Author: Matthew L.M. Fletcher

New Study on Racial Bias in Legal Writing

Matthew L.M. Fletcher3 Comments

Here.

The study, titled “Written in Black & White: Exploring Confirmation Bias in Racialized Perceptions of Writing Skills,” is well worth the short read.

An excerpt:

We undertook this study with the hypothesis that unconscious confirmation bias in a supervising lawyer’s assessment of legal writing would result in a more negative rating if that writing was submitted by an African American lawyer in comparison to the same submission by a Caucasian lawyer. In order to create a study where we could control for enough variables to truly see the impact of confirmation bias, we did not study the potential variances that can be caused due to the intersection of race/ethnicity, gender, generational differences and other such salient identities. Thus, our conclusion is limited to the impact of confirmation bias in the evaluation of African American men in comparison to Caucasian men. We do not know (although we plan to study the issue in the very near future!) how this impact will splinter or strengthen when gender and/or other identities are introduced.

The data findings affirmed our hypothesis, but they also illustrated that the confirmation bias on the part of the evaluators occurred in the data collection phase of their evaluation processes – the identification of the errors – and not the final analysis phase. When expecting to find fewer errors, we find fewer errors. When expecting to find more errors, we find more errors. That is unconscious confirmation bias. Our evaluators unconsciously found more of the errors in the “African American” Thomas Meyer’s memo, but the final rating process was a conscious and unbiased analysis based on the number of errors found. When partners say that they are evaluating assignments without bias, they are probably right in believing that there is no bias in the assessment of the errors found; however, if there is bias in the finding of the errors, even a fair final analysis cannot, and will not, result in a fair result.

New Student Scholarship Proposing Rule of Evidence re: American Indian Oral Tradition

Matthew L.M. Fletcher

The Penn State Law Review has published “Native American Oral Traditional Evidence in American Courts: Reliable Evidence or Useless Myth?” by Rachel Awan.

Here is the abstract:

American history is rife with conflict between Native American cultures and the Anglo-American legal system. When Native American groups bring claims in federal court, they face a host of biases that fail to consider their distinctive cultural background. One such bias concerns the use of oral traditional evidence as testimony at trial. Because Native American groups were largely non-literate prior to European contact, Native Americans often use oral traditional evidence as testimony if the matter requires evidence extending centuries into the past. Unfortunately, the law regarding Native Americans’ use of oral traditional evidence as testimony has been particularly problematic because the existing jurisprudence has created uncertainty and inconsistency. This generates negative consequences because without the use of oral traditional evidence, Native American groups may lack the means to contend with opposing parties.

American courts have attempted to handle this genre of evidence for almost a century. Their efforts, however, have resulted in an array of cases that are nearly impossible for future claimants and litigants to follow. Specifically, cases from both the U.S. claims court and circuit courts do not detail the methods used in rejecting or admitting the oral traditional evidence. This creates harmful uncertainty for potential claimants who wish to use oral traditional evidence.

This Comment discusses American and Canadian jurisprudence, as the Supreme Court of Canada has explicitly created an evidentiary exception to accommodate aboriginal oral traditional evidence. This Comment then proposes a rule of evidence to guide American courts in making informed decisions regarding Native American oral traditional evidence.

DOJ Job Posting: OVW Tribal Affairs Division Grants Specialist

Matthew L.M. Fletcher

Here.

An excerpt:

This position is located in the Department of Justice (DOJ), Office on Violence Against Women (OVW). Created in 1995, OVW implements the Violence Against Women Act (VAWA) and subsequent legislation and provides national leadership against domestic violence, dating violence, sexual assault and stalking. Since its inception, OVW has launched a multifaceted approach to responding to these crimes through implementation of grant programs authorized by VAWA. By forging state, local and tribal partnerships among police, prosecutors, the judiciary, victim advocates, healthcare providers, faith leaders, the public, and others, OVW grants help provide victims with the protection and services they need to pursue safe and healthy lives, while improving communities’ capacity to hold offenders accountable for their crimes.

News Coverage of Paving Over of Sacred Site with Tribal Approval

Matthew L.M. Fletcher

Here.

An excerpt:

The American Indian leaders ultimately decided how the findings would be handled, and they defended their decision to remove and rebury the human remains and burial artifacts.

“The philosophy of the tribe in general is that we would like to protect our cultural resources and leave them as is,” said Nick Tipon, a longtime member of the Sacred Sites Protection Committee of the Federated Indians of Graton Rancheria. “The notion that these cultural artifacts belong to the public is a colonial view.”

Casey Family Programs Job Posting: Senior Director, Indian Child Welfare

Matthew L.M. Fletcher

Casey Family Programs has posted the position of Senior Director Indian Child Welfare. To apply for these position, please visit:

Senior Director Indian Child Welfare – HT10754<http://www.recruitingcenter.net/clients/casey/publicjobs/controller.cfm?jbaction=JobProfile&job_id=10754>

http://www.recruitingcenter.net/clients/casey/publicjobs

Casey Family Programs, an Equal Opportunity Employer, is a national operating foundation that provides and improves—and ultimately prevents the need for—foster care. We value a diverse and culturally competent workplace.

Job Summary:

The Senior Director of Indian Child Welfare Consulting is a national expert providing leadership to Casey, Tribes, and States regarding child welfare systems for Indian Child Welfare programs. Continue reading →

New Paper by Alex Skibine: “Constitutionalism, Federal Common Law, and the Inherent Powers of Indian Tribes”

Matthew L.M. Fletcher

Alexander Tallchief Skibine has posted his paper, “Constitutionalism, Federal Common Law, and the Inherent Powers of Indian Tribes,” forthcoming in the American Indian Law Review, on SSRN.

Here is the abstract:

In this Article, I argue that because Indian tribes have been incorporated into our constitutional system under a third sphere of sovereignty, the federal common law analysis under which the Court determines the extent of sovereign authority still possessed by Indian tribes is faulty. Instead of using federal common law, the Court should adopt a constitutional or at least quasi constitutional mode of analysis in determining such issues which in this case should be a dormant Indian Commerce Clause analysis. I also argue that the incorporation of tribes into our constitutional order not only has diminished the amount of power Congress has over such tribes but also may have limited the ability of tribes to escape limits the Constitution imposed on any exercise of sovereign authority within the geographical limits of the United States.

Highly recommended.

Federal Court Denies Government’s Motion to Dismiss Tuba City Regional’s Contract Support Costs Claims against IHS

Matthew L.M. Fletcher

Here are the materials in Tuba City Regional Health Care Corp. v. United States (D.D.C.):

18-1 US Motion to Dismiss

19 Tuba City Opposition

20 US Reply

32 DCT Order Denying US Motion to Dismiss

 

Rule 19 Motion by Banks in Indian Country Payday Lending Matter Denied

Matthew L.M. Fletcher3 Comments

Here are the materials in Dillon v. BMO Harris Band NA (M.D. N.C.):

32 BMO Harris Motion to Sever

34 BMO Harris Motion to Transfer

36 BMO Harris Motion to Compel Arbitration

39 BMO Harris Motion to Dismiss

68 Dillon Response to Motion to Sever

69 Dillon Response to Motion to Transfer

70 Dillon Response to Motion to Compel Arbitration

71 Dillon Response to Motion to Dismss

100 DCT Order on Motion Compel Arbitration

108 DCT Order on Rule 19 Motion

Update in Ute Indian Tribe-Uintah County-State of Utah Jurisdictional Dispute

Matthew L.M. Fletcher1 Comment

Here are the new materials in Ute Indian Tribe v. Utah (D. Utah):

222 Ute Indian Tribe Motion to Dismiss Uintah County Counterclaim

249 Uitah County Opposition to 222

250 Uintah County Motion to Dismiss

270 Tribe Motion to Dismiss Utah’s Counterclaim

278 Tribe Motion to Dismiss Uintah County Amended Counterclaim

279 Tribe Reply re 222

282 Tribe Response to 250

284 Utah Response to 270

289 Uintah Reply re 250

295 Uintah County Response to 278

300 Tribe Reply re 270

321 Tribe Motion to Dismiss 3rd Party Complaint

335 Ute Indian Tribe Motion for Partial Summary J 458 Utah Motion for Partial Summary J

461 Uintah County Motion for Summary J

535 Ute Indian Tribe Opposition to 461

582 DCT Order re: 222, 250, 270, 321

Yakama Nation Sues US Fish & Wildlife Service over Rattlesnake Mountain Bus Tours that Implicate Sacred Sites

Matthew L.M. Fletcher1 Comment

Here is the complaint in Confederated Tribes and Bands of Yakama Nation v. USFWS (E.D. Wash.):

Yakama v USFWS – wildflower tours

An excerpt:

This action relates to agency decisions and actions by the U.S. Fish and Wildlife Service and named officials thereof to conduct guided bus tours for members of the general public on Rattlesnake Mountain within the Hanford Reach National Monument (HRNM). The mountain is considered by the plaintiff to be of great religious and cultural importance, and for that reason the site has been federally designated as a Traditional Cultural Property (TCP) under the NHPA. The defendants concluded in April 2012 that the guided wildflower tours will have no adverse effect on the TCP, and plaintiff seeks judicial review of this finding. In addition, the defendants are seeking judicial review of a final agency action proceeding with scheduled public wildflower tours in 2014 despite a lack of concurrence by both the plaintiff and the State Historic Preservation Officer (SHPO), and subsequent violations of consultation procedures required by the NHPA.