Author: Matthew L.M. Fletcher

Jacob Levy: “Authoritarianism and Post-Truth Politics”

Matthew L.M. Fletcher

Here.

An excerpt:

Saying something obviously untrue, and making your subordinates repeat it with a straight face in their own voice, is a particularly startling display of power over them. It’s something that was endemic to totalitarianism. Arendt analyzed the huge lies and blatant reversals of language associated with the Holocaust. Havel documented the pervasive little lies, lies that everyone knew to be lies, of late Communism. And Orwell gave us the vivid “2+2=5.”

Being made to repeat an obvious lie makes it clear that you’re powerless; it also makes you complicit. You’re morally compromised. Your ability to stand on your own moral two feet and resist or denounce is lost. Part of this is a general tool for making people part of immoral groups. One child makes a second abuse a third. The second then can’t think he’s any better than the first, the bully, and can’t inform. In a gang or the Mafia, your first kill makes you trustworthy, because you’re now dependent on the group to keep your secrets, and can’t credibly claim to be superior to them.

Federal Court Orders Discovery from Tribal Judge on the Bad Faith Exception to the Tribal Exhaustion Doctrine

Matthew L.M. Fletcher1 Comment

Here are the materials in Acres v. Blue Lake Rancheria (N.D. Cal.):

8-motion-to-dismiss

18-opposition

23-reply

22-marston-declaration

30-order

The court had previously dismissed a related case, materials here.

NYTs: Washington State Representative Cathy McMorris Rodgers to be Selected Interior Secretary

Matthew L.M. Fletcher

Here.

Havasupai Tribe Sues over the Taking of Groundwater

Matthew L.M. Fletcher1 Comment

Here is the complaint in Havasupai Tribe v. Anasazi Water Co. (D. Ariz.):

Complaint

Federal Court Dismisses Slip and Fall Suit against Casino for Failure to Exhaust Tribal Remedies

Matthew L.M. Fletcher

Here are the materials in Sullivan v. Harrah’s Operating Company (D.S.C.):

28-1-motion-to-dismiss

34-dct-order

OIG Audit Questions More than $1.4M in Expenditures by Lower Brule Sioux Tribe under Bureau of Reclamation Contract

Matthew L.M. Fletcher

Here is the audit page, and the audit itself.

From the description:

We audited the Lower Brule Sioux Tribe’s (LBST) interim incurred costs on Cooperative Agreement No. R95AV60020 with the Bureau of Reclamation (USBR). The agreement was issued by USBR for operation, maintenance, and administrative activities associated with the Lower Brule Rural Water System, which serves tribal and nontribal customers in southwestern South Dakota.
 
Our audit identified a total of $1,440,748 in questioned costs, as well as the need for increased oversight by USBR. We offer six recommendations to help USBR resolve the questioned costs and improve its operations with LBST. USBR agreed with all six recommendations and will begin negotiations with LBST to recoup the unallowable costs.
The audit was conduction after Human Rights Watch published a report on corruption at Lower Brule.

Ninth Circuit Rules against Karuk in Forest Cutting Case

Matthew L.M. Fletcher

Here is the unpublished opinion in Karuk Tribe v. Stelle.

Briefs are here.

Trump (I Think) is Crowd-Sourcing His Supreme Court Justice Nominee

Matthew L.M. Fletcher2 Comments

Here is the May 18 shortlist. Here is yesterday’s list. There is some overlap but there is a new list post-election.

If you look around, you’ll see some profiles of the potential nominees (kinda) advocating for that person. Here are some examples of profiles of some of the more moderate candidates: Bloomberg profiled Joan Larsen; Allison Eid profiled here. Given the emphasis of the presumptive President-Elect on media, it seems plausible if not downright likely that the nominee will be the person that will generate the most attention on TV. Perhaps that means if none of these potential candidates generate enough media excitement (and yes that includes intense controversy) then we might not see any of them nominated. (Former?) #NeverTrump-er Don Willett (profiled here) might be the best bet because he is already an internet star (in legal circles anyway).

For all we know today, the presumptive President-Elect is trolling Dems (and maybe some Rs) to learn which of the people on the shortlist is most offensive, and therefore generates the most controversy and media attention.

Rep. Markwayne Mullin Denies Advocating for the “Privatization” of Tribal Assets

Matthew L.M. Fletcher1 Comment

Here is “Trump Adviser Says He’s Not Privatizing Tribal Land” from Law360.com. Rep. Mullin’s full statement is here. An excerpt:

By removing public-land restrictions on Indian trust land, such as the National Environment Policy Act (NEPA), we are not “privatizing” Indian land.  We must also remove the barriers from the decision-making process and stop forcing tribes to ask permission from federal entities like the Bureau of Indian Affairs (BIA) and the Bureau of Land Management (BLM). 

Prior coverage here. Rep. Mullin’s quote there:

“We should take tribal land away from public treatment,” said Markwayne Mullin, a Republican U.S. Representative from Oklahoma and a Cherokee tribe member who is co-chairing Trump’s Native American Affairs Coalition. “As long as we can do it without unintended consequences, I think we will have broad support around Indian country.”

This “privatization” talk is unlikely to end here. Anti-Indian advocates won’t have to look very hard to find Indians and others who would sympathetic to something akin to “privatization.”

Cathay Smith: “Oral Tradition and the Kennewick Man”

Matthew L.M. Fletcher

Cathay Y.N. Smith has published “Oral Tradition and the Kennewick Man” (PDF) in the Yale Law Journal Forum.

An excerpt:

On the eve of the upcoming repatriation of the Kennewick Man, this Essay focuses on the Ninth Circuit Court of Appeals’ summary rejection of the oral-tradition13 evidence introduced by Native American claimants in Bonnichsen v. United States which, as we now know, was ultimately more reliable than the then-available written historical and scientific records upon which the court relied. Courts disadvantage Native American claimants when they summarily reject oral-tradition evidence and prohibit “a major source of their knowledge, transmitted orally, across time, and in a distinctive style, [from being] meaningfully . . . entered as evidence, with the same consideration as written historical evidence.”14 Furthermore, courts’ inconsistent treatment of oral tradition also results in uncertainty and deprives Native American claimants of clear guidelines on what evidence they should or should not submit to prove their claims. This Essay suggests four factors for courts to consider on a case-by-case basis in the future to evaluate the probative value of oral-tradition evidence. It then proceeds to examine the inconsistent treatment of oral tradition evidence by U.S. courts, and urges courts to employ a balanced approach and adopt the factors offered in this Essay when evaluating Native American oral tradition in legal cases involving Native Americans claimants.