that involved the interpretation of the Treaty of Olympia, which was signed in 1855 between the United States government and several Native American tribes in the Pacific Northwest. The case centered around the question of whether the treaty’s provisions related to fishing rights also included the right to hunt whales and seals.
The treaty guaranteed the tribes’ right to fish in their usual and accustomed fishing grounds, which were defined as “all usual and accustomed grounds and stations of said Indian tribes, rights and privileges of taking fish at all usual and accustomed places…in common with all citizens of the Territory.” The treaty also established reservations for the tribes and provided for the payment of annuities to them.
Linguistic Ambiguity of the Term “Fish”
The parties in this case disagreed about the meaning of the Treaty’s use of the term “fish.” Specifically, the court had to determine whether “fish” included whales and seals. Although scientists tell us that sea mammals are not fish, the court identified its task in the appeal as imagining the 1855 treaty negotiation and signing from the perspective of two signatory tribes — the Quileute Indian Tribe (the “Quileute”) and the Quinault Indian Nation (the “Quinault”) — to determine what they intended the Treaty to cover. This tribal perspective of interpretation is called the Indian Canon of Construction, which holds that treaties should be interpreted in favor of Native American tribes.
Although the court did not have access to minutes from the negotiations, they relied on ethnology studies and expert reconstructions of what likely happened. One of the experts who testified on behalf of the Makah tribe’s whaling rights was Professor Hoard, a professor of linguistics at the University of Washington.
Linguistics Expert Witness Testimony
Professor Hoard explained that because the commissioners and tribes did not speak the same languages, the 1855 negotiations would have used a limited trade medium of communication called Chinook jargon for translation. The treaty commission’s official interpreter translated provisions and remarks from English to Chinook jargon, then Indian interpreters translated the Chinook jargon into the tribes’ native languages.
In his testimony, Professor Hoard suggested that during the negotiations, the term most likely used was the Chinook word “pish,” which is the English equivalent for “fish”. He went on to explain that the negotiators would have chosen an overarching term due to the nature of the Chinook language. In this language, there are generic terms that encompass large categories (like “fish”), as well as specific terms for distinct species (like “whales,” “seals,” and “salmon”). However, there are no middle-ground terms that designate classifications (like “finfish” or “sea mammals”). Therefore, the decision to use a broad term like “pish” can be seen as a deliberate attempt to refer to a wider range of species rather than strictly finfish.
Based on the expert witness testimony of Professor Hoard, and other historical evidence of indigenous whale harvests, the court found that the tribes participating in the treaty negotiations intended the term “fish” to encompass whales and seals. The case was remanded for a determination of the scope of those whaling rights—whether they extended 30, 40, or 100 miles from the coast.
Case #2: Hello Neighbor: Violent Neighborhood Confrontation Leads to Charges
Our next case is United States v. Alo-Kaonohi, a federal criminal case against two native Hawaiian men, who were indicted for a racially-motivated hate crime after they allegedly used a shovel to attack C.K., a white man who was attempting to move into their Maui neighborhood.
As evidence of racial motivations the government produced a recording of the alleged assault and a police-interview transcript where Defendant uses two different phrases containing the word “haole” when referring to C.K.. The term “haole” originated in the Native Hawaiian language (`ōlelo Hawai`i) but has been incorporated into the everyday vernacular of the English-speaking residents of Hawaii.
The Relevance of Hawaiian Language, Culture, and Geography to the Case
In rebuttal, the defendants wanted to call Dr. Oliveira, a professor at the University of Hawaii, as an expert witness regarding Native Hawaiian language, culture, and geography. She was expected to testify as to (1) her interpretations of the “haole” remarks; (2) the origins of the term “haole,” framed within a discussion of `ōlelo Hawai`i; and (3) the term’s development into its contemporary usage in the community of Kahakuloa. Her principal opinions on the “haole” remarks—which she interprets as benign descriptions of the “outsider” or “foreign” victim, not as racially derogatory epithets—naturally rebut the government’s position that the remarks evince a racial motivation behind the alleged assault.
Linguistic Expert Witness Qualifications
The Court described her methodology as informed by her experiences with the Native Hawaiian language and Kahakuloa Village, experiences that are personal, sufficiently similar, and sufficient in number. In the words of Dr. Oliveira, “I focused my scholarship on Kahakuloa because I am a lineal descendant of some of the earliest native Hawaiian settlors to the area. . . . My report below is based on my extensive research on, and personal experience with, various ancestral places of Hawai`i, and specifically, Kahakuloa.”
Dr. Oliveira also described her education and scholarly credentials “In 1985, the University of Hawai`i at Mānoa began conferring to qualified graduates a Bachelor of Arts Degree in Hawaiian Language. I graduated and received my B.A. in Hawaiian Language 11 years later. Therefore, there are not many people who have engaged in formal Hawaiian Language scholarship longer than I have. In 1999, I began teaching extensively in the areas of Hawaiian Language, Hawaiian Culture, and Geography.”
Scope of Linguistic Expert Testimony Permitted
Although the government moved to exclude this linguistics expert witness’s testimony as unqualified and irrelevant, the Court deemed her qualifications sufficient and methodology “reasonable and reliable” and permitted her to testify.
They specified that she was NOT allowed to testify as to whether Defendant subjectively harbored racial animus when he uttered “haole,” because she was “not an expert in reading Defendant’s mind and cannot reliably testify as to his subjective intent. See Fed. R. Evid. 704(b) (“In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense.”).
Dr. Oliveira was, however, permitted to analyze the objective evidence—the history and contemporary development of the term “haole,” along with the identity of the speaker, including his cultural background, the identity of the recipient, and the fuller context of the statements—and interpret the “haole” remarks based on that objective evidence.
Expert Witness Testimony Resolves the Meaning of Disputed Translations
The Makah and Alo-Kaonohi cases highlight the importance of expert witness testimony in resolving the meaning of disputed translations. While dictionaries can explain all the possible meanings of a word, it takes an expert to evaluate the broader context and provide a credible evaluation of the most likely meaning among the possibilities.
Makah highlights the challenges of interpreting ambiguous language in treaties and other contracts, and the importance of considering the context in which the language was used to determine its meaning.
Alo-Kaonohi illustrates that expert foreign language testimony can provide tremendous value, even if the “text” being translated is only a single word—the meaning of that word was a key component of the government’s “hate crime” case.
Makah Indian Tribe v. Quileute Indian Tribe, 873 F.3d 1157 (9th Cir. 2017).
United States v. ALO-KAONOHI, Cr. No. 20-00136 JMS (D. Haw. Oct. 17, 2022).
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