On Fear, Parades of Horribles, and Emotionally Potent Oversimplifications in Tribal Rights Litigation

Written by: Matthew Fletcher

Primary Source : Turtle Talk, December 18, 2018

 

Will the state of Oklahoma revert back to the Indians?

Will tribes veto non-Indian land use decisions?

Will thousands of state prisoners go free?

Will non-Indians have to give back their lands to Indians?

In the last few years, in cases out of OklahomaWyomingMichiganWashington, 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.

 

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Matthew Fletcher
Matthew L.M. Fletcher is Professor of Law at Michigan State University College of Law and Director of the Indigenous Law and Policy Center. He is the Chief Justice of the Poarch Band of Creek Indians Supreme Court and also sits as an appellate judge for the Pokagon Band of Potawatomi Indians, the Hoopa Valley Tribe, and the Nottawaseppi Huron Band of Potawatomi Indians. He is a member of the Grand Traverse Band of Ottawa and Chippewa Indians, located in Peshawbestown, Michigan. In 2010, Professor Fletcher was elected to the American Law Institute.