Matthew L.M. Fletcher

In the last few years, in cases out of Oklahoma, Wyoming, Michigan, Washington, and elsewhere, advocates for states and non-Indian property owners have invoked fear, usually in the form of the logical fallacy known as the parade of horribles (or the slippery slope) to fight tribal rights litigation. Recently, Lisa Blatt dedicated substantial time in the Carpenter v. Murphy argument — weirdly, to the general acclaim of Supreme Court advocacy observers — to a parade of horribles argument, claiming a tribal rights win would allow thousands of prisoners to go free or get new trials, and implying that the City of Tulsa would suddenly come under tribal control.

What’s amazing is that these arguments to emotion almost always win, even in court before dispassionate judges. Neibhur and Chomsky theorized that myth-makers rely on emotionally potent oversimplifications to keep the rabble in line. Tribes might have the law on their side, and the facts, but never the myths.

Recently, I fielded a media call on the Murphy case. The first question from the journalist wasn’t really a question, but a reminder that their readers just wanted reassurance that they wouldn’t lose their land if the tribe’s reservation boundaries were recognized. I laughed. Of course not. But apparently that’s no so obvious.

I wasn’t at the Murphy argument, but Riyaz Kanji’s calm answers on behalf of the Muscogee (Creek) Nation to the parade of horribles was a far more effective argument. There are always answers to the fear.

No, the State of Oklahoma will not revert to the tribes.

No, tribes cannot veto non-Indian land use decisions on non-Indian land.

No, thousands of state prisoners will not go free.

No, non-Indians will not have to give back their lands to Indians.

The real answer is that tribal governments ultimately will prevail or not based on whether or not they are simply better at governing. And in places, they already are. More and more will be effective in the years to come. Quote me on that.

Federal Court Approves Auctioning of HCI Smokes; Case Still Under Active Investigation

December 17, 2018Matthew L.M. Fletcher

Here is the order in United States v. 2015 Dodge Ram 350 Truck (D. Neb.):

77 dct order

Prior post here.

Ryan Zinke Out as Interior Secretary

December 15, 2018Matthew L.M. Fletcher

Here.

Tenth Circuit Decides Comanche Nation v. Zinke [Chickasaw Trust Land Acquisition]

December 14, 2018Matthew L.M. Fletcher

Here is the unpublished order.

Briefs here.

Lower court materials here.

Mother Jones: “Native Women Are Already Extremely Vulnerable to Domestic Violence. Congress Is About to Make It Worse.”

December 14, 2018Matthew L.M. Fletcher

Here.

Environmental Law Institute Two-Part Podcast on Climate Change and Indigenous Traditional Ecological Knowledge

December 13, 2018December 13, 2018Matthew L.M. Fletcher

Here is Traditional Ecological Knowledge in the United States: Contributions to Climate Adaptation and Natural Resource Management (Part I).

Here is Traditional Ecological Knowledge and the Law: The Canadian Case (Part II).

National Indian Law Library Bulletin (12/12/2018)

December 13, 2018Matthew L.M. Fletcher

Here:

The National Indian Law Library added new content to the Indian Law Bulletins on 12/12/18.

Law Review & Bar Journal Bulletin (contact us if you need help finding a copy of an article)
https://www.narf.org/nill/bulletins/lawreviews/2018.html

Don’t take me out to that ballpark: State action, government speech, and Chief Wahoo after Matal.
“Mining” on Indian land: It’s not what you think.
Native American tribal appellate courts: Underestimated and overlooked.
Was Allergan’s patent-housing agreement in exchange for sovereign immunity a “sham to subvert the existing intellectual property system”?

Federal Courts Bulletin
https://www.narf.org/nill/bulletins/federal/2018.html
Seminole Tribe of Florida v. Biegalski (Doctrine of Claim Preclusion; State Taxation; Utilities)
Guardado v. Nevada (Prisoner Rights)

State Courts Bulletin
https://www.narf.org/nill/bulletins/state/2018.html
Everi Payments, INC. v. Washington State Department of Revenue (Business and Occupational (B&O) Tax Refund – Agency Law)

News Bulletin
https://www.narf.org/nill/bulletins/news/currentnews.html
In the Environment & Energy section, we feature an article about how the United Nations will scale up consideration of the experiences of indigenous peoples with climate change and efforts to respond to it.

Regulatory Bulletin
http://www.narf.org/nill/bulletins/regulatory/2018.html
We feature a notice of the Department of the Interior, Bureau of Indian Affairs, regarding land acquisition for the Dry Creek Rancheria Band of Pomo Indians, California.